Konew Capital International Ltd v. Lee Chi Sang and Another
Read the full judgment text of DCMP 4703/2021 on BabelCite. This District Court judgment was delivered on 11 August 2022.
1. At the hearing on 4 August 2022, I granted an order in terms of the reliefs sought by the plaintiff. Here are my reasons.
Cites 2 cases
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DCMP 4703/2021 [2022] HKDC 841 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO 4703 OF 2021 --------------------------- BETWEEN
--------------------------- Before: Deputy District Judge B Mak in Chambers Date of Hearing: 4 August 2022 Date of Decision: 11 August 2022 --------------------------- DECISION --------------------------- Introduction 1.At the hearing on 4 August 2022, I granted an order in terms of the reliefs sought by the plaintiff. Here are my reasons. Acknowledgment of service 2.Both the 1st and 2nd defendants entered an acknowledgment of service on 12 and 14 January 2022 respectively stating that they are not going to contest the proceedings. Thereafter, they took no step in the proceedings. 3.The notice of appointment to hear originating summons was served on the 1st and 2nd defendants by ordinary post at their address for service on 14 June 2022. 4.I am satisfied that the 1st and 2nd defendants have due notice of these proceedings and hearing and they have chosen not to take any action nor to appear. The plaintiff’s case 5.The plaintiff is a licensed money lender. 6.The 1st and 2nd defendants are the registered owners as joint tenants of Flat 4, 32nd Floor, Block B, Fung Shing Court, Nos 2-6 (No 4) Fung Shek Street, Shatin, New Territories, Hong Kong (“the property”) 7.By a mortgage dated 15 May 2019 (“the Mortgage”), a second mortgage dated 16 January 2020 (“the 2nd Mortgage”), the 1st defendant as borrower of one part and the plaintiff as the lender of the other part, the 1st defendant charged his interest in the property to the plaintiff to secure the repayment of the general credit facilities to the extent of HK$1,500,000 and HK$500,000 respectively. 8.By a loan agreement dated 16 January 2020, the plaintiff lent the sum of HK$1,750,000 to the 1st defendant at the interest rate of 30% per annum. 9.The 1st defendant made default since 16 October 2020. The outstanding principal at the commencement of these proceedings is HK$1,719,429.15. 10.The 1st defendant was adjudged bankrupt on 11 January 2022. 11.By the order of Master Phoebe Man dated 27 May 2022 in HCB 6747/2021, leave was given to the plaintiff to proceed with the present action against the 1st defendant. Money judgment 12.The plaintiff’s case is not controverted and I accept it at its face value. 13.I am satisfied that the plaintiff has in form and in substance complied with the requirements of a moneylender’s action under Order 83A. The plaintiff is entitled to recover the outstanding principal of $1,719,429.15 and interest. Order for possession 14.Clause 5.01(b) of the Mortgage provides that:-
constitutes an Event of Default. 15.Clause 6.01 of the Mortgage provides that:-
16.Clause 7.1 of the 2nd Mortgage provides that the lender shall be entitled to declare all or any part of the security immediately enforceable if the borrower makes default in the payment on the due date and in accordance with the terms and conditions relating thereto of any principal or interest or other moneys outstanding and payable by the borrower under any term loan account (whether demanded or not). 17.Clause 8 of the 2nd Mortgage provides that after the security has become enforceable, the lender may appoint a receiver who has the right to take possession of, collect and get in the property and to take the rents and profits thereof. 18.I am satisfied that the requirements of Order 88 have been complied. 19.By reason of the default of the 1st defendant, the plaintiff is entitled to an order for possession of the property. Order of sale 20.As the 1st defendant had made default in payment, the plaintiff as mortgagee became a person holding an interest in the property under s 3 of the Partition Ordinance and may institute the present proceedings: see Maxcolm Finance Ltd v Cheng Chi Man and another [2019] HKCFI 2928 and Moneysq Ltd v Liu Kit Ling and another [2019] HKDC 860. 21.The property is a residential flat in a multi-storey building with a saleable area of approximately 490 sq ft. I accept Mr Lo’s submission that it is impracticable to divide the property into two halves. Moreover, neither the 1st nor the 2nd defendant has tendered any reason by affidavit as to why an order for sale under the Partition Ordinance should not be granted; why it is not impracticable to physically partition the property into two halves; why a sale of the property would not be beneficial to all the parties or that significant hardship would be caused to the 2nd defendant. 22.In any event, the 2nd defendant shall be entitled to half of the proceeds of sale. 23.Accordingly, I am satisfied that an order of sale ought to be made and I so order. Reserved price 24.The plaintiff has produced a valuation report which opined that the value for the sale of the property under repossession as at 4 January 2022 is in the order of HK$5,200,000. 25.I accept the said valuation and direct that the property shall be sold with a reserved price of HK$5,200,000. Costs 26.By summary assessment, I order the 1st defendant to pay the plaintiff the costs of this action in the sum of HK$80,000.
Mr Lo C H, of V Hau & Chow, for the plaintiff The 1st and 2nd defendants were not represented and did not appear | ||||||||||||||||