Dao Heng Bank Ltd. v. Chau Shek Leung

HCMP007104/1999

HCMP 7104/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 7104 OF 1999

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Coram: Hon Yuen J in Court

Date of Hearing: 14 March 2000

Date of Judgment: 14 March 2000

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J U D G M E N T

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1. This is an application by way of Originating Summons by a mortgagee bank for an order that the registration of the Writs in two actions, namely HCA 1278/1997 and HCA 1529/1998, in the Land Registry against the property known as Shop No. 4B on the Ground Floor, Quality Tower, Nos. 29-31 Hillwood Road, Nos. 2-6 Pine Tree Hill Road, Kowloon, be vacated.

2. The documents exhibited to the various affirmations show that on 31 December 1996, the then registered owner of the Property mortgaged the Property to the Plaintiff bank.

3. On 9 April 1997, there was registered against the Property the Writ in HCA 1278/1997 in which Mr Chau Shek Leung claims to be the sole beneficial owner of the Property. I would note at this stage that the Property in question are shop premises.

4. On 2 February 1998, there was also registered against the Property the Writ in HCA 1529/1998 in which Plaintiff is also Mr Chau Shek Leung and in which he makes a similar claim that he is the sole beneficial owner of those premises.

5. On 10 October 1998, the mortgagor having failed to repay the mortgagee bank, the proceedings in the mortgage action HCMP 5253/1998 were commenced, and on 30 December 1998, a possession order was obtained by the mortgagee bank.

6. On 16 June 1999, the bank obtained physical possession of the Property and on 12 October 1999, the bank entered into an agreement for the sale of the Property to a purchaser.

7. In the present proceedings, the bank is seeking to vacate the registration of those two Writs. The bank says on affidavit that it was not aware of any alleged claim by Mr Chau of his beneficial ownership of the Property, and indeed it was not aware of any such claim until sometime in 1998.

8. In the present proceedings, the bank has served Mr Chau by posting a copy of the Originating Summons to an address in Shek O being the Defendant Mr Chau's usual and last known address. That was his address as shown in the Writs in the two actions HCA 1278/1997 and HCA 1529/1998. No acknowledgement of service has been received. On the last occasion, when this matter came up for directions, I called for the files in the two actions HCA 1278/1997 and HCA 1529/1998, and I found that Mr Chau was instructing a firm called Henry Wan & Yeung in the 1998 action. Since then the mortgagee's solicitors in the present case have sent the papers to those solicitors who have indicated that they have no instructions to accept service and who have refused to give any other contact address to the mortgagee's solicitors here.

9. In the circumstances, I am satisfied that there has been proper service of these proceedings on Mr Chau. Further, I am satisfied that those Writs ought to be vacated from the Land Registry; there is no claim by Mr Chau that the bank's position as a bona fide purchaser of the legal estate qua mortgagee has been affected. These are shop premises and the bank says that they have not been aware of any prior equitable claim and of course whatever claim Mr Chau is supposed to have, has not been registered in the Land Registry.

10. Accordingly, I would make an order in terms of paragraphs (1) and (2) of the Originating Summons.

Representation:

Mr Erik Shum, instructed by S K Wong & Lee, for the Plaintiff

Defendant in person, absent