CHONG HING BANK LTD v. CENTRE GAIN INVESTMENTS LTD AND OTHERS

CHONG HING BANK LTD v. CENTRE GAIN INVESTMENTS LTD AND OTHERS

Master Jones had jurisdiction under Order 88 because the claims were monies secured by the mortgage and his contemporaneous notes and absence of defendants showed intent to deal with all defendants; amendment under the slip rule to correct omission was permissible to reflect that manifest intention; Master Kwang properly exercised discretion in discharging the Charging Order nisi because the plaintiff's long delay caused substantial prejudice (including interest exceeding principal, renovations, and discharge of a mortgage) and the plaintiff's ex parte affirmation failed to make full and frank disclosure; accordingly both the appeal and cross-appeal were dismissed and the master's orders...

Citation
CHONG HING BANK LTD v. CENTRE GAIN INVESTMENTS LTD AND OTHERS
Parties
Plaintiff (judgment Creditor): CHONG HING BANK LIMITED; 1st Defendant (1st Judgment Debtor): CENTRE GAIN INVESTMENTS LIMITED; 2nd Defendant (2nd Judgment Debtor): SINO WORLD CORPORATION LIMITED; 3rd Defendant (3rd Judgment Debtor): CHAU LAP YAN; 4th Defendant (4th Judgment Debtor): YU SHIU HUNG JOSEPH; 5th Defendant (5th Judgment Debtor): CHU KWONG MING EDWARD; 6th Defendant (6th Judgment Debtor): LO ON KING ANNABELLA
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 July 2009
Case Number
HCMP3056/1996
Procedural Posture
Mortgage Enforcement / Charging Order Proceedings (originating Summons) / Appeal and Cross Appeal From Master Kwang's 14 November 2008 Order (heard Before Hon Suffiad J)
Outcome
Appeal by 4th defendant dismissed; cross-appeal by plaintiff dismissed; orders of Master Kwang (14 November 2008) to stand.
Legal Topics
Charging Order, Slip Rule, Judgment Enforcement, Guarantee, Jurisdiction of Masters (order 88 Rhc), Full and Frank Disclosure in Ex Parte Applications, Delay/laches
Source Language
EN
Civil Equity Property Law Procedure Contract Limitation Charging Order Slip Rule +5 more

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Parties

CHONG HING BANK LIMITED

Plaintiff (judgment Creditor)

CENTRE GAIN INVESTMENTS LIMITED

1st Defendant (1st Judgment Debtor)

SINO WORLD CORPORATION LIMITED

2nd Defendant (2nd Judgment Debtor)

CHAU LAP YAN

3rd Defendant (3rd Judgment Debtor)

YU SHIU HUNG JOSEPH

4th Defendant (4th Judgment Debtor)

CHU KWONG MING EDWARD

5th Defendant (5th Judgment Debtor)

LO ON KING ANNABELLA

6th Defendant (6th Judgment Debtor)

Procedural Posture

Mortgage Enforcement / Charging Order Proceedings (originating Summons) / Appeal and Cross Appeal From Master Kwang's 14 November 2008 Order (heard Before Hon Suffiad J)

Legal Issues

  1. 1 Whether Master Jones's sealed order could be amended under the slip rule to apply to the 4th (and 6th) defendants
  2. 2 Whether the master had jurisdiction under Order 88 RHC to enter judgment against guarantors as monies secured by the mortgage
  3. 3 Whether the Charging Order nisi should be made absolute given the plaintiff's long delay and resulting prejudice to the 4th defendant

Ratio Decidendi

Master Jones had jurisdiction under Order 88 because the claims were monies secured by the mortgage and his contemporaneous notes and absence of defendants showed intent to deal with all defendants; amendment under the slip rule to correct omission was permissible to reflect that manifest intention; Master Kwang properly exercised discretion in discharging the Charging Order nisi because the plaintiff's long delay caused substantial prejudice (including interest exceeding principal, renovations, and discharge of a mortgage) and the plaintiff's ex parte affirmation failed to make full and frank disclosure; accordingly both the appeal and cross-appeal were dismissed and the master's orders...

Court Disposition

Appeal by 4th defendant dismissed; cross-appeal by plaintiff dismissed; orders of Master Kwang (14 November 2008) to stand.

Orders

  • Order in terms of Consent Summons disposed of 6th defendant's appeal (as filed)
  • Order amending Master Jones's 11 February 1997 order under the slip rule to clarify application to the 4th defendant is affirmed