NG TAT CHOI v. CHAN YIN CHUN, as the administrator of the estate of NG WAI KUEN, deceased

HCA 1499/2022

[2026] HKCFI 4103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1499 OF 2022

________________

_______________

________________

J U D G M E N T

________________

1.  The Plaintiff is claiming against the Defendant as the administrator of the estate of his deceased son (“Deceased”):

(1)	The proceeds of sale of Flat No. 36, 6/F, Man Yiu Building, 25-47 Man Wai Street and 26-48 Man Yuen Street, Kowloon (“MY Property”) held on trust for the Plaintiff by the Deceased.
(2)	(a)	A proprietary interest in such share as determined by the Court of Flat A, 1/F, Block 2 and Car Parking Space No. 21 on the 1st basement of Scenic Gardens, 25 Town Park Road South, Yuen Long, New Territories (“SG Property”); or alternatively
	(b)	Reimbursement of the mortgage payments, Government rent and rates, and management fees for the Scenic Gardens Property by the Plaintiff.

2.  The Defendant denies the Plaintiff has any proprietary interest in either the MY Property or the SG Property, and counterclaims against the Plaintiff damages for trespass or mesne profits for occupation of the SG Property

Background

3.  The Plaintiff was born in 1935. He married Madam Tse in 1964, and they had three children: the eldest son, the daughter, and the Deceased (born in 1974).

4.  In 1971, the Plaintiff acquired the MY Property with money gifted by his father.

5.  On 8 December 2006, the MY Property was transferred by the Plaintiff to the Deceased. The assignment stated the consideration of $1.2 million. There was no mortgage taken out for the transfer.

6.  On 25 May 2012, the Deceased acquired the SG Property at the consideration of $3.47 million, subject to the mortgage of $2.429 million by the Industrial and Commercial Bank of China, Hong Kong. The stamp duty and legal fees were paid for by the Deceased.

7.  It is not disputed that prior to the acquisition of the SG Property, the Plaintiff and Madam Tse had transferred $800,000 to the Deceased. There is no claim of the $800,000 herein.

8.  The Plaintiff, Madam Tse and the Deceased had been living in the MY Property until the purchase of the SG Property, whereby the three of them moved to the new home.

9.  On 25 September 2014, the MY Property was sold by the Deceased at $4.12 million.

10.  On 8 March 2017, the Deceased married the Madam Si. Madam Si was a resident in the Mainland, and she was residing in both the Mainland and Hong Kong after marriage.

11.  On 9 August 2021, the Deceased died intestate. There was still an outstanding mortgage of about $1.8 million on the SG Property.

12.  Upon the death of the Deceased until November 2022, the Plaintiff has made mortgage repayments ($137,524.65), Government rent and rates ($11,415), and management fees ($33,645) for the SG Property.

13.  It is conceded by the Defendant that in the event that the Plaintiff had no proprietary interest in the SG Property, the Defendant would reimburse the Plaintiff the payments referred to in para. 12 above.

14.  On 29 September 2022, letters of administration were granted to the Defendant, a solicitor for the Deceased’s estate. From November 2022 onwards, the Defendant started to repay the mortgage instalments on the SG Property.

15.  On 4 January 2022, Messrs ST Poon & Wong, Solicitors, then solicitors for the Plaintiff, sent a letter Messrs HL Wong & Co, then solicitors for the Deceased’s estate (“Legal Letter”).

16.  The Legal Letter alleged that upon the transfer of the MY Property by the Plaintiff to the Deceased in 2006, the stated price of $1.2 million was not paid by the Deceased, as the Deceased had just graduated from university in 2003 and did not obtain any finance for the transaction, and he was unable to accumulate such large amount of money for the purchase in such a short time. As such, the MY Property was held on trust by the Deceased for the Plaintiff.

17.  The Legal Letter also stated that the Plaintiff and Madam Tse had transferred certain money ($800,000 as calculated from the documents attached to the Legal Letter) to enable the Deceased to purchase the SG Property. As such, the Plaintiff and Madam Tse had certain interest in the SG Property.

18.  The Legal Letter stated that since the Plaintiff, Madam Tse and the Deceased had moved to the SG Property, the Deceased desired to sell the MY Property. The Plaintiff had no objection to the proposal but reminded the Deceased to use part of the sale proceeds of the MY Property to redeem the mortgage of the SG Property and transfer the remaining sale proceeds to the Plaintiff. However, the Deceased had neither discharged the mortgage nor transfer the sale proceeds to the Plaintiff. The Deceased told the Plaintiff that he would not redeem the mortgage nor transfer the sale proceeds to the Plaintiff as the he desired to buy a property in the Mainland. As such, the Deceased owed the Plaintiff the sum of $4.12 million (sale price of the MY Property).

Issues

19.  In respect of the MY Property, the issues are whether (a) the consideration of $1.2 million was paid by the Deceased to the Plaintiff; (b) and if not, whether the transfer was a gift by the Plaintiff to the Deceased or the property was held on trust by the Deceased for the Plaintiff.

20.  In respect of the SG Property, there issues are whether the Plaintiff had acquired any proprietary interest in it by reason of (a) the common intention based on the Deceased’s promise that the Plaintiff would have an interest of the property after the Deceased’s sale of the MY Property without the knowledge and consent of the Plaintiff; or (b) the resulting trust by reason of the contribution to the mortgage and other payments by the Plaintiff after the Deceased’s death.

Plaintiff’s case

21.  The Plaintiff worked as a warehouse manager. At the time of retirement in 2000, he was earning about $18,000. Madam Tse was a housewife. The family was of modest means.

22.  In 1991, the Deceased went to study in Australia at the age of 17, and stayed with and was looked after by his sister whose family had just emigrated to Australia. In 2003, he graduated with a degree in civil engineering in Queensland, Australia at the age of 28. He then returned to Hong Kong and started working in 2004.

23.  The Plaintiff said that the MY Property was gifted by his father, and was regarded as an “ancestral” or family home.

24.  The Plaintiff said when the MY Property was transferred to the Deceased, the consideration of $1.2 million was not paid by the Deceased. The Deceased had just returned to Hong Kong and started work earning only $13,000 per month. No mortgage was taken out upon the transfer. Hence, the Deceased was unable to pay the $1.2 million.

25.  The Plaintiff said the MY Property was transferred to the Deceased as an incentive for him to remain in Hong Kong and not emigrate to Australia, and also to give him some confidence in having a property under his name, and the Deceased could also help in attending the meetings of the owners incorporation and renovation of the building.

26.  The Plaintiff and the Deceased orally agreed that the MY Property was held for and on behalf of (“托管”) the Plaintiff by the Deceased, that the Deceased would only have management power and the Plaintiff had the ultimate control and say (“話事權”). Also, the Deceased promised to remain in Hong Kong and maintain Plaintiff and Madam Tse financially for life. The Deceased did not give the Plaintiff much money, maybe $5,000 occasionally, since the Deceased did not earn much.

27.  The Plaintiff said he had always regarded the MY Property as the “ancestral home” as it was gifted by his father. He never intended to gift MY Property to the Deceased upon transfer. He and Madam Tse would live there for life. It would only pass to the Deceased after he finally passed away (“百年歸老”).

28.  The Deceased proposed to purchase the SG Property because as it was more convenient for him to travel to the Mainland.

29.  The Deceased said the whole family would move to the SG Property. The Deceased beseeched the Plaintiff to sell the MY Property but the Plaintiff did not agree, but only that it would be rented out, and the rent be used to pay off the mortgage for the SG Property.

30.  The Plaintiff and Madam Tse lent $800,000 to the Deceased, and an aunt also lent $300,000 for the purchase of the MY Property.

31.  Initially, the mortgage payment of the SG Property was $9,500 per month, and the rent of the MY Property was $8,000 per month.

32.  When the SG Property was acquired, the $800,000 was regarded as a loan, it was not intended that the Plaintiff would have any beneficial interest in the SG Property. The $800,000 had not been repaid.

33.  The Plaintiff had no idea that the MY Property would be sold. He only found it out afterwards. The Plaintiff was very angry as he had never consented to the sale of the MY Property.

34.  To pacify the Plaintiff, the Deceased orally agreed that the SG Property would be treated as the new family home, and the Plaintiff and Madam Tse could stay there for life. The Plaintiff would have some interest in the SC Property without specifying what share. The arrangement for the MY Property would continue in the SG Property. It would only pass to the Deceased after the Plaintiff finally passed away. But the Plaintiff accepted that the Deceased had the power to sell the SG Property behind his back without asking him. But he believed the Deceased because the Deceased had promised to maintain him for life.

35.  The Plaintiff’s pleaded case is that the MY Property was to be held for the Plaintiff and that the Plaintiff and Madam Tse were to reside therein until they passed away. But in evidence, the Plaintiff added that when he passed away, the MY Property would then belong to the Deceased.

36.  The Plaintiff was cross-examined that if he had intended the Deceased to have the MY Property when he passed away, why did he not used an authorization letter (“授權書”) or joint tenancy (“長命契”). He said he did not think of an authorization letter because it would be alright if the Deceased would maintain him for life, and he knew nothing about joint tenancy.

37.  The Plaintiff was also asked whether a will has been made by him for the Deceased to get the SG Property after he passed away, he said he never thought of such matter at that time.

38.  The Plaintiff said as the Deceased had made promise to him, he would believe it on the relationship of father and son and there was no need to have any document. Even after the Deceased had breached the trust in selling the MY Property, he still believed in him. The central theme of the Plaintiff’s trust in the Deceased’s word was the relationship of father and son and the Deceased had promised to support him for life.

39.  The Plaintiff was also cross-examined on discrepancies between his evidence and the Legal Letter. He initially denied that the content of the Legal Letter was what he had told the lawyer, but later changed to having told the lawyer.

40.  On the knowledge and consent to the sale of the MY Property, the Legal Letter stated the Plaintiff had consented to the proposed sale of the MY Property. Initially, the Plaintiff’s answer was that the Deceased beseeched him to sell the MY Property, but he was not willing to sell. Then he changed back to he was never consulted on the sale beforehand, and later agreed that the Deceased did ask him about the sale before the SG Property was purchased, and he did not agree to sell MY Property but only agreed to rent it out.

41.  The Plaintiff was also cross-examined that in the Legal Letter that he had told the Deceased to use the sale proceeds to redeem the intended mortgage before the SG Property was acquired. He agreed that he had told the Deceased to use the sale proceeds to redeem the mortgage and gave him back the balance after the sale. In any case, the Deceased never transferred the sale proceeds to him.

42.  The Plaintiff’s case remained that the MY Property was sold without his consent, and the Deceased promised the arrangement for the MY Property would continue with the SG Property and he and Madam Tse could live there for life.

43.  The Plaintiff denied that the SG Property belonged to the Deceased entirely, as it was also held on behalf (“托管”) for him because the Deceased had not repaid the sale proceeds on the MY Property. After he passed away, the Deceased would get the SG Property.

44.  Madam Tse also gave evidence in support of the Plaintiff. She basically repeated the case of the Plaintiff, but not with eye-witness knowledge of the discussions between the Plaintiff and the Deceased.

Defendant’s case

45.  The transactions concerning both the MY Property and the SG Property took place before the marriage of the Deceased and Madam Si. Hence, Madam Si had no knowledge of the arrangement, and the Plaintiff was put to the strict proof.

46.  The Defendant relied on the presumption of advancement or gift by father to son on the MY Property.

47.  As to the loan of $800,000, Madam Si’s original case in her witness statement that the Deceased told her that the he saved up very hard for the deposit and mortgage repayment for the SG Property, and did not need any financial maintain from his parents. She withdrew those assertions when giving evidence. She said she had told her solicitor that the Deceased had borrowed from his parents and relatives, and had repaid them in full.

48.  Mr Alan Chan, the administrator for the Deceased’s estate, solicitor advising Madam Si was asked about Madam Si’s inconsistencies. He said he took instructions from the Madam Si personally and had accurately recorded them in her witness statement.

49.  Mr Chan gave evidence on the market rent of the SG Property for the Counterclaim. He had revised the market rent of the SG Property for the claim of mense profit from $55,000 to $60,000 per month to $15,000 to $16,000 per month. It was said to be based on a similar transaction but no expert evidence was adduced.

Legal Principles

50.  The beneficial interest of property voluntarily transferred without consideration has been discussed by the English Court of Appeal in Lavelle v Lavelle [2004] EWCA Civ 223; [2004] 2 FCR 418 per Lord Phillips, MR at §§12, 13:

“12. Where one person, A, transfers the legal title of a property that he owns or purchases to another, B, without receipt of any consideration, the effect will depend on his intention. If he intends to transfer the beneficial interest in the property to B, the transaction will take effect as a gift and A will lose all interest in the property. If he intends to retain the beneficial interest for himself, A will take the legal interest but will hold the property in trust for A.

13. Normally there will be evidence of the intention with which a transfer is made. Where there is not, the law applies presumptions. Where there is no close relationship between A and B, there will be a presumption that A does not intend to part with the beneficial interest in the property and B will take the legal title under a resultant trust for A. Where, however, there is a close relationship between A and B, such as father and child, a presumption of advancement will apply. The implication will be that A intended to give the beneficial interest in the property to B and the transaction will take effect accordingly.

51.  Lavelle v Lavelle was cited in Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 per Stock NPJ at §30.

52.  The Plaintiff’s primary case is the common intention constructive trust. The principles are summarized by DHCJ A Stock SC in Leung Hang Lin & anor v Lam Mei Yung [2019] HKCFI 2819 at §§7-8:

“7. The principles applicable to common intention constructive trusts are set out in various Hong Kong authorities, notably: Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 per Ribeiro PJ at §§35–38; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

8. In summary:

(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.

(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom. See: Luo Xing Juan §38; Liu Wai Keung §46.

(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct. See: Liu Wai Keung §47; Mo Ying §5.16.

(4) The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts. The court is not constrained to consider only pure direct monetary contributions to the purchase price. In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters. See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.”

53.  In relation to the “first limb” of common intention constructive trust (as referred to in §8(4) of Leung Hang Lin v Lam Mei Yung op. cit.), it was held in Chau Kwan Lam v Chau Ka Yee Carie [2025] HKCFI 1629 per Lisa Wong J at §106:

“(1) the finding of such an agreement, arrangement or understanding can only be based on evidence of express discussions between the parties, however imperfectly remembered and however imprecise the terms;

(2) this is independent of any inference to be drawn from the conduct of the parties; and

(3) once a finding to this effect is made, the party asserting a beneficial interest has to show he has acted to his detriment or significantly altered his position in reliance on the agreement in order to give rise to a constructive trust.”

54.  As to the “second limb” of common intention constructive trust, the Court’s approach is “holistic” and would consider a range of factors including direct financial contribution, and where there is no express common intention it would nevertheless be relevant to consider the separate intentions of the parties at the time of acquisition (see Primecredit Ltd v Yeung Chun Pang Barry op. cit. per Cheung JA at §§2.9-2.10.

55.  Lisa Wong J also observed in Chau Kwan Lam op. cit. that where “The parties are family members and not legal professionals. It is not out of the ordinary for them to reach an agreement that was vague and imprecise” (§80), and “… however imperfectly remembered and imprecise the terms may be, I have regard to the principle that it would not be a barrier to finding that there was an express agreement, arrange or understanding between them” (§78).

56.  The common intention may also be inferred objectively from the parties’ relevant words and conduct and circumstantial evidence (see Snell’s Equity, 35^th ed. §24-053).

57.  Where the common intention is said to have arisen post-acquisition, it was held in Chan Chui Mee v Mak Chi Choi [2009] 1 HKLRD 343, per Johnson Lam J (as he then was) at §34:

“In Ip Man Shan Henry v Ching Hing Construction Co Ltd [2003] 1 HKC 256 at paras. 70 to 74, I referred to the conceptual distinction between pre-acquisition common intention and post-acquisition common intention. At para. 74, I said,

‘If the common understanding was arrived at prior to the acquisition of the property, the beneficial ownership had not yet been crystallized and one may infer a common intention more readily. On the other hand, if the common understanding were only formed after the acquisition of the property, this would imply a change in the beneficial ownership of the property. The evidence must support an inference that there was a fresh agreement as to beneficial ownership before the court can give effect to the common understanding. In other words in that situation, there must be some evidence to infer that the original beneficial owner has agreed to give up some of his interest in the property in favour of the other party.’”

58.  Where there is a claim for an unquantified share of the property, it was held in Chan Chui Mee v Mak Chi Choi op. cit. that it is possible for parties to have a common intention on who are to have beneficial interest without immediately quantifying the share distribution, leaving that to be determined at a later stage. Johnson Lam J said at §39:

“… The authorities recognized that it is possible that the common intention at the beginning is the understanding that both A and B would have beneficial interest in the property but the share distribution is not to be quantified immediately. Rather, the intention is to leave that to be determined when mortgage is fully repaid or when the property is disposed of. See Gissing v Gissing [1971] AC 886 at 909D and Stokes v Anderson [1991] 1 FLR 391 at 399 to 400.”

59.  Where common intention is sufficiently demonstrated but no agreement as to quantification of shares can be found, the Court may determine the appropriate share which it considers fairly give effect to the common intention in the circumstances of the case. It has been said that “[the] search is for what the parties, as reasonable people, would have thought at the relevant time” (see Lewin on Trusts, 20^th ed, §10-075).

60.  Where the evidence of intention of the parties is not demonstrated, the presumption of resulting trust or advancement will arise, as discussed in Lavelle v Lavelle op. sit. at §14 as cited in Leung Wing Yi Asther v Kwok Yu Wah op. cit. §30 as set out above.

61.  Both the presumption of resulting and advancement may be rebutted by extraneous evidence (see Lewin, op. cit. at §10-003).

62.  In Re Mak Woon Shui, Deceased [1992] 2 HKC 144, the Court of Appeal held that the presumption of advancement to a wife no longer carries the weight that it once did (see Falconer v Falconer [1971] 2 WLR 1333). The radical changes in social conditions which influenced the decision in Falconer v Falconer had not reached Hong Kong by the thirties or forties or even the fifties. Having regard to the level of society in which the husband and wife were in at the time in question, the presumption of advancement would be counted as a matter of considerable importance not easily to be replaced.

63.  The question of whether the presumption of advancement applies to a transfer without consideration by a parent to an adult independent child has been considered in Lavelle v Lavelle op. cit. §19 and cited in Leung Wing Yi Asther v Kwok Yu Wah op. cit.:

“19. … equity searches for the subjective intention of the transferor. It seems to me that it is not satisfactory to apply rigid rules of law to the evidence that is admissible to rebut the presumption of advancement. Plainly, self-serving statements or conduct of a transferor, who may long after the transaction be regretting earlier generosity, carry little or no weight. But words or conduct more proximate to the transaction itself should be given the significance that they naturally bear as part of the overall picture. Where the transferee is an adult, the words or conduct of the transferor will carry more weight if the transferee is aware of them and makes no protest or challenge to them.”

64.  Nowadays, the presumption of advancement has been said to “give way to comparatively slight evidence” (see Lewin, op. cit. at §10-040; Sam Sien San Albert v Sam Mo Yee [2019] HKCFI 764 per DHCJ Paul Lam SC at §34).

65.  In any case, it has been held by the Court of Final Appeal that since the Plaintiff is making a claim against a deceased person who cannot provide his versions of the events, the Court must approach the claim with suspicion and scrutinize the evidence with great care (see Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39 at §§73-74).

66.  In respect of the SG Property, the Plaintiff also claimed a beneficial interest through proprietary estoppel by reason of financial contribution. The bases of proprietary estoppel are representation or assurance made by the defendant to the plaintiff in reliance of which the plaintiff acted to his detriment where by it would be unconscionable for the defendant to deny the plaintiff’s title to the property.

Discussion

67.  Miss Wong, for the Defendant, took a pleading point that the common intention constructive trust was inadequately pleaded for both the MY Property and SG Property.

68.  Miss Wong submitted that parties are bound by their pleaded case and cannot introduce unpleaded issues by “slipping in” evidence in witness statements. Where issues sought to be introduced have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party has been obtained (see Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 633 at §21). Evidence on unpleaded matters should not be admitted.

69.  Miss Wong submitted that the Plaintiff had failed to plead the exact words used for the trust arrangement. In Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 244, DCHJ Eugene Fung SC ruled that for express common intention, the express discussions should be pleaded in the greatest detail, both as to language and as to circumstance, citing Hammond v Mitchell [1991] 1 WLR 1127 per Waite J at 1139E-F (at §37(2)).

70.  In respect of the MY Property, the Plaintiff had failed to plead the full discussions between the parties, that the Deceased promised to maintain his parents for life, and the beneficial ownership would only pass to the Deceased after the Plaintiff passed away (“百年歸老”) .

71.  In respect of the SG Property, the Plaintiff had failed to plead the pre-purchase arrangement, and the continuation of the MY Property arrangement in the SG Property.

72.  Miss Ng, for the Plaintiff, submitted that the pleadings “must contain and contain only a statement in a summary form of the material facts” of a party’s claims (see Order 18 rule 7(1) of the Rules of the High Court (Cap. 4A)). “Material facts” are those facts which are “necessary for the purpose of formulating a complete cause of action, and if any one material statement is omitted, the statement of claim is bad (see Hong Kong Civil Procedure 2026 §18/7/7). As to what constitutes a statement in a summary form, “it is an elementary rule in pleading that when a statement of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are means of producing it, or the evidence sustaining the allegation…” (see Hong Kong Civil Procedure 2026 §18/7/5).

73.  Miss Ng referred to Leung Hang Lin & anor v Lam Mei Yung op. cit. that the elements of a common intention constructive trust are, in summary:

(1)  There was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally thereafter) that the beneficial ownership was to be different to the legal ownership;

(2)  The plaintiff altered his or her position in detrimental reliance upon the common intention, and

(3)  It is unconscionable for the property owner to assert ownership in reliance on the legal title.

74.  Miss Ng submitted that the pleadings for the common intention constructive trust for the MY Property in the Amended Statement of Claim had adequately stated the above elements:

(1)  The Deceased did not pay the consideration of the MY Property to the Plaintiff (§7);

(2)  It was the common intention and understanding between the parties that the MY Property was to be held by the Deceased for the Plaintiff’s benefit (§8);

(3)  In particular, it was understood by the parties that, the Plaintiff had intended to reside with his wife at the MY Property until they die (§8);

(4)  The Deceased should not sell the MY Property without the Plaintiff’s consent;

(5)  By reason of the foregoing, the Deceased held the MY Property on constructive/resulting trust for the benefit of the Plaintiff (§9).

75.  Whether the pleadings are adequate must depend on the factual matrix of each case. In the present case, the context is that the Plaintiff as father has unilaterally and voluntarily transferred the MY Property to the Deceased son on condition that, not in so many words, that the beneficial ownership remained with the Plaintiff and it could not sold without his consent.

76.  The Plaintiff’s case is premised on a common understanding between the Plaintiff and the Deceased that the beneficial ownership of the MY Property remained with the Plaintiff. It was an arrangement unilaterally imposed by the Plaintiff and not really a matter of negotiation or bargain between the parties. It goes without saying that it must have been accepted by the Deceased, lest there would not been the transfer.

77.  Of course, it is subject to the acceptance of the Plaintiff’s evidence in assessment of his credibility. Detailed evidence that came out in cross-examination needed not be pleaded.

78.  In any case, the promise to maintain the Plaintiff financially was not the necessary element of a common intention constructive trust. And it is steeped in the Chinese tradition that children do say such words to their parents. It sought to explain why the Plaintiff believed in the Deceased’s words without formal document, even the Deceased had breached his promise. Even without such words the constructive trust could be founded.

79.  And as to whether the matter that the Deceased was to receive the MY Property after Plaintiff had passed away, it was more a matter of credibility of the Plaintiff rather than a point of pleading. It will be discussed later.

80.  But before dealing with the evidence of the Plaintiff on whether the consideration for the MY Property was paid by the Deceased, various objective background should be noted as they are relevant in the assessment of the Plaintiff’s credibility.

81.  Miss Wong submitted that as seen from all the transfer documents including the assignment and payment of stamp duty, it was stated to be a sale with consideration. Further, if it were to be a gift that the Deceased would not have to pay any consideration, it could have been easily achieved by the instructions to create a trust rather than a sale. There was not any contemporaneous document alluring to a trust at all. On the other hand, stamp duty was paid by the Deceased on the premises of an actual sale. The burden lies on the Plaintiff to prove otherwise.

82.  On the other hand, Miss Ng submitted that it was most unlikely that the Deceased could afford to pay the consideration of $1.2 million as he had just started work at a humble salary, and no mortgage had been taken out. Hence, it was not a sale as stated in the contract and assignment.

83.  Further, Miss Ng submitted that objective background militated against the MY Property being a gift by the Plaintiff to the Deceased because:

(1)  It was the only property of the Plaintiff and he and Madam Tse needed to reside in it after the transfer;

(2)  The Plaintiff himself was of modest means and not well endowed and it would be far too generous for him to divest himself of his only property;

(3)  And if the MY Property already belonged to the Deceased, why would the Plaintiff and Madam Tse still lend him $800,000 for the downpayment of the SG Property and the Deceased to burden himself with a mortgage?

84.  Miss Wong had launched severe criticism on the credibility of the Plaintiff as well as Madam Tse because their evidence were fraught with inconsistencies, either internally, with the pleadings, or against the contemporaneous documents in particular the Legal Letter.

85.  Apart from the MY Property to belong to the Deceased after the Plaintiff had passed away, the other inconsistencies related mainly to the arrangement of the SG Property.

86.  The Plaintiff did say he had no knowledge and consent of the sale of the MY Property, which was inconsistent with the stance that he was not opposed to the proposed sale in the Legal Letter. Be that as it may, the sale came 8 years after the transfer of the MY Property to the Deceased, rather than at the time of the time of the transfer and formation of the common intention.

87.  The Plaintiff originally said the MY Property belonged to him beneficially and he and Madam Tse would stay in the MY Property during their life time, and as he was further cross-examined, he said the MY Property would belong top the Deceased after he passed away. He further said the arrangement for MY Property would continue in the SG Property, which is even more convoluted because he did not claim absolute beneficial ownership in the SG Property.

88.  Miss Wong said the Plaintiff was bolstering his case as he went along during cross-examination. No doubt the Plaintiff was bolstering his evidence. But the million dollar question is whether he was dishonest in doing so, or was he bolstering what he thought to be a just cause on the property he was entitled to?

89.  I note that the Plaintiff is over 90 years old at the trial. The transfer of the MY property took place in 2006, and its sale by the Deceased was in 2014. He is not a sophisticated person and hard at hearing. There was obvious difficult for him to chronologise his thought and mind in relation to the different time frame.

90.  The Plaintiff was in the box for three days. He was resolute and unshaken as to retention of the beneficial ownership of MY Property, which is consistent with the objective circumstances as outlined by Miss Ng as well as the claim of the proceeds of sale in the Legal Letter.

91.  Given the Plaintiff’s means, I fail to see why the Plaintiff would make a gift of the MY Property outright, and to further lend $800,000 to the Deceased, and the Deceased had to take out a mortgage to purchase the SG Property, if the beneficial ownership of the MY Property had already passed to the Deceased upon transfer.

92.  Notwithstanding the Plaintiff’s evidence during cross-examination of the passing of beneficial ownership of the MY Property to the Deceased after he passed away, as to which admittedly there was no objective mechanism or even thought of it towards that end, I find it an afterthought of the Plaintiff and still find him an honest and credible witness on the MY Property.

93.  Hence, I find that the Plaintiff was the beneficial owner of the MY Property before its sale, whether by means of the common intention constructive trust or rebuttal of the presumption of advancement, and hence was entitled to the proceeds of sale after the disposal by the Deceased.

94.  However, the SG Property is another story. Even before the Plaintiff’s evidence was considered, there had been different bases of claims proferred.

95.  Firstly, the Legal Letter pitched it on the basis of the Plaintiff’s payment $800,000 to the Deceased, which is now said to be a loan. Secondly, the Statement of Claim alleged a beneficial interest proportional to the Plaintiff contribution to the mortgage repayment after the passing away of the Deceased. Then the Amended Statement of Claim pleaded proprietary interest in such shares as the Court shall determine based on the discussions and common intention between the Plaintiff and the Deceased of continuation of the arrangement of the MY Property after the Plaintiff discovered it was sold without his knowledge and consent.

96.  The Plaintiff was asked whether there was any discussions with the Deceased that the arrangement on the MY Property was to be continued in the SG Property, and he said there was really no need for any discussion as between father and son, given the Deceased’s promise to support him and Madam Tse for life.

97.  Granted that arrangement which was homemade without counsel and advise of lawyer would normally be imprecise or infelicitous, it would be stretching too far to imply any common intention from one party’s own wishful thinking, and in particular when the promise to repay the proceeds of sale did not eventuate only later.

98.  Given such inconsistencies in the change in tack on the bases of the claim, and the imprecision of the Plaintiff’s evidence, I fail to see how the Plaintiff could succeed in the SG Property claim.

99.  According to Miss Ng’s submission, the Plaintiff’s claim on the SG Property has been premised upon a “fair share”, generally taken to be a percentage share.

100.  At the trial, the scenario of a life interest in the SG Property has been pondered with. When asked whether it is just and fair for the Plaintiff to have a life interest in the SG Property in the event that he was to recover the proceeds of sale of the MY Property in full, Miss Ng said it would not be unfair but without much substantiation. In any case, the pleadings of the claim did not sufficiently raise such a point, it does not seem just and fair to delve such consideration any further.

101.  Miss Wong also submitted in no way could any resulting trust arise by relying on matters such as the mortgage repayment after the death of the Deceased. I agree.

102.  As to any proprietary estoppel on the SG Property, the representation would be the same as the alleged common intention constructive trust. As I have rejected the common understanding with the Deceased after the sale of the MY Property, I fail to see there was any common understanding with the Deceased or any such representation.

103.  That said, I reiterate that the failure of the SG Property claim did not affect the MY Property claim because the Plaintiff’s evidence was accepted as credible and supported by the objective circumstances.

104.  Whereas the Plaintiff’s claim of proprietary interest in the SG Property had failed, the claim for reimbursement was conceded, and  hence the reimbursement should be allowed.

105.  As to the damages for trespass or mesne profit after the licence for the Plaintiff and Madam Tse to occupy the SG Property was revoked, Miss Ng pointed out that the Defendant had failed to adduce any evidence of market rent even if trespass were made out, and at most nominal damages of $1 could be awarded.

106.  Miss Wong submitted the evidence on market rent was the sworn evidence of a solicitor which had not been challenged on cross-examination.

107.  I noted that the evidence of market rent had been revised substantially from $55,000 to $60,000 per month to $15,000 to $16,000 by the administrator solicitor, but there was no explanation given. There is no help in the assessment of the reasonableness or reliability of his evidence.

108.  Further, even on the basis that the Plaintiff and Madam Tse were only under a licence to occupy the SG Property, given the relationship with the Deceased and regardless of the claim of beneficial interest, there are two issues which have not been address: the reasonable period to move out, and that the Plaintiff and Madam Tse were not in exclusive possession during the life of the Deceased.

109.  Hence, I agree with Miss Ng and awarded the nominal sum of $1.

Conclusion

110.  In the event, the Plaintiff’s claim for the sale proceeds of $4.12 million for the MY Property is made out, but the claim for any proprietary interest in the SG Property is dismissed.

111.  The reimbursement of the sums referred to in para. 12 are allowed.

112.  The Counterclaim for trespass is made out but only nominal damages of $1 is awarded.

113.  Interest from the date of the Writ is awarded, and at judgment rate from the date of judgment.

Costs

114.  As each party has only succeeded partially, I make the decree nisi of no order as to costs, to be made absolute in 14 days.

115.  Lastly, may I thank Miss Ng and Miss Wong for their submissions.