MANY GAIN INVESTMENT LTD v. CHAN FAI HO

MANY GAIN INVESTMENT LTD v. CHAN FAI HO

Time of completion was not of the essence at the inception of the Agreement; WC's letter of 15 June 2011 did not make time of the essence, and even if it had, five days was not a reasonable time (court found seven days would be the minimum); Defendant treated the Agreement as rescinded and thereby was in repudiatory breach; Plaintiff entitled to specific performance; Defendant's memorandum of rescission is void and registration must be vacated; Defendant's counterclaim dismissed; costs to Plaintiff.

Citation
MANY GAIN INVESTMENT LTD v. CHAN FAI HO
Parties
Plaintiff (property Developer): Plaintiff; Defendant (vendor): Defendant; Third Party Purchaser: Sunny Palace Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 August 2015
Case Number
HCA1448/2011
Procedural Posture
Breach of Agreement for Sale and Purchase of Property; Claim for Specific Performance / Judgment (reasons for Judgment Delivered)
Outcome
Judgment for Plaintiff: specific performance granted; Defendant in repudiatory breach; Defendant's purported rescission void; Defendant's counterclaim dismissed; costs awarded to Plaintiff
Legal Topics
Specific Performance, Repudiatory Breach, Time of Essence, Requisition as to Title, Annulment/rescission, Compulsory Sale
Source Language
EN
Contract Property Equity Civil Procedure Specific Performance Repudiatory Breach Time of Essence Requisition as to Title +2 more

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Parties

Plaintiff

Plaintiff (property Developer)

Defendant

Defendant (vendor)

Sunny Palace Limited

Third Party Purchaser

Procedural Posture

Breach of Agreement for Sale and Purchase of Property; Claim for Specific Performance / Judgment (reasons for Judgment Delivered)

Legal Issues

  1. 1 Whether time of completion was of the essence at inception of the agreement
  2. 2 Whether vendor's letter of 15 June 2011 had the effect of making time of the essence
  3. 3 Whether the time allowed in that notice was reasonable

Ratio Decidendi

Time of completion was not of the essence at the inception of the Agreement; WC's letter of 15 June 2011 did not make time of the essence, and even if it had, five days was not a reasonable time (court found seven days would be the minimum); Defendant treated the Agreement as rescinded and thereby was in repudiatory breach; Plaintiff entitled to specific performance; Defendant's memorandum of rescission is void and registration must be vacated; Defendant's counterclaim dismissed; costs to Plaintiff.

Court Disposition

Judgment for Plaintiff: specific performance granted; Defendant in repudiatory breach; Defendant's purported rescission void; Defendant's counterclaim dismissed; costs awarded to Plaintiff

Orders

  • Specific performance of the Agreement granted in favour of the Plaintiff
  • The memorandum of rescission filed by the Defendant is null and void and its registration to be vacated