Tai Sang Kung Ltd. v Paraking Ltd. And Another

CourtCourt of Appeal (Hong Kong)
Judgment Date17 Jan 2002
Judgement NumberCACV3131/2001
SubjectCivil Appeal
CACV003131/2001 TAI SANG KUNG LTD. v. PARAKING LTD. AND ANOTHER

CACV003131/2001

CACV 3131/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3131 OF 2001

(ON APPEAL FROM HCA NO. 2503 OF 1998)

____________________

BETWEEN
TAI SANG KUNG LIMITED (formerly known as PACIFIC JET HOLDINGS LIMITED) Plaintiff
AND
PARAKING LIMITED 1st Defendant
UNIVERSAL PROPERTY AGENCY LIMITED 2nd Defendant

____________________

Coram: Hon Rogers VP, Woo JA and Yeung J in Court

Date of Hearing: 9 January 2002

Date of Handing Down of Judgment: 17 January 2002

____________________

J U D G M E N T

____________________

Hon Rogers VP:

1. This is an appeal from a judgment of Chung J given on 25 August 2001. The action before the judge concerned a contract for the sale and purchase of Shop A, Ground Floor, 118 Sha Tsui Road, Tsuen Wan. In the action, the plaintiff sought recission of the agreement, a declaration that the 1st defendant had not sufficiently answered three requisitions, a declaration that the 1st defendant had not proved or shown good title to the property and a declaration that the 1st defendant had wrongfully repudiated the agreement. The action had been brought against the 1st defendant as the seller of the property and the 2nd defendant as agent. The 1st defendant counterclaimed for breach of the agreement. The judge dismissed the plaintiff's claim and gave judgment for the 1st defendant in the sum of $1,000.

2. By the time of trial the statement of claim had been re-amended. The issues raised in that document were extensive. The plaintiff's claim was in respect of a number of matters including misrepresentation, failure to disclose matters required to be disclosed and failure to answer requisitions. All those matters save for one have now been abandoned. This appeal was argued on points turning upon requisitions relating to a plan. At the conclusion of the hearing we said we would hand down our decision in writing, which we now do.

Background

3. The parties had signed a provisional sale and purchase agreement dated 27 October 1997. Subsequent to that, a formal sale and purchase agreement was signed between the plaintiff and the 1st defendant dated 14 November 1997. That agreement provided for completion of the sale of the property on 16 February 1998. By paragraph 5 thereof the 1st defendant as the vendor undertook to assign the property as beneficial owner and to give the relevant covenants for title implied under the Conveyancing and Property Ordinance, Cap. 219.

4. Importantly for the purposes of this case was clause 10(a) of the agreement which read:

"Any requisition or objection in respect of the title to the Property shall be delivered to the Vendor's solicitors within seven (7) business days after the receipt of the title deeds by the Purchaser's solicitors and any further requisition or objection arising upon and reply to a former requisition shall be delivered to the Vendor's solicitors within seven (7) business days from the delivery of such reply, otherwise the same shall be considered as waived and the Purchaser shall be deemed to have accepted the Vendor's title."

5. The re-amended statement of claim was drafted by counsel who appeared before us. As pointed out in the course of the hearing, it contained a large quantity of irrelevant and therefore strictly speaking embarrassing material. Instead of containing a statement in summary form of the material facts, it pleaded what at best would be regarded as evidence but more accurately, probably, peripheral material.

The requisitions

6. The requisition which is relevant to this case was one of a number of requisitions contained in a letter of 22 November 1997 from the plaintiff's solicitors to the 1st defendant's solicitors. It read:

"Please let us have the copy Survey Plan No. GP148-S for our perusal since the same may affect...

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