HCMP1880/2021 BRIGHT EMPIRE ENTERPRISES LTD v. HO KAP SIN AND ANOTHER - LawHero
HCMP1880/2021
高等法院（雜項）K Yeung J28/8/2022[2022] HKCFI 2651
HCMP1880/2021
A A
HCMP 1880/2021
B [2022] HKCFI 2651 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D
MISCELLANEOUS PROCEEDINGS NO 1880 OF 2021
E E
______________
F IN THE MATTER of Section 19 of F
the Limitation Ordinance, Cap. 347
G G
and
H IN THE MATTER of ALL THAT H
piece or parcel of ground registered in
I
the Land Registry as Lot No.302 in I
Demarcation District No.220
J and J
IN THE MATTER of the Mortgage
K recorded/registered in the Schedule of K
Block Government Lease (previously
L known as Block Crown Lease) dated L
27th March 1905 against Lot No.302
M in Demarcation District in favour of M
HO KAP SIN ( 何 甲 先 ) and
N HO YEUNG FAT (何揚發) N
______________
O O
BETWEEN
P BRIGHT EMPIRE ENTERPRISES Plaintiff P
LIMITED（耀堡企業有限公司）
Q Q
and
R HO KAP SIN（何甲先） 1st Defendant R
THE PERSONAL REPRESENTATIVE 2nd Defendant
S S
OF HO YEUNG FAT（何揚發）
deceased
T T
______________
U U
V V
- 2 -
A A
Before: Hon K Yeung J in Chambers
B B
Date of Hearing: 28 June 2022
C C
Dates of Further Submissions by the Plaintiff: 12 July and 8 August 2022
D
Date of Decision: 29 August 2022 D
E E
DECISION
F F
G G
1. This is P’s application against D1 and D2 for a declaration
H H
that the Mortgage recorded/registered in the Schedule of Block
I Government Lease of Demarcation District No.220 dated 27th March 1905 I
(the “Mortgage”) in favour of HO KAP SIN (何甲先) (“D1”) and HO
J J
YEUNG FAT (何揚發) (the “Deceased”) for $10 (part) against, touching
K and concerning ALL THAT piece or parcel of ground registered in the Land K
Registry as Lot No. 302 in Demarcation District No. 220 (the “Lot”) is
L L
incapable of subsistence or taking effect or is otherwise unenforceable by
M reason of the limitation of action for over 12 years, pursuant to M
ss19(1) and (2) of the Limitation Ordinance, Cap 347.
N N
O Service of the process O
P 2. In respect of D1, pursuant to leave previously obtained, P
substituted service has been effected. No issue arises from that.
Q Q
R 3. In respect of D2: R
S (a) Land search records show that he passed away some time S
before March 1981, and that his landed properties have been
T T
inherited by two line of successors. Probate search however
U U
V V
- 3 -
A A
B does not reveal any grant of probate or letter of administration B
for his estate;
C C
(b) Despite efforts, D2’s successors could not be located;
D D
(c) On 21 January 2022, and by consent, an order was obtained
E under Order 15 rule 6A(4) for the Official Solicitor to be E
appointed to represent D2’s estate, but for the limited purpose
F F
of accepting service of the Originating Summons only;
G G
(d) The Originating Summons has been validly served upon the
H
Official Solicitor. H
I The hearing on 28 June 2022 I
J 4. The hearing of the Originating Summons was first set down J
for 15-minute before this Court on 28 June 2022.
K K
L 5. For the purpose of that hearing, Mr Wong, counsel for P, L
lodged his written submissions on 23 June 2022. Amongst other matter,
M M
Mr Wong therein fairly draws to my attention, relevant to P claim against
N D2, the case of In re Amirteymour, decd [1979] 1 WLR 63 (CA). That N
case is referred to in §15/6A/8 of the Hong Kong Civil Procedure 2022,
O O
that:
P P
“Appointment of Official Solicitor — The court has power to
appoint the Official Solicitor to represent the estate of a deceased
Q person, under para.(4) and this power may be exercised in the Q
first instance to the limited extent of requiring him to accept
R
service of the writ or originating summons. Such a limited R
appointment of the Official Solicitor as the person to act as
defendant to the action lapses as soon as he accepts service of
S the writ, after which he becomes functus officio, and therefore S
since there is no one capable of acknowledging service on behalf
of the defendant, any judgment entered in default of
T T
acknowledgment of service in the action is a nullity and is not
enforceable (Re Amirteymour (dec’d) [1979] 1 W.L.R. 63 , CA).”
U U
V V
- 4 -
A A
B
6. At the hearing on 28 June 2022 (no one appeared for either of B
the two defendants), I raised with Mr Wong a number of issues, which
C C
included the lack of any evidence from the documents thus far produced
D
on the date of the Mortgage (and in particular whether the date of 27 March D
1905 is the date of the Block Government Lease or that of the Mortgage),
E E
why Re Amirteymour can be distinguished on the basis that the present
F
application is one for declaratory relief (as Deputy Judge Seagroatt did in F
Chan Yu Shan v The Personal Representatives of the Estate of Cheung Ying
G G
Ha (deceased) & Anor (unrep., HCMP 2722/2016, 21 June 2017) which
H
Mr Wong relied on), and why the statutory route pursuant to section 12A H
of the Conveyancing and Property Ordinance Cap 219 was not pursued.
I I
In the end, I granted P liberty to file further evidence within 14 days, to be
J accompanied by Mr Wong’s further written submissions to address the J
various issued raised, with liberty to apply, with the view of the application
K K
being dealt with on the papers.
L L
Clarification of the date
M M
th
7. On 12 July 2022, the 4 Affirmation of Kwok Sau Kuen was
N filed. A copy of the entire Block Government Lease has now been filed. N
The date of 27 March 1905 is that of the Block Government Lease. The
O O
date of the Mortgage is not known, but must be prior to 27 March 1905.
P P
8. On that same date, and further on 8 August 2022, Mr Wong
Q Q
filed two sets of further written submissions, contending that
R Re Amirteymour is distinguishable on the basis that the action therein was R
one in personam, while the present one is effectively in rem.
S S
T T
U U
V V
- 5 -
A A
Re Amirteymour distinguished
B B
9. In Re Amirteymour, as summarized in the headnote, the
C C
Official Solicitor was appointed in accordance with section 2 of the
D Proceedings Against Estates Act 1970 1 and Rules of the Supreme Court D
Order 15, rule 6A for the sole purpose of accepting service of the writ in
E E
the plaintiffs’ action for the recovery of a debt against the estate of a
F deceased in respect of whom no other personal representatives had been F
appointed. The writ having been indorsed with the claim and served on
G G
the Official Solicitor, the plaintiffs entered judgment in default of
H appearance under Order 13, rule 1. The plaintiffs then obtained a H
garnishee order nisi attaching the credit balance of the deceased’s bank
I I
account. The Queen’s Bench master, who doubted the validity of the
J J
judgment obtained in default, refused to make an order dispensing with
service on the person in whom the assets were vested and discharged the
K K
order on the ground that it had not been served. On appeal, the Court of
L L
Appeal held that the default judgment was a nullity. The following are
M
material: M
N (a) Section 2 of the Proceedings Against Estates Act 1970 is in N
the following terms:
O O
“Rules of court made under section 99 of the Supreme Court of
Judicature (Consolidation) Act 1925 or section 102 of the
P P
County Courts Act 1959 may make provision — (a) for enabling
proceedings to be commenced against the estate of a deceased
Q person (whether by the appointment of a person to represent the Q
estate or otherwise) where no grant of probate or administration
has been made; (b) for enabling proceedings purporting to be
R commenced against a person who has died to be treated as having R
been commenced against his estate; and (c) for enabling any
S
proceedings commenced or treated as commenced against the S
estate of a deceased person to be maintained (whether by
substitution of parties, amendment or otherwise) against a person
T T
1
Which is material the same as section 55A of our High Court Ordinance, Cap 4.
U U
V V
- 6 -
A A
appointed to represent the estate or, if a grant of probate or
B B
administration is made, against the personal representatives.”
C (b) In respect of the effects of that section, Lord Diplock at C
page 65H to 66A explained that:
D D
“It is to be noted that a distinction is drawn between commencing
an action and maintaining it after it has been commenced.
E E
Paragraph (a) authorises the making of rules permitting an action
to be commenced either as an action in personam against a
F person appointed by the court to represent the deceased's estate F
or against the estate eo nomine as if it were an action in rem
against property belonging to the deceased at the time of his
G death; but paragraph (c) makes it clear that, once commenced by G
issue of the writ or originating summons, motion or petition the
H action can only continue to be carried on as an action in H
personam against some person or persons authorised in law to
represent the deceased’s estate who may either have been
I appointed by virtue of the section to do so in the particular action I
or may be executors or administrators of the deceased appointed
in the ordinary course of administration of his estate.”
J J
(c) As no one was representing the estate at the time when
K K
judgment was entered in default of appearance, the judgement
L was a nullity. Lord Diplock held and observed at page 66 G L
to 67B that:
M M
“We agree with the master that the judgment of February 15,
1978, was a nullity. It has already been pointed out that
N proceedings against the estate of a deceased person that are N
authorised by section 2 of the Proceedings Against Estates Act
1970 and Ord. 15, r. 6A take the form of actions in personam.
O O
They are neither actions in rem, which are peculiar to the
Admiralty jurisdiction of the court, nor are they actions against
P an abstraction — a form of proceeding unknown to English law. P
As in all actions in personam there must be in existence some
person, natural or artificial and recognised by law, as a defendant
Q against whom steps in the action can be taken. If and so long as Q
there is no such person the action, though it may not abate,
R cannot be continued, as, for example, where a sole defendant to R
a subsisting action dies and no executor or administrator has yet
been appointed against whom an order to continue the
S proceedings can be obtained under Ord. 15, r. 7 . S
In the instant case on February 15, 1978, there was no person in
T existence against whom the step of entering judgment in the T
action could be taken. The limited appointment of the Official
U U
V V
- 7 -
A A
Solicitor as the person to act as defendant to the action had lapsed
B B
as soon as he accepted service of the writ. No one else had been
appointed to take his place. So we would dismiss this appeal
C upon the ground that the judgment which was purportedly C
entered against the personal representatives of the deceased was
a nullity.”
D D
E
10. I have considered Re Amirteymour. I do not believe that E
Lord Diplock intended to hold therein that proceedings against the estate
F F
of a deceased person that are authorised by section 2 of the Proceedings
G
Against Estates Act 1970 and Order 15, rule 6A of Rules of the Supreme G
Court can only take the form of actions in personam. In my view, Lord
H H
Diplock’s observations may be understood on the facts of Re Amirteymour,
I that the claim therein was one in personam. I
J J
11. On the nature of P’s claim and the relief it is seeking in the
K
present action, Mr Wong has brought to my attention and seeks to rely on K
by analogy the following two cases:
L L
(a) 虛雲和尚紀念堂有限公司 v 甘百利投資有限公司 &
M M
Anor [2018] HKCFI 718, wherein Deputy Judge Patrick Fung
N SC observed at §28 that a judgment for possessory title under N
section 7(2) of the Limitation Ordinance is “almost be
O equivalent to a judgment in rem regarding property rights”; O
and
P P
(b) Lo Kwong Hung v The Registrar of Companies [2018] 1
Q Q
HKLRD 173, wherein G Lam J (as he then was) at §22
R observed, in relation to the nature of the relief which a R
claimant seeking relief by virtue of the doctrine of adverse
S possession, that the claimant: S
T “... might be entitled to declaratory relief (i) of a negative nature, T
that the Company could no longer bring any action against them
U U
V V
- 8 -
A A
for recovery of the Land, and (ii) of a positive nature, in respect
B B
of their right in the Land, but that would be a remedy in rem as
against the world.”
C C
12. As Ds are not represented and I have not received any
D D
adversarial submissions, I shall not reach any conclusion unless they are
E absolutely necessary for the disposition of the present application. But on E
the strength of the above two case, noting the nature of P’s claim herein
F F
and the relief it is seeking, and noting also that this is not an application on
G default of appearance but one on merits, I am prepared to accept that on the G
facts of this case, Re Amirteymour does not apply, and this court may
H H
proceed to consider the merits of the application.
I I
Consideration of the application
J J
13. I have considered the 4 affirmations of Mr Kwok Sau Kuen
K K
filed in support. The Mortgage is an ancient one. Further, the evidence
L suggests that during the whole time when P’s predecessor in title was in L
possession (between December 1998 and March 2021 when the Lot was
M M
sold), no one made any claim or demand concerning the Mortgage, and that
N P’s predecessor in title had been in possession free from disturbance, N
interference, claim and demand from Ds or other persons.
O O
P 14. The facts of this case is similar to those in the number of cases P
cited in Wong Mo Yuen and Wong Shek Yau v Choi Chiu Man and Yan Hau
Q Q
Hung (unrep., HCMP 988/2013, 20 March 2015, at §11), where
R declarations similar to the one P is seeking were granted. R
S S
T T
U U
V V
- 9 -
A A
B
15. In all the circumstances, I grant the declaration sought, in B
terms of the draft order at [A/5/31-32] of the bundle, and make no order as
C C
to costs.
D D
E E
F F
G (Keith Yeung) G
Judge of the Court of First Instance
H High Court H
I I
Mr Joseph Wong instructed by Woon Poon Chan Law & Co, for the Plaintiff
J J
The 1st and 2nd Defendants were not represented and did not appear
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
BRIGHT EMPIRE ENTERPRISES LTD v. HO KAP SIN AND ANOTHER
A A
HCMP 1880/2021
B [2022] HKCFI 2651 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D
MISCELLANEOUS PROCEEDINGS NO 1880 OF 2021
E E
______________
F IN THE MATTER of Section 19 of F
the Limitation Ordinance, Cap. 347
G G
and
H IN THE MATTER of ALL THAT H
piece or parcel of ground registered in
I
the Land Registry as Lot No.302 in I
Demarcation District No.220
J and J
IN THE MATTER of the Mortgage
K recorded/registered in the Schedule of K
Block Government Lease (previously
L known as Block Crown Lease) dated L
27th March 1905 against Lot No.302
M in Demarcation District in favour of M
HO KAP SIN ( 何 甲 先 ) and
N HO YEUNG FAT (何揚發) N
______________
O O
BETWEEN
P BRIGHT EMPIRE ENTERPRISES Plaintiff P
LIMITED（耀堡企業有限公司）
Q Q
and
R HO KAP SIN（何甲先） 1st Defendant R
THE PERSONAL REPRESENTATIVE 2nd Defendant
S S
OF HO YEUNG FAT（何揚發）
deceased
T T
______________
U U
V V
- 2 -
A A
Before: Hon K Yeung J in Chambers
B B
Date of Hearing: 28 June 2022
C C
Dates of Further Submissions by the Plaintiff: 12 July and 8 August 2022
D
Date of Decision: 29 August 2022 D
E E
DECISION
F F
G G
1. This is P’s application against D1 and D2 for a declaration
H H
that the Mortgage recorded/registered in the Schedule of Block
I Government Lease of Demarcation District No.220 dated 27th March 1905 I
(the “Mortgage”) in favour of HO KAP SIN (何甲先) (“D1”) and HO
J J
YEUNG FAT (何揚發) (the “Deceased”) for $10 (part) against, touching
K and concerning ALL THAT piece or parcel of ground registered in the Land K
Registry as Lot No. 302 in Demarcation District No. 220 (the “Lot”) is
L L
incapable of subsistence or taking effect or is otherwise unenforceable by
M reason of the limitation of action for over 12 years, pursuant to M
ss19(1) and (2) of the Limitation Ordinance, Cap 347.
N N
O Service of the process O
P 2. In respect of D1, pursuant to leave previously obtained, P
substituted service has been effected. No issue arises from that.
Q Q
R 3. In respect of D2: R
S (a) Land search records show that he passed away some time S
before March 1981, and that his landed properties have been
T T
inherited by two line of successors. Probate search however
U U
V V
- 3 -
A A
B does not reveal any grant of probate or letter of administration B
for his estate;
C C
(b) Despite efforts, D2’s successors could not be located;
D D
(c) On 21 January 2022, and by consent, an order was obtained
E under Order 15 rule 6A(4) for the Official Solicitor to be E
appointed to represent D2’s estate, but for the limited purpose
F F
of accepting service of the Originating Summons only;
G G
(d) The Originating Summons has been validly served upon the
H
Official Solicitor. H
I The hearing on 28 June 2022 I
J 4. The hearing of the Originating Summons was first set down J
for 15-minute before this Court on 28 June 2022.
K K
L 5. For the purpose of that hearing, Mr Wong, counsel for P, L
lodged his written submissions on 23 June 2022. Amongst other matter,
M M
Mr Wong therein fairly draws to my attention, relevant to P claim against
N D2, the case of In re Amirteymour, decd [1979] 1 WLR 63 (CA). That N
case is referred to in §15/6A/8 of the Hong Kong Civil Procedure 2022,
O O
that:
P P
“Appointment of Official Solicitor — The court has power to
appoint the Official Solicitor to represent the estate of a deceased
Q person, under para.(4) and this power may be exercised in the Q
first instance to the limited extent of requiring him to accept
R
service of the writ or originating summons. Such a limited R
appointment of the Official Solicitor as the person to act as
defendant to the action lapses as soon as he accepts service of
S the writ, after which he becomes functus officio, and therefore S
since there is no one capable of acknowledging service on behalf
of the defendant, any judgment entered in default of
T T
acknowledgment of service in the action is a nullity and is not
enforceable (Re Amirteymour (dec’d) [1979] 1 W.L.R. 63 , CA).”
U U
V V
- 4 -
A A
B
6. At the hearing on 28 June 2022 (no one appeared for either of B
the two defendants), I raised with Mr Wong a number of issues, which
C C
included the lack of any evidence from the documents thus far produced
D
on the date of the Mortgage (and in particular whether the date of 27 March D
1905 is the date of the Block Government Lease or that of the Mortgage),
E E
why Re Amirteymour can be distinguished on the basis that the present
F
application is one for declaratory relief (as Deputy Judge Seagroatt did in F
Chan Yu Shan v The Personal Representatives of the Estate of Cheung Ying
G G
Ha (deceased) & Anor (unrep., HCMP 2722/2016, 21 June 2017) which
H
Mr Wong relied on), and why the statutory route pursuant to section 12A H
of the Conveyancing and Property Ordinance Cap 219 was not pursued.
I I
In the end, I granted P liberty to file further evidence within 14 days, to be
J accompanied by Mr Wong’s further written submissions to address the J
various issued raised, with liberty to apply, with the view of the application
K K
being dealt with on the papers.
L L
Clarification of the date
M M
th
7. On 12 July 2022, the 4 Affirmation of Kwok Sau Kuen was
N filed. A copy of the entire Block Government Lease has now been filed. N
The date of 27 March 1905 is that of the Block Government Lease. The
O O
date of the Mortgage is not known, but must be prior to 27 March 1905.
P P
8. On that same date, and further on 8 August 2022, Mr Wong
Q Q
filed two sets of further written submissions, contending that
R Re Amirteymour is distinguishable on the basis that the action therein was R
one in personam, while the present one is effectively in rem.
S S
T T
U U
V V
- 5 -
A A
Re Amirteymour distinguished
B B
9. In Re Amirteymour, as summarized in the headnote, the
C C
Official Solicitor was appointed in accordance with section 2 of the
D Proceedings Against Estates Act 1970 1 and Rules of the Supreme Court D
Order 15, rule 6A for the sole purpose of accepting service of the writ in
E E
the plaintiffs’ action for the recovery of a debt against the estate of a
F deceased in respect of whom no other personal representatives had been F
appointed. The writ having been indorsed with the claim and served on
G G
the Official Solicitor, the plaintiffs entered judgment in default of
H appearance under Order 13, rule 1. The plaintiffs then obtained a H
garnishee order nisi attaching the credit balance of the deceased’s bank
I I
account. The Queen’s Bench master, who doubted the validity of the
J J
judgment obtained in default, refused to make an order dispensing with
service on the person in whom the assets were vested and discharged the
K K
order on the ground that it had not been served. On appeal, the Court of
L L
Appeal held that the default judgment was a nullity. The following are
M
material: M
N (a) Section 2 of the Proceedings Against Estates Act 1970 is in N
the following terms:
O O
“Rules of court made under section 99 of the Supreme Court of
Judicature (Consolidation) Act 1925 or section 102 of the
P P
County Courts Act 1959 may make provision — (a) for enabling
proceedings to be commenced against the estate of a deceased
Q person (whether by the appointment of a person to represent the Q
estate or otherwise) where no grant of probate or administration
has been made; (b) for enabling proceedings purporting to be
R commenced against a person who has died to be treated as having R
been commenced against his estate; and (c) for enabling any
S
proceedings commenced or treated as commenced against the S
estate of a deceased person to be maintained (whether by
substitution of parties, amendment or otherwise) against a person
T T
1
Which is material the same as section 55A of our High Court Ordinance, Cap 4.
U U
V V
- 6 -
A A
appointed to represent the estate or, if a grant of probate or
B B
administration is made, against the personal representatives.”
C (b) In respect of the effects of that section, Lord Diplock at C
page 65H to 66A explained that:
D D
“It is to be noted that a distinction is drawn between commencing
an action and maintaining it after it has been commenced.
E E
Paragraph (a) authorises the making of rules permitting an action
to be commenced either as an action in personam against a
F person appointed by the court to represent the deceased's estate F
or against the estate eo nomine as if it were an action in rem
against property belonging to the deceased at the time of his
G death; but paragraph (c) makes it clear that, once commenced by G
issue of the writ or originating summons, motion or petition the
H action can only continue to be carried on as an action in H
personam against some person or persons authorised in law to
represent the deceased’s estate who may either have been
I appointed by virtue of the section to do so in the particular action I
or may be executors or administrators of the deceased appointed
in the ordinary course of administration of his estate.”
J J
(c) As no one was representing the estate at the time when
K K
judgment was entered in default of appearance, the judgement
L was a nullity. Lord Diplock held and observed at page 66 G L
to 67B that:
M M
“We agree with the master that the judgment of February 15,
1978, was a nullity. It has already been pointed out that
N proceedings against the estate of a deceased person that are N
authorised by section 2 of the Proceedings Against Estates Act
1970 and Ord. 15, r. 6A take the form of actions in personam.
O O
They are neither actions in rem, which are peculiar to the
Admiralty jurisdiction of the court, nor are they actions against
P an abstraction — a form of proceeding unknown to English law. P
As in all actions in personam there must be in existence some
person, natural or artificial and recognised by law, as a defendant
Q against whom steps in the action can be taken. If and so long as Q
there is no such person the action, though it may not abate,
R cannot be continued, as, for example, where a sole defendant to R
a subsisting action dies and no executor or administrator has yet
been appointed against whom an order to continue the
S proceedings can be obtained under Ord. 15, r. 7 . S
In the instant case on February 15, 1978, there was no person in
T existence against whom the step of entering judgment in the T
action could be taken. The limited appointment of the Official
U U
V V
- 7 -
A A
Solicitor as the person to act as defendant to the action had lapsed
B B
as soon as he accepted service of the writ. No one else had been
appointed to take his place. So we would dismiss this appeal
C upon the ground that the judgment which was purportedly C
entered against the personal representatives of the deceased was
a nullity.”
D D
E
10. I have considered Re Amirteymour. I do not believe that E
Lord Diplock intended to hold therein that proceedings against the estate
F F
of a deceased person that are authorised by section 2 of the Proceedings
G
Against Estates Act 1970 and Order 15, rule 6A of Rules of the Supreme G
Court can only take the form of actions in personam. In my view, Lord
H H
Diplock’s observations may be understood on the facts of Re Amirteymour,
I that the claim therein was one in personam. I
J J
11. On the nature of P’s claim and the relief it is seeking in the
K
present action, Mr Wong has brought to my attention and seeks to rely on K
by analogy the following two cases:
L L
(a) 虛雲和尚紀念堂有限公司 v 甘百利投資有限公司 &
M M
Anor [2018] HKCFI 718, wherein Deputy Judge Patrick Fung
N SC observed at §28 that a judgment for possessory title under N
section 7(2) of the Limitation Ordinance is “almost be
O equivalent to a judgment in rem regarding property rights”; O
and
P P
(b) Lo Kwong Hung v The Registrar of Companies [2018] 1
Q Q
HKLRD 173, wherein G Lam J (as he then was) at §22
R observed, in relation to the nature of the relief which a R
claimant seeking relief by virtue of the doctrine of adverse
S possession, that the claimant: S
T “... might be entitled to declaratory relief (i) of a negative nature, T
that the Company could no longer bring any action against them
U U
V V
- 8 -
A A
for recovery of the Land, and (ii) of a positive nature, in respect
B B
of their right in the Land, but that would be a remedy in rem as
against the world.”
C C
12. As Ds are not represented and I have not received any
D D
adversarial submissions, I shall not reach any conclusion unless they are
E absolutely necessary for the disposition of the present application. But on E
the strength of the above two case, noting the nature of P’s claim herein
F F
and the relief it is seeking, and noting also that this is not an application on
G default of appearance but one on merits, I am prepared to accept that on the G
facts of this case, Re Amirteymour does not apply, and this court may
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proceed to consider the merits of the application.
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Consideration of the application
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13. I have considered the 4 affirmations of Mr Kwok Sau Kuen
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filed in support. The Mortgage is an ancient one. Further, the evidence
L suggests that during the whole time when P’s predecessor in title was in L
possession (between December 1998 and March 2021 when the Lot was
M M
sold), no one made any claim or demand concerning the Mortgage, and that
N P’s predecessor in title had been in possession free from disturbance, N
interference, claim and demand from Ds or other persons.
O O
P 14. The facts of this case is similar to those in the number of cases P
cited in Wong Mo Yuen and Wong Shek Yau v Choi Chiu Man and Yan Hau
Q Q
Hung (unrep., HCMP 988/2013, 20 March 2015, at §11), where
R declarations similar to the one P is seeking were granted. R
S S
T T
U U
V V
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A A
B
15. In all the circumstances, I grant the declaration sought, in B
terms of the draft order at [A/5/31-32] of the bundle, and make no order as
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to costs.
D D
E E
F F
G (Keith Yeung) G
Judge of the Court of First Instance
H High Court H
I I
Mr Joseph Wong instructed by Woon Poon Chan Law & Co, for the Plaintiff
J J
The 1st and 2nd Defendants were not represented and did not appear
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V