HO KWOK WING v. CHAN MEI MUI

HCA 2178/2014

[2018] HKCFI 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2178 OF 2014

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J U D G M E N T

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Introduction

1.  The plaintiff commenced this action in October 2014 claiming in essence that he is one of the co-owners of a residential unit at Rose Street, Yau Yat Tsuen (together with a car parking space) (“the suit property”).  The defendant denies the claim, and counterclaims that she was the sole beneficial owner thereof instead.

2.  The suit property was registered in the names of the parties as joint tenants in 2005.  The defendant registered a notice of severance of joint tenancy dated 13 March 2010 with the Lands Registry (“the severance notice”).

3.  The defendant is the mother and the plaintiff is one of her 4 sons.

Related properties

4.  The properties which may feature in the background leading to this action (see the background below) were:

(a)  a residential unit (together with a car parking space) at Fa Po Street, Yau Yat Tsuen (“the 1^st family home”). It was registered in the defendant’s name, and was transferred to one of her husband’s creditors in 1997;

(b)  a residential unit at Fa Po Villa, Fa Po Street (“the Fa Po flat”).  It was acquired in 1998 (and was registered in the defendant’s name) and sold in 2005;

(c)  a residential unit at Elite Villa, Tat Chee Avenue, Yau Yat Tsuen (“the Elite Villa flat”). It was registered in the plaintiff’s name, and was acquired in 2000 and sold in 2004;

(d)  a residential unit at Grandeur Villa, Tat Chee Avenue, Yau Yat Tsuen (“the Grandeur Villa flat”).  It was acquired in 2004 (and was registered in the parties’ names as joint tenants) and sold in 2007;

(e)  the suit property, acquired in 2005, was registered in the parties’ names as joint tenants.

(As stated above the severance notice was registered in March 2010)

Background

5.  The background summarized below is largely undisputed.

6.  After their marriage with the defendant, the plaintiff’s father set up a cloth trading business in 1978 (“the trading business”).  The married couple jointly held all the shares of the trading business.

7.  The plaintiff’s father passed away in 1997 leaving behind relatively huge debts.  Probably as part repayment of the said debts, the 1^st family home was transferred by the defendant to one of the creditors.

8.  Both the plaintiff and some of his brothers worked at the trading business (the plaintiff started to do so when he was 16 years old and he left and started his own business in January 2010).

9.  Although the Elite Villa flat was registered in the plaintiff’s name, it was acquired by the defendant for investment purposes (see also para 25(a) and 25(c) below).

10.  The plaintiff was gambling heavily in about 2006 (probably even earlier) and incurred quite some debts as a result.  He made use of the suit property to obtain a mortgage loan from the bank in 2009 without the defendant’s prior knowledge.  The defendant became quite upset upon learning of this and this led to a deterioration in their relationship.

11.  The plaintiff used to live in the suit property (with the defendant and other siblings) but he moved out in 2010.  The defendant and two of the plaintiff’s brothers are still living there.

The plaintiff’s case

12.  The principal relief sought by the plaintiff is that he be declared one of the tenants-in-common of the suit property.  Related (or ancillary) relief includes an order for the sale of the suit property and the distribution of the net sale proceeds.

13.  The claim set out in the statement of claim can be summarized as follows:

(1)  the suit property is registered in the parties’ names as joint tenants (para 4 thereof);

(2)  the plaintiff executed a mortgage agreement in 2009 relating to the suit property to secure a loan granted to him.  The joint tenancy has thereby been severed (para 6 and 7 thereof);

(3)  further, by the severance notice, the defendant formally severed the joint tenancy.  Since then, the parties co-owned the residential unit of the suit property as tenants-in-common (para 9 thereof);

(4)  by reason of the plaintiff being one of the tenants-in-common, he is entitled to apply for a sale order pursuant to the Partition Ordinance (Cap 352) (para 18 thereof).

The defendant’s case

14.  In gist, the defendant’s claim (that she is the sole beneficial owner and the plaintiff has only been holding his interest on trust for her) is based on:

(a)  the parties’ understanding that the suit property (at the time of acquisition) was the “family home” of the defendant when the suit property was acquired;

(b)  the purchase price (and other expenses) was paid for by the defendant only.

She counterclaims that she be declared the sole beneficial owner of the suit property (and related relief).

The claim based on the severance notice

15.  In relation to the severance notice, the defendant complains that the plaintiff is attempting to run an unpleaded case at trial.  

16.  Para 9, statement of claim reads:

“By [the severance notice] and duly registered at the Lands Registry …, the Defendant formally severed the legal interest of [the suit property] expressly providing that [the residential unit of the suit property] shall be henceforth held by the Plaintiff and the Defendant as Tenants-in-Common in equal shares in both law and equity” (emphasis supplied).

17.  The relevant parts of para 4, amended reply state:

“(a) … The Defendant is estopped by convention, conduct, representations, contract or otherwise, from denying what has been stated in [the severance notice], particularly that [the suit property has] been ‘held by us [ie the Plaintiff and the Defendant] as Tenant-in-Common in equal shares both in law and in equity”;

(b) As a matter of law, the making of [the severance notice] was not only unnecessary to protect … the Defendant’s share of [the suit property], but in fact would allow or facilitate the Plaintiff’s disposition of his beneficial interest in [the suit property];

(f) … There is no basis whatsoever for the Defendant to allege that [the severance notice] was null and void as pleaded or at all; and the same was valid and of full legal effect.”

18.  The defendant says that, the above being the plaintiff’s pleaded case, it is not open for him to put forth at trial a case alleging that the severance notice:

(1)  constituting a disposition of the defendant’s equitable interest in the plaintiff’s favour;

(2)  being a declaration of trust in the parties’ favour (as the tenants-in-common);

(3)  constituting the defendant’s informal declaration of trust in the parties’ favour (as the tenants-in-common).

Witnesses’ testimony and findings of fact

19.  The following witnesses testified at trial:

(a)  the plaintiff;

(b)  the plaintiff’s youngest brother (“KC Ho”);

(c)  the plaintiff’s eldest brother (“KK Ho”);

(d)  the plaintiff’s younger brother (“KT Ho”);

(e)  the defendant;

(f)  Mdm Lam Shuk Ling (“Mdm Lam”). The defendant’s friend;

(g)  Ms Lam Li Ching (“Ms Lam”), the girlfriend of KC Ho.

Apart from the plaintiff, all the witnesses were called by, and testified for, the defendant.

20.  The approach adopted by the courts for assessing credibility has been set out in some of my earlier decisions.  See, for example, the decisions in Chiu Chi Tong v Lau Chong Sai & Another, HCA 765/2002 (para 28); Yu Ming Investment Ltd v Peng Ru Chuan, Richard, HCA 814/2002 (para 13); 林傳龍對謝巧玩 HCA 1443/2011 (19 December 2014) (para 15) and Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others, HCA 3523/2002 (13 August 2005) (para 12).  See also what appears to be a similar approach in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439, para 135.  The above will be adopted in this action.

21.  In short, I find the defence witnesses to be truthful and reliable, but do not consider the plaintiff’s testimony to be credible or reliable.

22.  A summary of the reasons why I so assessed the plaintiff’s testimony is as follows. First, the plaintiff admitted during cross-examination that he commenced this action because he felt there was foul play against his own business (which was commenced after he left the trading business (in 2010)) by someone from his family (he named KC Ho as the culprit).  The business scope of both overlaps in many ways.  He also testified he would not have commenced this action had that not happened.

23.  Secondly, the defendant’s conduct both before and after the acquisition of the suit property was inconsistent with her having an intention, allegedly common with that of the plaintiff, to “share” the suit property with the plaintiff.

24.  The defendant’s relevant pre-acquisition conduct included:

(1)  a history of using the plaintiff’s name for acquiring properties (such as Elite Villa flat and the Grandeur Villa flat (see also para 25(a) to 25(d) below)) when (as the plaintiff admitted during cross-examination) those properties were the defendant’s;

(2)  in the past, the defendant has financially assisted the other children to purchase their own flats when they married, instead of “sharing” the flat in which she resided.

The defendant’s relevant post-acquisition conduct was that she looked around for a suitable accommodation for the plaintiff for more than once.

25.  Thirdly, there are indications that the plaintiff has either “tailored” his story, or has contradicted his own statements:

(a)  the plaintiff wavered back and forth as to whether the Elite Villa flat was acquired as one of the defendant’s investments, or the same was in fact his;

(b)  on the plaintiff’s own case, the defendant has promised to give to the plaintiff both the Grandeur Villa flat and the suit property.  This is highly unlikely (see also para 25(d) below);

(c)  regarding the Elite Villa flat, the plaintiff contradicted himself during cross-examination.  At one time, he agreed he had no interest in the property; later on, however, he changed his testimony and asserted that, because he had contributed to the profits of the trading business, he should be entitled to a share in the property because the property was purchased with funds from the profits (he seems to be making a similar assertion regarding the Fa Po flat);

(d)  regarding the Grandeur Villa flat, the plaintiff’s testimony (the property was purchased for his use as familial home) contradicts his witness statement (no such assertion);

(e)  apart from concealing his marital status from his family (especially the defendant) (because his parents disliked his wife), the plaintiff also misstated his marital status in his witness statement (by the time of the witness statement, his true marital status must have already been known to the defendant).  There is no satisfactory explanation for the misstatement;

(f)  during cross-examination, the plaintiff changed his version of when the defendant promised to give him the suit property (after the suit property was purchased, and repeated afterwards from time to time); in his witness statement, he asserts that the defendant’s promise was made at the time of the purchase.

26.  Fourthly, the plaintiff’s father was known to have ruined himself through addictive gambling.  This seems to have plagued the defendant’s mind, and made her felt fearful that the plaintiff might end up badly when she learnt of the plaintiff’s own gambling addiction (which began in early- or mid-2000s).

27.  With this in mind, it is unlikely the defendant would “share” the suit property with him when the circumstances of its acquisition shows that it is more probable the defendant intended the suit property to be a “family home”.  As has been stated in para 4(b) above, the Fa Po flat, which was registered in the defendant’s name only, was sold in 2005.  The suit property was acquired in effect as a replacement.  There is no serious attempt by the plaintiff to dispute that the Fa Po flat was intended by the defendant to be the “family home”.

28.  Fifthly, there were objective circumstances to explain why the suit property was also registered in the plaintiff’s name:

(1)  the defendant was getting old and her health was poorer than before;

(2)  the addition of a registered owner of younger age (such as the plaintiff) would make it easier to obtain bank mortgage (it is noted here the mortgage repayments were made by the defendant and the plaintiff did not contribute to these).

29.  Although it is not directly relevant, I also note that the shares of the trading business registered in the plaintiff’s name were (as he accepts) not paid for by, but were given to, him (these shares are no longer registered in his name).

30.  The plaintiff’s criticism of the defendant’s credibility is mainly anchored around the severance notice:

(1)  it is asserted that the severance notice was prepared “with the benefit of legal advice” (para 27 and 33, plaintiff’s closing submissions).  This is made without evidential basis.  The plaintiff himself did not know about the severance notice until much afterwards.  The testimony of the defendant and KC Ho about this is in essence that the defendant was fearful the plaintiff’s (gambling debts) creditors would make use of the suit property for repayment.  KC Ho (who is not legally trained) attempted to help by searching for a solution on the internet, which resulted in his learning about serving a notice to sever a joint tenancy.  It was in such circumstances that KC Ho instructed a law firm to prepare and register the severance notice for the defendant.  No advice from any qualified professional has been obtained beforehand;

(2)  it is contended that the defendant has been evasive when she was cross-examined about the severance notice.  I consider the lack of clear answers about this to be related to her old age and her lack of legal knowledge (it is obvious she relied on KC Ho in this matter all along);

(3)  the defendant was also criticized for her delay to assert her present case (that the suit property belongs to her solely).  But this has to be judged in the light of her reliance on the information obtained by KC Ho from the internet (namely, registering the severance notice);

I do not consider the above criticisms to justify an adverse assessment on the defendant’s credibility or reliability.

31.  No criticism has been levied by the plaintiff against the testimony of the other defence witnesses.

32.  Based on the above assessment of the witnesses’ testimony (and when considered together with the documentary evidence adduced at trial), the following findings of fact are made:

(a)  the severance notice was prepared and registered without the plaintiff’s prior knowledge (a fortiori the plaintiff’s consent);

(b)  the severance notice was prepared and registered by reason of what in effect was an erroneous suggestion of KC Ho;

(c)  there is no factual basis for concluding that the severance notice:

(1)  was prepared with the plaintiff’s or the defendant’s intention to dispose of any interest;

(2)  was prepared as a result of the defendant’s (or the plaintiff’s) intention to create a trust in the plaintiff’s favour;

(3)  should constitute an informal declaration of trust by the defendant in the plaintiff’s favour (there being no such intention on the parties’ part to do so);

(4)  the suit property was acquired with the intention (shared by both parties) that the defendant is to be the sole beneficial owner;

(d)  the suit property was paid for by the defendant from her own funds;

(e)  there is no factual basis to find any estoppel based on the severance notice: as stated above, the plaintiff was unaware of the same until afterwards; there is no evidence of the plaintiff having relied upon the severance notice before this action; there is no evidence of any prejudice having been suffered by the plaintiff as a result of the registration of the severance notice.

Is the disputed claim unpleaded ?

33.  Because of the fact findings above, there is strictly no need to discuss this aspect.  I shall do so for completeness.

34.  I agree with the defence.  The severance notice is on its face not a trust instrument.  It is, as has been expressly pleaded by the plaintiff (quoted in para 16 and 17 above), a document the purport of which is to convert a joint tenancy into a tenancy in common.

35.  In such circumstance, having decided to run a case based on trust (and perhaps also a breach of trust and/or breach of duties (fiduciary or otherwise)) (para 18(2) above), it is incumbent upon the plaintiff to plead the factual and/or other basis to ground such a case.  At least in relation to allegations involving fiduciary duties and breach of trust, it is trite law that a claimant must provide the necessary particulars (such as, of the relationship giving rise to the duties: Hong Kong Civil Procedure 2018, Vol 1, para 18/12/12 and 18/12/45).

36.  Similar considerations apply equally to the plaintiff’s case based on an alleged informal declaration of trust (para 18(3) above).

37.  If, however, the plaintiff is not alleging anything further than the purport of the severance notice (para 34 above) (but merely to give effect to, and/or seek the specific performance of, the severance notice), the “new” case referred to in para 18 above is otiose and serves no useful purpose.

38.  In relation to the allegation that the severance notice constituted a disposition of the defendant’s equitable interest in the plaintiff’s favour (para 18(1) above), the plaintiff has not stated (whether in the pleadings or otherwise) precisely what “interest” has been disposed of (by the defendant) in the plaintiff’s favour.

39.  If it is contended by the plaintiff that the conversion of the joint tenancy into a tenancy in common is the “interest” being disposed of, in view of the age disparity between the plaintiff (born in 1976) and the defendant (born in 1943) (the plaintiff is about 33 years younger), it is rather more likely the plaintiff has in effect being deprived of the contingent “right” to become the sole owner of the suit property upon the defendant’s death (after the conversion).  Thus, it is difficult to see, in the absence of a specific averment, how such a “disposition” can be said to be in his favour.

40.  The decisions which have particularly been relied upon by the plaintiff in this connection with the “new” claims are:

(1)  Singla v Brown [2007] EWHC 405; [2008] Ch 357;

(2)  Taylor v Taylor [2017] EWHC 1080 (ch); [2017] 4 WLR 83;

(3)  Drakeford v Cotton & another [2012] EWHC 1414 (ch); [2012] 3 All ER 1138.

But as the defendant correctly points out, these decisions are factually different and are therefore distinguishable from this action.

41.  The Singla decision involved a co-owned real property (originally by joint tenancy (which, as is well known to legal practitioners, has (among other things) unity of interest)).  The joint tenancy was severed by a severance notice which, not only converted it to a tenancy in common, but also transferred “… 49% of the beneficial interest from [the claimant] to [the respondent, (a bankrupt who was represented in that litigation by the trustee in bankruptcy)]” (para 23 thereof) (making the co-ownership an unequal tenancy in common (the claimant thereby holding 99% and the respondent holding1%)).

42.  No such transfer has been stated in the severance notice, and none has been identified by the plaintiff.

43.  The Taylor decision concerned whether a statutory form which contained the words:

“they are to hold the property on trust for themselves as joint tenants”

should amount to an express declaration of trust of the land being conveyed (para 42 thereof).  In short, at the end the court concluded there that they did, and that such a declaration constituted the requisite “signed writing” as stipulated by s 53(1)(b), Law of Property Act 1925 (similar to our s 5(1)(b), Conveyancing and Property Ordinance (Cap 219)) (para 44 to 52 thereof).

44.  As the defendant correctly points out in this action, the Taylor decision was one where the court quite justifiably has already made factual findings that the parties therein had jointly held the property; the only dispute being whether there was a properly “signed writing” to ground a legally proper claim.  The main issue in this action, on the other hand, is whether there was a co-ownership of the suit property (as has effectively been stated in para 32 (especially para 32(c) and 32(e)) above, the defendant’s case has prevailed in this regard).

45.  Even in the Taylor decision, where the defendants appeared in person, the court has from time to time mentioned the need for proper pleadings (see, for example, para 3, 4, 35 and 51 thereof).

46.  The Drakeford decision involved a dispute over the ownership of the credit balance in a joint-named bank account where one of the account holders passed away.  The “implied trust” which the court found to exist was based on a statement made by the deceased to such effect. Similar to what has been stated in para 44 above, the dispute about this aspect has been resolved in the defendant’s favour.

47.  Again, similar to what has been stated in para 37 above, if the “disposition” limb of the plaintiff’s case (para 18(1) above) is no different from his co-ownership case, then his “new” case is but a semantically different repeat of his “old” case (which has been rejected above).  If, on the other hand, he is in fact putting forward a different case, the “new” case must be properly formulated by way of pleadings (which he has not).

Conclusion

48.  The plaintiff’s claim is dismissed.

49.  Judgment is to be entered in the defendant’s favour as per the relief sought in the prayers for relief, re-amended counterclaim (para (1) to (5) thereof).

Other matters

50.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its easier comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

51.  Because I have decided against the plaintiff on liability, there is no need to consider whether an order for sale of the suit property should be made.  Were it necessary to do so, I would have decided the issue in the defendant’s favour (for the reasons she put forth at trial).

Costs order

52.  The parties agree the usual rule that costs should follow the event should the court find in entirely in the defendant’s favour (which it has).  There will accordingly be a costs order that the costs of this action (to avoid doubt, including the costs of the counterclaim) be paid by the plaintiff to the defendant to be taxed if not agreed.

53.  The parties are at liberty to address the court on whether they are entitled to engage two counsel for trial within 14 days, if they fail to reach agreement regarding that matter within that period.