TONY INVESTMENTS LTD v. FUNG SUN KWAN BERNARD

TONY INVESTMENTS LTD v. FUNG SUN KWAN BERNARD

The Vendor had no title to the Former Slipway because rights were extinguished by s10(1)(a) FSRO; the Vendor failed to show good title by reasonable answers to requisitions; the common mistake defence failed because performance was not impossible and Vendor had a contractual right to a re-grant; accordingly specific performance was ordered requiring Vendor to apply for and obtain re-grant at nominal premium and to perform the Memorandum of Agreement, with an inquiry as to damages and costs against the Vendor.

Citation
TONY INVESTMENTS LTD v. FUNG SUN KWAN BERNARD
Parties
Plaintiff: Purchaser; Defendant: Vendor
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 January 2006
Case Number
HCMP180/2005
Procedural Posture
Vendor and Purchaser Summons (specific Performance) / Decision (court of First Instance)
Outcome
Declaration and specific performance granted against Defendant; costs ordered nisi in favour of Plaintiff with certificate for two counsel; inquiry as to damages; liberty to apply.
Legal Topics
Specific Performance, Vendor's Duty to Show and Give Good Title, Common Mistake, Extinguishment of Title Under Reclamation Statute, Statutory Compensation and Re Grant, Title Defects and Requisitions
Source Language
EN
Property Law Contract Law Equity and Trusts Administrative Law Conveyancing Specific Performance Vendor's Duty to Show and Give Good Title Common Mistake +3 more

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Parties

Purchaser

Plaintiff

Vendor

Defendant

Procedural Posture

Vendor and Purchaser Summons (specific Performance) / Decision (court of First Instance)

Legal Issues

  1. 1 Whether the Vendor had title to the Former Slipway
  2. 2 Whether the Vendor showed good title and answered reasonable requisitions
  3. 3 Whether the contract was void for common mistake

Ratio Decidendi

The Vendor had no title to the Former Slipway because rights were extinguished by s10(1)(a) FSRO; the Vendor failed to show good title by reasonable answers to requisitions; the common mistake defence failed because performance was not impossible and Vendor had a contractual right to a re-grant; accordingly specific performance was ordered requiring Vendor to apply for and obtain re-grant at nominal premium and to perform the Memorandum of Agreement, with an inquiry as to damages and costs against the Vendor.

Court Disposition

Declaration and specific performance granted against Defendant; costs ordered nisi in favour of Plaintiff with certificate for two counsel; inquiry as to damages; liberty to apply.

Orders

  • Declaration that the Former Slipway formed part of the Property under the Memorandum of Agreement
  • Order that the Defendant perform the Memorandum of Agreement and take all necessary steps to obtain a re-grant at nominal premium of the Former Slipway from the Government