CHU PO CHUEN v. KWONG YIP CO LTD AND ANOTHER

CHU PO CHUEN v. KWONG YIP CO LTD AND ANOTHER

The court declared that there was an error in the 1971 plan and, applying section 39 CPO and section 38A DCO together with authority in Goldsteady and Li Kwan Chuen, held that the plaintiff as successor in title enjoys the benefit of the covenants and that because D1 was dissolved and D2 could not be found after reasonable inquiry the Registrar of the District Court should be nominated to execute the confirmatory assignment to rectify the error.

Citation
CHU PO CHUEN v. KWONG YIP CO LTD AND ANOTHER
Parties
Plaintiff: Chu Po Chuen; Defendant: First Defendant (developer); Defendant: Second Defendant (Administratrix of the estate of Madam Lee Shun Yung)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 July 2015
Case Number
DCMP1062/2015
Procedural Posture
Originating Summons Under Section 38 a District Court Ordinance (miscellaneous Proceedings) / Decision (hearing 3 July 2015; Reasons 21 July 2015)
Outcome
Declaration granted and order made appointing the Registrar of the District Court to execute a confirmatory assignment under section 38A
Legal Topics
Rectification of Title Plan, Confirmatory Assignment, Covenants for Title, Court Nomination Under Section 38 a
Source Language
EN
Property Law Conveyancing Civil Procedure Rectification of Title Plan Confirmatory Assignment Covenants for Title Court Nomination Under Section 38 a

Case Brief

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Parties

Chu Po Chuen

Plaintiff

First Defendant (developer)

Defendant

Second Defendant (Administratrix of the estate of Madam Lee Shun Yung)

Defendant

Procedural Posture

Originating Summons Under Section 38 a District Court Ordinance (miscellaneous Proceedings) / Decision (hearing 3 July 2015; Reasons 21 July 2015)

Legal Issues

  1. 1 Whether there is an error in the 1971 plan annexed to the assignment of the property
  2. 2 Whether the plaintiff, as successor in title, enjoys the benefit of the covenants for title in the 1971 assignment
  3. 3 Whether the court may order a third party (the Registrar of the District Court) to execute a confirmatory assignment under section 38A where the original obligors cannot be found or have been dissolved

Ratio Decidendi

The court declared that there was an error in the 1971 plan and, applying section 39 CPO and section 38A DCO together with authority in Goldsteady and Li Kwan Chuen, held that the plaintiff as successor in title enjoys the benefit of the covenants and that because D1 was dissolved and D2 could not be found after reasonable inquiry the Registrar of the District Court should be nominated to execute the confirmatory assignment to rectify the error.

Court Disposition

Declaration granted and order made appointing the Registrar of the District Court to execute a confirmatory assignment under section 38A

Orders

  • Declaration that the 1971 plan annexed to the assignment contains the specified error
  • Order pursuant to the covenants and section 38A District Court Ordinance directing the Registrar of the District Court to execute a confirmatory assignment to rectify the plan error