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CACV 439/2022, [2024] HKCA 889
On Appeal From [2022] HKDC 240
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 439 OF 2022
(ON APPEAL FROM DCMP NO 1428 OF 2016)
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IN THE MATTER OF Order 83A and Order 88 of the Rules of the District Court
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and
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IN THE MATTER OF the property known as ALL THOSE 4 equal undivided 428th parts or shares of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as THE REMAINING PORTION OF NEW KOWLOON INLAND LOT NO.1121, THE REMAINING PORTION OF SECTION E OF NEW KOWLOON INLAND LOT NO.1121, THE REMAINING PORTION OF SECTION F OF NEW KOWLOON INLAND LOT NO.1121 and THE REMAINING PORTION OF SECTION G OF NEW KOWLOON INLAND LOT NO. 1121 And of and in the messuages erections and buildings erected thereon now known as PO WAH COURT (寶華閣), 432-438 Un Chau Street, Kowloon, Hong Kong (the “Building”) TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT “B” on the 2ND FLOOR of the Building (the “Property”)
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and
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IN THE MATTER of the Second Mortgage dated 16 November 2015 registered in the Land Registry with Memorial No. 15121100450285
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and
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IN THE MATTER of the Loan Agreement dated 16 November 2015
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BETWEEN
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SHUN ON FINANCE LIMITED |
Plaintiff |
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and
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WONG FUNG KWAN |
1st Defendant |
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WONG KIN HING |
2nd Defendant |
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| Before: |
Hon Chu VP, Au and Chow JJA in Court |
| Date of Hearing: |
13 June 2023 |
| Date of Reasons for Judgment: |
27 September 2024 |
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REASONS FOR JUDGMENT
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Hon Au JA (giving the Reasons for Judgment of the Court):
A. INTRODUCTION
1. This is the plaintiff’s appeal against the Amended Judgment (“the Amended Judgment”) of His Honour Judge Harold Leong (“the Judge”) dated 25 March 2022, by which the Judge, among others, dismissed the plaintiff’s claim against the 2nd defendant and allowed the 2nd defendant’s counterclaim. The Judge has set out his reasons for the Amended Judgment in his written judgment of the same date (“the Written Judgment”)[1]. Leave to appeal against the Amended Judgment in relation to the 2nd defendant was granted by the Judge[2].
2. At the end of the hearing of the appeal, we dismissed it with costs to the 2nd defendant. We indicated that we would hand down our reasons in due course. This is what we do now.
B. BACKGROUND
3. The background leading to this action has been set out in some details in the Written Judgment, which we gratefully adopt. For the purpose of this appeal (which involves a narrow issue as explained below), we only need to highlight the following[3].
4. The plaintiff is a money lender. The 2nd defendant is the mother of the 1st defendant[4].
5. In 1985, the 2nd defendant and her husband (“Mr Wong”) used their own money to purchase a property at Po Wah court, 432-438 Un Chau Street (“the Property”) as joint tenants. Mr Wong passed away in June 2001, whereafter the 2nd defendant as the surviving joint tenant became the sole owner of the Property.
6. On 30 April 2007, the 2nd defendant assigned the Property to the 1st defendant purportedly for HK$1m (“the Stated Consideration”) under a deed of assignment (“the Assignment”). The Assignment was signed by both the 1st and 2nd defendants and registered with the Land Registry on 20 June 2007. The 1st defendant had since become the sole registered owner of the Property.
7. Clause 1 of the Assignment stated: “In pursuance of such agreement and in consideration of the sum of DOLLARS ONE MILLION ONLY Hong Kong Currency (HK$1,000,000.00) paid by the Purchaser to the Vendor (receipt whereof is acknowledged) the Vendor as such sole surviving Joint Tenant as aforesaid and as beneficial owner ASSIGNS the Property to the Purchaser TO HOLD the same unto the Purchaser for the residue of the term of years created by the Government Lease referred to in the Schedule hereto …” (emphasis added).
8. In March 2015, the 1st defendant executed a mortgage in favour of OCBC[5] for a facility loan of HK$1.82m. At the material time, the 1st defendant also had another mortgage loan of HK$3m secured by another property with Bank of East Asia. She also had a debt totalling around HK$676,000 as credit card and credit facilities with different banks.
9. In late 2015, the 1st defendant received a cold-call from a staff of an intermediary (“Well Done”)[6], who persuaded her to take out a loan of about HK$600,000 (“the Loan”) with the plaintiff, which was to be secured by the Property, purportedly to help her to restructure her debts with a lower interest rate. The plaintiff and the 1st defendant thereafter entered into a loan agreement dated 16 November 2015 (“the Loan Agreement”) and a second mortgage (“the 2nd Mortgage”) over the Property. However, instead of using the Loan to restructure the 1st defendant’s debts as promised, Well Done took the money and disappeared[7].
10. The 1st defendant later defaulted on repayment under the Loan Agreement.
11. In the meantime, by a court order dated 2 February 2017 under HCMP 2234/2017, OCBC as the first mortgagee recovered possession of the Property and sold it to a third party for HK$3.5m in 2018. The balance of the sale proceeds (“the Sale Proceeds”) in the sum of HK$1,613,647.38 was paid into court, over which sum the plaintiff and the 2nd defendant by way of these proceedings launched competing claims. In gist, the 2nd defendant claimed that she was in fact the sole beneficial owner of the Property.
C. THE JUDGMENT
12. The trial of the plaintiff’s claim and the 2nd defendant’s counterclaim came before the Judge.
13. In the proceedings below, in defence to the plaintiff’s claim:
(1) The 1st defendant initially advanced five defences based on collusion, want of consideration, undue influence, misrepresentation and breach of the Money Lenders Ordinance (Cap 163) (“the MLO”), before abandoning three of them and pursuing only the defences of collusion and breach of the MLO at trial.
(2) The 2nd defendant claimed that she was the beneficial owner of the Property by reason of a resulting or constructive trust, and counterclaimed for a declaration that she was the sole beneficial owner of the Property and the 1st defendant had been holding it on trust for her. In support, it is her case that the Purported Consideration was never paid and the 1st defendant was registered as the legal owner of the Property in 2007 for administrative convenience only as the 2nd defendant was getting old[8].
14. Pertinent to the present appeal, in defence of the 2nd defendant’s counterclaim, the plaintiff relied on the doctrine of estoppel by deed in contending that the 2nd defendant is estopped from adducing evidence and advancing a case contradicting the position stated in the Assignment that she had received the Purported Consideration and assigned the Property to the 1st defendant beneficially. In support, the plaintiff relied on the authority of Tsang Chuen v Li Po Kwai [1932] AC 715 at 724-730[9].
15. By the Written Judgment, the Judge:
(1) dismissed the 1st defendant’s case on collusion but found various breaches of the MLO, on which basis the Judge modified the original Loan Agreement such that only a sum of HK$200,000 was enforceable[10]; and
(2) dismissed the plaintiff’s claim against the 2nd defendant, and allowed her counterclaim in finding that the 1st defendant had been holding the Property on common intention trust for the 2nd defendant since 30 April 2007 and that the 2nd defendant’s beneficial interest in the Property (and thus the Sale Proceeds) has priority over the plaintiff’s interest as the plaintiff was fixed with constructive notice of the 2nd defendant’s said interest in the Property[11].
16. Relevantly, after accepting the 2nd defendant’s evidence (specifically that the Purported Consideration was never paid) and finding that the 1st defendant was holding the Property on common intention trust for the 2nd defendant, the Judge at [107] of the Judgment further rejected the plaintiff’s case on estoppel by deed for the reason that “it is well established that estoppel by deed is not an objection to asserting the existence of a constructive trust or resulting trust”, citing Re Yip Yam Yu Alex [2019] HKCFI 75.
D. THIS APPEAL
D1. Grounds of appeal
17. As mentioned, with leave granted by the Judge, the plaintiff appeals against the Amended Judgment in relation to the 2nd defendant.
18. The plaintiff has in its Notice of Appeal raised the following grounds of appeal:
(1) The Judge erred in holding that estoppel by deed did not apply to bar the 2nd defendant from asserting the existence of a constructive or resulting trust in the Property; and
(2) The Judge ought to have applied Tsang Chuen and found that the 2nd defendant was estopped from advancing any proposition that would have the effect of contradicting the position stated in the Assignment that she had received the Purported Consideration for the assignment of the Property. The 2nd defendant was therefore estopped from asserting any trust over or beneficial interest in the Property or the Sale Proceeds.
19. The plaintiff seeks in this appeal (a) an order to set aside the Amended Judgment insofar as it relates to the 2nd defendant and to dismiss the 2nd defendant’s counterclaim, and (b) a declaration that the plaintiff is entitled to recover the modified loan amount of HK$200,000 out of the Sale Proceeds.
20. Bearing this in mind, we now turn to consider the merits of these grounds of appeal.
D2. Discussion
21. As pointed out by Ms Wong for the plaintiff, the grounds of appeal boil down to the narrow question as to whether the 2nd defendant ought to have been estopped by the terms of the Assignment from asserting the existence of any beneficial interest in the Property.
22. In this respect, it is noted that in the court below, by citing Tsang Chuen, the plaintiff relied on the doctrine of estoppel by deed to support the contention that the 2nd defendant was estopped from advancing a case and evidence to assert a claim for beneficial interest in the Property, as this was in contradiction to the plain terms of the Assignment.
23. However, in this appeal, Ms Wong for the plaintiff now acknowledges that there are different views as to whether Tsang Chuen (and other related cases such as Re King’s Settlement[12]) should be categorised as cases of “estoppel by deed” or some other forms of estoppel (such as by representation)[13], but has submitted that regardless of terminology, there is no question that Tsang Chuen remains good law and a binding authority in Hong Kong, and thus the plaintiff should succeed in its contention against the 2nd defendant.
24. In this respect, at the hearing, Ms Wong has rightly accepted that there are different legal requirements for establishing estoppel by deed and estoppel by representation and the plaintiff therefore has to be precise on which form of estoppel it is seeking to rely on in support of its case. Ms Wong has then submitted that the plaintiff’s primary case in the appeal is that the 2nd defendant is estopped by representation from asserting a case for beneficial interest in the Property. Alternatively, counsel says, the plaintiff will rely on the doctrine of estoppel by deed.
25. Given the above submissions and for the purpose of the appeal, it is in our view unnecessary for us to decide whether Tsang Chuen is a case on estoppel by deed or by representation, as whichever way it is, it would not assist the plaintiff. Our reasons are these.
26. First, it is well established that as between immediate parties who know all the circumstances, there is no estoppel by deed. This is explained by this court in Tsui Hoi Pan v Wong Chun Ling (CACV 150/1999, 1 December 1999, Godfrey, Mayo and Rogers JJA) at paragraph 10 as follows:
“10. The judge below accepted this. Subject as already mentioned, he dismissed the plaintiff's action on this ground (and on this ground alone). In this court, the defendants have not seriously sought to support the judge's judgment on this ground, quite rightly, because as between immediate parties who know all the circumstances, there can be no estoppel by deed. If the facts are as the plaintiff has pleaded, there is no objection to his asserting the existence of an implied, constructive or resulting trust, merely because of the fact that the assignment to the 1st defendant, on the face of it, appears to be an assignment for value. The law does not allow an instrument such as the assignments here to be used as an instrument of fraud: see, e.g. Booth v. Turle (1873) LR 16 Eq. 182. If the plaintiff is able to establish a case on an implied trust, the doctrine of estoppel by deed will not assist the 1st defendant. It is well-settled (see, e.g., Halsbury's Laws of England, 4th edition, 1992, vol. 16, title ‘Estoppel’, paragraph 1020) that there is no estoppel by deed in favour of a person knowing all the circumstances.” (emphasis added)
27. Similarly, recently in Chung Pui Tong v Qian Zhen [2024] HKCA 593, after reviewing a line of authorities, this court (Kwan VP, Au and Chow JJA) has also emphasized that although a receipt clause may be powerful evidence that purchase money was paid, the mere fact that the parties to the deed has chosen to incorporate this clause formally in a deed would not by itself be sufficient to give rise to an estoppel to preclude a party from adducing evidence to show the contrary. See: [117] - [128].
28. In the present case, as pointed out by the Judge[14], the 2nd defendant’s evidence that she assigned the Property to the 1st defendant in 2007 only for administrative convenience due to her advanced age and that she had never received the Purported Consideration was fully accepted by the 1st defendant and not disputed by the plaintiff. In the premises, applying the above well-established principle, there can be no estoppel by deed as between the 1st defendant and the 2nd defendant to preclude the 2nd defendant from advancing a case and evidence to assert an implied, constructive or resulting trust over the Property. If the 1st defendant cannot rely on estoppel by deed, a fortiori, the plaintiff (which is seeking to claim its entitlement over the Property only through the 1st defendant) also plainly cannot rely on this doctrine. The Judge was therefore correct to reject the plaintiff’s case based on estoppel by deed.
29. Second, in relation to the case based on estoppel by representation, it must be noted that the plaintiff had all along relied only on a case of estoppel by deed at trial and it is also only on such basis that the Judge had granted the plaintiff leave to appeal. Further, properly read, the grounds of appeal stated in the Notice of Appeal are also related only to the case of estoppel by deed. In the premises, a case based on estoppel by representation is simply not within the scope of this appeal.
30. Further, it would also be unfair to allow the plaintiff to raise a case of estoppel by representation now in this appeal as the 2nd defendant would be prejudiced in not having a chance to properly answer the plaintiff’s said case at trial by filing any relevant evidence and / or pursuing different and relevant lines of cross-examination of the plaintiff’s witness (see also [33] below).
31. In these circumstances, the plaintiff should not be permitted to advance a case based on estoppel by representation in this appeal.
32. Third, even if the plaintiff is allowed to run a case based on estoppel by representation in the appeal, it would also fail to establish it for the following reasons.
33. It is trite that in order to succeed in a case of estoppel by representation, the plaintiff must plead and establish by evidence all the necessary elements that support the finding of such an estoppel, namely, the specific representation that is said to have been made by the 2nd defendant, the plaintiff’s reliance on the said representation, and the detriment said to have been suffered by the plaintiff which makes it inequitable for the 2nd defendant to assert a position different from the representation.
34. In this respect, Ms Wong says the plaintiff has sufficiently pleaded these elements in the following ways.
35. In relation to the 2nd defendant’s representation, counsel submits that it is pleaded at paragraph 3(b) of the plaintiff’s Reply and Defence to Counterclaim (“R&DC”) which, in response to the 2nd defendants’ pleas that she was the sole beneficial owner of the Property, refers to paragraph 1 of the Assignment as follows:
“3. Paragraphs 4.6 to 4.8 of D2D&C is denied and the 2nd Defendant is put to strict proof thereof. The Plaintiff further avers as follows:
(a) ...
(b) Paragraph 1 of the Last Assignment stated that ‘...... in consideration of the sum of DOLLARS ONE MILLION ONLY HONG KONG CURRENCY (HK$1,000,000.00) paide by the Purchaser to the Vendor (receipt whereof is acknowledge) the Vendor ...... as beneficial owner ASSIGNS the Property to the Purchaser......’
...”
36. Ms Wong further submits that as paragraph 1 of the Assignment is effectively a receipt clause and a clause for the assignment, paragraph 3(b) therefore sets out the 2nd defendant’s representations that she had received the Purported Consideration and assigned the Property beneficially to the 1st defendant.
37. As to the plaintiff’s reliance and detriment, Ms Wong accepts they are not expressly pleaded by the plaintiff, but contends that, by viewing the pleadings “holistically”, there is no doubt that “the reason the plaintiff advanced this loan was on the strength of” the fact that the 1st defendant was the registered owner of the Property as appeared on the Land Registry register.
38. We are unable to agree with Ms Wong. It is plain to us that the plaintiff has not pleaded all the necessary elements in support of a case of estoppel by representation:
(1) Taking her submissions at their highest, the alleged relevant representation that was said to have been relied on by the plaintiff is the registration of the 1st defendant as the legal owner of the Property as appeared on the Land Registry record. This has nothing to do with paragraph 1 of the Assignment, and more importantly, the receipt clause and the assignment clause. The submission that paragraph 3(b) of the R&DC is a plea of the relevant alleged representation is simply incorrect.
(2) Moreover, as rightly accepted by counsel, there is simply no plea at all of the alleged reliance and detriment in support of a case of estoppel by representation.
39. Further and in any event, there is also no evidence to correlate the alleged representation made by way of paragraph 1 of the Assignment as purportedly pleaded under paragraph 3(b) of R&DC and the plaintiff’s reliance thereon. As we pointed out at the hearing, it is not the evidence of the plaintiff’s witness (Mr Cheung) at trial that he had obtained a copy of the Assignment and read its contents before advancing the loan to the 1st defendant[15], and the Judge has also (understandably) not made any findings on the purported reliance.
40. In the premises, the plaintiff simply cannot establish its case on estoppel by representation.
E. CONCLUSION
41. For all the above reasons, we dismissed the plaintiff’s appeal with costs to the 2nd defendant[16], and made no order as to costs between the plaintiff and the 1st defendant[17].
| (Carlye Chu) |
(Thomas Au) |
(Anderson Chow) |
| Vice President |
Justice of Appeal |
Justice of Appeal |
Ms Sheena Wong, instructed by Cheung & Choy, for the Plaintiff
The 1st Defendant, acting in person
Mr Vincent Lung, instructed by Yu, Tsang & Loong, assigned by the Director of Legal Aid, for the 2nd Defendant
[1] [2022] HKDC 240.
[2] Dated 1 November 2022 [2022] HKDC 1095.
[3] This is largely taken from the respective skeleton submissions of the plaintiff and the 2nd defendant, to which this court is grateful.
[4] Other than the 1st defendant, Mr Wong and the 2nd defendant have three more children.
[5] OCBC Wing Hang Credit Limited.
[6] Well Done Financial Planning Centre.
[7] See paragraphs 8 - 20 of the Written Judgment.
[8] See [84] - [91] of the Written Judgment.
[9] See the plaintiff’s closing submissions dated 21 December 2021 at paragraphs 35 - 36.
[10] See [26] - [80] of the Written Judgment.
[11] See [83] - [106] of the Written Judgment.
[12] [1931] 2 Ch 294 at 299.
[13] See the plaintiff’s skeleton submission at paragraph 22.
[14] See [91] of the Judgment.
[15] Mr Cheung testified that he only relied on the land search record by performing a “current search” of the Land Register (see [96] of Judgment).
[16] With the 2nd defendant’s own costs be taxed in accordance with Legal Aid Regulations.
[17] Although the Notice of Appeal was served on the 1st defendant and she appeared at the hearing, the appeal was not concerned with her and she has not in any way actively participated in the appeal.
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