LINK HARVEST LTD. AND ANOTHER v. WAYHANG DEVELOPMENT LTD.

LINK HARVEST LTD. AND ANOTHER v. WAYHANG DEVELOPMENT LTD.

Court held vendor established good title to the 1st Property: historical assignments, long lapse of time and Government conduct gave rise to realistic inference of compliance or waiver of building covenant and alienation restriction so risk of forfeiture was fanciful; vendor failed to discharge burden for the 2nd Property because absence of occupation permit and unresolved potential Building Authority enforcement created a real risk to title; because completion obligations were interdependent purchasers were justified to refuse completion of both agreements and were entitled to refund of deposits and recovery of specified legal costs, with declarations and interest and costs nisi granted.

Citation
LINK HARVEST LTD. AND ANOTHER v. WAYHANG DEVELOPMENT LTD.
Parties
1st Plaintiff: Link Harvest Limited; 2nd Plaintiff: Goldease International Limited; Defendant: Wayhang Development Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 May 2001
Case Number
HCA13971/1997
Procedural Posture
Civil Action Sale and Purchase of Land; Dispute Over Title and Specific Performance / Judgment (court of First Instance)
Outcome
Partial judgment for Plaintiffs: 1st Property title good; 2nd Property title defective; purchasers entitled to rescind/refund deposits and recover specified legal costs; declaration granted and interest and costs ordered nisi
Legal Topics
Title Defects, Requisitions on Title, Forfeiture of Government Lease, Building Covenant Compliance, Building Ordinance Enforcement, Waiver and Acquiescence, Substantial Performance, Specific Performance
Source Language
EN
Property Law Contract Law Conveyancing Administrative Law Equity Title Defects Requisitions on Title Forfeiture of Government Lease +5 more

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Parties

Link Harvest Limited

1st Plaintiff

Goldease International Limited

2nd Plaintiff

Wayhang Development Limited

Defendant

Procedural Posture

Civil Action Sale and Purchase of Land; Dispute Over Title and Specific Performance / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the vendor properly answered requisitions as to title for each agreement
  2. 2 Whether there was a real risk of forfeiture by the Government in respect of the 1st Property
  3. 3 Whether there was a real risk of enforcement action by the Building Authority in respect of the 2nd Property

Ratio Decidendi

Court held vendor established good title to the 1st Property: historical assignments, long lapse of time and Government conduct gave rise to realistic inference of compliance or waiver of building covenant and alienation restriction so risk of forfeiture was fanciful; vendor failed to discharge burden for the 2nd Property because absence of occupation permit and unresolved potential Building Authority enforcement created a real risk to title; because completion obligations were interdependent purchasers were justified to refuse completion of both agreements and were entitled to refund of deposits and recovery of specified legal costs, with declarations and interest and costs nisi granted.

Court Disposition

Partial judgment for Plaintiffs: 1st Property title good; 2nd Property title defective; purchasers entitled to rescind/refund deposits and recover specified legal costs; declaration granted and interest and costs ordered nisi

Orders

  • Refund to each Plaintiff of the deposit/part payment paid under its respective agreement
  • Declaration in terms of paragraph (2) of the Amended Statement of Claim in favour of both Plaintiffs