ABE LTD. v. KWOK KA

ABE LTD. v. KWOK KA

The handwritten 'remarks' excluding abortive sale except for title problems were found to exclude clause 8; alternatively, even if clause 8 were available, the 1st defendants failed to pay the required compensation promptly and thus breached the agreement; damages were awarded to the plaintiff against the 1st defendants to be assessed by reference to the market value at the contractual completion date (12 May 1997); costs as between plaintiff and 2nd defendant were apportioned with plaintiff liable for 2nd defendant's costs up to 23 July 1997 and costs thereafter disallowed with solicitors ordered to repay costs incurred after that date.

Citation
ABE LTD. v. KWOK KA
Parties
Plaintiff (hca 3262/97); Defendant (hcmp 1019/97): Kwok Ka; 1st Defendant (hca 3262/97): Mak Siu Hing; 1st Defendant (hca 3262/97): Lo Cheuk Yuen; 2nd Defendant (hca 3262/97); Plaintiff (hcmp 1019/97): ABE Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 December 1998
Case Number
HCMP1019/1997
Procedural Posture
Civil Contract and Property (action and Miscellaneous Proceedings) / Judgment After Trial (handed Down 18 December 1998)
Outcome
Judgment for plaintiff (Kwok Ka) against the 1st defendants (Mak Siu Hing and Lo Cheuk Yuen) for damages to be assessed; plaintiff's claim against 2nd defendant (ABE Limited) withdrawn and declaration/relief granted to 2nd defendant in miscellaneous proceedings.
Legal Topics
Provisional Sale and Purchase Agreement, Escape Clause / Cooling Off Option, Specific Performance, Registration at Land Registry, Discovery Obligations, Assessment of Damages, Valuation Date for Damages, Solicitors' Professional Conduct, Costs Order Under Order 62 R.8(1)
Source Language
EN
Property Law Contract Law Civil Procedure Costs and Costs Allocation Equitable Remedies Provisional Sale and Purchase Agreement Escape Clause / Cooling Off Option Specific Performance +6 more

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Parties

Kwok Ka

Plaintiff (hca 3262/97); Defendant (hcmp 1019/97)

Mak Siu Hing

1st Defendant (hca 3262/97)

Lo Cheuk Yuen

1st Defendant (hca 3262/97)

ABE Limited

2nd Defendant (hca 3262/97); Plaintiff (hcmp 1019/97)

Procedural Posture

Civil Contract and Property (action and Miscellaneous Proceedings) / Judgment After Trial (handed Down 18 December 1998)

Legal Issues

  1. 1 Whether the printed escape clause (clause 8) was excluded by the handwritten remarks ('If the deeds have no problem, then there shall be definite purchase and definite sale').
  2. 2 If clause 8 remained available, whether the 1st defendants complied with its payment obligation within the required/ reasonable time.
  3. 3 Appropriate date for valuing the property for assessment of damages.

Ratio Decidendi

The handwritten 'remarks' excluding abortive sale except for title problems were found to exclude clause 8; alternatively, even if clause 8 were available, the 1st defendants failed to pay the required compensation promptly and thus breached the agreement; damages were awarded to the plaintiff against the 1st defendants to be assessed by reference to the market value at the contractual completion date (12 May 1997); costs as between plaintiff and 2nd defendant were apportioned with plaintiff liable for 2nd defendant's costs up to 23 July 1997 and costs thereafter disallowed with solicitors ordered to repay costs incurred after that date.

Court Disposition

Judgment for plaintiff (Kwok Ka) against the 1st defendants (Mak Siu Hing and Lo Cheuk Yuen) for damages to be assessed; plaintiff's claim against 2nd defendant (ABE Limited) withdrawn and declaration/relief granted to 2nd defendant in miscellaneous proceedings.

Orders

  • Judgment for plaintiff against 1st defendants for damages to be assessed.
  • Damages to be assessed on the basis of a valuation of the property as at 12 May 1997 (contractual completion date).