LI NA, the Administratrix of the estate of CHEUNG CHUNG WAH, the Deceased v. CHEUNG CHUNG FU

DCCJ 3649/2016

[2019] HKDC 572

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3649 OF 2016

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J U D G M E N T

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Background

1.  The plaintiff is the widow of the late Cheung Chung Wah (“the Deceased”) and the sole administratrix of the Deceased’s estate.

2.  The defendant is the Deceased’s twin brother and the registered legal owner of a public housing unit of the Hong Kong Housing Authority known as Flat 4 on 20^th Floor of Chung Yuen House (Block 8) & (including planter/planter box appertaining thereto, if any), Chuk Yuen (North) Estate, No 8 Wing Chuk Street, Kowloon, Hong Kong (“the Property”).

3.  The Property was purchased from the Hong Kong Housing Authority under the Tenants Purchase Scheme on 3 February 2000 at the price of $267,100, with a mortgage loan of $264,600 borrowed from the National Commercial Bank Limited and its successor the Bank of China (Hong Kong) Limited (collectively “the Bank”).

4.  Just before the purchase, the mother of the Deceased and the defendant was the tenant of the Property, but the mother did not stay at the Property.  Only the Deceased and the defendant were staying at the Property.

5.  The Deceased and the plaintiff were married on 31 December 1998, but the plaintiff had not yet obtained the one-way permit to come to Hong Kong to stay permanently at that time.  The plaintiff only obtained the one-way permit to come to Hong Kong with their daughter in February 2004, and they had stayed with the Deceased at the Property since then.

6.  The Deceased died intestate on 30 August 2013 and survived by the plaintiff and their daughter, who was still a minor.

7.  The dispute between the plaintiff and the defendant is whether the Deceased’s estate or the defendant should have the beneficial interest of the Property.

The plaintiff’s case

8.  According to the plaintiff’s pleaded case, when the Property was purchased, there was an agreement and/or a common intention between the Deceased and the defendant that: (1) the Property would be registered in the name of the person who was unmarried yet; (2) because the Deceased was married and the defendant was unmarried at that time, the Property would be registered in the name of the defendant; and (3) the ownership of the Property would be arranged by and between the Deceased and the defendant, and the Property should belong to the one who was able to make contributions to repay the mortgage loan (collectively “the Agreement”).

9.  In pursuance of the Agreement, the Property was registered in the sole name of the defendant, and the Deceased and the defendant opened an account with the Bank in their joint names for mortgage repayment (“the Joint Account”).

10.  Soon after the Property was purchased, the defendant was married in Mainland China, and about 3 months thereafter, the defendant moved away from the Property to live with his wife elsewhere.

11.  In the light of the defendant’s marriage, the Deceased asked the defendant to execute a will and transfer the legal title back to him so as to secure his interest in the Property.

12.  On 12 April 2000, the defendant executed a will (“the Will”) at the office of Messrs Ford, Kwan & Company, a solicitors’ firm, to bequeath the Property to the Deceased.

13.  However, the defendant did not proceed with the conveyancing procedure to transfer the legal title back to the Deceased because the defendant said that he was on the run all day and did not have the money to handle the matter.

14.  When the Deceased passed away on 30 August 2013, the mortgage loan of the Property was almost fully settled with only 2 instalments outstanding.

15.  In or around mid-September 2013, during the funeral banquet of the Deceased, the defendant promised the plaintiff that he would transfer the title of the Property to her in due course.

16.  However, without the plaintiff’s prior notice and consent, the defendant settled the last 2 instalments with the Bank and redeemed the Property on 10 October 2013.

17.  Despite the plaintiff’s requests, the defendant did not return the title deeds and documents of the Property to her.  Instead, the defendant instructed his solicitors to issue 2 letters dated 29 October 2013 and 11 May 2016 respectively to demand the occupants of the Property including the plaintiff to quit and deliver up vacant possession of the Property to the defendant.

18.  Thus, the plaintiff issued the present proceedings on 26 July 2016 to claim for various reliefs in respect of the Deceased’s beneficial interest in the Property.

19.  The plaintiff’s claims are based on the Agreement.  The pleaded case is that pursuant to the Agreement, the Deceased paid for the monthly mortgage instalments of the Property on his own, and solely made substantial financial contributions towards the expenses of the Property, including but not limited to the management fees, water charges, town gas charges, telephone charges, electricity charges, government rent and rates, repair and renovation fees, general family and/or household expenses and other miscellaneous expenditures.

20.  Further or alternatively, in detrimental reliance on the representations and promises made by the defendant, and believing that the Deceased had and/or would have interest in the Property, the Deceased paid for the monthly mortgage instalments of the Property on his own and solely made substantial financial contributions towards the expenses on the Property.

21.  The particulars of the representations and promises made by the defendant are that: (1) the defendant would carry out the promises and fulfil the obligations under the Agreement; (2) the Property should belong to the one who was able to make contributions to repay the mortgage loan; (3) the defendant had no money to repay the mortgage instalments or to bear any expenses of renovation of the Property; (4) the defendant abandoned all his interest and right in and over the Property; and (5) the Property belonged to the Deceased and his family.

22.  In the circumstances, the plaintiff contends that the defendant is and was at all material times holding the Property on trust for and on behalf of the Deceased, and the Deceased is and was at all material times the true beneficial owner of the Property.

23.  Further or alternatively, the plaintiff contends that it would be unconscionable for the defendant to renege from and/or deny the Agreement and/or the defendant’s promise and representations thereunder and/or at all by claiming and/or asserting interests in the Property.

24.  The plaintiff also relies on the doctrines of estoppel by representation and/or estoppel by convention.

25.  As an alternative case, the plaintiff contends that in or about 2000, the defendant discontinued possession of the Property or alternatively was dispossessed of the same, and the Deceased, his successor-in-title and his family have been continuously and are still in exclusive possession of the Property.  Thus, the Deceased had acquired possessory title of the property by way of adverse possession over 12 years since 2000, all of the rights and interests whatsoever of the defendant was time-barred and the defendant’s title to the Property was extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap 347.

26.  In the Statement of Claim, the plaintiff claimed a long list of reliefs.  However, in the plaintiff’s closing submissions, only the following reliefs are claimed:-

(1)  A declaration that the Deceased is the sole beneficial owner of the Property;

(2)  A declaration that the defendant holds the Property on trust for the Deceased;

(3)  A declaration that the Property forms part of the estate of the Deceased; and

(4)  An order that the defendant do forthwith transfer his legal and/or equitable title and/or interests in and over the property to the plaintiff in her capacity as the administratrix of the estate of the Deceased.

27.  At the trial, the plaintiff gave evidence and called 3 other witnesses to give evidence in support of the plaintiff’s case.  They are Mr Kan Chung Wah (“Mr Kan”), Mr Wong Yuk Yu (“Mr Wong”) and Mr Sin Yu Kwong (“Mr Sin”).

The defendant’s case

28.  On the other hand, the defendant’s pleaded case is that in or about December 1999, a family meeting was held at the Property, and the Deceased, the defendant, the defendant’s younger brother and their mother were all present.  At the meeting, the mother expressed her wish that the Property be purchased and registered in the defendant’s sole name and it would be a property to be held by the defendant only (ie the defendant would have the full ownership of the Property).  All the persons present including the Deceased orally agreed to their mother’s wish and the Deceased raised no objection.  This forms the background, basis and/or common intention as to why the Property is registered in the defendant’s sole name.

29.  At the meeting, there was an oral agreement, common understanding, and/or common intention among all the persons present, including the Deceased and the defendant, to the effect that: (1) the defendant and the Deceased (including the plaintiff) would continue to reside at the Property; (2) the Deceased had to apply for a public housing unit and move out of the Property once the Deceased obtained a public housing unit; (3) the purchase price of the Property would be obtained from a mortgage loan from a bank; and (4) before the Deceased obtained a public housing unit and moved out of the Property, the Deceased would be responsible for paying half of the bank monthly mortgage repayment loan for his occupation of the Property.

30.  The defendant denies the existence of the Agreement as alleged by the plaintiff, and avers that he alone opened an account with the Bank for repayment of the mortgage loan in his sole name at all material times.

31.  The defendant also avers that: (1) he had been residing at the Property from around February 2000 to around June 2001 together with the Deceased and the plaintiff, and he moved out of the Property in about June 2001; (2) his personal belongings and items had remained in the property when he moved out of the Property in around June 2001; (3) at all material times, he has repeatedly requested and/or demanded the Deceased and/or the plaintiff to move out of the Property; (4) despite the repeated requests, the Deceased and the plaintiff has failed and/or refused to quit and deliver up vacant possession of the Property to him; and (5) the plaintiff did apply to the Hong Kong Housing Authority for a public housing unit on 15 July 2015.

32.  The defendant further avers that he has never executed any will in 2000, and even if there was such a will executed in April 2000 in favour of the Deceased, which is denied, the defendant executed it for the reason that he suspected his wife had an affair with another man and that if he died accidentally, the Property could be bequeathed to the Deceased instead of his wife.

33.  The defendant denies that the Deceased had ever requested him to transfer the Property’s title back to the Deceased, and that he had said to the Deceased that he had been on the run and had no money to effect the conveyancing procedure.

34.  The defendant also denies that he promised the plaintiff at the funeral banquet that he would transfer the Property’s title to her in due course; but avers that at the funeral banquet on 14 September 2013, the plaintiff asked of how to deal with the Property and he said he would give the plaintiff a reply later.

35.  Thus, the defendant contends that the plaintiff is not entitled to any of the reliefs claimed.  The defendant also counterclaims against the plaintiff for delivery of vacant possession of the Property and damages for trespassing the property as the plaintiff has failed and/or refused to deliver vacant possession of the property within one month from the day of the demand letter dated 29 October 2013 issued by the defendant’s solicitors.

36.  The defendant gave evidence on his own without calling any witness at the trial.

The issues

37.  The main dispute between the parties is therefore whether, pursuant to the Agreement, the defendant holds the Property as legal owner only but the beneficial interest of the Property belongs to the Deceased’s estate, or whether the defendant holds the Property as both legal and beneficial owner pursuant to the mother’s wish and as agreed by all the persons present at the meeting in December 1999.  There are also other subsidiary factual disputes as mentioned above.

38.  However, the parties have agreed that the following are the issues in dispute in this case:-

(1)  Whether the agreement reached in a family meeting as alleged by the defendant and/or the said family meeting in or about December 1999 existed (“Issue 1”);

(2)  What is the common intention and/or agreement and/or common understanding between the Deceased and the defendant when the Property was purchased, registered in the defendant’s sole name, the defendant ceased to make mortgage repayments and left the Property (“Issue 2”);

(3)  Whether the defendant has executed any will on 12 April 2000 to bequeath the Property to the Deceased (“Issue 3”);

(4)  Whether the mortgage repayments were made via the Joint Account or the defendant’s sole name account (“Issue 4”);

(5)  Whether the defendant has behaved in a way that he is the true beneficial owner of the Property throughout the years (“Issue 5”);

(6)  Whether the defendant has promised to transfer the legal title back to the plaintiff at the funeral banquet of the Deceased on 14 September 2013 (“Issue 6”);

(7)  Whether the defendant has been holding the Property on trust for the Deceased (“Issue 7”); and

(8)  Further or alternatively, whether the Deceased can rely on proprietary estoppel to claim the beneficial ownership of the Property (“Issue 8”).

39.  These issues are discussed in turn below.

Issue 1

40.  The defendant submits that in a dispute over the beneficial ownership of a landed property, the starting point is that the beneficial ownership is the same as the legal title, and the onus is on the person seeking to show that the beneficial ownership is different from the legal ownership (see Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985 and Stack v Dowden [2007] 2 AC 432).

41.  Thus, the plaintiff bears the burden of proof to demonstrate that the beneficial ownership of the Property is different from the legal ownership, and that there was a common intention between the Deceased and the defendant that the Deceased was the sole beneficial owner of the Property.

42.  I have no doubt that the above submission is correct.  Whether the plaintiff has discharged this burden will be discussed under Issue 2.

43.  However, the defendant is not simply denying the Agreement put forward by the plaintiff.  He has actually put forward a positive case that he has the full ownership (both legal and beneficial) of the Property because that was his mother’s wish and it was agreed by all the persons present at a family meeting in or about December 1999.

44.  Under the general principle that “he who alleges must prove his allegation”, the defendant must prove this positive case as alleged by him.  In other words, the defendant bears the burden to prove that there was this family meeting in or about December 1999 and all the persons present at the meeting including the Deceased agreed with their mother’s wish that the Property belongs solely to the defendant.

45.  In this regard, the only evidence in support of such a contention comes from the defendant himself.  According to the defendant’s evidence, apart from their mother and the Deceased, his elder sister and younger brother were also present at this family meeting.  However, the defendant did not call any of them as a witness to support his contentions.

46.  The defendant explained in his evidence that he did not call the mother because of her age and health problems.  He acknowledged that there was no difficulty in asking his elder sister to be a witness.  However, he did not explain satisfactorily why his elder sister as well as his younger brother were not called as his witnesses.

47.  In other words, the alleged family meeting, the mother’s wish and the agreement by all the persons at the family meeting are just the defendant’s bare allegations.

48.  Not only that there is a lack of witnesses in support of the defendant’s allegations (even though such witnesses are available), there are also clear evidence to contradict what the defendant avers.

49.  First of all, the defendant denied having the Joint Account in his Defence and witness statements.  However, when shown with the bank passbook of the Joint Account during cross-examination, the defendant changed his evidence to not remembering having opened the Joint Account and claimed that it was the first time he saw the document.  When pressed on, he again denied there was such a Joint Account.

50.  The existence of the Joint Account is beyond doubt, as the bank passbook is produced as evidence (see pp 398-406 of Trial Bundle C).  The names of the account holders of the Joint Account are clearly stated to be the defendant and the Deceased.  The amounts of monthly mortgage repayments are clearly recorded as withdrawals from the Joint Account.  The date of issue of this passbook is stated to be 2 March 2000, which corresponds with the purchase of the Property on 3 February 2000.

51.  The defendant’s denial of the existence of the Joint Account is clearly a blatant lie.  There is no reason to deny the existence of the Joint Account at all save that the defendant does not want to admit that he had opened the Joint Account with the Deceased, as it would contradict directly with his allegations that the Property belongs to him solely and that he alone opened an account with the Bank for repayment of the mortgage loan in his sole name.

52.  The defendant has in fact failed to produce any bank passbook or bank statements to show that he had a bank account with the Bank or any other bank in his sole name which was used for paying the monthly mortgage instalments.  Thus, the allegation that he alone opened an account with the Bank for repayment of the mortgage loan is clearly untrue.

53.  The defendant also denies the existence of the Will in the year 2000, but alleges that he did make a will in mid-2003 to bequeath the property to the Deceased.  The reason for making this 2003 will, according to the defendant’s witness statement, is that he had a bad relationship with his ex-wife at that time and he suspected that his eldest son was not his own son.  So he decided to pass the Property to the Deceased at that time.

54.  Although the plaintiff could not produce the Will, she produced the bill and receipt issued by Messrs Ford, Kwan & Company for their professional charges in connection with the preparation of the Will.  Messrs Ford, Kwan & Company also confirmed with the plaintiff’s solicitors in their correspondence that the bill and receipt were indeed issued by them for the services rendered in connection with the defendant’s will, but the case file was destroyed due to long lapse of time and the original of the Will is not in their possession.

55.  With the existence of the bill and receipt as well as the confirmation by Messrs Ford, Kwan & Company as aforesaid, I have no doubt that the Will did exist and it was made in the year 2000.

56.  Although the contents of the Will cannot be ascertained from any written record, I accept that it is for the defendant to bequeath the Property to the Deceased. First of all, the plaintiff’s evidence is that the Deceased had told her about the contents of the Will, namely, when the defendant passed away, all the interests in the title of the Property will belong to the Deceased and the defendant’s wife will not have a share.

57.  The plaintiff’s evidence is supported by the evidence of Mr Sin and Mr Wong who have both testified that the Deceased had told them that the defendant had made a will so as to protect the Deceased’s interest in the Property.

58.  No doubt the evidence of the plaintiff, Mr Sin and Mr Wong in this regard are hearsay evidence.  However, when the Will is lost or destroyed and when the Deceased has passed away, such evidence are the best evidence that the plaintiff could obtain.

59.  During cross-examination of the plaintiff, the defendant seems to suggest that the plaintiff should have possession of the Will and was hiding it.  I do not accept such a suggestion at all.  The Will was prepared by a firm of solicitors, and I believe the normal practice would be for the solicitors to keep the Will in their possession.  It is highly unlikely that the Deceased or the plaintiff would be able to obtain the Will from the solicitors, which in fact should belong to the defendant.  If anyone is hiding the Will, it is more likely that the defendant is doing it than the plaintiff doing it.

60.  In any event, since Messrs Ford, Kwan and Company has confirmed that the case file was destroyed due to long lapse of time, I accept that it is more likely than not that the Will was destroyed together with the case file.

61.  Moreover, the defendant does not deny that he had made a will to bequeath the Property to the Deceased.  He is only saying that the will was not made in the year 2000 and the reasons for bequeathing the Property to the Deceased were due to his bad relationship with his wife and his suspicion that his eldest son is not his own son.

62.  With the defendant’s admission in this regard, I accept that the Will must be for bequeathing the Property to the Deceased.

63.  As to why the defendant insists that the Will was not made in the year 2000 but in 2003, the evidence is that his eldest son was not yet born in 2000 but on 30 September 2001, and if the defendant admits that the Will was made in 2000, he would not be able to use the excuse that he suspected his eldest son was not his own son to justify the making of the Will.

64.  In any event, the defendant did not produce any will or any related documents to support his case either.  His evidence is that he had forgotten about this will and he cannot even remember who were the solicitors preparing the will for him.  He only remembered he bequeathed the Property to the Deceased when he was asked about it by his solicitors in 2016.

65.  I do not accept that the defendant could forget such an important document like a will and even the solicitors preparing it.  If he was so concerned that the Property would not be passed to his wife or their eldest son when he died, he would have made some record of the will so that his executor would know where to get the will and pass the Property to the Deceased.  Thus, I do not find the defendant’s evidence credible at all.

66.  In the circumstances, I do not accept that the defendant made a will in mid-2003 as alleged by him, but I find that the defendant did make the Will in the year 2000 to bequeath the Property to the Deceased.

67.  The Will does support the plaintiff’s case that it was at the request of the Deceased that the defendant made the Will to protect the Deceased’s interest in the Property, as there could be no other reason for the defendant to make the Will in the year 2000.

68.  Both the Joint Account and the Will contradict directly with the defendant’s case that the Property belonged to him alone.  Thus, I do not accept the defendant’s bare allegation that there was such a family meeting in which it was decided that the defendant should have the Property alone without the Deceased having any interest in it.

69.  Moreover, there are also other evidence to show that the defendant’s case is devoid of common sense.  Under cross-examination, the defendant confirmed that he and the Deceased paid $1,250 each to settle the down payment of $2,500 for the Property.  If the defendant’s case is true, it means that Deceased was only a tenant paying rent to the defendant for his stay in the property.  That being the case, there is absolutely no reason for the Deceased to pay any down payment for the Property.

70.  According to the defendant, the Deceased was paying $5,000 per month not for the mortgage repayment but as rent for his half share of the occupation and expenses of the Property, and the defendant himself was also responsible for the other half share.  If that was the case, it means that the total amount for the occupation and expenses of the Property amounts to $10,000. 

71.  However, the monthly rent charged by the Hong Kong Housing Authority for the Property before its purchase was only $1,708.  The evidence shows that the electricity, water and gas bills together with the management fees amount to about $1,000 per month.  It means that the total amount of expenses including the rent before the purchase was about $3,000 only, which is substantially less than the amount of $10,000 as claimed by the defendant.  It does not make sense at all for the Deceased to pay such a high rent of $5,000 per month to stay at the Property when he had no interest in the Property.

72.  The defendant alleges that in mid-2003, he received a call from the Bank informing him that the mortgage was not repaid for 3 months.  He asked the Deceased why he did not pay the mortgage instalments and learned that the Deceased had financial difficulties because he had purchased a property in Shenzhen.  He therefore asked his friend Chau Kin to lend him $20,000 to pay for the outstanding amount owing to the Bank.  He also asked the Bank to reduce the amount of the monthly instalments to about $900 and the mortgage period was extended by 120 months.

73.  This is contrary to Mr Sin’s evidence.  According to Mr Sin, the Deceased had financial difficulties in 2003 because of his employer’s delay in paying 6 month wages to the Deceased during the SARS period.  Mr Sin lent the Deceased $20,000 for him to pay the outstanding mortgage instalments and the Deceased repaid this amount of $20,000 to him later by instalments.

74.  It does not make sense that the Deceased would have money to purchase a property in Shenzhen and yet had financial difficulties to repay the mortgage for the Property.  If the Deceased could not afford to pay the mortgages of 2 properties, I do not believe that he would purchase a property in Shenzhen at that time.  SARS did occur in the year 2003 and it affected Hong Kong’s economy a lot.  I do not accept that the Deceased would purchase a property at that time when the economy was so bad.

75.  The defendant did not call Chau Kin to give evidence, whereas Mr Sin did give evidence to support the plaintiff’s case.  I have no doubt that Mr Sin is telling the truth.  He is an independent witness.  He knows both the Deceased and the defendant, and had no grudge against the defendant (which is admitted by the defendant).  There is no reason for him to lie about this matter against what the defendant alleges.

76.  I therefore accept that the Deceased was borrowing money from Mr Sin to repay the outstanding mortgage instalments and it is not the defendant borrowing money from Chau Kin to lend to the Deceased.  Mr Sin’s account that the Deceased was suffering financial difficulties because he was owed wages is more credible than what the defendant alleges.

77.  Again, it shows that the defendant is not truthful in his evidence.

78.  Moreover, both Mr Kan and Mr Wong testified that at a dinner at Tai Shing Street market, they heard the defendant saying that the Property belonged to the Deceased when the defendant asked the Deceased to arrange the transfer of the Property back to the Deceased because the defendant wanted to apply for public housing, but the defendant refused to pay or share half of the transfer cost as requested by the Deceased.

79.  The defendant denies there was such an incident and submits that there were discrepancies in the evidence among the plaintiff’s witnesses.

80.  I do not think that there were any material discrepancies among the plaintiff’s witnesses.  It is understandable that their accounts could have slight differences as they may not be recalling all the details after such a long period of time, but their accounts of the main events are not different at all.  The slight differences in fact show that they are not making up a story together and make their accounts more credible than the contrary.

81.  Mr Kan and Mr Wong were also friends of the Deceased and the defendant, and the defendant also admits that they had no grudge against him.  So they are also independent witnesses.  I accept that they are telling the truth and their evidence are credible.

82.  In other words, I accept that the defendant did make an admission that the Property belonged to the Deceased at a dinner as mentioned by Mr Kan and Mr Wong.

83.  If the Deceased does not have any interest in the Property as alleged by the defendant, there is no reason for the defendant to request for the transfer and make the admission at the dinner.  There is also no reason for the defendant to refuse to pay any of the transfer cost if it was just to facilitate his application for public housing.  Again, these evidence show that the defendant’s case is devoid of common sense.

84.  The defendant argues that since the Deceased was asking the defendant to pay half of the transfer cost, it shows that the defendant and the Deceased were each holding half of the beneficial interest of the Property.  If that is the case, it would suggest that the defendant was not the sole legal and beneficial owner of the property, which is contrary to the defendant’s case.

85.  However, I do not accept that asking the defendant to pay half of the transfer cost would necessarily mean that the defendant still had half of the beneficial interest. It could be that the Deceased did not have enough money to pay the entire cost for the transfer at that time, and because the transfer at that time was initiated by the defendant in view of his wish to apply for public housing, the Deceased thought that the defendant should be responsible for half of the cost. 

86.  Thus, I do not accept the defendant’s submission that just because the Deceased asked the defendant to pay half of the transfer cost, the defendant still has half of the beneficial interest of the Property.

87.  In the circumstances, I have no doubt that the defendant is not telling the truth and his case is totally incredible.  I do not accept that there was a family meeting in December 1999 in which an agreement was reached to let the defendant have the Property solely on his own.

88.  The answer to Issue 1 is therefore negative.

Issue 2

89.  As mentioned above, the plaintiff bears the burden of proof to demonstrate that the Deceased had the beneficial interest of the Property.

90.  First of all, the evidence as analysed under Issue 1 above not only show that the defendant’s case is not credible, but supports the plaintiff’s case that the Deceased did have an interest in the Property.  I do not think that I need to repeat all of the above discussions here, but the Joint Account, the Will and the admission made by defendant at the dinner all show clearly that the defendant was not holding the Property solely on his own but with the Deceased.

91.  However, the plaintiff has to show that the Agreement existed and what the terms of the Agreement were.

92.  In this regard, the plaintiff gave evidence that the Deceased told her that he had a discussion with the defendant before the purchase of the Property and they decided to purchase the Property with just the defendant as the registered owner because the Deceased was married and the defendant was not yet married, but they would have a joint account together to arrange for the mortgage repayments. The plaintiff further gave evidence that it was the Deceased and the defendant’s intention or common understanding that the Property belongs to whoever pays off the mortgage.

93.  I accept that the plaintiff is an honest and credible witness.  She did not exaggerate her evidence and gave her evidence in a reasonable manner.  More importantly, her account is supported by documentary evidence such as the Joint Account and the Will.

94.  Thus, I have no problem in finding that both the Deceased and the defendant had an interest in the Property even though only the defendant was registered as the owner. The Deceased’s interest of the Property must have come from an agreement, common intention or common understanding between the two of them, otherwise they would not have paid half of the deposit each and opened the Joint Account to repay the mortgage.

95.  I also accept that it was a term of the Agreement that whoever pays off the mortgage would have the Property.  The evidence shows that after paying half of the initial deposit, the defendant paid only the first 2 to 3 mortgage instalments.  Thereafter he left the Property and made no further contribution to the mortgage instalments or the expenses of the Property, except that he paid the last few instalments in order to redeem the Property.

96.  It is clear to me that the defendant had showed no interest in the Property after he moved out from it.  The cessation of payment of mortgage instalments indicates clearly that he left it to the Deceased to finish paying off the mortgage of the Property.  As mentioned above, I do not accept that the Deceased was paying $5,000 per month as rent.  So the Deceased alone was paying the mortgage instalments after the defendant left the Property.

97.  The defendant’s payment of the last few months’ instalments to redeem the Property does not mean anything except that he wanted to get back the Property from the plaintiff.  If he had not given up his interest in the Property, he would have continued to pay the mortgage instalments all along instead of just the last few months upon redemption after the Deceased had passed away.

98.  I am therefore of the view that the defendant had already decided to let the Deceased have the Property when he moved out of the Property and ceased to pay the mortgage instalments further.

99.  The fact that the Deceased did not chase after the defendant for payment of his half share of the monthly instalments also shows that the Deceased agreed to the arrangement that the defendant would cease contributing to the mortgage instalments.

100.  The subsequent execution of the Will and the admission at the dinner as aforesaid also confirm that the defendant had agreed to let the Deceased have the Property solely.

101.  These conducts of the parties support the plaintiff’s case that it was a term of the Agreement that whoever pays off the mortgage would have the Property.

102.  Thus, on Issue 2, it is my finding that when the Property was purchased, it was the common intention and/or agreement and/or common understanding that the Property was registered in the defendant’s name because he was unmarried at that time, but both the Deceased and the defendant had the beneficial interest of the Property.  However, the Property would belong to whoever pays off the mortgage.  When the defendant moved out of the Property and ceased paying the monthly mortgage instalments, the defendant and the Deceased had agreed that the Deceased would be the sole beneficial owner of the Property thereafter.

Issue 3

103.  As mentioned above, I find that the defendant did execute the Will in the year 2000 to bequeath the Property to the Deceased.

104.  However, whether the Will was executed exactly on 12 April 2000 is unclear as the Original of the Will is not produced.  The date 12 April 2000 is just the date of the bill issued by Messrs Ford, Kwan & Company for preparing the Will. The date of execution of the Will could be different or the same as this date. In any event, the execution of the Will would not be far away from this date.

Issue 4

105.  As discussed above, the evidence shows clearly that most of the mortgage repayments were made via the Joint Account and there is no evidence at all to support the defendant’s allegation that he had a bank account in his sole name which was used for any of the mortgage repayments.

106.  The answer to Issue 4 is clearly the Joint Account.

Issue 5

107.  As aforesaid, the conduct of the defendant in moving out of the Property and then not contributing any more of the mortgage repayments shows clearly that he was no longer a beneficial owner of the Property from then onward.

Issue 6

108.  As to whether the defendant has promised to transfer the Property to the plaintiff at the funeral banquet on 14 September 2013, the only evidence on this came from the plaintiff herself.  The other witnesses of the plaintiff did not witness that.  On the contrary, Mr Kan gave evidence that when he went out to have a smoke with the defendant during the funeral banquet, the defendant mentioned that he would never transfer the Property to the plaintiff.

109.  On this, I accept the evidence of both the plaintiff and Mr Kan, as I find them both to be honest and credible witnesses.  However, it is always possible that the defendant said one thing to the plaintiff and another to Mr Kan.  So it is not surprising that the plaintiff and Mr Kan gave 2 different accounts on this.

110.  In fact, this discrepancy confirms my finding that they are not colluding together to make up a story against the defendant.  It makes their evidence more reliable than incredible.

111.  In any event, this piece of evidence does not bring the plaintiff’s case further as the plaintiff did not say that the defendant promised to transfer the Property to her because of the Agreement.  The defendant could have made the promise to comfort the plaintiff at that time when the Deceased had just passed away or for some other reasons.  It is not conclusive to link this promise to the Agreement.

112.  Such a promise to the plaintiff is just a bare promise not supported by any consideration.  There is no evidence that the plaintiff suffers any detriment because of this promise.  In fact, the defendant demanded the plaintiff to vacate the Property shortly after the funeral banquet.

113.  Thus, it is neither here nor there whether the defendant did make such a promise, but I believe the plaintiff and accepts her evidence that the defendant did make such a promise to her.

Issue 7

114.  Since it is my finding that the Deceased became the sole beneficial owner after the defendant had moved out of the Property and ceased paying the mortgage instalments, the defendant must have been holding the Property on trust for the Deceased.

115.  The trust is based on the Agreement and the common intention of the Deceased and the defendant when the defendant left the Property and ceased to pay the mortgage instalments as aforesaid.  So it is a constructive trust.

116.  The plaintiff also puts forward an alternative case based on resulting trust. Since it is my finding that there is a common intention constructive trust, there is no need for the plaintiff to rely on resulting trust.

117.  However, if I were wrong on the constructive trust, the plaintiff is clearly entitled to claim beneficial interest of the Property based on resulting trust, as the Deceased did make substantial contributions towards the mortgage repayments.

118.  According to the plaintiff’s calculation and putting the defendant’s case to the highest, the total amount of the plaintiff’s contributions is equivalent to 96% of the purchase price.

119.  The defendant did not challenge this calculation but simply suggests that the plaintiff is not entitled to claim resulting trust because it is not pleaded. However, it is trite that resulting trust arises by operation of law.  I do not think that it is fatal to the plaintiff when a point of law is not pleaded.

120.  Thus, the plaintiff would be entitled to claim at least 96% of the beneficial interest of the Property, if her primary case fails.  However, as aforesaid, she should be entitled to claim 100% of the beneficial interest of the Property based on constructive trust.

Issue 8

121.  The plaintiff further relies on proprietary estoppel to claim beneficial interest of the Property.

122.  Nevertheless, it is trite that estoppel operates as a shield not a sword.  The plaintiff cannot rely on any doctrine of estoppel as a cause of action to make a claim. The answer to Issue 8 must be in the negative.

Other issues

123.  In the Statement of Claim, the plaintiff has pleaded other alternative causes of action.  It is contended that it would be unconscionable for the defendant to renege from and/or deny the Agreement and/or the defendant’s promise and representations thereunder and/or at all by claiming and/or asserting interests in the Property, and that the plaintiff relies on the doctrine of estoppel by representations and/or estoppel by convention.

124.  It is unclear how these alternative causes of action arise.  However, in any event, if the plaintiff seeks to rely on some kind of estoppel as her causes of action, she cannot do so because, as aforesaid, they only operate as defences and cannot be used to establish any cause of action.

125.  The plaintiff also relies on adverse possession as an alternative case.  However, the plaintiff is clearly not entitled to adverse possession as she came into occupation of the Property with the consent and knowledge of both the Deceased and the defendant at all material times.

126.  In other words, I do not find that the plaintiff can rely on all these other alternative claims.

Counterclaim

127.  Since I do not accept the defendant’s case that he is the sole legal and beneficial owner of the Property, and find that the Deceased is entitled to 100% of the beneficial interest of the Property, the defendant has no right to evict the plaintiff.  The defendant’s counterclaim must fail.

Conclusion

128.  By reasons aforesaid, I rule in favour of the plaintiff and order as follows:-

(1)  A declaration that the Deceased is the sole beneficial owner of the Property;

(2)  A declaration that the defendant holds the Property on trust for the Deceased;

(3)  A declaration that the Property forms part of the estate of the Deceased;

(4)  The defendant do forthwith transfer his legal and/or beneficial interests in the Property to the plaintiff in her capacity as the administratrix of the Deceased’s estate; and

(5)  The defendant’s counterclaim be dismissed.

129.  I also grant an order nisi that the defendant do pay the plaintiff costs of the action including certificate for counsel to be taxed if not agreed, and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.