TANG YIN LING v. WONG SAI

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 2527 OF 1992

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J U D G M E N T

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1. This action relates mainly to disputes between the Plaintiff and the Defendant over a property known as Unit 3, 13th Floor, Fung Yi Court, United Building, Kowloon, being 1/1,080th part or share of and in the Remaining Portion of Section C of Hung Hom Marine Lot No. 1 ("the property"). The property was purchased at the price of $77,000 in the names of the Plaintiff and the Defendant and completion of the purchase took place on 6th October 1976. The property has eversince been registered in the names of the Plaintiff and the Defendant as tenants in common in equal shares.

2. Before the purchase, the parties lived together at Block 1, 2nd Floor, Ling Nam Building, No. 5 Cheung Ning Street, Kowloon ("the Ling Nam flat") which was rented. After the purchase, the parties continued to live in the Ling Nam flat and the property was let to tenants. In about 1979, the Plaintiff purchased another property known as Flat 6, 9th Floor, Block I, Wei Chien Court, Nos. 2-10, Wai King Street, Kowloon ("the Wei Chien flat"). The parties moved from the Ling Nam flat to the Wei Chien flat where they stayed together until sometime in 1991. The Plaintiff has always had possession of the title deeds and documents of the property, and she was handling all dealings with the tenants. In about September 1991, when the property was without tenant, the Defendant broke in and occupied it and has eversince denied the Plaintiff access to it.

3. The above are the only common grounds between the parties.

ISSUES

4. According to the pleadings, the Plaintiff's case is as follows.

(a) She met the Defendant in about 1971.

(b) In 1972, while she was living together with the Defendant in the Ling Nam flat, they used two rooms. They shared the expenses and outgoings and she was at the time working with Cheung Kong Garment Co. Ltd.

(c) Although there was a prior oral agreement between her and the Defendant that they would contribute equally towards the purchase of the property, at the time of the completion, the Defendant did not have the full half share of the purchase money, and as a result, out of the price of $77,000 for the property, she contributed $53,500 and she also paid all the legal expenses, stamp duty and registration charges relating to the purchase.

(d) Alternatively, the Defendant borrowed $15,000 from her (i.e., $53,500 less $38,5000 being a half of $77,000) to make up his half share of the contribution and this sum of $15,000 is still due and owing to her.

(e) After the purchase, the property was lst and the parties shared equally the income and all outgoings.

(f) The Plaintiff's sister, Madam Tang Luk Mui, through the Plaintiff, purchased the Wei Chien flat in May 1979 with the sister's ownmoney.

(g) On behalf of herself and her sister, the Plaintiff agreed with the Defendant that as he would stay in the Wei Chien flat free of rent and food and household expenses, the Defendant would waive his entitlement to the rents received by the Plaintiff from the property.

5. The Defendant's case is diametrically opposite, alleging the following.

(a) He first met the Plaintiff in early 1975, about 4 months before they moved into and lived together as younger brother and elder sister at the Ling Nam flat. However they used only one room there and not two rooms as alleged by the Plaintiff.

(b) The Plaintiff was not working at the time and the rent and all household expenses relating to the said room were paid by the Defendant.

(c) The price and all legal and other expenses for the purchase of the property were all paid by the Defendant and the Plaintiff did not contribute anything.

(d) He allowed the property to be registered in the parties' names because of the representation by the Plaintiff that in case there was any accident suffered by him, she would be able to arrange to transfer the property to his mother who was then in the People's Republic of China.

(e) In late 1978 and/or 1979, the Defendant lent to the Plaintiff 3 respectively sums of $50,000, $50,000 and $30,000 totalling $130,000 with which the Plaintiff purchased the Wei Chien flat. There was a note evidencing the loan signed by the Plaintiff. After the note was lost, the Plaintiff failed to sign another note despite her promise to do so.

CLAIMS

6. Based on her case, the Plaintiff claims an order for sale of the property pursuant to section 6 of the Partition Ordinance, Cap. 352 and in particular that she is entitled to 7/10th shares of the proceeds after deduction of all necessary expenses for the sale, or alternatively she is entitled to one half of such proceeds and to the return of $15,000 from the Defendant. She also claims damages for being ousted from the property by the Defendant as from September 1991.

7. On the other hand, the Defendant opposes to any partition or sale of the property for he claims that the property was purchased all with his own money whereby he is entitled to the delivery up of the title deeds and documents from the Plaintiff and a declaration that the Plaintiff holds her half share on trust for him. He also claims an account of all the rents received by the Plaintiff from tenants of the property. In addition, he claims the repayment of $130,000 that he lent to her.

THE QUALITY OF THE ORAL TESTIMONY

8. There are several matters which generally affect the quality of the evidence, namely, the age of the events, the money transactions not being satisfactorily evidenced in writing, and above all, the relationship between the parties that turned sour.

9. Since the matters concerning the early stages of the relationship between the parties as well as the money matters took place many years ago, it would be difficult for the parties to give very exact evidence on them. The purchase of the property was completed on 6th October 1976 and it is common ground that the payments allegedly made by both parties are not well documented. The contributions, if at all, made by either party towards the purchase money and related expenses are not evidenced by any writing or document, and the parties cannot reasonably be expected to remember each and every detail about them. But above all, the evidence is much clouded by the hostility that the parties have towards each other.

10. My impression gathered from the parties' evidence and their demeanour when giving evidence is that they were very friendly with each other for a long time while living under the same roof until the introduction into the household of a woman or women by the Defendant when their relationship had a uasty turn. While the relationship was congenial, money at least was no object to either party. What the Defendant's wife did to the relationship can be demonstrated by parts of the Plaintiff testimony very vividly. She referred to the Defendant's wife as "the woman" and went on to say, "I never knew her", "Why should I get along with her? To me, she was non-existent. She was not allowed to go there." There was also spite in her tone. She was not willing to allow the Defendant's wife to stay in the Wei Chien flat, so much so that she went to the police who were instrumental to the Defendant and his family moving out of that flat. The Defendant's story on this score is little different. He told me that the Plaintiff did not like his wife living in the flat and became quarrelsome. She would only allow him to live there.

11. Both parties heavily relied on their oral testimony in establishing their respective cases. However, the quality of that evidence has left much to be desired.

12. The final solution must lie in examining very closely and analyzing the evidence on whatever money that was available to the parties at the material times.

THE EVIDENCE REGARDING THE PLAINTIFF'S CASE

13. The Plaintiff's evidence is that she first came to Hong Kong in 1950 when she was about 21 years old. She was then given $110,000 in cash by her aunt who came from Vietnam. The money was what her father, a seaman and merchant travelling overseas, left with her aunt for her and her sister, $60,000 for her and $50,000 for her sister. Her sister was then only several years old and staying with her aunt in Vietnam. She had been keeping this sum at home. In about January 1976, she lent $43,000 in cash to her elder cousin, Mr. Tong Tak- fai("Mr. Tong"). Regarding the purchase of the property, she said that she took oney from her home to pay the deposit to which the Defendant did not contribute anything. According to the agreement for sale and purchase dated 16th July 1976, the deposit receipted was $20,000. In September and October 1976, Mr. Tong repaid $43,000 in cash to her which she used together with a sum of $15,000 she withdrew in cash from her savings account with Hang Seng Bank to purchase the property. If this story is true, then she had $58,000 in cash at about the time of the completion of the purchase.

14. There are however, a number of matters which contradict her story. The Plaintiff had sworn an affidavit in these proceedings on 8th December 1992, the relevant part of which reads:

"My said cousin borrowed a sum of HK$42,000.00 from me for his business venture. He repaid HK$20,000 to me in early October 1976. I also withdrew the sum of HK$15,000.00 from my said bank account to help making the payment. I paid the balance with money borrowed from my friend, Madam Lin Shui Hung."

15. Exhibit P2, the Plaintiff's savings account passbook issued by Hang Seng Bank, shows that the withdrawal of $15,000 from that account was on 4th October 1976. The completion date was 6th October 1976, two days later. According to the notation against the item of withdrawal, it was a transfer and not a cash withdrawal. However, the Plaintiff maintained that she was the only person who went to the bank to withdraw that sum, that the withdrawal was in cash, and that she did not tell any bank staff what the sum was for.

16. When asked in-chief why it was necessary to get $15,000 from the bank instead of from her money that she said was kept in her house, she said, "Because it was the distance. It was a long way to go home whilst the bank was close by, which was more convenient." If the Plaintiff was required to get the $15,000 of which the Defendant was short on the day when the completion took place and the Plaintiff realised the shortage either in the solicitors' office or in the street, the Plaintiff's explanation of convenience might make sense. However, the withdrawal was made on 4th October 1976 while the completion took place either on 5th or 6th October, and the Plaintiff's own admission was that the Defendant told her about the shortage at the Ling Nam flat.

17. Her evidence of the repayments made by Mr. Tong also conflicts with the case that she had mintained all along until she testified and with the evidence of Mr. Tong. She said in-chief and in cross-examination that of the loan of $43,000 she made to Mr. Tong, $20,000 was repaid in September 1976 and the balance of $23,000 was repaid in October 1976, thereby providing a link between both of those sums and her payment of the purchase money (or part thereof) for the property. However, her witness statement filed with the court and her said affidavit state clearly that Mr. Tong only repaid $20,000 in September 1976 and the balance was repaid at the end of 1976. Mr. Tong's evidence was that he repaid the balance of $23,000 at about Christmas 1976. He told me that he remembered the time well because it was Christmas time when he managed to sell his beautiful flowers.

18. The Plaintiff told me that she behaved in a silly way in keeping the cash of $110,000 that her aunt gave her at home under lock and key, whereas she kept her own earnings and savings in the bank. She also said that she had to go out to work, and as nobody knew that she had the cash, there was nothing risky about her keeping it at home. She was earning a few hundred dollars a menth at the time; and her main reason for living together with the Defendant under one roof was to save expenses on food. From exhibit P2, it is clear that she tarted to have the savings account with Hang Seng Bank in February 1973. Whether she had any bank account before that time does not detract from the fact that at the latest by February 1973, she knew how to use a bank. She admitted that keeping money in a bank served two purposes, to keep the money safe and also to earn interest. From February to 31st December 1973, her own earnings and savings in the savings account (in varying sums, but never more than $12,600) brought her interest totalling over $200. Yet she did not keep her cash of $110,000 in the bank to earn interest, to the tone of $2,000 a year, about four times her monthly earning. Her explanation was that she did not know about these things. She was, if I may say so, even tongue-in-cheek to tell me that she sometimes did not know figures in Arabic over 10,000 and that when the balance in her account was more than $10,000, she had to ask the bank staff how much there was in her account each time. She professed that she did not receive any schooling. However, she was able to read almost all of the Chinese haracters in the passbook for annotating the English notations used. She said she learned to read by listening to a teacher who gave lessons to the children in her flat, and that she was of average intelligence. It is most unlikely that she did not read Arabic figures over 10,000. Coupled with all the contradictions, there is hardly any difficulty in finding her an unreliable witness.

19. Nonetheless, from the entries in the passbook, it seems to me that she had other monies, not insubstantial in amount, kept in the same bank or other banks, for in addition to the occasional relatively large withdrawals by way of transfer (and not cash), namely, $12,500 on 25/9/73, $15,000 on 4/10/76, $30,880 on 16/3/78 and $5,000 on 25/5/78/, there is an entry dated 27th May 1978 when she deposited $35,000 into her account also by way of transfer. On 29th May 1978, long after the purchase of the property had been completed and about six months before the Plaintiff entered into an agreement to buy the Wei Chien flat, the credit balance shown in exhibit P2 was over $49,000.

20. The fact that the Plaintiff had other monies, in cash or kept in banks, also finds support in the evidence of Mr. Tong, whom I find to be a truthful witness. His evidence tallies with hers that she had made a loan of $43,000 to him, although his version of the last of the two repayments made by him differs from the Plaintiff's evidence by way of time. I accept his evidence that he received a loan of $43,000 from the Plaintiff and repaid her $20,000 in September or early October 1976, and $23,000 at about Christmas 1976. I find as a fact that the sum of $20,000 and the $15,000 withdrawn by the Plaintiff from the bank, but not the last repayment of $23,000, were available to the Plaintiff close to the time for completion of the purchase for her to make contribution towards the purchase money. The total available to the Plaintiff in early October 1976 was therefore $35,000, which was close to the $38,500 which she needed to pay for her half share in the purchase.

21. On balance, however, I do not accept that the Plaintiff paid all of the $20,000 for deposit for there is no documentary evidence in support and her evidence in various aspects is unsatisfactory and unreliable. For the same reasons, I also reject that she had lent $15,000 to the Defendant.

THE EVIDENCE REGARDING THE DEFENDANT'S CASE

22. The Defendant was born in 1944. He claimed that since his arrival in Hong Kong in 1962, he had been working as a decoration sub-contractor. He was also the sole proprietor of a dry noodle shop. He said that he used to work all the time and therefore earned a lot of money, such as making $3,000 a month in 1965 and $7,000 a month in 1976.

The commencement of the relationship

23. He first met the Plaintiff in 1975. After he started to live together with the Plaintiff in the Ling Nam flat, the Plaintiff's health was bad, suffering from goitre, and she was out of work. The Plaintiff had little money. He paid all the rents and household expenses for both of them.

The purchase of the property

24. The Defendant said it was the Plaintiff who came up with idea to buy the property, for it was inconvenient to live in the Ling Nam flat, with a lot of people sharing a lavatory.

25. The purchase of the property was effected with all his own money while the Plaintiff.did not contribute a cent. He paid $20,000 deposit and $4,000 commission, and eventually upon completion he paid a further sum of $57,000 by a cashier order and over $1,700 for other related expenses in cash. The money for the cashier order was transferred from his Hang Seng Bank savings account.

26. He allowed the property to be registered in the names of himself and the Plaintiff purely because of her suggestion. She told him that if the property was registered in their names, in case any accident or injury should happen to him in his work as a decorator, she would be able to sell it and send the money to his mother who was then in China.

27. He denied that the alleged signature of his on exhibit P3, the document dated 2nd July 1981, was his. The purport of exhibit P3 is that he and the Plaintiff enjoyed all the benefit in the property and he authorized the Plaintiff to deal with it including the power to let and sell it. The Defendant denied that he had ever seen that exhibit or a copy thereof. However, no evidence of any handwriting expert was adduced to help support the Defendant's denial. On the other hand, the Plaintiff said she saw the Defendant sign. I paid particular attention to his demeanour when the exhibit or a copy of it was shown to him twice. Each time, he did not even care to look at the document or his signature on it before he said that he had never seen it. It seemed to me that he was afraid of even looking at the document openly, although after he gave his answers he passed peeks at it. When he denied that he had said in his witness statement filed with the court on 4th October 1993 that he paid for the rent (of the Wei Chien flat), he further denied that the signature at the end of the statement was his. I do not believe him. My impression is that he simply told me any lies he wished whenever it suited him. I find as a fact that he did sign exhibit P3.

28. On the alleged inducement by the Plaintiff to get him agree to have the property registered in both of their names, the Defendant's story is even more incredible. He said that on the day following the inspection of the property which he found to be satisfactory, he went to pay the deposit of $20,000 and signed the agreement for sale and purchase. He also paid $4,000 on commission. He instructed Messrs. Deacons, solicitors, to handle the transaction. He did not tell Deacons about the names that should be used for registration as the purchasers when he paid the deposit. He went on to say that he did not on completion date tell Deacons about the arrangement of having the property registered in both names either. However, when taxed that he saw the Plaintiff sign the assignment, he blurted that the lawyer explain d to him that should anything happen to one of them, the Plaintiff could sell the property and take the proceeds to his mother in China. When the matter was probed further, he switched to say that he never discussed the problem with his lawyer. In the next breath, he agreed that the lawyer mentioned that the Plaintiff and he were each one half owner and only a half of the proceeds would be given to his mother. He added that the lawyer said that it was the way it had to be done. The first thing he uttered when the cross-examination resumed the next morning, howev r, was to deny that the lawyer gave him any advice when be purchased the property. I do not believe him at all. As any lawyer knows, if the purchase money of a property is provided by one of two co-owners, unless they are man and wife, there are a number of simple ways to give effect to the arrangement the Defendant allegedly wished to make without merely putting both names in the assignment as tenants in common in equal shares. I do not believe any lawyer in Deacons would have advised the him in the way as he narrated.

29. The Defendant also tried to blame the Plaintiff for the absence of documentary evidence of his payments for the purchase of the property. I will deal with this later.

The loan of $130.00

(a) The need for the loan

30. The Plaintiff was the one who raised the idea of her buying the Wei Chien flat. At the time, the Defendant knew that the Plaintiff had been out of work and she had little money. However, as he expected to live in the flat which would be convenient for his work, he agreed to lend her $130,000, and it was lent in 1978. Yet he did not know the price of that flat was $144,000 although he agreed that the loan would be about 90% of the price. He did not enquire with the Plaintiff about the price because it did not concern him as it was the Plaintiff who was buying the flat. It did not matter to him whether the Plaintiff would repay him or would be able to do so for he was going to live there, although he agreed that $130,000 was a lot of money compared with his financial status at the time.

(b) The IOUs

31. The Defendant said that the loan of $130,000 was made in 3 instalments of $50,000, $50,000 and $30,000 for the Plaintiff to buy the Wei Chien flat. He told me that there was a note or document in the nature of an IOU signed by the Plaintiff evidencing the first instalment, and another one evidencing the second instalment, and upon the last instalment being paid, the Plaintiff signed a general IOU in exchange for the first two IOUs. This last IOU was kept amongst his clothes in his drawer, and one day he discovered the cloth s had been disturbed and the Plaintiff told him that she had taken his clothes for sun-baking and she might have dropped the IOU. The Plaintiff promised to sign another note of the same effect but she did not keep her promise.

32. He considered the first, second and last IOUs important documents, but he merely kept them in his drawer without a lock, and did not use his expertise as a decorator to make any lock for that drawer. After the Plaintiff gave him excuses for not issuing him another IOU in place of the lost one, he never asked her again. He never chased the Plaintiff for repayment either. Although the Plaintiff did not issue him another IOU after the last one was lost, he still trusted her.

(c) The Defendant's bank accounts, passbooks and businesses

33. The Defendant tried to explain the absence of any documentary evidence of the loan and his payments for the purchase of the property. He said he had two savings accounts when he started to live with the Plaintiff. When that relationship commenced, he immediately handed over his bank passbooks for her to keep for him, one issued by Hang Seng Bank and the other by the Hongkong & Shanghai Bank ("HK Bank"). When he made the purchase of the property, he withdrew money from both of his savings accounts. He and the Plaintiff went together to get the money.

34. The bank passbooks ceased to be kept by the Plaintiff as from the time he moved out of the Wei Chien flat in 1991. He said that the Plaintiff returned to him all his passbooks when he moved out of the flat. However, they were limited to those new (current) ones. For the previous passbooks, she did not return any to him and said that she had destroyed those books since money had been fully withdrawn from them.

35. He told me that he had also a current account with HK Bank which was opened after he had known the Plaintiff and had just bought the property. He opened that account for his business as a decoration sub-contractor. The account was closed after he moved out of the Wei Chien flat, because he was getting old and would not take up any further decoration contract. There was no business registration of his business although he had a chop bearing the name "Wong Sai, Decoration Work". Despite his success in this business, he had never paid any profits tax. He said he was also the sole proprietor of the dry noodle shop, but he only operated it for a year because business was not good. The cessation of that business took place many years before he bought the property. When he dealt with these issues in cross-examination, his evidence was not satisfactory. While he told me that he operated the decoration business very successfully throughout the years, he said that that business ceased after he left the Wei Chien flat because he was getting old, and yet he was still doing decoration work as a casual worker earning merely enough to make ends meet and he had by then a much larger and young family to support. I do not believe that he owned the dry noodle shop or that he operated the decoration sub- contractor business as successfully as he would like me to believe.

36. If, as the Defendant said, he was running his decoration sub-contractor business and very successfully, I do not think he would have handed all his bank account passbooks over to the Plaintiff for her to keep, for that would be imposing inconvenience on himself in depositing and withdrawing money for the running of his business. He further told me that he did not know and was not sure whether the Plaintiff had to go out of the one room in which they were living in the Ling Nam flat or the flat itself to get the passbooks when he asked her to.

37. The Defendant was very evasive in dealing with his businesses, bank accounts and passbooks. I do not attach any credence to his evidence.

(d) The household expenses

38. The Defendant told me that before moving into the Ling Nam flat with the Plaintiff, he was occupying a bed space and incurred a monthly sum of a little over $200 on his living expenditure. After he lived together with the Plaintiff, he gave her $2,000 a month. This is hard to believe. He did not give any particular reason why he was willing to spend that vast amount of money, nearly 10 times his former expenditure, for living with the Plaintiff under one roof. His stated purpose was merely that the Plaintiff and he could look after each other and the Plaintiff did all the household work. Even if he was making $3,000 a month at that time, which I entertain grave doubts, he would be squandering his hard-earned money for no acceptable good reason. Nor is his story consistent with the only monetary advantage of their living together which was that they could save some expenses.

39. When the Plaintiff bought the Wei Chien flat, both of them moved in. The Plaintiff did all the household work and the Defendant paid all household expenses including food. At first the Defendant paid her $3,000 for such expenses and the sum was increased to $4,500 and then to $5,000 in 1991 before he moved out. As I do not believe that the Defendant paid all the household expenses while the parties were living in the Ling Nam flat, I also reject his story about his payments to the Plaintiff for household expenses when they were in the Wei Chien flat.

40. Apart from the fact that the Defendant's story about the loan of $130,000 is unsupported by any document and inherently improbable, he was evasive in demeanour when telling me the story. I do not believe him.

The break-up

41. The Defendant got married in China in 1988. In 1991, his wife came to Hong Kong and started to live in the Wei Chien flat. The relationship between the Plaintiff and the couple was bad eversince that time. Also his son caused the Plaintiff some trouble.

42. In about April 1991, he and his wife were locked out of the Wei Chien flat and when he tried to prise open the door, the Plaintiff called the Police who advised him that he must move out as the flat was not his. He was allowed to enter and stay in the flat for a couple of days to remove his things. However, he did not mention to the Police anything about the loan made by him to the Plaintiff or the IOU or that all household expenses had been paid by him. He did not mention the loan to the Police because he had no evidence to substantiate the loan. Neither did he try to contact a lawyer to recover the loan. He first raised the loan in his counterclaim because, he explained, the Plaintiff sued him and he had to tell the whole story.

The rents from the property

(a) Before the break-up

43. After the property was bought, the Plaintiff kept all the title documents and that still remains the case. She suggested to let the property because as the Defendant was in the decoration trade and if sometimes he was out of job, he could make use of the rent and that the rent could be saved so that he could make use of it in the future when he got married. The Plaintiff handled all tenancy matters and the rent.

44. The Defendant's story is hard to believe. He told me that while the Plaintiff let the property and kept the rent, he never ceased to provide for her financially month after month. Strangely enough, he never asked her about the rents so allegedly accumulated by her, nor did he care where she kept the rents. More bizarre still, when he went to China in 1988 to get married, he did not ask her to give him the rents. In fact, he said that he did not invite her to his wedding, nor indeed did he tell her about it.

45. On the balance of probabilities, I accept what the Plaintiff told me which is that the Defendant expressly or tacitly agreed that the rents were to be applied to defray their household expenses and rent for the Ling Nam flat and later the household expenses when they lived in the Wei Chien flat.

(b) After the break-up

46. The Defendant left the Wei Chien flat in about April 1991. In September 1991, very soon after the tenant of the property had vacated, and after the Plaintiff had incurred $13,200 in decorating it for letting, the Defendant broke in and started to live there with his young family. The Plaintiff called the police who would not assist. The Defendant denied the Plaintiff access for the reason that he was the sole owner, and he maintained this position even before me.

47. All in all, I find the Defendant a most evasive, careless and unreliable witness, and I reject his testimony relating to the issues material to his claims entirely. Nor do I attach much weight to the Plaintiff's evidence save that in respect of the household expenses, the rents and the non-existence of the $130,000 loan.

THE DOCUMENTARY EVIDENCE

The sharing ratio

48. Although there is hardly any document which indicates the amount of contribution made by the parties towards the purchase money of the property, all the title documents show clearly that they are tenants in common in equal shares. Exhibit P3, albeit the Plaintiff did not remember who its author was, is a document made at the behest of the Plaintiff and apparently for her benefit. She is as much bound by it as the Defendant is. By his signature on this document, the Defendant admitted that he and she had all the benefit in the property. No sharing bei g mentioned notwithstanding, I am of the view that the contents of this exhibit are reasonably consistent with the fact that each of the parties had an equal interest in the property. Moreover, the sharing of interest in the property as stated in the title documents, being half and half, had never been challenged by the parties for over fifteen years since October 1976 until the commencement of this action. If the Defendant is truthful in telling me that he paid all the purchase money, he would have refused to sign exhibit P3, and would also have taken some steps in asserting his full interest in the property much earlier, say, when the Plaintiff asked the assistance of the Police to try to evict him from the

property or shortly thereafter. On the other hand, if the Plaintiff had a larger interest in the property than what was stated in the title documents, she would have ensured that exhibit P3 be written differently, or she would have produced whatever receipts she had for the payment at least of the deposit in cash.

49. The Plaintiff has failed in her oral evidence to satisfy me on a balance of probabilities that she has more than one half interest in the property. Nor has she been able to satisfy me that she had spent $15,000 more on the property than her half share of the purchase money, or indeed that she lent $15,000 to the Defendant. The Defendant's oral testimony relating to money matters is, if not more, similarly unreliable and unbelievable. I do not believethat he ully paid the $20,000 deposit or $4,000 for commission. I reject altogether his story that he paid for the whole of the purchase money, and I do not accept that he had at any time lent $130,000 to the Plaintiff as alleged or at all.

50. Neither party has been able to satisfy me that the sharing ratio in respect of the property is other than that stated in the title documents, which they had accepted all along until they broke up. I find as a fact that they are equal co- owners.

COMPENSATION FOR OUSTER

51. The Plaintiff claims damages for being ousted by the Defendant from the property since September 1991.

52. As I have held, both parties are tenants in common in equal shares. Owners in common have a unity of possession. Where two or more persons are concurrent owners, each ordinarily has both the possession and the right to possession of the whole contemporaneously with the others. See 5 Hals., 4th Ed., paras. 1117 and 1145.

53. In Snell's Equity, 29th Ed., p. 639, the learned editors state the law on the relevant points succinctly:

"Where land is held by several co-tenants they are all, as between themselves, entitled to possession of the whole. Hence there is no remedy in trespass against an occupying co-owner unless he has ousted or excluded the other or others. There is no exclusion if one merely stays away, allowing the other to occupy a house or take all the profits whether by way of rents, crops, or minerals. Where one ousts the other or others, he will be liable for an occupation rent. Where there is no ouster there is no such liability in the absence of any contract to pay rent or other assumption of liability. If a co-tenant was dissatisfied with the situation, his remedy was to apply to the court for an order compelling partition."

At p. 641, the learned editors go on:

"If one party ousts the other either directly or constructively as a result of violence or other intolerable behaviour, the party remaining will be liable for an occupation rent."

In Dennis v. McDonald [1982] Fam. 63, where the parties, a man and a woman, cohabited in a dwelling house purchased by them in equal shares, it was held that the Plaintiff as a tenant in common who had been excluded from occupation of the house by the Defendant as the other tenant in common was entitled to compensation. At p. 80A of the report, Sir John Arnold P. said:

"The judge came to the conclusion that, in those circumstances, the case was equivalent to what, in the reported cases, is called an 'ouster' by one tenant in common of another and it is plain on the authorities that in such a case there is an exception from the general rule that each tenant in common has the right of occupation of the property in respect of which the tenancy subsists, while if one of them occupies that property to the exclusion of the other that does not give rise to any right of compensation. In the exceptional case of an ouster it plainly, in my view, does."

54. Although the learned editors of Snell at p. 641 criticised the statement of the general rule made by the learned judge as too restrictive, I do not need to decide the point on the facts of this case. The Defendant has maintained that he has excluded the Plaintiff from entry into the property eversince his occupation in September 1991 on the alleged justification that he is the sole own r. As I find the parties being equal co-owners, the exclusion is totally unjustified. In the circumstances, compensation must be paid by him to the Plaintiff.

55. The nature of the compensation is not damages for trespass, for all tenants in common have unity of possession. The one who occupies is entitled to possession as any other. Nor should it properly be damages for ouster. In Dennis v. McDonald, supra, at p. 80G-H, the learned judge continued:

"The nature of the payment is that of some sort of compensation to be paid by a trustee, for they are trustees for each other ..., to a beneficiary (for they are both beneficiaries) for an exclusive enjoyment of the trust property attributable to such an action, namely, that of ouster, on the part of the paying party as is inconsistent with the discharge in due order of the trust."

56. Not much evidence has been adduced on how the compensation is to be assessed. The only evidence is the amount of rent paid by the tenant of the property in August 1991, which was $4,200 a month. Although it is a commonly known fact that property prices and rents have spiraled upwards since that time, no statistics or evidence as to the rate have been provided. The Plaintiff also spent $13,200 to decorate the property with the intent to let it to a new tenant. Th Defendant must have enjoyed the decoration, but if compensation is to be based on the rent paid by the immediately preceding tenant, the decoration expenses would have been spent deservedly. In all the circumstances, I assess the amount of $2,100 a month being the compensation to which the Plaintiff is entitled from the Defendant, to run from 1st September 1991 up to the date the Defendant delivers vacant possession for the purpose of the sale of the property as I will order.

CONCLUSIONS

57. I give judgment for the Plaintiff. The property forms one small share in a building and there is little doubt that it cannot be physically partitioned. In the exercise of my power under s. 6 of the Partition Ordinance, I make an order for sale of the property with vacant possession. I also order that the Defendant do deliver up vacant possession for the purpose of the sale.

58. The proceeds of sale, less all necessary sale charges, legal expenses and other outgoings, including rates and Crown rent owed to the Government, be paid into court and each party is entitled to apply for one half of them being paid out, subject to a deduction from the Defendant's share for the compensation to be paid to the Plaintiff. The compensation is at $2,100 a month, for the period from 1st September 1991 till the time when vacant possession is delivered up by the Defendant.

59. The deadline for the delivery of possession, the procedure for the sale, whether it be by auction or private contract, who shall have the conduct of the sale, whether the parties can participate in bidding, as well as the valuation of the property, etc. be dealt with by a Master if the parties cannot agree.

60. I dismiss the Defendant's counterclaim in its entirety. I reject the Plaintiff's claim that she is entitled to more than one half of interest in the property, and I further reject her claim to the return of the alleged $15,000. I make an order nisi that the Plaintiff do have her costs in her claim and in the counterclaim. The parties' respective costs be taxed in accordance with the Legal Aid regulations. Each party do have liberty to apply.