KWOK KA v. MAK SIU HING AND OTHERS

KWOK KA v. MAK SIU HING AND OTHERS

The handwritten 'remarks' limited the sole permissible impediment to completion to defects in title and thus excluded the operation of clause 8; alternatively, even if clause 8 were available, the 1st defendants breached it by failing to pay the specified compensation promptly; consequently the 1st defendants are liable to the plaintiff for damages to be assessed on the basis of the market valuation as at the contractual completion date (12 May 1997). Costs consequences were apportioned because of serious discovery failures by solicitors on both sides: plaintiff to pay 2nd defendant costs up to 23 July 1997; thereafter costs between parties disallowed and solicitors ordered to repay...

Citation
KWOK KA v. MAK SIU HING AND OTHERS
Parties
Plaintiff (hca 3262/97); Defendant (hcmp 1019/97): Kwok Ka; 1st Defendant (hca 3262/97): Mak Siu Hing and 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
HCA3262/1997
Procedural Posture
Civil Action and Miscellaneous Proceedings Concerning Sale of Land / Proprietary Interests / Judgment at First Instance (court of First Instance)
Outcome
Judgment for plaintiff against the 1st defendants for damages to be assessed; leave granted to plaintiff to withdraw claim against 2nd defendant; declaration and order made for 2nd defendant in miscellaneous proceedings; costs orders made as to parties and solicitors.
Legal Topics
Provisional Sale and Purchase Agreement, Escape Clause / Cooling Off Period, Specific Performance, Measure and Date for Assessment of Damages, Discovery and Solicitors' Duties, Backdating Allegation, Registration of Agreement
Source Language
EN
Contract Property Conveyancing Civil Procedure Costs Provisional Sale and Purchase Agreement Escape Clause / Cooling Off Period Specific Performance +4 more

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Parties

Kwok Ka

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

Mak Siu Hing and Lo Cheuk Yuen

1st Defendant (hca 3262/97)

ABE Limited

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

Procedural Posture

Civil Action and Miscellaneous Proceedings Concerning Sale of Land / Proprietary Interests / Judgment at First Instance (court of First Instance)

Legal Issues

  1. 1 Whether the 1st defendants could rely on clause 8 (escape clause) of the provisional agreement
  2. 2 Whether the 1st defendants complied with the obligations under clause 8 (timing and payment)
  3. 3 Appropriate date for valuing the property for assessment of damages

Ratio Decidendi

The handwritten 'remarks' limited the sole permissible impediment to completion to defects in title and thus excluded the operation of clause 8; alternatively, even if clause 8 were available, the 1st defendants breached it by failing to pay the specified compensation promptly; consequently the 1st defendants are liable to the plaintiff for damages to be assessed on the basis of the market valuation as at the contractual completion date (12 May 1997). Costs consequences were apportioned because of serious discovery failures by solicitors on both sides: plaintiff to pay 2nd defendant costs up to 23 July 1997; thereafter costs between parties disallowed and solicitors ordered to repay...

Court Disposition

Judgment for plaintiff against the 1st defendants for damages to be assessed; leave granted to plaintiff to withdraw claim against 2nd defendant; declaration and order made for 2nd defendant in miscellaneous proceedings; costs orders made as to parties and solicitors.

Orders

  • Judgment for the plaintiff (Kwok Ka) against the 1st defendants (Mak Siu Hing and Lo Cheuk Yuen) for damages to be assessed
  • Damages to be assessed on basis of valuation of the property as at 12 May 1997 (contractual completion date); assessment may be before a master or another judge