DIAMOND PLAN DEVELOPMENT LTD v. KWOK KUEN KWAN and HAR SIO YING (Third Party)

DIAMOND PLAN DEVELOPMENT LTD v. KWOK KUEN KWAN and HAR SIO YING (Third Party)

Given the defendant proved on the balance of probabilities the payments and losses arising from failed completion, had taken reasonable steps to obtain administration of the vendor's estate and the absence of a representative would cause no substantial prejudice, the court exercised its discretion under Order 15 r 15 RHC to proceed against 'The estate of Har Sio Ying, deceased' and awarded reimbursement of $158,250, damages of $14,705 and interest at 10% per annum for the period to judgment, to be paid out of the sum paid into Court.

Citation
DIAMOND PLAN DEVELOPMENT LTD v. KWOK KUEN KWAN and HAR SIO YING (Third Party)
Parties
Plaintiff: Diamond Plan Development Limited; Defendant (third Party Claimant): Kwok Kuen Kwan; Third Party: The estate of Har Sio Ying, deceased
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 February 1999
Case Number
HCA5478/1989
Procedural Posture
Civil Action With Third Party Proceedings / Trial and Judgment (final Decision)
Outcome
Judgment for the defendant (third party claimant) against the estate of Har Sio Ying, deceased for reimbursement, damages and interest; payment directed out of funds paid into Court.
Legal Topics
Rescission, Reimbursement of Deposits, Grant of Probate/letters of Administration, Power of Sale by Mortgagee, Interest on Judgment, Costs, Proceeding in Absence of Personal Representative
Source Language
EN
Contract Property Probate Civil Procedure Equity Rescission Reimbursement of Deposits Grant of Probate/letters of Administration +4 more

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Parties

Diamond Plan Development Limited

Plaintiff

Kwok Kuen Kwan

Defendant (third Party Claimant)

The estate of Har Sio Ying, deceased

Third Party

Procedural Posture

Civil Action With Third Party Proceedings / Trial and Judgment (final Decision)

Legal Issues

  1. 1 Whether defendant is entitled to reimbursement and damages from the deceased vendor's estate for sums paid under the sale agreements
  2. 2 Whether the court may proceed against the estate in the absence of an appointed personal representative or administrator
  3. 3 Proper measure and rate of interest to award for the period from failed completion to judgment

Ratio Decidendi

Given the defendant proved on the balance of probabilities the payments and losses arising from failed completion, had taken reasonable steps to obtain administration of the vendor's estate and the absence of a representative would cause no substantial prejudice, the court exercised its discretion under Order 15 r 15 RHC to proceed against 'The estate of Har Sio Ying, deceased' and awarded reimbursement of $158,250, damages of $14,705 and interest at 10% per annum for the period to judgment, to be paid out of the sum paid into Court.

Court Disposition

Judgment for the defendant (third party claimant) against the estate of Har Sio Ying, deceased for reimbursement, damages and interest; payment directed out of funds paid into Court.

Orders

  • Judgment for reimbursement of moneys paid to the deceased totaling 158250 HKD
  • Judgment for damages totaling 14705 HKD