廖群英 v. 賴雪鈴

DCMP 2522/2022

[2025] HKDC 585

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2522 OF 2022

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JUDGMENT

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A.  Introduction

1.  In this action, 廖群英, the Mother (“P”) claims for recovery of vacant possession of Unit 5G, Yen Kung Mansion, Kam Din Terrace, No 1 Tai Mou Avenue, Taikoo Shing, Hong Kong (“the Property”) from her second born daughter, 賴雪鈴, the Defendant (“D”). The dispute relates to the beneficial ownership of the Property. P is the registered owner of the Property. D refused and refuses to leave the Property and claims beneficial ownership to the Property arising from the monthly sums she paid to 賴松興, the Father (“Father”).

2.  In the Amended Defence and Counterclaim (“AD&CC”), D pleads[1] that her Father had the “1989 Oral Agreement” with her, that as soon as she was gainfully employed, she would contribute a sum of HK$4,000.00 per month for the purpose of funding the purchase of the Property and maintenance of the new family home. D went on to plead[2] that Father, in reliance on the 1989 Oral Agreement, went in search of a new family home. The new family home is the Property.

3.  D pleads[3] that there were further “Oral Representations” made by Father to her that she relied on, at the time of and after the purchase of the Property, on different occasions that Father and P “were merely holding the Property on trust for their children, and the Defendant and her siblings were the true beneficial owners of the Property”.

4.  D relies on the 1989 Oral Agreement and the Oral Representations and refused and refuses to vacate the Property. D further, by her Counterclaims, claims[4] to be “a beneficial owner” of the Property by operation of “common intention constructive trust”, “the presumption of resulting trust”, and/or “by reason of proprietary estoppel”.

5.  D further pleaded[5] at §24(2) of the AD&CC that “in reliance of the Oral Representations, the Defendant acted to her detriment or otherwise changed her position by contributing to the purchase and maintenance of the Property as well as its related expenses with the approval and/or knowledge of the Plaintiff and at § 24(3) that "it would be unconscionable and/or inequitable for the Plaintiff to renege on the Oral Representations and deny the Defendant's interest in the Property”. The Defendant claims at §25[6] to 90.5% share or interest in the Property.

B.  Background Facts

6.  The background facts are largely undisputed.

7.  The family, that comprised of Father, P and the 4 children, used to reside at 5^th Floor, Flat B of Wealthy Mansion, No 7-11, Tai Wong Street East, Wanchai (“the Wanchai Flat”). P was the sole owner of the Wanchai Flat and the Wanchai Flat[7] mortgage had been fully repaid by 1985.

8.  It was a small apartment with two bedrooms: P and Father used one room, the two daughters used the other bedroom and the two boys slept on the floor in the living room.

9.  The family’s circumstance was humble after Father ceased the spectacle manufacturing business in 1984. Mother went out to work as domestic helper and as cleaner of St. Joseph College to earn about HK$6,000.00 - HK$6,500.00 per month which she contributed to a pool for family use. Mother worked until 1989 when she had to take care of Betsy’s new-born daughter.

10.  The four children were: (i) Lai Suet Fun (Betsy), born in 1963; (ii) Lai Suet Ling (Eliza), born in 1964; (iii) Lai Tak Ming, born in 1966 (Tommy); and (iv) Lai Tak Chung (Colin), born in 1967.

11.  It is Betsy’s evidence at the hearing that she started working in 1985 for Tung Wah Group of Hospital and later served in government service as “Executive Officer” until her retirement as Principal Assistant Secretary for Civil Service Bureau of the HKSAR Government. Since 1985, Betsy gifted to her parents and/or contributed to the family HK$4,000 each month without interruption, until after Father’s death, P wanted the sum to be reduced to HK$2,000.00. It is Tommy’s evidence that he graduated in the year 1989 from the Baptist University of Hong Kong and immediately worked as research assistant and part time teacher. He said he immediately started to contribute HK$3-4,000 each month to the family. Tommy also gave evidence that after he graduated from dentistry in 1990, he started to give HK$4,000 each month to the family. Evidence as to their contributions is uncontroversial. D started work about September 1989, and D said she gave HK$4,000 monthly to Father, but she frames her contribution as being made for the purpose of the purchase of the Property pursuant to the 1989 Oral Agreement and the Oral Representations. Her counsel submitted at the oral opening that “but-for” D’s promised contribution, Father would not have purchased the Property.

12.  Tommy and P gave evidence that the Wanchai Flat was too small as they were, by then, all grown up, and P initiated to find a larger place for the family, She adopted the approach of replacing her property by acquiring a new residential property before disposing of the original residential property (先買後賣) and sold the Wanchai Flat after purchase of the Property. It was Tommy who accompanied P to look for a bigger place about two months before P decided to purchase the Property.

13.  P and Father acquired the Property as joint tenant. The transaction was dated 22 September 1989 and the consideration was HK$1,193,000[8]. A down payment of $207,000 was made by Father from the Family savings (原告人及原告人丈夫以自已的儲蓄支付)[9] with the balance financed by way of a Citibank Mortgage[10] . By a letter dated 5 September 1989 Citibank approved the mortgage: the Loan Amount HK$986,000.00, repayable by 240 equal monthly instalments of HK$10,178,00. D admitted during cross-examination that she did not make the down payment.

14.  The Wanchai Flat (in P’s name) was sold on 27 December 1989 for HK$720,000 with part of the proceeds, HK$450,000, went to the reduction of the Citibank loan[11].

15.  Partial repayment of the Loan was made on 30 December 1989[12] with the result that the monthly instalments required to be made was reduced to HK$5,517.00.

16.  By a Bank of China cashier order in the sum of HK$450,091.95, issued in the names of P and Father[13], the mortgage was fully repaid, and Citibank by its letter dated 25 June 1996[14] to the P and Father instructed its solicitors to prepare the discharge.

17.  Father passed away in 2012 and P became the sole legal owner of the Property by the operation of survivorship.

18.  By 2021, in her 90s, P wanted to move to Tanner Hill, an elderly home project run by the Hong Kong Housing Society. Her son Tommy, the doctor, paid for the price of the Tanner Hill unit at HK$4 plus million. It was the evidence of the siblings, in particular Tommy, that D was treating P badly at the Property. Relationship between P and D had deteriorated since 2012. As P refused to have a domestic helper, due to her failing health and for better care, Betsy took P to have a look at the facilities at Tanner Hill, a project set up for the elderly. P liked what she saw and decided to move out.

19.  It was P’s evidence that she wanted to make her last important decision to sell the Property, repay Tommy and make all necessary arrangements. Tommy himself did not ask P to repay. P expressed she does not want to leave matters that may be argued after her death: 我年事已高要解決此事.

20.  All the siblings have bought places to live in Hong Kong. It is the D’s evidence in Court that she owns a dance studio in Hong Kong and a residential flat in Macau.

21.  All four siblings at one time or another stayed at the Property. They all moved out from 1994. D moved out in around February/March 1997 and moved back again in 2000 after her husband died. All through her stay, save for the HK$4,000 monthly amount D said she paid to Father, D did not pay any rent for her stay at the Property. The Property was also the place of weekly family dinner with P and Father when Father was living. This practice of family dinner continued after Father passed away.

22.  As to the 1989 Oral Agreement, when it was put to P, she said she had never heard about it. P also said Father had never told her that D, by contributing HK$4,000, would acquire beneficial ownership of the Property. P disagrees she held the Property in trust for her children. It is also P’s evidence that she was not aware of the alleged 1989 Oral Agreement and/or the Oral Representations, and that she and Father could pay-off the monthly instalments of HK$5,000 per month without difficulty.

C.  The Issues

23.  The parties agreed 8 Issues for trial at pages 513-516 of the hearing bundle:

Issue 1:  “Whether the Plaintiff’s Husband and the Defendant had entered into the 1989 Oral Agreement (“1989 Oral Agreement”), under which it was agreed that as soon as the Defendant was employed, she would contribute a sum of HK$4,000 per month for the purpose of funding the purchase, mortgage instalments and maintenance of the Property taking into account the parties’ financial situations?”

Issue 2:  “Whether at the time and after the purchase of the Property, the Plaintiff’s Husband had made representations to the Defendant (the “Oral Representations”) that he and the Plaintiff were merely holding the Property on trust for the children and that the Defendant and the children were the true beneficial owners of the Property?”

Issue 3:  “Whether or not the Plaintiff was aware of and had allegedly agreed to the 1989 Oral Agreement and/or the Oral Representations?”

Issue 4:  “Insofar as the monthly contribution of $4,000 made by the Defendant to the Plaintiff’s Husband is concerned, (if made and proven), what was the nature of those monthly payments?

(a)  Whether those monthly payments were the Defendant’s contributions towards the purchase and maintenance of the Property from October 1989 to May 2012 pursuant to the 1989 Oral Agreement or Oral Representations?

(b)  Or whether the Defendant has not and has never made any contributions towards the purchase or mortgage instalments of the Property and that any cash payments from the Defendant to the Plaintiff’s Husband (if made and proven), were gifts to the Plaintiff and her Husband to be used as family expenses, and not contribution towards the purchase of the Property?”

Issue 5:  “Whether on the facts and evidence of this case, the Defendant can establish any and/or all of the 3 equitable defences namely, (a) common intention constructive trust, (b) resulting trust and/or (c) proprietary estoppel? In considering the above defences, the Court will have to determine:

(i)  Whether the Plaintiff’s Husband had made the Oral Representations to the Defendant, representing that she would be a beneficial owner of the Property;

(ii)  Whether the Defendant relied upon the Oral Representations and/or the Oral Agreement;

(iii)  Whether the Defendant had acted to her detriment by contributing to the purchase and maintenance of the Property, with the approval and knowledge of the Plaintiff;

(iv)  Whether it would be unconscionable to deny the Defendant asserting her interest and ownership in the Property in the circumstance of this case?”

Issue 6: “Whether, by reason of the above defences (if established), she is entitled to 90.5% share or interest over the Property or any other amount as the Court considers fair and just?”

Issue 7: “If the Plaintiff’s claims succeed, what relief should be granted to the Plaintiff (including an order for vacant possession of the Property, other damages such as appropriate assessment of mesne profit)?”

Issue 8: “If the Defendant’s counterclaim succeeds, whether relief and damages should be awarded to the Defendant?”

D.  The Witnesses

24.  At the trial the following witnesses gave evidence:

(1)  P for herself;

(2)  Betsy for P;

(3)  Tommy for P;

(4)  Colin for P; and

(5)  D for herself.

25.  I have also had the benefit of the documentary evidence as to the timing of the Citibank mortgage, the partial repayment and the final repayment of the Citibank loan, Father's Notebook (“the Notebook”) that recorded income, expenses and money in bank, and, importantly, I have been taken to passages of the whatsapp messages that were exchanged between D, her siblings and P, and P and D’s written opening and written Closing Submissions amplified by oral explanation on 28^th March 2025.

E.  Evidence

26.  In this case, factual differences between D’s allegations and the evidence of her siblings and P turn on their credibility. In assessing the parties’ evidence, I bear in mind the inherent probabilities, consistencies of the fact evidence of the parties with undisputed facts or facts shown by other evidence to have occurred, internal consistencies of the assertions with contemporaneous documents as well as the parties’ demeanor. This is the approach suggested by Ms. Lisa Wong and adopted by Deputy High Court Judge Thomas Au (as he then was) at §53 of Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 524.

27.  I bear in mind that Father passed away in 2012 and the allegation of 1989 Oral Agreement was between Father and the D alone. During D’s examination in Court, D alleges that further Oral Representations were made by Father to relatives and friends on various occasions in her presence.

28.  I bear in mind P is in her 90s and had little formal education. P was criticized as to evidence she gave orally to peripheral matters. These are answers to questions about family whatsapp messages, stamp duty etc. These criticisms are at §§9 to 13 of D’s written closing. In the context of P’s age, the passage of time and her limited understanding, I find her answers to immaterial side matters such as her use of the whatsapp, as to stamp duty, the savings which she initially expressed as hers, but later as jointly owned by her and Father, and whether she helped Colin financially, do not affect from the answers she gave honestly as to facts she had direct knowledge, relevant and material to this case. I find P to be a credible witness. She was cross-examined extensively but her answers to the material facts remained unshaken, clear and consistent. I find her account of events that led to the purchase and the financing of the Property credible and consistent with undisputable evidence as to the payment of the deposit for the Property by P and Father, their partial repayment of the mortgage only three months into the loan and their repayments of the balance of the loan leading to the discharge of the mortgage in June 1996. I accept P’s evidence that she was unaware of the alleged 1989 Oral Agreement and Oral Representations between D and Father. I also find that P and Father were capable to finance and pay for the Property through instalments. It is P’s evidence that gifts/contributions from all four siblings were voluntary and neither Father nor P had demanded any sum to be paid by the siblings to them. This is corroborated by the evidence of Betsy, Tommy and Colin and I accept P’s evidence in this respect.

29.  I also accept the evidence of Betsy, Tommy and Colin, as I find them to be honest witnesses, coming to Court to tell what had happened. D criticized the siblings at §19 of D’s written closing that their testimonies are almost identical on several critical matters. This is not surprising. For example, all of them told the Court that the decision to purchase the Property was made by Father and P. Betsy, Tommy and Colin told the Court they were unaware of the alleged 1989 Oral Agreement or the Oral Representations, even though the pleaded Oral Representations, if found to have subsisted, would have meant that the Property was held in trust for the siblings that included Betsy, Tommy and Colin. Their denial of knowledge of the 1989 Oral Agreements is evidence against their own interest and is credible.

F.  Analysis and Findings on the Issues

30.  Even though I have not set out below every argument of P and D, I have carefully considered all the evidence, documentary or oral and all the submissions made by the parties.

Issue 1:  the 1989 Oral Agreement

31.  This issue was pleaded at §§4(5)(g), (h) and (i) in which D pleaded:

(i)  at (g) that Father “expressed his concern to the Defendant about his financial ability to purchase and maintain a new family home on his own”;

(ii)  at (h) “In those circumstances, the Defendant offered and the Plaintiff’s Husband accepted and agreed that as soon as the Defendant was gainfully employed, she would contribute a sum of HK$4,000 per month for the purpose of funding the purchase (…) and maintenance of a new family home (“the 1989 Oral Agreement)”; and

(iii)  at (i) that “In reliance on the 1989 Oral Agreement the Plaintiff’s Husband went in search of a new family home”.

32.  There is no evidence as to when and where the alleged conversations with Father took place nor gist of the words uttered. There is no reference to it in writing nor in the whatsapp communications between the siblings and P. I accepted that P and the other siblings did not have knowledge of the 1989 Oral Agreement.

33.  D repeated at §9 of her witness statement of Father's alleged financial concern and added the elaboration that the concern arose as “兩名弟弟仍在唸書”. At §10, D said she offered to pay monthly HK$4,000.00 “作為置業之用”. This averment is incorrect as it is Colin's evidence that he started working in about June 1989 after graduation and this may have predated D's return to Hong Kong in 1989 and her first job in Hong Kong in September 1989 with an insurance company.

34.  Therefore the 1^st sub-issue is whether Father had expressed the alleged concern of financial difficulty to D and D only. This alleged concern, however, is not borne out by facts as:

(i)  The down payment for the Property was paid by Father and P;

(ii)  A few months (three months into the mortgage) after the Property purchase, HK$450,000 of the loan was repaid out of part of the proceeds of the Wanchai Flat sale at HK$720,000. The monthly instalment payment to Citibank then came to be only HK$5,517.00;

(iii)  At that time, each of Betsy and Colin was working and each contributed about HK$4,000 to the family; and

(iv)  Father’s Notebook at B2/375-425 at B2/423 recorded the balance of family money, possibly at year end, of 1989 to 1996. There, it shows a balance of HK$400,703 for 1989, HK$600,000 for 1990, HK$790,688 for 1991, HK$609,550 for 1992, HK$672,700 for 1993, HK$740,065 for 1994, HK$790,745 for 1995 and HK$617,300 for 1996. It was the evidence of Betsy, Tommy and Colin that the numbers in the Notebook were in the handwriting of Father. Clearly the family had savings. In fact, it is Tommy’s evidence when he started his dental practice in September 1990, Father loaned him about HK$100,000 - HK$150,000 which was subsequently repaid. I find the allegation of Father’s concern about financing the Property purchase not probable. I am not satisfied there was the alleged concern and that Father expressed such concern to D.

35.  It was further the evidence of Betsy that she never felt that the family was in financial difficulties even after the cessation of the business of frames manufacturing. She said Father was not idle, he traded in foreign currency and sold spectacle frames out of the remaining stock. In the Notebook at B2/376 recorded foreign exchange gain and interest income. It was Betsy’s evidence that Father never mentioned he had difficulties or any concern about servicing the mortgage arising from the purchase of the Property. I find Betsy’s evidence to be credible.

36.  The 2^nd sub-issue is whether it was agreed that the HK$4,000 monthly payment would result in the Defendant gaining ownership of the Property. The pleaded purpose of the payment is for the dual purpose of funding the purchase and maintenance of a new family home [see §4(5)(h) of the AD&CC]. D admitted it is not pleaded that monthly payment of HK$4000 would result in ownership of the Property. There is also no evidence as to how the HK$4,000 would be apportioned as between maintenance of the home and funding the purchase. D laced her admission with the proviso that it [the purpose of the monthly sums] was understood. As all 4 children made monthly payments either to Father or to P, and Betsy, Tommy and Colin did not specify how the sums were to be used, I am not satisfied that the entitlement, arising from D's monthly payments, can be understood. Further there is no evidence what D gave to Father was wholly or partly tagged for the payment of instalments. It was paid into a pool recorded by Father as income (收入) in his Notebook [see B2/377]. Such as B2/377, the Notebook recorded the separate monthly payment in by each of the siblings without specifying the use, whether for family expenses or for instalments. The Notebook also the itemized outgoing expense (支出) such as for electricity or gas or other items of family expenses. The record was kept on monthly basis carefully by the Father in his own handwriting. There is no evidence D’s payments was distinguished as being made for payment of the Property. I am not satisfied that D’s monthly payments to Father was agreed to result in her entitlement to the Property or a share of it as alleged.

37.  The 3^rd sub-issue, whether Father went in search of a new family home in reliance of the alleged 1989 Oral Agreement. It is both the evidence of Tommy and P, that it was P who looked for a new flat and it was Tommy who accompanied P to view the Property a few months before the transaction, not Father. There are other instances of D’s allegations in the whatsapp family group communications, which upon the evidence of her other siblings in Court, turned out to be incorrect, such as her allegation as to the safe deposit box and the alleged joint accounts P had with her other siblings.

38.  After considering all the evidence (documentary and oral), I reject that there had been the alleged 1989 Oral Agreement.

Issue 2:  the Oral Representations

39.  It is pleaded at §5 of the AD&CC that “Materially, at the time of and after the Purchase of the Property, the Plaintiff's Husband on different occasions represented to the Defendant that he and the Plaintiff were merely holding the Property in trust for their children, and the Defendant and her siblings were the beneficial owners of the Property (“the Oral Representation”). §5 of the AD&CC is denied at §15 of the Reply at B1/69.

40.  The alleged Oral Representations is internally inconsistent with the allegation that Father had accepted D’s offer of contribution leading to her ownership of the Property. Father could not have so agreed and, in the same breath, uttered the Oral Representation that Father and P held the Property in trust for all four of them.

41.  Land Search record shows that the Property was jointly owned by Father and P and there is no evidence to support that P had agreed to hold the Property as a trustee. In fact, when Father passed away, D did not assert her alleged beneficial interest in the Property to P nor to any of the siblings. The Property (jointly held by P and Father) passed by way of survivorship to P.

42.  In the case Jong Lan Kiauw v Jong Yang Hua, DCMP 2540/2008, HHJ Minnie Chan (as she then was) wrote at §13 that “ … I accept … that one joint tenant cannot deal with the Property without the authority of the other joint tenant”. In this case the alleged Oral Representations was made by the Father only, in the absence of P.

43.  In Court when cross-examined, D also alleged in relation to the Oral Representations that Father imposed 2 Conditions that are not pleaded for ownership of the Property: first, only his children could qualify; and second, only those of his children who have contributed to the purchase of the Flat will have beneficial interest in respect of the Property. It is observed not only are the alleged 2 Conditions not pleaded and there is no contemporaneous record in writing as to the 2 Conditions. Importantly, the 2 Conditions is inconsistent with D's case that Father and P were merely holding the Property in trust for the children.

44.  I find it difficult to accept that the alleged 2 Conditions were specifically imposed by Father upon D only, without ever mentioning/revealing the same to the other siblings, giving them the same opportunity to tag their contributions as contributions towards the purchase of the Property. No meaningful answer nor explanation was given by D as to the 2 Conditions during cross-examination.

45.  D gave evidence that Oral Representations were made by Father after the purchase of the Property around in 1990-91. D said these were occasions Father had tea (飲茶) with friends and relatives. D is unable and has not identified any of the persons present nor the words spoken. If Father had said it was his and P’s wish to leave the Property to all four siblings, he could not have said so to D alone. D upon being crossed admitted she is not calling any of those unidentified friends or relatives present on the alleged “飲茶” occasions to come to Court to give evidence.

46.  In the circumstances, it is my findings there is no evidence to support her allegation of Oral Representations as pleaded and I reject there had been the alleged Oral Representations. I do find D not to be a credible witness and D’s allegation as to the Oral Representations was shifting as she gave evidence in Court.

Issue 3:  Whether the Plaintiff was aware of and had allegedly agreed to the 1989 Oral Agreement and/or the Oral Representations

47.  D pleaded at §6 of its AD&CC [B1/30] that “The Plaintiff was aware of or ought to have been aware of the 1989 Oral Agreement and/or the Oral Representations…”.

48.  P gave evidence and denied she was aware of the 1989 Oral Agreement or the Oral Representations [§§16(1) and (2) of the Reply at B1/70]. In P’s moving letter dated 15 March 2022 to D (“the Letter”) at B/365-371 at B2/366, P wrote that it was her who decided to move to Tanner Hill. She wrote that Tanner Hill was most suitable for her and even in the middle of the night help could be summoned. At B2/367 she wrote: “既然我有自己資產, 為什麼我不賣了樓拿錢給自己用”. At B2/370, “太古城是我和老公捱回來的”. This Letter pre-dated the Writ of 15 July 2022 that commenced this action. D did not rebut then P’s ownership of the Property by an assertion that D had beneficial interest. Clearly, P was unaware of and had not agreed to the alleged 1989 Oral Agreement and /or the Oral representations at the time she wrote the Letter to D and D did not disagree.

Issue 4:  What was the nature of those monthly payments?

49.  In Betsy’s written statement [B1/122-125], her affidavit at B1/175-180 and her oral evidence: (i) she confirmed that monthly payment made is “作為孝敬父母的饋贈及家用” (B1/123 §4); (ii) P and Father never told us how much to give “每月應付金額”; (iii) Betsy said P and Father never told her the family was financially stressed (B1/123 §4); (iv) there was no discussion how the monthly payments when received were to be used. Betsy said she gave the monthly payment to either P or Father depending on who she bumped into. Betsy gave clear and direct answers and her answers are corroborated by the evidence of Tommy and Colin. Tommy in his evidence stated that he started to give HK$4,000 monthly to the family in the year 1990 and the payments continued without interruption until about two years ago when Mother told him to reduce it to HK$2,000 per month. Tommy said it was common practice amongst his friends and classmates to give to their families.

50.  The P at §§13-14 of her witness statement [B1/113] confirmed the sums were for the purpose of “饋贈及或家用”. I accept that the nature of the monthly payments by D and her siblings were “作為孝敬父母的饋贈” to be used by the parents at will and for “家用” at their discretion. This is customary in Hong Kong: a Chinese tradition and this is consistent with the record of the gifted sums from all four siblings as Income in Father’s Notebook.

Issues 5:  whether on the facts and evidence of this case, D can establish any/or all of the 3 equitable defences, namely common intention constructive trust, (b) resulting trust and or (c) proprietary estoppel

51.  On these three equitable defences, the law and approaches to these legal defences are not controversial and I will recite the applicable legal principles detailed in P’s Opening at §§51-56 below:

52.  The law on common intention constructive trust has been conveniently summarized by Recorder Yvonne Cheng SC (as Her Ladyship then was) in The Joint and Several Trustees of the Property of Yeung Wing Sing v Yeung Wing Sing (a bankrupt) & Anor[2021] HKCFI 2018 §23:-

“23. The relevant principles were recently summarised by Deputy High Court Judge A Stock SC in Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung[2019] HKCFI 2819 at [7] and [8]:

“7. The principles applicable to common intention constructive trusts are set out in various Hong Kong authorities, notably: Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 per Ribeiro PJ at §§35-38; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

8. In summary:

(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant's name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.

(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff's detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom. See: Luo Xing Juan §38; Liu Wai Keung §46.

(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct. See: Liu Wai Keung §47; Mo Ying §5.

(4) 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. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts. The court is not constrained to consider only pure direct monetary contributions to the purchase price. In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters. See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.”

53.  D’s Counsel also drew reference in her opening submissions to §§42-43, 43(5) of Woo Tat Huen v Lee Wai Ping [2021] 576. I note that the two situations identified by Cheung JA in Primecredit and referred to in Woo Tat Huen have been recited in §51 above.

54.  If it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust. Where both parties allege there was express discussion and actual intention as to where the beneficial interest in the property should lie, there is little scope for the operation of resulting trust: see Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at §45, per G. Lam J. (as he then was).

55.  In any event, for a resulting trust claim to succeed, the burden is on the claimant to prove that he/she has paid the “purchase money” of the Property in the character of a purchaser (as opposed to that of a lender): see 陳敏 v 香敬有[2021] HKCFI 442, §§49-51, per Linda Chan J.

56.  Regarding the principles of proprietary estoppel, the Court of Final Appeal has stated in Cheung Lai Mui v Cheung Wai Shing (2021) 24 HKCFAR 116 at §§23 as follows:-

“23. Put shortly, the requirements of equity to recognise and give relief based on proprietary estoppel are: (a) a representation or assurance made to the claimant; (b) reliance thereon by the claimant; and (c) detriment to the claimant in the consequence of that reliance.”

57.  In the situation where the claimant has been in occupation of the property and enjoyed ‘rent-free’ accommodation throughout, the payment of utilities and other household expenses will not per se entitle the claimant a beneficial interest in the property: see Chan Wing Yee v Sit Kun Mi Sandy[2021] HKDC 865, §20 per HHJ Au-Yeung (as he then was); see also Chau Sen Kin alias Chow Sin Kin v The Occupiers & Anor, DCMP 855/2013, §§68-70, per HHJ R. Lai.

58.  It is also trite that household expenses incurred whilst in occupation of the property do not amount to “detriment”: see Jong Lan Kiauw v Jong Yang Hwa & Anor, DCMP 2540/2008, §§21-23, per HHJ Mimmie Chan (as she then was). In that case, it was held that given the countervailing benefits the daughter has received including her enjoyment of the property rent-free for 21 years, any alleged detriment suffered by her in paying for household expenses have been outweighed and there is no detriment suffered by the daughter in reliance of any alleged common understanding.

59.  The 1^st sub-issue: As to whether Father had made the alleged Oral Representations to D that she would be a beneficial owner of the Property upon her monthly payment of the sum of HK$4,000, my finding is that Father had not made the alleged Oral Representations with words to that effect at the time of or prior to the purchase of the Property.

60.  The 2^nd sub-issue: As to whether D had relied upon the Oral Representations and /or the 1989 Oral Agreement, due to my earlier finding that there had not been the alleged Oral Agreement nor the Oral Representations, D could not have relied upon the alleged Oral Agreement or the alleged Oral Representations.

61.  The 3^rd Sub-issue: Whether D had acted to her detriment by her contribution to the purchase and maintenance of the Property, with the approval and knowledge of P. First, there is no evidence of tagging D’s monthly sum to Father as contribution towards the purchase of the Property. Second, it is my finding that the nature of D’s contribution was as gift, without fetter as to use or for family expenses. Third, it was not done with “the approval” of P. It is P’s evidence that she did not have knowledge nor did P approve D’s payments to Father. P did not know prior to this action whether and what amounts were paid over by D to Father. In D’s oral closing, a point was made that the words written in the Notebook at page 425 were P’s and therefore it shows P’s knowledge of the content of the Notebook and payments made by D to Father. But D’s counsel later honestly recant and admitted there is no evidence that those words were written by P.

62.  The 4^th sub-issue: whether it would be unconscionable to deny D asserting her interest and ownership in the circumstances of this case. First, D had derived substantial benefit arising from her stay in the Property (from 1989 to 1997 and from 2000 to the present) without paying any rent. The HK$4,000 monthly contribution, if found to have been given, is unconnected with her assertion of 1989 Oral Agreement or Oral Representations as pleaded, both of which I find not to have been made. My finding is that it is not unconscionable to deny D’s barren assertions of beneficial interest in the Property.

63.  On common intention constructive trust, given that P is the registered owner of the Property, burden is on D to establish objectively the alleged common intention by words or express discussions at the time prior to the purchase of the Property or by or conduct. Here, my finding is that there is no evidence of express representation or discussion between Father and D, and P was not aware of the alleged 1989 Oral Agreement or Oral Representations. Further, there was no conduct that pointed to the existence of the alleged 1989 Oral Agreement or the Oral Representations. Therefore, no common intent or mutual understanding as alleged can be inferred. I accept P’s evidence that she did not have any discussion with Father in relation to the Oral Representation nor the 1989 Oral Agreement, and P and Father never intended the children to have any beneficial interests as alleged by D. Further, D’s conduct and her communications to her siblings and P prior to the commencement of this action did not point to the existence of the alleged mutual understanding. D, in her whatsapp messages of 26^th February 2022 at B2/361 26/2/2022 10:47:23 and 10:47:38, indicated she would move out of the Property with the date changed to 30^th June 2022. D even suggested in the whatsapp messages she would facilitate and assist in the sale of the Property at B2/355 15/2/2022 5:59:53. Plainly, it would not be unconscionable for P to recover vacant possession of the Property. As a responsible mother, P had allowed D to reside in the Property without payment of rent, with P doing all the housework for years. I find there was no detrimental reliance by D.

64.  On resulting trust, in light of the absence of “purchase money” being paid by D, as the down payment of HK$207,000 was made by Father (accepted by D), the partial repayment was from the proceeds of the sale of the Wanchai Flat and the final repayment made by P and Father, there is no evidence of purchase money paid by D, nor is there any evidence of any payment made by D that was tagged for instalment. Based on my findings, D has not proved that the sums she paid to Father was in the nature and character of a contribution to the purchase price. Evidence from the mortgage document is that the burden of repayment rested on the shoulders of Father and P, not D. Further, given my finding as to the nature of the monthly sums paid to the parents by the siblings, any presumption that the D’s monthly payments were not as gifts is rebutted. It is to note even after the mortgage was discharged in June 1996, D continued her monthly payments to Father. Her payments to Father from 2006 to 2009 are recorded in Father’s Notebook.

65.  For proprietary estoppel, as I find against the alleged 1989 Oral Agreement and the Oral Representations, there is no room for D to say there had been the alleged representation or assurance from Father to D. The follow on is that there could not have been any reliance by D upon assurances that did not exist. Finally, as I have found holistically, the purpose of the monthly contributions by the 4 siblings to the parents were made as gifts to the Father and P and/or as contribution to family expenses. As the monthly payments were made voluntarily and without distinction, there could not have been any detrimental reliance by D. D sought to draw a distinction saying her payments to Father were for the Property instead of the other siblings’ payments to P for family expenses. In fact, it is the evidence of Betsy that she paid to Father or P depending on who she came into contact first.

66.  In Woo Tat Huen v Lee Wai Ping HCA 1725/2017, Madam Recorder Sit SC summarized the relevant principles and at §43 (7) wrote:

“…it was recognized that, in family disputes, strong feelings are aroused … which can often lead the parties, honestly but mistakenly, to re-interpretate the past in self exculpatory or even vengeful terms. If a difference is to be found between the beneficial and legal interest, clear evidence will be required.”

In this case, shorn of clear evidence, D’s reliance on the three equitable defences is misplaced. It has been said in Stack v Dowden [2007] 2 AC 432 §§68-69 that “an intention to have beneficial interest different from legal interest in property is unlikely, and the task of showing that should not be lightly embarked upon.”

67.  There may be perception by D as to her being treated not as well as her other siblings by P and this drudge may be one of the causes of the present dispute and D magnified the perception by a paragraph in the Closing Submissions at §§57-58 entitled “…and Unequal Treatment within the Family”. There, D’s continued monthly payments in the years following Father’s death was framed at §60 as “unwavering dedication to the Property” in reliance on “the Father’s assurances”.

Issue 6:  Whether by reason of the above defences (if established), she is entitled to a 90.5% share or interest over the Property or any other amount as the Court considers fair and just?

68.  My finding is D’s defences are not established. As a result, D is not entitled to any interest over the Property.

69.  As a result of my earlier findings, I reject D’s counterclaim as pleaded. Given the substantial benefits D received by staying rent-free from 2000 to today, I find there is no unconscionability in denying the reliefs D seeks.

Issue7: If P’s claims succeed, what reliefs should be granted to P?

70.  On this part, I find P has succeeded in her claim and I would order in terms of the pleaded reliefs §§15 (i) to (vi) of P’s Statement of Claim:-

(i)  for vacant possession of the Property to be delivered by D to P;

(ii)  for mesne profits be paid by D to P from 1 July 2022 to the date of her delivery of the Property vacant possession to P;

(iii)  for D’s payment to P of the management fees, rates, land rent, water, electric and gas fee incurred during the period of her trespass (that had not been paid by the D) from 1 July 2022 until the date D's delivery of the Property’s vacant possession to P;

(iv)  Interests on sums found due as at the date of this Judgment at the Judgment debt rate; and

(v)  Costs of the present proceedings to be paid by D to P to be taxed if not agreed on party-to-party basis with a certificate for counsel.

71.  As to mesne profit, recent rental transactions of flats at 太古城金殿台燕宮閣 has been listed as Annex 1 to the P’s witness statement and the average of the rental figures came to about HK$28,666.67 per month for the average three transactions identified in the period June to October 2023 and I direct that the figure of HK$28,666 be used for the purpose of computation of mesne for the period of trespass.

Issue 8

72.  Given my earlier finding that D’s counterclaim has failed, issue 8 needs no further elaboration.

D.  CONCLUSION

73.  In conclusion, I grant judgment in favour of P:-

(i)  for D to deliver to P vacant possession of the Property;

(ii)  D to pay to P mesne profits at the rate of HK$28,666 per calendar month from 1 July 2022 to the date of her delivery of the Property vacant possession to P; and

(iii)  D to pay to P management fees, rates, land rent, water, electric and gas fee incurred during the period of her trespass (that had not already been paid by D) from 1 July 2022 until the date D's delivery of the Property’s vacant possession to P.

74.  Interests on sums found due as at the date of this Judgment at the Judgment debt rate; and

75.  Costs of the present proceedings to be paid by D to P to be taxed if not agreed on party-to-party basis with a certificate for counsel.

76.  Lastly, I thank Counsel for their useful assistance.

Mr Adrian Leung, instructed by Liu, Chan & Lam, for the Plaintiff

Miss Lilian Ip and Miss Tanny Cheung, instructed by Lee & Associates Law Office, for the Defendant