WONG KAI FOOK v. WONG KING CHAN

HCA 2621/2018

[2022] HKCFI 1652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2621 OF 2018

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J U D G M E N T

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1.  This is the trial of an action arising out of, unfortunately, a dispute between father and daughter in relation to the ownership of a property known as 2^nd Floor, Tai Wo Commercial Building, No. 513 Nathan Road, Kowloon, Hong Kong (the “Property”).

Background

2.  The Plaintiff married Madam Yong Geo Fong (“Madam Yong”) in mainland China in around 1962.

3.  The Plaintiff and Madam Yong had 4 children during their marriage.

4.  The Defendant is the eldest daughter of the Plaintiff and Madam Yong.

5.  When the Plaintiff, Madam Yong and their 4 children first came to Hong Kong in 1975, they rented and lived in an apartment in Mong Kok (the “Mong Kok Apartment”).

6.  The Plaintiff has been a practitioner of Chinese medicine in Hong Kong since about 1975.

7.  In around 1977, the Plaintiff and Madam Yong became divorced. As a result, Madam Yong moved out of the Mong Kok Apartment with the 4 children.

8.  Since mid-1990s, the Plaintiff began renting the Property for the purpose of carrying on his Chinese medical practice.

9.  In 1999, the Property was subject to a mortgage in favour of China State Bank Limited (the “Bank”). In September 1999, the Bank recovered possession of the Property from the then registered owner and the Plaintiff was consequently evicted from the Property. The Plaintiff rented another unit in the Mezzanine Floor of the same building to continue his practice.

10.  In late 1999, the Bank obtained an order for sale of the Property. In about early 2000, the Property was put up for sale by the Bank. The Property remained unsold despite several attempts to sell through public auction.

11.  Eventually, on 17 May 2000, a Provisional Sale and Purchase Agreement (the “Provisional Agreement”) was entered into between the Defendant and the Bank at the purchase price of HK$1,160,000.

12.  On 16 June 2000, a mortgage facility letter was issued by the Bank to the Defendant for a mortgage loan of HK$810,000 repayable by 48 monthly instalments at HK$20,349.74. Consequently, the Defendant acquired the Property with the help of a mortgage from the Bank (the “Mortgage”).

13.  On 26 June 2000, a formal sale and purchase agreement (the “Formal Agreement”) was signed by the Defendant as purchaser of the Property. It was stated in the Formal Agreement that, inter alia:-

(a)  the purchase price of the Property was HK$1,160,000;

(b)  the total sum of the deposit was HK$116,000 and had been paid by the purchaser;

(c)  the balance of the purchase price was HK$1,044,000.

14.  On 15 July 2000, the Mortgage was executed by the Defendant and the Property was assigned to the Defendant on even date.

15.  Since then, the Plaintiff moved back to continue his Chinese medical practice at the Property and the Defendant became and has remained as the registered owner thereof.

16.  The Mortgage was discharged on 21 October 2005.

The Plaintiff’s case

17.  It is the Plaintiff’s case that when and before the Property was put up for sale in early 2000, the Plaintiff and the Defendant discussed the purchase of the Property at a price of around HK$1,000,000 with the intention of long-term investment and using the Property as the clinic of the Plaintiff’s Chinese medical practice.

18.  During the discussions from 1999 to early 2000, there was an oral agreement, a mutual understanding and/or common intention formed between the Plaintiff and the Defendant that:-

(a)  each of them would contribute about 15% of the purchase price towards the down payment for the purchase of the Property and contribute equal shares in all ancillary expenses for the acquisition of the Property;

(b)  the balance of the purchase price would be financed by a mortgage loan to be obtained from a bank with all loan repayments to be made by the Plaintiff solely;

(c)  the Property would be purchased and held in the name of the Defendant only and the Plaintiff would be entitled to ½ share in the interest of the Property;

(d)  the Property would be used by the Plaintiff during his lifetime as the clinic of his Chinese medical practice or otherwise exclusively and the Plaintiff would not be required to pay any rent or license fee to the Defendant.

19.  In furtherance of his claim, the Plaintiff alleged that:-

(a)  from about 1999 to early 2000, he passed and entrusted the Defendant a total sum of HK$220,000 in cash for the Defendant’s custody holding on trust for the Plaintiff for the purpose of purchasing the Property;

(b)  the said HK$220,000 was used and applied towards part of or ½ share of the down payment for the purchase of the Property and all ancillary expenses for the acquisition of the Property;

(c)  since the purchase of the Property, the Defendant repeatedly told the Plaintiff that she would be liable for the monthly mortgage repayment and the same should be solely borne and paid by the Plaintiff;

(d)  the Plaintiff paid and contributed to the monthly repayment of the Mortgage by depositing money mainly in cash into the Defendant’s bank account or by paying it to the Defendant;

(e)  the Plaintiff has used the Property as the clinic of his Chinese medical practice and his residence exclusively without any payment of rent or licence fee to the Defendant at all, and the Defendant has never requested or demanded the Plaintiff to pay any rent or licence fee;

(f)  the Plaintiff had incurred expenses for the improvement, decoration and maintenance of the Property, attended and voted as one of the beneficial owners of the Property at meetings of the owners of that building.

20.  Apart from his constructive/resulting trust claim, the Plaintiff also premised his claim on proprietary estoppel and/or estoppel by representation and/or estoppel by convention. It is the Plaintiff’s case that by reason of the above, the Defendant is estopped from denying the Plaintiff his 50% share and interest in the Property or such other share or interest in the Property that are proportionate to the Plaintiff’s contribution to the purchase price of the Property.

21.  The Plaintiff prays for the following relief:-

(1)  A declaration that the Defendant has held or holds the Property on trust for the Plaintiff and the Defendant in equal shares subject to the Plaintiff’s right to use the Property exclusively during his lifetime without payment of rent or licence fee to the Defendant;

(2)  In the alternative to (1) above, a declaration that the Defendant has held or holds the Property on trust for the Plaintiff and the Defendant in such shares as the Court shall determine subject to the Plaintiff’s rights to use the Property exclusively during his lifetime without payment of rent or licence fee to the Defendant; and

(3)  An order that that Defendant do assign, transfer and convey the legal title of the Property to the Plaintiff in such shares proportionate with the beneficial ownership or interest in the Property as so declared by the Court subject to the Plaintiff’s rights to use the Property exclusively during his lifetime without payment of rent or licence fee to the Defendant.

The Defence

22.  The Defendant accepts that there was a common intention between the Plaintiff and her in relation to the purchase of the Property. What is in dispute is the terms/contents of such common intention.

23.  It is the Defendant’s case that prior to the signing of the Provisional Agreement, she and the Plaintiff met up for lunch in Mong Kok during which an oral agreement and/or mutual understanding and/or a common intention was reached in that:-

(a)  the Property would be solely owned by the Defendant and hence to be registered under her sole name;

(b)  the down payment of 30% of the purchase price of the Property would be borne solely by the Defendant;

(c)  the Plaintiff shall pay the Defendant monthly rent of HK20,000 for running his Chinese medical practice at the Property;

(d)  the Plaintiff would be responsible for the management fees, utilities and rates (the “Expenses”) of the Property;

(e)  the Defendant would apply for a mortgage, repayment of which would be roughly around HK$20,000 per month so that the Plaintiff could pay the monthly rent to the Defendant by way of making deposits into the Defendant’s bank account maintained with the Bank;

(f)  should the Plaintiff encounter any difficulty in paying rent, the Defendant would be prepared to lower the agreed monthly rent, but the Plaintiff would still be responsible for paying the Expenses;

(g)  the Defendant shall not sell the Property during the Plaintiff’s lifetime to ensure that the Plaintiff could continue his Chinese medical practice thereat;

(h)  upon the discharge of mortgage, the Plaintiff would continue to pay rent to the Defendant and be responsible for the Expenses, but if the Plaintiff has genuine difficulty in paying rent, the Defendant could consider accepting such rent as the Plaintiff could reasonably afford.

Issues

24.  According to the Agreed Schedule of Disputed Issues filed by the parties on 12 July 2021, in determining the interest of the Plaintiff in the Property (if any), the following broad issues are involved:-

(a)  the terms of the oral agreement, the mutual understanding and/or the common intention in connection with the ownership and use of the Property between the Plaintiff and the Defendant;

(b)  whether the Plaintiff had contributed to the costs and expenses for the acquisition, maintenance and/or improvement of the Property, if so, how much?

(c)  whether the Defendant was holding the Property on constructive trust and/or resulting trust for the Plaintiff;

(d)  whether the Defendant was estopped by reason of proprietary estoppel and/or estoppel by representation and/or estoppel by convention from denying the Plaintiff’s interest and ownership in the Property.

Applicable Legal Principles

25.  The applicable legal principles are not in dispute.

26.  First of all, it was stated by Ms Recorder Eva Sit SC in Woo Tat Huen v Lee Wai Ping [2021] HKCFI 576 at §42 that the burden is on the non-owner to show that he has any interest in the subject property:-

“42. The starting point where there is sole legal ownership (as is the present case) is sole beneficial ownership, and the onus is on the person seeking to show that beneficial ownership is different from the legal ownership; in other words, it is for the non-owner to show that he has any interest at all: Stack v Dowden [2007] 2 AC 432, §56.”

27.  The law on common intention constructive trust has been conveniently summarized by DHCJ Alexander Stock SC in Leung Hang Lin v Lam Mei Yung [2019] HKCFI 2819 at §8:-

“8. In summary:

(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.

(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom. See: Luo Xing Juan§38; Liu Wai Keung §46.

(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct. See: Liu Wai Keung §47; Mo Ying §5.16.

(4) The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts. The court is not constrained to consider only pure direct monetary contributions to the purchase price. In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters. See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.”

28.  The distinction between express discussion by the parties on the shares and inference to be drawn in the absence of such a discussion was explained by Lord Bridge of Harwich in Lloyds Bank plc v Rosset and Another [1991] 1 AC 107 and was adopted by the Court of Appeal in Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985 at §5.8:-

“5.8 … The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel.

In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do. ” (emphasis added)

29.  If it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust: see Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at §1.3.

30.  Where both parties allege there was express discussion and actual intention as to where the beneficial interest in the property should lie, there is little scope for the operation of resulting trust: see Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at §45.

31.  Regarding the principles of different types of estoppel, I do not consider it necessary to set them out in full here: see Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 at §§52-57; Unruh v Seeberger (2007) 10 HKCFAR 31 at §§126-155.

Evidence of the Plaintiff’s case

32.  The Plaintiff’s first witness is Mr Choi Wai Hung (蔡偉雄). He bought the Property in 1978. He later acquired the 4^th Floor of the same building in 1982 using his company East Sea Trading Company Limited as the registered owner. In 1991, Mr Choi caused the Property and the 4^th Floor unit to be transferred to Vasthuge Limited which was a company controlled by his daughter and his sister-in-law. In fact, as of 1999, the Property, the 4^th Floor unit and two other properties were mortgaged in a bundle to the bank to secure a banking facility. These properties were further subjected to a second mortgage in favour of a finance company. In 1999, Vasthuge Limited was under financial difficulties. Eventually, the bank foreclosed on the said mortgage and obtained possession of the above-mentioned properties including the Property.

33.  Between around 1985 and 1996, Mr Choi operated a Chinese Medicine Clinic at the Property which was a sole-proprietorship business registered in the name of “中國皮膚專科”. Mr Choi became acquainted with the Plaintiff in 1981. At that time, the Plaintiff worked in Mr Choi’s clinic (which was at the time located in another address) as a casual worker. In 1985, the Plaintiff became a full-time employee working at Mr. Choi’s clinic operating at the Property.

34.  In or about 1996, the business of Mr Choi in Guangzhou encountered certain crisis which required Mr Choi to move to station in Guangzhou. It was thus arranged between Mr Choi and the Plaintiff that the latter would take up the operation of the clinic. At that time, the market rent of the Property would be around HK$5,000 to HK$6,000. Since the clinic was equipped with necessary equipment and had customer base, it was agreed that the Plaintiff would give Mr Choi a monthly sum of HK$7,000 as the consideration for taking up the business operation at the Property. As between the two laymen, they described the said monthly payment as “rental”. It was also the understanding of the two gentlemen that should Mr Choi return to station in Hong Kong, the Plaintiff would hand over the business of the clinic back to Mr Choi. This arrangement started around January 1996 and lasted up to around September 1999.

35.  Mr Choi stated that by reason of his friendship with the Plaintiff, the aforesaid arrangement was reached orally and the parties did not enter into any written agreement or tenancy. The said monthly sum of HK$7,000 was given by the Plaintiff to him, his wife or his representative in cash. He did not issue any receipt. In cross-examination, Mr Choi stated that this monthly sum of HK$7,000 was suggested by him which the Plaintiff did not oppose.

36.  In cross-examination, counsel for the Defendant Mr Wong suggested to Mr Choi that in the summer of 1999, he approached the Plaintiff seeking to sell the Property to the Plaintiff and demanded a deposit of HK$300,000. Mr Choi denied the suggestion. Mr Choi added that he could not have done so because the Property was bundled with 3 other properties under the same mortgages and the entire indebtedness was over HK$13 million[1]. I find the evidence of Mr Choi in this regard inherently probable.

37.  It was also suggested to Mr Choi that in the summer of 1999, a lunch meeting took place between his wife, a friend of his wife, the Plaintiff and the Defendant whereupon a sale of the Property was discussed. Mr Choi said that according to what he learnt from his wife, such incident did not take place at all. For the same reason as above, I find it inherently improbable that such alleged discussion took place.

38.  Mr Choi gave his evidence in a straightforward fashion. He was unshaken in cross-examination. He frankly admitted his friendship with the Plaintiff. Despite so, he is not personally interested in the outcome of these proceedings. I consider Mr Choi an honest and independent witness and I accept his evidence. The crux of his evidence is that as of 1999, the Plaintiff was providing a “monthly rental” of HK$7,000 to him for the operation of the clinic business at the Property. Mr Choi’s evidence is thus corroborative of the Plaintiff’s evidence in this regard.

39.  The Plaintiff was the next witness. He is aged 83. He was educated in and qualified as a medical doctor in Nanjing. It was his profession between 1963 and 1975 until he emigrated to Hong Kong that year with his former wife. He had 4 children by that marriage, two of whom had unfortunately passed away. The Defendant is the eldest daughter. His other daughter is now residing in Taiwan. The Plaintiff was divorced in 1977 but he maintained very good relationship with the Defendant.

40.  From 1985 to 1996, the Plaintiff worked in the clinic of Mr Choi which operated at the Property. In 1996, he took over the operation of the clinic from Mr Choi and it was agreed that he would pay Mr Choi a monthly fee of HK$7,000 which the two gentlemen regarded as “rent”. The Plaintiff’s evidence about the arrangement is consistent with the evidence of Mr Choi.

41.  According to the Plaintiff, between January 1996 and September 1999, the monthly revenue of his clinic business was around HK$50,000. It was a cash business. After deducing expenses and the monthly “rent” of HK$7,000, the monthly profit from the business would be around HK$23,000. After deducting his personal expenses of around HK$5,000 per month, he would be able to save around HK$18,000 every month. It was his practice to keep his cash savings in the Property instead of putting them in a bank account.

42.  In 1999, the Property was foreclosed by the bank. The bank notified the Plaintiff that he had to vacate the Property. As a result, the Plaintiff rented another unit in the Mezzanine Floor of the same building. He paid a rent of HK$5,000 per month. A certain bank staff told the Plaintiff that the Property would be put up for auction and that the Plaintiff could consider buying the Property. The Plaintiff was desirous of maintaining his clinic business at the Property so that he could keep his patients. He therefore discussed with the Defendant with a view to buying the Property together as a long term investment as well as to enable the Plaintiff to carry out his clinic business at the Property.

43.  As a result of the discussion, the Plaintiff and the Defendant planned to acquire the Property at around the price of HK$1 million. The Plaintiff was told by the Defendant that the down payment (30% of purchase price) and related expenses would be around HK$400,000. It was orally agreed that the amount needed would be shared between them. It was also agreed that the balance of purchase price would be financed by a bank mortgage and that the Plaintiff would be responsible for paying the monthly mortgage instalments. The Property would be purchased in the sole name of the Defendant who would hold Plaintiff’s half interest in the Property for him. The Plaintiff would be entitled, in his lifetime, to use the Property without any rent/fee towards the Defendant (“Plaintiff’s version of Oral Agreement”).

44.  The Plaintiff said that pursuant to the Plaintiff’s version of Oral Agreement, he gave a total sum of HK$220,000 in cash to the Defendant in two tranches: HK$100,000 towards the end of 1999 and HK$120,000 in or about April 2000. These monies were given to Defendant in the presence of Chen.

45.  The Plaintiff explained that the Property was acquired in the sole name of the Defendant because he was at the time over 60. The Defendant told him that if he were to be named as a joint owner, there would be difficulties in applying for a mortgage. The Plaintiff said he trusted and relied on the Defendant in entering the Plaintiff’s version of Oral Agreement. Furthermore, it would save him the trouble of handling the procedures with the bank and lawyers. It is not in dispute that the purchase of the Property was conducted by the Defendant.

46.  After the acquisition of the Property on 15 July 2000, the Plaintiff moved back from the Mezzanine Floor unit to the Property where he conducted his clinic business until today. It is not in dispute that the original term of the mortgage was for 48 months. The original monthly instalment was slightly less than HK$20,400. The Plaintiff said every month he would deposit HK$20,400 in cash to the bank account opened in the name of the Defendant for the purpose of mortgage repayment. The bank book of this account with the China State Bank Ltd. (later became part of Bank of China) is in evidence (“the Bank Account”)[2]. Then in 2001, the Plaintiff was told by the Defendant on a number of occasions that due to reductions in interest rates, he could pay less into the Bank Account. In October 2001, he would deposit HK$19,000 into the Bank Account every month.

47.  Then towards the beginning of 2002, the Plaintiff said his business worsened and he felt that the then monthly instalment was too burdensome. He thus asked the Defendant to arrange with the bank with a view to reducing the amount of monthly instalment through extending the term of the mortgage loan. On two occasions in May and July 2002 respectively, the Defendant gave him two sets of “供款明細表” obtained from the bank for his consideration[3]. In fact, the Defendant had earlier also provided him with “還款資料通知書” for his consideration[4].

48.  As of July 2002, the outstanding mortgage loan was HK$416,000. The Plaintiff said he eventually chose the option of monthly instalment of HK$12,398.96 (i.e. a repayment term of 36 months) so as to minimize the amount of interest payable to the bank. He asked the Defendant to make the arrangement with the bank. Since September 2002, the Plaintiff had been depositing HK$12,400 every month into the Bank Account. It is not in dispute that the mortgage loan was fully repaid in 2005 and the last instalment was made in August 2005. The mortgaged was discharged 21 October 2005[5].

49.  The Plaintiff has produced a table[6] (“Plaintiff’s Table”) setting out all amounts which he claims to have deposited into the Bank Account. He is able to produce deposit receipts for many of the items which he identifies as “ticked items” in the Table. The “unticked items” are matters in dispute. The Defendant’s case is that the “unticked items” were paid in by her. I will return to this matter in due course.

50.  Apart from making the monthly mortgage instalment repayments, the Plaintiff said he paid for all management fees and rates. He is able to produce some documentary support[7] and it is not a matter in dispute. The Plaintiff also claims to have paid roughly HK$48,000 for electrical installation/repair in May 2000[8]; a sum of HK$9,000 also in May 2000 for laying electrical cable[9]; a sum of HK$5,500 for decoration[10]; a sum of HK$6,000 for bathroom repair[11]; and a sum of HK$30,000 for removal of illegal structure in 2003. These assertions have not been challenged in cross-examination of the Plaintiff and were not disputed in the Defendant’s evidence. What remain in dispute are the following items:-

(1)  a sum of HK$40,000 allegedly paid by the Plaintiff for fire safety installations on 25 May 2001. The Plaintiff cannot produce any documentary proof. The Defendant claims that this sum was paid by her. Neither can she provide documentary proof;

(2)  s sum of HK$25,000 allegedly paid by the Plaintiff for removal of signage on 19 January 2005. Again, the Plaintiff cannot produce any documentary proof. The Defendant claims that this sum was paid by her. Neither can she provide documentary proof;

(3)  a sum of HK$24,000 allegedly paid by the Plaintiff for sprinkler system on 15 March 2006. Again, the Plaintiff cannot produce any documentary proof. The Defendant claims that this sum was paid by her. Neither can she provide documentary proof.

51.  It is not in dispute that after the discharge of the mortgage in 2005, the Plaintiff continued to occupy the Property without making any payment to the Defendant. There had equally been no request made by the Plaintiff to the Defendant for his name to be added as a co-owner of the Property until sometime in 2017 (as alleged by the Plaintiff) or in 2018 (as alleged by the Defendant). In other words, it is not in dispute that no such request had been made by the Plaintiff for at least 11 to 12 years.

52.  According to the Plaintiff, his relationship with the Defendant began to worsen after his marriage with Chen in 2013. The Plaintiff said he became acquainted with Chen in 1997. It was in February 2004 that Chen emigrated to Hong Kong and started to work as an assistant in the clinic. The Plaintiff eventually married Chen in October 2013. The Plaintiff said that the Defendant’s attitude towards Chen was bad and tried to drive Chen away from the Plaintiff. This led to Chen volunteering to divorce the Plaintiff so as not to adversely affect his relationship with his daughter. The Plaintiff and Chen was formally divorced in October 2018. However, Chen has continued to live with the Plaintiff and take care of him up to date.

53.  The Plaintiff is now aged 83. He has some hearing problem. He gave evidence in Putonghua. Despite his age, he was able to understand the questions put to him and responded accordingly. I will in due course analyse his evidence on the crucial issues in dispute. However, I will point out at this juncture that it appears to me he had been coached in the giving of his evidence.

54.  For instance, the Defendant adduced as evidence 13 pages of documents indisputably written by the Plaintiff himself[12]. They were monthly income and expenditure statements of the clinic business from April/May 1999 to April/May 2000. The Defendant produced them to support her case that the Plaintiff had informed her that he had been paying a monthly rent of HK$20,000 for the running of his clinic which was later reduced to HK$15,000 when he moved to the Mezzanine Floor. The Plaintiff, in his witness statement[13], alleged that the amounts of rent stated in these 13 pages of document were written out at the request of the Defendant. He said that the Defendant did not explain the reason for so requesting and he did not know how the Defendant would make use of the documents. In cross-examination, the Plaintiff emphatically repeated, as if it was a mantra, that these documents were all fakes and were fabricated at the Defendant’s dictate. At one time, he suggested that all information therein were false. Later, he pointed out that a few items of management fees and telephone charges were true but all others were false. In the latter part of his cross-examination, counsel for the Defendant asked him about another document which was also in the Plaintiff’s handwriting and actually relied upon by the Plaintiff in his witness statement to prove the expenditures he spent on the Property[14]. Yet, the Plaintiff again reacted emphatically, saying that this document was false and fabricated at the dictate of the Defendant. Suspecting that the Plaintiff could have been honestly mistaken due to his old age, I asked the Plaintiff to read the document again carefully before answering. Despite so, the Plaintiff repeated his mantra of “false and fabricated at the Defendant’s dictate”. The Plaintiff was given another chance in the course of his re-examination. Again, he behaved as if spellbound, repeating the same mantra. It seems to me that the Plaintiff had been coached into denying all documents that were written in his handwriting, which, unwittingly included not only the said 13 pages but also B/155 which the Plaintiff himself should be relying on in support of his own case.

55.  The second instance relates to the time when the Plaintiff was under cross-examination. Immediately upon resuming his evidence after the first morning break, the Plaintiff volunteered that he had made mistakes in the evidence he gave prior to the break, namely certain answers which he gave that could be interpreted adversely against him. Before taking the lunch break, I specifically warned the Plaintiff that he had not completed his evidence and hence he should not discuss the case and the evidence he gave with anyone during the lunch break. Surprising, upon resumption of the hearing after lunch, the Plaintiff again volunteered to correct further mistakes in the evidence he gave prior to the lunch break. Counsel for the Defendant questioned whether the Plaintiff had discussed his evidence during the lunch break. The Plaintiff of course denied. However, I agree with counsel for the Defendant that the situation was highly suspicious. Then in the course of his further cross-examination, when the Plaintiff gave an answer adverse to his case, Chen rather uncontrollably yelled from the public gallery saying: “He is mistaken, he could not hear clearly”. In the circumstances, I had to give Chen a warning.

56.  Consequently, I cautioned myself that I should not lightly accept the full version of the Plaintiff’s evidence unless I can be satisfied that it is inherently probable and consistent with contemporaneous evidence.

57.  Chen was the last witness for the Plaintiff’s case. Her witness statement largely repeated and confirmed the evidence of the Plaintiff. It is thus important to identify what are the evidence that she perceived first-hand as opposed to hearsay evidence that she heard from the Plaintiff. In support of the Plaintiff’s version, Chen claimed to have been present when the Plaintiff and the Defendant discussed about the purchase of the Property. In her witness statement[15], she said that they had such discussions on many occasions at the Mezzanine Floor unit between end of 1999 and early 2000. In cross-examination, she even claimed to have been present on several of such occasions. I find her evidence rather improbable. As of that period, Chen had not known the Plaintiff for a long time. She had not yet been emigrated to Hong Kong and would just have been a visitor from time to time. There is no evidence or suggestion that Chen had by then attained such a close relationship or status with the Plaintiff such that she would be welcome to be present during such private discussions between the father and daughter. On this point, I prefer the evidence of the Defendant that she did not even know of Chen at the material time towards end of 1999 and beginning of 2000 and that all discussions were conducted purely between father and daughter.

58.  In contradistinction[16], when she set out the terms of the Plaintiff’s version of Oral Agreement in paragraph 21 of her witness statement, it was pre-fixed by the phrase “以我所知”. Counsel for the Defendant therefore suggested that whatever she said in addition to what she described in paragraphs 19 and 20 of her witness statement must have been hearsay, i.e. heard from the Plaintiff. Surprisingly, Chen claimed that she personally heard those additional matters being agreed upon. I do not believe her evidence which is inconsistent with her witness statement.

59.  I have serious reservation about Chen’s credibility. Despite her divorce with the Plaintiff in 2018, Chen seems to take an extraordinary interest in these proceedings. As mentioned above, when the Plaintiff gave answers under cross-examination that appeared to be adverse to his case, Chen could not control herself and voiced out at the public gallery. I caution myself that I must be careful with Chen’s evidence.

60.  There is another instance in which I have grave doubt about Chen’s credibility. She claimed to have been present when the Plaintiff allegedly handed over cash of $100,000 and $120,000 to the Defendant on two respective occasions. She said they were mostly in $1,000 banknotes and a small quantity of $500 banknotes. She even vividly described seeing the Defendant counting the money and that Plaintiff gave her a “big bag” to carry the money. I am entitled to take judicial notice that a pile of 100 pieces of $1,000 was barely over 1 cm think. Even assuming that the banknotes were folded in smaller stags, the suggestion of a big bag to carry them is in my view sheer exaggeration. I have grave doubt as to whether Chen had made up her evidence, especially when she never alluded to such details in her witness statement. Furthermore, the Plaintiff had not given such evidence either.

61.  Yet another instance is about an incident which took place on 25 October 2018. According to the version of the Defendant, the Plaintiff called her and requested her to add his name as a co-owner and to give him 30% of interest in the Property. Neither the Plaintiff nor Chen mentioned about this telephone conversation in their witness statements. In fact, both of them merely mentioned a WeChat message sent by the Plaintiff to the Defendant on 28 October 2018 demanding 30% interest in the Property. In cross-examination, this incident on 25 October was put to the Plaintiff. He did not deny the incident but merely said that he asked for “at least 50% interest”. He said he “never asked for 30%”. This was actually contrary to the WeChat message he admittedly sent on 28 October 2018[17]. When the Plaintiff gave such answer, Chen was in Court listening to his evidence. When Chen was herself under cross-examination, she claimed to have heard the telephone conversation. She equally said that the Plaintiff asked for 50% and did not ask for 30%. I am of the view that Chen was prone to adjusting her evidence to suit the case of the Plaintiff.

62.  In the circumstances, I disagree with Ms Liu (Counsel for the Plaintiff) that Chen is an independent witness. I am not impressed by Chen and have decided to place no weight on Chen’s evidence.

Evidence of the Defence case

63.  The Defendant was the only witness for the Defence case.

64.  The Defendant began her career as a freelance model in around 1979 when she was aged 17. She was not only able to support herself. She was able to accumulate savings. In 1983, she cohabited with Mr Wong Wai Chiu who later became her husband. In 1985, Mr Wong bought a property in Mong Kok (“the Wah Lok Building Property”). In 1990, the Defendant and Mr Wong got married but she continued to work as a model albeit with lesser workload.

65.  In 1991, Mr Wong and the Defendant jointly purchased another property (“the Price Edward Road Property”) for HK$1,950,000. It was held through a corporate vehicle and both of them contributed to the purchase price equally.

66.  1998, the Defendant was divorced and the Wah Lok Building Property was assigned to her sole name without mortgage in 2015. The Prince Edward Property was sold in 2014 for HK$9,600,000 but Mr Wong received all the balance of sale proceeds.

67.  In the 1990s, the Defendant was earning over HK$20,000 per month. By late 1990s, the Defendant had accumulated savings over HK$1,000,000. The Defendant was clearly stronger financially. In 2005, the Defendant was able to purchase another property at over HK$ 4 million. According to her understanding, the Plaintiff was able to work and support himself but did not seem to have savings. That was because the Plaintiff had from time to time asked her for money to repay his gambling debts. This was denied by the Plaintiff. However, the Defendant could vividly remember the last time the Plaintiff sought assistance from her. That was in 1998, after her divorce and after she moved to the Wah Lok Building Property. On this dispute, I prefer the evidence of the Defendant. It is inherently improbable that the Defendant would fabricate her father’s gambling habits just to demonstrate that the Plaintiff was less financially sound. In any event, the Plaintiff has adduced no contemporaneous or reliable evidence of his financial strength at the relevant time. For instance, he did not even adduce his tax return to support his earnings. Neither did he disclose any bank account information given Chen’s admission in cross-examination that the Plaintiff did have bank accounts.

68.  The Defendant said that on a Saturday in the summer of 1999, the Plaintiff approached and informed her that his landlord Mr Choi asked if the Plaintiff would be interested in purchasing the Property and requested for a cash deposit in the sum of HK$300,000 to be paid forthwith to Mr Choi. The Plaintiff asked her if she could purchase the property and rent it to him so that he could continue his clinic business there. The Defendant felt suspicious about the transaction. Nevertheless, at the Plaintiff’s urging, she arranged to meet up with Mr Choi at “旺角花園酒家”. On that occasion, Mr Choi was absent and she met with Mrs Choi. Mrs Choi proposed to sell the Property to the Defendant at HK$2,300,000 but insisted on a cash deposit of HK$300,000 on the spot. The Defendant refused. As I had mentioned earlier, I prefer the evidence of Mr Choi and find this evidence of the Defendant inherently improbable.

69.  Then in September 1999, the China State Bank (“the Bank”) took over possession of the Property and evicted the Plaintiff. The Plaintiff moved to the Mezzanine Floor of the same building to continue his clinic business. According to her knowledge, the Plaintiff was previously paying around HK$20,000 rent per month and after moving to the Mezzanine Floor unit, he was paying HK$15,000 rent per month.

70.  In early 2000, the Plaintiff requested her to approach the Bank to see if he could rent the Property from the Bank. The Defendant made enquiries and were informed that the Property was not available for renting but would be available for sale at around HK$2,300,000. The Bank asked the Defendant to consider buying the Property.

71.  The Defendant then relayed this message to the Plaintiff. The Defendant said that the Plaintiff wished very much to continue practicing at the Property and to have a stable working place. He however did not have the means and ability to purchase the Property. The Plaintiff then proposed that she should purchase the Property and he could rent the Property from her. The Plaintiff made known to her that: (1) he was paying rent of HK$20,000 per month for the Property; (2) he was also responsible for paying management fees, utility bills and rates at around HK$2,000 to HK$3,000 per month; and (3) he was willing to pay the same amount of rental to the Defendant and to bear all the expenses. The Defendant said the Plaintiff assured her that he could afford to pay rent of HK$20,000 by producing various handwritten notes in Chinese showing his monthly income and expenses[18].

72.  Out of love and reliance on the Plaintiff’s assurance, the Defendant began exploring the possibility of purchasing the Property by herself and approached the Bank for negotiation. The Defendant stressed that all negotiations were conducted by her without the Plaintiff’s involvement. Eventually, it was her effort that the purchase price was bargained down to HK$1,160,000, the Bank having failed to sell the Property through auction.

73.  The Defendant said there was no agreement, mutual understanding and/or common intention that the Plaintiff and her would each contribute 15% of the purchase price and to contribute in equal shares of all ancillary expenses for the acquisition or that the Plaintiff would be entitled to half share in the Property. The Defendant’s version of the oral agreement/mutual understanding/common intention was as set out earlier in this judgment. According to her, this oral agreement/mutual understanding/common intention was reached a few days prior to the signing of the Provisional Sale and Purchase Agreement dated 17 May 2000 when the Plaintiff and her met up for lunch at “倫敦大酒樓” in Mong Kok.

74.  The Defendant maintained that she was the sole purchaser of the Property. The initial deposit of HK$50,000 was paid by her when she signed the Provisional Sale and Purchase Agreement on 17 May 2000. On 31 May 2000, she settled the further deposit of HK$66,000. She applied for and obtained a mortgage loan from the Bank in the sum of HK$810,000 repayable by 48 monthly instalments at the sum of HK$20,349.74. She signed the formal Sale and Purchase Agreement as the sole purchaser on 26 June 2000. She solely settled the balance of purchase price in the sum of HK$234,000 on 13 July 2000. After that, an Assignment dated 15 July 2000 was executed and the Property was assigned to her in her sole name. All these matters are of course documented. The Defendant denied that the Plaintiff had ever passed or entrusted her with any money for the purpose of purchasing the Property.

75.  According to the Defendant, from July 2000 to August 2002, the Plaintiff had been paying around HK$20,000 per month as rent into the mortgage account. There were times when the Plaintiff paid less and she would make up the shortfall.

76.  In around July/August 2002, the Plaintiff approached the Defendant saying that due to business downturn, he would be unable to afford HK$20,000 per month and asked to be reduced to HK$14,000. The Defendant thus approached the Bank in August 2002 to revise the repayment terms of the Mortgage from 48 months to 61 months, thereby reducing the monthly repayments to HK$12,400.

77.  The mortgage was eventually discharged on 21 October 2005. Since then and up to the time of the litigation, the Plaintiff did not pay any “rent” to the Defendant. It is not in dispute that the Defendant never dunned the Plaintiff for payment of rental arrears. In fact, since October 2005, the Defendant never pressed the Plaintiff for payment of “rent” for over 12 years. According to the Defendant, it was out of love and care for her father.

78.  As mentioned earlier, there was a dispute on several items of expenses, fees, disbursements and costs. The Defendant said they were paid by her instead of the Plaintiff. No documentary support was however adduced by her.

79.  The Defendant said that a dispute over the ownership of the Property first arose around October 2018. Prior to that, the Plaintiff never alleged any interest in the Property. The Defendant denied the Plaintiff’s allegation that between 2017 and 2018, he had on numerous occasions requested the Defendant to add his name as a register owner. Neither did she refuse under the pretence that the legal fees involved would be about HK$1,000,000.

80.  The Defendant said she maintained a loving and harmonious relationship with the Plaintiff until around October 2013 when he married Madam Chen. As I understand her evidence, the Defendant felt that the Plaintiff is being manipulated by Madam Chen who has exercised undue influence and tried to drive a wedge between the father and daughter. The Defendant suggested[19] that in October 2018, the Plaintiff and Madam Chen were divorced merely on paper for the purpose of arranging the daughter of Madam Chen to move to live in Hong Kong. As rightly pointed out by Ms Liu, that cannot possibly be true because immigration documents showed that Madam Chen’s daughter obtained her HKID card well back in 2008. The Defendant maintained in cross-examination that she was so informed by the Plaintiff. I find that it is inherently improbable that the Plaintiff would have told such a lie to the Defendant. There was no conceivable reason or purpose for the Plaintiff to do so. On the other hand, I see this episode as demonstrating that the Defendant has been holding considerable, and at times unmanageable grudge or prejudice towards Madam Chen. In cross-examination, the Defendant repeatedly asserted that Chen was the mastermind behind this dispute even though she admitted that she could point to no evidence of undue influence by Chen on the Plaintiff. I warn myself that this could taint the Defendant’s credibility. It is distinctly possible that the Defendant may be denying his elderly father’s interest in the Property out of the fear of benefiting Madam Chen.

81.  As mentioned earlier, the Defendant gave evidence that on 25 October 2018, the Defendant telephoned her and asserted for the first time that he has a 30% interest in the Property. In cross-examination, the Plaintiff did not deny this incident but merely said that he asked for “at least 50% interest”. He said he “never asked for 30%”. This was actually contrary to the WeChat message which he admittedly sent on 28 October 2018. On this matter, I have no difficulties preferring the evidence of the Defendant.

82.  The Defendant was subject to extensive cross-examination. Ms Liu pointed out several matters on which the oral evidence of the Defendant was said to have departed from her witness statement[20]. With respect, those are in my view insignificant or minor discrepancies. Of greater significance is the Defendant’s evidence when she was cross-examined on documents relating to the mortgage.

83.  The Defendant was cross-examined on the mortgage facility letter[21]. Clause 10 stipulated that prior written consent from the Bank would be needed if the Property is to be rented out. When asked as to whether she had obtained prior written consent from the Bank before renting out the Property to Plaintiff, the Defendant said she did not know about this document and had not read the document. This was extraordinary. The Defendant must have supplied this facility letter to her solicitors. The Defendant even said she did not remember signing it. Again, it was extraordinary. The Defendant would not have been granted the Mortgage had she not signed the facility letter. I observed that the Defendant was prevaricating. She was then taken to the Mortgage Deed in which a similar clause was present. The Defendant then said she could not remember the solicitor explaining such clause to her before signing. Eventually, she had to admit that she did not inform the Bank that she was “renting” the Property to the Plaintiff. Yet, she tried to put forward a paradoxical excuse saying: “But renting to my father is not a commercial renting. He is a tenant in principle. I bought this property and let father used it. He was not a commercial tenant.”. On this matter, I find that the Defendant behaved rather evasively. In the end, the Defendant further admitted that she did not pay any property tax in relation to the Property. The evidence of the Defendant clearly demonstrated that there was really no intention of creating a legal relationship of “landlord and tenant” between the father and daughter.

84.  Furthermore, the bankbook of the mortgage account[22] showed that since October 2001, the monthly mortgage instalment was reduced to around HK$19,000 and the Plaintiff had begun depositing only HK$19,000 every month. The Plaintiff explained that he was told by the Defendant that the monthly instalment was reduced because interest rates had dropped. Accordingly, he was told by the Defendant to deposit only HK$19,000 per month. It is rather extraordinary that the Defendant had not mentioned about this episode at all in her witness statement. In my view, this evidence is inconsistent with the Defendant’s pleaded case that there was a rental agreement with the Plaintiff at a fixed monthly rent of HK$20,000. When cross-examined on this point, the Defendant again provided what I regard as a rather evasive response saying: “I would sometime casually ask him: ‘this month you put in 20,400’… Sometimes I told him to put in smaller amounts. I do not remember details… I would get statement from bank, sometimes interests were less, so I would tell father: ‘no need to be so serious, just put in this amount.’ We are Father and daughter. So not exactly 20,000. Sometimes 19,000.”. The evidence of the Defendant is again wholly inconsistent with a legal relationship of “landlord and tenant”. In my view, the handwritten B/185-197 provided by the Plaintiff to the Defendant were in the nature of “budgeting” or with a view to convincing the Defendant that he would be able to afford paying a monthly mortgage instalment of around HK$20,000. The descriptions of “rent” in these documents did not actually denote a legal relationship of landlord and tenant. It was rather a laymen’s expression on the part of the Plaintiff to describe what he could afford as a cost for his occupation.

85.  Another interesting episode was when the mortgage instalment was further reduced to around HK$12,400 per month in 2002. The Defendant said[23] that in around July/August 2002, the Plaintiff approached her and claimed that due to his business downturn, he could not afford the monthly rental of HK$20,000 and asked the Defendant to reduce the rent to HK$14,000 per month. Accordingly, the Defendant approached the bank in August 2002 to revise the mortgage repayment terms by extending the repayment period thereby reducing the monthly repayment to HK$12,400. On the other hand[24], the Plaintiff’s case is that in early 2002, the Plaintiff felt it hard to repay HK$20,000 odd per month due to his business downturn. He therefore asked the Defendant to negotiate with the Bank with a view to extending the mortgage term so as to reduce the monthly repayment amount. On two separate occasions, one in end of May and the other in end of July 2002, the Defendant gave him two sets of repayment schedules (2 pages each) for his consideration. In end of May, the Defendant gave him B/70-71. Then in end of July, the Defendant gave him B/72-73. In July 2002, the outstanding loan amount was around HK$416,000. It was the Plaintiff who decided to choose the plan of “36-months @HK$12,300 odd” at B/73. He did not chose the plan of “48-months @HK$9,500” at B/72 because although the monthly repayment amount would be more comfortable for him, it would end up paying more interests to the Bank.

86.  In my view, the evidence of the Plaintiff is more credible and consistent with contemporaneous documents. B/70-71 is a set of 2 plans, one of 36 months and the other for 48 months. Both pages bore the printing date of 29 May 2002. B/72-&73 is the other set of 2 plans bearing a printing date of 22 July 2002. Firstly, the existence of B/70-71 is inconsistent with the Defendant’s story that the Plaintiff only approached her in July/August 2002 and she approached the Bank in August 2002. When cross-examined as to why there were a “May plan” and a “July plan”, the Defendant could not provide any meaningful answer. She simply said she could not recall. Secondly, the Defendant admitted that she gave the Plaintiff B/70-73 after she had chosen the plan. However, she could provide no rationale for so doing. Thirdly, she admitted that there were various handwritings of the Plaintiff on B/70-73. These handwritings of the Plaintiff clearly demonstrated his effort in making comparisons between the various plans and his involvement in making a choice between the various plans. When cross-examined on this point, the Defendant again in my view evaded and said unconvincingly that she could not even remember giving these documents to the Plaintiff. I have no difficulties preferring the evidence of the Plaintiff in relation to this episode.

87.  In my judgment, this is an important aspect of the evidence. First of all, it confirms my earlier observation that there was no legal relationship of a landlord and a tenant at a fixed monthly rental as pleaded by the Defendant. The fact that it was the Plaintiff who got to choose between the plans is consistent with the Plaintiff’s case that his obligation was to pay for all the monthly mortgage repayments. Secondly, it also demonstrates the Plaintiff’s awareness that it would be in his interest to shorten the mortgage term and to incur less bank interests so long as it was within his financial ability. This must have been on the basis that once the mortgage was fully repaid, he would be entitled to occupy the Property during his lifetime for free (save and except payments of the Expenses). In other words, it must have been the mutual understanding of the Plaintiff and the Defendant that once the mortgage repayments were fully discharged by the Plaintiff, the Plaintiff would be entitled to a life interest in the Property and a right to occupy the same until his last day although he would also have to discharge the relevant expenses and utilities charges incidental to his occupation and enjoyment of the Property. This further explains why, since the discharge of the mortgage in 2005, the Plaintiff was never required to pay any money to the Defendant for his occupation of the Property. It further explains the otherwise inexplicable conduct of the Defendant in never dunning the Plaintiff for the payment of any so-called “rents or rental arrears”.

Findings

88.  It is apparent from the above analysis of the evidence that I do not accept fully the case and evidence put forward by either the Plaintiff or the Defendant. In my judgment, the true mutual understanding and/or terms of agreement between the Plaintiff and the Defendant actually lie somewhere in between their respective pleaded case. I am mindful of the following dictum of Ribeiro PJ in Mak Kang Hoi v. Ho Yuk Wah David, FACV No. 20 of 2006 where his Lordship said:-

“104. In contract cases such as this one, where there is a dispute about the terms agreed the situation may be less clear cut. The parties advance their pleaded cases with all the surrounding relevant facts leading up to the agreement and following it. Taking all into account the judge decides what the parties agreed as a question of mixed fact and law. These may not be precisely those advanced by either party.

105. Unless the judge moves outside the evidence and makes findings unwarranted by the oral dealings between the parties or the contemporaneous documents this normally is not unfair on either party but an attempt to do justice between them according to law. As in this case, parties frequently seek the assistance of the court to construe a disputed contract as a question of law once the facts are established.

106. Indeed, on the absence of some exceptional circumstances on person who has concluded a contract can be said to have been taken by surprise by the terms he has agreed. This is so whether or not he or the other party has precisely pleaded those terms in a dispute about them.”

89.  After considering the oral evidence of all witnesses and the contemporaneous documents adduced in this trial, I conclude and find that there was an oral agreement and mutual understanding between the Plaintiff and the Defendant in relation to the acquisition of the Property in the following terms:-

(1)  The Plaintiff and the Defendant agreed to join force in acquiring the Property;

(2)  The Property would be purchased in the sole name of the Defendant;

(3)  The Defendant would be responsible for paying the down payments for the purchase of the Property together with all ancillary expenses incurred in the acquisition;

(4)  The balance of the purchase price would be financed by a mortgage loan to be obtained by the Defendant from a bank but the Plaintiff would be solely responsible for the payment of all monthly mortgage instalments until the mortgage loan is fully repaid and the mortgage discharged; and

(5)  The Plaintiff is entitled to occupy and enjoy the Property exclusively during his lifetime and is responsible for payment of all necessary expenses, utilities charges etc incidental to his occupation.

90.  I also find that all down payments incidental to the acquisition of the Property had in fact been paid by the Defendant. I find that the Plaintiff has a life interest in the Property and is entitled to exclusively occupy and enjoy the Property during his lifetime. In the light of this finding, it is not necessary for me to make findings on issues (b) to (d) as set out in paragraph 24 above. In so far as it is necessary, I am satisfied that the Plaintiff did make most, if not all, of the monthly mortgage repayments by depositing them into the bank account of the Defendant until the mortgage was discharged. On those limited occasions[25] where it was disputed as to whether the Plaintiff had failed to deposit the requisite amount of instalment payment into the Defendant’s bank account, I find that even if the Plaintiff did so failed, the Defendant had in any event voluntarily footed the balance without any complaint and without regarding the Plaintiff to have been in breach of the said oral agreement and mutual understanding.

91.  In the premises, I am only prepared to make a declaration that the Plaintiff has the right to use the Property exclusively during his lifetime without payment of rent or licence fee to the Defendant. Consequently, I shall also dismiss the Counterclaim.

Costs

93.  In the circumstances, neither the Plaintiff nor the Defendant fully wins. I have also found that neither the Plaintiff nor the Defendant has given their evidence with full candour. I therefore exercise my discretion and make an order nisi that each party shall bear his/her own costs in this action.