Land Law — Court declared an undated mortgage to be no longer subsisting or time-barred

In To Peter & Ors v Wong Kan Tak [2024] HKCFI 2600, Hon Cheng J granted the declaration sought by the Plaintiffs that an undated mortgage in the Schedule of the Block Government Lease in favour of the Defendant over a lot owned by the Plaintiffs be no longer subsisting or capable of taking effect by virtue of the Limitation Ordinance (Cap. 347). 

The Block Government Lease commenced on 1 July 1898. Hon Cheng J accepted the evidence presented by the Plaintiffs that they and their predecessors have used the lot since 1898 without any disturbance or claims from the defendant or his descendants and that no written acknowledgment of the mortgage or demands for repayment has been received. The Defendant could not be located despite considerable effort made by the Plaintiffs.  

In Alpha Star Enterprises Ltd v Personal Representative of Tang Mei Shin (Deceased) [2002] 4 HKC 218 (Chung J), a similar declaration was refused. In spite of that, the Court accepted the submissions of the Counsel for the Plaintiff to distinguish Alpha Star Enterprises Ltd and inferred that, on the present evidence, the Defendant or those claiming through him have been time-barred from claiming under the mortgage. Accordingly, the declaration sought by the Plaintiffs was granted.  

Abigail Liu acted for the successful Plaintiffs. 

Abigail Liu

Abigail joined Chambers in 2019 after completing her pupillage with Mr. Graham Harris SC, Mr. Tim Kwok, Ms. Catherine Wong, Mr. Simon Wong and Mr. Jeffrey Tam.​

Abigail is developing a broad civil and criminal practice.  She has experience in areas such as family and matrimonial matters, public law, land, tort, personal injuries, employee compensation, commercial litigation, trusts, probate and contract.​

Abigail has been instructed to appear in the Magistracies, the Lands Tribunal, District Court and High Court. She accepts instructions in all areas of work. She is fluent in English, Cantonese and Putonghua. She is capable of providing written submissions and conducting hearings in both English and Chinese.​

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This article was first published on 30 September 2024.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.