TO HU SING v. CHEUNG KWAI CHUEN AND OTHERS

TO HU SING v. CHEUNG KWAI CHUEN AND OTHERS

The vendor's attempted reliance on clause 8 was ineffective because he did not tender the payments required by that clause on or before the contractual completion date and could not validly invoke it ten years later; the defendants were not barred by laches because they were in possession as purchasers under the Provisional Agreements/licences and had an equitable estate; accordingly specific performance of the Provisional Agreements was ordered with defendants to complete as soon as practicable and to pay simple interest on the unpaid balance at 4% p.a. from 1 April 2010 until completion.

Citation
[2020] HKCFI 2747
Parties
Plaintiff (vendor): To Hu Sing; 1st Defendant (purchaser): Cheung Kwai Chuen; 2nd Defendant (purchaser): Hung Lai Wai; 3rd Defendant (alleged Agent): To Yat Wah; 4th Defendant (discontinued): Hagon Wai And Partners (a firm)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 October 2020
Case Number
HCA1930/2015
Procedural Posture
Contract (sale of Land) / Judgment (trial)
Outcome
Plaintiff's claim dismissed; judgment for 1st and 2nd defendants on their counterclaim for specific performance of the Provisional Agreements
Legal Topics
Specific Performance, Escape Clause, Laches, Part Performance, Mesne Profits, Interest on Purchase Price, Estoppel
Source Language
EN
Contract Law Property/land Law Equity Civil Procedure Specific Performance Escape Clause Laches Part Performance +3 more

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Parties

To Hu Sing

Plaintiff (vendor)

Cheung Kwai Chuen

1st Defendant (purchaser)

Hung Lai Wai

2nd Defendant (purchaser)

To Yat Wah

3rd Defendant (alleged Agent)

Hagon Wai And Partners (a firm)

4th Defendant (discontinued)

Procedural Posture

Contract (sale of Land) / Judgment (trial)

Legal Issues

  1. 1 Whether the vendors can validly invoke the escape clause (clause 8) to terminate and bar specific performance after many years
  2. 2 Whether the defendants are barred by laches from seeking specific performance
  3. 3 Whether the Formal Agreements (unsigned by vendor) or Provisional Agreements bind the parties and whether part performance applies

Ratio Decidendi

The vendor's attempted reliance on clause 8 was ineffective because he did not tender the payments required by that clause on or before the contractual completion date and could not validly invoke it ten years later; the defendants were not barred by laches because they were in possession as purchasers under the Provisional Agreements/licences and had an equitable estate; accordingly specific performance of the Provisional Agreements was ordered with defendants to complete as soon as practicable and to pay simple interest on the unpaid balance at 4% p.a. from 1 April 2010 until completion.

Court Disposition

Plaintiff's claim dismissed; judgment for 1st and 2nd defendants on their counterclaim for specific performance of the Provisional Agreements

Orders

  • Decree for specific performance of the Provisional Agreements in favour of the 1st and 2nd defendants
  • Completion to take place as soon as practicable; parties to submit an agreed minute of order accordingly