in the high court of the
hong kong special administrative region
court of appeal
civil appeal no. 386 of 2004
(on appeal from DCCJ NO. 3428 of 2004)
Before : Hon Yeung, Tang JJA and Stone J in Court
Date of Hearing : 11 May 2005
Date of Judgment : 11 May 2005
Date of Handing Down Reasons for Judgment : 20 May 2005
REASONS FOR JUDGMENT
Hon Yeung JA (giving Reasons for Judgment of the Court):
1. On 11 May 2005, we dismissed both the appeal and the cross-appeal with no order as to costs. We indicated that we would give ourreasons in writing and this we now do.
2. By a sale and purchase agreement dated 10 May 2004 (the agreement), the plaintiff agreed to purchase and the defendants agreed tosell the property at Flat E, 10/F, Block 6, Tung Chung Crescent in Tung Chung (‘the property’).
3. Clause 3(1) of the agreement obliged the parties to complete the sale between 9 a.m. and 5 p.m. on 21 June 2004 and clause 5 also provided, as a condition precedent, “that vacant possession of the property shall be given to the Purchaser onthe actual day of completion (Emphasis added).
4. By an undertaking contained in a letter dated 18 June 2004, the defendants further undertook, inter alias “ to forward to us (the purchaser) or advise the estate agent to forward to the purchaser direct forthwith the keys of the propertyso that possession can be taken without delay”.
5. The defendants’ solicitors did not actually sign the undertaking letter, modified and delivered by the plaintiff’s solicitorson 21 June 2004. However, the binding effect of the letter was agreed.
6. The plaintiff sought to rescind the agreement on the basis that the keys of the property were only delivered to her solicitors at5.15 p.m. on 21 June 2004.
7. The plaintiff claimed against the defendants for the return of the deposit and damages.
8. The defendants denied that the delivery of the keys of the property to the plaintiff at 5:15 p.m. on 21 June 2004 constituted anybreach of the agreement.
9. The defendants contended that the plaintiff had repudiated the agreement and hence claimed for the right to forfeit the deposit,and for damages.
10. In her reply and defence to counterclaim, the plaintiff alleged an oral agreement reached in the morning of 21 June 2004 that “thegiving of the keys and hence vacant possession of the property to the plaintiff to be carried out at and through the Estate Agent’soffice upon the defendants’ solicitors receiving payment of the balance of the purchase price…”, which agreement in fact ledto the slight modification of the letter of undertaking.
11. Despite the fact that the plaintiff’s solicitors had informed the defendants’ solicitors that the completion documents and thecheque for the balance of the purchase price would be delivered to the defendants’ solicitors not later than 4 p.m. on 21 June2004, which they did at 3:57 p.m., the defendants failed to deliver the keys of the property before 5 p.m. on the completion dateand was thus in breach of the agreement.
12. The plaintiff further suggested that the conduct of the defendants between 4 and 5 p.m. on 21 June 2004 evinced an intention notto be bound by the agreement.
13. On 23 August 2004, the plaintiff took out an Order 14 summons, seeking judgment on her claim against the defendants. On 30 September2004, the defendants took out an Order 14A summons, seeking a determination on the following points of law:
14. The two summonses went before Judge Chow in the District Court (the judge) on 30 September 2004. By a judgment handed down on 18November 2004, the judge dismissed both summonses with costs.
15. The judge took the view that irrespective of the terms of the agreement, the undertaking given in the letter prepared by the plaintiff’ssolicitors had superseded the agreement.
16. Referring to Wellift Investment Ltd v Poly Commence Ltd  HKLRD 857, the judge concluded that “forthwith” could mean “as soon as practicable” and as the defendants had delivered the keys ofthe property to the plaintiff shortly after 5 p.m. on the day of completion, the defendants had an arguable defence to the plaintiff’claim.
17. The defendants’ Order 14A summons was dismissed on that basis the questions of law stated therein had not been properly framed.
The Plaintiff’s Appeal
18. The plaintiff appealed the judge’s decision and said he was wrong in deciding that the undertaking superseded the agreement. Theplaintiff also suggested that as the case involved no complex factual dispute, the judge “ought to have determined that questionof construction in (her) favour”.
19. Ms Chow, counsel for the plaintiff, indicated that for the purpose of the appeal, the oral agreement referred to in the reply anddefence to counterclaim would not be relied upon.
The Defendants’ Application
20. By a Respondents’ Notice filed on 29 December 2004, the defendants sought to uphold the judge’s decision in dismissing the plaintiff’sclaim for summary judgment on the basis that completion of the agreement did not require the delivery of keys before 5 p.m. on 21June 2004.
21. It was suggested that under the agreement the defendants had no obligation to deliver possession of the property to the plaintiffbefore 5 p.m. on 21 June 2004.
22. The defendants further argued, by way of cross appeal, that the judge should have ruled in their favour on the two points of lawset out in their Order 14A summons.
23. We were not persuaded at all that the defendants had formulated any proper question of law suitable for an Order 14A determination.
24. The court only adjudicates disputes between the parties to an action and will not provide advice to the profession. An Order 14Aapplication is only suitable when a determination of a question of law “arising in any cause or matter” is suitable without afull trial and will finally determine the entire cause or matter.
25. The question of law framed by the defendants referred to “a Hong Kong style of completion”. The purported meaning of “a HongKong style of completion” is not sufficiently clear.
26. Indeed, we also have difficulty in understanding precisely the meaning of the framed questions of law.
27. The primary question of law framed by the defendants, couched in ambiguous terms, refers to a general practice and not to the factualsituation relating to the disputes between the parties.
28. The court can only adjudicate the disputes between the plaintiff and the defendants on the pleadings and the evidence presentedby both parties.
29. Primarily, the case rests on the parties’ obligations and liabilities under the agreement and the undertaking given by the defendants.In the reply and defence to counterclaim, the plaintiff has raised the further issues of an oral agreement and whether the defendants’conduct on 21 June 2004 evinced an intention not to be bound by the agreement.
30. The primary issue, particularly the impact of the undertaking given by the defendants on such issue, is fact sensitive.
31. In the light of the matter raised by the plaintiff in the reply and defence to counterclaim, the proposed questions of law certainlywill not finally determine the issues in dispute.
32. The judge was right, in the exercise of his discretion, to dismiss the defendants’ Order 14A application.
33. Clause 3 of the agreement refers to time (before 5 p.m.) and manner of completion. A separated clause 5 provides that “vacantpossession…shall be given …on the actual day of completion”.
34. However, the agreed undertaking only required the defendants “…to forward to (the purchaser) or advise the estate agent to forwardto the purchaser direct forthwith the keys…” We agree with the judge that it was arguable that the defendants were only requiredto deliver or cause to be delivered the keys as soon as practicable and that delivery by 5:15 p.m. on 21 June 2004 was within suchtime frame.
35. Moreover, we believe it is arguable that failure to deliver or cause to be delivered the keys at or before 5 p.m. would not entitlethe purchaser to rescind the sale and at least to that extent, the provisions of the agreement have been modified.
36. Thus even if Ms Chow is right that under the agreement, vacant possession and hence the keys must be delivered at or before 5 p.m.on 21 June 2004, there remains other issues to be resolved.
37. We are of the view that delivery of the keys at 5:15 p.m. could be argued as delivery “as soon as practicable”. It is a questionof fact that should be determined at trial.
38. The alleged oral agreement and the parties’ conducts on 21 June 2004 are also relevant.
39. Those matters are all fact sensitive and can only be properly resolved after trial.
40. For obvious reasons, it is neither necessary nor desirable for us presently to express a view upon the merits of the parties’cases. Suffice it for us to say that the issues involved in the dispute require further and mature consideration by the trial judge,who will be in the position to make appropriate findings of fact upon which he will base his decisions of law.
41. In our view, the judge was also right in dismissing the plaintiff’s application for summary judgment.
42. The appeal and cross-appeal were both misplaced, and the matter clearly should have proceeded to trial in the normal manner.
43. We therefore dismissed both the appeal and the cross-appeal, and made no order as to costs.
Ms Grace Chow, instructed by Messrs Lau Chan & Ko, for the Plaintiff
Mr Jenkin Suen, instructed by Messrs Joseph S C Chan & Co, for the 1st and 2nd Defendant