Professional Documents
Culture Documents
Hca001486 2014
Hca001486 2014
HCA 1486/2014
B [2020] HKCFI 2689 B
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HIGH COURT ACTION NO 1486 OF 2014 D
E E
LI YAN PING Plaintiff
F and F
K AND K
L BETWEEN L
S S
Before : Hon Marlene Ng J in Court
T Dates of Hearing : 4-10 July 2018 T
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________________
C C
JUDGMENT
D ________________ D
E I. INTRODUCTION E
former registered owner and the 1st defendant Multi Elite Limited (“D1”) is
G G
the current registered owner of ALL THOSE 55/30167th parts or shares of
H and in ALL THOSE pieces or parcels of ground registered in the Land H
M
(“Phase 2”) of the Commercial Development (“Development”) of Allway M
Gardens (“Buildings”), Nos 187-195 Tsuen King Circuit and Nos 2-22 On
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Yat Street, Tsuen Wan, New Territories, Hong Kong (collectively,
O “Property”). Max Rainbow was the registered owner of the Property from O
2 January 2008 until D1 became the registered owner thereof on 31 May
P P
2013.
Q Q
2. The present action arose from a sub-sale and sub-purchase
R R
transaction in respect of the Property in 2012-2013 whereby D1 as
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below.
F F
Buildings together with the sole and exclusive right and privilege to hold
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use occupy and enjoy ALL THOSE PORTIONS of the Development of the
K Buildings comprising PORTION ON LOWER GROUND FLOOR OF K
P
Judgment, and I adopt the abbreviations therein. On 27 November 2012, P
the Head PASP was registered at the Land Registry under memorial no
Q Q
R 1
a vendor signs an agreement to purchase landed property from the owner and before R
completion thereof agrees to sell such property to a sub-purchaser
S
2
which portion was shown coloured pink on the G/F Plan of Phase 2 annexed to the S
Assignment registered at the Land Registry by memorial no 08020102520014
3
which portion was shown coloured pink on the C/F Plan of Phase 2 annexed to the
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Assignment registered at the Land Registry by memorial no 08020102520014
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trust whatsoever to the intent that D1 shall take up the assignment of the
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Head Property as the absolute and legal owner thereof, which nomination
K was also confirmed by D1 (“Head Nomination”). On 28 December 2012, K
the Head Nomination was registered at the Land Registry under memorial
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no 12122802390014 dated 28 December 2012 that was prepared by W&G.
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T T
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D D
7. By a PASP dated 28 November 2012 in D2’s printed standard
E form, D1 as confirmor/vendor agreed to sub-sell and P as purchaser agreed E
PASP are set out in Schedule 3 to this Judgment, and I adopt the
H H
abbreviations therein. P paid $300,000 to D1 as initial deposit under
I Clause 2(a) of the Shop 4 PASP. I
J J
8. Under Clauses 6 and 17 of each of the Shop 6 and Shop 4
K PASPs, (a) D1 as vendor sold as confirmor and not as registered owner of K
the Other Property and the Property, and (b) D2 was the estate agent for
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both D1 and P in the sub-sales and sub-purchases of these properties.
M M
P P
10. On 4 December 2012, HCP wrote to W&G (a) enclosing copy
Q Shop 4 PASP, (b) asking for the draft FASP for the sub-sale and sub- Q
purchase of the Property for their approval together with certified true
R R
copies of the Head PASP and the Head Nomination, and (c) asking for all
S S
4
the terms of the Shop 6 PASP were similar to those of the Shop 4 PASP referred to
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in para 7 below (see Schedules 2-3 to this Judgment)
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title deeds and documents of the Property (“Title Deeds”) for their perusal
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on usual undertakings.
C C
E 12. On 4 January 2013, W&G wrote to HCP (a) stating they were E
taking D1’s instructions on the terms of the draft FASP for the sub-sale and
F F
sub-purchase of the Property, which draft would be provided to HCP for
G approval as soon as possible, and (b) asking for payment of the further G
I 13. HCP delivered the Shop 4 PASP to the Land Registry under I
14. On 8 January 2013, HCP wrote to W&G stating they still had
L L
not received the draft FASP, but enclosing a cashier order for $1,224,798 in
M favour of W&G in payment of the further deposit. By such letter, HCP also M
asked W&G about the undivided share of the Property which information
N N
was necessary for registration of the Shop 4 PASP at the Land Registry,
O and warned W&G that D1 would be liable for P’s loss/damages, if any, due O
to inability to register the Shop 4 PASP at the Land Registry upon D1’s
P P
failure to advise the undivided share of the Property.
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17. By a Nomination dated 20 February 2013, P nominated Yan
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Yau Investment Limited (“Yan Yau”) as her nominee to be the purchaser
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and to take up the assignment of and in the Other Property to the intent that K
all of her estate right title benefit and interest of and in such property under
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the Shop 6 PASP be vested in Yan Yau, and P as the nominator and also on
P P
18. By a Nomination dated 20 February 2013, P nominated Win
Q Yan Investment Limited (“Win Yan”) as her nominee to be the purchaser Q
and to take up the assignment of and in the Property to the intent that all of
R R
her estate right title benefit and interest of and in such property under the
S Shop 4 PASP be vested in Win Yan, and P as the nominator and also on S
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19. On 25 February 2013, the Land Registry by its letter to HCP
E noted (a) the Shop 4 and Shop 6 PASPs and their memorials had not been E
re-delivered to the Land Registry, and (b) urged HCP to re-deliver the duly
F F
amended and/or clarified instruments/memorials as soon as possible
G together with the additional registration fees. G
H H
20. On 28 February 2013, HCP replied by enclosing the Shop 4
I and Shop 6 PASPs with cheques for payment of the additional registration I
fees.5 HCP went on to explain that the vendor (ie D1) had not yet advised
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the undivided shares of the Other Property and the Property, so they were
K unable to specify the undivided shares and/or the PRNs for the K
N N
21. On 1 March 2013, HCP wrote to tell W&G they had delivered
O the Shop 4 PASP to the Land Registry for registration so as to secure P’s O
interests, but were unable to fill out details required for the corresponding
P P
memorial due to D1’s failure to advise the undivided share of the Property
Q despite their earlier requests for the same, so the Land Registry withheld Q
5
the Land Registry acknowledged receipt of such additional registration fee on
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1 March 2013
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documents.
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draft FASP for the sub-sale and sub-purchase of the Property for approval,
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and (b) the copy tenancy agreements of the Property dated 21 March and
I 5 November 2012 for reference. W&G (i) stated that if HCP approved the I
draft FASP they could treat it as engrossment for P’s signature and return
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the signed FASP to W&G for D1’s signature, but (ii) reminded that W&G
K were still taking D1’s instructions on the terms of the draft FASP, so there K
might be further revisions and D1’s rights to make such revisions were
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expressly reserved.
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to pay any fees for the Title Deeds, and urging W&G to let them have all
P P
the Title Deeds for their perusal.
Q Q
25. On 3 May 2013, W&G replied saying that even though the
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purchaser should pay for preparation of the certified copies of the Title
S S
6
this referred to Clause 8 of the appendix to the Shop 4 PASP that provided “分契費
用及公契費用由賣方負責支付” (English translation: “(8) Costs of Sub-Deed of
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Mutual Covenant and the Deed of Mutual Covenant shall be paid by the Vendor”)
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Deeds, they had conveyed P’s objections to D1 and were awaiting D1’s
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instructions. But on without prejudice basis W&G loaned and forwarded
C the copy Title Deeds to HCP against their undertakings (a) to hold them to C
W&G’s order, (b) to forthwith return them on demand, and (c) not to make
D D
any certified copy unless with W&G’s express written consent.
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H H
27. On 3 May 2013, HCP wrote to W&G putting on record that
I (a) notwithstanding their letters dated 8 January and 1 March 2013 W&G I
still had not advised the mode of allocation of undivided share of the
J J
Property, which information was necessary for them to approve the draft
K FASP, and (b) P’s interests in the Property were prejudiced because P could K
not register the Shop 4 PASP at the Land Registry. By such letter, HCP
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pressed D1 to provide without further delay documentary evidence to show
M the mode of allocation of undivided share of the Property, and all P’s rights M
(b) “[as] mentioned in [HCP’s] letters dated 8th January 2013, 1st March
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2013 and 3rd May 2013, [HCP has] not received from [W&G] any
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29. On the same day, HCP wrote to W&G saying they still had
E E
not received W&G’s written reply to the requisitions raised, and “[since]
F completion is imminent and [D1] as vendor is obliged to prove good title F
of the property at his own expenses, [HCP] are pleased if [W&G] would
G G
let [HCP] have [W&G’s] satisfactory reply to [HCP’s] requisitions without
H further delay or the completion will not be taken place in time and further H
31. On the same day, W&G sent copy assignment floor plan of
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7
the Property for HCP’s perusal.
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presumably to be certified by an Authorised Person and to be attached to the
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Assignment of the Property upon completion in due course (see para 40(a) below)
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33. On 23 May 2013, W&G replied to the requisitions raised by
E HCP’s letter dated 8 May 2013 stating inter alia as follows: E
(b) copy draft Sub-Sub-DMC had been sent to HCP earlier, and W&G
I I
were prepared to give HCP their undertaking (to be included in HCP’s
completion letter) to send HCP certified copy of the duly registered
J Sub-Sub-DMC within 14 working days after HCP’s receipt of the J
same from the Land Registry.
K K
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But as seen in further detail below, P complained that W&G’s aforesaid
M reply to HCP’s requisitions failed to disclose the Alleged UBWs (referred M
to in paragraph 37 below).
N N
T T
8
see Clause 3 of the Appendix to the Shop 4 PASP
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paragraph 30 above), and went on to remind that it was for HCP acting for
B B
the sub-purchaser to prepare an assignment that duly set out the full
C particulars of the Property for W&G’s approval, but W&G gave a full C
O
b) Canopies at hardware store on G/F at rear yard O
9
signed by a senior consultant of RHL’s Department of Project Management &
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Building Consultancy John Y K Ho
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……
B B
Caveats
C …… C
On the same day, RHL issued invoice no 11203 to P for the RHL Report in
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the sum of $7,000 (“RHL Invoice”).
G G
from the RHL Report there were UBWs at the Property that (according to
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P but denied by Ds) D1 was at all material times aware of but failed to
K disclose despite earlier requisitions raised by HCP (“Alleged UBWs”): K
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2013 inter alia by (a) asking W&G to enlighten how the Waiver Clause in
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the Shop 4 Appendix10 could be an answer to their requisitions when such
R clause related exclusively to the Property but HCP’s requisitions related to R
10
the appendix to the Shop 6 PASP also contained a Waiver Clause identical to that in
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the Shop 4 Appendix
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(b) reiterating their requisitions, and (c) pointing out it would be a breach
B B
of clause 4 of section IV of the DMC if there was no document to evidence
C approval of the sub-division of the Property. C
D D
39. Further, HCP enclosed with such letter a copy of the RHL
E Report stating that some UBWs were found at the Property, and asked E
W&G to “enlighten [HCP] what step [D1] is going to take to reinstate the
F F
defect condition in order to ensure the Property would be sold free from
G encumbrance”. HCP also reserved the right to raise further requisitions, G
and to “…… put on record that [W&G] have not provided good title of the
H H
Property up to the present. [P] is not obliged to proceed with the
I completion of purchase of the Property unless and until good title of the I
11
W&G referred to Queen Energy Ltd v Chan Shu Keung [2000] 3 HKLRD 152 and
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Gladson China Ltd v Lam Alexander Chen June [2001] 1 HKC 318
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B (c) “As regards the “[UBWs]” in the [RHL Report], [W&G] reiterate that B
the [Waiver Clause] applies and [W&G] repeat [their] view stated in
C [(a)-(b)] above. [P] has accepted the present condition and [D1] has C
no obligation to take any reinstatement action.”
D D
E E
In such letter, W&G asserted (i) D1 had properly satisfied all HCP’s
F requisitions and had proved good title to the Property, and (ii) D1 was F
ready, willing and able to complete the sub-sale of the Property on the
G G
following day in accordance with the Shop 4 PASP.
H H
the benefit of inter alia (a) the DMC, the Sub-DMC and the Sub-Sub-
M M
DMC of the Buildings insofar as they related to or affected the Other
N Property, and (b) the existing lettings/tenancies of the Other Property (if N
Q Q
42. On 31 May 2013, the sub-sale and sub-purchase of the
R Property between D1 as confirmor/vendor and P as sub-purchaser fell R
through, but the sale and purchase of the Property between Max Rainbow
S S
as head vendor and D1 as purchaser were completed. By an Assignment of
T such date, and in consideration of $9,329,212.52 (being the apportioned T
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the Buildings insofar as they related to or affected the Property, and (b) the
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existing lettings/tenancies of the Property (if any) (“Shop 4 Assignment”).
E A floor plan signed by an Authorised Person showing the layout of G/F E
43. As evident from the land search records of the Other Property
J J
and the Property, the Sub-Sub-DMC was signed/sealed on 31 May 2013
K and was registered with the Land Registry on 25 June 2013. K
L L
44. On 7 June 2013, W&G wrote to HCP stating P had failed (a)
M to pay the balance of the purchase price of $13,273,182 and (b) to M
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the Assignment Plan showed the sub-divided shops/units of G/F and C/F of Phase 2 S
of the Development of the Buildings, including the Other Property that comprised
Shop 6, Shop 6 Yard and Store 6, and the Property that comprised Shop 4, Shop 4
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Yard and Store 4
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H …… H
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45. On 13 June 2013, P’s new solicitors Chak & Associates
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(“C&A”) wrote to W&G (a) saying that as at the date for completion of the K
sub-purchase of the Property (ie 31 May 2013) and thereafter, D1 was in
L L
breach of the Shop 4 PASP by failing to prove good title of the Property, so
P P
46. On 28 June 2013, W&G replied that they had answered all
Q requisitions raised by HCP,13 and that HCP had not raised further Q
requisitions after receipt of W&G’s letter dated 30 May 2013. W&G went
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13
including acceding to HCP’s alleged unreasonable requests such as sending certified
copies of the tenancy agreements (when copies thereof had been provided on
S 28 March 2013 and when W&G were only informed by HCP on 30 May 2013 that S
those copies were insufficient) and copies of approved building plans obtained from
the BD (even though they were not necessary for proving title given the production
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of a copy of the Assignment Plan prepared by an Authorised Person)
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on to say it was on 31 May 2013 (ie the scheduled date for completion)
B B
that C&A sent a letter stating they had replaced HCP as P’s solicitors but
C without raising other requisitions, and nothing was heard further until C
“[W&G] would also like to point out that [P] was also the
E purchaser of Shop No 6 on the [G/F] of Phase 2 of the above E
estate (‘Shop 6’), who before completion nominated [Yan Yau] to
take up the Assignment thereof. From [W&G’s] company search,
F F
[W&G] note that [P] is the sole director of Yan Yau. [HCP]
representing Yan Yau, had raised similar requisitions as those in
G respect of the [Property] to which [W&G] sent the same replies G
as those of the [Property]. Yan Yau had accepted title to Shop 6
and completed the purchase thereof on 31/5/2013.
H H
[W&G] reiterate [D1’s] instructions as set out in [their] letter to
I
[C&A] dated 7 June 2013. I
[W&G] also reiterate that all [D1’s] rights under the [Shop 4
J PASP] in respect of the [Property] made between [W&G’s and J
C&A’s] respective clients dated 28/11/2013, including the right
to claim damages against [P] for breach of contract, are hereby
K expressly reserved. K
L
Should [P] choose to institute legal proceedings against [D1] for L
the refund of the deposit despite of [P’s] breach, [W&G] have
instructions to accept service. In any event, [D1] shall have no
M hesitation to claim all legal costs incurred in respect of [P’s] M
preposterous claim.”
N N
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[P] under the [Shop 4 PASP]. The [Shop 4 PASP] is thus determined and
B B
the [Deposits are] forfeited accordingly”. W&G therefore claimed D1 was
C entitled to re-sell the Property without further notice to C&A and/or P, and C
in the event of a resale of the Property, any deficiency in price and all
D D
expenses incurred in connection with such re-sale shall be recoverable
E from P by D1 as and for liquidated damages. E
F F
48. On 5 July 2013, D1 registered W&G’s letters dated 7 June and
G 3 July 2013 to C&A with the Land Registry under memorial G
[D2] as a co-defendant or a third party (as the case may be). In the
P P
meantime, all [P’s] rights and remedies against [D2] are hereby reserved”.
Q Q
T T
14
it was unclear from such letter what was the subject matter of the invoice
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before the Shop 4 PASP was signed (a) there was never inspection of the
B B
interior condition of the Property, and (b) D2’s estate agent represented to
C P the “as is” basis in the Shop 4 PASP referred to the external and not the C
internal condition of the Property. “If [D2] deem otherwise, please kindly
D D
revert within seven (7) days from the date of this letter. In the meantime,
E all [P’s] rights and remedies are hereby reserved”. E
F F
II. PARTIES’ RESPECTIVE CASE
G G
52. As between P and D1, P claimed she was unwilling to
H complete the sub-sale and sub-purchase of the Property due to (a) the H
existence of the Alleged UBWs at the Property, and (b) W&G’s allegedly
I I
unsatisfactory answers to HCP’s requisitions in relation to the Alleged
J UBWs.15 D1 denied liability, putting P to proof of (a) above but denying J
(b) above. D1 further alleged P was precluded by the Waiver Clause in the
K K
Shop 4 Appendix from complaining about the Alleged UBWs and from
L refusing to complete the sub-purchase of the Property on such basis. L
M M
53. As between P and D2, D2 claimed that since May 2011 P had
N engaged D2 to be her estate agent for purchase(s) and re-sale(s) of various N
S S
15
see HCP’s requisitions at para 39 above and W&G’s answers thereto at para 40
T T
above
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alleged breach of contract,16 (b) D2’s alleged breach of duty of care, (c)
B B
D2’s alleged breach of fiduciary duties, and (d) Tong’s alleged
C misrepresentation (for which D2 was allegedly vicariously liable) as to the C
H H
(a) Site inspections
I I
54. P claimed that several days before 28 November 2012, D2’s
J Tong accompanied her to view the exterior of the shops/units at inter alia J
to inspect the interior of the Property. P further claimed D2/Tong did not
M M
make arrangements with such tenants for her to access/inspect the interior
N of the Property before she signed the Shop 4 PASP, so she could/did not N
P 55. The occupancy status of the Other Property and the Property P
16
ie the oral Agency Agreement, and the written Shop 4 PASP signed by P as
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purchaser and Tong on behalf of D2 as estate agent
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(sq
ft)
B … B
4 G/F 1,511 2,649 4A 李曉梅 $14,500 4.3.2012-3.3.2012 $32,500 $12.3 16,942,200 8200
4B Midland $18,000 18.10.2012-17.10.2014
Leasing
C (xx) Ltd C
M/F 1,138 M/F 交吉 - - 4000
…
6 G/F 1,142 2,002 G/F Ho $19,800 15.3.2011-14.3.2013 $19,800 $9.9 12,804,400 8200
D Cheung
D
Ltd
M/F 860 M/F 交吉 - - 4000
E E
F F
56. On the other hand, D2 averred that:
G (a) In/about mid-November 2012, D1 engaged D2 to be its estate agent G
for seeking confirmor sub-sales of the shops/units at inter alia G/F
H
and C/F of Phase 2 of the Development of the Buildings, which was H
part of the Head Property that D1 purchased from Max Rainbow
under the Head PASP with completion of such purchase to take place
I I
on 31 May 2013.
J (b) In/about mid-November 2012, D2 through its senior account J
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E
(f) P knew or ought to have known from such inspection on E
20 November 2012 and also from the Floor Plans and the Price List
that there had been alterations to the shops/units (or to some of them)
F F
at G/F and C/F of Phase 2 of the Development of the Buildings,
including “internal partitioning and alterations in the locations of the
G staircases leading from [G/F] to the shop(s)/unit(s) on [C/F]”. G
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(m) On/about 28 November 2012, Tong asked P whether she was also
F F
interested to purchase the Property, and P replied in the affirmative.
L (o) Tong for and on behalf of D2 signed the Shop 4 PASP, which was L
N N
57. P averred (but Ds did not admit) that at/about the end of
O O
December 2012 D1 arranged site inspection for P who gained access to
P Store 4 but not Shop/Yard 4 (which was then occupied by tenants). P P
further averred (but Ds did not admit) that at RHL’s site inspection on 24
Q Q
May 2013, RHL’s surveyor only gained access to Unit 4(A) (which was
R occupied by a hardware store) and Store 4 (see paragraph 36 above), but R
S 19
P and D1 did not sign any FASP, but proceeded to completion of the sub-sale and S
sub-purchase of the Other Property on 31 May 2013 pursuant to the Shop 6 PASP
whereupon Yan Yau (nominated by P to take up the assignment of the Other
T T
Property) became the registered owner of the Other Property
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A A
not Unit 4(B) (which was occupied by Midland Leasing (xx) Ltd
B B
(“Midland Leasing”)20).
C C
(“CPO”) and (b) prove and show good title to the Property in accordance
G G
with section 13 of the CPO at its own expense, and D1 shall at like
H expense make and furnish to P such certified/attested copies of any deeds H
was aware.
O O
disclose the Alleged UBWs and wrongfully relied on the Waiver Clause
S S
T T
20
see the Price List and para 55 above
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with respect to the presence of the Alleged UBWs (see paragraphs 33 and
B B
40 above).
C C
(c) further or alternative to (b) above, D1’s duty to give good title was
I I
independent of such Wavier Clause;
J (d) further or alternative to (c) above, pursuant to the Shop 4 PASP, P had J
M
(f) further or alternative to (e) above, such Waiver Clause being M
inconsistent with Clause 4 of the Shop 4 PASP had no effect or was
not binding;
N N
(g) since D1 failed to show good title to P, P was entitled not to complete
O the sub-purchase of the Property pursuant to the Shop 4 PASP. O
P P
Q Q
62. Further/alternatively, P averred (a) the Wavier Clause of the
R Shop 4 Appendix (which should be construed contra proferentum) was R
inconsistent with the implied term of the Shop 4 PASP that good title had
S S
to be shown and proved, so P was not debarred from raising requisitions in
T respect of Alleged UBWs, and (b) D1 wrongfully refused to answer T
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D D
63. On the other hand, D1 denied P’s case:
E E
(a) D1 did not admit the Property had illegal structures not authorised by
the Building Authority (“BA”), but if and insofar as necessary, D1
F F
averred (i) the trivial or minor Alleged UBWs would not give rise to
any real risk of enforcement and/or would not enable P to rescind the
G Shop 4 PASP, but (ii) even if the presence of the Alleged UBWs had G
the effect of causing any defect in title (which D1 denied), such effect
H was de minimus. H
I (b) D1 claimed P’s requisitions in relation to the Alleged UBWs did not I
go to the root of its title to the Property, and reiterated (i) it did not
J
have knowledge and/or it was not aware there was any illegal J
structure at the Property, and (ii) the Waiver Clause of the Shop 4
Appendix was included in the Shop 4 PASP to provide for the
K K
possibility that there was.
L (c) D1 claimed P should have discovered the Alleged UBWs much earlier L
because (i) P had inspected the Property under the arrangement and in
M the company of D2’s Tong before she signed the Shop 4 PASP, (ii) the M
Alleged UBWs were patent upon any inspection of the Property, and
N (iii) P had an opportunity to seek professional advice in respect of the N
Property before she signed the Shop 4 PASP.21
O 21
in reply to D1’s averments, P denied she could have discovered the Alleged UBWs O
much earlier: (a) P was provided with an opportunity to only inspect the exterior of
P the Property, and she did not inspect the interior of the Property before she signed P
the Shop 4 PASP, (b) P was not professionally qualified to ascertain the
existence/nature of the Alleged UBWs upon any inspection of the Property, so the
Q Alleged UBWs were not patent upon any such inspection, (c) it was impossible for P Q
to discover the Alleged UBWs, so she relied on D1/D2 to disclose them, (d) whether
R
the Alleged UBWs were patent upon any inspection of the Property would not R
absolve D1 from proving and showing good title to the Property, (e) P did not have
any opportunity to seek professional advice in respect of the Property before she
S signed the Shop 4 PASP, and she only discovered the Alleged UBWs from the RHL S
Report on 27 March 2013, and (f) insofar as it was suggested professional advice
referred to in para 63(c)(iii) above meant D2’s professional advice, D2 failed to
T T
provide P with any information regarding the Alleged UBWs despite P’s express
U U
V V
- 30 -
A A
H H
I I
64. Further, D1 disagreed it failed to answer or satisfactorily
request
P P
22
in reply to D1’s averments, P claimed (a) the effect of Clause 6 of the Shop 4 PASP
was not that she had to accept the physical condition of the Property, but (b) if
Q Clause 6 of the Shop 4 Appendix had such effect (which P denied), then by virtue of Q
the Control of Exemption Clauses Ordinance Cap 71 (“CECO”) and/or the
Misrepresentation Ordinance Cap 284 (“MO”), D1 could not rely on Clause 6 of the
R Shop 4 PASP and/or Clause 27 of the Head PASP to restrict or limit its liability R
since such clauses were unreasonable in the circumstances
S 23
“盡管該鋪位存有任何未經屋宇署授權改建或加建部分及盡管屋宇署或其他政 S
府部門有權對任何未經授權改建或加建部分做出追究, 而令任何未經授權改建
或加建部分構成上述物業的物權瑕疵, 買方仍願意接受該鋪位業權 ……” (my
T T
emphasis)
U U
V V
- 31 -
A A
(b) D1 denied such Waiver Clause (ie a general clause pertaining to any
B and all illegal structures that might affect title to the Property) was B
inconsistent with the Partition Clause in the Shop 4 Appendix (ie a
C specific clause in relation to the internal partition wall at Shop 4), and C
claimed that the specific Partition Clause by its nature would not
D qualify the general Waiver Clause. D
E
(c) Further, D1 claimed such Waiver Clause expressly addressed the E
possible legal consequences of any presence of UBWs at the Property,
ie the possibility that the BD or other Government authorities might
F F
take enforcement actions that might lead to defect in title.24
G (d) D1 averred (i) such Waiver Clause was written in easily understood G
Chinese which P was and/or was expected to be familiar, (ii) P and D1
H were of equal bargaining power, (iii) clauses such as the Waiver H
Clause that excluded the purchaser’s right to complain about UBWs
I were commonplace in Hong Kong, (iv) P was experienced in property I
transactions regarding similar properties, and (v) P had completed the
J
sub-purchase of the Other Property (located near to the Property) J
from D1 pursuant to the Shop 6 PASP (that contained a term identical
to the Waiver Clause of the Shop 4 Appendix) at the price of
K K
$11,523,960.25
L (e) D1 therefore claimed P entered into the Shop 4 PASP with full L
knowledge not only of the possibility of there being, as a matter of
M fact, UBWs at the Property in addition to that stated in the Partition M
Clause of the Shop 4 Appendix, but also the possible legal
N consequences and particularly the implications on title of the Property N
caused by the existence of any such UBWs at the Property.26
O O
(f) D1 also (i) claimed it had already discharged its duty to make full and
frank disclosure about the Property insofar as it had any knowledge,
P P
(ii) denied any knowledge of the existence of the Alleged UBWs, (iii)
Q
24
“屋宇署或其他政府部門有權對任何未經授權改建或加建部分做出追究 , 而令 Q
任何未經授權改建或加建部分構成上述物業的物權瑕疵”
25
in reply to D1’s averments, P claimed that by virtue of the CECO and/or the MO,
R R
D1 was precluded from relying on the Waiver Clause of the Shop 4 Appendix to
restrict/limit its liability since it would be unreasonable in the circumstances, and
S that the following were irrelevant: (a) P’s alleged experience in property transactions S
regarding any properties whether similar or not, (b) P’s purchase of the Other
Property, and (c) the Shop 6 PASP and its contents
T T
26
in reply to D1’s averments, P denied having any such knowledge
U U
V V
- 32 -
A A
J J
(d) she had accepted title in respect of the Property even if there were any
R R
such unauthorised alteration or addition, and had agreed not to raise
any requisition/objection or to seek any compensation from D1 in
S respect thereof. S
27
in reply to D1’s averments, P denied having any knowledge of any legal
T T
consequences of the Waiver Clause
U U
V V
- 33 -
A A
B B
C C
(c) P’s claim against D1
D D
66. P claimed that by reason of the matters in paragraphs 58-62
E above, D1 was in breach or in anticipatory breach of the Shop 4 PASP in E
paragraph 52 above, P was entitled to return of the Deposits paid under the
H H
Shop 4 PASP on the ground of total failure of consideration.
I I
P P
68. P did not plead any cause of action against D1 based on
Q misrepresentation even though she claimed to have been misled by the Q
T T
U U
V V
- 34 -
A A
disclose the existence of the Alleged UBWs, so it was said D1 could not
B B
rely on the Waiver Clause of the Shop 4 Appendix.
C C
69. On the other hand, D1 denied P’s allegations, and claimed that
D D
(a) on 13 June 2013 P (through C&A) wrongfully demanded the refund of
E the Deposits that P had paid under the Shop 4 PASP and wrongfully E
repudiated the Shop 4 PASP, and (b) on 3 July 2013 D1 (through W&G)
F F
properly forfeited the Deposits. D1 averred it was P who was in breach of
G the Shop 4 PASP, and who wrongfully refused/failed to complete the sub- G
purchase of the Property on the basis of the requisitions which she raised
H H
concerning the Alleged UBWs but which in fact she was not entitled to
I raise. I
J J
(d) P’s claim against D2
K K
70. P claimed that in order to give business efficacy and by virtue
L of the relationship between P and D2, it was an implied term of the Agency L
Agreement that (a) D2 would (i) comply with P’s instructions and/or (ii)
M M
use all reasonable endeavours or all due care and skill to do so, and/or (b)
N D2 owed P duty of care and/or fiduciary duty to the same effect. D2 N
admitted it owed P duty of care that a reasonable estate agent would owe to
O O
his/her client.
P P
(b) failed to ensure its employee Tong provide at P’s express request
T T
U U
V V
- 35 -
A A
D (d) failed to explain to P the terms of the Shop 4 PASP and to ensure P D
was made fully aware of her rights and obligations under such
E
contract (particularly the effect of the Waiver Clause of the Shop 4 E
Appendix) when the Shop 4 PASP/Appendix were signed in the
absence of legal representatives acting for P;
F F
I I
due care and due diligence in fulfilling its duty as an agent of P, and (d) to
N N
ensure P was protected at all material times against fraud,
O misrepresentation or any other unethical practices in connection with the O
R
care (see paragraph 71 above and paragraphs 76-77 below). R
U U
V V
- 36 -
A A
and/or due care/skill to make suitable enquiries, (b) disclose the Alleged
B B
UBWs to her, and (c) stop her from entering into the Shop 4 PASP without
C deletion of the Waiver Clause of the Shop 4 Appendix (especially as the C
F F
74. As for P’s claim against D2 for breach of fiduciary duties, P
G further/alternatively averred that such fiduciary duties were implied by law G
by reason of the nature of the relationship between P and D2, and at all
H H
material times during the term of its agency D2 owed P (a) duties of
I fidelity, loyalty and good faith, and (b) other duties as referred to in I
asked Tong whether there was any UBW in the Property to which he
N N
st
replied there was none (“1 Representation”). P also claimed that at the
O time when she signed the Shop 4 PASP (including the Shop 4 Appendix to O
which Tong appended his signature for and on behalf of D2), Tong
P P
explained to her (a) the provisions therein (including the Wavier Clause in
Q the Shop 4 Appendix) were standard terms, and (b) P’s right to demand D1 Q
R
to prove/give good title in respect of the Property would not be R
nd
circumscribed (“2 Representation”).
S S
T T
U U
V V
- 37 -
A A
76. But P claimed at no time or at all did D2/Tong tell her that by
B B
agreeing to the Waiver Clause in the Shop 4 Appendix, she would risk
C waiving her right to raise objection to title in respect of the Property C
concerning UBWs, including the Alleged UBWs, even though D2 with its
D D
experience in relation to sale and purchase of commercial/other properties
E would or ought to have known that by enticing P to enter into and sign the E
R R
U U
V V
- 38 -
A A
negligent, and P agreed to the terms of the Shop 4 PASP (including those
H H
of the Shop 4 Appendix) and signed such contract without relying on any
I representation by D2/Tong as alleged or at all. In any event, it was said I
Tong and P well knew the meaning/effect of the Waiver Clause in the
J J
Shop 4 Appendix.
K K
being the Deposits and part payment of the purchase price that P had
O paid to D1 under the Shop 4 PASP; O
U U
V V
- 39 -
A A
Deposits and part payment of the purchase price that P had paid to D1
B under the Shop 4 PASP; B
C (e) a declaration that as security for the sum due from D1 under (d) C
above, P was entitled to an equitable lien on such interest which D1
D possessed in the Property; D
E
(f) further/alternatively to (d) above, damages.29 E
F F
above).
I I
K
82. D1 repeated its defence to P’s claim, and counterclaimed K
against P for a declaration that the Shop 4 PASP was terminated by P’s
L L
repudiatory breach and the Deposits paid thereunder were validly forfeited
M by D1. M
N N
(h) D2’s counterclaim against P
P
procedural history of the present action. P through C&A commenced the P
present action against Ds on 4 August 2014, and P’s Re-Re-Amended
Q Q
Statement of Claim was filed on 7 February 2017. D1 and D2 gave notice
R
of intention to defend by their respective solicitors W&G (D1) and Tai, R
Tang & Chong (D2). On 19 March 2015 D2 filed its Amended Defence
S S
29
Mr Lau confirmed that apart from the return of the Deposits the only other damages
P intended to claim were the sum of $7,000 being the amount of the RHL Invoice
T T
paid or payable by P
U U
V V
- 40 -
A A
notice it had changed its name to Fung Sing Marketing Limited. Pursuant
H H
to the order of Master Chow dated 22 September 2016 and the certificate
I under Order 67 rule 6(1)(c) of the Rules of the High Court (“RHC”) filed I
by Tai Tang & Chong on 14 October 2016, such solicitors ceased to act for
J J
D2 in the present action. Thereafter, D2 failed to appear at the case
K management conference heard on 11 April 2017, so Master Ho K
85. D2 did not appear at the trial. From the various affidavits of
O O
service filed by P and D1, I am satisfied D2 had been properly served with
P the relevant papers, and it had been properly notified of the trial. On the 1st P
day of the trial, I granted leave for D1 to withdraw its counterclaim against
Q Q
D2 with no order as to costs.
R R
86. Thus, the remaining claims before the court at the trial were
S S
(a) P’s claim against Ds, and (b) D1’s counterclaim against P.
T T
U U
V V
- 41 -
A A
III. ISSUES
B B
H (c) (i) whether D1 could rely on the Waiver Clause in the Shop 4 H
Appendix, and (ii) if so, whether D1 could refuse to answer P’s
I requisitions about the Alleged UBWs. I
J J
risks as to title of the Property, and (b) if so, whether such clause would
N N
preclude P from raising objections to D1’s title to the Property on the
O ground that the Alleged UBWs were or might have been UBWs. D1 O
stand or fall with the court’s construction of such clause. Indeed, if the
R R
court’s determination on the construction of such clause under
S S
paragraph 87(c)(i) above would favour D1’s contention, D1 suggested the
T
issues in paragraph 87(a)-(b) above would essentially fall away. T
U U
V V
- 42 -
A A
89. P contended the essential issues between her and D2 were (a)
C C
whether D2 was in breach of the implied term under the Agency
D Agreement (see paragraphs 70-71, 73 and 76-77 above), (b) whether D2 D
was in breach of “…… the implied duty of care and/or the fiduciary duty
E E
owed to [P] under the [Agency Agreement] and [the Shop 4 PASP]” (see
F paragraphs 70, 72-74 and 76-77 above), and (c) whether D2 was liable to P F
(a) Witnesses
J J
90. P gave evidence at trial and adopted her witness statement
K K
dated 13 October 2016 (“P’s WS”) as part of her evidence, but she did not
L call other witness(es). Mr Wong Yee Ho Gabriel (“Wong”), D1’s property L
O O
91. Various aspects of this case fell to be decided on the facts, so
P the question of witnesses’ credibility/reliability became relevant. In P
U U
V V
- 43 -
A A
D D
92. Cross-examination of P was a revealing process, particularly
E when it required her to face intensive questioning over various topics/ E
U U
V V
- 44 -
A A
respect of the Head Property as well as the Property. I find his evidence on
D D
the core matters honest and reliable.
E E
(b) Plans
F F
94. The Assignment Plan and the Floor Plans showing inter alia
G G
shops/units on G/F and C/F of Phase 2 of the Development of the
H Buildings were adduced at trial. From such plans, the following were H
evident:
I I
The front parts of these shops faced Tsuen King Circuit. At the rear
K parts of each of Shops 4-6 was an open air yard that abutted the open K
passage or rear lane (“Rear Lane”).
L L
(b) On C/F above Shops 4-6 were Stores 4-6. Stores 4-6 were
M
correspondingly connected to Shops 4-6 by internal staircase. M
N N
O (c) Photographs O
(a) The photographs at C/958-959 showed the front parts of Shops 4-6
R and Stores 4-6 facing Tsuen King Circuit, and both Mr Lau and R
Ms Cheung, counsel for D1, agreed such photographs reflected the
S physical state in 2012/2013 save that such shops were occupied by S
other tenants.
T T
U U
V V
- 45 -
A A
(b) The photographs at C/960-961 showed the rear parts of Shops 4-6
B from the vantage of the Rear Lane. B
C (c) The photograph at C/962 showed the rear parts of Shop 6 from the C
vantage of the Rear Lane with a corrugated metal sheet canopy seen
D at the Shop 6 Yard. D
E
(d) The photographs at C/963 and 965-966 showed the Rear Lane at the E
back of the shops on G/F of Phase 2 of the Development of the
Buildings with a gate where the Rear Lane joined the public pavement
F F
(“Rear Lane Gate”).
G (e) The photographs at C/964-967 showed (i) metal security cage for G
I I
J V. LEGAL PRINCIPLES J
L 96. The vendor has an obligation to show good title even if the L
himself on the matter, get his money ready and complete on the date fixed.
O O
If the vendor fails to satisfactorily answer requisitions and objections that
P are properly raised, he fails to show good title even if he has in fact good P
title.32
Q Q
R 97. But the vendor and purchaser are free to make and modify R
T T
32
see Active Keen Industries Limited v Fok Chi-kong [1994] 1 HKLR 396
U U
V V
- 46 -
A A
H “24. ….. The parties to a contract for the sale and purchase of H
land are free to agree to any term they like. The parties
are free to agree to the sale and purchase of a property
I with defective or imperfect title and the purchaser may I
agree to waive his right to raise requisition in respect of
[UBWs]. ……the question is what have the parties
J J
agreed in the light of the surrounding circumstances and
the factual matrix.” (see Ip Kam Wah & anor v Fair City
K Group Ltd [2005] 4 HKLRD 168, 182-183) K
S
98. The ambit and effect of a waiver clause in a conveyancing S
contract turn on its construction. The applicable principles of contractual
T T
U U
V V
- 47 -
A A
M (b) Le Pichon JA in All Ports Holdings Ltd v Grandfix Ltd stated that “in M
construing a contract all parts must be given effect where possible,
N and no part of it should be read as inoperative or surplus. This is the N
presumption against redundant words”.33
O O
(c) A contract should be construed objectively, but not in disregard of its
factual context and purpose. Accordingly, the subjective intention of
P P
one party to a contract, even if communicated to the other party
before the contract is made, will not usually be a relevant
Q consideration. This explains why evidence of the parties’ subjective Q
intention is inadmissible.34
R R
(d) Lord Hoffmann NPJ at page 776 in Jumbo King Ltd further explained
S that “…… the courts will be very reluctant to construe such a term [ie S
33
[2001] 2 HKLRD 630, 642
T T
34
see Lewison, The Interpretation of Contracts 6th ed para 2.03 at pp 34-41
U U
V V
- 48 -
A A
T T
35
[1999] 3 HKLRD 231, 244
U U
V V
- 49 -
A A
B B
C
99. Where “the vendor did not actually know of the defect but had C
the means of knowledge” (see paragraph 98(d) above), the relevant
D D
questions as identified by Godfrey Lam J at page 520 in Long Life Chinese
E
Health Food Ltd are as follows: (a) whether the waiver clause imposes E
“subject matter limits” on the vendor’s obligation to show and give good
F F
title and the purchaser’s entitlement to raise requisitions and objections,
G and (b) whether the “defect in title” complained of falls clearly within such G
N
101. The starting point is that a waiver clause cannot be tricky, N
unfair or (by concealment or non-disclosure) misleading, and the vendor
O O
cannot refuse to disclose serious “defect in title” of which he has actual
S S
T T
36
see Jumbo King Ltd at p 776
U U
V V
- 50 -
A A
construction clearly covers such defect, the vendor can still rely on such
D D
waiver clause:
E E
(a) Anderson Chow J in Join Union Investment Ltd v China Tree
F
Investment Ltd cited Hoffmann NPJ’s observations in Jumbo King Ltd F
(see paragraph 98(d) above), and went on to say as follows:37
G G
“60. In the context of a simple contract for the sale and purchase of
land in Hong Kong, the vendor’s duty, in general, is to prove and give
H a good title. It is not a defence for the vendor to say that he did not H
have knowledge of any defects in title at the time of the making of the
I contract. The issue of knowledge becomes relevant, however, when I
the vendor seeks to rely on a contractual provision limiting the title to
J be proved or given. In such a case, the proper inquiry is whether, J
upon the true construction of the limitation provision, it is intended to
K
apply to the relevant defect in title notwithstanding the vendor’s K
knowledge of it at the time of the making of the contract ……
L L
61. There is no general rule that only “actual knowledge” of the
relevant defect in title on the part of the vendor is relevant to this
M inquiry. Whether the vendor will be debarred from relying on a M
contractual provision limiting the title to be proved or given by reason
N of actual, or some lesser degree of, knowledge of the defect in title N
would depend on the true construction of the contractual provision in
O question. O
62. For the reasons mentioned above, the proper question is not
P P
whether the defendant failed to make disclosure of defects in title of
which it was aware, but whether the defendant is entitled to rely on
Q Q
the relevant contractual provisions limiting the title to be proved or
given notwithstanding its knowledge of such defects in title. This
R raises an issue of construction of the contract ……” (my emphasis) R
S (b) In Ni Tiee Bor Robert & anor v Golden Crane Industries Limited, S
T T
37
[2016] 2 HKLRD 901, 917-919
U U
V V
- 51 -
A A
H H
R
selling, i.e., they affect his ownership itself”.39 R
S S
38
HCMP4407/1998, Recorder Edward Chan SC (unreported, 21 March 2000)
T T
39
see Emmet and Farrand on Title 19th ed para 4.023 at p 4/28
U U
V V
- 52 -
A A
104. But must the vendor itemise all “defects in title” that come
B B
within the ambit of the “subject matter limits”? Deputy Judge A To at
C page 179 in Ip Kam Wah referred to Godfrey JA’s observations in Spark C
N “…… N
T T
40
CACV249/1998 (unreported, 9 March 1999)
U U
V V
- 53 -
A A
view that “the vendors would have been entitled to reply [to any objection
D D
to title based on the (alleged) unauthorised nature of the cocklofts] that, by
E virtue of cl. 18(e), the purchaser was not entitled to take that objection to E
the title”.
F F
N But seen in the above paragraph, Litton PJ in the Court of Final Appeal N
T T
U U
V V
- 54 -
A A
J Le Pichon JA noted the issue in that case was whether such clause was J
R R
109. Mr Lau strongly relied on Long Life Chinese Health Food
S Ltd, so I will say a few words on the facts of that case. In that case, the sale S
T T
U U
V V
- 55 -
A A
from raising requisitions about the UBW Order. Godfrey Lam J held the
F F
purchaser was not debarred by condition 2 from raising such requisitions.
G G
110. The starting point in Long Life Chinese Health Food Ltd is
H H
that the vendor had actual knowledge of the UBW Order, which must be
I contrasted to D1 in the present action, who (as I find below) had no actual I
Chinese Health Food Ltd that referred to 3 specific aspects of the condition
L L
of the property and showed the parties paid particular attention to these 3
M matters in terms of unauthorised works, but did not mention the UBW M
Order even though the vendor was aware of its existence. It was held at
N N
page 527 that “…… [a] reasonable potential purchaser might be led into
O thinking that there was nothing other than the three matters specifically O
R
unauthorised structure was not disclosed”. Also, conditions 2(B)-(E) would R
41
“(A) The Purchaser declares that it has conducted an on-site inspection of the
S Property in person, and clearly knows of and accepts all the internal and external S
fitting condition of the shop premises and clearly knows of (a) cockloft(s)
constructed within the shop premises, (a) staircase(s) connecting the cockloft and the
T T
ground floor shop, and the existing extended area of the cockloft.” (p 515)
U U
V V
- 56 -
A A
not assist the vendor as they referred to general matters, eg “existing state”,
B B
“relevant condition” and/or “existing condition” rather than specific
C categories of “defect in title”, and thus were too ambiguous to cover the C
(a) Condition 2(B)42 – The purchaser knew that part of the relevant
E E
condition of the property had not been authorised, but there was no
evidence and no basis to suggest that the purchaser knew of the UBW
F Order. F
U U
V V
- 57 -
A A
B B
C
112. From the above authorities, I agree with Ms Cheung that what C
is not permissible is a general and/or sweeping statement that serves as a
D D
general exclusion clause without identifying specifically by “most express
E
language” a category of potential “defects in title”. E
F F
(e) Relevance of purchaser’s knowledge
G 113. The next considerations (which form part of the factual matrix G
I
(a) whether the vendor must particularise in the contract the specific I
“defect in title” in question to bring it within the knowledge of the
purchaser before the vendor can rely on the waiver clause on the basis
J J
that by reason of such disclosure the waiver clause is not regarded
tricky, unfair or misleading;
K K
(b) if the purchaser has actual knowledge, whether he has contracted on
L the basis there may be potential “defects in title” and therefore cannot L
complain of having been misled into thinking he was contracting for a
M clean title. M
N N
trilogy of cases, ie Ip Kam Wah, Channel Green Ltd v Huge Grand Ltd46
P P
and NieTiee Bor Robert & anor before returning to the principles laid out
Q by the Court of Final Appeal in Jumbo King Ltd. Q
R R
45
“(E) The Purchaser and its legal representatives shall not raise any requisition on
S title and/or claim compensation and/or seek a reduction in purchase price by reason S
of the existing state of the Property and/or the aforementioned condition, and shall
also not refuse to complete the transaction by reason thereof.”
T T
46
[2015] 1 HKLRD 655
U U
V V
- 58 -
A A
H H
116. It was argued on behalf of the purchaser that (a) the collateral
I agreement lacked particularity as to the unauthorised structure in question, I
and (b) in order for the waiver to be binding on the purchaser, he had to
J J
know in respect of which particular unauthorised structure it was agreeing
K to waive its right to raise requisition, and a general description would not K
P
all possibly offending structures or fixtures, especially as not every P
unauthorised structure constitutes a blot on title or goes to title. The
Q Q
learned judge next turned to (a) clause 18(e) in Jumbo King Ltd, which (i)
R was similar to the collateral agreement in Ip Kam Wah, (ii) was “equally R
unspecific and lacking in particularity as to the unauthorised structures”,
S S
and (iii) covered “virtually any structure or fixture which is in
T contravention of the law” (page 180), and also to (b) Godfrey JA’s T
U U
V V
- 59 -
A A
question, and on the other hand concluding that the collateral agreement
Q Q
“is capable of constituting a waiver of the [purchaser’s] right to raise
R requisition on the unauthorised structure” (page 183). The learned judge at R
U U
V V
- 60 -
A A
and whether the [purchaser] was in any way misled if the court
B should give effect to that construction. The words ‘unauthorised B
or illegal structures’ are ordinary words and must be given their
ordinary and plain meaning. It must include the unauthorised
C structure which covered the terrace on the first floor of the C
Property converting the open terrace into roofed
D accommodation. Giving these words their ordinary plain D
meaning, the [purchaser] must have agreed to waive its right to
raise objection to title in respect of the said unauthorised or
E illegal structure in question.” (my emphasis) E
F F
The above showed it was not essential for the waiver clause in that case to
G specifically identify the particular unauthorised/illegal structure covering G
the first floor terrace facing the main entrance (being the specific “defect in
H H
title” in question) so long as it identified the relevant category of “defects
I in title”, ie the category of “unauthorised or illegal structures” expressly I
adopted in the collateral agreement was in its ordinary and plain meaning
J J
sufficient to cover the very “defect in title” that was in issue (see also
K paragraphs 107 and 112 above). Likewise, the unauthorised cocklofts K
being the “defects in title” in question in Jumbo King Ltd were covered by
L L
the category of “any structure in or to any part of the property which is in
M contravention of the [BO]” in clause 18(e) in its ordinary and plain M
meaning.
N N
O 118. In Channel Green Ltd, clause 30 of the agreement for sale and O
purchase provided that the property was sold on an “as is” basis; the
P P
purchaser had inspected the property and understood its existing state; and
Q the purchaser could not raise any requisitions or refuse to complete or Q
special conditions of sale under the government lease, ie car park spaces in
T T
U U
V V
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A A
the forecourt had become occupied by stalls, and some shops had extended
B B
into the areas required not to be built over. Upon construing clause 30 in its
C natural and ordinary meaning, it was held that the vendor was entitled to C
(a) “Illegal structure” means any structure erected against the law
E E
whether in breach of the BO, the terms of the Government lease or the
DMC. “Unauthorised additions” or “unauthorised alterations” can
F include those in breach of the Government lease or the DMC, F
irrespective of their status under the BO. Further, “unauthorised
G additions or alterations” are wide enough to encompass physical states G
of the property occasioned by additions or alterations which do not
H involve the erection of a structure, so whether stalls-on-wheels could H
be regarded as structures was not important.
I I
(b) The plain meaning of clause 30 was that it applied to any
unauthorised physical state of the property irrespective of whether
J J
authorisation by the relevant authorities could have been obtained as a
matter of law. As regards breaches of the BO, the BA is not
K empowered to authorise any illegal structure. K
S S
T T
U U
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A A
119. From the above, it is clear a waiver clause should be given its
B B
sensible, ordinary and plain interpretation, and a narrow and legalistic
C approach should be avoided. Ms Cheung fairly accepted there are no hard C
and fast rules as to what “full disclosure” entails (where the vendor has
D D
actual knowledge of the “defect in title”) and/or what “clear and express
E language” drafting requires. I agree that ultimately it is a matter of E
Industries Ltd:
H H
Lam J at page 529 in Long Life Chinese Health Food Ltd distinguished Ip
Q Q
Kam Wah and Channel Green Ltd. The question is whether these cases can
R be distinguished on the ground that, as Mr Lau suggested, the purchasers in R
those cases were found to have knowledge or to have been told of the
S S
UBWs in question.
T T
U U
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A A
121. Turning first to Ip Kam Wah, it was true the central question
B B
of fact in that case was the purchaser’s own knowledge of the “defect in
C title”, ie he knew the unauthorised structure in question existed before he C
signed the collateral agreement so he could not have been misled, but in
D D
my view such issue of fact was significant in that case because the
E purchaser raised an argument of misrepresentation against the vendor, E
U U
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A A
O
such that if the ordinary meaning of the waiver clause makes sense in O
relation to the rest of the document and the factual background, then the
P P
court will give effect to that language, even though the consequences may
Q appear hard for one side or the other. “It is only a rule of construction that Q
the court will avoid construing a contract in such a manner as would
R R
enable a vendor to mislead the purchaser. The duty of disclosure is to be
S understood in this light. Thus, ultimately, …… the question is what have S
T T
U U
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A A
the parties agreed in the light of all the surrounding circumstances and the
B B
factual matrix”.
C C
paragraph 121 above, ie the purchaser was a “dealer in property” who had
J J
purchased other properties in the same property development and who had
K inspected the exterior of the subject property before purchasing the same, K
124. Secondly, the vendor in Channel Green Ltd had disclosed the
P P
unauthorised structures in question prior to the PASP, so the purchaser had
Q knowledge of the potential problem and was not misled. Lam VP at pages Q
R
663-664 held that the purchaser with its substantial experience could not R
have been misled by the waiver clause as it must have been aware of the
S S
possible “defects in title” being the subject matter of its complaint:
T “16. …… T
U U
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A A
……
B B
(2) The transaction in question was a sale and purchase of
substantial value and Ms Ho [ie the purchaser] was a
C person with substantial commercial experience. She did C
not come into the picture at the last minute shortly before
D
the signing of the provisional agreement. She had been D
involved from an early stage when she participated at
two presentations by the agent on 5 January and 2 March
E 2011. The Property was one of the properties presented E
on 2 March and at that presentation there were specific
discussions about the use of the forecourt by the stalls-
F F
on-wheels as opposed to the provision of parking
spaces. …… it defies logic and common sense that
G Ms Ho would not seek information from Mr Leung and G
that Mr Leung [ie the estate agent] would withhold the
relevant information from Ms Ho; ……” (my emphasis)
H H
I 125. The effect of such finding was to show there was no “fact or I
given to the clause as opposed to the plain and natural meaning as analysed
L L
by [the Court of Appeal] above. In other words, this is a case where a
M reasonable person, taking into account the factual background, would have M
U U
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A A
40. In any event, we are of the view that the judge was
B entitled to take into account of the knowledge of the B
[purchaser] as evidence of the ‘genesis’ and the ‘aim’ of
the transactions …… [the obligation of the vendor to
C show and give good title] is defined by cl. 30 and the C
Court could have regard to the objective fact that the
D [purchaser] was aware that there were problems about D
the physical state of the property stemming not only from
the [BO] ……” (my emphasis)
E E
F
126. In Ni Tiee Bor Robert & anor, the vendor and the purchaser F
entered into a PASP and a side agreement. The property was full of
G G
unauthorised structures and alterations of which the vendor was aware, and
H the very purpose of the side agreement was to make sure the purchasers H
upon by the vendor on its true construction can protect the vendor from
M M
challenge to the title, and it was held that if the wordings are wide and
N clear enough, there is no rule of law to say the vendor may not rely on the N
clause simply because he was aware of the defects which the clause is
O O
designed to cover (page 22). On construction of the side agreement, its
P effect was clear, ie “that the purchasers were still bound to accept the P
said that the width of the language adopted in the side agreement “had the
S S
effect of making the purchasers bear the full risks of the existence of any
T unauthorized or illegal structures even though they were not aware of those T
U U
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A A
D “In light of the width of the side agreement, I am of the view that D
the purchasers are not entitled to raise any requisition or
objection to title on account of the presence of any unauthorized
E alterations or illegal structures which had been found and E
identified by [the architect]. Even though these structures existed
F and were unauthorized, the purchasers must still complete the F
sale and purchase. Accordingly the side agreement was a
complete answer to the purported requisition raised by the
G purchasers in relation to these unauthorized alterations and G
illegal structures.”
H H
128. As for the purchasers’ knowledge, the learned judge held that
I I
they were probably aware through their own observation at the inspection
J that there were alterations other than those they had been told. They were J
told and shown, which formed part of the matrix of facts for the
M M
construction of the side agreement, the terms of the side agreement were
N such that would prevent the purchasers from raising any objection to the N
existence of all these alterations and would bind them to complete the sale
O O
and purchase despite the presence of these alterations” (my emphasis)
P (pages 22-23). It was held that since the purchasers were found to be aware P
U U
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A A
Ni Tiee Bor Robert & anor had actual knowledge of the defects in title, the
D D
corollary (ie a waiver clause will be ineffective merely because the
E purchaser had no knowledge of the particular UBW or “defect in title” in E
though the courts found the purchaser had the relevant knowledge,
H H
ultimately the decision turned on the construction of the waiver clause, and
I the purchaser’s knowledge merely formed part of the relevant factual I
130. This was the essence of the guidance of the Court of Final
L L
Appeal in Jumbo King Ltd (see paragraph 98(a) and (d) above). As to the
M factual situation in that case at the time when the parties entered into the M
P
unauthorised structures. The parties were contracting on that basis”, and P
hence the purchaser could not have been misled (page 769). This shows
Q Q
that the purchaser’s knowledge (whether actual or constructive) or
U U
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A A
131. I should also add that Mr Lau sought to distinguish the above
D D
authorities on the basis that whilst the purchasers in those cases had actual
E knowledge of the “defects in title” that were in issue, P in the present E
action was not specifically informed about the Alleged UBWs, and hence
F F
could not be said to have actual knowledge. As seen below, I find that even
G though P had no specific knowledge of the Alleged UBWs before she G
signed the Shop 4 PASP, she contracted on the basis that there might be
H H
UBWs at the Property and that she knew and understood from the Waiver
I Clause in the Shop 4 Appendix (in respect of which she had a bit longer I
agent working for D2) when he cold-called her in/about January 2011.
Q Q
Since then Tong took the initiative to keep P regularly informed about the
R Hong Kong property market by (a) updating her by telephone several times R
U U
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A A
and (b) furnishing her with information about property market trends,
B B
transaction records, and other property-related news. P admitted in
C evidence that Tong “教咗[P]好多嘢嘅”, and that she never refused his C
E 133. P said at the beginning her relationship with Tong was one of E
principal and agent, but as Tong managed to find and introduce to her
F F
properties with good investment returns (see, eg, the 1st, 2nd and
G 3rd Properties referred to in paragraphs 135, 136 and 143 below), P G
gradually treated him as a friend, and from time to time they talked about
H H
other matters.48 Tong introduced his then girlfriend (who also worked for
I D2 at the time) to P, and even consulted P on whether he should change his I
job.49
J J
K 134. In my view, as time went by, P and Tong got along very well. K
They became friends, and looked after each other in property investment
L L
endeavours. P introduced Tong to her “investment partners” and to her
M younger brother Mr Li Wai Keung (“Li”), and she and Tong collaborated in M
property investment with a view to make profit gain. I find on balance that
N N
notwithstanding P’s denial, she (supported by her estate agent Tong/D2)
O became a seasoned and adventurous dealer in real property with a number O
P
of property purchases/sales under her belt: P
Q
(a) As seen in paragraph 132 above, P welcomed and received regular Q
monthly updates on property market trends, property transaction
R R
48
eg P learned that Tong was divorced, that he lived with his mother and his
3 children, and that his younger brother did not live with them, and P felt Tong was a
S filial son S
49
P claimed she had a long talk with Tong about his intended career move, and Tong
eventually decided to stay with D2 who subsequently promoted him to a managerial
T T
post
U U
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A A
D (b) As seen below, within a period of 3 months from April to June 2011, P D
purchased the 1st, 2nd and 3rd Properties for investment purpose by way
E
of resale/letting. She even introduced Tong to Li and interested Li into E
purchasing the 4th Property referred to in paragraph 137 below, which
was directly above the 2nd Property that she bought. Then in
F F
September 2011, she again explored possible purchase of the 5th
Property referred to in paragraph 149 below, but was eventually out-
G bid by other potential purchasers. G
N (d) As P said, she and Tong looked out for each other. P (and presumably N
her “investment partners” as well) was eager to make property
O
investments with a view to earn profit gain, and Tong was equally O
eager to identify investment opportunities to meet P’s interest (and
thereby earn commission income for D2 if a deal was struck), and at
P P
times he even collaborated with P in property investment for profit
gain himself. Thus, when P claimed Tong struck her as honest and
Q hard-working, I find on balance this merely reflected Tong’s diligence Q
in introducing property investment opportunities and in providing
R property-related information to P, his collaboration in making R
property investment with P, and also his willingness to facilitate
S investment by his colleagues(s). S
T
(e) In my view, P was a venturous property investor who was into non- T
U U
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A A
consumer property dealing and who was not shy of entering into
B potentially risky property ventures, eg she was quite prepared to (i) B
purchase property with significant UBWs (such as the 2nd Property) or
C possible UBWs (such as the Other Property and the Property), and (ii) C
enter into property investments with “investment partners” who were
D unknown strangers (such as Tong’s mother for the 3rd Property and D
Tong’s colleague for the Property).
E E
F F
ST
VII. 1 PROPERTY
G G
st
135. The 1 property that P purchased through Tong/D2 was Unit
H No 36, 2nd Floor, Shing Yip Industrial Building, Nos 19-21 Shing Yip H
K
was as corporate vehicle established for the sole purpose of acquiring / K
st
holding the 1 Property for investment purpose. Although Promise Goal
L L
was a company founded by P and her “investment partner” Mr Ngai Chi
M
Hon (“Ngai”), in fact there were 3 “investment partners”, ie P, Ngai and a M
Mr Tsui who “…… 係冇落名嘅”. P said the 1st Property was purchased
N N
in the name of Promise Goal because “…… 呢個物業有三個 partner 喺入
O 面嘅, 如果[P]用[P]自己個名 …… 嘅話, [P]點同番啲人交代, 同埋嗰個 O
VIII. 2 ND PROPERTY
R R
136. The 2nd property that P purchased through Tong was 12th
S S
Floor, Union Industrial Building, No 116 Wai Yip Street, Kowloon (“2nd
T Property”). On 28 May 2011, P signed a PASP to purchase the 2nd Property T
U U
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A A
H
and purchase of such property between the owner and the vendor and the H
sub-sale and sub-purchase between the confirmor/vendor and the purchaser
I I
would be completed within the same day. The 2nd Property was eventually
J
taken up and acquired via another corporate vehicle called Joy Star J
Investments Limited (“Joy Star”), which P established to take up the
K K
assignment of and to hold the 2nd Property.
L L
nd
137. On the same day that P purchased the 2 Property, Li
M M
purchased the unit on the 13th floor directly above the 2nd Property
to inspect the 2nd and 4th Properties, but this was merely telling P the
Q Q
obvious because she could see for herself the opening/staircase between
R the 2nd and 4th Properties upon site inspection. R
S S
138. Tong told P (a) “……. 買番嚟之後, 叫[P]可以封番個頂 …
T …” at a cost of about $100,000-$200,000, and (b) “如果再唔還原,有 T
U U
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A A
H
嗰個價, [P]計埋嗰個數值落去, 減咗人哋$700,000 囉”) that took into H
nd
account the cost of potential reinstatement of the 2 Property, and (b) Tong
I I
told her the 2nd Property was well sought-after and would make a good
could still make a good deal from purchasing such property by negotiating
O O
a discount for the purchase price.
P P
140. P did not reinstate the opening/staircase between the 2nd and
Q Q
4th Properties because the tenancy for the 4th Property had not expired,
R “…… 郁動人哋嘅時候 , 係影響到人哋嘅” . About a year later, by a R
PASP dated 27 April 2012, Joy Star sold and Mr Leung Chung Ming or his
S S
nd
nominee(s) purchased the 2 Property. P definitely made profit gain from
T the 2nd Property as she secured a discount in price from the vendor but did T
U U
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A A
not incur the cost to reinstate such property for re-sale. Clause 21 of such
B B
PASP stated “See Rider (附件二) ……”, and Clauses 1-2 of Appendix 2 to
C such PASP (which P countersigned on behalf of Joy Star) provided that: C
H 141. P at first tried to (a) shy away from the fact that Clauses 1-2 of H
Appendix 2 of such PASP were by nature waiver clauses that she imposed
I I
on the purchaser upon re-sale of the 2nd Property to protect her interests as
J vendor, and (b) say such clauses only “…… 如實去話番畀人聽囉, 由佢 J
即係等於[P]買嗰時候, 知道 …… 釘契同埋要維修番條樓梯嘅責任囉
P P
……” (ie title problem and reinstatement cost), so she was constrained to
Q Q
agree that the effect of Clauses 1-2 of Appendix 2 to such PASP was to
R
ensure the purchaser could not claim against the vendor and/or could not R
refuse to complete the purchase by reason of such unauthorised alterations
S S
and/or UBWs, which clauses were necessarily for protecting P’s interests
T as vendor. T
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A A
142. P said when the purchaser inspected the 2nd Property, he was
B B
able to see for himself the staircase that connected the 2nd and 4th
C Properties, which UBW Joy Capital as vendor “ 如 實 披 露 ” (factually C
declined to inspect the 2nd Property before he signed such PASP, P frankly
F F
admitted she understood Clause 2 of Appendix 2 of such PASP meant “買
G G
之前[P]通知咗, 佢接受, 咪就 …… 佢負責囉”, “…… 佢唔睇樓佢嘅事
transaction (if not earlier) that (a) a waiver clause was for protecting the
I I
vendor’s interests, (b) if a purchaser was duly informed of the existence of
J unauthorised alterations and/or UBWs at the subject property by the terms J
of the PASP that the purchaser signed to accept they were within the
K K
“subject matter limits” of the waiver clause, the vendor would not be
L responsible for and the purchaser could not complain about such L
unauthorised alterations and/or UBWs, and (c) the position in (b) above
M M
was still applicable even if the purchaser chose not to inspect the property
N because he was already notified about such unauthorised alterations and/or N
P IX. 3 RD PROPERTY P
form) to purchase Unit No 16, 7th Floor, Wah Shing Centre, No 11 Shing
R R
Yip Street, Kowloon (“3rd Property”) for a consideration of $6,210,000. P
S said under cross-examination her impression (even though she did not S
remember clearly) was that the 3rd Property was purchased directly from
T T
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A A
agreement made between the Vendor and the Head Vendor”, and I find on
D D
balance it was a “confirmor transaction” with P as the sub-purchaser.
E E
144. Again, the 3rd Property was a partnership investment, but P’s
F F
evidence was unclear as to who exactly was her “investment partner”. P’s
G WS stated that P purchased the 3rd Property together with Tong who shared G
half of the purchase price, but P testified that from the beginning Tong told
H H
her “同[Tong]個媽媽合夥投資嘅, 但係[Tong’s mother]用[P]個名啫, 都
I 係 合 夥 投 資 ” . When pressed on such discrepancy, P professed not to I
J
know who her “investment partner” was, ie “ 其 實 [P] 都 唔 知 㗎 , … … J
145. This was the first time P made property investment jointly
R R
with Tong (or Tong’s mother), and she claimed she decided to help Tong
S S
T T
U U
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A A
(or Tong’s mother) buy half share of the 3rd Property (even though Tong
B B
himself would be embarrassed should his colleague find out) “…… 因為
C 好熟 ……, 同埋我覺得[Tong]好叻囉, 同埋對[P]都冇影響”, and P felt C
E 146. I find on balance P’s “investment partner” was Tong and not E
Tong’s mother, but Tong put forward his mother as the nominal
F F
“investment partner” to avoid embarrassment as he would be earning profit
G from the assured eventual sale of the 3rd Property to the client of his G
colleague. This sat well with my finding above that P and Tong looked out
H H
for each other over property investment opportunities. Moreover, P was
I I
assured of profit gain by way of the assured re-sale of the 3rd Property to
J
the client of Tong’s colleague, which probably explained why she was J
unconcerned over who exactly was her “investment partner” for such
K K
property investment. This, in my view, underlined the fact (which on
made upon such re-sale, and she shared such profit with Tong who asked
Q Q
her to issue a cheque in the sum of about $55,000 payable to his mother.
R R
S 50
eg finding out who exactly her “investment partner” was, speaking to and getting to S
know her “investment partner” whether nominal or otherwise, ascertaining the
financial ability and holding power of her “investment partner”, and getting details
T T
of the assured re-sale of the property
U U
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A A
148. P claimed the 1st and 3rd Properties had no illegal structures,
B B
and P’s WS stated she was able to sell such properties “without having to
C deal with any enquiries relating to any unauthorized structures of any kind C
X. 5 TH PROPERTY
H H
R
printed standard form together with an appendix that set out the occupancy R
status of the shops/units at the Head Property, including:
S S
(a) Units 4(A) and 4(B) were respectively leased to 李曉梅 at $14,500
T per month (from 4 March 2012 to 3 March 2013) and to Midland T
U U
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A A
C (b) Shop 6 was let to Ho Cheung Ltd at $19,800 per month (from 15 C
March 2011 to 14 March 2012);
D D
(c) vacant possession would be delivered for Store 4 and Store 6.
E E
F F
151. Then on 9 November 2012, Ho entered into the Head PASP to
G G
purchase from Max Rainbow the Head Property which comprised a large
H
number of shops/units at Phase 1 and Phase 2 of the Development of the H
Buildings (including the Other Property and the Property) for a
I I
consideration of $350,000,000 (without apportionment of the overall
(a) acquiring only the Head Property (and not any other property or
O O
project), (b) arranging sub-division of the Head Property with allotment of
P undivided shares for individual shops/units, and (c) sub-selling such sub- P
U U
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A A
M M
154. Nevertheless, Ho/D1 agreed to Clause 27 of the Head PASP
N N
which provided as follows:
O O
“The Purchaser has accepted the physical condition of the
Premises even if If any unauthorised or illegal structure or
P alteration exists in the said premises and/or any part or parts P
thereof, and the Purchaser shall without prejudice to any other
claims and remedies which he may have have no right to rescind
Q Q
the agreement to purchase the said premises for the aforesaid
reason”.
R R
Wong agreed the original intent of the printed term of this clause was to
S S
protect Ho/D1 as purchaser should unauthorised or illegal structures be
T found at the Head Property, and he understood the handwritten T
U U
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A A
N N
and took the commercial risk that there might be illegal structures and/or
T T
U U
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A A
UBWs at the Head Property such that it might have to acquire/hold the
B B
affected shops/units and not be able to quickly sub-sell or re-sell them, but
C this was not their core business concern when deciding whether or not to C
J (b) A land search was done for the Head Property, and Wong “…… 見到 J
U U
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A A
(ii) Wong checked the Phase 2 Floor Plans, and on his visit to Phase 2
S “…… 只不過係喺側邊行過望一望咁樣”, “…… [Wong]行過第二 S
期, 每一間嘅話都係一間獨立鋪、獨立錶、獨立水,咁變咗嚟計嘅
T 話, [Wong]覺得冇乜嘢咁嘅必要嚟到做一個咁深入嘅調查”, so he T
U U
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A A
H H
159. On balance, I find D1 did not inspect the Head Property
I I
(and/or its individual shops/units such as the Other Property and the
J
Property) to see whether or not there were illegal structures and/or UBWs, J
which was a considered commercial decision despite risk of possible
K K
presence of illegal structures and/or UBWs at such shops/units.
L L
160. The Shop 4 PASP did not refer to Units 4(A) and 4(B), and
M M
the Phase 2 Floor Plans only depicted a single Shop/Yard 4, but the street
N
view of Shop 4 and the Price List showed it was divided into Units 4(A) N
and Unit 4(B). I find on balance that up to the date for completion
O O
Wong/Ho did not ask for entry into the Property to check whether or not
T T
U U
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A A
161. Wong disagreed the partition wall between Units 4(A) and
B B
4(B) was an illegal structure: “…… 將個鋪頭分開咗嚟間, 嗰個有機會係
C 一個 drywall 牆, 唔係一個有結構性牆嚟嘅, …… 係咪可以拆咗佢, 因 C
partition wall were an illegal structure (which he disagreed), then (a) the
G G
tenants of Shop 4 would be affected if the new owner decided to remove
H such illegal structure and/or (b) D1 might have to acquire/hold the H
Property and not be able to re-sell the same. But still Wong considered it
I I
unnecessary to inspect the Property because this was an acceptable
J commercial risk that Ho/D1 had taken into account in deciding to purchase J
M
就當唔好彩喇, …… 咁樣 …… 咪當自己失策 ……”). M
N N
162. Wong explained (and on balance I accept) there was no need
T
was well aware, that it took into account, and that it was prepared to bear T
U U
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A A
consideration of $350,000,000.
D D
164. Thus, the salient factors Ho/D1 for deciding to purchase the
O O
Head Property would include the price offered and the price per sq ft, the
P land search (eg whether any building order or litigation was revealed), P
whether any bank was willing to grant mortgage for payment of the
Q Q
purchase price as well as the customer flow, environment and condition of
R the property: R
U U
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A A
D D
165. For like reasons, I also find on balance Ho/Wong did not
E inspect the Rear Lane even though Wong would have realised from the E
Phase 2 Floor Plans the presence of this open passage at the back of the
F F
street shops on G/F of Phase 2 of the Development of the Buildings. In
G fact, it was only in/about 2014 (ie after the issuance of the writ of G
H
summons in the present action on 4 August 2014) that Wong/D1 accessed H
the Rear Lane whereupon Wong discovered steel security cage for
I I
window-type air-conditioner at the rear window of Store 6 and metal sheet
J
canopy at the Shop 6 Yard (see Part XXIII below). Thus, I find on balance J
that at the time (a) when/before Ho signed the Head PASP and/or (b) up to
K K
the time when HCP disclosed the RHL Report to W&G, D1 had not
L inspected the Other Property and/or the Property, and D1 did not have L
actual knowledge (i) whether there were any illegal structures,
M M
unauthorised alterations/ additions and/or UBWs at the Head Property, and
N if so, the extent of any such illegal structures, unauthorised N
D1.
Q Q
Clause 27 of the Head PASP that there might be illegal structures and/or
S S
T T
U U
V V
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A A
UBWs at the Head Property, but for reasons explained above D1 did not on
B B
its own or engage surveyor to check whether there were in fact illegal
C structures and/or UBWs at the Head Property. Wong also understood that C
under Clause 28 of the Head PASP Max Rainbow agreed to permit Ho/D1
D D
or their authorised agents to view the Head Property and/or any part(s)
E thereof at all reasonable times of the day before completion (a) upon prior E
notice being given to Max Rainbow, (b) subject to the consent of the
F F
tenant(s), and (c) subject to a maximum of 5 times. But Wong said (and on
G balance I accept) that for reasons explained above D1 did not make G
167. In my view, for all the reasons discussed above, Ho/D1 was
J J
not commercially concerned over the terms of Clause 27 of the Head
K PASP, and did not exercise the right to seek inspection under Clause 28 of K
the Head PASP. On balance, I further find D1 as property investor was also
L L
comforted by the protection afforded by the Waiver Clause that it intended
M to impose on sub-purchasers by way of a standardised appendix to be M
R
inspect the Property. So I come to the inevitable conclusion that D1 did not R
S S
T T
U U
V V
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A A
wide and clear to cover the Alleged UBWs, or whether it was tricky, unfair
D D
or misleading. At the end of the day, this would be a matter of
E construction. E
F F
XII. SUB-SALE OF HEAD PROPERTY
G G
169. Soon after Ho entered into the Head PASP and pending sub-
H division of the Head Property, D1 began to sub-sell the individual H
could have approached Ho instead, but he had not heard Ho mention about
K K
having met Tong.
L L
170. There was no dispute that through the services of D2, D1 sub-
M M
sold and P sub-purchased the Other Property and the Property under the
N Shop 6 and Shop 4 PASPs, but D1 (including Wong) and P had not met N
before such PASPs were signed or indeed at any other material times.
O O
P 171. I find and accept that after the transaction in relation to the 5th P
U U
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A A
thereafter but before P entered into the Shop 6 and Shop 4 PASPs (which
D D
date D2 averred was 20 November 2012 – see paragraph 56(c) above),
E Tong arranged for a site inspection of the shops/units at Phase 2 of the E
front parts facing Tsuen King Circuit and their rear parts (including the
M M
Shops 4-6 Yards) facing the Rear Lane. Indeed, P was able to read the
N Phase 2 Floor Plans easily during cross-examination by identifying in the N
middle of the Phase 2 Floor Plan for G/F the larger rectangular shapes as
O O
Shops 4-6 and the adjoining smaller rectangular shapes at the back as
P Shops 4-6 Yards. I find on balance P did read and understand the Floor P
Plans, including the layout of the Other Property and the Property, which
Q Q
was why she countersigned the Phase 2 Floor Plans.
R R
173. On balance, I do not accept (a) P’s assertion that she signed
S S
the Floor Plans without any understanding of their contents (“睇唔到, [P]
T T
also Clause 6 of each of the Shop 6 and Shop 4 PASPs)
U U
V V
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A A
唔識睇”), (b) her claim that she only noted the Shops 4-6 Yards on the
B B
Phase 2 Floor Plans at trial and not when she signed the Shop 6 and/or
C Shop 4 PASPs, and (c) her belated explanation in re-examination that Tong C
did not explain the Floor Plans to her when he gave her a bundle of
D D
documents comprising the Floor Plans / Price List and merely told her to
E countersign the Phase 2 Floor Plans. E
F F
174. P’s WS stated Tong told P (a) there was an unauthorised
G partition wall that divided Shop 4 into Units 4(A) and 4(B), which units G
had been rented out so she could not inspect the interior of Shop 4, and (b)
H H
D1 had rented out Store 4 as a makeshift warehouse so she could not
I inspect the interior of Store 4, hence she did not have any opportunity to I
inspect the interior of the Property before she signed the Shop 4 PASP. But
J J
P testified under cross-examination that at the inspection in November
K 2012 she took the initiative to request inspection of the interior of the K
M 175. On balance, I find Tong did not arrange for P to inspect the M
interior of the Property, but in my view P was content with that and did not
N N
take any initiative to request for inspection of the interior of the Property at
O all: O
P P
(a) In my view, at the time of the inspection in/about November 2012, P
did not have the Property in mind as yet as a target property to be
Q acquired/purchased for investment purpose. This was borne out by the Q
fact that even after such inspection P did not express interest in the
R Property. Instead, according to D2’s pleadings (although I accept there R
was no direct evidence), P informed Tong after such inspection she
S was interested to sub-purchase Shop/Store 5 subject to S
lettings/tenancies, but it transpired such shop/unit had already been
sold. Further, even on P’s own case, after such inspection in/about
T T
U U
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A A
But even if I were wrong and P was already interested in the Property
F F
at the time of the inspection in/about November 2012, for reasons
explained in (b)-(d) below, I find it improbable that P would have
G taken the initiative to ask for inspection of the interior of the Property. G
H (b) During the inspection in/about November 2012, P viewed the exterior H
of inter alia the Property or its frontage that abutted Tsuen King
I Circuit (C/970). It would have been patently obvious from such I
viewing that Shop 4 had been partitioned into Units 4(A) and 4(B),
J
and they were respectively tenanted/occupied by a hardware/ J
plumbing store and by Midland Leasing. So quite apart from the
Partition Clause in the Shop 4 Appendix, P must have seen for herself
K K
and must have known there was a partition wall that separated
Units 4(A) and 4(B), and Units 4(A) and 4(B) were tenanted (which
L fact was also obvious from the Price List). L
M (c) As Wong testified52 (and I agree), had P been truly interested in the M
interior of the Property, she could have posed as a potential customer
N to enter the hardware/plumbing store and Midland Leasing as both N
shops were open to the public for business. There was no suggestion
O
of any impediment for P to enter these shops at Units 4(A) and 4(B) in O
such manner.
P P
(d) Whilst it was true that posing as a customer to enter Units 4(A) and
4(B) would not have enabled P to access the non-customer areas at the
Q Q
back of the shops (which Wong agreed “…… 都係要問 …… [the
tenant] 批准, 因為嗰個租客嚟㗎嘛”) and/or to access Store 4, the
R reality was P did not even make any attempt to enter the 2 shops on R
S
52
Wong said under cross-examination that “…… 鋪面嘅位置當然你可以裝作一個 S
客人係去到入去再視察喇”, “…… 譬如嚟講, 你入去話你要入去裡面 …… 買
五金嘅嘢, 我相信個老闆會畀你入去㗎喇。佢係一間美聯物業, 你話去裡面睇, 你
T T
話問物業資料, 我相信美聯物業亦都 welcome 畀你入去裡面㗎”
U U
V V
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A A
K K
176. P in her pleadings claimed that “[during] the said viewing”, ie
L the inspection in/about November 2012, she specifically questioned Tong L
M
whether there were any UBWs at the Property, and Tong told her there M
st
were none (ie the 1 Representation). But P’s WS (which P adopted at trial)
N N
stated that P questioned Tong whether there were other UBWs “concerning
O
the Property in addition to the unauthorised partition” to which Tong O
st
replied there was none (which presumably referred to the 1
P P
Representation made at the inspection in/about November 2012), and
Q further added that Tong told her there were some unauthorised alterations Q
located “on the outside” (ie “外圍”) but none was related to the Property
R R
(ie “就話有啲未經授權嘅更改, 不過佢哋全部都係喺外圍嘅, 而就唔關
S 4 號 鋪 [ie Property] 事 ” ). Again, for the reasons set out in paragraph S
U U
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A A
2012 P had any particular interest in the Property and/or Tong would have
B B
told P there were no unauthorised alterations that related specifically to the
C Property. C
D D
177. Interestingly, when P was questioned under cross-examination
E whether Tong pointed out to her the unauthorised alterations that he said E
H
講法唔係話「如果有機會」, 如果[Tong]講法話「外圍係有僭建㗎喎, … H
… 不過就唔係喺呢個物業[ie Property]裡面嘅, 但外圍有」”, and then
I I
went on to say she would have followed up and asked Tong about the
J illegal structures “on the outside”, but she did not do so during the J
inspection in/about November 2012 because Tong did not affirmatively say
K K
there were illegal structures “on the outside”.
L L
178. Such testimony, of course, did not sit well with P’s WS that
M M
claimed Tong did tell her there were (and not there were possibly) some
N unauthorised alterations “on the outside”. When P was confronted with N
such discrepancy, P baldly said the statement in P’s WS was wrong (even
O O
though it was verified by her own statement of truth and she adopted it in
P her evidence), and disagreed she learned from Tong there were in fact P
illegal structures (and/or UBWs) “on the outside” of the shops/units of the
Q Q
Buildings.
R R
U U
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A A
it was only after she realised the discrepancy in her evidence that she tried
D D
to switch attention to pipes/nails in the common parts of the Buildings
E (which areas were not necessarily “on the outside”), and (b) P E
J
outside” of the Property. J
L
representation about UBWs (other than the partition of Shop 4 into Units L
4(A) and 4(B)) at the inspection in/about November 2012 was inherently
M M
unreliable and unconvincing. On balance, I do not accept that at such
N
inspection in/about November 2012, Tong made the 1st Representation to P N
and/or told her there were no unauthorised alterations and/or UBWs that
O O
related to the Property.
P P
181. I further note C&A wrote to W&G on 19 May 2014 to put on
Q Q
record that “[prior] to signing of the [Shop 4 PASP], [Tong] represented to
R [P] that the “as is” basis refers to the external condition, not internal, of the R
[Property]” (see paragraph 51 above), but such letter did not assert Tong
S S
represented to P that none of the unauthorised alterations located “on the
T T
U U
V V
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A A
outside” related to the Property. Rather, P’s recognition of the “as is”
B B
condition that related to the external (not internal) condition “of the
C [Property]” was not inconsistent with the fact that the Alleged UBWs were C
“on the outside” of the Property. On balance, I find it was not at the
D D
inspection in/about November 2012 but just “[prior] to signing the [Shop 4
E PASP]” when (as seen in paragraphs 198-199 below) P had a bit longer E
discussion with Tong about UBWs and the Waiver Clause in the Shop 4
F F
Appendix that Tong told her there were unauthorised alterations (and/or
G UBWs) “on the outside” (see paragraph 200 below), but (as P herself G
L
to accept the external condition of the Property “as is”. L
in/about November 2012 Tong did not bring her to see the rear parts of the
N N
53
Property, and that she did not know to ask or did not think of asking Tong
O O
to bring her to the Rear Lane marked as “OPEN PASSAGE” on the Phase
P
2 Floor Plans. For the reasons explained in paragraphs 172-173 above, I P
find on balance P did read the Floor Plans, and was aware of the existence
Q Q
of the Rear Lane from such floor plans. But similar to my view that P did
U U
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A A
183. P also testified she did not know whether she could have
B B
accessed the Rear Lane even if she had asked Tong, but she later agreed
C with Ms Cheung’s suggestion during cross-examination that “…… 如 果 C
F
was in fact unaware of the Rear Lane at such inspection or at any time F
st
before she signed the Shop 4 PASP, and the 1 time she became aware of
G G
the Rear Lane was in/about April or May 2018 when C&A asked her to
H accompany D1 for a site visit to take photographs for the trial, and “……. H
in/about November 2012. But I accept on balance she was not concerned at
M M
the time to check out (and actually she did not check out) the rear parts of
N the Property, and she did not even try to go to the Rear Lane at all. Not N
having made such attempt at the time of the inspection in/about November
O O
2012, I find on balance P would not have known whether she could have
P accessed the Rear Lane via the Rear Lane Gate, via the small path next to P
S S
T T
U U
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A A
sometime after the issuance of the writ in the present action in August
D D
2014) (see paragraph 265 below). Indeed, Wong was only able to access
E the Rear Lane on that occasion via a small path next to Shop 10 because he E
J
interest to sub-purchase the Other Property of which Shop 6 was subject to J
letting/tenancy for the price of $11,532,960. P said she decided to sub-
K K
purchase the Other Property because Tong told her it was a good
L investment (ie “…… [Tong]曾經介紹過呢一個係一個好嘅投資物業喇 L
Q
fact a joint investment of several “investment partners” including P and Q
Fung Po Yin.
R R
S
186. Tong then prepared the Shop 6 PASP with the Shop 6 S
Appendix that contained the Waiver Clause54 and other terms, and such
T T
54
P admitted she knew the Shop 6 Appendix contained the Waiver Clause
U U
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A A
Confirmor and this Agreement is subject to the terms and conditions of the
J J
principal agreement made between [D1] and [Max Rainbow]” (ie the Head
K PASP). P initialled against such clause on the Shop 6 PASP at Tong’s K
the PASPs for the 2nd Property (see paragraph 136 above) and the 3rd
N N
Property (see paragraph 143 above) in respect of which P took no issue. In
O O
the circumstances, I find that even if P did not have actual knowledge of
P
the terms of the Head PASP, by Clause 6 of the Shop 6 PASP P confirmed P
and acknowledged she would be bound the terms in the Head PASP
Q Q
(including the restriction imposed by Clause 27 of the Head PASP – see
R paragraph 154 above). Given that P signed the Shop 6 PASP, that she well R
understood the meaning of Clause 6 of the Shop 6 PASP, and that there
S S
55
P also admitted she knew she had to pay the balance of the price and to complete the
T T
sub-purchase of the Other Property on/before 2:00 pm on 31 May 2013
U U
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A A
O 188. I pause to note here that Ms Cheung did not seek to rely on O
T T
56
(2006) 9 HKCFAR 334, 361-362 – not cited by Mr Lau or Ms Cheung
U U
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A A
the Other Property (if she knew the contents of Clause 27 of the Head
B B
PASP) and/or about possible restrictions in the Head PASP that might be
C imposed on her as sub-purchaser of the Other Property (if she did not C
F F
189. “另見一份附件” was written beneath Clause 20 of the Shop
G 6 PASP with P’s initials next to it. The annexure referred to the Shop 6 G
of the Waiver Clause, and (c) understood the Waiver Clause to mean “……
J J
買方, 即[P], 嗰陣時就係需要接受 6 號鋪[Other Property]狀況, 儘管嗰
K K
個鋪位裡面係可能會有僭建㗎喎”.
L L
190. Ms Cheung submitted (and on balance I agree) P’s sub-
M M
purchase of the Other Property was significant in 2 ways:
N N
(a) The sub-sale and sub-purchase of the Other Property reinforced the
fact that P was a seasoned dealer in real property (see paragraph 134
O above), particularly as P proceeded to sub-purchase the Property O
(which was near to the Other Property separated only by Shop/Store
P 5) in the same Phase 2 of the Development of the Buildings 6 days P
later on 28 November 2012 by entering into the Shop 4 PASP with
Q D1. Q
R
(b) The Shop 6 and Shop 4 PASPs in D2’s printed standard form R
contained similar/identical terms (see Schedules 2-3 to this
Judgment), and annexed thereto were the Shop 6 and Shop 4
S S
Appendices. The Shop 4 Appendix contained terms identical to those
in the Shop 6 Appendix, eg the Waiver Clause, which terms were
T imposed by D1 for incorporation into all PASPs for sub-sales of the T
U U
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A A
C C
G
同事」, [Tong] …… 話畀[P]聽可以分契轉讓畀[Tong]嘅同事”. Tong G
said his colleague wanted very much to have Store 4 for himself, and
H H
“…… [Tong]同[P]講就係買咗返嚟, …… 臨去簽大訂嗰陣時候, 咁就分
I 契, 可以喺簽完大訂嗰陣可以分契, 就轉讓番畀[Tong]同事, [Tong’s]同 I
it was not intended for P to sub-purchase the Property, and then to re-sell
L L
Store 4 to Tong’s colleague; rather “[Tong’s]意思係要一齊買, …… 用[P]
M M
間公司買, 買完返嚟, 跟住先至分契, 先至獨立[Store 4]畀[Tong’s]同事
N ”. N
O O
192. P therefore understood that after Shop/Yard 4 and Store 4
P were sub-divided, Tong’s colleague would take up and acquire Store 4 at P
價錢”. According to the Price List, the recommended price for Shop/Yard
S S
4 was 1,511 sq ft x $8,200 = $12,390,200, and that for Store 4 was 1,138
T sq ft x $4,000 = $4,552,000, totalling $16,942,200 for the Property (see T
U U
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A A
paragraph 55 above). But P claimed the prices Tong gave her were
B B
different, ie “閣樓[ie Store 4]總額係四百幾萬, 地下[ie Shop/Yard 4]係一
C 千一百幾萬, 加埋係一千五百幾萬”, which total price for the Property C
was about $1,000,000 odd less than the recommended overall price for the
D D
Property in the Price List, “…… 同呢度有啲出入”. In my view, this was
E unsurprising because the ultimate purchase price in the Shop 4 PASP was E
F
$15,247,980, which was less than the recommended price in the Price List F
of $16,942,200.
G G
193. P claimed that apart from asking P to help his colleague, Tong
H H
“……都會再同[P]分析番嗰個地方[ie the Property]嗰個優勢, 同埋都會
I I
重 新 講 一 次 嗰 個 地 方 嘅 好 處 … … ” But when pressed under cross-
J examination, P agreed the Property might lose “…… 嗰個地方嗰個優勢 J
Tong told her that (a) after the sub-division of the Property “[Tong] could
M M
make arrangement to let [P] have the title of Shop 4 only, and let his
N colleague to have the title of [Store 4]”, and she could easily re-sell N
another colleague of his was on the way to give D1 a cheque with a view
Q Q
to sub-purchase the Property.
R R
194. It was evident from P’s above account that from the very
S S
beginning P never intended to take up the assignment of the title to Store 4.
T Further, as Ms Cheung submitted and consistent with P’s modus operandi T
U U
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A A
when she purchased the 2nd Property, P was content not to meet with or
B B
speak to Tong’s colleague. Indeed, P confessed she did not even know the
C name or financial ability of Tong’s colleague who was supposed to acquire C
the title to Store 4 after the sub-division when she had to commit first to
D D
sub-purchase the Property by signing the Shop 4 PASP. More importantly,
E even though P said it was orally agreed via Tong that his colleague would E
take up and acquire Store 4 from her at the purchase price apportioned on
F F
the basis set out in the Price List, ie “…… 個單價有寫㗎, [Tong]畀嗰份
G 價單[ie Price List]裡頭閣樓[ie Store 4]同地鋪[ie Shop 4] …… 已經有個 G
H
價 錢 … … 閣 樓 [ie Store 4] 係 四 百 幾 萬 ” , there was no written H
record/confirmation of such agreement at all.
I I
J
195. When pressed as to why she was comfortable in dealing with J
a stranger whose name she did not know, whom she had never met, and
K K
who had not given any written confirmation to take up and acquire Store 4
quick turnaround and with the comfort of reduced financial exposure since
Q Q
she thought Tong’s colleague would take up and acquire Store 4. Indeed,
R P’s experiences with the 1st, 2nd, 3rd and Other Properties showed she was R
keen on property investment (ie property purchases and re-sales via Tong)
S S
with an eye to making profit on quick turnaround, and in my view her
T previous investment successes also led her to look forward to a similar T
U U
V V
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A A
D D
196. Thus, on the very same day of 28 November 2012, D1 as
E confirmor/vendor sub-sold and P as sub-purchaser sub-purchased the E
and the Partition Clause. P knew that under the Shop 4 PASP she had to
H H
pay the balance of the purchase price and to complete the sub-purchase of
I the Property on/before 2:00 pm on 31 May 2013. By the Shop 4 I
N N
197. Clause 6 of the Shop 4 PASP was similar in terms to Clause 6
O of the Shop 6 PASP (see paragraph 187 above) with the impact of O
R
as purchaser countersigned. P confirmed under cross-examination that she R
had read the Shop 4 Appendix (which terms were imposed by D1 for
S S
incorporation into the Shop 4 PASP), including the Waiver Clause (that
T was the same as the Waiver Clause in the Shop 6 Appendix) which she T
U U
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A A
Waiver Clause, and (b) P well understood the meaning of the Waiver
I I
Clause, Tong must have properly explained the meaning of such clause to
J her, which led to her full and correct understanding of the meaning and J
effect of such clause. I have also found that Tong told her during of such
K K
discussion that there were unauthorised alterations (and/or UBWs) “on the
L outside”. L
M M
199. P claimed that (a) she again “…… 咪問 …… [Tong]囉 ……
N 「喂, 佢話有僭建喎, 究竟有冇㗎?」” to which Tong replied there was N
none (ie the 1st Representation) and reiterated “…… 係外圍嘅嘢, 唔關個
O O
單位事嘅, 咁囉 ……”, and (b) “…… 反而係嗰個附件[Tong]有解釋過
P P
係例行, …… 嗰個都要簽㗎喇, …… 唔簽唔買得 [ie 2nd Representation]
U U
V V
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A A
also reject P’s evidence that even though she well understood the meaning
B B
and effect of the Waiver Clause she still signed the Shop 4 PASP because
C “…… [Tong]同[P]講話 4 號鋪[ie the Property]裡面冇僭建嘅 ……” In C
my view, as seen in paragraphs 189 and 197 above and paragraph 217
D D
below, it was obvious P well understood the Waiver Clause of the Shop 4
E Appendix meant “…… 4 號鋪[ie Property] 裡面或者外面 可能係會有僭 E
F
建嘅呢” (my emphasis). Given P’s clear understanding of such meaning F
and effect, and the fact she/Tong had not inspected the interior of the
G G
Property, I find it implausible for Tong to have made the 1st Representation
H
knowing that such representation was contradicted by the Waiver Clause H
(as well understood by P) that expressly left open the possibility of
I I
unauthorised alterations or additions at both the interior and exterior of the
J Property. Further, even if Tong did make the 1st Representation (which I J
disagree), I am not persuaded P would have been induced to rely on the 1st
K K
Representation when she clearly understood the meaning and effect of the
L Waiver Clause when she signed the Shop 4 Appendix. L
M M
200. As seen in Part XVI below, and given (a) P’s experience with
N and understanding of waiver clauses in relation to the 2nd Property and (b) N
her understanding of the meaning and effect of the Waiver Clauses in the
O O
Shop 6 and Shop 4 Appendices, she must have known such Waiver Clause
P in the Shop 4 Appendix were for protecting the vendor’s interests by P
U U
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A A
would have meekly accepted such representation and would have been
D D
induced thereby to enter into the Shop 4 PASP and to countersign the Shop
E 4 Appendix without challenging Tong given her understanding of the E
meaning and effect of the Waiver Clause. On balance, I find it more likely
F F
than not that in the course of the bit longer discussion between P and Tong
G on the Shop 4 Appendix with focus on the Waiver Clause and UBWs, Tong G
mentioned about unauthorised alterations “on the outside” but did not
H H
make the Representations, and such discussion resulted in P’s
I understanding of the meaning and effect of the Waiver Clause. I
J J
XVI. WAIVER CLAUSE
K K
201. Wong explained (and on balance I accept) D1 imposed the
L inclusion of the Waiver Clause concerning unauthorised alterations or L
additions and/or UBWs in all PASPs for the sub-sales of shops/units of the
M M
Head Property to align with Clause 27 of the Head PASP, so the Waiver
N Clause was included in the Shop 6 and Shop 4 Appendices annexed to the N
Shop 6 and Shop 4 PASPs. Wong said (and on balance I also accept) D1
O O
would not have agreed to sub-sell the Property to P without the Waiver
P Clause in the Shop 4 Appendix. P
Q Q
(a) Construction of the Waiver Clause
R R
202. Ms Cheung submitted that (a) the language and ambit of the
S Waiver Clause in the Shop 4 Appendix was abundantly wide and clear, (b) S
U U
V V
- 111 -
A A
H H
203. On the other hand, Mr Lau submitted that given Tong’s
I 1st Representation to P (ie the partition wall in Shop 4 was the only I
going to take in accepting the Waiver Clause”. On such basis, it was said
N N
the Waiver Clause was “tricky or unfair” or “misleading”, so D1 could not
O O
rely on it as answer to the requisitions raised about the Alleged UBWs, and
P
consequently D1 failed to show/give good title to the Property, and P was P
entitled to rescind the Shop 4 PASP.
Q Q
R
204. It is useful to note again (a) I have found D1 did not have R
actual knowledge of the Alleged UBWs, (b) I have found Tong did not
S S
57
“…… 存有任何未經屋宇署授權改建或加建部分 ……”
58
“…… 儘管屋宇署或其他政府部門有權對任何未經授權改建或加建部分作出追
T T
究,而令任何未經授權改建或加建部分構成上述物業的業權瑕疵 ……”
U U
V V
- 112 -
A A
make the Representations to P, and (c) it was common ground there was no
B B
misrepresentation given to P by Tong/D2 as agent for D1, so the vitality of
C the Waiver Clause essentially turned on its construction, and the court C
would look to see (i) whether its language was expressly wide and clear,
D D
and (ii) whether the Alleged UBWs fell within its “subject matter limits”,
E ie whether its language was sufficiently and expressly clear to E
H H
205. I start by saying I agree with Wong that the Waiver Clause
I was written in explicit and easy to understand language. This was obvious I
from the fact that P well understood the meaning and effect of the Waiver
J J
Clause (see paragraph 217 below). This was also obvious from the Waiver
K Clause itself which, for convenience, I adopt Ms Cheung’s breakdown of K
(a) 買方聲明事前已親身視察該鋪位並已諮詢獨立專業人士有關該鋪
M M
位的現時結構、狀況及內部間隔。
N N
(b) 買方滿意該鋪位目前狀況,儘管該鋪位存有: (i) 任何未經屋宇署
授權改建或加建部分及 (ii) 儘管屋宇署或其他政府部門有權對任
O 何未經授權改建或加建部分作出追究,而令任何未經授權改建或 O
加建部分構成上述物業的業權瑕疵,
P P
(c) 買方仍願意接受該鋪位業權,並將不會對該鋪位任何未經授權改
Q 建或加建提出業權上的質詢或反對,亦不會向賣方要求任何賠 Q
償。
R R
(d) 基於該舖位以現狀交易,若屋宇署、消防署或其他政府部門或該
舖位所屬樓宇的業主立案法團或管理機構在上述物業交易日或以
S S
前發出任何命令/通知或通過任何決議,要求賣方身為該舖位的
業主為該樓宇的公共地方及設施進行任何維修及翻新工程,或有
T 關工程付款,全部均由買方負責履行並負責因此而產生的費用及 T
U U
V V
- 113 -
A A
開支。
B B
C C
F
部分”), and (b) clearly spelled out the possible legal consequences of any F
unauthorised alterations or additions that would impact on the title to the
G G
Property, ie the relevant authorities might “ 作 出 追 究 ” (ie take
H enforcement actions) which consequently might constitute blots on title of H
K K
207. In my view, the construction of the “subject matter limits” of
L the Waiver Clause in paragraphs 205(b)(i) and 206(a) above in their plain L
Q
BD and in breach of the BO (since the BD is not empowered to authorise Q
any alteration or addition in breach of the BO) (see paragraph 118 above).
R R
In my view, the Alleged UBWs (which were actually structures) fell
U U
V V
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A A
208. But Mr Lau argued the Waiver Clause of the Shop 4 Appendix
B B
was “misleading” as it did not identify particular unauthorised alteration(s)
C or addition(s) at the Property when the Partition Clause of the Shop 4 C
aspects mentioned in the clause showed that the parties paid particular
H H
attention to these aspects, the fact that the agreement had failed to disclose
I the demolition order would render the clause not able to preclude the I
the Waiver Clause and the Partition Clause in the Shop 4 Appendix were
L L
drafted not as a single clause but as 2 separate clauses. The Partition
M Clause debarred P as sub-purchaser from raising requisitions/objections in M
relation to the partition wall between Units 4(A) and 4(B), and required P
N N
to take possession of Shop 4 in its “as is” condition at completion (ie “ 若
O O
該舖位因現時租客已將與其相鄰的舖位之間之分間牆拆除, 買方仍須
P 按完成交易時之狀況接收該舖位, 買方不得藉有關之分間牆狀況向賣 P
U U
V V
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A A
ambit of the Waiver Clause was much wider than just the partition wall. As
J J
Ms Cheung submitted, such construction was also bolstered by express
K references to “現時結構、狀況及內部間隔” and “未經屋宇署授權改建 K
L
或 加 建 部 分 ” in the Waiver Clause (see paragraph 205(a) and (b)(i) L
above). I cannot see how the Waiver Clause in its plain and ordinary
M M
meaning would be limited to the partition wall and not extend to other
R Health Food Ltd, I will deal with this shortly. Mr Lau’s submissions in R
paragraphs 203 and 208 above focused on condition 2(A) of the annex to
S S
the PASP in that case (see paragraph 111 and footnote 41 above). Godfrey
T Lam J at page 527 held that condition 2(A), which was a single clause that T
U U
V V
- 116 -
A A
external fitting condition of the shop premises” there was nothing other
D D
than the 3 matters specifically mentioned “in the clause” that the vendor
E knew as a fact to be unauthorised. This was considered misleading because E
there was no express language to make clear the 3 specific aspects were
F F
not an exhaustive list of all UBWs of the property. But here there was no
G subject matter limitation in the general Waiver Clause to any particular G
L
factual matrix discussed below, including P’s understanding from her L
property investment experience (see paragraph 134 above), and P’s
M M
understanding of the meaning and effect of the general Waiver Clause and
N
the specific Partition Clause (see paragraphs 217-228 below). N
O O
(b) Relevant factual matrix
S
the Property was part of the Head Property (ie shops/units in Phase 1 and S
Phase 2 of the Development in the Buildings that D1 purchased pursuant to
T T
U U
V V
- 117 -
A A
the Head PASP for investment purpose by way of sub-sale and failing
B B
which by way of letting), and (c) completion for the purchase of the Head
C Property and sub-purchase of the Property was to be done on the same day C
(ie 31 May 2013). Thus, when D1 and P entered into the Shop 4 PASP,
D D
Max Rainbow’s sale and D1’s purchase of the Head Property (which
E included the Property) was still in its infancy. D1’s confirmor sale of the E
J J
213. Further, for reasons canvassed in paragraphs 155-168 above,
K D1 as property investor was more concerned with the asking/offer price, K
P
Property) did not inspect the Property at all on/before the date for P
completion even though Ho/Wong visited Phase 1 and Phase 2 of the
Q Q
Development of the Buildings before Ho signed the Shop 4 PASP. Thus, I
R have found D1 only knew of the partition wall between Units 4(A) and R
4(B) (see the Price List at paragraph 55 above and paragraph 150 above),
S S
but had no actual knowledge of the Alleged UBWs. Nevertheless, D1 as a
T reasonable and prudent confirmor/vendor alerted P as purchaser that the T
U U
V V
- 118 -
A A
Shop 4 PASP was a confirmor sale (see Clause 6 of the Shop 4 PASP) and
B B
that there were possibly unauthorised alterations or additions at the
C Property (see the Waiver Clause of the Shop 4 Appendix), which clauses C
were clearly worded and well understood by P (see paragraph 217 below).
D D
On balance, I find D1’s reliance of the Waiver Clause in the Shop 4
E Appendix could not to be said to be tricky, unfair or misleading. E
F F
214. P confirmed she understood the meaning and effect of the
G Waiver Clause in the Shop 4 Appendix (see paragraph 217 below), so she G
effect of the Waiver Clause in the Shop 4 Appendix and/or (b) D1’s
J J
reliance on such clause was unfair to her.
K K
R
knew full well there were illegal structures and/or UBWs. In my view, her R
overriding consideration was to secure good property investment with
S S
probable profit return upon quick turnaround. This driving consideration
T
led her to become close with Tong whom she thought was quite smart in T
U U
V V
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A A
finding properties with good investment returns for her, and to ignore
B B
cautionary prudence such as knowing the identity and/or financial ability
C of her “investment partners” for, say, the 3rd Property and the Property. C
D D
216. Plainly, P purchased the Other Property and the Property for
E investment purpose, ie to re-sell such properties with a view for profit gain, E
Appendix, and in particular she understood the Waiver Clause in the Shop
J J
4 Appendix to mean “…… [P]買之前[P]睇咗㗎喇 ”, “…… 4 號鋪[ie
K Property]裡面或者外面可能係會有僭建嘅呢”, “…… 可能有僭建, … K
L
… 所以好有可能會受到屋宇署或者政府部門有呢個命令或者佢會作 L
出追究 ……”, “…… [P]買咗[P]就唔可以就話唔買, 或者嘈㗎喇”.
M M
She also understood the Waiver Clause of the Shop 6 Appendix (which was
U U
V V
- 120 -
A A
additions, and (d) she would not take issue with or refuse to complete the
B B
sub-purchase by reason of any such unauthorised alterations or additions.
C In light of (b) above, I reject P’s evidence that whilst she understood the C
contents of the Waiver Clause, she did not appreciate the Property might
D D
have illegal structures or unauthorised alterations/additions. I also find P
E also understood that the presence of unauthorised alterations or additions at E
the Property (if any) could constitute a blot on title (see also paragraph 138
F F
above).
G G
218. P claimed the Waiver Clause in the Shop 4 Appendix did not
H H
reflect the truth because before she signed the Shop 4 PASP (a) she did not
I inspect the interior of the Property and (b) she did not seek professional I
advice from, say, solicitors or surveyors. But I cannot see how such
J J
argument would assist P. Under the doctrine of contractual estoppel, where
K the terms of the agreement assume or stipulate a certain state of affairs to K
be the case, the parties will be bound to proceed on the basis that this is the
L L
position for the purposes of the agreement, whatever the true state of
M affairs may be as a matter of actual fact. In Nokia Corporation v TCT M
P
as follows: P
S
59
CACV191/2014 (unreported, 6 March 2017) – not cited by Mr Lau and Ms S
Cheung
60
[2006] 2 Lloyd’s Rep 511
T T
61
[2010] 2 CLC 705
U U
V V
- 121 -
A A
62
see also DBS Bank (Hong Kong) Ltd v Sit Pan Jit HCA382/2009 (unreported, 2
T T
April 2015) paras 312-352
U U
V V
- 122 -
A A
have found Tong did not make the Representations. Further, when P re-
H H
sold the 2nd Property to Mr Leung Chung Ming, she understood that similar
I waiver clause she imposed on the purchaser was still valid and effective I
even if he chose not to inspect the 2nd Property (see paragraph 142 above).
J J
I have also found that for the reasons set out in paragraph 175 above P did
K not ask to view the Property at the inspection in/about November 2012. In K
L
my view, all of the above matters showed (and on balance I find) that P L
was prepared to accept the shifting of risk of possible unauthorised
M M
alterations or additions (and/or UBWs) at the interior or exterior of the
N
Property to her without actual inspection of the Property, and that she was N
therefore unconcerned over agreeing to the state of affairs set out in the
O O
Waiver Clause in paragraph 205(a) above. There is no merit in this
P complaint. P
Q Q
220. Further, even though P engaged HCP to handle the
U U
V V
- 123 -
A A
alterations or additions and/or UBWs at the Property. P claimed she did not
B B
know she could ask HCP to check with D1 whether the Property had any
C illegal structures and/or UBWs. But as explained in paragraph 148 above, C
P herself claimed that she as vendor was able to sell the 1st and 3rd
D D
Properties “without having to deal with any enquiries relating to
E unauthorised structures of any kind from the purchasers’ solicitors. As I E
have found, this clearly showed P knew a purchaser could via his solicitors
F F
raise requisitions about UBWs with the vendor via his solicitors (see
G paragraph 148 above). I find on balance P did not so raise requisitions G
L
additions and/or UBWs (if any). Indeed, it was only quite shortly before L
the date for completion of the sub-sale and sub-purchase of the Property
M M
that P commissioned RHL to carry out a survey of the Property, but I will
N
deal with P’s motivation for such survey below. N
O O
221. P tried to shy away from the effect of the Waiver Clause of the
P
Shop 4 Appendix which she well understood by claiming Tong told her P
that the Waiver Clause was included in the Shop 4 Appendix because the
Q Q
Head Property had to be sub-divided into individual shops/units for sub-
R sale and there were unauthorised alterations at other parts of the Head R
Property. Whilst I have found Tong did mention to P about unauthorised
S S
alterations “on the outside”, I cannot see how the sub-division of the Head
T T
U U
V V
- 124 -
A A
222. Indeed, P was not unfamiliar with the use of waiver clauses in
D D
the sale and purchase of properties with illegal structures and/or
E unauthorised alterations/additions. A waiver clause was incorporated by E
the vendor in the PASP when P purchased the 2nd Property, and she later
F F
incorporated a waiver clause in the PASP when she re-sold the 2nd
G Property. P was well aware such waiver clauses (including the Waiver G
unauthorised alterations/additions.
N N
R
and/or UBWs “on the outside” (外圍) before she signed the Shop 4 PASP. R
Indeed, P claimed she would not have signed the Shop 4 PASP if Tong had
S S
not repeatedly assured her the unauthorised alterations were “on the
U U
V V
- 125 -
A A
Tong had made the 1st Representation (which I disagree), there was no
D D
suggestion at all that they were made on behalf of D1. In any event, the
E fact P did not inspect the interior of the Property was neither here nor there E
F
because the Alleged UBWs were located “on the outside” ( 外 圍 ) of the F
Property.
G G
H
224. P said she asked Tong why the Waiver Clause formed part of H
the Shop 4 PASP, and Tong told her every sub-purchaser of an individual
I I
shop/unit of the Head Property would have to sign an appendix like the
J
Shop 4 Appendix which was just a formality, and P reiterated in re- J
examination that at the time when she signed the Shop 4 PASP, “…… [P]
K K
嘅理解係係必須要簽 [Shop 4 Appendix], …… 例行手續囉, 咁所以我會
L 問多句[Tong], 就「有冇問題㗎?」[Tong]答[P]「冇, 呢啲例行嘅啫, 好小 L
Shop 4 Appendix) were standard terms, and (b) P’s right to demand D1 to
O O
prove/give good title in respect of the Property would not be
P circumscribed. On balance, I do not accept Tong made such representation, P
especially in light of P’s overall lack of credibility and when Tong well
Q Q
knew (i) P’s experience with and understanding of the imposition of
R Clauses 1-2 of Appendix 2 annexed to the PASP for the re-sale of the 2nd R
U U
V V
- 126 -
A A
any event, D1 could not be faulted on this when there was no suggestion
B B
that Tong made the 2nd Representation (which I disagree) on behalf of D1.
C C
225. In short, what it boiled down to was that P alleged she signed
D D
the Shop 4 PASP and the Shop 4 Appendix (that included the Waiver
E Clause) because she trusted Tong whom she thought was honest, reliable E
understood the purpose of such Waiver Clause was to protect D1 and not
H H
her. But on balance, whilst I accept Tong and P looked out for each other
I over property investments, I do not agree P entered into the Shop 4 PASP I
and the Shop 4 Appendix merely because she trusted Tong. I find that
J J
whilst she understood the meaning/effect of Shop 4 PASP and the Shop 4
K Appendix (including the Waiver Clause and the Partition Clause), she was K
P
to the Property and their legal consequences. P
R
signing the Shop 4 Appendix P as sub-purchaser accepted the risk of R
possible unauthorised alterations or additions and/or UBWs at the
S S
Property, that P’s refusal to complete the sub-purchase of the Property by
T
reason of the Alleged UBWs flied against her acknowledgment/waiver in T
U U
V V
- 127 -
A A
the Waiver Clause in the Shop 4 Appendix, and that D1 should not be held
B B
liable to P who was precluded by such Waiver Clause from complaining
C about the Alleged UBWs or using the Alleged UBWs as excuse not to C
additions. I further find P’s subjective contentions would not sway against
J J
such conclusion in light of her relevant experience and the objective
K factual matrix. K
L L
XVII. PARTITION CLAUSE
M M
228. P agreed the Shop 4 Appendix (including the Partition Clause)
N was to protect the interests of the vendor, and she knew the Partition N
Q
就 話 唔 買 , 或 者 嘈 㗎 喇 ” , but I find she was unconcerned over such Q
provision and was prepared to complete the sub-purchase of the Property
R R
notwithstanding the presence of the partition wall between Units 4(A) and
S 4(B). S
T T
U U
V V
- 128 -
A A
229. P claimed that after she signed the Shop 4 PASP, she asked
C C
Tong if she could inspect the interior of the Property, but he replied he did
D not have the keys. But Tong arranged for a Ms Ho of Midland Realty D
(“Ms Ho”), ie the estate agent for the registered owner Max Rainbow, to
E E
accompany P to inspect the Property. P claimed under cross-examination
F that at the end of December 2012 she (with “…… [P]唔識嘅業主、嗰個地 F
to “the shops on the [G/F] during the visit as the [G/F] was still occupied
I I
by the tenants”. In my view, since the reason (as given by P) for being
J unable to inspect Shop/Yard 4 was that “it was still occupied by the J
K
tenants”, the only reason must be that consent was not forthcoming from K
the tenants, especially when the inspection was arranged by the estate
L L
agent of Max Rainbow, the registered owner and landlord of such tenants,
M
which showed Max Rainbow did not stand in the way of inspection of the M
Property. Indeed, I note that even when RHL carried out their survey. On
N N
24 May 2013, Midland Leasing still refused entry to Unit 4(B). In the
O circumstances, I find P’s complaint about not being able to inspect the O
interior of the Shop/Yard 4 before signing the Shop 4 PASP would not take
P P
her case against D1 any further when even up to December 2012 no
Q consent was forthcoming from the tenants for such inspection. Q
R R
230. Interestingly, neither Tong nor his colleague who was
S interested to take up and acquire Store 4 attended the inspection in S
December 2012, and there was no evidence that P ever asked Tong why he
T T
U U
V V
- 129 -
A A
and/or his colleague did not attend such inspection. Anyway, by the time of
B B
such inspection, P had already signed the Shop 4 PASP and expected
C Tong’s colleague to take up and acquire Store 4 (whatever its condition) C
from her, so she did not expect to be the ultimate owner of Store 4. Thus, P
D D
confessed she inspected Store 4 merely out of curiosity and the focal
E purpose of such inspection was to view the Other Property, “…… 冇理由 E
H 即係一個人企到上去㗎?」佢話一定夠, 咁[P]咪去睇一睇囉。安排咗好 H
and in any event, I find on balance that P did not intend to check out any
K K
possible UBWs because she understood and was content with the terms of
L the Waiver Clause. In my view, she was unconcerned with the physical L
state of the Property, and merely had a look at Store 4 out of curiosity and
M M
to have an idea of the height of the ceiling. Indeed, it appeared Tong’s
N colleague was also unconcerned and did not attend the inspection as, N
S
“…… 擺滿晒所有嘅雜物响度 …… 得番個細細嘅中間位可以企人 S
喇” even though it was not let (ie “…… 雖然[Store 4]有雜物又好, 定有
T T
U U
V V
- 130 -
A A
there were windows at the front and rear parts of Store 4, but she claimed “
D D
基本上好似[P]話上到去係睇唔到窗嘅, …… 擺到滿晒㗎, [P]係 ……
E 睇唔到嘅, 得番中間個位置㗎咋”, and she could not see any Cage UBW E
(which was said to be affixed to the rear window of Store 4) because “……
F F
呢個份體冷氣機同埋 …… 閣樓[is Store 4]外嗰個鐵籠 …… 因為擺滿
G G
晒雜物, 得番中間位, 因為 …… 佢[ie Ms Ho]同[P]講嗰個就借咗畀業主
H 個朋友擺雜物”. In my view, this was significant because even if P had H
inspected Store 4 before she signed the Shop 4 PASP (which she did not),
I I
she would not have found out about the Cage UBW. I am not persuaded
J that P’s complaint about not being able to inspect the interior of Store 4 J
before 28 November 2012 took her case against D1 any further. Further,
K K
even though P testified that Tong already told her “…… 或者係有機會喺
L 外圍有僭建喇嘛”, she did not ask Ms Ho “「可唔可以畀我睇下, …… L
M
我想睇一睇出面個情況係點樣,…… 因為我有啲擔心係關於僭建 M
喎 」 ” . In my view, P’s evidence supported my finding that she was
N N
unconcerned with unauthorised alterations or additions and/or UBWs at
O
Store 4 and/or the Property because she well understood the meaning and O
effect of the Waiver Clause to which she agreed.
P P
Q
XIX. TONG’s COLLEAGUE RESILED FROM STORE 4 Q
232. Tong’s colleague never contacted P after she signed the Shop
R R
rd
4 PASP, and as in the case of the 3 Property in which P never met her “co-
S S
investor” being Tong’s mother, P had no idea who Tong’s colleague was
T
and had never met him. P’s intended “transfer” of Store 4 to Tong’s T
U U
V V
- 131 -
A A
colleague for about $4,000,000 odd (but P never gave a precise amount in
B B
her evidence) upon sub-division of the Property fell through.
C C
with Ms Ho and not Tong on the sub-division issue. P said Tong told her
J J
arrangements would be made for sub-division of the Property after she
K signed the Shop 4 PASP, so after signing the Shop 4 PASP P telephoned K
佢分唔到契, 之後就唔到呢個叫做咩嘢話?買賣合約”.
T T
U U
V V
- 132 -
A A
H
(b) “…… 唔知[P]打畀[Tong]定[Tong]打畀[P], 傾開計就話「嗰度律師 H
話分唔到契, 所以我個同事要唔到, 妳要埋佢喇, 好唔好?」[P]話
I
「吓? 哦。」同埋 …… 傾下啲閒計,…… 佢工作上嘅嘢喇 ……”, I
“…… 諗番我都覺得好奇怪,我自己都覺得 ……”
J J
O
both Shop/Yard 4 and Store 4 upon completion of the sub-purchase of the O
Property as Tong’s colleague would not take up and acquire Store 4, but as
P P
she had already signed the Shop 4 PASP she did not have much choice, ie “
R R
237. But later on 9 May 2013, the Lands Department approved the
U U
V V
- 133 -
A A
to mid-June 2013 when completion finally fell through HCP/C&A did not
D D
tell her whether the sub-division of the Head Property was successful, but
E she later agreed “…… [P]有少少混淆 …… 尾後分契成功喇” before E
G XX. RHL G
the Other Property and the Property on 24 May 2013, ie about a week
Q Q
before the date for completion) (a) she “…… 應該係知道分契成功” (ie
R R
the sub-division of the Property was successful), and (b) during the period
S
from when she first learned that the sub-division of the Head Property was S
successful until she approached RHL she was unaware of any other
T T
U U
V V
- 134 -
A A
problem that would have prevented completion of the sub-sale and sub-
B B
purchase of the Property between her and D1. In such circumstances, P
C should have been quite relieved because the only outstanding hurdle that C
F F
240. In my view, P’s decision to commission RHL to conduct a
G survey of the Property was quite inexplicable on her own case, and I find G
(c) but when Tong’s colleague resiled from such understanding, she knew
M she had no choice under the Shop 4 PASP but to take up and sub- M
purchase the entire Property (including Store 4), which was against
N her original intent and she was reluctant to do so; N
(e) such hope was dashed when the sub-division was successful by 9 May
Q Q
2013;
R (f) she then because anxious to see whether there could be any other R
excuse to ground her intention not to sub-purchase the Property (as
S she all along did not want to take up or acquire/hold Store 4), so she S
engaged RHL to check the physical state of the Property;
T T
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A A
(g) had she been genuinely concerned with the physical state of the
B Property, she would have commissioned surveyor inspection much B
earlier than 1 week or so before the date for completion (eg at least by
C December 2012 (if not earlier) when she herself carried out C
inspection).
D D
E E
241. The above finding is, in my view, consistent with P’s
F F
admission under cross-examination that the only reason why she did not
G complete the sub-purchase of the Property was because she commissioned G
RHL to conduct a survey of the Property, and the RHL Report reported the
H H
Alleged UBWs at the Property.
I I
Q Q
243. I find P’s explanation about why RHL could not inspect Store
with Ms Ho who acted for the registered owner / head vendor, and the
S S
Price List showed that vacant possession of Store 6 was to be delivered
T upon completion of the sub-sale and sub-purchase of the Other Property in T
U U
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A A
proper inspection when RHL found the Alleged UBWs at the Property and
D D
told her they suspected there were UBWs at the outside of the Other
E Property (ie “[RHL]話睇到外圍嗰度, 懷疑有 ……”). In my view, the E
H
Property]嗰啲嘢, 睇一睇嘅啫, 順便, 驗開[the Property]”. In my view, H
whilst P had every intention to complete the sub-purchase of the Other
I I
Property so there was no need to see for herself (via her agent RHL) the
J physical condition of the Other Property, P was keen to check the physical J
state of the Property for an excuse not to complete the sub-purchase, so she
K K
liaised with Ms Ho to let RHL inspect the Property.
L L
244. When pressed under cross-examination on whether RHL
M M
reported any UBWs were observed in relation to the Other Property, P
N testified that “[RHL]話睇到外圍嗰度, 懷疑有 ……”, and said “…… 有 N
6 Yard that was similar to the Canopy UBW albeit made of metal sheet
Q Q
rather than concrete.
R R
U U
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A A
Shop 6 Yard. Whilst the metal sheet canopy at the Shop 6 Yard was still
D D
there when photographs were taken in April 2018 (see paragraph 95(c)
E above), the steel security cage similar to the Cage UBW was no long E
G 246. P had not met RHL’s surveyor. At first she said she had not G
spoken with him by telephone, but later said she could not remember
H H
whether she did so or not, and still later said she had a telephone
I conversation with him after his inspection. However, although RHL I
she could view such photographs, and/or (b) ask to visit the Other Property
L L
to view the canopy structure at the Shop 6 Yard for herself, especially
M when RHL reported that its surveyor could not enter the Other Property at M
all and could not be certain whether there were any UBWs (although RHL
N N
suspected there were). But even more interestingly, P did not take issue
O O
over (i) the canopy structure at the Shop 6 Yard and/or (ii) other suspected
P
UBWs at the Other Property (eg possibly the Cage UBW at the rear P
window of Store 6), and instead proceeded to complete the sub-purchase of
Q Q
Other Property on 31 May 2013.
R R
247. When pressed on why she completed the sub-purchase of the
S S
Other Property, P said “…… 因 為 [Ms Ho] 冇 提 過 6 號 鋪 [ie Other
U U
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A A
Ms Ho’s assertion that the Other Property had no problem when RHL
D D
found the Alleged UBWs at the Property and told her they suspected there
E were UBWs at the outside of the Other Property (ie “[RHL]話睇到外圍嗰 E
F
度 , 懷 疑 有 … … ” ). In any event, RHL told her there was a canopy F
structure in the open rear yard of both the Other Property and the Property
G G
(irrespective of their construction materials), and it appeared even on P’s
H own case she was not really concerned over the existence of such canopy H
structures but over the economic cost of possible reinstatement. In my
I I
view, P took such view because she was well aware and understood the
J meaning and effect of the Shop 6 Appendix (including the Waiver Clause), J
and decided not to take issue with such structure at the Other Property.
K K
at the open area of the Shop 4 Yard (ie the Canopy UBW). P said for the
M M
Canopy UBW at the Property “…… [RHL]話係石屎吖嘛” even though
N the RHL Report made no mention of its construction material. Again, P did N
not ask RHL for photographs (if any) of the Alleged UBWs, and she did
O O
not ask for personal inspection of the same.
P P
would complete the sub-purchase of the Other Property), and the reason
S S
she gave under cross-examination was as follows:
T T
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A A
I I
250. P’s allegation that she declined to complete the sub-purchase
J of the Property because Ms Ho told her there were “problems” with the J
window of Store 4 could not affect the internal layout of Store 4. When Ms
M M
Cheung tried to get P to clarify under cross-examination how her other
N complaint (ie the Canopy UBW) would affect the layout of the Property, P N
O
reiterated “[Ms Ho]話係前面嘅中空 …… [Ms Ho]講緊前面嘅中空”, O
sure Ms Ho was talking about the front part of Store 4 (ie “…… 前門呢一
R R
面嘅 前面喇 ” ). In my view, it was obvious from such explanation that
S S
what Ms Ho said about Store 4 could not be used as an office because “中
U U
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A A
outside Store 4 in the open area of the Shop 4 Yard, and when pressed P
B B
was constrained to accept this. Anyway, when on P’s case Ms Ho told P
C over the telephone “…… 前面嗰度中空㗎, 要拆咗佢先得㗎 ……”, P C
had not yet even engaged RHL so she was unaware of the Alleged UBWs
D D
at the time. Nevertheless, P claimed “…… 係兩樣加埋嘅時候令到[P]更
E 加驚”, “…… 諗番轉頭覺得[Tong] …… 之前鋪排嘅嘢, [P]覺得越嚟越 E
F
有可疑, 令到[P]心更加唔舒服, 更加驚 ……”. In my view, when P said F
240-241 above.
I I
Store 4) and to inspect this at Store 4 on 24 May 2013, (b) Ms Ho to let her
M M
personally inspect the Property (or at least Store 4) herself in the
N circumstances, and (c) Tong and/or HCP to follow up on this with D1 on N
her behalf. P said she did not liaise with her own estate agent Tong on this
O O
“…… 因為當時, …… [P]個心已經覺得好唔舒服喇, …… [P]已經起疑
P 心喇, 點解會咁樣呢?” I am not persuaded by P’s explanation. With an P
Q
imminent date for completion, any sensible purchaser would try to find out Q
and raise concerns with his own estate agent and his solicitors to see if the
R R
issues could be resolved. In my view, P did not do so because she was
S
reluctant to complete the sub-purchase of the Property, and was content to S
seize on any available excuse not to complete.
T T
U U
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A A
252. When P was shown photographs of the Alleged UBWs (ie the
B B
Cage UBW and the concrete Canopy UBW) under cross-examination, she
C testified that she suspected there were other UBWs at the Property, but C
gave no grounds for such belief. I am not satisfied on balance that there
D D
were any other structures and/or UBWs that could be the subject matter of
E complaint. Further, on balance, I reject P’s evidence that Ms Ho told her “ E
H H
XXI. ALLEGED UBWS
I I
253. Mr Lau in his closing submissions argued that as a matter of
J fact the Alleged UBWs being “unauthorised structures” constituted a blot J
on title and justified P’s rescission of the Shop 4 PASP. When asked how
K K
he would define “unauthorised structures” for the purpose of establishing
L the same as a matter of fact, Mr Lau submitted they would be structures L
that were not permitted under the BO and not authorised by the BD and/or
M M
BA.
N N
254. Mr Lau agreed (as he must since the court had not granted any
O O
expert directions) the RHL Report was not any expert evidence, but
P suggested it was still evidence for the court to consider along with all other P
S
whether it was established beyond reasonable doubt that P as purchaser S
would not be at risk of any successful action against her by the BD and/or
T T
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A A
BA and she might safely be advised to disregard the risk.63 Mr Lau also
B B
noted the observations by Rogers J in Citiward Ltd v Tai Ping Wing64 that
C even if the risk of enforcement in relation to the unauthorised structures is C
low, the purchaser is entitled to be cautious, and good title may not have
D D
been made out.
E E
255. Ms Cheung took a pleading point on the basis that there was
F F
no plea by P that as a matter of fact the Alleged UBWs were “unauthorised
G structures” that constituted a blot on title and therefore justified rescission G
I 256. The only evidence before the court that had any relevance to I
this issue was the RHL Report and the photographs referred to in
J J
paragraph 95 above, but the photographs were not taken
K contemporaneously. Mr Lau did not articulate how the Alleged UBWs K
infringed the BO (indeed Mr Lau did not refer me to any provision in the
L L
BO that was said to have been infringed), and did not explain how they
M were not authorised by the BA or BD, which presumably meant they were M
R R
257. Ms Cheung noted that even if the Alleged UBWs were found
S to be “unauthorised structures”, not all “unauthorised structures” are S
63
see Spark Rich (China) Limited at paras 10-11
T T
64
[1995] 2 HKC 181, 185
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A A
factual, before this court as to (a) any enforcement action that had been
P P
taken in resepect of the Alleged UBWs by the BA, BD or any other
Q Government department in respect of the Alleged UBWs, and (b) the risk Q
U U
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A A
on D1’s title to the Property was in fact neither here nor there because D1
B B
was content to assume the Alleged UBWs were “unauthorised structures”
C for the purpose of construction of the Waiver Clause in the Shop 4 C
ultimately the focal issue was the construction of the Waiver Clause, and
H H
“[it would burden this judgment unnecessarily by considering whether the
I presence of unauthorised structures within the premises agreed to be sold I
L
correct when they found for the vendors on the basis of cl. 18(e)”. L
UBWs until they were revealed in the RHL Report. But P alleged Tong as
O O
estate agent acting for her and D1 must have known there were UBWs at
P the Property beyond the unauthorised partition wall at Shop 4, and Tong P
U U
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A A
D1 did not have any actual knowledge of the Alleged UBWs. In my view,
B B
there was also insufficient evidence to show Tong/D2 had any actual
C knowledge of the existence of the Alleged UBWs, and hence there was no C
RHL Report that referred to the Alleged UBWs, and to complain that D1
H H
failed to satisfactorily answer HCP’s requisitions on title and failed to
I show/prove good title to the Property. Had P still wanted to complete the I
sub-purchase of the Property but was concerned, as she said, with the
J J
economic cost of reinstatement of a concrete canopy at the Shop 4 Yard in
K contra-distinction to the metal sheet canopy at the Shop 6 Yard, there was K
UBWs when D1 offered a further 21 days until end of June 2013 for P to
N N
complete the sub-purchase of the Property.
O O
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A A
discount in price before she signed the PASP for the purchase of the
B B
2nd Property, and she did not know she could still ask for a discount after
C she signed the Shop 4 PASP, “…… 係有分別嘅 , 呢兩個” , so all she C
H
and in my view there was no reason for P with her past experience not to H
ask for a discount in price had she wanted to complete the sub-purchase of
I I
the Property on the fixed date or on the extended date. Whilst HCP by their
J
letter dated 30 May 2013 (see paragraph 39 above) did ask W&G “what J
step [D1] is going to take to reinstate the defect condition to ensure the
K K
Property would be sold free from encumbrance”, I find neither P nor C&A
L pursued this further in June/July 2013 because P in fact knew she was L
U U
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A A
Tong was also correct in urging her to complete the sub-purchase of the
B B
Property because the existence of the Alleged UBWs and the requisitions
C raised by HCP on her behalf were insufficient to justify not completing the C
I I
265. On 4 August 2014, P commenced the present action.
J Sometime thereafter in 2014, Wong went for a site visit and walked to the J
Rear Lane. Wong agreed the Rear Lane was shown on the floor plan “……
K K
但係[Wong]唔會用心睇個後巷 ……” He did not go to the Rear Lane
L via the Rear Lane Gate which he checked was locked on such visit. L
喇”. There was also no sign to show the Rear Lane led to where.
R R
S 266. In my view, this was the first time Wong/D1 had a serious S
look at the Property and could see for themselves the Alleged UBWs. In
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A A
D D
267. In/about May 2016 (ie almost 3 years after the date of
E completion), P lodged a formal complaint against the Estate Agents E
Authority, which complaint she claimed was still under investigation when
F F
she made P’s WS. P did not say what was the outcome of such
G investigation when she gave evidence at trial. G
H H
XXIV. CONCLUSION ON P’s CLAIM AGAINST D1
I I
268. I have found neither D1 nor P had actual knowledge of the
J Alleged UBWs before the signing of the Shop 4 PASP, but even if D1 did J
understood the meaning and effect (including the effect on title to the
O O
Property) of the Waiver Clause and the Partition Clause in the Shop 4
P Appendix which were in clear and unequivocal language, and P with P
U U
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D1, and the commercial risk that there might be unauthorised alterations or
D D
additions and/or UBWs at the Property was shifted to P. Both parties
E contemplated there might be such at the Property, and the Waiver Clause in E
J J
XXV. P’s CLAIM AGAINST D2
K K
270. There was no dispute that D2 was the estate agent acting for
L D1 and P in respect of the sub-sale and sub-purchase of the Property (see L
Clause 17 of the Shop 4 PASP), that Tong was D2’s employee at the
M M
material time, that D2 owed P duty of care as estate agent, and that D2
N would be vicariously liable for any breach of such duty of care committed N
P P
Q Q
R R
S S
T T
U U
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A A
271. Mr Lau summarised P’s case against D2 for breach of its duty
C C
of care owed to the P as follows:
D D
(a) Tong/D2 failed to use reasonable diligence and/or due care and skill
to make reasonable, sufficient and proper enquiries and disclosure in
E E
relation to the Alleged UBWs to give accurate replies to P’s enquiries.
F (b) Tong/D2 failed to arrange for and accompany P to inspect the interior F
I
(c) Tong/D2 failed to properly and correctly explain to P the full meaning I
and effect of the Waiver Clause, particularly that by agreeing to such
clause P might risk being precluded from raising requisitions in
J J
relation to UBWs, including the Alleged UBWs. In his oral closing
submissions, Mr Lau accepted Tong/D2 had no obligation to
K volunteer explanation of the Waiver Clause to P, and submitted their K
M (d) Tong/D2 wrongfully and misleadingly told P the Waiver Clause was M
standardised and mere formality, and P’s right to demand D1 to
N
show / give good title to the Property would not be circumscribed (ie N
2nd Representation).
O O
(e) Tong/D2 knew P was unable to view/inspect the interior of the
Shop/Yard 4, but “still enticed [P] to agree on the Waiver Clause of
P which the statements contained therein were inaccurate and not true”. P
Q Q
R R
S S
T T
U U
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A A
272. “The standard and scope of care and skill expected of the
C C
agent depends on the nature of the contractual relationship with his
D principal. …… The test is stated in Midland Bank Trust Co v Hett Stubbs D
agent’s client may affect the applicable standard of care and skill …… The
I I
scope of a contractual agent’s duty of care should be determined by the
J terms of the contract and, accordingly, a tortious duty of care that is more J
extensive than set out in the contact itself should not be imposed. ……”65
K K
R R
65
see Chitty on Contracts: Hong Kong Specific Contracts 6th ed para 1-132 at pp 63-
64 (and see Midland Realty (Comm. & Ind.) Limited v NCF (HK) Limited
S HCA1830/2013, DHCJ Nicholas Cooney SC (unreported, 22 May 2015) paras 74- S
75)
T
66
see Midland Realty (Comm. & Ind.) Limited paras 76-77 citing Chiu Wai Ling v T
Chan Yau Chi [2002] 2 HKC 154
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A A
E E
274. In Jopard Holdings Ltd v Ladefaith Ltd & anor, the purchaser
F sought rescission of a PASP and return of the deposit after the purchaser F
pulled out of a deal to buy a flat upon finding out through another party
G G
that the vendor’s son fell to his death from it. It was held that the agent had
H not undertaken reasonable enquiry before giving assuring replies to the H
67
[2005] 1 HKLRD 317, 326-328 (see also Midland Realty (Comm. & Ind.) Limited
T T
para 78)
U U
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- 153 -
A A
275. In Shum Kong & anor v Chui Ting Lin Teresa & anor,68 the
G G
village house stood on a concrete terrace with 3 fenced sides and a
H concreted slope at the back, and access to the house was by steps from the H
road with a garage next to the steps. Any potential purchaser looking at the
I I
property would naturally assume it consisted of the house with garden and
J garage, but in fact the garden and garage were not part of the property. The J
purchaser was not told about this (page 22), and the agent also did not
K K
know this when he got the purchaser to sign the PASP (page 23).
L L
to enter into the PASP (page 24). Although the agent did not have actual
O O
knowledge, there were express contractual duties under the written agency
P agreement on the part of the agent (a) to “make reasonable enquiries” and P
“to assist in entering into a [FASP]”, and (b) to “act bona fide in
Q Q
performing its services” and “use its best endeavours to ensure that all
R reasonable representations it makes are accurate” (pages 26-27). It was R
also held “there would be an implied term in the agreement that the
S S
68
HCA16227/1999, DHCJ Muttrie (unreported, 6 June 2001) (see Midland Realty
T T
(Comm. & Ind.) Limited para 79)
U U
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A A
Agency would exercise reasonable care, skill and diligence in acting for
B B
the Purchasers. Reasonable enquiries should …… have included
C investigation of the Rectification Agreement shown on the land search. C
This …… shows properly the relationship of the house, garden and slope.
D D
It would have put [the estate agent] on his inquiry if he had seen it.
E Ultimately therefore, …… [the estate agent] is certainly liable to the E
gave the 1st Representation that there were none, and added that there were
J J
some unauthorised alterations all of which were all located “on the
K outside”, but none of those related to the Property. Mr Lau submitted such K
L
representations were wrong given the existence of the Alleged UBWs. L
st
However, I have rejected the 1 Representation and found Tong did not tell
M M
P that the unauthorised alterations or additions “on the outside” were not
N
related to the Property (see paragraphs 176-181 and 198-200 above). N
O O
278. Mr Lau suggested that an estate agent is under a duty of care
P
to provide accurate information to the purchaser as to the physical state of P
the property, including whether the property had any unauthorised
Q Q
structures. Mr Lau submitted that (a) if Tong knew of the existence of the
U U
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A A
D D
279. As a starting point, there was no evidence (from those within
E the estate agency profession or otherwise) before this court as to the E
PASPs contained waiver clauses the meaning and effect of which the
H H
clients well understood. Mr Lau prayed in aid rule 3.2.2 of the Code, but
I when read as a whole I cannot see how this rule dictates a positive duty on I
the Floor Plans (see paragraphs 172-173 above), even if Tong/D2 (as Mr
N N
Lau submitted but I disagree) failed to properly explain to P the contents of
O O
the Floor Plans (which on balance I disagree), such alleged breach had no
P
material causative relevance. P
the Property
R R
280. There was no dispute that P made 2 inspections, ie in/about
S S
November 2012 before she signed the Shop 6 and Shop 4 PASPs (when
T she had a street view of the frontage of the street-level shops of Phase 2 of T
U U
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A A
the Development of the Buildings), and in/about December 2012 after she
B B
signed the Shop 4 PASP (when she visited Store 4 with Ms Ho and not
C Tong). P did not inspect the interior of Shop/Yard 4 at all although she C
November 2012 Tong did not explain to P the contents of the Phase 2 Floor
F F
Plans, and she did not know how to read them, but I have rejected such
G evidence (see paragraphs 172-173 and 279 above). It was also said that P G
Tong at any time before she signed the Shop 4 PASP (see paragraph 175
J J
above). Further, I have found P could not have inspected Shop 4 because
K when despite liaising directly with Ms Ho, the estate agent of Max K
Rainbow (ie the registered owner, head vendor and landlord of the tenants
L L
at Shop 4), for a long time to arrange the inspection in December 2012,
M inspection could not be arranged for the tenanted Shop/Yard 4 (see Part M
P
she had inspected Store 4 (see paragraph 231 above), and that being the P
case, she would not have seen the Canopy UBW in the Shop 4 Yard
Q Q
outside and below such rear window.
R R
(e) Breaches in relation to the Waiver Clause
S S
282. Mr Lau submitted that an estate agent’s failure to fully explain
T the contents of an agreement or the meaning of the clauses therein may be T
U U
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A A
283. In that case, the vendor entered into a PASP to sell the
D D
property to the 1st purchaser through the 1st estate agent, but the escape
E clause in the PASP was deleted. The vendor then entered into another E
PASP to sell the property to the 2nd purchaser through the 2nd estate agent at
F F
a higher price, but the escape clause was also deleted. The vendor could
G not rescind the 1st PASP and later rescinded the 2nd PASP, but did not G
compensate the 2nd estate agent. The vendor settled the 2nd purchaser’s
H H
claim for damages, and complained that the 2nd estate agent induced him to
I enter into the 2nd PASP by telling them the 1st PASP could be cancelled and I
K 284. The court found that (a) the vendor told the 2nd estate agent K
about the 1st PASP but the 2nd estate agent without having sight of such
L L
st
agreement remarked to the vendor that the 1 PASP could be rescinded
M (paragraphs 39-41), and (b) the vendor showed the 1st PASP to the M
2nd estate agent, who did not care to properly consider the same and just
N N
told the vendor it could be rescinded (paragraph 43). It was held that the
O vendor relied on such misrepresentations by the 2nd estate agent in entering O
into the 2nd PASP (paragraphs 69-73). The court considered a competent
P P
professional estate agent would understand the effect of deleting an escape
Q clause in a PASP (ie the PASP could not be rescinded) (paragraph 81), and Q
R
would not have acted as the 2nd estate agent did, ie when he knew about the R
st st
1 PASP he still told the vendor/client the 1 PASP could be rescinded
S S
without reading the same, and when the vendor showed him the 1st PASP
T T
69
HCA1830/2013, DHCJ Nicholas Cooney SC (unreported, 22 May 2015)
U U
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A A
he still told the vendor the deposit could be surrendered (ie pronouncing
B B
the effect of the 1st PASP) without taking care to properly consider the 1st
C PASP (paragraph 82). It was said that “[by] making false representations C
that the 2nd estate agent was liable for negligent misrepresentation
F F
(paragraphs 87-89).
G G
appendix like the Shop 4 Appendix which was just a formality (ie 2nd
J J
Representation), that the Waiver Clause was included in the Shop 4
K Appendix because the Head Property had to be sub-divided before K
N N
286. Mr Lau submitted the Waiver Clause in providing that “儘管
O 該舖位存有任何未經屋宇署授權改建或加建部分及儘管屋宇署或其他 O
P
政 府 部 門 有 權 對 任 何 未 經 授 權 改 建 或 加 建 部 分 作 出 追 究 ” 70 had P
nothing to do with the sub-division of the Property, so Tong’s explanation
Q Q
to P was incorrect and/or inaccurate. Moreover, P claimed Tong did not tell
R her the core feature of the Waiver Clause in the Shop 4 Appendix, ie P R
would have to accept title to the Property despite any UBWs, and would
S S
70
English translation: “despite the fact that there are any alterations or additional
structures not authorized by the [BD] and despite the fact that the [BD] or other
T T
government department may hold the owner liable”
U U
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A A
Mr Lau argued that (a) if Tong knew the meaning/effect of the Waiver
D D
Clause, the fact he conveyed a false meaning to P amounted to breach of
E the duty of care owed to P, but (b) if he did not know or was not sure about E
H H
287. In my view, the short answer to such contentions is that I have
I rejected P’s evidence (including the Representations) on the matters set out I
the circumstances, Tong/D2 should not be held liable for her loss and
O O
damages (if any) in relation to the subject transaction.
P P
XXVI. CONCLUSION
Q Q
breach, and that the Deposits paid thereunder were validly forfeited by D1.
T T
U U
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any, to be taxed if not agreed. Although D2 had not appeared at trial, they
D D
were previously legally represented and had taken steps in its defence
E which was ultimately successful. E
F F
G G
H (Marlene Ng) H
J J
Mr Kenny Lau, instructed by Chak & Associates, for the plaintiff by
K
original action and the 1st defendant by counterclaim K
Ms Prisca Cheung, instructed by Kok & Ha, for the 1st defendant by
L L
original action and the plaintiff by counterclaim
M The 2nd defendant by original action and counterclaim, acting in person and M
absent
N N
O O
P P
Q Q
R R
S S
T T
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A A
C No N/ICI/SP/SA 0000222 C
[logo of Midland Realty (Shops) Ltd]
D D
PROVISIONAL AGREEMENT FOR SALE AND PURCHASE
E E
Vendor This AGREEMENT is made on 9/11/2012 BETWEEN
the first party Max Rainbow Enterprise Limited ……
F F
(hereinafter called “the Vendor”); and
……
S Completion (d) Balance of purchase price in the sum of S
date HK$315,000,000- shall be paid upon
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71
English translation: “see attached for address”
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V V
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A A
C Stakehold The deposits payable under (a) and (b) and (c) C
deposit above shall be paid to the Vendor’s solicitors as
D stakeholder who may release the same to the D
Vendor provided that the balance of the purchase
E
price is sufficient to discharge the existing charge / E
mortgage against the said premises.
F F
Formal 3 Formal agreement for sale and purchase shall be
agreement for signed on or before 22-11-2012.
G sale and G
purchase
H Encumbrances 4 The said premises shall be sold to the Purchaser, H
its nominee or sub-purchaser free from
I encumbrances. I
J
Vacant 5 Upon completion, …… The Purchaser agrees to J
possession / purchase the said premises subject to the existing
Existing tenancy.
K K
Tenancy
……
L Solicitors 7 The Vendor and the Purchaser agree that they shall L
S …… S
Remarks 21
T T
72
English translation: “to be appointed”
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V V
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A A
E E
[Max Rainbow’s chop [chop of Midland Realty [signature]
with signature] (Shops) Ltd with
F F
signature] Signed by the
Signed by the Vendor Purchaser:
G G
Name of signatory: Signed by the Agent Name of Signatory:
ID No: Name of signatory: Ho ID No:
H Wai Sun H
Licence No: Sxxxxxx
I I
Received from the Purchaser the initial deposit in the sum of
J HK$10,000,000- …… Cheque No 010386 Bank 中國銀行75 J
Acknowledge receipt by the Vendor [signature] 若訂金支票未能兌現, 賣
K 方有權終止本合約及向買方追討賠償。76 K
L
Ref: MR000016_CH L
日期: 2012 年 11 月 9 日77
美聯物業臨時買賣合約附件78
M M
N 73
English translation: “See attached for details of tenancy agreement. Vacant N
possession to be partially delivered. The Vendor shall agree to assist the Purchaser in
O
carrying out the matter of the sub-deed and all matters relating to the [DMC]. The O
[illegible] shall be responsible for paying all Sub-Deed costs and [DMC] Costs.
After the signing of the [FASP] and prior to completion, the Purchaser has the right
P to sign tenancy agreement commencing after completion with the existing tenant or P
a new tenant without the Vendor’s consent. [Illegible] tenancy agreement shall
include a clause stating that if the Purchaser fails to complete this Agreement, it will
Q Q
result in the termination of the tenancy agreement.”
74
English translation: “See schedule for additional terms of clauses 23-32”
R 75
English translation: “Bank of China” R
76
English translation: “If the cheque for the deposit is not honoured, the Vendor shall
S have the right to terminate this Agreement and claim damages from the Purcahser” S
77
English translation: “Date: 9 November 2013”
78
English translation: “Schedule to Midland Realty Provisional Agreement for Sale
T T
and Purchase”
U U
V V
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A A
物業臨時買賣合約 No N/ICI/SP/S/A000022279
B B
P P
Q Q
79
English translation: “Property [PASP] No N/ICI/SP/S/A0000222”
80
English translation: “Property Address”
R R
81
English translation: “hereinafter called “the said Premises””
82
English translation: “(1) Details of tenancy agreement as follows: The vendor has
S used best endeavours to verify the accuracy of the information in the tenancy S
schedule below but the Vendor does not guarantee that there are no errors in the
tenancy schedule below, if any tenant terminates the tenancy agreement prior to
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completion, the vendor shall only deliver vacant possession of the relevant unit.”
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V V
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A A
Ltd 14/3/2013
B M/F 6 - Vacant - B
……
C *買賣成交完成時, 租金按金以不扣除形式轉交新買家。83 C
J …… J
26 The Vendor shall be responsible for the payment of all ……
K reinstatement, repair …… costs in respect of the said premises and/or K
any part or parts thereof and/or the Building and/or any contribution
L to be made by the owner of the said premises and/or any part or parts L
thereof of any notice or order of such …… reinstatement, repair ……
M
and/or contribution exists or …… shall have been issued or served on M
or before the completion date by the Government, the manager and/or
the Incorporated Owners of the Building or other similar or
N N
competent authorities.
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A A
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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A A
C [D1’s logo] C
萊斯物業89
D D
PROVISIONAL AGREEMENT FOR SALE SB No 028865
E
AND PURCHASE E
U U
V V
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A A
……
F F
Completion (d) Balance of the purchase price shall be paid upon
date completion on or before 31 May 2013 ( 下 午 )
G G
1400 前 90 at the Vendor’s solicitors in the sum
of HK$10,371,564.00.
H H
……
I Encumbrances 4 The said Premises is to be sold to the Purchaser or its I
nominee(s), sub-purchaser(s) free from
J encumbrances. [“Clause 4”] J
K
Vacant 5 Upon completion, the Vendor shall deliver vacant K
possession / possession of the said Premises to the Purchaser /
Existing The Purchaser agrees to purchase the said Premises
L L
Tenancy subject to the existing tenancy as set out in the
schedule attached hereto.
M M
P
Solicitors and 7 The Vendor and the Purchaser agree that they shall P
stamp duty separately appoint their own solicitors.
The Vendor shall be represented by Messrs
Q Q
Wilkinson & Grist Solicitors & Notaries
Whereas the Purchaser shall be represented by
R Messrs 其指定91. R
90
English translation: “before pm 1400”
T T
91
English translation: “to be appointed”
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V V
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A A
Purchaser solely.
B B
……
C Agent’s 10 In consideration of the services rendered by the C
Commission Agent, the Agent shall be entitled to receive
D HK$115,230.00 from the Vendor and D
HK$115,230.00 from the Purchaser as professional
E
service charge. Such service charge shall be paid on E
or before the date of signing the formal agreement
for sale and purchase.
F F
……
G As is basis 12 The said premises is to be sold to the Purchaser on G
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V V
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A A
物業臨時買賣合約 No 2886593
B Shop No 6 AND YARD ADJACENT THERETO ON B
物業地
94
址 : GROUND FLOOR AND STORE NO 6 ON COCKLOFT
C FLOOR OF Phase 2 of Commercial Development, Allway C
Garden, Nos 187-195 Tsuen King Circuit & Nos 2-22 On Yat
D Street, Tsuen Wan, New Territories (以下稱「該物業」95) D
J (四) 若該舖位因現時租客已將與其相鄰的舖位之間之分間牆拆除,買 J
方仍須按完成交易時之狀況接收該舖位,買方不得藉有關之分間牆狀
K 況向賣方提出任何業權質詢或反對。97 [“Partition Clause”] K
L (五) 該舖位將以現有狀況出售。 L
M M
92
English translation: “Schedule to [PASP]”
93
English translation: “[PASP] No 28871”
N N
94
English translation: “Property Address”
95
English translation: “hereinafter called “the said Premises””
O 96
English translation: “The purchaser declares that the purchaser had inspected the O
shop and sought independent professional advice as to the current structure,
P
conditions and layout of the shop. The purchaser is satisfied with the current P
conditions, despite the fact that there are any alternations or additional structures not
authorized by the [BD] and despite the fact that the [BD] or other Government
Q department may hold (the owner) liable for any alternations or structures which Q
constitute defects in the title to the above premises, the purchaser is still willing to
accept the title to the shop and shall not raise requisition or objection on title in
R R
relation to any alterations, and shall not demand compensation from the vendor
……”
S 97
English translation: “Even if the partition wall between the shop and adjoining shop S
has been demolished by the existing tenant, the purchaser still needs to take
possession of the shop as is at completion. The purchaser shall not raise any
T T
requisition or objection on the title arising from the condition of the partition wall.”
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A A
……
B [D1’s chop with [D2’s chop [signature] B
signature] with
C signature] 買方簽署接受100 C
賣方簽署接受98
D 代理簽署接 D
受99
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
98
English translation: “Signed and Agreed by the Vendor”
99
English translation: “Signed and Agreed by the Agent”
T T
100
English translation: “Signed and Agreed by the Purchaser”
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V V
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A A
C [D1’s logo] C
萊斯物業101
D D
PROVISIONAL AGREEMENT FOR SALE AND SB No 028871
E
PURCHASE E
U U
V V
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A A
[“Clause 2(a)”]
B B
(b) The formal agreement for sale and purchase
C shall be signed on or before 8 Jan 2013. Further C
deposit in the sum of HK$1,224,798.00 shall be
D paid on or before 8 Jan 2013. [“Clause 2(b)”] D
E
…… E
Completion (d) Balance of the purchase price shall be paid upon
date completion on or before 31 May 2013 下 午
F F
1400 前 102 at the Vendor’s solicitors in the sum
of HK$13,723,182.00.
G G
……
H Encumbrances 4 The said Premises is to be sold to the Purchaser or its H
nominee(s), sub-purchaser(s) free from
I encumbrances. [“Clause 4”] I
N Solicitors and 7 The Vendor and the Purchaser agree that they shall N
stamp duty separately appoint their own solicitors.
O The Vendor shall be represented by Messrs O
Wilkinson & Grist.
P
Whereas the Purchaser shall be represented by P
Messrs 其指定103.
Each party shall pay its own legal costs, subject to
Q Q
clause 8 hereof, all stamp duty shall be borne by the
Purchaser solely.
R R
……
S Agent’s 10 In consideration of the services rendered by the S
102
English translation: “before pm 1400”
T T
103
English translation: “to be appointed”
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V V
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A A
E
…… E
As is basis 12 The said premises is to be sold to the Purchaser on
an “as is” basis. [“Clause 12”]
F F
……
G Appointment 17 It is hereby declared that the Agent is for both the G
L
[D1’s chop with [D2’s chop with [signature] L
signature] signature]
Agreed by the Purchaser:
M M
Agreed by the Vendor Agreed by the Name:
Agent ID No:
N N
Name: Tong
Chun Lung
O Licence No: O
Sxxxxxx
P Received from the Purchaser the initial Signed by the Vendor P
deposit in the sum of HK$300,000.00 [signature]
Q Cheque No 114087 Bank HSBC Name: Q
ID No:
104
R
臨時買賣合約附件 R
物業臨時買賣合約 No 28871105
S
物業地址106: Shop No 4 on Cockloft AND Shop No 4 on Ground Floor S
104
English translation: “Schedule to [PASP]”
T T
105
English translation: “[PASP] No 28871”
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V V
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A A
I (五) 該舖位將以現有狀況出售。 I
……
J [D1’s chop with [D2’s chop with [signature] J
signature] signature]
K 買方簽署接受112 K
賣方簽署接受110 代理簽署接受111
L L
M
106
English translation: “Property Address” M
107
English translation: “hereinafter called “the said Premises”
108
English translation: “The purchaser declares that the purchaser had inspected the
N shop and sought independent professional advice as to the current structure, N
conditions and layout of the shop. The purchaser is satisfied with the current
O conditions, despite the fact that there are any alternations or additional structures O
not authorized by the [BD] and despite the fact that the [BD] or other Government
department may hold (the owner) liable for any alternations or structures which
P constitute defects in the title to the above premises, the purchaser is still willing to P
accept the title to the shop and shall not raise requisition or objection on title in
Q
relation to any alterations, and shall not demand compensation from the vendor Q
……”
109
English translation: “Even if the partition wall between the shop and adjoining
R shop has been demolished by the existing tenant, the purchaser still needs to take R
possession of the shop as is at completion. The purchaser shall not raise any
S
requisition or objection on the title arising from the condition of the partition wall.” S
110
English translation: “Signed and Agreed by the Vendor”
111
English translation: “Signed and Agreed by the Agent”
T T
112
English translation: “Signed and Agreed by the Purchaser”
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V V
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A A
B B
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
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