NEW ADVANCED LTD. v. LAU HI TIM AND ANOTHER

HCMP 3511/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3511 OF 1999

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J U D G M E N T

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1. This is an application made by originating summons for a declaration that the mortgage made in favour of the 1st Defendant and the sub-mortgage made in favour of the 2nd Defendant both referred to in the Schedule to the Block Crown Lease dated 27 March 1905 and registered in respect of the land known as Lot 65 in Demarcation District 177, is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance, Cap. 347 of the Laws of Hong Kong.

2. The documents exhibited to the affirmations of the Plaintiff show that this lot was owned originally by a person by the name of Lau U Sing. In 1921, Lau Ki Hing succeeded to the property and in 1956, Lau Fuk Cheong succeeded to the property. In 1957, the property was sold to a Mr Ip who in turn sold it to a Miss Liu in 1973. In 1987, Miss Liu sold the property to a Mr Yau who on-sold it to a company by name of Hess in 1988. In 1990, Hess sold the property to a Mr Mok who in 1991 sold it to a company by the name of Treasure Spot. In 1999, the present Plaintiff bought the property from Treasure Spot.

3. It would appear from the papers that enquiries have been made by the Plaintiff from Treasure Spot, Mr Mok, Hess and Mr Yau, and it would also appear that for the past 12 years since Mr Yau acquired the property in 1987, no demands had been made for repayment of any monies owing under this mortgage.

4. In relation to the other properties with which this property had been mortgaged, the latest affirmation of Mr Lau Chee Sing on behalf of the Plaintiff shows that one of the properties, namely Lot No. 66 had been the subject of miscellaneous proceedings in this Court in 1994, and that the mortgage in relation to Lot No. 66 had been discharged by another judge in 1994. In relation to the other properties similarly mortgaged, they have also been made the subject of other proceedings which have not been concluded yet.

5. In any event, it would appear that since 1905, no demand has been made for repayment at least for some 12 years. There is sufficient evidence, in my view, that the mortgage is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance.