TANG WAI LAM, THE SOLE EXECUTOR OF THE ESTATE OF SIU MAK CHEUNG, DECEASED v. CHUNG WAI SING

HCA 2373/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2373 OF 2012

______________

______________

________________

JUDGMENT
________________

Introduction

1.  Siu Mak Cheung (“the Deceased”) passed away on 14 May 2004.  By her last will dated 28 June 2003 (“the Will”), the Deceased appointed the plaintiff as her executor.  Probate was granted to the plaintiff by order of the court dated 14 September 2012. 

2.  In his capacity as executor of the estate of the Deceased, the plaintiff brings this claim in relation to a property known as Flat C, 6^th Floor, 17 Humbert Street, Mei Foo Sun Chuen, Kowloon (“the Property”).  Since 1993, and until the time of her death, the Deceased was the registered owner of the Property, and she resided there until she passed away.  (In fact, the Deceased was admitted to the Baptist Hospital about a week before she passed away at the hospital.)

3.  Since sometime between 2006 and 2009, and without the consent of the plaintiff, the defendant has been occupying the Property for his own use and benefit. Though the defendant and his wife spend considerable time outside Hong Kong, they use the Property as their residence in Hong Kong.

4.  Therefore, the plaintiff brings this claim against the defendant as a trespasser, and seeks vacant possession of the Property and an injunction restraining the defendant or his agents and family members from occupying the Property, together with damages and/or mesne profits and interest.

5.  By his Defence, the defendant asserted that two days before the Deceased was admitted to the Baptist Hospital in early May 2004, she summoned the defendant to her residence at the Property. There, she gifted the Property to the defendant, by her passing him the keys to the Property and relevant documents, and telling him to reside in the Property after her death. In the Defence, the pleaded words of gift are “我死後，住這裡，阿Dee” translated as “After I die, you live here, Ah Dee”. 

6.  The Defence then asserted that after the death of the Deceased the defendant took control of the Property and paid all the management fees, rates, utility charges and renovation costs.

7.  It is averred that the gift of the Property was valid, being made in contemplation of death and made to take effect on the Deceased’s death.

8.  There is no doubt that the registered owner of the Property at the time of her death was the Deceased.  Hence the issue as originally framed on the pleadings is whether the Property forms part of the estate, which turns on the question as to whether or not there was the alleged gift made in contemplation of death by the Deceased to the defendant.  That issue is likely to turn on the credibility of the defendant and his witnesses as tested against the totality of the evidence.

9.  In addition to the defendant, witness statements were provided by and oral evidence was given by his wife Yau Mui Yuen Jeovenna, and by a nurse Shum Kin.  On behalf of the plaintiff the evidence came from the plaintiff himself, Siu I Si (a niece of the Deceased) (“Ms Siu”), and Siu Kwok Fai (a nephew of the Deceased). 

10.  At trial, counsel for the plaintiff was Mr Patrick Chong and counsel for the defendant was Mr Samuel Wong.  After the close of evidence, I allowed time for preparation of written submissions.  Yesterday afternoon, I was provided with fairly full written closing submissions, which I have carefully considered, and to which both counsel have made oral submissions this morning.

The amendment application

11.  The writ was issued on 21 December 2012, with the Statement of Claim specifically endorsed upon it.  The Defence (outlined above) was filed on 7 February 2013, and was accompanied by a statement of truth in which the defendant stated against his signature that he believed the facts stated in the Defence to be true.

12.  A Reply was filed on 5 March 2013, joining issue with a number of the averments made in the Defence, and in particular, denying that the Deceased had gifted the Property to the defendant, or that there was a valid donatio mortis causa.

13.  The action was set down for trial on 28 July 2014, with leave of the master granted at a CMC on 26 June 2014.  The trial dates were actually fixed on 5 September 2014, and the trial dates were notified to the parties by a Notice of the same date.  A pre-trial review was held on 10 March 2015, at which orders were made in relation to trial bundles and written opening submissions.  There was no mention to the master at the CMC or to the judge conducting the pre-trial review of any possibility of an application to amend pleadings, and the parties had previously filed procedural questionnaires stating that there was no intention to amend pleadings.

14.  However, by summons dated 2 June 2015 – the day before the plaintiff was due to file his written opening submissions – the defendant made an application for leave to amend his Defence, and to add a Counterclaim. The thrust of the proposed amendment is to assert that the Property had been held on trust by the Deceased, with a life interest for her, but with remainder back to the defendant.  The counterclaim proposed seeks a declaration that the defendant is the legal and beneficial owner of the Property, and a further declaration that the Property does not form part of the estate of the Deceased.

15.  The existing claim as to a gift in contemplation of death is not proposed to be deleted, but is proposed to be made an alternative claim.

16.  The proposed amendment also includes the necessary statement of truth by which, if he were to sign it, the defendant would state that he believes the facts stated in the amendment to the Defence and Counterclaim are true.  Though the draft statement of truth attached to the summons was not signed, it must be assumed that the defendant would sign it to attest to the truth of the document for which he sought leave.

17.  I regret to have to say that this very late application for an amendment placed the parties, and this court, in an invidious position.

18.  After hearing oral argument on the amendment application at the beginning of the trial, I indicated that I would refuse the proposed amendment, and would give my reasons within this trial judgment.

19.  In his written opening submissions for trial, Mr Chong indicated that the plaintiff would oppose the application for amendment – pointing out that there is a big difference between an allegation that the defendant was the beneficial owner of the Property since 1993 (the proposed new case) and that the property was gifted to him just before the deceased passed away in 2004 (the original pleaded case).

20.  Mr Chong also suggested that the plaintiff would obviously suffer prejudice if the amendment application were to be granted. Though no specific prejudice was then identified, Mr Chong enlarged on this in his further written and oral submissions directed specifically to the proposed amendments.  At the same time, Mr Chong was constrained to accept that the alleged trust arrangement dating back to 1993 was traversed by the defendant in his witness statements (made in 2013 and early 2014), as indeed it was briefly dealt with by the plaintiff in his responsive witness statements (from the same period).

21.  In his written submissions filed in advance of the trial, Mr Wong reminded me of the well-known principle that the court may permit a pleading to be amended at any stage of the proceedings for the purpose of determining the real question in controversy or for correcting any defect or error in any proceedings. Any order permitting amendment may be made on such terms as to costs or otherwise as may be just, and in such manner as the court may direct.

22.  Mr Wong also made the submission, by reference to Hong Kong Civil Procedure 2015 Note 18/11/1, that if a party intends to raise a point of law on the facts pleaded, it is a convenient course to do so in the pleadings. But nevertheless, he may at trial raise a point of law, even though not pleaded. Further, in a proper case, the court will allow a party to amend his pleadings to raise a point of law for argument before the trial.

23.  Mr Wong submitted that I should allow the amendment because although it was proposed very late in day (and, in fairness, he did not seek to suggest otherwise), the proposed amendment actually traverses matters which have been "live" on the exchanged materials for some considerable time.  Essentially, he said, the amendments arise out of the way in which title to the Property was transferred in 1992 and 1993, and thereafter dealt with against the other factual matters until 2004.  The relevant transfer documents had been disclosed early in the interlocutory process, and the matter was spoken to (if briefly) by both sides in their respective witness statements.

24.  Mr Wong also drew my attention to the case management questionnaire completed by the defendant’s solicitors dated 19 June 2014, filed for the CMC which took place on 26 June 2014.  Such a questionnaire requires the party filing it to identify the background facts and the issues arising in the case.  The particular questionnaire identified three “key issues”, namely:

a. whether the Property was initially gifted by the Deceased and Siu Ping Wai to the defendant in November 1992;

b. under what circumstances and upon what understanding was the Property transferred to the Deceased at end of 1993; and

c. was the Property transferred back or otherwise gifted back to the defendant two days before the Deceased was admitted to Baptist Hospital in May 2004.

25.  It must be accepted only the second limb of the third of those questions (namely, the allegation of a gift) in fact arose as an issue on the then pleaded case of the defendant.  Nevertheless, in the same questionnaire, the defendant's solicitors ticked the box stating that the pleadings were in order and that no further amendment was required.

26.  The plaintiff's solicitors filed a questionnaire dated 18 June 2014 (and which was presumably to hand before or immediately after the defendant’s solicitors completed their questionnaire) stated, the issues quite differently, as:

a. whether the Deceased did say to the defendant that he might reside in the Property after her death, as alleged by the defendant;

b. whether it was a gift made in contemplation of death and was made to take effect on the Deceased's death, as alleged by the defendant; and

c. whether the plaintiff is entitled to recover possession of the Property.

27.  Against the exchange of these questionnaires, it cannot be said that there was agreement between the parties that the issues which arose included the first two issues identified by the defendant (or the consequent first limb of the third issue).  Unfortunately, neither before nor at the CMC did anyone pick up on the difference between the suggested issues and those which actually arose on the pleadings as they stood.  Nor was the point picked up at any time before or at the PTR.

28.  It should also go without saying that Mr Wong on behalf of the defendant accepted that he must amend the Defence if those issues were in fact to be canvassed and determined at this trial.

29.  Mr Wong said I should allow the proposed amendment as appropriate to identify and allow determination of the real questions in controversy, and/or to correct an error in the pleading.  He suggested that there was no significant prejudice to the plaintiff that could not be compensated in any appropriate costs order.

30.  Mr Chong opposed the application for leave to amend the Defence on several grounds, being: (1) it was an extremely late application; (2) there was no explanation as to why the application was only made at the late stage; (3) the proposed amendments lack particulars, so that it would be impossible for the plaintiff to meet the new case; (4) adjournment of the trial was not even an option, as the plaintiff is an elderly (about 81); (5) the new intended pleas are inconsistent with the existing pleading, and that is not permissible under O.18 r.12A; and (6) the plaintiff would suffer serious prejudice.

31.  As to lateness, Mr Chong described the timing as “prodigiously late”, and reminded me that in the modern post-CJR era interlocutory applications may be dismissed on the basis of delay alone: see, for example, C&A Consultants v. Hong Kong Airlines Ltd (unreported, HCA 279/2007, 17 August 2010, DHCJ Carlson), a case in which an amendment was refused at the PTR for various reasons including “lateness alone”.

32.  Mr Chong also reminded me of paragraphs 28 and 34 in Practice Direction 5.2, which clearly warn practitioners that at the CMC and PTR the parties are expected to indicate accurately and fully the extent of further interlocutory applications to be made, and that the later in time or closer to a trial date that an application is made, the less likely it is that the court will entertain it.

33.  As to the explanation for the delay, no affidavit was filed to account for the lateness, and no reason was originally offered in the written submissions by Mr Wong.  This is against the fact that when an application is so late, that very lateness plainly cries out for an explanation: see, for example, DBS Bank (Hong Kong) Limited v. Sit Pan Jit (unreported, HCA 382/2009, 6 February 2014, DHCJ Marlene Ng) at paragraphs 17 to 20.

34.  Even during argument, there was still no real explanation for the delay in seeking to make the amendments.  Whilst accepting that the amendments would be necessary to pursue this particular line of defence, Mr Wong really says only that, on re-consideration of matters, it was thought appropriate to make the application. In that respect, what was stated on the questionnaire in June 2014 is more problematic than helpful for him.

35.  As to the shifting of litigation goalposts, in answer to Mr Wong’s submission that the proposed amendment points have been live from the witness statements, Mr Chong refers – if authority is even needed – to the CFA decision in Kwok Chin Wing v. 21 Holdings Limited (FACV 9/2012, 30 September 2013) in which Ma CJ (at paragraphs 21 and 23) stated:

“It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party's case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues. … It is the pleadings that will define the issues in a trial and dictate the course of proceedings, both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round.

…

The purpose of pleadings, in clearly and unambiguously setting out the true extent and nature of a dispute not just for the benefit of the parties but also for the Court in managing and trying cases, remains important under our system of civil justice.”

36.  By the time shortly before the trial, it was perfectly fair for the plaintiff to have prepared his case and the trial based on the defendant's pleaded case.  As Mr Chong submitted, the pleaded defence has throughout been of an alleged gift made by the Deceased to the defendant in 2004, and the gift being described precisely as occurring when the Deceased called the defendant to see her at her home two days before she was readmitted to the Baptist Hospital.  The pleading of that gift pre-supposes that the defendant was not the owner before he was gifted the Property.

37.  Thus, although there was mention of the events in 1992 and 1993 in the witness statements, the issues remained defined as in the pleadings, and those events were not the subject of the plaintiff’s focus in preparation of case or for the trial.  I accept that, in those circumstances, the plaintiff was entitled to take various procedural steps with a view to not wasting time, money and resources in pursuit of what were apparently irrelevant or peripheral matters.

38.  A party to a case is entitled to know from the pleading, what are the precise limits of the case he faces.  He should focus on that and then put forward his own case and prepare for the evidence accordingly.  He should be able to conduct the litigation and arrange his affairs on the basis that the case against him has been set out in the pleading (albeit subject to any amendment that might be made to that document): see, for example, Magic Score Limited v. The Hongkong and Shanghai Banking Corporation Limited (unreported, HCA 11077/1994, 23 June 2006, Lam J (as he then was)) at paragraphs 21, 56, 57 and 66.

39.  This must be particularly so with this plaintiff who brings this action as the executor of an estate (and in which he has only a 4.45% personal interest).

40.  Hence, the plaintiff did not seek discovery of documents concerning the transactions in 1992 and 1993; did not seek discovery of documents from the defendant or the bank concerning the mortgage, including as whether any loan was in fact drawn down, and if so, to what use was the money put, and how it was repaid; did not investigate matters with the solicitors firm which handled the transactions, or any individual staff members of that firm who might be located; and did not pursue enquiries of other relatives or friends who may have had some knowledge or awareness of the events.

41.  I think it must be accepted that even had the proposed points been first pleaded in 2013 or by amendment made in 2014, because of the passage of time since 1992/1993 it might have been that any enquiries and investigations would have turned up little if any useful evidential material. But the problem is that the opportunity for such enquiries and investigation has been lost. I think it is also fair to say that the longer ago the events that might fall to be investigated, the more incumbent it is upon the person raising issues about those events to do so as early as possible.

42.  In the context I note that the defendant himself said, but only quite late in his oral evidence, that he had wanted to call as a witness one clerk of the relevant solicitors’ firm – a Ms Juliana Yam (see below) – but she lives in Canada and had told him that she could not recall anything.  But there is no way of knowing now whether that is true, what she was asked or shown (if anything), or whether if she was shown any particular documents she might have recalled something material.

43.  The opportunity for any further enquiry and investigation has certainly been lost here because asking for an adjournment of this trial is not a real option.  Indeed, I am told that the parties (or at least the plaintiff) requested a ‘monolingual’ judge – notwithstanding that translations from Chinese to English would become necessary – precisely because an earlier trial date would be obtained than if a bilingual judge were to be insisted on.  These trial dates having been fixed on that basis as long ago as 5 September 2014, it seems to me that the trial is even less susceptible to adjournment on case management reasons.

44.  I also accept that not only is an adjournment itself a prejudice, the fact that the party, not wanting to lose a hearing date, refrains from asking for an adjournment does not mean that there is no prejudice. The unenviable position that such a party finds himself being in is itself a prejudice: see, for example, Wise Union Industries Limited v. Hong Kong Science and Technology Parks Corporation (unreported, HCAL 12/2009, 21 September 2009, A Cheung J (as he then was)) at paragraph 9.

45.  Mr Chong also criticised the proposed amendments – which I should point out were not drawn by Mr Wong – as being deficient of the adequate particularity as would permit leave to be granted for them in any event.  He especially points to the intended new case that there was a “trust” by reason of the matters which took place in 1992/1993.  No particulars of which kind of trust are set out in the proposed amendment, albeit that Mr Wong in his skeleton argument suggested that the amendment could cover the legal theories of “express trust, resulting trust, constructive trust and proprietary estoppels”.  In oral submission, Mr Wong accepted that the proposed amendment rendered any case on proprietary estoppel a non-starter, but he maintained that the other forms of trust might all be covered.

46.  Even if that were so, these are new causes of action or defence, which would require – or at least, which would ordinarily be granted the opportunity for – proper factual investigation.  Indeed, though there may be some overlap in certain circumstances between those various types of trust concepts, that only emphasises the problem that one would need to have the opportunity to consider the factual circumstances, before seeking to apply legal theory to them.

47.  Also, for completeness, I do not accept Mr Chong’s plea that it would not be reasonably open for the defendant to have pleaded inconsistent cases, as on the particular facts that were to be asserted, it might be thought he would have reasonable grounds for so doing.  Nor do I think that the proposed addition of the counterclaim adds much to the analysis; the relief sought from the repetition of the defence would, in practical terms, really be only an express statement of what must have been implicitly found were the defence to succeed.

48.  I am conscious that the materials relating to the bare facts of the transfers of the Property in 1992 and 1993 are inescapable in the case.  This is the essence of what puts the parties and the court in an invidious position.  But, it is not just the bare facts (as might be relevant for context only) as would underpin the proposed new pleas.  Further, it might well have been anticipated – and, indeed, there ultimately was – some cross-examination around the events of 1992 and 1993, but that was bound to be without the benefit of any further enquiries as might have been made.

49.  Indeed, the cross-examination that Mr Chong conducted went so far as to challenge directly the allegations the defendant made in his witness statement as to the transfers of the Property in 1992 and 1993.  When asked by me as to why he was pursuing this line, Mr Chong indicated that it was for various reasons including context and credibility, and not least because the witness statements were inconsistent with the pleaded case.

50.  Naturally, that will mean I am required to decide at least whether the defendant’s versions of events in 1992/1993 is credible, and so it might be thought that the issues in the proposed amendment are therefore necessarily dealt with.  But it seems to me that I am entitled to approach those questions on the basis that – even though there has been some exploration of them – the issues do not arise as pleaded issues, and cannot be decided in the same way as they would be if pleaded (with the proper opportunity for gathering evidence on the topic, which I have found has been denied by the late raising of the point as an intended amendment to the pleading).

51.  Hence, in the exercise of my broad case management powers, and doing the best I could to balance the various and sometimes competing factors, I refused the amendment application.

52.  In passing, I note that one small proposed amendment was not opposed, as it was merely to identify a precise date of the alleged ‘gift’ conversation in early May 2004 – that is, to say it took place on 2 May 2004.  However, I did not think such an amendment was necessary as the pleading was clear enough, and no point was taken as to the alleged date, it being the plaintiff’s case that no such conversation took place on any date around that time.

Applicable principles

53.  Before turning to the facts in any detail, it is helpful to consider the relevant applicable principles as to the assessment of evidence turning on credibility, and the correct approach when dealing with evidence alleging a gift or promise given by a person who is now dead, and the principles of donatio mortis causa.  These principles are well known, and thus little authority is needed for them, but they bear repetition.

54.  In assessment of the evidence, it is appropriate to take into account the demeanour of the witnesses when giving their oral testimony.  However, I am conscious that demeanour can be deceptive, that it needs to be approached with care, and that it is important to test the oral evidence against any contemporaneous documentation, and in terms of the inherent probabilities and improbabilities.

55.  Generally speaking, contemporaneous written documents and documents which come into existence before the problems in question have are likely to be of great importance in the assessment of credibility. But it is always important to consider the inherent likelihood or unlikelihood of an event having happened, and to test the logic of alleged events.

56.  It is also apt to consider the consistency of any witness’ evidence against undisputed or indisputable evidence, as well as to test the internal consistency of the witness’ evidence (not least between what is said in the witness statement and what is said in oral evidence at trial).

57.  However, in this particular case, I have also borne in mind that many of the key events about which the witnesses gave evidence occurred at least 10 years ago, and sometimes more than 20 years ago.  It is, therefore, in my view, appropriate to make some allowance for that fact.  That allowance includes the recognition that whilst some content of small-talk conversations might be recalled, it is not unlikely that the dates of those particular conversations cannot be recalled.

58.  Where the court is faced with a claim against the estate of a deceased person who cannot give evidence against that claim, the court has always approached such claims with some suspicion, especially (in the case of an alleged gift) where the only or principal witness in support of the claim is the donee: see for example Yung Shu Wu v. Vivienne Sung Wu (2011) 14 HKCFAR 39 at §§73-76.

59.  Corroboration is not essential in every case. But, not only is the onus of proof – sometimes called a ‘heavy burden of proof’ or a ‘special burden’ – on (in this case) the defendant, the court is enjoined by authority to approach his story with suspicion, having regard to the fact that the other actor/actors in the story is/are dead and cannot therefore give their own version of what took place.  The court is looking for evidence which is clear and reliable.

60.  As to the principles of donatio mortis causa, such a thing is a present gift which remains conditional until the donor dies. It can be revoked in the meantime.  Until the death, the gift is inchoate.  It gives rise to a constructive trust, which gets around the formal requirements for the transfer of land and the creation of trusts of land.  If the donor effectively transfers title to the donee, the gift will become unconditional on the donor’s death.

61.  There are three requirements of donatio mortis causa: see Re Estate of Lung Nga Lai Eilly [2014] 4 HKLRD 829 at paragraphs 7 and 18:

a. the donor must have made the gift in contemplation though not necessarily in expectation of death;

b. the donor must have delivered to the donee the subject matter or the indicia of title of the gift, or transferred to him the means of getting at the subject matter or indicia of title, eg delivering a key, like car keys, or the key to a box containing the indicia of title, intending to part with dominion over the gift; and

c. the gift must be such as to be absolute and complete only on the donor’s death, so that it is revocable before then; a condition to this effect need not be expressed and will normally be implied from the fact that the gift was made when the donor was seriously ill.

62.  The burden of proof on all three distinct requirements for a valid donatio mortis causa lies on the donee.  The standard, as in all the probate matters, is the civil balance of probabilities, although it should not be assumed that discharging this onus is easy.  Cases of this kind demand the strictest scrutiny.  Even without any imputation of fraudulent contrivance, it is so easy to mistake the meaning of persons languishing in a mortal illness, and by a slight change of words, to convert their expressions of intended benefit into an actual gift of property, that no case of this description ought to prevail unless it is supported by evidence of the clearest and most unequivocal character: see Dal Pont & Mackie, The Law of Succession at paragraph 1.23, quoting Cosnahan v. Grice (1862) 15 Moo PC 215, at 223; 15 ER 476, at 479.

63.  This passage has been followed in Hong Kong by DHCJ Bebe Chu (as she then was) in Re Estate of Chen Soo King [2013] 2 HKLRD 406 at paragraph 28.

64.  As to what constitutes parting with dominion, I have been referred to Vallee v. Birchwood [2014] 2 WLR 543, which refers to the earlier case of Sen v. Headley [1991] Ch 425.  It is clear that mere intention to make a gift is insufficient, however clearly expressed.  There must be some overt act of physical transfer.

65.  Delivery of dominion may be constructive, as where a key enables the donee to “get at” the subject matter as given, but delivery of something symbolic of but not constituting the subject matter of the gift will not do.  It is not, however, necessary that the donee should be given total dominion or control over the subject matter; partial dominion will do as long as the donor suffers a corresponding deprivation of the power to deal with the subject matter of the gift.

66.  Land or property might be thought to fall somewhere between items capable of being physically handed over, and items which are either intangible or too bulky to hand over.  But there must nevertheless be parting with dominion over the essential indicia of title.

67.  In the Sen case, a dying person’s words to his friend were, “The house is yours.  You have the keys.  They are in your bag. The Deeds are in the steel box”.  One of the keys was to the cupboard in which the steel box was kept, and the other key was to the steel box in which the title deeds to the house were kept.  Those facts were regarded as sufficient to constitute a parting with dominion over the house.

68.  By reference to paragraph 34 of the Vallee case, Mr Wong cautions me that whilst those facts were regarded as sufficient, the court in the later case did not regard the earlier judgement is requiring something similar as necessary.  But as it was put in paragraph 42 of the same case, there is no doubt that the concept of “dominion” in this context is a slippery one.  Its fundamental rationale appears to be that something must be done by way of delivery of the property or indicia of title sufficient to indicate that what is intended is a conditional gift and not something that falls short of that. Whilst there does not have to be a delivery or transfer, which would suffice at law to effect a gift inter vivos, there does have to be “something amounting to that”.

69.  In considering the question of mental capacity of the donor in the context of a gift made in contemplation of death, Mr Chong invites me to consider the test in an analogous situation as in In re Beaney, Deceased [1978] 1 WLR 770, at 774D-F, which states.

“The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will, the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of the gift are trivial in relation to the donor’s other assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor’s only asset of value and thus, for practical purposes, to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of.”

70.  In assessing the degree of understanding, or the mental capacity of the alleged donor, I accept that it is ultimately a matter of judgment to be exercised in the light of the whole circumstances and history: see, for example, Chow Siu Po v. Wong Ming Fung (unreported, HCAP 3/1998, 30 January 2003, DHCJ Lam (as he then was)) at paragraph 99.

71.  Lastly, Mr Wong submits on the basis of Civic Limited v. Occupiers of Lot 2061 in DD 104, Yuen Long (unreported, HCA 225/2011, 28 June 2013, DHCJ Marlene Ng) – and I accept – that should I find in favour of the defendant, then I should grant all such consequential orders to give effect to my findings even absent a counterclaim by the defendant.

Chronology and consideration of the evidence

72.  Though I shall deal with the evidential matters in broadly chronological order, and I shall make comments and findings as I go through them, I have of course taken into account all of the evidence whenever it chronologically occurred.  In other words, simply because I make findings in relation to matters occurring in, say, 2004 before I traverse the matters that happened after 2004 does not mean that I have ignored those subsequent matters in making my findings.

73.  Further, in addition to the matters dealt with by reference to applicable principles (see above), and though I have reminded myself of the dangers of too heavy a reliance on the demeanour of witnesses, I would make the following general comments about the main witnesses.

74.  I found the plaintiff to be generally straightforward and firm in his evidence, although it was clear that he at times disagreed with certain propositions put to him when he had in fact no real knowledge one way or the other on those propositions.  Some of what he said was corroborated by contemporaneous documents, including where he was challenged as to how he had performed his task as executor.  But there is some force in Mr Wong’s submission that some of the plaintiff’s evidence was simply wrong, and that at times the plaintiff was adamant even when he was proved wrong (though in my view this tended not to be on the determinative issues).  I take into account that he is the executor and a beneficiary under the Will, so may have a vested interest in his claim being upheld.

75.  Similarly, Ms Siu struck me as straightforward and resistant to any gilding of the lily as she gave her evidence.  For example, as Mr Wong himself pointed out in closing submissions, when asked if she was very close to the Deceased, she said “not very close”.  That honesty seems to me likely to permit greater weight to be given to those aspects of her evidence which she denied as being recent inventions.  Obviously, on occasions she could not remember precise dates for conversations long ago, but that did not necessarily mean the conversations did not happen broadly as she described them.  I have taken into account that she is also a beneficiary under the Will.

76.  On the other hand, the defendant struck me at times as evasive in giving long answers which were not fully or directly responsive to the questions, hesitating over simple questions, and prone to internal inconsistencies in what he said.  I have taken into account his medical condition, which may in part explain some of that (see below).  Of course, some of his evidence was apparently reliable, and I have been careful not to just accept or reject all of what he said.  For example, I have preferred his evidence over the plaintiff’s as to the degree of involvement the defendant had in the lives of the Deceased and her siblings.

77.  The defendant’s wife appeared more straightforward, but also gave the impression someone who had come to tell a particular story and was going to stick to it, come what may.  Of course, much of her evidence was hearsay, merely repeating what she says she was told by the defendant.

78.  I do not pretend to deal with all the evidence adduced, but I shall concentrate below on what seem to me to be the main areas necessary for my consideration.

79.  The Deceased’s father was the plaintiff’s mother’s brother.  The Deceased’s mother was the sister of the defendant’s maternal grandfather.  That is, both the plaintiff and the defendant were related, albeit not closely, to the Deceased.

80.  The Deceased was the oldest of four siblings, two sisters and two brothers.  The Deceased’s younger sister, Siu Mak Wah, passed away in 1965. The two younger brothers, Siu Jook Ming and Siu Ping Wai, passed away in July 1992 and January 1993 respectively.  Neither the Deceased nor her two brothers ever married.

81.  Prior to the death of the brothers, the Deceased lived together with them first at an address in Sham Shui Po, which also had a workshop from where they conducted a family business making underwear.  Later, in 1976, they moved to the Property, and the garment business ceased.  Whilst Siu Ping Wai thereafter worked as a car salesman, it seems that neither Siu Jook Ming nor the Deceased had further employment.  At the time of the move to the Property, the Deceased was 60, and Siu Ping Wai was about 10 years younger.  I think Siu Jook Ming was between them in age.

82.  After the death of the brothers, the Deceased lived alone at the Property until her own death on 14 May 2004.

83.  When first developed in 1976, the Property was purchased by Siu Ping Wai, and the Deceased as tenants in common, with a half share each.  As it appears that Siu Ping Wai worked but the Deceased did not, it is possible that the funds for the purchase of the Property were provided by Siu Ping Wai alone, despite the way in which the Property was held by the pair as equal tenants in common.  This is what the defendant says he was told by the Deceased.  It is perhaps also possible that the Deceased had some savings from having previously worked, from which she made a financial contribution; or the Deceased’s equal half share may have reflected the anticipation of contribution to the household in other ways.

84.  I note that the purchase documents as are to be found in the trial bundle show the purchase agreement was signed by the Deceased, apparently for and on behalf of herself and Siu Ping Wai, but the down-payment receipt was issued to Siu Ping Wai.  Whatever the funding arrangements, the agreement between the pair resulted in the Deceased being a genuine half-share owner of the Property as a tenant in common.

85.  On 5 July 1991, Siu Ping Wai made a will bequeathing his entire estate to his brother Siu Jook Ming absolutely.  The will was professionally drawn by and witnessed by staff of a firm of solicitors called Boris Lui & Co (“BLC”).

86.  BLC was apparently introduced to the siblings by the defendant, who knew Ms Juliana Yam, a legal clerk at the firm.  Ms Yam’s name appears not just on that will, but also on a number of subsequent legal documents produced by BLC for the siblings and defendant.  I accept this is one of the indicia that the Deceased and her siblings trusted the defendant (at least at that time).

87.  On 17 July 1991, the Deceased made a will bequeathing her entire estate to her brother Siu Ping Wai absolutely.  The will was also professionally drawn by and witnessed by staff of BLC, including Ms Yam.

88.  As stated above, Siu Jook Ming passed away in July 1992. I accept the defendant’s evidence that he in some way assisted in the organization of, and attended, the funeral of Siu Jook Ming.  Indeed, although the plaintiff suggested otherwise, it is apparent he did not then really know who the defendant was, and his own witness Siu Kwok Fai accepted that the defendant was there.

89.  On 6 August 1992, Siu Ping Wai made a new will – also drawn by BLC – in favour of the Deceased.  Again Ms Yam’s name is shown.  It is of note that by that date, Siu Ping Wai had himself already been diagnosed with cancer (probably of the kind that killed his brother).

90.  Before turning to the events of late 1992 and 1993, I would point out that neither the plaintiff nor Ms Siu were really able to offer any evidence as to events in those years.  I have therefore given no weight to any comments they might have made, but have instead focused on the other evidence, oral and documentary, and on the inherent likelihoods and unlikelihoods.

91.  By an assignment dated 28 November 1992, the Property was transferred by Siu Ping Wai and the Deceased to the defendant at a recorded consideration of $1,500,000.  The transfer attracted stamp duty of $30,000, which was paid.

92.  The transfer was made through the assistance of BLC, including Ms Yam, and the trial documents include the relevant invoice for legal fees and stamp duty.

93.  In his first witness statement dated 14 November 2013, the defendant says that he did not in fact pay that stated consideration, and that the legal fees relating to the transfer were paid by the Deceased.  I note that the BLC receipt states that the fees and duty totalling $43,400 were received from the defendant, settled by an ‘HSB’ cheque numbered 533717.  But I also note that the trial bundle contains various cheque stubs of the Deceased’s Hang Seng Bank account, including the stub for that cheque 533717 corroborating the payment by the Deceased to BLC.

94.  The defendant says that the transfer occurred because in November 1992.  Siu Ping Wai (who was by then very weak) said to him “You are to take good care of Aunt [the Deceased], I will give you my residence in Mei Foo Shun Chuen [the Property] as a gift”.

95.  The defendant says that after the transfer, Siu Ping Wai gave him his key wallet and said “You are the owner of the house, you need to know how to open the door”.  Of course, it seems unlikely that Siu Ping Wai would have given his own set of keys to the defendant, as he still needed a set for himself.  Also, the defendant revealed in his oral evidence that he had been given the keys so that it would be easier for him to visit the siblings as they were getting older.  On that basis, the defendant would have already known how to open the door, and I find that he was not given the keys by Siu Ping Wai in the circumstances or for the reasons he has described; he had them much earlier and for a different purpose.

96.  I also pay particular attention to the fact that the evidence shows that by November 1992, Siu Ping Wai was likely profoundly deaf, so much so that communication with him had to be largely in writing.  That fact is irreconcilable with the conversation as to gift as described by the defendant.

97.  In his oral evidence, when confronted with the 1992 assignment, the defendant said that Siu Ping Wai had insisted on the transfer by way of assignment for the stated value, even though the solicitor or clerk at BLC had been told that this was a gift to the defendant.  Unless the transfer was a device seeking to lessen the effects of estate duty (which in any event would have been payable on the proceeds of sale, if actually paid and declared), that seems to me to be unlikely.

98.  Indeed, where the 1992 assignment is drafted for stated value and also refers expressly to the acknowledgement by the vendor to receipt of the consideration from the purchaser, I do not think that the solicitors would have drafted and witnessed and submitted to the stamp duty office a document containing statements which they had been clearly told were not true. I reject the defendant’s case on this.

99.  As has already been touched on above, it has unfortunately not been possible to explore this with any member of staff of BLC, so I am forced to proceed on what seem to me to be the inherent likelihoods or unlikelihoods.

100.  I have taken into account that the defendant said in his oral evidence that he told Siu Ping Wai at the time there was no need to give him the Property, but was answered that “old men become silly”, but I do not accept that evidence.  Also, the defendant’s wife statement in oral evidence that the gift in 1992 is shown by the assignment is patently contradicted by the terms of the assignment.

101.  Indeed, it seems to me that had Siu Ping Wai really wanted to gift the Property (or his share in it) to the defendant, the simplest way would have been for him to alter his will to make that gift.  That the visit to the lawyers did not result in a change of will, but resulted instead in an assignment for stated consideration and the incurrence of stamp duty and scale fees for legal work is another point against the defendant’s case.  That the transfer was made just a few months after the August 1992 will, and that Siu Ping Wai did not change his will again, indicates to me that no gift was intended.  I also think that, contrary to the defendant’s case, a greater protection to the Deceased would have been for Siu Ping Wai to have transferred or gifted only his half share of the Property.  So I do not accept the submission that the transfer was for protection purposes.

102.  Siu Ping Wai died on 13 January 1993.  Again I accept that, contrary to the plaintiff’s case, the defendant was involved in assisting with the organization of the funeral and that he attended it.

103.  The schedule to the grant to the Deceased of probate over Siu Ping Wai’s estate put the net principal value of the estate at approximately $1,212,000.  Most of that was his interest in the estate of his late brother (which from other evidence it seems may have been largely comprised of a real property in Wing Lok Street).  There were other small amounts held in bank accounts, mainly the half share of sums in accounts held in the joint names of himself and the Deceased.

104.  The land register for the Property identifies that on 17 April 1993, a legal charge was created in favour of Dao Heng Bank Limited to secure general banking facilities, with the remark that the consideration is ‘all monies’.  This is obviously relating to a mortgage loan taken at the time when the defendant was the registered owner of the Property.  The mortgage loan document is in the trial bundle.  The mortgage document was drafted by BLC.

105.  The defendant says that the mortgage was to secure an overdraft facility, created by him in case the Deceased should have needed a pacemaker operation.  But, he says, no overdraft was ever actually created, and no monies were drawn down.  The opportunity to have tested this evidence by seeking further discovery from the defendant or the bank was lost as a result of the lateness of the amendment application.  (The defendant did not himself voluntarily disclose this material.)

106.  Anyway, it seems the cost of arranging a mortgage and overdraft facilities were borne by the Deceased, and it is clear from the totality of the evidence that the Deceased did not need such a facility to be available to her as she clearly had sufficient funds and income of her own to have met the costs of any anticipated operation.  Indeed, when the pacemaker was actually inserted later in 1999, the Deceased paid for that operation without difficulty.

107.  The defendant says he did not know of the Deceased’s financial position at the time in 1992/1993, and did not ask.  But if he was as close to the Deceased as he claims, I do not think it would have posed difficulties to have asked simply whether the Deceased felt financially safe, or whether the arrangement of some facility for her might have been apt.

108.  The land register also records a receipt on discharge of that legal charge relating to the mortgage, dated 25 November 1993, the same date as the assignment of the Property from the defendant to the Deceased.

109.  By that assignment dated 25 November 1993, the Property was transferred to the sole name of the Deceased at a recorded consideration of $1,500,000.  That transfer also attracted stamp duty of $30,000, which was paid.

110.  The transfer was again assisted by BLC, and again Ms Yam’s name appears.  The relevant invoice for the stamp duty and legal fees is in the trial papers.  The BLC receipt says the fees and duty were received from the Deceased, settled by a ‘HK Bank’ cheque numbered 427601.

111.  The defendant says that that the stated consideration for this transfer was also not in fact paid. He says the transfer came about because he and his wife were concerned about the Deceased's then future financial situation so brought up the possibility of assigning title in the Property back to the Deceased. After much persuasion, he says, the Deceased allowed the assignment to her and said “I will use the house first, but you are the owner of the house, because Uncle Wai [Siu Ping Wai] had already given it to you”.  The defendant also says that after the transfer, the Deceased said to him, “I will return the flat to you after I finish using it”.

112.  However, at another point in his oral evidence, the defendant stated that he had said to the Deceased at the time of the re-transfer that she should hold the Property and wait until she was unconscious or needed the defendant's care, and then they could plan further. I do not think that version of the discussion is entirely consistent with the other version; leaving open what would happen to the Property, depending upon any further plan as remains to be made, does not seem consistent with a conversation where an entire plan had already been formulated.

113.  Further, I again also do not think it likely that the solicitors firm would have drafted a document with terms which they knew to be untrue.  Nor would they likely have drafted a document which incurred stamp duty on a stated genuine transfer of beneficial interest for value if they had been told the transfer was of the bare legal title only and so as to set up a trust arrangement between the Deceased and the defendant.  Also, if the solicitors had been informed of any intended trust arrangement, they would likely have advised on and drafted a declaration of trust.

114.  I also find the defendant’s explanation as to the reasons for the transfer in 1993 difficult to reconcile with his evidence about the overdraft and mortgage. If the overdraft was really to cover a concern about the Deceased's financial situation, and to provide a line of credit, it seems contradictory to cancel that facility and return the property to her for the same suggested reason.  That would result in the Deceased holding a capital asset, against which (because of her age and unemployment) it would have been far less likely that a bank would have granted any facility to her by which she could release equity or obtain credit.

115.  I also found the defendant’s suggestion that part of the reason why he transferred the property to the Deceased in 1993 was because he overheard family gossip (which he was not sure was directed at him) along the lines that “someone gave their house to their relatives and they have no home to return to in the end” unconvincing as an explanation.  Anyway, if anything, such a motive for transfer is more likely to have triggered a transfer of both legal and beneficial ownership.

116.  The defendant was also asked in cross-examination why he had not originally pleaded a case based upon a gift in 1992 and the creation of some trust arrangement in 1993.  After a long pause, the defendant answered that he had no information on it.  I found that explanation, and the way in which it was said, deeply unconvincing.

117.  At this stage, I note that Ms Siu gave evidence that whilst the Deceased did not tell her the full reason for the transactions, the Deceased had complained that the defendant had never paid for the transaction in the first place, and hence the Deceased had to ask the defendant to re-transfer the Property back into her name.

118.  I find this to be a much more likely reason for the sequence of the two transfers in 1992 and 1993.  I note the reason that the plaintiff said he was told is slightly different, but I prefer and accept the explanation given by Ms Siu.

119.  On 8 March 1994, a receipt was prepared by BLC with the subject matter identified as the Property, under which the Deceased was noted to have received from BLC various title deeds and documents in respect of the Property as listed in eight items.  The copy of the receipt in the trial bundle does not in fact bear the signature of the Deceased above the signature block with her typed name (but the title deeds were subsequently found in the Deceased’s safe deposit box by the plaintiff after the Deceased passed away).

120.  Immediately in front of that receipt in the trial bundle is a copy of an envelope of the firm BLC, on which is written in Chinese “鍾偉成先生收  美孚由鍾偉成轉我名駛用  美孚屋契清單”, which has been interpreted as "To Mr Chung Wai Sing [ie.the defendant].  Mei Foo transferred by Chung Wai Sing to my name for my use.  List of title deeds of Mei Foo.”.

121.  I called for the List of Documents by which these two documents were disclosed by the defendant, which showed that the envelope and the list of title documents were disclosed as one item, perhaps on the basis that the list had been in the envelope (although that is not how they were described).  Anyway, it is likely that this envelope was used to contain the title deed list, even if it was not the means by or under which the copy receipt for the title deeds was sent to the Deceased (as the envelope is actually addressed to the defendant, not the Deceased).  The original of the envelope and the list of title deeds were produced as an exhibit at the trial.

122.  As to whether the words on the envelope were in fact written by the Deceased, the plaintiff had written to the defendant (via their respective solicitors) challenging the authenticity of the document.  Mr Wong said he was not clear on what basis authenticity was challenged, and he sought to draw my attention to various examples of the Deceased’s writing – for example on cheque stubs – from which I might make comparison.

123.  The sentences on the envelope are clearly in at least two different hands, and it was Mr Chong’s case that each sentence of the three was in a different handwriting.  He invited the defendant to agree to that, but the defendant disagreed, and he also denied that the words relating to transfer were written after the death of the Deceased.

124.  Neither party sought leave at any stage to adduce forensic evidence or expert opinion evidence as to the handwriting, despite the large number of samples of writing that seem clearly to be available from the Deceased over many years.  Of course, I am not competent to make forensic or expert examination of handwriting, and I have not done so.  There would also be disagreement in any event as to how I should interpret the writing as against the other factual material (see below).  I am, however, satisfied from looking at the original that the three sentences were written using three different pens, and so likely at three different times.

125.  Whether or not the writing (other than the “to Mr Chung” part) were in the handwriting of the Deceased, the defendant and his wife both said in evidence that they thought it was.  Of course, neither of them saw the writing being made, but they had some familiarity with the Deceased’s writing over the years.  In the absence of any other evidence, this may be the best available (though accepting it deserves some caution in the context).

126.  In May 1994, the Deceased was assisted by the defendant in arranging and paying for the renovation of the gravestone of Siu Mak Wah. The defendant was reimbursed for the expenses advanced by him in this regard. I accept this is an example of the defendant’s assistance to the Deceased in many respects over the years, and of the closeness of their relationship.

127.  Later in 1994, the defendant accompanied and assisted the Deceased on a trip to Beijing.

128.  On 17 June 1995, the Deceased made a will, in her own hand writing, dividing her “immovable properties, cash and shares” into 18 parts to be distributed in accordance with the wishes there set out.  Amongst the beneficiaries were charitable and religious bodies as well as certain individuals. Amongst the individual beneficiaries was the plaintiff.  The defendant was not named as a beneficiary.

129.  The Deceased also made a series of subsequent hand written wills dated 12 October 1998, 7 April 1999, 20 March 2002, 4 November 2002, and the Will (dated 28 June 2003).  All of those wills have certain features in common.  All of them provide for the Deceased’s “immovable properties, cash and shares.” (after paying medical and funeral expenses) to be divided into a number of parts for distribution.  All provide for various charitable bequests and bequests to named individuals.  All include the plaintiff as an individual beneficiary. None of them include the defendant as a beneficiary.

130.  As well as the will dated 12 October 1998, there was a handwritten note of the same date (which might perhaps be regarded as a codicil) by which the Deceased expressed the wish for certain jewellery to be given to certain persons and that after her death the plaintiff should be the one to should handle all matters.  This is an early identification of a desire that the plaintiff should be the executor of her estate (though it is fair to point out that in the later wills except the Will, the space for an executor’s name was left blank).

131.  In late 1999 or about February 2000, the Deceased had a recurrence of cardiac problems and a pacemaker was fitted.  The defendant helped the Deceased on this occasion.  She had various out-patient follow up. She was also hospitalised for a short period perhaps the following year.

132.  On 1 February 2002, a ‘personal emergency link’ contract was entered into for the use of the Deceased at the Property. This was to replace a system which the defendant had helped the Deceased to install a few years beforehand, and which was rather cumbersome.  The name of the contact person for the new system was stated as "Niece Ms Siu", which is a reference to Siu I Si as the mobile telephone number makes clear.  Ms Siu’s name was inserted by or at the request of the Deceased.  This contract was terminated by Ms Siu after the Deceased passed away.

133.  In February 2002, the Deceased sold the Wing Lok Street property (previously owned by Siu Jook Ming, and which she had taken over as formal owner in mid-1997) for the price of $668,000.  From that date in early 2002, it is clear that the only immovable or real property that it might be said was owned by the Deceased was the Property.  It is to be noted that the two wills drawn by the Deceased in March and November 2002 refer to “immovable property”, and the Will refers to “real property”.

134.  It seems that in late 2002, the Deceased had an operation in relation to rectal cancer.

135.  As stated, the Will was made and dated 28 June 2003. The individual beneficiaries under the Will include various relatives and friends of the Deceased.  There are 22 beneficiaries in all.  The Will leaves her “real property, shares and cash” to be distributed in accordance with the instructions contained in the Will.  Undoubtedly, at the time the Will was drawn the Deceased held both shares and cash; and the only real property to which she could have been making reference was the Property (as it was the only real property in her name from after February 2002).

136.  The plaintiff is identified in the Will as the executor, and his name was in fact written onto the document by the plaintiff himself.  He explained in evidence that he was asked by the Deceased to be the executor, and to sign on the document against the designation as executor to show that he was content to be so appointed.

137.  At one point in his cross-examination of the plaintiff, it seemed that Mr Wong was going to suggest that the plaintiff's name was to be found on the Will because he had signed in the space left for the identification of the executor only after he looked for and found the Will after the Deceased passed away.  As there had been no previous suggestion in the pleadings or any witness statement that the plaintiff was not properly appointed as executor in accordance with the wishes of the Deceased, I stopped that line of cross-examination.  But in answer to a question from me, the plaintiff confirmed that he would not have added his name after the death of the Deceased.  Lest there be any doubt, and though the matter strictly does not arise as an issue, I will state that I am satisfied that the plaintiff was properly appointed as executor of the estate of the Deceased according to her wish.

138.  About six months prior to the Deceased’s death, she apparently decided to set aside $200,000, which was placed in a joint account opened in the names of the Deceased, the plaintiff and Ms Siu.  This was done, according to what Ms Siu says the Deceased told her, because of the Deceased’s ill-health and her habitual hospitalisation every now and then, so that it would make sense for the joint savings account to be opened.  The money could be used whenever needed for medical and funeral expenses, and could be withdrawn by the plaintiff and Ms Siu acting jointly.

139.  In January 2004, the Deceased was hospitalised for a bone fracture.  I accept that the defendant assisted in arranging the Deceased’s transfer from the QEH to the Baptist Hospital, with which she was more familiar and comfortable.  Thereafter, she received additional care at home from private nurses working in shifts.  This nursing care was also arranged by the defendant, as there are numerous invoices issued to him in relation to it.

140.  The core of the defendant’s evidence is that on 2 May 2004, the Deceased phoned him and asked him to go to the Property, where she gave him a pile of letters (six in total) and said, “I will return the house to you now”.  She also held his hand and said, “After I die, you and your wife live here, because you do not have any children.  Mei Foo suits you because of convenience”.

141.  It is to be noted that the reference to "return" of the Property (the words used in the witness statement) are different from, and inconsistent with, the pleaded case of a gift in contemplation of death in 2004.  The alleged words of gift are also not otherwise the same in the pleadings and the witness statement.

142.  During this conversation, the defendant says, the Deceased gave him a string of four keys identifying one key was for hanging clothes, two identical keys were for Siu Ping Wai’s wooden cabinet, and one was for the letterbox.  Photos of the keys, except the letter box key which was later replaced, were in the bundle.  It is to be noted that these keys are not “the keys to the Property” in the sense that that phrase as was pleaded in the Defence would ordinarily be understood.

143.  Inside five of the envelopes were receipts for ‘security’, ‘water’, ‘electricity’, Towngas and Rediffusion.  The envelopes in question were in the trial bundle, all essentially dating back to the original security deposit and setting up of utilities in 1976.  The sixth letter was the BLC envelope, including the words “Mei Foo was transferred by Chung Wai Sing to me for my use”, with the list of title deeds inside.

144.  The defendant says the words of gift, the handing over of the envelopes and keys were all signs of the fact that the Deceased gifted him the Property in contemplation of her death.

145.  Mr Chong for the plaintiff did not accept that the Deceased used those words to the defendant, nor that she gave him the envelopes and keys.  Mr Chong suggested that the defendant might have found the envelopes and keys when he subsequently searched the Property and the wooden cabinet.  I think there is some force in this.  The defendant already had keys to the Property, and anyway I do not see why handing over the keys to a laundry area, the letter box and to the wooden cabinet (even assuming that happened) should be taken to be an indication of gifting the Property in which the cabinet is to be found.  Similarly, the very old utility receipts dating back to 1976 do not strike me as being likely to have been the indicators of a gift of the Property.

146.  In the language of the cases, I do not think those items amounted to the indicia of title to the Property.  Without deciding what would be necessary, I am satisfied those matters were not sufficient to constitute the Deceased’s parting with dominion over the Property.

147.  As Mr Chong submitted with some considerable force, if the deceased was really so well-prepared to make the gift to the defendant on 2 May 2004 and called him over for that purpose, there is no reason why should could not and would not have simply given him the key to the safety deposit box which held the title deeds to the Property.

148.  There was some argument arising from the plaintiff's finding the key to the safe deposit box.  In his witness statement, he said he found that key (along with various other items, including the Will – see below) in a shoebox and in accordance with the instructions given to him by the Deceased.  The plaintiff was not cross-examined on this aspect of his evidence, which is not surprising in light of the fact that neither the defendant nor his wife contradicted that evidence in the supplemental witness statements which otherwise contradicted other specific parts of the plaintiff's witness statement.

149.  Nor, even assuming that the defendant was given the keys to the wooden cabinet, was there any suggestion that the plaintiff had somehow broken into the It to gain access to a shoebox in which he was able to find the safe deposit box key.  Therefore, I do not think there is anything in Mr Wong’s submission that the gift in contemplation of death was complete on 2 May, irrespective of anything which the plaintiff might have done by finding the key in the premises on 15 May 2004.  None of the points put forward by Mr Wong in this regard take anything away from the strong submission made by Mr Chong, which I accept.

150.  Importantly, the defendant also faces the hurdle caused by his inconsistent approach.  The words of supposed gift which he put forward in his witness statement relate to the “return” of the Property.  As I have held, those words are not consistent with a gift of property in contemplation of death only in 2004.  Further, I have already rejected the defendant's case, pleaded or not, that there was a gift to him of the Property in 1992.  Hence, the suggested wording relating to the “return” of the Property would take him nowhere.

151.  I also accept Mr Chong’s submission that these words do not seem to satisfy the first requirement of a donatio mortis causa, as the idea of “returning” the Property does not evidence an intention to give, does not identify a present gift in contemplation of death, and does not show a gift to be absolute and complete only on the Deceased’s death.

152.  I reject Mr Wong’s submission that there is nothing to be read into the use of the word “return” this was a discussion between laymen, and the essence of the discussion was that the defendant would have the use of the property after the death of the Deceased.  It seems to me that Mr Chong is correct when he says that there are two inconsistent versions being put forward.

153.  I would also note that, until I raised the possibility in closing submissions, it has never been part of the defendant’s argument that the transfer of the property to him in 1992, I could be for him to hold as trustee on trust for the benefit of the Deceased. Anyway, if that is the proper legal analysis of the underlying facts, that would merely mean that the trust came to an end in 1993, when the transfer was made of the legal title back to the beneficial owner.  I would note that such an analysis might suggest less of an inconsistency in the use of the word “return”, but the defendant would even then be faced with all the other surrounding materials which I have considered.

154.  As to the remainder of the words, being the alleged indication that the defendant and his wife should live in the Property after the death of the Deceased, I do not accept that those words were in fact spoken. Rather, as against the relevant legal approach, I prefer the inference to be drawn from the totality of the evidence that no such words of gift were spoken in early May 2004.  As I do not think the defendant has produced clear and reliable evidence in support of his case, I reject the idea of a gift in contemplation of death in 2004.  I do not think the facts of this case are like the facts of Sen v. Headley [1991] Ch 425, as was submitted by Mr Wong. I do not think there was any act or word by the Deceased as constituted the parting with dominion over the Property in favour of the defendant.

155.  I have in mind, and have taken into account, the words written on the sixth envelope, being the BLC envelope.  First, there is some doubt as to the author of those words, though the defendant might be right in saying that the handwriting looks different because some of it may have been written by the Deceased years after some of the rest of it, and a person’s handwriting changes over time. Secondly, there is simply no evidence as to when the words might have been written, and in what particular context they were written.  The defendant himself said he had not seen the envelope before he says it was handed to him.

156.  I acknowledge that, if the words were indeed written by the Deceased, one way of reading them would be consistent with her stating that the defendant had transferred the Property to her to use on some kind of trust arrangement.  But that is not the defendant's pleaded, nor was it ever his primary, case.  I also consider the words are capable of being read consistently with the version of events which Ms Siu says the Deceased told her, namely that the defendant transferred the Property in 1993 because he had failed to pay the consideration in return for which it was transferred to him a year earlier.  Obviously, if the defendant had paid the consideration, Property would be his to use; but if he had not paid the consideration, he should have transferred it back to the Deceased for her to use.

157.  I also take into account as part of the circumstances that there is significant evidence that the Deceased was meticulous over her financial dealings and accounting.  This appeared to be common ground from the witness statements filed by the defendant, in which he stated that it was the Deceased who insisted that he should keep a clear and accurate record of monies expended on her behalf, so that she could reimburse them.  However, in his oral evidence, the defendant tried to change tack, and suggested that it was he who had been keen on the account book records. I did not find that departure from his written statement to be convincing.  It also seemed to me that the defendant’s wife also unconvincingly tried to alter her oral evidence from that in her witness statement on the same point in an effort to match the oral evidence of her husband through which she had just sat.

158.  Also, it is clear from the evidence that the Deceased had been very careful and specific as to how she wanted to distribute her assets after her death, even for her rings and earrings, in respect of which she made specific written notes of instruction or codicils.

159.  Further, had the Deceased regarded the Property as ultimately belonging to the defendant, she had numerous occasions on which she might have said so.  Each time she re-wrote her will over the years from 1995 to 2003 – and the defendant suggested she might have made even more versions than were found and produced – she could have made clear that the defendant was the real owner of the Property, but had allowed her to use it during her lifetime.  Alternatively, she could have made a specific bequest of the Property to the defendant. On the defendant's assertion that the Deceased was of perfectly sound mind on 2 May 2004, she could have re-written her will, or made a codicil to the Will, clearly identifying the ownership of the Property or gifting/leaving it to the defendant.  But she did none of those things.

160.  I also thought it was striking when, in cross-examination, the defendant was asked why he thought he had not been mentioned as a beneficiary in any of the wills including the Will, and he gave an unclear and evasive answer.  He did not give what would have been the obvious answer had his case been true, namely that there was no need to make any bequest in his favour because he was already the owner of the Property and would get it back after the Deceased’s death.  I note that Mr Wong in submission also identified this as the answer – but Mr Wong’s submission is not evidence and the defendant did not give that evidence.

161.  Of course, I recognise that that obvious answer would also be at odds with the pleaded case of the gift only in contemplation of death in May 2004.  But the defendant’s case was redolent with internal inconsistencies.

162.  There is also some considerable doubt as to the state of mind of the Deceased in early May 2004, and therefore her ability to have made competent testamentary decisions, or decisions as to gifts in contemplation of death.  Plainly, the Deceased was extremely ill by early May 2004.  She appeared to have final stages of cancer, and had been hospitalised earlier after breaking a bone. After release from hospital in February 2004, she had spent more than two months at home under round-the-clock specialist nursing care, which the defendant himself thought was necessary and appropriate.  Shortly after the Deceased was hospitalised, she lapsed into a coma from which she never recovered.

163.  The plaintiff and Ms Siu also gave evidence that in the last few days before the Deceased was hospitalised in May 2004, her condition had markedly deteriorated and she appeared unsettled and confused.  I accept their evidence in this regard, and the evidence of Ms Siu that one of the nurses told her that the Deceased was displaying signs of confusion as to who had been visiting her.

164.  In support of his case, the defendant referred to the fact that a friend of the Deceased had been staying with her from 2 to 5 May 2004.  That friend is Miu Kin Yee, who incidentally is one of the beneficiaries under the Will.  The defendant said that the Deceased wanted to spend time chatting with Miu Kin Yee, who had travelled from Beijing where she lives, and so he cancelled some of the nursing shifts whilst Miu Kin Yee was there.  That, he said, evidenced the clear and sound mind of the Deceased.  I am afraid that I do not agree that it does so.

165.  Further, had it been thought that Miu Kin Yee’s presence in early May 2004 was useful evidence as to the Deceased’s then condition of mind, I would have expected to have seen a witness statement from her.  No explanation was offered as to why Miu Kin Yee did not give a witness statement, or was not called to give evidence in support of the defendant’s case.

166.  The defendant also called one of the specialist nurses as a witness, namely Shum Kin.  Madam Shum adopted as part of her evidence her witness statement in which she described the Deceased as a very talkative person, who was very happy to see the defendant when he visited her often.  I have no reason to doubt those points, and accept them.  She also remembered that the Deceased was able to express her own pain when pressing her liver, even after admission to the hospital in May 2004, and seemed to recognize visitors.  I note Madam Shum did say in her oral evidence that the Deceased’s speech was by then not good or clear, although she also said that “from the look on the Deceased’s face she was very conscious”.

167.  In her oral evidence, Madam Shum insisted that she was able to speak to the Deceased’s condition of mind on 2 May 2004, as she was working then.  She denied she had taken any days off.  However, it is quite clear from the defendant’s own contemporaneous records in his accounting book that Madam Shum did not work on either 2 or 3 May 2004; she was apparently the nurse whose shift was cancelled because of the presence of Miu Kin Yee.  I do not think the fact that Madam Shum might have worked on 1 May 2004 assists the defendant.

168.  It is not surprising that Madam Shum’s evidence in this regard was not reliable as her witness statement makes clear that she was asked to be a witness, and presumably first asked to recall events, only shortly before she made her statement on 22 January 2014, almost 10 years after the relevant events.  I find that Madam Shum’s evidence gives no assistance in establishing that the Deceased was of sound mind on 2 May 2004.

169.  In passing, I note but place no particular weight on the fact that one nurse – a Ms Lam – did work a shift on 2 May 2004, but she was not called as a witness by the defendant, without any explanation as to why not.

170.  There are no hospital admission records in evidence from which it might have been possible to see what the medical staff thought of the Deceased’s state of mind shortly after that time, though I note the defendant’s evidence that the Deceased largely conducted her own admission.

171.  I have already stated that had the Deceased been of sound and clear mind I would have expected her to have made any gift to the defendant far clearer, and to have done so in her own handwriting.  At the end of the day, I consider on the evidence as a whole that there is at least a strong doubt as to the Deceased’s state of mind on 2 May 2004.  At bottom, I cannot find on the balance of probabilities that she was of sound mind on that day.

172.  As to where the burden of establishing this point lies, I accept that in his Reply the plaintiff raised the allegation that the Deceased was not of sound mind, but proving the validity of the alleged gift overall seems to me to be a burden borne by the defendant.  But as can be seen, this point is not ultimately determinative of the central issue.

173.  In reaching my conclusions as to the question of a gift, I have also taken into consideration the possibility that the Deceased might have wanted to give the Property to the defendant as a mark of recognition of the care and attention he had shown to her over the years (much of his evidence in this regard having been accepted by me).

174.  But against that possibility weigh the facts that: the defendant had been providing care and assistance to the Deceased, and earlier to at least Siu Ping Wai, over a long period, yet neither of them had seen fit to include him as a beneficiary in their wills, or indeed any version of them. Also, it is clear from the evidence that a number of other persons were providing care and assistance to the Deceased over the years, including the plaintiff (though I accept his involvement was far less than that of the defendant) and Ms Siu in particular.  In this regard, it is to be noted that the joint account set up by the Deceased to pay for medical and funeral expenses was with the plaintiff and Ms Siu (and not the defendant).

175.  I also accept Mr Chong’s submission that in the circumstances where the Deceased had drawn a number of wills leaving her assets to be distributed amongst a large number of beneficiaries, including various relatives and friends, it is unlikely that she would have gifted away the Property – which formed a significant part of her assets – to just one single person.

176.  The Deceased was admitted to the Baptist Hospital in a serious condition on around 8 May 2004 (the defendant says 4 May). She slipped into a coma within a day or so of her admission, never regaining consciousness until she died on 14 May 2004.

177.  Shortly before 14 May 2004, and fearing that the death of the Deceased might lead to the bank account being ‘frozen’, the plaintiff came back from a trip to China and with Ms Siu withdrew the $200,000 from the joint account held with the Deceased and deposited it in another account held by just the plaintiff and Ms Siu (and opened for that purpose).

178.  Despite Mr Wong’s criticism in submission, I do not think it apt to take against the plaintiff that he went first to the bank before coming to see the Deceased in hospital.  He had been told the Deceased was in a coma and nearing death, and there was little he could practically do at the hospital, whereas there was real practical benefit in ensuring that funds were available to pay for medical expenses and funeral expenses.

179.  Indeed, some of the funds, around $44,500, were used immediately on 13 May 2004 to reimburse the defendant and his wife for medical and other expenses they had paid on behalf of the Deceased, which reimbursement was (according to Ms Siu) demanded by the plaintiff.  Though the plaintiff denied making that demand, it seems likely that was how the reimbursement occurred then, but in any event it is the fact of the reimbursement at the time (rather than who instigated it) that is important.  There is a receipt given for those funds shown on the account book that the defendant and his wife used to record expenses for later reimbursement.

180.  The remainder of the funds were later used for funeral expenses and a few other small matters, save for around $10,000 which the plaintiff still has.  That sum would fall into the estate.

181.  Ms Siu gave evidence that shortly after the Deceased passed away, and at the hospital, the defendant asked her what would happen to the estate.  As Ms Siu had been given a copy of the Will by the Deceased, and understandably had it to hand, she says she showed it to the defendant who said he had been “stupid”.  The defendant denied this conversation, but in circumstances when it seems the defendant was not aware of any testamentary wishes of the deceased before she died, I tend to prefer the evidence of Ms Siu (whose evidence I found generally measured, straightforward and honest).  The defendant would have seen the reference to “real property” and would have known that the only such property in the Deceased’s name was the Property.

182.  It seems to me that in light of the real care and attention that the defendant had clearly shown to the Deceased on and off over the years (which I accept), he might well have in that moment felt “stupid”, and said so.  As Mr Wong put it in submission, it might be said that the defendant had cared for the Deceased in a way that even a son might not, especially in her last months.  I accept that was his reaction to being shown the Will.

183.  None of the witness statements filed by the parties clearly dealt with the period from May 2004 until 2012.  This was expanded on orally.

184.  The plaintiff said that he went to the Property on 15 May 2004 to find and take possession of the Will and bank account passbooks and the key to the safe deposit box in a shoebox, as had been described to him by the Deceased at the time that the Will was signed by him as executor in 2003. I do not think it is fair to suggest, as Mr Wong did, that the plaintiff “rummaged” for the Will.  As executor, the plaintiff was perfectly entitled and would have been expected to find the Will and other important documents and items, such as the safe deposit box key.  I accept the Deceased had told him where to find them.

185.  After finding the Will and the other items found on that occasion, the plaintiff also visited the Property a few more times, including to find suitable clothes for the Deceased's burial, and to tidy and clear some of the contents of the Property.  On at least one occasion he went with Ms Siu.

186.  I note that in order to gain access the plaintiff had keys to the Property, which he said he had been given by the Deceased some years previously.  Ms Siu also said that she had been given keys to the property some years beforehand to enable her more easily to come and visit and care for the Deceased.  I accept both their evidence in this regard.

187.  On one occasion, the plaintiff says, he saw the defendant also at the Property, but they merely exchanged a few words.  In his witness statement, the plaintiff also specifically referred to another occasion when he found some paper boxes in the living room of the Property containing many photos of the Deceased taken at his apartment in China.  As he was looking at photos, the defendant came into the Property and the plaintiff said “You are here again?” and told him about photographs.  The defendant merely said, “really?”.

188.  During cross-examination of the plaintiff, it was specifically put to him that no such event had taken place, with which the plaintiff did not agree.  Further, in his supplemental witness statement, the defendant specifically said in answer to the plaintiff’s witness statement dealing with the above two occasions that he had in fact not met the plaintiff after the Deceased passed away until her funeral, and did not meet him again until sometime in 2005 (notably, at the Property).

189.  However, the defendant’s oral evidence inadvertently gave the lie to his supplemental witness statement (and the instructions upon which the plaintiff was cross-examined).  For, in his oral evidence, the defendant said that he did see the plaintiff clearing up photos in the Property, and told him to “take his time”.  From this, I accept the plaintiff's version of events, and I specifically note that there was no suggestion that the defendant expressly stated to the plaintiff that the Property belonged to him (the defendant).  If it suggested that the reference to taking time is an assertion of ownership, I reject that evidence.

190.  The defendant stated that he and his wife were distracted by the ongoing illness of his wife’s father-in-law, who passed away in February 2005.  Hence, he said, it was only when they felt psychologically better that the defendant and his wife would go back to the Property.  In his witness statement, the defendant merely said that they did so “to clear up miscellaneous items several times in the past years”.  In her witness statement, the defendant’s wife stated that after 2005 they had renovated the Property “many times” and “now take it as our residence in Hong Kong”.

191.  In oral evidence, the defendant suggested he and his wife moved into the Property sometime in 2007, but in her oral evidence his wife put the date as 2009 – which date she said could be shown by the utility bills (although they were not in evidence).  There was in evidence a receipt for an amount of $31,455 paid by one cheque in May 2007 for overdue management fees for the Property.  I accept this sum was paid by the defendant’s wife.

192.  The land registry entries for the Property identify that the management company registered in a memorandum of charge against the Property in June 2005.  This was apparently not released after the cheque payment in May 2007, and was only released after the plaintiff had paid further management fees after taking probate. The memorandum of release recorded on the land register is dated 23 November 2012.

193.  Whilst dealing with the management fees, I might also mention that the invoices went unpaid, at least in part because nobody found them in the letterbox.  Where on his case the defendant had the key to the letterbox from May 2004, and that the key was one of the indicia of title by which he was gifted the Property, it is at least odd that he did not use that key for a period of apparently roughly 3 years.  Indeed, he told us that he had to change the letter box key because the letterbox became so full the original lock broke.  That does not strike me as being consistent with the defendant's pleaded case that after the death of the Deceased he took over control of the Property.  I think this also counts against him in the analysis as to whether or not there was the alleged gift in contemplation of death.

194.  The plaintiff says the defendant moved into occupation in 2006, but the plaintiff’s assertion of the date was really only a guess, and I do not think that is correct against the whole of the evidence.  He said he had not himself been to the Property between 2004 and 2012 (after the grant of probate, and when he could not gain entry as the locks had been changed).

195.  There was argument between the parties as to what occurred at a meeting between them at the Fanling MTR station in 2011.  The plaintiff says that he was invited by the defendant to meet, and the defendant told him that the Property had a water leakage problem.  The plaintiff says he replied by saying that he had not been there for long time; and there was no other discussion about the Property.  The defendant says that he received a letter from the Inland Revenue Department, addressed to the plaintiff at the Property, and arranged a meeting to give him that letter. But the plaintiff did not accept the letter and instructed the defendant to write “no such person” on the envelope if other letters also arrived.

196.  Not least because there is a letter to the defendant dated 17 August 2011 from the BD/FEHD Joint Office about the termination of an investigation of a water seepage problem at the Property, I prefer the plaintiff's version of events as being more likely.  Of course, it is to be noted that it was the defendant who dealt with the complaint, and other documents show the defendant paid for some pipe works at the Property in 2012.

197.  Looking at the evidence overall, I find that though the defendant and his wife may have dropped into the Property occasionally over the earlier years after the Deceased passed away, they only started to use the Property with any regularity and as a Hong Kong residence in 2009.

198.  I accept that the lack of activity by the plaintiff specifically toward the Property might be said to evidence a recognition by him that the defendant was the true owner of it.  But there was no evidence as to how the plaintiff could have known the Property had been gifted to the defendant by the Deceased just shortly before her death; the defendant has not suggested he told the plaintiff of that fact.  Also, I do not think the defendant’s actions actually constitute immediately taking control of the Property.  Although he has sought to explain why, nothing much was done by the defendant until at least 2007.

199.  Though the plaintiff knew he was the intended executor of the estate of the Deceased from the time he appended his signature as executor on the Will, it is not clear when he first applied for probate.  The suggestion in oral evidence was that it might have been about half a year after the Deceased passed away.

200.  However, he obtained the Will early on and he clearly took some steps in relation to the estate as there is a receipt following a joint inspection of the safe deposit box with tax inspectors from the Estate Duty Office conducted on 27 July 2004.  Amongst other things found in the box were the share certificates for the 22,420 Cheung Kong shares (see below) and the 1993 Assignment, together with eight “relevant documents”.

201.  In his oral evidence, the plaintiff explained that he had applied to the court for probate but the process had been slowed by questions from the court and an original desire not to have to incur the large legal fees that he was told would be required.  It was only later, therefore, that more active steps were taken with the benefit of legal advice and assistance.

202.  I think that explains the failure to have taken control of the Property in the interim, and the failure to have settled the various charges on the Property as they arose.  It is clear that instead, though importantly not at once, the defendant took over responsibility for paying charges including the rates.

203.  Probate was granted to the plaintiff as sole executor named in the Will on 14 September 2012.

204.  The plaintiff then checked the premises and found he could not gain entry.  He was told by the security guard that someone named Chung was living there, though he and his wife were frequently not in Hong Kong.  So the plaintiff said he arranged to see the defendant, told him he had been granted probate and asked the defendant to leave the premises.  The plaintiff says the defendant’s face fell and he asked him to hire a solicitor and sue him.  The plaintiff said he would prefer not to as it would cause monetary loss to both of them.

205.  The defendant says he met the plaintiff in November 2012, when the plaintiff told him he had probate and asked him when he would move.  When the defendant asked to look at the documents, the plaintiff’s friend stopped him, so the defendant said that the plaintiff should talk to his lawyer.

206.  These two versions of events at this meeting are quite similar; it seems that at this time the battle lines were drawn.  However, I do find it strange that – on his own case – the defendant did not say at that meeting something along the lines that the plaintiff well knew that the Property had been gifted to him (the defendant) by the Deceased.

207.  The schedule of property on death disclosed to the Estate Duty Office quotes a net principal value of the estate at approximately $3,854,000.  Included in that figure is the value of the Property at $1,500,000 (though that value is noted as ‘per affidavit; for estate duty purposes only’).  The remainder of the estate mainly comprised 22,420 shares in Cheung Kong (Holdings) Limited at a value of approximately $1,233,000; an account with DBS Vickers (Hong Kong) Limited, with roughly $500,000; and various accounts with the Hang Seng Bank Limited with sums totalling approximately $610,000.  In other words, at the time of her death, the Deceased had cash and liquid assets of over $2,343,000.

208.  I was told by the plaintiff that though some of the 22 beneficiaries have received some distribution from the estate, some have not. It seems, however, from documents produced during the trial that proper records have likely been kept by the plaintiff’s solicitors as to the estate and distributions made.  Also, a document was produced to show the 22,420 Cheung Kong shares were sold in 2012 for around $2,500,000; the proceeds are kept by the solicitors in their client account.

209.  Though Mr Wong did some exploration in his cross-examination of the plaintiff as to whether or not the plaintiff had been properly administering the estate as executor, this trial was not about that issue (as Mr Wong accepted in closing submissions) and I am satisfied that there is no proper suggestion that the plaintiff has improperly sought to benefit himself or any other beneficiary at the expense of the other beneficiaries.  The executorship continues.  Insofar as Mr Wong submitted that the plaintiff’s approach to the estate casts doubt on his honesty on the other evidence, I reject that submission.

210.  Included in the trial bundle was a medical report on the defendant, dated 27 March 2013.  It comes from a Dr Kwan, a Resident in the Department of Psychiatry, Kowloon Hospital, to whom the defendant had been referred after visiting the hospital substance abuse clinic since 2006. Dr Kwan’s diagnosis of the defendant was “mixed anxiety and depressive disorder” and “mental and behavioural disorder due to use of hypnoticsor sedative dependence”. The report also notes that the defendant had complained that since early 2013 he was troubled by conflicts with others over financial issues, including over the Property.

211.  Though I accept that the circumstances surrounding this case may well have troubled the defendant, and have perhaps triggered mental and behavioural issues, I pay no attention in my assessment of the evidence overall to what it is recorded that he said to the medical staff in March 2013. I have however borne the comments of the doctor in mind when assessing the reliability of the defendant’s evidence, including by reference to demeanour.

212.  A valuation report has been obtained from Vigers dated 19 March 2014 in relation to the market rent for the Property in the period from 2005 to 2015.  On the assumption of five two-year leases commencing on 11 June 2005 at market rentals of $7,100 going up to $12,800, the total estimated market rent receivable over that period is $1,135,200.  This is an agreed valuation.

Conclusion and orders

213.  Hence, though from some angles I have considerable sympathy for the position of the defendant, I reject his case that he was gifted the Property either in 1992 or 2004.

214.  I do not need, therefore, to deal with the allegations of undue influence.

215.  It follows that the plaintiff is entitled to vacant possession of the Property.  I order that the defendant shall deliver vacant possession to the plaintiff within 42 days.

216.  Having made that order, which I assume for present purposes will be complied with, I do not see why I need also to grant the injunction sought by the plaintiff to restrain the defendant, his agents and family members from occupying Property.  I refuse that relief.

217.  As to the claim for mesne profits, I have held that the defendant and his wife did not really take up occupation of the Property until sometime in 2009.  The Vigers valuation assumes various two-year rental periods starting on 11 June of certain years, including 11 June 2009.  On the agreed figures in that report, the total estimated rent receivable for the Property since 11 June 2009 until trial add up to $772,800.

218.  However, the occupation of the Property by the defendant and his wife has not been on a full-time basis.  Further, at a very practical level, it cannot be said that the occupation or use of the Property caused any loss to the estate of the Deceased before at least September 2012. Quite simply, no steps were being taken to be able to take full control over the Property until the grant of probate in that month.

219.  Also, it seems to me to be likely that had the defendant agreed to give up occupation of the Property when asked by the plaintiff to do so in around November 2012, first he would have been given some fair time within which to vacate, and secondly he would not likely have been pursued for mesne profits over the prior period of occupation and use.  Indeed, it might even be said that the estate has, to some extent benefited from the defendant's attention paid to the Property over the years.

220.  The writ commencing these proceedings is dated 21 December 2012.  In all those circumstances, I do not think it is therefore appropriate to calculate any mesne profits from a date earlier than January 2013.

221.  By reference to the Vigers report, and assuming a calculation of mesne profits from 11 January 2013 to this trial, I reach the figure of $364,300, being (5 x $11,300) + (307,800), which I award against the defendant in favour of the plaintiff.

222.  I propose to make a costs order in favour of the plaintiff, to be taxed if not agreed, to include the costs of the amendment application and all costs reserved. But in light of the relatively low level of mesne profits awarded (as compared with the claimed figure), and to permit the parties to review the typed version of this judgment when available, the costs order shall be a nisi order in the first instance, and will become absolute 7 days after the typed judgment is provided to the parties by the court unless an application to vary the costs is made within those 7 days.  If an application for variation is made, it may be made by letter, and it will be dealt with on paper.  The applicant for variation will file written submissions within 7 days, and the respondent will file written submissions within 7 days thereafter. No further submissions will be permitted without leave.

223.  Lastly, I express my appreciation to counsel for the efficient presentation of the cases which ensured that the evidence, written and oral submissions and judgment could be completed within the trial period allotted.