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Fubon Bank (Hong Kong) Ltd v Ng Wai Kong

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date01 June 2021
Neutral Citation[2021] HKCFI 1558
Judgement NumberHCMP1238/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP1238/2020 FUBON BANK (HONG KONG) LTD v. NG WAI KONG

HCMP 1238/2020

[2021] HKCFI 1558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1238 OF 2020

____________

IN THE MATTER of All That piece or parcel of ground registered in the Land Registry as SECTION A OF LOT NO.1610 IN DEMARCATION DISTRICT NO.123 Together with any building or buildings erected thereon now known as No.22 Ng Uk Tsuen, Ping Shan, Yuen Long, New Territories, Hong Kong

and
IN THE MATTER of a Legal Charge dated 6th September 2018 and registered in the Land Registry by Memorial No. 18092600780036

and
IN THE MATTER of Order 88 of the Rules of the High Court, Cap 4A

____________

BETWEEN
FUBON BANK (HONG KONG) LIMITED Plaintiff

and
NG WAI KONG (吳偉江) Defendant

____________

Before: Hon Au-Yeung J in Chambers

Closing Date for Written Submission: 31 May 2021

Date of Decision: 1 June 2021

_____________

D E C I S I O N

_____________

Introduction

1. The Plaintiff is the 1st Legal Chargee of the Defendant’s property known as No 22 Ng Uk Tsuen, Ping Shan, Yuen Long, New Territories situated at Section A of Lot No 1610 in DD 123 (“the Property”) in respect of all moneys of the general banking facilities granted by the Plaintiff to the Defendant.

2. Konew Capital Investment Limited (“Konew”) is the 2nd Legal Chargee of the Property in respect of general credit facilities granted by Konew to the Defendant to the extent of HK$2 million.

3. It is indisputable that the 1st Legal Charge was created and registered well before the 2nd Legal Charge, and hence has priority over the latter.

4. The Defendant defaulted in his payment obligation under the 1st Legal Charge. As a result, on 17 August 2020, the Plaintiff commenced the present Order 88 application for a money judgment and a possession order in respect of the Property.

5. Two days later, on 19 August 2020, Konew commenced its Order 88 application in respect of the 2nd Legal Charge in the District Court in DCMP 2658/2020 for a money judgment and a possession order in respect of the Property.

6. On 3 February 2021, Master Jacqueline Lee of the District Court granted a money judgment and an order for possession under the 2nd Legal Charge in favour of Konew in DCMP 2658/2020.

7. On 12 March 2021, the Plaintiff’s present Order 88 application was heard by Master SH Lee. The learned Master was aware that Master Jacqueline Lee had already granted an order for possession in favour of Konew, and took the view that the 1st Legal Chargee could simply wait for the 2nd Legal Chargee to take action to realise the Property and pay the 1st Legal Chargee the outstanding indebtedness due to and secured by the 1st Legal Charge. As a result, Master SH Lee granted a money judgment but adjourned the Plaintiff’s application for possession order sine die with liberty to restore (“the Master’s Order”).

8. On 23 March 2021, the Plaintiff filed a notice of appeal to appeal against the Master’s Order.

Legal principles

9. An appeal under Order 58 RHC is a rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him/her for the first time. The judge will of course give the weight it deserves to the previous decision of the master, but he/she is in no way bound by it. See Hong Kong Civil Procedure 2021, Volume 1, 58/1/2.

10. The ordinary rule at common law is that where the whole of the sum advanced became due, a mortgagee is entitled as of right to an order for possession of the mortgaged premises (unless the mortgage deed provides otherwise). The court has no jurisdiction to decline the order or to adjourn an application for possession, with the exception of an adjournment for a short time to afford...

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