HUI CHEUNG FAI AND ANOTHER v. DAIWA DEVELOPMENT LTD AND OTHERS

HCA 1734/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1734 OF 2009

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J U D G M E N T

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A INTRODUCTION

1.  These proceedings arise out of a dispute concerning a commercial property at Shop M07 on M/F, Allied Plaza, Cosmopolitan Centre, 760 Nathan Road, Kowloon (“the Property”).  The 1^st plaintiff (Mr Hui Cheung Fai (“the Father”)) is the father of the 2^nd plaintiff (Mr Hui Man Chung (“the Son”)) and claims that the Property was held on trust for him by his son. 

2.  In this action, the Father advances a claim in dishonest assistance and unlawful conspiracy against all the four defendants, and a claim in knowing receipt against the 1^st defendant.  The Son claims against the 2^nd and 3^rd defendants under section 27 of the Money Lenders Ordinance (Cap 163) (“the MLO”). 

B.  THE FACTUAL BACKGROUND

B1.  The Property

3.  The Property is a commercial property.  According to the Land Registry records, the Father became the registered owner of the Property on 30 June 1987.

B2.  The Deeds of Gifts in 2000 and 2001

4.  On 22 November 2000, a Deed of Gift was executed whereby the Father as donor assigned one half of the interest in the Property to the Son as donee. 

5.  On 22 January 2001, a further Deed of Gift was executed whereby the Father as donor assigned the remaining half interest in the Property to the Son as donee. 

6.  The consideration stated on the two Deeds of Gift for the assignment was “the natural love and affection [the Father] bears towards his son [the Son]”.  The Deeds of Gift were prepared by a firm of solicitors, signed by both the Father and the Son, and registered in the Land Registry against the Property.

7.  There is a dispute as to the true nature of the transaction as reflected in the two Deeds of Gift and I will discuss this issue in further detail below when I deal with the question of whether a trust of the Property was created.

B3.  The Obtaining of Loans and the Mortgaging of Property by the Son from 2005 to 2008

B3a.  Loan from Actex in December 2005

8.  There is no dispute that the Son was introduced to the 3^rd defendant (Mr Albert Ko Wai Cheung (“Mr Albert Ko”)) through one Mr Norman Lee in late 2005.  Subsequently, Mr Albert Ko introduced Actex Finance Ltd (“Actex”) to the Son for the purpose of obtaining a loan.

9.  By a loan agreement in writing dated 2 December 2005, Actex lent a sum of HK$450,000 to the Son with a repayment period of 36 months at the interest rate of 30% per annum.  The Son’s residential property at Flat H, 4 Floor, Block 5, Belvedere Garden, Phase 2, No 620 Castle Peak Road, Tsuen Wan (“the Belvedere Garden Property”) was offered as security for this loan.  By a second mortgage dated 2 December 2005, the Son agreed to charge the Belvedere Garden Property in favour of Actex to secure general credit facilities for HK$450,000 and interest thereon (“the Actex Mortgage”).

10.  In a declaration form signed by the Son dated 2 December 2005, the Son declared that he was at the time owing GE Capital (Hong Kong) Ltd and Easy Fortune Property Ltd (“Easy Fortune”) HK$1,135,071.18 and HK$300,000 respectively.  By two cheques dated 2 December 2005, Actex respectively paid HK$128,327 and HK$321,673 to the Son and Easy Fortune.

B3b.  The Statutory Declaration and the Easy Fortune Mortgage in June 2006

11.  By a Statutory Declaration dated 12 June 2006, the Son declared as follows:

“ 1. I am the registered and beneficial owner of [the Property].

2. I am prepared to mortgage the Property in favour of EASY FORTUNE PROPERTY LIMITED by way of a Mortgage, I was asked by Messrs Wong, Fung & Co., Solicitors for EASY FORTUNE PROPERTY LIMITED to produce ORIGINALS of the title deeds and documents (“the lost deeds”) in respect of the Property as set out in the List hereto.

3. To the best of my knowledge, I kept the lost deeds at my place of residence ie [the Belvedere Garden Property]. I have conducted an exhaustive searches among all the paper and documents at my place of residence but I could not find or trace the lost deeds.

4. I verily believe that the lost deeds have been lost or mislaid during the decoration of my place of residence in about December 2005.

…

AND I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths and Declarations Ordinance (Cap 11).”

12.  The Statutory Declaration was registered against the Property in the Land Registry on 13 June 2006.

13.  By a mortgage dated 12 June 2006, the Son agreed to charge the Property in favour of Easy Fortune as security for due payment of all moneys payable by the Son to Easy Fortune (“the Easy Fortune Mortgage”).  Clause 3.01 provided that the Son charged the Property “as Beneficial Owner” to Easy Fortune.  Clause 7.01(ii) provided that the Son covenanted and agreed with Easy Fortune that the Son had “good right and title to charge the Property”.

14.  A third legal charge dated 12 June 2006 was executed by the Son in favour of Easy Fortune in respect of the Belvedere Garden Property as security for due payment of all moneys payable by the Son to Easy Fortune.

B3c.   Loans from Easy Fortune and the Winasia Sub-Mortgage in 2006

15.  The Son obtained additional loans from Easy Fortune in 2006:

(1)  HK$2,000,000 pursuant to a loan agreement dated 17 July 2006 to be repaid on or before 17 July 2007;

(2)  HK$500,000 pursuant to a loan agreement dated 17 August 2006 to be repaid on or before 17 August 2007;

(3)  HK$150,000 pursuant to a loan agreement dated 24 October 2006 to be repaid on or before 24 October 2007.

16.  Both the Property and the Belvedere Garden Property were used as security for all of these loans from Easy Fortune.

17.  By a Sub-Mortgage dated 7 November 2006, Easy Fortune charged, amongst others, the Property to Winasia International Holdings Ltd (“Winasia”) as security for all moneys due or to become due from Easy Fortune to Winasia (“the Winasia Sub-Mortgage”).

B3d.  Loan from Hampton and the Hampton Mortgage in July 2007

18.  The Son was due to repay the principal of one of the loans (namely HK$2,000,000) from Easy Fortune by 17 July 2007.  According to the Son, in around mid-June 2007, he spoke to Mr Albert Ko and told him that he needed cash to discharge his indebtedness to Easy Fortune.  The Son also alleged that other matters were mentioned in this conversation with Mr Albert Ko which will be dealt later in the Judgment.  Be that as it may, there is no dispute that the Son was at this time in need of cash to satisfy his then financial commitments towards Easy Fortune.

19.  By a form dated 23 June 2007, the Son made an application to another finance company, Hampton Finance Ltd (“Hampton”), for loan facilities.  In the application form, it was stated that the remaining balance owing to Easy Fortune was HK$2,650,000 and that the Property would be used as security for the new loan.

20.  By a loan agreement in writing dated 19 July 2007, Hampton lent a sum of HK$3,200,000 to the Son to be repaid within one year by 19 July 2008.  It was further agreed under the loan agreement that the Property would be used as security for the loan.

21.  It was provided in the loan agreement that the HK$3,200,000 would be drawn down in the following manner:

(1)  a cashier order for HK$2,710,350 in favour of Easy Fortune;

(2)  a cashier order for HK$4,400 in favour of Messrs Wong, Fung & Co;

(3)  a cheque for HK$900 in favour of the HKSAR Government and

(4)  a cashier order for HK$484,350 in favour of the Son.

The three cashier orders and cheque were all issued on 19 July 2007. 

22.  By an irrevocable Power of Attorney dated 19 July 2007, the Son appointed Hampton to sell the Property in the event the Son defaulted in the repayment of interest for two months.

23.  By a mortgage dated 19 July 2007, the Son agreed to charge the Property in favour of Hampton as security for the due payment of all moneys payable or which may become payable by the Son to Hampton (“the Hampton Mortgage”).  Clause 3.01(i) provided that the Son charged the Property “as Beneficial Owner” to Hampton.  Clause 7.01(ii) provided that the Son covenanted and agreed with Hampton that the Son had “good right and title to charge the Property”.

24.  By a Release dated 19 July 2007, the Easy Fortune Mortgage and the Winasia Sub-Mortgage were released.

B3e.  Loan from Triple Gain and Mortgage on Belvedere Garden Property in July 2007

25.  At all material times, Mr Albert Ko was and still is the sole shareholder of the 2^nd defendant (Triple Gain Ltd (“Triple Gain”)).

26.  By a loan agreement in writing dated 23 July 2007, Triple Gain lent a sum of HK$200,000 to the Son.  It was a condition precedent under the loan agreement that Triple Gain would receive a mortgage over the Belvedere Garden Property.

27.  By a written official receipt dated 23 July 2007 and signed by the Son, it was recorded that the Son received a total of HK$196,350 from Triple Gain, being

(1)  HK$53,500 in cash,

(2)  HK$93,000 by a cheque and

(3)  HK$50,000 to set off a previous loan made on 3 July 2007 owing by the Son for the same amount.

The Son, however, asserted that he only received HK$143,000 from Triple Gain but not the cash of HK$53,500.

28.  On 23 July 2007, a mortgage in respect of the Belvedere Garden Property was executed to secure the general credit facilities owing to Triple Gain by the Son for all monies.

B3f.   The Triple Gain Mortgage and Power of Attorney in January 2008

29.  By a second mortgage dated 16 January 2008, the Son agreed to charge the Property in favour of Triple Gain to secure due payment of all sums of money payable by the Son to Triple Gain (“the Triple Gain Mortgage”). 

30.  Also on 16 January 2008, the Son executed an irrevocable Power of Attorney to appoint Triple Gain as his attorney, amongst other things, to receive the rents and profits of, and dispose of or deal with, the Property.

B4.    Various Documents Signed by the Son in 2009

31.  The Son signed the following documents in 2009:

(1)  a Provisional Sale and Purchase Agreement in Chinese (now bearing the date of 23 January 2009) between the 1^st defendant (Daiwa Development Ltd (“Daiwa”)) as purchaser and the Son as vendor for the sale and purchase of the Property for HK$6,300,000 to be completed on or before 15 March 2009 (“the Provisional SPA”);

(2)  a Sale and Purchase Agreement in English (now bearing the date of 6 February 2009) between Daiwa and the Son for the sale and purchase of the Property (“the SPA”);

(3)  a Supplemental Sale and Purchase Agreement in Chinese (now bearing the date of 26 February 2009) between Daiwa and the Son to vary the date of completion to 31st March 2009 (“the Supplemental SPA”);

(4)  an Assignment in English (now bearing the date of 27 March 2009) between Daiwa and the Son in respect of the Property (“the Assignment”).

32.  There are factual disputes between the parties in relation to the circumstances leading to the Son’s signing of these documents and they will be examined closely below.

33.  Both the SPA and the Assignment are registered against the Property in the Land Registry.  Further, according to the Land Registry records, Daiwa is recorded as the registered owner of the Property as from 27 March 2009.

B5.  Commencement of Proceedings

34.  On 16 September 2009, the Father and Son commenced the proceedings in this action against the four defendants.

C.  THE PARTIES’ RESPECTIVE CASE

C1.  The Plaintiffs’ Case

35.  The Father’s case can be summarised as follows:

(1)  Upon the execution of the Deeds of Gift, the Son became a trustee holding the legal title of the Property on trust for the Father.

(2)  The Son created the various mortgages over the Property in 2006, 2007 and 2008 without the knowledge or consent of the Father, and was therefore in breach of trust.

(3)  Since October 2008, the Son had been having difficulties to repay his indebtedness to Hampton.

(4)  In early 2009, Mr Albert Ko made a proposal to the Son, and the Son agreed, to enter into a “sham transaction” by (1) notionally selling the Property by the Son to Mr Albert Ko and (2) obtaining of a bank loan by Mr Albert Ko for the Son to repay all the money owing to Hampton (“the Sham Transaction”).

(5)  The Provisional SPA, the SPA, the Supplemental SPA and the Assignment were all executed as part of the Sham Transaction.

(6)  The Sham Transaction was not a genuine transaction, and was carried out without the knowledge or consent of the Father.  The Son was in breach of trust in executing the various documents pursuant to the Sham Transaction. 

(7)  The Father only found out about the breaches of trust in around July 2009.

(8)  All the defendants had knowledge that (a) the Property was held by Son on trust for the Father and (b) the Hampton Mortgage, the Triple Gain Mortgage and the Sham Transaction were entered into in breach of trust.

(9)  All the defendants dishonestly assisted in the Son’s breach of trust and are liable as such.

(10)  Daiwa received the Property with knowledge of the Son’s breach of trust and is liable to hold the Property and to account all rents and profits derived from the Property as a constructive trustee for the Father.

(11)  The defendants wrongfully and with intent to injure and/or cause loss to the Father by unlawful means conspired and combined together to obtain the Property and the income derived therefrom to the detriment of the Father.

36.  The Son’s position in this case is the same as that of the Father.  In addition, the Son claims against Triple Gain or alternatively Mr Albert Ko HK$50,000 allegedly charged by them as “introduction fee” illegally under section 27 of the MLO.

37.  The Father and Son had at one stage of the proceedings raised allegations of forgery in relation to certain documents.  Such allegations have now been withdrawn.  Accordingly, I shall treat all the documents bearing signature(s) of the Son as having been signed by him. 

C2.  The Defendants’ Case

38.  The defendants’ case can be summarised as follows:

(1)  The defendants rely on the Deeds of Gift as evidence of the fact that the Son became the absolute owner of the Property.  The doctrine of presumption of advancement is also relied upon by the defendants.

(2)  The Father is estopped from saying that the Property is held on trust for him by the Son.

(3)  The trust arrangement is void for illegality and its enforcement is contrary to public policy because the Father was seeking to evade estate duty or alternatively that the Father was colluding with the Son to enable the Son to obtain the various loan facilities.

(4)  There was never any demand for any introduction fee.

(5)  Between July 2007 and March 2009, Mr Albert Ko through Triple Gain a total sum of HK$3,081,901 to the Son and the Son has only repaid HK$200,000 together with a monthly interest payment of HK$33,000 from August 2008.

(6)  In early 2009, the Son wished to dispose of the Property to discharge his obligations to Hampton.  This led to the sale of the Property to Daiwa for HK$6,300,000.  There was no Sham Transaction.

(7)  Upon the assignment of the Property to Daiwa, Daiwa paid HK$3,213,548 to Daiwa to discharge the Hampton Mortgage and attributed HK$2,005,001 for the benefit of the Son.

(8)  The defendants never knew of the existence of the alleged trust.

39.  In their pleading, the defendants advanced a counterclaim in tort of malicious falsehood against the Father and Son.  This was struck out by Master S Kwang on 5 September 2012.

40.  In his closing submissions, Mr George Chu, counsel for the defendants, raised a new point, which was never pleaded. He submitted that by virtue of the Father’s release of the Son’s liability, all of the defendants should likewise be released. 

D.  THE ISSUES FOR DETERMINATION

41.  In my view, there are the following principal issues to be determined in this trial:

(1) Whether the Property was at any time held by the Son on trust for the Father (“the Trust Issue”).

(2) Whether there was a Sham Transaction (“the Sham Issue”).

(3) Whether any of the defendants dishonestly assisted in the breach of trust (“the Dishonest Assistance Issue”).

(4) Whether Daiwa received the Property as a knowing recipient (“the Knowing Receipt Issue”).

(5) Whether the defendants unlawfully conspired together to injure the Father (“the Conspiracy Issue”).

(6) Whether the Father is entitled to the return of the Property from Daiwa (“the Proprietary Claim Issue”).

(7) Whether the Son is entitled to recover HK$50,000 under section 27 of the MLO (“the Recovery of $50,000 Issue”).

(8) Whether the defendants are released from liability in dishonest assistance and knowing receipt by virtue of the Father’s release of the Son’s liability for breach of trust (“the Release Issue”).

E.  THE TRUST ISSUE

E1.  The Relevant Evidence from the Father

42.  The Father’s case is that the legal title of the Property was transferred to the Son by the two Deeds of Gift dated 22 November 2000 and 22 January 2001 and that he (the Father) remained to be the beneficial owner of the Property notwithstanding the two Deeds.  Mr Vincent Lung, counsel for the plaintiffs, submitted that the trust is either an express trust, or alternatively a resulting trust.

43.  The Father migrated to Hong Kong from mainland China in the 1950s.  He has five children and the Son is his third son.  He is almost 80 years of age.  The Father’s evidence (taken from both his evidence in writing and oral testimony)was that:

(1) His physical conditions deteriorated rapidly since the 1990’s.  He consulted some of his friends and was told that instead of making a will, he should arrange for his children to hold real properties for him under their names.  He was further advised that if conveyance was required, he should transfer his properties as gifts to his children to minimise stamp duty.

(2) In or about November 2000, he was hospitalised. 

(3) He formed the intention to transfer the legal title of various commercial properties (including the Property) to his children to hold the same on trust for him during his lifetime. 

(4) He was afraid that his property would fall into the hands of someone else when he passes away.  He therefore made arrangement to make sure that his property would fall within the hands of his family members when he dies.

(5) As far as the Property is concerned, the Father wanted the Property to be his until his death, and to be given to the Son after his death.

(6) The law clerk of Messrs Gilbert Tang & Co told the Father that stamp duty would be saved if two deeds of gift were made instead of one.  The Father never met with the solicitor of Messrs Gilbert Tang & Co before he executed the Deeds of Gift.

(7) All of his children knew that they were merely paper owners and that he (the Father) would continue to manage the renting affairs of the properties and remain as the sole recipient of the rental income. 

(8) The Father produced some of his bank records to show that some rentals were paid in and some expenses were paid out of his bank accounts each month.

44.  In his cross-examination, the Father said that he still retained the original title deeds to the Property at home.  The title deeds were retrieved by the Father’s family members and were subsequently brought to court.  Mr Chu was content for such documents to be introduced into evidence.  In his re-examination, the Father examined the documents brought to court and confirmed that those were the original title deeds to the Property.  Mr Lung requested that the original title deeds not to be marked as exhibits and be returned to the Father.  Instead, the plaintiffs’ solicitors arranged photocopy of the original title deeds to be made and placed them in a new trial bundle (Bundle E).  There was subsequent agreement between counsel that the documents in Bundle E would represent photocopy of the original title deeds to the Property produced by the Father in his oral testimony.

45.  It is right to point out that the Father and Son have not suggested in evidence that they spoke to each other about any trust arrangement shortly before or when the two Deeds of Gift were executed.

E2.  Was there an Express Trust?

46.  The starting point to consider whether the Property was held by the Son on trust for the Father is to recognise that the Father was the registered owner of the Property as at 30 June 1987.  At this point in time, the Father was the person solely entitled to the full beneficial ownership of the Property.  Accordingly, the Father’s legal title carried with it all the rights; there was no separation of the legal and equitable estates in the Property: see Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 2 AC 669 at 706E-F (Lord Browne-Wilkinson).

47.  The next relevant events were the execution of the Deeds of Gift on 22 November 2000 and 22 January 2001.  What was the effect of the execution of the Deeds of Gift?  Where parties have entered into a written agreement which appears on its face to be intended to govern the relationship between them, then, in order to determine the legal nature of that relationship, it is necessary to interpret the agreement in order to identify the parties’ respective rights and obligations, unless it is established that it constitutes a sham: see The Commissioners for Her Majesty’s Revenue and Customs v Secret Hotels2 Ltd [2014] UKSC 16 at §31 (Lord Neuberger P).

48.  Neither the Father nor the Son contended that the Deeds of Gift are shams.  Accordingly, to determine the nature of the relationship between the Father and Son as a result of the execution of the Deeds of Gift, it is necessary to properly construe the two documents.  The aim is to identify the intention of the parties to the Deeds of Gift by interpreting the words used in their documentary and factual context.

49.  I have already referred to the relevant terms of the Deeds of Gift in Section B2 above.  I consider that the terms clearly and unambiguously suggest that the Father assigned all his interest in the Property to the Son for no monetary consideration.  In other words, by the two Deeds of Gift, the Father gifted the Property to the Son. This is entirely consistent with the name of the documents.

50.  Further, as a matter of law, absent any vitiating factors, the Father and Son are bound by all the terms of the Deeds of Gift which they signed: see Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 §§84-87 (Ribeiro PJ). In particular, Ribeiro PJ said:

“ 85. … Reliance is universally placed on signatures appended to documents by persons of full age and understanding as signifying the signatory’s assent or adherence to what that document states. Where such a person has signed a document which purports to have legal effect, the law has never regarded it as enough to show that he signed without knowing its contents for the document to be disavowed. It is an everyday occurrence that people sign documents without reading the small (or even the large) print and therefore sign without actually knowing the terms (or all the terms) of the document signed. But they are held to the documents which they have chosen to sign unless there is shown to be a recognized legal basis for concluding that their apparent consent has been in some way vitiated or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity.

86. And in Bank of China (Hong Kong) Ltd v Fung Chin Kan & Another(2002) 5 HKCFAR 515 at p.533, Litton NPJ acknowledged:

‘… the fundamental principle that, generally speaking, when a person signs a legal document, he or she is bound by the act of signature: As a matter of general law, it is no defence to say that he or she did not understand the contents of a legal document; that person takes the chance of being bound by its terms, as he or she can take the simple precaution of not signing until its contents have been fully explained and understood.’

87.  … To disown a signed legal document, facts constituting the particular vitiating factor relied on must be pleaded and established by the evidence …”

Neither the Father nor the Son has relied on any vitiating factor to impugn the Deeds of Gift. 

51.  The Father cannot be said to have retained any equitable interest in the Property upon the execution of the Deeds of Gift.  This is because an equitable interest cannot be created unless there is some event which enables the equitable title to be separated from the legal title.  As Lord Browne-Wilkinson said in the Westdeutsche case (above) at 706F, “Unless and until there is a separation of the legal and equitable estates, there is no separate equitable title”.  Because the Deeds of Gift did not have the effect of separating the legal and equitable estates in the Property, the Father retained no interest in the Property upon the execution of the two documents. 

52.  Upon the execution of the Deeds of Gift, the Son could have caused the equitable title in the Property to be vested in the Father.  This could have been done by the creation of an express trust on the part of the Son to hold the Property on trust for the Father.  This, of course, would have to be done in writing signed by the Son to satisfy the formality requirement of creating a trust respecting land: section 5(1)(b) of the Conveyancing and Property Ordinance (Cap 219).  However, this was never done.

53.  According to the Father, what he wanted to achieve was to own the Property during his lifetime and to give the Property to the Son upon his death.  If this was all he wanted, he could have executed a will to deal with the Property in that way.  When asked about this in cross-examination, the Father said he knew very little about wills. Moreover, Mr Lung did not explain how an express trust could be created to give effect to what the Father wanted to achieve.

54.  In his witness statement, the Father asserted that four other properties are being held by his children on trust for him, and that he has been collecting the rent from some of these properties.  Apart from his bare assertions, there is no other evidence to support the Father’s case that these other four properties are trust properties.  I do not consider there is sufficient material for me to find that the other four properties are being held on trust for the Father.  More importantly, whether or not the other four properties are trust properties has no direct bearing on the question of whether the Property was held on trust by the Son for the Father at the material times. 

55.  Even though the Father continued to receive the rental income of the Property after the execution of the Deeds of Gift and still retains the original title deeds of the Property, these matters do not, whether taken separately or together, constitute an event which separated the legal and equitable estates in the Property, and therefore cannot assist the Father to establish a case of express trust. 

56.  It is right to record that Mr Lung in his closing submissions acknowledged that there might be difficulties in his clients’ case on express trust.

57.  I conclude that the Property was never held by the Son on express trust for the Father.

E3. Was there a Resulting Trust?

E3a.  The relevant legal principles

58.  In Westdeutsche (above) at 708A-C, Lord Browne-Wilkinson said that a resulting trust arises in two sets of circumstances:

(1) Where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. 

(2) Where A transfers property to on express trusts, but the trusts declared do not exhaust the whole beneficial interest.

59.  In his closing submissions, Mr Lung referred to Lord Millett’s judgment in Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 at 1412B-C and Lord Upjohn’s speech in Vandervell v IRC [1967] 2 AC 291 at 313E-314B.  He accepted that the passages in these two authorities are not inconsistent with the principles expressed by Lord Browne-Wilkinson in Westdeutsche on resulting trust.

E3b.  Purchase money resulting trust

60.  A resulting trust of type (1) described by Lord Browne-Wilkinson is generally known as a “purchase money resulting trust”.  It is important to bear in mind that this type of resulting trust arises by operation of law to give effect to the presumption that A did not intend B to take the property beneficially.  This presumption of resulting trust can be rebutted either by direct evidence that A intended to benefit B, or by a counter-presumption of advancement.  The latter can, in turn, be rebutted by evidence.

61.  Conceptually, it is difficult to see how a purchase money resulting trust could have arisen on the facts of the case.  A purchase money resulting trust arises at the time when the property was purchased.  There is no dispute that the Property was purchased in the Father’s sole name in June 1987 and the Father contributed the entirety of the purchase money for the Property.  The Father’s actual intention vis-à-vis the Property in June 1987 was plain; he intended for himself to be the absolute owner of the Property in June 1987.  There was no need to resort to any presumption.  In these circumstances, at the time when the Property was purchased, the Father became the absolute owner of the Property and no purchase money resulting trust could have arisen. 

62.  The Deeds of Gift were executed in 2000 and 2001, more than 13 years after the Property was purchased by the Father.  As mentioned above, the two Deeds had the combined effect of transferring the entirety of the Father’s interest in the Property to the Son.  The doctrine of purchase money resulting trust is not engaged when an absolute owner made a valid gift of the property to a third party years after the purchase.

63.  It follows that the presumption of advancement relied upon by the defendants is irrelevant and inapplicable.

E3c.   Failure of disposition resulting trust

64.  A resulting trust of type (2) described by Lord Browne-Wilkinson may be called a “failure of disposition resulting trust” as a short hand.  This type of resulting trust arises by operation of law in the event where a person makes a disposition of property upon trust but no trusts are effectively declared, or if the declared trusts fail to exhaust the beneficial interest.

65.  Mr Lung submitted that Father intended to create an express trust for the Property to be held by the Son for himself (the Father) but due to the failure to observe the formality requirements, the express trust failed and the beneficial interest became to be held on a resulting trust by the Son for the Father.  I cannot accept these submissions. 

(1) First, the Father never declared a trust or made a disposition of the Property upon trust.  As mentioned earlier, he chose to dispose of the Property by way of gift in favour of his Son.

(2) Further, and more significantly, the Father’s evidence of his intention was that the Property would be his during his lifetime and that it would belong to the Son upon his death.  The resulting trust contended for by Mr Lung cannot give effect to this intention.  If the Property were held on a resulting trust by the Son for the Father, the beneficial interest of the Property would go to the Father’s estate, and not the Son, upon the death of the Father. 

For these reasons, I am not satisfied that the Father intended the Son to hold the beneficial interest in the Property for him upon the execution of the Deeds of Gift.

66.  Again, the Father’s receipt of the rental income of the Property after the execution of the Deeds of Gift and retention of the original title deeds of the Property do not affect the analysis.

67.  Accordingly, I do not consider that any failure of disposition resulting trust could have arisen. 

E3d.  Conclusion on resulting trust

68.  My conclusion is that the Property was never held on a resulting trust by the Son for the Father.

E4.  Conclusion on the Trust Issue

69.  Upon the execution of the Deeds of Gift, I find that the Son became the absolute owner of the Property, and the Property was never held on trust, whether express or resulting, by the Son for the Father.

70.  My conclusion on the Trust Issue is sufficient to dispose of the Dishonest Assistance Issue, the Knowing Receipt Issue and the Proprietary Claim Issue.  Nonetheless, I will address these issues below and will do so on the basis that I am wrong on the Trust Issue.

F.  THE SHAM ISSUE

F1.  The Relevant Legal Principles

71.  The classic definition of “sham” is Diplock LJ’s formulation in Snook v London and West Riding Investments Ltd [1967] 2 QB 786.  A sham exists where (1) the parties intended that the documents or acts they have done would not create the legal rights or obligations they appear to create and (2) it was intended that the documents or acts would mislead a third party into believing the parties had created those rights and obligations.  At p 802C-F, Diplock LJ said:

“ As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a “sham”, it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities ... that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a “shammer” affect the rights of a party whom he decided.”

72.  In Hitch v Stone [2001] STC 214, Arden LJ at 230a-e gave the following guidance as to whether an act or document is a sham:

“ First, in the case of a document, the court is not restricted to examining the four corners of the document. It may examine external evidence. This will include the parties’ explanations and circumstantial evidence, such as evidence of the subsequent conduct of the parties.

Second, as the passage from Snook makes clear, the test of intention is subjective. The parties must have intended to create different rights and obligations from those appearing from (say) the relevant document, and in addition they must have intended to give a false impression of those rights and obligations to third parties.

Third, the fact that the act or document is uncommercial, or even artificial, does not mean that it is a sham. A distinction is to be drawn between the situation where parties make an agreement which is unfavourable to one of them, or artificial, and a situation where they intend some other arrangement to bind them. In the former situation, they intend the agreement to take effect according to its tenor. In the latter situation, the agreement is not to bind their relationship.

Fourth, the fact that parties subsequently depart from an agreement does not necessarily mean that they never intended the agreement to be effective and binding. The proper conclusion to draw may be that they agreed to vary their agreement and that they have become bound by the agreement as varied...

Fifth, the intention must be a common intention ...”

F2.  The Son’s Evidence in Summary

73.  The Son’s evidence in support his allegation of the Sham Transaction can be summarised as follows:

(1)  In early January 2009, Mr Albert Ko called the Son and said (“the January 2009 Conversation”):

(a)  in view of the Son’s inability to make timely repayments under the Hampton Mortgage, Hampton would be left with no choice but to exercise its power to take possession and sell the Property at any time;

(b)  there was only one solution to avoid Hampton taking possession of the Property, namely to arrange a sham transaction for the Property to be notionally sold to him (Mr Albert Ko), after which he (Mr Albert Ko) would obtain a bank loan from the bank for the Son;

(c)  with the bank loan, the Son would then be able to repay all the money owed to Hampton under the Hampton Mortgage.

This conversation was termed by the Son as the “Second Discussion” in his witness statement.

(2) About one week after the above telephone conversation, on 15 January 2009, Mr Albert Ko kept on pressurising the Son and repeatedly told him that Hampton would take possession of the Property very soon and would have it sold if he was still unable to pay the interest for the month.  The Son panicked but still refused to carry out the Sham Transaction.

(3) On 20 January 2009, Mr Albert Ko made a further loan of HK$50,000 to the Son and insisted that the Son should carry out the Sham Transaction.  The Son was under a lot of financial distress and was left with no choice but to comply.

(4) On a date between 20 and 23 January 2009, the Son met Mr Albert Ko at a restaurant where Mr Albert Ko demanded the Son to carry out the Sham Transaction by signing the Provisional SPA to sell the Property for HK$6.3 million.

(5) The Provisional SPA suggested that the Son had received HK$100,000 from Daiwa as initial deposit but in fact the Son never received it.

(6) Before the Son signed the Provisional SPA, Mr Albert Ko further assured him that even if he was to default in making timely repayments to him (Mr Albert Ko), he would not take the Property away from the Father and Son.  In reliance on such representation, the Son signed the Provisional SPA and participated in the Sham Transaction.

(7) At around 5pm on 22 or 23 January 2009, the Son attended the office of Messrs Ma Tang & Co (“MT&C”) where he signed the SPA.  A staff of Messrs ST Poon & Wong (“P&W”) was present as the Son’s legal representative but he never instructed P&W to act for him.  The SPA was dated 6 February 2009 or was undated at the time he signed the SPA. 

(8) On the same occasion, the Son also signed the Assignment bearing the date of 27 March 2009.  After signing the Assignment, Mr Tang of MT&C told the Son that the SPA and Assignment would not be registered in the Land Registry.  The Son never received any part of the HK$900,000 upon the signing of the SPA.

(9) In early February 2009, the Son met Mr Albert Ko at a restaurant and was demanded by Mr Ko to sign the Supplemental SPA.  The Supplemental SPA did not bear a date when the Son signed on it.

(10) On 26 March 2009, Mr Albert Ko called the Son and told him that a bank loan was arranged as per the January 2009 Conversation, and that the Son had to attend the office of MT&C on 27 March 2009 to complete the transaction. 

(11) At 3pm on 27 March 2009, the Son met Mr Albert Ko in Wanchai during which Mr Ko reassured the Son that the Father would never find out about the Sham Transaction because Mr Ko would make sure that the tenants of the Property would not be alerted and that the Father would continue to receive the rents from the tenants as before, and the name of the owner of the Property on the utility bills and government rate bills would not change.

(12) The Son and Mr Albert Ko then attended the office of MT&C where Mr Tang took out the Assignment that had already been executed on 23 January 2009 and asked the Son to confirm his signature.  Afterwards, Mr Ko told Mr Tang not to inform the tenants, the management office and the Rating and Valuation Department of the change of ownership of the Property.  When the Son and Mr Ko were leaving the office of MT&C, a female staff from P&W arrived.

F3.  Mr Albert Ko’s Evidence in Summary

74.  Mr Albert Ko denied that there was a Sham Transaction and his evidence can be summarised as follows:

(1)  In or about December 2008, the Son told Mr Albert Ko that he was in financial difficulty and asked if Mr Albert Ko was interested in purchasing the Property for about HK$7 million.  Mr Albert Ko said that valuations of the Property should be carried out first.

(2)  The results of the valuations showed that the value of the Property was between HK$5,500,000 and HK$6,300,000.  A valuation report prepared by CS Surveyors dated 23 January 2009 showed that the value of the Property as at 9 January 2009 was HK$6,600,000.

(3)  Thereafter, Mr Albert Ko told the Son that the maximum consideration would not exceed HK$6,300,000 and the Property would be purchased by Daiwa.  The Son stated that HK$6,300,000 was acceptable to him.

(4)  On 23 January 2009, Mr Albert Ko and the Son met at a restaurant in Wanchai.  Mr Ko presented to the Son a draft Provisional SPA which had already been signed by Mr WK Ko on behalf of Daiwa.  The Son read it and put his signature on it.

(5)  On another day after the signing of the Provisional SPA, Mr Albert Ko and the Son went to MT&C’s office.  Mr Tang of MT&C told them that his firm could not represent both the vendor and purchaser.  The Son asked for introduction to another firm of solicitors to represent him.

(6)  On or about 6 February 2009, Mr Albert Ko and the Son went to MT&C’s office to sign the SPA.  A staff of P&W was also present.  The Son said that he understood the contents of the SPA and put his signature on it.

(7)  On or about 26 February 2009, the Son and Mr WK Ko (on behalf of Daiwa) signed the Supplemental SPA.

(8)  On or about 27 March 2009, Mr Albert Ko and the Son went to MT&C’s office to sign the Assignment.  Again, a staff of P&W was also present.  The Son said that he understood the contents of the Assignment and put his signature on it.

(9)  The purchase price of the Property of HK$6,300,000 was applied as follows:

(a)  HK$3,213,548 as redemption of the Hampton Mortgage;

(b)  HK$10,100 as legal costs of the sale and purchase;

(c)  HK$200,000 as repayment of the Belvedere Garden loan;

(d)  HK$1,805,001 as repayment of the personal loan;

(e)  HK$845,400 as repayment of the waste disposal loan;

(f)  HK$8,400 as payment of the setting up costs of waste disposal;

(g)  HK$3,000 as payment of the valuation report fee;

(h)  HK$126,000 as transfer of rental deposit;

(i)  HK$84,000 as transfer of rent for April and May 2009;

(j)  HK$4,551 to be waived as previously agreed.

(10)  By an agreement dated 27 March 2009 between Daiwa, the Son and Triple Gain, it was agreed that the sale of the Property by the Son would operate as a full and final settlement of all debts owed by the Son to Triple Gain.

F4.  My Approach in Making Findings of Fact

75.  Whether or not the Sham Transaction existed is ultimately a question of fact and depends essentially on the credibility of the Son and Mr Albert Ko.

76.  In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77.  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce).  It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

78.  In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79.  In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.  The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80.  I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81.  The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“ Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

82.  Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination.  They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.

83.  In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).

F5. My Assessment of Evidence and My Findings

F5a.  Son’s account of the Sham Transaction

84.  According to the Son’s witness statement and his oral testimony, the Sham Transaction would encompass the following steps:

(1) the Son would arrange the Property to be notionally sold to Mr Albert Ko,

(2) Mr Albert Ko would then obtain a bank loan from a bank,

(3) Mr Ko would then lend the money from the bank to the Son, and

(4) the Son would then be able to repay all the money owed to Hampton under the Hampton Mortgage.

85.  In my view, there are a number of unsatisfactory features about the Son’s account of the Sham Transaction.

86.  First, the Son’s account of the Sham Transaction in his pleadings and witness statement was vague.  It was only embellished with important details when the Son was giving his oral testimony.

(1) In his pleadings and his witness statement, the Son did not mention any terms of the loan which Mr Albert Ko allegedly offered to advance to him.  As the Son was already in serious financial difficulty at the time, I would expect the terms of the loan to be at the forefront of his (the Son’s) mind and mentioned in the court documents.  Mr Lung accepted in his written closing submissions that there was “scope for better pleading (by including the interest payable by [the Son] to [Mr Albert Ko])”.

(2) It was only in his cross-examination on the second day of the trial when the Son mentioned, for the first time, that he was to pay HK$50,000 per month to Mr Albert Ko under the Sham Transaction.  Mr Chu asked the Son why this was not mentioned in his witness statement but no satisfactory answer was given.  Mr Ko on the other hand denied that there was such an agreement between him and the Son.  On balance, I find there was no agreement between Mr Ko and the Son about the payment of HK$50,000 per month.

(3) Moreover, at the end of his cross-examination, the court asked the Son what the interest rate of the loan was pursuant to the Sham Transaction.  The Son said that he had no idea and that the question of interest rate was not discussed.  The Son also said that there was no discussion as to the termination date for this loan.  I find his answers difficult to believe.  If Mr Albert Ko did offer to make a loan to the Son pursuant to the Sham Transaction, it would have been very strange for Mr Ko not to mention (and the Son not to ask about) the essential terms such as interest rate and duration of the loan in their conversation.

(4) Further, the Son did not mention in his pleadings or witness statement what Mr Albert Ko was supposed to do with the Property pursuant to the alleged Sham Transaction.  It was only when Mr Lung put his clients’ case to Mr Albert Ko at the end of his cross-examination when it became apparent that the Son’s case was that the Property would be mortgaged to a bank by Mr Ko using the sham documents.

(5) Significantly, the Son’s oral testimony regarding the Sham Transaction was unsatisfactory and inconsistent with certain parts of his witness statement.  At the start of his re-examination, the Son was shown by his counsel the paragraph in his witness statement mentioning the Sham Transaction and should therefore have been fully reminded of his written evidence.  Nonetheless, the Son said that nothing would be done to the Property after the “notional” sale, and that he had no idea as to where Mr Ko would get the money to repay Hampton.  These answers were wholly inconsistent with the Son’s own case.

87.  Second, on the basis of the Son’s account of the Sham Transaction, I consider such a transaction lacks common sense and commercial reality.

(1) There is no dispute that the Son and Mr Albert Ko were, at the relevant times, friends.  Nonetheless, there is undisputed evidence that Mr Ko/Triple Gain charged interest in respect of the loans advanced to the Son.  This means that there was some commercial element in the relationship between the Son and Mr Ko.  Having said this, I wish to make it clear that I am not suggesting that Mr Albert Ko was at the material times carrying on a business of money lending.

(2) According to the Son, Mr Albert Ko under the Sham Transaction agreed to (a) borrow money from a bank in Mr Ko’s name (and therefore to assume a financial obligation in his name towards the bank), and (b) on-lend money from the bank to the Son without taking any security from the Son in respect of the loan knowing that the Son was already in serious financial difficulties.  Absent any good reasons, I do not believe that anyone would do what the Son alleged Mr Ko had agreed to do. 

(3) Mr Lung submitted there was incentive for Mr Albert Ko to enter into the Sham Transaction because he would “receive significant interest and supported by a de facto security”. I cannot accept this submission.  On the plaintiffs’ case, Mr Ko would not be holding any interest over the Property (because the sale and purchase was a sham).  I therefore fail to see how Mr Ko can be said to be holding any security, whether over the Property or otherwise, pursuant to the Sham Transaction.  Moreover, even if I accept the Son’s evidence (which I do not) that there was an agreement for him to pay to Mr Ko HK$50,000 every month, it is inherently unlikely that Mr Ko would derive much comfort from this agreement given that the Son at the time was already in serious financial trouble.

(4) For these reasons, I consider it inherently unlikely for Mr Albert Ko to have proposed the Sham Transaction to the Son. 

88.  I have not seen any cogent evidence to explain these unsatisfactory features about the Son’s account of the Sham Transaction.

F5b.  The Provisional SPA

89.  Mr Lung submitted that there are four sham documents in this case.  The first alleged sham document is the Provisional SPA.  This document bears the date of 23 January 2009. 

90.  According to the Son, he signed this document on either 21 or 22 January 2009 at a restaurant and all the written words had already been printed on the document except the date when he signed on it. 

91.  Mr WK Ko said he signed the Provisional SPA on 20 January 2009 and the date was already there when he signed on the document.  Mr Albert Ko said that the Son signed the Provisional SPA at a restaurant on 23 January 2009. 

92.  I have examined the original of the Provisional SPA.  The date at the top of the document was printed in the same style as the rest of the document and it does not appear to me that it was added at a later stage.  I am therefore unable to accept the Son’s evidence that the date of the Provisional SPA was missing from the document when he signed it.  It seems to me that it is more likely than not that the Provisional SPA was signed by the Son on 23 January 2009.

93.  Mr Lung submitted that clause 2.2 (the payment clause) of the Provisional SPA was incorrect because the Son at most only received $100,000 on the day.  He relied on this matter to raise a doubt as to the genuineness of the Provisional SPA.  I do not believe this is sufficient to cast doubt on the genuineness of the document.  Mr Albert Ko’s evidence was that the money payable to the Son pursuant to the sale and purchase was set off against the Son’s indebtedness and this would explain why the Son only received HK$100,000 as actual payment on the day.  The Tripartite Agreement (see Section F5g below) would support Mr Ko’s evidence.

94.  For these reasons, I prefer Mr Albert Ko’s evidence and find that the Provisional SPA was executed by the Son on 23 January 2009.  It is not a sham document.

F5c.   Son’s handwritten note of 2 February 2009

95.  By a note in the Son’s handwriting dated 2 February 2009 addressed to the banks, the Son stated, amongst other things, that the estimated valuation of the Property was HK$6.6 million and that he was in need of capital of HK$6 million. 

96.  In his oral testimony, the Son said that this note was written because Mr Albert Ko told him to do so.  Mr Albert Ko disagreed with the Son’s suggestion in his examination-in-chief.

97.  It is not necessary to resolve the conflict of evidence as to the provenance of this handwritten note.  Even if the Son’s version is to be believed, the note suggested that it was the Son who was in need of money from the banks.  This note is therefore inconsistent with the Son’s case that the money he needed pursuant to the alleged Sham Transaction would come from Mr Ko.

F5d.  The SPA

98.  The SPA is the second alleged sham document.  This document bears the date of 6 February 2009.

99.  The Son’s evidence is that the SPA and the Assignment were signed by him on either 22 or 23 January 2009 at the offices of MT&C in the presence of Mr Albert Ko, Mr Tang of MT&C and a staff of P&W.  He claimed that the SPA was either dated 6 February 2009 or was undated at the time he signed on it.

100.  Mr Albert Ko said the SPA was signed by the Son on 6 February 2009 at the offices of MT&C.  Mr WK Ko said he also signed the SPA on 6 February 2009 but not on the same occasion when the Son signed on it.

101.  I have some difficulty believing the Son’s evidence that both the SPA and the Assignment were signed on the same occasion on 22 or 23 January 2009.  According to the Son’s case, the Assignment would have been the last document which needed to be created in the scheme.  If his evidence were true, it would not be necessary to carry out any further steps after 23 January 2009 to implement the scheme.  But this is not what the evidence showed and many more events concerning the sale and purchase of the Property happened after 23 January 2009.  One example would be the letter from MT&C to P&W dated 2 March 2009 raising requisitions about the title of the Property.  If the Son were right to say that the Assignment was signed as early as 22 or 23 January 2009, it would not have been necessary for MT&C to issue this letter.  It would also mean that MT&C created this document knowing that the vendor had already executed the assignment.  It would have been a very serious allegation to suggest that a firm of solicitors was willing to be, and in fact became, a party to a sham.  No such allegation was made by the plaintiffs. 

102.  Mr Lung relied on three matters in the SPA and submitted that the document was a sham document: (1) Schedule 6 contained false particulars of the tenancies, (2) the use of the Property was wrongly described as “Domestic” and the Son, Mr Albert Ko and their lawyers failed to spot this error, (3) there was no suggestion that $1.45 million was actually paid to the Son on 28 February 2009 as a further deposit as stipulated in Schedule 3. I cannot accept these submissions.

(1) The fact that a document contains inaccuracies or typographical errors cannot be proof of sham.  The existence of the inaccuracies about the tenancies and the wrong description about the user cannot suggest that the parties to the SPA intended to create different rights and obligations from those appearing from the document, or intended to give a false impression of those rights and obligations to third parties.

(2) As to the payment of the $1.45 million, I repeat what I said above in relation the set-off of the Son’s indebtedness.  I do not think this matter would be sufficient to make the SPA a sham.

103.  I therefore prefer Mr Albert Ko’s evidence and find that the SPA was signed by the Son on the date shown on the SPA, namely 6 February 2009.  It is not a sham document.

F5e. The Supplemental SPA

104.  The third alleged sham document is the Supplemental SPA.  This document bears the date of 26 February 2009.

105.  In his witness statement, the Son said that he signed the Supplemental SPA in early February 2009 at a restaurant in the presence of Mr Albert Ko.  However, in his examination-in-chief, he said that he signed the document in mid-February 2009.  He also said that all the written words had already been printed on the document except the date when he signed on it.

106.  Mr Albert Ko said that the Son signed the Supplemental SPA on 26 February 2009.

107.  The original of the Supplemental SPA was available for examination at the trial.  For the same reasons as those given above in relation to the Provisional SPA, I cannot accept the Son’s evidence that the date of the Supplemental SPA was missing from the document when he signed on it. 

108.  There is an English document dated 26 February 2009 signed by both the Son and Mr WK Ko confirming the agreement to postpone the completion of the sale and purchase of the Property to 31 March 2009 (“the Confirmation Document”).  In cross-examination, Mr Albert Ko said that this document was also signed by the Son on 26 February 2009.  There is no evidence from the Son suggesting otherwise and Mr Lung did not suggest the Confirmation Document was also a sham document.

109.  The only purpose of the Supplemental SPA was to extend the completion date from 15 to 31 March 2009. Unless there was a genuine need for the extension of time, I find it difficult to believe that Mr Albert Ko would find it necessary to give the impression that the parties needed additional time to complete the sale and purchase transaction.

110.  Accordingly, I prefer Mr Albert Ko’s evidence and find that the Supplemental SPA was signed by the Son on 26 February 2009.  It is not a sham document.

F5f.   The Assignment

111.  The Assignment is the fourth and last alleged sham document.  This document bears the date of 27 March 2009.

112.  As mentioned earlier, the Son’s evidence was that the Assignment was signed together with the SPA on 22 or 23 January 2009.

113.  Mr Albert Ko said that the Assignment was signed by the Son at the offices of MT&C on 27 March 2009 in his presence.  

114.  For the same reasons as those given above, I similarly reject the Son’s evidence that the Assignment was signed by the Son on 22 or 23 January 2009.

115.  In addition, if the Assignment had already been executed by the Son on 22 or 23 January 2009, there would not have been any need for the Supplemental SPA and the Confirmation Document to be signed by the parties on 26 February 2009 to extend the completion date of the sale and purchase from 15 to 31 March 2009. 

116.  For these reasons, I prefer Mr Albert Ko’s evidence and find that the Assignment was executed by the Son on 27 March 2009.  It is not a sham document.

F5g.  The tripartite agreement

117.  A document written in Chinese headed “Agreement” signed by (1) Mr Albert Ko for and on behalf of Triple Gain, (2) the Son and (3) Mr WK Ko for and on behalf of Daiwa, bearing the date of 27 March 2009 (“the Tripartite Agreement”) was referred to by both parties’ counsel in the oral testimony of the witnesses. The following was recorded in the Tripartite Agreement (using the translation agreed by the parties):

“ [Triple Gain] and [the Son] and [Daiwa], all three parties agree to deal with the sale and purchase of [the Property] as follows:

As of today, [the Son] owes [Triple Gain] [HK$3,100,000], all monies of the loan are secured by the above property, [the Son] agrees to sell the property to [Daiwa], a related company of [Triple Gain], for the sum of [HK$6,300,000]. The three parties agree to use the outstanding indebtedness as deposit, [Triple Gain] may cancel the transaction at any time, and if so the deposit shall return to [Triple Gain] and all things shall resume as before, that is [the Son] still mortgaged the property to [Triple Gain], the outstanding indebtedness shall remain a secured loan, [the Son] is still the borrower; [the Son] must sell the property to [Daiwa]. Upon confirmation of the deal and receipt of request from [Daiwa], [Triple Gain] shall discharge the legal charge and assist to complete the transaction”.

118.  It is significant that the Son has not suggested that this is a sham document.

119.  Moreover, the Son was cross-examined on the Tripartite Agreement.  He accepted in cross-examination that

(1) all the words in the document were there when he signed on it,

(2) he understood the contents of the document (although he asserted that he had no choice at the time),

(3) the date of the document was correct,

(4) he did not have any dispute about this document (after being asked by Mr Chu to read the document for a second time), and

(5) he had no further answer to give in respect of the document.  The defendants tendered to the court two originals of this document as exhibits, even though Mr Albert Ko and Mr WK Ko said in their oral testimony that the parties executed three originals.  Be that as it may, there is no dispute that the Son signed the document at least twice.

120.  In my view, this document is an important contemporaneous document and is untainted by any sham allegation. It demonstrates that the sale and purchase of the Property was a genuine transaction.

121.  Mr Lung sought to attack the veracity of the Tripartite Agreement by asking why the parties would agree to allow Triple Gain to cancel the transaction when the Son was already in the process of completing the sale and purchase.  This question was not put to Mr Albert Ko (the owner of Triple Gain) in cross-examination; it was only put to Mr WK Ko. Mr Albert Ko may well have an answer to this question and I do not think it is right for me to infer anything in the circumstances.

F5h.  The Son’s conduct after 27 March 2009

122.  In answer to one of the court’s questions at the end of his cross-examination, the Son said that he only realised he was actually (as opposed to notionally) assigning the Property to Daiwa on 27 March 2009.  In other words, if the Son were right in saying that he and Mr Albert Ko intended to carry out a notional sale, he (the Son) would know that Mr Ko was in breach of their agreement on 27 March 2009.  By then, the Son would know that the Hampton loan had been fully repaid.  I would expect the Son to make protests to Mr Ko for breaching their agreement soon after 27 March 2009.  However, this did not happen.

123.  In his oral testimony, the Son accepted that he was still friendly with Mr Albert Ko after March 2009.  The Son said that Mr Ko was interested in purchasing property for investment and he (the Son) acted as a property agent in May 2009 to try to sell a property to Mr Ko. 

124.  I find it inherently unlikely that the Son would continue to be friendly with Mr Albert Ko after finding out that Mr Ko had (according to the Son’s case) breached the agreement between them and actually acquired the Property which the Son claimed to be not his but his father’s.

F5i.   Application of sale proceeds

125.  Mr Albert Ko’s evidence on how the sale proceeds of the Property were applied has been summarised in Section F3 above.  In particular, it was Mr Ko’s evidence that the Son owed him a total of HK$2,005,001, which was evidenced by 28 written draw down notices signed by Mr Ko and the Son (“DDN”).  In cross-examination, Mr Ko said that the DDNs were contemporaneous records and served as his running ledger showing how much was owing to him by the Son.

126.  Mr Lung submitted that there were numerous errors in the DDNs and Mr Albert Ko could not explain how they were made in cross-examination.  He further submitted that the DDNs were not contemporaneous documents but were reconstructed in such a way so that there was no need for any payment to be made to the Son at completion of the sale and purchase of the Property.

127.  Mr Albert Ko frankly admitted that there were numerous errors in the 28 DDNs prepared by him. Leaving aside the obvious typographical errors, Mr Ko was not able to explain how each of mistakes was made.  He said he would need some time to go through his records and see if he could provide the explanations.  I cannot say Mr Ko was untruthful or evasive when giving evidence in this regard.  I bear in mind that the application of sale proceeds is not one of the central issues in this case and that the plaintiffs are not seeking for the return of the balance of sale proceeds from the defendants.  Further, I accept Mr Ko’s evidence that the Tripartite Agreement was intended to operate as a full and final settlement of all the debts owing by the Son to Triple Gain/Mr Ko.  Accordingly, I do not accept that the manner in which the sale proceeds were applied in this case is indicative of a sham transaction.

F5j.  Conclusion

128.  For all the above reasons, I cannot accept the Son’s evidence that there was a Sham Transaction and that the Provisional SPA, the SPA, the Supplemental SPA and the Assignment were signed on a date different from the one showing on the document.  I find that all of these four documents are genuine (and not shams) and that there was an actual sale and purchase of the Property between the Son and Daiwa.

F6.  Conclusion on the Sham Issue

129.  I conclude that there was no Sham Transaction.

G.  THE DISHONEST ASSISTANCE ISSUE

G1.  The Relevant Legal Principles

130.  There are four requirements for the imposition of liability for dishonest assistance: (1) a breach of trust or fiduciary duty by someone other than the defendant, (2) the defendant’s assistance, (3) dishonesty, and (4) resulting loss.  See Grupo Torras SA v Al-Sabah [1999] CLC 1469 at 1664A-B (Mance J).

131.  Dishonesty is an objective standard. The courts apply the normally acceptable standards of honest conduct in determining whether the accessory is dishonest.  There is no requirement of conscious dishonesty; the test for dishonesty does not require that the accessory considers that he is acting dishonestly.See Royal Brunei Airlines v Tan [1995] 2 AC 378 at389C-F (Lord Nicholls); Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2006] 1 WLR 1476 at §§10, 12-16 (Lord Hoffmann); Peconic Industrial Development Ltd v Chio Ho Cheong (unreported, HCA 16255/99,1st June 2006) §184 (A Cheung J).

132.  However, when deciding whether the accessory is dishonest, the court also takes into account the circumstances known to him at the time he acted, personal attributes such as his experience and intelligence, and the reason why he acted as he did.  See Royal Brunei v Tan (above) at 389D, 391B-C (Lord Nicholls).

133.  The accessory has the requisite dishonest state of mind if he deliberately closes his eyes and ears, or deliberately refrains from asking questions, lest he learns something he would rather not know, and then proceeds regardless: see Royal Brunei v Tan(above) at 389F-G (Lord Nicholls).

134.  Dishonesty must not be equated with negligence or a failure to exercise reasonable skill and care.  The test is one of honest– not reasonable – conduct.See Royal Brunei v Tan(above) at 389D-E (Lord Nicholls).

G2.  First Requirement – Breach of Trust or Fiduciary Duty

135.  In the light of my conclusion that the Property was never held by the Son on trust for the Father, it follows that there could not have been any breach of trust by the Son in the disposition of the Property in 2009.  The first requirement is therefore not satisfied.  Nonetheless, on the assumption that I am wrong on the Trust Issue, I continue to deal with the other three requirements to make the necessary findings of fact.

G3.  Second Requirement – Assistance

136.  It is not entirely clear from the plaintiffs’ pleadings or their written submissions which event is alleged to be an act of assistance on the part of the defendants for the purpose of the claim in dishonest assistance.  For the purpose of this sub-section, I assume that Mr Lung relied on the defendants’ participation in the alleged Sham Transaction as the relevant events of assistance.

G4.  Third Requirement – Dishonesty

137.  An allegation of dishonesty must be established with cogent and compelling evidence.  I have already referred to the relevant authorities in Section F4 above regarding the need for particularly cogent evidence to establish a serious allegation.

138.  As far as Mr Albert Ko and Triple Gain are concerned, Mr Lung submitted that they had actual knowledge of the existence and breach of trust and this made their participation in the Sham Transaction dishonest.  Mr Lung submitted that the Son told Mr Albert Ko that the Property was held under a trust on two occasions: (1) when Mr Ko introduced the Son to Hampton (ie in June 2007), and (2) when Mr Ko asked the Son to carry out the alleged Sham Transaction (ie in January 2009).  Mr Ko denied this. 

139.  As far as Mr WK Ko and Daiwa are concerned, Mr Lung submitted that they were the agents or nominees of Mr Albert Ko and therefore must have known about the existence and breach of trust.  Mr WK Ko likewise denied possessing any such knowledge.  I also bear in mind the Son’s evidence that he had nothing to suggest that Mr WK Ko knew about the alleged discussions he (the Son) had with Mr Albert Ko.

140.  If I am wrong in my above conclusion on the Trust Issue, I would have found as a fact that none of the defendants knew at any time that the Property was subject to a trust. 

(1)  If Mr Albert Ko knew that the Property was subject to a trust, he would not have arranged the Son to execute the Triple Gain Mortgage as security for the Triple Gain loan in January 2008.  There is no suggestion that the execution of the Triple Gain Mortgage was part of a sham. 

(2)  Moreover, if either Mr Albert Ko or Mr WK Ko knew that the Property did not belong to the Son beneficially but was subject to a trust in favour of the Father, I find it inherently unlikely that they would agree to participate in the transactions involving the Property from January to March 2009.  It would not make any sense (1) for Mr Albert Ko to get his brother to be involved in this transaction and (2) for Mr WK Ko to provide a personal guarantee to the mortgagee bank in respect of Daiwa’s purchase of the Property, if they knew that the Son had no beneficial interest in the Property.

G5.  Fourth Requirement – Resulting Loss

141.  There is no dispute that the Father no longer has any interest in the Property.

G6.  Conclusion on the Dishonest Assistance Issue

142.  The Father’s claim in dishonest assistance against all the defendants must fail.

H.  THE KNOWING RECEIPT ISSUE

H1.  The Relevant Legal Principles

143.  The essence of a liability to account on the footing of knowing receipt is that the defendant has accepted trust assets knowing that they were transferred to him in breach of trust and that he had no right to receive them: Williams v Central Bank of Nigeria [2014] 2 WLR 355 at §31 (Lord Sumption).

144.  In BCCI v Akindele [2001] Ch 437, Nourse LJ followed what Hoffmann LJ said in El Ajou v Dollar Land Holdings Plc [1994] 2 All ER 685 at 700 and said that three requirements need to be established for a claim in knowing receipt to succeed, namely:

(1)  a disposal of the plaintiff’s assets in breach of trust or fiduciary duty,

(2)  beneficial receipt by the defendant of the assets of the plaintiff or their traceable products, and

(3)  receipt by the defendant of the assets with knowledge that the assets are trust property or property subject to a fiduciary duty and have been transferred in breach of trust or fiduciary duty.

145.  As far as the third requirement of knowledge is concerned, the English Court of Appeal in Akindele at 455E-G held that liability will be imposed where the recipient’s state of knowledge is such as to make it “unconscionable” for him to retain the benefit of the receipt.

146.  Akindele has been followed in Hong Kong in the Court of First Instance (see eg High Fashion Garments Co Ltd v Ng Siu Tong et al (No 2) [2005] 4 HKC 8 at §22 (Lam J) & Peconic Industrial Development Ltd v Chio Ho Cheung (unreported, HCA 16255/99, 1st June 2006) §240 (A Cheung J).  What was said in Akindele concerning the test for a claim in knowing receipt was assumed to be correct law by the Court of Final Appeal in Thanakharn Kasikorn Thai Chamkat (Mahachon) v Akai Holdings Ltd (in liq) (2010) 13 HKCFAR 479 at §128 (Lord Neuberger NPJ).

H2.  First Requirement – Disposal of Assets in Breach of Trust or Fiduciary Duty

147.  Given that I have decided the Trust Issue against the Father, there could not have been a disposal of the Property by the Son in breach of trust.  The first requirement is therefore not satisfied.  Again, I proceed to make the necessary findings of fact in relation to the second and third requirements in the event that I am wrong in finding that there was no trust between the Father and Son.

H3.  Second Requirement – Beneficial Receipt by the defendant

148.  There is no dispute that Daiwa received the Property.

H4.  Third Requirement – Requisite Knowledge of the defendant

149.  I repeat Section G4 above.  Mr Lung realistically submitted that the unconscionability issue would rise and fall with the Court’s finding on dishonesty.

150.  Therefore, if I am wrong to conclude that there was no trust, I would have found that Daiwa did not possess the requisite knowledge so as to make it unconscionable for it to retain the benefit of the receipt of the Property.

H5.  Conclusion on the Knowing Receipt Issue

151.  The Father’s claim in knowing receipt against Daiwa must fail.

I.  THE CONSPIRACY ISSUE

I1.  The Relevant Legal Principles

152.  A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so: see Meretz Investments NV v ACP Ltd [2008] Ch 244 at §86 (Arden LJ); De Krassel v Chu [2010] 2 HKLRD 937 at §40 (Sakhrani J).

153.  Accordingly, proving conspiracy to use unlawful means involves proving each of the following elements of the tort:

(1)  the nature of the agreement;

(2)  the unlawful means alleged;

(3)  each unlawful act relied upon as causing loss;

(4)  the fact that each such act was carried out pursuant to the conspiracy; and

(5)  the relevant state of mind of the putative conspirator.

See De Krassel (above) §41 (Sakhrani J).

154.  A defendant should not be liable for conspiracy to injure by unlawful means if he believes that he has a lawful right to do what he is doing: see Meretz Investments (above) at 289B-C (Toulson LJ); De Krassel (above) §41 (Sakhrani J).

I2.  The Relevant State of Mind of the Defendants

155.  Mr Lung submitted that my findings on the state of mind of the defendants would resolve the issue on unlawful conspiracy.  I repeat Section G4 above and this ingredient is therefore not satisfied.

156.  No submissions were advanced by the plaintiffs to deal with the other ingredients of the tort.  In the circumstances of this case, it is unnecessary for me to discuss the other elements of the tort.

I3.  Conclusion

157.  The Father’s claim in unlawful conspiracy against all the defendants must fail.

J.  THE PROPRIETARY CLAIM ISSUE

J1.  Does the Father have a Proprietary Claim?

158.  In the light of my finding that the Son never held the Property on trust for the Father, it follows that the Property belonged to the Son absolutely upon the execution of the Deeds of Gift.  Accordingly, the Father does not have a proprietary claim against the Property in this case.

J2.  Defence of Bona Fide Purchaser for Value without Notice

159.  Given that the Father does not have proprietary claim against the Property, it is unnecessary for me to consider the defendants’ defence of bona fide purchaser for value without notice.  However, in the event that I am wrong on the Trust Issue, I will now briefly deal with the bona fide defence.

160.  The onus is on the purchaser to prove that he was a bona fide purchaser for value and also that he took without notice of the equitable interest: Chan Chun Chung v PBM (Hong Kong) Ltd (2004) 7 HKCFAR 178 at §14 (Litton NPJ). 

161.  I repeat Section G4 above again.  Even if (contrary to my view) the Son at the material times held the Property on trust for the Father, I would have found that the Daiwa did not have any knowledge or notice about the existence or breach of the trust.  Accordingly, Daiwa would have been successful in showing that it was a bona fide purchaser for value without notice. 

K.  THE RECOVERY OF HK$50,000 ISSUE

K1.  Section 27 of the MLO

162.  Sections 27(1) and 27(4) of the MLO provide:

“ (1) Any agreement entered into between a money lender and a borrower or intending borrower for the payment by the borrower or intending borrower to the money lender of any sum for or on account of costs or expenses (other than stamp duties or similar duties) incidental to or relating to the negotiations for or the granting of the loan or proposed loan or the guaranteeing or securing of the repayment thereof shall be illegal.

(4) If any money or money’s worth is directly or indirectly paid or allowed to or received by any person in contravention of this section, the amount or value thereof, to the extent of such contravention and notwithstanding any agreement to the contrary, may be recovered by the borrower from such person or, if such person is the money lender or a partner, employer, employee, principal or agent of the money lender or is in any way acting for or in collusion with him, may be set off against the amount actually lent (and that amount shall be deemed to be reduced accordingly) or may be recovered by the borrower from such person or from the money lender.”

163. “Money lender” is defined in section 2 of the MLO to mean

“every person whose business (whether or not he carries on any other business) is that of making loans or who advertises or announces himself or holds himself out in any way as carrying on that business …”

K2.  The Son’s Case

164.  The Son’s case is that Mr Albert Ko charged him HK$50,000 as “introduction fee” or “tea money” for the introduction of Hampton to him and that such an amount is recoverable under section 27 of the MLO.

K3.  Discussion

165.  In order to mount a claim for the recovery of money under section 27 of the MLO, it is necessary for the Son to establish that the person from whom the claim is sought was a “money lender” within the meaning of MLO.  However, I note that it was no part of the Son’s case (whether pleaded or mentioned in the written submissions) that Mr Albert Ko at the material times carried on a business of making loans, or advertised or announced himself or held himself out as carrying on that business.  For this reason alone, the Son has no claim under section 27.

166.  In any event, I am not satisfied that the Son has established that Mr Albert Ko charged him HK$50,000 for the introduction of Hampton.

(1)  The Son’s case is that Mr Albert Ko deducted HK$50,000 from the HK$200,000 loan advanced by Triple Gain in July 2007 as the alleged “introduction fee”.  The Son alleged that he only received HK$143,000 out of the HK$200,000 loan.

(2)  Mr Albert Ko disputed the Son’s case.  Mr Ko’s evidence was that the allocation of the HK$200,000 was reflected in the Official Receipt dated 23 July 2007 signed by the Son.  As recorded in the Official Receipt, the Son received (a) HK$53,500 in cash, (b) HK$93,000 by a cheque and (c) HK$50,000 to set off a previous loan made on 3 July 2007 owing by the Son for the same amount.  The Son said in evidence that the handwritten words did not appear on the document when he signed on it.

(3)  Mr Lung attacked the veracity of the Official Receipt on the ground that the 3 components did not add up to HK$200,000.  It is right to say that the total of the 3 components was HK$201,500.  Mr Albert Ko accepted that this was a mistake in his cross-examination.  The existence of such a mistake is not, of course, sufficient to establish the Son’s case of Mr Ko’s receipt of “introduction fee”.

(4)  Mr Lung questioned Mr Albert Ko in cross-examination as to why there was a need to split the advance into cash and cheque.  In response, Mr Ko said he recalled the Son needed cash urgently on the day and because he (Mr Ko) did not have sufficient cash, he advanced the loan partly in cash and partly by cheque.  Mr Lung submitted that Mr Ko’s answer was incredible. 

(5)  I am unable to find that Mr Ko was telling lies when he provided his explanations as to why the loan was split into cash and cheque.  In answering Mr Lung’s questions in relation to the Official Receipt, Mr Ko’s answers were spontaneous and coherent.  I have no reason to disbelieve Mr Ko’s version.

K4.  Conclusion

167.  For the above reasons, the Son’s claim for the recovery of HK$50,000 must fail.

L.  THE RELEASE ISSUE

168.  In his written closing submissions, Mr Chu submitted that “once P2 was released, all Ds should be released”.  He referred to Thompson v Harrison (1787) 2 Bro CC 164, Blackwood v Borrowes (1843) 2 Conn & Laws 459 and Lewin on Trusts (18th ed, 2008) §§39-113 & 39-114 for his one-line submission.

169.  If the defendants wished to take a point that their liabilities are released as a result of the Father’s forgiveness of the Son’s alleged breach of trust, it seems to me that the point should have been pleaded by the defendants to give advance notice to the plaintiffs. Be that as it may, Mr Lung was content to deal the point in his oral closing submissions.  He referred to the Court of Appeal’s decision in Deak v Deak Perera Far East Ltd (in liq) [1991] 1 HKLR 551 to say that the doctrine of release is “far from clear”.

170.  In the light of my conclusions on the Trust Issue, the Dishonest Assistance Issue and the Knowing Receipt Issue, the Release Issue strictly does not arise.  In any event, I do not think the point would have assisted the defendants.  Given that what I say on this point will necessarily be obiter, and that the point was not fully argued by the parties (because of its late introduction by the defendants), I will only set out my brief reasons for not accepting it.

171.  In Lewin on Trusts (18 ed, 2008), the learned editors at §§39-113 & 19-114 state:

“ Release and confirmation

A beneficiary may of course preclude himself from his remedy against the trustee by executing a formal release of the breach of trust or by giving validity to the transaction by an express confirmation.

If the beneficiary releases the principal in a breach of trust or fraud so as to extinguish any debt, he cannot afterwards take proceeding against other parties who would have been jointly and severally liable.”

Thompson v Harrison (1787) 2 Bro CC 164 and Blackwood v Borrowes (1843) 2 Conn & Laws 459 are cited in Lewin as authorities for the second proposition.

172.  It appears from the passage quoted in Lewin that the principle is only applicable where the “other” party is jointly and severally liable with the trustee.  This would be the case where the other party is a co-trustee (because trustees are jointly and severally liable to the beneficiaries).  However, in a case where a third party is involved in a breach of trust (whether as a dishonest accessory or a knowing recipient), it seems to me that the third party is not jointly and severally liable with the defaulting trustee or fiduciary.  The third party is liable because he is required by equity to account as if he were a trustee, even though he is not; the third party’s liability is ancillary in nature: see Williams v Central Bank of Nigeria [2014] 2 WLR 355 at §9 (Lord Sumption).  If a defendant is prima facie liable in dishonest assistance or knowing receipt, I do not believe that he can be exonerated just because the plaintiff chooses not to pursue against the defaulting trustee or fiduciary.

M.CONCLUSION

173.  For all of the above reasons, I dismiss all the claims brought by the Father and the Son.  I make an order nisi that the costs of the defendants in this action are to be paid by the plaintiffs, to be taxed if not agreed.  The costs order nisi shall be made absolute 14 days from the date of this Judgment.