FAN SIU NGAN v. YEUNG KIN YIP

HCA10488/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.10488 OF 1997

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J U D G M E N T

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1. The plaintiff, Madam Fan Siu Ngan, is a widow. Her husband died in 1971 and left her with a daughter aged six and a son aged four. She supported herself and her children by working in factories and hawking part-time. She lived in a public housing unit at Yau Tong.

2. On 9 January 1985, a Home Ownership Scheme flat at Flat 6, 22nd Floor, Fai Shing House, May Shing Court, 32-36 Mei Tin Road, Shatin ("the Property") was purchased in the name of the plaintiff. It cost $128,100. The Property was mortgaged to the Hang Seng Finance Company, again in the name of the plaintiff, to secure a loan to her of $100,000. The balance was paid in cash. The loan was paid off and the mortgage redeemed in March 1995.

3. Some time in the mid 1970s, the plaintiff met the defendant, Mr Yeung Kin Yip. For a time in the 1980s, they operated a fabric hawking stall together. At some stage, they do not agree when, they embarked on a relationship which continued until 1 October 1997. The course and the nature of their relationship, both commercial and personal, is in dispute.

4. It is agreed that the defendant lived at the Property from 1991 until 1 October 1997. The plaintiff claims that he was her lodger, occupying a room in the Property for which he paid her $1,200 per month. She now claims for vacant possession, a declaration that the defendant has no interest, equitable or otherwise, in the Property or at all and other reliefs.

5. The defendant, however, claims that he cohabited with the plaintiff since 1975. They lived together at the Property from its purchase until April 1988. They agreed to buy the Property together. Although the Property was bought in her sole name, the initial cash for the purchase came from their joint business, and most of the mortgage repayments were made from the joint business or later by him personally. He claims a declaration that the Property is held by the plaintiff on trust for both of them and for consequential reliefs, as well as damages in respect of his having been kept out of the Property since 1997 and delivery of household and personal effects after he left there.

Evidence

6. The plaintiff says that she is now aged 53 years. She has a daughter aged 34 and a son aged 32. Her husband died in 1971. In that year, she went to work in a factory. Then in about 1975, while continuing to work in the factory, she worked as a hawker in the evenings, three or four times a week. She continued with this part-time work until 1980. It was while she was doing this work that she met the defendant, in about 1976.

7. In 1984 she went into co-operation with the defendant who was selling fabric at his hawker stall, named Yeung Lui Kee. She contributed some capital. He only contributed some small sums. This, she says went on until 1986. In 1987 she was employed by the defendant at his stall for about nine months, and then in August 1988 she returned to factory work.

8. The plaintiff says that when she was working in co-operation with the defendant, she was responsible for selling things at the stall. They had an account book and she would enter every item, and in the evening account for the money to the defendant. They shared the profits equally. She was then making about $2,000 per month.

9. In 1984 it was decided to buy the Property. It was in the plaintiff's own name. The plaintiff herself made all the initial payments in connection with the purchase. She made the initial down payments by cashier orders, paid for with money from her own bank account or accounts. She paid other expenses such a stamp duty and administrative fees in cash.

10. The plaintiff says that she made all the mortgage repayments herself in the original period. The payments were made by cash, or cash cheque. Sometimes they would be paid by cheque drawn on her daughter's account. Her children were contributing to household expenses and sometimes, instead of paying cash, one of them would make a mortgage repayment.

11. The plaintiff said that in 1991 the defendant, who was a good friend of hers, told her that he was not able to pay the rent for his flat in the Po Hing Building, Sham Shui Po. She asked him to come and stay at the Property. She let him live in one of the two rooms. She stayed in the other. At that stage, her son had married and moved out, and her daughter was also not living at the Property. The defendant was asked to pay $1,200 or $1,300 per month for his meals, because he was eating with the plaintiff. Later on, because it was not convenient for her to pay the mortgage, and the mortgage payments were about equivalent to what he had to pay for his meals, she asked him to go and pay the money to the mortgage account for her. This he did. She would give him the payment demand slip and he would take it and deposit the money into the mortgage account.

12. All along, she says, there was no understanding that these contributions would entitle the plaintiff to any share in the Property. He was simply paying for his meals. After the mortgage was paid up, the plaintiff continued to contribute for his meals, and from April 1995 he paid $1,500 per month.

13. The daughter moved back into the Property in about 1993 and at that stage, the plaintiff asked the defendant to move out. He said that it would be difficult for him to make a living if he moved out, so since they were good friends, she let him stay.

14. Trouble began in 1997. The plaintiff stopped paying in July of that year. He was still living in his room, but the plaintiff did not cook for or eat with him and they had a lot of arguments. On one occasion he assaulted her, pushed her out of the door and kicked her when she fell down. This was on 1 October 1997. She went to hospital and after that the daughter, who was by then married, took the plaintiff to her home. The next day she found that the defendant had changed the lock and damaged the iron grille. She could not get in. The police helped her to get in. The defendant moved away and did not come back. However, he left some property in the flat.

15. When cross-examined, the plaintiff said that she wanted the defendant to move out in 1997 because he had become particularly keen on gambling. She was afraid of trouble with loan sharks, though in fact there was never any such trouble. She asked him to move out, and got a solicitor to write to him on 22 July 1997. The defendant consulted a solicitor who wrote back on his behalf, saying that he had contributed to the down payment at the time of the purchase of the Property, and had made monthly instalments for repayment of the mortgage for some seven years. He claimed an equitable interest.

16. The plaintiff complained that at this time the defendant was competing with her for the use of the kitchen, and keeping her awake at night by moving about and sitting in the toilet, reading the newspaper in the middle of the night. She was by then diabetic and she needed to go to the toilet often.

17. She stopped accepting his money in July 1997 because she was no longer cooking for him. She said that she would not accept his money because of this. So he was getting free lodgings.

18. After the defendant had moved out, he came back at some point to get his video camera and some tapes. In fact, these were played in court. They show the wedding of the plaintiff's daughter, her honeymoon trip and other pleasure trips which the parties made together.

19. The plaintiff said that she had come to know the defendant in about 1976 when she was hawking. They became friends. In about 1984 he asked her to go into business with him. This she did. She gave up her factory job. She used to put up money to buy goods, sometimes $2,000 or some times $3,000. There was no initial capital down payment. She became the person in charge of the stall and collected all the proceeds. This went on until about the end of 1986. During this time, she agreed that she used to spend nights with the defendant at his flat in the Po Hing Building. When they bought goods, they would have to process them and put them in order. They worked there well into the night. The defendant had his own room and bed in that flat. The plaintiff used to sleep on the work table. He never offered her the bed.

20. She admitted that some mutual friends of herself and the defendant used to call her Mrs Yeung. She just ignored them. She never bothered to explain to them that she was not in fact the wife of the defendant.

21. The plaintiff agreed that she and the defendant used to go on pleasure trips together. They made various trips to the Mainland, with other family members of the plaintiff. In 1993, the plaintiff and the defendant went to the defendant's home village to his nephew's wedding.

22. The plaintiff's daughter married in December 1996. The defendant made a videotape of the wedding. It begins with bride's hair-combing ceremony before the wedding. There are various scenes showing the defendant in the family groups posed for the photographs, sitting next to the plaintiff. The daughter served the "bride's tea" to her mother and the defendant together. The defendant said that there was no significance in this because if the defendant had been treated as her husband, he would have been wearing a badge to show that he was the father of the bride. However, various members of the family all went with the daughter and her new husband on the honeymoon trip to Hainan Island, and the defendant went with them as well. Some of the video footage was made there.

23. The plaintiff was shown a list of the mortgage payments. It appears that the first 38 were all paid by cash. She denied that that these had been paid from the proceeds of the hawker joint venture. The next 33 payments were all made by cheque, and apparently these were paid either by the daughter or the son. The daughter had an office messenger that she could send to the bank to make the payment. She moved out in 1991. She was at that stage still contributing $1,000 per month.

24. Of the rest of the payments, from 2 July 1991 until 2 March 1995, all but three were paid by cheque drawn on the defendant's bank account. The plaintiff maintained that she had simply asked him to the deposit the money used to pay for his meals towards the mortgage account. He would take the demand note and make the payment to the bank.

25. The plaintiff denied that that she had started cohabiting with the defendant in about 1975. It was put to her that they used to spend four nights per week at her flat at Yau Tong, but she denied it. At that stage, the children were living with the plaintiff's elder sister. They came back to stay with her at the Yau Tong flat in about 1981 or 1982. However, she said that she only went to work in the defendant's business in 1984. By this time all of the children had started work.

26. The plaintiff denied that in 1984 she had asked the defendant if he could pay the mortgage on the new flat, which should be registered in joint names. She did agree that they had visited the building site together, to look at the demonstration units. She also denied that all the down payment for the flat and the earlier mortgage payments had come out of the takings of the joint business.

27. It was put to the plaintiff that the defendant had lived with her at the Property until he moved out in April 1988 because of a quarrel with the daughter, and that after this their partnership had also ended. The plaintiff agreed that there had been a quarrel in April 1988. She said that the plaintiff, who had come to the Property for a meal, had switched off the television. This provoked the anger of the daughter, who said that the Property belonged to "surname Lung" and not to the defendant. The defendant left.

28. The next day the plaintiff went to the hawker stall and they broke up the partnership. She was very angry with him but after a few months they made up. They maintained their friendship and sometimes they had tea together and went on trips to the Mainland. She used to visit him at his flat in the Po Hing Building but she never spent the night there.

29. As to their relationship, it was put to the plaintiff that the parties maintained an intimate sexual relationship since 1975. In effect they lived as husband and wife. She denied this though she admitted that at a later stage than 1975 they had had a "non-platonic" or sexual relationship, but just as friends. She admitted that the parties' mutual friend Mr Ho used to call her "Brother's wife".

30. The plaintiff's daughter, Lung Mei Fung, gave evidence. She said that in the early period of the mortgage, she had made some of the mortgage payments by cheque, instead of making her usual monthly contribution for family expenditure in cash. In 1991 she moved out in lived at City One, Shatin until May 1993, when her lease there expired, and then she moved back.

31. When cross-examined, the daughter agreed that she used to call the defendant "Uncle". However she denied having served "bride's tea" to the defendant and her mother together at her wedding. Nor had she ever heard anyone call her mother Mrs Yeung. She said that the defendant had never spent the night at the family home at Yau Tong. She did however know that the mother had spent nights at the defendant's flat at the Po Hing Building in Sham Shui Po.

32. She said that the dispute in 1988 was about the television. The defendant, who was a visitor to the Property, had switched it off. She complained. He had been asserting himself in the Property before, as if he should be in charge there. This time, he used foul language and wanted to assault her so she drove him out of the flat.

33. The defendant's evidence was that he came to know the plaintiff through various mutual friends in 1974. They became friends and they started a sexual relationship in 1975. He knew that it was in 1975, because it was before the death of Chairman Mao. In those days, he would spend the night with the plaintiff at her flat in Yau Tong, or she would spend the night with him in his flat at the Po Hing Building. At that stage the children were staying with the plaintiff's elder sister. When they came home in the holidays, he would sleep with the plaintiff in the lower bunk and the children would sleep in the upper bunk. Both of them called him "Uncle".

34. He said that the plaintiff had been working as a part-time hawker in 1974 but this only lasted a short time. She had rented a place with her partners in Shek Kip Mei, but when this business came to an end in late 1974 ,she had returned to factory work, and he had helped her to move her sewing machines to Yau Tong. In 1977 and 78 she had helped him in his hawker stall. Then she went back to the factory. She came out again to help him in about 1983 or 84. At this stage they were not in partnership. The plaintiff was just helping the defendant.

35. In autumn 1984, they discussed the purchase of a Home Ownership Scheme flat. The plaintiff said that she had priority for the Scheme because she had a public housing tenancy. They went to look at a flat in May Shing Court. She asked if he could afford the mortgage repayments of about $1,000 per month. He said that he could but he would not be free to undergo the formalities, so these would be left to her. The flat was to belong to both the parties together. It was not put in joint names because he was afraid that the formalities would be troublesome. They had already been cohabiting for nearly 10 years.

36. At that stage the plaintiff did not have any source of income apart from the hawker stall. All the down payments, he says, came from the proceeds of the stall. So did the cost of the materials for the declaration of the flat. The plaintiff's younger sister's husband and his friends did the work.

37. The parties both moved into the Property. They occupied one room. The daughter and the son occupied the other. They lived together in this way until April 1998, when the plaintiff had an argument with the daughter about the television. He switched it off. She asked why. He said he thought she was not watching. She said that the place belonged to "surname Lung" and if he did not like it he could move out. So he went back onto his own flat in the Po Hing Building. This was against the wishes of the plaintiff who wanted him just to tolerate her grown-up daughter. He asked the plaintiff to hand back the accounts for the business and she did so. She said that she would not help him in his business any more.

38. After this breach, however, the parties made up their quarrel. The plaintiff would then spend two or three nights a week with the defendant at the Po Hing Building.

39. The plaintiff's son married in 1989 and had a child in 1990, and then moved out of the Property. The daughter moved out in 1991. The plaintiff asked the defendant to move into the Property, so he gave up his own tenancy in the Po Hing Building, and moved in September or October 91. He then took over the mortgage payments.

40. At this stage because there were two rooms in the Property, the plaintiff and the defendant took one room each. Occasionally they slept together. They still had a sexual relationship.

41. The defendant said that he paid all the mortgage repayments up until the mortgage was redeemed in 1995. He paid 43 instalments, all by cheque drawn on his bank account. He was also contributing $1,000 per month up to March 1995, and the utility bills were all paid out of his money. After the daughter moved back to the Property in 1993, she used to arrange for the actual payment of the bills by her office messenger. After the mortgage was paid off, the plaintiff increased his monthly household expenses contribution to $1500. After the daughter moved in, she had one bedroom to herself. The plaintiff and the defendant slept together in the other bedroom.

42. The parties went together on the various pleasure trips. The defendant was in the family photographs of the wedding. He was treated a member of the family because he had been cohabiting with the plaintiff so long. He was served "bride's tea" along with the plaintiff.

43. After the wedding, the daughter had moved out. The plaintiff then took to sleeping alone, in the single bed that the daughter had used; and the defendant went on sleeping in the double bed.

44. The parties' relationship worsened in 1997 because he used to sit up and read the paper on the toilet during the night. There were other problems. The plaintiff said that she "disliked the feel of an old man". She was indeed diabetic. Her temperament had changed after she had been in hospital in the summer of 1997 for high blood pressure and diabetes. Some time in July, she had set only three places at dinner, for herself, the daughter and the daughter's husband, but not for him. From then on, he had stopped paying his household contributions, though he went on paying the utility bills. The exchange of solicitors' letters followed. At some point she offered him $30,000 to move out, but he would not.

45. Then on 1 October 1997, there was an argument, and the plaintiff tried to eject him from the Property. In doing so, she stumbled and fell. He later admitted that he had kicked her when she was down. The police were called, and he was taken away. When he got home from the police station, he found himself locked out; so he got a locksmith to break in for him. He later went out, and padlocked the iron grille, but when he came back he found that the plaintiff had got the police to cut off the padlock and let her in. He was taken to the police station again. When he returned, he says, the plaintiff was undecided as to whether or not to let him in, but the daughter threw out his official documents through the grille, so he went away. He only returned once after that, to get his video camera. He moved into rented premises, and was later allocated a public housing flat. He gave evidence of what he had paid for rent and other expenses.

46. Cross-examined, the defendant said that for the first two years (1983-84) when the plaintiff was helping at the stall, they had kept accounts in an accounts book and divided the profits equally. However, by the time the Property was bought, there was no book, and no accounts were kept. She was put in charge of all the money for the two of them.

47. The defendant's stall had been making a profit of $7,000 or $8,000 per month before the plaintiff came to help him. After that, the profits had increased to about $10,000 per month. It appears, however, that there was some discrepancy between the defendant's evidence of profits and what he had put in his statement. He said that he had no idea of what the plaintiff's financial arrangements were. He never saw her bank accounts. He did not know if she had other sources of income and he did not know how much the children were contributing to the household, after they all moved into the Property.

48. Under cross-examination, some discrepancies came to light. Generally he was not well able to explain himself about the money matters. He said that the parties had kept their accounts in a book for the first two years. It appears that he was referring to 1983-84; he said that by the time the Property was bought, they had stopped using the accounts book. This was inconsistent with his statement in which he had said that the partnership started in 1980; but it was not inconsistent with what he had said in examination in chief. However, he had earlier said that when the parties quarrelled in April 1988, he asked her for his accounts and the money from the stall, and she gave them to him. What accounts he meant is not clear.

49. He was constrained to admit that he had lied about his age in applying for an identity card, when he first came to Hong Kong. There were also some discrepancies in what he said about another hawker stall which had been licensed in his name between 1980 and 1988.

50. The defendant called one witness, Mr Ho Yiu Wing. He is the defendant's cousin. He said that he had come to Hong Kong in 1981. At that time he had gone to the defendant's flat in the Po Hing Building. The defendant told him that he used it for business and residence. He used to eat with the plaintiff and the defendant there sometimes. She cooked the meal and appeared to be living there. There was one room, and one bed. He understood that they were husband and wife. They had moved together to the Property in 1983, and after that his contact with them had become more infrequent; but he had been there a couple of times.

Evaluation

51. This is not a case in which one can confidently say that one party is telling the whole, unvarnished truth and the other is not. There are unlikely aspects to some parts of the evidence of both of them.

52. The plaintiff has clearly, from the outset, been seeking to show her relationship with the defendant as being much less close than it actually was. It is obvious that the relationship was a close one, over a long period. That is shown by the various trips which the parties took, not just on their own but with the plaintiff's family members; and in particular the daughter's honeymoon trip and the trip to the wedding at the defendant's home village. It is also shown by the videotapes of the wedding. All this suggests that the parties were accepted as a couple by the rest of the plaintiff's family.

53. The plaintiff sought to paint a picture of the defendant as simply a friend, who had later become her lodger. However, ultimately she did admit that they had had a "non-platonic" or sexual relationship, though just as friends. They spent nights together at the defendant's flat; even on her evidence this was a regular occurrence. I did not find her evidence of sleeping on the table at all convincing.

54. I have some difficulty in seeing why, if the defendant was merely a lodger from 1991 onwards, the plaintiff should have asked him to make the mortgage payments. Granted that she says that these payments simply represented money for his meals, if he was just a lodger, and, as she describes it, a lodger who got his lodgings free and only had to pay for his board, the mortgage was no business of his anyway. I am not particularly impressed with arguments about the relative convenience of one party or the other's being able to get to the bank. Money transfers are very easy. Bank branches are everywhere. Most ordinary Hong Kong people are quite sophisticated in their knowledge of money and how to manage it through the banks.

55. The defendant, although he was less firm on the financial aspects of the relationship, spontaneously gave details of various things which had happened in the past, such as his removal of the plaintiff's sewing machines from her place of business to Yau Tong in 1975, the operation and hospital admissions she had had, and so on. These all had the ring of truth. On the other hand, some of what he said about the family's sleeping arrangements at Yau Tong seems unlikely, given the ages of the children when they moved back to the plaintiff's home in about 1981. It would no doubt have been more convenient for the parties to spend their time together at the defendant's flat and not spend nights together at Yau Tong at all.

56. There is also the admission of the plaintiff that some acquaintances called her "Mrs Yeung" and the evidence of Mr Ho, who appeared to me to be a credible witness. He did not give any impression of showing any particular partiality towards his cousin.

57. It is not in dispute that the defendant and the plaintiff's daughter quarrelled in April 1988. This was followed by a complete rupture, for a time, of relations between the parties. Curiously enough although the plaintiff says that at this time she was a salaried employee of the defendant, when it was put to her that she had given money back to him and settled accounts with him, she admitted it. It is rather difficult to see what accounts had to be settled if she was merely a salaried employee.

58. It is perhaps a little difficult to understand why the would simply move out, after a quarrel with the daughter. However, he says that he felt that even if he tried to stay on, it would be no good for him. He also said that he was disappointed and depressed. I can accept that he could have been emotionally affected by the quarrel. He is obviously not an insensitive man. He was sufficiently affected in 1997 to assault the plaintiff. He said that his mood was low after he was ultimately made to leave the Property in 1997 and that was why he ceased doing business. In any event, it is not unknown even for a lawfully married man to leave a house, registered in his own name, following a domestic dispute.

59. It is more difficult to see why, if the defendant was just a visitor, this quarrel would have prompted the parties to end their business relationship. There are some rather vague references to trouble before this incident, but nothing very clear. That this quarrel had such results supports the defendant's position that there was a much closer relationship than that admitted by the plaintiff.

60. As appears from the helpful chart, Exhibit D3, and the various documents in the bundle, all the mortgage repayments were made by cash from 3 March 1985 to 4 August 1988. This would cover the period when the defendant says he was residing at the Property and the plaintiff was in charge of all business and domestic finances. Thereafter the repayments were made by cheques, some of which have been identified by the plaintiff's daughter as hers. From 2 July 1991 onwards, they were paid by cheques drawn on the defendant's account. I note that from the date of the break-up in 1988 until the defendant started paying by cheque on 2 July 1991, the total of the mortgage repayments amounts, if my arithmetic is correct, to $47,729.80. The total paid thereafter by cheque by the defendant is $51,595.93. There are another three cash payments at the beginning of that period totalling $3,769.60. If one regards all the down payments and repayments before April 1998 as coming out of joint income, it follows that the parties' separate contributions thereafter are not too far apart and, in fact, the defendant has paid more.

61. The defendant says that he made these payments by cheque rather than cash because, in effect, he does not trust financial institutions. If that is so, it is a little difficult to understand why he did not want the payments to be made by cheque from 1985 onwards. On the other hand, he says that he was leaving all the finances, both of the business and the home, to the plaintiff.

62. So far as the relationship of the parties is concerned, having seen and heard the parties, I find the defendant's evidence much more believable. The defendant has, it seems to me, been consistent from the outset whereas the plaintiff started off by trying to paint a misleading picture of the relationship. Whatever may have been their domestic arrangements before 1985, moving between their respective flats in Yau Tong and Sham Shui Po, I am satisfied on the balance of probabilities that the parties lived together as if they were married at the Property from the date of completion of purchase until April 1988, and again from July 1991 to 1 October 1997.

63. As I have said, the defendant is somewhat shakier on money matters. Much was made of a discrepancy in his evidence about whether he made any payments by cheque in 1985-88. One has to remember that he is quite elderly. He says that he is over 70. He is talking about events which happened well over a decade ago. So some inaccuracy is not surprising.

64. The defendant gave the impression of being reasonably honest. It is true that he admitted lying about his age when he first applied for an identity card, but in court before me, many people have made similar admissions. The same applies to accusations levelled at him of failing to change the residential address on his hawker permit, not seeking to inform the Housing Authority of his interest in the Property and so on. Many ordinary people are less than frank with officialdom. I do not see this sort of thing as serious dishonesty and I do not see it as being particularly detrimental to his credibility. He perhaps tried to minimise the seriousness of the assault in 1997 at first but he ultimately admitted it. In fact, he had admitted it in the Magistrate's Court where he was bound over to keep the peace.

65. It is perhaps a little difficult to imagine the defendant putting so much reliance on the plaintiff for financial matters, both at home and at work, but again this can happen when a couple live and work together. In any event, the plaintiff has admitted that she settled accounts with the defendant after the 1988 quarrel. I am satisfied that she was keeping the accounts at that time, that the partnership did not end in 1986 as she says and that she was not at that stage a salaried employee.

66. Given the relationship between the parties and the fact that the plaintiff was keeping the accounts, as well as the fact that all the mortgage repayments were made in cash at that stage, I do not see that there can be any doubt that these were coming from the parties' joint income. In all the circumstances, it seems to me more probable than not that the parties agreed in 1984 to buy the Property together out of that joint income, as the defendant says, and that the joint income funded the purchase of the Property and the repayment of the mortgage up to April 1988.

67. The parties' agreement gave rise to a common intention constructive trust. See Lloyd's Bank v Rosset [1991] 1 AC 107, 132. The Property is therefore adjudged to be held on trust by the plaintiff for herself and the defendant beneficially as tenants in common, each enjoying half of the beneficial interest. This being so, although counsel have addressed me on the question of resulting trust arising from contribution to the payments, I do not need to go into that. Nor do I see any need to consider the presumption of advancement; the parties were never married nor was there any contemplation of marriage since some time in the 1970s, so that would not apply.

68. The plaintiff is a beneficial owner of the Property and he has been kept out of it since October 1997. His claim for rental and miscellaneous expenses of accommodation from 13 October 1997 to 28 February 2001, as is shown by the various documents in the bundle, comes to $31,699.00. He is obviously entitled to this and to continuing payments at the rate of $480 per month thereafter. I note, however, that he is in receipt of social security. Presumably he will have to account to the Social Welfare Department for any damages recovered in respect of rent whilst in receipt of social security.

69. There is no particular dispute about the defendant's household and personal effects and, although they are probably not worth much, he is entitled to delivery of them.

70. Accordingly, the plaintiff's claims are dismissed with costs (nisi) to the defendant, to be taxed if not agreed.

71. There will be judgment in favour of the defendant for :

(1) A declaration that the Property is held by the plaintiff on trust for the parties beneficially as tenants in common, each enjoying half of the beneficial interest.

(2) An order that the plaintiff transfer the Property to the plaintiff and the defendant jointly; the parties will have liberty to apply as to the time limit for this.

(3) A declaration that the defendant is entitled to the use, possession and enjoyment of the Property.

(4) Delivery of the household and personal effects pleaded in Paragraph 22 of the Amended Defence and Counterclaim

(5) Damages for loss of use, occupation, possession and enjoyment of the Property from 2 October 1997 to 28 February 2001 of $31,699.00 and continuing at $1,450 per month thereafter until the date of transfer of the Property as ordered above.

(6) Costs (nisi), to be taxed if not agreed.

72. The defendant's own costs to be taxed in accordance with the Legal Aid Regulations.