Winland Finance Ltd v. Gain Hero Finance Ltd

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FACV No. 5 of 2021

[2022] HKCFA 3

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2021 (CIVIL)

(ON APPEAL FROM CACV NO. 186 OF 2019)

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REASONS FOR JUDGMENT

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Chief Justice Cheung:

1.At the conclusion of the hearing, we dismissed this appeal which raised a short point involving the priority of claims to the proceeds of sale of a property.  These are my reasons.

The facts

2.Tang Shung Ching Sabin[1] was the registered owner of the property known as Flat No. 1F, Ground Floor, Block 2, Lung Cheung Court, No. 29 Broadcast Drive, Kowloon together with a car parking space in the residential development[2].  The development had been constructed under a government housing scheme for civil servants.  Tang purchased the Property and became its registered owner in 2004.  Under the legal assignment by which he purchased the Property, the Property was assigned to him subject to certain “non-alienation” covenants, which prohibited him from assigning, mortgaging, charging or otherwise parting with possession of the Property or any interest therein, or entering into any agreement to do so, without the previous written consent of the Financial Secretary Incorporated[3].  Such consent would generally be granted only upon payment of a premium to the FSI.

3.To secure the performance of the non-alienation covenants, Tang gave a legal charge over the Property in favour of the FSI.  The legal charge, like the assignment containing the non-alienation covenants, was registered in the Land Registry.

4.Over the years, Tang borrowed various loans from no less than five finance companies, including Winland Finance Limited[4] and Gain Hero Finance Limited[5], respectively the appellant and respondent in this appeal.

5.No doubt because of the prohibitions created by the non-alienation covenants, these loans could not be secured by any mortgage or charge over the Property, and means were adopted to obtain some form of security for the loans and have the loan agreements registered in the Land Registry.

6.In the case of Winland, this was sought to be done by means of an assignment of the balance of all future proceeds of sale of the Property receivable by Tang to Winland as security for the repayment of the loan.  In clause 9 of the loan agreement dated 23 July 2014[6] whereby the loan of $2.2 million was advanced to Tang, the following was provided :

“9.1 In consideration of the Facility advanced by the Lender under this Agreement and as security for repayment of all the indebtedness owed to the Lender by the Borrower, the Borrower as Beneficial Owner hereby assigns and agrees to assign to the Lender all his /her /their right and interest (“Assigned Rights”) to and in the balance of the consideration or purchase money for the sale of the Property more particularly described herein (after deduction and payment of any premium payable to the Government of Hong Kong Special Administrative Region the amount provided for removal of the restriction against alienation of the Property contained in clause 4 of the Assignment registered in the Land Registry by Memorial No.UB9403278 and any redemption money payable to the mortgagee /chargee under the existing Mortgage /Legal Charge of the Property) and any money whatsoever accrued or payable to the Borrower, in the Borrower's capacity as owner, vendor, assignor, transferor or mortgagor, from the purchaser, assignee, transferee or mortgagee of the Property or any other person(s) subject to the provisos contained in clauses 9.4 and 9.3 hereof ...

9.2 Upon full payment to the Lender of all the indebtedness owed by the Borrower to the Lender, the Lender shall at the request and cost of the Borrower reassign the Assigned Rights to the Borrower.

9.3 If, for whatsoever reason, the assignment of the Assigned Rights mentioned in clause 9.1 hereof does not have the effect as such, the agreement to assign made by the Borrower under the said clause 9.1 shall operate to assign the Assigned Rights and there shall deem to be an effective assignment of the Assigned Rights as soon as the Borrower is in the position to make such an assignment and the Borrower hereby covenants to the Lender that the Borrower shall from time to time at the request of the Lender execute all such documents and do all such acts as may be necessary to perfect to give effect to the said assignment.

9.4 The Borrower hereby IRREVOCABLY NOMINATED AND APPOINTS the Lender to be the Borrower's true and lawful attorney for the Borrower and in the Borrower's name or in the name of the Lender as such attorney at any time or times during the continuance of this Agreement to do perform transact and effectuate all or any of the following acts, deeds, matters and things:-

(i)  to receive the balance of the consideration or purchase money for the sale of the Property (after deduction and payment of any premium payable to the Government of the Hong Kong Special Administrative Region the amount provided for removal of the restriction against alienation of the Property contained in clause 4 of the Assignment registered in the Land Registry by Memorial No.UB9403278 and any redemption money payable to the mortgagee /chargee under the existing Mortgage /Legal Charge of the Property) and any money whatsoever accrued or payable to the Borrower …

9.5 The Borrower hereby covenants to the Lender that except with the written consent of the Lender, the Borrower shall not sell, charge, mortgage, dispose of or otherwise deal with the Property or any interest therein before the Borrower has fully settled all indebtedness under this Agreement.

…

9.7 For the purpose of notifying the public of the Lender's right to receive the consideration or purchase money for the sale of the Property and other money as aforesaid, the parties hereto shall register this Agreement against the Property in the relevant Land Registry.”

7.As envisaged in clause 9.7, the parties managed to have their loan agreement registered in the Land Registry on 17 September 2014.

8.Relevantly, on 27 November 2014, Tang borrowed another sum of $1 million from Gain Hero.  Under the loan agreement, Tang agreed not to sell or create or enter into any charge, lien or other encumbrance over the Property or otherwise dispose of the Property until full repayment.  He also appointed Gain Hero as his attorney to “receive payment of the balance of purchase price” payable on completion of the sale of the Property.  The parties also successfully procured the registration of the loan agreement in the Land Registry on 8 December 2014.

9.Tang defaulted in repayment of the loan due to Gain Hero.  On 8 June 2015, Gain Hero obtained judgment against Tang for the sum of $1,130,684.93 together with interest and costs[7].

10.On 29 June 2015, Gain Hero obtained a charging order nisi against the Property in enforcement of the judgment debt.  On 4 August 2015, Gain Hero obtained a charging order absolute.  Both the charging order nisi and charging order absolute were registered by Gain Hero in the Land Registry against the Property.

11.On 23 June 2016, Gain Hero commenced proceedings[8] for the sale of the Property in enforcement of the charging order.  On 13 March 2017, the court made an order for the sale of the Property at a price of not less than $8 million, unless Tang should, within 28 days, redeem the Property by paying the outstanding judgment debt together with interest and costs – which Tang never did.  The order directed that the proceeds of sale be distributed in the following order :

“(a) for payment of premium (if any) to the Lands Department;

(b) for discharge of all Government rent, taxes, rates and other outgoings due and affect the Property;

(c) for payment to prior encumbrancer ranking immediately before the Charging Order, if any;

(d) for payment of costs and expenses incurred incidental and in relation to the sale and discharge of all auctioneer’s remuneration and/or estate agent’s commission, not exceeding 1% of the selling price;

(e) for payment of the legal costs of the sale of the Property, not exceeding HK$12,000.00 excluding disbursements and reimbursement to the Plaintiff for any fees paid to the Lands Department for the purpose of assessment of premium;

(f) for payment of such amount due and owing under the Charging order as set out in paragraph 1 above;

(g) for payment of the Plaintiff’s costs of the present proceedings as set out in paragraph 7 herein; and

(h) any surplus be paid to the subsequent incumbrancer ranking immediately behind the Charging Order and if there is none, be paid to the Defendant.”

12.The order for sale was registered in the Land Registry on 29 March 2017.

13.On 31 August 2017, the Property was agreed to be sold to a purchaser for $10.08 million.

14.On 4 September 2017, Winland was informed of the intended sale of the Property pursuant to the court order.  Winland, whose loan to Tang had also remained outstanding, maintained that the price of $10.08 million was below the market value of the Property. In any event, it also contended that it had priority over Gain Hero to the net proceeds of sale.

The CFI decision

15.This eventually led to the commencement of two sets of proceedings between Winland and Gain Hero[9], raising a number of issues which were resolved by Deputy High Court Judge Keith Yeung SC (as he then was) in his decision dated 21 March 2019[10]. Of these issues, only one remained contentious in this appeal, namely the question of priority in relation to the net proceeds of sale of the Property after deduction of the amount required to discharge the encumbrance registered in favour of the FSI.  However, it is noteworthy that one other issue decided by the deputy judge was that the assignment of proceeds of sale under clause 9 of the Winland loan agreement did not create any interest in or otherwise affect the Property, and was therefore not registrable in the Land Registry under the Land Registration Ordinance[11]. He therefore ordered the registration to be vacated[12]. From that particular decision, there was no appeal.

16.In relation to the question of priority, the deputy judge also held in favour of Gain Hero.  He decided that the charging order obtained by Gain Hero was a charge on Tang’s beneficial interest in the Property itself.  It was not simply a charge over the proceeds of sale of the Property.  He held that Gain Hero’s interest thereunder had priority over any unregistrable interest which Winland had in any future sale proceeds of the Property under the Winland loan agreement[13].

The Court of Appeal judgment

17.On appeal[14], the Court of Appeal agreed with the deputy judge[15]. Giving the lead judgment of the court, Yuen JA referred to the submission on Winland’s behalf that its claim had priority “because [Gain Hero’s] interest under the Charging Order arose after [Winland’s] interest under the Assignment ... (bearing in mind the equitable nature of the interest created by the Charging Order)”[16] and explained :

“27.2 I do not accept that submission as it ignores the difference in the class of assets. GH [Gain Hero]’s interest was in a different class (an interest in the Property given by statute) from that of WF [Winland]’s (an interest in future proceeds).

27.3 The enhanced status of a holder of a Charging Order is obvious. He can enforce it by sale, or by the appointment of a receiver to receive rents. And if he applies to court for sale of the land, the debtor can only redeem the land if he makes full repayment of the debt. The debtor cannot get any share of the proceeds for himself before the debt owed to the holder of the Charging Order is entirely satisfied.

28.1 It was argued on behalf of WF that the nature of the Charging Order is equitable. That is so, but that only refers to the nature of the interest. What is crucial is the class of the asset. To compare GH’s interest in the land with WF’s interest in the proceeds is not comparing like with like, for they are not within the same class of assets. Put another way, after GH obtained the Charging Order, WF could not enjoy any “equal equity” because WF’s security interest remained attached to the proceeds only.

28.2 Since Tang must defer to GH in his claim to proceeds, WF (as the assignee of Tang’s rights) cannot enjoy better rights than him. The judge was clearly right when he held that, like Tang, WF can only get its hands on what is left after GH has satisfied its loan.”

Leave to appeal

18.By a notice of motion dated 24 May 2021, Winland sought leave to appeal on a question of law of great general or public importance:

“What is the priority to the sale proceeds (“Proceeds”) of real property (“Property”) as between (i) an earlier assignee of the Proceeds pursuant to an equitable assignment of the same before the Property was sold and (ii) a judgment creditor who obtained a later charging order against the Property.”

19.By an order dated 9 August 2021, the Court of Appeal gave leave to appeal, and thus this appeal.

Counsel’s arguments

20.Ms Audrey Eu SC[17], for Winland, essentially submitted that an assignment of future property takes effect in equity immediately upon the assignment provided the assignee has given value; whereas under section 20B(3) of the High Court Ordinance[18], a charging order has the effect of and is enforceable in the same manner as “an equitable charge created by the debtor by writing under his hand”.  As opposed to a mortgage which gives the mortgagee an interest in the property in question, a charging order is simply a statutory security whereby the property is appropriated for the payment of the judgment debt, which is achieved by selling the property and using the proceeds to pay off the judgment debt under a court order for sale.  In essence, a charging order, taking effect as an equitable charge, only operates to give the judgment creditor an interest in the proceeds of sale.  Since the equitable assignment of the proceeds of sale under clause 9 of the Winland loan agreement was created prior to the charging order obtained by Gain Hero, the applicable priority rule should be that which governs competing priority between equitable interests, namely that the first-in-time prevails[19].

21.A variation on the same theme was that Tang could not give to Gain Hero what he did not have (nemo dat quod non habet[20]). In other words, Gain Hero could not by its charging order get any more than whatever Tang could honestly give him.  Its interest in the Property under the charging order was subject to every liability under which Tang held the Property.  Gain Hero was not a subsequent bona fide mortgagee or purchaser for valuable consideration as it gave no fresh consideration in obtaining a charging order[21]. It therefore could not invoke the “equity’s darling” exception to the nemo dat rule.

22.Ms Eu contended that the Court of Appeal erred in effectively holding that, in law, there is a “class” exception to the “nemo dat” or “first-in-time prevails” principle[22]. She submitted that the dispute over priority in this case related to the proceeds, not the Property, and therefore there was no question of any different class of interest involved.

23.Gain Hero basically repeated its arguments below and supported the lower courts’ reasoning.

Discussion

24.What was not in issue in this appeal was that an assignment of future property, including, as in the present case, the future proceeds of sale of a property (if and when sold), is more than a contract to assign the proceeds in future but takes effect in equity immediately upon the assignment provided the assignee has given value.  When the subject matter comes into existence, the beneficial interest vests immediately in the assignee.  Equity, treating that as done which ought to be done, fastens upon the property, and the contract to assign becomes in equity a completed assignment.  The equitable ownership in the property passes automatically to the assignee, without any intermediate vesting of the beneficial interest in the assignor.  Once the future property comes into existence and is acquired by the assignor, the rights of the assignee are deemed to “relate back” to the date of the assignment[23].

25.Therefore, there was no dispute in the present appeal that the assignment of the balance of the sale proceeds of the Property (if and when sold) by Tang in favour of Winland was an equitable assignment of the future proceeds and took effect in equity immediately upon the making of the assignment.

26.However, what was also no longer in dispute after the CFI decision was that the assignment of the future proceeds did not create any interest in or otherwise affect the Property, so much so that the registration of the Winland loan agreement in the Land Registry against the Property was rightly vacated[24]. This is because only instruments in writing that affect land may be registered in the Land Registry under the Land Registration Ordinance: section 2(1)[25]. Instruments that do not affect land are simply not registrable.  The provisions in sections 3(1) and (2)[26], which govern priority, are only applicable to instruments that are registrable under the Land Registration Ordinance – where the instruments are all so registered, section 3(1) determines priority; where a prior instrument that is registrable is not registered, section 3(2) applies to render it “absolutely null and void to all intents and purposes” as against “any subsequent bona fide purchaser or mortgagee for valuable consideration of the same [land]”.  Where, however, an instrument does not affect land and is therefore not registrable, those provisions simply have no application[27].

27.The significance of all this to the instant appeal lies in the fact that the assignment of the future proceeds of sale simply did not create an interest in or otherwise affect the Property.  What Winland got under clause 9 of its loan agreement was merely an equitable chose in action in respect of the future proceeds but, importantly, it obtained no interest whatsoever in the Property itself – that is why the loan agreement was not registrable in the first place.

28.This is important because it means that so far as Tang’s beneficial interest in the Property was concerned, it was unencumbered by the assignment of the future proceeds in favour of Winland.  So far as the Property was concerned, immediately before the making of the charging order, the only relevant encumbrance on the Property was the legal charge in favour of the FSI.

29.A charging order, on the other hand, is a creature of statute which affects land.  Sections 20A(1) and (2) of the High Court Ordinance provide that “a charge may be imposed by a charging order” on an interest held by the debtor beneficially in land.  Section 20B(3) goes on to provide that “a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the debtor by writing under his hand”.

30.Sections 20B(2) and (5) specifically provide for the registration and the vacating of the registration of a charging order in the Land Registry upon the making and discharge of a charging order respectively.

31.There can be no dispute that a charging order affects land and is registrable as such in the Land Registry[28]. It has like effect as an equitable charge, and is enforceable by a court order for sale of the land for the purpose of satisfying the outstanding judgment debt[29]. Contrary to what Ms Eu seemed to suggest at one stage during argument, a charging order does not simply affect the proceeds of sale of the land involved but also the land itself.  In Yasaki International Co Ltd[30], Godfrey J (as he then was) rejected a similar argument :

“Mr Yau then suggested, alternatively, that even if the assignment did not affect an interest in land, it was in no worse case than Yasaki’s charging order, which itself affected only the proceeds of sale of land. But I do not think this is correct. The effect of the charging order is prescribed by s20B(3) of the Supreme Court Ordinance (Cap 4). This provided that a charge imposed by a charging order shall have the like effect and shall be enforceable in the same courts and in the same manner as an equitable charge created by the debtor by writing under his hand. The charge so created would be a charge on the land itself, and not simply a charge over the proceeds of sale of that land.”

32.It is true that at common law, “a mortgage involves a transfer of legal or equitable ownership to the creditor, whereas an equitable charge does not”[31], and an equitable chargee “only gets a right to have the security [ie the charged property] made available by an order of the court”, but “gets no legal right of property, either absolute or special, or any legal right to possession” [32]. It is also true that an equitable charge only confers on the chargee “rights to apply to the court for an order for sale or for the appointment of a receiver [and thus to appropriate the rents and profits of the land], but no right to foreclosure (so as to make the property his own) or [to] take possession”[33]. Nonetheless, the availability of equitable remedies “has the effect of giving the chargee a proprietary interest by way of security in the property charged”[34], albeit that “the interest, though registrable against the chargor, remains inchoate and ineffectual until an order of the court is made”[35].

33.It does not follow from the fact that the proprietary interest that an equitable chargee (and therefore a judgment creditor under a charging order) has in the charged property is “inchoate and ineffectual” until an order of the court is made for the sale of the property that an equitable charge or a charging order is no or little more than a mere charge over the proceeds of sale.  It is one thing to be “inchoate and ineffectual” for the time being; it is another to say that it is not in existence at all as a proprietary interest in the property.  Nor should one confuse the subject matter of the charge/security with its means of enforcement.  Before the sale, an equitable charge or a charging order remains a proprietary interest in the property and is an encumbrance on it.

34.One consequence of this is that even if the chargee does not apply for a court order for sale to enforce the security, where the chargor/owner for whatever reason wants to sell the property, it can only be sold and a good title passed to the purchaser after or upon the discharge of the equitable charge or charging order as an encumbrance on the property, just like any other encumbrances on it.  And where the proceeds of sale from the purchaser are the only source of money to pay off these encumbrances, the proceeds must first be so applied, which means that the chargee must be paid off first before any balance proceeds may be received by the chargor/owner or his assignee of the balance proceeds.

35.Analysed this way, Ms Eu’s attempt to downgrade a charging order to an equitable security over the proceeds of sale in order for her to apply the “first-in-time prevails” priority rule cannot be accepted.

36.In the present case, the charging order that Gain Hero obtained against Tang was directed at Tang’s beneficial interest in the Property.  As explained, as at the time when the charging order was made, his interest in the Property was only subject to the legal charge in favour of FSI, but was otherwise unencumbered, as the earlier assignment of the future sale proceeds of the Property was not an assignment which created an interest in or otherwise affected the Property itself.  This being the case, the charge created by the charging order, being a charge on the beneficial interest of Tang in the Property, was a charge over the Property subject only to the prior legal charge in favour of FSI but nothing else.  It was not subject to the earlier assignment of the future sale proceeds.

37.Pausing here, it should be noted that the nemo dat maxim or the equitable principle of “first-in-time prevails” simply has no relevance to the legal analysis thus far.  Tang’s beneficial interest in the Property was not in any way encumbered by the assignment of the future sale proceeds such that he could not pass an unencumbered proprietary interest (subject only to the legal charge) to Gain Hero under the charging order. Likewise, the subject matter of the earlier assignment of the future sale proceeds and the subsequent charging order over the Property being different, the equitable principle of “first-in-time prevails” simply has no application.

38.Moving on, when a charged property is sold pursuant to an order for sale, the property is of course converted into the proceeds of sale.  Invariably, the order for sale would give directions for the distribution of the sale proceeds, which was what happened in the present case.  Generally speaking, the court order should first provide for the discharge of all rent, taxes and rates and other outgoings due and affecting the property with the proceeds of sale, and then the discharge of all prior encumbrances on the property, that is, encumbrances which have priority over the charging order, as well as the costs and expenses of sale.  The remaining proceeds will then be used to pay off the outstanding judgment debt and other monies covered by the charging order.  If there is any surplus money, it will be used to repay the indebtedness of any other secured creditors whose securities on the property rank behind the charging order.  If there is still any money left, it will go to the chargor/judgment debtor or his assignee of the proceeds[36]. Indeed, the order for sale in the present case gave similar directions for the distribution of the proceeds of sale.

39.As explained, the equitable assignment of the proceeds of sale under the Winland loan agreement did not give Winland any priority over Gain Hero’s charging order on the Property.  Indeed, it did not give Winland any proprietary interest in the Property itself at all, and did not constitute an encumbrance on the Property.  Winland’s entitlement to the proceeds of sale was derived from the judgment debtor/chargor (Tang)’s entitlement to the surplus proceeds, if any.  It must therefore rank last.

40.In this regard, it should be noted that an assignment of the future proceeds of sale by an owner like Tang can only operate to assign the owner’s future entitlement to the proceeds of sale in favour of the assignee.  The assignor cannot assign to the assignee what he is not entitled to receive by way of proceeds of sale upon the sale of the property.  This is simply an application of the nemo dat maxim.  Indeed, clause 9 of the Winland loan agreement in the present case only sought to assign to Winland Tang’s “right and interest … to and in the balance of the consideration or purchase money for the sale of the Property … in [his] capacity as owner, vendor …”, and did not purport to do otherwise.

41.All this means that in the present case, the proceeds of sale from the purchaser must, relevantly, go first towards discharging the outstanding judgment debt and other sums of money covered by the charging order, before any surplus can be released to Tang’s assignee to the proceeds of sale, that is, Winland.  Analysed this way, in terms of “priority” to the proceeds, Gain Hero must rank before Winland.

Disposition

42.For these reasons, the appeal was dismissed with costs.

Mr Justice Ribeiro PJ:

43.I agree with the reasons for judgment of the Chief Justice.

Mr Justice Bokhary NPJ:

44.I respectfully agree with the Chief Justice’s judgment, adding only my acknowledgment of the skill with which Ms Audrey Eu SC argued the equitable assignee’s case.  No skill could overcome the difficulty that (i) the proceeds equitably assigned were those of a contemplated sale of real property free from encumbrances and that (ii) the charge imposed by the registrable and registered charging order obtained by the other side had become an encumbrance to be removed before arriving at any proceeds to which the equitable assignee could have recourse.

Mr Justice Chan NPJ:

45.I agree with the reasons for judgment of the Chief Justice.

Madam Justice McLachlin NPJ:

46.I agree with the reasons for judgment of the Chief Justice.

Ms Audrey Eu SC, Mr Michael Yin and Mr Isaac Chan, instructed by Ho & Partners, for the plaintiff (appellant)

Mr Jeevan Hingorani, Mr Lawrence Cheung and Ms Teresa Leung, instructed by HY Leung & Co LLP, for the defendant (respondent)