TONG WAI TAK AND ANOTHER v. FOK SHEUNG LING

TONG WAI TAK AND ANOTHER v. FOK SHEUNG LING

The appeal is dismissed because (1) the allegation of lack of full and frank disclosure was untenable: the defendant's supporting affirmation expressly referred to both plaintiffs and any complaint should have been raised at the inter partes COA hearing; and (2) the over‑security complaint failed because the appellant did not adduce satisfactory evidence that a single property would cover the judgment debt and prior incumbrances remained unproven, so there was no basis to vary or discharge the COA.

Citation
TONG WAI TAK AND ANOTHER v. FOK SHEUNG LING
Parties
1st Plaintiff: Mr Tong; 2nd Plaintiff: 2nd Plaintiff (unnamed in text); Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 October 2011
Case Number
HCMP2898/1999
Procedural Posture
Application to Discharge Charging Order Absolute; Appeal From Master's Dismissal / Hearing of Appeal Before Deputy High Court Judge (decision)
Outcome
Appeal dismissed
Legal Topics
Charging Order, Discharge/variation of Charge, Full and Frank Disclosure, Over‑security, Re‑registration of Incumbrances, Costs Assessment
Source Language
EN
Civil Procedure Property Law Debt Recovery Land Registration Charging Order Discharge/variation of Charge Full and Frank Disclosure Over‑security +2 more

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Parties

Mr Tong

1st Plaintiff

2nd Plaintiff (unnamed in text)

2nd Plaintiff

Defendant

Defendant

Procedural Posture

Application to Discharge Charging Order Absolute; Appeal From Master's Dismissal / Hearing of Appeal Before Deputy High Court Judge (decision)

Legal Issues

  1. 1 Whether the Charging Order Absolute should be discharged for lack of full and frank disclosure in the charging order nisi
  2. 2 Whether the COA constitutes over‑security such that one of the charged properties should be released or the COA varied
  3. 3 Whether prior incumbrances remain effective under the Land Registration Ordinance s.17‑18 and impact on sufficiency of security

Ratio Decidendi

The appeal is dismissed because (1) the allegation of lack of full and frank disclosure was untenable: the defendant's supporting affirmation expressly referred to both plaintiffs and any complaint should have been raised at the inter partes COA hearing; and (2) the over‑security complaint failed because the appellant did not adduce satisfactory evidence that a single property would cover the judgment debt and prior incumbrances remained unproven, so there was no basis to vary or discharge the COA.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Charging Order Absolute remains in force and will be discharged upon payment in full of the judgment sum and accrued interest as specified in the COA