Law Tsz Lun v. Yiu Cheuk Wang
Read the full judgment text of DCCJ 848/2017 on BabelCite. This District Court judgment was delivered on 6 September 2018.
1. This is a claim by the plaintiff (“Law”) for the sum of $474,995.12, being balance of her share in the sale of the property known as Unit No. 3, 13 th Floor, Wing Fu Building (“Property”) which was registered in the joint names of Law and the defendant (“Yiu”).
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DCCJ 848/2017 [2018] HKDC 1052 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 848 OF 2017 _________________
_________________ Before: Her Honour Judge A Kot in Court Dates of Trial: 25-27 July 2018 Date of Judgment: 6 September 2018 _______________________ J U D G M E N T _______________________ 1.This is a claim by the plaintiff (“Law”) for the sum of $474,995.12, being balance of her share in the sale of the property known as Unit No. 3, 13th Floor, Wing Fu Building (“Property”) which was registered in the joint names of Law and the defendant (“Yiu”). 2.Law and Yiu were lovers since 2008 and both of them worked as flight attendant in a local airline. In around 2012, they purchased the Property as joint tenants with the intention that it would be their matrimonial home if they were to get married. For a period after the completion of the renovation of the Property, Law and Yiu only stayed at the Property during weekends and holidays. Law moved into the Property for good since March 2013. Relationship turned sour in early 2015 and Law moved out of the Property on 4 May 2015. 3.Parties then started to discuss as to how to dispose of the Property since May 2015. What is being discussed and agreed between the parties is the crux of argument in this case. But it is not in dispute that Yiu paid Law $330,000 (“the Paid Sum”) on 27 May 2015 and the parties executed the Memorandum Agreement for Sale and Purchase (“the Memorandum”) (B/68-72) on 28 May 2015 for the Property to be transferred to Yiu’s sole name. The Agreement for Sale and Purchase (“the SPA”) (B/171-184) was executed on 4 June 2015 and the Assignment (“the Assignment”) (B/199-206) executed on 22 July 2015. 4.On 9 September 2016, Law WhatsApp Yiu asking for the balance of the outstanding proceeds of sale of the Property but Yiu insisted that he had already paid her the entire sum. Law commenced this proceedings on 23 February 2017. 5.Even though the relief of declaration is being sought in the Amended Statement of Claim, it was confirmed at the pre-trial review that the whole case turns on a monetary claim only and the sole issue is what is the agreement between the parties for the transfer of the Property to Yiu, ie whether the Paid Sum is only part-payment or in full and final settlement of Law’s interests in the Property. The WhatsApp Messages 6.It is not in dispute that parties had discussed the issue of sale of the Property by telephone and by WhatsApp messages. Whilst the conversation over the telephone may vary between the parties, the content of the WhatsApp messages produced by Yiu are agreed. The relevant parts of these exchange are as follows (B/285-297):
Plaintiff’s Case 7.Law relied on the following facts to establish her claim:
Defendant’s Case 8.Yiu acknowledged that he and Law planned to buy the Property together and each were to bear the costs in the purchase so it was being registered in joint names. However, since he earns more than Law, he paid for everything for the Property and Law only paid him $100,000 for the initial deposit and $80,000 for the renovation of the Property as well as around $20,000 (according to the estimation of Yiu) for living expenses during the 3 years Law stayed at the Property. Yiu denied receiving any payment of $5,000 per month for the mortgage payment. 9.Yiu also agreed that in a telephone conversation when Law mentioned breaking up, she did ask for the Property to be sold or for him to buy her out. He was too shocked over the phone and had suggested paying her all the money she had spent on the Property for the transfer of the Property to him. Law only asked him to work out the sum and revert and the price of $4,000,000 had never been mentioned nor had Law ever asked for half share of the Property. Yiu said this is the only telephone conversation they had and all subsequent discussions about the Property are by way of WhatsApp messages. 10.Yiu had all along thought of paying back Law the sum she had paid towards the Property and since he had only $350,000 savings at that time, he proposed to pay Law this sum. As for the price of $4,000,000, since there was still an outstanding mortgage of about $2,460,000, if he paid $60,000 more to settle the mortgage, the outstanding mortgage would be $2,400,000. With the price of the Property set at $4,000,000, he could get a mortgage of 60% of the price to cover the outstanding mortgage. Such a consideration was only done upon Law agreed to the figure of the Paid Sum so he fixed the price at $4,000,000. Discussion 11.Having considered the evidence, this court is satisfied that Yiu’s evidence is more credible on a balance of probabilities which is supported by the contemporaneous WhatsApp messages between the parties. 12.And the evidence of Law is far from credible. If she really meant to receive the Paid Sum as part payment, why didn’t she mention the same in the WhatsApp messages. If the Paid Sum were meant to be part payment, why didn’t she specify and get Yiu to agree as to how the balance was to be calculated and the mode of payment for the same. Law had tried to explain this by saying that she had made it clear in the telephone conversation with Yiu that she wanted half share of the proceeds of sale. But upon seeing Yiu had only mentioned paying her a little more than what she had spent in his message on 15 May 2015 and again on 21 May 2015 asking how much she had spent, would it not be more sensible for her to raise the issue of her half share with Yiu instead? Her response of accepting Yiu’s offer of $350K in her message on 21 May 2015 is utterly inconsistent with her intention of insisting on half of her share. If it was a typo in missing out the word “for the time being” (“先”) in her message at 0120 hrs on 23 May 2015 indicating her acceptance of the Paid Sum, why didn’t she correct the same in the follow up message like the way she dealt with the mistake about who should pay for the stamp duty (message at 0209 hrs on 23 May 2015). Given the fact that the message correcting the mistake was being sent almost an hour after her first message, she must have taken the trouble to read through her first message again and discovered the mistake on stamp duty. If it was her intention that the Paid Sum was just a part payment, why would she not spotted the mistake as well? And if the Paid Sum was really meant to be part payment, why had she not say anything when Yiu explained to her about paying her $20,000 less in his message at 0004hrs on 29 May 2015? And since nothing had been said about the balance of her half share in the sale proceeds, why didn’t she raise the same with Yiu upon knowing the completion of the assignment of the Property to him and only wait till after more than a year? All these queries tend to show that Law’s evidence is inherently implausible and I rejected her evidence. 13.Ms Kwok for Law had tried to argue that since the intention of Law and Yiu were to hold the Property in joint names and Law had contributed towards the mortgage payment, it is unlikely that Law is prepared to give up the balance of her half share by agreeing to accept the Paid Sum. The decision of Law to accept the Paid Sum in exchange for her transfer of her share to Yiu is well justified if one were to look at the contributions Law had made towards the purchase of the Property. 14.On the contributions of Law towards the Property, I do not accept her evidence in this regard since her evidence is inconsistent, from paying $180,000 towards the deposit in her Reply (A/28), to $140,000 in her witness statement (A/35) and then back to $180,000 when being queried on the inconsistency under cross-examination. Her explanation as to the payment of an extra $40,000 was never mentioned in her witness statement and was unbelievable. If she had paid Yiu $80,000 in cash in the first place, how can she mix up the figure to be $140,000? I found Yiu’s evidence on this more probable, ie Law only paid him $100,000 by bank transfer for the deposit and $80,000 for the renovation of the Property (which is also the case of Law). 15.As for Law’s contribution towards the monthly repayment of mortgage, I do not find her evidence to be convincing either. She had tried to work out from her bank record to show her withdrawal of cash to pay Yiu for the mortgage. It is beyond belief that she can recall at trial in 2018 each item of cash withdrawal back in 2012 to 2014 when she maintained that she had no record whatsoever for the same. She even said that the money she withdrawn from the bank account in April was to cover the mortgage repayment in February and March 2012 when in fact, no repayment is required before April. She tried to cover up her mistake by saying that she didn’t know that the mortgage repayment will only start in April but she was the one to secure the bank mortgage and how can she not aware of the same? I found Law is making up her evidence from the entries in her bank statement and her evidence is unbelievable. Conclusion 16.Having considered the evidence, I found the parties had agreed in May 2015 that Yiu was to buy off Law’s share in the Property and the Paid Sum was in full and final settlement of the transfer of the Property into the sole name of Yiu and Law had accepted the same without reservation. The claim by Law must be dismissed. Order 17.In the circumstances, I make the following order:
Ms Breanne Kwok, instructed by Chak & Associates, for the plaintiff Mr Tim Yu, instructed by Wai & Co, for the defendant | ||||||||||||||||