GLORY DESIRE LTD AND ANOTHER v. WING YIP TOURING BUS CO. LTD AND ANOTHER

GLORY DESIRE LTD AND ANOTHER v. WING YIP TOURING BUS CO. LTD AND ANOTHER

The 3rd contract contained a clerical omission inconsistent with the parties' common intention and must be rectified to include the PSL; D1 breached the contract (including the implied obligation to provide a correctly signed letter of surrender of the PSL), preventing P2 from obtaining the PSL; P2 was entitled to damages in lieu of specific performance (calculated from expert evidence) and restitution of payments which were penal or paid by mistake; P1's and claims against D2 failed.

Citation
GLORY DESIRE LTD AND ANOTHER v. WING YIP TOURING BUS CO. LTD AND ANOTHER
Parties
1st Plaintiff: Glory Desire Limited; 2nd Plaintiff: Shun King Tourist Car Company Limited; 1st Defendant: Wing Yip Touring Bus Co. Limited; 2nd Defendant: Champ Long Consultants and Management Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 March 2016
Case Number
HCA1966/2012
Procedural Posture
Civil Contract / Property (rectification, Damages, Restitution) / Judgment (trial)
Outcome
Judgment for 2nd Plaintiff (P2) against 1st Defendant (D1); rectification granted; damages and restitution awarded; P1's claims dismissed; claims against D2 dismissed; costs orders nisi made.
Legal Topics
Rectification, Specific Performance, Damages in Lieu, Restitution (money Paid by Mistake), Passenger Service Licence, Transfer/surrender of Licence, Implied Terms, Penalty Clause
Source Language
EN
Contract Property Equity Company Administrative/regulatory (transport) Rectification Specific Performance Damages in Lieu +5 more

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Parties

Glory Desire Limited

1st Plaintiff

Shun King Tourist Car Company Limited

2nd Plaintiff

Wing Yip Touring Bus Co. Limited

1st Defendant

Champ Long Consultants and Management Limited

2nd Defendant

Procedural Posture

Civil Contract / Property (rectification, Damages, Restitution) / Judgment (trial)

Legal Issues

  1. 1 Whether the 3rd contract should be rectified to include the Passenger Service Licence
  2. 2 Whether D1 breached an implied term to provide a properly signed letter of surrender of the PSL
  3. 3 Whether P2 is entitled to damages in lieu of specific performance and restitution for monies paid by mistake

Ratio Decidendi

The 3rd contract contained a clerical omission inconsistent with the parties' common intention and must be rectified to include the PSL; D1 breached the contract (including the implied obligation to provide a correctly signed letter of surrender of the PSL), preventing P2 from obtaining the PSL; P2 was entitled to damages in lieu of specific performance (calculated from expert evidence) and restitution of payments which were penal or paid by mistake; P1's and claims against D2 failed.

Court Disposition

Judgment for 2nd Plaintiff (P2) against 1st Defendant (D1); rectification granted; damages and restitution awarded; P1's claims dismissed; claims against D2 dismissed; costs orders nisi made.

Orders

  • Rectify the 3rd contract by inserting the words "together with Passenger Service License" after "one public bus" in clause 1 of the 3rd contract
  • Pay P2 damages in the sum of HKD 3,937,800