TANG KUN NIN AND ANOTHER v. TANG CHUN CHAK AND ANOTHER

1991, No. MP761

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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

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

J U D G M E N T

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

1. The plaintiffs are successors in title to Lot 1710 in D.D.83 which forms part of a block Crown lease granted after the Land Court sittings between 1905 and 1907. I shall refer to this piece of land as "the property" for the sake of brevity.

2. On about 15th June 1917, the plaintiffs' predecessor in title, namely, their grandfather, mortgaged the property to one TANG Shai-hai to secure repayment of a debt of HK$40 repayable at the rate of interest of 80¢ per month, and by instalments of HK$4.80 every six months. The instrument evidencing the mortgage cannot be found, but as is frequently the case, the only evidence available now lies in a memorial registered in the Tai Po District Office as Memorial No.34988. Under the contract of loan evidenced by the Memorial, registering the mortgage, the loan should have been repaid by 1919.

3. Upon the death of the plaintiffs' grandfather, the property was succeeded to by their father. This happened on 19th January 1962 and was evidenced by a memorial registered in the Land Office, grant of administration not being required by virtue of the provisions of the New Territories Ordinance.

4. On 17th March 1983, upon the death of their father, the present plaintiffs succeeded to the property and the same procedure took place, namely, that the succession was registered by memorial in the Land office on this date.

5. The evidence before me was that at least since 1962, there has been no repayment or demand for the debt secured by the mortgage. Also, the plaintiffs' grandfather, their father, as well as the plaintiffs have remained in possession of the property.

6. By an originating summons issued in March 1991, the Court is asked to make a declaration that the mortgage be discharged by operation of the Limitation Ordinance, or in the alternative that the mortgage be discharged by payment into court of a sum of $40, or any other amount to be determined by the court.

7. The evidence is that certainly since 1962, there has been no demand for repayment of the debt, and this being 1992, by virtue of s.s.19(1) and (5) of the Limitation Ordinance, the time for enforcing both the principal, as well as the interest arising from the debt secured by the mortgage, is no longer enforceable. Furthermore, by virtue of s.19(4) of the Limitation Ordinance, the provisions relating to the recovery of land applied to actions for foreclosure which of course is the only other remedy open to the mortgagee to enforce his rights under the mortgage. Likewise, 20 years being the limitation period for an action on foreclosure, the time for such action has also expired.

8. Accordingly, the mortgage securing the debt can no longer subsist or otherwise be enforced against the mortgagor.

9. I therefore propose to and do make a declaration in the following form:-

That a mortage made in favour of TANG Shai-hi by the plaintiffs' predecessor in title TANG Tsun lin dated 15th January 1917, and registered in the District Office at Tai Po by Memorial No.34988 in respect of all that piece or parcel of ground situate and being at Lot No.1710 in Demarcation District 83 is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance, Cap.347, Laws of Hong Kong.

10. Finally, in passing, I should refer to the alternative remedy sought, namely that the Court should declare that the property be discharged from the mortgage upon payment into Court, for the benefit of the defendants, a sum of HK$40, or an amount to be determined by the Court.

11. A payment into Court would only, in my view, have been available as a remedy to discharge the mortgage through a redemption action which of course would still be open to the plaintiffs even to this date since no limitation arises in view of the fact that the plaintiffs have remained in possession. No redemption action has been brought. So the alternative remedy is not at this stage available.

12. There is no provision in Hong Kong whereby an incumbrance may be discharged by payment into court of a sum which would be sufficient to meet the purpose similar to s.50 of the Law of Property Act 1925. And as to this, I am indebted to Mr Yeung for drawing my attention to the judgment of Godfrey, J. of 3rd January 1991 in M.P. No.1493 of 1990, where Godfrey, J. made a similar point. Perhaps in the next revision of the Conveyancing and Property Ordinance, such a provision might be considered.

13. Finally, I would like to record my debt to Mr Yeung for his able assistance in drawing my attention to the relevant cases and his industrious preparation of a chronology.