RE LIGHT TIME INVESTMENTS LTD

RE LIGHT TIME INVESTMENTS LTD

The one-stage approach was rejected because s12A(2) confers a post-payment discretion to declare land free which cannot be exercised if a declaration is made pre-payment; the court lacks jurisdiction to grant the substantive declaration before payment into court and adequate inquiries and notice (including advertisement) are required where mortgagees cannot be located, therefore payment into court must be ordered first with subsequent advertising and a further s12A(2) application.

Citation
RE LIGHT TIME INVESTMENTS LTD
Parties
Applicant/plaintiff: Light Time Investments Limited; Proposed Exchange Counterparty: The Government of the HKSAR; Encumbrancers: Unknown mortgagees/encumbrancers
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 March 2010
Case Number
HCMP337/2010
Procedural Posture
Section 12 a Application Under the Conveyancing and Property Ordinance (cap. 219) / Decision Following Hearing in Chambers
Outcome
Application granted in part: court ordered payment into court under s12A(1), refused the one-stage declaration, directed advertising and a subsequent paper application under s12A(2); no order as to costs.
Legal Topics
Section 12 a, Mortgage Redemption, Notice and Substituted Service, In Situ Land Exchange
Source Language
EN
Property Conveyancing Civil Procedure Section 12 a Mortgage Redemption Notice and Substituted Service In Situ Land Exchange

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Parties

Light Time Investments Limited

Applicant/plaintiff

The Government of the HKSAR

Proposed Exchange Counterparty

Unknown mortgagees/encumbrancers

Encumbrancers

Procedural Posture

Section 12 a Application Under the Conveyancing and Property Ordinance (cap. 219) / Decision Following Hearing in Chambers

Legal Issues

  1. 1 Whether the court may make a declaratory order freeing land from registered mortgages simultaneously with an order for payment into court (the one-stage approach)
  2. 2 Whether the court has jurisdiction to grant relief before payment into court under s12A
  3. 3 Adequacy of inquiries and notice to unidentified mortgagees and need for advertisement/substituted service

Ratio Decidendi

The one-stage approach was rejected because s12A(2) confers a post-payment discretion to declare land free which cannot be exercised if a declaration is made pre-payment; the court lacks jurisdiction to grant the substantive declaration before payment into court and adequate inquiries and notice (including advertisement) are required where mortgagees cannot be located, therefore payment into court must be ordered first with subsequent advertising and a further s12A(2) application.

Court Disposition

Application granted in part: court ordered payment into court under s12A(1), refused the one-stage declaration, directed advertising and a subsequent paper application under s12A(2); no order as to costs.

Orders

  • Order pursuant to s12A(1) that the applicant pay into court the sums stated in the applications or the larger sums stated in the applicant's written opening to redeem the registered mortgages and any interest thereon.
  • Within seven days after the payments into court the applicant must advertise in a widely circulated local Chinese newspaper the existence of this order and the fact of payments into court and state that any person interested in the mortgages or the payments may apply within 14 days to be joined as a respondent.