Chung Pui Tong v. Qian Zhen
Read the full judgment text of HCA 2555/2014 on BabelCite. This High Court CFI judgment was delivered on 16 January 2020.
1. The Plaintiff and the Defendant were married in April 2008, divorced in 2013, and cohabited under one roof for about 2 months in the course of their marriage. At the time of their divorce, they consented to an order made by the Court on 13 September 2013, whereby the Plaintiff agreed to pay the Defendant a lump sum of $30,000 in full and final settlement of any claim for ancillary relief (“ Consent Order ”). Notwithstanding such terms as recorded in the Consent Order, the Plaintiff commence
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HCA 2555/2014 [2020] HKCFI 187 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2555 of 2014 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ Background 1.The Plaintiff and the Defendant were married in April 2008, divorced in 2013, and cohabited under one roof for about 2 months in the course of their marriage. At the time of their divorce, they consented to an order made by the Court on 13 September 2013, whereby the Plaintiff agreed to pay the Defendant a lump sum of $30,000 in full and final settlement of any claim for ancillary relief (“Consent Order”). Notwithstanding such terms as recorded in the Consent Order, the Plaintiff commenced proceedings against the Defendant on 16 December 2014, seeking declarations that the Defendant held: a sum of $2.7 million (“the Sum”), a property known as Flat F, 9th floor, Nam Tin Building, 275 King’s Road, Hong Kong (“9F”), and another property known as 27A and 29A, 4th floor, Cheung Sha Wan Road, Kowloon (“CSW”), all in trust for him. 2.By way of Defence, the Defendant claims that the Sum and 9F were unconditional gifts made by the Plaintiff to her, and that CSW had been sold by the Plaintiff and purchased by her at a consideration of $1.7 million. The Defendant counterclaims for declarations that she is the sole legal and beneficial owner of the Sum and of CSW, and that the Plaintiff and her are the legal and beneficial co-owners of 9F in equal shares as tenants-in-common. The Defendant also seeks delivery up of CSW and mesne profits, as well as half of the rental payments for 9F from January 2015. 3.In essence, the Plaintiff denies the gifts alleged, claims that the Sum which had been paid into a bank account in joint names was only for convenience and to facilitate the Defendant’s dealings with the tenants and the receipt of rental payment from the relevant properties on the Plaintiff’s behalf, and also alleges that 9F and CSW had been transferred into the joint names of the Defendant and himself under the Defendant’s undue influence. Alternatively, the Plaintiff claims that the assignment of the properties should be set aside for total failure of consideration, as there had not been any payment made by the Defendant. 4.As the parties have presented contradictory accounts of their dealings with each other, and the Plaintiff’s claims are on the basis of undue influence having been exerted by the Defendant on him, in abuse of his trust, confidence and reliance on the Defendant, it is important to consider their respective claims against the background of the parties’ relationship over the years. Relationship between Plaintiff and Defendant 5.At the time of their marriage in 2008, the Plaintiff was 45 years old. The Defendant was about 10 years younger. They had first met in 2000, in Shenzhen. The Plaintiff claims that the Defendant was an escort whom he accosted at a hotel. The Defendant denies this and claims that she was working as a receptionist when she encountered the Plaintiff. 6.At the time when the parties first met, the Plaintiff was a teacher in Hong Kong, with a working salary of $12,000, until he quit his job in 2002. For a time, he lived on his past savings and a distribution of $4,000 a month which he received from the estate of his deceased mother, which was managed by his sisters. From 2004, the Plaintiff worked as a security guard in Hong Kong, with a monthly salary of around $9,000. He continued to receive the monthly distribution of $4,000 from his mother’s estate. Since childhood, he had been residing at CSW. It is unclear if CSW formed a part of his deceased parents’ estate (“Estate”), but it became vested in the Plaintiff’s name eventually in 2003. 7.The Plaintiff said he had occasional contacts with the Defendant, during the period from 2000 to 2004. The Defendant made trips to Hong Kong, and the Plaintiff bought her gifts, including a diamond ring in 2003. It is also not disputed that in early 2002, the Plaintiff gave the Defendant $50,000, to purchase a property in Shenzhen. 8.The Plaintiff claims that he avoided contact with the Defendant from 2005 to 2007, as he did not wish to continue their relationship. He later learned from the Defendant that she was getting married and going to have a baby. He resumed “interaction” with her, and during one meeting, the Plaintiff informed the Defendant that he was due to get an inheritance from his parents’ Estate. 9.The Defendant claims that after giving birth to her son in August 2006, she separated from her then husband, and the Plaintiff resumed contact with her in mid-2007. They re-established their relationship, and according to the Defendant, the Plaintiff proposed to her and gave her $50,000, to hire a domestic helper on the Mainland to take care of the Defendant’s son and her parents. According to the Defendant, the Plaintiff told her that it was difficult for her to raise a child on her own, and that he was willing to take care of the Defendant and her son. With that assurance and also having been told that the Plaintiff would come into his inheritance, the Defendant thought that “it would be financially viable” for the Plaintiff to look after her, and her family. She therefore married the Plaintiff on 5 April 2008, and moved to reside with the Plaintiff at CSW whilst her son continued to live with her parents on the Mainland. 10.On his part, the Plaintiff claims that in November 2007, the Defendant asked him for $50,000, to pay for an urgent operation for the Defendant’s mother. According to the Plaintiff, this was what the payment of $50,000 was for. The Plaintiff claims that the Defendant told him that since the father of her child had deserted her, she had to move back to live in her hometown in Zhejiang to raise her baby, and she hoped that the Plaintiff could marry her, so that she could apply to migrate to Hong Kong with her child, her son could receive proper education in Hong Kong, and the Defendant could also take care of the Plaintiff as his wife. Believing the Defendant’s story, the Plaintiff said that he agreed to marry the Defendant in April 2008. 11.It is not in dispute, that soon after the marriage, the Defendant left their home at CSW, to return to the Mainland. The Plaintiff said this was because the Defendant was not happy with the living conditions at CSW, and that she preferred to live in Shenzhen. The Defendant said that whilst it was true that the conditions at CSW were unsatisfactory to her, with no cable TV, air-conditioning and hot water facilities, it was the Plaintiff who had persuaded her to go back to live in Shenzhen, because he was in litigation with his sisters over the Estate, and he did not want the Defendant to be implicated due to the “complicated” background of his sisters. Neither party elaborated on this, but the explanation offered by the Defendant for her departure is denied by the Plaintiff. Whatever the reason for the Defendant’s departure from the matrimonial home, it is not disputed that she left in June 2008, just around 2 months after the marriage. Thereafter, although the Defendant claims she travelled between Hong Kong and Shenzhen regularly, it is not disputed that she visited Hong Kong on day trips only. She did not spend the night at CSW because, as she explained, there was only one bed, which was filled with the Plaintiff’s books, and she could not use it. 12.There is further no dispute, that during the entire course of their relationship including the duration of their marriage, the Defendant had never brought her son to meet with the Plaintiff, whether in Hong Kong or the Mainland. This was notwithstanding the fact that, according to the Defendant, she had married the Plaintiff in the hope that the Plaintiff would take care of her son and herself, and that her son would be able to come to Hong Kong as a result, to receive his education here. The Plaintiff’s finances and the inheritance 13.The Plaintiff’s case is that his finances were tight. Apart from the monthly salary he received working as a teacher from 1989 to 2001, and as a security guard from 2004, as particularized in paragraph 6 above, the only available evidence of the Plaintiff’s assets were CSW and 9E and 9F which were transferred into his name in May 2009 from the Estate. 14.The Plaintiff claims that he had to borrow money from financial institutions from time to time, during the period from 2005 to 2008. The $50,000 which the Plaintiff gave to the Defendant in 2007 was paid from a loan which the Plaintiff obtained from a financial institution. The Plaintiff maintained that this was at the Defendant’s request for money to pay for her mother’s medical expenses. 15.The Plaintiff’s inheritance was a matter which had been disclosed to the Defendant even before the marriage in 2008. The Plaintiff’s father was in the mahjong club business during his life, and the Plaintiff had expected to receive some landed properties from the Estate, of which his sisters were the executrices. It was with the Defendant’s assistance that the Plaintiff discovered that he was the sole beneficiary of the Estate, and the Plaintiff believed and claims that his prospective inheritance was the reason why the Defendant wanted to marry him. With the Defendant’s assistance and through her introduction to a firm of solicitors in Hong Kong, the Plaintiff discovered that the Estate comprised properties which had not hitherto been disclosed by his sisters, and solicitors were instructed to recover the Estate from his sisters. Litigation was commenced, and as a result, the Plaintiff was able to receive from the Estate in January 2009 the Sum of $2.7 million, and in May 2009, 9E and 9F were vested in the Plaintiff’s name. It appears that litigation may still be continuing, but there is no evidence of any further transfers of assets from the Estate to the Plaintiff, after 2009. The Defendant asserts however that the Plaintiff is yet to receive property or assets to the value of $50 million from the Estate. 16.In the meantime, the Plaintiff claims that his financial situation was not healthy and that he had to rely on the Defendant, who had sole control of the Sum after she had transferred it from the joint bank account of the couple to her own account, whenever he had to meet his substantial medical bills for his deteriorating periodontal disease in 2010. He also required funds to finance the litigation with his sisters over the Estate. 17.On behalf of the Defendant, it has been emphasized that despite the Plaintiff’s claims of financial pressure, he had failed to make discovery of his bank account statements to show the full extent of his finances. Despite the documentary evidence which refers to different accounts of the Plaintiff with various banks, he only made selective disclosure of part of the records of one bank account, from 2010 to 2012, which does not show all his income and expenses. This is a matter on which the Defendant relies, in her submission that the Court should draw adverse inferences against the Plaintiff and reject his claims of financial pressure and reliance on the Defendant. Issues for determination 18.The Plaintiff’s claim is that in January 2009, he received from the solicitors a cashier order drawn in his favour for the Sum, which was paid to him from the Estate. There is no dispute that the cashier order was collected by the Defendant on the Plaintiff’s behalf, and deposited into a bank account which had been opened in December 2008 in the joint names of the Plaintiff and the Defendant (“Joint Account”). According to the Plaintiff, the Joint Account was established for convenience, in anticipation of the assets to be received by the Plaintiff from the Estate and to enable the Defendant to help the Plaintiff to handle his affairs and property on his behalf. It was also intended that the rental income from 9E and 9F would be collected by the Defendant and paid into the Joint Account, which could be managed by the Defendant when she was in Hong Kong, as the Plaintiff had to work long hours on shift as a security guard. 19.The Plaintiff claims that shortly after the deposit of the Sum into the Joint Account in January 2009, the Defendant withdrew $100,000 for her own use, and transferred $2.6 million to her own personal account, all without the Plaintiff’s knowledge or consent. When the Plaintiff discovered the withdrawals, he had asked the Defendant to return the Sum to him. The Defendant did not do so but told the Plaintiff that she would keep the money for him (保管), would hold the Sum as his trustee and custodian, and that she would make such payments to him as he may require for his expenses in the future. 20.After 9E and 9F were vested in the Plaintiff’s name from the Estate in May 2009, the Plaintiff claims that the Defendant asked for the properties to be transferred to their joint names, so that as co-owner, she could deal with the tenants on rental matters since they had formerly been dealing with and only knew the Plaintiff’s sisters. The Plaintiff agreed to transfer 9F to the Defendant as a joint owner with him, to enable her to manage the property and as trustee on his behalf. In his evidence, the Plaintiff claims that he only agreed to “add” the Defendant’s name as owner, so that she could deal with the tenants, but it was his intention that the Defendant would only be holding 9F as his nominee (“掛名”), with no beneficial interest in the property at all. A Memorandum of Agreement for Sale and Purchase dated 30 November 2009, and an Assignment of the same date, were signed by the Plaintiff and the Defendant, whereby 9F was transferred from the Plaintiff’s sole name to the joint names of the Plaintiff and Defendant, at a stated consideration of $1.4 million. The Plaintiff claims that he had informed the lawyers who prepared these documents that the Defendant’s name would be added as owner, but that she had no interest at all. He claims that he had not read the documents which the lawyers prepared, and had only put his signature at the spaces indicated to him. 21.As for the CSW property, the Plaintiff claims that the Assignment for the transfer to the sole name of the Defendant in December 2010 was made under the Defendant’s undue influence. He claims that he had persistently been asking the Defendant for return of the Sum, to no avail, and that he required $200,000 for his urgent dental implant, as well as funds to pay for the legal expenses of his litigation with his sisters with regard to his entitlements under the Estate. The Plaintiff asked the Defendant to give back to him the Sum which she had withdrawn from the Joint Account. According to the Plaintiff, the Defendant only agreed to return $1.3 million to him immediately, on condition that he should transfer the title and ownership of CSW to her, and give her the title deeds for custody. The consideration stated in the Assignment for CSW was $1.7 million, and the Defendant was to pay the balance of $400,000 to the Plaintiff later. 22.Notwithstanding the aforesaid, the Plaintiff’s evidence is that the Defendant only transferred to him a sum of RMB 150,000 initially, and when he signed the Assignment on 3 December 2010 at the solicitors’ office, the Defendant handed over a cashier order for $930,000, with the promise that the remaining balance of the consideration of $1.7 million would be returned to him by installments later. On the evidence, the Defendant sent and the Plaintiff received RMB 30,000 on 31 March 2011, RMB 40,000 on 9 May 2012, and RMB 50,000 in July 2012, but no further repayment was received. 23.The Plaintiff claims that the assignment of CSW to the Defendant was made under the Defendant’s undue influence at a time when the Plaintiff needed money, and that it should be set aside for that reason. Alternatively, the Plaintiff claims that since the alleged payments made by the Defendant to the Plaintiff as consideration for the transfer of CSW were all from the Sum which she only held on trust for the Plaintiff, there was no consideration for the assignment of CSW. 24.On the Defendant’s part, she claims that the Sum and 9F were the Plaintiff’s absolute and unconditional gifts to her. According to the Defendant, the Plaintiff’s gift of the Sum was to fulfill his promise to support the Defendant and her son. The Defendant claims that when the Plaintiff learnt of his likely inheritance from the Estate, he had told the Defendant that 9F was probably a gift from his father to his mother, and he wanted to be like his father, and to be able to support his wife. According to the Defendant, the Plaintiff informed her, after some discussion, that he would give her the entire Sum and half share of 9F, so that she could have security. 25.As for CSW, the Defendant claims that it was transferred to her by agreement with the Plaintiff, after he proposed that she should purchase it from him at a consideration of $1.7 million, $1.3 million of which was to be paid in one lump sum, and the balance by installments. In her evidence, the Defendant claimed that this was some time in around November 2010, when the Plaintiff told her that he needed some cash and wanted to sell CSW, whereupon she proposed that he should sell to her. According to the Defendant, she had paid to the Plaintiff $1.3 million, by 2 payments of RMB 150,000 and $27,000 on 2 December 2010, by a cashier order for $930,000 on 3 December 2010, and by 2 other payments of $72,000 and $70,000 respectively (paragraph 18 of the Amended Defence and Counterclaim). The remaining balance was agreed to be paid from her half share of the rental payments from 9F after December 2010. 26.The issues for determination are therefore:
Was the Sum a gift? 27.The determination of this issue turns solely on the credibility of the witnesses in relation to their evidence on the opening of the Joint Account and the purposes of the payment of the Sum into the Joint Account. 28.I bear in mind that in assessing and deciding on the intention of the Plaintiff in making the transfer of the Sum from his own account to the Joint Account, the parties’ evidence on declarations or statements allegedly made at the time of the transfer should be assessed in conjunction with evidence of their contemporaneous conduct and conduct after the event, as well as any contemporaneous documents which may exist and which may shed light on, and support or contradict, at times self-serving statements made long after the transactions. As the Court of Final Appeal put it in Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605, at 627:
29.In my assessment of the evidence, I also bear in mind the observations made by Bokhary PJ in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, at 348:
30.Besides the demeanour and credibility of the witnesses, other crucial considerations for the court include, of course, the inherent probability of the parties’ assertions, and whether these assertions are consistent with the parties’ conduct, the contemporaneous documents, and the undisputed or indisputable facts. When considering the testimony of the witnesses in this case, I bear in mind that they are testifying as to events which took place in 2008 to 2013. The accuracy of the memory of witnesses as to events over 10 years ago has therefore to be approached with some caution. Comparison with contemporaneous documentation, if any, is often an aid to the reliability of oral testimony, unless there is reason to believe that the documentation is contrived or materially incomplete. Generally speaking, however, where the passage of time between events and trial is long, and where there is a host of contemporaneous documentation, it would usually be appropriate to place more reliance on contemporaneous documentation. 31.Due reminder should also be given to what was said by Peter Smith J in EPI Environment Technologies Inc & Anr v Symphony Plastic Technologies plc & Anr [2005] 1 WLR 3456, 3470-3471 at para 74, that it is essential to have regard to the entirety of a witness’s evidence. As the learned judge observed, witnesses can make mistakes, but the mistakes do not necessarily affect other parts of their evidence. Likewise, witnesses can regularly lie. However, lies themselves do not mean necessarily that the entirety of that witness’s evidence is to be rejected. A witness may lie in a stupid attempt to bolster his case, but the actual case may nevertheless remain good irrespective of the lie. 32.In my overall assessment, I find the Plaintiff to be an unsophisticated and simple man. Although he obtained a bachelor’s degree and a postgraduate diploma in economics from the University of London, and a postgraduate diploma in education from the University of Hong Kong, he taught English in secondary schools until 2002, and thereafter worked as a security guard. His salary from both jobs were modest, and he had lived with his aunt for a good part of his apparently sheltered life, relying on distributions of $4,000 per month from his sisters who were the executrixes of the Estate. 33.I accept that, as Counsel for the Defendant criticized, the Plaintiff has not been entirely forthcoming in relation to his bank account statements and expenditure. However, his testimony was on the whole honest. The Plaintiff struck me as a person who paid little attention to details and gave insufficient regard to his financial affairs. 34.The Defendant appeared much more shrewd than the Plaintiff. Her life experience on the Mainland may have rendered her more money conscious. She attempted to suggest that the gifts of money made by the Plaintiff to her prior to their marriage were ordinary gifts in the course of their courtship, but on balance, I find it more credible to accept the Plaintiff’s evidence, that the $50,000 given by him to the Defendant in November 2007 (by obtaining a loan from a finance company) was as a result of the Defendant representing to him that she needed money as her mother required medical treatment. On the evidence, $45,000 of the $50,000 given to the Defendant by the Plaintiff was instead used by her to pay a car company on the Mainland. The Defendant’s claim that the money was used by a friend is incredible. I do not consider the Defendant to be an honest witness, and find that much of her evidence was tailored to suit the presentation of her case in a manner which was most helpful to her. 35.The Defendant herself asserted that the Plaintiff had proposed to her in 2003, but she had decided against marriage at that time, because she had doubts whether the Plaintiff would be able to support her, with no stable job or any assets in Hong Kong. On the Defendant’s evidence, she agreed to marry the Plaintiff in 2008, because she was touched that the Plaintiff said that he would take care of her and her son, and also because he had told her about his expected inheritance from the Estate, and she was assured that it would be financially viable for the Plaintiff to look after her and her family. On her own evidence, the Plaintiff’s inheritance was a reason, if not the major reason, for her to marry the Plaintiff. 36.As the evidence shows, it can hardly be said that apart from the monetary expectations of the Defendant, there was a close and loving relationship between the Plaintiff and the Defendant. She only stayed in the matrimonial home for a matter of weeks after the marriage. Thereafter she only made day visits to Hong Kong, apparently to deal with the Plaintiff’s banking matters, litigation matters and later, tenancy matters. Despite her claim that she had married the Plaintiff in order to give her son a home and better prospects in Hong Kong, she admitted that she had never introduced her son to the Plaintiff, nor ever taken the initial step of arranging a meeting between the Plaintiff and her son. That was hardly consistent with her purported intentions to make Hong Kong a home for herself, the Plaintiff, and her son. 37.Counsel for the Defendant sought reliance on the fact that the parties had a relationship even before their marriage. However, even from 2000 to 2004, and from mid-2007 to April 2008, their “relationship” only comprised occasional, short visits to Hong Kong or the Mainland, rather than any long or stable period of cohabitation. 38.In all the circumstances, I find it inherently improbable that the Plaintiff would have made an outright gift of the entire Sum to the Defendant in January 2009, as the Defendant claims. As mentioned above, the Plaintiff had a modest salary, of $9000 per month in 2009. On the evidence available, the Plaintiff had been making continuous borrowings from 2005 to 2008 and had to make monthly repayment of these loans. The Sum would have been a significant asset and a welcomed windfall to him at the material time in 2009. Even if it was true, as the Defendant alleges, that the Plaintiff was hoping to receive more from the Estate after January 2009, that was all contingent upon his succeeding in his litigation with his sisters, and the Plaintiff rightly pointed out that the litigation was expensive and uncertain, and that he hardly had the funds to finance the legal fees continuously. On the balance of probabilities, I find it more credible that the Joint Account was opened at the Defendant’s request, on her representation that since the Plaintiff had to work long hours as a security guard, and in anticipation that 9E and 9F would be transferred to the Plaintiff from the Estate in January 2009, the Defendant could help the Plaintiff to deposit the rents collected into the Joint Account and manage his expenses from the Joint Account, when she came to Hong Kong. 39.As planned and discussed, the Sum was deposited into the Joint Account in January 2009, for the stated purpose of enabling the Defendant to assist the Plaintiff’s management of finances and of his affairs relating to the tenancies. As a married couple at the relevant time in late 2008 and early 2009, I do not expect there to be a detailed discussion and agreement on the exact terms of the operation and management of the Joint Account. A broad agreement that the Defendant would thereby help the Plaintiff to manage his affairs and accounts, for and on his behalf, would suffice. By remaining a joint account holder, the Plaintiff was assured that he would be able to operate and withdraw money from the Joint Account, as he required and during the time when the Defendant was not in Hong Kong. 40.On behalf of the Defendant, it was argued and I have borne in mind that since the Defendant was one of the joint account holders, and an authorized signatory, she had the power to withdraw money from the Joint Account without the Plaintiff’s consent, and further, that this was known to and hence consented to by the Plaintiff. 41.The Defendant’s pleaded case is that as the Plaintiff felt he was unable to keep his promise of supporting the Defendant and her son, and was afraid that the Defendant might leave him, the Plaintiff made known to the Defendant in around September to October 2008 that he intended to give the Sum to the Defendant as an unconditional gift. In her evidence, the Defendant maintained that after some discussion which had taken place between them in around October 2008, and after the Plaintiff had learned of his likely inheritance, he informed the Defendant that he would give the Sum and half share of 9F the Defendant. 42.As Counsel for the Plaintiff pointed out, even if it is to be accepted that the Plaintiff had made assurances to the Defendant that he would take care of her and her son, with CSW as the matrimonial home in his name, the rental income of around $6000 from each of 9E and 9F, his monthly salary, and monthly receipt of $4000 from the Estate, the Plaintiff could have adequately supported and looked after the Defendant and her son, against their modest background, even without a gift of the Sum. 43.Whatever was the alleged discussion which took place in October 2008 (particulars of which the Defendant was not able to give), the Sum was ultimately deposited into the Joint Account of the Plaintiff and the Defendant in January 2009, and not paid or transferred from the Plaintiff to the Defendant’s own bank account – which would have been expected, if the Plaintiff had indeed intended to make an absolute and unconditional gift to the Defendant. The payment of the Sum into the Joint Account is more consistent with the Plaintiff maintaining an interest in the Sum, and contradicts the alleged intention to make an outright gift of the entire Sum to the Defendant, for her to spend and use as she thought fit (as the Defendant claims). 44.I accept the Plaintiff’s evidence, that upon finding out that the Defendant had withdrawn and transferred the Sum to her own account, he had called the Defendant to ask what had happened. This is not disputed by the Defendant. The Plaintiff’s evidence as to the Defendant’s answer, when he questioned her as to why she had withdrawn the Sum without first informing him, sounds inherently probable and credible: she said that she had taken the money, and was keeping it for him, as she was worried that he might spend the money unwisely. The Plaintiff claims that the Defendant assured him at the time that when he needed the money in the future, she would return it to him. 45.The Defendant denies that there was such a conversation. However, upon cross-examination, the Defendant admitted that she was concerned that if the Sum was kept by the Plaintiff, he might gamble it all away. This admission adds credence to the Plaintiff’s evidence on the conversation which had taken place, and the explanation she had given for the withdrawal. As Counsel for the Plaintiff argued, if the Sum had indeed been a gift to her, it would not have been necessary for her to give any explanation or assurance to the Plaintiff, of giving the Sum back if he required it, or that he might gamble the Sum away. 46.The Plaintiff’s evidence, that the Defendant had given him assurance that the Sum would be kept by her, to pay for his expenses as he required, is supported by the subsequent conduct of the Defendant. The legal expenses for the litigation, the costs on account to the solicitors, and the payments for the Plaintiff’s dental implants were all paid by the Defendant. I reject her claim that these were “loans” made by her to the Plaintiff. 47.In relation to the Sum, my finding on the evidence is that it was paid into the Joint Account not as an outright and unconditional gift from the Plaintiff to the Defendant, but was held by the Defendant on trust for the Plaintiff, in accordance with the understanding reached when the Joint Account was set up – namely, for the Defendant’s custody on behalf of the Plaintiff, and for her management of the rental receipts and expenditure and the fiscal matters of the Plaintiff. By agreeing to the establishment of the bank account in joint names, the Plaintiff must have appreciated that the Defendant would be able to withdraw the money by herself, but I believe that he had expected and trusted her to inform and consult him before she used the money for her own purpose. As they were a married couple, I reject the argument that the Plaintiff’s failure to report the matter of the unauthorized withdrawal to the police, or to terminate the operation of the Joint Account after the Defendant’s withdrawal, affect the credibility of the Plaintiff’s claims. After all, they were a married couple, and I would not expect the husband to take such drastic action. Was Flat 9F a gift? 48.In relation to 9F, the Plaintiff’s case is that after 9E and 9F had been transferred to him from the Estate (which was in May 2009), the Defendant told him that the rental income from these properties was too low, and asked the Plaintiff to increase the rent as soon as possible, claiming that she could discuss these rental matters with the tenants on the Plaintiff’s behalf. The Plaintiff claims that in November 2009, the Defendant then asked him to transfer the title of 9E and 9F into their joint names, so that as co-owner and trustee, she could deal with the tenants and manage the tenancy affairs. On the Plaintiff’s pleaded case, he agreed to transfer 9F only to the Defendant, under her undue influence, so that she could manage the properties as his trustee and nominee. In his evidence, he claimed that this was because the Defendant was controlling the Sum, which was the bulk of his finance and assets. 49.The Defendant’s pleaded case is that 9F was an unconditional gift from the Plaintiff to the Defendant, when he transferred half share in the property to her in November 2009. This was in consideration of the fact that she was his wife, and also because she had made a loan to the Plaintiff of “around $170,000 to $200,000”, for legal fees incurred by the Plaintiff for the Estate. In her evidence, the Defendant claims that at the time when he learned of his likely inheritance from the Estate in around October 2009, the Plaintiff had told her already that he would give half share of 9F to her, since 9F was probably a gift from his own father to his mother, and he wanted to support his wife. 50.There are no detailed particulars in the Plaintiff’s pleadings as to how the allegedly undue influence was exerted by the Defendant, to procure the transfer of 9F to her in November 2009. There is only his general evidence of financial difficulties, and his reliance on the Defendant who controlled the Sum. Counsel for the Plaintiff fairly accepted that he does not rely on any presumption of undue influence as may arise by virtue of the husband and wife relationship between the parties. The Plaintiff only relies on the fact that he had reposed trust and confidence in the Defendant, who had abused such trust. 51.According to the Plaintiff, after the Defendant had transferred the Sum to her own account in January 2009, he had to depend on the Defendant for the expenses to finance the litigation with his sisters, and more pertinently, to pay for the dental treatment for his periodontal disease. The Plaintiff claims that the Defendant had abused his reliance and trust, by demanding the transfer of first 9F and later CSW to herself, in exchange for her releasing or making payments to the Plaintiff of the funds which he needed, including in particular the RMB 150,000 paid on 2 December 2010 after he had agreed to sign documents for the transfer of CSW on the next day. 52.On the issue of the relationship between the Plaintiff and the Defendant, the Defendant denies that she had any domination over the Plaintiff. Counsel highlighted the fact that the Plaintiff holds a university degree and postgraduate diplomas, whilst the Defendant did not complete her secondary school education on the Mainland. There is no evidence that the Plaintiff had suffered from any ill health, physically or mentally, apart from his periodontal disease. Despite his relatively simple life as a teacher and then a security guard, the Defendant pointed out that the Plaintiff did have the experience of investing in property in Hong Kong (when he purchased a flat in Hung Hom in 1999). The Plaintiff had taught English as a teacher, whereas the Defendant was illiterate in English, which may have placed her in a more disadvantageous position in Hong Kong, when compared with the Plaintiff. After the marriage, the Defendant had to rely on the Plaintiff to facilitate her application for a one way permit to migrate to Hong Kong with her son. The Plaintiff traveled to the Mainland some time in 2012 for that purpose, at the Defendant’s request. 53.Despite the Plaintiff’s assertion of undue influence, the Plaintiff has failed to make full disclosure of his financial means and alleged dependence on the Defendant. He has only produced partial statements of one bank account of his, and one statement of his loans from and repayment to one finance company. Apart from these, there is no documentary evidence of his other available income and expenditure. Counsel for the Defendant emphasized that the Court may draw an adverse inference against the Plaintiff, that full disclosure of his bank statements would show that he had other assets and income which contradict his contention of poverty and financial reliance on the Defendant by reason of her retention of the Sum. 54.Counsel for the Plaintiff accepts that undue influence is ultimately a question of whether there was informed consent, given with full knowledge of the consequences of entering into the relevant transaction. Counsel referred to the principles summarized in Bank of China (Hong Kong) Ltd v Chan Fook Wing, unreported, HCMP 420/2004, 25 September 2015:
55.In the case of Bank of China (Hong Kong) Ltd v Wong Kam Ho [2014] 1 HKLRD 41, Godfrey Lam J observed:
56.It was in the case of Li Sau Ying v Bank of China (Hong Kong) Ltd (2004) 7 HKCFAR 579 that the Court of Final Appeal held that the question to ask is whether the evidence justifies the inference, on a balance of probabilities, that the impugned transaction was procured by an abuse by the alleged dominant party of the trust and confidence reposed in by the alleged subservient party. 57.On the issue of inferences, regard must be had to the numerous reminders by the courts, to guard against drawing an inference where the primary evidence does not logically and reasonably justify such inference. As the Court of Final Appeal pointed out in Ming Shiu Chung v Ming Shiu Shum (2006) 9 HKCFAR 334, the court is not entitled to merely choose between guesses, on the ground that one seems more likely than another. Inferences of fraud or serious misconduct are not to be reached by conjecture, nor on a mere balance of probabilities, but have to be plainly established as a matter of inference from proved fact. 58.Even if I accept the Plaintiff’s claim, that there was a relationship under which he reposed trust and confidence in the Defendant, for her to handle the funds in the Joint Account, to manage same and to deal with the rental of 9E and 9F on his behalf, I am not satisfied on the balance of probabilities that the assignment of 9F was procured by the Defendant’s abuse of the Plaintiff’s trust and confidence. 59.The Plaintiff admitted that he had freely signed the Memorandum of Agreement and the Assignment of 9F prepared for him by the solicitors in November 2009. This was some 15 months after the Defendant had moved out of CSW in June 2008, at a time when she was only making periodic day trips to Hong Kong. It was also some time after 9E and 9F had been vested in the Plaintiff (in May 2009), at around which time (as the Plaintiff claims) the Defendant had suggested that she should deal with the tenants and rental matters on his behalf. Any domination which the Defendant may have exerted over the Plaintiff’s mind and will (from the marriage in April 2008 to May 2009, when 9F was vested in the Plaintiff, and from May 2009 until 30 November 2009 when the documents for the transfer of 9F were signed) must have been either removed or diminished, with the Defendant staying away from the Plaintiff’s home, in Shenzhen, after June 2008. During the period of the Defendant’s absence in Hong Kong, the Plaintiff could have consulted lawyers and given instructions to them, to prepare the necessary documents to reflect his true intention, of having the Defendant hold 9F on trust for him and as his nominee only. The Plaintiff accepted that at the time when he signed the documents for the transfer of 9F, he had done so willingly, and had not even read the documents. 60.More significantly, since the Plaintiff claims that the Defendant had in fact asked him to transfer both 9E and 9F into their joint names, and he had only transferred 9F, this is some evidence that the Plaintiff had exercised independent judgment when he made the transfer, and indeed, casts doubt on the suggestion that he had no will of his own, and no alternative but to agree to the Defendant’s demand for the transfer. 61.In my judgment, there is a lack of evidence of the Plaintiff’s alleged financial difficulties from which this Court can infer, on the balance of probabilities, that the Plaintiff was so vulnerable that he had entered into the Assignment of 9F against his will, or as a result of the Defendant’s abuse of his alleged vulnerability. As the Plaintiff’s own evidence shows, he had been able to obtain various loans from at least one finance company between 2005 and 2008, from which he made the gifts and payments sought by the Defendant. He has not adequately and credibly explained why, at a time when he required funds to pay for his dental treatment, he was not able to obtain further loans, particularly at a time when he was in a position to offer 9E or 9F as security. 62.To the contrary, the evidence suggests that the Plaintiff had intended to transfer 9F to the joint names of the Defendant and himself. In his evidence, the Plaintiff accepted that the transfer of 9F was to add and include the name of the Defendant as owner, but that he had intended that it was only for her to act as a mere nominee, with no actual or beneficial interest. Whatever may be in his mind, I reject the Plaintiff’s claim as unbelievable that he had actually given such instructions to his solicitors when the documents for the transfer of 9F were prepared. It is not credible that if the Plaintiff had expressed his intention to the solicitors, that the Defendant was only to be owner in name, but with no beneficial interest which was in fact held on his behalf, his solicitors would not have prepared a declaration of trust or some other document to be signed by the parties to reflect the Plaintiff’s true intention. The relevant Memorandum and Assignment were expressed to transfer the beneficial interest in 9F from the Plaintiff to the Defendant as co-owner. By signing the documents, the Plaintiff is bound thereby. 63.Some support can be obtained from the fact that although the Plaintiff had stopped paying the rental income from 9E into the Joint Account from November 2010, he had continued to deposit the rental income from 9F into the Joint Account, which is more consistent with his treating the Defendant at all material time as a co-owner of 9F. 64.In conclusion, there is no evidence whatsoever to support the Plaintiff’s contention that the transfer of 9F into the joint names of the Defendant and himself was procured by undue influence. 65.I accept that the Defendant’s evidence as to the circumstances leading to the execution of the Memorandum and Assignment of 9F in November 2009 is filled with inconsistencies, as to the alleged discussions which had taken place but which she was not able to substantiate with details, and her claim that the transfer of 9F to her was in consideration of a loan of $170,000 to $200,000 she made to the Plaintiff for payment of legal fees. The payment of the legal fees incurred for the Estate was made from the Sum withdrawn from the Joint Account, and I reject the Defendant’s evidence and claim that such payment was a loan from her to the Plaintiff. The use of the Sum to pay for the legal fees was consistent with the Plaintiff’s evidence, that the Defendant had assured him that the Sum she had transferred out of the Joint Account would be used to pay for the Plaintiff’s expenses when he had the need for expenses. 66.Nevertheless, in respect of the Plaintiff’s assertion that the Memorandum and Assignment of 9F was not supported by any consideration, the short answer is that he is bound by the Memorandum and Assignment which he signed, and in which he acknowledged that the sum of $1.4 million was paid to and received by him as consideration. 67.The basic and fundamental principle is that a person who signs a document is bound by his signature, and it is no defence for the person who signed to claim that he or she had not read the document, or did not understand the content of what had been signed – unless vitiating factors such as mistake, misrepresentation or lack of mental capacity can be established. As Ribeiro PJ observed in Ming Shiu Chung v Ming Shiu Shum (2006) 9 HKCFAR 334, at 361:
68.As I have rejected the Plaintiff’s claim of undue influence, there is no vitiating factor which can affect the validity of the Memorandum and Assignment by which the Plaintiff is bound. 69.Further, in Prime Sight Ltd v Lavarello [2014] AC 436, the Privy Council held that even if no payment had in fact been made, a transferor cannot sue the transferee for the unpaid purchase price under an assignment which contains a stated consideration and the receipt of payment is expressly acknowledged:
70.In the Assignment of 9F signed by the Plaintiff and the Defendant dated 30 November 2009, the deed referred to the purchase money of $1.4 million “paid by the Purchaser to the Vendor”, and receipt of the purchase money was acknowledged by the Plaintiff as vendor. For the reasons set forth in Prime Sight Ltd v Lavarello and in Ming Shiu Chung v Ming Shiu Shum, the Plaintiff is bound by the documents which he signed. CSW 71.For the same reasons as those set out above in respect of 9F, I reject the Plaintiff’s claim that the assignment of CSW from the Plaintiff to the Defendant in December 2010 was procured by the Defendant’s undue influence. 72.Specifically in relation to CSW, the Defendant’s case is that there was an actual agreement of sale and purchase made between the Plaintiff and herself. As for her alleged payment of the stated consideration of $1.7 million for the transfer, the Defendant gave various conflicting accounts. Her pleaded case was that the Plaintiff made an offer to her to purchase CSW at a consideration of $1.7 million, $1.3 million of which was to be paid by installments, and the details for payment of the remaining $400,000 had not been agreed at the time. There is no dispute that there was payment of $930,000 by cashier order, received by the Plaintiff on the date of signing the Assignment. As for the balance of the purchase price, the Defendant pleads that she had made an arrangement with the Plaintiff to settle the remaining balance of $400,000 by utilizing her half share of the rental proceeds from 9F, for the period from December 2010 (after the date of the Assignment) up to the time of the divorce proceedings (which were instituted in July 2013), and by utilizing a sum of RMB 40,000 paid to the Plaintiff on 9 May 2012. 73.The Defendant’s evidence on her alleged payment of the sum of $1.3 million is riddled with inconsistencies and obscurities. The alleged payments which she claims to have made (paragraph 25 of her witness statement) do not tally with the amount of $1.3 million. Further, as Counsel for the Plaintiff pointed out, she could not at or around the time of the transfer of CSW in December 2010 have envisaged that divorce proceedings would be commenced, to have come to an arrangement with the Plaintiff at that time, for the part of $400,000 of the stated consideration to be paid from the rental proceeds up to the time of the divorce (as pleaded in paragraph 21 of the Amended Defence). 74.According to the Plaintiff, the payments which the Defendant had made to the Plaintiff for the stated consideration, apart from the $930,000 paid by cashier order on the day of the Assignment, were all made from the Sum held by the Defendant, as expenses for the Plaintiff’s dental implants. He maintains that the balance of $400,000 remained unpaid. 75.For the reasons set out in paragraphs 69 and 70 above, I reject the claim that the Plaintiff had not received the consideration for CSW, and that the assignment can be set aside for total failure of consideration. 76.On behalf of the Plaintiff, counsel argued that the Defendant admitted in her evidence that all the payments she made for the transfer of CSW under the Assignment were made from the Sum which she had transferred from the Joint Account. Since the Sum was held by her on trust for the Plaintiff, the Plaintiff claims that he is entitled as beneficial owner to trace the Sum into CSW said to have been purchased with the Sum (Lewin on Trusts, 19 ed, 41-023). 77.On the facts and available evidence in this case, I cannot accept the submissions made by Counsel. The Plaintiff’s evidence is that he agreed to transfer CSW to the Defendant, upon her alleged undue influence and pressure, that she would only return the Sum to him, if he would transfer CSW into her name instead. According to the Plaintiff, he had agreed because he wanted to have the Sum paid back to him upon agreeing to the transfer of the property into the Defendant’s sole name. I reject the Plaintiff’s claim of undue influence, on the basis of the lack of sufficient evidence of his alleged financial difficulty and alleged dependence on the Defendant, the lack of evidence of any loss of independent free will on the Plaintiff’s part, and the lack of evidence that he had no other practical alternative to recover the Sum without transferring CSW. He did not even attempt to seek legal advice from the lawyers who had been involved in his litigation with his sisters. Nor did he seek legal advice on recovery of the Sum when he petitioned for divorce in 2013. In any event, it is clear from the Plaintiff’s evidence that he knew and intended that the Defendant would be using the Sum to pay for the stated consideration of $1.7 million, or a part thereof which he actually received. It was what he had agreed to as an exchange, although on reflection after the event, it was obviously a bad deal. Unfortunately, as the Court summarized in the case of Bank of China (HK) Ltd v Wong King Sing & Ors [2002] 1 HKLRD 358:
78.In addition to the $930,000 paid by cashier order on the date of the Assignment on 3 December 2010, the Defendant had paid the further sums of RMB 150,000 on 2 December 2010, $20,000 on 8 December 2010, and $100,000 on 9 December 2010, for the Defendant’s dental implants. It is not disputed that there were further payments of RMB30,000 and RMB40,000 made by the Defendant to the Plaintiff on 31 March 2011 and 9 May 2012, apart from the settlement of the Plaintiff’s legal expenses, from the Sum. On the Defendant’s case, the balance remaining was to be deducted from her half share of the rental income from 9F. 79.Further evidence to support the fact that the parties had accepted the terms and reality of their deal on the Sum and CSW is the fact that in June 2013, the Plaintiff gave the title deeds to CSW, which had hitherto been in his possession, to the Defendant. Effect of the divorce proceedings and Consent Order made 80.The Plaintiff petitioned for a divorce on 9 July 2013, and a decree nisi was made on 13 September 2013, together with the Consent Order. The Consent Order records the parties’ acknowledgment and undertakings to the Court, that (inter alia) they accepted the arrangements of their assets and/or properties to the marriage, that they waived their rights to seek further disclosure and discovery, and that the financial arrangements set out in the Consent Order were in full and final settlement of their claims to ancillary relief. 81.At the pre-trial review, the Court already highlighted the fact that the parties’ agreement evidenced by the Consent Order made in their divorce proceedings may be relevant to the claims made by the parties in these proceedings and, at the very least, to the Court’s assessment of the credibility of the parties’ respective case on the claims made. 82.A consent order gives rise to an issue estoppel between the parties, even if the court making the order has not heard arguments or evidence directed to the merits (Yeung Man Fung v Hung Fan Keung, Henry [1996] 2 HKC 329). In determining the scope of a consent order, the test is what a reasonable person, with the parties’ background knowledge, would have understood the order to mean. On behalf of the Defendant, Counsel emphasized that a consent order is not only an agreement between the parties, but also a formal document which has public significance. The Defendant argued that the Plaintiff is bound by the Consent Order and is estopped from asserting and further arguing his claims to any property from the Defendant, who was released from any and further liabilities which she might have had in relation to the Sum, 9F and CSW, since the Consent Order evidences the parties’ full and final settlement of all claims in relation to all their properties. 83.In reliance on the decision in Lit Wing Yee v Tang Cheuk Lun [2018] 2 HKLRD 227, Counsel for the Plaintiff argued that when a Family Court deals with parties’ rights to ancillary relief in divorce proceedings, it cannot order a party to the marriage to discharge outstanding liabilities to the other in contract, tort, or trust outside ancillary relief. In Lit Wing Yee’s case, the husband’s application to stay the civil proceedings commenced by the wife, before the divorce proceedings, for recovery of a debt from the husband was not stayed for determination by the Family Court. On that authority, it was argued for the Plaintiff that notwithstanding the Consent Order made in July 2013, he is not estopped or barred from pursuing his claims against the Defendant which were only made by his institution of these proceedings in December 2014, for recovery of the Sum, 9F and CSW which are said to be held by the Defendant on trust for him. 84.I am not persuaded that the Plaintiff’s claim for the Defendant’s transfer back to him of 9F and CSW are unrelated to or outside the scope of ancillary relief which may be ordered in his divorce proceedings. The facts and the relief claimed in Lit Wing Yee render the case distinguishable. As the Court also acknowledged in Lit Wing Yee, one of the necessary steps to be taken by the Family Court in dealing with ancillary relief is to identify as a matter of fact what assets a party to the marriage had, before a fair distribution can be made. The Plaintiff and the Defendant would have to identify, and should have identified, in the divorce proceedings, their respective assets and any of the other’s assets which it is claimed should be put into the pool, or to be transferred to the other party. 85.I consider it incredible that the Plaintiff would not have made it clear to his solicitors at the time of the Petition for divorce that 9F of which the Defendant is the registered co-owner, and CSW of which the Defendant is the registered sole owner, are actually held on trust for him, and should be made subject to an order for transfer of the properties back to him upon divorce. Even if the Family Court would not consider it appropriate to deal with the Plaintiff’s claims to the Sum, and to the properties under the trust he asserts, I consider it incredible that the Plaintiff would not even have asserted these claims when he made disclosure of his assets and financial affairs in the divorce proceedings and of what he alleges as to his entitlement from the Defendant as part of the orders for ancillary relief to be made. 86.The Defendant pleads that when the Plaintiff sought the divorce, it had been orally agreed between them that she would remain the legal and beneficial owner of the Sum and of CSW, and of the half share in 9F, that the Plaintiff would pay for her maintenance in a lump sum of $30,000, and that each party would waive his/her debt which was due and outstanding at the time of the divorce, including any unpaid balance of the stated consideration of CSW. 87.The Plaintiff denies that there was any such agreement, but does not dispute that the Consent Order was made. According to the Plaintiff, he had not raised the issues of trust monies and trust properties, as he did not want to delay the divorce proceedings, and he now claims that these issues were not related to or within the ambit of ancillary relief for the purpose of the divorce proceedings. He claims, however, in the Reply and Defence to Counterclaim, that he had actually informed the Defendant that he might have to commence legal proceedings for recovering the trust monies and properties after the divorce. 88.Having reviewed the evidence of the parties, I consider that on a balance of probabilities, it is more probable and believable that at the time when he asked for a divorce, the Plaintiff had not verbally mentioned to the Defendant the alleged trust monies and trust properties at all, nor of the fact that he might recover them by civil proceedings. This is supported by the Plaintiff’s acceptance in his testimony, that he had not given instructions to the lawyers acting for him in the divorce proceedings with regard to the claims he has now made in these proceedings, and that he had only been advised by his current lawyers, acting in these proceedings, that the issues as to the beneficial ownership of the Sum, 9F and CSW are to be adjudicated by this Court and not the Family Court. The Plaintiff also accepted in cross-examination that the Defendant believed, at the time of the divorce, that she had obtained from him the Sum, half share of 9F and CSW, and further, that she had told him that what she had got from him was sufficient to maintain herself and her son. It is disingenuous to suggest that he would have told her in the face in such circumstances that he would be recovering all these from her, and that she would have agreed to the divorce, on the terms set out in the Consent Order, if he had done so. 89.The Plaintiff sought reliance on the statement in the Petition, that no agreement or arrangement had been made or was proposed, for support or for financial provision of the Defendant. 90.However, the Consent Order is evidence of the parties’ agreement, and their confirmation to the Court, on 13 September 2013, with regard to the arrangements made by then concerning their respective property. They confirmed by the Consent Order that they were aware that they had the right to seek disclosure, interrogatories and discovery of each party’s property and financial affairs, but agreed to forgo further disclosure and discovery. The parties also confirmed their agreement on the financial arrangements as recorded in the Consent Order, in full and final settlement of all their claims for ancillary relief. Such terms were that the Plaintiff was to pay to the Defendant a lump sum of $30,000, with no order as to costs. 91.As Counsel for the Defendant pointed out, the Plaintiff was legally represented at the time the Consent Order was applied for, and made by the Court. The Defendant agreed to the terms set out in the Consent Order on the basis, as expressed, that these were in full and final settlement of her claim for and entitlement to ancillary relief. If she had been told that the Plaintiff would seek the return of the Sum, her half share in 9F and CSW, she would no doubt have sought other ancillary relief, including an order for the transfer of any interests the Plaintiff had in 9E, 9F and/or CSW. 92.At the pre-trial review, both parties confirmed that they do not seek to set aside the Consent Order. 93.The divorce proceedings, the relief sought, and the agreement made between the Plaintiff and the Defendant as evidenced by the Consent Order are all relevant to the issues of credibility, and in particular, the credibility of the Plaintiff’s claims to the properties said by him to be held on trust. In my judgment, if the Plaintiff claims that 9F and CSW were only transferred by him to the Defendant under her undue influence, and that the beneficial interests in such properties remained at all material times vested in him, it is incredible that he would not have asserted such claims at the time when he instructed his lawyers to petition for divorce, and raised these issues before the Consent Order was made to deal with such ancillary relief as may properly be ordered in the divorce proceedings. On balance, I find that it was only in retrospect that the Plaintiff decided to institute these proceedings, to seek recovery under what he regarded to have been improvident and unfair transactions. Unfortunately, the mere fact that a transaction is unfair is not a sufficient ground, without more, for the Court to set it aside. 94.As the Plaintiff was or should have been aware of all the facts as to the transfers of the Sum and the relevant properties to the Defendant prior to the divorce petition, I find that he is bound by the Consent Order and the terms contained therein for the full and final settlement of the parties’ claims to assets and financial relief. In short, the Plaintiff acknowledged by the Consent Order that the terms recorded were in full and final settlement, and he cannot now seek to assert that there was any further sum owing to him or any further interest in either the Sum, 9F or CSW to be transferred back to him by the Defendant. 95.The Plaintiff’s claims made in these proceedings are accordingly dismissed. The Counterclaim and orders made 96.The Defendant seeks by Counterclaim declarations as to her being the legal and beneficial owner of the Sum, CSW and the half share in 9F. In view of my findings, these are made in terms of the prayer for relief, together with an order for delivery up of CSW to the Plaintiff within 6 calendar months of the sealing of the orders made in this Judgment. 97.As for the Defendant’s claim to mesne profits for CSW, Counsel accepts that despite the Assignment, she had never demanded rent from the Plaintiff in respect of his occupation, nor was there any agreement reached between the parties for payment of rent. I can only treat the service of the Counterclaim as demand, and accordingly order mesne profits of market rent for the Plaintiff’s occupation of CSW from that date until the date of delivery up of vacant possession. 98.The Defendant seeks payment of her half share of the rental income from 9F from January 2015, the date when she claims the Plaintiff ceased deposit of the rent into the Joint Account. As she remains co-owner of 9F, and the Consent Order made no mention of any change as to her interest, I grant the order in terms of paragraph (6) of the prayer to the Counterclaim. 99.As the Defendant has succeeded in her Defence to the claim and in her Counterclaim, it follows that she should be entitled to the costs of the action and the Counterclaim.
Mr Justin Lam, instructed by Charles Wong & Co, for the plaintiff Mr Taylor Li and Mr Joey Chan (present on 26 July 2019), instructed by HY Leung & Co LLP, for the defendant |
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