LI TAI v. CHAN FUK UN SHOP

HCMP 2636 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2636 of 1998

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JUDGMENT

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1. The Plaintiff is the administratrix of the estate of Chan Muk Hoi, who was the registered owner of a piece of land known as Lot No 4100 in DD 116 since 1972.

2. This lot together with some other lots were, according to the schedule to the Block Crown Lease dated 24 January 1905, mortgaged to the Defendant for $57, but neither the mortgage itself nor any documentary evidence thereof has been found.

3. It is not clear from the schedule to the Block Crown Lease whether the mortgagee was in possession of all the lots, or just the lot against which the endorsement "Mortgagee in Possession" was made.

4. Be that as it may, the property has been enjoyed by the Plaintiff's late husband for the past 27 years, the mortgage is very old, there have been a number of owners since the time of the Block Crown Lease, there is no evidence of enforcement action taken by the mortgagee against any of them, and certainly the mortgage has not been enforced against this Plaintiff since 1972 (for the past 27 years).

5. No address has been given for the mortgagee in the schedule to the Block Crown Lease, and there is evidence that the Plaintiff had made inquiries at the neighbourhood of the subject lot and at the other lots mortgaged to the same mortgagee but without results. Substituted service has been effected but no acknowledgment of service has been filed.

6. In the premises I am confident that I can make a declaratory order that the mortgage is no longer subsisting, is unenforceable and is no longer capable of taking effect (cf Fung Kam Cheung v Kwok Yiu Wing [1991] 1 HKC 321).

7. However in view of the typographical errors in the 1st Affirmations of Li Tai and Tong Shuk Ping, this order is not to be perfected until the corrective Affirmations which are to be filed within the next 14 days have been considered by the Court.

8. There will be no order as to costs.