GAIN HERO FINANCE LTD v. WINLAND FINANCE LTD

GAIN HERO FINANCE LTD v. WINLAND FINANCE LTD

The Winland Agreement did not create an interest in land registrable under the LRO; it at best created an equitable assignment of future sale proceeds and the deposit of title deeds did not evidence an agreement to create an immediate equitable charge over the Property; the Charging Order Absolute created a charge on the debtor's beneficial interest in the Property and therefore Gain Hero's charge has priority over Winland's unregistrable interest; registration of the Winland Agreement must be vacated and Winland's counterclaim dismissed.

Citation
[2019] HKCFI 771
Parties
Plaintiff (hcmp 1980/2017) and Defendant (hcmp 2671/2017): Gain Hero Finance Limited; Defendant (hcmp 1980/2017) and Plaintiff (hcmp 2671/2017): Winland Finance Limited; Debtor/registered Owner of the Property: Tang Shung Ching Sabin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 March 2019
Case Number
HCMP1980/2017
Procedural Posture
Originating Summons (priority Dispute Between Creditors; Enforcement by Charging Order) / Decision After Hearing
Outcome
Judgment for Gain Hero Finance Limited; Originating Summons HCMP 1980/2017 granted; Originating Summons HCMP 2671/2017 dismissed; registration of Winland Agreement to be vacated.
Legal Topics
Charging Order, Equitable Assignment of Future Proceeds, Equitable Mortgage (deposit of Title Deeds), Registrability Under Land Registration Ordinance, Non Alienation Covenants, Priority of Encumbrances, Public Policy
Source Language
EN
Property Law Equity Civil Procedure Land Registration Contract Law Enforcement of Judgment Charging Order Equitable Assignment of Future Proceeds +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Gain Hero Finance Limited

Plaintiff (hcmp 1980/2017) and Defendant (hcmp 2671/2017)

Winland Finance Limited

Defendant (hcmp 1980/2017) and Plaintiff (hcmp 2671/2017)

Tang Shung Ching Sabin

Debtor/registered Owner of the Property

Procedural Posture

Originating Summons (priority Dispute Between Creditors; Enforcement by Charging Order) / Decision After Hearing

Legal Issues

  1. 1 Whether the Winland Agreement created an interest in land registrable under the Land Registration Ordinance (Issue #1)
  2. 2 Whether delivery of title deeds created an equitable mortgage over the Property (Issue #2)
  3. 3 Whether Non-Alienation Covenants annul any security intended by Winland (Issue #3)

Ratio Decidendi

The Winland Agreement did not create an interest in land registrable under the LRO; it at best created an equitable assignment of future sale proceeds and the deposit of title deeds did not evidence an agreement to create an immediate equitable charge over the Property; the Charging Order Absolute created a charge on the debtor's beneficial interest in the Property and therefore Gain Hero's charge has priority over Winland's unregistrable interest; registration of the Winland Agreement must be vacated and Winland's counterclaim dismissed.

Court Disposition

Judgment for Gain Hero Finance Limited; Originating Summons HCMP 1980/2017 granted; Originating Summons HCMP 2671/2017 dismissed; registration of Winland Agreement to be vacated.

Orders

  • Grant Gain Hero judgment in terms of the Originating Summons in HCMP 1980/2017
  • Dismiss Winland's Originating Summons in HCMP 2671/2017