Hong Kong Case Law: Decisions & Judgments

Topic

Election of remedies

Legal area

Court

13 Feb 2023

STAREX DEVELOPMENT LTD v. YAU SO CHING as the administrator of the estate of YEUNG LEUNG CHUEN, the deceased AND OTHERS

Citation

[2023] HKDC 96
Court

District Court
Case number

DCCJ2374/2021

Clause 10 must be read as a whole: where clause 10(1) occurs, the purchaser's election to continue or forgo is exercisable on or before the completion date (28 April 2020) as expressly stated in clause 10(b); implying an earlier deadline would contradict the express wording and is unnecessary for business efficacy; plaintiff did not unequivocally elect, waive or become estopped by conduct after 30 July 2019; therefore plaintiff validly terminated under clause 10(b), is entitled to return of deposits and judgment in its favour, and defendants' counterclaims fail.
10 Dec 2018

XIAMEN XINJINGDI GROUP CO LTD formerly known as (廈門巿鑫新景地房地產有限公司) v. ETON PROPERTIES LTD AND OTHERS ETON PROPERTIES LTD AND OTHERS

Citation

[2018] HKCA 942
Court

Court of Appeal
Case number

CACV158/2012

The court refused leave because the contested questions were either not questions of great general or public importance or not reasonably arguable; it held that a common law action on an award is founded on an implied promise to comply with the award so damages compensate non-performance of the award (not the underlying contract’s loss of bargain); the inducing breach, conspiracy and constructive trust claims failed on settled law and concurrent factual findings and thus did not merit certification to the Court of Final Appeal.
6 May 2016

LO LI LI LILY v. LUI FUNG HE

Citation

LO LI LI LILY v. LUI FUNG HE
Court

Court of Appeal
Case number

CACV1/2016

The Court of Appeal exercised its discretion afresh, held the plaintiff’s explanations were not convincingly bona fide and that the defendant would suffer real prejudice from delay (including the defendant’s advanced age and enforcement difficulties); accordingly the court refused leave to withdraw the admissions but allowed a limited variation by deleting certain paragraphs of the judgment and accepting undertakings in relation to specified jewellery; costs awarded to defendant (80%).
15 Apr 2016

廈門新景地集團有限公司 formerly known as 廈門市鑫新景地房地產有限公司 v. ETON PROPERTIES LTD AND OTHERS

Citation

廈門新景地集團有限公司 formerly known as 廈門市鑫新景地房地產有限公司 v. ETON PROPERTIES LTD AND OTHERS
Court

Court of Appeal
Case number

CACV158/2012

The Court of Appeal held that (1) a common law action on a foreign arbitral award is maintainable in Hong Kong and the court has jurisdiction to award damages for breach of the implied promise to honour the award (governed by lex fori), (2) the plaintiff must elect between the statutory judgment entered under the Arbitration Ordinance and pursuing damages in common law but the plaintiff had not made an informed irrevocable election because the restructure was undisclosed, and (3) the pleaded economic torts (inducing breach and unlawful means conspiracy) and the constructive trust claim failed…
27 Jan 2015

LU JUN v. YU QI AND OTHERS

Citation

LU JUN v. YU QI AND OTHERS
Court

Court of First Instance
Case number

HCCW377/2014

Provisional liquidators were appointed because exceptional circumstances existed: the Heathcliff transaction and registered/unregistered charges presented a real risk of denuding the company and defeating the crystallised but unpaid buyout order, the voluntary winding up had been stayed so control reverted to directors, and it was reasonably arguable the petitioner retained an arguable tangible interest and right to pursue winding up; appointment was not irreversible and therefore did not mandate immediate election of remedies.
8 Aug 2014

HUEN WAI KEI AND ANOTHER v. CHOY KWONG WA CHRISTOPHER AND ANOTHER

Citation

HUEN WAI KEI AND ANOTHER v. CHOY KWONG WA CHRISTOPHER AND ANOTHER
Court

Court of Appeal
Case number

CACV140/2013

The Court of Appeal allowed the defendants' appeal and set aside the alternative order for specific performance because the oral Security & Set-Off Agreement was not supported by consideration and was not pleaded as a material fact, the S&P Agreement was in substance a consensual security (a sham sale) which could not be specifically enforced to vest unencumbered title (it improperly interfered with mortgagor's right to redeem), and the supplemental orders sought by plaintiffs would amount to a summary award of unliquidated damages without inquiry; the monetary judgment for HK$30,000,000 with…
3 Apr 2014

WU YU JI v. THE ESTATE OF TSUI KAM CHUEN THOMAS

Citation

WU YU JI v. THE ESTATE OF TSUI KAM CHUEN THOMAS
Court

Court of First Instance
Case number

HCA662/2011

The plaintiff, having abandoned the claim for specific performance on 30 March 2012, is entitled to damages equal to the market value of the property on that date (HK$3,800,000) less the contract price (HK$2,270,000), less agreed transaction expenses (HK$52,100), resulting in an award of HK$1,477,900, with interest from 30 March 2012 at 1% above HSBC best lending rate until judgment and at judgment rate thereafter.
17 Jul 2012

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD

Citation

HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD
Court

Court of Appeal
Case number

CACV63/2011

Court of Appeal held that the MOU imposed more than a mere lock-out: defendant had an implied contractual duty to use its best or reasonable endeavours in good faith to procure agreement with BOCGI and, in the contractual context, a fiduciary-like duty arose given plaintiff's dependence and defendant's control of negotiations; Asset Proof (bank reference plus HK$50m earnest) was not a condition precedent to commence defendant's obligations; exclusivity was not extended by implication and estoppel was not established; trial judge had failed to make critical factual findings (notably on double…
16 Mar 2011

PRIME ASPECT LTD v. CHAN WAN CHUNG

Citation

PRIME ASPECT LTD v. CHAN WAN CHUNG
Court

Lands Tribunal
Case number

LDPD3147/2010

After the applicant forfeited the tenancy by serving the writ of summons, it was not entitled to rely on Clause 4 of Schedule II to terminate the tenancy; the subsequent contractual notice was invalid as inconsistent with the prior election to forfeit, therefore the possession application is dismissed and costs ordered to the respondent.
27 Oct 2009

GOEI TSUSHO CO LTD v. LEADER ENGINEERING & CONSTRUCTION LTD AND ANOTHER

Citation

GOEI TSUSHO CO LTD v. LEADER ENGINEERING & CONSTRUCTION LTD AND ANOTHER
Court

District Court
Case number

DCCJ4581/2005

On the facts the court concluded that Leader Engineering, by its documents, conduct and representations (shared office/address changes, fax imprint, business cards, correspondence signed or sent from Leader Engineering offices and involvement of Leader Engineering personnel), had created apparent authority for Anco‑Tech to contract on its behalf; Leader Engineering was therefore a disclosed principal and jointly and severally liable for the debt. The prior default judgment against Anco‑Tech did not constitute an irrevocable election barring the Plaintiff's claim against Leader Engineering giv…