CHIU WAI SHING v. LAU CHI WAI AND ANOTHER

CHIU WAI SHING v. LAU CHI WAI AND ANOTHER

The court found as a fact the defendants never intended to sell and the document was a sham; the arrangement amounted to temporary security for a loan and, therefore, any purported mortgage/charge or agreement to mortgage of a Housing Authority flat was void under s17B; no consideration passed to the defendants and...

Source-derived case information.

Citation
CHIU WAI SHING v. LAU CHI WAI AND ANOTHER
Parties
Plaintiff: Chiu Wai Shing; 1st Defendant: Lau Chi Wai; 2nd Defendant: Yip Wai Lai
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 November 2006
Case Number
HCA3013/2002
Procedural Posture
Civil Action Specific Performance of Sale and Purchase Agreement (property) / Judgment (court of First Instance)
Outcome
Plaintiff's claim dismissed.
Legal Topics
Specific Performance, Sale and Purchase Agreement, Sham Transaction, Void Alienations Under Housing Ordinance S17 B, Undue Influence, Misrepresentation, Agency for Misrepresentation, Consideration/novation
Source Language
en
Property Law Contract Law Equity Housing Law Specific Performance Sale and Purchase Agreement Sham Transaction Void Alienations Under Housing Ordinance S17 B +4 more

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Parties

Chiu Wai Shing

Plaintiff

Lau Chi Wai

1st Defendant

Yip Wai Lai

2nd Defendant

Procedural Posture

Civil Action Specific Performance of Sale and Purchase Agreement (property) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the sale and purchase agreement was a genuine transaction or a sham
  2. 2 Whether the arrangement constituted a mortgage/charge or agreement to mortgage in contravention of s17B of the Housing Ordinance (Cap.283)
  3. 3 Whether any consideration passed to the defendants

Ratio Decidendi

The court found as a fact the defendants never intended to sell and the document was a sham; the arrangement amounted to temporary security for a loan and, therefore, any purported mortgage/charge or agreement to mortgage of a Housing Authority flat was void under s17B; no consideration passed to the defendants and no enforceable novation existed; accordingly specific performance was refused and the plaintiff's claim dismissed.

Court Disposition

Plaintiff's claim dismissed.

Orders

  • Plaintiff's claim against the defendants is dismissed.
  • Order nisi that costs follow the event and are to be paid by the plaintiff to the defendants, taxed if not agreed.