In re Hongkong and Shanghai Banking Corporation Limited

In re Hongkong and Shanghai Banking Corporation Limited

The assignment was of moneys representing proceeds of sale receivable by the assignor and did not purport to affect the assignor's interest in the land itself; such an assignment of future proceeds does not create an interest affecting land for the purposes of the Land Registration Ordinance and therefore is not registrable and cannot take priority over a charging order which operates as an equitable charge on the land; accordingly Yasaki's charging order ranks in priority and its claim to the monies in court succeeds.

Citation
In re Hongkong and Shanghai Banking Corporation Limited
Parties
Applicant / Judgment Creditor (charging Order Holder): Yasaki International Company Limited; Claimant / Respondent (assignee Under Assignment): Afalong Investment Company Limited; Registered Owner / Assignor: Lee To Bee; Mortgagee (seller of Property): The Hongkong and Shanghai Banking Corporation Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 February 1993
Case Number
HCMP4049/1992
Procedural Posture
High Court Miscellaneous Proceedings — Application for Payment Out of Money in Court and Priority Dispute / Judgment (decided by Godfrey J., 26 February 1993)
Outcome
Application allowed in favour of Yasaki; Afalong's claim rejected; Yasaki's charging order takes priority to the monies in court
Legal Topics
Assignment of Proceeds of Sale, Charging Order, Priority of Equitable Charges, Registrability of Interests Affecting Land, Assignment of Future Property, Proceeds of Sale
Source Language
EN
Property Law Equity and Trusts Land Registration Law Civil Procedure Assignment of Proceeds of Sale Charging Order Priority of Equitable Charges Registrability of Interests Affecting Land +2 more

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Parties

Yasaki International Company Limited

Applicant / Judgment Creditor (charging Order Holder)

Afalong Investment Company Limited

Claimant / Respondent (assignee Under Assignment)

Lee To Bee

Registered Owner / Assignor

The Hongkong and Shanghai Banking Corporation Limited

Mortgagee (seller of Property)

Procedural Posture

High Court Miscellaneous Proceedings — Application for Payment Out of Money in Court and Priority Dispute / Judgment (decided by Godfrey J., 26 February 1993)

Legal Issues

  1. 1 Whether an assignment of proceeds of sale creates an interest affecting land for purposes of the Land Registration Ordinance
  2. 2 Whether Afalong's registered assignment takes priority over Yasaki's charging order
  3. 3 Whether a charging order under s.20B(3) Supreme Court Ordinance operates as an equitable charge on the land

Ratio Decidendi

The assignment was of moneys representing proceeds of sale receivable by the assignor and did not purport to affect the assignor's interest in the land itself; such an assignment of future proceeds does not create an interest affecting land for the purposes of the Land Registration Ordinance and therefore is not registrable and cannot take priority over a charging order which operates as an equitable charge on the land; accordingly Yasaki's charging order ranks in priority and its claim to the monies in court succeeds.

Court Disposition

Application allowed in favour of Yasaki; Afalong's claim rejected; Yasaki's charging order takes priority to the monies in court

Orders

  • Payment out of the monies in court in accordance with Yasaki's entitlement under its charging order
  • Costs to follow the event; costs of all parties to this application other than Afalong to be taxed (if not agreed) and paid by Afalong