FOK BRYAN v. CHAN SHARON KARIES (formerly known as CHAN SAU KI) AND ANOTHER

HCA 1613/2021

[2022] HKCFI 2907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1613 OF 2021

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.  This is the Plaintiff’s application to strike out the second sentence of paragraph 10 and the whole paragraph 17(2) of the Defence of the 1^st Defendant filed on 14 March 2022. The main ground in support of the application is that these paragraphs contain inconsistent pleas.

2.  To understand this ground, I have to set out paragraphs 9, 10 and 17 of the Defence.

“9. Each and every allegation in paragraph 10 is not admitted, save that it is specifically denied that there was ever the 1^st Agreement. It is averred that for the purchase of the intended property which was later identified as the Cadogan Property and in the light of the above and the course of conduct between the parties, the parties agreed that:-

(1) The Plaintiff would pay for the purchase price and expenses;

(2) The Cadogan Property was intended to be the 1^st Defendant’s investment.

10. In the circumstances, it is averred that in the light of the above and the course of conduct between the parties, the 1^st Defendant was the intended sole beneficial owner of the Cadogan Property. Further or alternatively, it is averred that the beneficial interest in the Cadogan Property was intended to be shared between the Plaintiff and the 1^st Defendant.

17. Each and every allegation in paragraph 29 is specifically denied. It is averred that:

(1) by reason of the matters pleaded and above, the contribution and expenditure by the Plaintiff for the acquisition of the Cadogan Property were gifts to the 1^st Defendant;

(2) further or alternatively,

(a) there was at all material times an agreement, a common intention / understanding and/or consensus between the Plaintiff and the 1^st Defendant, that they shares the beneficial interest of the Cadogan Property…”

3.  The Plaintiff’s submissions are that since the 1^st Defendant’s case is that the parties or at least the 1^st Defendant agreed that the Cadogan Property was to be solely owned by the 1^st Defendant, then the parties could not have at the same time an intention to share the property equally.

4.  True that if the 1^st Defendant mounts a case that the parties had the actual intention was for the 1^st Defendant to own the property solely, and then alternatively, the actual intention to share the property equally, it would be impermissibly inconsistent given that the parties could not have the two intentions at the same time. During the evidence stage, he cannot say, “I actually intended A to happen, and if the Court find against me, then I actually intended B to happen.”

5.  However, it is not what happens here. Upon the clarification by the 1^st Defendant’s counsel Mr Jonathan Ah-weng, what the 1^st Defendant means by the pleading is that an agreement is to be inferred that the 1^st Defendant would have the sole ownership of the property. Alternatively, if the court does not infer such an agreement, then the Court should infer an agreement for equal sharing of the ownership. On that basis, I find that there is no impermissible inconsistent pleas here.

6.  That said, it is only upon Mr Ah-weng’s clarification that the matter is as such. When looking at those paragraphs of the Defence itself, without such clarification, I do see some force in the submissions by Mr Simon Wong, leading Ms Abigail Liu, for the Plaintiff that there are impermissible inconsistent pleas. It does appear from paragraph 9 of the Defence that there was some actual intention or agreement of the parties that the property would be solely owned by the 1^st Defendant. Then, it appears from the second sentence of paragraph 10, which made no reference to any course of conduct, that there would be an intention that the property would be shared equally, as if the parties had the two actual intentions at the same time, for the Court to choose. Also, the word “further” in paragraphs 10 and 17 only causes more confusion.

7.  What further confuses the matter is the solicitors’ pre-application correspondence where the 1^st Defendant’s solicitors wrote:-

“1. … The said intention [for the 1^st Defendant to solely own the property] was based on what the parties had expressly said between them and/or inferred by conduct, before and after the acquisition of the property in question.

“2. … The contention of “shared beneficial interest” was, instead of a positive averment, a fallback position… To this end, our client contends that she was intended by the parties to hold at least some beneficial interest in the Cadogan Property to the extent that the Court may find, upon consideration and assessment of all evidence of the case…” (emphases added)

8.  The words “expressly” and “intended” in this context do give its readers an impression, to say the least, that the parties had such actual inconsistent intentions at the same time.

9.  As I said, upon Mr Ah-weng’s clarification, the pleas seem not to be impermissible consistent pleas. But for the present striking out application, one looks at the pleadings only. Upon enquiry, Mr Ah-weng would like to apply for leave to amend the Defence of the 1^st Defendant to reflect the clarification he made to the Court. The matter is still at its early stage, and I do not think it would be fair to the 1^st Defendant if she is not permitted to run an alternative case simply because of some technical ground while the substance of the defence she would like to mount has been clarified. In the circumstances, I grant leave for the 1^st Defendant to amend the Defence of the 1^st Defendant. This would obviously have costs consequence.

10.  I shall hear submissions on the consequential directions and costs.