Success Road Finance Ltd. v. Mak Kon Sang and Another

HCMP000938/1998

HCMP938/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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Coram: Hon Mr Justice PANG in Court

Date of hearing: 8 February 1999

Date of delivery of judgment: 8 February 1999

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J U D G M E N T

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1. This is an appeal by way of re-hearing against the order by Master Bharwaney dated 28 September 1998. The present proceedings were commenced under Order 88 of the High Court rules pursuant mortgage executed between the plaintiff/respondent and the defendants/appellants.

2. There is no dispute as to the validity of the mortgage. The only issue before the learned master then as well as before this court is the appellants' contention that they had never received the money payable under the mortgage.

3. The points raised by the appellants at this hearing are that firstly, no accounts have been rendered or particularised as required under the order; secondly, according to the affirmation one Miss SZETO Yuk-ting, the legal representative of the appellants, there is a possibility that the facility letters upon which the mortgage was based might have been forged; and thirdly, the rate of interest charge might exceed the statutory maximum of 60 per cent per annum.

4. As I have indicated earlier, there remains the fact that the appellants had never doubted the validity of the mortgage. If it is a case that the appellants never received the money under the mortgage facilities, then it is only for the court to decide whether it is so inherently incapable of belief that it raises no issue in opposition to the respondent's case. The money paid out under the mortgage is well-supported by documentary evidence. There was the photocopy of a cheque although the payee column has been left blank. I note also from the letter before action written by the respondent's lawyer to the appellants in demand for repayment dated 12 July 1997, it was stated unequivocally that the indebtedness as at 11 July was $687,380.22. The rate of interest has been specified, and there has been no objection to the principal sum or to the rate of interest charged.

5. The alleged possible area of dispute of fact is not relevant to the central issue of whether this is a true mortgage action. I have no doubt that it is. For the reasons given, the appeal is dismissed and the orders and directions of Master Bharwaney is affirmed.

Representation:

Mr Raymond W S CHAN, instructed by Messrs Philip Pang & Co., for Plaintiff/Respondent

Mr Hylas CHUNG instructed by Messrs Josip Ma & Co., for both Defendants/Appellants