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Maxcolm Finance Ltd v The Personal Representative Of The Estate Of Wan Yee York, Deceased And Another

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date29 January 2024
Neutral Citation[2024] HKDC 182
Year2024
Subject MatterMiscellaneous Proceedings
Judgement NumberDCMP177/2023
CourtDistrict Court (Hong Kong)
DCMP177/2023 MAXCOLM FINANCE LTD v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF WAN YEE YORK, DECEASED AND ANOTHER

DCMP 177/2023

[2024] HKDC 182

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 177 OF 2023

____________________

IN THE MATTER OF the property known as ALL THOSE 10 equal undivided 383rd parts or shares of and in ALL THOSE pieces or parcels of ground respectively registered in the Land Registry as SHAU KEI WAN INLAND LOT NO. 607 and SHAU KEI WAN INLAND LOT NO. 675 And of and in the messuages erections and buildings thereon known as SAI WAN COURT (西灣閣), Nos. 138-140 Sai Wan Ho Street, Hong Kong (“the Building”) TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT A on the SECOND FLOOR of the Building
and
IN THE MATTER OF a Second Mortgage dated 19th April 2022 and registered in the Land Registry by Memorial No. 22080900970015
and
IN THE MATTER of Sections 2, 3 & 6 the Partition Ordinance Cap. 352 and Order 83A and Order 88 of the Rules of the District Court, Chapter 336H

____________________

BETWEEN
MAXCOLM FINANCE LIMITED Plaintiff
and
The Personal Representative of the Estate of WAN YEE YORK, Deceased 1st Defendant
WONG KAM HO 2nd Defendant

____________________

Before: Deputy District Judge Zabrina Lau in Chambers
Date of Hearing: 29 January 2024
Date of Judgment: 29 January 2024

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JUDGMENT

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Introduction

1. By Originating Summons dated 11 January 2023 (the “OS”), the plaintiff (“P”) seeks:

(1) against the 1st defendant (“D1”) the payment of all money due and owing from D1 to P under the respective covenants contained in a Second Mortgage dated 19 April 2022 and made between D1 as the Borrower of the one part and P as the Lender of the other part and registered in the Land Registry by Memorial No. 22080900970015 (“the Second Mortgage”);

(2) and against D1 and the 2nd defendant (“D2”) an order for delivery of vacant possession and an order for sale of the mortgaged property situate at Flat A on 2/F, Sai Wan Court, Nos. 138-140 Sai Wan Ho Street, Hong Kong (the “Property”) pursuant to Order 88 of the Rules of the District Court (“RDC”) and sections 2, 3 and 6 of the Partition Ordinance, Cap. 352 (“PO”).

Service on the defendants

2. After commencement of these proceedings, P sought consent from the Official Solicitor for the Official Solicitor to be appointed to represent the estate of Wan Yee York, deceased (the “Deceased”), for the limited purpose of acceptance of service of the OS. P made an application pursuant to RDC Order 15 rule 6A by way of Affirmation of Ma Sau Mei dated 29 May 2023. Pursuant to the Order of Master Maurice Lam dated 12 June 2023, the Official Solicitor has been appointed to represent the estate of the Deceased for the limited purpose of acceptance of service of the OS. The Official Solicitor was then served with a sealed copy of the said Order dated 12 June 2023 and a sealed copy of the OS on 7 July 2023.

3. Thereafter, P made a further ex parte application pursuant to RDC Order 15 rule 15 by way of 2nd Affirmation of Ma Sau Mei dated 25 July 2023. By the Order of Master Stanley Ho dated 14 August 2023, P was granted leave to, inter alia, (1) proceed with these proceedings against the Deceased in the absence of a person representing the estate of the Deceased, and any judgment or order subsequently made or given in these proceedings shall bind the estate of the Deceased to the same extent as it would have been bound had a personal representative of the Deceased been a party to these proceedings; and (2) service of the Affirmation of Tsang Tak Wah and all further documents and papers in these proceedings on D1 be effected by insertion into the letterbox of the Property.

4. D2 has filed an Acknowledgment of Service on 27 January 2023 expressing his intention to contest the case. He filed an affirmation in opposition to P’s application on 15 November 2023.

Background

5. P is a licensed money lender. The Deceased and D2 are the registered owners of the Property as tenants-in-common as to two-thirds (2/3) and one-third (1/3) of the shares of the Property respectively.

6. By the Second Mortgage, the Deceased charged her interest in the Property to P to secure the repayment of the general credit facilities granted by P to the Deceased to the extent of HK$600,000 and interest thereon at such rate as determined by P in accordance with the covenant for payment contained therein.

7. At all material times, the Property was and still is subject to the First Mortgage dated 23 March 2010 in favour of Bank of Communications Co, Limited (“Bank of Communications”).

8. The Deceased entered into a loan agreement dated 19 April 2022 (the “Loan Agreement”) with P for a loan in the principal sum of HK$500,000 (the “Loan”). Interest of the loan was 24% per annum, with default interest also charged at the same rate. The loan was to be repaid by 120 monthly instalments.

9. The Loan Agreement was evidenced in writing by a Memorandum dated 19 April 2022, which was signed by the Deceased at the time of entering into the Loan Agreement.

Money judgment under Order 83A of RDC

10. On 19 July 2022, the Deceased was discovered to have passed away at the Property. The cause of death as stated in the Death Certificate is “carbon monoxide poisoning, intentional self-poisoning by and exposure to other gases and vapours – home”.

11. As no repayment was made since that date, there has been a default under the Loan Agreement and the Second Mortgage.

12. P’s solicitors conducted a probate search on 16 November 2022 and noticed that Messrs. Deacons on behalf of Standard Chartered Bank (Hong Kong) Limited filed a Caveat (No. HCCA 004759/22) on 1 September 2022.

13. By a letter dated 17 November 2022, P through its solicitors demanded the payment of the entire balance of the Loan and interest from D1 within 7 days, failing which P shall institute legal proceedings against him/her for recovery of the same and enforcement of the Second Mortgage. But so far D1 did not make any repayment.

14. I have considered the documents filed before me and I am satisfied that each requirement of sections 18(1) and 18(2) of the Money Lenders Ordinance, Cap 163 (“MLO”) has been complied with. The interest rates under the Loan Agreement are also permissible...

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