SOUTH SEA TEXTILE MANUFACTURING CO v. WONG CHIT KEE

bjbj HCMP000033/1948 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 33 of 1948 ----------------- BETWEEN South Sea Textile Manufacturing Co. Applicants Wong Chit Kee Respondent. Coram: E.H. Williams. Date of Judgment: 12 June 1948. ----------------- JUDGMENT ----------------- The lis pendens which applicants now ask the Court to be vacated was entered in the Land Office against certain property on the 3rd April. It was a writ of summons in O.J. Action 96/48 issued on the 2nd April for specific performance of an agreement for the sale of the property entered into on the 18th February between the respondent and one Kwong Hung Ying (referred to as the vendor). At the relevant date, the 3rd April, the position was that the vendor had already assigned the property on the 20th March to the applicants, the assignment being registered in the Land Office on the 22nd March. The effect of such registration as decided in Kwok Siu Lau v. Kan Yang Chee, 8 H.K.L.R. 52 is, in the absence of fraud, to make an unregistered agreement null and void as against the registered deed of a subsequent bona fide purchaser for value, even though the latter had, at the time of registration, notice of the former unregistered agreement. The words of Gompertz J. on page 68 of that judgement are relevant: 'In this case the respondent had entered upon negotiations, executed a binding agreement to purchase and paid a deposit, all in absolute good faith and with no notice of the appellant's lease. I see nothing fraudulent in his then going on to complete his purchase and obtaining the protection which the law offers him. Why should he be put to inconvenience by the appellant's negligence?' Applying this to the present case, the applicants entered into an agreement on the 6th March, with the vendor through their agent to purchase the land, the agreement being registered on the 8th March. On the 9th March, their solicitor became aware, through correspondence with the respondent's solicitor, that she was claiming the vendor had agreed on the 18th February to sell the land to her. He searched the register but found no such agreement registered against the property. On the 20th March, the assignment was made to the applicants, the assignment being duly registered on the 22nd March. In view of respondent's claim of an agreement by the vendor on the 18th February to sell the land to her, steps might have been taken by her or her solicitors on the 9th March to issue the writ and enter the lis pendens against the property. Had this been then done, applicants would undoubtedly have been most reluctant to take any further steps to have the property assigned to them until the issue between respondent and the vendor had been decided. The applicants are now the registered legal owners of the land. The remedy sought in C.J. Action 96 of 1948 is not against them - it is not an application to have the sale to them set aside on any ground. It is against the vendor and asks the Court to order the vendor to perform his agreement. The true legal position being as it is, I fail to see how the Court now could order the vendor to perform his agreement. In my opinion the failure to register the lis pendens until the 3rd April is sufficient good cause for me to order the lis pendens to be vacated and I therefore make the order in terms as asked with costs to the applicants. (sd) E.H. Williams Acting Chief Justice. 12.6.48. Representation: PAGE - PAGE \* MERGEFORMAT - &`#$ HCMP000033/1948 SOUGH SEA TEXTILE MANUFACTURING CO. v. WONG CHIT KEE Normal.dot Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCMP000033/1948 SOUGH SEA TEXTILE MANUFACTURING CO. v. WONG CHIT KEE Title Microsoft Word Document MSWordDoc Word.Document.8 HCMP000033/1948 SOUGH SEA TEXTILE MANUFACTURING CO. v. WONG CHIT KEE Normal.dot Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCMP000033/1948 SOUGH SEA TEXTILE MANUFACTURING CO. v. WONG CHIT KEE Title