THE DAIWA BANK, LTD v. SHUM SHEK CHIU t/a LUNG TAT CO AND ANOTHER

THE DAIWA BANK, LTD v. SHUM SHEK CHIU t/a LUNG TAT CO AND ANOTHER

The 2000 Order was valid and binding, the substituted plaintiff was entitled to enforce it by writ of possession and fieri facias; Order 88 applied because the claim was based on the Legal Charge and the 2nd defendant was a mortgagor and principal debtor; relief under Order 45 r11 was not available because the matters relied on occurred before the 2000 Order; accordingly the summons to discharge or stay the writ failed and the appeal was dismissed with costs on an indemnity basis.

Citation
THE DAIWA BANK, LTD v. SHUM SHEK CHIU t/a LUNG TAT CO AND ANOTHER
Parties
Original Plaintiff: The Daiwa Bank, Limited; Substituted Plaintiff: Merrill Lynch JPNDC. Inc.; 1st Defendant: Shum Shek Chiu trading as Lung Tat Company; 2nd Defendant: Sun Wai Chun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 February 2005
Case Number
HCMP4020/2000
Procedural Posture
Miscellaneous Proceedings — Mortgage Enforcement / Appeal From Master's Order in Court of First Instance (chambers)
Outcome
Appeal dismissed
Legal Topics
Order 88 Rules of the High Court, Order 45 Rule 11, Writ of Possession and Fieri Facias, Enforcement of Legal Charge, Indemnity Costs
Source Language
EN
Mortgage Law Civil Procedure Land Law Costs Order 88 Rules of the High Court Order 45 Rule 11 Writ of Possession and Fieri Facias Enforcement of Legal Charge +1 more

Case Brief

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Parties

The Daiwa Bank, Limited

Original Plaintiff

Merrill Lynch JPNDC. Inc.

Substituted Plaintiff

Shum Shek Chiu trading as Lung Tat Company

1st Defendant

Sun Wai Chun

2nd Defendant

Procedural Posture

Miscellaneous Proceedings — Mortgage Enforcement / Appeal From Master's Order in Court of First Instance (chambers)

Legal Issues

  1. 1 Whether the 2000 Order was valid and enforceable
  2. 2 Whether Order 88 applied given alleged status of defendant as guarantor not mortgagor
  3. 3 Whether relief under Order 45 r11 could be granted where grounds predated the judgment

Ratio Decidendi

The 2000 Order was valid and binding, the substituted plaintiff was entitled to enforce it by writ of possession and fieri facias; Order 88 applied because the claim was based on the Legal Charge and the 2nd defendant was a mortgagor and principal debtor; relief under Order 45 r11 was not available because the matters relied on occurred before the 2000 Order; accordingly the summons to discharge or stay the writ failed and the appeal was dismissed with costs on an indemnity basis.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed; 2nd defendant to pay substituted plaintiff's costs of the appeal on an indemnity basis, to be taxed if not agreed.