MOK WING YI v. TAM SHUK WAH MARY

HCA 1736/2018

[2021] HKCFI 1630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1736 OF 2018

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J U D G M E N T

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A.  INTRODUCTION

1.  The property at Flat B on the 35th floor of Block 6 of “The Wings” at 9 Tong Yin Street in Tseung Kwan O (“the Property”) is registered in the names of the Plaintiff (“Madam Mok”) and the Defendant (“Madam Tam”) as tenants-in-common, with 70/100 equal undivided shares being ascribed to Madam Mok and 30/100 equal undivided shares to Madam Tam.

2.  Madam Mok claims that the parties had agreed that their interests in the Property should in fact follow the proportion which their respective contributions to the purchase price represent, namely 73.68% (Madam Mok) and 26.32% (Madam Tam).  She also claims that 73.68% of the net rental income from the Property should be paid to her.

3.  Madam Tam denies that there was such an agreement, and says that Madam Mok only owns 70% of the Property (and that this share is held on trust for Madam Mok’s late father’s estate or Madam Mok’s mother). She has counterclaimed for an order for sale under the Partition Ordinance, Cap.352.  Madam Mok consents to the making of an order for sale.

B.  THE FACTS

4.  The following facts are not in dispute, unless otherwise indicated.

5.  The Plaintiff (“Madam Mok”) and the Defendant (“Madam Tam”) are sisters-in-law.  Madam Mok is the eldest of six siblings.  Madam Tam is married to the second oldest sibling, Mok Kin Kau McNary (“Mr Mok”).  Madam Mok and Madam Tam had had a very close and harmonious relationship with each other up until some time after Madam Mok’s father (“Father”) passed away in October 2011.

6.  After Father’s death, Madam Tam suggested to Madam Mok that they could purchase a property together for investment purposes, renting it out for income.  The most which Madam Tam could and would provide was $3,000,000.00, and Madam Mok would provide the balance.  The funds to be provided by Madam Mok were not her own; Madam Mok says that they came from her mother (“Mother”), who had received them from Father before his death.

7.  On 8 November 2011, Madam Mok and Madam Tam, as purchasers, entered into a Memorandum of Sale with MTR Corporation Limited as vendor, agreeing to buy the Property for $11,997,500.00 (“the Memorandum of Sale”).  The development of which the Property formed part had not been fully constructed at that stage.

8.  On 11 November 2011, Madam Mok and Madam Tam signed a formal sale and purchase agreement at Messrs Deacons (“the SPA”), agreeing to acquire the Property as tenants in common, with Madam Mok taking 70/100 equal undivided shares and Madam Tam taking 30/100 equal undivided shares.

9.  As the Property was purchased with cash, the vendor subsequently reduced the purchase price to $11,397,600.00, and a supplemental agreement to that effect was signed on 16 January 2012 (“the Supplemental SPA”).

10.  The Property was eventually assigned to Madam Mok (as to 70/100 equal undivided shares) and Madam Tam (as to 30/100 equal undivided shares) pursuant to an assignment of 23 January 2013 (“the Assignment”).

11.  Madam Tam paid for the bulk of the expenses in relation to the purchase of the Property, including stamp duty and most of the solicitors’ fees.  Madam Mok paid for some additional solicitors’ fees and various, relatively small, expenses to enable the Property to be rented out, such as for the purchase of curtains and lamps.  It was common ground that there was to be an account taken of the respective amounts paid out, and a reimbursement made, so that the parties’ share of these expenses (which they termed “the Transaction Expenses”) should follow their respective interests in the Property, but there was a dispute as to when this exercise was supposed to be carried out.

12.  A cash rebate was given by the estate agent for the purchase of the Property (“the Rebate”). This was received by Madam Tam and paid into her personal account.  The proceeds were not shared with Madam Mok at the time, although it is now accepted that Madam Tam should account for this in the proportion following the parties’ respective interests in the Property.

13.  The Property was let out for rental income.  Madam Tam was the one responsible for arranging such lettings.  By agreement, the rental income was paid into an account in Madam Tam’s name (“the HSBC Account”).  Further ongoing expenses in respect of the Property, such as management fees and Government rates and rent, were paid out of this account. Property tax was however charged to Madam Mok and Madam Tam separately, in the 70:30 proportion following their share of the registered legal title to the Property.

14.  Madam Mok says that she was never given full details regarding the status of the lettings, and has never received any share of rental income from the Property.  Madam Tam says that she had provided Madam Mok a copy of the HSBC Account passbook in 2013, and Madam Mok had had no comments about it.  The relationship between Madam Tam’s husband and Madam Mok turned sour in about 2012.  The Property continued to be let out pursuant to various tenancy agreements. In about January 2019, Madam Mok did not consent to either selling or renting out the Property.

C.  MADAM MOK’S CASE

15.  Madam Mok says that the parties had agreed that the parties’ shares in the Property would be proportionate to their respective contributions to the purchase price of the Property.  It was further agreed that both expenses and rental income would be shared in proportion to their respective interests in the Property.

16.  As Madam Mok contributed $8,397,600 and Madam Tam contributed $3,000,000, Madam Mok said she should own 73.68% of the Property and Madam Tam should own 26.32%.  The proportion of 70:30 was used in the formal documents to avoid having odd numbers in the Land Registry.  Accordingly, Madam Tam holds 3.68% of the interest in the Property on trust for Madam Mok.

17.  In essence, Madam Mok claims:

(a)  a declaration that Madam Tam holds 3.68% of the Property on trust for Madam Mok;

(b)  an account of the Transaction Expenses, and payment by Madam Tam of an amount such that she will have contributed 26.32% of such expenses;

(c)  an account of the Rebate received by Madam Mok, and payment by Madam Tam of 73.68% of the same;

(d)  an account of the rental income received, and Government rent, rates and property tax paid, in respect of the Property; and payment by Madam Tam of 73.68% of the net proceeds;

(e)  interest on the amounts due to her.

D.  MADAM TAM’S CASE

18.  As regards the size of her share in the Property, Madam Tam says that Madam Mok had agreed to let her own 30%.  It was only after the relationship between Mr Mok and the other family members broke down that Madam Mok changed her mind.

19.  Madam Tam says that the funds which Madam Mok paid towards the purchase of the Property either came from Father’s estate or from Mother, so that Madam Mok holds her share of the Property on trust for Father’s estate or for Mother.  Madam Mok is not entitled to claim any of the rental income from the Property, so Madam Tam is unwilling to pass any part of such income to Madam Mok; it should be held for the benefit of Father’s estate or Mother.

20.  Madam Tam seeks an order for sale of the Property pursuant to s.6 of the Partition Ordinance. Madam Mok consents to the making of an order for sale, subject to the determination of her entitlement as claimed.

E.  THE ISSUES

21.  The main issues which arise for my determination are as follows:

(a)  whether there was an express or implied common intention between Madam Mok and Madam Tam as to their respective shares in the Property, and if so what that intention was;

(b)  whether Madam Mok is entitled to certain relief if she holds her share in the Property on trust for Father’s estate or for Mother;

(c)  whether the parties had agreed that Madam Tam would reimburse Madam Mok for her share of the Transaction Expenses only when the Property was sold.

F.  THE PARTIES’ RESPECTIVE SHARES IN THE PROPERTY

22.  I will first address the main issue between the parties of whether Madam Mok’s interest in the Property was limited to 70% or was in fact 73.68%.  I leave aside for the time being the issue of whether the interest was in fact held on trust for Father’s estate or Mother.

F1.  The legal principles in relation to common intention constructive trust

23.  The relevant principles were recently summarised by Deputy High Court Judge A Stock SC in Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung [2019] HKCFI 2819 at [7] and [8]:

7.  The principles applicable to common intention constructive trusts are set out in various Hong Kong authorities, notably: Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 per Ribeiro PJ at §§35-38; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

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.

F2.  The legal principles in relation to assessment of witness’ evidence and credibility

24.  The determination of the issue as to the size of Madam Mok’s share turns, to a large extent, on my assessment of the credibility of the parties’ evidence.  The relevant principles relating to such an assessment were set out in Hui Cheung Fai and another v Daiwa Development Limited (unreported, HCA 1734/2009, 8 April 2014), where Deputy High Court Judge Eugene Fung SC said:

“77. 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: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached 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.

80.  I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

F3.  The parties’ evidence

25.  As indicated above, there was a measure of agreement between the parties as to how they came to purchase the Property.  Where the parties differ is in relation to (1) what was agreed at the time when they first discussed the idea of investing in a property after Father’s death in October 2011, and (2) how the shares of 70/100 and 30/100 came to be used in the SPA and Assignment.

26.  In relation to (1), it is common ground that the parties discussed and agreed that Madam Tam would provide $3m and Madam Mok would provide the balance.

(a)  Madam Mok was asked about the discussions with Madam Tam when the latter proposed jointly investing in a property.  It was put to Madam Mok, and she agreed, that each party’s share of the interest in the Property would be proportionate to the amount of purchase price contributed by that party.  It was also put to her that this went without saying because it was “so plainly obvious” that there was no need to discuss it, and hence there was no express discussion.  Again, Madam Mok agreed. Her understanding was that the parties’ respective shares in the property to be purchased would be based on their contributions, given that Madam Tam would only contribute $3m and Madam Mok would contribute the balance.

(b)  As for Madam Tam, initially she said that she had not thought at all about what share in the Property she would own.  Her only concern was to preserve and enhance the value of Father’s estate.  Subsequently in her evidence, however, she accepted that prior to signing the SPA, she had thought that the parties’ shares in the Property should accord with the proportion of the purchase price which each had contributed.

27.  In relation to (2), Madam Mok says that in order to avoid using odd figures for registration of the ownership of the Property, the parties used the shares of 70% and 30%.  It was agreed and understood that these figures did not represent the parties’ actual shares in the Property.  In oral evidence, Madam Mok elaborated on this part of her evidence as follows:

(a)  Before the parties went in to see the clerk at Deacons to sign the SPA, Madam Mok had suggested to Mr Mok (who had accompanied his sister and wife to Deacons) that his name should also be added to the title of the Property, but he had declined.

(b)  Also before meeting the clerk, Madam Tam told her that once they were inside, she (Madam Mok) should let her (Madam Tam) do the talking.  Madam Tam referred to the fact of the odd numbers involved in their ownership of the Property and suggested leaving those out and only using round figures to avoid clumsiness, leaving the exact figures to be calculated later.  Madam Mok agreed to Madam Tam’s proposal.  She therefore did not say anything during the meeting with the clerk, and Madam Tam did all the talking.

(c)  The clerk asked whether the Property would be held under a joint tenancy, to which Madam Tam answered no.  The clerk then asked in what shares the Property would be held, and Madam Tam said it should be 7-3.

(d)  After the meeting at Deacons, there was a telephone discussion in which Madam Mok calculated Madam Tam’s share in the Property based on the amounts of their respective contributions; she undercalculated the figure and Madam Tam immediately corrected her; they then agreed on the corrected figures.

28.  Madam Tam’s version of what happened at Deacons on 11 November 2011 is as follows.

(a)  Whilst she, Madam Mok and Mr Mok were waiting at the reception area, Madam Mok suggested to Mr Mok that the parties should use his name, rather than Madam Mok’s, in the purchase of the Property.  She repeated the suggestion after they were shown into the conference room. Mr Mok declined, as the rest of the Mok family might think he and his wife had “taken over” the Property.

(b)  In the conference room, Deacons’ clerk asked whether the Property was to be held under a joint tenancy.  Madam Tam said no, and the clerk asked how it would be held – 5:5, 7:3, or 6:4, or some other way. It was Madam Mok who replied “7:3”. The clerk and Madam Mok looked at Madam Tam, and she nodded and said “yes”.

(c)  Madam Tam and Mr Mok did not say anything during the meeting with the clerk, and it was Madam Mok who did the talking.

F4.  Analysis of the evidence

29.  When the parties first discussed and agreed to invest in a property jointly, they expressly agreed that Madam Tam would contribute $3m, as this was the most she could afford, and Madam Mok would contribute the balance.  What that balance would turn out to be at that point in time was unknown, because they had not yet selected a property.  They could therefore not quantify with precision their respective shares in the property.  However, both of them proceeded on the understanding that their shares would be proportionate to the contributions to be made to the purchase price.  Indeed, Madam Mok thought it so obvious as to not need saying.  Madam Tam initially claimed she did not think about it, but eventually admitted that she had thought her share should be proportionate to her contribution to the purchase price, at least prior to the meeting at Deacons.

30.  There was therefore an express agreement, at that point, as to the contributions to the purchase price, with a tacit understanding (at least by each party individually) that the shares in the property would follow such contributions.

31.  Mr Earnest Cheung, counsel for the Defendant, put his case on the basis that there was no express agreement regarding the share which each party would have in the property to be purchased.  However:

(a)  there was at the very least an express agreement regarding the contributions which each party would make to the purchase price;

(b)  both parties considered that their shares in the property would follow the proportion of such contributions;

(c)  neither party said anything to suggest that the ownership of the property should be held on some other basis.

32.  Even if the situation did not amount to one of an express agreement as to the precise quantification of the division of ownership in the property to be purchased, the parties’ discussion and conduct gives rise to the inference that the common intention, as at that point in time, was that their ownership in the property would follow the proportion in which they contributed to its purchase price.  In other words, no matter whether one looks at the situation from the point of view of the first or second limb (Primecredit at [2.3], [2.4]), the evidence points to a common intention, at the time of their initial discussions, that the parties would own the property to be purchased according to their respective contributions to the purchase price.

33.  The next significant point in time was the signing of the Memorandum of Sale on 8 November 2011.  Whilst this document was stated to be non-binding on the purchaser, it nevertheless marked the point at which Madam Mok and Madam Tam first formally agreed with the vendor to purchase the Property.  There is no evidence that anything had changed as regards the common intention up to that point. 

34.  There was then the signing of the SPA at Deacons on 11 November 2011.  There is a direct conflict of evidence as to the parties’ discussion and agreement on this occasion.  Madam Mok said that at Madam Tam’s proposal, the parties agreed that round figures would be used in registering the parties’ ownership of the Property, with the precise figures to be worked out later between them.  It would follow from such an arrangement that the round figures would not represent the true ownership, which would instead follow the parties’ respective contributions.  Madam Tam said that at Madam Mok’s proposal, Madam Tam should own 30% of the Property. For the following reasons, I accept Madam Mok’s version and reject Madam Tam’s version.

35.  Consistency with existing mutual understanding.  Madam Mok’s version is consistent with the parties’ understanding up to that point that their shares in the Property would follow the proportion in which they contributed to the purchase price.  Madam Tam’s version would have represented a departure from such an understanding, and is therefore inherently less likely.

36.  Madam Tam’s reaction.  Madam Tam said that she was surprised to hear Madam Mok telling Deacons’ clerk that the Property should be held “7:3”, which did not correspond to the parties’ respective contributions to the purchase price of the Property. Yet she did not raise any query at the time.  Indeed, she never discussed it with Madam Mok at any time thereafter, even though (on her own evidence) the two of them were close and discussed many things together, and even though she was curious as to why Madam Mok had made this gift to her.  Nor did she thank Madam Mok for the gift, whether during the meeting at Deacons or at any time thereafter.

37.  Gifting inherently unlikely, and not credible.  Madam Tam’s version of events would have meant that Madam Mok had gifted her around 5% of the interest in the Property (since $3m would have been around 25% of the purchase price of $11,997,500 which had not yet been reduced as at the date of the SPA).  It is common ground that the funds for Madam Mok’s share were not her personal funds, but those of Father’s estate or of Mother, and that Madam Mok was essentially investing on behalf of the Mok family.  I consider that it is inherently unlikely that Madam Mok would simply gift away part of the interest in the Property, and without either forewarning or subsequent explanation to Madam Tam.  I also find it incredible that Madam Tam raised no query as to the giving away of what, on her case, was a substantial part of Father’s estate, especially when she says that (a) her sole concern was to preserve and enhance the value of the estate, and (b) she believed that the money paid by Madam Mok was not hers to give away.  Moreover, Madam Tam’s pleaded position in these proceedings is that Madam Mok is not entitled to receive the rental income from the Property as she is a mere trustee; on that basis, it is difficult to see why Madam Tam nevertheless thought it was fine for Madam Mok to transfer outright a portion of the trust property to her.

38.  It was submitted that the gift was not surprising given that Madam Tam was the one who did the work for purchasing and renting out the Property.  However, without Madam Mok’s contribution, the investment in this particular Property would not have been possible at all, since Madam Tam only had $3m available.  Nor is it Madam Tam’s evidence that Madam Mok ever said to her that she was giving the gift in order to thank Madam Tam.

39.  Madam Tam’s active role in the investment project.  As Mr Cheung submitted, the whole idea for the investment was Madam Tam’s.  It is common ground that Madam Tam was the active party in selecting the property to be purchased, and also the active party in renting it out after purchase.  It is also common ground that Madam Tam had had experience in purchasing and renting out property for investment purposes, whereas Madam Mok did not.  Madam Mok took a much more passive role, being content to let Madam Tam to handle the arrangements for purchasing and renting the Property.  All of this is consistent with Madam Mok’s account that at Deacons, Madam Tam said that she (Madam Mok) should let her (Madam Tam) do all the talking.  Madam Tam’s version of events – that she did not say a word during the meeting at Deacons – is inherently unlikely, given that she was the one who had taken the lead on the project all along.

40.  Indeed, this was consistent with the manner in which both parties gave evidence at trial.  I record this observation for completeness’ sake, bearing in mind the caution against placing too much weight on witnesses’ demeanour.  Madam Mok’s version of events (that at Deacons, she stayed quiet at Madam Tam’s request) was consistent with the reserved manner in which she gave evidence.  Madam Tam’s version (that she did not say a word) was not consistent with her assertiveness in the witness box.

41.  Madam Mok’s evidence. Madam Mok was cross examined as to why her account of what Madam Tam had said at Deacons was not in her witness statement.  However, whilst she did not set out the precise details of the conversations at Deacons, her statement did refer to the key point that the parties agreed on using round figures rather than odd figures for registering the title to the Property, and that they had agreed and understood that the round figures did not represent the parties’ actual interests in the Property.  I find Madam Mok’s account of her agreement to Madam Tam’s suggestion that she (Madam Tam) would do the talking, and that they should use round figures and calculate the actual figures later, to be entirely plausible, especially considering the good relationship between the two of them and the fact that Madam Tam was the one taking the lead in the investment project. 

42.  The criticism that Madam Mok’s explanation for the use of 7:3 is contrived, since the parties ought not to have been bothered by the registration of their title using odd figures, also falls away when one bears in mind that Madam Mok was simply relating what she was told by Madam Tam, rather than seeking to provide her own justification.

43.  Madam Mok said that the telephone discussion with Madam Tam about the precise calculations of their respective interests in the Property (with Madam Mok miscalculating Madam Tam’s share as 25%) took place a few days after the meeting at Deacons.  Mr Cheung submitted that this could not have been possible, since the figure of 25% would have been based on the reduced purchase price of January 2012, which was after the signing of the SPA at Deacons in November 2011.  The discrepancy in timing was not put to Madam Mok, so it is unknown what her explanation would be.  The possibility that she simply made a mistake in the dates cannot be excluded.

F5.  The witnesses’ credibility

44.  Madam Mok was a straightforward witness, although her memory of some of the details of the events was at times not entirely clear, perhaps understandably given that she took a relatively passive role in the investment project.

45.  I did not find Madam Tam to be a credible witness.  I have given some examples above of parts of her evidence which I did not find credible.  A further example was her evidence that she did not think at all about what share she would have in the Property, and she would accept whatever was given to her.  I found this incredible.  She was contributing a sum representing all that she could afford. She was an educated university graduate.  She had had successful experience in property investment.  She gave a lot of thought as to how to pick an investment property with unique and value-enhancing features, and was proud of the fact that she did so successfully, the value of the Property having risen after purchase.  With this background in mind, I do not believe that she gave no thought to what share she would have in the Property.  In fact, later on in her evidence, she admitted that she had indeed thought her share in the Property should be proportionate to her contribution to the purchase price.

46.  I also found that Madam Tam was not entirely straightforward when giving evidence.  I will give some examples.

(a)  She said all along, the expenses of the Property had been split on a 7:3 basis, so it was unfair that Madam Mok wanted to renege on their agreement.  In fact, whilst property tax had indeed been charged to the parties on this ratio in accordance with the registered title, the other expenses had simply been paid in full from the HSBC Account, and there had not been accounting with Madam Mok as to the division of the expenses (or the income).  Ms Tam says that she had marked up the passbook with the division of expenses and shown it once to Ms Mok in 2013, but there were in fact no markings prior to 2014 showing the division of expenses.

(b)  When asked about the Rebate, Ms Tam initially claimed that the proceeds were in the HSBC Account.  Only when asked further did she admit that the Rebate had in fact been deposited into her personal account.

(c)  Madam Tam denied that various sums had been withdrawn from the HSBC Account without Madam Mok’s consent. However, she subsequently accepted that sums had been withdrawn to cover Mr Mok’s tax liabilities and her son’s tuition fees without Madam Mok’s consent.

47.  Therefore, where there is a conflict of evidence between the parties, I prefer that of Madam Mok.

F6.  Findings in relation to issue of ownership of the Property

48.  I therefore find that there was an express agreement between Madam Mok and Madam Tam that their respective shares in the Property were to follow the proportions in which they contributed to the purchase price of the Property.  This agreement was consistent with the parties’ discussion and conduct all along from the time when they first discussed the idea of a joint investment.

49.  It follows that in entering into the SPA on this basis, Madam Mok altered her position to her detriment, in reliance on the parties’ common intention, and that it would be unconscionable for Madam Tam to insist on an ownership share based on her legal title.

50.  Accordingly, Madam Mok owns 73.68% of the interest in the Property and Madam Tam owns 26.32% of the interest in the Property.

G.  MADAM MOK’S ENTITLEMENT TO RELIEF

51.  Madam Mok says that the money which she paid towards the purchase of the Property came from Mother, given to her by Father before he passed away.  Madam Tam said that Madam Mok had told her that the money came from Father’s estate.

52.  Madam Mok has not provided documentary evidence (such as bank statements) as to the source of the funds, but I have no reason to doubt Madam Mok’s evidence that the funds came from Mother. Her solicitors’ pre-action letter of 3 April 2018 had referred to the funds as being Mother’s. Madam Tam said she did not know the details of the administration of Father’s estate.  She therefore had no empirical evidence to support her case that the money was from Father’s estate.

53.  The argument advanced for Madam Tam was that since the funds for Madam Mok’s share belonged to a third party, Madam Mok was not entitled to seek the relief claimed in paragraphs (e), (f) and (g) of the prayer in the Amended Statement of Claim, because she holds her share of the Property on trust for the benefit of the third party.  Those items of relief are: (e) a declaration that Madam Tam holds sums in the HSBC Account found to be due to Madam Mok as trustee for the benefit of Madam Mok; (f) payment to Madam Mok of sums found to be due to her; and (g) a declaration that Madam Tam holds 3.68% of the Property as trustee for the benefit of Madam Mok.

54.  I can deal with this point shortly. Madam Mok has not sought to assert that she owns 73.68% of the interest in the Property for her own personal benefit.  On the contrary, she readily said that the money for the purchase of the interest in her name came from Mother; her evidence was that she was authorised by Mother to recover Mother’s and Father’s assets appropriated by Mr Mok; and she produced a letter signed by Mother and the Mok siblings (apart from Mr Mok) authorising her to take action in respect of (amongst other things) Madam Tam’s and Mr Mok’s alleged unilateral taking of the rental income from the Property.  Thus whilst the Amended Statement Claim did not expressly plead that Madam Mok is acting as trustee for Mother, it is apparent that this is the case, and I have understood the pleading in this light.  Madam Mok’s stance was not that she owned an interest in the Property for her personal benefit, but rather, that Madam Tam’s defence was wrong in seeking to rely on the fact of a trust to justify withholding the payment of rental income from the Property to Madam Mok.

55.  On the basis that Madam Mok owns her interest in the Property as trustee, she nevertheless was the proper party to have instituted proceedings, given that she was the one who dealt with Madam Tam in the purchase of the Property and that the legal title to the relevant share in the Property is vested in her. See Lewin on Trusts, 20^th ed, volume 2, paragraphs 34-022, 47-001, 48-110.

56.  Thus as between Madam Mok and Madam Tam, the latter cannot rely on the fact of the trust to deny Madam Mok’s title to the Property or payment of rental income from the Property.

57.  Mr Cheung’s concern was that an order in terms of paragraphs (e), (f) and (g) of the prayer in the Amended Statement of Claim could be misconstrued as a finding that Madam Mok owned her interest in the Property for her personal benefit.  However, as I have set out above, Madam Mok’s evidence and stance is clear that she does not assert a personal interest in the Property but instead is acting for Mother. Furthermore, Mr Peter Chung, counsel for Madam Mok, had no objection to the judgment reflecting the fact that Madam Mok was trustee for Mother.

H.  REIMBURSEMENT OF TRANSACTION EXPENSES

58.  It is not disputed that the parties should bear the Transaction Expenses (and any other expenses) in proportion to each party’s share in the Property.  There is however an issue as to when Madam Tam should have reimbursed Madam Mok for that part of her share of the Transaction Expenses which was paid by Madam Mok.

59.  Madam Mok paid for most of the Transaction Expenses.  She says that the parties had agreed that on completion of the purchase of the Property, Madam Tam would reimburse her for the share which Madam Tam had paid on her behalf.  She chased Madam Tam a few times after the exact ratios of the parties’ interests had been calculated, but Madam Tam gave various excuses.  In contrast, Madam Tam says that there was no discussion at the time of purchase of the Property as to how reimbursement for expenses should be handled.  She said that subsequently in 2017, there was an agreement between the parties that Madam Mok would be reimbursed only after the Property had been sold, since she did not have the financial means to pay her share at that point.

60.  I accept Madam Mok’s account and reject Madam Tam’s.

(a)  Madam Tam first said that the agreement was made in 2017 because she told Madam Mok that she was unable to pay, so Madam Mok agreed that payment could be after the sale of the Property.  When it was put to her that the accumulated rental income from the Property by that time was such that she should have the means to pay, Madam Tam said, inconsistently, that she had not calculated whether this was the case, and that Madam Mok had not asked for payment in any event.

(b)  The claim of an agreement in 2017 was not referred to in Madam Tam’s witness statement.  It was also contrary to Madam Tam’s pleaded case, which was that there was no discussion between the parties as to when there would be reimbursement of the Transaction Expenses.  Whilst the pleading went on to plead a mutual understanding that an accounting for reimbursement purposes would take place on sale of the Property, the claimed agreement of 2017 was not pleaded as the basis for this understanding.  Indeed it appears even Mr Cheung was not aware of the alleged agreement: it was not put to Madam Mok, and Mr Cheung explained that this was because it was first mentioned by Madam Tam only when she was cross-examined.

61.  Whether or not there was an agreement as to when the Transaction Expenses were to be repaid is relevant to the date from which interest should run on the sum to be reimbursed by Madam Tam to Madam Mok.  However, the significance of the point has been reduced in the light of the concession by Mr Chung that for simplicity, interest is only being claimed from the date of the writ.

I.  ACCOUNTS

62.  Madam Tam does not object to providing an account regarding the Transaction Expenses, the Rebate, rental income from the Property, and tax and rates paid in respect of the Property.

J.  INTEREST

63.  Mr Chung indicated that Madam Mok sought only simple interest rather than the compound interest originally pleaded.  He further indicated that for simplicity, Madam Mok would seek interest only on the sum which was due to her as at the date of the writ, and not on income from the Property after the date of the writ.  Nor would Madam Mok seek any damages in respect of the loss of interest due to the unauthorised withdrawals made from the HSBC Account, which was an interest-bearing account.  Indeed, the claim for damages in paragraph (i) of the relief in the prayer in the Amended Statement of Claim was abandoned.

64.  Whilst Mr Cheung submitted that the applicable rate of interest should be the savings rate, no evidence was submitted to justify the departure from the general practice of awarding interest at the rate of prime plus 1% (Polyset v Panhandat, unreported, FACV 28/2000, 25 April 2002, at [13] per Ribeiro PJ).

K.  ORDER FOR SALE UNDER PARTITION ORDINANCE

65.  As indicated above, Madam Tam seeks an order for sale of the Property pursuant to s.6 of the Partition Ordinance. Madam Mok consents to the making of such an order, subject to the determination of her entitlement as claimed.

66.  Having regard to the principles in Wong Chun Kei v Poon Vai Ching [2007] 1 HKLRD 825 and in view of both parties’ desire to end their co-ownership of the Property, it is appropriate to make an order for sale, subject however to one matter.

67.  Upon enquiring with counsel at trial, it transpired that the parties had not served the Director of Lands with the documents required by section 3(2) of the Partition Ordinance and rule 4 of the Partition Rules.  In the end, the Director of Lands was served only on 15 April 2021, a day after the trial had ended.  In such circumstances, the order for sale to be made is conditional upon there being no objection from the Director of Lands.

68.  On the making of an order for sale, the court may direct a distribution of the proceeds of sale and give all other necessary or proper consequential directions.  By letter of 22 April 2021, Madam Tam’s solicitors submitted a set of agreed draft directions.  The parties should revisit paragraph 10 of those draft directions to state more specifically what calculations are to be carried out to determine the amounts to be paid over to the parties, in the light of my judgment.  The parties should submit a set of revised agreed draft directions within 14 days of the date of handing down of this judgment.  In the event that they cannot agree on appropriate amendments to paragraph 10 of the draft directions, each party should submit her respective draft, with reasons in support.  I will dispose of the matter on paper if possible, or invite further submissions from the parties if necessary.

69.  Given the consent to an order for sale, Madam Mok does not pursue paragraph (h) of the relief in the prayer in the Amended Statement of Claim (seeking transfer of a share in the Property).

L.  DISPOSITION

70.  I therefore declare that Madam Tam holds 3.68% of the interest in the Property on trust for Madam Mok.

71.  I further order as follows:

(a)  Madam Tam is to provide an account of the Transaction Expenses paid, the Rebate received, the rental income received from the letting of the Property since 2012 to date, the expenses including the tax, rates and Government rent paid in respect of the Property to date, any unauthorised withdrawals made from the HSBC Account to date; and a calculation of the share of net profit to which Madam Mok is entitled, on the basis that Madam Mok is entitled to 73.68% of income and liable to bear 73.68% of expenses relating to the purchase and letting of the Property.

(b)  Madam Tam is to pay to Madam Mok the sums found due on the taking of the aforesaid account.

(c)  Madam Tam is to pay interest to Madam Mok on the sums found due to Madam Mok as at the date of the writ herein, at prime rate plus 1% from the date of the writ until judgment, and at judgment rate thereafter until payment.

(d)  Subject to there being no objection from the Director of Lands, the Property shall be sold.  I will give further directions in relation to the sale and distribution of the proceeds as indicated above.

72.  I make a costs order nisi that Madam Mok’s costs in this action, including any costs reserved, be paid by Madam Tam, to be taxed if not agreed.  In the absence of any application to vary, the order will become absolute after 14 days.