SINO BILLION LTD. v. LAM CHOK WAI

SINO BILLION LTD. v. LAM CHOK WAI

A charging order creates only an equitable charge and does not by itself vest proprietary title or authorize the chargee to convey the debtor's interest; the order for sale in this case did not expressly appoint the chargee to convey under section 51 nor was there a vesting order under section 48 or a s25A conveyance order, and section 52 CPO does not apply because the sale was not a sale under a mortgage—therefore Win Source and Winland acquired no proprietary interest, lacked locus, and the charging orders and orders for sale obtained by collusion were set aside.

Citation
SINO BILLION LTD. v. LAM CHOK WAI
Parties
Judgment Creditor / Plaintiff: Sino Billion Limited; Judgment Creditor / Plaintiff: Citi Honour Limited; Judgment Debtor / Defendant: Lam Chok Wai; Co Owner / Executor / Applicant: Lam Chok Lai; Applicant / Former Spouse: Lam Choi Wai Ying (Madam Choi); Intervener / Purported Purchaser: Win Source International Limited; Intervener / Purported Mortgagee: Winland Capital Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 January 2003
Case Number
HCA3185/2001
Procedural Posture
Civil Enforcement — Charging Orders and Orders for Sale / Applications to Set Aside Charging Orders and Orders for Sale Heard in Chambers (determination)
Outcome
Applications allowed in part: charging orders and orders for sale obtained by Sino Billion and Citi Honour set aside; registrations removed from Land Registry; Win Source and Winland held to have no proprietary interest or locus to oppose.
Legal Topics
Charging Orders, Order for Sale, Equitable Charge Vs Mortgage, Fraud and Collusion in Enforcement, Locus Standi, Vesting Orders Under Trustee Ordinance
Source Language
EN
Property Law Equity Civil Procedure Trusts Enforcement of Judgments Charging Orders Order for Sale Equitable Charge Vs Mortgage +3 more

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Parties

Sino Billion Limited

Judgment Creditor / Plaintiff

Citi Honour Limited

Judgment Creditor / Plaintiff

Lam Chok Wai

Judgment Debtor / Defendant

Lam Chok Lai

Co Owner / Executor / Applicant

Lam Choi Wai Ying (Madam Choi)

Applicant / Former Spouse

Win Source International Limited

Intervener / Purported Purchaser

Winland Capital Limited

Intervener / Purported Mortgagee

Procedural Posture

Civil Enforcement — Charging Orders and Orders for Sale / Applications to Set Aside Charging Orders and Orders for Sale Heard in Chambers (determination)

Legal Issues

  1. 1 Whether a charging order confers proprietary title capable of being conveyed
  2. 2 Whether the order for sale empowered the chargee to convey the judgment debtor's interest (s51 Trustee Ordinance) or to vest title (s48 Trustee Ordinance)
  3. 3 Whether purchaser (Win Source) and mortgagee (Winland) acquired good title and therefore locus to oppose

Ratio Decidendi

A charging order creates only an equitable charge and does not by itself vest proprietary title or authorize the chargee to convey the debtor's interest; the order for sale in this case did not expressly appoint the chargee to convey under section 51 nor was there a vesting order under section 48 or a s25A conveyance order, and section 52 CPO does not apply because the sale was not a sale under a mortgage—therefore Win Source and Winland acquired no proprietary interest, lacked locus, and the charging orders and orders for sale obtained by collusion were set aside.

Court Disposition

Applications allowed in part: charging orders and orders for sale obtained by Sino Billion and Citi Honour set aside; registrations removed from Land Registry; Win Source and Winland held to have no proprietary interest or locus to oppose.

Orders

  • Charging orders obtained by Sino Billion Limited and Citi Honour Limited set aside under Order 50 rule 7 and the court's inherent jurisdiction
  • Orders for sale obtained by Sino Billion Limited and Citi Honour Limited set aside