CHU KWUN LIT AND ANOTHER v. SZE SIU CHING

CHU KWUN LIT AND ANOTHER v. SZE SIU CHING

The omission of the operative clause in the Assignment was a common mistake by the parties' solicitors and, on the established equitable test, the Assignment must be rectified by declaration to include the operative clause; the court will not compel the innocent defendant to execute a confirmatory deed and s.38A is not engaged absent a prior order against the defendant.

Citation
[2022] HKDC 892
Parties
1st Plaintiff: CHU KWUN LIT; 2nd Plaintiff: CHU KWOK KAY; Defendant: SZE SIU CHING
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 August 2022
Case Number
DCMP436/2022
Procedural Posture
Rectification of Assignment (property) / Judgment
Outcome
Declaration granted that the Assignment be rectified to include the operative clause; no order to compel the defendant to execute a confirmatory assignment; s.38A not engaged; no order as to costs.
Legal Topics
Rectification of Instrument, Declaration, S.38 a District Court Ordinance, Injunctive Relief
Source Language
EN
Property Law Equity Civil Procedure Rectification of Instrument Declaration S.38 a District Court Ordinance Injunctive Relief

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Parties

CHU KWUN LIT

1st Plaintiff

CHU KWOK KAY

2nd Plaintiff

SZE SIU CHING

Defendant

Procedural Posture

Rectification of Assignment (property) / Judgment

Legal Issues

  1. 1 Whether the omission in the Assignment was a common mistake entitling rectification
  2. 2 Whether the court should order a mandatory injunction or order under s.38A to compel execution of a confirmatory deed
  3. 3 Whether the District Court has jurisdiction under s.36 of the District Court Ordinance

Ratio Decidendi

The omission of the operative clause in the Assignment was a common mistake by the parties' solicitors and, on the established equitable test, the Assignment must be rectified by declaration to include the operative clause; the court will not compel the innocent defendant to execute a confirmatory deed and s.38A is not engaged absent a prior order against the defendant.

Court Disposition

Declaration granted that the Assignment be rectified to include the operative clause; no order to compel the defendant to execute a confirmatory assignment; s.38A not engaged; no order as to costs.

Orders

  • Declaration that the Assignment dated 30 November 2005 ought to be rectified and read and construed as if it contained and had at the time of its execution contained the operative clause: "In consideration of the sum of DOLLARS EIGHT HUNDRED ($800,000) Hong Kong Currency paid by the Purchaser to the Vendor (receipt...
  • No order under Section 38A District Court Ordinance.