Wan Ming Sun v Wong Hoi Kwan [2026] 1 HKLRD 1473; [2026] HKCA 91 (Kelvin K. H. Liu)

Kelvin K. H. Liu represented the plaintiff (respondent) in Wan Ming Sun v Wong Hoi Kwan [2026] 1 HKLRD 1473; [2026] HKCA 91.

D1-2 as vendor entered into a provisional agreement for sale and purchase (the PASP) with P as purchaser for the sale of the entire issued share capital of C, which was the sole registered owner of certain properties. Under cl.5 of the PASP, Ds were required to provide all documents relating to C for P’s due diligence within 14 days. Upon Ds’ failure to comply, P accepted their repudiation of the PASP. The Court of First Instance declared that Ds had repudiated the PASP and ordered the return of the paid deposit to P together with the payment of liquidated damages, interest and costs. Ds appealed, contending inter alia that the Judge had erred in holding that P had not waived his right to terminate or affirmed the PASP by raising requisitions on the title deeds of the properties. Subsequently, D2 was adjudged bankrupt. The Official Receiver, as the trustee in bankruptcy, refused to give consent for D2 to pursue the appeal. Around two weeks before the scheduled hearing, D1 applied for legal aid, triggering a statutory stay of proceedings under s.15(4) of the Legal Aid Ordinance (Cap.91). P sought to lift the stay of the proceedings in respect of D1’s appeal.

Held, dismissing D2’s appeal, lifting the statutory stay of D1’s appeal and dismissing her appeal, that:

1. As D2 had no locus to pursue this appeal and the Official Receiver had refused to give consent to proceed, D2’s appeal was dismissed. (See para.16.)
2. The court had a wide discretion to lift the statutory stay of proceedings, taking into account matters including deliberate and unaccounted for delay in seeking legal aid and the apparent lack of merits. Here, D1’s explanation that she had attempted to handle the appeal in person until realising her inability to do so was not credible. There was no valid reason for D1’s dilatoriness. P would suffer prejudice if the hearing date was vacated. Accordingly, the Court exercised its discretion to lift the statutory stay for D1’s appeal. (See paras.17-19.)
3. D1’s appeal was dismissed as it had no merit. The Judge did not fail to determine the issue of waiver and had correctly found that P’s act of raising title requisitions was not a sufficiently unequivocal act to infer an intention to proceed with the contract or that P would not exercise his right to treat the PASP as repudiated. The mere fact that an innocent party called on the party in breach to perform contractual obligations would not generally, of itself, amount to an act of affirmation. The injured party was entitled to consider his position and keep his options open, though not for too long. Furthermore, the Judge rightly held that the obligation under cl.5 to deliver all documents relating to C within 14 days was a condition of the agreement. Failure to comply with a condition would entitle the other party to terminate further performance. (See paras.20, 23-26, 29.)

Appeal

This was an appeal by the first and second defendants against the judgment of Deputy Judge Kent Yee holding that the defendants had repudiated a provisional agreement for sale and purchase of the issued share capital of a company (see [2025] HKCFI 394, [2025] HKEC 272).

[The above is excerpted from the headnote to the report in HKLRD.]