NG CHO CHU JUDY v. CHAN WING HUNG

CACV 139/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 139 OF 2016

(ON APPEAL FROM DCMP NO 2498 OF 2014)

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J U D G M E N T

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Hon Kwan JA:

1.  This is the defendant’s appeal from the decision of Deputy Judge Winnie Tsui (as she then was) on 18 January 2016 (“the Decision”; [2016] 1 HKLRD 1073). It was brought with leave granted by the judge on 3 June 2016.

2.  The Decision was made in the plaintiff’s application for final judgment for declaratory relief pursuant to Order 28 rule 4 of the Rules of the District Court and it was concerned with the beneficial ownership of a property in Cheong Wing Court, 5 Water Street, Sai Ying Pun, Hong Kong (“the Property”) registered in the sole name of the defendant.  By the Decision, it was declared that the defendant has been holding the Property on trust for the plaintiff and himself as joint tenants since 31 July 2007, that the plaintiff is a beneficial joint tenant of the Property, and that she is entitled to a half share in the proceeds of sale in the event of the Property being sold.

3.  There are two broad grounds of appeal.  The first goes to the jurisdiction of the District Court to hear this case and is of some importance.  The defendant argued that none of the provisions of the District Court Ordinance, Cap 336 (“the Ordinance”), and section 36 in particular, would confer jurisdiction on the District Court to entertain the plaintiff’s claim.  The second goes to the merits (if the defendant should fail on the jurisdiction issue).  The defendant contended that he has discharged his burden of showing that his defence is credible and valid in law, so that the plaintiff is not entitled to have judgment entered summarily.

4.  I will first address the jurisdiction issue.

Jurisdiction

(1) The plaintiff’s claim

5.  The plaintiff’s claim was premised on a Deed of Trust executed by the defendant as the trustee and the plaintiff as the beneficiary on 10 June 2007 (“the Deed”).  The recitals stated that: (A) the defendant entered into a preliminary sale and purchase agreement dated 10 June 2007 to purchase the Property in his sole name at the price of $1.72 million; (B) it had been agreed between the defendant and the plaintiff that the deposit paid on entering the preliminary sale and purchase agreement[1], the balance of deposit and the balance of the purchase price and the costs and expense for completing the purchase was and will be jointly provided by the defendant and the plaintiff; and (C) the plaintiff was desirous of not being made a party to the formal agreement for sale and purchase and the assignment of the Property.  By the Deed, the defendant declared that he would hold the Property upon trust for himself and the plaintiff as joint tenants.

6.  In her originating summons, the plaintiff claimed various declarations, which were granted by the judge in the Decision.

7.  As noted by the judge, Practice Direction 27 §4 provides that all writs and originating summonses should contain a plea that the relief sought do fall within the jurisdiction of the District Court, specifying which section(s) of sections 32 to 39 of the Ordinance do apply to the case.  The originating summons here did not comply with the Practice Direction.  There is no plea that the relief sought do fall within the jurisdiction of the District Court, and the section specified in the originating summons is section 52, not any of the provisions in sections 32 to 39.  But nothing of material relevance turns on this non-compliance.

8.  It is common ground that the plaintiff’s claim does not come within section 35[2], as she is not seeking possession of the Property[3].

9.  The judge held that the plaintiff cannot rely on section 37(1)(b)[4] to establish jurisdiction, as the monetary limit prescribed for this provision is referable to the value of the entire trust as alleged, namely the Property, which was valued at $5.8 million, and it exceeds the relevant limit of $3 million in section 37(2)(b)[5].  The correctness of this ruling was not challenged on appeal.  I think the judge is correct.

10.  The originating summons referred to section 52[6] in its heading.  The judge held that this provision is concerned only with the type of relief that can be granted and does not operate to confer substantive jurisdiction on the District Court[7], citing the decision of Judge Andrew Cheung (as Cheung CJHC then was) in Ma Yu Cheung v Yu Wai Chun, DCMP 268/2001, 22 November 2001 at §23 and the decision of Judge Lok (as Lok J then was) in Wong Kum Chi v Lee Tit Ying [2002] 1 HKLRD 420 at §9.  In this appeal, it was not seriously suggested by either party that section 52 can be relied on to found substantive jurisdiction.  I am also in agreement with the judge.

11.  The only possible provision in the Ordinance that may be relied on to establish jurisdiction in this instance is section 36. For one reason or other, the present case does not fall within any of the other provisions in Part 4 of the Ordinance that would confer civil jurisdiction on the District Court.  It is what the judge referred to as a “pure” title case[8], namely, where an action in which the title to an interest in land is in question and it does not fall within any of the discrete categories in sections 32, 33, 35, 37, 38 or 39.

(2) Section 36 and the rival interpretations

12.  This section reads as follows:

“The Court has jurisdiction to hear and determine any action which would otherwise be within the jurisdiction of the Court and in which the title to an interest in land comes into question if —

(a) for an easement or licence, the rateable value, determined in accordance with the Rating Ordinance (Cap. 116) or the annual value, whichever is the less, of the land, over which the easement or licence is claimed, does not exceed $240,000; or

(b) for any other case, the rateable value, determined in accordance with the Rating Ordinance (Cap. 116) or the annual value, whichever is the less, of the land, does not exceed $240,000.” (Emphasis added.)

13.  It is the words italicized for emphasis that have given rise to much difficulty and they are the subject of two conflicting decisions of the District Court in Ma Yu Cheung and Wong Kum Chi. Both were “pure” title cases.

14.  Wong Kum Chi was decided less than two months after Ma Yu Cheung but did not refer to it. When the case of Wong Kum Chi was transferred to the Court of First Instance, and came before Judge Cheung (then sitting as a deputy High Court judge) nine months later, Judge Cheung referred to Judge Lok’s decision on the jurisdiction point without any substantive comment[9] and made no reference to his own decision in Ma Yu Cheung.  I agree with the judge that Judge Cheung should not be taken to have changed his mind about the correctness of his own decision[10].

15.  Wong Kum Chi seemed to have gained general recognition as stating the position of the law[11].  In short, it was held that section 36 is not a “jurisdiction-conferring” provision, because of the words italicized above, applying a literal interpretation.  The effect of this provision is to impose an additional limitation on the District Court to deal with actions involving title to land “which would otherwise be within the jurisdiction of the Court”, by virtue of the “jurisdiction-conferring” provisions (§7).

16.  Ma Yu Cheung held that upon a liberal interpretation, section 36 is a “jurisdiction-conferring” provision and empowers the District Court to hear “pure” title cases.  This liberal interpretation would mean that if under some other provision of the Ordinance the District Court has jurisdiction to hear a case, and the case contains a title question, then it can be heard by the court provided that the jurisdictional limit in section 36 has not been exceeded.  Alternatively, if it is a “pure” title case, and again provided the jurisdictional limit in section 36 has not been exceeded, the court equally has jurisdiction to hear the case.  To achieve this interpretation, one would have to construe, where necessary, the word “and” appearing immediately after the phrase “which would otherwise be within the jurisdiction of the Court” as “or” (§§23 to 30).

17.  In neither Wong Kum Chi nor Ma Yu Cheung did the court undertake a detailed analysis of the legislative history of section 36 when construing this provision.  The judge made a careful study of the legislative history of the Ordinance in the Decision and I am indebted to her efforts and research.  It is not necessary to repeat this exercise so in the next section, I will only focus on the salient features regarding the genesis of section 36, taken largely from the judge’s analysis.

(3) The genesis of section 36

18.  When the District Court Ordinance was first enacted in 1953, in respect of civil jurisdiction concerning land, only cases for the recovery of land were covered.  Cases concerning questions of title to an interest in land were not covered at all.  There was no provision equivalent to section 36[12].

19.  The predecessor of section 36 made its first appearance when extensive amendments were made to the legislation in 1962, giving rise to a separate legislation called the District Court (Civil Jurisdiction and Procedure) Ordinance (“the 1962 Ordinance”), which was modelled largely on the English County Courts Act 1959 (“the 1959 Act”).  This was to give effect to the recommendations in the Second Interim Report of the District Court Committee in November 1959, which advised that “what is required is a precise conferment of jurisdiction, defined in terms of contract, tort and equity, and for this purpose the Committee has given considerable attention to the pattern of the English County Courts Act.”  Sections 3 to 8 of 1962 Ordinance granted jurisdiction by reference to the types of cases and sections 19 to 21 made provisions for ancillary jurisdiction and powers to grant reliefs.  Section 7, which adopted its wording from section 51 of the 1959 Act[13], is the predecessor of the present section 36 and it provided as follows[14]:

“The Court shall have jurisdiction to hear and determine any action in which the title to any hereditament comes in question, being an action which would otherwise be within the jurisdiction of the Court — [followed by provisions on monetary limits]”. (Emphasis added.)

20.  As noted by the judge, this is substantially the same as the present section 36, with a change in the ordering of the words.

21.  It is pertinent to note also section 3, which was modelled substantially on section 39 of the 1959 Act[15].  Section 3(1) provided as follows:

“(1) The Court shall have jurisdiction to hear and determine any action founded on contract or tort where the debt, demand or damage claimed is not more than [the specified monetary limit], whether on balance of account or otherwise:

Provided that the Court shall not, except as is provided in this Ordinance or by any other enactment, have jurisdiction to hear and determine –

(a) any action for the recovery of land; or

(b)  any action in which the title to any hereditament is in question.”

22.  In 1972, the original 1953 Ordinance and the 1962 Ordinance were consolidated into the District Court Ordinance without any change in substance.  Section 7 of the 1962 Ordinance became section 36 from then onwards[16], and section 3 of the 1962 Ordinance became section 32.

23.  In May 2000, extensive amendments to the Ordinance were passed into law.  The amendments were largely to give effect to the recommendations in the report of the working party chaired by Kempster JA in June 1993.  The significant changes brought about by the 2000 amendments, as stated by the judge, were three-fold: (1) the substantial increase in the monetary limits from $120,000 to $600,000 (in respect of claims in contract, tort etc) and from $100,000 to $240,000 (rateable value of property); (2) the introduction of the Rules of the District Court, modelled on the Rules of the High Court, in replacement of the previous rules which were less formal and catered for smaller claims; and (3) the strengthening of the District Court Registry to deal with the expected increase of the workload and the increasing complexity of the cases[17].

24.  In this round of amendments, section 36 was amended to its present form by making a slight change in the ordering of the words.  In comparison, section 32(1) was amended more substantially, most notably the proviso there was removed.  It now reads:

“The Court shall have jurisdiction to hear and determine any action founded on contract, quasi-contract or tort where the amount of the plaintiff’s claim does not exceed [the specified monetary limit]”.

25.  Lastly, as noted by the judge, the legislature has continued to increase the monetary limit of the civil jurisdiction of the District Court.  In 2003, the limit of $600,000 applicable to claims in contract, tort etc was raised to the current limit of $1 million.  And in 2015, the judiciary issued a consultation paper proposing to increase the civil claim limit from $1 million to $3 million and the land-related limit from $240,000 to $320,000[18].

(4) The legislative purpose and context

26.  I adopt the judge’s analysis of the legislative purpose and context of the provisions governing the scope of the civil jurisdiction of the District Court, taken from various reports and other admissible materials in the enactment process set out in the Decision.

27.  As summarised by the judge, the purpose of the establishment of the District Court and the ongoing enlargement of its civil jurisdiction throughout the years is to divert more civil cases to the District Court from the Court of First Instance to the extent it is feasible and appropriate to do so.  And there are two underlying reasons for the preference to offload cases to the District Court to the extent practicable.  First, it enables the judges of the Court of First Instance to focus on and devote their time and efforts to cases warranting their attention, such as cases where a large value is at stake or where complex issues are involved.  Second, from a litigant’s point of view, where the value of the claim is small or the case is straightforward, he can benefit from the relatively low costs of litigating in the District Court, as a lower scale of costs applies and solicitors have full rights of audience[19].

28.  To achieve the above purpose, the Ordinance has adopted two means to control what cases can be diverted to the District Court.  The first is to confer jurisdiction by reference to the types of cases that will come within the District Court.  The second is to specify monetary limits within the prescribed types of actions that will come within the District Court, to ensure that the “high value” cases would stay in the Court of First Instance[20].

29.  Certain types of cases are excluded from the jurisdiction of the District Court altogether, such as admiralty, judicial review, bankruptcy and companies winding-up cases.  This accords with the legislative purpose that certain specialist areas should be reserved exclusively for the Court of First Instance.  It is clear however that the District Court is regarded by the legislature as having the competence and capability to deal with cases concerning title to an interest in land.  Even on a literal interpretation of section 36, the District Court will from time to time have to adjudicate on issues concerning title of land, albeit those cases would not be “pure” title cases[21].

30.  Once a case is within the jurisdiction of the District Court because it is of a type of case that comes within the District Court, it would have the same power as the Court of First Instance to grant relief and remedy, see the provisions dealing with the ancillary jurisdiction of the District Court in Part 4 of the Ordinance[22].  And provisions are made for the transfer of cases between the District Court and the Court of First Instance[23].

(5) Construing section 36

31.  The words in section 36 which have caused difficulty (“which would otherwise be within the jurisdiction of the Court and”) should be construed in the context of section 32(1).  Those words made perfect sense when section 36 was first enacted in 1962, when the equivalent to section 32(1) had contained a proviso stipulating that “the Court shall not, except as is provided in this Ordinance or by any other enactment, have jurisdiction to hear and determine – … (b) any action in which the title to any hereditament is in question.” Hence, before section 32(1) was amended in 2000 (by removing the proviso), when the two sections are read together, the words in question in section 36 would have made clear that there is an exception as referred to in the proviso of section 32(1), and by section 36 jurisdiction is conferred on the District Court to hear and determine an action in which the title to any hereditament comes in question and which is within the monetary limit of the court.  When these two provisions are read together in that light, there is no reason to think that section 36 was not a “jurisdiction-conferring” provision before section 32(1) was amended.

32.  When the proviso to section 32(1) was removed in the 2000 amendments, the apparent reason for the existence of the words in section 36 (“which would otherwise be within the jurisdiction of the Court and”) was nowhere to be seen in the Ordinance.  That led to the literal interpretation which found favour in Wong Kum Chi, where those words were construed as imposing an additional limitation on the District Court to deal with actions involving title in land, namely, that the action must fall within one of the types of cases mentioned in the other provisions which are “jurisdiction-conferring” and section 36 itself is not “jurisdiction-conferring” (at §§5, 7, 11).  See also how this section was construed on a literal reading in Ma Yu Cheung §§23 and 24, that the section itself does not confer jurisdiction and the court must have otherwise got jurisdiction in provisions other than section 36.

33.  But was that the legislative purpose in removing the proviso to section 32(1) in the 2000 amendments, changing section 36 from a “jurisdiction-conferring” provision to one that is not?  I would venture to think not so.

34.  There is no indication in the Kempster Report or other admissible materials in the enactment process showing that to be the legislative intent in removing the proviso to section 32(1).  Nor was there any discussion in such materials of the reason or reasons why the proviso was removed in the 2000 amendments.

35.  There is however something in those materials showing indirect support that it could not be the legislative intent to change section 36 to non-jurisdiction-conferring.   In the Legislative Council Brief for the amendment bill 1999, in that part concerning the limits in respect of land and title of land[24], the recommendation of the Kempster Report of increasing the jurisdiction limit for cases concerning title to and recovery of land (i.e. sections 36 and 35) to a rateable value of $500,000 was mentioned.  It was stated that this limit would cover properties with capital value of well over $10 million and the Judiciary considered this change objectionable because “nearly all property cases would henceforth be handled in the District Court and the workload would be overwhelming” and “more fundamentally, adopting such a limit would mean that the District Court would virtually be the only court in Hong Kong dealing with property disputes, apart from those matters which fall within the jurisdiction of the Lands Tribunal, thereby having primary (first instance) responsibility for developing jurisprudence in this important area.”  The Judiciary therefore recommended that the limits for cases on recovery of land and title to land be adjusted to a rateable value of $240,000, which would cover properties with a capital value of about $6 million and this was adopted when the amendments were passed into law.

36.  The reason for lowering the monetary limit from a rateable value of $500,000 as recommended in the Kempster Report to $240,000 would appear to suggest that it was not contemplated by the legislature that section 36 would cease to be “jurisdiction-conferring” with the 2000 amendments. To the contrary, it was owing to concern that the District Court “would virtually be the only court in Hong Kong dealing with property disputes” that caused the monetary limit to be lowered in the amendments.

37.  I agree with the judge that the literal reading of section 36 is contrary to the legislative purpose and overall context of the Ordinance and it is the liberal interpretation in Ma Yu Cheung at §§26 to 30 that reflects the intention of the legislature regarding the District Court’s jurisdiction for cases concerning title to land.  I do not propose to repeat in detail the judge’s reasoning in the Decision at §§106 to 115.  In summary, there is no apparent logic or reason why in cases where land title is in issue, the jurisdiction of the District Court should depend on whether another cause of action (e.g. contract, tort or trust) is raised or whether recovery of the land is sought as a relief in the action, when there is clear recognition in the Ordinance that the District Court does have the skill and competence to deal with land title cases[25].  Further, the adoption of the literal interpretation of section 36 would, in some instances, lead to anomalous, if not absurd results, which cannot really be justified in terms of logic or the underlying legislative intent[26].

38.  As the judge has summed up, “there is no inherent logic in treating “pure” title cases any differently from other land cases in the context of jurisdiction” and the literal interpretation, which is capable of giving rise to anomalous or absurd outcome which could not have been intended by the legislature when the Ordinance and its subsequent amendments were enacted, is at odds with the overall context of the civil jurisdiction conferred on the District Court[27].  To this, I would add that it could not have been the legislative intent, in removing the proviso in section 32(1), to change section 36 from a “jurisdiction-conferring” provision to one that is not.

39.  Mr Benjamin Chain, who appeared for the defendant on appeal, submitted that prior to the 2000 amendments, when section 32(1) is read with section 36, the effect is that the prohibition in section 32(1) (that except as provided for, the District Court shall not have jurisdiction to hear and determine any action in which the title to any hereditament is in question) is “partially relaxed” by section 36, subject to a monetary limit by reference to the rateable or annual value.  He contended that section 36 was parasitic to section 32(1) and was a “saving” provision, not an enabling or “jurisdiction-conferring” provision.  The 2000 amendments did away with the prohibition in section 32(1) by removing the proviso but did nothing to section 36 and so did not confer any “additional jurisdiction” to the court to deal with land title cases.  He suggested that the legislature had forgotten to delete the words in section 36 (“which would otherwise be within the jurisdiction of the Court and”) and so one must live with the consequence of the literal reading of section 36 until the legislation is changed.

40.  I do not think that is the proper way of construing sections 32(1) (prior to the 2000 amendments) and 36 when they are read together.  I do not agree that section 36, when read with section 32(1) prior to the 2000 amendments, should be regarded as non-jurisdiction-conferring or that it is parasitic to section 32(1).  As I have mentioned above, the words in section 36 (“which would otherwise be within the jurisdiction of the Court and”) were to make clear there is an exception as referred to in the proviso of section 32(1).  And as was pointed out to counsel in argument by Barma JA, despite Mr Chain calling section 36 a “saving” provision, this must be “jurisdiction-conferring” in a real sense as its effect is to confer jurisdiction on the District Court in land title cases that comes within the monetary limit.

41.  Mr Chain acknowledged in argument it makes little sense for the District Court to deal with questions of title in some cases but not others.  And I am not persuaded at his attempts to explain away the anomalous results the judge has identified if the literal approach were to be adopted.  I reject his contention that because the plaintiff’s claim for declaration that a trust subsists should be regarded as coming within the equity jurisdiction in section 37(1)(b) and once it is held that jurisdiction cannot be established via that route as the monetary limit in section 37(2)(b) is exceeded, that should be the end of the matter.  There is no good reason why jurisdiction cannot be found if the plaintiff’s claim can be brought within another of the free-standing provisions conferring jurisdiction on the District Court.  Mr Chain was also constrained to insist that one of the anomalous results mentioned by the judge (a probably uncontested case of adverse possession brought by a squatter to claim possessory title where the paper owner cannot be traced would have to be brought in the Court of First Instance, applying the literal interpretation) is a matter for the legislature.

42.  For all the above reasons, I would uphold the judge’s conclusion that the District Court does have jurisdiction to hear and determine “pure” title cases within the monetary limit of the court, applying the liberal construction of section 36 in Ma Yu Cheung.  As recognized in §28 of Ma Yu Cheung and §117 of the Decision, although some violence is done to the wording of this provision by the liberal construction, this is justified as this is to give effect to the legislative intent as ascertained on a proper application of the interpretative process.

Merits

43.  This turns on the defendant’s contention he has an arguable defence in that he has raised triable issues of fact and summary judgment should not be entered.  The ambit of the dispute on appeal is a narrow one.

44.  The relevant principles are not in dispute.  It is not appropriate to embark on a mini-trial of the action on the affidavit evidence.  The issue is not whether the defendant’s assertions are to be believed, it is whether his assertions are believable.  The court will not take the assertions at face value but would test them against the evidence disclosed, including contemporaneous documents and the inherent probabilities.

45.  The judge was satisfied that the plaintiff has shown a prima facie case, which is premised on the Deed and in particular the recitals mentioned in the earlier part of this judgment.  So she is prima facie entitled to the declaratory relief to give recognition of her one-half beneficial interest in the Property.

46.  The judge rejected the defendant’s contention that the Deed is invalid in purporting to create a trust over the Property before the legal title was conveyed to the defendant by an assignment.  The judge held that a valid trust could be created over future property[28].  Further, by executing the Deed, the defendant is prima facie estopped from disputing the validity of the Deed as against the plaintiff by arguing that he did not in fact own any interest in the Property at that time.  This is referred to as estoppel by deed and the estoppel is fed when the Property was subsequently assigned to the defendant[29].

47.  The defendant has not sought to challenge these legal principles on appeal.

48.  I am in agreement with the judge as the plaintiff had demonstrated a prima facie case on her evidence, the burden is on the defendant to show a triable defence.

49.  The defendant raised a number of factual disputes in his affirmations.  He gave a very different version of his oral discussion with the plaintiff before the execution of the Deed.  He alleged that the Deed was to give effect to his “estate planning” whereby the plaintiff would, upon his death but not earlier, hold and deal with the Property for the purpose of the care and benefit of his mother, to which the plaintiff agreed.  And this was allegedly communicated to the solicitor Mr Tse Wai Hang, who was jointly instructed by the parties to prepare the Deed.  The defendant also asserted that the plaintiff did not make any contribution to the purchase price of the Property and he was not indebted to the plaintiff who had no financial means at the time.

50.  The judge accepted that it would not have been appropriate to resolve the factual disputes just on the affirmations of the plaintiff and the defendant but there were two crucial features which had a determinative effect on the resolution of the factual disputes before the court.  First, there was the contemporaneous document being the Deed which sets out in unequivocal terms the allocation of the beneficial interest in the Property.  Second, there was the affirmation of Mr Tse in which he gave a detailed account of his retainer by the parties in relation to their conveyancing transactions in 2007, with the parties expressly waiving any legal professional privilege and each having put forward to him a list of questions which he answered in detail in his affirmation[30].

51.  Having regard to these two features, the judge came to the view that the defendant’s case is so unbelievable as against the indisputable factual background and inherent probabilities that the factual disputes can safely be resolved against him in a summary fashion, for the reasons given in §§139 to 148 of the Decision.  In gist, the defendant’s case is largely refuted by the evidence of Mr Tse, who had no prior dealings with the parties before they retained him for their conveyancing transactions.  And the defendant does not understand why Mr Tse prepared the Deed which did not reflect his instruction about estate planning but has achieved the opposite of what he wanted.  That the solicitor would have prepared a totally wrong document – whether it be negligence in the extreme or deliberate disobedience of the defendant’s instructions – would go completely against the inherent probabilities.

52.  Mr Chain submitted the judge was wrong to place weight on the Deed as a contemporaneous document in that it is the very subject of the dispute.  I fail to see why that should be so.  The Deed was executed by the defendant, and Mr Tse had gone through the contents of the Deed with both parties immediately before their execution.  There is no reason why the judge should not have tested the defendant’s case against this legal document executed by him freely and with the contents interpreted to him.  The defendant’s allegation that the plaintiff did not contribute half of the purchase price is contradicted by recital (B) in the Deed, and the recitals were based on the instructions given by both the plaintiff and the defendant in relation to the earlier purchase of a property which was aborted and were further approved by them when Mr Tse went through the Deed with both of them before they signed.

53.  In this connection, Ms Linda Wong, who appeared for the plaintiff on appeal, referred us to the decision of the Privy Council in Prime Sight Ltd v Lavarello [2014] AC 436 at §§39 to 47 for the proposition that in the absence of vitiating factors such as fraud, illegality, mistake or misrepresentation, the parties, who knew that the recital in a deed of assignment was untrue at the time of executing the deed, are estopped from challenging the assumed facts in the deed.

54.  There is nothing in Mr Chain’s contention that the plaintiff had adduced no evidence to support her case that she had contributed to half of the purchase price.  There is nothing doubtful about the plaintiff’s case of having paid half of the purchase price in light of recital (B) in the Deed.

55.  Mr Chain repeated the argument below that Mr Tse is not an “independent” witness in that he has a self-interest in giving the evidence he did as he would be found to have failed to discharge his professional duty if the defendant’s account is truthful.  I reject this argument for the reasons given by the judge at §146: the court’s task in evaluating the evidence in an application for summary judgment is to determine whether the defendant’s case is believable, and for the reasons given by the judge earlier in §§140 to 143, it is not.

56.  It is not necessary to consider the other arguments advanced by Mr Chain in relation to a gift to the plaintiff (which is not her case), or that there was no effective delivery of the Deed (premised on the defendant’s factual case), or that Mr Tse was acting under a mistake (which is contrary to his evidence).  Nor do I find it necessary to consider the other bases advanced by Ms Wong in the respondent’s notice as additional grounds to establish the plaintiff’s beneficial interest in the Property.

Conclusion

57.  I would dismiss the defendant’s appeal.  We have heard the parties on costs.  There is no dispute that costs should follow the event.  I would order the defendant to pay the plaintiff’s costs of the appeal and that the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Hon Barma JA:

58.  I agree with the judgment of Kwan JA and with the orders she has proposed.

Hon McWalters JA:

59.  I agree with the judgment of Kwan JA.