HO NGA SHEUNG V. MA FOOK LEUNG

Headnote

[Where a husband acquires a property for use by himself and his wife as the matrimonial home, and directs that the assignment be made to himself and the wife as "joint tenants", he will be presumed to have intended that the two of them were to become beneficial as well as legal joint tenants; although it will always be open to him to lead evidence to rebut the presumption and to show that he intended that the entire beneficial interest should be his alone]

1993, No.MP2737

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of all That One equal undivided 20th part or share of and in Inland Lot No.443, Inland Lot No.616 and The Remaining Portion of Inland Lot No.438 (Pao Woo Mansion) (formerly known as Paul Y. Apartments) Flat C on the 9th Floor.

IN THE MATTER of Partition Ordinance, Cap.352.

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J U D G M E N T

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1. This is an application by originating summons, brought under the Partition Ordinance, Cap.352, which enables the court to make an order for a partition or sale of property owned by joint tenants or tenants in common. The property in question in the instant case is Flat C, 9th Floor, Pao Woo Mansion formerly known as Paul Y. Apartments, 177 - 179 Wanchai Road and 51 Cross Lane, Hong Kong. There is obviously no question of partitioning this property. What the plaintiff is really after is an order for sale. But it is not necessary for me to deal with this case pursuant to the provisions of the Ordinance. The parties have agreed that the real issue between them is the extent, if any, of the beneficial interest of the plaintiff in the property. This issue is one which I am prepared to decide today though I do so in the exercise of the inherent jurisdiction of the court and not that conferred on the court by the Partition Ordinance.

2. The facts are as follows.

3. The plaintiff and the defendant were husband and wife (I shall so refer to them). They were married on 26th January 1989. The property was acquired as the matrimonial home (with the aid of a mortgage advance) on 1st May 1989, when at the direction of the husband an assignment of the property was taken by the husband and the wife "as joint tenants". The wife said in evidence that her husband had originally intended that she should be the sole owner, but had said, following a discussion with his brother, that the property should be taken in the name of both the husband and the wife. The wife had herself never suggested sole ownership but nevertheless felt angry and hurt at this suggestion.

4. The husband's evidence was that his intention had been to buy the property for the use of himself, his wife and his parents but that the wife should have some interest in the property, although that had not been discussed. He wanted, he said, to give her some protection. It was in these circumstances that the property was taken in the name of the husband and the wife; that meant, the husband told me, that he alone could not dispose of the property at his own will. On the other hand, he did not, he said, intend her to have a half share in the property.

5. After the property was acquired, the mortgage instalments were paid by the husband out of his income. The wife made no contribution towards the costs of acquiring the property but did pay some household expenses. If the wife's case depended on her establishing that she had made some contribution of a nature and extent significant enough to justify my holding that that demonstrated an intention on the part of both parties that she should have an interest in the property, I would have found it impossible to accept. But the case for the wife is really much simpler than that. The case for the wife is that where a property is purchased, as this was, as the matrimonial home, and the husband elects to put it in the names of the husband and the wife "as joint tenants", he must be taken as having intended to advance her to the extent, at any rate, of half of the beneficial interest.

6. The situation in England and Wales is different. Under the 1925 property legislation, with its creation in cases of joint ownership of a trust for sale divorced from the legal estate in the property, different considerations may arise. But, in Hong Kong, I am of the opinion that where a husband and a wife take a property in their joint names at the direction of the husband and it is said in the assignment that they take the property "as joint tenants", an advancement by the husband to the wife should be presumed; although, this being only a presumption, it will always be open to the husband to lead evidence to rebut the presumption and show that the intention was that the entire beneficial interest should be his alone.

7. In the present case, the husband has come nowhere near satisfying me that the presumption to which I have referred ought to be treated as rebutted. He accepts that the wife was to have some interest in the property, and although there was some suggestion on his behalf that it should be less than a half interest, I do not think that can stand in the face of the use of the express words "as joint tenants" in the assignment. I hold that the effect of the assignment was to vest the entire legal and beneficial interest in the husband and the wife as joint tenants. Nothing in the evidence satisfies me that I should treat the presumption of advancement as having been rebutted by the husband.

8. I therefore propose to declare that the property is now held by the husband and the wife as tenants in common in equal shares, the joint tenancy clearly having been severed by the issue of these proceedings. (The husband and wife are now divorced, the decree absolute having been pronounced on 10th December 1991, although, for some unexplained reason, the issue between the parties relating to the property was not ventilated in the divorce proceedings.)

9. I shall now hear the parties on the question of the costs of these proceedings and any other matter relating to the form of the appropriate order.