STAREX DEVELOPMENT LTD v. YAU SO CHING as the administrator of the estate of YEUNG LEUNG CHUEN, the deceased AND OTHERS

STAREX DEVELOPMENT LTD v. YAU SO CHING as the administrator of the estate of YEUNG LEUNG CHUEN, the deceased AND OTHERS

Clause 10 must be read as a whole: where clause 10(1) occurs, the purchaser's election to continue or forgo is exercisable on or before the completion date (28 April 2020) as expressly stated in clause 10(b); implying an earlier deadline would contradict the express wording and is unnecessary for business efficacy; plaintiff did not unequivocally elect, waive or become estopped by conduct after 30 July 2019; therefore plaintiff validly terminated under clause 10(b), is entitled to return of deposits and judgment in its favour, and defendants' counterclaims fail.

Citation
[2023] HKDC 96
Parties
Plaintiff: Starex Development Limited; 1st Defendant: Yau So Ching (as administrator of the Estate of Yeung Leung Chuen); 2nd Defendant: Yau Yam Sing (as administrator of the Estate of Yeung Leung Chuen); 3rd Defendant: Yau Yam Sing; 4th Defendant: Yau Yum Cheung
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
13 February 2023
Case Number
DCCJ2374/2021
Procedural Posture
Civil Action (district Court) / Determination Under Order 14 A; Summary Judgment and Striking Out Applications; Final Decision
Outcome
Final judgment entered for plaintiff against 1st to 4th defendants; consolidated counterclaims dismissed; alternatively summary judgment for plaintiff and counterclaims struck out
Legal Topics
Construction of Contract, Implied Terms, Election of Remedies, Waiver, Estoppel, Summary Judgment, Striking Out
Source Language
EN
Contract Property Law Civil Procedure Construction of Contract Implied Terms Election of Remedies Waiver Estoppel +2 more

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Parties

Starex Development Limited

Plaintiff

Yau So Ching (as administrator of the Estate of Yeung Leung Chuen)

1st Defendant

Yau Yam Sing (as administrator of the Estate of Yeung Leung Chuen)

2nd Defendant

Yau Yam Sing

3rd Defendant

Yau Yum Cheung

4th Defendant

Procedural Posture

Civil Action (district Court) / Determination Under Order 14 A; Summary Judgment and Striking Out Applications; Final Decision

Legal Issues

  1. 1 Proper construction of clause 10 of provisional sale and purchase agreements: whether purchaser had to elect to proceed by 30 July 2019 or by completion date 28 April 2020
  2. 2 Whether an implied term making time of the essence/election date 30 July 2019 should be implied
  3. 3 Whether plaintiff's post-30 July conduct constituted election, waiver or estoppel preventing termination under clause 10(b)

Ratio Decidendi

Clause 10 must be read as a whole: where clause 10(1) occurs, the purchaser's election to continue or forgo is exercisable on or before the completion date (28 April 2020) as expressly stated in clause 10(b); implying an earlier deadline would contradict the express wording and is unnecessary for business efficacy; plaintiff did not unequivocally elect, waive or become estopped by conduct after 30 July 2019; therefore plaintiff validly terminated under clause 10(b), is entitled to return of deposits and judgment in its favour, and defendants' counterclaims fail.

Court Disposition

Final judgment entered for plaintiff against 1st to 4th defendants; consolidated counterclaims dismissed; alternatively summary judgment for plaintiff and counterclaims struck out

Orders

  • Final judgment entered in favour of the plaintiff against the 1st and 2nd defendants and against the 3rd and 4th defendants
  • Consolidated Counterclaims of the defendants dismissed