CHUNG SUNG TIM v. CHUNG TSAN üN

HCMP 5491/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5491 OF 1999

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J U D G M E N T

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1. This is an application by way of originating summons for a declaration that the land described as all that piece or parcel of ground situate lying and being at Tai Po, New Territories, Hong Kong and registered in the Tai Po New Territories Land Registry as Lot no. 1145 in Demarcation District no. 10 do vest in the Plaintiff for the entire legal and beneficial interest therein free from a mortgage as recorded in the Schedule to the Block Crown Lease dated 27 March 1905 by reason of limitation of action for over 20 years.

2. I note from the title of the proceedings that the application is made under Section 19 of the Limitation Ordinance and under Order 88 of the Rules of the High Court. However, having seen the papers and having discussed the matter this morning with counsel for the Plaintiff, it seems to me that for the sake of consistency with the source authority of Fung Kam Cheung it would probably be better if the order was worded consistently with the order first made in that case.

3. The evidence disclosed in the affirmations shows that Lot 1145 was together with Lot 880 mortgaged sometime in 1905 or prior thereto. According to the Schedule to the Block Crown Lease, the mortgagee was in possession. However, it would appear to be the case from the evidence that when the property was succeeded to by the mortgagors successors, since 1973 at the latest, the mortgagor's successor Chung Yat Sau had been in possession of the property. It would further appear from the affirmation of the Plaintiff that the predecessor-in-title who had been in possession since 1973 had never received any demand made or disturbance raised by the mortgagee or anyone purporting to act on behalf of the mortgagee or as his successor. As far as the Plaintiff himself is concerned, he has been in possession since 1996. So it would appear from the evidence that at least from 1973 onwards there have been no demands for repayment or claims made against the property by the mortgagee or anyone acting on his behalf or as his successor.

4. Accordingly, I am satisfied on the evidence that I can make an order in this case that the mortgage referred to is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance.