TAM LAN CHI LORCHE, suing as an Administratrix of the Estate of Tam Kam Fai Francis, deceased v. CHAN SIU MUI

HCMP 2084/2017

[2022] HKCFI 517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2084 OF 2017

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J U D G M E N T

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A. INTRODUCTION

1.  The plaintiff Tam Lan Chi Lorche and the defendant Chan Siu Mui are respectively a daughter and the wife of Tam Kam Fai Francis, deceased (the “Deceased”), who died intestate in Hong Kong on 17 December 2012.  The plaintiff and the defendant are the joint Administratrices of the Estate of the Deceased (the “Estate”).

2.  Amongst the Estate of the Deceased is the property known as Flat E on the 10^th Floor of Tower 15, Costa Del Sol (Phase IIB), Laguna Verde, No 8 Laguna Verde Avenue, Kowloon, Hong Kong (the “Property”).  The plaintiff claims that the Property was jointly owned legally and beneficially by the Deceased and the defendant as tenants in common, and seeks a declaration from the court that the Property is held by the Estate and the defendant as tenants in common in equal shares.  The defendant, on the other hand, maintains that she and the deceased owned the Property as beneficial joint tenants, and seeks a declaration that the defendant has become the sole beneficial owner of the Property upon the death of the Deceased.

B.      BACKGROUND

3.  The Deceased and the defendant were married on 4 July 2004.  In November 2004 the Deceased acquired the Property registered under his sole name.

4.  On 23 November 2005, the Deceased assigned half of the interest in the Property to the defendant and they became tenants in common in equal shares.

5.  By a Declaration made by the Deceased and the defendant on 19 July 2007 (the “Declaration”), it was declared by the Deceased and the defendant that:

“1. as from the date hereof they shall hold the Property Beneficial Joint Tenants [sic]; and

2.  as between they themselves as parties to the said Assignment, they shall be bound by all other terms and covenant contained therein which are not varied or affected by this Declaration.”

6.  The Declaration was registered in the Land Registry by Memorial No 07080200120141 on 2 August 2007 and stamped on the same day, although adjudged not chargeable with any duty.

7.  With reference to the Declaration, the Land Registry did once make Remarks in the owner section of the land register in respect of the Property that the Deceased and the defendant were “NOW AS JOINT TENANTS SEE MEM. NO. 07080200120141”.

8.  The Deceased died intestate on 17 December 2012.  Although a handwritten note signed by the Deceased and a witness dated 12 April 2002 was found in the safe deposit box after the Deceased had passed, the note did not amount to a valid last will as it was made before the Deceased’s marriage with the defendant, and was only witnessed by one person.

9.  The plaintiff and the defendant are the two Administratrices of the Estate of the Deceased.  In the Schedule of Assets and Liabilities of the Deceased (the “Schedule”) affirmed by the plaintiff and the defendant annexed to the Letters of Administration (“LA”), the Property was included in the Schedule as a property held by the Deceased and the defendant as “Tenant in Common in equal shares. (Deceased’s share: 1/2).”

10.  Subsequently, the Land Registry registered the LA and removed the said previous remarks: “NOW AS JOINT TENANTS SEE MEM. NO. 07080200120141”.

11.  The plaintiff disputes the Declaration as a valid declaration of trust, and further contends that the defendant’s affirmation made on 12 May 2016 to verify the Schedule (the “LA Declaration”) would have the effect of renouncing or revoking her interest to the Property under the Declaration.

C.      ISSUES AT TRIAL

12.  In the Listing Questionnaire of the defendant dated 22 April 2020, the defendant has proposed the following “Issues to be Tried”:

“1. Whether the Declaration is a valid declaration of trust of the Property such that the Deceased and the Defendant (as tenants-in-common) held the Property on trust for the Deceased and the Defendant (as joint tenants);

2.  If the Declaration constitutes a valid declaration of trust, whether the LA Declaration would amount to a renunciation of the Defendant’s interests under the Declaration.”

13.  As part of the plaintiff’s case, the plaintiff has made various factual allegations in respect of the Declaration, for example, that after obtaining half of the interest in the Property, the defendant further pressurized the Deceased to make her a joint tenant to the Property.  The plaintiff further alleged that the Deceased made the Declaration for “bluffing his way” out of the defendant’s pressure.

14.  However, the plaintiff accepts (at paragraph 12 of her Opening Submissions) that ultimately, the main dispute in the present proceedings is the validity and legal effect of the Declaration (and if necessary the LA Declaration), which should only involve legal arguments against the undisputed/indisputable facts, records and documents.

D.      VALIDITY AND EFFECTIVENESS OF THE DECLARATION

D1.    Effect of the Declaration

15.  In paragraph 12 of黃(由起訴監護人黃代表) 對 梁及另一人^[1], HH Judge C K Chan adopted the law by reference to the very useful analysis contained in Bhura v Bhura^[2]as follows:

“[8] The applicable legal principles concerning a property dispute such as this are tolerably clear and have most recently been re-stated by the Supreme Court in Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776. In summary I think they are as follows.

i) If there is an express declaration of beneficial interests then that is, almost invariably, the end of the matter. Such an express declaration can only be displaced if it has been procured by fraudulent conduct. …

ii) If there is no express agreement about the beneficial interests then there is likely to be (at least) a tacit understanding. …

iii) In the rare case where the evidence does not reveal a tacit understanding about ownership the court can reach for the presumptions.  An obvious presumption is that beneficial ownership is the same as legal title (see Jones v Kernott at paras 17 and 51(1)).”

16.  In the present case, the Declaration was an express declaration that the Deceased and the defendant would hold the Property as beneficial Joint Tenants.

17.  The Declaration was signed and sealed by the Deceased and the defendant and is presumed to have been regularly executed under the Presumption of Regularity.

18.  Section 5 of the Conveyancing and Property Ordinance, Cap 219 (“CPO”) reads as follows:

“5(1) Subject to section 6 -

(a) no equitable interest in land can be created or disposed of except by writing signed by the person creating or disposing of the same, or by his agent thereunto lawfully authorized in writing, or by will, or by operation of law;

(b) a declaration of trust respecting land or any interest therein shall be manifested and proved in writing signed by the person who is able to declare such trust or by his will.” (Emphasis added)

19.  In the present case, the Declaration was in writing and executed by both the Deceased and the defendant, who were able to declare such trust.

20.  According to Lewin on Trusts, 20^th ed, a method of creating a trust is for the settlor to declare himself to be a trustee of property belonging to him.  If the property is in his own name, he simply makes a declaration.  The settlor is presumed to intend the consequences of his or her words and actions [3-004].  “A living settlor who wishes to create a trust must with sufficient clarity identify the property to be subject to it” [3-005].

21.  The Deceased and the defendant as tenants in common have clearly by the Declaration identified the Property to be subjected to the beneficial joint tenancy to be created, and satisfied the formal requirement for a declaration of trust in accordance with section 5(1)(b) of the CPO.

22.  It is incorrect for the plaintiff to argue that the Declaration is not a legally effective or valid instrument to convert the prior legal and beneficial tenancy in common into a beneficial joint tenancy.  The plaintiff contends that the only way to achieve the change was by way of a deed of assignment/conveyance. I do not agree.

23.  The reliance by the plaintiff on section 9 of the CPO is also misplaced.  That section creates a presumption, “unless the contrary intention is expressed”, that the tenancy vests in joint owners as tenants in common rather than as joint tenants.  However, it does not prohibit the Declaration from expressly creating a beneficial joint tenancy.

24.  The reliance by the plaintiff on the “inconsistency rule of interpretation” is also misplaced.  We are not dealing with inconsistent dispositions made in an instrument.  Rather, we are dealing with a change in the nature of the beneficial ownership of the Property brought about by the Declaration.

D2.    Views of the Inland Revenue Department (“IRD”) and the Land Registry

25.  Section 4 of the Stamp Duty Ordinance, Cap 117 (“SDO”) requires that every instrument specified in the First Schedule to the SDO shall be chargeable with stamp duty:

“4. Charging of, liability for, and recovery of stamp duty

(1) Subject to this Ordinance, every instrument, wherever executed, specified in the First Schedule shall be chargeable with the stamp duty specified in respect thereof in that Schedule, and the headings, notes and explanations in that Schedule shall have effect accordingly.”

26.  Head 1 of the First Schedule to the SDO concern instruments involving conveyance on sale, agreement for sale and lease of Immovable Property in Hong Kong:

(1)	Conveyance on sale chargeable with Ad Valorem Stamp Duty
(1AA)	Conveyance on sale chargeable with Special Stamp Duty
(1AAB)	Conveyance on sale chargeable with Buyer’s Stamp Duty
(1A)	Agreement for sale chargeable with Ad Valorem Stamp Duty
(1B)	Agreement for sale chargeable with Special Stamp Duty
(1C)	Agreement for sale chargeable with Buyer’s Stamp Duty
(2)	Lease

27.  Under section 29A(1)(d) of the SDO, Agreement for Sale in the First Schedule is interpreted as to include, amongst others, “(d) an instrument in which a declaration of trust in respect of immovable property is made, other than a declaration of trust under which no beneficial interest passes in the property subject to the declaration.” (Emphasis added)

28.  In this case, the Declaration has resulted in the change of the nature of beneficial interest of the Deceased and the defendant from Tenants in Common to Joint Tenants.  Before the change, the same 2 persons, ie the Deceased and the defendant held the Property as beneficial tenants in common in equal shares.  After the change, the Deceased and the defendant held the Property as beneficial joint tenants.  That may explain why the Declaration (registered at the Land Registry as M/N 07080200120141) was adjudicated as not chargeable with any stamp duty by the Assistant Collector.  No beneficial interest had passed as the same 2 persons held the Property jointly.

29.  In any event, one does not have to go so far as to speculate the reason why the IRD considered that no stamp duty was payable on the Declaration.  Put simply, the decision of the IRD is not binding on the court.

30.  In the same vein, the letter from the Land Registrar to the plaintiff dated 12 May 2017 stated clearly that “under the current deeds registration system of the Land Registration Ordinance, Cap 128, the effect of an instrument is independent of registration”.

31.  In Fang Meng Sung, John v Luk Man Lok Rocky & Ors^[3], Au Yeung J at [150] noted that:

“…It is well-established that registration has no effect on the creation of interests in land. It does not enhance the title of the owner; nor will non-registration detract from that title, for title comes from execution of the deed. Rather, registration gives priority to those interests which can be registered and acts as a notice to those dealing with the land.”

32.  Thus, neither the IRD’s decision on whether to charge Stamp Duty nor the description adopted by the Land Registry has any binding effect on the court as to the legal effect of the Declaration.

D3.    Construing the typographical error in the Declaration

33.  The court notes that the following sentence at page 1 of the Declaration is not grammatically correct, which reads:

“1. as from the date hereof they shall hold the Property Beneficial Joint Tenants; and”

34.  The word “as” is apparently missing, and the complete sentence should have read “1. as from the date hereof they shall hold the Property as Beneficial Joint Tenants; and”.

35.  In Tennyson Estate Limited v Boxwood Design Limited, HCA 283/2010 (unrep, 12/03/2014) it was held (per DHCJ Stewart Wong SC at footnote 2):

“The reference to clause 3 here is obviously a typographical error, because clause 3 deals with the Contract being a lump sum fixed price contract.  It is obvious that the reference should be to clause 4, which sets out the completion date, and I am therefore entitled to, and do, read clause 27 as if the reference is to clause 4 instead of clause 3 (which is an obvious mistake).  As stated by Lewison, The Interpretation of Contracts (5^th ed, 2011) at §9.01: “As part of the process of construction the court has power to correct obvious mistakes in the written expression of the intention of the parties.  Once corrected, the contract is interpreted in its corrected form”. Thus, for example, in WW Gear Construction Ltd v McGee Group Ltd (2010) 131 Con LR 63, Akenhead J, by a process of construction, corrected an obviously mistaken cross-reference in a contract (reading a reference to clause 4.21.1 as a reference to clause 4.21).”

36.  I accept that the word “as” is missing as a result of an obvious typographical error.  The missing word does not affect the clear intention of the parties that as from the date of the Declaration, the Property should be held by the Deceased and the defendant as beneficial joint tenants.

37.  This is also made clear by the fact that in Recital B of the Declaration, it was stated that “The Trustees desire that as from the date hereof they should hold the Property as beneficial Joint Tenants.”

38.  In Orr v Mitchell and Ors [1893] AC 238, the House of Lords held at p244 that in the interpretation of the contracts, “inasmuch as the clause itself does not sufficiently explain its meaning, reference may be made to the narrative or any subsidiary clause; not to cut down or contradict the dispositive clause, but as evidence of the intention of the parties in adopting these words.”

39.  I agree that the missing word “as” does not affect the clear effect of the Declaration, viz as from the date of the Declaration, the Deceased and the defendant shall hold the Property as beneficial joint tenants.

E.      THE LA DECLARATION

40.  In this regard, the defendant’s case is that after some disputes as to who should be the administrator of the Deceased’s Estate which was later settled between the plaintiff and the defendant, the matter in relation to the Estate of the Deceased was then entrusted to Messrs Li, Chow & Co. However, in the Schedule of Assets and Liabilities of the Deceased prepared for application of the LA, the Property was included in the Schedule as a property held by the Deceased and the defendant as Tenants in Common in equal shares. The defendant being illiterate in English and based on the trust in the competence of Messrs Li, Chow & Co, affirmed the Schedule.  The plaintiff and the defendant eventually obtained the LA of the Deceased’s estate on 13 December 2016.

41.  After the death of the Deceased, the defendant continued to repay the outstanding mortgage loan in respect of the Property, which was eventually paid off in about January 2017.  The defendant then engaged Messrs Pang, Wan and Choi Solicitors (“PWC”) for redemption of the Property from the mortgagee bank.  When reviewing the LA, PWC discovered the mistake in the Schedule regarding ownership of the Property and wrote to the Land Registrar for rectification.

42.  I accept the defendant’s evidence in this regard.  In cross-examination, the defendant was unshaken and gave answers in a truthful and straightforward manner.

43.  A mistake made in the affirmation verifying the Schedule would not preclude the deponent from correcting the mistake.  Section 24A of the Probate and Administration Ordinance, Cap 10 provides the avenue for an administrator to make a corrective affidavit and make necessary amendment to the schedule as follows:

“(8) If, after the court makes a grant under section 3, any inaccuracy in a schedule or additional schedule annexed to the grant comes to the knowledge of the executor or administrator, he shall-

(a) file-

(i) a corrective affidavit; and

(ii) a duplicate of the additional schedule exhibited by such affidavit under subsection (9),

with the Registry; and

(b) deliver the grant to the Registry together with such affidavit.”

F.       CONCLUSION AND DISPOSITION

44.  For the reasons set out above, I agree that the plaintiff’s claim should be dismissed, and the defendant’s counterclaim should be allowed, with the following orders to be made:

(1)  The plaintiff’s claim in these proceedings be dismissed.

(2)  A declaration that the Declaration dated 19 July 2007 has created a beneficial joint tenancy over the Property (as defined in the Schedule thereto) between the Deceased and the defendant.

(3)  A declaration that the defendant has become the sole beneficial owner of the Property after the Deceased’s death.

(4)  An order directing that the plaintiff and the defendant (in their capacity as Administratrices of the Deceased’s Estate) to convey the legal title held by the Estate over the Property to the defendant.

45.  I see no reason why costs should not follow the event.  I order that the plaintiff do pay the defendant’s costs of these proceedings (including all costs reserved, if any), such costs are to be taxed if not agreed.

46.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.