CITY UNIVERSITY OF HONG KONG

Course Code & Title: LW5607A Land Law 1.

Session: Semester A 2018/19

Time allowed: Three (3) hours

This paper has FIVE (5) pages (including this page)

Instructions to candidates:

1. This is a closed book examination.

2. This paper consists of five (05) questions over

five (05) pages (including this
cover page).

3. You are required to answer any THREE (03) questions. Each question carries
100/3 marks.

4, If you answer more than three (03) questions,

only the first three (03) answers
will be marked.

NOT TO BE TAKEN AWAY

| NOT TO BE TAKEN AWAY

| BUT FORWARDED TO LIB
Question 1 (100/3 marks)

“The central role that unconscionability plays in the law of estoppel seems ... to
be in inverse proportion to the analysis devoted to it in the cases. All judges are
agreed that unconscionability is vital, but few seem willing to share their
understanding of the concept. There is a denial that the court is engaged in ‘palm
tree justice’, but little to tell us where the beach has ended.”

Martin Dixon, “Proprietary Estoppel and Formalities in Land Law and the Land
Registration Act 2002: a Theory of Unconscionability” (2003)

Discuss.

Question 2 (100/3 marks)

“Given its dense urban environment, Hong Kong should follow the Singapore
courts’ lead in XPress Print Pte Ltd v Monocrafts Pte Ltd [2000] 3 SLR 545 and
recognise a natural right of support for buildings as well as land.”

Discuss.

Question 3 (100/3 marks)

“One of the key defects of the Land Registration Ordinance is its inapplicability
to interests in land arising otherwise than by instrument. Such unregistrable
interests unnecessarily complicate the otherwise simple regime according
priority by the first-in-time principle encapsulated in s 5 of the Ordinance.”

Discuss.
Question 4 (100/3 marks)

In 2007, Frank, a senior civil servant, set up joint bank accounts with his son,
Simon, and daughter, Denise. Frank contributed $1,000,000 towards each joint
account and told both of them that it represented his life’s savings apart from
the family home, a flat in the mid-levels, that was held in his name, and another
flat in Tai Koo Shing occupied by his younger brother, Benjamin. He told them
that he did so because he wanted them to be aware of the importance of being
frugal and saving for a rainy day. At the time, Simon was 17 and preparing to
enter university whereas Denise was 23 and had just resigned from her job to
pursue a postgraduate degree. They were both told that, whilst the money
would be theirs when Frank died, they should not make use of the accounts
during his lifetime.

The flat in Tai Koo Shing had been purchased by Frank in Benjamin’s name in
1999 and from the outset it was occupied by Benjamin rent-free. Frank told his
family on numerous occasions that the flat was for Benjamin’s exclusive use
during his lifetime. As they were orphaned since young, Frank had felt
responsible for Benjamin, who suffered from bipolar disorder and could only
take on low paying odd jobs.

In 2016, Frank’s wife, Marie, passed away. Two months later, Frank came out as
gay. He introduced his children to his partner, Paul, with whom he had been
having an affair, and entered into a civil partnership in England shortly
thereafter. He then arranged for the flat in the mid-levels to be transferred into
their (i.e. Frank’s and Paul’s) joint names. Paul, feeling assured of his future with
Frank, resigned from his work to take care of Frank, who was by then quite frail
and ill. Simon, who was a staunch Catholic, broke off all ties with his father.

Frank passed away in early 2018, leaving a will, executed in 1990, before he
married Marie, in which all of his properties were left to the local charity, Caritas.

Advise the executor of Frank’s estate.

Question 5 (100/3 marks)

Joseph and Mercy Matthew were the owners of unit 88A of 39 Conduit Road,
the penthouse unit of the development. As they were planning to leave Hong
Kong, they advertised the unit for sale. On 11 May 2018, after viewing the unit,
an American-born Chinese businessman, Peter Li Yu-kwong, offered to purchase
the unit for HKS668m by way of an option valued at 1% of the purchase price
(i.e. HKS6.68m), which was to be exercised within two weeks upon acceptance
by the Matthews. The option, he explained orally, would be exercisable by way
of payment of a further 9% of the purchase price (i.e. HKS60.12m) as a deposit.
As a demonstration of his sincerity, he handed over a cheque for HKS6.68m to
the Matthews’ agent, Richie Wong. After the viewing, Richie excitedly
transcribed the terms of the offer and e-mailed the same to the Matthews’ on
the same day. There was no signature at the end of the body of the e-mail but
the “From” field as received by the Matthews showed “R. Wong”. Richie also
scribbled “88A, 39 Conduit Road” and “Peter Li’ at the back of the cheque so
that he did not end up mixing up all the cheques that he received.

The Matthews were initially unimpressed and Richie sent Peter a message on 12
May 2018 via Whatsapp explaining that the Matthews wanted a higher price for
the flat but Peter replied shortly, “HK6.68m is my best offer. Take it or leave it.”
Peter’s Whatsapp username, which he set for himself, was “Peter Li” and his
profile picture was that of himself. Richie conveyed the same message to the
Matthews by taking a screenshot of his chat with Peter and sending it to them
as an email attachment.

On 15 May 2018, after agonising over the offer, the Matthews decided to accept
Peter’s offer, and they instructed Richie to inform Peter of their decision and to
deposit Peter’s cheque into their joint account at HSBC. Richie sent a Whatsapp
message to Peter, “Done deal. Pleasure doing business with you. Written option
will be posted to you.” Richie’s Whatsapp username was set as “ABConqueror”
and his profile picture was a painting of Ghengis Khan. He then proceeded to
deposit the cheque as instructed, which cleared the following day on 16 May
2018. The written but unexecuted (i.e. unsigned by the Matthews) option
contract was prepared and posted on 16 May 2018 to Peter but as a result of a
mix-up by the Post Office, only reached Peter on 21 May 2018. The document
 was entitled “Option
Agreement between Joseph and Mercy Matthew as
Vendors and Peter Li as Purchaser”.

In the meantime, on 17 May 2018

, the Matthews received an imp
roved offer of
HKS 688m for the unit from a mainland mov
ie producer, Feng Yimou, and
decided to accept the same. A writ
ten contract of sale for the same
was hastily
drafted by Richie on the same day,
signed by the parties on 18 May
2018, and
registered with the Land Office
on 21 May 2018. Feng wrote a
cheque for
HKS68.8m (10%) on 21 May 201
8 but the cheque failed to clea
r due to
inadequate funds. In the meantime,
on 18 May 2018, Richie managed to
Peter by phone to explain that he contact
should ignore the option, that the
off, and that the Matthews would deal was
send along a cheque refunding the
HKS6.68m
option fee.

Advise the Matthews.

(END)