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

Privett Spencer John v King Success Ltd

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date08 May 2007
Year2007
Judgement NumberDCCJ3584/2006
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ003584/2006 PRIVETT SPENCER JOHN v. KING SUCCESS LTD

DCCJ 3584 of 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3584 OF 2006

------------------------

BETWEEN

　 PRIVETT SPENCER JOHN Plaintiff
　 and 　
　 KING SUCCESS LIMITED Defendant

------------------------

Coram: Deputy District Judge Abu B. bin Wahab in Chambers (open to public)

Date of Hearing: 7 March 2007

Date of Handing Down Judgment: 8 May 2007

------------------------

JUDGMENT

------------------------

1. This is an application by the Defendant pursuant to Order 14A of the Rules of District Court, Cap. 336.

2. The issue is whether the Defendant - Vendor of property known as Flat A, 25th Floor of Le Village, 49 Village Road, Hong Kong together with Car Park Space Number 6 on the 2nd Floor (“the Property”) - had sufficiently and satisfactorily answered requisition on title raised by the Plaintiff Purchaser. In the Statement of Claim, the Plaintiff alleges that the Defendant failed to do so and prayed for, inter alia, return of total deposit paid ($580,000, “the Deposit”) and damages. By its Defence and Counterclaim, the Defendant maintained the opposite, insisting that a good and sufficient title had been shown. The Defendant counterclaimed for, inter alia, declaration of the right to forfeit the Deposit, an order vacating registration in the Land Registry of the Writ of Summons against the Property and damages.

3. The material facts are not in dispute. Counsels agree that it is appropriate to proceed under Order 14A. In my view, the issue really involves a question of law as to whether good and sufficient title had been shown (in answer to requisition raised). I join Counsels in their agreement.

4. Counsels for both parties conducted their case in a robust and fair manner. Their arguments were forceful, crisp and to the point. I should make special mention of Mr. Liu Man Kin for the Plaintiff. He was ready to concede when he felt it fair and proper to do so. I express my thanks to both Counsels for their conduct of the case and the assistance they gave me.

5. The question to be answered here is that recited under paragraph 1 of the Inter-Partes Summons, namely –

“whether by reason of the title deeds and documents together with the answers and the related materials provided to the Plaintiff’s solicitors in the Defendant’s solicitors’ letters dated 2nd June to 9th June 2006, the Defendant had sufficiently and satisfactorily answered the Plaintiff’s title requisition raised in the Plaintiff’s solicitor’s letter dated 29th May 2006 on the validity of execution of the assignment Memorial No. UB6982015 and dated 24th February 1997 purportedly by the attorney of the vendors thereunder pursuant to a power of attorney dated 1st March 1995.”

6. I answer that question in the affirmative. The Plaintiff’s Claim is dismissed. I enter judgment for the Defendant against the Plaintiff for:

a) A declaration that the Defendant has shown and given good title to the Property;

b) A declaration that, by reason of the Plaintiff’s wrongful repudiation of the formal agreement made between the Plaintiff and the Defendant on 18th May 2006 for the sale and purchase of the Property (“the Formal Agreement”), the Defendant is entitled to rescind the Formal Agreement and to forfeit the deposit in the sum of HK$580,000 paid by the Plaintiff;

c) An order that the registration of the Writ of Summons herein against the Property in the Land Registry be vacated forthwith and

d) Damages (and interest thereon) to be assessed.

7. I make an order nisi on costs in favour of the Defendant with certificate for Counsel, such costs are to be taxed if not agreed.

8. I will now explain the reasons for my judgment. This is the appropriate time to state the material facts of the case:

a) The relevant piece of land is known as Remaining Portion of Section B of Inland Lot No. 2559;

b) A building stood on the Lot (“the Old Building”);

c) Donor 1 and Donor 2 (known collectively hereinafter as “the Donors”) as tenants-in-common owned the ground floor plus portions of the basement and roof of the Old Building (amounting to 1/3 undivided share of the Old Building, “the Relevant Part”);

d) By a power of attorney dated 1 March 1995 (“Power of Attorney”), the Donors appointed Donee as their attorney with the power to, inter alia, sell and dispose of the Relevant Part (see Bundle B page 177 to 184);

e) By an Agreement of Sale and Purchase dated 31 December 1996 (“the Agreement of Sale and Purchase”, Bundle B page 163 to 176), the Donors sold the Relevant Part to Jade Castle Enterprises Limited (“Jade Castle”). The Agreement of Sale and Purchase was signed by Donee as attorney for the Donors;

f) Messrs. Gallant Y.T. Ho & Co. (“Gallant Ho”), solicitors, represented Jade Castle in the completion of purchase of the Relevant Part. Messrs. P.C. Woo & Co. (“PC Woo”), solicitors, represented the vendor;

g) By a letter dated 14 January 1997, Gallant Ho asked whether the Donors or Donee would be prepared to give a statutory declaration to prove that the Power of Attorney was still valid and effective (“Gallant Ho Letter”, Bundle B page 130);

h) By a letter dated 18 January 1997, PC Woo replied, inter alia, that they had instructions from “our client” that the Power of Attorney was still valid and effective. PC Woo went on to make reference to Section 5(4)(b) of the Powers of Attorney Ordinance (“the Ordinance”), Cap.31, advising that Jade Castle should be the one making the statutory declaration within the specified time to establish ignorance of any revocation (of the Power of Attorney). PC Woo went on to say that Donee would not give a statutory declaration (“PC Woo Letter”, Bundle B page 131 and 132).

[I digress to mention that Section 5(2) of the Ordinance provides “Where a power of attorney has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, the transaction between them shall, in favour of that person, be as valid as if the power had been in existence. Section 5(4) provides “Where the interest of a purchaser depends on whether a transaction between the donee of a power of attorney and another person was valid by virtue of section (2), it shall be conclusively presumed in favour of the purchaser that that person did not at the material time know of the revocation of the power if - …(b) that person makes a statutory declaration, before or within three months after the completion of the purchase, that he did not at the material time know of the revocation of the power”];

i) By a letter dated 14 February 1997, the Donors gave instructions to PC Woo on how to deal with the proceeds of sale of the Relevant Part (“Letter of Instructions from Donors”, Bundle page 159);

j) The Assignment between the Donors and Jade Castle was registered in the Land Registry by Memorial Number 6982015 (“the Assignment”, Bundle B page 155 to 158). The Assignment was signed on 24 February 1997 by Donee as attorney of the Donors;

k) By a subsequent assignment dated 3 February 1998, the Relevant Part was assigned by Jade Castle to the Defendant (Bundle B page 134 to 152);

l) By a statutory declaration of 15 February 2000, Jade Castle declared that at no time did they know of any revocation of the Power of Attorney (“Jade Declaration”, Bundle B page 127 to 133);

m) The Defendant acquired the remaining parts of the Old Building. The Old Building was demolished and replaced by another building (“the New Building”);

n) The New Building consisted of a number of flats and car park spaces including the Property;

o) By a provisional sale and purchase agreement dated 30 April 2006, the Plaintiff agreed to buy and the Defendant agreed to sell the Property (Bundle B page 49 to 50);

p) The Plaintiff and the Defendant entered into the Formal Agreement on 18 May 2006 (Bundle B page 53 to73) with completion date in June 2006;

q) The Defendant was bound to show a good title;

r) Messrs. Haldanes (“Haldanes”), solicitors,...

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