LEUNG KAI CHUNG AND OTHERS v. TSE FO SHAU

HCMP 4206/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4206 OF 1998

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J U D G M E N T

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1. There are two applications before me in MP 4206 of 1998 and MP 4207 of 1998 in which the Plaintiffs seek a declaration from the Court that mortgages registered against their properties in the Schedule to the Block Crown Lease are no longer subsisting and are no longer capable of taking effect by virtue of the provisions of the Limitation Ordinance.

2. The evidence in and exhibits to the affirmations of the Plaintiffs show that in MP 4206, the property had been mortgaged by a predecessor in title of the Plaintiff. The property was then succeeded to by the Plaintiff's father together with other persons in the family. There was subsequently a division of the property such that the Plaintiff's father became the sole owner of Lot 3635. This Lot was then succeeded to by the Plaintiff together with some other persons, and by an assignment which has been exhibited to the affirmation of the Plaintiff's solicitor filed yesterday, it would appear that the Plaintiff is now the sole owner of section C of Lot No. 3635 in DD 124.

3. The property has been in the undisturbed possession of the Plaintiff's family for many many years. As far as the Plaintiff himself is concerned, he is in his 50's and he says that he has been in possession either by himself or his family for more than 20 years. It is clear from the evidence that the property has been in the Plaintiff's family's undisturbed possession for a substantial amount of time.

4. The mortgage was only referred to in the Schedule of the Block Crown Lease and nothing further is known about the mortgage or the mortgagee. The orders made for the advertisement of the proceedings have been complied with, and there has been substituted service. Accordingly, I would make a declaration in MP 4206 that the mortgage there is no longer subsisting and is no longer capable of taking effect by virtue of section 19 of the Limitation Ordinance. This is similar to the declaration first made in Fung Kam Cheung and which has been followed in a number of cases since.

5. In MP 4207, the properties concerned are Lot No. 3590 and Sections B, C, D and The Remaining Portion of Lot No. 3812, all in Demarcation District 124 in Tuen Mun. Again, by a series of sucessions and divisions of property, the title to the properties has passed to the Plaintiffs. Again, the Plaintiffs and their families have been in undisturbed possession of these properties for more than 20 years.

6. In relation to MP 4207, again, the property passed to the Plaintiffs via their father, Leung Tsz Fat who was himself a successor to the property. The Plaintiffs have also said that they have used these properties for agriculture for more than 20 years.

7. Accordingly, I am also satisfied that I can grant a declaration in MP 4207 that the mortgage there is no longer subsisting and is no longer capable of taking effect by virtue of section 19 of the Limitation Ordinance. Again, this follows the form of the order first used in Fung Kam Cheung.