YAU SIMON SHIK MAN AND OTHERS v. YAU SHIK YIN AND ANOTHER

YAU SIMON SHIK MAN AND OTHERS v. YAU SHIK YIN AND ANOTHER

The court found on objective appraisal of contemporaneous correspondence and admissions that the valuation method in Clause 2.II.3(f) had been waived and the parties had agreed purchase prices; P1 and P2 validly exercised the Option; accordingly the 1st defendant's application for specific performance to auction the Parc Palais and Skylodge properties was refused and dismissed and the court would not order the auction remedy sought.

Citation
[2018] HKCFI 1733
Parties
1st Plaintiff: YAU SIMON SHIK MAN; 2nd Plaintiff: YAU LAI MING; 3rd Plaintiff: CHU YUET KING; 4th Plaintiff: YAU YAT MIN; 1st Defendant: YAU SHIK YIN; 2nd Defendant: CHEUNG SIU LING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 July 2018
Case Number
HCA330/2013
Procedural Posture
Civil Enforcement of Settlement (tomlin Order) / Chambers Hearing on Summons to Enforce Settlement (application for Specific Performance)
Outcome
Application for specific performance to auction Parc Palais and Skylodge refused and dismissed; costs ordered nisi in favour of P1 and P2 against D1.
Legal Topics
Specific Performance, Enforcement of Tomlin Order, Option to Purchase, Waiver, Contract Interpretation
Source Language
EN
Contract Equity Civil Procedure Property Specific Performance Enforcement of Tomlin Order Option to Purchase Waiver +1 more

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Parties

YAU SIMON SHIK MAN

1st Plaintiff

YAU LAI MING

2nd Plaintiff

CHU YUET KING

3rd Plaintiff

YAU YAT MIN

4th Plaintiff

YAU SHIK YIN

1st Defendant

CHEUNG SIU LING

2nd Defendant

Procedural Posture

Civil Enforcement of Settlement (tomlin Order) / Chambers Hearing on Summons to Enforce Settlement (application for Specific Performance)

Legal Issues

  1. 1 Whether the option in Clause 2.II.3(g) was validly exercised by P1 and P2
  2. 2 Whether strict compliance with the valuation method in Clause 2.II.3(f) was required or waived
  3. 3 Whether the court should order specific performance/auction under Clause 2.II.3(d) and delivery of vacant possession under Clause 2.II.3(c)

Ratio Decidendi

The court found on objective appraisal of contemporaneous correspondence and admissions that the valuation method in Clause 2.II.3(f) had been waived and the parties had agreed purchase prices; P1 and P2 validly exercised the Option; accordingly the 1st defendant's application for specific performance to auction the Parc Palais and Skylodge properties was refused and dismissed and the court would not order the auction remedy sought.

Court Disposition

Application for specific performance to auction Parc Palais and Skylodge refused and dismissed; costs ordered nisi in favour of P1 and P2 against D1.

Orders

  • Dismissed the summons insofar as it sought a decree of specific performance to auction Parc Palais and Skylodge and for delivery of vacant possession under Clauses 2.II.3(d) and 2.II.3(c).
  • Order nisi: costs of and incidental to this application, including the adjourned hearing of 18 January 2018, to be paid by the 1st defendant to the 1st and 2nd plaintiffs, to be taxed if not agreed.