CHU KIT YUK AND ANOTHER v. COUNTRY WIDE INDUSTRIAL LTD AND OTHERS

CHU KIT YUK AND ANOTHER v. COUNTRY WIDE INDUSTRIAL LTD AND OTHERS

Court held binding contracts existed for the two flats; the parties intended the name-change method but agreed sub-sale as an alternative if name-change proved unviable; parol evidence was admissible to establish the fallback; s.3 CPO did not bar enforcement because the fallback was not a material term requiring separate writing; Country Wide could not rely on the liquidated-damages escape clause because it failed to elect and pay within a reasonable time; defendants failed to prove misrepresentation or frustration; however specific performance in favour of the original plaintiffs was refused because granting it would be unfair and prejudicial to the subsequent purchasers (Tam and Tsui),...

Citation
CHU KIT YUK AND ANOTHER v. COUNTRY WIDE INDUSTRIAL LTD AND OTHERS
Parties
1st Plaintiff (original Action); 2nd Defendant (counterclaim): CHU KIT YUK; 2nd Plaintiff (original Action); 3rd Defendant (counterclaim): CHU KIT HA; 1st Defendant (original Action); 1st Defendant (counterclaim): COUNTRY WIDE INDUSTRIAL LTD; 2nd Defendant (original Action); 1st Plaintiff (counterclaim): TAM HO YIN; 3rd Defendant (original Action); 2nd Plaintiff (counterclaim): TSUI YIM CHU
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 July 1994
Case Number
HCA6389/1991
Procedural Posture
Contract for Sale of Land; Equity (specific Performance) / Judgment on Liability and Discretionary Remedies (damages to Be Assessed)
Outcome
Judgment: plaintiffs (Chu sisters) succeed on liability against Country Wide; specific performance to original plaintiffs refused; counterclaiming purchasers (Tam and Tsui) succeed and are granted specific performance of their sub-sale agreements; damages and costs to be assessed; consequential orders made to vacate...
Legal Topics
Specific Performance, Sub Sale Vs Name Change (novation), Parol Evidence, Conveyancing and Property Ordinance S.3 (statute of Frauds), Liquidated Damages/escape Clause, Misrepresentation, Frustration
Source Language
EN
Contract Property Equity Civil Procedure Specific Performance Sub Sale Vs Name Change (novation) Parol Evidence Conveyancing and Property Ordinance S.3 (statute of Frauds) +3 more

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Parties

CHU KIT YUK

1st Plaintiff (original Action); 2nd Defendant (counterclaim)

CHU KIT HA

2nd Plaintiff (original Action); 3rd Defendant (counterclaim)

COUNTRY WIDE INDUSTRIAL LTD

1st Defendant (original Action); 1st Defendant (counterclaim)

TAM HO YIN

2nd Defendant (original Action); 1st Plaintiff (counterclaim)

TSUI YIM CHU

3rd Defendant (original Action); 2nd Plaintiff (counterclaim)

Procedural Posture

Contract for Sale of Land; Equity (specific Performance) / Judgment on Liability and Discretionary Remedies (damages to Be Assessed)

Legal Issues

  1. 1 Whether concluded binding contracts existed between plaintiffs and Country Wide for the two flats
  2. 2 Whether an oral/agreed fallback to complete by sub-sale (if name-change failed) was admissible despite the printed provisional agreement
  3. 3 Whether the fallback sub-sale term needed to be in writing under s.3 Conveyancing and Property Ordinance

Ratio Decidendi

Court held binding contracts existed for the two flats; the parties intended the name-change method but agreed sub-sale as an alternative if name-change proved unviable; parol evidence was admissible to establish the fallback; s.3 CPO did not bar enforcement because the fallback was not a material term requiring separate writing; Country Wide could not rely on the liquidated-damages escape clause because it failed to elect and pay within a reasonable time; defendants failed to prove misrepresentation or frustration; however specific performance in favour of the original plaintiffs was refused because granting it would be unfair and prejudicial to the subsequent purchasers (Tam and Tsui),...

Court Disposition

Judgment: plaintiffs (Chu sisters) succeed on liability against Country Wide; specific performance to original plaintiffs refused; counterclaiming purchasers (Tam and Tsui) succeed and are granted specific performance of their sub-sale agreements; damages and costs to be assessed; consequential orders made to vacate...

Orders

  • Judgment for the 1st and 2nd Plaintiffs by original action against the 1st Defendant, Country Wide, on liability with damages to be assessed.
  • Judgment for the 1st and 2nd Plaintiffs by counterclaim against the 1st Defendant, Country Wide, with damages to be assessed and in addition orders of specific performance.