TSUN KOK CHUNG RICHARD v. LEE CHUN YU

HCA 2093/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2093 OF 2009

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J U D G M E N T

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INTRODUCTION

1. In late March or early April 2008, the plaintiff and the defendant first met each other.  Thereafter, their relationship developed very quickly.  Each had his or her reasons to want to get married.  The plaintiff was then 45 years of age but remained a bachelor.  He was a successful solicitor practising in Hong Kong with his own law firm.  He was the youngest child in a family of 8 children.  His mother, who was in her 80s, had repeatedly urged him to find a wife and started his own family.  That was also the plaintiff’s wish.  On the other hand, the defendant, a married woman with a 3-year-old son, was not happily married.  Both the defendant and her husband considered that their marriage had broken down.  From their early meetings, the defendant had formed a favourable impression of the plaintiff.  She considered the plaintiff to be “mature, gentleman[ly], with a sense of humour, and generous to [her]”.  More importantly, in the words of the defendant, the plaintiff “could also give [her] and [her] son [a] future… he could provide [a] good education and living to [her] son.”.  By no later than late May or early June 2008, they had agreed to marry each other.  In July 2008, the plaintiff bought a flat in the joint names of himself and the defendant intending, according to him, to use it as their matrimonial home.  However, shortly after the assignment of the flat to the plaintiff and the defendant as joint tenants on 26 August 2008, the defendant broke up with the plaintiff.  The proposed marriage never materialised.

2. The plaintiff now seeks to recover the defendant’s half interest in the flat from her.  He has advanced no less than five different bases in support of his claim, namely:-

(1)  fraud, it being alleged that the purchase of the flat in the joint names of the plaintiff and the defendant was procured by a fraudulent scheme devised by the latter to “extract financial benefit from the Plaintiff by her pretence that she was going to marry him and/or her fraudulent misrepresentation to him that she was going to marry him”, when in fact she never had the intention to do so (§5(d)(i) of the re-re-amended statement of claim, “SoC”);

(2)  resulting trust, on the basis that the plaintiff provided the entirety of the purchase price for the flat (§5(d)(ii) of SoC);

(3)  constructive trust, it being alleged that there was a common understanding or arrangement between the plaintiff and the defendant that the defendant would only obtain an equitable interest in the flat if she married him (§5(d)(iii) of SoC);

(4)  conditional gift, it being alleged that the plaintiff’s gift to the defendant of an equitable interest in the flat was conditional upon the defendant marrying him (§5(e) of SoC); and

(5)  unjust enrichment, it being alleged that the defendant has been enriched at the plaintiff’s expense and such enrichment is unjust because it was procured by fraud (as mentioned above) and/or it was never intended that the defendant would have an equitable interest in the flat except as his wife (§5(e)(A) of SoC).

3. The plaintiff’s primary case against the defendant, as advanced in the SoC and in the opening submissions of Mr C Y Li SC, was that of “fraud”.  However, by the time of his oral closing submissions, Mr Li said that the plaintiff’s primary case was that of “conditional gift”, although none of the other bases of the plaintiff’s claim was abandoned.

4. On the other hand, the defendant says that there was a common intention between the plaintiff and the defendant that the whole of the flat was a gift to her (§11(3) of the re-re-amended defence, “Defence”).  By the time of his closing submissions, Mr Derek J Y Chan accepted that the defendant’s counterclaim for a declaration of sole beneficial ownership of the flat could not be maintained.  This was because, as I understand it, (i) she did not provide any consideration, and (ii) no case, or proper case, had been advanced on the pleadings that the plaintiff held his half interest in the flat on trust for the defendant.

5. Accordingly, the ultimate question to be determined in this action is whether the plaintiff is entitled to recover the defendant’s half interest in the flat from her on any one or more of the aforesaid five bases of claim.

6. In the course of the trial, a large number of factual disputes have been raised by the parties, some of which are of peripheral relevance only.  I do not consider it necessary, and do not propose, to resolve all the factual disputes raised by the parties, save those which I regard as being essential for a proper determination of the plaintiff’s claim herein.

WITNESSES

7. At the trial, the following witnesses gave evidence:-

(1) on the plaintiff’s side:

(a) the plaintiff;

(b) Ms Lee Yee Nin, Helen (“Ms Helen Lee”) - the personal assistant of the plaintiff; and

(c) Mr Yeung Wing On (“Mr Yeung”) - a solicitor;

(2) on the defendant’s side:

(a) the defendant; and

(b) Madam Hung Kit Fung (“Madam Hung”) - the defendant’s mother.

8. I am satisfied that Ms Helen Lee is generally an honest witness doing her best to tell the court what she could remember although, not surprisingly, she was unable to recall some matters of detail in respect of events which occurred in 2008.

9. I also consider Mr Yeung to be, by and large, an honest witness.  There is, however, an aspect in the evidence of Mr Yeung which I shall describe further below and which, to put it mildly, is somewhat disquieting.

10. On the other hand, I am not able to attach any weight on the evidence of Madam Hung. She signed a short witness statement describing a few events which occurred in April, May and June 2008, mainly on the basis of what she allegedly had been told by the defendant.  It appears from Madam Hung’s evidence that she did not know much about the contents of her witness statement before she signed it.  In particular, she said that she had only been asked one question by a staff of the defendant’s solicitors (relating to the topic of bridewealth (禮金), which I shall further discuss below), she could not read the witness statement, and no one had interpreted the contents thereof to her, prior to her signing it. It is also apparent from Madam Hung’s evidence that she did not have any clear recollection of the events mentioned in her witness statement, which I accept could be due to the lapse of time and her advanced age.  In all the circumstances, I have decided that I should disregard the entirety of the evidence of Madam Hung.

11. This having been said, I do not accept Mr Li’s submission that the manner in which the witness statement of Madam Hung was prepared and propounded lends force to the plaintiff’s complaint that the defendant is making up her case, and that the production of her mother’s statement is a desperate attempt to “move” (or deceive) the court by the evidence of an old lady who would be portrayed as an independent witness.  The evidence and materials before me do not enable me to find the full circumstances in which Madam Hung’s witness statement came to be prepared and put forward.  I do not accept that the defendant would knowingly put forward her mother as a false witness to support her case.  Neither am I prepared to accept that the defendant’s solicitors would do anything to assist the defendant in any such endeavour.  In my view, the plaintiff’s claim ought to be resolved by reference to what I consider to be reliable evidence, and not on the basis of evidence which I regard as being unreliable.

12. The main witnesses at the trial were the plaintiff and the defendant.  Their oral evidence conflicts with each other in many aspects.  The court’s approach in assessing the oral evidence of a witness is well settled. In Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at 481, Stock JA (as he then was) stated as follows:-

“ …… I do not say that an assessment of the character of a witness plays no part in the fact-finding process, but it is a task that may sometimes be elusive even to the best trained eye and ear, and I would venture to suggest that the truth, in so for as one is able to reach it or, as is sometimes the case, to reach a version of it that is more likely to be correct than not, can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one could expect it to have been created, as well as to inherent improbabilities (though bearing in mind that there may be occasions where the truth may run against that particular grain) having regard to all the facts that are known … This is not to say that the documentation should have been treated as if it stood on its own, not to be explained, contradicted or supported by oral testimony. It is however to say that in this case the approach adopted to assessment of the facts placed far too much emphasis on character impression and too little upon what was suggested by the documentation and by the inherent improbabilities in their historical context. That documentation, as well as conflicts within the evidence, inherent probabilities, and a study of how matters were originally pleaded and asserted in witness statements – these are the factors which in a trial such as this, so long removed from the time of the events in question, were likely to be of particular use in assessing the facts …”

13.  When assessing the oral evidence of the plaintiff and the defendant, I pay particular attention to:-

(1) the inherent probabilities, or improbabilities, of the events put forward by the witness;

(2) the consistency, or inconsistency, of his or her evidence with undisputed background facts or contemporaneous documents; and

(3) the consistency, or inconsistency, of his or her evidence with his or her previous statements and pleadings.

14. I do not consider the evidence of either the plaintiff or the defendant to be entirely satisfactory.  As will be seen below when I come to deal with various specific factual disputes, I prefer the evidence of the plaintiff on some issues and that of the defendant on other issues.

BASIC FACTS

(i) Personal background

15. The plaintiff was born on 10 December 1963, and was 45 years of age at the time when he first met the defendant in March/April 2008.  He was, and is, a solicitor, practising in the area of corporate finance in Hong Kong.

16. The defendant was born on 10 November 1975, and was 33 years of age in March/April 2008.  At that time, she was married to one Mr Lam, a police officer by occupation, and they had a son, born in December 2004.  The three of them were then residing in quarters provided by the Hong Kong Police Force in Yau Tong (“the Yau Tong Quarters”). The defendant said, however, that her marriage with Mr Lam had broken down since about 2007 and they occupied separate rooms in the Yau Tong Quarters. Since around late January 2008, the defendant and a partner had been operating a manicure beauty business inside a shop at 3/F, 9 On Lan Street, Central, under a sub‑letting/commission sharing arrangement with White House Beauty.

(ii) The marriage agreement

17. In late March or early April 2008, the plaintiff and defendant met for the first time at Beijing Club in Central through the introduction of Mr Peter Yau, a common friend.  Mr Peter Yau was the defendant’s boss in her previous employment with China Northern Enterprises Investments Fund Limited.

18. After that initial meeting, the relationship between the plaintiff and the defendant developed quickly.  In April 2008, the plaintiff rented a flat in Block 2, Cairnhill, Tsuen Wan, New Territories (“the Cairnhill Flat”), which belonged to Mr Peter Yau.  The defendant, her son and her foreign domestic helper then moved from the Yau Tong Quarters to live in the Cairnhill Flat.  At around the same time or shortly afterwards, the plaintiff also moved into, or stayed overnight at, the Cairnhill Flat.

19. It is not entirely clear on the evidence as to the precise date on which the defendant moved into the Cairnhill Flat.  It is not in dispute, however, that the plaintiff and defendant’s relationship had become an intimate one by mid April 2008.

20. According to the plaintiff:-

(1) When they first met, the defendant told him that her occupation was that of a beautician and she was one of two partners of a beauty parlour business in the name of White House Beauty operating at On Lan Street, Central.

(2) In late April 2008, the defendant revealed to him that she was married to another man at that time and had a 3-year-old son, and that she had one other previous marriage.  She told him that she was a bankrupt, and was just a consultant working at White House Beauty (instead of being a partner of the business). She told the plaintiff that she and her husband had no feelings towards each other and they could divorce at any time.  She further represented that she wanted to marry the defendant and have children with him.

(3) It is the plaintiff’s case that:-

(a) what the defendant said (as summarised in (2) above) “was not true, as the Defendant well knew, but was … part of the Defendant’s scheme to defraud the Plaintiff and the Plaintiff believed her, accepted her [marriage] proposal and then proceeded to [cohabit] with the Defendant and her son” (§3(e) of SoC); and

(b) “[t]he Defendant and her son soon after moved to [cohabit] with the Plaintiff at an apartment of the Plaintiff’s friend, the rent of which was paid by the Plaintiff” (§3(f) of SoC).

21. On the other hand, according to the defendant:-

(1) When they first met, the plaintiff appeared to know her background well.  The defendant later found out that the plaintiff’s knowledge came from Mr Peter Yau.

(2) In a subsequent meeting which took place just a few days after the first meeting, the defendant told the plaintiff about her background in detail, including the fact that she was married with a 3-year-old son, there was a marital discord between the defendant and her husband, she and her son were living in a separate room from her husband, and she had two previous marriages (including the one with Mr Lam).

(3) The plaintiff accepted the defendant’s background and offered to assist her, including providing financial support to her and her son, helping her move out of her husband’s quarters and promising to arrange for her son to be enrolled in Victoria International Kindergarten[1].  He also participated in the defendant’s family activities with the defendant, her son and her mother.

(4) It was after the plaintiff had demonstrated himself to be a caring companion that she decided to start a relationship with the plaintiff as boyfriend and girlfriend.

(5) It was the plaintiff who persuaded her to file for divorce so as to enable him to get married with her.

22. I do not accept the plaintiff’s evidence that in late April 2008, the defendant represented to him that she wanted to marry him and have children with him.  I prefer the evidence of the defendant that it was the plaintiff who first made a marriage proposal to the defendant and suggested that she should divorce her husband. The defendant’s evidence is, I consider, more consistent with the fact that it was the plaintiff who took the early initiative to start a relationship with the defendant, and inherently more probable.

23. The other discrepancies in the evidence of the plaintiff and the defendant mentioned above are, by and large, of marginal relevance only.  What seems to me to be important is the common ground that the plaintiff and the defendant agreed to marry each other.

(1) On the plaintiff’s case, that occurred in or about late April 2008 (§3(e) of SoC).

(2) On the defendant’s case, she decided to marry the plaintiff after she had been told that the plaintiff’s parents would come to Hong Kong from Hawaii in early June 2008 and they wished to see the plaintiff getting married as soon as possible (see §7B(1)(a) of Defence).  In her evidence, she said that in about late May or early June 2008, the plaintiff told her about his parents’ intended visit to Hong Kong and it was at that time that the plaintiff proposed to her and she agreed to marry him.

(iii)  The defendant’s divorce proceedings

24. On or about 5 May 2008, through the introduction of the plaintiff, the defendant instructed Messrs Adrian Yeung & Cheng (“AYC”) to represent her in divorce proceedings with Mr Lam.  The solicitor handling the proceedings on behalf of the defendant was Mr Yeung, who had known and had dealings with the plaintiff professionally since around 2007.

25. On or about 8 May 2008, AYC filed a divorce petition on behalf of the defendant.  It is the plaintiff’s case that “[i]n fact the Defendant never intended to divorce her husband (and never did), and her filing for divorce was simply part of her fraudulent scheme to extract financial benefits from the Defendant by representing to him, untruthfully, that she would be his wife” (§4(b) of SoC).

26. On 9 May 2008, the plaintiff, the defendant and Mr Lam attended the office of AYC for the purpose of signing some documents pertaining to the proposed divorce (by consent).  On that occasion, the plaintiff gave the defendant a sum of HK$20,000 in cash, which the defendant then passed to Mr Lam to discharge certain credit card indebtedness which had apparently been incurred by the defendant.

27. On 18 August 2008, the Family Court granted a decree nisi in the divorce suit between the defendant and Mr Lam.  In the normal course of events, the decree nisi would become absolute in 6 weeks from the date of the order (ie on 29 September 2008).

(iv)  The wedding plan

28. In early June 2008, the plaintiff’s parents, who were both over 80 years of age, came to Hong Kong from Hawaii.

29. On or about 7 June 2008, there was a dinner gathering in a flat in Kowloon Tong belonging to the plaintiff.  Present on that occasion included the plaintiff and his parents, the defendant and her parents, and Ms Helen Lee.  At that gathering, the parties discussed the arrangement for the proposed wedding of the plaintiff and defendant.

30. To the extent that the defendant suggested, in her oral evidence, that there was no discussion about the proposed marriage between the plaintiff and the defendant at that dinner gathering, the same is rejected as being (i) inherently improbable, and (ii) inconsistent with paragraph 14 of the Parties’ Agreed Statement of Facts.

31. In or about June 2008, Ms Helen Lee on behalf of the plaintiff contacted Grand Hyatt Hong Kong (“Grant Hyatt”) to make inquiries regarding the availability of their wedding banquet venue for the proposed wedding of the plaintiff and the defendant.  A proposed date of 21 November 2009 for the wedding banquet was mentioned in Grand Hyatt’s letter attached to an email from Grand Hyatt to Ms Helen Lee dated 12 June 2008[2].

32. Shortly after 12 June 2008, the plaintiff and the defendant, their respective parents and Ms Helen Lee (and some others) visited Grand Hyatt and examined the layout of the Grand Ballroom under a guided tour organized by the events executive of Grand Hyatt.

33. According to the defendant, she and her parents attended the guided tour not knowing beforehand that it had been arranged for by the plaintiff.  She originally thought that it was just a dinner gathering of (amongst others) their respective parents.  She also said that the arrangements with Grand Hyatt regarding the proposed wedding banquet were made by the plaintiff without any consultation with her.  On the other hand, the plaintiff said that the arrangements with Grand Hyatt, as well as the date of 21 November 2009 for the proposed wedding banquet, were made or decided after full consultation with the defendant and with the consent and agreement of the defendant and her parents. In respect of this dispute of fact, I prefer the plaintiff’s evidence and reject the defendant’s evidence.  I see no reason why the plaintiff would not keep the defendant fully informed and engaged in respect of the proposed wedding banquet arrangements.

34. After the guided tour, the party had a dinner in the Chinese restaurant at Grand Hyatt, in the course of which details of the proposed wedding banquet were discussed.

(1) According to the defendant, during the dinner, the plaintiff’s mother asked the defendant’s mother whether she had any request for the wedding.  The defendant’s mother answered in the negative.  The plaintiff was upset with this response and, after the dinner, accused the defendant’s parents of being insincere about the wedding.  The plaintiff and the defendant then stopped communicating with each other for a few days, but later mended their relationship and went to a wedding exhibition together (as further described below).

(2) On the other hand, the plaintiff said that although the defendant’s mother did not directly respond to the question of the amount of the bridewealth which the bride’s family would ask for, he was not in any way upset or unhappy about that matter, and the atmosphere throughout the dinner was pleasant.

(3) In respect of this dispute of fact, I prefer the evidence of the plaintiff and reject the evidence of the defendant.  I donot see why the plaintiff would consider the defendant’s parents to be insincere about the proposed wedding merely because her mother did not respond directly to the question of the amount of the bridewealth which the bride’s family would ask for.  Neither do I see why the plaintiff would be upset or angry by such response (or non response).

35. The plaintiff’s parents stayed for about a month in Hong Kong, returning to Hawaii in early July 2008.

36. On 13 July 2008, the plaintiff and the defendant went to a wedding exhibition held at the Hong Kong Convention and Exhibition Centre.  On that occasion, the plaintiff engaged a Japanese wedding organiser called Ceremolife Co Ltd (“Ceremolife”) and paid a deposit of HK$5,000 for a marriage ceremony package and a wedding photo package, both in Hokkaido.  In the booking form, it was stated that the marriage ceremony was scheduled to take place on 17 October 2008.

(1) The defendant said that the deposit was for a wedding photo package only.  She did not know that the plaintiff had made arrangement for a marriage ceremony on that occasion, and she had not agreed to any such arrangement.  She also said that there was no discussion about the date of marriage.

(2) On the other hand, the plaintiff said that the defendant was fully aware of the details of the marriage ceremony and wedding photo packages for which the plaintiff signed up on that occasion.  The plaintiff also said that the defendant chose her wedding dress as well as the hotel and travel arrangements for the proposed marriage in Japan.

(3) In respect of this dispute of fact, I prefer the evidence of the plaintiff and reject the evidence of the defendant.  Since the defendant was with the plaintiff at the time of their visit to a wedding exhibition, I believe that she was fully aware of the marriage ceremony and wedding photo packages that the plaintiff had signed up for on that occasion.  The suggestion that the plaintiff did not consult the defendant about the arrangements that he proposed to make in respect of the marriage ceremony or the date of the proposed marriage is inherently improbable.

(v)  The purchase of the Property

37. There is a major dispute between the parties as regards the circumstances in which property at Flat K, 46^th Floor, Block 3, The Merton, No 8 Davis Street, Hong Kong (“the Property”) came to be purchased in the joint names of the plaintiff and the defendant.  I shall come back to those circumstances later in this judgment when I consider the respective cases of the parties.

38. On 10 July 2008, the plaintiff and the defendant (as purchasers) entered into a preliminary sale and purchase agreement for the purchase of the Property at the price of HK$4,550,000.  An initial deposit of HK$136,500 was paid by the plaintiff to the vendor.  It is common ground that the Property was chosen because it was in the same residential estate in which the defendant’s sister was then living, and it was thought that, when necessary, the sister could assist the defendant in looking after her son.

39. On 29 July 2009, the plaintiff and the defendant entered into a formal sale and purchase agreement of the Property.  A further deposit and part payment in the sum of HK$318,500 was paid by the plaintiff to the vendor.

40. On 26 August 2008, completion of the purchase of the Property took place.  The Property was assigned to the plaintiff and defendant as joint tenants.  In respect of the balance of the purchase price, HK$1,365,000 was paid by the plaintiff and the rest was paid by a 25‑year mortgage loan (in the amount of HK$2,730,000) obtained by the plaintiff as sole borrower from China Construction Bank (Asia) Corporation Limited.  In addition to the purchase price of the Property, the plaintiff also paid the agency fee and all other expenses incidental to the acquisition of the Property.

(vi)  The defendant moved into the Long Beach Flat

41. Going back a little earlier in time, on 29 April 2008, the plaintiff entered into a preliminary sale and purchase agreement for the purchase of a flat in Block 5, The Long Beach, 8 Hoi Fai Road, Tai Kwok Tsui, Kowloon, Hong Kong (“the Long Beach Flat”).  According to the plaintiff, at the time when he purchased the Long Beach Flat, he intended to hold it as an investment.

42. On 17 June 2008, the Long Beach Flat was assigned to the plaintiff.

43. In early August 2008, the defendant and her son moved out of the Cairnhill Flat and lived with the plaintiff in the Long Beach Flat.

(vii)  The defendant left the plaintiff

44. On 30 August 2008, Mr Lam signed a tenancy agreement in respect of an apartment in Block 7, Metro Harbourview, Kowloon (“the Metro Harbourview Flat”).

45. On 1 September 2008, the defendant without any advance notice to the plaintiff moved out of the Long Beach Flat, and moved into the Metro Harbourview Flat with her son.  I shall come back to the defendant’s explanations for her sudden action later in this judgment.

46. On 4 September 2008, the defendant and Mr Lam jointly applied to set aside the decree nisi made in their divorce suit.  That application was not processed by AYC.

47. On 8 September 2008, the Family Court rescinded the decree nisi.  Also on that date, the defendant started a new job at Bank of China.

(viii)  The plaintiff’s attempts to reconcile with the defendant

48. According to the plaintiff, after the defendant had moved out of the Long Beach Flat, he lost all contact with her until around 8 September 2008 when the defendant gave him a telephone call.  In that telephone conversation, the defendant told the plaintiff that she would not marry him.  She also explained to him the reasons why she and her husband had applied by consent to rescind the decree nisi in respect of their divorce suit, namely, so that her husband, by virtue of his continued marriage with the defendant, could keep (i) the police married quarters for residence by him, the defendant and their son, as well as (ii) the government benefits for her son to pursue overseas education in the United Kingdom in future given that the custody of her son would be reverted to her husband (and the defendant) upon the rescission of the decree nisi (apparently, the defendant had applied for custody of the son in her divorce petition against her husband).

49. It is common ground that after the defendant had moved out of the Long Beach Flat, the plaintiff attempted to reconcile with the defendant.

50. According to the plaintiff, in or about September 2008, he talked to the defendant five to six times asking her to come back to him and marry him, but the plaintiff’s pleas were rejected by the defendant.

51. The plaintiff also gave financial assistance to the defendant.  In September 2008, he deposited a sum of HK$100,000 into the defendant’s bank account.  In or about November 2008, the plaintiff allowed the defendant to use a shelf company belonging to him, Marchmont Group Limited (“Marchmont”), to start a boutique business in the name of “Paparazzi” (“the Boutique Business”), which was also funded by the plaintiff. On 6 December 2008, Marchmont rented a shop at Granville Circuit, Kowloon, for running the Boutique Business.  On 10 December 2008, the plaintiff resigned, and the defendant was appointed, as a director of Marchmont. In December 2008, the plaintiff and the defendant went to Korea to purchase merchandise for the Boutique Business.

52. However, in or about January 2009, the plaintiff decided to stop funding the Boutique Business. On 6 February 2009, he caused Marchmont to surrender the tenancy of the shop at Granville Circuit.

53. In passing, I should record that the plaintiff alleged, in his witness statement, that the defendant misappropriated the sale proceeds as well as the merchandize and properties of the Boutique Business.  This allegation did not, however, feature much in the course of the trial.  I am not satisfied that this allegation is proved on the evidence, and I attach no weight on this allegation.

(ix)  The plaintiff’s attempts to get the Property back from the defendant

54. According to the plaintiff, after the defendant had told him that she would not marry him, he orally requested the defendant on 4 different occasions (twice in September 2008 and twice in January 2009) to transfer the Property back to him.  The defendant did not object to transferring the Property back to him, but said that she was either ill or occupied by other matters and would find some time later to transfer the Property back to him. These allegations are denied by the defendant.

55. The plaintiff also said that, in view of the defendant’s indication that she did not object to transferring the Property back to him, on or about 11 September 2008, he instructed AYC to prepare documents to give effect to the proposed transfer of the defendant’s half legal interest in the Property back to him.

56. Mr Yeung then prepared a draft “Memorandum of Sale and Purchase” and a draft “Assignment” of the Property for execution by the plaintiff and the defendant.

(1) In the draft Memorandum of Sale and Purchase, it was recited, inter alia, that:-

(a) it was agreed that half of the purchase money (after deducting the mortgage loan of HK$2,730,000) and other incidental costs and expenses for the purchase of the Property, in the sum of HK$982,920.41, was paid by the plaintiff on behalf of the defendant, and it was a “loan” from the plaintiff to the defendant; and

(b) it was also agreed that the defendant would assign her interest of and in the Property to the plaintiff at the consideration of HK$982,920.41, which was to be settled by way of a set off of the loan against the said consideration.

(2) In the draft Assignment, the consideration for the transfer of the defendant’s half interest in the Property to the plaintiff was stated to be HK$982,920.41.

57. On 12 September 2008, Mr Yeung sent copies of the draft Memorandum of Sale and Purchase and assignment to the plaintiff by email.

58. According to the plaintiff, in mid-September 2008, he was told by Mr Yeung that he had tried to make an appointment with the defendant for her to come to his office to execute the draft Memorandum of Sale and Purchase and assignment, but the defendant had failed to confirm the appointment or give any response to Mr Yeung.

59. According to Mr Yeung, shortly after the email of 12 September 2008, he was told by either the plaintiff or Ms Helen Lee that the defendant would come to the office of AYC to sign the draft Memorandum of Sale and Purchase and assignment, but she failed to turn up at the appointed time.  He then tried to fix another appointment with her but could not recall whether he failed to locate the defendant or was told by the defendant that she was not free to come to his office.  In his witness statement, Mr Yeung said that he contacted the defendant asking her to come to his office to execute the draft Memorandum of Sale and Purchase and assignment.  However, in his oral evidence, he said that he could not recall whether he did so, but believed he did according to what he had stated in his witness statement. 

60. On the other hand, the defendant said that AYC never contacted her to execute any document to transfer her interest in the Property back to the plaintiff, and she did not receive any call from Mr Yeung or his staff in mid-September 2008 as alleged or at all.  She also denied the plaintiff’s allegation that he had asked her to transfer the Property back to him.

61. I accept the evidence of the plaintiff that he did ask the defendant to transfer the Property back to him and the defendant indicated that she had no objection to doing so.  That was the reason why the plaintiff instructed Mr Yeung to prepare legal documents to give effect to the proposed transfer of the defendant’s half interest in the Property back to him.  In reaching this conclusion, I have taken into account Mr Chan’s submission that it was simply incredible that during the very same period of time that the plaintiff was trying to reconcile with the defendant and making further gifts to her (including cash of HK$100,000 and the funding of the Boutique Business), he would in the same breath make repeated requests for the defendant to return her interest in the Property back to him.  While the plaintiff’s conduct may be said to be somewhat inconsistent, I accept his explanation that although he wanted to mend his relationship with the defendant, he asked the defendant to transfer the Property back to him because (i) she never agreed to return to him, and (ii) he wanted to exert some pressure on the defendant (to return to him).  The plaintiff’s stance at that time was that she would have the Property only if she married him.

62. I also find, on the evidence of Mr Yeung, that either he or his staff contacted the defendant to attend the office of AYC to execute the draft Memorandum of Sale and Purchase and assignment. The defendant’s evidence to the contrary is rejected.  It is not in dispute that, as a matter of fact, the defendant never attended the office of AYC to execute the draft Memorandum of Sale and Purchase and assignment.

63. I cannot leave this matter without making some further observations regarding the plaintiff and Mr Yeung’s attempt to get the defendant to sign the draft Memorandum of Sale and Purchase and assignment. On any view of the matter, it is clear that those documents contained materially false statements to the knowledge of both the plaintiff and Mr Yeung. According to Mr Yeung, it was he who proposed to “structure” the intended transfer of the defendant’s half interest in the Property to the plaintiff as a “sale and purchase” involving the repayment of an alleged “loan” to set off the agreed “consideration” of HK$982,920.41.  Mr Yeung said that the purpose of structuring the transaction in such a way was to address a potential title problem in any future sale or mortgage of the Property, in that a title based on an assignment without consideration would be treated as a gift and thus imperfect.  Mr Yeung also said that the plaintiff agreed with his proposal.  The plaintiff said in his cross examination that the draft documents were in accordance with the instructions that he had given to Mr Yeung.

64. Leaving aside for the moment whether Mr Yeung’s advice is sound as a matter of law, the above evidence does not reflect well on the professional integrity of the plaintiff and Mr Yeung, both being experienced practising solicitors in Hong Kong.  The draft Memorandum of Sale and Purchase and assignment were plainly meant to be formal legal documents and intended to be acted upon by third parties in future.  It is a serious matter that two solicitors would be prepared to go along with a scheme involving the preparation, execution and use of what could only be described as false legal documents.  In view of the fact that the draft Memorandum of Sale and Purchase and assignment were in fact never signed or used, I do not propose to take any further action in this matter.  Nevertheless, I must record the court’s disapproval of their conduct.

(x)  The defendant’s places of residence after moving out from the LongBeach Flat

65. According to the defendant, she stayed in the Metro Harbourview Flat for a few weeks only, before moving back to live in the Yau Tong Quarters.  Although she resided in the Yau Tong Quarters between September 2008 and July 2009, she and her husband never made up with each other and they occupied different rooms.

66. In July 2009, Mr Lam’s police quarters were relocated to Shun Lee, Kwun Tong (“the Shun Lee Quarters”).

67. Between July 2009 and March 2011, the defendant did not reside in her husband’s quarters but co-habited with one Mr Huang, with whom she gave birth to a baby girl in July 2010.

68. On 31 March 2011, the defendant returned to live in the Shun Lee Quarters.  According to the defendant, as in the case of her aforesaid residence in the Yau Tong Quarters, she and her husband occupied different rooms in the Shun Lee Quarters.

(xi)  The use of the Property since September 2008

69. According to the plaintiff, in view of the defendant’s indication that she would not marry him, he decided to lease out the Property to finance the mortgage payments, and the defendant agreed to sign the tenancy agreement to lease out the Property.  On 21 September 2008, the plaintiff and the defendant (as landlords) signed a tenancy agreement to let the Property to a third party for a term of 2 years commencing on 28 September 2008 at the monthly rent of HK$16,500.

70. All subsequent tenancy agreements in respect of the Property were signed by the plaintiff alone.

71. As a matter of fact, the plaintiff has received all rental income deriving from letting out the Property since September 2008.  He has all along been responsible for making the mortgage payments to China Construction Bank (Asia) Corporation Limited, as well as paying all management fees, rates and government rent relating to the Property.  In various property tax returns filed by the plaintiff since 1^st September 2009, he stated that he was the 100% owner of the Property.  He treated all rental income as belonging to him, and paid property tax on the rental income.

72. On the other hand, the defendant has not at any time received any part of the rental income derived from the Property.  Neither has she paid any property tax on such rental income.

73. The defendant said that, some time after the signing of the agreement to purchase the Property but before she moved into the Long Beach Flat, the plaintiff suggested letting out the Property, and agreed to pay to her the net rental income after deducting the mortgage payments and miscellaneous expenses.  In or about mid-September 2008, at a time when (according to the defendant) the plaintiff and the defendant were back together again (for a short period of time), the plaintiff told the defendant that he had found a tenant and asked the defendant to sign a tenancy agreement to lease the Property.  In view of their renewed relationship, the defendant let the plaintiff handle matters relating to the lease of the Property and signed the tenancy agreement as requested by the plaintiff.  However, the plaintiff failed to pay to her the net rental income as previously agreed.  On the other hand, the plaintiff denied that he ever told or agreed with the defendant that he would pay the net rental income to her.  On this issue, I accept the plaintiff’s evidence and reject the defendant’s evidence.  If the plaintiff had agreed to pay to the defendant the net rental income but failed to do so, I believe that the defendant would have taken further action to require the plaintiff to account for the net rental income derived from letting out what she considered to be her property. There is, however, no evidence that the defendant ever took any action to compel the plaintiff to honour his promise.

74. The defendant also said that on various occasions between 2009 and August 2011, she demanded the plaintiff to split the rental income of HK$16,000[3] per month derived from the Property, but the plaintiff claimed that the rent had been reduced and there was nothing left after paying all expenses and costs of maintenance. This allegation is denied by the plaintiff.  In relation to this dispute of fact, I also accept the plaintiff’s evidence and reject the defendant’s evidence, which I consider to be inconsistent with her case that the whole Property was meant to be an absolute gift to her.  If the whole Property was meant to be an absolute gift to the defendant, there was no reason why she would ask the plaintiff to “split” the rental income.

(xii)  The present action

75. On 13 October 2009, the plaintiff commenced the present action against the defendant.  The plaintiff obtained default judgment against the defendant on 16 May 2011, but the default judgment was later set aside by Master Ho on 6 August 2012 on the ground that it was an irregular judgment.

THE DEFENDANT’S CASE OF ABSOLUTE GIFT

76. According to the defendant, the circumstances under which the plaintiff came to the purchase the Property in the joint names of the plaintiff and the defendant were as follows:-

(1) Following the filing of her divorce petition on or about 8 May 2008, she received a message by SMS from the plaintiff in which he informed her that he was worried that his colleagues and friends would despise him because of the fact that his girlfriend already had a son.  After that SMS message, the plaintiff severed all contact with the defendant.

(2) However, after about a week or so, the plaintiff called the defendant and admitted that he was in the wrong.  He repeatedly apologized to the defendant for his sudden change of attitude and said that he wanted to resume his relationship with her.  The defendant told the plaintiff that she had misplaced her trust in him and blamed him for putting her in the situation in which she found herself. She also told him that she was scared of his sudden change of attitude and that he might just disappear with no prior indication.  In order to gain back her trust and confidence and as a gesture of showing his sincerity, the plaintiff initially suggested that he would purchase a flat as a gift to her (to be used as her abode together with her son).  Later, the plaintiff changed his mind and proposed that he would make a gift of HK$1,500,000 to the defendant instead, which proposal was rejected by the defendant.  After further discussion, the plaintiff reverted to the original proposal of purchasing a flat as a gift to the defendant so that she and her son would have a place of abode should the plaintiff suddenly “disappear” again.  This final proposal was accepted by the defendant.

(3) Eventually, the plaintiff and the defendant decided to purchase the Property, which was to be used as the residence of the defendant and her son only.

(4) The Property was never intended to be used as the matrimonial home of the plaintiff and the defendant.  It was a 2-bedroom flat with a gross floor area of 629 sq ft (usable floor area of 497 sq ft) only which was too small for the plaintiff, who had two other flats (namely, the Kowloon Tong Flat and the Long Beach Flat mentioned below) which were much larger in size.  In fact, although the Long Beach Flat had 3 bedrooms, the plaintiff considered it to be too small to live in.

(5) The defendant did not know why the plaintiff’s name was included as one of the purchasers of the Property, but guessed that it was because she had no income at that time and the inclusion of the plaintiff’s name would make it easier to obtain a mortgage loan.  At the time of execution of the formal sale and purchase agreement at AYC’s office, Mr Yeung told her that there was nothing very special about “joint tenancy” and simply asked her to sign the document.  She was certain that Mr Yeung did not explain to her the meaning or legal implications of “joint tenancy”.  When she later asked the plaintiff why the Property was to be held on a joint tenancy basis, he told her that was because it would be difficult for her to obtain a mortgage loan from a bank if she was the only named purchaser.

77. I do not accept the above evidence of the defendant, for the following reasons:-

(1) According to the defendant, the plaintiff was well aware of her background, including the fact that she was married with a 3-year-old son, early on in their relationship, but nevertheless proposed to marry her.  There was no reason why the plaintiff would suddenly become concerned about the views of his colleagues or friends as regards his relationship or intended marriage with a woman of her background.  There was also no reason why the plaintiff would, about 1 week later, change his attitude completely.

(2) If the Property was intended to be an absolute gift to the defendant, there was no reason why she would accept an assignment of the Property to both the plaintiff and the defendant as co-owners.  In this regard, it does not seem to me to be important whether the defendant understood the full legal implications of “joint tenancy” at the time of the purchase or assignment of the Property.  What is important is the fact that the defendant was aware that the Property was purchased in the names of, and assigned to, both the plaintiff and the defendant as co-owners.

(3) I do not accept her explanation that she guessed (or thought) that the plaintiff’s name was included as one of the purchasers because that would make it easier to obtain a mortgage loan.  The very fact that the Property would be subject to a mortgage in favour of a bank was inconsistent with the idea that the Property was meant to give her security so that she and her son would have a place of abode should the plaintiff suddenly “disappear” again.  Also, assuming that the defendant would not have been able to obtain a mortgage loan by herself in view of her financial position at that time, there was no reason why the plaintiff had to be a “mortgagor” (and therefore a “co-owner”) of the Property.  He could simply be the sole borrower without having any interest in the Property.

(4) The defendant’s subsequent conduct also indicated that she did not consider or believe that the Property belonged to her absolutely, including:-

(a) moving into Metro Harbourview Flat instead of the Property after moving out from the Long Beach Flat on 1 September 2008 (her explanations for not moving into the Metro Harbourview Flat being unsatisfactory and rejected);

(b) taking no action to require the plaintiff to account for the income derived from letting the Property; and

(c) taking no action to let the Property herself (save that the first tenancy agreement was signed by both the plaintiff and defendant as landlords).

78. In all, I reject the defendant’s basic factual case that the plaintiff intended to make an absolute gift of the Property to her.

THE PLAINTIFF’S CASE OF FRAUD

79. The plaintiff’s evidence regarding the circumstances under which he came to the purchase the Property in the joint names of the plaintiff and the defendant is as follows:-

(1) In early July 2009, a few days after his parents had left Hong Kong and returned to Hawaii, the defendant orally represented to him that due to the failure of her two previous marriages, she wanted to have ownership of a residential property as security if she was to marry him so that she would have a place to live in should their marriage break down.

(2) The plaintiff acceded to the defendant’s request, in reliance on her representation as aforesaid.

(3) Eventually, the plaintiff and defendant decided to purchase the Property, which was intended to be used as their matrimonial home.

80. I accept that there was probably some loose conversation between the plaintiff and the defendant along the lines mentioned in (1) above, but the primary reason for purchasing the Property in the joint names of the plaintiff and the defendant was because, I believe, it was intended to be used as their matrimonial home after their intended marriage.  I accept the plaintiff’s evidence on this point and reject the defendant’s evidence to the contrary (including the suggestion that the plaintiff considered, or would find, the Property too small to be the matrimonial home).

81. I am unable to accept, however, the plaintiff’s allegation that the defendant’s representation mentioned in paragraph 79(1) above was “part of her scheme to defraud the plaintiff of financial benefits” (§5(a) of SoC), the fraud being “her pretence that she was going to marry him and/or her fraudulent misrepresentation to him that she was going to marry him” (§5(d)(i) of SoC).

82. In considering this aspect of the case, I bear in mind the serious nature of the allegation that has been raised against the defendant.  It is trite that the standard of proof, even in respect of an allegation of fraud, is the civil standard of preponderance of probability.  However, as mentioned in the judgment of Bokhary PJ (with whom the other members of the the Court of Final Appeal agreed) in Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 (adopting the Re H approach, [1996] 2 WLR 8), the more serious the act or omission alleged, the more inherently improbable must it be regarded.  And the more inherently improbable it is to be regarded, the more compelling would be the evidence needed to prove it on a preponderance of probability.  Solicitor (24/07) v Law Society of Hong Kong was a case concerning disciplinary proceedings in a professional field, but the same approach is applicable to an allegation of fraud in an ordinary civil action (see ADS v Brothers & Others (2000) 3 HKCFAR 70 at 78F-G per Lord Hoffmann NPJ).

83. The plaintiff’s allegation of fraud is largely based on the following circumstantial evidence:-

(1) In the last week of August 2008, the defendant sent her new foreign domestic helper, who was recruited in the name of the defendant’s sister in July 2008, back to her home country.

(2) On 1 September 2008, the defendant suddenly and without any advance notice to the plaintiff moved out of the Long Beach Flat and moved into the Metro Harbourview Flat, in relation to which her husband had entered into a written tenancy agreement on 30 August 2008.

(3) On 8 September 2008, the defendant and her husband obtained an order from the Family Court to rescind the decree nisi by consent.

(4) Also on 8 September 2008, the defendant started a new job at the Bank of China.

84. It is the plaintiff’s case that “[a]lmost immediately after the Defendant had achieved her objective of securing a substantial financial benefit from the Plaintiff (in the form of the joint legal ownership of the said Property) by means of her pretence to him that she would be his wife and have children with him, she gave up that pretence, as it had achieved its objective …” (§5(c)(A) of SoC).

85. The defendant’s explanations of her aforesaid conduct are as follows:-

(1) After she had moved into the Long Beach Flat with her son in or about August 2008, the plaintiff became increasingly jealous of her relationship with the son and showed his possessive nature, to the extent that he would often blame the defendant for paying too much attention to her son.  On one occasion when her son had a fever, the plaintiff forced her to send her son to her mother’s home on the ground that her son carried germs.  Also, the plaintiff did not allow her to stay with her son in her mother’s home.  There were also occasions when the plaintiff insisted that she should talk with him overnight no matter how tired she was.  He would lose his temper and scolded her if she refused to do so.

(2) Towards the end of August 2008, the plaintiff scolded her son almost every day.  More than once, he became physical with the defendant’s son by grabbing him to scare him off.  The plaintiff’s behaviour caused the defendant’s son to cry and become scared of the plaintiff.  On one occasion, the plaintiff stopped scolding the defendant’s son only after he (the son) suddenly had nose bleeding.  There were quarrels between the plaintiff and the defendant, but the plaintiff made it clear that he would not change his attitude towards her son.

(3) As a result of the matters mentioned above (denied by the plaintiff), she decided that she had to leave the plaintiff without delay, and contacted her husband for assistance.

(4) On 30 August 2008, her husband signed a tenancy agreement to lease the Metro Harbourview Flat for a term of 2 years at the monthly rent of HK$11,500. That flat was chosen because it was in the neighbourhood of her son’s school (Victoria (Harbour Green) Kindergarten).  The tenancy agreement was signed in the name of her husband because she was unable to provide an income proof as required by the landlord.  However, the rent and rental deposit were paid or reimbursed by the defendant.  Also, the Metro Harbourview Flat was occupied by the defendant and her son only.

(5) On 1 September 2008, the defendant and her son moved out of the Long Beach Flat and moved into the Metro Harbourview Flat.

(6) Soon after she had moved out of the Long Beach Flat, the plaintiff terminated the monthly autopay arrangement with Victoria (Harbour Green) Kindergarten in respect of her son’s school fees.  In view of her limited financial means, she became worried that she could not afford to pay her son’s school fees as well as the rent for the Metro Harbourview Flat.  After discussion with her husband, it was decided that she and her son should move back to live in the Yau Tong Quarters.  The landlord of the Metro Harbourview Flat forfeited the rental deposit and accepted an additional month’s rent as compensation for an early surrender of the tenancy.

(7) Later, the defendant and her husband also decided to apply to rescind their divorce decree nisi for financial reasons, namely, so that the defendant and her son could lawfully reside in the Yau Tong Quarters and her son could remain eligible for education subsidies from the Government.

(8) On 4 September 2008, she applied jointly with her husband for rescission of the decree nisi. On 8 September 2008, the Family Court made a consent order rescinding the decree nisi.  They did not instruct AYC to handle the application in order to save legal costs.

(9) In late October 2008 or early November 2008, the defendant’s son quitted Victoria (Harbour Green) Kindergarten and started to attend Creative Kindergarten & Day Nursery in Kowloon Tong.  That was done for financial reasons.

(10) Lastly, she sent her new foreign domestic helper back to her home country in the last week of August 2008 to comply with Hong Kong immigration requirements applicable to foreign domestic helpers.

86. I accept broadly the above explanations given by the defendant in her evidence. In particular, the defendant’s original reasons for her willingness to marry the plaintiff continued to hold good.  I believe that the defendant would have continued to be with the plaintiff but for her concern about the plaintiff’s attitude to, and ill treatment of, her son.

87. As part of the plaintiff’s case of fraud against the defendant, it is alleged that the defendant “never intended to divorce her husband (and never did)” (§4(b) of SoC).  While it is a fact that the defendant never divorced her husband, the suggestion that she never intended to do so is difficult to accept unless the defendant’s husband was a knowing participant of her alleged fraudulent scheme or the defendant somehow knew that her (innocent) husband would be willing to make a joint application to rescind the decree nisi.  Either scenario is, in my view, inherently improbable.  In this regard, I have not lost sight of Mr Li’s submission that the court should draw an adverse inference against the defendant for not calling her husband to give evidence at the trial. I consider that in the nature of things, it is hardly surprising that the defendant’s husband would not be keen to give evidence.  I also consider it understandable that the defendant would not wish to get her husband involved in the present action.  I decline to draw any adverse inference against the defendant.

88. In all, I find that the defendant had a genuine intention to marry the plaintiff when she represented to him that she was going to do so.  In reaching this conclusion, I have taken into account my rejection of the defendant’s evidence on various matters as stated above, but those matters are not sufficient to cause me to find that she did not genuinely intend to marry the plaintiff when she represented to him that she would do so.  It follows that I reject the plaintiff’s allegation of fraud against the defendant.

THE PLAINTIFF’S CASE OF CONDITIONAL GIFT

89. The applicable principles for determining whether a gift made between an engaged couple is conditional upon marriage being materialised are set out in the judgment of the Court of Appeal in Ian Hung Wai v Cheung Sau Kuen [2011] 3 HKLRD 458, at paragraphs 19 and 20, as follows:-

“19. When a man and a woman agree to marry, a gift given in contemplation of that marriage is given subject to the condition that there is to be a marriage. If no marriage takes place then the condition has not been fulfilled and the gift is returnable. The common law position is subject to the condition – one arising out of the principles of contract – that if the one who has received the gift refuses to fulfill the condition under which it was given then that party must return it to the other. Equally, if the one who has given the gift refuses to fulfill the condition under which it was given then that party loses the right to claim return of the gift. In this regard, see Jacobs v Davis [1917] 2 KB 532 and Cohen v Sellar [1926] 1KB 536. As McCardie J observed in the second of these cases, there is, however, no question of return if a gift is absolute and free from condition.

20. In Hong Kong, the common law position has been modified to dispense with the condition that the right to claim back a gift or to retain it is subject to the party in question being the ‘innocent’ party. In this regard, s. 25 of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, provides that, if a party to an agreement to marry makes a gift to the other on the condition, express or implied, that it should be returned if the agreement is terminated, the party who has given the gift shall not be prevented from recovering it by reason only of his having terminated the agreement.”

90. As earlier mentioned, I accept the plaintiff’s evidence and find as a fact that the parties intended to use the Property as their matrimonial home after their marriage.  That being the case, I consider the plaintiff’s gift of a half interest in the Property to the defendant to be subject to the condition of there being a marriage.  Since the intended marriage has never materialised, the condition for the gift has failed, with the consequence that the defendant is obliged to return the half interest in the Property back to the plaintiff.

91. In passing, I should mention that in the plaintiff’s evidence given in cross examination and in answer to certain questions raised by the court, he alleged, for the first time, that there was an express discussion that the defendant had to return her half interest in the Property to him should the proposed marriage fall though.  The plaintiff said that this discussion took place in July 2008 at their home (ie the Cairnhill Flat) when they were talking about whether to the purchase the Property.  I have no difficulty in rejecting this part of the plaintiff’s evidence. The plaintiff’s allegation was not mentioned in his 4 versions of the statement of claim (the last one being the re-re-amended statement of claim filed on 16 December 2015), his 3 versions of the reply (the last one being the re‑amended reply filed on 13 January 2016), his affirmation filed on 7 October 2011, or his 3 witness statements filed on 12 July 2014, 10 March 2015 and 16 December 2015 respectively.  Although the plaintiff is not a litigator, I have no doubt that he, as an experienced solicitor, would have appreciated the significance of the alleged discussion and mentioned it in his pleadings, affirmation and/or witness statements if such discussion had indeed taken place as alleged.  I regret to find that the plaintiff made up this allegation while giving evidence in the witness box in the hope that this would assist him in his present claim against the defendant.

OTHER BASES OF THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT

92. In view of the conclusion that I have reached on the issue of conditional gift, it is not necessary for me to consider the other bases of the plaintiff’s claim against the defendant for the recovery of her half interest in the Property.

93. I should also mention that although I have made various specific findings of fact in different parts of this judgment, I have reviewed those findings in the light of the totality of the evidence and I am satisfied they are proper findings to be made having regard to the evidence as a whole.

DISPOSITION

94. I make an order that the defendant shall transfer her half interest in the Property to the plaintiff, with liberty to the plaintiff to apply for further directions or relief where necessary.  It is not necessary for me to grant the declaratory or injunctive relief sought by the plaintiff and I decline to do so.

95. I dismiss the defendant’s counterclaim.

96. On the question of costs, I make an order nisi that the defendant shall pay to the plaintiff 70% of his costs of the action and the counterclaim, the reduction being made on account of his failure to establish the case of fraud against the defendant.

97. Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court.