LAM SUK MEI HEIDI v. YIP YEE MING

HCA 10471/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10471 OF 1998

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J U D G M E N T

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1. This is an action by writ issued by the Plaintiff against the Defendant, her former husband, for declaratory relief that the Plaintiff is the sole beneficial owner of the former matrimonial home and for an order that the Defendant assign his interest in the property to her, and failing his compliance with that order, for an order that the assignment be executed by such persons as the Court may nominate for that purpose pursuant to section 25A of the High Court Ordinance.

2. The writ was served by registered post on the Defendant at an address in Chai Wan which, according to the Plaintiff's evidence, is the residence of the Defendant's elder brother and the place where he, the Defendant, can be contacted. The writ was not returned but no acknowledgement of service has been filed. The summons for directions was similarly served as was the Notice to set down, but the Defendant did not attend at either the summons for directions or at the checklist hearing. The notice of the trial today was sent by the Court similarly to that address. The Defendant has similarly not attended.

3. In view of the fact that the letters addressed to the Defendant and sent to his last known address have not been returned by the Post Office through the Dead Letter Service, it is assumed unless proven to the contrary that he has received the documents but has chosen not to attend the trial today. The trial was duly proceeded with in his absence.

4. Turning then to the facts of this case, the Plaintiff married the Defendant in 1983. They decided to buy a property (the subject property) as their matrimonial home. In 1984, they applied to the Housing Authority for the purchase of the property in question. At that time, the Defendant had no income with which to finance the purchase. On the other hand, the Plaintiff was a nurse and in steady employment. The Plaintiff explained that the Defendant had no savings due to his previous incarceration. The Plaintiff further said in evidence that she had acquired an old taxi which the Defendant drove and the proceeds of sale of that taxi were, together with the Plaintiff's savings, used as the down payment for the property in question.

5. That the Defendant had no income is supported by evidence of the Defendant's tax returns for the years ended 31st March 1984, 1985, 1986 and 1987, (the latter two returns having been exhibited as exhibit "P3") which show that the Defendant had no income for those years but that his wife, the Plaintiff did have a fairly good income for those respective years.

6. By an assignment dated 31st October 1985, the Plaintiff and the Defendant became registered owners of the property as joint tenants. They lived there together until August 1986 when they separated. The Plaintiff said that the Defendant left the property then and that she continued to live at the property.

7. On the face of it, that is not supported by the Deed of Separation dated 12th August 1988 which gave another address for the Plaintiff and the property in question as the address of the Defendant. The Plaintiff explained in her evidence that that was because the Defendant had not then decided where to live and so the address of the matrimonial home was used.

8. In 1989, the parties were divorced by decree absolute made on 5th May 1989. However, no documents relating to ancillary relief have been produced. No provisions were apparently made as to the matrimonial home. The Plaintiff's explanation for this in her evidence was that the solicitors who had the carriage of the divorce had been instructed by the Defendant, and they had not given her any advice that the matrimonial home should have been provided for.

9. It is the Plaintiff's evidence that the Defendant had never contributed towards the purchase of the property. This is supported by the tax returns referred to above. The Plaintiff also relied on the fact that receipts and bills for the legal fees for the acquisition of the property had been made out to the Plaintiff "and another". However, that evidence is equivocal as the reference to "and another" was obviously a reference to the Defendant, the joint owner of the property, so that that would also be regarded as bills and receipts made out to him.

10. But more important are the arrangements for the payment of the loan instalments, some 118 in all, leading to the discharge of the mortgage in 1996. The mortgagee was Hang Seng Bank and a loan account in the joint names of both the Plaintiff and the Defendant was opened. It is the Plaintiff's evidence that she had paid the money into this account for the instalments. The money was either paid into the account by her in cash or by transfers from her savings account or a current account with the Hang Seng Bank as evidenced by exhibits "P1" and "P2", except for 3 instalments which were paid by cheques drawn on the Defendant's account, one with the Bank of Communications and one with the Hua Chiao Commercial Bank. The Plaintiff explained, however, that for these 3 out of 118 instalments, the money had first been transferred by her to the Defendant's account.

11. There is no presumption of advancement from a wife to a husband, see: Mercier v. Mercier. Therefore, I am satisfied that the property was purchased with the Plaintiff's money and that, accordingly, there would be a resulting trust in favour of the Plaintiff, and the Defendant holds the property as a trustee only.

12. Therefore, I would grant a declaration that the Plaintiff was and is the sole beneficial owner of the property and order that the Defendant do assign his title in the property to the Plaintiff. And in the event that the Defendant fails to do so, an order that the assignment be executed by such person as the Court may nominate for that purpose. I would also give the Plaintiff the costs of these proceedings.