Lee Yuk Tong and Another v. Chan Wai Hing Amy

DCCJ887/2016

[2019] HKDC 229

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 887 OF 2016

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JUDGMENT

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1.The plaintiffs are the registered owners of Flat C, 6/F, Kanfield Mansion, 44-49 Sun Chun Street, Tai Hang (“the Kanfield Property”). They seek vacant possession of the Kanfield Property, which is opposed by the defendant.

2.The defendant says that she is the sole beneficial owner, or is at least one of the beneficial owners, of the Kanfield Property.

3.The defendant accepts that she has the burden to prove her beneficial ownership in the Kanfield Property.  She refers to various oral assurances she received.  In order to properly assess the defendant’s case, I need to set out in some detail the relationship between the parties.

BACKGROUND

4.Parties have no dispute on the background I set out below.

5.Mr Lee Chow (“the Father”) and his wife, Madam Cheung Kam Bing (“the Mother”)[1], had 4 children:-

5.1.Mr Lee Yuk Lun (“Frederick”), who was born in 1952, and got married in 1974.

5.2.Mr Lee Yuk Tak (“Louis”)[2], who was born in 1954, and married the defendant in December 1985.  Their daughter was born in 1987.

5.3.The 1^st plaintiff, who was born in 1957, and got married in 1993.

5.4.The 2^nd plaintiff, who was born in 1963.

6.The Father passed away in February 2006.  The Mother passed away in December 2013.  Prior to their respective deaths, the Parents lived at No.4 Wong Ma Kok Road, Stanley (“the Stanley Property”).  Apart from the time when she emigrated to Canada[3], the 2^nd plaintiff also resided at the Stanley Property.

7.On 25 January 1984, the Father was assigned the title to Flat C, 7/F, Wah Hong Mansion, 6 & 8 Fort Street, North Point (“the Wah Hong Property”) for $345,000.00.  The land search record suggests that the Father purchased the Wah Hong Property without mortgage.

8.The Wah Hong Property was sold for around $2.1 million in March 1994, with completion on 7 April 2014.  Since their marriage, Louis and the defendant resided at the Wah Hong Property, up to some time around April 1994.

9.A preliminary sale and purchase agreement was concluded on 13 March 1994, by which the plaintiffs agreed to purchase the Kanfield Property for around $1.9 million[4]. Completion took place on 19 April 1994.  No mortgage was taken out to fund the purchase.

10.Since the plaintiffs’ acquisition of the Kanfield Property, Louis, the defendant, and their daughter occupied the same[5]. Louis failed to return to the Kanfield Property since some time in 1999, and fell off the family’s radar.  It was in 2015 that the plaintiffs asked the defendant and her daughter to vacate the Kanfield Property.

THE DEFENDANT’S CASE

11.The defendant’s case is set out in the following manner in the Re-Amended Defence and Counterclaim (“the RADCC”):-

11.1.She and Louis intended to get married in 1983[6]. Upon learning this, the Parents intended to purchase a matrimonial home for them.

11.2.Late that year, the Parents decided the purchase the Wah Hong Property as the matrimonial home for the defendant and Louis.  The Parents would like to provide a stable home for the defendant and Louis, but were concerned that Louis would squander the Wah Hong Property away.  Thus, the Wah Hong Property was purchased in the Father’s name.  But at the same time, the Father told the defendant and Louis that, as long as they paid the household expenses, the Wah Hong Property would be theirs in the future.  Since then, the defendant and Louis paid for the household expenses when living in the Wah Hong Property.  Hence, the defendant claims that she and Louis had the beneficially ownership of the Wah Hong Property.

11.3.Between 1988 and 1993, debt collectors came to the Wah Hong Property from time to time to harass Louis into paying up his debt to creditors.  Around March 1993, the defendant and her daughter moved out of the Wah Hong Property.  The Parents subsequently learned about this.

11.4.Around March 1994, the Parents told the defendant that they would purchase another property to replace the Wah Hong Property for the defendant and her daughter to live in.  The Parents and the defendant then went to view the Kanfield Property.

11.5.The Parents then decided to purchase the Kanfield Property.  But they told the defendant that neither the defendant nor Louis would be registered as the owner, again because of the worry that Louis would squander it away.  Since the Father was not in good health as well, the plaintiffs would be made the registered owners instead. 

11.6.On around 16 March 1994, the defendant met the Parents at the Stanley Property.  The Father told her and Louis that the plaintiffs were holding the Kanfield Property as trustees, and it would be theirs in the future (“the 1994 Promise”).  The defendant understood the 1994 Promise to mean that the Father would procure the plaintiffs to transfer the legal title of Kanfield Property to the defendant and Louis some time in the future; or alternatively the Father would deal with the Kanfield Property to the advantage of the defendant and Louis in his will[7]. It would thus be unconscionable for the plaintiffs to deal with the Kanfield Property as if they were the beneficial owners.

11.7.After the defendant, Louis, and their daughter moved into the Kanfield Property, they were still harassed by debt collectors from time to time.  Louis also disappeared without explanation from time to time.

11.8.Around late 1998, the Parents learned about Louis’ disappearances.  At the Stanley Property, the Parents told the defendant that the Kanfield Property would be hers in the future, on the condition that she continued to live there to raise her daughter, and to accept Louis should he return (“the 1998 Promise”).  The defendant did continue to live in the Kanfield Property with her daughter afterwards, and accepted Louis into the same whenever he showed up.  The defendant understood the 1998 Promise to mean that the Father would procure the plaintiffs to transfer the legal title of Kanfield Property to the defendant some time in the future; or alternatively the Father would deal with the Kanfield Property to her advantage in his will[8]. It would thus be unconscionable for the plaintiffs to deal with the Kanfield Property as if they were the beneficial owners.

12.The promises that the Father respectively gave in 1983, 1994 and 1998 were not documented.  I have to assess whether the defendant’s evidence is credible by considering all the circumstances.  I remind myself the summary of principles in Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009 (Deputy High Court Judge Eugene Fung, SC; 8 April 2014) at §77-80[9]:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 430 at 431 (Lord Pearce) …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) [39] (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at [36]-[37] (Bokhary PJ), or from the assessment of the witness’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at [135] (Stock JA)).”

THE WAH HONG PROPERTY

13.The Father’s promise with respect to the Wah Hong Property only becomes relevant to the present case if the defendant can prove that the purchase price for acquiring the Kanfield Property came from the sale proceeds of the Wah Hong Property.

14.The defendant has no document that directly proves the source of the purchase price of the Kanfield Property.  I have been invited to note that the preliminary deposit of $150,000.00 was paid by a cheque of Kwangtung Provincial Bank, at which the plaintiffs did not maintain any account.  But this does not carry the matter any further.

15.The defendant claims the Father told her that the purchase price came from the sale proceeds of the Wah Hong Property.  No evidence is put before me to show the extent of the Father’s knowledge as to the source of the purchase price.  The documents do not provide much corroboration as to the Father’s knowledge.  For example, he was not the one signing any of the agreements or assignment for purchasing the Kanfield Property.  In my judgment, the defendant’s claim is a bare assertion on which I cannot give weight.  It is thus unnecessary to consider the Father’s promise with respect to the beneficial ownership of the Wah Hong Property.

THE PURCHASE OF THE KANFIELD PROPERTY

16.Even though the fund for purchasing the Kanfield Property might not have come from the sale of the Wah Hong Property, the Parents might still have funded the purchase, and thus retained the beneficial ownership of the Kanfield Property.  This would allow the Father[10] to transfer the beneficial ownership by way of the 1994 Promise, or the 1998 Promise.

17.As set out above, the defendant claims that the Kanfield Property was purchased to allow the defendant’s family to escape from the harassment of debt collectors.  This allegation finds some support from Frederick, who admitted under cross examination that he knew Louis incurred a lot of debt since the early 1990s, and that other family members also knew this.  He also knew that debt collectors went up to the Wah Hong Property to harass Louis into repayment, and the defendant moved out to avoid them.  Frederick also agreed with the defendant’s claim that Louis had extra-marital affairs in 1992 or 1993.

18.The defendant also puts forward documents to corroborate her claim that Louis was in heavy debt.  There was a letter from Messrs. Hobson & Co to Louis dated 12 October 1992, by which the solicitors asked for instructions and costs on account for a civil claim in which Louis was the defendant.  There was a claim form issued out of the Small Claims Tribunal in 1992 by Messrs. Liau, Ho & Chan against Louis[11].

19.The plaintiffs, on the other hand, claim that the Mother prompted the 2^nd plaintiff to purchase a property in 1994, as she was worried that the 2^nd plaintiff would stay single for life.  They also claim that the Parents were not capable to fund the purchase of the Kanfield Property, because they spent much of their savings on medical expenses since the Father suffered a stroke in 1985.

20.The defendant put forward various land search records to show that the Mother held a plot of land in Stanley known as No.74 Stanley Main Street.  She sold it off in parts in 1976, 1984 and 1989.  The sale in 1989 netted over $14 million.  The plaintiffs explain that, whilst finance was tight for the Parents, it was not as if they exhausted every single cent they could possibly find.  As the 2^nd plaintiff puts it, the Parents sold the Wah Hong Property to obtain money to spend for the remaining of their lives.

21.Whilst the plaintiffs had various observations of the Parents’ financial health, they accept that the Parents remained secretive about the actual amount of money they had.  The Parents always told the plaintiffs that they could manage, and seldom allow the 2^nd plaintiff (who lived with them at the Stanley Property when she was in Hong Kong) to pay for substantial expenses.  The plaintiffs further accepted that, prior to the defendant’s discovery of the relevant land search record, they did not know the Mother held property other than the Stanley Property.  It appears to me that the plaintiffs’ claim that the Parents were short of money in the 1990s was never really verified.

22.As to the funding for purchasing the Kanfield Property, the 2^nd plaintiff claims that she was concerned whether she could afford to pay the deposit.  So she sought help from the 1^st plaintiff, who agreed to purchase a property as a joint tenant.  When the Mother identified the Kanfield Property as the possible target, the plaintiffs realised that they had sufficient money to acquire it, so they decided to cash buy to save the interest on a mortgage.  In my view, this is not a convincing explanation, as it seems implausible for the 2^nd plaintiff to be worrying about the finance on one hand, when she actually managed to pay half of the purchase price in cash at the same time.

23.The plaintiffs were cross examined extensively on how they funded the purchase.  In this regard, I tend to agree with Ms Bianca Yu, counsel for the defendant, that their evidence is less than satisfactory:-

23.1.The plaintiffs claim that, since they started working, they gave money to the Mother every month as pocket money. Instead of spending it, the Mother kept the money as the plaintiffs’ savings. She would tell them every year how much she saved up for each of them.

23.2.When acquiring the Kanfield Property, the Mother asked them for more money to complete the purchase, and they paid her the requested amounts.

23.3.It is my view that the plaintiffs struggled to explain how much the Mother used up from the savings she kept for the plaintiffs, and how much she asked them to top up.  Since the Mother did inform the plaintiffs of their savings from time to time, they should be able to recall the same.  And since they allegedly realised that they did not need a mortgage half way through completion of the purchase, they should have considered their finances, and had a good idea as to how much money they would have to pay out of their own pockets.  I agree that it is somewhat incredible that the plaintiffs could not even recall the rough amounts that the Mother saved up for them, and how much they were asked to additionally pay to complete the purchase.

24.It is always difficult for the court to determine the source of funds when documentary evidence is absent.  Doing the best as I can by looking at all the circumstances, I am of the view that the defendant has shown on a balance of probabilities that the Kanfield Property was purchased using money belonging to the Parents.  I am also prepared to accept that the Parents did not intend to gift it to the plaintiffs, and hence they retained the beneficial title.

25.I will not be doing justice to Ms Yu without explaining why I disallowed one of her lines of cross examination.  In closing, Ms Yu questioned the plaintiffs’ case by submitting that they ought to have retained written records of various matters, e.g. (i) the 1^st plaintiff’s employment record or savings at the time when he purchased his matrimonial home shortly before the purchase of the Kanfield Property; (ii) the plaintiffs’ respective contributions to the purchase price of the Kanfield Property; or (iii) they plaintiffs’ agreement that they would hold the Kanfield Property in equal shares.  Upon my query that she had no evidential basis to cast doubt as such, Ms Yu submitted that she was prevented by me to explore the same in cross examination.

26.As I explained to Ms Yu, her cross examination simply put it to the plaintiffs that it was unreasonable for them not to record their agreement or financial contribution.  But without any evidential foundation as to what a person would have done in the same situation (particularly in a family setting like the present), I find Ms Yu’s questions, and any answers to be given by the plaintiffs, of marginal relevance.  Human beings act differently because of personalities and circumstances.  Ms Yu’s questions on the plaintiffs’ lack of documentary proof would not be helpful to my assessment of the plaintiffs’ credibility.  It was for this reason that I stopped her when she simply put her case to the plaintiffs.

THE 1994 PROMISE

27.The defendant was asked to recall the words that the Father used when making the 1994 Promise.

28.The defendant said that the Father promised her that the Kanfield Property would belong to her and Louis in the future; or that the Father would deal with the Kanfield Property to their advantage in his will.  The Father allegedly said told the defendant that the Kanfield Property was where she had to stay; that all siblings-in-law understood her situation and would offer help; and that since the defendant was Louis’ wife, she knew him best and supported him all along.  The Father asked the defendant to give Louis another chance.  He also asked the defendant whether he would need to give her money to renovate the Kanfield Property and to purchase new furniture.  The defendant allegedly turned down the Father’s offer for extra money.

29.The defendant said that she found the Father’s words comforting, because her life was turned upside down by then, and she had no other support to raise her young daughter.

30.The defendant claims that the Parents gave her a copy of the preliminary sale and purchase agreement of the Kanfield Property, and asked her to keep it safe as a proof of her beneficial interest.

31.The first issue I have to decide is whether the Father did make the 1994 Promise as alleged, or at all.  This depends on assessing the defendant’s credibility on the existence of the 1994 Promise.

32.Ms Carol Shek, counsel for the plaintiffs, invite me to consider the following:-

32.1.She submits that it is implausible for the Parents to use the copy preliminary agreement as the proof of ownership, since there was nothing on it indicating that the beneficial owners were persons other than the plaintiffs.

32.2.I agree with Ms Shek’s submission.  Furthermore, the plaintiffs (or the Parents) were in possession of the entire set of title deeds of the Kanfield Property, as it was purchased without mortgage.  If the Parents had the ultimate control of the property, and intended the defendant to have some proof of beneficial ownership, they could well have asked the defendant to keep the title deeds.  But there is even no evidence adduced before me to show the whereabouts of the title deeds.

32.3.Ms Shek also focuses on the fact that, from 1994 to 2015, the defendant never asked anyone to procure the transfer of the Kanfield Property to properly recognise her ownership.  I agree with Ms Shek that, if the Father did say that he would deal with the Kanfield Property in the defendant’s favour in his will, the defendant should feel disappointed when this did not happen when the Father passed away.  She should be even more disappointed when she heard nothing about the possibility of a transfer when the Mother passed away, and when the siblings-in-law seemed ignorant of her beneficial ownership[12]. I agree with the plaintiffs that this casts a serious doubt on the defendant’s case.

32.4.I also give weight to the defendant’s evidence that she told her elder sister and her mother about her ownership in the Kanfield Property some time in 1995.  Since then, her elder sister kept on asking whether there was any indication from the Parents about the transfer of beneficial ownership whenever the siblings met.  Taking into account the defendant’s age, background and experience, I do not accept that she was too ignorant to ask the Parents to recognise her right by transferring the legal title to her.  I do not accept that the defendant can explain her case by simply stating that she trusted the Father.

33.In my judgment, the Father never made the 1994 Promise as the defendant claims.  I find that she was simply allowed to reside at the Kanfield Property as she was harassed by debt collectors at the Wah Hong Property.  The Parents probably requested the plaintiffs to allow the defendant to stay at the Kanfield Property, and the plaintiffs obliged.

34.But even if the 1994 Promise indeed existed as the defendant claims, I find it insufficient to give the defendant and/or Louis to a beneficial ownership in the Kanfield Property.

35.Parties agree as to principles applicable for finding beneficial ownership in a property by way of a common intention constructive trust: Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224[13]. In short, there must first be a common intention between the legal owner and the promisee that the promisee is to be the beneficial owners, even though the property was acquired in the legal owner’s name.  The promisee then altered his position in detrimental reliance of the common intention.  And it was unconscionable for the legal owner to deny the promisee’s beneficial ownership.

36.Ms Yu further refers me to De Bruyne v De Bruyne [2010] EWCA Civ 519 and AM v SS [2014] EWHC 2887 (Fam).  She submits that a constructive trust may also arise as a result of a breach of fiduciary duty.  After considering the judgments, I do not think they add anything substantial as a matter of legal principles.  As I see it, these 2 cases dealt with the factual situation where the common intention was not formed between the legal owner and the intended beneficiary.  But there was a common intention that the legal owner was not to have beneficial interest over the property registered in his name, and it was unconscionable for the legal owner not to recognise the interest of the intended beneficiary.  In my judgment, these 2 cases confirm that the court still needs to find common intention and detrimental reliance.

37.If the 1994 Promise did exist as claimed by the defendant, I am not satisfied that there was a common intention between the Parents and the defendant that she and/or Louis should have a beneficial interest in the Kanfield Property.

37.1.I have to construe what the Father said objectively.  On the defendant’s pleaded case, the Father could not have intended to confer an immediate beneficial interest to the defendant and Louis, as he spoke of the Kanfield Property belonging to them “in the future”.  As commonly understood, a person does not now entitle to a property if he is promised it in the future.  Also, if the Father thought that he had the power to dispose of the Kanfield Property after the death, the most obvious explanation must be that he deemed it as his property beneficially.

37.2.In the defendant 1^st witness statement at §16, the Father was alleged to have said that the plaintiffs held the Kanfield Property for the defendant and Louis, and that the Kanfield Property “始終是屬於本人及鈺德的”.  In my view, this phrase could be understood as either the property “always belonged to them” or “would ultimately belong to them”.

37.3.In the present case, I do not accept the Father’s words must mean that the Kanfield Property “always belonged to” the defendant and Louis.  On the defendant’s own case, the reason why the Kanfield Property was not registered in her and Louis’ name was to avoid Louis to get his hands on it.  Without evidence showing how knowledgeable the Father was about the respective rights of a legal owner and a beneficial owner, it is not clear whether the Father intended to deprive Louis of just the legal ownership, or any ownership in the Kanfield Property for the time being.  I do not accept that the Father’s words were clear and unambiguous. 

37.4.In addition, for the Parents to find it necessary to give the defendant some documents to prove her entitlement in the Kanfield Property, they must have intended that the transfer of title should not occur when they could still attest to it, i.e. when they were still alive.  This does not sit well with the defendant’s case that she and Louis were given an immediate beneficial interest.  In my judgment, the defendant was given a promise about the Parents’ future conduct at best.

38.In my judgment, there was no detrimental reliance by the defendant upon the 1994 Promise, if it did exist as claimed.

38.1.The defendant claims that she paid for the decoration[14] and purchased furniture when she moved into the Kanfield Property, because it was pretty much a bare shell when it was acquired.  She replaced various electrical appliances throughout time.  She also paid for the contribution of the renovation of Kanfield Mansion in 2014.

38.2.Ms Shek submits that the defendant’s evidence was incredible.  When she was cross examined in the afternoon of the 2^nd day of trial as to the lack of receipts for certain household items, she said that there was no fridge or bed when she and her daughter first moved in the Kanfield Property.  She went as far as agreeing that her daughter had to sleep on a mattress on the floor.  She only clarified in re-examination on the 3^rd day of trial that, after reflection, she remembered that certain household items were brought from the Wah Hong Property.

38.3.I find Ms Shek’s submissions forceful. But in my judgment it is a more important point that the defendant would probably carry out the same decoration, and purchase the same furniture and appliances if she was only permitted to stay as an occupant at the Kanfield Property.  When the defendant’s family moved into the Kanfield Property, every one must have understood that their the occupation would not be temporary[15]. As a long term occupant, I do not find it surprising that the defendant would incur expenses to decorate the flat and purchased furniture and appliances that the family would need.  I find it difficult to accept that her action had sufficient causal connection with between the alleged common intention.

38.4.As to the contribution for renovation of Kanfield Mansion, I do not find it significant in the context of the present case.  The defendant’s family admittedly occupied the flat rent free for 20 years when the contribution was called for.  I find it unsurprising that an occupant may see it as his/her duty to pay for the upkeep of the property, when the legal owners did not enjoy the flat all along.  For a case involving relatives like the present, parties may have been affected by a sense of moral obligation and respect.  Thus, it is not safe for me to conclude that the defendant treated herself as an owner simply because she incurred expenses.

39.Based on the reasons above, it is not unconscionable for the plaintiffs to recover vacant possession of the Kanfield Property from the defendant.

40.I find that the defendant fails to show that, as a result of the 1994 Promise, she acquired any beneficial interest in the Kanfield Property.

THE 1998 PROMISE

41.I bear in mind the context in which the defendant says the 1998 Promise was given by the Parents, i.e. that creditors were still haunting Louis, and he would disappear without explanation.

42.In cross examination, Ms Shek invited the defendant to recall what the Parents actually said in 1998.  The defendant gave the following answers:-

42.1.Upon learning the fact that creditors would still demand payment from Louis, and Louis would disappear unannounced, the Parents said they felt sorry to the defendant, and said they knew Louis was of no good.

42.2.Upon hearing the defendant say that she would give up her daughter to the Parents, the Parents said that the daughter could not live without parental care.  The defendant said she did not have a wicked personality, and only needed a stable life.  The Parents said that they would have arrangement in place.

42.3.The Parents comforted the defendant, and told her that she could not stay at her mother’s place.  The defendant felt grateful hearing the comfort.  She had trust in the Parents in that she purchased a desk for her daughter afterwards.

43.I agree with Ms Shek that what the defendant told me in court was much different to what was pleaded in the RADCC and to what she recorded in her witness statement[16]. Together with the reasons I set out in §32 above, I find the defendant’s evidence incredible as to whether the 1998 Promise was given by the Parents.

44.In any event, based on the defendant’s evidence in court, the Parents did not explain what they meant when they said arrangement would be put in place.  In my judgment, this phrase could not show that the Parents intended to confer an immediate beneficial ownership on the defendant, rather than to allow her to stay at the Kanfield Property as an occupant.  The remaining parts of the conversation were obviously irrelevant to the issue of ownership.  Thus, even if the defendant’s evidence is credible, I would not have found that there was any common intention reached as a result of the 1998 Promise.

45.I also repeat my reasons above regarding the issue of detrimental reliance.

46.The defendant further claims that, because of the Promises given by the Father, she did not save up part of her income to enable her to rent or buy her own flat.  I reject her evidence as incredible.  First, there is no evidence to show how much she earned from 1994 all the way up to 2015.  There is also no evidence corroborating her claim that she indeed did not maintain any savings.  Moreover, the defendant agreed under cross examination that her finance was tight when she moved into the Kanfield Property, and she had to make sure the ends meet first.   She agreed with Ms Shek’s suggestion that she could not save up because life was difficult.  With contradictory evidence, I do not find the defendant a reliable witness on this point.

47.In order to leave no doubt on my factual findings, I did consider whether the defendant’s evidence on the 1994 Promise could be credible on the basis that the 1998 Promise was allegedly given, or vice versa.  After due consideration, I conclude that my analysis above is the correct one.

48.In summary, I find that the defendant fails to show she has any beneficial interest in the Kanfield Property by relying on the 1998 Promise, either independently, or as a reinforcement of the 1994 Promise.

OTHER ARGUMENTS

49.The defendant further relies on proprietary estoppel and estoppel by acquiescence to claim a beneficial interest in the Kanfield Property.

50.In light of my findings above, I conclude that the plaintiffs did not induce, encourage or allow the defendant to believe that she had any beneficial interest over the Kanfield Property, either on their own or through the Parents.  I reject the defendant’s arguments on proprietary estoppel.

51.Similarly, I do not think the plaintiffs could be said to be guilty of estoppel by acquiescence.

52.In the RADCC, the defendant claims that, alternative to a common intention constructive notice, she obtains an irrevocable licence by way of an irrevocable possessory life interest.  The defendant relies on certain passages in Chen Tek Yee v Chan Moon Shing HCA 954/2010 (Deputy Judge Marlene Ng; 7 May 2015) as support.  Those passages state that a licence will only be granted if the legal owner’s conduct was so unconscionable that it would be inequitable to allow him to deny the claimant an interest in the property.  In my view, the arguments on irrevocable licence do not add anything to the defendant’s case.

ORDERS

53.The plaintiffs succeed in their claim against the defendant.  The defendant’s counterclaim is dismissed.  I order that the defendant do deliver up vacant possession of the Kanfield Property within 28 days of this judgment.

54.Parties agree that, if the plaintiffs succeed, they are entitled to mesne profits at $13,000.00 per month from 24 November 2015.  I therefore order that the defendant shall pay mesne profits assessed at $507,000.00 up to the date of this judgment, and at $13,000.00 per month thereafter until she gives vacant possession of the Kanfield Property.

55.There shall be a costs order nisi that the defendant do pay the plaintiff’s costs (including all costs reserved), with a certificate for counsel.

56.Ms Shek and Ms Yu made other points on the evidence in support of their respective clients’ case.  It suffices for me to state that I considered them, and they formed part of the matrix in which I made my findings.  I see fit not to deal with those points exhaustively, so as to keep this judgment to a reasonable length.

POSTSCRIPT

57.On the 1^st day of trial, and before counsel opened their respective cases, I expressed my view that the court was inept to ascertain the truth on the issues dividing the parties.  The witnesses spoke of matters going back to the 1970s the earliest, and much of their evidence was not corroborated by documents.  Emotions usually run high in disputes like the present case, and I shared with parties my experience that the end result of a trial seldom pleased everyone.

58.Parties then took time to see whether they could avoid trial, but to no avail.  Now their family feud lays bare in the public.  It is my sincere wish that other litigants entangled in a family dispute could pay heed to the present case, and strive to resolve their disputes amicably (e.g. through mediation).  I distinctively feel that litigants should count their blessing that the local property market is often a bullish one, so that a settlement agreement splitting up the value of the property still makes them significantly better off than seeing their disputes to the bitter end.

59.Lastly, I thank counsel for their assistance.

Ms Carol Shek, instructed by Ng, Au Yeung & Partners, for the 1^st & 2^nd plaintiffs

Ms Bianca Yu, instructed by Yung, Yu, Yuen & Co., for the defendant