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Liu Yi Mei v Tse Sui Luen

Judgment Cited authorities 17 Cited in Precedent Map Related
Vincent
Judgment Date08 September 1999
Year1999
Judgement NumberHCA4674/1999
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA004674/1999 XCHRX LIU YI MEI v. TSE SUI LUEN

HCA004674/1999

HCA 4676/99

HEADNOTES

On 2nd March 19998, the Defendant entered into five Deeds of Put Option with the Plaintiffs ("the Deeds") separately whereby the Defendant granted to the Plaintiffs the option to require by written notice the Defendant to purchase their shares in a listed company on the fourteenth (14th) day after the day on which the grantor is deemed to have received the option notice. The option notice should be substantially in the form set out in Schedule 1 to the Deeds which do not require the completion date to be specified. On 6th March 1999, all the Plaintiffs simultaneously served notices by hand requiring the Defendant to purchase their shares in the Company. The Defendant admits receiving the notices on 6th March 1999. The date mentioned in the notices for completion, viz. 19th March 1999, is inconsistent with that determined in accordance with the Deeds. The correct date should be 20th March 1999. The Defendant challenged the validity of the notices.

The defence contended that there are authorities on "if" contracts which require strict compliance with all the "if" conditions. The notices stated the completion date as 19th March 1999 which is 13 days after the date of service whereas the Defendant is entitled to 14 days' notice, hence there was non-compliance with an essential condition for the exercise of the Option.

Held: - (1) Even accepting for argument's sake that there is a distinction between synallagmatic contracts and unilateral "if" contracts for present purposes, on the true construction of the Deeds, it was not necessary for the notices to state the date for completion. There cannot be breach of a non-existent condition. The effective date for completion was already fixed by the Deeds as the 14th day after the date of service of the notices. The Plaintiffs have complied with all the necessary conditions.

(2) The modern approach to construction of contracts and contractual notices expounded by the House of Lords in Mannai Investment Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. should be followed without distinction as to type of contracts.

(3) The notices stated "19th March 1999, i.e. the 14th day after the date hereof." The calendar date given is an obvious clerical error. The Plaintiffs clearly meant to adhere to the Deeds. Applying Mannai, the notices are valid.

HCA 4669/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4669 OF 1999

____________

BETWEEN
KOU LAU RU LING Plaintiff
AND
TSE SUI LUEN Defendant

HCA 4671/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4671 OF 1999

____________

BETWEEN
CHEN HUNG LIEN Plaintiff
AND
TSE SUI LUEN Defendant

HCA 4672/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4672 OF 1999

____________

BETWEEN
YUANTA SECURITIES ASIA FINANCIAL SERVICES LTD Plaintiff
AND
TSE SUI LUEN Defendant

HCA 4674/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4674 OF 1999

____________

BETWEEN
LIU YI MEI Plaintiff
AND
TSE SUI LUEN Defendant

HCA 4676/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4676 OF 1999

____________

BETWEEN
MA MEI TI Plaintiff
AND
TSE SUI LUEN Defendant

____________

Coram: Deputy Judge Li in Chambers

Date of Hearing: 26 August 1999

Date of Handing Down Judgment: 8 September 1999

_____________________

J U D G M E N T

_____________________

Before me are five Order 86 applications in 5 corresponding actions involving different Plaintiffs but the same Defendant. The material facts and documents for the purposes of all these five applications are for all practical purposes identical.

2. On 2nd March 1998, the Defendant entered into five Deeds of Put Option with the Plaintiffs ("the Deeds") separately whereby the Defendant granted to the Plaintiffs the option to require the Defendant to purchase their shares in Tse Sui Luen Jewellery (International) Ltd. ("the Company"). The relevant clauses in the Deeds are: -

"1.1 "Closing Date" 15:00 hours (Hong Kong time) on the fourteenth (14th) day after the day on which the Grantor is deemed to have received the Option Notice (and if that day does not fall on a Business Day, the immediately following Business Day) or such other time or date as the Grantor and the Grantee shall agree on which completion of the sale and purchase of the Option Shares shall take place pursuant to Clause 5 and Schedule 2;
"Option" the right granted under Clause 3.1 by the Grantor to the Grantee;
"Option Notice" the written notice exercising the Option substantially in the form set out in Schedule 1;
"Option Period" fourteen (14) days commencing from the expiry of the first (1st) anniversary of the date of completion of the Sale and Purchase Agreement;
3.1 ... the Grantor [i.e. the Defendant] hereby grants to the Grantee [i.e. the Plaintiffs] the right to require, at any time during the Option Period, the Grantor to purchase all or part of the Option Shares at the Option Price subject to the terms and conditions herein contained.

......

4. EXERCISE OF OPTION

4.1 The Option may be exercised in respect of any or all the Option Shares but can only be exercised once by the Grantee giving to the Grantor the Option Notice during the Option Period specifying the number of Option Shares in respect of which the Grantee exercises the Option.
4.2 An Option Notice, once given, may not be withdrawn except with the written consent of the Grantor.

5. COMPLETION

5.1 The Grantee will take all steps required to deposit the Specified Shares into CCASS prior to 10:00 hours (Hong Kong time) on the Closing Date so that they are available to effect Completion through CCASS.

......

7. REMEDIES OF GRANTEE

If the Grantor shall fail to purchase or procure the purchase of the Specified Shares on the Closing Date in accordance with the terms herein, the Grantee shall be entitled to demand specific performance of the obligations of the Grantor herein and (without prejudice to any other remedies available to the Grantee under this Deed) to claim against the Grantor for all losses and damages (on a full indemnity basis) suffered by the Grantee as a result of the default of the Grantor.

......

10. MISCELLANEOUS

10.1 Each notice, demand or other communication given or made under this Deed shall be in writing and delivered or sent to the relevant party at the address or facsimile number set out below (or such other address or facsimile number as the addressee has by five (5) days' prior written notice specified to the other party):

SCHEDULE 1

Option Notice

[GRANTOR]

[Address]

Dear Sir,

Re: Deed of Put Option dated 2nd March, 1998 entered into between Mr. [GRANTOR] and Ms. [GRANTEE] (the "Deed")

I refer to the Deed. Capitalised terms used in the Deed shall have the same meanings herein.

Pursuant to Clause 4 of the Deed, I hereby give you notice of my intention to exercise the Option to the extent of /all of the Option Shares [Note].

I hereby warrant to you that the above stated Option Shares comprise

/all of the Sale Shares and a proportionate part/all of the Additional Securities. In the event that the aforesaid warranty shall be untrue, inaccurate or misleading in any respect, I shall indemnify you accordingly.

Yours faithfully,

[GRANTEE]

Note: Please complete and delete as appropriate.

3. On 6th March 1999, all the Plaintiffs simultaneously served notices ("the Served Notices") by hand requiring the Defendant to purchase their shares in the Company. The Defendant admits receiving the Served Notices on 6th March 1999. The Served Notices are all like this: -

Option Notice

6th March, 1999

[GRANTOR]

[Address]

Dear Sir,

Re: Deed of put option dated 2nd March, 1998 entered into between [GRANTOR] and [GRANTEE] (the "Deed")

I refer to the Deed. Capitalised terms used in the Deed shall have the same meanings herein.

Pursuant to Clause 4 of the Deed, I hereby give you notice of my intention to exercise the Option to the extent of all of the Option Shares (that is, 550,000 Ordinary Shares). The Closing Date for Completion will be 3:00 p.m., (Hong Kong time) on 19th March, 1999, that is, the 14th day after date hereof. My bank account details for payment of the aggregate Option Price (less all Hong Kong seller's ad vaiorem stamp duty, fixed duty on the instruments of transfer and half share of the CCASS fees as may be payable in respect of the sale of the Option Shares) for all of the Option Shares in the amount of HK$1,153,556 are as follows: -

[Particulars given]

I hereby warrant to you that the above stated Option Shares comprise all of the Sale Share and all of the Additional Securities. In the event that the aforesaid warrant shall be untrue, inaccurate or misleading in any respect, I shall indemnify you accordingly.

Yours faithfully,

[Signed]

[GRANTEE]

4. It is common ground that the date mentioned in the Served Notices for completion, viz. 19th March 1999, is inconsistent with that determined in accordance with the Deeds. The correct date should be 20th March 1999. Whether the Defendant realized the inconsistency between the calendar date stated in...

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