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CACV000068/1999
CACV 68/1999
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 68 OF 1999
(ON APPEAL FROM MP 938 OF 1998)
| BETWEEN |
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Success Road Finance Limited |
Plaintiff |
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AND |
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Mak Kon Sang
Chan Chuen Ying
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1st Defendant
2nd Defendant
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Coram : Hon. Godfrey, Liu & Leong, JJ.A.
Date of Hearing : 1 April 1999
Date of Judgment : 1 April 1999
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J U D G M E N T
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Godfrey, J.A. (giving the judgment of the court) :
1. In this action, the defendants take 3 points. First, they dispute the validity of the loan said to be secured by the mortgage here, under which the plaintiff claims payment of moneys due from the defendants and possession of the property the subject of the mortgage. Secondly, they say that they are entitled to an account of what is claimed to be due from them, which has not yet been provided, and upon which there will be likely to be a dispute. Thirdly, they say that no order for possession ought to be made, since the subject of the mortgage is a half interest only in the property and the owner of the other half interest is not a party to the action.
2. These disputes are not suitable for resolution upon originating summons. The right course for us to take is to direct, pursuant to Order 28 rule 8, that these proceedings do continue as if commenced by writ. In order to save time, we will give directions (after hearing counsel) as to pleadings and discovery. The relief claimed in the action should include a claim by the plaintiff that the mortgage is a valid and subsisting security for the amount outstanding by way of loan from the plaintiff; that an account be taken of what is due by the defendants to the plaintiff; and for a declaration that as against the defendants the plaintiff is entitled to possession of the mortgaged property (so that the plaintiff may commence proceedings if so advised for an order against the owner of the other half interest for sale of the property under the Partition Ordinance).
3. The appeal will accordingly be allowed to the extent indicated.
Directions
Statement of Claim - 21 days from today.
Defence - 14 days after the service of Statement of Claim.
Reply - 7 days after service of Defence.
Discovery as provided by the rules of court. Subject as aforesaid liberty to restore for further directions before the master.
Costs in cause.
| (Gerald Godfrey) |
(B. Liu) |
(Arthur Leong) |
| Justice of Appeal |
Justice of Appeal |
Justice of Appeal |
Representation:
Mr. Tsang Kam Hung (M/s. Au Yeung, Lo & Chung) for Plaintiff
Mr. Paul Wu (M/s. Tang & So) for Defendants
Defendant's appeal to Court of Appeal allowed. Please refer to CACV68/1999 dated 1 April 1999 |