CHOW HAI PING, DAVID AND ANOTHER v. LEE ZZ JOSEPH, MARIE MADELEINE LEE AND ANOTHER

CHOW HAI PING, DAVID AND ANOTHER v. LEE ZZ JOSEPH, MARIE MADELEINE LEE AND ANOTHER

The Purchasers were not entitled to terminate because the Sale and Purchase Agreement expressly disclosed and dealt with the Building Order and therefore the Purchasers contracted to take title subject to that encumbrance; the Confirmatory Release cured any title doubt and Hayley Ltd was estopped from asserting otherwise; there was no present enforceable liability from the slope investigation so no separate ground to rescind.

Citation
CHOW HAI PING, DAVID AND ANOTHER v. LEE ZZ JOSEPH, MARIE MADELEINE LEE AND ANOTHER
Parties
Plaintiffs: CHOW HAI PING, DAVID AND MAI QING YI; Defendants: LEE ZZ JOSEPH, MARIE MADELELINE LEE AND LEE FAN DOK, JEAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 May 2001
Case Number
HCMP2412/2000
Procedural Posture
Vendor and Purchaser Summons (miscellaneous Proceedings) / Judgment of the Court of First Instance
Outcome
Originating Summons dismissed (as amended); order nisi that costs follow the event with Plaintiffs to bear Defendants' costs
Legal Topics
Building Order, Confirmatory Release, Title and Encumbrances, Termination of Contract, Requisition on Title
Source Language
EN
Conveyancing Property Law Contract Law Building Regulations Building Order Confirmatory Release Title and Encumbrances Termination of Contract +1 more

Case Brief

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Parties

CHOW HAI PING, DAVID AND MAI QING YI

Plaintiffs

LEE ZZ JOSEPH, MARIE MADELELINE LEE AND LEE FAN DOK, JEAN

Defendants

Procedural Posture

Vendor and Purchaser Summons (miscellaneous Proceedings) / Judgment of the Court of First Instance

Legal Issues

  1. 1 Whether the Purchasers were entitled to terminate the agreement by reason of a Building Order registered against the property
  2. 2 Whether the Confirmatory Release created by the bank or a confirmatory assignment was necessary and whether any defect in release entitled Purchasers to rescind
  3. 3 Whether a potential future liability to contribute to slope works amounted to a present encumbrance or title defect giving right to rescind

Ratio Decidendi

The Purchasers were not entitled to terminate because the Sale and Purchase Agreement expressly disclosed and dealt with the Building Order and therefore the Purchasers contracted to take title subject to that encumbrance; the Confirmatory Release cured any title doubt and Hayley Ltd was estopped from asserting otherwise; there was no present enforceable liability from the slope investigation so no separate ground to rescind.

Court Disposition

Originating Summons dismissed (as amended); order nisi that costs follow the event with Plaintiffs to bear Defendants' costs

Orders

  • Dismiss the Originating Summons (as amended)
  • Order nisi: costs follow the event; Plaintiffs to bear Defendants' costs of the proceedings