CHU YIN FAN v. INTER RIVERS LTD

CHU YIN FAN v. INTER RIVERS LTD

On the affidavit material the court concluded that it was arguable there was no real risk that the missing original Assignment would give rise to a successful prior encumbrance; under De Monsa missing documents alone do not entitle a purchaser to refuse completion absent real risk; the defendant raised triable...

Source-derived case information.

Citation
CHU YIN FAN v. INTER RIVERS LTD
Parties
Plaintiff: CHU YIN FAN; Defendant: INTER RIVERS LIMITED
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 August 2016
Case Number
DCCJ4314/2012
Procedural Posture
Civil Conveyancing (district Court) / Summary Judgment Application Under Order 86 R 1
Outcome
Summons for summary judgment dismissed; defendant granted unconditional leave to defend
Legal Topics
Rescission, Missing Title Deeds, Statutory Requisitions, Mortgage Refusal, Summary Judgment, Best Endeavours, Priority of Registered Interests
Source Language
en
Conveyancing Property Law Contract Equity Civil Procedure Rescission Missing Title Deeds Statutory Requisitions +4 more

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Summary, issues, holding and outcome

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Parties

CHU YIN FAN

Plaintiff

INTER RIVERS LIMITED

Defendant

Procedural Posture

Civil Conveyancing (district Court) / Summary Judgment Application Under Order 86 R 1

Legal Issues

  1. 1 Whether the vendor failed to show, prove and give title under sections 13 and 13A CPO
  2. 2 Whether missing original Assignment gave rise to a real risk of an encumbrance affecting title
  3. 3 Whether purchaser validly rescinded under contractual Clause 1 following bank mortgage refusal

Ratio Decidendi

On the affidavit material the court concluded that it was arguable there was no real risk that the missing original Assignment would give rise to a successful prior encumbrance; under De Monsa missing documents alone do not entitle a purchaser to refuse completion absent real risk; the defendant raised triable factual issues (including best endeavours to obtain finance and causation of bank refusal) and therefore had an arguable defence — summary judgment was inappropriate and defendant was given unconditional leave to defend.

Court Disposition

Summons for summary judgment dismissed; defendant granted unconditional leave to defend

Orders

  • Defendant given unconditional leave to defend the action
  • Order nisi that costs of the Summons be paid by the plaintiff to the defendant with certificate for counsel, such costs to be taxed if not agreed