CHUNG SUNG TIM v. CHUNG TSAN üN

CHUNG SUNG TIM v. CHUNG TSAN üN

On the evidence that the mortgagor's successors (from 1973) and the Plaintiff (since 1996) remained in possession without any demand or disturbance by the mortgagee or successors for over twenty years, the mortgage is incapable of subsistence or unenforceable by operation of the Limitation Ordinance and a declaration should be made that the land vests in the Plaintiff free from that mortgage.

Citation
CHUNG SUNG TIM v. CHUNG TSAN üN
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 May 2000
Case Number
HCMP5491/1999
Procedural Posture
Originating Summons / Judgment
Outcome
Mortgage declared incapable of subsistence or unenforceable by operation of the Limitation Ordinance; land (Lot 1145) declared to vest in the Plaintiff free from the mortgage.
Legal Topics
Limitation of Actions, Extinguishment of Mortgages by Limitation, Possession, Order 88 Rules of the High Court, Block Crown Lease
Source Language
EN
Limitation Property Equity Civil Procedure Limitation of Actions Extinguishment of Mortgages by Limitation Possession Order 88 Rules of the High Court +1 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Originating Summons / Judgment

Legal Issues

  1. 1 Whether the mortgage recorded in the Schedule to the Block Crown Lease dated 27 March 1905 is incapable of subsistence or unenforceable by operation of the Limitation Ordinance
  2. 2 Whether the land (Lot 1145) vests in the Plaintiff for the entire legal and beneficial interest free from the mortgage
  3. 3 Whether the order should be framed under Section 19 of the Limitation Ordinance and/or Order 88 of the Rules of the High Court or worded consistently with Fung Kam Cheung

Ratio Decidendi

On the evidence that the mortgagor's successors (from 1973) and the Plaintiff (since 1996) remained in possession without any demand or disturbance by the mortgagee or successors for over twenty years, the mortgage is incapable of subsistence or unenforceable by operation of the Limitation Ordinance and a declaration should be made that the land vests in the Plaintiff free from that mortgage.

Court Disposition

Mortgage declared incapable of subsistence or unenforceable by operation of the Limitation Ordinance; land (Lot 1145) declared to vest in the Plaintiff free from the mortgage.

Orders

  • Declaration that Lot 1145 in Demarcation District No. 10 Tai Po vests in the Plaintiff for the entire legal and beneficial interest therein free from the mortgage recorded in the Schedule to the Block Crown Lease dated 27 March 1905.
  • Order made under the Limitation Ordinance (s.19) and pursuant to the court's jurisdiction under the Rules of the High Court (Order 88), wording to be consistent with Fung Kam Cheung.