CHUANG YUE CHIEN, EUGENE v. PARK HOTEL PROPERTY MANAGEMENT LTD AND OTHERS

CHUANG YUE CHIEN, EUGENE v. PARK HOTEL PROPERTY MANAGEMENT LTD AND OTHERS

The court struck out paragraph 2.3(2) and prayers 2, 3 and 4 because the plaintiff could not, as a matter of law, claim rescission ab initio or re-vesting of the share and loan based on an accepted repudiatory breach; an implied term to that effect would fail the business efficacy test. However the remainder of the claim for the balance was not plainly and obviously untenable and the action was not dismissed in full.

Citation
CHUANG YUE CHIEN, EUGENE v. PARK HOTEL PROPERTY MANAGEMENT LTD AND OTHERS
Parties
Plaintiff: CHUANG YUE CHIEN, EUGENE; 1st Defendant: PARK HOTEL PROPERTY MANAGEMENT LIMITED; 2nd Defendant: 2nd Defendant; 3rd Defendant: 3rd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 July 2008
Case Number
HCA2363/2007
Procedural Posture
Contract (sale of Property) / Strike Out Application (order 18 R.19)
Outcome
Paragraph 2.3(2) and prayers 2, 3 and 4 struck out; remainder of claim allowed to proceed; action not dismissed in full
Legal Topics
Rescission, Specific Performance, Strike Out, Net Assets Calculation, Completion Statement, Time of Essence, Repudiatory Breach, Implied Terms
Source Language
EN
Contract Law Property Law Civil Procedure Rescission Specific Performance Strike Out Net Assets Calculation Completion Statement +3 more

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Parties

CHUANG YUE CHIEN, EUGENE

Plaintiff

PARK HOTEL PROPERTY MANAGEMENT LIMITED

1st Defendant

2nd Defendant

2nd Defendant

3rd Defendant

3rd Defendant

Procedural Posture

Contract (sale of Property) / Strike Out Application (order 18 R.19)

Legal Issues

  1. 1 Whether failure to pay the balance entitled plaintiff to rescind the agreement ab initio
  2. 2 Whether paragraph 2.3(2) (implied term/time to be of the essence and right to rescind) is sustainable
  3. 3 Whether the claim should be struck out as plainly unsustainable under Order 18 r.19

Ratio Decidendi

The court struck out paragraph 2.3(2) and prayers 2, 3 and 4 because the plaintiff could not, as a matter of law, claim rescission ab initio or re-vesting of the share and loan based on an accepted repudiatory breach; an implied term to that effect would fail the business efficacy test. However the remainder of the claim for the balance was not plainly and obviously untenable and the action was not dismissed in full.

Court Disposition

Paragraph 2.3(2) and prayers 2, 3 and 4 struck out; remainder of claim allowed to proceed; action not dismissed in full

Orders

  • Strike out paragraph 2.3(2) of the Statement of Claim
  • Strike out prayers 2, 3 and 4 of the Statement of Claim