HARVEST DEVELOPMENT LTD v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LIU WA FUK, DECEASED

HARVEST DEVELOPMENT LTD v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LIU WA FUK, DECEASED

The District Court lacked jurisdiction to make declarations based solely on limitation or inferred discharge of a Chinese customary mortgage, but had jurisdiction under s.12A CPO (and s.37 DCO) to permit payment into court and to declare the mortgage discharged where the encumbrancer cannot be found; the court was satisfied sufficient efforts were made to locate the encumbrancer and that HK$400 was an adequate sum to satisfy the mortgage interest, therefore the Plaintiff was permitted to pay HK$400 into court and the Mortgage was declared discharged upon payment.

Citation
HARVEST DEVELOPMENT LTD v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LIU WA FUK, DECEASED
Parties
Mortgagee/encumbrancer: Liu Wa Fuk
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
19 September 2007
Case Number
DCMP1367/2006
Procedural Posture
Miscellaneous Proceedings Concerning Land and Mortgage Discharge / Hearing and Reasons for Decision; Order Made Permitting Payment Into Court and Declaration of Discharge
Outcome
Application granted in part: Plaintiff permitted to pay HK$400 into court and upon such payment the Mortgage declared discharged and the Lots free from the encumbrance; amendment of originating summons allowed and service dispensed with.
Legal Topics
Mortgage Discharge, Section 12 a Conveyancing and Property Ordinance, Limitation Ordinance S.19, Chinese Customary Mortgage, Jurisdiction of District Court
Source Language
EN
Property Law Conveyancing Equity Civil Procedure Limitation Law Mortgage Discharge Section 12 a Conveyancing and Property Ordinance Limitation Ordinance S.19 +2 more

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Parties

Liu Wa Fuk

Mortgagee/encumbrancer

Procedural Posture

Miscellaneous Proceedings Concerning Land and Mortgage Discharge / Hearing and Reasons for Decision; Order Made Permitting Payment Into Court and Declaration of Discharge

Legal Issues

  1. 1 Whether the District Court has jurisdiction to determine a title/limitation claim in respect of the mortgage
  2. 2 Whether the mortgage was discharged by return of possession as a Chinese customary mortgage
  3. 3 Whether s.12A CPO authorises payment into court and a declaration discharging the mortgage where the encumbrancer cannot be found

Ratio Decidendi

The District Court lacked jurisdiction to make declarations based solely on limitation or inferred discharge of a Chinese customary mortgage, but had jurisdiction under s.12A CPO (and s.37 DCO) to permit payment into court and to declare the mortgage discharged where the encumbrancer cannot be found; the court was satisfied sufficient efforts were made to locate the encumbrancer and that HK$400 was an adequate sum to satisfy the mortgage interest, therefore the Plaintiff was permitted to pay HK$400 into court and the Mortgage was declared discharged upon payment.

Court Disposition

Application granted in part: Plaintiff permitted to pay HK$400 into court and upon such payment the Mortgage declared discharged and the Lots free from the encumbrance; amendment of originating summons allowed and service dispensed with.

Orders

  • Order allowing amendment of Re-Amended Originating Summons and dispensing with service
  • Order that Plaintiff be at liberty to pay HK$400 into court