BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI DEVELOPMENT CO LTD AND ANOTHER

Press Summary (English)

Press Summary (Chinese)

FACV No 1 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 1 OF 2015 (CIVIL)

(ON APPEAL FROM CACV NO 189 OF 2011)

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J U D G M E N T

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Mr Justice Ribeiro and Mr Justice Fok PJJ and Mr Justice Chan NPJ:

1. We have read in draft the judgments of Mr Justice Tang PJ and Sir Anthony Mason NPJ and agree that the appeal must be dismissed on the factual basis identified by Tang PJ. We agree with the judgment of Sir Anthony Mason NPJ and in particular with the statement of the law which it contains.  We are respectfully unable to agree with Tang PJ’s views regarding Seldon v Davidson[1] but agree with his Lordship’s views in relation to the appellant’s case on unjust enrichment.

Mr Justice Tang PJ:

2. The plaintiff Big Island Construction (Hong Kong) Limited (“BIC”) is a Hong Kong company, which is owned as to 99.99% by Big Island Asia Limited (“BIA”) which in turn is owned as to 99.99% by Mr Ben P Lee (“Mr Lee”).  Mr Lee’s sister Ms Li Hung (“Ms Li”) owns the balance of 0.01%.

3. The defendants are the Wu Yi Development Company Limited (“WYD”), the first defendant, and Wu Yi Construction Company Limited (“WYC”), the second defendant. WYD and WYC belong to the Wu Yi group of companies which are ultimately owned by the Fujian Province People’s Government.[2]

4. This appeal is concerned with only one of 4 actions tried before Poon J, namely, HCA 1957/2005. In HCA 1957/2005,[3] BIC claimed against WYD and WYC for money lent pursuant to an oral agreement allegedly made in around October 1999 between Mr Lee on behalf of BIC and Mr Xu Zhong Hua (“Mr ZH Xu”) on behalf of WYD and WYC:

“to enable [WYDand WYC] to finance, inter alia, the operational expenses of the Wu Yi Group in Hong Kong and to settle accrued interest … (the ‘Loans’) and that the Loans shall be repayable by [WYD and WYC] a year from the date on which the relevant sums were advanced by the plaintiff to [WYD and WYC] (‘the Loan Agreement’).”[4]

5. The claim against WYD was in respect of 18 loans totalling HK$100,676,120 said to have been made to WYD and the claim against WYC was for a loan of HK$1,793,700.  Interest on these sums was claimed:

“… at such rate and for such period as the Court thinks fit…”

6. An alternative claim was added in the Re-Amended Statement of Claim[5] for these sums against WYD and WYC respectively as money had and received by them from the plaintiff without consideration.

7. WYD and WYC admitted the receipt of the sums particularised in the  claim but denied any loan agreement.  Their case was that the payments were made pursuant to various Fund Exchange Agreements (“FEAs”), 9 of which were carried out, under which WYD:

“agreed to remit or cause or procure the remittance of RMB to [BIC] in the [Mainland]in return for [BIC] agreeing to remit or cause or procure the remittance of the equivalent amount of Hong Kong or US dollars to [WYD] in Hong Kong.”[6]

They alleged that cashier orders totaling RMB 109,836,700 were provided to BIC’s agent in the mainland following which, their equivalent in Hong Kong dollars, totalling HK$100,676,120 were provided to WYD in Hong Kong.[7]  In respect of HK$1,793,700 claimed against WYC, WYC’s case was that a cheque in that amount was given to it pursuant to the FEA dated 25 May 2000 in return for RMB 2,000,000 delivered to BIC’s agent.[8]

8. In other words, it was WYD and WYC’s case that the moneys received from BIC were paid to them in return for earlier payments of RMB to its account,and in reply to the claim for money had and received, that the payments were made pursuant to the various FEAs and there was consideration for the payments.[9]

9. In their defence, WYD and WYC gave particulars of the various FEAs signed by both BIC and WYD, as well as the receipts signed by WYD and WYC respectively in respect of moneys received from BIC[10] and BIC’s receipts acknowledging the receipt of RMB totaling RMB 57,248,844.60[11]. They also pleaded and relied on a Settlement Agreement dated 28 August 2001signed by Mr Lee on behalf of BIC and WYD which acknowledged that:

“Each of [WYD] and [BIC] has returned all funds which they lent to each other. The settlement of accounts has been completed, and neither one of the two parties owes to the other party anything.”

10. In the Re-Re-Re Amended Reply (“reply”), the plaintiff admitted that they had entered into the FEAs with the defendants but asserted that they were irrelevant to any of the loans.  As for the Settlement Agreement, “the Plaintiff and its directors, officers or employees have no recollection of seeing, signing or otherwise entering into” it and that in any event it did not relate to the loans.[12] As for the receipts, those signed by WYD and WYC were admitted but the receipts said to have been provided by the plaintiff as well as the payments[13] they evidenced were denied[14].

11. The trial took place before Poon J.  The parties were represented by leading counsel and after a 43 day trial BIC’s claims were dismissed.  Mr Ben Lee and his sister Ms Li were the only witnesses for BIC.  A total of nine witnesses were called on behalf of the defendants, including Mr ZH Xu.

12. In respect of the loan agreement the learned judge concluded:

“121. In my judgment, BIC has failed miserably to discharge the burden of proving its primary claims based on the Loan Agreement. I find that the Loan Agreement did not exist and that the Sums advanced to WYD and WYC were not loans as alleged. BIC’s primary claims are wholly incredible, which is determinative. Those claims must fail, even if I were to find that WYD and WYC’s defence based on the nine FEAs are equally incredible.”

13. As for the claim based on unjust enrichment, Poon J said:

“129. … Applying the doctrine of failure of consideration, BIC has to prove (a) the purpose of the payments to WYD andWYC and (b) the purpose has failed. Its case is that the payments were loans and the failure of the purpose lied in the non-repayment. If BIC failed to prove the Loan Agreement, which must be the case in light of my earlier finding, there is no applicable unjust factor to support the claim of total failure of consideration. Mr Ho[15] is correct when he submitted that the alternative case based on restitution adds nothing to BIC’s claims. It must fall together with its primary case on the Loan Agreement.”

14. Although Poon J took the view that it was strictly not necessary for him to deal with the defendants’ case on the nine FEAs, he went on to do so and concluded:

“162. … that when taken in its totality the evidence presented by WYD and WYC on the FEAs is so poor that, even on a balance of probabilities, I must reject it as improbable. I find that WYD and WYC have failed to discharge their burden of proving that the purported fund exchanges pursuant to any of the FEAs took place as alleged.”

15. The learned judge had the impression that he had not been told the whole truth:

“164. … Something more than meets the eyes is there, which they have chosen, for reasons best known to them, to conceal from the court.”

16. He then dismissed BIC’s claims:

“165. … whether it is the primary claim based on the Loan Agreement or the alternative claim based on money had and received. …”

17. BIC appealed to the Court of Appeal, contending,[16] first, that the learned judge erred in rejecting BIC’s case on the Loan Agreement and ought to have found in favour of BIC:

“Given that there are only two version of events put forward by the parties, the learned judge ought to have considered but failed to consider the relative probabilities of the two versions,”[17]

18. Secondly, relying on Seldon v Davidson [1968] 1 WLR 1083 (CA), that given that the learned judge had rejected the parties’ respective cases, and given that receipt of the payments was admitted, the burden of proof was on the defence to show on a balance of probabilities that the payments were gifts, in settlement of an existing debt, in return for cash or something of the sort.[18] Accordingly, judgment should have been entered in favour of BIC.

19. Thirdly, that in relation to the claim for money had and received, the learned judge ought to have held that in the absence of proof by WYD and WYC of justification, it would be unjust to allow WYD and WYC to retain the money. 

20. By aRespondent’s Notice, WYD and WYC asked that the judgment be affirmed on the ground that they had successfully proved their defence.

Ground 1

21.  In the Court of Appeal, the plaintiff contended that the judge ought to have found on balance that the plaintiff’s case on the oral loan agreement was more probable than the defendant’s case based on FEA’s and asked that judgment should be entered in its favour accordingly.  The plaintiff’s appeal against the rejection of his claim was dismissed by the Court of Appeal.  The plaintiff was entitled to appeal as of right[19], and in its written case, again asked for judgment on the same basis.[20]

22. In the Court of Appeal, the defendants asked in their Respondents’ Notice that the judgment be affirmed on the additional ground that the defendants had successfully proved their defence on the FEAs. The Court of Appeal dismissed the plaintiff’s appeal without dealing expressly with the Respondents’ Notice.

23. BIC’s argument is that the trial judge and the Court of Appeal were in error in dismissing its case because BIC had not discharged its burden of proving the oral agreement, without examining the probabilities.  BIC submits once the probabilities are examined, they establish that it was more probable than not that the parties entered into the loan agreement.  However when the probabilities are examined, as I shall shortly do, it is clear that the probabilities support the view that the parties did not enter into the loan agreement.  Indeed, when the probabilities are examined, it becomes apparent that the trial judge should have found on the evidence that the defence case was established on a balance of probabilities.

24. There are concurrent findings against the plaintiff’s appeal against the rejection of the loan agreement.  This court does not ordinarily entertain appeals against concurrent findings.[21]  This is not a case where we should make an exception.  The concurrent findings are plainly right.

25. I will deal with the facts briefly. BIC relied on an oral agreement.  Both the trial judge and the Court of Appeal regarded an oral agreement to be improbable given the commercial context and the amount involved.  On the other hand, the defence is well documented and the judge made important findings about the documents.  On the basis of such findings, he ought to have found the defence proved on a balance of probabilities.

26. The first of such documents are the minutes dated 1 March 1999 of a meeting of the top management of the Wu Yi group in Hong Kong attended by, amongst others, Mr ZH Xu.  This document is set out in para 39 of the judgment.  It recorded that the defendants needed US dollars in Hong Kong and that a consortium introduced by BIC urgently needed RMB in the mainland.  And that for such reasons, “it is agreed to negotiate with (BIC) and adopt the method of mutual loan of funds, namely, lending the corresponding value of funds to each other, (interest free)” BIC challenged the minutes’ authenticity.  The judge held that they were authentic.[22]  This document supports the defence.  After finding that the minutes were authentic the judge gave no further thought to them.

27. Foreign Exchange Agreements (“FEAs”). It is confusing that the parties had signed a total of 20 FEA’s.  The defendants’ case is that only nine of them were used by the parties for the fund exchanges in question, namely, the 9 FEAs dated between 25 May 2000 and 15 June 2001.  Neither party dealt with the first seven FEA’s which were dated between 10 August 1997 and 28 November 1999 in their witness statements.  It was common ground that the last four FEA’s were never carried out.  As for the nine FEAs relied on by the defendants, it emerged during the defence evidence that they were signed by Mr Lee in March 2001 and were backdated.[23] With respect, the judge overlooked the significance of these nine FEAs.  I take the first of the nine as an example.  It recorded that in return for a temporary loan of RMB 8,000,000 to be made available to BIC by WYD,BIC would deposit their equivalent in HK$/US$ in a bank account designated by WYD.  The evidence showed that cashier orders dated 28 June 2000 in the sum of RMB 1,800,000 and cashier orders both dated 29 June 2000 in the sums of RMB 4,000,000 and RMB 4,200,000 respectively were obtained by the defendants’ mainland associates[24] and that on 30 June 2000 2 sums totaling HK$8,927,000 which represented the RMB 10,000,000[25] were paid into WYD’s account by BIC.  I will not go into details but this was repeated in respect of the other eight FEAs, namely, there were cashier orders obtained which corresponded in amount and time with the plaintiff’s payments into WYD’s account.[26]  The nine FEAs which were admittedly signed by BIC strongly support the defendants’ case.

28. The next set of documents are receipts signed by the defendants (17 by WYD and 1 by WYC) respectively and given to BIC.  Of these receipts, 12 described the payment by the plaintiff as “互借款 (mutual loan)”, 1 as “往來款 (mutual remittance)”, 2 as “暫借款 (temporary loan)” and 3 had no description.[27]  Mr Lee’s evidence was that the descriptions “mutual loan” and “mutual remittance” were untrue and incorrect[28] but he didn’t object because he only read the first receipt which used the description 暫借款 (temporary loan).[29]  That evidence was rejected by the judge.[30]  These receipts are significant because they clearly supported the defendants’ case of Foreign Exchange Agreements.  “Mutual loan” and “mutual remittance” suggest a two way movement of funds.  The authenticity of these receipts was never in doubt.  Unfortunately, the judge failed to give them any regard.  They strongly supported the defence. 

29. There were also 11 receipts issued by BIC acknowledging receipts of RMB.  If genuine, they strongly supported the defence.  Their authenticity was denied by BIC.  The receipts stated that BIC had received RMB as “mutual loans”.  This is what the judge said:

“141. … Mr J Chen said he received all the receipts in one go in the second half of August 2001 from Ms Li, after the signing of the Settlement Agreement. Although Ms Li denied that, I accept Mr J Chen's evidence. I find that the receipts are authentic and are contemporaneous evidence capable of supporting the Wu Yi parties’ case.”

30. Mr Benjamin Yu SC, appearing for the plaintiff, challenged the judge’s finding that the receipts acknowledging receipts of RMB by BIC were genuine.  2 of the 11 receipts were in respect of amounts down to 2 decimal points.  The evidence was that these figures tallied with the figures in the internal accounting documents of the defendants.  Mr Yu relies on the fact that it was not explained how BIC might have come by these figures.  That being so, Mr Yu submits these receipts must be forgeries.  I do not see why that should be the only reasonable explanation. Moreover, the judge had had the benefit of this argument before he concluded that the receipts were genuine.  Mr Yu also submits that the Court of Appeal in rejecting the same argument wrongly thought that the point had not been made before the judge.  Even so, it does not matter, the argument is in any event unsound.

31. These receipts only acknowledged the receipt of RMB 57,248,844.60 and not all the RMB supplied to BIC.  The judgment was silent about this.  The receipts are nevertheless important.  First, they are BIC’s acknowledgment that it had received RMB from WYD as “mutual loans”.  However, as the particulars given in para 7 of the defence made clear these receipts tallied with the cashier orders given to Mr Li, the plaintiff’s agent.  So they support the defence case the cashiers orders were given to BIC’s agent.  The 2 receipts with decimal points remain a mystery, e.g. the receipt for RMB 4,421,209.77 does not tally with the cashier orders which totaled RMB 4,421,200. And the receipt for RMB 5,817,234.84 does not tally with the cashier orders which were for RMB 5,600,000.  In the scheme of things I do not believe they matter, there is a wealth of documentary evidence in favour of the defence case that the parties were engaged in money exchange. 

32. Lastly, there was the Settlement Agreement. Like the other documents, it was in Chinese.  There were three clauses each of one sentence.  The learned judge said:

“163. What remains is the Settlement Agreement. As noted, Mr Lee initially said that his signature on the Settlement Agreement was forged. He eventually accepted that it was his but alleged that he signed it without having read the contents. I reject Mr Lee’s allegation, which I find incredible. That said, the Settlement Agreement only showed that the parties had treated the twenty FEAs as having been executed. It does not show that the purported fund exchange arrangements pursuant to the FEAs, as alleged, took place. I do not think WYD and WYC can derive much assistance from it.”

33. The Court of Appeal disagreed.  Yuen JA said[31] it was a fatal blow to BIC’s case[32].  With respect, I agree.  Using the simple language of the Settlement Agreement, it stated that all agreements about lending funds to each other had been performed andneither party owed the other anything.  The error in the trial judge’s understanding of the Settlement Agreement further undermined his finding that the defence was not made out.  I appreciate that the trial judge gave many reasons why he was dissatisfied with the defence evidence.  With respect, he had been distracted by details and overlooked the big picture, burdened no doubt by the fact that the action was bitterly fought, had taken 43 days and as he said:

“12. … (counsel)(took) every conceivable point, big and small.”

34. With respect, the trial judge failed to consider the inherent probabilities and concentrated instead on the details of the oral evidence of the witnesses who may be confused, forgetful and self-serving.  Here, the defence was well supported by documentary evidence, which were either not disputed or if disputed found to be genuine by the judge.  They should have been carefully weighed and the trial judge ought to have had regard to them in his assessment of the credibility of the defence witnesses and the inherent probabilities of the parties’ respective cases.  Had he considered the big picture, I believe he would have concluded that given his rejection of BIC’s case and the strong and clear evidence[33] that the parties were engaged in the exchange of HK$ for RMB, he would have found the defence established.

35. I mentioned earlier that the Court of Appeal had not dealt with the Respondents’ Notice expressly.  I believe the proper conclusion to draw given its express finding that the Settlement Agreement was fatal to BIC’s claim is that had they thought it necessary to do so they would have accepted the defence case and affirmed the judgment on this basis too.  This conclusion is not inconsistent with the general rule of practice that this court does not ordinarily entertain appeals against concurrent findings of fact.  Yuen JA’s finding on the Settlement Agreement differentiated the Court of Appeal’s findings on the defence case from those of the trial judge.

36. Therefore, on the facts, not only was the judge right in rejecting BIC’s case, he ought to have found in favour of the defence based on the FEAs.  For this reason, the appeal must be dismissed.

Ground 2

Seldon v Davidson

37. This is an ex tempore judgment of the English Court of Appeal (Willmer and Edmund-Davies LJJ) on an interlocutory appeal from the County Court.  There, the plaintiff claimed the return of money lent to the defendant who was her chauffeur and handyman.  The money (by 2 cheques) was paid to the defendant’s solicitors and used in the purchase of a house. The receipt of the money was admitted but the defence was that they were gifts, alternatively that they were not immediately repayable but were repayable as and when the defendant was able to do so.[34] On such pleadings, the County Court judge ordered the defendant to begin, being of the view that the legal burden was on the defendant to prove one or other of his defences.  The trial was adjourned, however, to enable the defendant to appeal.  On appeal, the plaintiff contended that no appeal lay from a mere ruling.  Neither member of the Court of Appeal Willmer LJ, and Edmund-Davies LJ expressed a concluded view on this point.  However, both of their Lordships affirmed the decision of the County Court judge that the burden of proof was on the defendant. 

38. Seldon is often cited in our courts and is regarded in Chitty on Contracts, 31^st edition, volume 2, specific contracts at 38- 259 as authority that:

“If money is proved, or admitted, to have been paid by A to B, then in the absence of any circumstances suggesting a presumption of advancement, there is prima facie an obligation to repay the money; accordingly if B claims that the money was intended as a gift, the onus is on him to prove this fact.”

39. In Seldon, the defendant relied on Cary v Gerrish (1801) 4 Esp 9, and submitted that the burden was on the plaintiff to prove a loan of money.  In Cary the claim was for money lent to the defendant during the lifetime of the testator.  Payment was proved.  On a plea of non assumpsit, Lord Kenyon said, payment by a draft made out in the name of the defendant and paid:

“… is no evidence to establish a debt. No evidence is offered of the circumstances under which the draft was given; it might be in payment of a debt due by the testator; or the defendant might have given cash for it at the time … ”

40. Willmer LJ distinguished Cary and said there was no suggestion in Seldon that the money:

“… was paid in settlement of an existing debt, or that it was given in return for cash, or anything of that sort. In the absence of any such circumstances, money paid by the plaintiff in circumstances such as these is prima facie repayable on demand. If the defendant seeks to evade repayment of the money which was paid to him, it seems to me that the judge was right in placing the onus upon him to prove the facts which he alleges show that the money was not repayable.” (1088F)

41. Edmund-Davies LJ agreed with Willmer LJ and said:

“when the simple payment of money is proved or admitted between strangers … on that bald state of affairs, proof of payment imports a prima facie obligation to repay the advancement in the absence of circumstances from which presumption of advancement can or may arise.” (1090F)

42. Both of their lordships said that no presumption of advancement could arise[35]. Willmer LJ said since counsel accepted that the house which was bought with the money supplied by the plaintiff would be held on a resulting trust for her, it would be strange “if the same consideration did not apply to the money paid by the plaintiff to the defendant to assist him in the purchase of the house.” 

43. As Lord Browne-Wilkinson explained in Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 a resulting trust is not imposed by law against the intentions of the trustees but gives effect to them and it could arise:

“(A) where A makes a voluntary payment[36] to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer…”

44. Thus, it is only when a payment is voluntary that a resulting trust may arise.  If money is provided as a loan, no resulting trust will arise.[37]  Since the payments would be at the disposal of the borrower and there would be no identifiable trust fund.[38] 

45. But what is the nature of a presumption of resulting trust or the corresponding presumption of advancement?  Lord Diplock[39] in Pettitt v Pettitt [1970] AC 777 at 823G said such presumptions are used to impute:

“… an intention to a person wherever the intention with which an act is done affects its legal consequences and the evidence does not disclose what was the actual intention with which he did it. This situation commonly occurs when the actor is deceased. When the act is of a kind to which this technique has frequently to be applied by the courts the imputed intention may acquire the description of a ‘presumption’ – but presumptions of this type are not immutable. A presumption of fact is no more than a consensus of judicial opinion disclosed by reported cases as to the most likely inference of fact to be drawn in the absence of any evidence to the contrary… ”

46. Lord Upjoin in Pettitt at 814F said a presumption of advancement “is no more than a circumstance of evidence which may rebut the presumption of resulting trust”.  As Snell’s Equity25-007 put it :

“… the approach in recent cases has been to strive to determine the real intentions of the parties. It may only resort to the formal presumptions where the direct evidence of those intentions is absent and a default rule is needed.”

47. Here, the plaintiff case that the moneys were provided as loans (thus at the disposal of the defendants) was incompatible with any resulting trust. They were not voluntary payments in the sense used by Lord Browne-Wilkinson so no resulting trust could arise.  Nor was it the plaintiff’s case that there was a resulting trust.  

48. Mr Yu has referred us to a number of decisions in England where Seldon was considered.  In all but one, the court was concerned with domestic disputes where the dispute was over whether the money paid was a loan or a gift.  The most recent and a case which was not concerned with gift is Patel v Mirza[2015] 1 All ER 326.  It concerned a claim for repayment of money paid pursuant to an oral contract to profit from illegal insider dealing.  But the insider information never transpired and the agreement was not and could not be performed.  The trial judge dismissed the plaintiff’s action because it was barred by illegality.  His appeal was allowed by the Court of Appeal, by Rimer and Vos LJJ on the ground that since the illegal contract remained executory, he could repudiate and withdraw from the agreement and recover what he had paid or transferred.  However, Mr Yu relies on the fact that Gloster LJ said Seldon was  instructive and that:

“90. Even in the absence of any trust, or retention of a proprietary interest in the money, once [the defendant] had admitted receipt of the money for the purpose of speculating on the IG Index, in my view the evidential and legal burden shifted to him to rebut the presumption that he was bound to repay [the plaintiff]. Whilst [the plaintiff] was required to demonstrate that the money had not been transferred by way of gift or pursuant to an enforceable contract that entitled [the defendant] to retain the funds, absent those factors, proof of payment imported a prima facie obligation to repay.”

49. Since Gloster LJ said the plaintiff was required to demonstrate that the money had not been transferred by way of gift, I do not believe her observations assist Mr Yu.

50. In Chapman v Jaume[2012] EWCA Civ 476, the parties were unmarried co-habitees.  The plaintiff claimed the return of £162,589.42 which he alleged were loans subject to express terms about the time at which they were repayable.  The defendant’s case was that the money had been paid in lieu of contribution to the running of the household.  The judge rejected the respondent’s case but dismissed the claim since the plaintiff had failed to prove the precise conditions about the time at which the money would be repaid.  The appeal was allowed. Lewison LJ[40]referred to Seldon and in particular, the passages from Willmer LJ’s judgment and Edmund-Davies LJ quoted above and said it was unfortunate that the judge’s attention was not drawn to this authority.  He then rejected the respondent’s argument on presumption of advancement, saying that there was no presumption between cohabitants and then he said:

“25. … on the facts found by the judge, he ought to have drawn the inference that the money was repayable within a reasonable time after demand.”

So the actual decision did not turn on Seldon.

51. Clark v Mandoj (unreported, 19 March 1998). The plaintiff who cohabited with the defendant sued her for debt.  Her defence was that they were gifts.  The judge:

“… rejected the plaintiff’s evidence and case that there was an agreement for a loan on the terms put forward by the plaintiff.[41] He also rejected the case of the defendant that the plaintiff had intended that the whole of that which he had contributed should be a gift.” (p 6)

and decided that only a limited amount need to be repaid.  The plaintiff appealed.  In the Court of Appeal, Hobhouse LJ said Seldon:

“concerns the burden of proof and the presumption which exists in the absence of adducing of evidence”

However, Hobhouse LJ was of the view that the judge had decided as a matter of fact by way of inference that there were certain limited funds which should be repaid and that the remainder shall not be repaid and dismissed the appeal.  Swinton Thomas LJ who agreed with Hobhouse LJ added at p10, that if the trial judge had not made any findings he had no doubt following Seldon and the other cases mentioned in Hobhouse LJ’s judgment, there would be a clear presumption in favour of a loan together with an obligation to repay it.  

52. In Freeman v Tems, unreported, 27 Jan 1993 (which was relied on by Hobhouse LJ in Clark), the defence to a claim for money lent was that they were gifts.  The Court of Appeal ordered a re-trial.  Russell LJ pointed out that the judge had not had cited to him Seldon, “an important case” and said (with the concurrence of Simon Brown LJ), after quoting the passages from the judgments of Willmer and Edmund-Davies LJJ quoted above, that the County Court judge having failed to direct himself upon the principles set out in Seldon, there was a risk that he approached the problem of whether this is a loan or a gift from the wrong standpoint.

53. The English cases cited to us show that Seldon is accepted in England as authority that, when receipt is not in issue, and the defence is that the money received was a gift, in the absence of circumstances giving rise to a presumption of advancement, the burden is on the defence to prove the gift.  That might be explained on the basis that in such context, the money was a voluntary payment in the sense used by Lord Browne-Wilkinson, and the defence that it was a gift is akin to a defence of confession and avoidance, namely, that the payment was voluntary but that the defendant was entitled to retain the payment because it was a gift. Whether that is the basis of the decision in Seldon does not matter, I will proceed on the basis that ever since Seldon was decided, in such situations in England, the burden of proof has been on the defendant to prove that the payment was a gift.  Even so, there is no support for Mr Yu’s submission that upon proof of mere payment, the burden is on the defence to prove, for example, that the payments were in repayment of an earlier debt or in return for cash.  I am firmly of the view that the burden is not on the defence to prove, for example, that the payments were in repayment of an earlier debt or in return for cash. Of course, if the loan was admitted and the defence is that it had been repaid, the burden is on the defence to prove payment.[42]

54. Seldon has often been cited in our courts.  In Mak Ka Hing v Pang Ming Chung [2011] 1 HKLRD 347, counsel conceded and the Court of Appeal thought it was proper for him to do so that Seldon was authority that when receipt was admitted:

“… the legal burden was on the defendant to prove either that there was a gift or, if it was a loan, that it was not repayable at the date of the issue of the writ.”

55. However, in that case, the trial judge had rejected the defence case that the money paid was a commission and accepted the plaintiff’s case that it was an advance.  So the decision did not turn on Seldon at all. 

56. In El Vince Ltd v Wu Wen Sheng [2011] 4 HKLRD 541, the plaintiff case was that there was a loan of $2 million, the defence was that it was part repayment of an earlier loan of $4 million.  The judge accepted the defence and disbelieved the plaintiff.  The plaintiff appealed against such findings of fact, which had no merit.  However, the plaintiff also relied on Seldon and submitted that the judge was wrong to hold that the burden of proof was on the plaintiff.  The Court of Appeal said Seldon did not help the plaintiff because, the defendant’s pleaded case was that the $2million was a part repayment of$4million paid by the defendant to the plaintiff.  In other words, the defence was not that the money was a gift and as such distinguishable.

57.  Lui Fai Yeung v Chui Kin Man (2012) 15 HKCFAR 803 is a decision of this court.  There, the plaintiff sued the defendant for money lent.  There were 178 payments.  Receipt of the money was admitted and the relevant defence was that the monies were gifts.  The trial judge was not satisfied with the evidence of either the plaintiff or the defendant and took the view the monies might have been gifts, joint investment or loans and dismissed the claim because the plaintiff failed to prove how much of the payments fell into which category.  The plaintiff relied on Seldon in the Court of Appeal and before this court.  This court did not find it necessary to decide whether Seldon was concerned with a persuasive or evidential burden, and held that in the circumstances of that case, the proper inference to draw was that the payments were gifts.

58. In the present case as in the other cases in Hong Kong where Seldon has been cited, the decision did not turn on Seldon.  Here, the plaintiff’s claim was based on a loan agreement under which the loans were repayable within a year.  The defence was not that they were gifts.  The defence was that the payments were made pursuant to various FEAs.  There was never any possibility of any resulting trust.  Cary is clear authority that the fact of mere payment is not evidence of a loan.  Nor does it stand alone.

59. In Aubert v Walsh and Another (1812) 4 Taunt 293, in a claim for money had and received, the defendant sought to set off the claim by proving payment to the plaintiff by cheques.  Mansfied CJ said:

“I am sure I remember a case before Lord Mansfield CJ in which a check given was produced as evidence of a debt, and his lordship held that that alone was not sufficient.”

 Chambre J was of the same view. 

60. In Welch and Another, Assignees of Evan Evans, a Bankrupt, v Seaborn (1816) 1 Stark 474 it was reported that:

“Lord Ellenborough was of opinion that (mere proof of payment) was not sufficient evidence to leave it to the jury, whether this money had been advanced … , by way of loan, since the presumption of law was, that money when paid is paid in liquidation of an antecedent debt.”

61. Seldon does not represent the law in Australia.  In Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111, the claim was by executors for money lent by the deceased and the defence was that the money was a gift.  Gavan Duffy CJ said with the concurrence of the other members of the High Court of Australia that:

“… the burden of proving the facts in support of either one or other cause of action … lies on the plaintiff.”

Dixon J mentioned in his judgment Aubert v Walsh as authority that the burden of proof was on the payer.  Earlier, during the argument, Dixon J said in response to counsel’s submission that a payment to a stranger raises a presumption of a resulting trust:

“Godefroi, 3^rd ed, at p 195, 4^th ed, at p 145 says chattels which pass by delivery are not within the rule, and the presumption arising from a voluntary delivery of them is that a gift was intended, in the absence of circumstances; and in George v Howard(1819) 7 Price 646, Richards C B says: ‘If I deliver over money … to another, even although he should be a stranger, it would be prima facie a gift.’”[43]

62. In Joaquin v Hall [1976] VR 788, a decision of the Supreme Court of Victoria, Jenkinson J refused to follow Seldon.  He said the court in Seldon appeared to have treated the defence pleaded as a confession and avoidance but the defence was in fact a denial of an essential ingredient in the cause of action.  His lordship followed Heydon.

63. In New Zealand, Zheng v Qiu (unreported, CIV 2006-404-5720, 11 June 2007), Stevens J, on an appeal from the District Court of Auckland, was of the view that “the Court of Appeal in Seldon was speaking about a factual presumption that it was prepared to apply in the particular circumstances of that case.” at (44) and that “the Court may or may not decide to apply them depending upon the particular circumstances of the case …” at (46).

64. As the discussion of the authorities show, although Seldon was often cited few if any decisions turned on it.  Disposal of a claim on the burden of proof should be rare and exceptional.  I believe a judge should resolve conflicting versions of fact by deciding which is more probable uninfluenced by any consideration of who has the burden of proof.  One should look to the burden for help as a last resort. In practice, it is difficult to conceive a case where there is no evidence apart from the payment.  Indeed, when a defence of gift is pleaded it suggests that evidence is available to prove it[44]. Ditto, a claim that it was a loan.  In a case, where the contest is between a loan and a gift, it is difficult to conceive  a case where the court has nothing more than the evidence of payment and receipt. Given the relatively short limitation period one or more of the protagonist is likely to be available. One would expect evidence to explain why the payment was made from the parties.  Payments and receipts do not normally happen spontaneously. Moreover, the relationship of the protagonists, their evidence, the circumstances of the payment, its size, the alleged purpose of the paymentor the use to which the money was put, are all matters which might help the court to decide the character and effect of the payment.  Here, in my opinion, the trial judge should have found in favour of the defendants on the FEAs and this is not a case which turns on the burden of proof.  But in a case where there was nothing more than the fact of payment which is proved and the defence is silent on the reason of the payment, I am of the view that following Cary, the claim should be dismissed.

65. What then is the position in Hong Kong where the defence to a claim on debt is that it was a gift?  Such cases should rarely if ever turn on the burden of proof.  I have had the advantage of reading Sir Anthony Mason’s judgment in draft, he has taken a different view on Seldon, a view which is shared by other members of the court, thus henceforth, Seldon will no longer be followed in Hong Kong.  I welcome that result.  Given my view on the first ground of appeal, Seldon has no application at all, but I am glad that this appeal has provided the occasion to clarify a question which has much exercised our courts.

Unjust enrichment

66. BIC’s pleaded claim on restitution was based on failure of consideration, a claim on this basis will fall with the claim based on the loan agreement.  However, in the Court of Appeal as in this court, BIC contended for restitution on a new basis, namely, there should be restitution in the absence of a basis for the payment.  Presumably, Mr Yu believes that given the trial judge’s decision that there was no apparent reason for the payments made by BIC, BIC was entitled to judgment on this basis.  Our decision on the first ground of appeal has made this argument academic. 

67. The leading authority on unjust enrichment is Shanghai Tongji Science and Technology Industrial Company Limited v Casil Clearing Limited (2004) 7 HKCFAR 79.  There Ribeiro PJ after giving close consideration to the matter said[45] that following the traditional common-law approach four questions should be asked, namely:

(a) was the defendant enriched ?

(b) was the enrichment at the plaintiff’s expense?

(c) was the enrichment unjust?

(d) are any of the defences applicable?

68. The question which is relevant to the present appeal is “(c) was the enrichment unjust?”  As Lord Hope of Craighead explained in Kleinwort [46]:

“The approach of the common law is to look for an unjust factor, something which makes it unjust to allow the payee to retain the benefit … It is the mistake by the payer which, as in the case of failure of consideration and compulsion, renders the enrichment of the payee unjust. The common law accepts that the payee is enriched when the sum was not due to be paid to him, but it requires the payer to show that this was unjust.”

69. Mr Yu submitted that we should follow the approach adopted by the Canadian Supreme in Garland v Consumers’ Gas Co (2004) 237 DLR (4^th) 385 and adopt “absence of basis” as the test.  With respect, as academic writings show the Canadian approach has its own complications.[47]

70. Shanghai Tongji was followed and applied in Takahashi v Cheng Zhen Shu (2011) 14 HKCFAR 558.  Mr Yu submitted that in between these cases, in Cheong Shing Ltd v Yu Kwan (2008) 11 HKCFAR 594, this court adopted the “absence of basis” approach.  I cannot agree.  There was no reference to Shanghai Tongji or any discussion of “the absence of basis” approach in Cheong Shing.  The decision in Cheong Shing is explicable on the basis that the court was satisfied that there was a total failure of consideration, “a well-recognized category of unjust enrichment.”[48]

71. There is no reason why we should reconsider Shanghai Tongji and we will not do so.

Disposition

72. For the above reasons, I would dismiss the appeal and make an order nisi that BIC pays the costs of the appeal such costs to be taxed unless agreed.

Sir Anthony Mason NPJ:

73. I would dismiss this appeal.  I agree with the reasons for judgment given by Tang PJ except in so far as they relate to the issues concerning the onus of proof and Seldon v Davidson[49].  On these issues my reasons are set out below.

Onus of proof – the pleadings

74. At the forefront of the appellant’s case is the submission that the trial judge and the Court of Appeal’s were in error in holding the onus of proof rested with the appellant (plaintiff) of establishing its case that it agreed to advance loans to the respondents (defendants), that the loans were made and not repaid.  Mr Benjamin Yu SC for the appellant based his argument on this point largely on Seldon v Davidson, a decision of the English Court of Appeal.

75. First, however, it is necessary to ascertain what were the issues as they arose on the pleadings and determine on which party the onus of proof rested in the context of these issues.  As Phipson notes:

“[i]n all but the simplest cases, the burden of the issues will be divided, each party having one or more cast upon him”[50]

76. The central matter pleaded by the appellant in its re-amended statement of claim was the oral Loans Agreement whereby the appellant would advance loans to the respondents to enable them to finance the operations of the Wu Yi Group in Hong Kong and to settle accrued interest owed to the banks, the loans being repayable one year from the date on which they were made (para 2A).  The appellant then pleaded that loans were made (paras 3 and 4), of which particulars were given, as recorded in the reasons for judgment of Tang PJ, that the loans had not been repaid (para 6) and that the respondents were in breach of the Loan Agreement (para 7).  Alternatively, the appellant pleaded a case of money had and received without consideration, based on the same averments (para 7A).

77. In this court and the courts below the claim for money had and received was the vehicle for an alternative claim of unjust enrichment; there was no suggestion that the claim for money had and received relieved the appellant from establishing whatever it needed to establish under its pleaded case for breach of contract, except in so far as the adoption of the Canadian approach to the law of unjust enrichment might independently bring about such a result.

78. By their re-re-re-amended defence the respondents denied the making of the Loans Agreement (para 2A) and asserted that they received the sums referred to in the re-amended statement of claim pursuant to “written Fund Exchange Agreements” and not otherwise (para 3(b)).  The written Fund Exchange Agreements are described in the reasons for judgment of Tang PJ and there is no occasion for me to set them out.  The respondents then denied breach of the Loans Agreement (para 17) and the claim for money had and received without consideration (para 17A).  In the same paragraph of the re-re-re-amended defence the respondents averred the giving of consideration in the form of payments under the “Fund Exchange Agreements” and other matters of defence that are of no relevance to the question now under consideration.

79. By its re-re-re-amended reply the appellant in effect joined issue with the respondents’ denials of the matters alleged by the appellant in its re-amended statement of claim.  The appellant went on to admit the making of nine “Fund Exchange Agreements” but alleged they were unrelated to the “Loans” (para 4) and denied receiving any funds pursuant to those Agreements (paras 5 and 9). 

80. One matter, if no other, emerges with dazzling clarity from the chaotic confusion of the pleadings.  It is that the respondents denied the making of the Loans Agreement and breach of the Loans Agreement. Indeed, that denial was the very core of the respondents’ case.  The consequence was that the appellant carried the burden of proving the elements of its case on the pleadings i.e. the making of the Loans Agreement, the making of the alleged “Loans” payments and breach by the respondents, namely failure to repay.  Nothing could be clearer.

81. Had the respondents pleaded payment as an answer to the appellant’s case of breach of the Loans Agreement, without denying the making of the Loans Agreement, the plea of payment would have operated as a plea by way of confession and avoidance, that is, it would have admitted the making of Loans Agreement and avoided liability on the pleaded cause of action by asserting payment resulting in discharge.  See the illuminating discussion by Sir Owen Dixon CJ in Young v Queensland Trustees Ltd[51] where his Honour said:

“The ‘[Regulae Generales]’ of 1834 provided that in every species of assumpsit, all matters in confession and avoidance including those not only those by way of discharge but those that show the transaction to be either void or voidable … shall be specially pleaded. It is significant that in doing so the rules expressly include payment as an example.”[52]

82. His Honour went on to say:

“The law was and is that speaking generally, the defendant must allege and prove payment by way of discharge as a defence to an action for indebtedness in respect of an executed consideration… it was soon settled that upon a plea of payment the defendant had the right to begin at the trial.”[53]

83. The principles of pleading stated by Sir Owen Dixon CJ were applied by Jenkinson J in Joaquin v Hall[54],a case where the plaintiff’s cause of action as pleaded was an agreement for a loan repayable on demand and breach of that agreement by failure to repay after demand.  The defence was a denial of an essential ingredient in the cause of action, thereby casting the burden of proof on the plaintiff who failed to discharge it.

84. There was in that case, as in this case, no plea of payment, the effect of which would be to confess the elements in the appellant’s cause of action and thrust the burden of proof on the respondents. The respondents’ burden would then have been to prove the payments.

85. Mr Benjamin Yu SC for the appellant attempted to suggest that the respondents’ plea that payments had been made under the Fund Exchange Agreements was to be equated with a plea of payment.  The suggestion is insupportable for a number of reasons.  First, there was no plea of payment under the Loans Agreement.  Instead, the respondents pleaded payment under the Funds Exchange Agreement and not otherwise.  Secondly, the respondents specifically traversed the elements in the appellant’s cause of action as pleaded, thereby casting the onus of proof of those matters on the appellant. Thirdly, the main issue thrown up by the pleadings was whether the parties entered into the Loans Agreement as alleged by the appellant or only the Fund Exchange Agreements as alleged by the respondents.  In this situation, there was no basis whatsoever for suggesting that the respondents bore the onus of establishing that there was no Loans Agreement.

Seldon v Davidson

86. This brings me to a consideration of Seldon v Davidson.  I begin by saying that, in my view, that case was wrongly decided by the English Court of Appeal and should not be followed in Hong Kong.  My reasons for this conclusion follow an examination of what the case decided.

87. The case concerned two cheques totalling £1,550 paid by S to D, her chauffeur and handyman, which were used by D to buy a house.  The parties then fell out.  S claimed the money back, asserting it was a loan.  D admitted receipt of the moneys but pleaded that they were a gift and, if not, a loan which was not repayable until D was able to do so, an event that had not come about at the date of the writ.  So the primary issue was whether the payments were a loan or a gift.  The appeal arose from a contested ruling by the trial judge that, given admission of receipt, D carried the legal burden of proving the gift and had to begin.  The Court of Appeal (Willmer and Edmund Davies LJJ) in ex tempore judgments held on this point that the trial judge was right in placing the onus on D to prove the facts which he alleged to show that the moneys were not repayable.

88. Willmer LJ stated:

“Payment of the money having been admitted, prima facie that payment imported an obligation to repay in the absence of any circumstances tending to show anything in the nature of a presumption of advancement. This is not a case of father and child, or husband and wife, or any other such blood relationship which could have given rise to a presumption of advancement. Mr Sears was constrained to admit that the house which had been bought with the aid of the money paid by the plaintiff was no doubt prima facie subject to a resulting trust in favour of the plaintiff. That being so, it would be strange indeed if the same considerations did not apply to the money paid by the plaintiff to the defendant to assist him in the purchase of the house.”[55]

89. Willmer LJ went on to say:

“…we have from the defendant in this case a clear admission of the payment of the money, and no suggestion that it was paid in settlement of an existing debt, or that it was given in return for cash, or anything of that sort. In the absence of any such circumstances, money paid by the plaintiff in circumstances such as these is prima facie repayable on demand.”[56]

90. Edmund Davies LJ stated that in the circumstances which gave rise to no presumption of advancement, counsel for D was forced to concede that the house must be regarded prima facie as being held by D by way of resulting trust for S[57]. Later, his Lordship said, after considering two earlier cases, which he sought to distinguish:

“…one is really driven back to consider this matter without the assistance of authority and, being so unassisted, I ask myself what is to be inferred as to the nature of the transaction when the simple payment of money is proved or admitted between strangers. I entirely agree with my Lord that, on that bald state of affairs, proof of payment imports a prima facie obligation to repay the advancement in the absence of circumstances from which presumption of advancement can or may arise.[58] (emphasis supplied)

91. The Court of Appeal’s reasoning, based on the prima facie proposition that D held the house property on a resulting trust for the benefit of S, leading to the conclusion that the moneys paid by S to D should be repaid, is difficult to explain.  The imposition of a resulting trust was designed evidently to justify an order for the repayment of the money paid on the footing that it was a loan.  The relationship of resulting trust and loan in the circumstances of the case was inconsistent, as appears from the discussion below.  What is more S did not claim that there was a resulting trust.  And to add to these difficulties, the Court of Appeal was mistaken in thinking that the defence pleaded amounted to a confession and avoidance.  As Jenkinson J pointed out in Joaquin v Hall[59], the defence in Seldon v Davidson denied the loan alleged by S which was an essential ingredient in her cause of action as pleaded.  The fact that the defence pleaded was gift or, in the alternative, a loan on different terms cannot alter the onus of proof arising from the denial of the loan alleged by S.

92. As the Editors of “Jacobs’ Law of Trusts in Australia” point out the presumption of resulting trust does not apply where A lends money to B and B uses the money to buy property from X.[60]  As Jacobs goes on to state:

“B is not an implied trustee of the land for A because A has not acted as purchaser.”[61]

In Australia, these principles are well established by a series of cases in the High Court of Australia; Charles Marshall Pty Ltd v Grimsley[62]; Napier v Public Trustee (WA)[63] and Calverley v Green[64].

93. In England, the law with respect to purchase price resulting trusts (the first category) is no different.  Browne-Wilkinson J in Re Sharpe[65] said:

“In my judgment, if, as in this case, moneys are advanced by way of a loan there can be no question of the lender being entitled to an interest in the property under a resulting trust. If he were to take such an interest, he would get his money twice: once on repayment of the loan and once on taking his share of the proceeds of the sale of the property.”

94. Lord Browne-Wilkinson (with whom Lord Slynn agreed) in Westdeutsche Landesbank Girozentralev Islington LBC[66] affirmed the proposition that when A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested in B alone or in the joint names of A and B, there is a presumption A did not intend to make a gift to B; the money or property is held on trust for A (if he provides all the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions.

95. Lord Browne-Wilkinson, with reference to this first category of resulting trusts, stressed:

“…this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer.”[67]

96. His Lordship, having referred to the second category of resulting trusts, namely express trusts where the trusts declared do not exhaust the whole beneficial interest, then said:

“Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention.”[68]

His Lordship then added:

“As the article by William Swadling, ‘A new role for resulting trusts?’ 16 Legal Studies 133 demonstrates, the presumption of resulting trust is rebutted by evidence of any intention inconsistent with such a trust…”[69]

97. Thus the presumption will be displaced if the person who provides the money intended only to make a loan of money which was to be repaid.  In such a case there would be no resulting trust because the common intention is inconsistent with the person who provides the money taking an equitable interest[70].

98. It follows that the imposition of a resulting trust in Seldon v Davidson was unjustified by reference to principle and authority in both England and Australia.

99. There remains for consideration the correctness of the proposition affirmed in that case that the payment of money prima facie imported an obligation to repay it.  It will be recalled that Willmer LJ was of the view that in the absence of any suggestion that the money was paid in settlement of a debt, or given in return for cash, or anything of that sort, the presumption applies.  On the other hand, Edmund Davies LJ expressed himself more cautiously referring to a “simple payment” and “that bald state of affairs”.  Consistently with those expressions it would be possible to so confine the implied obligation to repay so that it has no application at all to commercial transaction, such as the transaction in this case.  If Seldon v Davidson is to be regarded as having authority in Hong Kong that is the effect I would give to it, with the result that it provides no support to the appellant’s case.

100. As I see it however, in the light of the earlier discussion, it is preferable that this Court should determine the basic question of principle and determine whether Seldon v Davidson was correct in holding that payment of money to a stranger gives rise prima facie to an implied obligation to repay.  Such a determination calls for an examination of the relevant authorities.

101. In Seldon v Davidson, the Court of Appeal regarded the two earlier authorities referred to as being of no assistance and distinguished them on the facts.  To my mind, the two cases are not consistent with the approach taken by the Court of Appeal.  In Cary v Gerrish[71]the plaintiff executors sought to establish the existence of a loan by proving that the defendant received cash for a draft drawn by the testator.  Lord Kenyon held that there was no evidence to establish a debt, there being no evidence of the circumstances under which the draft was given.  His Lordship made the point that no inference of loan could be drawn and said:

“standing as a naked transaction, as this does, it is not evidence…[72]”

102. In the other case, Welch v Seaborn[73], Lord Ellenborough held that a loan of money by A to B is not to be inferred from the bare fact that A delivered a sum of money to B which A had borrowed from another.  His Lordship pointed out:

“that the presumption of law was, that money when paid is paid in liquidation of an antecedent debt”[74]

103. In a case not drawn to the attention of the Court of Appeal, Aubert v Walsh[75], the headnote records

“Proof of the delivery and payment of a check to the Plaintiff is not sufficient evidence of a debt in order to support a set-off, unless it be shewn upon what consideration and under what circumstances, the check was given.”

Mansfield CJ said:

“I am sure I remember a case before Lord Mansfield CJ in which a check given was produced as evidence of a debt, and his Lordship held that alone was not sufficient.”[76]

Chambre J said:

“All our accounts would be in inextricable confusion if such evidence were allowed.”[77]

104. None of the three cases can be easily or persuasively reconciled with Seldon v Davidson.  Moreover, in Heydon v The Perpetual Executors, Trustees & Agency Co (WA) Ltd[78], the High Court of Australia held that the onus of proving that a transaction involving the payment of money amounted to a loan or was received to the use of the testatrix lay upon the plaintiff executor and was not satisfied by proof merely of the payment by her to the defendant of the amount claimed.  Dixon J in his judgment drew attention to Aubert v Walsh as a further authority in support of the view that the burden of proof was on the plaintiff[79].  In argument, in response to the submission that a “voluntary payment to a stranger raises a presumption of a resulting trust”, Dixon J interposed:

“Godefroi, 3rd ed., at p. 195, 4th ed., at p. 145, says chattels which pass by delivery are not within the rule, and the presumption arising from a voluntary delivery of them is that a gift was intended, in the absence of circumstances; and in George v Howard (1819) 7 Price 646, at p. 651; 146, Richards, C.B. says: ‘If I deliver over money... to another, even although he should be a stranger, it would be prima facie a gift.’”

105. Subsequently in Joaquin v Hall, Jenkinson J, in the light of the decision in Heydon’s case, refused to follow Seldon v Davidson.  His Honour considered that Heydon’s case rejected the presumption of an obligation to repay from the fact of payment to a stranger.  His Honour went to say that “none of the cases cited … throws any doubt, in my opinion, on the proposition that no such presumption is raised by payment of money to a stranger”[80]

106. It follows that the reasoning in Seldon v Davidson is flawed, that it is inconsistent with earlier English authority and with Australian authority.  That circumstance in itself is enough to justify the conclusion that the decision should not be followed in Hong Kong and that the presumption of an implied obligation to repay from the fact of payment to a stranger cannot be supported.  Further, I am not persuaded that, as a matter of policy, recognition of such a presumption has anything to commend it.  The making of a bare payment to another may in the nature of things be explicable by reference to a wide variety of possibilities.  To my mind, the probability that there is an obligation to repay the amount is not so strong that it should become the subject of a presumption, even a presumption of fact as Stevens J held it to be in Keqing Zheng v Golden International Trading Ltd and another[81].  It is the making of the payment in the circumstances which surround it that will enable appropriate inferences to be drawn, in the light of any relevant traditional presumption.  In such a situation it is preferable to avoid the making of a presumption and leave the character and effect of the payment to the drawing of inferences.  Presumptions lend themselves to tactical ploys in litigation; it is better that parties be encouraged to present the totality of their case, particular in cases arising out of commercial transactions.

107. There are cases in Hong Kong where the courts have applied or referred to Seldon v Davidson without subjecting it to critical scrutiny – see Mak Ka Hing v Rang Ming Chung[82] (where judgment for the plaintiff was justified on the findings made by the Deputy Judge who disbelieved the defendant) and El Vince Ltd v Wu Wen Sheng[83] (where Seldon v Davidson was distinguished).  Likewise, in England, Seldon v Davidson has been applied or referred to uncritically – see, for example, Clark v Mandoj[84], Patel v Mirza[85] and Chapman v Jaume[86].

108. As there is nothing in these cases which provides additional support for the reasons that led to the conclusion reached in Seldon v Davidson, I consider that it should not be followed in Hong Kong.

109. It follows that the appellant’s case on the onus of proof fails.

Mr Justice Ribeiro PJ:

110. The Court unanimously dismisses the appeal and makes an order nisi that the appellant pay the respondents’ costs, with liberty to the parties to lodge written submissions on costs within 14 days from the date of this judgment and that, in default of such submissions, the order nisi should stand as an order absolute without further direction.