HESS INVESTMENT LTD. v. LAU HI TIM AND ANOTHER

HCMP 2969/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2969 OF 1999

____________

____________

_______________

J U D G M E N T

_______________

1. This is an application by way of Originating Summons for a declaration that mortgage stated in the schedule to the Block Crown Lease dated March 1905 is incapable of subsistence, or is unenforceable by operation of the Limitation Ordinance, Cap. 347 of the Laws of Hong Kong.

2. The evidence disclosed in the affidavits showed that the lots in question were mortgaged to the 1st Defendant and sub-mortgaged to the 2nd Defendant by one Lau U Sing and in 1921, Lau U Sing was succeeded by his successor, Lau Ki Hing. In 1956, Lau Ki Hing had his interest succeeded to by Lau Fu Cheong and in 1957, Lau Fu Cheong sold his interest to a person by the name of Yip Sau Fan, who then in 1973 sold it to Liu Lit Fong.

3. In relation to the properties in question, Liu Lit Fong disposed of part of them by way of gift in 1981 to one Jennifer Siu and in 1987, by way of sale to one Yau Man Duen. Therefore, it is clear that Yau Man Duen became the owner of this property since 1987. In 1988, Yau Man Duen sold the property to the Plaintiff, Hess Investment Limited.

4. It is clear from the affirmation of the director of the Plaintiff that the Plaintiff itself had never made any repayment nor had received any demand from the 1st or 2nd Defendant or any person claiming title or interest under them for repayment. There is also evidence that they had made enquiries with Yau Man Duen, their vendor and had also been informed that he had not made any repayment or received any demands from the mortgagees.

5. In view of the long lapse of time, in my view, it is quite clear that these mortgages are unenforceable or incapable of subsistence by virtue of the Limitation Ordinance and therefore, I would make a declaration that the mortgage made in favour of the 1st Defendant and the sub-mortgage made in favour of the 2nd Defendant, both stated in the schedule to the Block Crown Lease dated 27 March 1905 and registered at the Sha Tin New Territories Land Registry in respect of all those pieces and parcels of ground situate and being at Sha Tin and originally registered at the Sha Tin New Territories Land Registry as Lots. Nos. 36, 37 and 61 all in Demarcation District No. 177, Sha Tin, New Territories, Hong Kong, as registered against The Remaining Portion of Section B of Lot No. 36, The Remaining Portion of Lot No. 57 and The Remaining Portion of Lot No. 61 all in Demarcation District No. 177, Sha Tin, New Territories, Hong Kong is incapable of subsistence, or is unenforceable by operation of the Limitation Ordinance, Cap. 347 of the Laws of Hong Kong. There will be no order as to costs.