SHING DAVID v. LAU KWAN HOI AND ANOTHER

SHING DAVID v. LAU KWAN HOI AND ANOTHER

Because the mortgage was recorded only in the 1905 Block Crown Lease with no known terms, and the property and mortgage had been in undisturbed possession of the plaintiff and predecessors for decades with no challenge, the court applied the Limitation Ordinance and the principles in Fung Kam Cheong v. Kwok Yiu Wing and held the mortgage incapable of subsistence or otherwise unenforceable.

Citation
SHING DAVID v. LAU KWAN HOI AND ANOTHER
Parties
Plaintiff: Shing David; 1st Defendant: Lau Kwan Hoi; 2nd Defendant: Lau Hon Ping
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 June 2001
Case Number
HCMP3596/1999
Procedural Posture
Originating Summons (hcmp) / Judgment
Outcome
Declaration granted that the mortgage noted in the 1905 Block Crown Lease is incapable of subsistence or otherwise unenforceable by operation of the Limitation Ordinance.
Legal Topics
Limitation Ordinance, Mortgage Enforceability, Title and Possession
Source Language
EN
Limitation Law Property Law Equity Mortgages Limitation Ordinance Mortgage Enforceability Title and Possession

Case Brief

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Parties

Shing David

Plaintiff

Lau Kwan Hoi

1st Defendant

Lau Hon Ping

2nd Defendant

Procedural Posture

Originating Summons (hcmp) / Judgment

Legal Issues

  1. 1 Whether a mortgage evidenced only by an entry in a 1905 Block Crown Lease with no known terms is capable of subsistence
  2. 2 Whether the Limitation Ordinance, Cap.347 renders a long dormant mortgage unenforceable
  3. 3 Application of Fung Kam Cheong v. Kwok Yiu Wing to facts of undisturbed possession

Ratio Decidendi

Because the mortgage was recorded only in the 1905 Block Crown Lease with no known terms, and the property and mortgage had been in undisturbed possession of the plaintiff and predecessors for decades with no challenge, the court applied the Limitation Ordinance and the principles in Fung Kam Cheong v. Kwok Yiu Wing and held the mortgage incapable of subsistence or otherwise unenforceable.

Court Disposition

Declaration granted that the mortgage noted in the 1905 Block Crown Lease is incapable of subsistence or otherwise unenforceable by operation of the Limitation Ordinance.

Orders

  • Declaration that the mortgage made in favour of the 1st Defendant as set out in the Block Crown Lease is incapable of subsistence or is otherwise unenforceable.