KONG SHUI MAN v. TANG CHI LUEN

DCCJ 2336/2022

[2024] HKDC 1715

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2336 OF 2022

---------------------------------------

BETWEEN

---------------------------------------

-------------------------

JUDGMENT

-------------------------

Introduction

1.  This is a dispute about the beneficial ownership of the following properties:-

(1) a residential flat in Savannah, No 3 Chi Shin Street, Tseung Kwan O, New Territories (the “Property”) registered in the sole name of the defendant; and

(2) the funds paid out of a bank account (the “SCB Joint Account”) with Standard Chartered Bank (Hong Kong) Limited (“SCB”) in the joint names of the plaintiff and the defendant.

The undisputed background

2.  The parties began a romantic relationship in about 2009 when they were both studying at the same university.

3.  In July 2015, the plaintiff and the defendant placed ballot application(s) for purchase of a unit in an uncompleted building project known as “Heya Crystal” in Cheung Sha Wan, Hong Kong. Although the total number of ballots placed is in dispute, it is common ground that:-

(1) one ballot application was placed in the joint names of the plaintiff and the defendant; and

(2) the said application(s) were unsuccessful.

4.  In or about May 2016, the parties again entered ballot applications for a flat in another development known as the “Savannah”. The ballot application entered in the sole name of the defendant was successful and he was thereby entitled to purchase a flat there.

5.  Exercising the said subscription right, the Property was purchased in the name of the defendant pursuant to a Sale and Purchase Agreement dated 20 May 2016 for the price of HK$5,225,000.

6.  The purchase of the Property was financed by the following:-

(1) a mortgage loan (“SCB Mortgage Loan”) in the sum of HK$3,135,000 (being 60% of the purchase price) granted by SCB whereby the plaintiff and the defendant were named as borrowers in the mortgages[1]; and

(2) a loan of HK$1,200,000 (“Father’s Loan”) from the defendant’s father (the “Father”); and

(3) the remaining amount by down-payments in the total sum of HK$890,000 (the “Down-payments”).

7.  The SCB Joint Account was opened on 4 August 2016. Payments of the monthly instalments of the SCB Mortgage Loan (at slightly less than $12,000 per month) were made out of the SCB Joint Account. The defendant also arranged for his monthly salary income to be paid to the SCB Joint Account.

8.  In about late September to October 2017, there was a quarrel between the parties upon the plaintiff’s discovery of the defendant’s relationship with another female. Subsequently, the parties reconciliated and continued their relationship.

9.  The defendant proposed to the plaintiff and the parties became engaged during a trip to France in August 2018.

10.  After construction of the “Savannah” was completed, the Property was conveyed to the defendant as the sole registered owner on 5 March 2018 and the renovation of the Property was completed in about July 2019.

11.  Thereafter, the parties’ relationship deteriorated and eventually culminated in a breakup in late December 2019. The defendant excluded the plaintiff from the Property from about 29 December 2019. On or about 8 January 2020, the defendant obtained a new mortgage loan in his sole name from the Bank of China (“BOC”) in place of the SCB Mortgage Loan.

Overview of the parties’ respective contentions

12.  The present action was commenced by the plaintiff on 27 February 2020[2] whereby the plaintiff claimed that from the latter half of 2015 and up to about October 2016, through various discussions, an oral agreement was formed between the parties (the “Oral Agreement”) that (amongst others):-

(1) The parties would acquire a flat (which was later said to be the Property) as their residence and matrimonial home;

(i) the parties would each own 50% interest in the Property notwithstanding that the Property would be conveyed to the sole name of the defendant; and

(ii) the purchase of the Property would be partially financed by the SCB Mortgage Loan.

(iii) In reliance of the Oral Agreement, the plaintiff contributed to the purchase price, legal and other incidental costs, and expenses incurred towards the renovation of the Property.

(2) Based on the above, the defendant held the Property on a common intention constructive trust for the parties in equal shares or in such proportion as the Court deems fit.[3]

13.  The defendant denied the existence of the Oral Agreement. He also averred that the Down-payments and the legal and incidental costs were paid using his own funds which were in turn partially sourced from loans obtained by the defendant from the plaintiff.

14.  The defendant further counterclaimed as follows:-

(1) There was an agreement and/or common intention (“SCB Account Agreement”) between the parties that the parties would pool their contributions in the SCB Joint Account for certain alleged agreed purposes.

(2) There were express or implied terms under the SCB Account Agreement that:-

(i) the funds deposited into the SCB Joint Account shall be only used for such agreed purposes; and

(ii) if the relationship between the parties irretrievably broke down, the plaintiff and the defendant would each be entitled to recover funds from the SCB Joint Account according to their respective contributions after taking into account all permissible payments out of or withdrawals from the SCB Joint Account.

(3) The plaintiff had misappropriated various funds from the SCB Joint Account from time to time in breach of the SCB Account Agreement. The plaintiff therefore holds such funds on trust for the defendant.

The defendant’s application to adduce supplemental witness statements

15.  By a summons dated 30 January 2024, the defendant sought leave to adduce (i) his second supplemental witness statement; and (ii) a witness statement of the Father (the “New Evidence Application”). On the first day of trial, after hearing from counsel, I gave leave to adduce the defendant’s second supplemental witness statement and the portion of the plaintiff’s second supplemental witness statement in reply thereto with costs reserved.

The plaintiff’s claim in respect of the Property

16.  The plaintiff’s claim for a beneficial interest in the Property is based on common intention constructive trust.

17.  There is no serious dispute over the relevant legal principles as summarised by Deputy High Court Judge Alexander Stock SC in Leung Hang Lin v Lam Mei Yung [2019] HKCFI 2819 at §7:-

“(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership…

(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom…

(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct…

(4) The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference…

(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts. The court is not constrained to consider only pure direct monetary contributions to the purchase price. In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters…”

Whether there was any Oral Agreement

18.  The crucial issue in this case is whether the plaintiff is able to discharge the requisite burden of proof to satisfy the court as to the existence of the Oral Agreement.

19.  As the determination of this issue would largely depend on the credibility of the witnesses (ie the plaintiff and the defendant), I am guided by the following principles summarised by Deputy High Court Judge Eugene Fung SC (as he then was) in Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009 (unreported, 8 April 2014) at §§77-83:-

(1) Contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility.

(2) In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events.

(3) In determining a witness’ credibility, importance should also be attached to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

(4) The court should exercise caution in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses or from the assessment of the witnesses’ character.

(5) The veracity of witnesses are to be tested by reference to the objective facts proved independently of their testimony, in particular by reference to the documents, and also to their motives and to the overall probabilities.

20.  Factors which may affect the evaluation of a witness’s evidence include evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure, see: Painter v Hutchinson [2007] EWHC 758 (Ch) at §3 per Lewison J (as he then was), as recently cited by Cheng J in Cheung Hon Kin v Chubb Life Insurance Company Ltd [2024] HKCFI 1313 at §82.

Analysis

The plaintiff’s involvement in the property hunting exercise

21.  The parties’ evidence as to the plaintiff’s involvement and interest in the acquisition of a residential property from 2015 to 2016 is diametrically opposite:-

(1) The plaintiff claimed that both parties were interested in the acquisition of a residential property as their future matrimonial home and both parties were involved in the search for a suitable property since about mid-2015[4].

(2) This is denied by the defendant who claimed that:-

(i) all along the plaintiff had no intention to buy any property; and

(ii) it was the defendant who took the initiative to look for a property and that all along during the process of property hunting, he was accompanied by his own family members without any “material participation” by the plaintiff except to lend her name for the ballot applications[5].

22.  On the whole, I am satisfied that the plaintiff’s factual account in this regard is credible and supported by contemporaneous documents:-

(1) Notwithstanding the understandable lapse of memory due to the passage of time, the plaintiff was able to provide a reasonably detailed and generally coherent account of her involvement in the overall property searching exercise including her dealings with Mr David Tsai, a property agent.

(2) The plaintiff’s account is also consistent with the contemporaneous communication between the parties from May 2016[6] onwards which show her involvement in the purchase of the Property:-

(i) Both before and after the unit selection day on 14 May 2016[7], it was actually the plaintiff who sent to the defendant multiple messages containing hyperlinks to media reports on the upcoming sale of units in Savannah.

(ii) On 13 May 2016 and before she was notified by the defendant of the successful ballot, the plaintiff chased the defendant (at about 5:47 pm) about the result of the ballot draw for Savannah. Less than an hour later, the defendant sent a WhatsApp message to the plaintiff asking her to respond immediately (“覆我！ Now！！！”) as they would pick a flat the next day (ie 14 May 2016) (“聽日頭籌呀”). The plaintiff also sent another message to the defendant shortly thereafter stating that she obtained information from the property agent.

(iii) After selecting the Property on 14 May 2016, there were also various messages between the parties discussing the purchase which shows that the plaintiff was playing an active role concerning the purchase of the Property and also the funding of the purchase[8].

23.  On the other hand, I find the defendant’s evidence in this regard to be unsatisfactory.

24.  In my view, the defendant’s account as to his plans to purchase a residential property has materially shifted in the course of these proceedings:-

(1) In his first witness statement dated 8 December 2021, the defendant’s position was that since 2015, he was keen to purchase a property for himself. On the two occasions in respect of Heya Crystal and Savannah, he procured multiple ballot applications to be made with a view of increasing his chance of success. With respect to each occasion, he expressed in no uncertain terms a serious intention to complete the purchase so that the defendant would become the owner of the property[9]:-

“No matter which of my applications would be selected, the property to be purchased would be intended to be my own property” (emphasis added).

(2) Yet, in his second supplemental witness statement which was first produced in draft form in the New Evidence Application made on 30 January 2024, it was alleged for the first time that in fact he had no real immediate plans to purchase a property in about 2015 and he only put in a ballot for Heya Crystal with a view to learn about the process of purchasing a property. The defendant also claimed that he did not give serious thoughts as to how to deal with the situation if the ballots placed in the plaintiff’s name or in the parties’ joint names were successful.

(3) In the beginning of his oral evidence, he revised his first witness statement[10] where he further changed his position that he merely wanted to “experience” the purchase of a property (“體驗買樓”) with no immediate plans of purchase not just in respect of Heya Crystal in 2015 but also at the time when he viewed the sample flats of Savannah in about May 2016. The explanation given by the defendant in his oral evidence was that his first witness statement was written in English and did not accurately reflect his instructions which was given in Chinese at the time.

(4) In cross-examination, the defendant further elaborated as follows:-

(i) When he was taken to the part of his first witness statement[11] regarding the ballot applications placed for Heya Crystal in 2015, the defendant also claimed for the first time that he was told by the plaintiff at the time that she had no money and hence she was not interested in buying a property.

(ii) In what the defendant described as a “rash” (“衝動") decision, he changed his mind and made a firm decision to purchase at the flat selection stage[12] after having been notified of his successful ballot application. He was also motivated by words of encouragement from the Father that he would give financial support to the defendant.

(iii) In addition to the above, the defendant also accepted in cross-examination that the plaintiff had in fact accompanied him in the flat hunting exercise for Heya Crystal, a fact which was omitted in his witness statements.

25.  I am also unable to find any indicia in the contemporaneous WhatsApp messages between the parties that (i) the defendant was merely exploring the prospect of purchasing a property; or (ii) the purchase of the Property was a sudden decision of the defendant made on the spur of the moment on 14 May 2016. On the other hand, on a plain reading of the WhatsApp messages referred to in §22(2)(ii) above, the defendant was clearly excited when he broke the news of his successful ballot application to the plaintiff on 13 May 2016. In my view, this supports the plaintiff’s case that she and the defendant already had concrete plans to purchase a property at the time.

26.  Regrettably, I am not convinced by the defendant’s explanation for his change of stance:-

(1) Despite now claiming that the initial purpose of entering the ballot applications on the two occasions was to experience and understand the process of purchasing a property, the defendant repeatedly said in cross-examination that he had not read the sales documentation. From his oral evidence, it is also obvious to me that on both occasions, not only was the defendant unfamiliar with the ballot application process, he also had little interest at the time to read the relevant documents. This is hardly consistent with his position that he wished to learn more about purchasing a property.

(2) I also do not accept his explanation that it was due to a misinterpretation or misunderstanding of his instructions by his legal team:-

(i) The defendant graduated from university with an economics and finance degree taught in English.

(ii) With the benefit of perusing the voluminous WhatsApp messages exchanged between the parties on an almost day-to-day basis throughout the years (many of which are in English), I have no doubt that the defendant is sufficiently proficient in English to comprehend the relevant parts of his first witness statement as they were written in simple English.

(iii) Therefore, I have no reason to doubt the veracity of the relevant translation certificate which certifies that the statement was translated to him and that the defendant understood and approved of its contents.

(3) In my view, it is incredible that the defendant would suddenly make a decision to take on a heavy financial burden to purchase the Property without giving any serious consideration as to how to fund the purchase:-

(i) Based on his education background and oral evidence, it is obvious to me that the defendant is financially literate. This is reflected by the fact that he took responsibility for compiling the Excel calculations detailing how the purchase of the Property was to be funded.

(ii) The defendant had limited savings and an unstable income at the time so he had difficulty obtaining a mortgage as his income was not sufficient to pass the stress test. Even the preliminary deposit of $100,000 (which were roughly equivalent to a few months’ of his salary at the time) were by no means a small sum for him.

(iii) The Father was of modest means[13]. The defendant also admitted in oral evidence that up to that point there was no discussion between him and the Father as to how much financial support the Father was able to provide[14].

27.  In my view, the defendant’s most recent narrative of a sudden decision to purchase the Property in May 2016 appears to be an attempt to undermine the plaintiff’s case that the common intention to purchase a matrimonial home was formed in as early as the second half of 2015[15].

28.  The defendant’s attempt to portray the plaintiff’s lack of interest in the matter also appears to me to be somewhat unlikely given the parties’ relationship even if one assumes in favour of the defendant that the purchase was made solely by the defendant and the plaintiff had no interest in acquiring any property for herself:-

(1) The plaintiff had always taken an interest in the financial affairs of the defendant. As accepted by the defendant, the plaintiff had a strong personality with a high sensitivity to financial matters and would encourage him to accumulate his savings.

(2) From 2016 up to the end of their relationship in December 2019, the parties frequently communicated via WhatsApp messages. With the benefit of perusing these messages, my general impression is that the parties would not shy away from sharing their thoughts and feelings on various day-to-day matters including their career and planning for their future.

(3) The purchase of a residential property at the time was obviously an important decision to the defendant given the heavy financial commitment involved.

29.  Hence, I am satisfied that the plaintiff was actively involved in the property hunting exercise since about mid-2015 up to and including the time when the decision was made to purchase the Property in May 2016.

Ballot applications placed for Heya Crystal and Savannah

30.  It is undisputed that on both occasions (ie in respect of Heya Crystal and Savannah), ballot applications were entered in the name of the plaintiff (either in her sole name or in joint names with the defendant). However, the parties differ as to the number of ballot applications made on each occasion:-

(1) On the plaintiff’s case[16]:-

(i) only one ballot application in the joint names of the plaintiff and the defendant was entered for Heya Crystal; and

(ii) for Savannah, the parties each entered two ballot applications in their respective sole names.

(2) On the defendant’s case, for both Heya Crystal and Savannah, 3 ballots applications (ie one each in the respective sole names of the plaintiff and the defendant and one in the joint names of both) were entered on the advice of his property agent[17].

31.  The defendant’s case that he submitted 3 ballot applications for Heya Crystal is contradicted by the relevant terms of sales as set out in the “Information on Sales Arrangements” document for Heya Crystal which provides that only one application was allowed for each applicant including joint applicants. When confronted with the point in cross-examination, the defendant claimed that he was simply following his real estate agent’s advice. In the circumstances, I reject his explanation:-

(1) It is likely that multiple ballots entered by the same person would simply be rejected in accordance with the relevant terms of sales.

(2) It is inherently unlikely that a property agent (who would naturally be motivated to facilitate a successful sale with a view to earn his commission) would advise the defendant to enter multiple ballot applications in contravention of the terms of the sale, which would likely result in a rejection of his ballots.

32.  Similarly, in relation to the ballot applications placed for Savannah:-

(1) The “Information on Sales Arrangements” document for Savannah provides that each individual registrant[18] may submit up to a maximum of two applications per person (whether in his/her own name or in joint names with another).

(2) As the defendant claims that he would like to maximise his chances of getting his ballot picked[19], there was no reason not to put in only 3 ballots instead of the maximum permissible number of four ballots.

(3) Again, I do not accept the defendant’s evidence that the property agent had advised the defendant that between the plaintiff and the defendant, they could only at most submit 3 ballots only.

33.  In the circumstances, I prefer the evidence of the plaintiff to that of the defendant. My finding that only one ballot application was entered for Heya Crystal in the joint names of the plaintiff and the defendant is consistent with the plaintiff’s case that the parties had already reached an agreement by then to acquire a matrimonial home to be co-owned by them[20]. It also contradicts the defendant’s case that he was the sole party interested in purchasing a property at the time because if that was indeed the case, he could have simply chosen to put in a ballot in his own sole name.

Purpose of acquiring the Property

34.  The purpose of purchasing the Property is disputed by the parties. On the plaintiff’s case, the Property was intended to be a matrimonial home. This is denied by the defendant.

35.  I accept the plaintiff’s contention that the Property was intended by the parties at the time of purchase to be a matrimonial home:-

(1) By the time of the purchase of the Property in 2016, the parties were already in a close romantic relationship for a lengthy period of about 7 years. Even on the defendant’s evidence, parties were already in contemplation of marriage (although he denied there being any concrete plans). In the circumstances, it is not unlikely that the parties would have at least contemplated and discussed the potential purchase of a matrimonial home.

(2) The plaintiff’s case is also consistent with contemporaneous documents. In an applicant’s declaration ( “申請人聲明”) to SCB dated 3 June 2016 and signed by the plaintiff for the purpose of applying for the SCB Mortgage Loan, it was indicated by the plaintiff that the Property was intended by her to be for self-use (“自住”).

36.  For completeness, although there is no clear evidence of actual cohabitation of the Property by the parties, I do not consider this factor to be material as the Property only became ready for habitation in about mid-2019, about 3 years after the initial acquisition of the Property. Soon thereafter, the parties’ relationship deteriorated and they eventually broke up in December 2019.

Reason for not adding the plaintiff as a registered owner of the Property

37.  Whether there were any circumstances to explain why the Property was purchased in the sole name of the defendant is plainly a relevant circumstance the court should consider in considering whether there was any common intention that the beneficial ownership of the Property should differ from legal ownership, see: Tang Hin Fai Chris v Tang Hin Lung [2023] HKCFI 2637 at §94(d) per Deputy High Court Judge Suen SC.

38.  In this regard, I accept the plaintiff’s evidence that there was a valid reason for not adding her name as a registered owner at the time of purchase. As there was an express restriction imposed by the developer in the “Sales Information on Sales Arrangement” document of Savannah that only “close family members” of the successful registrant (namely, a spouse, parent, child or sibling) could be added as co-owner, the plaintiff could not be added as a registered owner. I also accept her evidence that due to her love and affection for the defendant at the time, she did not subsequently demand the defendant to confirm her share of the ownership of the Property in writing or insist on transferring the legal title to her.

Parties’ financial contribution to the Down-payments and associated costs

39.  As shown in the relevant bank transfer records and not disputed by the parties:-

(1) The plaintiff paid a total sum of $100,000 in two equal instalments of $50,000 each to the real estate agent on 8 and 14 August 2016 respectively for the purpose of settling the preliminary deposit for the purchase of the Property.

(2) On 6 August 2016, the plaintiff transferred $433,000[21] to the defendant. The said sum was ultimately used for payment towards or in connection with the purchase of the Property.

40.  The plaintiff’s case is that the above payments represented her contribution to the Down-payments and incidental costs of the purchase[22]. On the other hand, the defendant’s case is that the Down-payments and the incidental costs were solely paid by him, with the sum of $433,000 being a loan advanced by the plaintiff to the defendant[23].

$100,000 deposit

41.  Remarkably, unlike the sum of $433,000, there is no specific plea by the defendant in respect of the $100,000 paid by the plaintiff to the real estate agent as preliminary deposit. There is also no mention of the $100,000 sum in any of the defendant’s witness statements, including his most recent second supplemental witness statement, notwithstanding the fact that these payments were already specifically relied upon by the plaintiff as her contribution to the purchase price in her first witness statement dated 28 December 2021.

42.  It was only during cross-examination that the defendant alleged, for the first time, that the $100,000 sum was paid by the plaintiff on behalf of the defendant and it was treated as a loan from the defendant to the plaintiff.

43.  On this issue, I prefer the evidence of the plaintiff:-

(1) During the plaintiff’s cross-examination, she was taken to WhatsApp messages which apparently showed that she was asking the defendant to repay $50,000 to her. Her explanation was that:-

(i) As part of her job at the BOC to promote its services, she would have to set up standing instructions for account transfers to achieve her sales targets. This involved transferring a sum of $50,000 to the defendant’s account with the BOC and then the same sum would be repaid to the plaintiff subsequently (the “SI Arrangement”).

(ii) Hence, the messages in which she asked for repayment were not related to the $100,000 sum paid by the plaintiff to the property agent.

(2) I am of the view that the plaintiff’s explanation is credible given that:-

(i) the existence of the SI Arrangement was in fact admitted by the defendant in cross-examination; and

(ii) in a message from the plaintiff to the defendant on 17 May 2016 (ie after the payment of HK$100,000 to the property agent), she expressly referred to making a further payment of $50,000 to the defendant by autopay in relation to the SI Arrangement:-

“Remind me autopay hkd50000 to [you] tonight

SI will happen tonight 12am”

(3) In my view, there is insufficient evidence to show that the $100,000 was a loan from the plaintiff to the defendant:-

(i) There is no contemporaneous document which suggests that the sum was a loan.

(ii) In his oral evidence, the defendant was unable to explain why he did not raise earlier the allegation that the $100,000 sum was treated as a loan by the plaintiff.

(iii) There is also an absence of written corroborating evidence showing any repayment of the alleged loan. When the point was put to the defendant in cross-examination, he claimed that while he was aware of the need to obtain records of his Citibank account (where he alleged the repayment was made from), he was unable to do so because Citibank could not provide the said records due to lapse of time. Again, there is a lack of written evidence of (a) any such request being made (whether by the defendant or his solicitors); or (b) the bank’s reply. This stands in stark contrast to the extensive disclosure of bank records he was able to provide with respect to his other bank accounts and the correspondence showing the attempts made to retrieve such records.

$433,000 payment

44.  The primary contemporaneous written evidence which refers to the $433,000 sum are screenshots of an Excel table prepared by the defendant in July and August 2016 which were sent through WhatsApp. However, the screenshots are not particularly instructive in discerning the nature of the $433,000 payment:-

(1) First, the screenshots are incomplete as they only show a small part of the Excel table.

(2) Second, the part of the Excel table shown in the screenshots does not expressly indicate whether the $433,000 sum was a loan or payment from the plaintiff. The said sum was simply set out alongside the Father’s Loan and the defendant’s contribution as sources of funding for the purchase without any distinction as to the nature of the payments.

45.  Therefore, the determination of the purpose of the payment depends on the credibility of the witnesses. In this regard, I prefer the evidence of the plaintiff:-

(1) The suggestion that the plaintiff advanced a loan of about $500,000 towards the purchase of the Property was not raised by the defendant until 15 January 2020 after the parties’ relationship had irretrievably broken down.

(2) In his second supplemental witness statement, the defendant described the plaintiff as a calculating person who is sensitive to numbers and personal finance and a “control freak” (“她對數字及個人財務是非常敏感及計較的人。她也是一個控制狂”). On this basis, it would be out of character for the plaintiff to provide an interest-free loan of such a significant amount[24] with no definite repayment schedule especially when the defendant claimed that she had no interest in property purchase whatsoever and (according to the defendant) not long ago claimed that she had no money when asked whether she was interested in buying a property[25].

(3) There is no contemporaneous documentary evidence or communication which shows that the $433,000 was intended to be a loan. There is also no written record which indicates any repayment of the alleged loan.

(4) It is the defendant’s case that the alleged loan was repaid from the SCB Joint Account[26]. Yet, as admitted by him in cross-examination, there were never any accounting exercise or calculations being done to account for the funds paid to and out of the SCB Joint Account.

(5) In the circumstances, I find that the more plausible explanation is that the $433,000 sum was paid by the plaintiff because she intended to have a beneficial share in the Property.

Application for the SCB Mortgage Loan

46.  It is not disputed that, in order to obtain the SCB Mortgage Loan to fund the purchase of the Property, the plaintiff was named a “Borrower” alongside the defendant under the Mortgages. Under the terms of the Mortgages, both the plaintiff and defendants were liable to repay all “Secured Indebtedness” to SCB which included the SCB Mortgage Loan and all accruing interest on a joint and several basis[27].

47.  It is not disputed that:-

(1) Where a party has taken on joint and several liability to repay a loan which funds the purchase of a property, the party is taken to have contributed half of the loan raised for the purchase, see: Re Superyield Holdings [2000] 2 HKC 90 at 107H per Recorder Kotewall SC.

(2) The plaintiff’s acceptance of liability under the Mortgages is plainly a relevant factor that I can take into account in the holistic exercise to be carried out in ascertaining whether there was any common intention, the weight of which would depend on the circumstances of each particular case.

48.  In this regard, I do not accept the defendant’s evidence that the plaintiff agreed to be named a borrower to allow the defendant to pass the stress test merely as a favour to the defendant. In light of the circumstances, it is inherently unlikely that the plaintiff would have agreed to shoulder such a heavy financial burden solely to assist the defendant in acquiring the Property (especially on the defendant’s case that the plaintiff was not intended to have any beneficial interest in the Property), particularly in the circumstances where:-

(1) the plaintiff herself was not well-off given her monthly salary of about $30,000 to 40,000 at the time; and

(2) irrespective of whether it was in the nature of a loan or an outright contribution, the undisputed fact is that she had already paid substantial sums towards the Down-payments shortly after the decision to purchase the Property was made in May 2016.

49.  In this regard, I would also add that I am not impressed with the defendant’s oral evidence in cross-examination:-

(1) At first, he agreed with counsel’s suggestion that solely on the basis of the mortgage documents executed by the plaintiff as borrower, she would also be liable to repay the SCB Mortgage Loan if there was any default in making the monthly repayments.

(2) Yet, he later claimed that at about the time of the execution of the mortgage documents, he was not aware that the plaintiff would be so liable as he could not recall any such explanation given by the bank staff or his lawyer. He even went so far as to say that there was no duty on the part of the lawyer to give any explanation.

(3) It is improbable that given the background and education of the defendant and his self-proclaimed interest in the property purchase process, he did not know at the time that by agreeing to sign the mortgage documents as a “borrower”, the plaintiff could be held liable under the SCB Mortgage Loan.

(4) His claim of lack of explanation given to him was also inconsistent with the statement on the signature page of the Equitable Mortgage that the document was interpreted to him by a clerk of the solicitors responsible for handling the transaction. When the defendant’s attention was drawn to the signature page, he then admitted that the clerk in fact did go through the terms of the document (which must include those terms on the plaintiff’s liability given that the plaintiff was also present to execute the Equitable Mortgage[28]) with him.

50.  Accordingly, I find that the plaintiff’s execution of the Mortgages to take on liability under the SCB Mortgage Loan was for the purpose of acquiring a beneficial share in the Property, which in turn supports her claim on the Oral Agreement.

SCB Mortgage Loan – Parties’ contribution to repayment

51.  It is not disputed that:-

(1) The SCB Joint Account was set up as the account for making the monthly repayments of the SCB Mortgage Loan.

(2) Shortly after the opening of the SCB Joint Account, the defendant began to use it as his payroll account so that his salary would be paid into the SCB Joint Account.

(3) From April 2017 onwards, the plaintiff began to make monthly deposits of $8,000 to the SCB Joint Account (“P’s Monthly Inbound Payments”). From December 2017 onwards, the P’s Monthly Inbound Payments were reduced to $6,000.

(4) Further, a standing instruction was set up for a sum of $8,000 to be paid monthly from the SCB Joint Account to the defendant’s account at BOC from 1 April 2017 onwards for his personal spending (“Monthly Outbound Payments to D”). From 1 July 2018 onwards, the Monthly Outbound Payments to D were increased to $12,000.

52.  The issue is whether the P’s Monthly Inbound Payments represent her contributions towards repayment of the monthly mortgage repayments.

53.  In his closing submissions, Mr Chiu (acting for the defendant) argued that the P’s Monthly Inbound Payments were in fact for the defendant’s own personal expenses rather than for the mortgage payments.

(1) There was no payment from August 2016 (when the SCB Joint Account was set up) until April 2017 .

(2) The P’s Monthly Inbound Payments were made close to the dates of Monthly Outbound Payments to D.

(3) The plaintiff in fact drew more funds than what she had contributed to the SCB Joint Account.

54.  With respect, I disagree.

55.  In my judgment, the P’s Monthly Inbound Payments did represent her contribution to the monthly mortgage payments and I reject the defendant’s allegation that they were paid for his own personal expenses.

56.  First, the plaintiff’s version is supported by contemporaneous communication. In the WhatsApp exchanges on 6 October 2017, the plaintiff mentioned repeatedly that she had contributed to the repayment of the SCB Mortgage Loan and the defendant did not express any disagreement at the time.

57.  Second, the defendant’s latest position amounts to a remarkable shift from his pleaded case[29] and witness statements[30] in which he claimed that the plaintiff’s contributions to the SCB Joint Account were for the joint expenses of the parties or as “savings for future expenses”. The suggestion that the P’s Monthly Inbound Payments were only made for the defendant’s monthly personal spending first arose in cross-examination of the plaintiff by the defendant’s counsel and was later confirmed by the defendant in his oral evidence[31]. When asked about the discrepancy, the defendant’s answer was evasive and he was unable to offer any convincing explanation.

58.  Third, whilst I do not see any serious doubt on the plaintiff’s evidence, the same cannot be said of the defendant. I am unable to discern any cogent reason for the plaintiff to make the P’s Monthly Inbound Payments to subsidise the defendant’s own personal spending out of her own pocket, and none has been provided by the defendant when the matter was raised in cross-examination. Naturally, the defendant’s personal spending should be funded by his own income (which were paid into the SCB Joint Account). When the matter was raised in cross-examination, the defendant then claimed he did not understand why the plaintiff made the P’s Monthly Inbound Payments and thought that it was merely the plaintiff’s gesture of goodwill (“一個好意”). Such answer simply does not sit well with his portrayal of the plaintiff as having a dominating and calculating personality.

59.  In any event, given the defendant’s admission that he did not understand why the payment arrangements were made, it follows that his evidence on the purpose of the P’s Monthly Inbound Payments is of little probative value.

60.  Fourth, I agree with the submissions of Mr Chan (acting for the plaintiff) that there is a reasonable explanation why P’s Monthly Inbound Payments only began in April 2017 and this in fact supports the plaintiff’s version of their underlying purpose:-

(1) According to the payment schedule of the SCB Mortgage Loan and the bank statements, the first instalment of repayment was made on 12 October 2016.

(2) As corroborated by a credit entry of $31,350[32] to the SCB Joint Account on 13 September 2016 and a WhatsApp message from the plaintiff on 21 July 2016[33], I also accept the plaintiff’s explanation that she did not consider it necessary to make any contribution in the first few months as the monthly mortgage payments would be covered by a cash rebate from SCB.

(3) As shown by the relevant bank records, I am also satisfied that the plaintiff had made payments of $8,000 each on 6 February 2017 and 6 March 2017 respectively to the defendant’s account with BOC as her contribution to the mortgage repayment.

61.  Fifth, I am unable to gain much assistance from the proximity in time between P’s Monthly Inbound Payments and Monthly Outbound Payments to D, as there are various occasions where the amounts of the alleged corresponding payments do not match, for example:-

(1) from January to May 2018, P’s Monthly Inbound Payments were reduced to $6,000 per month but Monthly Outbound Payments to D for the same period remained at $8,000; and

(2) from August 2018 onwards, whilst P’s Monthly Inbound Payments were at $6,000 per month the corresponding Monthly Outbound Payments to D were at $12,000 per month.

62.  Six, even if the plaintiff’s withdrawals from the SCB Joint Account exceeded the aggregate sum of P’s Monthly Inbound Payments, I do not agree that this has any significant bearing on the issue, as the focus of the inquiry is on the purpose of the plaintiff in making P’s Monthly Payments (which would shed light on the existence of the Oral Agreement), whereas the plaintiff’s withdrawals in relation to SCB Joint Account (which may have caused in a net outflow of funds) served different purposes. In the circumstances, I do not see how these withdrawals could have otherwise changed the purpose of P’s Monthly Inbound Payments.

Contemporaneous communication concerning the ownership of the Property and the Oral Agreement

63.  In the course of cross-examination, counsel for both parties have referred extensively to WhatsApp messages where parties were said to have made admissions on the ownership of the Property.

64.  In most cases, I do not find these messages to be particularly illuminating as the parties may have used imprecise language in day-to-day casual chit-chat. However, I give due weight to those sent in the context where the parties’ attention was clearly drawn to the question of ownership.

65.  One such instance is an exchange between the parties on WhatsApp on 24 June 2016[34] when discussing the impact of the Brexit vote on the value of the Property:-

Time	Sender	Message
1:43 pm	Plaintiff	“Oh the result has finalized to leave EU by 52% to 48%”
2:08 pm	Defendant	“正，又黎金融風暴” (Great, another financial crisis is coming)
2:11 pm	Plaintiff	“[Your] flat will be affected”
2:13 pm	Defendant	“Our flat”

66.  As can be seen from above, the defendant was quick to correct the plaintiff’s description of the ownership of the Property. In my view, this is an unequivocal recognition of the plaintiff’s beneficial ownership.

67.  Another such instance took place at the time when the parties were at the verge of breaking up in about late September 2017 after the plaintiff discovered that the defendant had engaged in an amorous relationship with another.

68.  In the Amended Defence and Counterclaim[35], the defendant pleaded that the plaintiff had on multiple occasions requested the defendant to transfer the Property to her, but such requests were “categorically refused by him”. However, this plea is not consistent with contemporaneous WhatsApp exchanges.

69.  On 2 October 2017, the plaintiff requested the defendant to effect transfer of the legal title of the Property to her (“幾時轉名俾我呀咁”).

70.  In response, the defendant asked for time to check the quotations for making the transfer as it could cost about $100,000.

71.  In my view, this is far from a “categorical” refusal of the request but rather a tacit acceptance of the plaintiff’s claim that she was beneficially entitled to part of the Property.

72.  In cross-examination, the defendant claimed that he did not outright reject the plaintiff’s demand because he was trying to pacify the plaintiff who was very angry with him at the time and was putting a lot of financial pressure on him. However, I do not accept his explanation:-

(1) As shown from the contemporaneous WhatsApp messages, the defendant was keen to regain the plaintiff’s trust and repeatedly assured her that he was truthful to her. Therefore, it is likely that the defendant was telling the truth as the time. If the defendant was discovered to have lied on the matter, he ran the risk of further upsetting the plaintiff.

(2) I also do not accept that the defendant was overwhelmed by financial pressure from the defendant:-

(i) He continued to make multiple deposits to the SCB Joint Account[36] (notwithstanding his allegation that it was controlled by the plaintiff).

(ii) His alleged fear of running into default of the SCB Mortgage Loan due to the plaintiff withdrawing the funds in the SCB Joint Account is also exaggerated as he could not give any reasonable explanation for why he did not make arrangements to change his payroll account or to make the monthly mortgage repayments via alternative means.

73.  I have also considered Mr Chiu’s criticism of the plaintiff’s case that there appears to be little (if any) reference to the Oral Agreement in the contemporaneous WhatsApp communication between the parties. In this regard, I bear in mind that, although the parties have communicated extensively using WhatsApp, the messages do not necessarily show the full picture of the parties’ entire course of dealings. I accept the plaintiff’s explanation that, as the parties were in a close romantic relationship and had been seeing each other frequently from time to time, therefore it is not improbable that she had face-to-face discussions with the defendant on the Oral Agreement.

Proportion of contribution by the parties

74.  In his closing submissions, Mr Chiu argued that the proportion of contribution of the plaintiff towards the purchase price was at variance with her claim that she would be 50% owner. Hence (according to him), this militates against the existence of the Oral Agreement.

75.  However, based on my findings above, the plaintiff has contributed to roughly half of the purchase price and the repayments to the SCB Mortgage:-

(1) The plaintiff contributed $533,000 which is roughly equal to half of $1,060,767, being the sum of (i) the Down-payments of $890,000; and (ii) a sum of approximately $170,767 in legal costs and stamp duty incurred in relation to the purchase.

(2) The plaintiff was jointly and severally liable under the SCB Mortgage Loan together with the defendant. Hence, she is taken to have contributed to half of the SCB Mortgage Loan towards the purchase price[37].

(3) The payments of $8,000 (and subsequently $6,000) per month by the plaintiff are roughly equal to at least half of the monthly mortgage payments (which were about $11,000 to $12,000) with some further allowance as savings for renovation and outfitting[38].

76.  As I understand it, the gist of Mr. Chiu’s argument is that the Father’s Loan should only count towards the defendant’s contribution (hence causing the variance). I disagree:-

(1) It is not disputed that the discussions on the making of the Father’s Loan took place between the Father and the defendant only. In my view, the focus should be on the understanding between the plaintiff and the defendant at the material time but not so much on the discussions between the Father and the defendant, the reason being that it was the plaintiff and the defendant (but not the Father) who were parties to the alleged Oral Agreement.

(2) I accept the plaintiff’s evidence that it was her understanding of the arrangement with the defendant that she was also responsible for repayment of the Father’s Loan. This is consistent with the WhatsApp messages sent by the plaintiff on 11 July 2016 when she was keen to push the defendant to confirm the amount of the Father’s Loan as soon as possible without delay. There would be little reason for her to do so if she did not also consider herself responsible.

(3) I consider the fact that the cheque stub for the Father’s Loan did not refer to the plaintiff to be of limited probative value as the written annotations were only a brief description of the payment and may not be complete. In any event, it is likely to only represent the Father’s understanding.

(4) Even if the Father regarded the defendant to be the sole borrower, it does not necessarily mean that between the plaintiff and the defendant, they could not have reached a different arrangement.

(5) In the circumstances, I also do not attach significant weight to the fact that there was no repayment of Father’s Loan by the plaintiff. Likewise, there has been no suggestion of any such repayment by the defendant.

77.  Hence, the contributions made by the plaintiff towards the Down-payment and the SCB Mortgage Loan are by and large not inconsistent with the Oral Agreement that the plaintiff and the defendants were to be beneficial owners in equal shares.

Conclusion on the existence of the Oral Agreement

78.  Having considered the evidence as a whole (including the key matters in the above analysis), I prefer the evidence of the plaintiff to that of the defendant and I find on a balance of probability that the parties did enter into the Oral Agreement:-

(1) Sometime from mid-2015 onwards, the plaintiff and the defendant orally agreed to purchase a property to be co-owned by them as their future matrimonial home.

(2) Between May and October 2016, the parties further orally agreed that the Property would be beneficially owned by the parties in equal shares even though the legal title would be conveyed to the sole name of the defendant which gave rise to the Oral Agreement as pleaded in the Statement of Claim.

(3) In reliance of the Oral Agreement, the plaintiff has acted in her detriment by having: (i) contributed at least $533,000 towards the purchase of the Property; (ii) taken on joint and several liability as a borrower under the SCB Mortgage Loan; and (iii) contributed to the monthly repayments of the SCB Mortgage Loan by P’s Monthly Inbound Payments.

79.  In the circumstances, it is unconscionable for the defendant (as holder of the legal title to the Property) to depart from the Oral Agreement. Accordingly, this gives rise to a common intention constructive trust whereby the defendant holds the Property on trust for the plaintiff and the defendant in equal shares.

80.  For completeness, I note that counsel have made extensive submissions on matters concerning payment of renovation expenses and the plaintiff’s involvement in the design and renovation of the Property. However, as these expenses were incurred after the defendant had made a marriage proposal to the plaintiff in August 2018, I regard these matters to be of limited probative value.

The counterclaim

81.  The counterclaim concerns the SCB Joint Account. In short, the defendant alleges that:-

(1) According to the SCB Account Agreement, funds deposited by the parties into the SCB Joint Account would only be used for (i) the joint benefit of the parties (including dining and travelling); (ii) repayment of the SCB Mortgage Loan; and (iii) repayment of the alleged loan advanced by the plaintiff to the defendant (“Alleged Permitted Purposes”).

(2) It is a further implied term[39] of the SCB Account Agreement that if the relationship between the parties irretrievably broke down, the plaintiff and the defendant would each be entitled to recover funds from the SCB Joint Account according to their respective contributions after taking into account all payments out of or withdrawals from the SCB Joint Account for the Alleged Permitted Purposes (the “Repayment Term”).

(3) The plaintiff had acted in breach of the SCB Account Agreement by making various impermissible withdrawals in excess her contribution and (amongst others) she therefore holds such impermissible excess withdrawals (in the sum of $597,676 or alternatively, $366,860) on trust for the defendant or is liable to repay the same.

82.  The plaintiff denies the existence of the SCB Account Agreement and alleges that the SCB Joint Account was set up for the broad purposes of settling the monthly mortgage instalments, the parties’ joint expenses, the parties’ household expenses and for saving up the parties’ wedding expenses.

83.  Again, it is necessary to test the parties’ respective cases against the relevant context and contemporaneous documents.

84.  In my view, the defendant has failed to prove the existence of the SCB Account Agreement.

85.  First, there is no contemporaneous document which evidenced the existence of such SCB Account Agreement or any discussion by the parties as to what would happen in the event of a breakup.

86.  Second, the course of dealings between the parties does not support the existence of the SCB Account Agreement:-

(1) In a broad sense, I agree that the SCB Joint Account was intended by the parties to be used for (inter alia) joint expenses. However, I am not satisfied that there was any binding agreement or common intention to the effect that any other withdrawals outside the Alleged Permitted Purposes would require permission from the other party and still less, there existed any agreement as to what would happen in the event of a breakup.

(2) As borne out from the oral evidence, it is common ground that neither the plaintiff nor the defendant kept any contemporaneous account of the incomings and outgoings of the SCB Joint Account. The parties’ respective accounts of the historical transactions were prepared by them based on their recollection and the available records after the onset of the dispute. As demonstrated during cross-examination, none of the parties’ respective accounts of the transactions could be said to be satisfactory. This is understandable given that human memory is fallible, especially in the current case which involved a large number of transactions taking place some years ago.

(3) In my view, the parties’ lack of accounting in respect of the SCB Joint Account strongly militates against any common intention (whether express or implied) that parties would have to account for their historical transactions in the event of the termination of their relationship.

87.  At least with respect to the plaintiff’s withdrawals, I am of the view there was no agreement or common intention that she would need to seek permission from the defendant (irrespective of whether the withdrawals were for the Alleged Permitted Purposes):-

(1) There is no contemporaneous communication which clearly shows that (i) the plaintiff would need to seek permission from the defendant; (ii) the defendant had restricted the plaintiff’s spendings out of the SCB Joint Account; or (iii) the defendant asked the plaintiff to account for her withdrawals out of the SCB Joint Account. This is not unusual given that, despite the occasional disagreements, the parties were in a close romantic relationship at the material time.

(2) By early October 2017, the defendant was keen to avoid a breakup and had expressly agreed with the plaintiff that she would be in control of the couple’s financial affairs (which must include the SCB Joint Account). As reflected by his WhatsApp message sent on 4 October 2017, he volunteered to allow the plaintiff to take control of his finance (“財務上piggy[40]主持” and “重大財務安排聽從piggy差遣”). There is no mention of any restriction that the plaintiff could only exercise her authority to withdraw money from the SCB Joint Account only for the Alleged Permitted Purposes or only with permission from the defendant.

(3) This is also reflected by the lack of serious complaint from the defendant at the time after the plaintiff unilaterally withdrawn $180,000[41] from the SCB Joint Account in late September 2017.

(4) In arriving at the above conclusion, I have considered the instances where the defendant had lamented that the plaintiff had made withdrawals, eg on 4 November 2017 where the defendant asked “So you mean you gonna take all my money forever? No matter how much I earn”. However, I am not satisfied that this is sufficient to give rise to an inference of the existence of the SCB Account Agreement:-

(i) On that occasion, the defendant never mentioned the existence of the SCB Account Agreement or that the plaintiff needed his permission to withdraw money from the SCB Account.

(ii) Motivated by a strong desire to pacify the plaintiff and to maintain their relationship at the time, the defendant allowed the plaintiff to exercise financial control (even if it was to his disadvantage) and had never taken any concrete steps to change the status quo (eg by changing his payroll account).

88.  In my view, the above shows that there was no binding common intention or agreement between the parties that the defendant would have any oversight or control over the plaintiff’s spending out of the SCB Joint Account (whether for the Alleged Permitted Purposes or not).

89.  As the alleged Repayment Term is entirely premised upon there being a binding agreement or common intention that the plaintiff’s withdrawals outside the Alleged Permitted Purposes would be subject to approval from the defendant, I cannot see how it can be implied in any event.

90.  I note that in closing submissions, Mr Chiu relied heavily on the admission by the plaintiff in her oral evidence that she could give back the $383,870.83[42] withdrawn by the plaintiff to the defendant given the eventual breakup. However, when considered with the overall evidence as analysed above, I do not accept that an inference of the existence of the SCB Account Agreement (which is the sole basis pleaded in respect of the counterclaim) can be drawn from such admission. It is unclear from her oral evidence (i) the precise reason for the plaintiff’s agreement that she could give back the said sum (whether it was due to an agreement between the parties or merely for moral or other reasons); and (ii) whether she considered that she was under a binding obligation to give back the sum as she used the word “can” (“可以”) in her answer. In my view, such choice of words is not inconsistent with the plaintiff’s case that she had full authority to decide what to do with the funds in the SCB Joint Account.

91.  Accordingly, I dismiss the counterclaim.

Relief

92.  As the plaintiff’s claim is successful, I grant the declaration sought in Prayer (1) of the Statement of Claim.

93.  As for the injunction sought in Prayer (2), I do not see any genuine need to exercise the discretion to order injunctive relief at this stage. I trust that the defendant (with the benefit of capable legal representation) will be sensible in light of the Court’s declaration on the beneficial ownership of the Property.

94.  As for the reliefs sought in Prayers (3) to (6):-

(1) In respect of the claim for mesne profit:-

(i) In light of my findings on the beneficial ownership of the Property, I also find that the plaintiff was unlawfully ousted from the Property by the defendant from 29 December 2019 onwards.

(ii) The quantum of mesne profit should be assessed based on the monthly rental value of the Property from 29 December 2019 which is agreed to be $19,000 per month.

(2) Nevertheless, I agree with the submissions of Mr Chiu that it may not be appropriate to make an immediate order for assignment of the Property or payment of mesne profits as the defendant has incurred expenses (including mortgage payments) in relation to the Property which may need to be accounted for. This is not strongly opposed by Mr Chan.

(3) In the circumstances, I give the parties liberty to apply. This court appeals to the good sense of the parties to reach an agreement as to how best to deal with the consequential matters without having to incur unnecessary costs.

Costs

95.  As the plaintiff is the overall successful party, there is no reason why costs should not follow the event. Hence I make an order nisi that the plaintiff do have the costs of the action (including the costs of the New Evidence Application) with certificate for counsel.

96.  Lastly, I thank counsel for their helpful assistance.