Hong Kong Case Law: Decisions & Judgments

Topic

Priority of registered instruments

Legal area

Court

3 Jul 2024

WANFU FINANCE COMPANY LTD v. TSE TONG LAM ANTONIO AND ANOTHER

Citation

[2024] HKDC 1080
Court

District Court
Case number

DCCJ3571/2022

The court found there was a serious issue to be tried on the validity and priority of the 3rd Mortgage and that the balance of convenience favoured refusing to vacate the registration: damages were an adequate remedy for D2’s commercial risks, D2’s proposed security (payments into court) was conditional and unreliable, and vacatur would prematurely dispose of substantive issues better determined at trial. Consequently the court ordered discharge of the 2nd Mortgage (agreed by P) but refused to vacate the 3rd Mortgage, and awarded costs against D2 (75%).
19 Nov 2020

FANG QI v. LUO GUIYING

Citation

[2020] HKCFI 2942
Court

Court of First Instance
Case number

HCA770/2019

The court held that it was not arguable that Zhang had a beneficial interest because evidence established a common intention that the Property was a gift to Fang (as reflected in the DOT) so no resulting trust in Zhang arose; further, even assuming Fang had a beneficial interest under the DOT, it was unregistered and would not bind the plaintiff mortgagee, who was a subsequent bona fide mortgagee for value under LRO s.3(2); accordingly both preliminary questions answered 'No' and possession was granted to the plaintiff.
4 Dec 2019

MUI SO BING v. WAN CHI SHING AND OTHERS

Citation

[2019] HKCA 1341
Court

Court of Appeal
Case number

CACV177/2019

Appeal dismissed. Plaintiff was bound by her pleaded case of resulting trust and could not raise alternative equitable causes on appeal that were not pleaded and were fact sensitive; the judge correctly found resulting trust not established; vendor/purchaser and common intention constructive trust arguments fail on the facts and raising them on appeal would be unfair; plaintiff's failure to register written agreements meant registered purchasers took priority under the Land Registration regime; judgment against 1st and 2nd for unjust enrichment stands.
30 Aug 2019

CHIU KWAI PING v. YIP, TSE & TANG (A FIRM)

Citation

[2019] HKCFI 2118
Court

Court of First Instance
Case number

HCA2159/2016

On the pleaded facts it was not plainly and obviously unarguable that the plaintiff's cause of action accrued in 2008; the claimed loss could be contingent until subsequent encumbrances materialised, so the strike‑out on limitation could not be ordered. Therefore the defendant's strike‑out application was dismissed and the claim was allowed to proceed.
30 Apr 2018

SI TOU CHOI KAM v. WEALTH CREDIT LTD

Citation

[2018] HKCA 250
Court

Court of Appeal
Case number

CACV167/2017

Where a court-declared trust shows the judgment debtor never had a beneficial interest, the court lacked jurisdiction to make charging orders under s52AA and those orders must be discharged and their Land Registry registrations vacated; although the declaration is in personam, the defendant with knowledge of the High Court proceedings and who allowed the declaration to be obtained without intervening is estopped from denying it, so the declaration is binding on the defendant in these proceedings.
5 Mar 2018

PAPAYA FOOD & BEVERAGE LTD v. WONG HO YUEN also known as WONG HO YUEN BARRY

Citation

[2018] HKDC 235
Court

District Court
Case number

DCCJ179/2017

Because the defendant showed a real risk of dissipating assets (sale under PSPA with imminent completion), the charging order nisi was insufficient protection in the circumstances (prior PSPA, unknown other encumbrances and practical difficulty and delay in suing the purchaser), and substituted service was justified after reasonable attempts at personal service, the court granted the inter partes Mareva injunction with amended disclosure threshold and ordered substituted service.
12 Sept 2016

MASTER UNIVERSE DEVELOPMENT LTD v. MASS OCEAN INTERNATIONAL LTD AND ANOTHER

Citation

MASTER UNIVERSE DEVELOPMENT LTD v. MASS OCEAN INTERNATIONAL LTD AND ANOTHER
Court

Court of First Instance
Case number

HCA1850/2015

The court dismissed the combined summonses. It held that the pleadings and affidavit material raised factually disputed and interwoven issues — principally whether the registered Leases were sham/fraudulent and whether D2-4 acted as alter egos or in concert to defeat earlier unregistered tenancies — which could not be resolved as pure points of law on O.14A or struck out as plainly unsustainable under O.18 r.19(1)(a). Registration under ss 3-4 LRO gives prima facie priority but does not cure an underlying transaction tainted by actual fraud; those factual issues must proceed to trial.
12 Sept 2016

FORTUNE GAIN INTERNATIONAL INVESTMENT LTD v. MASS OCEAN INTERNATIONAL LTD

Citation

FORTUNE GAIN INTERNATIONAL INVESTMENT LTD v. MASS OCEAN INTERNATIONAL LTD
Court

Court of First Instance
Case number

HCA1849/2015

The court dismissed the combined summonses because the pleadings and affidavit material raised non‑frivolous, fact‑intensive allegations that the registered Leases may be sham transactions effected in collusion to defeat prior equitable tenancies; those interwoven issues of fact and law could not be resolved as a pure point of law or by strike out/summary determination under Order 14A or Order 18, and allegations of actual fraud/breach of trust justified investigation at trial; accordingly registration under the LRO does not automatically defeat the pleaded equitable/fraud allegations without…
27 Jul 2015

LUCKY POWER LTD v. LAM, PHILIP YUNG TAK

Citation

LUCKY POWER LTD v. LAM, PHILIP YUNG TAK
Court

Court of First Instance
Case number

HCA1785/2012

The 1984 Memorandum was an equitable mortgage (deposit of title deeds) and not a sale; Lucky Power, having purchased from the mortgagor and registered its title, may exercise the equitable right of redemption by paying the indebtedness found due under the Memorandum; the unregistered Tenancy Agreement is absolutely void against Lucky Power by virtue of Land Registration Ordinance s3(2) and s4; accordingly Lucky Power is entitled to possession subject to payment of the amount found due and other consequential equitable reliefs.
4 Jun 2013

SIU WING YEE ANGELINE v. EARNING YIELD LTD

Citation

SIU WING YEE ANGELINE v. EARNING YIELD LTD<br>
Court

Court of First Instance
Case number

HCMP1405/2012

The Vacation Order vacating registration of the memorial did not discharge or extinguish the legal charge; the charge remains a subsisting legal estate and encumbrance which can only be released by a valid deed; the Vendor failed to show good title free from encumbrances and the application for declarations and specific performance is dismissed.