IP HON NAM v. CHAN MOON KAU

IP HON NAM v. CHAN MOON KAU

The charging order nisi was made absolute because a charging order is a preservative encumbrance that does not affect occupation and cannot be enforced without further Order 88 proceedings where full consideration of sale, hardship and priorities occurs; the defendant had defaulted on the consent order so the court was not precluded from making the charge absolute and objections based on negative equity or hardship are more appropriately addressed at enforcement stage.

Citation
IP HON NAM v. CHAN MOON KAU
Parties
Plaintiff (judgment Creditor): IP Hon Nam; Defendant (judgment Debtor): Chan Moon Kau
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
11 February 2002
Case Number
DCCJ15849/2000
Procedural Posture
Charging Order Application (district Court Civil) / Hearing to Show Cause; Charging Order Nisi Made Absolute
Outcome
Charging order nisi made absolute; stay of execution refused; costs awarded to Plaintiff
Legal Topics
Charging Orders, Order 88 Enforcement, Stay of Execution, Matrimonial Home Occupation Rights, Negative Equity
Source Language
EN
Civil Procedure Enforcement of Judgments Property Law Family Law Charging Orders Order 88 Enforcement Stay of Execution Matrimonial Home Occupation Rights +1 more

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Parties

IP Hon Nam

Plaintiff (judgment Creditor)

Chan Moon Kau

Defendant (judgment Debtor)

Procedural Posture

Charging Order Application (district Court Civil) / Hearing to Show Cause; Charging Order Nisi Made Absolute

Legal Issues

  1. 1 Whether the charging order nisi should be made absolute
  2. 2 Whether a charging order immediately affects occupation or merely preserves security
  3. 3 Extent to which spouse's occupation rights and hardship weigh against making order absolute

Ratio Decidendi

The charging order nisi was made absolute because a charging order is a preservative encumbrance that does not affect occupation and cannot be enforced without further Order 88 proceedings where full consideration of sale, hardship and priorities occurs; the defendant had defaulted on the consent order so the court was not precluded from making the charge absolute and objections based on negative equity or hardship are more appropriately addressed at enforcement stage.

Court Disposition

Charging order nisi made absolute; stay of execution refused; costs awarded to Plaintiff

Orders

  • Charging order nisi made absolute
  • Costs awarded to Plaintiff