Hong Kong Case Law: Decisions & Judgments

Topic

Time being of the essence

Legal area

Court

28 Dec 2017

LIN WAI LAI v. HUNG MEI LAI

Citation

LIN WAI LAI v. HUNG MEI LAI
Court

Court of First Instance
Case number

HCMP1310/2017

The Vendor failed to produce clear and cogent secondary evidence of the 8 February 1957 Letter and did not satisfactorily answer the requisition by the scheduled completion; time remained of the essence; the Purchaser validly accepted the Vendor's repudiation on 16 June 2016 thereby terminating the Agreement; forfeiture of the deposits by the Vendor was wrongful; specific performance was refused as inequitable given the delay; damages and declarations were awarded to the Purchaser.
17 Feb 2015

GCH (INTERNATIONAL) LTD v. WONG FUNG WAI, HENRY AND OTHERS

Citation

GCH (INTERNATIONAL) LTD v. WONG FUNG WAI, HENRY AND OTHERS
Court

Court of First Instance
Case number

HCMP2914/2014

The leave application was properly refused because Clause 4(d) did not create a clear mandatory right to lift the stay on late payment, and in context Clause 2(e) showed the parties did not intend delay to automatically revoke the settlement; Parties B had fully performed and Parties A had accepted accelerated payment, so the settlement remained in force and the court correctly exercised its discretion not to lift the stay.
16 Nov 2010

EUROPEAN ASIA (HONG KONG) INVESTMENT LTD v. WONG SHUN ON ANTHONY

Citation

EUROPEAN ASIA (HONG KONG) INVESTMENT LTD v. WONG SHUN ON ANTHONY
Court

Court of Appeal
Case number

CACV120/2010

The January 2008 letter did not constitute a legal waiver that extinguished the essential condition of time being of the essence; at most it granted a time-limited extension (six months) and did not promise open-ended extensions. Consequently the plaintiff was entitled to accept the defendant's repudiation by issuing the writ of 27 November 2008 and the lower court's order forfeiting the deposit was set aside.
19 Sept 2003

HOLYROOD LTD v. BANK OF CHINA (HONG KONG) LTD AND OTHERS

Citation

HOLYROOD LTD v. BANK OF CHINA (HONG KONG) LTD AND OTHERS
Court

Court of First Instance
Case number

HCCL35/2003

Court found there was a serious issue to be tried; damages might be inadequate because quantification of loss was speculative and fraught with imponderables; balance of convenience and commercial practicality favoured preservation of the asset pending a swift trial. Consequently the court granted an undertaking or interim injunction restraining sale/alienation of the property until trial, listed a speedy trial to commence on 2 October 2003, required plaintiff to fortify an undertaking in damages, and refused to terminate the receivership in the short interim period.
9 Jul 2002

BORDON CONSTRUCTION CO., LTD. v. CHI LIK WINDOW WORKS CO. LTD.

Citation

BORDON CONSTRUCTION CO., LTD. v. CHI LIK WINDOW WORKS CO. LTD.
Court

Court of First Instance
Case number

HCCT15/2001

The defendant repeatedly failed to obtain architect approval and to address the architect's comments; those failures prevented ordering materials and delayed the programme and therefore went to the root of the subcontract constituting a repudiatory breach. The plaintiff validly made time of the essence by notice and reasonably terminated. The defendant's defences were either unpleaded or unsupported and failed. Damages were awarded for cost of completion (discounted), wasted expenditure, indemnity against employer's liquidated damages, interest on a nisi basis and costs.
14 Nov 1996

Wellfit Investments Ltd. v. Poly Commence Ltd. and Another

Citation

Wellfit Investments Ltd. v. Poly Commence Ltd. and Another
Court

Court of Appeal
Case number

CACV56/1996

The telephone conversation was insufficient to effect an oral variation, to constitute clear and unambiguous waiver or estoppel, and Poly's rescission was not unconscionable; therefore rescission at 3:24 p.m. was valid and Wellfit's claim for specific performance fails.
14 Nov 1995

AIE CO LTD v. KAY KAM YU

Citation

AIE CO LTD v. KAY KAM YU
Court

Court of Appeal
Case number

CACV45/1995

The vendor had not offered good title on the completion date because the encumbrance for management fees remained unsatisfied; the purchaser was therefore justified in refusing to complete and did not thereby lose the right to specific performance; objections based on mere delay in registration without evidence of intervening priority were misconceived; time being of the essence does not entitle a vendor who cannot give title to demand payment and defeat specific performance.
18 Sept 1992

LIFTON INVESTMENT LTD v. PANG CHOR YING ANNIE

Citation

LIFTON INVESTMENT LTD v. PANG CHOR YING ANNIE
Court

Court of First Instance
Case number

HCA2346/1990

Because the vendor had removed chattels that the contract required to be delivered on completion, the vendor was not ready, willing and able to complete and therefore could not demand completion; the purchaser was entitled to withhold completion without repudiating the contract; the vendor's subsequent conduct repudiated the contract and the purchaser was entitled to relief including release of funds and compensation for the missing furniture.
3 Aug 1988

LI CHING CHOI v. TACT STRONG INDUSTRNAL LIMITED

Citation

LI CHING CHOI v. TACT STRONG INDUSTRNAL LIMITED
Court

Court of First Instance
Case number

HCA3329/1987

The court found on the affidavits that the solicitors had tendered the deposit and the calculated net balance to the plaintiff on the completion date, the plaintiff refused the tender to evade the agreement, and there was no bona fide factual defence; therefore the Master rightly granted specific performance under Order 86 and the appeal was dismissed.
31 Jul 1979

TANG WAI-CHEE v. AIK SAN REALTY LTD

Citation

TANG WAI-CHEE v. AIK SAN REALTY LTD
Court

Court of First Instance
Case number

HCA3425/1978

The contract clauses making time of the essence and deeming registered-post notices to be effective when posted meant the defendant's notice was effective; the plaintiff was aware of the occupation permit and obligations, defaulted after the notice period expired, and the payment of $119,190 was properly characterized as a forfeitable deposit, so specific performance was refused and the defendant entitled to retain the sum.