SHING DAVID v. LAU KWAN HOI AND ANOTHER

HCMP 3596/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3596 OF 1999

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J U D G M E N T

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1. This is an application by a way of Originating Summons for a declaration that a mortgage made in favour of the 1st Defendant as set out in the Block Crown Lease is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance, Cap.347.

2. The history of the title of the Property is that in 1905 as recorded in the Block Crown Lease, the Property in question being Lot No.141 in D.D.225 was granted to a Mr Lau. The Property has since come into the hands of the Plaintiff. In 1981, the Property was acquired by a company called Adrian Realty Limited which held the Property until 1994, and in 1994, the Property was assigned by Adrian Realty Limited to a company by the name of Chun Wah Holdings Limited, and in 1995 the Property was acquired by the present Plaintiff.

3. The present Plaintiff, some time in 1998, applied for a permit for a small house to be built on the Property. It was, at that time, discovered that the 2nd Defendant claimed to be the grandson and successor of the 1st Defendant and by reason of that, the District Lands Office required clarification of the mortgage position before permitting the Plaintiff to proceed with his application for the building of a small house on the Property.

4. As I have indicated, the mortgage was only indicated in the Block Crown Lease in 1905, no terms of the mortgage are known, it was in the undisturbed possession of the Plaintiff and his predecessors in title from 1981 to date and before then, it had also been confirmed to have been in the undisturbed possession of predecessors in title.

5. No objection to the present application has been made by the 2nd Defendant.

6. Accordingly, I am satisfied that the mortgage made in favour of the 1st Defendant as referred to in the Block Crown Lease is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance, following the articulation of these principles in Fung Kam Cheong v. Kwok Yiu Wing [1991] 1 HKC 321.

7. Accordingly, I would declare that the mortgage made in favour of the 1st Defendant as set out in the Block Crown Lease is incapable of subsistence or is otherwise unenforceable.