Kwan Chi on v. Kwan Chi on and Another

HCA003726/1991

1991, No.A3726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Coram: Deputy Judge Whaley in Court

Dates of hearing: 25, 26, 27, 28 November and 1 December 1997

Date of handing down judgment: 23 December 1997

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J U D G M E N T

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1. This case concerns a family dispute as to who are the beneficial owners of Flat E, 3^rd Floor, Block 16, City One Shatin, New Territories, Hong Kong ("the Flat"), which is registered in the names of the Plaintiff and the two Defendants as co-owners. The Plaintiff is the Defendants' brother-in-law.

Sit Wai Fun's testimony

2. Wai-fun's evidence concerning the family background was not disputed. Originally the Sit family consisted of the paterfamilias Sit Chung, his wife Wong Mui and nine children, including the two Defendants. In 1981 the Plaintiff married Sit Wai-fun, the 3^rd of the Sit children, who were at that time all living together at the rear of Sit Chung's shop in Reclamation Street in Mongkok. After their marriage, the Plaintiff and his wife moved into their own flat in Kowloon.

3. In 1982 the remaining Sit children and their mother moved out of the shop premises in Mongkok and rented a village house in Shatin where they all lived together. The rent was $2,600 a month, and those of the children who were working at that time each contributed $1,000 into a common pool from which the rent, food, utilities and other miscellaneous expenses were met.

4. There is no dispute that Wong Mui on numerous occasions communicated to her children that she felt that it was not economical for them to pay rent to a landlord, and she wished that between them they could buy a property which the whole family could then live in. The idea was never acted upon because it was felt that the necessary financial resources could not be mustered; however after Sit Wai-fun married the Plaintiff, the proposition became more feasible. Wai Fun testified that on one occasion towards the end of 1982 when she was visiting her parents at the shop premises in Kowloon, her mother again raised the issue and they began talking seriously about it, since she (Wai-fun) had been attracted by the residential development at City One Shatin, and she knew that Phase III of the development was about to be put on the market. Her mother suggested that Wai-fun and the Plaintiff purchase a flat with the help of a mortgage from the bank, and then make it available for any of the Sit family members who wished to move in and live there, and she suggested that they would pay rent to the Plaintiff and Sit Wai-fun on the same basis as they were currently paying it to the landlord of the village house. By this means, she suggested, the Plaintiff and Sit Wai-fun would acquire their own property, and on the other hand, the remaining Sit family members would have a place to live in without fear of eviction by the landlord or regular demands for rental increases. She suggested that it made more sense for the siblings to pay rent to the Plaintiff and Sit Wai-fun, and thus keep it within the family as it were, than to a landlord.

5. Sit Wai-fun testified that she became really interested at that stage, and immediately telephoned the Plaintiff to ascertain his view : he indicated that he had no objection, though he was worried that they might not have sufficient savings to cover the down-payment and related expenses. Wai-fun thought of asking her father for a loan, and immediately approached him in the shop : under the added prodding of his wife, he agreed to advance a loan of $40,000. An old family friend, Miss Au Yeung Oi-ling was also present on that occasion, and she also promised Sit Wai-fun that she would help by making a loan of $10,000.

6. Some days later, the Plaintiff and Sit Wai-fun brought up the matter of the loan again with Sit Chung, who told them that he would not charge them any interest and he would seek repayment in two years' time. He handed over to the Plaintiff the first instalment of the loan, being a cheque for $10,000 and at the same time asked the Plaintiff to sign for receipt of it (Sit Wai-fun testified that her father was very cautious in business matters).

7. The Plaintiff told Wai-fun that he would also ask his own father for a loan, should this prove to be necessary. He asked her to start looking for a suitable flat to purchase. The two of them decided that the flat would be purchased in the Plaintiff's sole name since he had a stable job and income with Hong Kong Telecom Co. Ltd. Wai-fun testified that she never requested for her name to be registered as a co-owner, since she had no job or income at the time, and she took it for granted that she would have a share in the flat together with the Plaintiff.

8. Wai-fun testified that she subsequently went together with her sister Sit Yuen-ming to the office of Paramatta Real Estate Agency Ltd., the selling agent of the development of the City One Shatin development, and made a preliminary choice of a flat in the Phase II development which was completed and ready for occupation. She went home and informed the Plaintiff of her choice, and later contacted a relative of the Plaintiff who was employed by the developer's company, through whom she secured a discount of $3,000 from the selling price. She and the Plaintiff went back to Paramatta about a week later only to find that the flat in question had been sold, whereupon they decided to buy the subject flat which was advertised for sale at $316,186.

9. The Plaintiff then and there signed a Provisional Agreement for Sale and Purchase of the Flat, which called for an immediate deposit of $10,000 to be made, which the Plaintiff duly paid. The staff of Paramatta informed them that they would arrange for them to make a mortgage application to Wayfoong Credit Ltd., which would advance 80% of the purchase price. They told the staff that they wished the repayment period on the mortgage to be 20 years. Soon after that, the Plaintiff was advised that the mortgagee finance company required the borrower to have an income of at least twice the amount of the monthly repayment under the mortgage; since the Plaintiff's income at the time was approximately $4,000, and the expected monthly repayment under the mortgage was approximately $2,700 per month, his application for a mortgage would not likely succeed.

10. The staff of Paramatta suggested to the Plaintiff and Wai-fun that they could get around this by adding one or two family members as co-owners of the property so that the aggregate income of the applicants would meet the requirements of the finance company. After discussing the matter with the Plaintiff, Wai-fun approached her sister Sit Wai-chi to facilitate the mortgage application by adding her name as a co-purchaser, since she had the highest income amongst all the siblings. She however declined to participate for her own reasons, whereupon Wai-fun approached the Defendants, since they were the only siblings who had a stable monthly income at the time. She testified that she explained the situation to both of them, namely that it would be the Plaintiff who would be purchasing the property - both in making the down-payment and the subsequent mortgage repayments - but that since his salary was not enough on its own to meet the requirements of the finance house, his application for a mortgage might well not succeed, and the assistance of the Defendants was required to add their names as co-owners so that the aggregate income would meet the mortgage requirements. She said that both of the Defendants agreed immediately, and did not ask her for any further details of the matter. She subsequently took the Defendants to the Paramatta office to have their names added as co-purchasers in the Provisional Agreement which the Plaintiff had signed.

11. The remainder of the purchase steps were completed by the Plaintiff. On 2 March 1983 he paid the second deposit in the sum of $21,618.60; subsequently on 27 May 1983 he paid the further deposit of $31,618.60, together with all the stamp duty and legal costs which had been incurred.

12. Before they moved into the Flat, some minimal improvements were effected by the Plaintiff and Wai-fun. Wai-fun paid the various contractors from funds which the Plaintiff had given her. None of the rest of the family played any part in these matters. Wai-fun also made all the necessary applications for the supply of utilities to the Flat. It was decided to retain the telephone number of the village house, which was in the name of the 2^nd Defendant, as a matter of convenience, so the telephone line was transferred to the Flat and remained registered in the name of the 2^nd Defendant until it was changed some years later into the name of the Plaintiff, who was entitled to free telephone service as an employee of the company.

13. In May 1983, the Plaintiff and Sit Wai-fun together with six members of the Sit family moved into the Flat, namely Wong Mui, the two Defendants, Sit Wai-chi, Sit Yuen-yung and Sit Wai-ping. All of them brought with them some used furniture both from the village house and from the Plaintiff's previous flat. Furthermore, in accordance with the discussions which had been held mainly with Wong Mui, each of the incoming members of the Sit family, apart from Wong Mui herself and Sit Wai-ping who was still a student, paid $1,000 per month to Wai-fun as a contribution to cover the costs of rent, food and miscellaneous expenses. In return, Wai-fun ran and looked after the home, and provided food as and when it was required.

14. The Plaintiff in the meantime bore the sole responsibility of making the mortgage repayments, which varied within the range of $2,700 to $3,800 a month. He also paid all the utilities accounts every month.

15. Sit Yuen-yung paid $1,000 every month to Sit Wai-fun until 1989 when she got married and moved out of the Flat, apart from about four or five months when she had been unable to pay, and the Plaintiff waived payment for those months. She paid nothing further after she had moved out of the Flat, and neither the Plaintiff nor Wai-fun expected her to.

16. Sit Wai-chi also paid $1,000 every month to Wai-fun. She has remained living in the Flat even up to the present date, and is at present paying a monthly contribution to Wai-fun of $2,500.

17. Sit Wai-ping did not make any payment initially since she was still a student at the time; when she obtained her first employment in mid-1985 she paid $500 per month, and then in early 1990, she increased this to $800 per month.

18. Wong Mui did not pay anything at all while she was living in the Flat.

19. The 1^st Defendant also paid $1,000 per month from May 1983 until August 1989 when she got married and moved out of the property. She likewise has not paid anything since she moved out.

20. The 2^nd Defendant also paid $1,000 when he first moved in; since about 1984 however, his payments became less regular. He moved out of the Flat in 1986 and back to the shop premises in Mongkok since when he had made no further payments to the Plaintiff or Wai-fun.

21. All the aforesaid monthly contributions were paid in cash to Wai-fun, except by the 1^st Defendant who usually paid by cheque.

22. When Wong Mui died in May 1984, Sit Chung moved into the Flat and stayed there until 1986, during which time he made a monthly contribution of $500 to Wai-fun. He likewise paid nothing further after he had moved out.

23. In order to repay the loans which he and Wai-fun had raised prior to purchasing the Flat, the Plaintiff saved up his overtime allowance, and when it had accumulated sufficiently, Wai-fun would make repayments from it to her father, and the loan was entirely repaid within two years in this fashion. In order to repay the loan of $10,000 to Miss Au Yeung, the Plaintiff borrowed $8,000 from his sister and Wai-fun borrowed a further $2,000 from Sit Yuen-ming. The Plaintiff subsequently repaid his sister, and Wai-fun repaid Sit Yuen-ming by giving her a gold chain of equivalent value. The Plaintiff's father in due course "forgave" the loan which he had made to the Plaintiff, saying that he intended it as a gift.

24. Throughout this period the relationship between the Sit family members remained very close, and even after they moved out of the Flat they continued to meet and have family dinner together.

25. In 1990 the 2^nd Defendant decided to emigrate to Canada. One evening in July of that year, he arranged for all his brothers and sisters and the Plaintiff to meet together in Sit Chung's home in Tokwawan. When they got there they discovered that he had especially arranged for Sit-Chung himself not to be present. At the meeting the Defendants claimed that they had a share in the ownership of the Flat and they demanded that the Plaintiff sell the Flat within two weeks and divide the proceeds with them : they even proposed a formula as to how they would reimburse the Plaintiff for their share of the deposit and the subsequent down-payments which he had made on the house, together with interest calculated according to the bank rate. They estimated that the property would realize approximately $800,000 and said that after deducting their share of the deposits and subsequent mortgage repayments, each of them would be entitled to approximately $170,000 by way of a one-third share of the sales proceeds.

26. Both the Plaintiff and Sit Wai-fun testified that this was the first time that anybody had ever laid claim to a share of the Flat; they were "confused" by this development, and they rejected the claim, pointing out that it had never been the intention for any of the Sit family members to acquire a share of the property.

27. Towards the end of that month, the 2^nd Defendant tried to gain entry into the Flat while all the inhabitants were out by using an old key which broke off in the lock. He left a note in the letter-box stating that he would be moving back into the Flat before 1 August, and demanding a new set of keys. About a week later, he again tried unsuccessfully to gain entry into the Flat, and left another note in the letter-box demanding a new set of keys and threatening unpleasant consequences if his demands were not met. The Plaintiff and Wai-fun simply ignored his demands.

The Plaintiff's testimony

28. The Plaintiff's testimony confirmed all matters of substance in Sit Wai-fun's evidence.

29. He confirmed that after some consideration, he had responded favourably to his wife's suggestion of buying a flat, and that he had left it to her to find a suitable flat. Wai-fun had mentioned to him that her father had promised to lend them $40,000, and that her friend Miss Au Yeung Oi-ling had also promised to let them $10,000 to put towards the purchase price. These sums were duly advanced to him before they had decided which flat to buy, and subsequently he borrowed a further $10,000 from his father. He confirmed that it was at all times his intention to purchase the Flat as the sole purchaser thereof, and to that end he alone signed the Provisional Agreement for Sale and Purchase. Later, he and Wai-fun asked the Defendants to put their names forward as co-purchasers in order to meet the requirements of the finance company which was providing the mortgage : it was clearly explained to them that this was the sole purpose for which their names were being inserted in the contract, and there was no room for any misunderstanding about this on their parts.

30. Any members of the Sit family were entitled to reside in the Flat on the clear understanding that they were expected to pay rent during the periods of their occupation. His wife ran the home and did all the household chores, including the provision of meals as and when necessary.

31. He frankly conceded that he did to some extent depend upon these rental payments to enable him to afford the monthly mortgage repayments, which he would not have been able to meet solely out of his own salary. Nevertheless, the rental payments were at all times intended to cover the costs of household expenses, and there was never any suggestion to the contrary.

32. It never occurred to him at any time prior to the meeting in July 1990 that any members of the Sit family might consider that they were entitled to a share in the beneficial ownership of the Flat, or might make any claim thereto. He was clearly startled, "confused" by and totally unprepared for the Defendants' demands which were made at the meeting, with the result that he did not respond clearly to them, though he did reject their claim. (This was no doubt made even more difficult for him by the fact that they had always been on good terms with each other.)

33. If it had been suggested to him that the purchase of the Flat was intended to be a joint project with the members of the Sit family, he would definitely not have agreed to participate in it. He and Wai-fun were already, at that time, living in a quite adequate flat for which they only paid a small rental. He had also registered with the public housing scheme, and it was soon due to be his turn to be allocated a public housing unit.

Sit Chung's testimony

34. Significantly both Sit Chung and Sit Wai-chi gave evidence on behalf of the Plaintiff.

35. Sit Chung testified that he has at all material times been aware of the dispute between the Plaintiff and the Defendants, and that he had always made it clear to them that he would be willing "to stand up and tell the truth". Therefore when Wai-fun and Wai-chi asked him for his assistance in settling this dispute, he suggested to them that he should issue a receipt for the repayment of the loan of $40,000 which he had advanced to the Plaintiff. Wai-chi had thereupon drafted a receipt which he signed in her presence.

36. He confirmed that he had advanced the loan to the Plaintiff at the request of his deceased wife, Wong Mui, and that he knew that the Plaintiff and Sit Wai-fun wanted to use the loan in order to purchase a flat in City One Shatin. He had agreed that the loan could be repaid over two years and that it would be interest-free; it was in fact subsequently repaid by the Plaintiff within the two-year period (in each instance it was Wai-fun who actually handed over the money to him. It was clear that he regarded the Plaintiff and Wai-fun as a single entity.) He testified that he knew, when he made the loan, that the Plaintiff and Wai-fun would provide accommodation for his wife and some of their children, who were then living in the village house in Shatin.

37. He also confirmed that he had lived for about three years in the Plaintiff's Flat, during which time he had paid a monthly contribution of $500 towards foods and miscellaneous expenses, which he stopped paying after he left. He knew that his other children who were living in the Flat at the same time were also paying monthly contributions towards their food and miscellaneous expenses, and he confirmed that Wai-fun cooked and did all the household chores.

38. Finally, he testified that he had similarly advanced interest-free loans to two of his other children to enable them to purchase their own flats.

Sit Wai-chi's testimony

39. Wai-chi confirmed the evidence given by Wai-fun and the Plaintiff in relation to the background events. She testified that at the end of 1982, she knew that the Plaintiff and Wai-fun intended to purchase a flat in City One Shatin, and that her mother told her that it would be better if she and her brothers and sisters moved into the Flat and paid rent to the Plaintiff and Wai-fun rather than to the landlord of the village house where they were living; in that way they could also secure a permanent place to live in free from the fear of frequent rental increases.

40. She confirmed that Wai-fun had approached her and asked if she would agree to be named as a co-purchaser of the Flat since the salary of the Plaintiff alone did not comply with the requirements of the finance company which was providing the loan : she had declined to do so. She knew that Wai-fun had then approached the Defendants to ask if they would agree to be named as co-purchasers for the purposes of the mortgage application.

41. She confirmed that she and some of her siblings and mother moved into the Flat in May 1983, and that four of them who were working paid $1,000 per month to Wai-fun and the Plaintiff which was the same amount that they had been paying in the village house; the purpose of such payments was clearly understood as being for accommodation, meals and other miscellaneous expenses. She also confirmed that Wai-fun provided regular meals and did all the household chores.

42. She stated squarely that it had never been intended that any of the siblings would be co-owners jointly with the Plaintiff and Wai-fun, and she was never in any way concerned to know or ask whether the Plaintiff and Wai-fun were able to discharge the mortgage repayments and other related expenses of the house. She believed the same applied to her brothers and sisters who stayed in the Flat, which explained why they immediately stopped paying once they had moved out of the Flat.

43. She said that the relationship between herself and her brothers and sisters was close, and that she had been surprised when the Defendants had suddenly demanded a one-third share in the Flat at the meeting in July 1990. She told them that it had never been the agreement or understanding between them that any of them would own the property jointly with the Plaintiff and Wai-fun, and that she could not side with the Defendants when they made their demands. At no time prior to that meeting had any mention been made of co-ownership of the property.

44. She confirmed that in 1993 when her father had visited them in the Flat, they had told him about the dispute, and that he had immediately indicated that he was willing to write a receipt for the repayment of the loan of $40,000 by the Plaintiff, which he duly proceeded to do. The receipt, which was drafted by Wai-chi reads as follows :

"Lam Hong Wah in 1982 raised a loan with me (Sit Chung) for HK$40,000 exact. Lam Hong Wah had already given me back the whole sum of $40,000 exact before 1985.

Dated 26^th June 1993.

Sd.(Sit Chung)"

45. She confirmed that she was still living in the Flat and currently making a contribution of $2,500 a month towards her expenses there : in her estimation she would have to pay approximately twice that sum for similar accommodation at a market rate. The Plaintiff and Wai-fun had not asked her to increase her contribution : she had done so voluntarily. She said that whichever of her siblings was willing to pay the "rent" was entitled to come and live in the Flat.

46. Finally she confirmed that the relationship between herself and her family members had always been good prior to the meeting in July 1990, but that ever since that meeting there had been very little contact with her siblings who had never moved into the Flat. This was a source of concern to her, and she conceded that her siblings may feel that she has taken the Plaintiff's side in the current dispute; however she maintained that it was not a question of taking sides : that she was only "trying to be objective and talking facts".

47. The 2nd Defendant has emigrated from Hong Kong and did not attend at these proceedings, nor was any witness statement tendered on his behalf. The only witness who testified on behalf of the Defendants was the 1st Defendant.

The 1st Defendant's testimony

48. The 1^st Defendant's evidence was broadly to the effect that it was her mother's idea that they should purchase a flat, and that those members of the family who were in gainful employment should contribute the necessary funds to purchase it. This idea was talked about from time to time, and finally crystallized at a meeting shortly prior to Chinese New Year in 1983 over a family dinner. The common intention as agreed at the meeting was that the flat would be beneficially held by all the members of the family, except for Sit Wai-chi who expressed her preference to rent a room, and Sit Wai-fun who had not made up her mind. A few days later, she, the 2^nd Defendant and four of her other siblings went to view a show flat in Tsimshatsui, whereafter they decided to purchase one of the flats in that development. It had always been their practice to leave all decisions to be made by Sit Wai-fun, and on this occasion also they left it to her to decide which flat should be purchased.

49. She claimed that it was the Sit family members who raised the loans necessary to enable them to pay the deposit on the purchase price, namely from her father, mother, Sit Yuen-ming, Au Yeung Oi-ling, the Plaintiff's father and the Plaintiff's sister.

50. On the date scheduled for the signing of the Agreement of Sale, she and the 2^nd Defendant went together with Wai-fun to the solicitors' office. It was only then they became aware that the Plaintiff was named as one of the owners of the property : although this was not in accordance with their original intention, they did not mind him being a joint owner, since he was their brother-in-law.

51. They gave up the tenancy of the old village house in Shatin, and she , the 2nd Defendant and three of her sisters (Sit Yung, Sit Wai-ping and Sit Wai-chi) all moved into the Flat together, where they lived with the Plaintiff and Sit Wai-fun. It was agreed that they would each pay $1,000 per month as a contribution towards the utility charges and towards the mortgage repayments - except in the case of Sit Wai-chi who made it clear from the outset that her contribution was by way of rent, and not towards the mortgage repayments. She lived in the Flat until September 1989 when she got married and moved out. Sit Yung moved out a month later, and Sit Wai-ping in mid-1990. She and Sit Yung both offered to continue making contributions after they had moved out, but the Plaintiff persistently refused to accept the same.

52. Although the original intention had been that all the members of the Sit family would share the beneficial ownership of the Flat, later on, when she observed that her brothers did not appear to get on very well with the Plaintiff, their common intention changed to an intention that only those who had made contributions towards the mortgage repayments would have a share in the beneficial ownership of the Flat.

Credibility

53. The 1^st Defendant was a poor witness. Her evidence was confused and riddled with contradictions. It was clear that a good deal of her witness statement - which was ordered to stand as her evidence-in-chief - was put into her mouth, and that she had no personal knowledge of many of the matters testified to therein.

54. Under cross-examination she appeared to ad lib, making various claims which she had never mentioned in her evidence-in-chief. For example, she claimed that although she and her siblings never physically made any of the mortgage repayments, she did frequently check the Mortgage Repayment Schedules sent by the bank, and on one occasion she had gone to the bank to inquire about the period of repayment and the amount of the monthly contributions. When she was told that the monthly contributions had been increased from $3,000 to $3,800 per month she said she and Sit Yung both increased their monthly contributions to Sit Wai-fun to $1,100 a month, until such time as the mortgage repayments again decreased to $3,000 a month, whereupon their contributions went back to $1,000 per month. She also testified that when they had discussed the amounts of the monthly contributions to be made by them, Wai-fun had said that $1,000 would be sufficient to cover the mortgage repayments and other expenses.

55. Although these matters were obviously highly relevant to proving the Defendants' case, she made no mention of them in her evidence-in-chief; nor was any of it put to Wai-fun or any of the other witnesses.

56. Her claim that initially there was never any intention that the Plaintiff should share in the beneficial ownership of the Flat, and that it never occurred to them that he would do so, rang hollow in the light of her concessions that all the effort and labour of making the down-payments, raising the mortgage and effecting the mortgage repayments was left to the Plaintiff and Wai-fun. She conceded that it was clear to her from the start that the Plaintiff and Wai-fun would live in the Flat, and she knew that Wai-fun was pregnant at the time, and that any additions to their family would naturally live there with them.

57. In respect of the loan of $40,000 provided by their father, she claimed that it was not Wai-fun who had arranged it : rather it had been arranged at the Sit family meeting just before Chinese New Year 1993. When her father had asked which of them was to be responsible for asking for (and presumably repaying) the loan, the 1^st Defendant had said that she was. Her father told her that she had to be present when he handed the money over. She subsequently was present, and both she and Wai-fun signed an I.O.U. for the loan, in which she would thereafter record how much of the loan was repaid on each occasion. Later under cross-examination she denied that she had made any repayments to her father or made any notes of such on the I.O.U. : this was all left to Wai-fun.

58. Her father, she said, had insisted that the 2^nd Defendant's name be added as an owner of the Flat before he would hand over the balance of the loan in the sum of $30,000. (Whereas her name had always been inserted in the Provisional Sale Agreement as a co-owner.)

59. Virtually all of her evidence in relation to the loan was contradicted by the testimony of her father Sit Chung; furthermore, none of the matters which she deposed to were even put to Sit Chung in cross-examination.

60. The 1st Defendant was inconsistent in her descriptions of what the monthly contributions were intended to cover. At one stage she said that they were intended to cover the mortgage repayments and other expenses, and any balance left over would go towards repaying the loans which had been raised; at other times she omitted altogether to attribute any of the monthly contributions towards the household expenses, claiming that they were intended to cover the mortgage repayments and the repayments of the loans which had been raised from her father and other persons. It was clear to me that these were simply self-serving statements designed to bolster her case, rather than a genuine attempt to tell the truth.

61. Another clear example of this was her assertion that her father's contribution of $500 while he lived in the Flat were also intended to be towards the mortgage repayments : when she was reminded that Sit Chung himself had testified that his contributions were solely towards household expenses, she suggested that he had forgotten their true purpose due to the long lapse of time!

62. Similarly in relation to Sit Wai-chi, she said that Wai-chi's monthly contributions to Wai-fun were taken by them to be made towards the mortgage repayments : even though Wai-chi had made it clear from the outset that these were intended as rental payments, she was subsequently not so clear about the purpose for which they were made. Furthermore, at the meeting in July, Wai-chi had asked if she would also get her share of the sale proceeds of the house, and the 1^st Defendant assured her that she would.

63. All of this was contrary to the evidence given by Wai-chi herself, and again none of it was put to Wai-chi in cross-examination. It was another illustration, to my mind, of how the Defendants had decided ex post facto that they should claim a share in the beneficial ownership of the Flat, and thereupon set about constructing a case around that premise, both consciously and, no doubt, unconsciously.

64. The Plaintiff, his wife Sit Wai-fun, father-in-law Sit Chung and sister-in-law Sit Wai-chi were all excellent and entirely believable witnesses.

Conclusion

65. Looking at the evidence as a whole, the probabilities overwhelmingly support the Plaintiff's version that right from the beginning the intention of everybody concerned was that the beneficial ownership of the Flat would be vested solely in the Plaintiff and Sit Wai-fun, and that the other Sit family members would be free to live in the Flat as and when they required (presumably subject only to there being sufficient space available at any given time), on the understanding that they would contribute towards the household expenses in the same amount as they had been contributing towards the rent of the village house, namely $1,000 per month from those who were earning a living.

66. There was never at any time a common intention that any of the Sit family members would share in the beneficial ownership of the Flat. This explains why - and this was not disputed - the parties never at any time sat down and agreed any formula as to what proportion of the monthly contributions made by the Sit family members would be attributed to mortgage repayments as opposed to household expenses; also why not even any record was kept by any of the parties of the total amounts paid by way of the monthly contributions.

67. It is clear on the evidence that the monthly contributions were intended to be the equivalent of "rent", as it was loosely referred to, namely to cover the costs of the individuals concerned of staying at the property. This "rent" was not levied on a commercial basis : there were no rental increases during the three years which the Sit siblings inhabited the Flat (except for Sit Wai-chi who is still living in the Flat and who has voluntarily increased her contributions to a present level of $3,500 per month). It also explains why each of them immediately stopped paying any contribution to the Plaintiff as soon as they moved out of the Flat.

68. It was only in about July 1990 when they called a meeting with the Plaintiff and Wai-fun that the Defendants and some of their siblings decided to claim a share in the beneficial ownership of the Flat, when for the first time the Defendants offered to contribute towards the mortgage repayments which the Plaintiff had continued to make after they had vacated the Flat, and also to repay the Plaintiff their share of the down-payment on the purchase price which he had made. Nor did this offer square with the 1^st Defendant's evidence that the agreement all along had been that their contributions were apportioned towards the mortgage repayments and repayment of the various loans which had been raised, and the balance towards their share of the household expenses while they were staying there.

69. I find it clearly established that neither the Defendants nor any of the other members of the Sit family contributed towards the down-payment on the purchase price of the Flat.

70. As far as the mortgage repayments were concerned, the fact that their monthly rental payments did at the same time assist the Plaintiff to meet the mortgage repayments is of course a relevant factor to be weighed in determining what inferences properly fall to be drawn from the overall conduct of the parties as to their intentions in relation to the beneficial ownership of the property. The evidence clearly established to my mind that the monthly contributions were never intended to be anything other than in the nature of "rent", to cover the costs associated with their living in the Flat, which it was appreciated would incidentally assist the Plaintiff to meet the mortgage repayments.

71. These payments did not in the circumstances establish any resulting trust in favour of the Sit family members who paid them.

72. See Savage and Another v. Dunningham [1974] 1 Ch 181

Similarly the loans which were provided to the Plaintiff by his father-in-law and mother-in-law did not create any beneficial interest in their favour or in favour of any of their other children. It was clear from the testimony of Sit Chung that he was well aware that he was advancing the loan to the Plaintiff and Wai-fun to enable them to purchase the Flat on their own account, and he never at any time intended, in advancing the loan, to acquire a beneficial interest in the Flat either for himself or any member of his family. There is no dispute that the loan has been fully repaid.

73. In re Sharpe (a Bankrupt) [1980] 1 WLR 219

74. Nothing in the judgment of Lord Bridge in the leading case of Lloyds Bank plc. v. Rosset & Anr. [1991] 1 AC 107, nor in any of the other cases to which Mr Lo referred me, cause me to doubt the correctness of my conclusions aforesaid.

75. I am satisfied on all the evidence that the Plaintiff and his wife have at all material times been the sole beneficial owners of the Flat, and that the 1st and 2nd Defendants are bare trustees who hold the property on trust for the sole benefit of the Plaintiff and his wife. The Plaintiff is accordingly entitled to declarations to that effect, and the Defendants' claims must be dismissed. I make an order nisi that the Defendants are to pay the Plaintiff's costs.

76. I shall hear the parties as to the precise form of the declarations to be made.

Representation:

Miss Jennifer Tsui, inst'd by M/s Augustine C.Y. Tong & Co., for the Plaintiff

Mr Peter Lo, inst'd by M/s Rene Hout & Co., for the 1st and 2nd Defendants