Hang Seng Finance Ltd v. Lai Tung Kwai

HCA011723/1983

Headnote

Order 14 procedure is available in a mortgage action.

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Mantell J.

Dates of Hearing: 7th and 21st May, 1934.

Date of Decision: 21st May, 1984.

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DECISION

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1. This is a mortgage action. The plaintiff has advanced money to the defendant for the purchase of a flat for his and his family's occupation. He has fallen behind with the instalments so that the arrears now stand at approximately $50,000. The plaintiff moved for summary judgment before the Master on 9th March 1984. The application was dismissed because the Master took the view that Order 14 proceedings were not available in a mortgage action. I have been referred by Miss Li who appears for the plaintiff to the rules and I am satisfied that since by Order 88, it is open to the mortgagee to proceed either by way of writ or originating summons that Order 14 procedure is available in a mortgage action. There is no defence to the action and the plaintiff is entitled to judgment.

2. I adjourned on the last occasion because it was possible that the defendant might have been able to pay off a substantial part of the arrears or at least that is what he told me. He has not done that and another instalment which has fallen due in the meantime has not been paid. He tells me that he hopes to be able to pay rather more than the monthly instalments in the future, thus paying off the arrears. If that proposal finds favour with the plaintiff, it may be that he will be able to come to some such arrangement which will enable him to keep the flat, for the time being at any rate. It is not a term which I am able to impose upon the plaintiff who is entitled to judgment and there is no provision in Hong Kong for the making of a suspended order of possession. But the plaintiff, nevertheless, is prepared to give an undertaking, which I accept, not to enforce the order for possession if within 28 days the arrears have been paid off and thereafter, the defendant continues to pay the instalments as they fall due.

3. So, this appeal is allowed upon the plaintiff's undertaking not to enforce judgment if the arrears are paid off within 28 days and the defendant thereafter pays the instalments under the mortgage as they fall due. There will be an order for possession of this premises in 28 days and judgment to the sum of $224,860.05 with costs of today, the hearing on 7th May and below.

Representation:

Miss Gladys Li instructed by C.Y. Kwan & Co. for plaintiff.

Defendant - in person - present.