LAW TSZ LUN v. YIU CHEUK WANG

DCCJ 848/2017

[2018] HKDC 1052

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 848 OF 2017

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J U D G M E N T

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1.  This is a claim by the plaintiff (“Law”) for the sum of $474,995.12, being balance of her share in the sale of the property known as Unit No. 3, 13^th Floor, Wing Fu Building (“Property”) which was registered in the joint names of Law and the defendant (“Yiu”). 

2.  Law and Yiu were lovers since 2008 and both of them worked as flight attendant in a local airline.  In around 2012, they purchased the Property as joint tenants with the intention that it would be their matrimonial home if they were to get married. For a period after the completion of the renovation of the Property, Law and Yiu only stayed at the Property during weekends and holidays.  Law moved into the Property for good since March 2013.  Relationship turned sour in early 2015 and Law moved out of the Property on 4 May 2015. 

3.  Parties then started to discuss as to how to dispose of the Property since May 2015. What is being discussed and agreed between the parties is the crux of argument in this case.  But it is not in dispute that Yiu paid Law $330,000 (“the Paid Sum”) on 27 May 2015 and the parties executed the Memorandum Agreement for Sale and Purchase (“the Memorandum”) (B/68-72) on 28 May 2015 for the Property to be transferred to Yiu’s sole name.  The Agreement for Sale and Purchase (“the SPA”) (B/171-184) was executed on 4 June 2015 and the Assignment (“the Assignment”) (B/199-206) executed on 22 July 2015.

4.  On 9 September 2016, Law WhatsApp Yiu asking for the balance of the outstanding proceeds of sale of the Property but Yiu insisted that he had already paid her the entire sum.  Law commenced this proceedings on 23 February 2017.

5.  Even though the relief of declaration is being sought in the Amended Statement of Claim, it was confirmed at the pre-trial review that the whole case turns on a monetary claim only and the sole issue is what is the agreement between the parties for the transfer of the Property to Yiu, ie whether the Paid Sum is only part-payment or in full and final settlement of Law’s interests in the Property.

The WhatsApp Messages

6.  It is not in dispute that parties had discussed the issue of sale of the Property by telephone and by WhatsApp messages.  Whilst the conversation over the telephone may vary between the parties, the content of the WhatsApp messages produced by Yiu are agreed.  The relevant parts of these exchange are as follows (B/285-297):

15/5/2015

Yiu:  阿紫，我可唔可以俾番你出左既錢多少少你轉番間屋個名呀？因為我阿媽頂唔順我老豆，成日話要搬出嚟，我想有多個空間俾佢。(09:30)

Law:  Sorry I’m not in HK right now.  Just feel free to stay on 13/F if your mother needs space.  May I discuss about the flat with you after I’m back to HK? (13:20)

16/5/2015

…

17/5/2015

…

21/5/2015

Law:  Nelson, I have cleared my stuffs and put the keys down on the dinning table.  Please let me know once you are ready to pay for my part then I can sign the documents and change into your name.  Thank you for your arrangement. (16:57)

Yiu:  Wow, so sudden. Ok. (16:58)

Yiu:  Do you remember how much did U pay at the beginning?  (17:11)

Yiu:  I suggest to pay 350K to U n I will pay the stamp duty around 50K to change name. (17:15)

Law:  Okay no problem.  Please keep me update. Thank you. (17:34)

Yiu:  I will arrange n let u know. (17:35)

Law:  Thanks a lot. (17:38)

22/5/2015

Yiu:   阿紫，我想問可唔可以等個樓價跌啲先轉名俾番啲錢你呀？我計唔掂條數呀因為 (16:21)

Yiu:  而家轉名，我要俾好大筆厘印，真係攪唔掂 (16:23)

Yiu:  唔好意思，我諗掂啦， 約好簽文件再同你夾啦, thx (18:13)

Yiu:  我真係計唔掂，厘印同律師, 可唔可同你一人一半？ (20:55)

Yiu:  要差唔多 80K (20:56)

…

Yiu:  對唔住，我之前諗住我自己攪得掂，開個 offer 俾你，點知原來唔得，條數俾我想像中大，如果你唔介意既，我可唔可以俾300K你，其他數我攪掂，你慢慢考慮先話我知啦，我唔想俾太少你，但我有幾多錢你都知，我真係一下子俾唔到咁多 (23:04)

23/5/2015

Law:  我想六月中前就轉好晒名同收埋錢，驚樓價愈升愈高後你仲難計。但300K你已經將個價自動跌茖去，而厘印費應該係賣家比，你有壓力我可以理解，律師費我都有責任比返一半。所以厘印,律師費再加埋依家樓價你計返330K比我會較為fair啲。到時過錢轉名一齊整埋，我都想 auntie 快啲安心入去住唔想拖太耐。如果你真係俾唔到我唔介意賣咗去，你可以考慮下，或者你咁會輕鬆啲。再覆我啦，take care (01:20)

Law:  唔好意思我打錯咗，我係指厘印費應該由買家支付. (02:09)

Yiu:  好，就咁決定 (04:17)

…

Yiu:  請問你28號有無時間呀？(22:05)

Yiu:  可以既話想去律師樓攪埋啲手尾 (22:05)

25/5/2015

Law:  28號無問題，咁你28號簽紙前過330K去呢度(HSBC 457-xxxxxx-833)後send 返張相比我for reference啦。同埋律師簽紙一定要一齊去定係可以分開去簽?如果可以分開去我時間會好就啲。你問完覆我丫 (03:45)

…

26/5/2015

…

27/5/2015

Yiu:  hey plz check yr account, thx. (15:20)

Law:  Got it thanks a lot.  And I’ll go to the solicitor tomorrow. (21:41)

28/5/2015

Yiu:  I hv signed the contract too, thx for everything, take care (19:37)

Law:  For your info, my father needs me to free my name from any property before mid of July.  I’ll check with Hangseng Bank to see if they can work faster.  I’ll appreciate if they could do so and you could sign the last document before mid of July as well.  Thank yo in advance and I’ll keep you informed if Hangseng can have it done early. (22:39)

Yiu:  actually Hang Seng told me the process takes 2 weeks only.  I will push them to make it faster.  No worry.  (22:43)

29/5/2015

Yiu:  可能你會奇怪個stamp duty 我話要俾幾萬，其實我之前睇錯咗，原來唔係咁多，但我而家寫佢值400萬，希望唔使俾厘印，唔好益政府，但希機會佢之後會話我估得價錢太低會，收番我，不過我而家寫400萬，銀行借到6成咋，即係240萬但我地間屋按揭仲有大約246萬未供完，所以而家要新做按揭，我係要俾多5萬幾6萬出嚟，先至可以轉到名，所以我無呃你，俾少兩萬你希望你明白，我真係一次要攞40萬出嚟，所以之前先想你減少少 (00:04)

Yiu:  我覺得要同你講番清楚 (00:05)

Yiu:  可能你未必明，或者覺得唔關你事啦 (00:06)

Law:  It’s okay I understand.  Thanks for explaining to me.

16/6/2015

Law: Nelson, may I know how things going with Hangseng Bank?  Any update from them so far?  Thank you.  (07:11)

Yiu:  按揭早幾日批左啦，等緊律師攪文件，我去簽，會7月前攪掂。(07:13)

…

Law:  Thanks for your information.  I will follow up with the law firm.  (15:11)

9/7/2015

Yiu:  For your info, the contract is ready, n I will go n sign it tmr if the Typhoon is gone, thx.  (12:54)

Law:  Thank you very much.  (13:21)

Plaintiff’s Case

7.  Law relied on the following facts to establish her claim:

a.  It was the intention of the parties that the Property was to be co-owned as joint tenants and intended to be the matrimonial home;

b.  She had paid $180,000 to Yiu to settle the initial deposit of the Property;

c.  Through her effort, they managed to secure a mortgage loan from Hang Seng Bank for a term of 30 years;

d.  She was responsible for the renovation of the Property and had close liaison with the designer whilst Yiu was only responsible in money matter;

e.  She had paid about $80,000, being half of the renovation expenses by paying back Yiu in cash half of whatever he spent in renovation;

f.  She paid Yiu a sum of $5,000 per month in cash (withdraw from her bank account or converted from the allowances from her employer which were in foreign currencies) to settle her half share of the mortgage payment as well as for the utility bills;

g.  There are 2 telephone conversations with Yiu on 4 May 2015;

h.  During the second telephone conversation with Yiu on 4 May 2015, Law suggested to sell the Property to a third party and each of them to have half share of the net proceeds, Yiu declined and asked if he could just pay Law all the cash he had, Law refused since the value of the Property had risen and it’s not fair if she didn’t have half of the net proceeds.  Yiu then said he wanted to keep the Property for his mother’s use and needed time to calculate the amount to be paid to Law;

i.  Thereafter, she and Yiu communicated via WhatsApp only;

j.  When Yiu suggested paying her $330K or $350K, she thought it’s just part payment for the time being due to the financial situation of Yiu and since she had already made clear over the telephone conversation that she should have half of the net proceeds, she had not mentioned the same again;

k.  In her Whatsapp reply on 23 May 2015 (B/288), there was a typo and she meant to type accept $330K for the time being (“你計返300K 比我先會較為fair 啲“) but had missed out the word “先”;

l.  She agreed to accept the Paid Sum as partial payment because she thought that was all Yiu could afford to pay at that time; and

m.  She had not contacted Yiu for the balance of the proceeds after more than a year because she “did not want to seem uncharitable and harsh on him” and also due to her health condition.

Defendant’s Case

8.  Yiu acknowledged that he and Law planned to buy the Property together and each were to bear the costs in the purchase so it was being registered in joint names.  However, since he earns more than Law, he paid for everything for the Property and Law only paid him $100,000 for the initial deposit and $80,000 for the renovation of the Property as well as around $20,000 (according to the estimation of Yiu) for living expenses during the 3 years Law stayed at the Property.  Yiu denied receiving any payment of $5,000 per month for the mortgage payment.

9.  Yiu also agreed that in a telephone conversation when Law mentioned breaking up, she did ask for the Property to be sold or for him to buy her out.  He was too shocked over the phone and had suggested paying her all the money she had spent on the Property for the transfer of the Property to him.  Law only asked him to work out the sum and revert and the price of $4,000,000 had never been mentioned nor had Law ever asked for half share of the Property.  Yiu said this is the only telephone conversation they had and all subsequent discussions about the Property are by way of WhatsApp messages.

10.  Yiu had all along thought of paying back Law the sum she had paid towards the Property and since he had only $350,000 savings at that time, he proposed to pay Law this sum.  As for the price of $4,000,000, since there was still an outstanding mortgage of about $2,460,000, if he paid $60,000 more to settle the mortgage, the outstanding mortgage would be $2,400,000.  With the price of the Property set at $4,000,000, he could get a mortgage of 60% of the price to cover the outstanding mortgage.  Such a consideration was only done upon Law agreed to the figure of the Paid Sum so he fixed the price at $4,000,000.

Discussion

11.  Having considered the evidence, this court is satisfied that Yiu’s evidence is more credible on a balance of probabilities which is supported by the contemporaneous WhatsApp messages between the parties.

12.  And the evidence of Law is far from credible. If she really meant to receive the Paid Sum as part payment, why didn’t she mention the same in the WhatsApp messages.  If the Paid Sum were meant to be part payment, why didn’t she specify and get Yiu to agree as to how the balance was to be calculated and the mode of payment for the same.  Law had tried to explain this by saying that she had made it clear in the telephone conversation with Yiu that she wanted half share of the proceeds of sale.  But upon seeing Yiu had only mentioned paying her a little more than what she had spent in his message on 15 May 2015 and again on 21 May 2015 asking how much she had spent, would it not be more sensible for her to raise the issue of her half share with Yiu instead?  Her response of accepting Yiu’s offer of $350K in her message on 21 May 2015 is utterly inconsistent with her intention of insisting on half of her share.  If it was a typo in missing out the word “for the time being” (“先”) in her message at 0120 hrs on 23 May 2015 indicating her acceptance of the Paid Sum, why didn’t she correct the same in the follow up message like the way she dealt with the mistake about who should pay for the stamp duty (message at 0209 hrs on 23 May 2015).  Given the fact that the message correcting the mistake was being sent almost an hour after her first message, she must have taken the trouble to read through her first message again and discovered the mistake on stamp duty.  If it was her intention that the Paid Sum was just a part payment, why would she not spotted the mistake as well?  And if the Paid Sum was really meant to be part payment, why had she not say anything when Yiu explained to her about paying her $20,000 less in his message at 0004hrs on 29 May 2015? And since nothing had been said about the balance of her half share in the sale proceeds, why didn’t she raise the same with Yiu upon knowing the completion of the assignment of the Property to him and only wait till after more than a year?  All these queries tend to show that Law’s evidence is inherently implausible and I rejected her evidence.

13.  Ms Kwok for Law had tried to argue that since the intention of Law and Yiu were to hold the Property in joint names and Law had contributed towards the mortgage payment, it is unlikely that Law is prepared to give up the balance of her half share by agreeing to accept the Paid Sum.  The decision of Law to accept the Paid Sum in exchange for her transfer of her share to Yiu is well justified if one were to look at the contributions Law had made towards the purchase of the Property. 

14.  On the contributions of Law towards the Property, I do not accept her evidence in this regard since her evidence is inconsistent, from paying $180,000 towards the deposit in her Reply (A/28), to $140,000 in her witness statement (A/35) and then back to $180,000 when being queried on the inconsistency under cross-examination.  Her explanation as to the payment of an extra $40,000 was never mentioned in her witness statement and was unbelievable.  If she had paid Yiu $80,000 in cash in the first place, how can she mix up the figure to be $140,000?  I found Yiu’s evidence on this more probable, ie Law only paid him $100,000 by bank transfer for the deposit and $80,000 for the renovation of the Property (which is also the case of Law).

15.  As for Law’s contribution towards the monthly repayment of mortgage, I do not find her evidence to be convincing either.  She had tried to work out from her bank record to show her withdrawal of cash to pay Yiu for the mortgage.  It is beyond belief that she can recall at trial in 2018 each item of cash withdrawal back in 2012 to 2014 when she maintained that she had no record whatsoever for the same.  She even said that the money she withdrawn from the bank account in April was to cover the mortgage repayment in February and March 2012 when in fact, no repayment is required before April. She tried to cover up her mistake by saying that she didn’t know that the mortgage repayment will only start in April but she was the one to secure the bank mortgage and how can she not aware of the same?  I found Law is making up her evidence from the entries in her bank statement and her evidence is unbelievable.

Conclusion

16.  Having considered the evidence, I found the parties had agreed in May 2015 that Yiu was to buy off Law’s share in the Property and the Paid Sum was in full and final settlement of the transfer of the Property into the sole name of Yiu and Law had accepted the same without reservation.  The claim by Law must be dismissed.

Order

17.  In the circumstances, I make the following order:

a.  The plaintiff’s claim be dismissed; and

b.  costs of this proceedings (including all costs reserved, if any) be to the defendant, to be taxed if not agreed with Certificate for counsel.  This is a costs order nisi.  Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.