FUNG WAI LING AND ANOTHER v. CHEUK PUI YIN AVERIL AND ANOTHER

FUNG WAI LING AND ANOTHER v. CHEUK PUI YIN AVERIL AND ANOTHER

The 1996 statutory declaration did not satisfy s5(4)(b) because the "material time" is the time of the transaction (the 1996 release) and a declaration made before that transaction cannot establish the statutory presumption; therefore requisitions remained unanswered on 23 June 1997, the purchasers validly refused completion and later rescinded without waiver, entitling them to return of the HK$232,000 deposit with interest and costs.

Citation
FUNG WAI LING AND ANOTHER v. CHEUK PUI YIN AVERIL AND ANOTHER
Parties
1st Plaintiff: Fung Wai Ling; 2nd Plaintiff: Shum Ka Lai; 1st Defendant: Cheuk Pui Yin Averil; 2nd Defendant: Cheuk Hing Yin Irene
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 February 1998
Case Number
HCMP2432/1997
Procedural Posture
Civil Conveyancing and Property / Judgment Court of First Instance
Outcome
Judgment for the Plaintiffs
Legal Topics
Power of Attorney Ordinance S5(4)(b), Statutory Declaration, Rescission for Breach, Return of Deposit, Waiver and Notice, Completion of Sale
Source Language
EN
Conveyancing Property Contract Statutory Interpretation Power of Attorney Ordinance S5(4)(b) Statutory Declaration Rescission for Breach Return of Deposit +2 more

Case Brief

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Parties

Fung Wai Ling

1st Plaintiff

Shum Ka Lai

2nd Plaintiff

Cheuk Pui Yin Averil

1st Defendant

Cheuk Hing Yin Irene

2nd Defendant

Procedural Posture

Civil Conveyancing and Property / Judgment Court of First Instance

Legal Issues

  1. 1 Whether the 1996 statutory declaration satisfied section 5(4)(b) of the Power of Attorney Ordinance (the Statutory Declaration Point)
  2. 2 Whether the purchasers were disabled or had waived the right to rescind by events after 23 June 1997 (the Disability Point)

Ratio Decidendi

The 1996 statutory declaration did not satisfy s5(4)(b) because the "material time" is the time of the transaction (the 1996 release) and a declaration made before that transaction cannot establish the statutory presumption; therefore requisitions remained unanswered on 23 June 1997, the purchasers validly refused completion and later rescinded without waiver, entitling them to return of the HK$232,000 deposit with interest and costs.

Court Disposition

Judgment for the Plaintiffs

Orders

  • Defendants to return the deposit of HK$232,000 to the Plaintiffs
  • Defendants to pay interest on the deposit at 1% above prime from date of writ and to pay the Plaintiffs' costs of the action