XCHRX ROBERT A.S. HUTHART v. CAROLINE A.H.S. ERGETIE

1992 No. A8911

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. I have before me an application by the defendant for summary judgment of the claims for the return of various chattels made in her counterclaim.

2. The parties cohabited from about May 1988 until June 1989 at a flat at Glenealy, Central, Hong Kong and thereafter they moved to a flat in Bowen Road. It is common ground that the parties agreed to marry but they are at odds as to when this was. The defendant puts it in April 1992 but the plaintiff states that it was in April 1991. Be that as it may, an estrangement commenced in May 1992 and in July 1992, the defendant moved out of the Bowen Road flat.

3. The defendant has since married.

4. The plaintiff issued a writ in December 1992. His Statement of Claim is dated 25th February 1993. By his proceedings, the plaintiff seeks the return of jewellery and cash which he says were given to the defendant in contemplation of marriage.

5. By her defence dated 26th January 1993, the defendant set out her reasons as to why she was not liable to return the items claimed by the plaintiff.

6. By her counterclaim, the defendant seeks the return of various items particularized which she avers are her property and which remained at the flat after her departure on 28th July 1992 and which the plaintiff has failed and/or refused to return despite repeated demands made by her.

7. By his defence to counterclaim, the plaintiff does not admit that any of the items particularized in the counterclaim were or are the property of the defendant. In paragraphs 11 and 12 of this pleading, he states that;

"11. By letter dated 15th October 1992, the plaintiff's solicitors, Messrs. Robertson Double, informed the defendant's solicitors, Messrs. Alsop Wilkinson, that they held for collection by the defendant the following items which, despite reminders, the defendant failed and/or refused to collect;

(1) 2 cats.

(2) Yellow vase.

(3) Suitcase and hand luggage.

(4) Place mats.

(5) Carved medicine box.

(6) Microwave oven.

(7) Japanese Kimono.

(8) Cook books.

(9) Box of papers and miscellaneous pictures.

12. In the premises, it is denied that the defendant is entitled to the counterclaim or any relief."

8. Since the estrangement, the plaintiff has bombarded the defendant with letters and cards and he has also made a huge number of phone calls to her home and office. A lot of the calls were recorded on an answerphone machine, and they have been transcribed and exhibited. It is clear beyond any doubt that the plaintiff was attempting to persuade and/or cajole the defendant to return to him. The letters, calls and meetings in the street have caused the defendant to commence proceedings for harassment which have been consolidated with the present proceedings. An injunction was sought but undertakings were given in lieu.

9. Before turning to the evidence and merits of the claim, Mr. Coleman, who appeared for the plaintiff submitted that the counterclaim was in some way defective and that I should refuse to consider the application for summary judgment which incidentally was taken out as long ago as 25th April 1993. I find nothing in this objection. The counterclaim avers that the particularized items are the defendant's property, were left behind when she left and the plaintiff has failed and/or refused to return them despite demands having been made. This seems to me a perfectly proper pleading based in detinue or the wrongful interference with goods.

10. Next, Mr. Coleman submitted that this was in effect a matrimonial property proceeding which should not be dealt with by way of Order 14 proceedings. He referred me to s.24 of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 which provides as follows;

"24. Property of engaged couples:

(1) Where an agreement to marry is terminated, any rule of law relating to the rights of husbands and wives in relation to property in which either or both has or have a beneficial interest shall apply, in relation to any property in which either or both of the parties to the agreement had a beneficial interest while the agreement was in force, as it applies in relation to property in which a husband or wife has a beneficial interest.

(2) Where an agreement to marry is terminated, sections 6 and 7 of the Married Persons Status Ordinance (Cap. 182) (which section confers power on a judge to settle disputes between husband and wife about property) shall apply, as if the parties were married, to any dispute between, or claim by, one of them in relation to property in which either or both had a beneficial interest while the agreement was in force; but an application made by virtue of this section to the judge under the said sections shall be made within 3 years of the termination of the agreement."

11. Section 6 of the Married Persons Status Ordinance Cap. 182 is the Hong Kong equivalent of Section 17 of the Married Women's Property Act 1882 and it provides as follows;

6. (1) In any question between husband and wife as to the title to or possession of property the husband or the wife may apply by summons or otherwise in a summary way to a judge to determine the question.

(2) On any such application the judge may make such order with respect to the property in dispute and as to the costs of and consequent on the application as he thinks fit, or may direct such application to stand over and any inquiry touching the matters in question to be made in such manner as he thinks fit.

(3) An order made under subsection (2) shall be subject to appeal in the same way as an order made by the judge in an action in the Supreme Court would be.

(4) If either party so requests, the judge may hear the application in private.

12. Mr. Barlow has submitted that Section 24 only applies to property purchased during the currency of the engagement and/or which is purchased with the intention of or in contemplation of joint ownership. He submits that property brought by either party prior to the engagement is not caught by Section 24 unless after the purchase there is an express agreement or intention to own the property acquired beneficially for both parties. He points out that most of the items in dispute in this application were purchased by or were gifts made to the defendant by others long before the engagement or cohabitation.

13. I accept Mr. Barlow's submission. In my judgment, it could not have been the intention of the legislature to bring within this section property belonging to one party or the other acquired years before the engagement in the absence of an express agreement after engagement to treat that property as one in which both parties would have a beneficial interest.

14. Mr. Coleman's submission really amounted to saying that the claim and counterclaim should all be considered in the round and that the judge hearing the case should exercise powers under Section 6 of Cap. 182 so as to achieve a just result in the circumstances of this case.

15. I find it impossible to accept this submission. As an example, there can be no doubt that the plaintiff is still in possession of personal letters belonging to the defendant. He has averred no proprietary rights to these letters and they must be returned. Indeed, the plaintiff has recognized this and has agreed to return them voluntarily after a little pressing from me.

16. I think the correct approach is to start by considering what are the pleaded issues. At this point, it appears that the plaintiff is making no assertion of proprietary rights over the items claimed. His reply is in effect an admission that the items are to be returned to the defendant.

17. In his various affidavits, the plaintiff seeks to go well beyond the scope of his defence to counterclaim in respect of which no application to amend has been mentioned. I believe that Mr. Barlow is correct when he submits that the pleadings are the governing documents and that it is wrong to put in affidavits at variance with the pleaded case.

18. The matter does not end there because there are admissions made by the plaintiff in the voluminous correspondence and records of phone calls placed before me.

19. Further, there was an agreement entered into between the parties which provided for certain items to be returned to both parties. The plaintiff has attempted to argue that this agreement was obtained by duress. This is an allegation completely unsupported by any particulars whatsoever and which, even at the Order 14 stage, is just unbelievable and ludicrous.

20. Mr. Coleman has placed before me a very helpful schedule of the items in dispute which sets out the parties' respective cases. In relation to a number of these items, the plaintiff's stance is that he will return them provided that the defendant returns certain items to him. It is to be noted that the plaintiff has not taken out any application under Order 14.

21. In approaching this matter, I have, of course, to take into account that the terms of Order 14 itself imposes upon the plaintiff who is a respondent to the application for summary judgment to make a positive case in relation to the items which are sought to be returned. Further, I have to take into account that it is wrong in Order 14 applications to decide disputed issues of fact. If, in relation to any one or more items, I am satisfied that there is an issue of fact which can only be resolved at trial, I will not grant an order for its return at this stage.

22. It appears to me that the main bone of contention between the parties appears to be two Persian cats presently with the plaintiff. The defendant asserts that she purchased them prior to any engagement and she paid for them by cheque which has now been produced and is not really disputed. The plaintiff had deposed to the fact that he paid for them but this does not appear to be correct. These cats have somewhat surprisingly been elevated to children and family. The evidence of ownership by the defendant is overwhelming. In addition, the plaintiff has, on several occasions, both in writing and on the telephone, conceded that the cats belong to the defendant. The cats are referred to in the defence to counterclaim and they are referred to in the agreement entered into between the parties. It is not for me to consider motive on an Order 14 application even though Mr. Barlow invited me to do so. So far as the cats are concerned, I am satisfied that on the plaintiff's pleaded defence to counterclaim, the ownership of the cats is not a real issue. As I said, they were subject to the agreement to return and the various acknowledgments. I can see no arguable defence in relation to the cats which must be returned within 24 hours of the handing down of this judgment.

23. As to item (2) of the defence to counterclaim - a yellow vase, this is item 14 on Mr. Coleman's Schedule and is said to be Swedish (the defendant is Swedish). This vase was said to be given to the defendant in 1971, and all that the plaintiff says now is that he will give it up if the defendant returns certain items to him. I am not impressed with this tit for tat approach. Unless the plaintiff makes a claim to an item, it is not sufficient to meet the claim merely by stating that he is prepared to exchange it. This item must be returned.

24. As to item (3) of the defence to counterclaim - a suitcase and hand luggage - this is item 19 on Mr. Coleman's Schedule. It is said that there is only one suitcase left which belongs to the defendant and again the exchange point is made. In my judgment, this item too must be returned. It is not clear whether there is, in fact, any other hand luggage or how it is to be identified and, therefore, this part of my order will only relate to the suitcase.

25. As to items (4) and (8) of the defence to counterclaim - place mats and cook books - this is item (18) on Mr. Coleman's Schedule. The only point here is the exchange point and so this item has to be returned.

26. As to item (5) of the defence to counterclaim - a carved medicine box, this is item (15) on Mr. Coleman's Schedule. It is said that the plaintiff does not know if it is in the flat but he is prepared to give it up if there is an exchange. The item must have been in the flat in February 1993, when the defence to counterclaim was filed and it must now be returned.

27. As to item (6) of the defence to counterclaim - a microwave oven - this is item (16) in Mr. Coleman's Schedule. It is said to be non-functioning, but the plaintiff is prepared to give it up if there is an exchange. This item must be returned.

28. As to item (7) of the defence to counterclaim - a Japanese Kimono - this is item 5 in Mr. Coleman's Schedule. This is an antique Kimono and the receipt is in the bundle. The plaintiff says that it was a gift to him from the defendant, but that is wholly inconsistent with the pleaded case. This item too must be returned.

29. I have already dealt with the defendant's letters which will either be returned voluntarily before I hand down judgment or will be ordered to be returned, if not done voluntarily.

30. I now turn to item (11) in Mr. Coleman's Schedule - Ethiopian Coptic crosses - given to the defendant by her father who has connections with Ethiopia in December 1991. The plaintiff asserts that they were a gift to him from the defendant, but this is unbelievable in the light of his several offers to return the crosses which can be seen in the bundle.

31. Item (1) in Mr. Coleman's Schedule is a set of golf clubs. The plaintiff asserts that he purchased them for guest use and they were not a gift to the defendant. There is clearly a triable issue here and thus I do not propose to make any order in relation to this item.

32. Item (2) in Mr. Coleman's Schedule is a set of roller blade skates. These are said by the plaintiff to have been given back to a friend and that there are no other. Clearly, this is an issue of fact which I cannot resolve at this stage and thus no order will be made.

33. Item (3) in Mr. Coleman's Schedule is diving equipment. The plaintiff alleges that the defendant took it with her and what is left belongs to the plaintiff. In any event, there is a difficulty in tying up what was brought by the defendant with what is left and this cannot easily be resolved at this stage.

34. I am not concerned at this stage with the Mazda car because no application for summary judgment is made in respect of it.

35. Item (6) in Mr. Coleman's Schedule is a step/ladder chest. The defendant asserts that it was a gift from the plaintiff. The plaintiff asserts that it was brought from the common house. This issue cannot be resolved at this stage.

36. Item (7) are Antique chests given to the defendant by a former employer, Mr. Thomas. The plaintiff asserts that these were given to him by the defendant in exchange for other furniture. This too is an issue which I cannot resolve at this stage.

37. Item (8) is a plastic coffee table which would appear to be worth very little. The plaintiff says the defendant can have it if she returns the other items. As the plaintiff is making no claim on the table, it must be returned.

38. Item (9) are some rattan rugs. The plaintiff says they have rotted and was thrown away. This too is an issue which cannot be resolved at this stage.

39. Item (10) are the letters which I have already dealt with. Also included in this item are some 70 cassettes. The plaintiff says he will give back the cassettes if other property is returned to him. As he must know what cassettes he is offering to return, I order that he should return them now.

40. Item (12) are some unspecified paintings and/or pictures. These are said to be a gift from Mr. Thomas to the defendant. The plaintiff asserts that all remaining pictures belong to him and there is thus an issue which cannot be resolved at this stage.

41. Item (13) are frames and photos which the plaintiff will give up subject to exchange. He must return them now as he is not laying any proprietary claim to them.

42. Item (17) are candlesticks. The plaintiff asserts that none remaining belong to the defendant and this issue will have to be resolved at trial.

43. Item (20) are 2 ginger jars. The plaintiff asserts that they are part of his collection and that they do not belong to the defendant. This issue can only be resolved at trial.

44. Item (21) are clothes and accessories which the plaintiff will return subject to exchange. As he is making no proprietary claim to them, he must return them.

45. If necessary, I will hear counsel on the form of Order, but I hope and expect that both sides will do their best to ensure that the various Orders which I have made in this judgment are complied with without unnecessary arguments and the expenditure of further costs.

46. One thing is clear and that is that this consolidated action ought to be heard as soon as possible. Clearly, there is still a great deal of tension between these parties arising out of their unfortunate cohabitation. It seems to me that it is in the interest of both parties for all outstanding matters to be resolved as quickly as possible. If ever there was a case where the services of a trained mediator would be useful, this case would seem to be an appropriate one.

47. If this matter does go to trial, that it seems to me important that an agreed and detailed inventory of items in the plaintiff's flat which come within the description of items claimed should be made so that the trial judge will know precisely what it is he is dealing with. Possibly, the items in dispute at trial will have to be brought to court.

48. I am happy to end on a congratulatory note. Not only was I greatly assisted by the written and oral submissions of counsel which were measured and to the point, but I was also greatly assisted by the two bundles which were placed before me by the defendant's solicitors which compiled in every regard with the Practice Direction for Interlocutory Applications and the Practice Direction for Affidavits. If only all cases could be so well presented, the life of the judge would be far easier.