TOO CHUNG TIP AND ANOTHER v. TO SHING LAM

HCMP 253/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 253 OF 1997

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J U D G M E N T

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1. This is an application by way of Originating Summons for an order that it be declared that a mortgage endorsed against the Schedule to the Block Crown Lease has been discharged and/or is no longer subsisting.

2. The evidence shows that there were originally five lots of land affected by the mortgage. One of these lots has since reverted to the Crown. The lessees of the remaining four lots is a Tso, and the Plaintiffs in the present proceedings are the present managers of the Tso. Although the Plaintiffs only became formally appointed managers of the Tso in 1993, the evidence is that ever since the death of the previous manager in 1977, the Plaintiffs have been the persons who have been managing the affairs of the Tso and have personal knowledge of mattes in relation to the Tso including use of its land.

3. It would appear to be quite clear that since the 1970's, the land has been used by the Tso even though, according to the Schedule to the Block Crown Lease, the mortgagee was said to be "in possession". The evidence appears to be quite clear that the Tso has been using the land without any demand or disturbance from the mortgagee.

4. In the premises, the service of the notice of this hearing having been effected by substituted service and in the light of the evidence, it may be reasonably inferred that the Defendant's mortgage had been discharged or that in other circumstances, the owners were left free to deal with the property.

5. Accordingly, I would grant an order similar to that in Fung Kam Cheung v. Kwok Yiu Wing [1991] 1 HKC 321 that it be declared that the mortgage in question is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance.