AU WAI MING AND ANOTHER v. KAM TZE MING ALFRED AND ANOTHER

AU WAI MING AND ANOTHER v. KAM TZE MING ALFRED AND ANOTHER

The Court held the Deed of Release was invalid in respect of the attorney execution because AIG clearly intended two separate executions (once as attorney for HKMC and once as servicer) and the company common seal was affixed only to the servicer execution; accordingly the attorney execution lacked the required seal under s.20 CPO and the mortgagee's legal estate was not effectively released. The defect was a title defect entitling the Purchasers to refuse to complete; appeal allowed and liability entered for the Purchasers (quantum remitted).

Citation
AU WAI MING AND ANOTHER v. KAM TZE MING ALFRED AND ANOTHER
Parties
Appellants / Plaintiffs: Purchasers; Respondents / Defendants: Vendors; Servicer / Executing Company: AIG Finance (HK) Limited; Mortgagee: The Hong Kong Mortgage Corporation Limited
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
25 June 2009
Case Number
CACV278/2008
Procedural Posture
Civil Appeal (conveyancing/completion Dispute) / Court of Appeal Judgment (25 June 2009)
Outcome
Appeal allowed; judgment below set aside; judgment entered for Purchasers on liability; quantum remitted to a master; costs awarded to Purchasers
Legal Topics
Execution of Deeds, Common Seal, Requisition on Title Vs Conveyance, Completion and Repudiatory Breach, Attorney Execution
Source Language
EN
Conveyancing Property Contract Company Law Powers of Attorney Execution of Deeds Common Seal Requisition on Title Vs Conveyance +2 more

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Parties

Purchasers

Appellants / Plaintiffs

Vendors

Respondents / Defendants

AIG Finance (HK) Limited

Servicer / Executing Company

The Hong Kong Mortgage Corporation Limited

Mortgagee

Procedural Posture

Civil Appeal (conveyancing/completion Dispute) / Court of Appeal Judgment (25 June 2009)

Legal Issues

  1. 1 Were the Purchasers entitled to insist on re-execution of the Deed of Release?
  2. 2 Was the defect in execution a matter of title or merely a matter of conveyance?
  3. 3 If a matter of conveyance, were the Purchasers entitled to refuse to complete?

Ratio Decidendi

The Court held the Deed of Release was invalid in respect of the attorney execution because AIG clearly intended two separate executions (once as attorney for HKMC and once as servicer) and the company common seal was affixed only to the servicer execution; accordingly the attorney execution lacked the required seal under s.20 CPO and the mortgagee's legal estate was not effectively released. The defect was a title defect entitling the Purchasers to refuse to complete; appeal allowed and liability entered for the Purchasers (quantum remitted).

Court Disposition

Appeal allowed; judgment below set aside; judgment entered for Purchasers on liability; quantum remitted to a master; costs awarded to Purchasers

Orders

  • Appeal allowed
  • Judgment of Deputy High Court Judge Gill set aside