Mike Yeung acted for the Plaintiff purchaser, instructed by Messrs. Cheung Fung & Hui.

This is a vendor and purchaser summons primarily concerning whether the vendor has satisfactorily answered the purchaser’s title requisitions in the sale of a car park.

The purchaser raised two requisitions –

  • it required certified true copy of the Layout Plan to verify that the car park to be sold was in accordance with the plan; and
  • it required certified true copy of an affirmation made by the administrators of the previous deceased owner to prove that the known beneficiaries referred to in an assent vesting title in them were the only beneficiaries to ensure that there would not be others popping up to claim to be a beneficiary to challenge the chain of title.

The vendor’s answer to the first requisition was that the Layout Plan was pre-intermediate root of title. Its answer to the second requisition was two folded: (i) the purchaser as a bona fide purchaser would be protected under s.68(8) of the Probate and Administration Ordinance; and (ii) there had been no claims by missing beneficiary for the past 13 years, thus no reason to suspect that the known beneficiaries were not the only beneficiaries.

At loggerheads, the vendor on the completion date complained that the purchaser failed to complete the transaction, moved to terminate the sale and purchase agreement and forfeited the deposits. The purchaser therefore commenced this action to seek, principally, the court’s declaration on the two requisitions and a return of the deposits.

On the first requisition, the Court held that a purchaser may raise proper requisitions upon pre-intermediate root documents, that carparking space whose boundary could easily be changed called for the need of the layout plan, and that pre-intermediate root was not a sufficient answer. Insofar as the vendor claimed that it offered to provide the plan after completion, the Court held that a purchaser is not forced to accept completion by undertaking, even though it might have been expected.

On the second requisition, the Court held that s.68(8) of PAO provided protection to a purchaser if the administrator appropriated the property in purported exercise of power conferred in s.68. But mere administration of deceased’s estate is not purported exercise of power under s.68. Here, there was no evidence of appropriation by the administrator of the car park in favour of the known beneficiaries. Vesting title in the known beneficiaries was mere administration. The purchaser therefore would not be protected by s.68(8). As regards the lack of basis to suspect the presence of other beneficiaries, the Court accepted that the question was whether the facts and circumstances were so compelling that the Court could conclude beyond reasonable doubt that the known beneficiaries were all the beneficiaries. The Court held that it could not so conclude by mere reliance on long lapse of time. 

The Court’s reasons for judgment can be found here.