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DCMP 2756/2024
[2024] HKDC 1272
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 2756 OF 2024
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IN THE MATTER of an Assignment dated 5
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December 2016 made between Chan Ping Yi as Vendor and Kwok Kin Fai as Purchaser
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and
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IN THE MATTER of Flat No. 12 on 12
th
Floor of Hin Hing House (Block 4), (including the planter/planter box appertaining thereto, if any), Hin Keng Estate, No. 69 Che Kung Miu Road, Sha Tin, New Territories, Hong Kong
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and
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IN THE MATTER of s.38A of the District Court Ordinance (
Cap.336
)
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BETWEEN
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KWOK KIN FAI
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Plaintiff
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and
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CHAN PING YI
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Defendant
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Before:
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Her Honour Judge G. Chow in Chambers (Open to Public)
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Date of Hearing:
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1 August 2024
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Date of Decision:
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1 August 2024
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DECISION
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Introduction and Background
1.
This is an application made by the Plaintiff (“P”) by way of an Originating Summons dated 23 May 2024 for an order that: (1) the Defendant (“D”) do sign and execute a Deed of Rectification to remedy an error in the Assignment signed by P and D on 5 December 2016; and (2) in the event that D neglects or refuses to sign and execute the same, to appoint the Registrar of the District Court to sign the same on D’s behalf.
2.
P had purchased the subject property (“the Property”) from D under the Home Ownership Secondary Market in 2016.
3.
In about March 2024, P intended to sell the Property to an intended purchaser (“the Purchaser”). However, in the process of checking title, the legal representatives of the Purchaser pointed out that the original assignment of the Property signed by P and D (“the Assignment”) was not in the form authorized under the Schedule to the Housing Ordinance,
Cap 283
(“HO”) and was therefore void under HO.
4.
Solicitors for P (“P’s Solicitors”) who had acted for P in the purchase of the Property now accepts that as the Assignment was not executed in the form in accordance with the terms prescribed in s 4(c)(C) of the Schedule to HO, it was void under s 17B of HO.
5.
Although P’s Solicitors was able to reach D by telephone on 30 April 2024, D expressed that he would not be willing to execute any confirmatory assignment or have anything to do with the property transaction which was more than 7 years ago. Hence P has taken out the present application.
6.
A deed of rectification has now been prepared by P’s Solicitors (“the Deed”).
7.
I am satisfied from the affirmations of service filed that all the documents and notice of today’s hearing were served on D. D does not appear today. I see no reason why this application should not proceed in the absence of D.
Discussion
8.
Having considered the sale and purchase agreement leading to the Assignment, I am satisfied that P and D contemplated that the conveyance of the Property by D to P would have to accord to
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