Common Luck Investment Ltd. v. Cheung Siu Ming

1998, No. 16
(Civil)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

----------------------

----------------------

J U D G M E N T

----------------------

Godfrey, J.A. (giving the judgment of the court) :

1. In Heath v. Pugh (1881) 6 Q.B.D. 345 (affirmed (1882) 7 App. Cas. 235), it appears to have been decided (I read from the headnote in the report of the case in the Court of Appeal) that :-

"the effect of an order of foreclosure absolute obtained by a legal mortgagee is to vest the ownership and beneficial title to the mortgaged land for the first time in the mortgagee; so that an action, brought within twenty years next after the order of foreclosure, by the mortgagee to recover possession of such land, was held, to be not barred by the Statutes of Limitations, although more than twenty years had elapsed since the legal estate in the land had been conveyed to the mortgagee, and since the last payment of principal or interest secured by the mortgage." (emphasis added).

2. The case is not an easy one to follow. But, the plaintiff here, who seeks leave to appeal to the Court of Final Appeal, bases on it this proposition, that the effect of a sale by a legal mortgagee is the same as the effect of an order of foreclosure absolute. This submission conflicts with the views expressed in the judgment of this court. But the plaintiff has made out sufficient of an argument to justify the point being considered by the Court of Final Appeal.

3. We will therefore give leave to the plaintiff to appeal to the Court of Final Appeal, pursuant to those provisions in the Hong Kong Court of Final Appeal Ordinance under which we have a discretion, in a case where we consider a point worthy of consideration by that court, to give an applicant leave to appeal to it.