TIN SHUI WAI DEVELOPMENT LTD v. CHAN SAP AND OTHERS

TIN SHUI WAI DEVELOPMENT LTD v. CHAN SAP AND OTHERS

The Defence and Counterclaim were struck out because the pleaded allegations were bare assertions lacking factual particulars, the defendants failed to rescind pursuant to the contractual clause and were therefore deemed to have elected to wait for completion, and the misrepresentation allegations were unsupported and untimely; accordingly there was no reasonable defence and judgment was entered for the plaintiff for damages to be assessed.

Citation
TIN SHUI WAI DEVELOPMENT LTD v. CHAN SAP AND OTHERS
Parties
Plaintiff: TIN SHUI WAI DEVELOPMENT LIMITED; 1st Defendant: CHAN SAP; 2nd Defendant: CHAN TING CHUNG
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
14 April 2008
Case Number
DCCJ2961/2004
Procedural Posture
Civil Action (contract/property) / Application to Strike Out Defence and Counterclaim; Decision and Judgment Entered
Outcome
Defence and counterclaim struck out; judgment entered for Plaintiff for damages to be assessed; costs ordered to Plaintiff nisi 14 days
Legal Topics
Misrepresentation, Rescission, Contract Termination, Completion of Development, Strike Out Under Procedural Rules, Damages
Source Language
EN
Contract Property Civil Procedure Misrepresentation Rescission Contract Termination Completion of Development Strike Out Under Procedural Rules +1 more

Case Brief

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Parties

TIN SHUI WAI DEVELOPMENT LIMITED

Plaintiff

CHAN SAP

1st Defendant

CHAN TING CHUNG

2nd Defendant

Procedural Posture

Civil Action (contract/property) / Application to Strike Out Defence and Counterclaim; Decision and Judgment Entered

Legal Issues

  1. 1 Whether the Defence and Counterclaim disclosed a reasonable cause of action or defence
  2. 2 Whether an implied term required the vendor to answer requisitions about completion by 31 December 1997
  3. 3 Whether delay in completion or market downturn entitled purchasers to refuse completion

Ratio Decidendi

The Defence and Counterclaim were struck out because the pleaded allegations were bare assertions lacking factual particulars, the defendants failed to rescind pursuant to the contractual clause and were therefore deemed to have elected to wait for completion, and the misrepresentation allegations were unsupported and untimely; accordingly there was no reasonable defence and judgment was entered for the plaintiff for damages to be assessed.

Court Disposition

Defence and counterclaim struck out; judgment entered for Plaintiff for damages to be assessed; costs ordered to Plaintiff nisi 14 days

Orders

  • Defence and counterclaim struck out pursuant to Order 18 r.19
  • Judgment entered for the Plaintiff for damages to be assessed