FU LAM LAM v. FU TING TING

DCMP 3116/2021

[2025] HKDC 1383

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3116 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  This is the Plaintiff’s application for leave to appeal against my Judgment delivered on 19 March 2025 (“Judgment”).

2.  As can be discerned from the Judgment, this case involves a dispute between two sisters over the beneficial ownership of the property known as Suite 3007, 30^th Floor, Tower A, Galaxia, No 3 Lung Poon Street, Diamond Hill, Kowloon Hong Kong (“the Property”). The facts of the case have already been set out in the Judgment and I shall not repeat the same here, but I shall refer to the relevant facts and reasons of my findings as are considered necessary below.

3.  To recapitulate, the Plaintiff’s case is that both parties are entitled to the beneficial interest of the Property in equal shares, whereas the Defendant counterclaims that whilst the parties had initially contributed equally to the mortgage repayment and outgoings, there had been a common intention between them since around December 2002 or January 2003 that their ownership would be in proportion to their respective contributions to the mortgage payments and outgoings. It is the Defendant’s case that she would own 79.6% whilst the Plaintiff would own only 20.4% of beneficial interest in the Property.

4.  The trial took place for 4 days. On 19 March 2025, I delivered the Judgment dismissing the Plaintiff’s claim and allowing the Defendant’s counterclaim based on common intention constructive trust, with costs. Upon the undertaking that the Defendant shall buy out the Plaintiff’s share in the event I find in her favour, I made an order in the following terms:

(1) A declaration that 79.6% of the beneficial interest, rights and title in relation to the Property are held on trust for the Defendant;

(2) The Plaintiff do take all necessary steps to convey, transfer and/or assign the 20.4% of the interest, rights and title in relation to the Property held by her to the Defendant at the prevailing market value;

(3) The Plaintiff shall sign and execute all necessary instruments and do all acts as are necessary to effect the sale of the 20.4% interest, rights and title in relation to Property to the Defendant within 7 days of any request made by the Defendant, failing which Ms Cheng Mi Kuen of Messrs L&L Lawyers be appointed pursuant to section 8 of the Partition Ordinance (Cap 352) and/or section 51 of the Trustee Ordinance (Cap 29) to execute, on behalf of the Plaintiff, the necessary agreement, conveyance, assignment, and all other necessary documents (if any) to give effect to this order and/or to convey the Property and all interest therein to the Defendant;

(4) All reasonable costs and expenses, including legal costs, payable or incurred for the purpose of the sale be shared equally between the Plaintiff and the Defendant;

(5) A declaration that the Notice of Severance dated 20 March 2021 (signed and served by the Plaintiff) is of no effect and its registration by Memorial No 21032502360012 in the Land Registry should be vacated.

The application for leave to appeal

5.  By a Summons dated 16 April 2025 (“the Summons”), the Plaintiff applies for leave to appeal against the Judgment on the following grounds (as set out in the draft Notice of Appeal attached to the Summons):

(1) I have erred in finding for the Defendant that there was a post-acquisition change of common intention in a domestic context in around late 2002 in that I have failed to appreciate that, in law, an express agreement to change beneficial ownership of each co-owner post-acquisition can only be formed exceptionally with compelling evidence. In particular, it is put forward that I have failed to discuss or set out independently how exceptional the Defendant’s case is that would justify a post-acquisition change of common intention between the parties by oral agreement;

(2) It is plainly wrong for me to have accepted the Defendant’s case whilst she had asserted matters which were either self-contradictory and/or unpleaded and/or being a recent invention in the box. In particular, the Plaintiff has set out the following complaints:

(a) The trial Judge failed to appreciate and/or take into account the significance of the discrepancies of the alleged common intention as pleaded in the Defence and Counterclaim and the Defendant’s witness statement. The discrepancies cannot be salvaged by simply making a choice not to calculate the outgoing and expenses at the witness box;

(b) The trial Judge also failed to appreciate and/or take into account the significance of the lack of a “cut-off point” or date for determining the respective shares of the parties;

(c) The trial Judge also failed to appreciate and/or take into account the significance of the recent invention by the Defendant in the witness box that she had told the Plaintiff in 2009 that the Plaintiff had only around 20-30% of the beneficial interest in the Property;

(d) The Trial Judge also failed to appreciate and/or take into account the significance of the fact that the Defendant’s case that she and the Plaintiff respectively owns 79.6% and 20.4% beneficial interest in the Property was raised for the first time in 2021 with no written documentation between the parties over 20 years;

(e) The trial Judge also failed to appreciate and/or take into account the significance of the WhatsApp message sent out by the Plaintiff in July 2019 saying that “市值租金二萬蚊俾個九折一半九千蚊” and other WhatsApp messages between the parties which tallied with the Plaintiff’s case instead of the Defendant’s case, and the trial Judge is plainly wrong in accepting the Defendant’s explanation;

(f) The trial Judge is also plainly wrong in accepting the Defendant’s explanation in respect of the absence of any description in the Defendant’s witness statement in respect of the reasons and contents of those WhatsApp messages of the Defendant and her witnesses Albert Fu in July 2019 subsequently deleted by them afterwards. The trial Judge also failed to appreciate and/or take into account the significance of the Defendant’s failure to put her case in this respect;

(g) Further, the trial Judge failed to, when assessing and accepting the Defendant’s case, appreciate and/or take into account the cumulative effects of the above incredibility of the Defendant’s evidence;

(h) All in all, the trial Judge is plainly wrong and/or has applied the wrong standard in accepting the Defendant’s case, either together with or independent of the above incredibility in the Defendant’s case, in this case, particularly in light of (1) the trial Judge’s recognition at paragraph 28 of the Judgment that “it is only in exceptional cases where the court may find, in an ordinary domestic case, that there was an actual common intention by mutual agreement that each party should have an interest in proportion to their respective contributions” and (2) the exceptional nature of post-acquisition agreement as highlighted in the case law.

6.  Relying on the above proposed grounds, the Plaintiff submits that leave to appeal should be granted.

7.  By the Summons, the Plaintiff also seeks a stay of execution of the Judgment pending the determination of the appeal, in the event leave is granted.

The applicable principles on applications for leave to appeal

8.  There is no dispute that leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that either (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard (Section 63(2) of the District Court Ordinance (Cap 336)).

9.  It is also well established that a “reasonable prospect of success” means there is an arguable case such that the chance of success is more than fanciful but not necessarily probable (Wing Tat Haberdashery Company Limited v Elegance Development & Industrial Co Limited [2011] 5 HKC 474 at para.6).

10.  In respect of appeals against findings of fact, the Court of Appeal in Bright Gold Ltd v Mega Well Development Ltd [2020] 4 HKLRD 26 at paras.46–48 stated that:

“46. It is well-established that this Court must have regard to the advantage enjoyed by a trial judge who received evidence on the disputed issues of fact at first hand, and would not disturb the findings of fact by the trial judge unless such findings are plainly wrong. In the absence of palpable errors in the Judge’s consideration of evidence, this Court would not interfere with the assessment of evidence and the weight attached by the trial judge to a particular piece of evidence…

47. In China Gold Finance Ltd v CIL Holdings Ltd[1], the Court referred to the judgment of Lord Neuberger in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911, [53], to identify the palpable errors which warrant an appellate court to interfere with a finding of primary fact:

‘…where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached…’

48. Misunderstanding of evidence includes a failure to appreciate the significance of a piece of material evidence in the context of a crucial factual dispute. An example of this kind of error can be found in Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791, [65] – [71]. There the trial judge failed to have regard to the inherent probative value of some evidence which actually were main planks of a plaintiff’s case on lineage and thus misapprehend their significance and did not address the same in the judgment. The Court said at [68]:

‘Whilst a judge is not obliged to address every point raised and discuss all the evidence in minutiae, the judgment must inform the appellate court and the parties how important issues raised in a trial have been resolved,see Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106. In contrast, the omission to discuss minor issues or those obviously without merit in light of the determination of a judge on other issues are unlikely to form a valid basis for disturbing a judgment: see Yui Chung Yin v Ng Kit Sum CACV 25/2013, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015.’” [underline added]

11.  In China Gold Finance Ltd as referred to in Bright Gold Ltd above, the court also said at paras.14-16 that the appellate process is not designed to give a litigant a platform for “regurgitating” his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view, and focus should be on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court.The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.

12.  The Defendant further referred to Cheung Yuk Ying Engracia v MacGregor Isabella [2023] 3 HKLRD 164 at para.28 where G Lam JA, giving the judgment of the Court of Appeal, stated:

“It is well established that the Court of Appeal is not entitled to interfere with the trial judge’s findings of primary fact unless it is satisfied, even though it does not have the advantages of receiving the evidence at first hand, that the judge’s conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, [42]. Often, as in the present case, the appellate court examines excerpts of the evidence without ‘a panoramic vista of the evidence as a whole’; it sees ‘a selected series of stills, rather than the complete film’. Even if there is a transcript of the entire trial, the impression left on the judge by witnesses ‘in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid … can never be reproduced in the printed page’. The facilities enjoyed by the trial judge go beyond the ability to watch the witnesses’ demeanour. Even reading the transcripts at length cannot give the appellate court the same immersion in the atmosphere of the trial. The judge has observed ‘the drift and conduct of the case’ and ‘has impressed upon him by hearing every word the scope and nature of the evidence in a way that is denied to any Court of appeal’. Accordingly, to succeed in this appeal the plaintiff had to meet the heavy burden of demonstrating that despite these advantages enjoyed by the Judge but not by this Court, we can nevertheless be satisfied that the conclusion of fact he has reached is not one that is reasonably open to him on the evidence.” [underline added]

The proposed Ground (1)

13.  As stated above, the proposed first ground of appeal constitutes a complaint of a failure of this court to justify a finding of post-acquisition agreement under exceptional circumstances as the basis of a change in the proportions of beneficial interest of the parties. The Plaintiff relies on Mo Ying v Brillex Development and Another[2015] 2 HKLRD 985 at para.5.8 where Cheung JA cited Lloyds Bank Plc v Rosset[1991] 1 AC 107 with approval:

“Then in Rosset, Lord Bridge of Harwich at p.132 referred to the distinction between express discussion by the parties on the shares and inference to be drawn in the absence of such a discussion:

‘The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially…

In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust…’” [underline added]

14.  The Plaintiff also says that the above test has been adopted and applied in various cases including Leung Hang Lin v Lam Mei Yung[2019] HKCFI 2819, DHCJ Alexander Stock SC at para.8(4), Tang Hin Fai v Tang Hin Lung [2023] HKCFI 2637, DHCJ Suen SC at para.94(e) and the Court of Appeal in Chen Kam Nga v Lee Ho Yin[2022] HKCA 1150 at para.19.

15.  On the above authorities, the Plaintiff submits that not only should the Court be slow in inferring a post-acquisition common intention from conduct, in considering whether an express post-acquisition agreement had been formed among the co-owners, the Court should also recognise this should be an exceptional case even in the context of a common intention constructive trust claim. The Plaintiff submits that in the present case, it would be highly unusual for the Plaintiff to have given up any part of her beneficial interest as a co-owner of the Property, and made an oral agreement as found by this court to change the proportion of her interest in the Property.

16.  The Plaintiff complains that I did not set out in paras.29 and 73 of the Judgment that for a post-acquisition express agreement to be formed, it should be an exceptional case. According to the Plaintiff, this omission “flawed the whole approach” in assessing whether the onerous burden placed on the Defendant has been discharged to show that the legal title ought to be displaced. In the event, it was not sufficient for this court to have merely stated in para.57 of the Judgment that “the Property was already making a loss from 2002” and “there is nothing unusual for the Plaintiff to agree to reduce her share when the fact was to be that the Defendant would continue residing at the Property and to serve the mortgage loan on her own without any contribution from her”.

17.  Further, the Plaintiff says that as the Defendant’s case, which was accepted by this court, is that the parties had commonly intended and/or agreed by words and/or conduct that their ownership of the Property would be in proportion to their respective contributions to the mortgage payments and outgoings, there was a potential that the Plaintiff’s entitlement could be significantly reduced or even eventually nihilated, which would be highly improbable, especially when there was no specific “cut-off” point referred to in the alleged agreement, when the contributions simply went on for the next 20 years or so.

18.  As such, the Plaintiff contends that I have applied a standard much lower than required in the case authorities cited above and erred in concluding that there was a post-acquisition change of common intention between the parties in around late 2002 or early 2003.

19.  The Plaintiff also submits that in any event, the burden is on the Defendant to establish her case even in the light of such improbabilities above, and this should be independent from any assessment of the Plaintiff’s case concerning her allegation of a “Sole Occupancy Agreement” as referred to in para.69 of the Judgment[2].

20.  First of all, with regard to the authorities referred to above, I agree with the Defendant’s contention that the use of the word “exceptional” is not tantamount to an additional standard or requirement that must be strictly established, but it is simply a reference that is to be taken to mean that post-acquisition change of common intention is a rare occurrence. This is the context in which the court should assess the situation in each case.

21.  The Defendant drew this court’s attention to para.5.8 of Mo Ying relied upon by the Plaintiff, and submitted that Cheung JA was clearly not setting out any standard or requirement of exceptionality, but was merely referring to the difference between situations where there had been an agreement or understanding reached between parties that the property in question is to be shared beneficially, and situations where there is no evidence to support a finding of such an agreement or understanding, when the court is asked to infer such common intention. I agree with this submission. It is clear the context of the paragraph cited is describing such a difference, rather than setting out a strict standard or requirement of exceptionality. In fact, as pointed out by the Defendant, it was subsequently at para.6.5 of the judgment that Cheung JA considered the situation of post-acquisition common intention, quoting from James v Thomas [2007] 3 FCR 696 as follows:

“…More pertinently, if the circumstances so demand, a constructive trust can arise some years after the property has been acquired by, and registered in the sole name of, one party who (at the time of the acquisition) was, beyond dispute, the sole beneficial owner…But, as those cases show, in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.” [underline added]

22.  In my view, Mo Ying is not authority for the contention that there should be an independent issue of exceptionality that should be expressly dealt with as apparently suggested by the Plaintiff. Neither does the other cases relied upon by the Plaintiff support her contention that there is a requirement of such exceptionality. For example, in Leung Hang Lin & Anor v Lam Mei Yung [2019] HKCFI 2819 at para.8(4) (being the paragraph relied upon by the Plaintiff), the court only said the following:

“The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention…”

23.  The same applies to the other cases referred to above. For example, in Tang Hin Fai & Anor at para.94(e), DHCJ Suen SC was adopting the same test as set out in Mo Ying referred to above. In para.94(f), the learned Deputy Judge went on to state, in relation to post-acquisition common intention:

“For common intention that is said to have been formed post-acquisition of the property, conceptually it implies a change in the ownership and in the absence of an express post-acquisition agreement, compelling evidence is required to support an inference that there was a fresh agreement as to beneficial ownership before the court can give effect to the common understanding. In that situation, there must be some evidence to infer that the original beneficial owner has agreed to give up some of his interest in the property in favour of the other party.”

24.  Nothing is said about there being an independent requirement or standard that there should be exceptionality in terms of the formation of the post-acquisition common intention.

25.  As the Defendant submits, the same applies to another case relied upon by the Plaintiff, namely Penelope Susan Van Laethem v Kim Henry Brooker & Anor [2005] EWHC 1478 (Ch), where the court stated at paras.62 and 69 (again, being the paragraphs referred to by the Plaintiff):

“62. The first question is whether, independently of any inference to be drawn from the conduct of the parties, there has at any time prior to the acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially…

……

69. Exceptionally the agreement, arrangement or understanding may be arrived at after the date of the original acquisition…where the arrangement or understanding is reached in relation to property already owned by one of the parties, he may (if the arrangement is of sufficient certainty to be enforced specifically) thereby constitute himself trustee on the basis that ‘equity looks on that as done which ought to be done’; or an equity may arise under the principles developed in the proprietary estoppel cases…”

26.  Again, reading from the paragraphs above, one cannot derive any standard or requirement of exceptionality that would need to be independently met before the court can find that there has been post-acquisition common intention, or a change of the pre-acquisition intention. At the most, the court was referring to such situations as being exceptional to the bulk of cases which are concerned with pre-acquisition common intention.

27.  After considering the above cases, I do not find that such cases can be authorities for the Plaintiff’s contention that there is a separate standard or requirement for exceptionality. I agree with the Defendant that such cases are merely concerned with the possibility of constructive trust arising in post-acquisition cases. These authorities basically only provide that there could be cases where there have been post-acquisition agreement or common understanding reached concerning the beneficial interest of properties, and the Court would be slow to draw inferences from conduct alone where there is no evidence of such express discussions or agreement reached.

28.  To make it clear, it is obvious that the reference to “exceptional” cases in para.28 of the Judgment was a reference that flowed from my consideration of the so called “balance-sheet” approach discussed in paras.25 to 27:

“26. Further, given the dispute in this case is purely a domestic one, it is instructive to note what Lord Walker said in Stack at para. 33 on such common intention:

“In the ordinary domestic case where there are joint legal owners there will be a heavy burden in establishing to the court’s satisfaction that an intention to keep a sort of balance-sheet of contributions actually existed, or should be inferred, or imputed to the parties. The presumption will be that equity follows the law…” (Underline added)

27. Such a “balance-sheet” approach has also been commented on as “artificial” and disapproved by the Court of Appeal in Chen Lily v Yip Tsun Wah Alvan (CACV 4/2016, 28 October 2016) at para 24.4.

28. As such, it is only in exceptional cases where the court may find, in an ordinary domestic case, that there was an actual common intention by mutual agreement that each party should have an interest in proportion to their respective contributions.”

29.  The present case is one where there is evidence from the Defendant that there had been express discussions and a common intention reached between the parties. This court has already considered the evidence as well as the parties’ submissions at trial, and has set out in paras.57 to 64 of the Judgment the reasons for accepting the case of the Defendant instead of that of the Plaintiff, in particular:

(1) In making its findings, this court has already considered the Plaintiff’s submission that it was “unusual for two close family members…to have agreed, subsequently, to a plan that may reduce the beneficial ownership of either one of them substantially”[3];

(2) It was not unusual for the parties to have reached such agreement because the evidence indicated that the Property was already making a loss from 2002, and there was nothing unusual for the Plaintiff to have agreed to reduce her share when the Defendant would continue to serve the mortgage loan on her own without any contribution from the Plaintiff [4];

(3) On the other hand, it would be unusual for the Defendant to have agreed to the so-called “Sole Occupancy Agreement” as contended by the Plaintiff, given inter alia the huge difference between the total monthly mortgage payments and the then market rent[5];

(4) Further, the Plaintiff’s explanation that the parties would “reach equilibrium” at the end of the 15-year mortgage term was not reasonable as it was impossible and contrary to commercial sense that the parties would be able to predict the trend in the market rent for the Property for the coming 14 or 15 years[6];

(5) Also, as to the Plaintiff’s contention that it would have been highly unlikely that the Plaintiff would have acted to her detriment in agreeing to reduce her beneficial interest progressively over the years, or even reducing her interest to nil, there being no cut-off time agreed by the parties for the contributions to be made by the Defendant, clearly, this court has already dealt with the same in paras.54-55, 57-58 and 111 of the Judgment.

30.  I do not find anything in the Plaintiff’s submissions that would support a contention that this court’s conclusion in the Judgment was one (i) which was not supported by any evidence, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate court will interfere with it. It does not assist the Plaintiff to simply repeat any of her submissions at trial, or to say that the findings in the Judgment were against the weight of the evidence. This is especially so when, as stated above, the same contentions have already been substantially dealt with in the Judgment.

31.  To complete the picture, neither do I find that the Plaintiff has pointed out any palpable error made by this court in rejecting the Plaintiff’s case that there existed the alleged “Sole Occupancy Agreement”.

32.  In the circumstances, I am of the view that there are no merits in the proposed Ground (1).

The proposed Ground (2)

33.  As pointed out by the Plaintiff in her own submissions, as this proposed ground essentially challenges this court’s findings of facts, the hurdle is a high one.

34.  The Plaintiff nevertheless submits that this court has failed to appreciate the significant differences between the Defendant’s pleaded case concerning the alleged post-acquisition common intention, her witness statement and her evidence during examination in court, as referred to in the proposed Ground 2(a) above. The Plaintiff contents that the Defendant’s explanation of the differences was no more than afterthoughts on her part and that the Defendant was clearly not a credible witness.

35.  Further, as mentioned in the proposed Ground 2(b) above, the Plaintiff also repeats her submission above that this court has failed to appreciate the lack of a “cut-off” point in the contributions to be made by the Defendant, which would eventually reduce the Plaintiff’s share in the Property to nil.

36.  The Plaintiff also complains against this court’s findings in terms of what has been set out in the proposed Ground (2)(c), (d), (e), (f) and (g) referred to above, and submits that overall this court has failed to appreciate the cumulative effects of the above points and the incredibility of the Defendant’s evidence.

37.  First of all, in relation to the discrepancies in the Defendant’s evidence relied upon by the Plaintiff, it is clear that the same have already been dealt with in the Judgment. As set out in paras.54 and 55 of the Judgment, the Defendant explained during cross-examination that the parties had not specifically listed out in detail the items that would fall under the word or words “供” or “供款” at the time, but it was the understanding between them that that would cover the expenses that a property owner would be responsible for, such as government rates and management fees. The Defendant’s eventual indication at the trial that she would not include all the relevant and continuing outgoings in her calculation of the parties’ shares of the interest in the Property so as to simplify matters does not detract from her case on what had been agreed or commonly intended at the material time. This has clearly been already dealt with in the Judgment. In any event, I do not see that the Plaintiff’s contention is valid in this regard.

38.  Secondly, concerning the lack of any agreement on a “cut-off” point, this court has already set out its view as follows:

“56. The Defendant also accepted that in late 2002 or early 2003, the parties had not expressly fixed a “cut-off point” for when the calculations pursuant to the common intention would take place. She explained that at the time, neither party could be sure when either or both of them might want to withdraw their investment in the Property. For example, the parties might choose to sell the Property before the full mortgage terms were completed, or the Defendant, who was 29 years old at the time, might decide to marry and move away, or to pursue studies abroad. The “cut-off point” would therefore be at the time of such decision, and the parties would proceed to calculate their respective financial contributions up to that point in time.

57. The Plaintiff has contended that it is unusual for two close family members, who have intended to hold the Property in the form of joint tenancy initially in equal shares, to have agreed, subsequently, to a plan that may reduce the beneficial ownership of either one of them substantially. I do not agree with such a contention. First of all, as mentioned above, it seems that the Property was already making a loss from 2002. Secondly, there is nothing unusual for the Plaintiff to agree to reduce her share when the fact was to be that the Defendant would continue residing at the Property and to serve the mortgage loan on her own without any contribution from her.”

39.  Obviously, the argument by the Plaintiff that such an arrangement is inherently improbable as it would likely reduce the Plaintiff’s share to nil has also already been dealt with in paras.57 to 58 of the Judgment.

40.  As observed in para.58 of the Judgment, the amount of such outgoings to be ascertained is a separate matter for calculation. It was understandable that the Defendant had not taken a “balance-sheet” approach in ascertaining the exact amount of such outgoings. What is important is whether the parties had a common intention to reflect their shares of contribution in the ownership of the Property, and this court has already made findings in this regard. Notwithstanding the Plaintiff’s attacks on the lack of a “cut-off” point and whether outgoings were to be calculated, this court did not think that it would lead to a necessary conclusion that there was no common intention as now alleged by the Defendant. The Plaintiff has only repeated her arguments in this application.

41.  Thirdly, in paras.71 as well as paras.98 to 105 of the Judgment, this court has also dealt with the matter which the Plaintiff alleges that I have not taken into account, namely the matters concerning the alleged recent invention by the Defendant that she had told the Plaintiff in 2009 that she only had around 20-30% of the beneficial interest of the Property and related allegations concerning the Defendant’s evidence over her actual share (e.g. the WhatsApp messages between her and the Plaintiff). Again, the Plaintiff is in this application simply repeating her submissions at the trial whilst alleging that this court has failed to appreciate or taken into account her contentions fully. There is no particular point made as to why the findings were not supported by any evidence, or were based on misunderstanding of the evidence, or that they were findings that no reasonable judge could have reached.

42.  Fourthly, in relation to the Plaintiff’s allegation that this court was plainly wrong or had applied the wrong standard in accepting the Defendant’s case, as “it is only in exceptional cases where the court may find…that each party should have an interest in proportion to their respective contributions” and in light of the exceptional nature of post-acquisition agreement, the same has already dealt with above. As I have already mentioned above, in my view there is no particular requirement to independently prove exceptionality in cases of post-acquisition common intention as alleged by the Plaintiff. Further, what this court has stated in paras.28 and 109 of the Judgment indicated that this court already had in mind the relevant principles concerning proof of such a common intention. The Plaintiff has not shown any palpable errors of this court in making its findings.

43.  Overall, the Plaintiff is only regurgitating her submissions without pinpointing the errors in this court’s reasoning or findings. Clearly the findings were open to this court to make in light of the available evidence, and in my view, no justifiable basis has been identified by the Plaintiff for the appellate court to interfere with the decision of this court.

44.  I therefore also find that there are no merits in Ground (2).

Decision on the application for leave to appeal

45.  By reason of the above, I find that the Plaintiff’s intended appeal has no reasonable prospect of success. I am also of the view that the Plaintiff has not demonstrated any reason in the interests of justice why the intended appeal should be heard.

46.  I therefore dismiss the Plaintiff’s application for leave to appeal.

The Plaintiff’s application for stay of execution pending appeal

47.  As the Plaintiff’s application for leave to appeal is dismissed, her application for a stay of execution pending appeal is also dismissed.

48.  In any event, even if leave was granted on the ground that there is an arguable appeal, this alone would not justify the granting of a stay (Indian Overseas Bank v Seabulk System Inc & Ors [2023] 4 HKLRD 125 at para.23).

49.  The Plaintiff also relies on Indian Overseas Bank[7] above and submits that there are additional reasons to grant a stay, namely that the costs incurred in the transferred ordered by the court will be wasted in the event the Plaintiff succeeds in her appeal, and that there is nothing to prevent the Defendant from selling the Property if a transfer is effected pending appeal. In my view, even if leave was to be granted, the reasons given are not strong enough per se to justify a stay. In gist, there is no suggestion that in terms of any costs incurred, the situation cannot be reverted by recovering the same from the Defendant in the event of a successful appeal, and there is also no indication that the Defendant will be selling the Property and dissipating the proceeds to the extent that the appeal, even if successful, will be rendered nugatory.

Decision

50.  By reason of the above, the Summons is therefore dismissed with costs to the Defendant, with Certificate for Counsel.