TANG FU SING AND ANOTHER v. YEUNG FOOK MUI AND OTHERS

HCMP 1183/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1183 OF 2003

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J U D G M E N T

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1. In this action by originating summons, the Plaintiffs ask for a declaration that a mortgage, which has been recorded in the Schedule to the Block Crown Lease dated 24 January 1905 against the subject property, i.e. all that piece or parcel of land registered in Yuen Long Land Registry as Lot No. 893 in Demarcation District No. 125, in favour of a Tang Tsik Fuk, is no longer subsisting and is no longer capable of taking effect by virtue of section 19 of the Limitation Ordinance (Cap. 347).

2. On the material that has been placed before the Court, there is no evidence of the mortgage in question except the record in the Schedule to the Block Crown Lease. There is no evidence of any enforcement action taken by the mortgagee who, according to the evidence, had passed away in 1952 or by his administrators, letters of administration having been granted in respect of the deceased mortgagee's estate in 1988. According to the evidence, since at least 1981, the Plaintiffs' predecessors in title and subsequently the Plaintiffs have remained in continuous and uninterrupted possession of the suit property free from any disturbance, interference, claims or demands by the deceased's estate.

3. Furthermore, after the commencement of the present action, the administrators of the deceased mortgagee's estate indicated in their acknowledgment of service that they would not oppose the Plaintiffs' present application.

4. Moreover, on 16 May 2003, their then solicitors signed on their behalf a consent summons consenting to the court's making an order, declaring that the mortgage in question is no longer capable of taking effect against the suit premises and the Defendants are statute-barred from recovering the principal sum of money and interest secured by the mortgage, and/or for any other remedies thereunder.

5. The Defendants, who have since been acting in person, do not appear in Court today to oppose the present application.

6. In all the circumstances, I am satisfied that either the mortgage loan secured by the mortgage in question has been fully discharged and repaid or the same has become statute-barred by reason of section 19 of the Limitation Ordinance.

7. In those circumstances, I am further of the view that the Plaintiffs are entitled to the declaratory relief sought in paragraph 1 of the Amended Originating Summons, i.e. a declaration that the mortgage in question in respect of the suit premises is no longer subsisting and is no longer capable of taking effect, and I make a declaration accordingly.

8. I also order that the costs of this action be paid by the Defendants to the Plaintiffs; such costs are to be taxed if not agreed.