Ng Nim Chung, Deceased and Another v. Ng Wing Man Terry

HCA 2221/2016

[2021] HKCFI 2534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2221 OF 2016

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Before:  Deputy High Court Judge Leung in Court

Date of Hearing:  16 August 2021

Date of Judgment:  27 August 2021

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JUDGMENT

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1.This is the dispute in respect of the beneficial interest in the family home of Ng Nim Chung, deceased (“the Deceased”) and his widow (“the Widow”), which is situated at Flat 13, 20/F, Block D, Hiu Lai Court, No. 21 Hiu Kwong Street, Hong Kong (“the Property”). The Property was and still is registered in the names of the Deceased and the defendant, younger son of the Deceased, as joint tenants. The defendant has sought to evict the Widow from the Property after the death of the Deceased. The Widow, now in her personal capacity and as administratrix of the Deceased’s estate, claims that the defendant held and holds the Property on trust for the Deceased and now his estate, or alternatively the Deceased’s estate together with her, beneficially.

2.Prior to the trial, the defendant informed the plaintiffs and this court of his inability to attend the trial, and there was the issue of his request for an adjournment of the trial made by letter.  The plaintiffs opposed.  After hearing the plaintiffs and considering the defendant’s written representation, I ruled against the defendant on his request for reasons that I explained in court, which are now reproduced separately in writing and handed down together with this judgment.

Background

3.Much of the background is undisputed or, in view of the evidence, indisputable.

4.The Deceased and Widow were married in Hong Kong in or about 1956.  The Deceased was a factory technician until his retirement in 1997. The Widow was a housewife since the 1980s.  They have 5 children, 4 of which are surviving[1]:

(1)  Ng Ki Man (“Ki Man”), son, who is married to Madam Shet Yuk Lei (“Madam Shet”);

(2)  Madam Ng Chui King (“Chui King”), daughter;

(3)  the defendant, who is married to Madam Chung Kuei Shen; and

(4)  Madam Ng Chui Ching Hermia (“Hermia”), daughter.

5.Ki Man and Madam Shet have 4 children, including Ng See Nga (“See Nga”) (daughter), Ng Ho Hin (“Ho Hin”) (son) and Ng See Ngo (“See Ngo”) (daughter), who are therefore the grandchildren of the Deceased and the Widow.

6.For some three decades up to early 1997, the Deceased and Widow had resided in a rented public housing unit, namely, Room 1726, 17^th Floor, Block 1, Shatin Pass Estate, Kowloon, Hong Kong (the “Public Housing Unit”).  The Deceased was the registered tenant, and the family members (ie, the Deceased, the Widow and their children) were authorized occupants, of the unit.  Gradually, the children moved out of the Public Housing Unit in the 1980s and removed their names as authorised occupants.  The only exception was the defendant, who remained as an authorised occupant notwithstanding his having moved out in the 1980s.

7.In about 1996, it became known that the housing estate would be demolished and redeveloped.  At the time, the Deceased and Widow were residing at the unit together with their grandchildren See Ngo and Ho Hin.  Instead of accepting relocation to another rented unit, the Deceased decided to purchase and own a better property under the Home Ownership Scheme (“HOS”).

8.By an assignment dated 21 February 1997, he and the defendant became the registered joint tenants of the Property.  Save for the down payment, the balance of the purchase price for the Property in the sum of HK$1,121,000 was financed by way of mortgage loan granted by Po Sang Bank (“1^st Mortgage”).  The Deceased and the defendant were the mortgagors.  A joint bank account was opened with Po Sang Bank (“1^st Joint Account") for the purpose of repaying the mortgage instalments.

9.About the same time, in April 1997, the defendant and his wife, Madam Chung, also purchased their own property situated at Flat E, 1/F, Block 7, Discovery Park, the assignment of which was dated March 1998.

10.Just months after the completion of the acquisition of the Property, on or about 29 May 1997, the Deceased paid to the defendant a sum of HK$100,393 (“the May 1997 Payment”).

11.The Deceased and the Widow have since made the following financial arrangement regarding the Property.

12.The Widow would personally deposit cash into the 1^st Joint Account as the Deceased instructed for the repayments of the 1^st Mortgage.  She was also responsible for arranging payments for the maintenance and other expenses in relation to the Property such as the management fees, rates and government rent, broadband network service, water, power as well as gas.

13.In about February 2000, a second mortgage was taken out in respect of the Property with Hang Seng Finance Limited (“2^nd Mortgage”) to redeem and to replace the 1^st Mortgage for reason of better terms.  A new joint bank account was opened in the names of the Deceased and the defendant with Hang Seng Bank (the “2^nd Joint Account”) for the purpose of repaying the mortgage instalments under the 2^nd Mortgage. The Deceased and the Widow continued their financial arrangement concerning the Property as before.

14.In August 2009, the defendant signed an application form to the Housing Authority, namely “業權轉讓申請書” (“the Transfer Application”) which stated that the defendant would forgo his interest in the Property to the Deceased.  A copy of his identity card and marriage certificate were attached to the application form.

15.In early 2016, the 2^nd Mortgage was fully repaid and discharged.

16.On 3 April 2016, the Deceased passed away intestate in Hong Kong.

17.Since the acquisition of the Property in 1997, the Deceased and Widow had resided at the Property together with their grandchildren, children of Ki Man and Madam Shet.  The defendant never resided at the Property.

18.The disagreement between the parties apparently surfaced after the death of the Deceased.  The writ herein was issued towards the end of August 2016 in the name of the Deceased, ie the 1^st plaintiff, but not served.

19.On 1 September 2016, the defendant through his then solicitors, Messrs T L Ip & Co, sent a written demand addressed to “the occupiers” of the Property alleging that they had been occupying the Property pursuant to his licence, and he now revoked their licence and demanded them to quit and to deliver up vacant possession of the Property to the defendant on or before 31 October 2016.  The Widow, See Nga and Ho Hin were residing at the Property at the time.

20.The Widow in her capacity as the adminstratrix of the Deceased’s estate joined as the 2^nd plaintiff, after letters of administration were granted to her on 5 October 2016.  The writ was served afterwards.

The parties’ pleaded cases

21.The plaintiffs’ case is that notwithstanding the registration of the Property in the joint names of the Deceased and the defendant, the Property was beneficially owned by the Deceased solely, pursuant to common intention constructive trust and/or estoppel.  Alternatively, the defendant has been holding the Property on resulting trust for the Deceased and the Widow on the basis that the purchase price for the Property was paid out of the pool of funds or assets of the Deceased and the Widow, and the Widow arranged for the mortgage instalment repayments throughout the years.

22.The pleaded case of the defendant is that he and the Deceased acquired the Property as legal and beneficial joint tenants.  Upon the death of the Deceased, the defendant became entitled to the entirety of the beneficial interest by the right of survivorship.  Without disputing that it was the Deceased and the Widow who arranged for the repayment of the mortgages, the defendant contends that he has also contributed by way of cash payment to the Deceased, unknown to the family, a fixed monthly sum of $5,000.  The Widow, the defendant contends, is not entitled to continue to reside at the Property without his permission.  As mentioned, he has sought to evict her and her grandchildren from the Property after the death of the Deceased.

23.Counsel for the plaintiffs summarises the following major dispute:

(1)  Whether there was the common understanding that (i) the Property would be owned beneficially by the Deceased solely; (ii) the Deceased and/or the Widow would be responsible for funding the acquisition of the Property; and (iii) whether the Deceased intended the Property to be gifted to the defendant to the exclusion of the Widow and the other family members;

(2)  Who in fact funded the acquisition and the other related expenses of the Property;

(3)  Whether the defendant has been holding the Property subject to a common intention constructive trust or estoppel; or alternatively, resulting trust;

(4)  If yes, whether the plaintiffs are entitled to any of the relief claimed.

Common intention constructive trust

24.Leung Hang Lin v Lam Mei Yung [2019] HKCFI 2819 (at §§8-9) contains a helpful summary of the principles regarding common intention constructive trust.  The starting point is that equity follows the law, and there is a presumption that the beneficial interest follows the legal interest.  The plaintiff may show on the balance of probabilities that the real intention of the parties concerned differs from what the registration of the legal interest in the property apparently suggests.  That will be where:

(1)  there was a common intention of the parties concerned at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership in fact differed from the legal ownership;

(2)  the plaintiff altered his or her position in detrimental reliance upon the common intention; and

(3)  it is unconscionable for the property owner to assert ownership in reliance on the legal title.

25.Common intention is assessed objectively.  It could be express at any time prior to the acquisition (or exceptionally, at a later date) by way of an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially.  It could also be inferred from the parties' conduct such as direct contribution towards the purchase price by a party who is not a legal owner.  A holistic approach is adopted having regard to the context and the particular facts of the case.

26.Relevant circumstances include any discussion between the parties concerned at the time of the conveyancing, reasons why the property was acquired in joint names or sole name, the purpose for which the property was acquired, the nature of the parties’ relationship, how the purchase was financed initially and subsequently, how the parties arranged their finances, the outgoings on the property and other household expenses: see Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 (at §39); [2015] 2 HKLRD 985 (CA); Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 (at §§2.3- 2.4).  Joining a person as a joint owner of real property to facilitate the obtaining of mortgage loan has been held to give rise to a common intention constructive trust (or resulting trust below): see Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (at §113); [2015] 1 HKLRD 490; Ho Kwok Wing (何國榮) v Chan Mei Mui (陳美梅)[2020] 3 HKLRD 548 (CA) (at §3.12; 8.6(4)); Lai Hon Tim v. Lai Tsz Nang Wilson HCA 744/2018 (12 November 2020) (at §§23-24; 55-59); Sze Ka Wai v. Choy Wai Ka HCA 1825/2018 (25 February 2021) (at §8(1); 19(1)).

27.Detrimental reliance requires some connection between the plaintiff’s conduct and her belief that she has an interest in the property such that she would not reasonably have been expected to so conduct herself unless she possesses such belief: see Mo Ying (above) (at §42).  Again, actual financial contribution towards the acquisition and maintenance of the property is normally a strong indicator: see Lewin on Trusts (20^th ed) (at §10-69).

28.There is no reason why the above principles should not apply to properties acquired under the HOS.

Estoppel

29.The plaintiffs advance the contention as to estoppel on two bases.

30.Estoppel by convention, as explained in First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd & Another (2012) 15 HKCFAR 569 (at §79), arises in the following manner:

(1)  The parties entered into a transaction or legal relationship on the basis of a common or shared assumption.

(2)  The assumption was communicated between the parties and manifested by actual words or conduct by the parties on such assumption.

(3)  There was no necessity for the parties to believe that the assumed state of affairs was true, nor was there any necessity for the parties to have been mistaken.

(4)  The contents of the common assumption must be sufficiently certain to enable the court to give effect to it.

(5)  It would be unjust for a party to depart from the assumption that the other party has acted upon and suffered detriment by having so acted.

31.Proprietary estoppel, as explained in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 at [23], arises where (i) a representation or assurance was made to the claimant; (ii) the claimant relied on that; and (iii) she acted to her detriment.  Proprietary estoppel may arise by acquiescence or silence where a reasonable man would expect the person against whom the estoppel is raised, acting honestly and responsibly, to bring the true facts to the attention of the other party known to him to be under a mistake as to their respective rights and obligations: see Mo Ying (above) (at §8.2).

Resulting trust

32.A resulting trust arises where there was absence of intention on the part of the person providing the purchase price of the property to benefit the recipient or arises from the presumed intention of the parties: see Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 (at §§2.6-2.7; 2.15).

33.Where a parent makes a contribution towards a property purchased in the name of a child, the counter-presumption of advancement to benefit the child is rebuttable by contrary evidence: see The Joint and Several Trustees of the Property of Yip Yam Yu Alex v. Yip Yam Yu Alex and Another HCB 3926/2015 (11 January 2019) (at §§39; 45).

34.It has been observed that in a domestic context, if it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust: see Primecredit Ltd (at §1.3). At the end, it is a matter of ascertaining the understanding and intention of the parties known to each other at the relevant time – whether it was to benefit the registered owner beneficially notwithstanding the absence of or unequal contribution towards the acquisition of the property from him or whether the property was acquired in joint names pursuant to advice and for practical purpose without intention of conferring the beneficial interest associated with the registered and joint legal ownership: see Marr v Collie [2017] UKPC 17.

35.Worth noting is the defendant’s contention in this respect in his written opening submission.  He argues that registration of the Property in the names of the Deceased and him as joint tenants effectively trumps.  He argues that because of the operation of the right of survivorship, it matters not who and how financial contributions had been made towards the acquisition of the Property including the mortgage repayments[2].  He also argues that it would not even have been up to either joint tenant to deal with his interest in the Property by way of bequest under a will[3]. In view of the legal principles explained in the preceding paragraphs, such contentions of the defendant must be rejected as being wrong in law.

The evidence

36.The plaintiffs acknowledge their burden of proving that the Property, albeit registered in the joint names of the Deceased and the defendant, has been being held on trust for the Deceased beneficially. That said, the general principle remains that he who asserts and avers in his case bears the evidential burden of establishing the assertions: see in the context similar to the present case Iranian Offshore Engineering and Construction Company v Delaram Zavarei [2020] EWHC 2497 (Comm). Insofar as the defendant’s assertions as to fact are concerned, they were not substantiated when he was absent from the trial.

37.On the plaintiffs’ side, the following witnesses gave evidence:

(1)  the Widow;

(2)  Ki Man;

(3)  Madam Shet;

(4)  Chui King;

(5)  Hermia;

(6)  See Nga; and

(7)  Ho Hin.

38.The principles regarding assessment of credibility were summarised in Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009 (8 April 2014) at §§77-83:

(1)  Contemporaneous documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility.

(2)  In deciding whether to accept a witness’ account, importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events.

(3)  Regard should be had to the consistency of the witness’ evidence with the undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.

(4)  Care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character.

(5)  Witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.

See also Northampton Borough Council v Cardoza and others [2019] BCC 582 (at §§36-39).

39.The above witnesses adopted the content of their witness statements[4] as their evidence under oath.  Their evidence, including the follows, was not contradicted as the defendant was absent from the trial.

40.It could be seen that the majority of the family of three generations stand together in one voice against the defendant.  The primary case of the plaintiffs is that the Property, notwithstanding its acquisition in the joint names of the Deceased and the defendant, was never intended to benefit the defendant absolutely.  If that is established, the entire beneficial interest in the Property remained with the Deceased and now his estate.  In other words, the claim does not seek to exclude the defendant’s entitlement to the estate of the Deceased.  Except for the Widow, no member of the family expects to benefit from the Property under intestacy of the estate of the Deceased to an extent any larger than that of the defendant.  Yet the starting point is that the Property is, as it always has been, the home of the Widow.

41.As to the understanding behind the acquisition of the Property, the plaintiffs’ witnesses gave evidence in respect of matters in their personal knowledge at different points of time.  They testified in respect of the family background, including the fact that the defendant became quite independent and moved out of the family home in the 1980s.  In about 1996, it became known to the family that the housing estate, where the Public Housing Unit was situated, was going to be demolished and redeveloped, and thus entailing the Deceased and the Widow to have to move out.  There came the discussion amongst the Deceased, the Widow, and children about the idea of purchasing a unit under the HOS, which would be better than a replacement rented public housing unit.  It was contemplated that the Deceased would be the owner, and responsible for the down-payment and mortgage repayments.  Some support from some of the children was also contemplated.

42.The Deceased then made enquiries with Po Sang Bank, and was informed that considering his age and being close to retirement, it would be easier for the mortgage loan to be approved if the purchase was made in the name of a younger family member or such member jointly with the Deceased.

43.The Housing Authority also confirmed by letter in 2017 that in relation to the ownership arrangement of the flats sold under the HOS back in 1997, the applicant under the scheme must become the owner of the property, but he or she had the option of doing so in his or her sole name or in the form of joint tenancy with one of the family members who had reached the majority age.

44.Further family discussion was held.  Considering that the then 34-year-old working defendant was at the time the only other remaining authorized occupant of the Public Housing Unit apart from the Deceased and the Widow, the idea of asking the defendant to join as co-owner of the property to be purchased in order to facilitate the obtaining of the necessary mortgage loan came about.

45.The Deceased had apparently talked to the defendant about the above, as the Widow, Ki Man, Madam Shet, and Hermia were subsequently told by the Deceased that the defendant had agreed to lend his name for such purpose.

46.Concerning the acquisition and maintenance of the Property, the conduct of the family members then and thereafter tends to lend weight a common intention regarding how the Property came to be acquired in the joint names of the Deceased and the defendant.

47.What drove the Deceased to consider purchasing a property under the HOS was the practical need of the family home to accommodate himself and the Widow because of the demolition of their housing estate.  The fact was that they have resided in the Property since its acquisition.  The defendant has never resided in the Property or even possessed the keys to the Property since its acquisition.  The suggestion that while the Deceased was alive and residing at the Property, the Widow (and their grandchildren) managed to reside at the Property as well because of the defendant’s licence lacks evidence of credible assertion of property right by the defendant over all these years.  The defendant sought to do so after the death of the Deceased.

48.It was also the evidence that the Deceased and the defendant had kept their finances separate, and it was the Deceased and the Widow, as the Deceased instructed, who arranged the mortgage repayments.  The source of funds in the 1^st Joint Account came from the Deceased and the Widow, government grants and subsidies as well as the monthly contributions given to them by some children and grandchildren.

49.The plaintiffs’ case is adequately evidenced by contemporaneous documents.  The Widow quite capably assembled and produced the remittance advices/deposit slips in relation to the repayments of the 1^st Mortgage and the 2^nd Mortgage.  The available entries in the passbook of the 2^nd Joint Account are found to be matching with the repayments of the 2^nd Mortgage[5].  Counsel for the plaintiffs summarised and tabulated in his submission the mortgage repayments made by the Deceased and the Widow and the corresponding deposit slips/remittance advices as well as bank passbook entries.  There was no evidence of operation of the 1^st and 2^nd Joint Accounts in connection with the Property by the defendant.

50.The Widow was also able to produce contemporaneous documents in connection with her payment of the rates and government rent, the utilities such as water, electricity, and gas, the broadband service fees and the management fees of the Property.  There is no evidence of any contribution by the defendant.

51.According to the plaintiffs’ witnesses, the defendant had also acknowledged during a family meeting on about 6 August 2016 that the mortgage repayments were paid by the Deceased.  According to Chui King, the defendant had also admitted the same in a telephone conversation with her after the death of the Deceased.

52.As counsel for the plaintiffs points out, the defendant’s case that the Deceased purchased the Property with a view to benefiting him beneficially and eventually with the entirety of the interest in it requires much persuasion to be acceptable in the circumstances of this case. As the idea of purchasing a property under the HOS at the material time was brought about by the practical need to find a replacement home in view of the demolition of the housing estate where the Deceased’s family lived, it is quite inconceivable that the Deceased had the intention of benefiting the defendant with the entirety of the beneficial interest in the Property, one day when the Deceased died, without any regard to the well-being of the Widow.  That the defendant sought to evict the Widow from the Property after the Deceased’s death appears to be something that the Deceased would not have foreseen.

53.The defendant asserted various matters along the theme that the Deceased held things against the Widow.  For the latter, the assertion was that the Widow had an affair with another man.  That was not substantiated.  Further, according to the evidence of the plaintiffs’ witnesses, the person that the defendant implicated in his assertion was in favour an identified neighbour, whose circumstances and interaction with the Deceased’s family was explained.  That neighbour was not even around anymore by then.  Importantly, the fact was that the Deceased and the Widow continued to live as husband and wife at the time of and since the acquisition of the Property and until the Deceased’s demise.

54.There was no evidence of pattern of the Deceased making provision to assist any of the children in acquiring properties, except for a HK$15,000 loan to Ki Man by the Widow at one point.  According to the Widow, that loan has also been repaid.  Insofar as it is suggested that there was reason for the Deceased to favour the defendant as opposed to the other children, the evidence of the plaintiffs’ witnesses suggested quite the contrary.  The suggestion against Ki Man personally is contradicted by the evidence of the plaintiffs’ witnesses.  As mentioned, the fact was that the children of Ki Man have also resided with their grandparents at different points of time at the previous rented unit and since 1997 at the Property. None of those who resided with the Deceased has ever been impressed that the Deceased favoured the defendant or has learned that the Deceased intended to benefit the defendant with interest in the Property.

55.The defendant’s case is that he had made financial contribution towards the maintenance of the Property in the form of a fixed monthly payment of HK$5,000 to the Deceased.  By further and better particulars of his pleading, he alleges that such payments lasted from March 1997 to the end of 2013.  The amount of such total contributions allegedly exceeded HK$1.05 million.  Such contribution was allegedly kept secret from the rest of the family.  Up to the trial, that remained bare assertion without contemporaneous documentary evidence in support.

56.As counsel for the plaintiffs points out, the defendant seems to suggest a different case in his opening submission dated 9 August 2021.  In his opening submission, the defendant asserts that the reason for joining him in the purchase of the Property was that the Deceased expressly requested for his financial assistance in repaying the mortgages.  This differs from his pleaded case that the Deceased intended to pass the entire beneficial interest in the Property to him to the exclusion of other members of the family.  When it came to the alleged fixed monthly contribution to the Deceased, the defendant now asserts that this lasted for 19 years from 1997 to 2015, and the total contributions were HK$1 million.  This was not exactly in line with the further and better particulars of his pleaded case mentioned above.  The inconsistency in these aspects of the defendant’s case has unfavourable reflection on the integrity of the defence even as a matter of assertions.

57.Further, just two months after the acquisition of the Property, the Deceased paid a sum of HK$100,393 to the defendant, ie the May 1997 Payment mentioned above.  According to Ki Man and Chui King, the Deceased wanted to be fair to the defendant for the latter’s assistance in the purchase of the Property.  The payment was the Deceased’s gesture as if the latter had contributed towards the purchase.  The amount approximately represented the down-payment and capital expenses that the Deceased had paid. The defendant does not deny receipt of such sum, but claims no recollection of its nature.  However, if there were ever any understanding that the defendant had to contribute and thereby acquiring his beneficial interest in the Property, there would have been no reason for the Deceased to (re)pay such sum to the defendant.  If the Deceased intended to make a gift to the defendant, there would have been no reason for the Deceased to give the defendant such sum on top of the joint beneficial interest in the Property.  It should also be noted that all those happened during the same period of months when the defendant himself and his wife also purchased their own property at the Discovery Park.

58.The defendant was also expected to explain his signing of the Transfer Form later in August 2009, which on its face suggests the defendant’s surrender of his right and interest in the Property.  Counsel for the plaintiffs points out that as a statement contained in a contemporaneous document that goes contrary to the defendant’s self-interest, considerable weight ought to be given to it.  He is trying to draw analogy with what was said by the final court in Wong Tak Yue v Kung Kwok Wai David & Another (No 2) (1997-98) 1 HKCFAR 55 (at 69A-C).

59.The defendant claims no knowledge about the content of the form on the ground that he signed it in blank.  The plaintiffs’ witnesses explained how such a form came to be prepared.  In particular, See Nga explained how she came to handle the matter and witnessed the defendant’s signature on the form indeed in blank.  Madam Shet explained how she came to fill in the form afterwards at the instruction of the Deceased.  The Deceased also signed the form.

60.It was a prescribed and printed form in Chinese for the application for the transfer of beneficial interest in properties under the HOS.  It is trite that he who appended his signature on a document which he was capable of reading and understanding will be held to its terms irrespective of whether or not he cared to read it, unless the document is affected by vitiating factors recognised by law.  If it was not for the purpose of transferring interest in the Property in his favour or to any third party, it is inconceivable that the defendant would have agreed to meet with See Nga and to sign the form, albeit in blank, without knowing why.  Any suggestion of his signature having been obtained by improper design then could not be substantiated unless there was cogent evidence commensurate with the seriousness of such suggestion.  There was none.

61.Inherently credible, and not contradicted, the evidence of the plaintiffs’ witnesses by their statements, including those specifically mentioned above, is accepted.  Taking a holistic view of the circumstances according to such evidence, I find on the balance of probabilities that the plaintiffs’ case of common intention is proved, and it is unconscionable for the defendant to deny that he has been holding the Property as a joint tenant on trust for the Deceased and now his estate.

62.The alternative reliance on the principle of proprietary estoppel or estoppel by convention is not necessary when this court finds and accept the existence of the common intention between the parties concerned that gave rise to the equity that should be recognised in favour of the Deceased and now his estate.  It was more than mere belief on the part of the Deceased that he was the beneficial owner of the Property that caused him and the Widow to act the way they did.  That said, in any event, I find the defendant indeed knew and allowed the Deceased and the Widow to have so acted in line with the understanding that the Deceased was the sole beneficial owner of the Property irrespective of the registered joint legal ownership with the defendant.

63.As mentioned, it has been observed that in a family context, the finding of a positive common intention regarding beneficial interest in the property suggests that there is no need to resort to resulting trust: see Primecredit Ltd (above) (at §1.3).  The present one is such kind of case.  Insofar as it is necessary to clear any doubt, any contention as to positive or presumed intention on the part of the Deceased in favouring the defendant with beneficial interest in the Property by getting him to jointly hold the Property must accordingly be rejected or rebutted as a matter of fact.

Other alternative cause of action

64.A further alternative claim is for money had and received and/or unjust enrichment on the part of the defendant to the extent of the financial contributions paid by the Deceased and/or the Widow.  In view of the above finding, I see no need to embark on the analysis of this alternative cause of claim.

Conclusion and relief

65.I find the plaintiffs have proved their case.

66.I enter judgment in favour of the Deceased’s estate (ie the 2^nd plaintiff), and make the following declaration:

(1)  the Deceased was at all material times, and now his estate is, solely entitled to the beneficial ownership, title and interest in the Property, whereas the defendant was not and is not; and that the full beneficial ownership, title and interest in the Property now forms part of the estate of the Deceased;

(2)  the defendant at all material times held his legal title and interest in the Property on trust for the Deceased and now holds the same on trust for the estate of the Deceased.

67.I order that the defendant do take all necessary steps for the transfer of his title or interest in the Property to the Widow as the administratrix of the estate of the Deceased (ie the 2^nd plaintiff) subject to the terms and regulations governing the HOS.

68.As to the claim for the return or account and enquiries as to the traceable proceeds of the Property, counsel for the plaintiffs acknowledged during the trial that this is not substantiated in terms of allegation and evidence.  The alternative claim for equitable compensation was also dropped.

69.As mentioned, the counterclaim was provisionally struck out by Hon K Yeung J during the pre-trial review hearing in May 2021. There has since been no indication of any intention of applying for its restoration within 3 months pursuant to O25, r1C(3).  For the avoidance of doubt, the counterclaim stands dismissed pursuant to O25, r1C(6)(a). Alternatively, following the proof of the plaintiffs’ case which at the same time displaces the defence, the counterclaim that is founded on the same case in defence must also be dismissed.

70.Following the above event, I make a nisi order that the defendant shall pay the plaintiffs’ costs of this action, including any costs reserved, to be taxed, if not agreed.  The plaintiffs’ own costs shall be taxed in accordance with legal aid regulations.

Remark

71.As counsel for the plaintiffs acknowledged, judgment and order obtained after trial in the absence of the defendant is subject to O35, r2 which allows the defendant to make an application within 7 days after trial to set aside the judgment and order.

Mr Kerby Lau, instructed by Hampton, Winter and Glynn, for the 1^st and 2^nd plaintiffs

The defendant was not represented and did not appear