YIP SIU WAH v. CHAN YUEN PING by CHAN SIU CHUEN his guardian ad litem

HCA 2642/2016

[2023] HKCFI 2777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2642 OF 2016

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JUDGMENT

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A.  THE ISSUE IN THIS CASE

1.  This action concerns two pieces of land, namely Lot Nos 2581 and 2582 in Demarcation District No 102, San Tin, the New Territories (“the Lands”).  The issue is, as from 15 November 1994 up to now, who was and is the beneficial owner of the Lands: is it the plaintiff or the defendant?  As will be seen below, the only basis of the plaintiff’s claim is that the defendant holds the Lands on resulting trust for him.

2.  The plaintiff and the defendant are brothers in law.  The defendant is the husband of the plaintiff’s elder sister, Madam Yip Siu Lan (葉少蘭) (“Madam Yip”).

3.  The plaintiff was the registered and beneficial owner of the Lands until 15 November 1994. By an assignment of that date (“the Assignment”), the plaintiff’s mother, the late Madam Chan Fung King (“Madam Chan”),[1] as the attorney of the plaintiff, assigned the Lands to the defendant, who became (and remains) the registered owner thereof.  The Assignment states that the sale was in consideration of the sum of $450,000, receipt of which was acknowledged.

4.  The matters referred to in [2] and [3] above are not in dispute and I find them as facts.

5.  The dispute between the plaintiff and the defendant is which one of them, as from 15 November 1994, was (and is) the beneficial owner of the Lands.

6.  The plaintiff’s pleaded case is as follows:

(1)  In about 1994, there were troubles being caused by the tenant and occupiers of the Lands.  Further, the plaintiff stayed in Australia most of the time. Thus, the plaintiff requested the defendant to help by becoming the registered owner of the Lands so that the latter could take legal action against the tenant and occupiers, and to deal with matters arising from the letting and leasing of the Lands.  The defendant agreed.  Hence the Assignment.

(2)  Thus, as stated in the Statement of Claim:

“Due to the Defendant’s consent to act as trustee in holding the Lands for the purpose of taking such legal action against the tenant and occupiers and subsequent letting and leasing matters, the Plaintiff arranged his mother Chan Fung King as his attorney to sign and execute an Assignment dated 15^th November 1994 (which was registered at the Land Registry by Memorial No. YL611797) to assign the Lands unto the Defendant”.

“The Defendant therefore is and was at all material times holding the Lands on trust for the benefit of the Plaintiff in managing, letting out, collecting rent and payment of rates, government rent and property tax”.

(3)  In support of his case, the plaintiff refers to the following matters:

(a)  The defendant did take legal action[2] against the tenant, CWF Piling & Civil Engineering Company Limited (“CWF”). The action was eventually settled on terms approved by the plaintiff, with a fresh tenancy agreement made with CWF for two years effective from 1 January 1996.  The legal costs of solicitors acting for the defendant in that action as well as costs and disbursements relating to the new tenancy were paid by the plaintiff.

(b)  Rental income from the Lands was paid by the defendant to the plaintiff from time to time until about 2003, when such payment stopped.

(c)  Property tax and other costs and expenses in relation to the Lands were reported by the defendant to the plaintiff, who would reimburse the defendant for such payments.

(d)  Two Chinese Notes dated 15 April 1996 and 14 July 1997 signed by the defendant (see [8] and [10] below).

7.  The defendant denies that he has been or is holding the Lands on trust for the plaintiff, and his pleaded case is as follows:

(1)  The Lands were assigned by Madam Chan as the attorney of the plaintiff by way of the Assignment for the consideration of HK$450,000. The plaintiff acknowledged receipt of the consideration in the Assignment. The defendant has since the Assignment been the legal and beneficial owner of the Lands.

(2)  The defendant agrees that there were troubles with the tenant and occupiers of the Lands and that the plaintiff stayed in Australia most of the time. In around mid-1994, the plaintiff told him that he was in financial difficulty and needed money urgently. He was also about to emigrate to Australia.  Therefore, the plaintiff asked the defendant to purchase the Lands for HK$450,000. 

(3)  The defendant agreed to purchase the Lands and gave the plaintiff the option that he could buy back the Lands within a short period of time not exceeding three years at a price of not less than HK$450,000 (“the Option”). If the plaintiff did not exercise the Option, the defendant would deal with the Lands at his own discretion as the legal and beneficial owner.

(4)  The plaintiff and the defendant also verbally agreed that if the defendant could solicit CWF (which was occupying the Lands without payment) to enter into a tenancy agreement with the defendant, the rental income for the next two years would be paid to the plaintiff.

(5)  The defendant did commence legal action against CWF.  As the defendant had agreed with the plaintiff that the rental income generated by the tenancy agreement with CWF would be given to the plaintiff, he informed the plaintiff of the progress of the action and the plaintiff agreed to pay the legal costs, and that was also why the settlement terms were agreed in consultation with the plaintiff.

(6)  The plaintiff migrated to Australia in 1994 and Madam Chan was without support.  The defendant gave her (who was his mother in law) pocket money from time to time with no fixed amount, which was deposited into a bank account in the joint names of the plaintiff and Madam Chan (which was the only bank account of Madam Chan known to the defendant) (“the Joint Account”), until 1998 when Madam Chan was granted Comprehensive Social Security Assistance (“CSSA”) by the Government.

(7)  As for the Note dated 15 April 1996, in 1996 the defendant had admitted to the Planning Department in respect of legal liability for breach of conditions for the Lands.  Fearing that he might incur further legal liabilities, he made several attempts to contact the plaintiff asking the latter to exercise the Option, but received no positive feedback.  The defendant then made the said Note to put on record that the plaintiff should contact him to exercise the Option.

(8)  The defendant made another Chinese Note dated 2 June 1996 (see [9] below) reminding the plaintiff that should he fail to exercise the Option by 31 December 1996, the Option would lapse and any documents signed between them would be voided.

(9)  The defendant does not admit that there was a Note dated 14 July 1997.

(10)  As the plaintiff did not exercise the Option, since about 1998 the defendant had been dealing with the Lands according to his own decisions and at his own expense.

(11)  The monies paid into the Joint Account in 1996 and 1997 were for the living and medical expenses of Madam Chan, whom the defendant continued to support until 1998 when she obtained CSSA.

8.  The Note dated 15 April 1996 and signed by the defendant reads as follows:

“元朗新田2581-2582地段, 由1996年四月壹日起, 我陳袁炳暫時代葉少华管理和收租, 租金每月, 貳萬元(港元) 除政府稅收外, 全囑葉少华所有.

  以上該地段任何時候都可以轉回葉少华 – 或其家人名下.”

9.  The Note dated 2 June 1996, referred to by the defendant and which the plaintiff denies receiving, reads as follows:

“元朗新田2581-2582地段, 在1996年12 月31号前, 葉 少华 – 或其家人任何一人要回來轉名, 若不轉名, 日後不得追究. 和我簽給葉少华的所有文件作廢.”

10.  The Note dated 14 July 1997 referred to by the plaintiff, which is on a letterhead of “Chan Ping Metal Products Fty” and “陳秉五金製品廠”, a business owned by the defendant, and not admitted by the defendant, reads as follows:

“少华:

  昨晚听完你的电話後, 我細想过, 因我現下生意很難做. 我工廠很可能, 很快要結業, 和將楼也要賣去, 若你新田的地盈是我名下, 我怕日後我無能力代你支付新田地的差响和地租,( 租值5.5%是差响 3.7%是地租) 今年每月約$180 左右, 看來都是交回給你的好. 你想’’ 办法吧.”

B.  DISCUSSION

11.  The defendant was born in 1946 and is now 77 years old.  By Order dated 7 December 2022 made by Mr Recorder Manzoni SC, Chan Siu Cheun (陳兆泉) (“Chan”), who is a son of the defendant, is appointed his guardian ad litem for the purposes of these proceedings.

12.  The plaintiff gives evidence on behalf of himself and calls no other witnesses. Before the appointment of Chan as the guardian ad litem, the defendant filed two witness statements of himself. After the appointment of Chan as the guardian ad litem, on behalf of the defendant, a statement of Madam Yip, and a statement of Chan, were filed.  Chan and Madam Yip give evidence before me.

B1.  The witness statements of the defendant

13.  I shall deal with the statements of the defendant first.

14.  The two statements of the defendant are dated 24 June 2021 and 21 September 2022 respectively.

15.  According to the evidence of Chan, made in support of the application for him to be appointed the guardian ad litem of the defendant:

(1)  During a medical checkup on 14 April 2011, it was discovered that the defendant had had a minor stroke and was diagnosed with inter alia several foci of old lacunar infarcts.

(2)  In early 2015, the defendant was diagnosed with Parkinson’s disease. His physical conditions got worse although, according to Chan, the defendant’s mind was not affected.

(3)  The defendant fainted several times and was admitted to hospital in 2019 and 2021. The cause was unknown.

(4)  Since early 2021, the defendant started to become forgetful and would sometimes forget to flush the toilet, wash his hands or turn off the water tap.  He was also noticed to choke while eating and drinking, and even during his sleep.

(5)  Since mid-2022, the defendant became very quiet and sometimes not responsive, and would sometimes stare into blank space when being talked to.

(6)  During a meeting with the solicitors on 14 November 2022, it was noticed that the defendant could not answer simple questions or give instructions.  This is confirmed by an affidavit of a partner of the firm of solicitors acting for the defendant.

(7)  On 18 November 2022, the defendant was diagnosed with severe dementia.

(8)  Further medical consultations were undertaken. According to one medical report dated 25 November 2022 produced by Chan:

“After the onset of motor symptoms of Parkinson’s disease for 4 years, [the defendant] presented with short-term memory loss in 2016. He started to have difficulties in learning new information. He had difficulty in paying attention with fluctuating cognitions throughout the day. In 2020, he started to have mental slowness which continued to worsen. Since 2021, he has been unable to express himself and understanding others’ speech. He failed to follow instructions. He lost his way in unfamiliar places such that he had to be supervised closely by family members when going out …

According to the report from his wife and son, he suffered from a stepwise worsening in early 2022. Functionally, [the defendant] became dependant in self-cares since 2022 …

[The defendant] was assessed in the presence of [Chan] on 25.11.2022. He walked into the room with stick. On mental state examination, he was calm but inattentive. He was disoriented to time, place, and person. His speech was scanning and scanty in nature. He could not follow simple instructions. His mood was otherwise neutral. His affect was blunted. There was no active psychotic experience, namely hallucinations and delusions. He was not suicidal or aggressive. His cognitive function was tested with Montreal Cognitive Assessment Hong Kong version. He scored 2 out of 30, which was below the cut-off for cognitive disorder in individuals with the same age and educational level.

According to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), [the defendant] was diagnosed to have Major Neurocognitive Disorder, due to multiple etiologies, i.e. Parkinson’s disease and vascular disease. His cognitive function had deteriorated in a gradual manner one year after the onset of motor symptoms of Parkinson’s disease, followed by a stepwise deterioration due to vascular insult demonstrated on his MRI brain imaging. The resulting symptoms impaired his daily functioning such that he is currently dependent in activities of daily living. On medical ground, I am of the opinion that [the defendant] is mentally incapacitated in managing his property and affairs …

[The defendant’s] cognitive function declined significantly since 2021 and further worsened in early 2022. Based on these facts, the present mental incapacity is estimated to be present for approximately one year”.

(9)  Another medical report, also dated 25 November 2022, produced by Chan, says:

“Over the past 2 year, [the defendant] was reported to have gradual deterioration in his cognitive function. He got increasingly forgetful. He forgot to turn off stove and close water tap on multiple occasions. He also forgot to flush the toilet after use. He needed support for changing clothes ad taking baths. Condition further worsened since early 2022. He became less responsive and clumsier in his daily activities. He needed close supervision by his wife regarding his medication taking. He had worsened swallowing and noted to have frequent choking. He needed to be accompanied whenever going outside, to prevent him from getting lost in unfamiliar place. His financial matters were mostly handled by his wife. He travelled to Singapore to visit a close friend of him in early November with his wife, his youngest son and daughter-in-law. He wandered around when he was instructed to wait while his wife and daughter-in-law went to toilet. He was later found but he could not recall what had happened. He lost all the money kept inside a bag that he was asked to carry.

According to the medical notes by [another doctor] on 7.9.2022, Cognitive assessment was performed using The Montreal Cognitive Assessment Hong Kong Version (HK-MoCA). [The defendant] scored 9 out of 30 marks. The result was significantly below the cut-off percentile for major cognitive disorder. [The defendant] was impressed to be suffering from Lewy body dementia …

[The defendant] was seen by the undersigned on 25.11.2022, accompanied by his wife and son. He managed to walk with a stick. He was not able to tell the purpose of the consultation. He was alert and conscious throughout the whole consultation. Yet, he was rather slow in making response. He managed to recognise his wife and son, yet it took him quite some time to recall their names. He got multiple information recalled wrongly when those were cross-checked with his relatives. He could not recall his trip to Singapore few weeks ago. He could not tell if he had any residential or legal matters that he was handling. His cognitive was tested with HK-MoCA (Alternate Version 1). He scored 3 out of 30. The result indicated a further decline from the last assessment performed … on 9.2022. [The defendant] was disoriented to time and place. He performed poorly in recall and calculation.

According to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), [the defendant] was diagnosed to be suffering from Major Neurocognitive Disorder, multiple aetiologies. His cognitive function had gradually deteriorated since 2021 and worsened to a severe degree in early 2022. He is currently dependent mostly on his relatives to handle his daily activities and financial affairs. I am of the opinion that [the defendant] is mentally incapacitated in managing his property and affairs …

[The defendant’s] cognitive function gradually declined since 2021 and worsened to a severe degree in early 2022. The present mental incapacity was estimated to be present for around 1 year”.

16.  On the basis of the above medical evidence, it is beyond any doubt that the defendant did not have the necessary mental capacity to give instructions on, or to understand, or to recall properly, the matters referred to in the second witness statement dated 21 September 2022.  The question is, what about the first one dated 24 June 2021?

17.  Both medical reports dated 25 November 2022 say that the mental incapacity of the defendant to manage his property and affairs had arisen for about one year. If one takes that literally, one can say that the loss of mental capacity took place around the end of 2021, a few months after the making of the first statement. However, short of a specific incident (such as a traffic accident) causing damage, loss of cognitive functions or mental capacity does not happen overnight, but is a gradual process, especially since there is evidence that the defendant’s loss of mental capacity may have something to do with the Parkinson’s disease, with which the defendant was first diagnosed in 2015. Indeed, the evidence of Chan is that since early 2021, the defendant had become forgetful.

18.  I raise my concern on the mental state of the defendant when he made the two statements with Mr Sunny Chan, counsel for the defendant, on the first day of the trial.  After taking instructions, Mr Chan informs me that he is not making any applications (such as adducing evidence on the mental capacity of the defendant as at June 2021) in relation to this issue, but continues to ask me to admit the two statements as hearsay evidence.

19.  In my judgment, Chan has not satisfied me that as at 24 June 2021, the defendant had the necessary mental capacity to give instructions on, or to understand, or to recall properly, the matters which happened many years ago, as referred to in the first witness statement.  That date is too close, in my judgment, to the time (late 2021) when two medical practitioners take the view that by then the defendant had clearly lost the mental capacity in managing his property and affairs.

20.  For the above reasons, even if I admit the two statements, I will not place any weight at all on them, having regard to their unreliability.[3] On this basis, the exclusion of the two statements is not prejudicial to the interests of justice, and I therefore decline to admit them.[4]

21.  However, as will be seen below, whether I admit, or place any weight on, the statements of the defendant does not matter ultimately.

B2.  The state of the pleading

22.  Even though in the Statement of Claim the plaintiff refers to the defendant’s “consent to act” as a trustee of the Lands, and that the defendant has been holding the Lands on trust for the plaintiff ([6(2)] above), and seeks inter alia a declaration to that effect, without specifying the nature of the trust alleged, at the trial Mr Lawrence Law, counsel for the plaintiff, says that the plaintiff’s case is solely that there was and is a resulting trust, by reason of the fact that the consideration of $450,000, which the defendant purported to have paid for the Lands, came from the plaintiff himself. Mr Law confirms expressly that he is not alleging any express or constructive trust.  If I do not find a resulting trust, that is the end of the matter.

23.  The case of resulting trust runs as follows. According to the plaintiff’s evidence, apart from the fact that he stayed in Australia most of the time, he wanted to sever business ties with CWF, the profits of which he had been sharing, and to evict CWF from the Lands. As he did not want CWF to use his business relationship with it as a defence to the possession claim, he wanted the defendant to pretend to be an independent party who had purchased the Lands, so as to take action against CWF.  For that purpose, he asked Madam Chan to withdraw a total of $450,000 in cash from the Joint Account to give to the defendant so that he could pay that sum to Leung Kin & Co (“LK”), the solicitors handling the transaction, for the “purchase” of the Lands. The price of $450,000 was therefore paid by the plaintiff himself, and not by the defendant.

24.  According to the plaintiff, after deducting legal fees and expenses, after completion, LK paid him the balance of $434,825. The plaintiff’s evidence is that LK did not know about the arrangements between him and the defendant: to LK it was a normal sale and purchase for which the $450,000 came from the defendant.

25.  In his opening submissions, after referring to the judgment of Linda Chan J in 陳敏 訴 香敬有[5]on the principles of resulting trust, which is the only authority cited, Mr Law states:

“Applying the legal principle, since it was the Plaintiff who contributed the purchase price of HK$450,000, a resulting trust will be presumed in favour of the Plaintiff unless the contrary is shown; and that the Lands are held by the Defendant in trust for the Plaintiff. Accordingly, the Plaintiff is entitled to the reliefs he claimed in the Statement of Claim”.

26.  In his closing submissions, Mr Law states:

“The real issue of the present action is whether the Court believes that the purchase price and other expenses were paid by the Plaintiff, not by the Defendant”.

27.  It seems to me odd that, on the plaintiff’s own case as presented now before me, it is said that it was he who paid the price for the purchase of his own property. It would appear that the more correct description is that the Lands were conveyed to the defendant with no payment or consideration from him as a matter of fact and substance despite the form of a sale and the acknowledgement of receipt of payment of the price in the Assignment.  However, in such a case, a rebuttable presumption of resulting trust also arises.[6] But no matter how one describes the arrangement, the material fact alleged to found the case of resulting trust is that it was the plaintiff who (via Madam Chan) provided the sum of $450,000 to the defendant for completing the transaction.

28.  A fundamental objection to the plaintiff’s current sole case of resulting trust is the state of his pleadings.  As Mr Chan submits, the plaintiff has not made clear expressly in the Statement of Claim what kind of trust he is alleging to exist.  Further, Mr Chan submits that, as the plaintiff’s case is premised upon express discussion, it is a fundamental misapplication of the law for him to rely on resulting trust.  In his closing submissions, Mr Chan maintains his pleading objections, and submits that the pleaded case lacks particulars as to the basis of the trust, either as a resulting and/or constructive trust. 

29.  The allegation in the Statement of Claim is that the defendant has been holding the Lands on “trust” for the plaintiff, without stating what kind of trust the plaintiff is alleging. One may argue that such a reference is in itself in principle capable of encompassing any kind of trust known in equity, including a resulting trust.

30.  The traditional view is that one only has to plead material facts and not the legal result.[7] However, a failure to make clear what type of trust is relied upon with the result that the party’s case is not made known in as full an extent as possible may well render the pleading defective. In Choi Yuk Ying v Ng Ngok Chuen,[8] an application to amend the statement of claim to plead a constructive trust (i.e. a legal result) based on the same facts already alleged in the statement of claim was refused by the trial judge.  In dismissing the appeal, Yuen JA[9] said:

“One of the purposes of having unambiguous pleadings is to let the court know the issues thrown up by the parties’ respective cases in as full an extent as possible. This not only assists in the listing of cases by providing an accurate estimate of the time required for the hearing. It is also essential for judges who now have to read extensively into the case before trial so as to reduce sitting time and hence save parties’ costs. In the present case, if the judge had allowed the amendment, NC’s team would have had to consider possible defences to constructive trust, take instructions and possibly call evidence on e.g. the issue of unconscionability. In my view, she was clearly right to reject the application”.

31.  Mr Chan also refers me to Beijing Hantong Yuzhi Convention Centre Ltd v Lao Yuan Yi,[10] in which a “trust” was pleaded without specifying whether the trust alleged was an express trust, implied trust, resulting trust or constructive trust, and the pleading did not indicate which of the facts pleaded were said to have given rise to the creation of a trust and which type of trust. Yuen JA[11] emphasised that it is of little assistance simply to say a “trust”, without analysis of inter alia of the type of trust, and the date and manner of its creation. The facts in support of a resulting trust (if alleged) must therefore be pleaded clearly and unambiguously.

32.  As stated by Mr Recorder Kotewall SC in Re Superyield Holdings Ltd:[12]

“Where there is evidence of actual intention upon which the court may act and where the intention proved is not consistent with the legal title, the court gives redress, no longer under a resulting trust, in my view, but under a common intention constructive trust or an equitable proprietary estoppel”.

33.  Thus, where:

“both parties allege that there was express discussion and actual intention as to where the beneficial interest in the Property should lie, there is little scope for the operation of resulting trust”.[13]

34.  In the Statement of Claim here, the plaintiff does refer to an express agreement and consent by the defendant to act as the trustee, which is the only basis of the claim for a trust.  It does appear to me that, on a fair reading of these passages together, the pleaded claim is one of express trust or common intention constructive trust, and is inconsistent with a claim of resulting trust.  On the pleaded case of express agreement and consent, as submitted by Mr Chan, the resulting trust claim does not run.  In the premises, it appears to me that on the pleadings, fairly read, it is a case of me deciding on the actual intention regarding the beneficial interest in the Lands, on which both parties have a factual case and evidence, and to decide whose case is to be accepted, bearing in mind that the burden is on the plaintiff to show that the defendant, being the registered owner of the Lands, has been holding them on trust for him absolutely.[14] There is no scope for finding any resulting trust based on any presumed intention. However, a case on express trust or common intention constructive trust is expressly disavowed by the plaintiff.

35.  In my judgment, therefore, the Statement of Claim has not properly raised a case of a resulting trust. Rather, it appears to me that, on the facts and circumstances pleaded, as I put it to Mr Law during opening submissions, a claim of common intention constructive trust, as suggested by Mr Chan, seems to be the appropriate claim. However, the plaintiff is not pursuing that.

36.  The foregoing is sufficient to dispose of the plaintiff’s case on resulting trust. But I would point out another problem to the plaintiff’s case on resulting trust, which is that the material fact now relied upon (namely that the $450,000 in fact was his own money, which he provided to the defendant via Madam Chan, only for it to go back to him after deducting costs and disbursements after completion) for the case of resulting trust is not pleaded at all. As submitted by Mr Chan, the entire premise of the claim for a trust by the plaintiff is upon express discussion, and not on payment.

37.  The Statement of Claim does not mention the $450,000 in any context. The importance of pleading clearly the material facts now relied upon to found the case of resulting trust hardly needs to be emphasised.[15]

38.  I do not see how the claim for a resulting trust, which is the only case now relied upon by the plaintiff, can be pursued in the absence of any pleading of that material fact.  Resulting trust is a presumption as to where the beneficial interest is intended to lie, which can be easily rebutted by evidence of the actual intention of the transferor.[16]  Such assumption can only arise in the appropriate factual circumstances.  Such factual circumstances must be material facts that have to be pleaded in support.

39.  The failure to plead a material fact cannot be addressed by adducing the same in evidence.[17]

40.  The mere fact that a party does not object as such, or allege unfairness, if an unpleaded case is being run at the trial does not justify the allowance thereof. Such arguments were rejected in Sinoearn International Ltd v Hyundai-CCECC Joint Venture,[18] where Ribeiro PJ[19] said:

“Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly”.

41.  At the trial, I have not sought to exclude the evidence, or cross-examination, on the question of the $450,000 which the plaintiff alleges came from the Joint Account, as such evidence may be relevant to the issue of what was expressly agreed by the plaintiff and the defendant, which may still be open to the plaintiff at that stage.  In my judgment, however, it is wholly different if I allow the plaintiff to pursue a case of resulting trust based entirely on such fact which is material, indeed fundamental, to such a case, when it is not pleaded at all.  

C.  DISPOSITION

42.  For the above reasons, the plaintiff’s case on resulting trust, which is the only case now being pursued, must be dismissed. It is not necessary for me to consider, or to make findings on, any matters pertaining to the case of resulting trust, and I do not. Indeed, to do so is to contradict the importance of, and to go beyond, the pleadings as stated above.

43.  I dismiss the plaintiff’s action with an order that the costs of this action (including all reserved costs, if any) be paid by the plaintiff to the defendant, to be taxed if not agreed.

44.  I thank counsel for their assistance.