WONG TIN SUNG v. TANG LUN (or LUEN) KWAI

HCMP 5251/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5251 OF 2000

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D E C I S I O N

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1. This is an Originating Summons seeking some unusual form of relief. It is related to Lot No. 648, Demarcation District No. 130, Tuen Mun, New Territories. The relief sought is in essence that: -

(1) the Plaintiff is to make a payment of $21.00 into court in full and sufficient redemption of the mortgage recorded against the suit property;

(2) upon the said payment into court being made, the suit property be held by the Plaintiff free from the said mortgage; and

(3) a declaration that upon the said payment into court being made, the said mortgage recorded against the suit property has extinguished and that the Defendant has no estate or interest in the suit property.

2. The Plaintiff is the registered owner of the suit property since 12 April 2000. Exhibit WTS-3 to the Plaintiff's affirmation dated 3 October 2000 shows that the mortgage in question was recorded against Lot No. 618. In the "Remarks" column for the suit property (that is, Lot No. 648), it is recorded "see Lot No. 618". This suggests that the same mortgage may affect the suit property as well.

3. The affirmation of To Wong Yan dated 3 October 2000 states inter alia that an order was earlier obtained from this court to the effect that all the estate and interest of the Defendant in Lot No. 618 has been extinguished. He deposed that Lots No. 618 and No. 648 are the same piece of land. In these circumstances, I doubt if there is a real need for a similar order regarding the suit property.

4. In any event, even if there is such a need, I do not understand why the Plaintiff does not seek the usual declaratory relief such as the one asked for in the proceedings relating to Lot No. 618. Payment into court will result in additional expenses in administering the funds paid into court. I do not consider it right that the Judiciary (and ultimately the taxpayers) should be burdened with this in the absence of good reasons.

5. Mr Tang for the Plaintiff indicates that the Plaintiff is prepared to ask for the usual declaratory relief in place of the relief now asked for in the Originating Summons herein. The problem with granting some other form of order than those originally sought is that the Defendant does not have knowledge of them and thus does not have the opportunity to be heard on the matter. I will therefore adjourn these proceedings sine die with liberty to restore to enable the Plaintiff to consider what to do with regard to this application and what appropriate procedural steps to take if further proceedings are considered to be necessary.