HSU WAI YOUNG v. SANFORD YUNG TAO YUNG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 962 OF 1998

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JUDGMENT

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1. These proceedings concern the property known as ALL THAT one equal undivided 435th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as The Remaining Portion of Section A of Kowloon Inland Lot No. 8279 together with the right to the exclusive use, occupation and enjoyment of ALL THAT FLAT NO. 44 on the 9th floor of MAN CHEONG BUILDING ("the Property")

2. The Plaintiff is an elderly lady who is presently 86 years old. She asks for an order that the Defendants as liquidators of Goodyear Estates Limited (formerly known as Montana Lands Limited) do execute a formal assignment of the Property so as to vest all legal and equitable interest in the Property in favour of the Plaintiff.

3. The matter arises in this way. According to the evidence of the Plaintiff given by her affirmation filed on 4th March 1998, which is unchallenged, the Plaintiff entered into a Sale and Purchase Agreement with Montana Lands Limited dated 6th August 1969 ("the Agreement") whereby she agreed to purchase and Montana Lands Limited agreed to sell the Property at the price of $40,900.00 to be payable in instalments as set out in the Agreement. The developer of the building in which the Property is situated was Montana Lands Limited as is confirmed by a land search record produced in evidence. Montana Lands Limited changed its name to Goodyear Estates Limited in May 1972. In 1969, the Plaintiff was told by a responsible member of the staff of the developer that payments for the purchase of the flat that she had agreed to buy had to be made to Goodyear Investors Limited. For this purpose, cheques drawn on the Plaintiff's bank account with the then Wing On Bank Limited were used to pay for the initial deposit as well as for the instalments due under the Agreement. Under the Agreement, the purchase price of HK$40,900.00 was to be paid by four instalments:

4. In view of the long lapse of time it has not been possible to obtain copies of the cheques drawn on the Plaintiff's account with the then Wing On Bank Limited which was subsequently taken over by Dah Shing Bank Limited. However, copies of the Plaintiff's cheque stubs or counterfoils have been produced. These show that in respect of the initial deposit of $8,180.00, two cheques must have been issued, namely, one for $1,000.00 by a cheque dated 30th June 1969 payable to a company which name included the word 'Goodyear' and the other for $7,180.00 dated 31st July 1969 to 'Goodyear'. In view of the fact that Montana Lands Limited only changed its name to Goodyear Estates Limited in May 1972, I am satisfied that the reference to 'Goodyear' on the cheque stubs shows that two cheques were issued to Goodyear Investors Limited in the said sums of $1,000.00 and $7,180.00, respectively as the initial deposit of $8,180.00. The cheques were made payable to Goodyear Investors Limited in accordance with what was required by the developer as the Plaintiff had been told.

5. Further, the receipt clause in the Agreement shows clearly that Montana Lands Limited had acknowledged receipt of the initial deposit of $8,180.00 paid by the Plaintiff. On the evidence, I am satisfied that Goodyear Investors Limited must have been the agent of Montana Lands Limited for the purpose of receiving the sums payable under the Agreement.

6. The further payments required under the Agreement were similarly paid by cheques made payable to Goodyear Investors Limited as is confirmed by copies of three further cheque stubs produced, two of which specifically mentioned the payee in full as Goodyear Investors Limited and the other to just 'Goodyear' which must be a reference to Goodyear Investors Limited. The final payment was made on 19th December 1970 in the sum of $16,360.00.

7. I am satisfied on the evidence that the Plaintiff had paid the full purchase price of $40,900.00 under the Agreement by 19th December 1970 to Goodyear Investors Limited who was the agent of Montana Lands Limited for the purpose of receiving the sums payable under the agreement.

8. Copies of four letters from Goodyear Investors Limited have also been produced in evidence. These were all addressed to the Plaintiff. The first is dated 15th November 1971 and refers to the purchase of the Property by the Plaintiff and the full payment of the balance of the purchase price. It was pointed out that the assignment had been ready for a long time and that it had not been executed by the Plaintiff. The Plaintiff was requested to attend the offices of Messrs. Lo & Lo before the 22nd November 1971 to execute the same. The other three letters were reminders sent to the Plaintiff from time to time to attend to the execution of the assignment. The last reminder produced in evidence was dated 28th June 1972. These letters provide further evidence that Goodyear Investors Limited was acting as the agent of the developer Montana Lands Limited and also confirms the full payment of the purchase price by the Plaintiff. Unfortunately, the Plaintiff did not respond to these reminders and allowed the matter to lapse for a very long time. It was only in October 1995 when she discussed the matter with her nephew that she made inquiries with her solicitors with a view to obtaining a formal assignment of the Property to her.

9. The unchallenged evidence also shows that the Plaintiff was allowed to take possession of the Property at about the end of 1970. She has been in possession of the Property ever since then without any interference or adverse claims by the developer or by anyone else. She has discharged all demand notes for rates and also for Crown rent which were issued in her name as well as discharging expenses for utilities. In my judgment, all this provides strong evidence that she is the owner of the Property. I refer also to what is stated in Vol. 17 Halsbury's 'Laws of England', 4th ed. at para. 36:

"As a general rule, title to property may be shown by the exercise of acts of ownership in connection with it. Thus, possession is not only prima facie evidence of ownership but is also evidence of the highest title of the property in question."

Also stated in para. 36 is the following:

"In addition to possession, other indicia of title are also admissible as evidence of ownership, for example receipt of the rents and profits of the property, and the discharge of its burdens and repairs."

10. Goodyear Estates Limited, formerly known as Montana Lands Limited, was wound up by an order of the court made on 20th February 1984 and the Defendants were appointed liquidators of Goodyear Estates Limited on 22nd February 1984. In view of the long lapse of the time from the final payment of the purchase price by the Plaintiff in December 1970 to the appointment of the Defendants as liquidators in 1984, it is not surprising that accounting records of Goodyear Estates Limited for the period from 1969 to 1972 were not available. Counsel for the Defendants has informed me that the Defendants take a neutral stance in these proceedings.

11. I am satisfied on the evidence that the Plaintiff is the owner of the Property and I make an order that the Defendants as the liquidators of Goodyear Estates Limited, formerly known as Montana Lands Limited, do execute a formal assignment in terms of the draft assignment as exhibited in "HWY-17" of the affirmation of the Plaintiff filed on 4th March 1998 in the action herein to vest all legal and equitable interest in the Property in favour of the Plaintiff. The legal costs in respect of the assignment should be borne by the Plaintiff and the Defendants are entitled to use their own solicitors for the purposes of the assignment.

[After hearing submissions]

12. It seems to me that the order for costs that I should make is that costs should follow the event. The Defendants as liquidators could have applied to the Companies Court for directions as what they should do about the request of the Plaintiff for a formal assignment but they chose not to do so. Instead, the Plaintiff has had to bring these proceedings and I make an order that costs should follow the event. The Plaintiff is to have her costs of this action.

13. I make an order that the assignment be executed within 14 days. I also give the parties liberty to apply at short notice to me on the question of the assignment if there are any problems arising on the formalities of the assignment.