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Hong Kong decisions
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The District Court granted a money lender’s judgment, possession and sale of the mortgaged flat after the defendants failed to appear or repay the loan.
The Court of First Instance allowed a late-evidence appeal, granting the 3rd Defendant leave to file a second affirmation and giving the Plaintiff 28 days to reply.
The Court entered judgment for the lender, rejected the 1st Defendant’s defences, ordered sale of the co-owned property under the Partition Ordinance, and awarded indemnity costs.
Court upheld solicitor-and-own-client costs, granted certificates for two counsel, refused to cap costs under the second mortgage, and sent costs to taxation.
The court held that Ho Yuk Lan proved a common intention constructive trust over three properties, but Konew was a bona fide mortgagee without notice.
The court refused to admit the new affidavit evidence because the Ladd v Marshall test was not satisfied; having balanced the statutory breaches against the circumstances under the Money Lenders Ordinance, the court exercised its discretion under s18(3) (and related provisions) to enforce the loan agreements and mortgage, dismissed the second defendant's appeal, emergency application and counterclaim, and awarded costs to the plaintiff.
Source excerpt
The District Court dismissed a bank’s appeal, holding the Master could inquire into a carry-on order and service issues before judgment in a mortgagee action.
The District Court held HSBC’s surplus mortgage-sale proceeds were an equitable debt attachable by garnishee proceedings, making third-party discovery unnecessary.
The applications were dismissed because the second defendant failed to produce evidence establishing an arguable beneficial interest or any basis to show the plaintiff was not a bona fide mortgagee; consequently there was no real prospect of success on appeal and a stay would cause prejudice to the plaintiff given the falling market value and resulting shortfall.
Source excerpt
The Court of First Instance held that Credit One was subrogated to a prior acquisition mortgage and had priority over the wife’s alleged beneficial interest, so joinder failed and the registered notice was vacated.
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