5M ENTERPRISES LTD v. LEE CHEE WAH AND ANOTHER

5M ENTERPRISES LTD v. LEE CHEE WAH AND ANOTHER

The court found overwhelming evidence of a common clerical/typographical mistake in the 14 November 1968 assignment: contemporaneous sale agreement clause 14, sworn solicitor evidence and numerous subsequent assignments consistently reserved the roof and other units to the developer; the Deed of Mutual Covenant was...

Source-derived case information.

Citation
5M ENTERPRISES LTD v. LEE CHEE WAH AND ANOTHER
Parties
Plaintiff: 5M ENTERPRISES LIMITED; 1st Defendant: LEE CHEE WAH; 2nd Defendant: THE INCORPORATED OWNERS OF NO. 77 ROBINSON ROAD, HONG KONG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 March 2004
Case Number
HCMP2296/2003
Procedural Posture
Rectification of Assignment (land/property) / Judgment (court of First Instance)
Outcome
Rectification granted
Legal Topics
Rectification, Common Mistake, Deed of Mutual Covenant, Construction of Instruments, Costs
Source Language
en
Property Law Equity Land Registration Civil Procedure Rectification Common Mistake Deed of Mutual Covenant Construction of Instruments +1 more

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Parties

5M ENTERPRISES LIMITED

Plaintiff

LEE CHEE WAH

1st Defendant

THE INCORPORATED OWNERS OF NO. 77 ROBINSON ROAD, HONG KONG

2nd Defendant

Procedural Posture

Rectification of Assignment (land/property) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether a common clerical/typographical mistake occurred in the 1968 assignment
  2. 2 Whether the first assignment should be rectified to reserve the roof and other units to the developer
  3. 3 Admissibility and weight of contemporaneous sale agreement, solicitors' evidence and subsequent assignments as evidence of parties' true intention

Ratio Decidendi

The court found overwhelming evidence of a common clerical/typographical mistake in the 14 November 1968 assignment: contemporaneous sale agreement clause 14, sworn solicitor evidence and numerous subsequent assignments consistently reserved the roof and other units to the developer; the Deed of Mutual Covenant was inconclusive and statutory definitions did not resolve the factual question. Exercise of discretion was appropriate and rectification was ordered by inserting specified words into clause 4 of the assignment; costs were apportioned accordingly.

Court Disposition

Rectification granted

Orders

  • The assignment dated 14 November 1968 (Memorial No. 654227) is rectified by inserting in clause 4 immediately after the words 'and excepted and reserved unto the vendor and his assigns the full and exclusive right and privilege to hold use occupy and enjoy' the words 'all the apartments in the said building and the...
  • The 2nd Defendant shall pay 50% of the costs of the substantive hearing to the Plaintiff, such costs to be taxed if not agreed