Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Poly Type Industrial Ltd v Chow Oi Wan Monita

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date25 July 2003
Year2003
Judgement NumberDCCJ2701/2002
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ002701/2002 POLY TYPE INDUSTRIAL LTD v. CHOW OI WAN MONITA

DCCJ002701/2002

DCCJ 2701/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2701 OF 2002

__________

BETWEEN:
POLY TYPE INDUSTRIAL LIMITED Plaintiff
AND
CHOW OI WAN MONITA Defendant

__________

Coram: Her Honour Judge H.C. Wong in Court

Dates of Hearing: 10 - 11 July 2003

Date of Handing Down Judgment: 25 July 2003

______________

JUDGMENT

______________

1. The Plaintiff claims against the Defendant for the return of the deposit paid under an agreement for sale and purchase entered on 31 January 2002 by the Plaintiff and the Defendant (hereinafter called "the said agreement") for the sale of a property situation at Flat G on 14th Floor, Wei King Building, 275 Chatham Road North, Kowloon (hereinafter called "the said unit").

2. Under the said agreement, completion was to take place on 13 March 2002. The purchase price agreed was $760,000. The completion date was postponed to 16 March 2002 at the request of the Defendant in February.

3. Title deeds were delivered to the Plaintiff's solicitors on 18 February 2002. On 23 February 2002, the Plaintiff's solicitors raised requisitions which were replied on 26 February 2002. Further requisitions on previous requisitions were raised and replied on 8 March 2002. On 12 March 2002, four days before the postponed date of completion, the Plaintiff instructed its solicitors to raise new requisitions. The Defendant failed to satisfy the Plaintiff's request for new requisitions relying on clauses 13 and 14 of the said agreement. The Plaintiff rescinded the said agreement. As a result, completion did not take place.

4. Under clause 13 of the said agreement, requisitions or objections to title have to be raised within seven working days of the receipt of title deeds delivered to the Plaintiff's solicitors. Under clause 19 of the said agreement, time is made of the essence. Relying on clause 20, the Defendant forfeited the deposit.

5. Clauses 13, 19 and 20 of the said agreement provides that:-

"Clause 13 Any requisitions or objections in respect of the title or otherwise arising out of this Agreement shall be delivered in writing to the Vendor's Solicitors within seven working days after the date of receipt of the title deeds to the Purchaser's Solicitors and further requisition or objection in respect of such requisition or objection previously raised as aforesaid shall be made in writing within seven (7) working days after the date of receipt the reply of the Vendor's Solicitors otherwise the same shall be considered as waived (in which respect time shall be of the essence of the Agreement) and if the Purchaser shall make and insist on any objection or requisition in respect of the title or otherwise which the Vendor shall be unable or (on the grounds of difficulty, delay or expenses or on any other reasonable ground) unwilling to remove or comply with the Vendor shall notwithstanding any previous negotiation or litigation be at liberty on giving to the Purchaser or his Solicitors not less than FIVE (5) working days' written notice to annul the sale hereof in which case, unless the objection or requisition shall have been in the meantime withdrawn, the sale hereof shall at the expiration of the notice be annulled and the Purchaser being in the event entitled to a return of the deposit paid hereunder in full forthwith but without interest, costs, or compensation."
"Clause 19 Time shall in every respect be of the essence of this Agreement."
"Clause 20 Should the Purchaser (other than due to the default of the Vendor) fail to complete the purchase in accordance with the terms and conditions herein contained the Vendor may (without tendering an Assignment to the Purchaser) forthwith determine his Agreement by giving notice of termination in writing to the Purchaser or his Solicitors to such effect and the Vendor shall thereupon be entitled to re-enter upon the Property and repossess the same if possession shall have given to the Purchaser free from any right or interest of the Purchaser therein and the Vendor shall be entitled to forfeit the said deposit. Upon determination of this Agreement the Vendor may resell the Property either by public auction or by private contract or partly by one and partly by the other subject to such stipulations as the Vendor may think fit and any increase in price on resale shall belong to the Vendor. Without prejudice to the Vendor's right to recover the actual loss which may flow from the Purchaser's breach of this Agreement, on such resale any deficiency in price shall be made good and all reasonable expenses attending such resale shall be borne by the Purchaser and such deficiency and expenses shall be recoverable by the Vendor as and for liquidated damages. On the exercise of the Vendor's right to determine this Agreement as aforesaid the Vendor shall have the right, if this Agreement shall have been registered at the Land Registry, to register at the Land Registry an instrument signed by the Vendor evidencing determination as aforesaid of the sale of the Property."

6. The Plaintiff, on the other hand, claims that the Defendant had failed to show good title and demands the return of the deposit under clauses 18 and 21 of the said agreement.

7. Clauses 18 and 21 of the said agreement are as follows:-

"18. The Vendor shall prove show and give a good title to the Property in accordance with Section 13 of the Conveyancing and Property Ordinance (Cap. 219) ("Ordinance") at his own expenses and shall at the like expense make and furnish to the Purchaser such deeds or documents of title and if such title deeds and documents do not relate exclusively to the property, the certified copy thereof as may be necessary to complete such title. The costs of verifying the title by inspection and examination including search fees shall be borne by the Purchaser who shall also if he requires certified copies of any documents in the Vendor's possession relating as well to the said premises as to other property retained by the Vendor pay the costs of such certified copies.
"21. In the event of the Vendor failing to complete the sale in accordance with the terms hereof, all moneys paid by the Purchaser to the Vendor pursuant to the provisions of this Agreement shall be returned to the Purchaser who shall also be entitled to recover from the Vendor damages (if any) which the Purchaser may sustain by reason of such failure on the part of the Vendor and it shall not be necessary for the Purchaser to tender an Assignment to the Vendor for execution."

The Facts

8. The Plaintiff's managing director and shareholder Mr. Cheung Kwok Choi admitted that he was an investor of residential properties in Hong Kong, and that he wished to purchase the said unit for his daughter's use. He also claimed that he had inspected the premises for about 10 minutes and he noticed that there were no partition walls dividing the dining room with the kitchen. But, at the time, he did not realise there were any problems with it. Neither did he realise that the walls between the kitchen and dining had been removed nor did the Defendant mention anything about it.

9. Mr. Cheung claimed that he had left the details of the purchase to his solicitors after entering an agreement for sale and purchase on 19 January 2002 with the Defendant. That it was not until early March when he had a conversation with his friend that he was alerted to the fact that there may be a structural problem with an open kitchen created without the Building Authority's approval. It was not until 12 March 2002 that the Plaintiff's solicitor was instructed to raise requisition on the matter.

10. I shall set out below the relevant part of the Plaintiff's then solicitors Messrs. S.T. Poon and Wong's 12 March 2002 letter to the Defendant's solicitors Messrs. Solomon Chong & Co.:-

" We refer to the above property completion of which shall take place on 16/3/2002.

We are informed that the kitchen of the above property was removed and altered. Pursuant to Section 14 of the Buildings Ordinance, Cap. 123, it stipulates that no building works could be carried out without having first obtained the prior written consent of the Building Authority. If any building works other than those not involving structural alteration without such prior consent, enforcement action would be taken by the Building Authority pursuant to Section 24 of the Buildings Ordinance, Cap. 123.

Please let us have the Artichect's Certificate for our perusal before two working days prior to completion.

We hereby reserve our client's right to claim against your client."

11. In answer to which the Defendant replied on 13 March 2002:-

" We are instructed to deny the allegation made in your said letter. Our client has not made and is not aware of the alleged alteration having been made in the Property. Even if such alteration has in fact been made which is not admitted, your client should have been aware of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT