RE CHEUNG TING (or Teng) FAN (or Fun) TSO

RE CHEUNG TING (or Teng) FAN (or Fun) TSO

Where an encumbrancer cannot be found and may be out of the jurisdiction the court has power under s.12A Cap.219 to permit payment into court to redeem the encumbrance; the court will not declare land free until payment has been made but may grant leave to pay and impose reasonable procedural conditions (advertisement and delay) and the sum of HK$5,200 was held sufficient to redeem the historic mortgage (principal plus notional interest).

Citation
RE CHEUNG TING (or Teng) FAN (or Fun) TSO
Parties
Applicant (government Lease Grantee): Cheung Ting (or Teng) Fan (or Fun) Tso; Encumbrancer / Original Mortgagee: Lam Kwai Chung; Transferee of Mortgage / Mortgagee: Cheung Lun Chung; Transferee of Mortgage / Mortgagee (per 2nd Transfer): Lam Yung Chi
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
12 September 2011
Case Number
DCMP2731/2010
Procedural Posture
Section 12 a Application Under the Conveyancing and Property Ordinance (cap.219) / First Stage: Leave Granted to Pay Into Court; Declaratory Relief to Follow After Payment
Outcome
Leave granted to applicant to pay into court a sum to redeem the Chinese customary mortgage; declaratory relief to be sought after payment and prescribed notice period.
Legal Topics
Chinese Customary Mortgage, Payment Into Court Under S.12 a CPO, Declaration to Free Land From Encumbrance, Service/notice Requirements, Calculation of Historic Interest
Source Language
EN
Property Law Equity Civil Procedure Conveyancing Chinese Customary Mortgage Payment Into Court Under S.12 a CPO Declaration to Free Land From Encumbrance Service/notice Requirements +1 more

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Parties

Cheung Ting (or Teng) Fan (or Fun) Tso

Applicant (government Lease Grantee)

Lam Kwai Chung

Encumbrancer / Original Mortgagee

Cheung Lun Chung

Transferee of Mortgage / Mortgagee

Lam Yung Chi

Transferee of Mortgage / Mortgagee (per 2nd Transfer)

Procedural Posture

Section 12 a Application Under the Conveyancing and Property Ordinance (cap.219) / First Stage: Leave Granted to Pay Into Court; Declaratory Relief to Follow After Payment

Legal Issues

  1. 1 Whether the encumbrancer is out of the jurisdiction or cannot be found so as to permit payment into court under s.12A
  2. 2 Whether the Chinese customary mortgage remains subsisting or has been discharged by return of possession and lack of enforcement
  3. 3 Appropriate sum to be paid into court to redeem the mortgage

Ratio Decidendi

Where an encumbrancer cannot be found and may be out of the jurisdiction the court has power under s.12A Cap.219 to permit payment into court to redeem the encumbrance; the court will not declare land free until payment has been made but may grant leave to pay and impose reasonable procedural conditions (advertisement and delay) and the sum of HK$5,200 was held sufficient to redeem the historic mortgage (principal plus notional interest).

Court Disposition

Leave granted to applicant to pay into court a sum to redeem the Chinese customary mortgage; declaratory relief to be sought after payment and prescribed notice period.

Orders

  • Leave granted to the applicant to pay into court HK$5,200 being principal and interest due under the Chinese customary mortgage dated 8 March 1911 registered by Memorial No.YL32869 against The Remaining Portion of Lot No.1349, Lot No.1365 and Lot No.1400 in Demarcation District No.96.
  • Within 7 days after payment into court, the applicant shall advertise in a widely circulated local Chinese newspaper a notice of this Order and that payment has been made into court and that any person interested in the mortgage and/or the payment may apply within 14 days to be joined as a respondent to these...