TAI ROSA YIN HAR v. CHAN SIK MING HARRY AND ANOTHER

HCA353/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 353 OF 2010

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REASONS FOR JUDGMENT

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1.  This is an unhappy dispute over the ownership of and rights in respect of a former matrimonial home, brought about by the behaviour of the first defendant as will be apparent.

2.  The plaintiff is the former wife of the first defendant and former daughter-in-law of the second defendant (being the mother of the first defendant).  The second defendant is now 83 years of age.

3.  The plaintiff and the first defendant were married in 1987 and formally registered their marriage in Australia in 1988.  They had two children together.  Their initial matrimonial home was in Taikoo Shing and in 1990 another property was bought, in Whampoa Garden, this being the subject of this action.  Originally it was registered in the names of the then husband and wife as joint tenants.  The husband in a statement made in 2003 asserted that he alone paid the purchase price of $1,468,000HKD.  This fact has some bearing on one of the contentions of the second defendant in her Defence and Counterclaim.

4.  Shortly after the purchase of the Whampoa Property the first defendant’s mother was allowed to move into the property so that it did not remained unoccupied, the husband and wife continuing to live in the then matrimonial home.  In 1994 he persuaded his wife to sign a Power of Attorney to enable him to exercise a power of sale over the Whampoa Property and in 1994 he entered into an agreement to sell the property for $5,130,000HKD.  In 1995 that sale fell through and the first defendant was able to retain the deposit paid.  Clearly the first defendant’s actions were unconstrained by any notion on his part that his mother had any rights or entitlement in respect of the property.  He was a man of some means and was able to provide her with accommodation if she had no means of her own.  This is readily apparent from an undertaking he gave over a decade later.  In the meantime however his mother continued to occupy the property.

5.  At the instigation of the husband his wife and children had in the meantime emigrated to Canada in 1993.  It was intended that he should join them at some stage.  He did not do so on a permanent basis though he did make visits to see them.

6.  In 1997 his wife and children left Canada and returned to Hong Kong.  Shortly thereafter she became aware of her husband’s relationship with one or more women.  Perhaps as a result of the deteriorating relationship between husband and wife, the former transferred his interest in the Whampoa Property to his wife in June/ July 1998.  She thus became the exclusive owner of the property.  Their relationship obviously deteriorated further because in 2002 she presented a divorce petition.  The decree absolute was granted in June 2006.

7.  In the same month the Family Court made an order by consent finalising the financial arrangements between the parties.  Amongst these were undertakings by the ex-husband (the first defendant) to continue to meet the outgoings of the two properties being the former matrimonial home (the Taikoo Shing Property) and the Whampoa Property, both of which were in the sole name of the ex-wife (the plaintiff).  Of particular importance was an undertaking in the following terms:-

“to procure his mother [the second defendant] … to vacate and deliver vacant possession of the Whampoa Garden Property on or before the 30 June 2006.”

He is in breach of that undertaking to the court – itself part of the consensual agreement between the parties – as he has allowed his mother to continue to occupy the property up to the present. 

8.  That he is a relatively wealthy man and in a position to meet that obligation is demonstrated by the fact that he also agreed to pay his former wife a lump sum of $4,000,000HKD (albeit in three instalments over a period of twelve months), monthly periodical payments of $50,000 until her remarriage as well as periodical payments for the maintenance of the children until at least, their 25^th birthdays. 

9.  Since that agreement he and his mother have failed to give vacant possession of the Whampoa Property to the plaintiff, and despite requests by her and her solicitors the second defendant has remained in occupation. 

10.  Accordingly the plaintiff commenced proceedings in 2010.  In June of that year she obtained judgment in default against both defendants.  Then in July 2010 she obtained leave to issue a Writ of Possession for recovery of the property.

11.  The second defendant then applied for leave to set aside the judgment entered against her and the Writ of Possession.  Master Levy dismissed this, rightly in my view, so she appealed against Master Levy’s decision.  In October 2011 that appeal was allowed, the learned  Deputy Judge understandably taking the view that with all the factual and legal issues now raised by the second defendant, who is in her eighties, and having been in occupation of the premises for approaching twenty years, a full hearing of the conflicting claims should be allowed. 

12.  She filed a Defence and Counterclaim.  Somewhat surprisingly her son, the first defendant, made no attempt to set aside the judgment against him.  It was therefore immediately apparent that there would be no support from him in her contentions. 

13.  By reason of the allegations by her that she had made a not insignificant contribution to the purchase price of the Whampoa Property, of $400,000HKD the Plaintiff’s solicitors pressed the second defendant for disclosure of documents particularly in relation to bank statements.  An order was made against her requiring compliance on her part.  She did not comply.  In due course her solicitors came off the record.  She did not attend the pre-trial review on 24 January of this year.

14.  When this case was called on before me for trial she was absent.  By the time essential proceedings had concluded, at about 10:45 am, she had still not appeared.  In view of her lack of interest since the beginning of this year, it had already seemed that she would not be attending.

15.  The plaintiff gave formal evidence on oath adopting the contents of her statements and affirmations.  I accept her evidence as truthful.  It is of course supported by documentation and expressly and implicitly by statements and affirmations of her former husband which run contrary to what his mother contends.

16.  I reject the second defendant’s contentions in pleadings, affirmations and statements that she made financial contributions to the purchase price, and that she acquired or was even promised a life interest.  Her occupation of the property has been on the basis of no more than a licence and the duration of that licence has not bestowed any other right, or equitable interest upon her.  She has not given viva voce evidence against the case advanced by her former daughter-in-law.

17.  Accordingly there will be judgment for the plaintiff, as prayed for in the Statement of Claim.  The plaintiff is entitled to vacant possession of the premises by 30 May 2014; the counterclaim is dismissed; the plaintiff is to have her costs of the action to include those of the counterclaim, to be taxed, and, finally the plaintiff has leave to use such documents in this action and in the divorce proceedings in the District Court, FCMC 1429 of 2002, as deemed appropriate in any further proceedings for contempt against the first defendant or any other proceedings for the purpose of enforcing this judgement.