SMART MAX ENTERPRISE LTD v. SPEEDY WAY LTD

SMART MAX ENTERPRISE LTD v. SPEEDY WAY LTD

The vendor failed to prove due execution of the assignment and thereby failed to show good title before completion; the plaintiff's 7 February letter expressly reserved the requisitions while extending time to answer, which at most waived the right to terminate for prior delay but did not waive the requisitions themselves; mere prior silence did not constitute waiver; therefore plaintiff validly rescinded, is entitled to return of deposits and agreed damages and has a lien on the property; defendant's forfeiture and counterclaim fail.

Citation
SMART MAX ENTERPRISE LTD v. SPEEDY WAY LTD
Parties
Purchaser: Plaintiff; Vendor: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 December 2010
Case Number
HCA665/2007
Procedural Posture
Conveyancing Dispute / Judgment
Outcome
Judgment for the plaintiff
Legal Topics
Requisition on Title, Waiver, Estoppel, Time of the Essence, Anticipatory Breach, Forfeiture of Deposits, Purchaser's Lien
Source Language
EN
Property Law Contract Law Conveyancing Requisition on Title Waiver Estoppel Time of the Essence Anticipatory Breach +2 more

Case Brief

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Parties

Plaintiff

Purchaser

Defendant

Vendor

Procedural Posture

Conveyancing Dispute / Judgment

Legal Issues

  1. 1 Whether the vendor answered the 4th requisition satisfactorily to prove due execution and show good title
  2. 2 Whether the purchaser waived the right to rely on unanswered requisitions by conduct or by sending draft assignment
  3. 3 Whether the deposits were lawfully forfeited by the vendor

Ratio Decidendi

The vendor failed to prove due execution of the assignment and thereby failed to show good title before completion; the plaintiff's 7 February letter expressly reserved the requisitions while extending time to answer, which at most waived the right to terminate for prior delay but did not waive the requisitions themselves; mere prior silence did not constitute waiver; therefore plaintiff validly rescinded, is entitled to return of deposits and agreed damages and has a lien on the property; defendant's forfeiture and counterclaim fail.

Court Disposition

Judgment for the plaintiff

Orders

  • Return of deposits to plaintiff in the total sum of HK$948,000
  • Payment to plaintiff of agreed damages HK$4,505