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 permitting the purchaser to elect to terminate under clause 10(b) on or before the completion date (28 April 2020) where clause 10(1) is engaged; there is no basis to imply a term making 30 July 2019 the deadline or to imply time to be of the essence as at that date because such an implied term would contradict the express words of clause 10(b) and is unnecessary for business efficacy; the plaintiff's post-30 July conduct did not amount to a clear and unequivocal election, waiver or estoppel precluding termination; plaintiff validly terminated before completion and is entitled to return of deposits and judgment as claimed.

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
DCCJ2372/2021
Procedural Posture
Civil — Contract/property Dispute / Application for Determination of Question of Law (order 14 A), Alternatively Summary Judgment and Striking Out
Outcome
Final judgment entered for plaintiff; defendants' consolidated counterclaim dismissed; alternatively summary judgment entered for plaintiff and counterclaim struck out.
Legal Topics
Contract Interpretation, Implied Terms, Election, Waiver, Estoppel, Summary Judgment, Striking Out, Vendor/purchaser Deposits
Source Language
EN
Contract Law Property Law Civil Procedure Contract Interpretation Implied Terms Election Waiver Estoppel +3 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 — Contract/property Dispute / Application for Determination of Question of Law (order 14 A), Alternatively Summary Judgment and Striking Out

Legal Issues

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

Ratio Decidendi

Clause 10 must be read as permitting the purchaser to elect to terminate under clause 10(b) on or before the completion date (28 April 2020) where clause 10(1) is engaged; there is no basis to imply a term making 30 July 2019 the deadline or to imply time to be of the essence as at that date because such an implied term would contradict the express words of clause 10(b) and is unnecessary for business efficacy; the plaintiff's post-30 July conduct did not amount to a clear and unequivocal election, waiver or estoppel precluding termination; plaintiff validly terminated before completion and is entitled to return of deposits and judgment as claimed.

Court Disposition

Final judgment entered for plaintiff; defendants' consolidated counterclaim dismissed; alternatively summary judgment entered for plaintiff and counterclaim struck out.

Orders

  • Final judgment entered in favour of the plaintiff against the 1st and 2nd defendants and against the 3rd and 4th defendants as per the Consolidated Statement of Claim
  • The Consolidated Counterclaim of the defendants is dismissed