IAN HAYDN REED v. CHAN SUK FUN the administratrix of the estate of WAN LAI HA, the administratrix of the estate of CHAN SHUK CHING PINKY (Deceased)

IAN HAYDN REED v. CHAN SUK FUN the administratrix of the estate of WAN LAI HA, the administratrix of the estate of CHAN SHUK CHING PINKY (Deceased)

Defendant's application for leave and interim stay dismissed: the Agreement was properly severed by removing references to the 2nd and 3rd properties under the blue‑pencil test; the court lawfully implied a term on consideration based on evidence even if not pleaded and the quantum (HK$500,000) was not contested as to the 1st property; there was no factual basis to award mesne profits or to find the deceased had superior possession of the 2nd property.

Citation
[2019] HKDC 888
Parties
Plaintiff: the plaintiff; Defendant: the defendant; Vendor/deceased: Madam Chan Shuk Ching Pinky
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
4 July 2019
Case Number
DCCJ4560/2007
Procedural Posture
Civil Contract / Property (specific Performance) / Application for Leave to Appeal and Interim Stay of Execution
Outcome
Defendant's application for leave to appeal and interim stay dismissed
Legal Topics
Specific Performance, Severance of Contracts, Implied Terms, Mesne Profits, Leave to Appeal, Stay of Execution
Source Language
EN
Contract Law Property Law Equity Civil Procedure Specific Performance Severance of Contracts Implied Terms Mesne Profits +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

the plaintiff

Plaintiff

the defendant

Defendant

Madam Chan Shuk Ching Pinky

Vendor/deceased

Procedural Posture

Civil Contract / Property (specific Performance) / Application for Leave to Appeal and Interim Stay of Execution

Legal Issues

  1. 1 Whether an agreement that bundles three properties for one lump sum is severable where two properties are untransferable/licensed
  2. 2 Whether the court could find an implied term not pleaded and apply it to only part of the contract
  3. 3 Whether defendant was entitled to mesne profits and vacant possession of the 2nd property if severance and implied term were upheld

Ratio Decidendi

Defendant's application for leave and interim stay dismissed: the Agreement was properly severed by removing references to the 2nd and 3rd properties under the blue‑pencil test; the court lawfully implied a term on consideration based on evidence even if not pleaded and the quantum (HK$500,000) was not contested as to the 1st property; there was no factual basis to award mesne profits or to find the deceased had superior possession of the 2nd property.

Court Disposition

Defendant's application for leave to appeal and interim stay dismissed

Orders

  • Application for leave to appeal and stay of execution dismissed
  • Costs to plaintiff to be taxed if not agreed