RE HO CHUNG DEVELOPMENT LTD AND ANOTHER

RE HO CHUNG DEVELOPMENT LTD AND ANOTHER

Under s.12A CPO the court, exercising its discretion, may allow payment into court to redeem an encumbrance and declare land free where the encumbrancer cannot be found; here the encumbrancer/trustee could not be located, the mortgage was treated as subsisting and the court found payment of HK$2,448 (principal plus notional interest at 20% for 107 years plus margin) adequate, therefore ordered payment into court and declared the properties discharged upon payment.

Citation
RE HO CHUNG DEVELOPMENT LTD AND ANOTHER
Parties
1st Applicant: Ho Chung Development Limited; 2nd Applicant: Wealth China Creation Limited; Encumbrancer: Lai Kwan Yau Tso; Trustee: Lai Un Shang
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
11 November 2011
Case Number
DCMP2358/2011
Procedural Posture
Section 12 a Conveyancing and Property Ordinance Application (miscellaneous Proceedings) / Ex Parte Application and District Court Judgment
Outcome
Application granted: payment into court ordered and declaration that properties be discharged upon payment; no order as to costs.
Legal Topics
Discharge of Encumbrance, Payment Into Court, Mortgage Redemption, Jurisdiction, Statutory Interpretation of S.12 a
Source Language
EN
Property Law Conveyancing Equity Civil Procedure Discharge of Encumbrance Payment Into Court Mortgage Redemption Jurisdiction +1 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 4 Authorities cited 4 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Ho Chung Development Limited

1st Applicant

Wealth China Creation Limited

2nd Applicant

Lai Kwan Yau Tso

Encumbrancer

Lai Un Shang

Trustee

Procedural Posture

Section 12 a Conveyancing and Property Ordinance Application (miscellaneous Proceedings) / Ex Parte Application and District Court Judgment

Legal Issues

  1. 1 Whether the court has jurisdiction to hear an ex parte s.12A application to permit payment into court to redeem a mortgage
  2. 2 Whether payment into court of a specified sum will suffice to discharge a long‑standing mortgage when the encumbrancer cannot be found
  3. 3 What sum (principal plus interest) is adequate to redeem the mortgage and appropriate interest rate to apply

Ratio Decidendi

Under s.12A CPO the court, exercising its discretion, may allow payment into court to redeem an encumbrance and declare land free where the encumbrancer cannot be found; here the encumbrancer/trustee could not be located, the mortgage was treated as subsisting and the court found payment of HK$2,448 (principal plus notional interest at 20% for 107 years plus margin) adequate, therefore ordered payment into court and declared the properties discharged upon payment.

Court Disposition

Application granted: payment into court ordered and declaration that properties be discharged upon payment; no order as to costs.

Orders

  • 1. The 1st and 2nd Applicants are, within 14 days, at liberty to pay into Court the sum of HK$2,448.00, being the balance of principal and interest in respect of the mortgage dated 27 March 1905 in favour of Lai Kwan Yau Tso in respect of the properties.
  • 2. Upon payment to the Court of the said sum of HK$2,448.00 the said properties shall be freed and discharged from the mortgage.