TO WAI SUM v. TO NAM SAU

HCMP 3448/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3448 OF 1996

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J U D G M E N T

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1. This is an application for a declaration that the mortgage Memorial No.104915 dated 6 February 1939 registered in the Land Office against Lot No.1511 in Demarcation District No.130 is no longer subsisting or capable of taking effect.

2. The evidence disclosed shows that the mortgage had been entered into in 1939 to secure a loan of $210.00, which loan was to be repaid within 3 months and at an interest of $2.50 per month. It would appear from the evidence that although the mortgage document itself is not in existence, that the mortgagor was a person by the name of To Kam Shau. In September 1950, To Kam Shau having died, a "Tso" was set up in his name. The Plaintiff in the present matter is the present manager and trustee of the To Kam Shau Tso.

3. As far as the Defendant is concerned, he is the present Defendant by reason of an order made in 1999 by a Master that he be substituted as Defendant in place of the original mortgagee. It would appear from an affidavit, which is defective in form but which I have read de bene esse, that the present Defendant is the only issue and successor to the mortgagee To Cheung Ming. Both facts are supported by an affirmation of a village representative who claims to know the original mortgagee and the present Defendant.

4. In view of the evidence that the "Tso" has all along been enjoying quiet possession of the property, and that it had not received any demand in any form for repayment of the principal sum or interest, and that it has never given or made any written acknowledgement of the principal sum nor interest thereon, it is clear that this Court can grant an order in the terms first set out in the case of Fung Kam Cheung v. Kwok Yiu Wing [1991] 1 HKC 321 and that is the order that I propose to give, subject to the solicitors for the Defendant undertaking to file a corrective affirmation before 4.00 pm tomorrow and to pay the costs of that corrective affirmation personally.