LAI KIT HUNG AND ANOTHER v. CHAN YAN WING

LAI KIT HUNG AND ANOTHER v. CHAN YAN WING

On the evidence the lots had been unoccupied since at least 1989, implying the mortgagee had ceased to be in possession from that time; accordingly the plaintiffs fell within s.19(1) and (2) of the Limitation Ordinance and the mortgage is incapable of subsistence or unenforceable by operation of that provision,...

Source-derived case information.

Citation
LAI KIT HUNG AND ANOTHER v. CHAN YAN WING
Parties
Plaintiff (hcmp2653): Wan Tak Lam; Plaintiff (hcmp2655): Lau Chak Keung; Defendant (mortgagee/entity): Luen (or Lun) Hing Tong (also known as Chan Luen Hing Tong); Manager of Defendant (in Person, Served But Absent): Chan Yan Wing
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 September 2002
Case Number
HCMP2655/2002
Procedural Posture
Miscellaneous Proceedings by Originating Summons for Declaratory Relief Concerning Enforceability of a Mortgage / Heard and Judgment Delivered (court of First Instance)
Outcome
Declaration granted that the mortgage is incapable of subsistence or is unenforceable by operation of section 19(1) and (2) of the Limitation Ordinance Cap.347 in each action
Legal Topics
Mortgage, Limitation Period, Declaratory Relief, Possession, Enforceability
Source Language
en
Property Law Limitation Law Civil Procedure Mortgage Limitation Period Declaratory Relief Possession Enforceability

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Parties

Wan Tak Lam

Plaintiff (hcmp2653)

Lau Chak Keung

Plaintiff (hcmp2655)

Luen (or Lun) Hing Tong (also known as Chan Luen Hing Tong)

Defendant (mortgagee/entity)

Chan Yan Wing

Manager of Defendant (in Person, Served But Absent)

Procedural Posture

Miscellaneous Proceedings by Originating Summons for Declaratory Relief Concerning Enforceability of a Mortgage / Heard and Judgment Delivered (court of First Instance)

Legal Issues

  1. 1 Whether the mortgage over the lots is incapable of subsistence or unenforceable by operation of the Limitation Ordinance Cap.347 s.19(1) and (2)
  2. 2 Whether the mortgagee was in possession and when possession ceased for limitation purposes
  3. 3 Whether section 19(5) (statutory bar for interest) can be invoked given lack of evidence of terms and dates of mortgage

Ratio Decidendi

On the evidence the lots had been unoccupied since at least 1989, implying the mortgagee had ceased to be in possession from that time; accordingly the plaintiffs fell within s.19(1) and (2) of the Limitation Ordinance and the mortgage is incapable of subsistence or unenforceable by operation of that provision, warranting a declaratory judgment in their favour.

Court Disposition

Declaration granted that the mortgage is incapable of subsistence or is unenforceable by operation of section 19(1) and (2) of the Limitation Ordinance Cap.347 in each action

Orders

  • In each action, declaration that the mortgage over the relevant lot is incapable of subsistence or unenforceable by operation of section 19(1) and (2) of the Limitation Ordinance Cap.347