KIE SHUK CHING TAMMY v. KWONG WING SANG

1986, No. A6205

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an action in which the Plaintiff is one Kie Shuk Ching, Tammy who was married on 18th November 1982 to the Defendant, Kwong Wing Sang. I shall refer to them as "the wife" and "the husband" respectively. It concerns their respective interests in Flat C, Oscar Court, Fa Yuen Street, Kowloon. The background is as follows.

2. In July 1983, the husband and the wife were minded to purchase a flat in Kam Ming Court, Kowloon, which was to become the matrimonial home in succession to a flat which they had originally occupied at Lam Tin Estate, Kwun Tong. That was rented public housing and the Kam Ming Court flat represented their first purchase of a matrimonial home. The price paid for Kam Ming Court was $338,000. It is accepted that none of this was contributed (at any rate, directly) by the husband. It is said, and for the purposes of this judgment I am prepared to accept it, that before the purchase of Kam Ming Court, the husband had some savings which were under the control of the wife and which were intended to be applied eventually towards the purchase of a matrimonial home. But, in fact, the whole of the money was provided not by the husband but by others. It was provided by the wife through a company called China Promotion Ltd., which was used merely for convenience. The wife held some shares in a family company, Kie Enterprises Ltd., which she had sold to her mother at a price of some $410,000. This was the money which was to be used for the purchase of the Kam Ming Court flat. The expenses of the purchase were paid by the wife.

3. The wife's evidence was that the Kam Ming Court flat was taken in the joint names of the husband and the wife, at the suggestion of the husband. She told me and I accept that she did not consider giving the husband any interest in the flat. She considered that she owned the flat. The husband, on the other hand, contends that the intention was that he should have a beneficial interest in the flat and that is why it was taken in the joint names of himself and his wife.

4. The difficulty is that the husband is quite unable to point to any specific sum which can be said to have represented any contribution by him towards the purchase price. He is unable to give any positive evidence of any agreement that he should, in fact, have a beneficial interest. He may have perhaps assumed that he would get some beneficial interest, but that is not enough to establish an agreement. The Court is therefore thrown back on the presumed intention of the parties.

5. The law is that where A and B take a conveyance of property, but the whole of the purchase money has been provided by A, A and B hold the property upon a resulting trust for A absolutely. B gets no beneficial interest merely because the property was taken in his name. Although it is sometimes thought otherwise, this presumption applies as well to cases between husband and wife as it does to other cases. In the case of a purchase by a husband in the name of his wife, or in the names of himself and his wife, there may, alternatively, be a presumption that the husband intended to advance the wife. But this is not a point which I am called upon to consider here. There is no presumption of advancement of a husband by a wife.

6. In the result then, and in the absence of any satisfactory evidence to prove a contrary intention, I would find myself compelled to presume that the Kam Ming Court flat was held by the husband and the wife upon trust for the wife absolutely, the facts being that the husband, as he accepts, had made no specific contribution towards the purchase price.

7. The matter, however, does not rest there, because, in the circumstances to which I now come, the husband on 4th June 1986 gave a power of attorney to his wife in relation to the flat. This power was intended to confer on the wife a power to manage and to sell the Kam Ming Court flat. It recited, among other things, that all the consideration money was provided by the wife and all right, title and interest in the said flat was held by the husband in trust for the wife.

8. I accept the husband's evidence that it was with some misgivings that he signed this instrument; but it does support the wife's case. I hold that the Kam Ming Court flat was held by the husband and the wife upon trust for the wife absolutely.

9. Unhappy differences arose between the husband and the wife, and, on 18th March 1986, the wife presented a petition for divorce. There is a conflict of evidence about the circumstances in which this petition was presented. The wife says that it arose because of a desire on the part of the husband to emigrate to Canada. The husband denies this. I see no reason to come to a finding of fact upon the matter. The end result, however, was that something had to be done to provide living accommodation for the parties in the event of a sale of the Kam Ming Court flat, which clearly both of them contemplated.

10. On 26th March 1986, the wife entered into a provisional contract for the purchase of the Oscar Court flat. This contract was taken in the name of the wife alone. On 4th April 1986, a formal contract for the sale and purchase of the Oscar Court flat was entered into; but this time in the husband's name alone.

11. On 28th April 1986, the Oscar Court flat was assigned to the husband alone, and was charged by the husband to the Kwangtung Provincial Bank to secure an advance of $150,000. The balance of the purchase price was provided by the wife's mother. The wife's case is that it was intended that the husband would take the entire beneficial interest in the Oscar Court flat but that he should become liable to repay to her, in effect, what she had borrowed from her mother. The husband's case is that he agreed to give up his (alleged) interest in the Kam Ming Court flat on the basis that as part of the settlement of their matrimonial difficulties the wife would put up the money (less the $150,000 to which I have referred) which was required to purchase the Oscar Court flat. The difficulty which faces the husband is that I have already found that the entire beneficial interest in the Kam Ming Court flat was vested in the wife. This cuts the ground from under his feet in relation to the Oscar Court flat. I hold accordingly in favour of the wife, whose evidence I accept, that the entire beneficial interest in the Oscar Court flat is vested in the husband but that he is liable to repay to the wife the money which she laid out in that purchase. I am not satisfied that any agreement was arrived at to the effect for which the husband contends.

12. The claim of the wife is for $250,770. I will hear argument upon the exact sum, but subject to that I propose to declare that the entire beneficial interest in the Oscar Court flat is vested in the husband, but that he is liable to pay the wife the said sum of $250,770; and that the Oscar Court flat stands charged in the husband's name in favour of the wife with the payment of that sum. I add this rider because the wife, having put up the money for the purchase of the Oscar Court flat, is subrogated to the unpaid vendor's lien which would otherwise subsist in relation to the purchase money. Accordingly, my decision is in favour of the wife. The form of order which I am prepared to make will be on the lines which I have already indicated.