KISHIN SAMTANI, THE ADMINISTRATOR OF THE ESTATE OF NARIAN SAMTANI, DECEASED v. CHANDERSEN TIKAMDAS SAMTANI

HCA 496/2011

[2025] HKCFI 1076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 496 OF 2011

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BETWEEN

(by the Carry On Order of Master M Wong dated 31 August 2018)

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JUDGMENT

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A. INTRODUCTION

1.  This trial concerns a dispute within the Samtani family. The parties herein are siblings, and are the children of the late Mr Tikamdas Parsram Samtani (“Father”) and his late wife Tikamdas Bhagwanti Samtani (“Mother”).

2.  Father and Mother had 8 children, namely (in order of seniority):

(1) Lilawati Tikamdas Samtani (“Lily”), a daughter;

(2) Drupti Samtani (“Rose”), a daughter;

(3) Chandersen Tikamdas Samtani (i.e. the defendant), a son;

(4) Ruka Samtani, a daughter;

(5) Vidya Samtani (“Vidya”), a daughter;

(6) Narian Samtani (“Narian”), a son;

(7) Kishin Samtani (“Kishin”), a son; and

(8) Rita Samtani, a daughter.

(collectively, “the Children”)

3.  Father founded and carried on import and export businesses under the trade names of Kay Tee Corporation (“Kay Tee”) and Kishoo Brothers (“Kishoo”) (collectively, “the Businesses”) since mid-1950s as a sole proprietor.

4.  Narian, the defendant and Kishin were all, at one point or another, employees of the Businesses and received salary therefrom.

5.  With effect from 26 May 1983, Father and the defendant were partners of the Businesses (“the 1983 Partnership”). Father was a 60% partner and the defendant was a 40% partner.

6.  Father passed away on around 29 October 1989[1].

7.  After Father passed away, Narian and the defendant became the only partners of the Businesses (“the 1989 Partnership”). Narian was a 60% partner and the defendant was a 40% partner.

8.  The following properties are currently registered under the defendant’s name:

(1) A flat at Evelyn Towers, 38 Cloud View Road (“the Evelyn Towers Flat”);

(2) A flat at Maiden Court, 46 Cloud View Road (“the Maiden Court Flat”);

(3) A House at Manderly Garden, 48 Deep Water Bay Road (“the Manderly Garden House”);

(4) Some office units on 4/F of Conwell House, 34-38 Stanley Street (“the 4/F Conwell Office”)

(5) An office unit on 3/F of Conwell House, 34-38 Stanley Street (“the 3/F Conwell Office”) ((4) and (5) collectively, “the Conwell Offices”); and

(6) A flat at Tower 28, South Horizons, Yi Nam Road (“the South Horizons Flat”).

9.  The above-mentioned properties were purchased at the respective prices and dates as follow:

Property	Consideration	Date of purchase
The Evelyn Towers Flat	$400,000	30 April 1977
The Maiden Court Flat	$1,049,900	29 April 1981
The Manderly Garden House	$4,850,000	11 February 1987
The 4/F Conwell Office	$1,625,000	30 April 1987
The 3/F Conwell Office	$640,000	30 April 1987
The South Horizons Flat	$4,377,000	20 September 1995

B. THE PLAINTIFF’S CLAIMS

10.  This action was started in 2011 by Narian against the defendant. Unfortunately, Narian passed away in 2013. As a result, the action remained dormant for 5 years. Upon obtaining Letters of Administration of Narian’s estate, Kishin successfully applied for a “carry on” order in 2018 and substituted Narian as the plaintiff herein. In the light of these circumstances, the term “plaintiff” to be used hereinbelow in this Judgment shall be taken to mean either Narian or Kishin, as the case may be.

B1. The plaintiff’s claims as pleaded in the Re-Re-Amended Statement of Claim

11.  The plaintiff’s case as pleaded in the Re-Re-Amended Statement of Claim may be summarised as follows.

12.  The Children (except Vidya) had at one time or another worked in the Businesses on the understanding with Father and one another that the sons (i.e. the defendant, Kishin and Narian) should be entitled to and share equally in the profits of such businesses and in the family wealth accumulated therefrom, and the daughters would be supported and provided for financially until they got married (“the Understanding”).

13.  The Understanding continued despite the conversion of the sole-proprietorship into partnership and the subsequent re-constitution of the partnership.

14.  There was also an Indian family tradition that Father tended to entrust the defendant as the eldest son of the family more with the family wealth generated by the Businesses and the assets acquired therewith, but only on the basis of the Understanding.

15.  The Businesses had generated profit sufficient for the acquisition of various properties (including those set out in [8] above, a flat at Kong Wing Court, Aberdeen Centre (“the Aberdeen Centre Flat”), and another flat located in Tower 27 of the South Horizons which is registered under Rose’s name and currently occupied by her (“Rose’s SH Flat”)) pursuant to the Understanding. Such properties (except Rose’s SH Flat) were, according to Indian family tradition, held under the name of the defendant for the benefit of all the sons and the unmarried daughters of the family.

16.  The individual situations of some of the landed properties purchased by the Samtani family were as follow:

(1) The Evelyn Towers Flat – It was used as the home of the Samtani family and was purchased pursuant to the Understanding, even though it was registered under the defendant’s name.

(2) The Maiden Court Flat and the Aberdeen Centre Flat – Both flats were partly paid out of family investments and partly financed by mortgage loans. While they were registered under the name of the defendant, they were purchased pursuant to the Understanding.

(3) The Manderly Garden House – It was the intention of the entire Samtani family to use the profit of the Businesses and/or the family wealth kept in the name of the defendant to pay for the down payment, etc. for the purchase, and raise the other 90% of the purchase price by a mortgage loan. It was further agreed:

(a) orally among Rose, the defendant, Kishin and Narian that the House should be rented out so as to generate rental for covering mortgage instalments and expenses (“the Manderly Rental Agreement”);

(b) among Father, Mother, Rose, Lily, the defendant, Kishin and Narian that the House should be vested in Kishin, the defendant, Rose and Narian as to 30%, 30%, 20% and 20% respectively, and they shall assume personal liability for the repayment of the entire mortgage loan.

The House was used in April/May 1989 as security against a further loan of about $2 million (which Rose, the defendant, Kishin and Narian were personally liable), with the intention of getting capital for investments in stocks and shares pursuant to the Understanding. However, in breach of the Manderly Rental Agreement, the defendant refused to let out the Manderly Garden House, and occupied it as his family residence.

(4) The Conwell Offices – It was agreed among Rose, the defendant, Kishin and Narian in 1986/1987 to purchase the Conwell Offices as a family investment pursuant to the Understanding by using the monies from the Businesses, with a view to occupying the 4/F Conwell Office and letting out the 3/F Conwell Office. The defendant became the registered owner thereof pursuant to the Understanding, and the down payment, etc. were paid by the Businesses, with the balance funded by mortgage, and the repayment of which was also paid by monies from the Businesses.

17.  It was agreed in around late 2004 between Narian and the defendant that Narian would transfer his 20% interest in the Manderly Garden House to the defendant who in return would transfer the defendant’s legal title and beneficial interest in the Evelyn Towers Flat together with $10 million (by instalments over 2 years) to Narian (“the Evelyn Towers Agreement”).

18.  It was further agreed among the defendant, Kishin and Narian to acquire a flat in Braemar Hill Mansions (“the Braemar Hill Mansions Flat”) as tenants-in-common in equal shares (1/3 each), with an agreement, inter alia, that they would contribute equally to the mortgage repayments and outgoings thereof with funds from the Businesses, and the said flat would be used by Kishin and his family rent-free (“the Braemar Hill Mansions Agreement”).

19.  The defendant breached the Understanding in that he, inter alia, had unlawfully and/or wrongfully claimed that the assets acquired with funds from the Businesses belong to him beneficially and exclusively.

20.  So far as relief which relates to the landed properties are concerned, the plaintiff seeks the following against the defendant “being a 40% partner of the Businesses”:-[2]

(1) a declaration that the defendant unlawfully and/or wrongfully acquired and/or purported to retain landed properties in his own name and to his own exclusive use and benefit by monies belonging to and/or misappropriated from the Businesses from 26 May 1983 to date;[3]

(2) a declaration that the defendant unlawfully and/or wrongfully made and/or acquired and/or purported to retain other investments in his own name and to his own exclusive use and benefit by monies belonging to and/or misappropriated from the Businesses from 26 May 1983 to date;[4]

(3) a declaration that the defendant is liable to account and an order that he do account for, inter alias, the matters aforesaid and for Narian’s share of and in such monies, payments, profits, properties, investments, and net rental income of which Narian pursuant to the Understanding and/or as 60% partner in the Businesses has been unlawfully and/or wrongfully deprived of by reason of the defendant’s conduct;[5]

(4) an order that the defendant do pay the plaintiff 60% of the monies, payments, profits, properties, investments, net rental income found due on the taking of account;[6]

(5) a declaration that the Maiden Court Flat is held by the defendant on resulting trust;[7]

(6) an order that the defendant is liable to account for the proceeds of sale of the Aberdeen Centre Flat;[8] and

(7) an order that the defendant do pay to the plaintiff the sum found due to him from the proceeds of sale of the Aberdeen Centre Flat and profits made from any sums invested from such proceeds of sale in accordance with an equitable apportionment thereto or such sum as is due to him therefrom as a partner of the Businesses.[9]

21.  Further, the plaintiff alleges that the defendant misappropriated monies belonging to the Businesses, in that at least between 2004 and 2010, the defendant had instructed customers of Kay Tee (i.e. Cassidy Electrical Supply Co Ltd (“CESCO”), E&M Lighting (“E&M”) and Woodies DIY Ltd (“Woodies”)) to remit monies in respect of goods ordered by them and as covered by invoices issued by Kay Tee and/or Kishoo, to his two personal accounts maintained with Standard Chartered Bank.[10]

22.  It is alleged that the defendant would thereafter retain part of the monies received from the customers for his personal use, after which he would remit/transfer the balances to the bank account of Kay Tee and/or Kishoo.[11] It is thus suggested that the defendant thereby misappropriated the shortfall.[12]

23.  In this regard, the plaintiff seeks the following relief:-

(1) a declaration that the defendant unlawfully and/or wrongfully misappropriated and/or converted monies belonging to Kay Tee and Kishoo from 26 May 1983 to date;[13]

(2) a declaration that the defendant unlawfully and/or wrongfully received and/or acquired and misappropriated monies, payments and/or profits directly or indirectly to his own personal use and advantage by conduct of business in competition with Kay Tee and Kishoo from 26 May 1983 to date;[14]

(3) a declaration that the defendant is liable to give account, and an order for account;[15]

(4) an order that the defendant to pay the plaintiff 60% of the monies, payments and/or profits due on taking of such accounts.[16]

24.  The plaintiff also seeks an injunction for the delivery up or access to all books, accounts and business records of Kay Tee and Kishoo.[17]

25.  There are 3 other standalone allegations for breaches of agreements.

26.  Firstly, the plaintiff pleaded that the defendant was in breach of the Manderly Rental Agreement by refusing to let it out since 1996.[18] However, no relief is sought in this respect.

27.  Secondly, the plaintiff alleges that the defendant was in breach of the Evelyn Towers Agreement in that he had failed to transfer the Evelyn Towers Flat to Narian and to pay him $10 million.[19] The plaintiff seeks specific performance or alternatively damages for this alleged breach.[20]

28.  Thirdly, the defendant was in breach of the Braemar Hill Mansions Agreement in that he had refused and/or failed to apply the funds of the Businesses to discharge the monthly mortgage instalments since 2005.[21] However, no relief has been sought in this respect.

B2. The plaintiff’s claims at the Opening Submissions

29.  At his Opening Submissions, Mr Hingorani submitted that, as far as the landed properties are concerned, the plaintiff would rely on common intention constructive trust. It was said, inter alia, that although this legal concept was not expressly stated in the Re-Re-Amended Statement of Claim, the defendant could not have been taken by surprise at all because the Understanding had been pleaded, and the Understanding was all about the family members’ common intention.

30.  I am afraid I cannot accept that the plaintiff is entitled to rely on common intention constructive trust at the trial.

31.  Firstly, I do not accept that this was, to say the least, adequately pleaded in the Re-Re-Amended Statement of Claim as alleged.

32.  As summarized by G Lam J (as he then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at [46], the elements which a plaintiff must prove in order to establish a common intention constructive trust in his favour are that:-

(1) there was a common intention between him and the defendant that the plaintiff was to be the beneficial owner of the property despite that it was acquired in the defendant’s name;

(2) the plaintiff altered his position in detrimental reliance upon such common intention; and

(3) it is unconscionable for the defendant to assert ownership in reliance on his legal title to the property.

33.  While there is no doubt that the facts which constitute “detriment reliance” need to be pleaded[22], it is clear that the plaintiff has not done so. In this regard, Mr Hingorani and Mr Lo suggested in their Opening Submissions that:

“176. [Narian] also stated that he went into the Business when he did because he wanted to finish matriculation and to gain some outside work experience first.

177. In so doing, he became eligible to avail himself of other employment opportunities which he lost when he joined the Business. In other words, he lost a prospect of benefit even if such prospect were contingent and uncertain. Such loss of opportunity is sufficient to amount to a detriment.”

34.  The above submissions cannot assist the plaintiff because:

(1) The content under paragraph 176 above was only found in Narian’s witness statement rather than in the Re-Re-Amended Statement of Claim. In any event, working in the Businesses per se cannot be a detriment. Hence, it cannot salvage the plaintiff’s defective pleaded case;

(2) More importantly, the loss of alternative opportunities and loss of “prospect of benefit” were not even in Narian’s witness statement.

35.  Secondly, a more fundamental problem faced by the plaintiff is that the cause of action of common intention constructive trust is apparently not mentioned in the Writ, and as a result he cannot be permitted to run such a case.

36.  The starting point is Order 18 rule 15(2) of the Rules of the High Court (“RHC”) which reads:

“A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned; but subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the endorsement of the writ without amending the endorsement.”

37.  In Moulin Global Eyecare Holdings Ltd v Olivia Lee Sin Mei (2014) 17 HKCFAR 466, Mr Justice Gummow NPJ accepted that the indorsement in the writ marks out the perimeter or range of the area within which the plaintiff may express its claim in a formal fashion in the statement of claim whether as originally filed or as sought to be amended.

38.  In Hong Kong Civil Procedure 2025, Vol.1, Commentary 18/15/8, the learned editors also summarised the legal position as follows:

“It has been said that para.(2) is, in general, meant to relate to cases in which some part of the facts necessary to establish the claim made in the writ would suffice to establish some other, perhaps narrower, cause of action (per Sachs L.J. in Brickfield Properties Ltd v. Newton [1971] 1 W.L.R. 862, CA). A plaintiff therefore cannot, without amending the writ, add in his statement of claim a new cause of action based on facts not disclosed in the writ (Wong Chun Loong, Tony v. Jademan (Holdings) Ltd [1991] 2 HKLR 580) or one in respect of which one of the facts in support is not relevant to and inconsistent with the cause of action mentioned in the writ without amending the writ (Kala Sakhrani Mohan v. Ontrade International Ltd [1983] 1 HKC 81) or completely change the cause of action indorsed on the writ (Cave v. Crew (1893) 62 L.J. Ch. 530; Ker v. Williams (1886) 30 S.J. 238) or introduce an entirely new and additional cause of action which cannot be conveniently tried with the original claim (United Telephone Co. v. Tasker (1888) 59 L.T. 852) or to introduce a claim which the court has no jurisdiction to entertain, eg a claim which, if indorsed upon a writ, would not have been allowed to be served out of the jurisdiction (Waterhouse v. Reid [1938] 1 KB 743, CA).”

39.  In the Writ of Summons herein, the plaintiff stated that his claims were for:

(1) A declaration that the defendant, being a 40% partner in the Businesses:

1. unlawfully and/or wrongfully conducted business dealings and transactions on his own account in competition with that of the Businesses from 26 May 1983 to date;

2. unlawfully and/or wrongfully diverted business away from the Businesses to himself from 26 May 1983 to date;

3. unlawfully and/or wrongfully misappropriated monies belonging to the Businesses from 26 May 1983 to date;

4. unlawfully and/or wrongfully received and/or acquired monies, payments and/or profits directly or indirectly to his own personal use and advantage by conduct of business in competition with and/or diverted away from the Businesses from 26 May 1983 to date;

5. unlawfully and/or wrongfully acquired and/or purported to retain real properties in his own name and to his own exclusive use and benefit by monies belonging to and/or misappropriated from the Businesses from 26 May 1983 to date;

6. unlawfully and/or wrongfully made and/or acquired and/or purported to retain other investments in his own name and to his own exclusive use and benefit by monies belonging to and/or misappropriated from the Businesses from 26 May 1983 to date;

7. is liable to account

(a) in respect of the matters pleaded under paragraph 1(1) – (5) aforesaid;

(b) for all his dealings and transactions in the Businesses from 26 May 1983 to date;

(c) for all investments of any kind whatsoever and their present equivalent or derived from the same (including interest, dividends or other earnings upon the same or accretions in value of the same) by reason of the matters pleaded under paragraph 1(6) aforesaid;

(d) for all rental income received and outgoings and expenses discharged by the defendant in respect of the properties;

(e) for all his dealings with the net rental income of the properties and their present equivalent or derived from the same (including all interest, dividends or other earnings upon the same or accretions in value of the same); and

(f) for the plaintiff’s share of and in such monies, payments, profits, properties, investments, net rental income of which the plaintiff as 60% partner in the Businesses has been unlawfully and/or wrongfully deprived by reason of the defendant’s conduct as pleaded aforesaid.

(2) An order that the defendant do account as pleaded under paragraph 1(7) above.

(3) An order that the defendant do pay the plaintiff 60%, or in the alternative what sum is due to him, of the monies, payments, and/or profits, properties, investments, net rental income as pleaded aforesaid and found due on the taking of such accounts.

(4) Specific performance of the Evelyn Towers Agreement.

(5) In the alternative to (4) above, damages for breach of the Evelyn Towers Agreement.

(6) Damages for unlawful interference in the Businesses.

(7) Mandatory injunction that the defendant, whether by himself, his servants or agents, do deliver up or allow the plaintiff access to, inspection and copying of all books, accounts, etc. of the Businesses.

(8) All future proper accounts, inquiries and directions.

(9) Interest.

40.  It can be seen that the writ only included 2 causes of action, namely, a partnership claim and a contractual claim (regarding the Evelyn Towers Agreement). There is no trace of any common intention constructive trust claim. That is fatal to the plaintiff’s case of common intention constructive trust.

41.  Apart from attempting to rely on common intention constructive trust, Mr Hingorani also informed this Court during his Opening Submissions that, as far as the landed properties are concerned, the plaintiff’s updated position on his claims would be as follows:

(1) He would not assert any proprietary claim any further;

(2) In respect of the Evelyn Towers Flat, he would only claim damages for the defendant’s breach of the Evelyn Towers Agreement, and would abandon his claim for specific performance thereof;

(3) In respect of the Maiden Court Flat, he would claim for (a) damages for the increment in its capital value; and (b) an account for rental income since 1981, on the basis that it was purchased with funds from the Businesses;

(4) In respect of the Aberdeen Centre Flat which had been sold by the defendant already, he would claim for an account for the sale proceeds and interest thereon, on the basis that it was purchased with funds from the Businesses;

(5) In respect of the Manderly Garden House, he would not seek any relief in relation to it even though it was purchased with funds from the Businesses;

(6) In respect of the Conwell Offices, the plaintiff would claim for an account as to their capital value, on the basis that they were purchased with funds from the Businesses;

(7) In respect of Rose’s SH Flat, the plaintiff would not make any claim even though it was purchased with funds from the Businesses;

(8) In respect of the South Horizons Flat, the plaintiff would claim for an account of the rental income.

B3. The plaintiff’s claims at the Closing Submissions

42.  At the stage of Closing Submissions, the plaintiff’s counsel further confirmed that the plaintiff would not rely on resulting trust in his case.

43.  Hence, the followings are the remaining causes of action pursued by the plaintiff:

(1) a partnership claim by which it is alleged that the defendant had used funds from the Businesses to purchase various landed properties;

(2) breach of the Evelyn Towers Agreement;

(3) misappropriation by asking CESCO to pay funds directly into the defendant’s personal bank account.

C. THE DEFENDANT’S CASE

44.  The defendant’s case is relatively simple and may be summarised as follows:

(1) There was no Understanding nor “Indian family tradition” (to entrust the eldest son with family assets) as such;

(2) The subject landed properties were purchased with his own money and therefore they belong to him legally and beneficially;

(3) There was no Evelyn Towers Agreement as alleged, and in any event it is unenforceable for being an oral agreement;

(4) The alleged misappropriation of monies was actually a payment arrangement between CESCO and the Businesses (“the CESCO Arrangement”) which was known to Narian at all material times:

(a) CESCO was a customer of the Businesses, and E&M was the same company as CESCO. Woodies was a customer of CESCO, and the latter would place order with the Businesses directly on behalf of Woodies;

(b) The money stated on the invoices issued by the Businesses include two parts, namely, actual amount payable by the customer and to be received by the Businesses; and credit payable to CESCO. The latter, which the plaintiff alleges to have been misappropriated by the defendant, was not an amount due to the Businesses, and there would be a corresponding commission credit note issued by the Businesses against a specific invoice setting out the amount of credit payable by the Businesses to CESCO;

(c) Since in general the Businesses would not receive payment from CESCO, E&M and Woodies within a short period of time, in order to keep the Businesses running, the defendant would arrange funds from his bank accounts to pay the Businesses what was due by CESCO, E&M and Woodies first according to the invoices pending payments to be made by them;

(d) As the defendant had already advanced the actual amount to the Businesses, he would keep the actual amount out from the invoiced amount as reimbursement, leaving the credit which were then paid to CESCO as directed;

(e) In the premises, all funds which have been due to the Businesses from CESCO and Woodies have been received by them.[23]

45.  The defendant also counterclaims against the plaintiff in relation to two matters:

(1) Firstly, it is alleged that Narian, in breach of his duties owed as a partner to the Businesses:

(a) engaged in and/or dealt with the business of Regal Top Trading Ltd (“Regal Top”), a business operated by Kishin, and was in competition with the Businesses;

(b) diverted business / customers of the Businesses to Regal Top.

The defendant therefore claims against the plaintiff for an account of benefits he received or to pay damages for loss and damage suffered by the defendant.

(2) Secondly, while the defendant as legal and beneficial owner of the Evelyn Towers Flat had requested Narian on 12 May 2011 to leave the said property, the latter had refused to do so wrongfully on 16 May 2011. In the premises, he is liable to pay mesne profits in respect of his occupation thereof since 1 June 2011.

D. THE PLAINTIFF’S DEFENCE TO COUNTERCLAIM

46.  In relation to the defendant’s counterclaim, the plaintiff’s defence is that:

(1) Regal Top was a business operated by Kishin, and Narian had not been involved therewith. Neither did Narian receive any benefits from any business or other dealings with Kishin. There was also no diversion of business. The defendant’s allegation concerns a common customer of the Businesses and Regal Top;

(2) In respect of the mesne profits counterclaim, the plaintiff denies that the defendant was or is the exclusive legal and beneficial owner of the Evelyn Towers Flat or that he has a right to make such a claim, even though it is admitted that Narian had remained in occupation despite the defendant’s demand and did not pay the defendant for such occupation.

E. THE DEFENDANT’S APPLICATION TO ADDUCE WITNESS STATEMENT

47.  Before I go on to deal with the substantive issues, I should put on record the reasoning for dismissing the defendant’s summons filed on 16 November 2023 (“the New Witness Statement Summons”) which was returnable on the first day of the trial, under which the defendant applied for leave to adduce the Supplemental Witness Statement of Michelle Samtani (“Michelle”) who is the defendant’s daughter. The main purpose of this witness statement was to produce various original copies of inward remittance advices (“the Original Advices”) and to explain certain handwritten notes thereon.

48.  The New Witness Statement Summons was supported by the Affirmation of Jason John Samtani (“Jason”), who is the son of the defendant. Jason explained that:

(1) On around 28 October 2023, he found the Original Advices among some old documents which in turn were discovered when he was trying to clean some cabinets in the office of the Businesses (4/F Conwell Office);

(2) As he noticed that the remarks (“Markings”) which were handwritten on the Original Advices appeared to be the handwriting of his sister Michelle, he asked Michelle about the Original Advices and whether the Markings were made by her;

(3) Having got the answers from Michelle, he thought what he was told by Michelle were very relevant to the defendant’s case in this action;

(4) Before his discovery of the Original Advices, he did not know or appreciate that those documents had been kept in the cabinets of the 4/F Conwell Office. Neither did the defendant, Michelle, nor their family members know about that, and they could not remember who placed the Original Advices there.

49.  Mr Lin for the defendant fairly accepted that this was a very late application. He drew this Court’s attention to the case of Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705, in which Bharwaney J had the following to say:

“5. Whilst parties are generally free to call factual witnesses of their choice and leave is invariably given at the checklist review hearing to the parties to serve or exchange witness statements, the court’s discretion, whether or not to accede to a party’s late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the court’s management powers and in the light of the objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of civil justice reform […].”

50.  The above general principles were not in dispute. For completeness, it may also be helpful to refer to the case of Chu Hsiao-Chiu alias Chu Tony Chu Hsiao Chiu alias Chu Hsiao Chiu, deceased v Ma Jinrui & Another [2020] HKCFI 942, in which the plaintiff therein sought leave to file two affidavits in opposition to various applications taken out by the defendants less than 3 weeks before the substantive hearing. In his Decision, Coleman J. took the view that:

“18. It is well-established in the ‘post-CJR era’ that the underlying objectives emphasise not only substantive but also procedural fairness. Therefore, late or last-minute applications trigger the Court’s expectation that the applicant will provide a full account of the lateness of the application, and full justification as to why the application should be entertained at all at such a late stage.

19. There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid. Courts should take into account that there may be an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Further, the vacation or adjournment of the hearing occasioned by last-minute applications may mean the loss of the hearing day which could have benefited other litigants, and inefficiencies in the use of Court time, which is a public resource. Hence, late applications can be dismissed on the basis of lateness alone.”

51.  Having heard counsel’s submissions, I held the view that the New Witness Statement Summons should be dismissed for the following reasons:

(1) Jason explained that the Original Advices were discovered in the cabinets in the 4/F Conwell Office. There was no evidence which showed that those documents were only placed thereat recently, and it might be inferred that they had always been put in those cabinets. In these circumstances, the first question must be why they were not discovered earlier, particularly when those documents had been specifically requested for by the plaintiff long time ago, and indeed, they were documents which the defendant was obliged to produce pursuant to a court order dated 16 September 2011. However, no such explanation had been given. In my view, there had been inexcusable delay on the part of the defendant, and the application could be dismissed on this ground alone.

(2) In the event leave was granted for the defendant to rely on the Supplemental Witness Statement of Michelle, as a matter of fairness, time must be given for the plaintiff’s legal team to go through the new documents carefully, consider the interrelationship of the Original Advices with the many documents already included in the trial bundle and take further instructions from the plaintiff. Mr Hingorani informed this Court that he would need at least 3 days but preferably 4 days to complete the process, which must be reasonable in the circumstances. Although a total of 14 days had been reserved for this trial, it must be borne in mind that the long period of trial was fixed having taken into account the defendant’s need to take long breaks from time to time while he was giving evidence in Court. Hence, the loss of 4 days might therefore lead to the case being part-heard, which was highly undesirable, particularly when this case had been pending for 12 years.

(3) It could not be disputed that the defendant’s very late application had disrupted the plaintiff’s preparation of the trial as attention, time and effort had been diverted to the opposition of the late application. This in itself was a form of prejudice. Even if this Court only granted a short adjournment (say, for a few days, so that the plaintiff could take further instructions on the Original Advices), that would mean that further prejudice would be caused to the plaintiff, which was very unfair to the plaintiff.

52.  The New Witness Statement Summons had therefore been dismissed with costs.

F. CREDIBILITY OF WITNESSES

53.  In Hu Lan v David Golden [2023] HKCFI 873, this Court held that:

“36. When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:

(1) Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2) Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3) The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(4) The court should consider a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;

(5) It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected. A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie;

(6) On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility;

(7) While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.”

54.  I will bear the above in mind when I consider the credibility of the witnesses in the present case.

55.  In support of the plaintiff’s claims, statements of the following witnesses have been served:

(1) Kishin;

(2) Narian; and

(3) Lily.

56.  Unfortunately, both Narian and Lily had passed away before the trial. In such circumstances, their witness statements were adduced as hearsay evidence.

57.  On the other hand, apart from the defendant who had given evidence in Court, he had also called Rose and Michelle as his witnesses.

F1. Kishin

58.  I am of the view that Kishin is neither a credible nor a reliable witness for, inter alia, the following reasons.

59.  Even though he did not have personal knowledge on quite a number of matters, he tended to give evidence on those matters anyway based on his own speculation without any basis. For example:

(1) When he was challenged that Father did give Lily a Power of Attorney in 1962 authorising her (rather than the defendant) to deal with all Father’s affairs including the Businesses, Kishin stated he was sure that Father did give another power of attorney to the defendant subsequently. However, it is apparent that it was only his wild guess and he had absolutely no basis for saying so;

(2) When it was put to him that Father was very ill as at 1 October 1989 (the effective date of Narian becoming a partner of the Businesses) and therefore he could not have transferred his 60% interest in the Businesses to Narian, Kishin alleged that Father must have signed documents to that effect. However, again, Kishin had no basis for saying that;

(3) He stated in Court that when the Evelyn Towers Flat was bought, the purchase monies were firstly transferred from Father’s saving account to the defendant’s personal bank account, and then the defendant issued cheques for payment. However, he subsequently admitted that it was only his guess. On the following day of the trial, when he was asked on this matter further, he changed his evidence, and stated that the purchase money was paid out of a joint back account held by Father and Mother;

(4) He suggested in Court that Father put landed properties under the defendant’s name probably because he wanted to avoid estate duty liability. He had never said that in any of his witness statements, and admitted that this matter only came to his mind while giving oral evidence. In my view, this illustrates that Kishin would speak whatever which came to his mind, not caring whether those matters were true or not. Indeed, after further cross-examination, he admitted that he in fact did not know what Father was thinking at the time;

(5) He further stated in his oral evidence that Father put the Evelyn Towers Flat under the defendant’s name because of Father’s health condition. However, he had never mentioned this in his witness statement;

(6) While he stated in his witness statement that the down payments for the Maiden Court Flat and the Aberdeen Centre Flat were paid out of the Businesses’ funds, he admitted in Court that he in fact did not know the source of funds for such down payments.

60.  Some of Kishin’s evidence is very difficult to comprehend because they do not make sense. For example:

(1) He alleged that in view of Father’s old age and deteriorating health, Rose, the defendant, Narian and himself became increasingly concerned about the future of the Businesses, and proposed to Father that the sole proprietorship should be converted into a partnership. However, when he was cross-examined on the matter, and was asked why Father should still be holding 60% of the Businesses if the alleged purpose of the conversion into a partnership was to prepare for Father’s demise one day, he stated that that was because Father was still alive at the time. That answer is indeed puzzling because it contradicted his own evidence.

(2) He said Narian and he knew that the defendant had been misappropriating the Businesses’ monies for a long time, before 2006, but they did not do anything about it because they wanted to keep harmony, despite the fact that the defendant had refused to repay the Businesses’ monies which he had misappropriated. He also said that they were worried that they would be “in the street” if they did anything about it. These answers do not make sense:

(a) It is against logic that they would not take action despite the misappropriation;

(b) It should be borne in mind that Narian was a 60% partner of the Businesses since October 1989. There was simply no need for them to worry about losing their jobs;

(c) The alleged intention of keeping harmony cannot be the truth, because according to Narian, Kishin had commenced a court case against the defendant in 2006 (HCA 1936/2006), in which Narian had also made witness statements in support of the claim.

61.  Kishin would refuse to give any direct answer which would be favourable to the defendant’s case even though such an answer was obviously the truth. A usual means for him to evade answering this kind of questions was to say “I can’t reply”. Even if he finally (and exceptionally) gave a direct answer to this sort of questions, it would take a very long time for him to do so. For example, he had taken a very long pause when he was confronted with Lily’s evidence that it was the defendant who added Narian as a partner of the Businesses.

62.  Kishin has also given inconsistent evidence on a number of matters. It is obvious that he had no hesitation to change his evidence as long as it would suit his purpose. For example:

(1) He initially admitted that he had made a will. Further cross-examination on this will exposed the fact that the content thereof was inconsistent with the so-called Indian family tradition. When he realised the damage done to his case, he changed his evidence, and alleged that he in fact had not made any will yet, and he was only thinking what to include in his will. However, he reluctantly admitted subsequently that he had indeed executed his will already. That shows that it was a blatant lie when he alleged that he had not made his will yet;

(2) He had given different answers when he was asked whether he had followed the so-called Indian family tradition himself;

(3) When he was asked why he did not verify with CESCO the genuineness of a few confirmations allegedly issued by CESCO which confirmed receipt from the defendant and/or the Businesses certain payments which are the subject matters of the misappropriation claim herein, Kishin initially said it was because he thought CESCO would ignore his request anyway, but he changed his evidence subsequently, and said it had never occurred to him that he should approach CESCO. When he was further cross-examined on this, he changed his evidence for 2 more times.

63.  Further, there were many occasions when Kishin did not answer even straight forward questions directly, but only stated what he wanted to say. Such evasiveness, in my view, is an indication that he could not answer many of the questions asked by Mr Lin.

64.  There were also many occasions when his evidence in Court was plainly contradictory to the evidence contained in his own witness statements. For example:

(1) Although he stated in his witness statement that, when Father was still around, he retained general control of the income and expenses and accounts of the Businesses, he changed his evidence in Court and alleged that the defendant was in control of the Businesses’ bank accounts, and Father was not even in control of his own bank account at the time when the Evelyn Towers Flat was bought in 1977;

(2) According to Kishin’s witness statements, the deposit payments for the 2 flats in South Horizons came from family funds, and the mortgage instalments and other expenses were also paid out of the Businesses’ funds. However, he alleged in his oral evidence in Court that while Rose’s SH Flat should belong to her, the South Horizons Flat should belong to the family rather than the defendant even though it was registered under the defendant’s sole name. When Kishin was cross-examined on this, he initially could not give any answer as to why the treatment of the 2 flats should be different, but then changed his evidence and stated that it was because Rose had paid for the purchase price herself, which is contradictory to what he stated in his witness statement;

(3) In his witness statement, Kishin stated that the defendant had arranged overdraft facilities from Dao Heng Bank for the sum of approximately $1.7 million for a long time so as to provide sufficient fund for the Businesses to run. However, when Kishin was cross-examined, he confessed that actually he was not sure whether such a facility had been cancelled before he left the Businesses in 2006. When he was cross-examined further on this, he said the facility granted by Dao Heng Bank was actually of a small amount, and the Businesses mainly used the facilities granted by HSBC and Standard Chartered Bank. In my view, he was clearly making up his answers along the way.

65.  It is also surprising to note that sometimes Kishin could not answer Mr Lin’s question without reading his own witness statement again. Of course I have not lost sight of the fact that the focus of the questions was mainly about matters which took place many years ago, but that does not necessarily mean that it must be reasonable for Kishin to have the need to refer to his witness statement before answering, especially when those questions concerned matters which are so special that he would not lightly forget. For example, he made a request to read his own witness statement again when he was asked by Mr Lin to confirm that Narian and he were not made partners in 1983 because they were travelling all the time. He said he was confused because there were a lot of data for him to absorb. In my view, if he were always telling the truth, it should not be difficult for him to confirm the said matter which must be something special and within his personal knowledge. That shows how unreliable Kishin is as a witness.

F2. Narian

66.  It has been agreed between the parties that Narian’s witness statement may be admitted as hearsay evidence at the trial. The question for this Court is the weight to be attached to such evidence.

67.  Section 49 of the Evidence Ordinance (Cap.8, Laws of Hong Kong) provides that:

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following—

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

68.  I will now go through the factors set out in section 49(2) of the Evidence Ordinance:

(1) Narian’s witness statement was not made contemporaneously with the occurrence or existence of the matters stated;

(2) He was the plaintiff of this action and therefore he had the motive to conceal or misrepresent matters;

(3) His witness statement was an edited account and must have been prepared in collaboration with Kishin for the purpose of this action.

69.  Another important factor which this Court has to take into account is that Narian’s evidence cannot be tested by cross-examination.

70.  With all the above matters in mind, I am of the view that the Court should only attach minimal weight to Narian’s evidence.

F3. Lily

71.  Apart from the fact that Lily is not a party herein, the other factors under section 49(2) of the Evidence Ordinance discussed above are equally applicable to Lily’s witness statement. I therefore come to the same conclusion that only minimal weight should be given to Lily’s evidence.

F4. The defendant

72.  According to Dr Edmund Woo’s report dated 27 July 2023, the defendant:

(1) has been suffering from Parkinson’s disease for 20 years.;

(2) has evolved motor complications mainly in the form of on-off dyskinesia;

(3) has involuntary twisting of the trunk and the limbs from time to time (which is also apparent while he was giving evidence in Court);

(4) has muffled speech (which is also obvious to the Court);

(5) is likely to have difficulty in understanding complicated questions and in expressing himself in an articulate fashion, particularly when he is under stress;

(6) can cope with questions that require a “yes” or “no” answer;

(7) exhibits signs of early dementia with impaired memory, calculation and executive function.

73.  Dr Woo therefore advised the Court that the defendant should be given:

(1) ample time to express himself;

(2) assistance in fetching and turning trial bundles;

(3) adequate rest so as to minimise his motor fluctuations.

74.  Given the defendant’s health condition, the Court’s sitting hours while the defendant was giving evidence had been adjusted accordingly. Hearings were also stood down from time to time (with the consent of Mr Hingorani who had always dealt with the defendant’s applications in this regard very fairly) whenever the defendant’s family members considered that the physical state of the defendant appeared to show that he needed a rest. These adjustments are important because, as a matter of fairness, the Court does not want to see that the quality of a witness’ evidence would be affected by his physical condition which might fluctuate from time to time.

75.  With the above measures, I had an impression during the trial that the defendant could handle the cross-examination quite well. The most difficult part remained understanding what exactly the defendant was saying because of his slurred speech. While this had from time to time caused delay to the progress of the cross-examination because it might take time for the legal teams and this Court to figure out the exact meaning of the defendant, at the end of the day, I do not think there was any dispute as to what the defendant’s evidence was.

76.  Having considered all relevant matters in the round, I am of the view that the Court should approach the defendant’s evidence cautiously, because there were quite a few occasions when his evidence in Court was plainly contradictory to what he had stated in his own witness statements. For example:

(1) While he stated in his witness statement that he was persuaded to allow Narian, Kishin and Rose to join in in his investment in the Manderly Garden House, he changed his evidence in Court and said that in fact no one persuaded him;

(2) While he stated in his witness statement that he allowed Narian, Kishin and Rose to join in in his investment in the Manderly Garden House provided they would each contribute proportionately to the down-payment, the monthly mortgage instalments and other expenses of the said property, he said in Court that this part of the evidence was not true;

(3) The defendant also denied that he had orally agreed with Narian, Kishin and Rose that they shall hold the Manderly Garden House at the ratio of 30%, 20%, 30% and 20% even though that was what he confirmed in his witness statement;

(4) The defendant went as far as to say that he had never had discussion with Narian, Kishin and Rose regarding the Manderly Garden House which is plainly contradictory to what he said in his witness statement.

F5. Rose

77.  Generally speaking, I am of the view that Rose’s evidence is unshaken in cross-examination. I accept her evidence.

F6. Michelle

78.  I bear in mind that Michelle is the defendant’s daughter. However, I find that her evidence was unshaken despite the cross-examination. I accept her evidence.

G. DISCUSSION

79.  There are 2 concepts which basically run through the plaintiff’s case, namely, the Understanding and the Indian family tradition. I will therefore consider these 2 matters first.

G1. The alleged Understanding

80.  To recap, according to the plaintiff’s case, the Understanding was that the sons of the Samtani family should be entitled to and share equally in the profits of the Businesses and in the family wealth accumulated therefrom, and the daughters would be supported and provided for financially until they got married.

81.  There are many features in the present case which show, and therefore I find, that there was no such Understanding. I will just refer to a few below.

82.  First, the allegation of such an Understanding is in direct contradiction against Narian’s case of partnership under which only he and the defendant (but not Kishin) should be entitled to the profit generated by the Businesses. This was indeed his stance from the very beginning: In the pre-action letter sent by Narian’s solicitors, Narian demanded the defendant to, inter alia, account to him 60% share in the Businesses rather than 1/3, which even Kishin accepted in Court that this is inconsistent with the alleged Understanding.

83.  Second, Kishin said in his oral evidence that he considered that the Understanding existed because Father did mention that “everything in the Businesses belong to everyone”. This on the face of it is inconsistent with the alleged Understanding (because “everyone”, without qualification, must include even the married daughters), not to mention that in fact, as accepted by Kishin, Father had never said that the defendant should be responsible to look after the unmarried daughters after Father had passed away.

84.  Third, Kishin said the Manderly Garden House was owned by the 4 of them (Kishin, Narian, the defendant and Rose) and they were the true owners, not holding the said property for anyone. This is in direct contradiction against the plaintiff’s case on the Understanding. So is the fact that Narian only held 20% of the said property while the defendant and Kishin held 30% each thereof – in other words, they were not having equal shares in the property.

85.  Further, according to the plaintiff’s pleaded case, Kishin, Narian, the defendant and Rose would be personally liable for the repayment of the mortgage loan taken out for the purchase of the Manderly Garden House. This is puzzling as to why that would be so if the House was purchased pursuant to the Understanding.

86.  Pausing here, it is noted that Lily explained in her witness statement that the percentage of ownership was in fact finalised upon discussion among Father, Mother, the defendant and herself, and that the defendant and Kishin were given a larger share of the property because they had already got married by then. This contradicts Kishin’s evidence that he and Narian had been involved in the discussion.

87.  Fourth, if the Understanding existed, then the Conwell Offices would be belonging to the Businesses as well, and the defendant would be holding them only for and on behalf of the Businesses. In such a case, there is no way that Kay Tee would have entered into tenancy agreements with the defendant and pay the defendant monthly rent, still less for Narian to agree to such an arrangement and sign a number of tenancy agreements for that purpose. Further, it cannot be explained why the Businesses had never booked any rental income in respect of the 3/F Conwell Office which had all along been rented out to outside tenants.

G2. The alleged Indian family tradition

88.  Pursuant to the alleged Indian family tradition, Father tended to entrust the defendant as the eldest son of the family more with the family wealth generated by the Businesses and the assets acquired therewith but only on the basis of the Understanding.

89.  However, it has been exposed at the trial that the alleged tradition simply did not exist, and I would so find. It may be demonstrated by the following matters.

90.  First, it is evident that Father executed a power of attorney in 1962 by which he entrusted Lily to handle all his affairs including conducting the Businesses. On the face of it, this is inconsistent with the alleged Indian family tradition. Kishin tried to explain that Father elected to entrust Lily rather than the defendant at the time because the latter was still studying in the school. However, there is no evidence that this power of attorney has been revoked subsequently when the defendant grew older and started working at the Businesses.

91.  Second, Father made his last will in 1963 under which he bequeathed everything to Mother. At the time, the defendant was already 17 years old. This action on the part of Father clearly shows that there was no Indian family tradition as such. When Kishin was cross-examined on this, he had paused for a long time and could not give any answer.

92.  Third, if there was such an Indian family tradition for the eldest son to hold everything for the benefit of other family members, Kishin would not have (as he stated himself in his evidence) requested the defendant (shortly after Father’s passing) to make him a partner of the Businesses. In fact, Lily also stated in her witness statement that, in her view, every member of the family working in the Businesses should be made a partner thereof. This plainly contradicts the alleged Indian family tradition.

93.  Fourth, if there was such an Indian family tradition, then the defendant should have been made sole proprietor rather than just a partner in 1989 (if not 1983), not to mention that, as a matter of fact, Narian was made a partner who had a larger share (60%) than the defendant (40%). When these factual scenarios were pointed out to Kishin for his explanation, he could not offer any.

94.  Fifth, when Kishin was asked to articulate the alleged Indian family tradition in his own words while he was in the witness box, he started off by referring to the time when the parents had passed away. This apparently is quite different from the plaintiff’s pleaded case, which described the tradition to be applicable to the time when Father was still alive.

G3. The plaintiff’s partnership claims on the landed properties

95.  The plaintiff now claims 60% interest in the following properties on the basis that they are partnership properties:

(1) The Maiden Court Flat

(2) The Aberdeen Centre Flat (for account of sale proceeds, etc.)

(3) The Conwell Offices

(4) The South Horizons Flat

96.  It may be recalled that the respective years of purchase of these properties are as follow:

(1) The Maiden Court Flat – 1981

(2) The Aberdeen Centre Flat – 1982

(3) The Conwell Offices – 1987

(4) The South Horizons Flat – 1995

97.  It should also be borne in mind that:

(1) Father initially ran the Businesses as a sole proprietor since mid-1950s;

(2) Then the 1983 Partnership was formed, under which Father was a 60% partner and the defendant was a 40% partner;

(3) Narian became a partner with effect from 1 October 1989. At the time, Father was still alive, and therefore the partnership had 3 partners[24] (“the Interim Partnership”). However, it is unclear as to the percentage of ownership held by each of them;

(4) Father passed away on 29 October 1989, upon which the partnership only had 2 partners (i.e. the 1989 Partnership) – Narian was a 60% partner and the defendant was a 40% partner.

98.  It can therefore be seen that:

(1) Both the Maiden Court Flat and the Aberdeen Centre Flat were purchased while Father was the sole proprietor of the Businesses;

(2) The Conwell Offices were purchased while the 1983 Partnership was in existence;

(3) Only the South Horizons Flat was purchased during the existence of the 1989 Partnership.

99.  The difficulty in the plaintiff’s case is, in the above circumstances, even if the Maiden Court Flat, the Aberdeen Centre Flat and the Conwell Offices were purchased with the monies of the Businesses, how can it be said that they were partnership properties of the 1989 Partnership? I will address this question below.

G3.1 Partnership properties – the legal principles

100.  It is well established that upon the admission of a new partner, the original partnership dissolves and a new partnership forms: Hadlee v Commissioner of Inland Revenue [1989] 2 NZLR 447 at 455.

101.  In 勞慧聲經營之恆利公司 v 安聯保險香港有限公司 (HCA 4084/2001, unreported, 4 February 2005), Lam J (as Lam PJ then was) also had the following to say at [16]:

“It is necessary to specify the time for determining who were partners and who were not because the composition of a firm may change over time. Even the same firm name is used after a change in its composition, e.g. by admitting new partners, as a matter of fact they are a different group of people and regarded as such as a matter of law. Hence the firm prior to the change is not the same as the firm after the change. Upon every admission of new partner, the law views it as an implied dissolution of the old partnership and the formation of a new partnership.”

102.  In Lindley & Banks on Partnership (21^st Ed, 2022), the learned author wrote the followings:

§19-24

“It has long been recognized that partnership is not a species of joint tenancy and that, in the absence of some contrary agreement, there is no survivorship as between partners, at least so far as concerns their beneficial interests in the partnership assets […]”

§24-01

“What is meant by the ‘dissolution’ of a partnership is often misunderstood […]. In the case of a partnership, it invariably refers to the moment of time when the ongoing nature of the partnership relation terminates, even though the partners may continue to be associated together in a new partnership or merely for the purposes of winding up the old firm’s affairs. Indeed, the outward appearance of a partnership immediately prior to and immediately following a dissolution will frequently be unchanged. […]”

§24-03

“It does not necessarily follow from the fact that a partnership has been dissolved that its affairs will fall to be wound up in the manner prescribed by the Partnership Act 1890. It has already been seen that, as a matter of law, a change in the composition of a partnership results in a dissolution of the existing firm and the creation of a new firm; in such a case, the new firm will usually take on the assets and liabilities of the old, without any break in the continuity of the business. This is often referred to as a ‘technical’ dissolution and is usually, but not always, the result of agreement. Such a dissolution will almost inevitably require the taking of accounts to ascertain the entitlement of the outgoing or deceased partner.”

G3.2 Application of the legal principles

103.  As aforesaid, both the Maiden Court Flat and the Aberdeen Centre Flat were purchased while Father was the sole proprietor of the Businesses. Even if they were purchased with monies from the Businesses, it is difficult to see how they could be said to have been brought into the partnership, because even if the plaintiff’s case is accepted, they were purchased as family investments. Such a purpose had nothing to do with the Businesses. Hence, the plaintiff’s claim on these properties are bound to fail.

104.  The Conwell Offices were purchased in 1987, that is, during the 1983 Partnership.

105.  According to the legal principles referred to above, they could not form part of the partnership properties of the 1989 Partnership, unless it can be shown that there was no dissolution of the 1983 Partnership and the Interim Partnership as such.

106.  The plaintiff argued the matter in the following way:

“On 1 October 1989, Narian was admitted as an incoming partner of the Business with the transfer of 60% of Samtani Sr’s interest in the existing partnership to Narian. There was, at that point in time, no dissolution of the partnership. This is evidenced by a form entitled ‘change of partners’ filed at the registry which shows only the addition of Narian to the partnership. While the Defendant admitted to Narian’s 60% share, he also claimed Narian’s admission as a partner formed a second partnership in 1989.”[25]

107.  The emphasis of the plaintiff’s argument was the transfer of Father’s interest in the 1983 Partnership to Narian.

108.  Before I consider this argument further by reference to the facts, I should point out that the plaintiff should not even be allowed to put forward this argument because it is plainly contradictory to his pleaded case. In paragraph 4 of the Re-Re-Amended Statement of Claim, it was pleaded that:

“The Understanding continued

(1) after the Samtani Family Businesses were, in view of the old age and deteriorating health of [Father], converted from sole-proprietorships to partnerships by the registration of the Defendant, who had worked in the Samtani Family Businesses since about 1968, as a partner with effect from 26 May 1983 by consensus between [Father], [Rose], the Defendant, [Kishin] and [Narian]; and

(2) after such partnerships were reconstituted following the death of [Father] on 29 October 1989 and by the registration of [Narian], who had worked in the Samtani Family Businesses since about 1980, as a 60% partner with effect from 1 October 1989.” (emphasis added)

109.  It can be seen that it was the plaintiff’s pleaded case that the partnership was “reconstituted” in 1989. From any view, this must be different from the case where the partnership remained the same despite the change of partners.

110.  That being the case, the partnership properties, according to the plaintiff’s pleaded case, cannot be treated as being taken up by the 1989 Partnership as such.

111.  Moreover, even if the plaintiff had not pleaded positively that the partnership had been reconstituted, he had never pleaded any material facts in support of his assertion that the 1989 Partnership had taken over the assets of the 1983 Partnership and the Interim Partnership.

112.  Even if the plaintiff should be allowed to run such a case, it must be borne in mind that as at the effective date when Narian was added as a partner (1 October 1989), Father was still alive. Therefore, as at 1 October 1989, Father and Narian were partners at the same time. There is no evidence as to the respective percentage of interest held by them. But what is certain is that there could not be a transfer of 60% interest from Father to Narian as alleged.

113.  Mr Hingorani tried to tackle this difficulty in the plaintiff’s case by suggesting that after Narian was made a partner on 1 October 1989, the partnership entered into a transitional period, during which Father was a partner without holding any equity interest in the partnership. With respect, this is totally unsupported by evidence and must be rejected.

114.  In this regard, I note that the defendant’s evidence (which Kishin also accepted) was that in fact Narian was added by the defendant after the demise of Father. Indeed, it can be seen that the “Change of Partners” Form was dated 1 December 1989. Hence, it seems to me what happened was that the defendant somehow had inserted “1 October 1989” as the “Date of [Narian] joining the partnership”, that means the effective date was fixed retrospectively. If that is the case, that provides another reason why Narian’s share in the 1989 Partnership could not have been “transferred” by Father, because Father had already passed away when the defendant submitted the form to change the composition of the partnership.

115.  This would be so even if it was Father’s intention that Narian and the defendant should be 60% : 40% partners, as the existence of the Interim Partnership means there could not have been any “transfer” of Father’s 60% interest to Narian.

116.  The plaintiff further suggested that the defendant’s allegation that the 1989 Partnership is a new partnership has no evidential support. I do not accept this suggestion. It should be noted that it is the plaintiff’s case that the properties had been passed from one partnership to another. Therefore it should be the plaintiff who has the burden of proof. Furthermore, the formation of a new partnership is the legal effect caused by the admission of the new partner (and the retirement of the old partner). If the plaintiff contends otherwise, of course it should be the plaintiff who should satisfy the Court what he suggests to be the actual position.

117.  For the sake of completeness and at the risk of stating the obvious, section 35(1) of the Partnership Ordinance (Cap.38, Laws of Hong Kong) should also be referred to. This provision stipulates that:

“Subject to any agreement between the partners, every partnership is dissolved as regards all the partners by the death or bankruptcy of any partner.”

118.  The plaintiff has not pleaded, nor has he adduced any evidence to prove, any agreement which negates the effect of Father’s death on the continuation of the partnership.

119.  The conclusion that the landed properties are not partnership properties is further reinforced by the fact that there is no evidence that they had ever been recorded as such in the accounts of the 1989 Partnership.

120.  As far as the 4/F Conwell Office is concerned, if it had all along been treated as a property owned by the 1989 Partnership, the Businesses would not have paid the defendant any rental as they did.

121.  Most of the above analysis is not applicable to the South Horizons Flat, because it was purchased after the formation of the 1989 Partnership. In other words, the plaintiff does not have to establish the transfer of this property from one partnership to another.

122.  However, the point on the accounts of the 1989 Partnership is still applicable – there is no evidence that the South Horizons Flat has ever been included as a partnership property in the account of the 1989 Partnership. Moreover, it is apparent that it was not purchased for the purpose of the Businesses.

123.  I therefore hold that none of the landed properties belong to the 1989 Partnership and the plaintiff’s claims in this regard must fail.

124.  Having said that, for the sake of completeness, I will deal with the plaintiff’s arguments that the aforesaid properties were all purchased from the Businesses’ funds below briefly.

G3.3 Source of funds – the Maiden Court Flat and the Aberdeen Centre Flat

125.  First and foremost, it should be pointed out that, since it is the plaintiff’s claims that the purchases of the landed properties were funded by the Businesses, the plaintiff has the burden of proving this allegation on the balance of probabilities.

126.  In this regard, the plaintiff’s case theory is that:

(1) While the purchases of the Maiden Court Flat and the Aberdeen Centre Flat were partly financed by mortgage loans, the defendant was still required to pay around $531,500 as part payments in the space of 9 months;

(2) Even assuming that the defendant was earning around $1,000 per month, in the 5 years since the purchase of the Evelyn Towers Flat in 1977, he could only have saved around $60,000 at most;

(3) Therefore, the defendant could not have afforded to pay the said total of around $531,500;

(4) The defendant has been silent as to how much he has made out of his allegedly very successful investments;

(5) The only inference that can be drawn is that the Businesses funded the purchase of each of the properties.

127.  Pausing here, it seems to me there is a fundamental problem with this case theory, in that the plaintiff has reversed the burden of proof. It must be borne in mind that the properties were held under the name of the defendant. If the plaintiff is alleging that the defendant was not the beneficial owner, it must be the plaintiff who should prove positively that the purchase funds came from the Businesses, rather than the other way round.

128.  In this regard, in fact the plaintiff could not come up to prove, because Kishin admitted under cross-examination that he did not know where the funds came from – whether they came from the Businesses or from Father’s personal bank account.

129.  Narian’s evidence is unhelpful in this respect also, for he could only make a bare assertion that the purchases were funded by the Businesses.

130.  On the other hand, there is the evidence of the defendant that, apart from other investments, he had made a profit of around $700,000 – $800,000 within 3 months out of his purchase of an uncompleted property at Hill Grove in 1979. His evidence on what happened in this transaction is supported by the land search record.

131.  I therefore hold that the plaintiff has failed to prove that the funds used to purchase the Maiden Court Flat and the Aberdeen Court Flat came from the Businesses.

132.  This finding is also supported by the following objective fact: If the defendant had the habit of claiming family assets as his own, then why did he agree to add Narian as a partner after Father’s demise in 1989? What the defendant could have done at that time was to simply turn the Businesses into sole proprietorship so that he himself would have the sole power to control everything belonging to the family. However, not only did he not do so, he made Narian a partner – not only a partner, but a partner with a larger equity interest in the Businesses. In this regard, I have not forgotten the defendant’s letter dated 21 February 2011 to the plaintiff’s solicitors in which he stated that it was Father’s decision to give Narian his 60% ownership in the partnership. However, by the time the defendant submitted the “Change of Partner” form, Father had already passed away. Hence, the defendant could have ignored Father’s decision.

133.  Another important matter which should be considered is this Court’s finding that the alleged Understanding and Indian family tradition did not exist. In such circumstances, there is no reason why the properties bought by Father or the Businesses should be registered under the sole name of the defendant.

G3.4 Source of funds – the Conwell Offices

134.  Apart from arguing that the defendant has not proved his source of funds, the plaintiff’s counsel has not made submissions on the plaintiff’s case that the Conwell Offices were purchased with the Businesses’ funds.

135.  The plaintiff’s case in this regard is therefore bound to fail, as it is my view that the plaintiff should have the burden of proving his case.

136.  In fact, it is not surprising that the plaintiff’s counsel could not say much about the Conwell Offices, because Kishin’s evidence on this matter is totally unhelpful:

(1) In his witness statement, Kishin could only make a bare assertion that the purchase funds came from the Businesses;

(2) However, he admitted in Court during cross-examination that that was only his guess and he did not know this as a fact;

(3) He alleged that he and other siblings did request that the Conwell Offices should be registered under their names rather than under the defendant’s sole name, but the defendant refused. This is incredible.

137.  Indeed, it is evident that the defendant used his personal cheques to pay for the legal costs of acquisition of the 3/F Conwell Office. If it was the Businesses which funded the purchase, there is no reason why the defendant’s personal cheque (rather than the Businesses’ cheque) was used.

138.  Moreover, if the purchase funds were really coming from the Businesses, Narian as 60% partner of the Businesses would not have agreed to enter into tenancy agreements with the defendant in respect of the 4/F Conwell Office and pay rent to the defendant.

139.  Furthermore, if the Businesses were the real owner of the 3/F Conwell Office, it is difficult to understand why the rental received from the tenant thereof had never been booked in the Businesses’ account.

140.  The analysis in [132] and [133] above is also applicable.

141.  I therefore find that the purchase funds for the Conwell Offices did not come from the Businesses as alleged by the plaintiff.

G3.5 Source of funds – the South Horizons Flat

142.  In Kishin’s witness statement, he alleged that the deposit for this property (and Rose’s SH Flat) came from family funds that had been deposited with Standard Chartered Bank, and the mortgage repayments and other expenses were covered by Businesses’ funds.

143.  However, when he was cross-examined in Court, he stated that:

(1) he believed Rose’s SH Flat was purchased by Rose’s own money rather than by the Businesses’ money;

(2) the defendant used the monies which he misappropriated from CESCO to purchase the South Horizons Flat.

144.  When Kishin was cross-examined further, he admitted that he did not know where exactly the defendant got the purchase money for the South Horizons Flat from.

145.  When it was pointed out to Kishin that his evidenced in Court was different from what he said in his witness statement, he changed his evidence again and stated that he would stick to his witness statement.

146.  In my view, the inconsistency in Kishin’s evidence shows that his evidence in this respect incredible and unreliable. He was only speculating in his evidence, and had no basis at all to support his allegation against the defendant.

147.  The analysis in [133] above is also applicable.

148.  I therefore find that the plaintiff has failed to prove that the source of funds for the purchase of the South Horizons Flat came from the Businesses.

G4. The Evelyn Towers Agreement

149.  To recap, it is alleged by the plaintiff that the Evelyn Towers Agreement was reached in around late 2004 between Narian and the defendant, under which Narian would transfer his 20% interest in the Manderly Garden House to the defendant who in return would transfer his legal title and beneficial interest in the Evelyn Towers Flat together with $10 million to Narian.

150.  It is now alleged by the plaintiff that, while Narian had assigned his 20% interest in the Manderly Garden House to the defendant by virtue of a Vesting Assignment dated 1 February 2005, the defendant has refused and failed to transfer the Evelyn Towers Flat to Narian and pay him $10 million.

151.  The defendant denied the existence of the Evelyn Towers Agreement. His case is that Narian agreed to transfer his 20% interest in the Manderly Garden House back to him because Narian was unable to make his 20% contribution towards the purchase price and the expenses in relation thereto.

152.  The defendant’s case is supported by a Vesting Assignment dated 1 February 2005 executed by Narian by which he assigned his 20% interest in the Manderly Garden House to the defendant, in which the Evelyn Towers Agreement was not mentioned at all, and the payment of $10 million and/or the transfer of the Evelyn Towers Flat was not stated to be the consideration of the assignment of the said 20% interest.

153.  Narian explained in his witness statement that he did not have any proper opportunity to read the aforesaid document before he signed it. However, it should be borne in mind that according to Narian’s own evidence, at the material time, he had already seen enough to realise that the defendant would not keep his words[26]. If what Narian said was true, it is difficult to understand why he would agree to execute the aforesaid document, still less not to insist in putting the Evelyn Towers Agreement into writing.

154.  The defendant’s case is also supported by Rose, whose evidence is accepted by this Court.

155.  I have therefore come to the conclusion that the plaintiff has failed to prove the existence of the Evelyn Towers Agreement.

G5. Misappropriation of funds and the CESCO Arrangement

156.  I have already summarised the respective cases of the parties in Sections B and C above and I would not repeat the same.

157.  In support of his argument that the alleged CESCO Arrangement was a fabrication, the plaintiff relied heavily on the following features of the present case:

(1) the CESCO Arrangement was not pleaded right away in the Defence but only in subsequent amendments;

(2) the supporting documents were not disclosed by the defendant earlier;

(3) the defendant only came up with his purported explanations in his 5^th Affirmation (filed on 19 January 2012) when he was confronted with documentary evidence obtained by the plaintiff from the Standard Chartered Bank;

(4) the defendant did not fully explain the CESCO Arrangement in his affirmations but only responded to specific allegation of misappropriation raised against him;

(5) no representative from CESCO had given any sworn confirmation on the CESCO Arrangement; neither was there any evidence of written communication by the defendant seeking the confirmation from CESCO; and

(6) while the defendant had produced a document from CESCO in which CESCO seemed to have confirmed the CESCO Arrangement, it was dated immediately after Narian’s 5^th and 6^th Affirmations and followed exactly as those particularized in Narian’s 5^th and 6^th Affirmations.

158.  I agree that the fact that the defendant did not plead his case on the CESCO Arrangement right away when he filed his first version of the Defence is indeed suspicious and that is something that the Court has to take into account. However, it should be remembered that the CESCO Arrangement is supported by documents including credit notes issued by Kay Tee. If it is the plaintiff’s case that the alleged CESCO Arrangement did not exist at all, then it follows that it is also the plaintiff’s case that the credit notes must be fabricated documents, which were created in support of the defendant’s defence. In my view, this is a very serious allegation, and the Court should not come to this finding lightly without compelling evidence.

159.  Having considered all the circumstances of the case, I am of the view that it is more likely than not that the CESCO Arrangement existed, and that the defendant did not misappropriate any money as alleged.

160.  First, CESCO has issued a total of 3 confirmations (“the CESCO Confirmations”) which confirmed that CESCO had indeed received all commission from the defendant. That means the defendant did not misappropriate any short-fall as alleged.

161.  In relation to the CESCO Confirmations, it is noted that the plaintiff has only challenged the authenticity of one of them by pleading, but did not file Notice of Non-Admission under Order 27 rule 4 of the RHC in respect of the other 2 confirmations.

162.  The plaintiff asked the question why the defendant did not call the owners of CESCO to give evidence in Court. However, the reverse is true too. Given Kishin’s admission that he also had the contact information of CESCO, he could have approached CESCO and verified the genuineness of the content of the CESCO Confirmations. However, Kishin said he had dropped this idea because he thought CESCO would not reply anyway[27]. With all these in mind, I am of the view that due weight should be given to the confirmations in respect of which authenticity were not challenged. After all, there is no evidence as to why CESCO and its owners had to bend backwards to the extent of creating false documents to assist the defendant in his defence herein.

163.  Second, the entries appearing in the CESCO Confirmations can be matched with contemporaneous documents such as the defendant’s bank statements which show that there were indeed corresponding remittances. There were also contemporaneous emails which show that CESCO had directed the defendant to pay the credit to CESCO’s designated parties. In other words, the defendant did not keep any short-fall for his own use as alleged.

164.  Third, it should also be borne in mind that, as admitted by Kishin, at the material time the Businesses only had one computer and one email account the use of which were shared by the defendant and Narian. In other words, Narian could have accessed to the correspondence between the defendant and CESCO. This shows that it is more likely than not that Narian knew about the CESCO Arrangement. Indeed, it is the evidence of Michelle (which I accept) that Narian knew about it at all material times. Hence, the defendant could not be doing something behind Narian’s back.

165.  Fourth, there is nothing suspicious for one of the CESCO Confirmations to be dated immediately after Narian’s 5^th and 6^th Affirmations and followed exactly as those particularized in Narian’s 5^th and 6^th Affirmations, because apparently the said confirmation was prepared specifically for the purpose of dealing with Narian’s allegations.

166.  Fifth, if the defendant did misappropriate monies from the Businesses, one wonders why the plaintiff could only discover problems in relation to one customer (i.e. CESCO). In my view, this tends to support the defendant’s evidence that this was a special arrangement which was created at the request of one customer (CESCO) only.

167.  Sixth, I reject Kishin’s evidence that the Businesses did not require the defendant to advance his own funds for the running of the business:

(1) He had left the Businesses in 2006 and therefore could not have any knowledge on the Businesses’ usage of banking facilities afterwards;

(2) Even in relation to the time when he was still working at the Businesses, it is incredible for him to allege that he had always had good knowledge on the extent of the banking facilities used by the Businesses at any moment, as this is extremely improbable, as he was not the only one who would cause the facilities to be used.

168.  Seventh, insofar as it is the plaintiff’s case that there was no reason why the defendant would have to use his personal bank account to conduct business, this argument is made to be rejected, for Kishin also admitted in Court that he had opened a joint bank account with a client for the purpose of receiving payments owed to the Businesses.

169.  To conclude, the plaintiff’s claim of misappropriation must be rejected.

G6. The defendant’s counterclaim – Regal Top

170.  The defendant alleged that Narian, in breach of his duties owed as a partner to the Businesses, had:

(1) engaged in and/or dealt with the business of Regal Top, which was a business operated by Kishin, and was in competition with the Businesses;

(2) diverted business / customers of the Businesses to Regal Top.

171.  The defendant’s counsel have referred this Court to the case of Aas v Benham [1891] 2 Ch 244, in which Lindley LJ held at 255 that:

“It is clear law that every partner must account to the firm for every benefit derived by him without the consent of his co-partners from any transaction concerning the partnership or from any use by him of the partnership property, name or business connection […] It is equally clear law that if a partner without the consent of his co-partners carries on business of the same nature as, and competing with that of the firm, he must account for and pay over to the firm all profits made by him in that business […] Dean v. MacDowell shews that a partner is not bound to account to his co-partners for profits made by him in carrying on a separate business of his own, unless the case can be brought within one or other of the two principles to which I have alluded, even if he carries on such separate business contrary to one of the partnership articles.”

172.  It is also trite that a fiduciary may not put himself in a position where his interest and duty conflict or there is a real risk that they might conflict. Thus, no actual conflict is required for a fiduciary to breach his duties, provided that there be a real sensible possibility of conflict: Poon Ka Man Jason v Cheng Wai Tao (2016) 19 HKCFAR 144 at [74].

173.  Section 32 of the Partnership Ordinance also provides that:

“If a partner, without the consent of the other partners, carries on any business of the same nature as and competing with that of the firm, he must account for and pay over to the firm all profits made by him in that business.”

174.  In the present case, it is undisputed that, after Kishin had left the Businesses, he set up Regal Top which engaged in import and export business. It is therefore apparent that Regal Top was carrying on a business of the same nature as the Businesses. Indeed, as admitted by Kishin, most customers of the Businesses and Regal Top were the same.

175.  However, it was Narian’s evidence that he was not and had not been involved in Regal Top’s business.

176.  In my view, Narian’s evidence in this regard must be rejected:

(1) It is evident that Narian had a name card of Regal Top, in which he was described as a director thereof. His explanation that he had no knowledge about this name card is totally incredible;

(2) Narian’s further explanation that the format of the aforesaid name card did not follow the printing style of the business card used by Kishin is also incredible. If that is true, given the admittedly close relationship between Kishin and Narian, he could have caused Kishin to produce his own Regal Top name card for the purpose of making good this point, which he (as well as Kishin) had failed to do so. Kishin’s explanation that this thought did not occur to him is totally unbelievable.

(3) It is evident that Mr Nikos Garifalakis (“Mr Nikos”) sent an email on 19 November 2008 to Narian which reads:

“[…] I have paid the container of cutlery to kishin before 10 days and I don’t receive […]”

As admitted by Kishin, this was a transaction Regal Top had concluded with Mr Nikos. I agree with the defendant’s argument that there was no reason why Mr Nikos would have contacted Narian in respect of an order with Regal Top, unless Narian was carrying on Regal Top’s business together with Kishin. It should also be noted that, by the time of the email, Kishin had already left the Businesses for over 2 years. It is therefore extremely unlikely that Mr Nikos would have mixed up the 2 companies. Kishin’s explanation that Mr Nikos had sent this email to Narian because Mr Nikos knew they were brothers is totally incredible.

(4) Another document which proves that Narian was working for Regal Top in December 2007 is an email sent by Athanassios to Narian on 27 December 2007. By this email, Athanassios discussed with Narian as to the way to settle a sum which he owed Narian with the commission payable in respect of a transaction with Kishin’s Regal Top.

(5) It is also evident that Kishin had paid Narian a sum of HK$75,766.27 by a cheque issued by Regal Top on 23 December 2009. Kishin explained in Court that it was for the repayment of a personal loan of US$10,000 to Narian. I do not accept his evidence in this regard, because according to what he told the Court about how the defendant treated Narian, Kishin’s financial strength must be much stronger than Narian. The evidence that he had to borrow money from Narian is therefore unbelievable.

177.  Given the nature of Regal Top’s business and the admitted common clientele, there must be a conflict of interest on the part of Narian.

178.  Narian’s estate should therefore be ordered to give an account of profits which Narian had made in Regal Top.

G7. The defendant’s counterclaim – Narian’s occupation of the Evelyn Towers Flat

179.  It is undisputed that the defendant as legal and beneficial owner of the Evelyn Towers Flat had requested Narian on 12 May 2011 to leave the said property, which Narian had refused to do so.

180.  In his submissions, the plaintiff opposed this claim by relying on (1) the Understanding; (2) resulting trust in favour of Father; and the Evelyn Towers Flat being a partnership asset. These defences have either been abandoned or rejected in the earlier part of this Judgment.

181.  Hence, the plaintiff has no defence to this claim.

182.  However, the defendant has not adduced any evidence in support of his claim of mesne profit.

183.  In such circumstances, as accepted by Mr Lin, the defendant is only entitled to nominal damages.

184.  I therefore access such damages at $1,000.

H. ORDER

185.  By reasons of the aforesaid:

(1) The plaintiff’s claims are hereby dismissed;

(2) The plaintiff be ordered to give an account of profits which Narian had made in Regal Top;

(3) The plaintiff be ordered to pay the defendant the sum found due following such account;

(4) The plaintiff be ordered to pay the defendant nominal damages in the sum of $1,000.

I. COSTS

186.  I make a costs order nisi that the plaintiff shall bear the costs of the defendant, with certificate for two counsel, to be taxed if not agreed.

187.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.