FILA MARKETING (HONG KONG) LTD. v. FAITHFUL PROPERTIES LTD. AND ANOTHER

FILA MARKETING (HONG KONG) LTD. v. FAITHFUL PROPERTIES LTD. AND ANOTHER

Clause 4.13(ii) is clear on its face and, properly construed, grants the tenant a right of first refusal upon the landlord informing the tenant in writing of a desire to sell; the landlord breached clause 4.13(ii) by failing to give the required written notification of the sale to Jumbo King, the agent flyer did not...

Source-derived case information.

Citation
FILA MARKETING (HONG KONG) LTD. v. FAITHFUL PROPERTIES LTD. AND ANOTHER
Parties
Plaintiff; Defendant to Counterclaim: FILA MARKETING (HONG KONG) LIMITED; 1st Defendant; Plaintiff by Counterclaim: FAITHFUL PROPERTIES LIMITED; 2nd Defendant; Plaintiff by Counterclaim: TARGET POWER LIMITED; Plaintiff by Counterclaim: GOLD NATION DEVELOPMENT LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 July 1999
Case Number
HCCL66/1997
Procedural Posture
Commercial List Contractual Dispute Arising From Tenancy Agreement (right of Pre Emption) / Judgment on Liability Delivered; Quantum Reserved for Assessment
Outcome
Plaintiff's claim for breach of clause 4.13(ii) upheld; damages to be assessed at quantum hearing; Counterclaim by Faithful Properties, Target Power and Gold Nation dismissed.
Legal Topics
Right of Pre Emption / Option to Purchase, Construction of Contract, Tenancy Agreement, Lis Pendens (registration of Writ), Abuse of Process / Malicious Prosecution, Performance and Notice Requirements, Damages
Source Language
en
Contract Property Civil Procedure Equity Right of Pre Emption / Option to Purchase Construction of Contract Tenancy Agreement Lis Pendens (registration of Writ) +3 more

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Parties

FILA MARKETING (HONG KONG) LIMITED

Plaintiff; Defendant to Counterclaim

FAITHFUL PROPERTIES LIMITED

1st Defendant; Plaintiff by Counterclaim

TARGET POWER LIMITED

2nd Defendant; Plaintiff by Counterclaim

GOLD NATION DEVELOPMENT LIMITED

Plaintiff by Counterclaim

Procedural Posture

Commercial List Contractual Dispute Arising From Tenancy Agreement (right of Pre Emption) / Judgment on Liability Delivered; Quantum Reserved for Assessment

Legal Issues

  1. 1 Construction of clause 4.13(ii) (whether it applies to sales subject to tenancy)
  2. 2 Whether landlord performed obligation to inform tenant in writing as soon as practicable
  3. 3 Whether registration of writ/lis pendens constituted malicious abuse of process (counterclaim)

Ratio Decidendi

Clause 4.13(ii) is clear on its face and, properly construed, grants the tenant a right of first refusal upon the landlord informing the tenant in writing of a desire to sell; the landlord breached clause 4.13(ii) by failing to give the required written notification of the sale to Jumbo King, the agent flyer did not satisfy the written-notification requirement, and the registration of the writ as a lis pendens was not a malicious abuse of process; liability for breach is established and damages are to be assessed.

Court Disposition

Plaintiff's claim for breach of clause 4.13(ii) upheld; damages to be assessed at quantum hearing; Counterclaim by Faithful Properties, Target Power and Gold Nation dismissed.

Orders

  • Damages to the Plaintiff are to be assessed at a separate quantum hearing to be fixed in consultation with Counsel (estimated length: four days)
  • Costs nisi: costs of the hearings to date (8-12 March, 16 April and 14 June 1999) to the Plaintiff, to be taxed if not agreed