In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property which enables the creditor to have recourse to the property if the debtor defaults in making payment or otherwise performing the secured obligations. I have disregarded the earlier valuation report in favour of the additional evidence called before me which more precisely addresses the question posed by the Privy Council. If, however, they sell to a company in which they own a share, there seems to be no rule against this, but the mortgagee must show that the sale was in good faith and that they took reasonable precautions to obtain the best price (see Tse Kwong Lam v Wong Chit Sen [1983] 1 WLR 1349. Silven Properties Ltd v Royal Bank of Scotland[2003] EWCA Civ 1409. Tse Kwong Lam v Wong Chit Sen - Wikipedia For faster navigation, this Iframe is preloading the Wikiwand page for Tse Kwong Lam v Wong Chit Sen . Continue with Recommended Cookies. Lord Templeman said: the sale must be closely examined and a heavy onus lies on the mortgagee to show that in all respects he acted fairly to the borrower and used his best endeavours to obtain the best price reasonably obtainable for the mortgaged property. [1] :p 7. However, the question of money used from Soon is different. Free resources to assist you with your legal studies! It was contended that by fixing the reserve price at such a low figure the mortgagee prevented the bids from reaching the level which they would have reached had the reserve price been fixed nearer to the day's market price. Western Bank Ltd v Kurt Schindler [1976] 2 All ER 393. Cases - Implementing the Cape Town Convention and the Domestic Laws on The Court of Appeal set aside the judges award. The Hong Kong order of precedence is a nominal and symbolic hierarchy of important positions within the Government of Hong Kong. Talk:Tse Kwong Lam v Wong Chit Sen - Wikipedia The purchaser was a company (the 3rd Respondent) in which the mortgagee, his wife (the 2nd Respondent) and one of their sons were directors and the principal shareholders. Supervision 6: Mortgages and Severance of Joint Tenancies - Quizlet 2. We and our partners use data for Personalised ads and content, ad and content measurement, audience insights and product development. Union Eagle Ltd v Golden Achievement Ltd This page was last edited on 6 December 2019, at 23:40 (UTC). The nearest he came to it was to say "this is a typical picture of a family company completely under the control of a rich father", but his decision was not that the sale was void, only that it was voidable and should be avoided on the ground that good faith had not been established. The trial judge found that the sale was not made bona fide and awarded damages, he refusing to order rescission on the ground that there had been unreasonable delay in the proceedings to set aside the sale. Mortgages in English law are a method of raising capital through a loan contract. These include: This is an indication of how equity operates to protect a mortgagor from any prejudicial conduct of the mortgagee, and thus often serves to equal up the playing field in this area. However, as was previously mentioned, this area has developed significantly in recent times in ways that equity was not even equipped to deal with, and hence the law has had to be reformed in order to cope with these developments. PDF LESSON PLAN FOR CONDUCTING A UNIT OF INSTRUCTION MIRANDA v. ARIZONA It was created in 1997 to replace the British honours system after the transfer of sovereignty to People's Republic of China and the establishment of Hong Kong Special Administrative Region (HKSAR). When he is selling under a power of sale in a mortgage he may prefer to retain his security rather than to let it go at a low price and risk not being able to recover the balance of the mortgage debt from the mortgagor. It is not in dispute that the relationship was such as to put a burden on the purchaser to show that the sale was bona fide. Vincent. There was only one bid and the property was knocked down at the reserve price. Medforth v Blake[1999] EWCA Civ 1482 is a UK insolvency law case concerning the duties of a receiver and manager in the United Kingdom, over and above a duty of good faith, as to the manner in which he conducts a business. FLYNN v. RODRICK Decision of the Court 6 8 "In order for the court to make a determination that the hours claimed are justified, the fee application must be in sufficient detail to enable the court to assess the reasonableness of the time incurred." Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188 (App. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. . Tse Kwong Lam v Wong Chit Sen: PC 1983 For a mortgagee in possession selling a property, it does not matter that the time may be unpropitious and that by waiting a higher price could be obtained: he is not bound to postpone in the hope of obtaining a better price. Subscribers are able to see a list of all the documents that have cited the case. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 5. Continue with Recommended Cookies. PDF UNDER ADVISEMENT RULING VERDICT - The Judicial Branch of Arizona in Mr Wong (Chinese :) exercised his power of sale and put up Mr Tses (Chinese :) property for auction, a building with about 100 units in Kowloon, the Kwong Hing Building. . Tse Kwong Lam v Wong Chit Sen - Wikiwand Mortgage - sale by mortgagee pursuant to contractual right of sale - sale to company . The basis for his conclusion has also been criticized in that there was no direct evidence of valuation from the assurance company and none of any possible fall off in the property market between 26th April and 24th June. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. 1. 13 Raja v Austin Gray [2003] 1 EGLR 91. The property was sold, and the lender sought the balance outstanding from him. It is clear that, upon analysing the various principles in relation to clogs and fetters on the equity of redemption, that both law and equity do play a significant role in orchestrating its applicability. 449. The presence of this key requirement serves a key purpose. In other words, there is a requirement that the person must have had knowledge that the assets he received are traceable to a breach of fiduciary duty (El Ajou v Dollar Land Holdings [1994] 2 All ER 685, 700 (Hoffman LJ)). Manage Settings a-g of ondo state v. a-g of the federation and 19 others: supreme court: sc.22/1983 3plr/1983/1 (sc) akpapuna and ors v. obi nzeka and ors: supreme court: . Mr Wong (Chinese: ) exercised his power of sale and put up Mr Tses (Chinese: ) property for auction, a building with about 100 units in Kowloon, the Kwong Hing Building. This was applied in the County Court and, while perhaps not a significant case in terms of jurisdiction, it certainly shows that the courts are willing to embrace this notion of contract law reform in terms of mortgages (Falco Finance v Gough (1999) 17 Tr. VLEX uses login cookies to provide you with a better browsing experience. 2. At the same time one must remember that what has to be shown is not merely control but such control and other factors as demonstrate that the company is a sham - a mere mask to cover acts which, if done by the person himself, would have been improper. PDF Examiners' Comments on the 2021 Examination Head I: Conveyancing You can use this page to start a discussion with others about how to improve the "Tse Kwong Lam v Wong Chit Sen" page. While equity was already equipped in certain respects to address issues such as these (Bradley v Carritt [1903] A.C. 253, in relation to a clause affecting the security after redemption), the attempt of the European Council to harmonise national laws in relation to contract has granted the law more life in this respect. Downsview Nominees Ltd v First City Corp Ltd [1992] UKPC 34 is a New Zealand insolvency law case decided by the Judicial Committee of the Privy Council concerning the nature and extent of the liability of a mortgagee, or a receiver and manager, to a mortgagor or a subsequent debenture holder for his actions. Lee Ting Sang v Chung Chi-Keung; P. . There was also evidence of an offer made by Wing On Assurance Co. to the mortgagor on 26th April 1966 to advance $1.5 M. on the security of the building. This is not to say that the mental characteristic test is unnecessary by any means, in fact it shows that there is recognition of the fact that the law needs to adapt to the differing contexts between knowing receipt and dishonest assistance in order to truly account for the differing standards of mental intent required between the two. The trial Judge found that $1.2m was not a proper price, but refused to set the sale aside because of the borrowers delay in pursuing the counterclaim. 7. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! 5. There was an auction and the 1st Respondent set a reserve price of $1,200,000. An example of data being processed may be a unique identifier stored in a cookie. Start your 7-day free trial to receive access to high fidelity premium pronunciations. They had apparently had a board meeting before resolving that they would bid up to a maximum of $1.2m. The purchaser was a company (the 3rd Respondent) in which the mortgagee, his wife (the 2nd Respondent) and one of their sons were directors and the principal shareholders. Crimson Sabre is a Hong Kong television series adapted from Louis Cha's novel Sword Stained with Royal Blood. Advanced A.I. The trial judge found that the sale was not made bona fide and awarded damages, he refusing to order rescission on the ground that there had been unreasonable delay in the proceedings to set aside the sale. The trial Judge found that $1.2m was not a proper price, but refused to set the sale aside because of the borrowers delay in pursuing the counterclaim. Reliance was placed upon Gilford Motor Co. Ltd. v Horne 1933 Ch. Tse Kwong-lam v Wong Chit-sen And Others. Only full case reports are accepted in court. As I understand it, the sole object of fixing a reserve price at an auction is to protect the vendor against the possibility that the property may be sold at a price lower than he, in his own interests, is prepared to accept. Do you have a 2:1 degree or higher? 832 and Rex. Thus, it recognises that the law needs to adapt sometimes, while also maintaining the rigidity of the standard for the breach to be proven. It could be argued that a claim for knowing receipt could not be substantiated, or substantiated unfairly, against a defendant should this criterion not exist, as it would only provide for a means to test his or her actions, and not whether he or she actually had the guilty knowledge required to commit the offence. That valuation was criticised in the Court of Appeal and by the Privy Council, as being made on the assumption that a sale would take place of individual units over a period of time, and, so it appeared to the Court of Appeal, as having been based upon insufficient information. That, of course, is a matter different from the allegation of fraud which the mortgagor sought unsuccessfully to raise by applying to amend his notice of appeal. She was acting on behalf of the company owned by Mr Wong and his family. Odun had no scope to reassign his interest in the property under the terms of the mortgage agreement, and hence Tricia has little standing to bring a claim in this circumstance. The case concerned seeking an order for sale of the property through the courts, but it was slightly unusual in that it was the mortgagors who were seeking the order for sale, but the finance company holding the mortgage who were opposing it. Real Party-Defendant's Response to Plaintiff's Application for Order to Show Cause, filed July 10, 2020; C. Real Party- Defendant In Interest Governor Ducey's Request for Judicial Notice and Memorandum In Support, filed July 10, 2020; D. Plaintiff's Reply to Response to Application .