EARNEST ENTERPRISES LTD v. YIP FUNG

EARNEST ENTERPRISES LTD v. YIP FUNG

The defendant had not validly exercised clause 7 because he failed to refund both deposits and pay compensation equivalent to the total deposits before completion and the purported reliance on clause 7 was too late; accordingly the plaintiff was entitled to judgment for specific performance and damages to be assessed.

Citation
EARNEST ENTERPRISES LTD v. YIP FUNG
Parties
Plaintiff (purchaser): Earnest Enterprises Limited; Defendant (vendor): Yip Fung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 July 2012
Case Number
HCMP2207/2011
Procedural Posture
Civil Specific Performance (sale and Purchase) / Judgment (court of First Instance)
Outcome
Judgment for the plaintiff
Legal Topics
Specific Performance, Deposit, Sale and Purchase Agreement, Encumbrances, Costs
Source Language
EN
Contract Property Civil Remedies Specific Performance Deposit Sale and Purchase Agreement Encumbrances Costs

Case Brief

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Parties

Earnest Enterprises Limited

Plaintiff (purchaser)

Yip Fung

Defendant (vendor)

Procedural Posture

Civil Specific Performance (sale and Purchase) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the vendor could validly rely on clause 7 of the provisional agreement to avoid specific performance
  2. 2 Whether clause 7 required refund of all deposits and payment of compensation equivalent to those deposits before the vendor could resile
  3. 3 Whether the plaintiff was entitled to specific performance and damages

Ratio Decidendi

The defendant had not validly exercised clause 7 because he failed to refund both deposits and pay compensation equivalent to the total deposits before completion and the purported reliance on clause 7 was too late; accordingly the plaintiff was entitled to judgment for specific performance and damages to be assessed.

Court Disposition

Judgment for the plaintiff

Orders

  • Order for specific performance of the provisional agreement
  • Damages to the plaintiff to be assessed by a master in addition to specific performance