28 Mar 2001
JAPAN LEASING (HONG KONG) LTD. v. SHUN KAI FINANCE CO. LTD.
- Citation
- JAPAN LEASING (HONG KONG) LTD. v. SHUN KAI FINANCE CO. LTD.
- Court
- Court of First Instance
- Case number
- HCMP3604/1999
The appeal is allowed because (1) under Hong Kong law the sub-mortgage is a legal charge and the mortgagee lacks an inherent right to enter into possession pre-default; (2) the plaintiff was in insolvent liquidation at the relevant date so mandatory statutory set-off may eliminate or reduce any clear arrears as at the winding up date, creating a real triable issue; and (3) there are triable issues whether the plaintiff consented or is estopped from denying consent to the defendant's proceedings against the sub-borrower. Given these triable issues the court must not order possession or sale at…