吳雪蓮 v. 洪永潤又名HONG YONGRUN（洪永润）及另二人

HCA 621/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 621 OF 2014

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D E C I S I O N

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1.  This is my decision. The plaintiff’s claim for declaration of her entitlement to a charge or an equitable mortgage of the 1^st defendant’s property in Hong Kong is essentially based on an oral agreement coupled with an alleged deposit of the original title deeds as security. This oral agreement is denied by the 1st defendant who also denies that the title deeds were deposited by him with the plaintiff, as security.

2.  I have borne in mind the fact that there were no references at all to the alleged charge or the mortgage in any of the contemporaneous documentation or correspondence, and in particular, in the loan agreements themselves relied upon by the plaintiff, or the undertaking to repay.

3.  There is therefore nothing but the plaintiff’s bare allegation against the 1st defendant’s bare denial as to how the deeds came into the plaintiff’s possession.  There are also, in my view, gaps in the plaintiff’s evidence as to when exactly and how exactly the mortgage was created.

4.  In all the circumstances of this case, until the parties have been cross-examined at trial, I cannot say, on the state of the evidence put before me, that the 1st defendant’s assertions are not capable of belief.  The question of whether the deeds were in fact deposited by the 1^st defendant with the plaintiff, and whether there was an agreement between them that the deeds were to be used as security for the debt can only, in my view, be determined at trial after cross-examination.

5.  In all the circumstances of this case, including the fact that monetary judgment has already been given to the plaintiff, I consider that the only proper order that I can give today is for unconditional leave to be given to the 1st defendant, and since I am granting unconditional leave, the costs order must follow that costs should be in the cause.