TIN SHUI WAI DEVELOPMENT LTD v. CHAN HUNG

TIN SHUI WAI DEVELOPMENT LTD v. CHAN HUNG

The defence and counterclaim were struck out because the Defendant failed to plead facts establishing the asserted implied term or any contractual basis to refuse completion; delay in development did not excuse completion where the Agreement provided the vendor's rights; accordingly the Defence had no reasonable...

Source-derived case information.

Citation
TIN SHUI WAI DEVELOPMENT LTD v. CHAN HUNG
Parties
Plaintiff: Tin Shui Wai Development Limited; Defendant: Chan Hung
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
2 April 2008
Case Number
DCCJ645/2004
Procedural Posture
Civil Contract (district Court) / Application to Strike Out; Judgment Entered
Outcome
Defence and counterclaim struck out; judgment entered for Plaintiff for damages to be assessed; costs ordered nisi to be made absolute in 14 days.
Legal Topics
Completion/specific Performance, Rescission, Implied Terms, Strike Out (order 18 R.19), Costs
Source Language
en
Contract Property Civil Procedure Completion/specific Performance Rescission Implied Terms Strike Out (order 18 R.19) Costs

Source-derived case record

Summary, issues, holding and outcome

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Parties

Tin Shui Wai Development Limited

Plaintiff

Chan Hung

Defendant

Procedural Posture

Civil Contract (district Court) / Application to Strike Out; Judgment Entered

Legal Issues

  1. 1 Whether the Defence and Counterclaim disclosed an arguable defence based on an alleged implied term to answer requisitions under Clause 4(1)(c)
  2. 2 Whether delay in completing the Development entitled the Defendant to refuse completion
  3. 3 Whether the Plaintiff validly exercised its contractual rights to determine the Agreement and claim remedies

Ratio Decidendi

The defence and counterclaim were struck out because the Defendant failed to plead facts establishing the asserted implied term or any contractual basis to refuse completion; delay in development did not excuse completion where the Agreement provided the vendor's rights; accordingly the Defence had no reasonable prospect 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 nisi to be made absolute in 14 days.

Orders

  • Defence and counterclaim struck out
  • Judgment for Plaintiff for damages to be assessed