LUK WING KWAN v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF POON SIU MEI, DECEASED AND ANOTHER

DCCJ 5666/2019

[2021] HKDC 1399

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5666 OF 2019

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AND BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This case concerns the beneficial interests in a property known as 2^nd Floor including Roof, No 18 Pak She Street, Cheung Chau (“Property”) among family members.

2.  The Property was purchased in January 1987 and was registered in the name of Madam Poon Siu Mei (“Mother”) and the plaintiff.

3.  The Mother had four sons and one daughter, namely (in the order of seniority), Mr Luk Wing Cheung (“Wing Cheung”), the 1^st defendant Mr Luk Wing Lam (“Wing Lam”/“1^st defendant”), Ms Luk Lai Yee (“Lai Yee”), the plaintiff and Mr Luk Wing Tai (“Wing Tai”).  The 2^nd defendant and Ms Luk Ka Man (“Ka Man”) are the son and daughter of Wing Cheung, hence the grandson and granddaughter of the Mother.

4.  By an assignment dated 18 February 1997 (“1997 Assignment”), the Property was transferred from the joint names of the plaintiff and the Mother to the Mother’s sole name.

5.  By an assignment dated 12 April 2016 (“2016 Assignment”), the Mother transferred the Property to the 2^nd defendant, her grandson, who has since then become the sole registered owner of the Property.

6.  The Mother passed away on 25 June 2016 at the age of 90.

7.  By a writ of summons issued on 6 October 2016 and the statement of claim filed on 19 November 2016, the plaintiff claims against the 2^nd defendant for, inter alia, a declaration that the 2^nd defendant is holding one-third share (or alternatively such share as found by the court) in the Property on trust for the plaintiff.  The plaintiff also claims against the 1^st defendant in his capacity as the personal representative of the estate of the Mother for equitable compensation at a sum equivalent to his 1/3 share or alternatively such share as found by the court.

8.  The 1^st defendant indicated in the acknowledgement of service filed on 13 June 2017 that he did not intend to contest the proceedings.  He did not appear at the trial.

9.  The 2^nd defendant denies the plaintiff having any beneficial interest in the Property.

10.  This trial is between the plaintiff (the uncle) and the 2^nd defendant (the nephew).

The plaintiff’s case

11.  It is the plaintiff’s pleaded case is that:-

(1)  In late 1986 or early 1987, the Mother intended to purchase the Property, which was available for sale at HK$250,000, as her permanent residence.

(2)  The Mother intended to pay HK$50,000 as down payment and financed the remaining balance of HK$200,000 by way of mortgage.

(3)  At that time, the Mother was 60 years old and did not have a stable income.  She therefore was unable to obtain any mortgage loan.  She requested and the plaintiff agreed that the Property could be registered in the names of the plaintiff and the Mother so as to obtain the mortgage.

(4)  The Mother further proposed and the plaintiff agreed (“Oral Agreement”) that:-

(i)  The plaintiff, Wing Cheung and Wing Tai, should be responsible to pay the monthly instalments of the Mortgage loan in equal shares, ie each paying 1/3 of the same;

(ii)  The Mother should have the right to live in the Property during her lifetime; and

(iii)  After the Mother’s demise, the plaintiff, Wing Cheung and Wing Tai would have the right to sell the Property and divide the proceeds of sale in equal shares.

(5)  As a result thereof, the Property was purchased in the name of the Mother and the plaintiff.  The Property was charged for a mortgage loan of HK$200,000 (“Mortgage Loan”) and the monthly repayment of which was HK$3,889.85 (“1987 Mortgage”).

(6)  By reason of the aforesaid, it was the common intention between the Mother, the plaintiff, Wing Cheung and Wing Tai to create a trust in respect of the Property under which the Mother had a life interest with the remainder to the plaintiff, Wing Cheung and Wing Tai absolutely in equal shares (“Trust”).

(7)  Pursuant to the Oral Agreement and/or the Trust, the Mother resided in the Property after purchase until she died in June 2016; and from January 1987 to December 1989, the plaintiff contributed HK$1,300 per month for repayment of the Mortgage Loan.

(8)  In or about February 1991, the Mother informed the plaintiff that she had fully repaid the outstanding balance of the Mortgage Loan with her own money and redeemed the mortgage.  The Mother requested the plaintiff to continue to pay HK$1,300 per month to her directly for reimbursement. Accordingly, from February 1991 to January 1993, the plaintiff deposited HK$1,300 every month to the Mother’s bank account.

(9)  In or about January 1993, the Mother informed the plaintiff that she had been fully reimbursed and that the plaintiff could the monthly payment of HK$1,300.  Therefore, since February 1993, the plaintiff ceased the said monthly payment.

(10)  By the 1997 Assignment, the Property was transferred from the joint names of the plaintiff and the Mother to the Mother’s sole name with no consideration or any part thereof ever been received by the plaintiff.  Since the 1997 Assignment, the Mother had been holding the Property on trust for herself for life with the remainder on trust for the plaintiff, Wing Cheung and Wing Tai.

(11)  To protect the interest of the plaintiff, Wing Cheung and Wing Tai, the Mother made a will on 28 February 1997 (about 10 days after the 1997 Assignment) bequeathing the Property to the three sons in equal shares upon her demise.

(12)  Wrongfully and in breach of the Oral Agreement and/or the Trust, the Mother mortgaged the Property twice in September 2009 and January 2013 respectively for loans borrowed by Wing Cheung.

(13)  On 8 February 2016 (first day of Chinese New Year), the plaintiff, Wing Tai and the 2^nd defendant had a discussion (“8 February 2016 meeting”) after dinner during which the 2^nd defendant was expressly notified that the plaintiff had contributed to repayment of the Mortgage Loan and therefore had an interest in the Property.

(14)  Wrongfully and in breach of the Oral Agreement and/or Trust, the Mother entered into an Agreement for Sale and Purchase dated 23 February 2016 to sell the Property to the 2^nd defendant at the consideration of HK$3,000,000. By the 2016 Assignment dated 12 April 2016, the Property was transferred from the Mother to the 2^nd defendant.

(15)  By reason of the said 2^nd defendant’s actual knowledge of the plaintiff’s interest in the Property, the 2^nd defendant was not a bona fide purchaser for value without notice of the Mother’s breach of the Oral Agreement and/or the Trust.  The 2^nd defendant was and is still holding 1/3 share or alternatively such share proportionate to the plaintiff’s contribution in the Property on trust for the plaintiff.

12.  The plaintiff therefore claims against the 1^st and 2^nd defendants for, inter alia, a declaration that the 2^nd defendant or alternatively the 1^st defendant is holding 1/3 share or alternatively such share proportionate to the plaintiff’s contribution in the Property on trust for the plaintiff, an order that the sale of the Property by the Mother to the 2^nd defendant be set aside, equitable compensation at a sum equivalent to the plaintiff’s 1/3 share and an account of all sums and profits received by the 2^nd defendant arising from the Property.

13.  Mr Wong, counsel for the plaintiff, in his opening submissions, clarified that the plaintiff’s claim for equitable compensation is against the 1^st defendant only, ie against the estate of the Mother.

The 2^nd defendant’s case

14.  The 2^nd defendant contends that:-

(1)  the Property was intended to be wholly owned by the Mother;

(2)  the plaintiff’s contributions (as well as Wing Cheung and Wing Tai’s contributions) to the purchase of the Property, including the repayment of the 1987 Mortgage, were gift to the Mother;

(3)  no Oral Agreement or Trust had ever existed;

(4)  the Mother was not in breach of the Oral Agreement and/or the Trust when creating the two mortgages over the Property in 2009 and 2013 respectively;

(5)  the 2^nd defendant was not notified of the plaintiff’s alleged interest in the Property and he had no actual knowledge of the same;

(6)  the plaintiff made declarations in a number of application forms for financial assistance and subsidies from the government, none of which contained any disclosure of his purported interest in the Property;

(7)  the plaintiff knew, consented and/or did not object to the sale of the Property from the Mother to the 2^nd defendant;

(8)  the 2^nd defendant was a bona fide purchaser for value without notice of the plaintiff’s purported interest in the Property and/or that the plaintiff is estopped from claiming an interest in the Property against the 2^nd defendant.

Issues

15.  In view of the parties’ respective contentions, the major issues for determination are as follows:-

(1)  whether the Oral Agreement/Trust existed as alleged by the plaintiff;

(2)  if the Oral Agreement/Trust existed, whether the 2^nd defendant was a bona fide purchaser for value without notice of the plaintiff’s interest in the Property such that he can take free of the plaintiff’s interest.

16.  At the commencement of trial, Mr Wong, counsel for the plaintiff, accepted that constructive trust is the real issue and that it is only if this court decides to reject both parties’ evidence on intention that resulting trust, based on the amount of plaintiff’s contribution towards the purchase of the Property, may be of relevance.

17.  The focus is therefore on the elements that the plaintiff has to prove in order to establish a constructive trust to the extent of 1/3 of the interest in the Property in his favour.

Legal propositions

18.  There is no dispute that a party claiming that beneficial ownership differs from legal ownership bears the burden of proving it : Mo Ying v Brillex Development Ltd [2015] 2 HKLR 985.

19.  Ribeiro PJ explained common intention constructive trust in Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1:-

“[38] Where a constructive trust is alleged to arise on the basis of the parties’ common intention, it is the intention commonly held by the property owner and the claimant regarding their shared beneficial interests in the property that matters. The trust is constituted by the claimant’s detrimental reliance on their common intention and the unconscionability of the property owner departing therefrom.”

20.  In the present case, the plaintiff must prove (1) there was a common intention between himself and the Mother that the plaintiff, Wing Tai and Wing Cheung were to be the beneficial owners of the Property in equal share after the Mother’s demise; (2) the plaintiff altered his position in detrimental reliance upon such common intention; and (3) it is unconscionable for the Mother to depart from the said common intention by transferring the Property to the 2^nd defendant.

21.  Common intention can be express or implied.  It can be deduced or inferred objectively from the parties’ conduct : Stack v Dowden [2007] 2 AC 432 at [126] and [128].

22.  The parties’ intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties with respect to the beneficial ownership of the property concerned, based on evidence of express discussions.  It is only where there is no evidence to support a finding of such an agreement or arrangement that the court seeks to infer from the conduct of the parties the relevant common intention : see Godfrey Lam J’s succinct summary of the legal principles in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at [49].

23.  Even when reliance is placed on an express agreement, arrangement or understanding between the parties, their other conduct remains relevant by reference to which their assertions about the agreement, arrangement or understanding must be gauged and tested : Liu Wai Keung at [50].

24.  The plaintiff’s case of Oral Agreement and/or Trust between himself and the Mother was not recorded in writing.  The Mother passed away in 2016. Hence, there is no evidence from her to confirm or deny the same.  In these circumstances, I have to assess carefully the veracity of the account of events of the plaintiff and his witness, Wing Tai, and the 2^nd defendant and his witnesses, in particular, Wing Cheung, by reference to all relevant circumstances.

25.  In assessing the witnesses’ evidence, I remind myself of the following principles:-

(1)  Lam VP’s analysis in Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327:-

“[1.4] … in either case [constructive trust or resulting trust], the court should have regard to inherent probabilities in light of the surrounding circumstances at the time the Property was acquired …

…

[1.6]     Since Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2012] 1 AC 776, as far as Hong Kong is concerned, the modern approach to constructive trust is to assess the common intention of the parties by a holistic approach having regard to the context, see Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985.  In a domestic context, particularly in relation to a matrimonial home, the court is not constrained in that exercise by pure direct monetary contributions to the purchase price, see the judgment of Baroness Hale at [69] in Stack v Dowden.  In a Chinese setting, especially for 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.”

(2)  Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009 (unreported, 8 April 2014) at [77] to [80]:-

“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 PH)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

(3)  Where the plaintiff is making a claim against the estate of a deceased person who cannot give evidence against her own claim, the court has to approach such a claim with suspicion.  The court would look for clear and reliable evidence of where, when and what the deceased said (Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39 at [73]).

(4)  Deputy High Court Judge To (as he then was) said in Chan Chi Wai v Chan Sau Wah, HCA 2522/2016, [2019] HKCFI 177 at [45] that:-

“… Where a witness makes an allegation against a deceased, whether a witness or a party, who is unable to answer the allegation, the court will always have to approach his evidence with suspicion. This is particularly so where the allegation is against undisputed documentary evidence. The party making such allegation not only bear the burden of proof but higher standard of proof which is commensurate with the circumstances …”

26.  I now turn to the parties’ evidence and the assessment thereof by reference to the relevant incidents.

The purchase of the property in 1987

27.  The evidence of the plaintiff, Wing Tai and Wing Cheung is relevant under this head.  The 2^nd defendant was born in 1984.  He frankly admitted that he has no personal knowledge of anything relating to the purchase of the Property back in 1987.

28.  The plaintiff’s case is that there was the Oral Agreement between the Mother and himself that, by reason of his contribution to 1/3 of the monthly instalments of the 1987 Mortgage, the plaintiff would be given 1/3 interest in the Property after the Mother’s death.  The common intention was, according to the plaintiff, to create a trust where the Mother had a life interest with the remainder to the plaintiff to the extent of 1/3.

29.  It is common ground that the Mother was the person in charge of the whole family.  She was a person of strong character.  She controlled the financial matters and made decisions for the family.  She was thrifty and careful in terms of money.  Her husband (“Father”) and her children all listened to her and followed her instructions.  The eldest son, Wing Cheung, described her as the queen of the family.  The plaintiff said she was illiterate, money-minded and strict in child discipline.  He would try his best to fulfill what the Mother required him to do.

30.  The Mother ran a grocery store in Cheung Chau before retirement.  The Father had been a lifeguard and then a fireman.  He gave all his earnings to the Mother.  The Mother was strict in children discipline.  She required her children to give financial contribution to the family once they started working, which they all did.  After the retirement of the Father and Mother, they relied on their own savings and their children’s contribution to live. The family had all along been living in rented property in Cheung Chau.  When the children grown up, they moved out one by one.  They went back to visit the Mother and the Father mainly during the festivals.  The siblings were not particularly closed to each other though.  They rarely met each other, except during the festivals.

31.  The sons, except Wing Lam, gave a portion of their earnings to the Mother every month in order to fulfil their filial duty.

32.  After her retirement, in 1987, the Mother decided to purchase the Property subject to mortgage.  There is no dispute that it was the Mother’s decision to do so and the Property was purchased in the name of the plaintiff and the Mother.

33.  It is common ground that the sons, except Wing Lam, were required to and did share the responsibility of monthly mortgage repayment in respect of the 1987 Mortgage.

34.  The plaintiff said prior to the purchase of the Property, there was an oral agreement between himself and the Mother that (a) the plaintiff, Wing Cheung and Wing Tai (“the 3 Sons”) would be responsible to pay the monthly installment of the 1987 Mortgage in equal shares, ie each paying 1/3 or HK$1,300; (b) the Mother would have the right to live in the Property during her lifetime; and (c) after the Mother’s death, the Property would belong to the 3 Sons in equal shares, ie each having 1/3 (the Oral Agreement/Trust).  The Property was purchased at a consideration of HK$250,000.  The Mother paid HK$50,000 for down payment and the remaining HK$200,000 was financed by the 1987 Mortgage, the repayment of which was shared by the 3 Sons.

35.  The plaintiff said pursuant to the Oral Agreement, he paid HK$1,300 each month, being 1/3 of the monthly installments of the 1987 Mortgage, to his account for repayment of the 1987 Mortgage.  To support his case, the plaintiff produced the deposit slips from April 1988 to January 1993 as evidence.  He did not know the amount of contribution paid by Wing Cheung and Wing Tai.

36.  The younger brother, Wing Tai, was called by the plaintiff to give evidence.  Wing Tai said it was the Mother’s original intention for all 4 sons to share the responsibility of monthly mortgage repayment.  But eventually Wing Lam pulled out leaving only the 3 Sons to share the responsibility.  He remembered that Mother had promised him that the Property would belong to the 3 Sons upon her demise.

37.  Wing Cheung, the 2nd defendant’s father, the eldest brother of the plaintiff and Wing Tai, gave evidence for the 2nd defendant.  He said in the summer of 1986, Father informed him that Mother intended to purchase the Property.  They required Wing Cheung and his brothers to give them more money to purchase the Property and to pay the monthly mortgage repayment.  Father said Mother wanted to have a property of her own to live and to place their ancestral tablets.  Neither the Mother nor the Father had told him that the Property would belong to the three sons upon the Mother’s demise.

38.  According to Wing Cheung, Father told him that Mother agreed to purchase the Property at the consideration of HK$320,000.  As to the downpayment of HK$120,000, Mother would pay HK$20,000 while Wing Cheung was asked to contribute HK$100,000.  Wing Cheung borrowed the said HK$100,000 from his mother-in-law.  The said sum was subsequently repaid by Wing Cheung and his wife.

39.  Wing Cheung was told that the Property would be subject to a mortgage for 5 years and the Mother had to repay HK$3,900 every month.  Wing Cheung was asked to contribute HK$2,000 more each month while the plaintiff and Wing Tai were asked to contribute HK$1,000 more respectively.  Hence, since 1987, Wing Cheung started paying HK$6,000 (original HK$4,000 plus an additional sum of HK$2,000) to the Mother every month for 5 years.  Thereafter, Wing Cheung’s contribution was reverted back to HK$4,000.  Wing Cheung said he was not sure how the Mother use the HK$6,000.  Wing Cheung knew that the Property was purchased in the name of the Mother and the plaintiff.

40.  The existence of the Oral Agreement/Trust constitutes the backbone of his entire claim.  It is important therefore to ascertain the intention of the Mother and the plaintiff when the Property was purchased in 1987.

41.  In the closing submissions, Mr Wong, counsel for the plaintiff, submitted that the Oral Agreement was between the Mother and the plaintiff.  He confirmed that it is not the plaintiff’s case that the Oral Agreement was made amongst the 3 Sons.  The plaintiff admitted during cross-examination that he did not know whether the Mother had made the same arrangement with Wing Cheung and Wing Tai.  Mr Wong said it would not affect the plaintiff’s claim even if, as a matter of fact, the Mother had not made the same arrangement was not made with Wing Cheung and/or Wing Tai.

42.  The plaintiff’s case stands or falls on whether this court accepts his case of the existence of the Oral Agreement/Trust.

43.  Having read the pleadings, the witness statements and heard the oral testimony of witnesses, in particular, the plaintiff himself and his witness, Wing Tai, I am not satisfied that the plaintiff has discharged his heavy burden of proving the existence of the Oral Agreement/Trust on the balance of probabilities.

44.  First, there are a number of major inconsistencies among the plaintiff’s pleadings, witness statements and/or the oral evidence of the plaintiff and/or Wing Tai which cast doubt on the credibility of the plaintiff.

(1)  It is the pleaded case of the plaintiff that the Mother proposed and the plaintiff agreed that the 3 Sons should be responsible to pay the monthly repayment of the 1987 Mortgage loan, each paying 1/3 of the same.  During cross-examination, the plaintiff admitted that the Mother did not tell him that she had also made the same proposal to Wing Cheung and Wing Tai.  His pleaded case of the Mother’s proposal that each of the 3 Sons paying 1/3 of the monthly repayment of the 1987 Mortgage loan was merely his own belief.

(2)  The plaintiff said on various occasions during cross-examination that the Oral Agreement/Trust was proposed by the Mother to him where none of his brothers were present.  His evidence was that there was no family meeting among the members of the Luk’s to discuss about the purchase, the payment arrangement, the 3 Sons’ expected contribution, and/or the interest in the Property, etc.  There was also no face to face or joint discussions among the Mother and the 3 Sons about the same.  That is the reason why the plaintiff did not know whether the Mother had entered into the same or similar arrangement with Wing Cheung and/or Wing Tai.  It is however Wing Tai’s evidence during cross-examination that the Mother, the Father and the 4 sons had once sat together prior to the purchase of the Property to discuss about the purchase of the Property and the mortgage repayment.  He said during the said discussion, Wing Lam indicated that he did not want to contribute, leaving only the 3 Sons to share the responsibility of settling the monthly mortgage repayment.  Wing Tai said during the said meeting, the Mother expressly told the 3 Sons that after her demise and the Property sold, the proceeds would be shared among the 3 Sons.  Although both the plaintiff and Wing Tai asserted that the Mother had promised that after her demise, the sale proceeds of the Property would be shared among the 3 Sons, their respective evidence as to the important question of how such promise was communicated and/or presented to the 3 Sons (including the plaintiff) is in stark contrast.

(3)  In the statement of claim, the third term of the Oral Agreement as pleaded was that after the Mother’s demise, the 3 Sons would have the right to sell the Property and divide the proceeds of sale in equal shares.  During cross-examination, when the plaintiff was asked about the exact wordings of the Mother’s proposal, he first said that the Mother proposed that the proceeds of sale would be shared by the 3 Sons.  He confirmed that the Mother did not mention about the right to sell the Property nor equal sharing of the proceeds.  The plaintiff later changed his version and claimed that the Mother did mention equal sharing.

45.  The above inconsistencies undermine the plaintiff’s case.  The substantial difference on the evidence from the plaintiff and Wing Tai as to how the Mother communicated her proposed terms of the Oral Agreement to the 3 Sons (including the plaintiff) casts doubt on the veracity of the plaintiff’s case on Oral Agreement/Trust.

46.  Overall, I do not find the plaintiff and Wing Tai’s evidence to be reliable.

47.  Second, even if I am to ignore Wing Tai’s evidence regarding the alleged family meeting and the plaintiff’s own inconsistent version set out above, I still find it difficult to accept the plaintiff’s case that the Mother would enter into the Oral Agreement/Trust with the plaintiff.

48.  It is the evidence of both the plaintiff and Wing Tai that they were under the filial duty to make financial contributions to the Mother, whether it was for repayment of mortgage or not.  The plaintiff then sought to explain why the Oral Agreement was necessary.  He said he believed that the Mother would like to give the 3 Sons comfort or incentive to pay off the mortgage because the Mother was afraid that the plaintiff or the 3 Sons would pull out, like Wing Lam.

49.  The plaintiff’s assertion has to be cautiously scrutinized as being self-serving.  This court has to be particularly careful given that the Mother has passed away and cannot give her own version of what took place.

50.  It is common ground that Wing Lam had refused to contribute.  There is however no evidence that any of the remaining 3 Sons had ever expressed or indicated their unwillingness or reluctance to assist in paying off the 1987 Mortgage.  As a matter of fact, the 3 Sons had all along been filial and obedient and they had been paying part of their earnings to the Mother on a regular basis since they started working.  I do not see any particular need for the Mother to have to propose the Oral Agreement or any terms thereof, to the plaintiff or the 3 Sons, in order to secure his or their monthly contributions.

51.  The fact that the plaintiff deposited HK$1,300 into his bank account, as opposed to paying it to the Mother in cash, is neither here nor there.  The fact that the Property was purchased in the joint name of the Mother and the plaintiff is no indicative of the Oral Agreement either because as the plaintiff acknowledged, the Mother alone could not obtain any mortgage loan and the Mother did not want to trouble Wing Cheung and Wing Tai since they were civil servants.

52.  On the existence of the Oral Agreement/Trust, I prefer the evidence of Wing Cheung to the plaintiff and Wing Tai.  Wing Cheung said he had not heard of the Oral Agreement/Trust and the Mother did not make any similar proposal to him.  He believed that based on the Mother’s character, she would not make any such proposal.  I find on balance of probabilities that the contributions from plaintiff or the 3 Sons were made out of filial duty.  The contributions were gift to the Mother.  They were not made pursuant to the alleged Oral Agreement/Trust.

53.  The plaintiff placed heavy emphasis on the 1997 Assignment and the Will as proof of Mother’s intention to make the Oral Agreement/Trust.  By the 1997 Assignment, the Property was transferred from the joint names of the Mother and the plaintiff to the Mother’s sole name.  10 days after the 1997 Assignment on 28 February 1997, the Mother executed the Mother’s Will bequeathing the Property to the plaintiff, Wing Cheung and Wing Tai in equal share.

54.  The plaintiff’s pleaded case is that prior to the execution of the 1997 Assignment, the Mother reassured the plaintiff that the 3 Sons would have the right to sell the Property after her death and divide the proceeds of sale in equal shares.  Pursuant to the Oral Agreement/Trust, in order to protect the interest of the 3 Sons, the Mother made the Will bequeathing the Property to the 3 Sons “living at my death for their own use and benefit absolutely in equal shares”.  It was further provided in the Will that, if any of the 3 Sons predeceased her or failed to survive her for more than 30 days, the child or children of that son would take his/her/their father’s share by substitution in equal shares per stripes.  It is noted that the Will only concerned the Property.  There was no provision in the Will to deal with the residual estate of the Mother.

55.  The plaintiff submitted that based on the witnesses’ description of the Mother’s character, it is impossible that the Mother would have executed the Will if the content did not truly and accurately reflect her intention.  The plaintiff asked this court to give full weight to Will and that other evidence should be assessed in light of the content of the Will.

56.  While the terms of the Will in relation to the disposal of the Property appear to be consistent with the terms of the Oral Agreement, it does not necessarily support the existence thereof back in 1987.

57.  First, in terms of the timing of the Will, the plaintiff said it was executed shortly after the 1997 Assignment in order to protect the interest of the 3 Sons.  The plaintiff therefore contended that the Mother made the Will to reflect the earlier Oral Agreement/Trust.  In my view, the Will can only reflect the Mother’s intention at the time of the Will.  While it may be argued as evidence of the Oral Agreement/Trust, it is also equally arguable that it was the Mother’s act of recognition of the 3 Sons contribution throughout the years.

58.  Second, the plaintiff’s assertion both in the pleadings and in his witness statement that the Mother did refer to the Oral Agreement/Trust prior to the making of the Will and did reassure him of the plaintiff’s interest in the Property is again self-serving and has to be viewed with skepticism. During cross-examination, when the plaintiff was asked as to whether there was any discussion between the Mother and the plaintiff prior to the making of the Will, the plaintiff clearly answered no.  Counsel for the 2^nd defendant then specifically referred the plaintiff to paragraph 13 of his witness statement whereby it was said therein that prior to the making of the Will, the Mother had reassured the plaintiff of the Oral Agreement/Trust.  The plaintiff replied saying that there was no need for the Mother and him to talk about that again because the Oral Agreement had previously been agreed.  He confirmed that there was no discussion between himself and the Mother before the Will was made.  This contradiction of the plaintiff’s own pleading and witness statement again cast doubt on the plaintiff’s veracity.

59.  In the circumstances, I am not satisfied that the plaintiff has proved on balance of probabilities that the Will was made pursuant to the Oral Agreement/Trust.

60.  Further, there are indeed circumstances in which the Mother regarded herself as the true and absolute owner of the Property while the plaintiff did not regard himself as the true owner or future owner thereof.

(1)  The Mother did not give an account to the 3 Sons on when, where and how she used the 3 Sons contributions.  The plaintiff did not control or monitor the process or ask the Mother for an account of the same.

(2)  The Mother allowed the 2^nd defendant and his younger sister to reside in the Property without seeking prior notice or approval from the plaintiff or the 3 Sons.

(3)  The 1987 Mortgage was redeemed by the Mother on 18 February 1991 which is about one year earlier than the original redemption date (18 February 1992). Neither the plaintiff, Wing Tai nor Wing Cheung was informed about it.

(4)  The Mother kept the title deeds of the Property after full redemption. The plaintiff did not ask for any copy after he learnt about the full redemption.

(5)  The Mother did not give any of the 3 Sons a copy of the Will and none of them had ever asked for its copy.

(6)  There was nothing to prevent the Mother from making another Will or to have the Property sold.

(7)  In or about 2009, in order to help Wing Cheung solve his financial problem, the Mother re-mortgaged the Property without giving any prior notice to the plaintiff or Wing Tai.  Even though the re-mortgage would affect the plaintiff’s interest or future interest, the plaintiff did not ask for details, take any action against or complain about the said re-mortgage.

61.  All in all, I am not satisfied that the plaintiff has discharged his burden of proving the existence of the Oral Agreement/Trust on the balance of probabilities.

62.  Accordingly, I find that the Oral Agreement/Trust did not exist and therefore the plaintiff did not have any interest in the Property at all material times.

63.  In the light of my finding above, there is no need to consider the second issue of the whether the 2^nd defendant was a bona fide purchaser for value without notice of the plaintiff’s interest in the Property such that he can take free of the plaintiff’s interest.

Conclusion

64.  For the above reasons, I dismiss the plaintiff’s claim against both the 1^st and 2^nd defendants. Accordingly, I also order on a nisi basis that all costs of and occasioned by this action (including costs of the trial and all costs previously reserved) be paid by the plaintiff to the 2^nd defendant to be taxed if not agreed, with certificate for one counsel.  There be no order as to costs as between the plaintiff and the 1^st defendant.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

65.  Finally, I thank both counsel for their assistance.