Cheung Siu Man and Another v. Tung Fuk Tong

Case No.HCMP 6193/2001

Court

High Court CFI

Date10 Apr 2002

Judge—

Case Document

100%Judiciary

HCMP006193/2001

HCMP 6193/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6193 OF 2001

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	IN THE MATTER of Section 19 of the Limitation Ordinance, Cap. 347

	AND

	IN THE MATTER of Lot Nos. 121 and 940 both in Demarcation District No. 118 together with all messuages, erections structures or buildings erected thereon (if any)

	AND

	IN THE MATTER of a mortgage dated 4 November 1925 and registered by Memorial No. 62495 in favour of Tung Fuk Tong with Tang Sui Piu as trustee by Cheung Shiu Fong

BETWEEN
	CHEUNG SIU MAN and CHEUNG WUN LUN (the Administrators of the estate of CHEUNG SUI KWAN alias CHEUNG SHUI KWAN alias CHEUNG SHUI QWAN, the Deceased)	Plaintiffs

	AND

	TUNG FUK TONG (with CHEUNG PING HING and KAN YIU MAN as registered managers)	Defendant

______________________

Coram: Hon Chu J in Court

Date of hearing: 10 April 2002

Date of judgment: 10 April 2002

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J U D G M E N T

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1.In this action, commenced by Originating Summons, the plaintiff seeks a declaration that a mortgage pertaining to the plaintiff's property is discharged, or alternatively, is no longer subsisting or capable of taking effect as a result of the operation of the Limitation Ordinance, Cap. 347.

2.The background of this case is as follows: The grandfather of the plaintiff was the registered owners of the piece of land in Lots Nos. 121 and 940 in Demarcation District No. 118 ("the Property"). On 4 November 1925 the grandfather executed a mortgage in favour of the defendant as mortgagee to secure a loan of $480 ("the Mortgagee"). The Mortgage was registered in the Yuen Long New Territories Land Registry by Memorial No. 62495.

3.Under the terms of the Mortgage, the principal sum was repayable by instalments and the last instalment payment should have fallen due on the 24th day of the lunar eighth month of 1933.

4.Subsequently, the grandfather passed away and the plaintiff's father succeeded to the Property by way of a succession dated 4 March 1935 and which was also registered in Yuen Long New Territories Land Registry by Memorial No. 91728.

5.The plaintiffs' father passed away on 21 December 1985. The plaintiffs were then appointed administrators by Letters of Administration granted in the year 2000.

6.Under Section 19(1) of the Limitation Ordinance, no action can be brought to recover any principal sum of money secured by a mortgage or other charge of property after the expiration of 12 years from the date when the right to receive the money accrued.

7.It is plain from the facts of this case that the relevant time for bringing an action to recover the principal sum secured by the Mortgage in question have long expired. That being the case I am satisfied that a declaration should be granted in favour of the plaintiffs, along the terms indicated by Godfrey J, as he then was, in the case of Fung Tam Cheung & Others v Kwok Yue Wing & Others [1991] 1HKC 321.

8.For the reasons that I have indicated there will be a declaration that the Mortgage is no longer subsisting or capable of taking effect by reason of the operation of the Limitation Ordinance. Since the plaintiffs do not seek any order of costs there will be no order as to costs .

	(C. Chu)
	Judge of the Court of First Instance,
	High Court

Representation:

Mr Alex Lok, instructed by Terry Yeung & Lai, for the Plaintiff

Defendant, Tung Fuk Tong, in person