Chan Yin v. Chan Yee Mei

DCCJ008506/2001

DCCJ8506/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 8506 OF 2001

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Coram: Deputy District Judge Marlene Ng in Court

Dates of Hearing: 12, 13, 14, 17, 18 and 19 March 2002

Date of Handing Down Judgment: 14 April 2002

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J U D G M E N T

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1.The Plaintiff, a gentleman of 81 years of age, and his eldest daughter, the Defendant, purchased Flat A, 3/F, Tower 2, Lido Garden, Nos. 41-63 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (the "Flat") as joint tenants in 1989. The Plaintiff served a notice of severance dated 14th November 2000 (registered at the Lands Registry on 16th November 2000) on the Defendant in respect of the Flat.

2.The Plaintiff claimed that he is the beneficial owner of a half share of the Flat. He alleged that the Defendant rented out the Flat without his knowledge and consent and excluded him from possession and use of the Flat in his right as joint tenant. The Plaintiff also claims against the Defendant for damages for conversion of his furniture and personal belongings left at the Flat.

3.In her defence, the Defendant claimed that she is the sole beneficial owner of the Flat which was purchased in the parties' joint names without any intention of passing title to the Plaintiff. The Defendant denied conversion of the Plaintiff's possessions.

Witness statements

4.At the commencement of the trial, Mrs Dora Chan ("Mrs Chan"), counsel for the Plaintiff, referred to para 38/2A/13 of Hong Kong Civil Procedure 2002 Volume 1 at page 578 and applied to strike out paragraphs 2 to 20 of the Defendant's supplemental statement dated 18th September 2002 as they were irrelevant to the issues of the case. She accepted that if the said paragraphs were struck out, the Plaintiff's 2nd supplemental statement dated 10th October 2002 should be struck out as well. Mr Louie Chan ("Mr Chan"), counsel for the Defendant, took no issue on the legal principles but submitted that the subject paragraphs were relevant to the matter of credibility of witnesses.

5.Relevance of an issue or an averment of fact depends on its substance and content in light of the subject matter of the action, not on whether it is stated or denied in any witness statement. Having considered the contents of the said paragraphs, some of which deal with specific incidents relating to members of the Chan family dating from 1964 to 1982, I came to the view that they were not material or relevant for the resolution of the subject matter of this case. Whatever marginal relevance they may possibly have on the credibility of witnesses is not apparent and has not been demonstrated. I therefore ordered paragraphs 2 to 20 of the Defendant's supplemental statement and the whole of the Plaintiff's 2nd supplemental statement be struck out but making it clear that the parties may lead evidence or cross-examine on the relationship between members of the Chan family and the history of the family's accommodation in so far as they were relevant to the subject matter of the dispute.

Chan Wing Hong and Chan Mei Ha

6.Whilst not disputing their relevance at this stage, Mrs Chan objected to the admissibility of the witness statements of Chan Wing Hong and Chan Mei Ha as they would not attend court to give evidence. Even though Mrs Chan accepted that the current evidential regime does not debar the admissibility of hearsay evidence merely because it is hearsay, she submitted that the Plaintiff would be unfairly prejudiced by her inability to cross-examine them. Mr Chan submitted that there were health reasons for Chan Wing Hong, a Canadian resident, to remain in Canada and for his wife, Chan Mei Ha, to stay there to look after him.

7.Having considered the parties' submissions, I am satisfied that the hearsay nature of these witness statements does not debar their admissibility but their weight is a separate issue and needs to be considered in light of section 49 of the Evidence Ordinance Cap.8 and the totality of the evidence.

Application for re-amendment of the Amended Statement of Claim

8.The Plaintiff applied by summons filed on 10th March 2003 to re-amend the Amended Statement of Claim by adding a prayer of relief for an order for sale of the Flat and that the Plaintiff be entitled to half of the sale proceeds after deducting the necessary expenses incurred in the sale. Mrs Chan relied on sections 2 and 6 of the Partition Ordinance Cap.352. However, before closing submissions were made, Mrs Chan applied for leave to withdraw the said summons, to which Mr Chan had no objection. Mrs Chan also accepted that the Defendant was entitled to costs of the said summons in any event. I therefore granted leave to the Plaintiff to withdraw the said summons and ordered that the costs of the said summons be paid by the Plaintiff to the Defendant (to be taxed if not agreed) and that half an hour of the trial hearing be apportioned for such costs to assist the taxing master.

9.Mrs Chan orally applied to re-amend paragraph 10 and paragraphs (3) and (4) of the prayer of reliefs in the Amended Statement of Claim to replace the date of "1st March 1996" referred therein by "1st April 1995". Mr Chan had no objection and I granted leave to the Plaintiff to so re-amend and ordered that the Re-Amended Statement of Claim be filed and served within three days of the date of the order.

Supplemental statement of Chan Wing Hong

10.On the third day of trial, after the Plaintiff (being the only witness for the Plaintiff) finished giving evidence, Mrs Chan applied to strike out paragraphs 2 to 8, 10, 11 and 14 of the supplemental statement of Chan Wing Hong dated 18th September 2002 on the ground that they are irrelevant to the issues of the present case. Mrs Chan admitted oversight in failing to so apply when she made a similar application regarding the Defendant's supplemental statement on the first day of trial. Mr Chan objected and reiterated that the paragraphs are relevant to the credibility of witnesses, but eventually he accepted and agreed for paragraphs 2 to 7 to be struck out. However, he submitted that if the court was minded to accede to the Plaintiff's application, then paragraphs 3, 4 and 12 and the last 2 sentences of paragraph 5 of the Plaintiff's supplemental witness statement dated 18th July 2002 ought to be struck out as well.

11.Having considered the parties' submissions, the need to exclude immaterial or irrelevant matters and to fairly resolve matters at trial, and Mr Chan's agreement to strike out paragraphs 2 to 7 of the supplemental statement of Chan Wing Hong, and bearing in mind that the Plaintiff has already given evidence, I ordered that only paragraphs 2 to 8 of the supplemental statement of Chan Wing Hong be struck out. Mrs Chan applied to recall the Plaintiff to give evidence on the matters raised in the remaining paragraphs not struck out. Mr Chan objected. The Plaintiff has had ample opportunity (if so wished) to deal with these matters and I therefore rejected Mrs Chan's application.

12.I also refused Mr Chan's application to strike out the various paragraphs of the Plaintiff's supplemental statement. The Plaintiff has in his evidence adopted and confirmed the contents therein and no sufficient reason was shown for striking out the same.

13.I again made clear to the parties that they were entitled to lead evidence or cross-examine (if they so wish) on the relationship between members of the Chan family and the history of the family's accommodation in so far as they were relevant to the subject matter of this action. Indeed, it is apparent from the evidence of the Plaintiff and the Defendant (who were the only witnesses) that these issues have been canvassed in viva voce evidence.

Document bundles

14.The parties have helpfully prepared a bundle of documents ("AB") which was agreed as to admissibility and authenticity. The Plaintiff has submitted a Plaintiff's bundle of documents ("PB") which Mr Chan confirmed was also agreed as to admissibility and authenticity.

Background and relationship of the parties

15.This unfortunate litigation is a sad chapter for the Chan family, with the positions of the father and at least some of the children polarised and intractable. I shall attempt to give some brief non-controversial background before coming to the heart of the dispute.

16.The Plaintiff and his late wife have six children, one son and five daughters :

(a) Chan Wing Hong, the eldest and only son, born in 1955;

(b) the Defendant, the eldest daughter born in 1957; and

(c) Chan Yee Fun, Chan Yee Wah, Chan Yee Lai and Chan Yee Man, the other daughters.

17.The Plaintiff worked in the piece goods industry until his emigration to Canada in 1995. Throughout the years, he worked variously as a garment factory operator, a salesman and a wholesaler. The Defendant has been a teacher for 13 years before emigrating to Canada in 1995 where she studied for two years and has worked there since 1997. Both the Plaintiff and the Defendant are now Canadian citizens. The Defendant is presently living in Canada. The Plaintiff now lives at the Flat in Hong Kong.

18.There was considerable evidence in this trial as to the character of the Plaintiff and his relationship with his children. The Plaintiff asserted that he had no vice habits, that he supported his family financially as best as he could, and that he, since his wife passed away in 1974, adjusted his working hours and work place to enable him to look after the children. The Defendant denied the above and painted a different picture of an uncaring father, who left his children's growing up to the care of the eldest son, an aunt and their own resilience, but despite the same, the children remained and remain filial, having his interest at heart. She also gave evidence that she had previously been subject to an incident of physical violence from the Plaintiff.

19.I do not intend to deal with this evidence in any detail or, indeed, at all. Suffice to say that there was an estrangement between the Plaintiff and Defendant so that there were very few words left between them. The Plaintiff confirmed that since the 1980s, they seldom talked. Indeed, the Defendant admitted in cross-examination that the Plaintiff had a temper and so did she, and they became very distant from each other in the 1980s.

Family housing history

20.The Chan family leased a public housing unit in Block 3, Shek Yam Estate, Kwai Chung, New Territories (the "Old Flat") from the Hong Kong Housing Authority (the "HA") since the late 1960s. The Plaintiff's case was that he sometimes stayed at the Old Flat and sometimes he stayed away because he had to work late or entertain. From 1974 to 1978, as his work place was close to the Old Flat, he would return home to sleep. Later, whilst working as a piece goods wholesaler, he had accommodation at his workplace. He gave money to the Defendant to pay for the rent. The Defendant's evidence was that the family moved into the Old Flat in 1969 but the Plaintiff did not do so until 1974 or 1975. All along he seldom returned home. Since 1982 she paid the rent and utilities expenses of the Old Flat.

First emigration to Canada

21.The Plaintiff, Chan Yee Wah, Chan Yee Lai and Chan Yee Man emigrated to Canada in 1982 under Chan Wing Hong's sponsorship as he lived there. The Plaintiff returned to Hong Kong after about a year. He did not like living in Canada as he could not travel around and he had language problems. On the other hand, the Defendant said that the Plaintiff's return to Hong Kong was unexpected. He insisted on returning and, indeed, took monies set aside for the education fees of Chan Yee Lai to purchase an air ticket. Chan Yee Fun went to Canada in 1984. After 1984, only the Plaintiff and the Defendant remained in Hong Kong.

The purchase of the Flat

22.It is common ground that in or about 1989 the HA under the Home Loan Purchase Scheme (the "HLPS") was offering interest-free loans to tenants and occupants of public housing units to encourage them to purchase private properties and move away from the public sector. There is no dispute that the Plaintiff did surrender the Old Flat to the HA and under the HLPS, an interest-free loan of HK$110,000.00 (the "HA Loan") was applied for and granted.

23.The Defendant looked for a suitable property and eventually chose the Flat. The provisional agreement for sale and purchase dated 26th October 1989 (AB19) was signed by the Defendant as purchaser at the purchase price of HK$813,000.00. The formal agreement for sale and purchase dated 8th November 1989 (AB20-32) was signed by the Plaintiff and the Defendant as purchaser. The Defendant paid the deposits, and the HA Loan of HK$110,000.00 and a mortgage loan of HK$600,000.00 from Hang Seng Finance Limited were used to pay the balance of the purchase price. The assignment of the Flat dated 24th November 1989 (AB38-44) was in favour of the Plaintiff and the Defendant as joint tenants.

24.A crucial issue in this action is what was the understanding between the parties as to the purchase of the Flat. The Plaintiff's case was that in 1989 he was about 67 years old working as a salesman of piece goods with no pension or savings. He intended to continue with cheap and affordable public housing. If he continued to live at the Old Flat, he would (and it was not disputed by the Defendant) be relocated to another albeit smaller public housing flat upon the eventual redevelopment of Shek Yam Estate. The Defendant told him she wished to purchase a private flat but she did not have enough money. Although he did not know her income or financial status, he believed that she needed the HA Loan. At first he refused to give up the Old Flat. However, the Defendant repeatedly pressed him to surrender the Old Flat for the interest-free HA Loan and eventually persuaded him by promising that she would pay for the purchase price, including the mortgage repayments, and other expenses and outgoings, and that he would be a beneficial owner of a half share of the new flat. The Defendant brought him to see the Flat after paying the initial deposit and he let her make the decision.

25.The Defendant' gave various reasons for moving out of the Old Flat. First, as only the Plaintiff and the Defendant lived at the Old Flat which was for a family of eight, the HA's policy would require them to surrender the Old Flat for a smaller one. She did not want to pay double rent for the Old Flat as a result of her income exceeding the "rich family" threshold once she started working. Secondly, Shek Yam Estate was due for redevelopment. Although no notification was yet received for Block 3, residents of Block 5 had moved away by 1989.

26.The Defendant had always wanted to purchase a private property for better privacy and better living environment, and it was a good investment. She had a stable job with a steady income, HK$180,000.00 to HK$200,000.00 savings to cover the deposit, decoration expenses and solicitor's costs, and an expectation of a 90% mortgage on the new flat, so there was no difficulty for her to purchase the Flat. The Defendant said that although she could purchase the Flat even without the HA Loan, she was encouraged by the HLPS and wanted to apply for an interest-free loan.

27.The Defendant said that as the Plaintiff was getting old, she wanted him to move into the new flat with her and return home more often, so that she could look after him. She wanted to have a better relationship with the Plaintiff.

28.With the 1997 political uncertainty, the Defendant could have the option to sell the Flat in 1994 to 1995 although she had no intention to sell at the time of purchase. Further, in the Defendant's witness statement dated 15th May 2002 (which was adopted by her in the course of her evidence), it was further stated that, if she remained single, the purchase could be a hedge against inflation; if she married in future, she need not be dependent on her spouse.

29.The Defendant said that in early 1989 when she first invited the Plaintiff to live with her after she purchased the new flat, the Plaintiff ignored her. She later asked for his assistance in applying for the interest-free loan under the HLPS. As the Plaintiff signed the application form, he must have consented to leave public housing.

30.The Defendant said that after she signed the provisional agreement for sale and purchase, she brought the Plaintiff to view the Flat. If he did not like it, she would not go ahead with the purchase and would let the initial deposit (said to be about a few thousand dollars) be forfeited. As it turned out, he liked the Flat. When she invited the Plaintiff to live with her at the Flat, the Plaintiff said he would only do so if his name were added as owner. It did not seem important at that time and as she wanted the Plaintiff to live with her, she agreed to the proposal. She had no objection to the Plaintiff having the Flat if she predeceased him. She would pay the purchase price, including the mortgage repayments, of the Flat. The Defendant then informed the solicitors that the purchasers would be the Plaintiff and herself to be held under a "longer life tenancy". She denied that the Plaintiff was to be given a beneficial share in the Flat.

Moving into the Flat

31.The parties moved into the Flat in late 1989, but the Defendant said that the Plaintiff continued his practice of rarely returning home. There is no dispute that the Defendant paid the mortgage loan instalments from 1989 to 1998 as well as the outgoings in respect of the Flat, such as management fees, government rent and rates. The Defendant said that at that time she had no financial difficulties, but she could no longer save money.

Sale of the Flat?

32.It is the Plaintiff's case that in or about 1994, without his consent or any forewarning, several people came to view the Flat. He told the viewers that the Flat was not for sale. After this incident, the relationship between the Plaintiff and the Defendant worsened. The Defendant's case was that she wanted to sell the Flat because upon her imminent emigration (more of this later), she would have no job and would be unable to afford the mortgage repayments of the Flat. She placed the Flat with estate agents for sale or letting but was not aware that the Plaintiff sent away viewers of the Flat. The Plaintiff withheld his consent for any sale and the Defendant acceded to his wishes.

33.Prior to her emigration, the Defendant withdrew her provident fund benefits for anticipated payment of the mortgage repayments and miscellaneous expenses of the Flat. The Defendant said that she could not allow the Flat to remain vacant as she needed the rental income from the Flat to support the mortgage repayments. Without the rental income, the provident fund she had set aside for the mortgage repayments would only last till 1997.

Second emigration to Canada

34.There is no dispute that the Plaintiff and the Defendant emigrated to Canada in early 1995. However, there was conflicting evidence as to how the emigration came about. The Plaintiff's case was that he renewed his emigration to enable the Defendant (who did not satisfy the emigration requirements on her own) to emigrate to Canada and he himself did not wish to stay and live there. The Defendant, on the other hand, said that her application for emigration under Chan Yee Lai's sponsorship would have been processed much more quickly had it not been necessary for the Plaintiff to explain away his failure to reside in Canada in 1982 to acquire citizenship. His convenient excuse was that he had to return to Hong Kong to look after the Defendant then.

35.It is also common ground between the parties that the Plaintiff's children promised that each of them (except the Defendant who had no job upon emigration) would give him CAD200.00 per month, totalling CAD1,000.00, as his living expenses. In fact, the Defendant said the Plaintiff insisted on setting this as a term for his emigration. His children (except the Defendant) complied with this promise after the Plaintiff emigrated in 1995.

36.The immigration application was eventually approved and the parties landed as migrants in Canada on 19th July 1994. The Plaintiff returned to Hong Kong in about 10 days and the Defendant returned by the end of August. There is conflicting evidence as to when they left Hong Kong. The Plaintiff's case was that they left for Canada together in or about January 1995. He intended to return to Hong Kong in about a year as the Canadian authorities required him to stay at least a year initially. The Defendant's evidence was that the Plaintiff left in January 1995 but she left in mid-February 1995. Nothing material turns on the proper date(s) of departure from Hong Kong.

The leasing of the Flat

37.The Plaintiff gave evidence that he heard from his children's friend(s) that a month after they landed in Canada, the Defendant returned to Hong Kong to rent out the Flat. As the Defendant did not tell him about the letting, he neither asked nor objected. He only had confirmation when he came back to Hong Kong in March 1996. The Defendant denied she returned to Hong Kong.

38.The Defendant gave evidence that she studied between 1995 and 1997 relying on a loan from the Canadian authorities. Without any income but being still obliged to make mortgage repayments for the Flat, she had to let out the Flat and she did. It is not disputed that the Defendant rented out the Flat from 1st April 1995 at the monthly rent of HK$7,000.00 for a term of two years till the end of March 1996. The tenant only stayed for 10 months. The Plaintiff was well aware that she had no permanent job and could not afford to make the said payments, and that the Flat had been let.

The Plaintiff's return to Hong Kong in 1996

39.The Plaintiff returned to Hong Kong in or about March 1996 and discovered that the Flat was locked and let without his consent. He stayed at the home of Chan Yee Lai and her husband Wang Tin Yu. He asked Chan Yee Lai for the keys to the Flat and to evict the tenant but Chan Yee Lai said the Flat was already leased. He left Hong Kong on 11th August 1996 as he could not remain outside Canada beyond 6 months due to immigration requirements.

40.The Defendant said that the Plaintiff could choose to stay in Hong Kong (either with Chan Yee Lai or Chan Yee Man) or Canada. Indeed, whilst he was in Hong Kong from March to August 1996, when Chan Yee Lai and her family had to return to Canada, she arranged to rent an apartment in the Homantin District for the Plaintiff to stay. This was denied by the Plaintiff.

1996 in Canada

41.The Plaintiff said that whilst at Chan Yee Fun's house in Canada, he was pressed by Chan Wing Hong (in the presence of the Defendant) to sign some form of authorisation believed to be for the sale of the Flat. The Defendant did not mention any financial difficulties. He refused because they said he had no share in the Flat and did not say how the sale proceeds would be dealt with.

42.It is not disputed that after the first tenant left, the Defendant leased out the Flat again through an estate agent but that tenant failed to pay any rent. She said that in or about August 1996, Chan Wing Hong came to Hong Kong to evict the tenant and returned to Canada in September 1996. The Plaintiff, Chan Wing Hong and the Defendant met up in October and the Defendant informed the Plaintiff of the eviction of the tenant. She told him that as her provident fund would only last till 1997, she had to sell the Flat due to her financial difficulties. The Plaintiff said "Even if you die, it is your business only, not mine." As he refused to sell the Flat, she decided to let out the Flat as a temporary measure.

The Plaintiff's return to Hong Kong in 1997

43.The Plaintiff said that when he returned to Hong Kong in March 1997, he was only able to stay with Chan Yee Lai for a short while since her mother-in-law was visiting. He approached solicitors during this visit. The solicitors checked that the Flat had not been sold and advised him that his consent would be required for any sale. He then instructed his solicitors to send a letter to the Defendant. By letter dated 17th March 1997 to the Defendant (AB197-198), the Plaintiff's solicitors stated, inter alia, that the Flat was held by the parties as joint tenants and that should they decide to sell, the Defendant would have to pay to the Plaintiff half of the costs of the original purchase and decoration of the Flat, half of the rental income received and half of the net sale proceeds whilst the Plaintiff would have to pay the Defendant half of the mortgage repayments made.

1998 in Canada

44.It is common ground that the Plaintiff was persuaded by Chan Yee Lai and Wang Tin Yu to sign an authorisation (the "Authorisation" - PB34-35) to facilitate the redemption of the mortgage of the Flat as the mortgage interest was too high although the Defendant denied that she was present. The Plaintiff said that after signing, he consulted his own solicitors on the Authorisation and they advised against it. Later Chan Yee Lai called him and told him off, so he sent the original Authorisation back to her and Wang Tin Yu in Hong Kong by express delivery.

45.The Defendant said that at that time her income was just enough for her living expenses and she had to repay her study loan. She had no residence of her own. Due to her financial difficulties (as her provident fund was almost depleted) and as the Plaintiff refused to sell the Flat, she had no alternative but to borrow monies from Chan Yee Wah, Chan Yee Lai and Chan Wing Hong to redeem the mortgage loans of the Flat in September 1998. She has since repaid Chan Wing Hong with interest but she has to repay her sisters too.

1999 to 2001

46.The Plaintiff acquired Canadian citizenship on 31st March 1999 and returned to Hong Kong on 2nd April 1999. He said that when Chan Yee Lai discovered that he wanted to pursue his rights in relation to the Flat, she refused to put him up. As he had no place to live, he went to Mainland China for a while. A friend took pity on him and allowed to stay at a warehouse in Tai Nam Street, Shamshuipo. He left Hong Kong on 30th May 1999 to deal with his documentation in Canada and returned to Hong Kong on 14th February 2000. Then he left for Canada on 7th February 2001 and returned on 23rd February 2001 after uplifting his monies from his Canadian bank account. He has remained in Hong Kong since. He stayed at the Tai Nam Street warehouse until he returned to the Flat in August 2001.

47.A notice of severance dated 14th November 2000 (PB37-38) in respect of the Flat was served on the Defendant (sent to Chan Wing Hong's address) some time in February 2001 under cover of a letter from the Plaintiff's solicitors dated 13th January 2001 (AB206). The Defendant said that she took no action then as things were happening, including Chan Wing Hong suffering a stroke on 1st March 2001. However, she did send e-mail messages to the court when she was informed by her sister of newspaper reporting of the present proceedings taken out by the Plaintiff.

48.The Defendant also said that whilst the Plaintiff was in Canada, he informed Chan Mei Ha that he only made a claim for a half share of the Flat after the mortgage loans had been paid off and that it was foolish for the Defendant's siblings to help the Defendant pay off the mortgage loans.

Eviction of the tenant by the Plaintiff

49.The documents reveal a tenancy agreement dated 23rd June 1999 (AB95-98) in respect of the Flat between Lee Li Na as tenant and Chan Yee Lai on behalf of the Plaintiff and the Defendant as landlord for a term of 2 years from 1st July 1999 to 30th June 2001 at a monthly rent of HK$7,200.00. The monthly rent was reduced to HK$6,500.00 from 1st October 2000.

50.In March 2001, the Plaintiff commenced legal action to recover possession of the Flat and obtained a court order to that effect in April 2001 (AB166-168). The tenant returned the keys to the Defendant in June 2001 (see paragraph 36 of the Defendant's witness statement dated 15th May 2002). The Defendant asked Chan Yee Man to offer the Plaintiff the keys, which he refused to accept, saying that it must be done through solicitors. The Defendant, through a letter from her solicitors dated 3rd August 2001 (AB212-213), offered to let the Plaintiff have the keys to the Flat on the basis that he would not change the locks or deal with the Flat without the Defendant's consent, that he would confirm that vacant possession was delivered up by the tenant in May 2001 and that the Defendant waived claims against the Plaintiff for loss upon the Plaintiff entering the Flat with keys. The Plaintiff's solicitors advised him not to accept the conditions. Physical possession was recovered in August 2001 through the bailiff and he has been living there since.

The Plaintiff's financial support

51.Chan Yee Lai and Chan Yee Man contribute to the Plaintiff's present living expenses. The Defendant pays the management fees, rates and government rent of the Flat. The Plaintiff also receives a monthly sum of HK$705.00 being the government's "fruit money". By a letter dated 4th September 2001 from his solicitors to the Defendant's solicitors (AB216), the Plaintiff stated that he intended to lease one room of the Flat and render half of the net profits (that is, less the necessary expenses) to the Defendant. By a reply letter dated 20th September 2001 (AB220), the Defendant's solicitors informed the Plaintiff's solicitors that the Defendant's rejected the proposal.

The Plaintiff's furniture and personal belongings

52.The Plaintiff said that in 1989 the Defendant helped him move his furniture from the Old Flat to the Flat. He could not give a full list except to say that such furniture has been particularised in paragraph 15(1) of the Amended Statement of Claim. However, he did refer in his evidence to such items as lights, air-conditioner, refrigerator, burner stove, oval dining table and chairs, a big round table top, colour television set, washing machine, fan, radio, kitchenware and crockery. When it was pointed out to him under cross-examination that the developer gave four air-conditioners for the Flat (as evidenced in the provisional and formal agreements for sale and purchase - AB19 and AB20-32) and that the burner stove could not be used at the Flat which used town gas, he said that the Defendant arranged the removal of the furniture to the Flat and if she had thrown any item away, it was without his approval.

53.The Defendant said that only four items, namely, a pendant light, a teak ornamental cabinet, an oval dining table with four chairs and two beds, were moved to the Flat in 1989. She denied that the air-conditioner was brought to the Flat. Her sister bought the colour television set and she purchased the refrigerator. The burner stove was left at the Old Flat.

54.The Plaintiff went further to say that when he left for Canada, he left his furniture and personal belongings at the Flat, including his address books, diaries, clothes, shoes and accounting ledgers of his previous business. He only brought with him one suitcase to Canada and the Defendant brought two suitcases. He denied any knowledge of packing up for emigration.

55.When he was shown the copy photographs taken at the basement of Chan Wing Hong's house (AB2-3), he denied that the items depicted therein were his. However, in his supplemental witness statement dated 18th July 2002, he said that he could recognise the objects in the photographs were part of his belongings. Further, he said that when he returned to Hong Kong in March 1996, Chan Yee Lai told him she had thrown away his furniture. He had no money to replace his possessions.

56.On the other hand, the Defendant said that those household goods which could be used in Canada were packed up and shipped by container and the remaining ones were either given away or not removed being fixtures. There was some discrepancy in her evidence as to whether the packing was done during Christmas or in October 1994. In any event, she said that the Plaintiff should be aware of and consented to the packing done at the Flat. Further, the Plaintiff had his own cabinet for putting his personal belongings and the Plaintiff handled them himself. On arrival in Canada, the items were kept at the basement of Chan Wing Hong's house. The Plaintiff should know of this because he lived at Chan Wing Hong's home for some time. Up till now, the items are still there because the Defendant did not have a place of her own yet.

Credibility of witnesses

57.Two witnesses testified : the Plaintiff and the Defendant. I find the Plaintiff to be a truthful and reliable witness. Although there were minor inaccuracies in his testimony, he was not shaken in cross-examination and he was adamant in the truth of his version. I consider that the minor inaccuracies, particularly on dates and time, were the result of his old age and the lapse of time between the relevant incidents and the trial. The only matters over which I have some reservations as to whether the Plaintiff's evidence ought to be wholly accepted were whether he was as caring and helpful to his family as he portrayed and whether the disposal of his possessions were as he testified. However, these aspects did not adversely affect my finding that he was otherwise an honest and reliable witness in respect of other material parts of his evidence.

58.I do not find the Defendant to be a truthful or reliable witness. I do not propose to set out all the reasons for such finding but the main reasons were :

(a) I do not accept the Defendant's explanation that the Flat was purchased in the joint names of the Plaintiff and the Defendant because she wanted the Plaintiff to live with her and to return home more often. Since 1984 the Defendant lived with the Plaintiff and was unable throughout the years to alter his habit of rarely returning home. No apparent reason was given as to why the Plaintiff would be more likely to change his habit with the purchase of the Flat. In fact, after moving into the Flat, the Plaintiff still continued with his habit of not returning home some of the time. The Defendant's reason of wishing the Plaintiff to live with her and for him to return home more often is implausible.

Whatever reasons she might have in purchasing the Flat, the Defendant was keen to have the financial subsidy of the interest-free HA Loan and I find that it was for such advantage that she persuaded the Plaintiff to give up the Old Flat. It is difficult to understand from the evidence that the Plaintiff would agree to surrender public housing protection for no apparent personal benefit except for the already available opportunity to live with the Defendant. I rather consider it more likely that he would surrender the Old Flat and give up eligibility for public housing only if he would be given a half share beneficial interest in the Flat and the Defendant paid all the associated costs of the purchase, expenses and outgoings.

Leaving aside any benefit, the Plaintiff in fact suffered detriment as both he and the Defendant as the approved purchaser of the Flat entered into a mortgage dated 24th November 1989 (PB2-31) with Hang Seng Finance Limited (covering both the HA Loan and the loan from Hang Seng Finance Limited) which provided, inter alia, that the obligation of the Plaintiff and the Defendant to repay the loans was joint and several.

The Defendant's suggestion of a "longer life tenancy" if she predeceased the Plaintiff is even more implausible. I find that he became a joint owner of the Flat because he was to have a half share of the beneficial interest in it.

Mr Chan submitted that the Plaintiff's version is inconsistent with his solicitors' letter to the Defendant dated 17th March 1997 (AB 197-198) and the Statement of Claim. I do not find the Plaintiff's Statement of Claim inconsistent with the Plaintiff's case and, in any event, Mr Chan confirmed that he was not taking a pleading point. As regards the letter of 17th March 1997, what came through from the letter is a clear insistence on the joint tenancy. Whilst it could have been more precise, it must be remembered the Plaintiff was an old man and it was his first approach to solicitors in relation to this matter. The letter was sent a few days after his arrival in Hong Kong on 10th March 1997 and the tenor of the letter was much more a description of the legal position of joint tenants rather than a detailed statement by the Plaintiff of the factual background. I do not hold his solicitors' letter against the Plaintiff.

Mr Chan also suggested that there was no or only past consideration for the oral agreement between the parties allegedly made in autumn 1989 as the application for the HA Loan was made in June. I do not hold the confusion of dates and time against the Plaintiff given his old age and the fact that this incident happened more than 10 years ago. The Plaintiff was adamant, however, over the event and he was not shaken on this.

Mr Chan also submitted that, alternatively, had the agreement been reached before the signing of the application form for the HA Loan, the Plaintiff would also have signed the application form (as applicant) and the provisional agreement for sale and purchase (as purchaser). I am of the view that this does not necessarily follow. There is no dispute that the Defendant financed the purchase and selected the Flat, and that in the formal agreement for sale and purchase, the assignment, the loan agreement with the HA and the mortgage, both parties were named as the purchaser of the Flat.

Mr Chan further submitted that had there been an oral agreement, the Defendant paying for the purchase of the Flat would for her own protection have discussed other scenarios, eg the possibility of the deal falling through with the deposit returned. Mr Chan accepted that it is not necessary for all scenarios to be contemplated before an agreement can be upheld. I find that the lack of such discussion is plausible as neither party at that stage contemplated any difficulty or any termination of the purchase or ownership of the Flat.

In view of the above, on the balance of probabilities, I accept the Plaintiff's version that he surrendered the Old Flat on the Defendant's promise that he would have a half share beneficial interest in the Flat and that she would pay the purchase price, and all expenses and outgoings of the Flat;

(b) I do not accept the Defendant's assertion that the Plaintiff consented to or acquiesced in the leasing of the Flat.

The Defendant's case was that the Plaintiff, who must have known of the letting of the Flat from discussions at family gatherings, had not raised any objection. The Plaintiff denied this and, on the balance of probabilities, I find the Plaintiff's version more believable. Given the Plaintiff's known uncooperative attitude and known opposition to a sale of the Flat in 1994, and given the Defendant's keen interest to sell or lease the Flat to solve her financial problems, I find it more likely than not that the Defendant went ahead with the leasing of the Flat on her own without consultation with or consent of the Plaintiff.

I do not hold against the Plaintiff that he heard rumours of a letting of the Flat. There was no or no sufficient conduct on his part to suggest acquiescence. After all, it must be remembered (and the Defendant knew) that at that time the Plaintiff was an old man dependent on his children for his accommodation and his living expenses in Canada far away from Hong Kong, clearly unable to deal with his interests in the Flat and, more importantly, mistrustful and not on fair talking terms with the Defendant. There is no challenge to the Plaintiff's evidence that when he next returned to Hong Kong in March 1996, he promptly verified that the Flat was let and raised objection with Chan Yee Lai who was in Hong Kong.

Mr Chan submitted that the Plaintiff wrongfully refused to sell the Flat when the Defendant was burdened with the mortgage repayments and had no income to support the same. Whilst I accept that the Plaintiff's attitude might not help the Defendant, I cannot see any basis for saying that his refusal in exercise of his right as joint owner is wrongful.

Mr Chan further submitted that as the parties emigrated to Canada, it would be reasonable to rent out the Flat and that should the Plaintiff return to Hong Kong, it would be sufficient if his children provided him with alternative accommodation. I agree with Mrs Chan that filial piety, although most commendable, cannot be substituted for the Plaintiff's exercise of his rights as joint owner vis-à-vis the Flat.

In view of the above, on the balance of probabilities, I accept the Plaintiff's version;

(c) As stated above, I have reservations over the Plaintiff's attitude towards his family. However, I am prepared to accept that his perception of his relationship with his family may well be his own subjective feeling. I find that the Plaintiff had always been mistrustful of the Defendant, and he has been careful in dealings with her. An example is that he insisted on seeking the advice of his solicitors on the Authorisation. It is also not disputed that the Plaintiff often set "terms" before agreeing to proposals from the children. An example of this is his extraction of the promise that his children should contribute to his living expenses before he agreed to his second emigration to Canada. With a person of such cautious and mistrustful character, and given the poor relationship between the Plaintiff and the Defendant, it is inherently improbable that he would have agreed or allowed the Flat to be leased without setting his own terms or that he would have acquiesced to the same as suggested by the Defendant.

Given that the Plaintiff had objected to the letting of the Flat to Chan Yee Lai in March 1996 and given his solicitors' letter dated 17th March 1997 to the Defendant, I do not find it believable that he would have authorised Chan Yee Lai to enter into the tenancy agreement with Lee Li Na dated 23rd June 1999 (AB95-98) on his behalf (as well as on behalf of the Defendant) as landlord as apparent from the face of the tenancy agreement. I find that it was the Defendant who arranged this without the Plaintiff's consent.

59.Chan Wing Hong and Chan Mei Ha gave witness statements and Chan Yee Lai wrote a letter dated 16th September 2002 to the Defendant's solicitors (AB192-193). None of them attended court to give evidence. I cannot place any weight on their statements. I have considered the factors set out in section 49 of the Evidence Ordinance Cap.8. In a family dispute where, regrettably, lines are drawn and strong sentiments are engaged, caution must be exercised before relying on any statements from family members without their credibility tested by cross-examination.

60.On the disposal of the Plaintiff's furniture and personal belongings, I have already indicated my reservations on his evidence. Although I do not find him untruthful or dishonest, he was forgetful and confused on this. For example, it was not clear from the Plaintiff's evidence whether he was referring to his possessions at the Old Flat or those when he moved into the Flat or those when he left for Canada. That is not unexpected given his age, the lapse of time and the details required on this subject matter. Indeed, Mrs Chan stated in her written closing submissions that "P's claim on quantum of loss was wrongly based on what he had at Sham Yam [Shek Yam]. It is clear that P's concept on this was erroneous but not deliberate." But I remind myself that the Plaintiff has the burden to persuade me that the Defendant converted his furniture and personal belongings. I find that he has not discharged such burden.

Findings of fact

61.Based on the testimony which I accepted and the documents referred to in the trial, I came to the view that the material facts of this case were :

(a) The Flat was purchased by the Plaintiff and Defendant in their names under a joint tenancy. The Plaintiff surrendered the Old Flat and his eligibility for public housing for the HA Loan (which would be applied as part of the purchase price of the Flat) in return for a half share beneficial interest in the Flat and for the Defendant's agreement to pay all the purchase price (including mortgage repayments), expenses and outgoings.

(b) Pursuant thereto, the Defendant paid the mortgage repayments, government rent, rates and outgoings in respect of the Flat.

(c) The Plaintiff refused to sell the Flat. From the time shortly before emigration to Canada in early 1995 and thereafter, the Defendant was anxious to sell the Flat or at least rent it out to enable her to meet the mortgage repayments. She knew that she would have no income in the near future and her provident fund benefits would be depleted by 1997.

(d) The Plaintiff did not agree to or acquiesce in the leasing of the Flat. The leasing of the Flat in April 1995 was arranged by the Defendant without prior notification to or consent of the Plaintiff. The Plaintiff objected to the leasing of the Flat in March 1996 when he returned to Hong Kong. The subsequent leasing of the Flat in 1996 and 1999 to other tenants by the Defendant were also without the consent or acquiescence of the Plaintiff. The Plaintiff was prevented by the Defendant from entering or using the Flat since 1st April 1995 (whether the Flat was let or pending letting or left vacant) until June 2001 when the Defendant offered to give the keys of the Flat to the Plaintiff through Chan Yee Man.

(e) In 1997, the Plaintiff signed the Authorisation and the Defendant redeemed the mortgage of the Flat in 1998 with the help of loans from her siblings.

(f) The joint ownership of the Flat by the parties was severed by a notice of severance dated 14th November 2000 which was served on the Defendant some time in February 2001.

(g) The Defendant did not convert the Plaintiff's furniture or personal belongings as alleged.

Conclusion

(1) Plaintiff's claim for rent and mesne profits

62.Mrs Chan submitted that the Plaintiff is entitled to claim half share of the profits (that is, rent) and compensation (for the period when the Flat was not let or rent was not paid) less renovation expenses incurred by the Defendant (which are agreed between the parties as HK$49,331.00) for the period from 1st April 1995 to 1st August 2001. Mr Chan submitted that if I find the Plaintiff a beneficial owner of the Flat together with the Plaintiff (which I did), the Plaintiff shall be entitled to his proportionate share of the actual rental receipts less renovation expenses incurred by the Plaintiff, the mortgage repayments and outgoings (that is, management fees, rates and government rent) of the Flat.

63.The issues are whether (i) the Plaintiff as joint owner is entitled to any compensation for use and occupation of the Flat, (ii) the Plaintiff is entitled to compensation over and above the actual rental receipts, and (ii) deductions ought to be made for the mortgage repayments and outgoings.

64.The following passage from Snell's Equity 30th ed para 44-09 at pp.707-8, although not referred to by either Mrs Chan or Mr Chan, was cited with approval by Woo J in Tang Yin Ling v Wong Sai HCMP2527/1992 (unreported), 22nd July 1994 :

"Where land is held by several co-tenants they are all, as between themselves, entitled to possession of the whole. Hence there is no remedy in trespass against an occupying co-owner unless he has ousted or excluded the other or others. There is no exclusion if one merely stays away, allowing the other to occupy a house or take all the profits whether by way of rents, crops, or minerals. Where one ousts the other or others, he will be liable for an occupation rent. Where there is no ouster there is no liability in the absence of any contract to pay rent or other assumption of liability. If a co-tenant was dissatisfied with the situation, his remedy was to apply to the court for an order compelling partition."

65.At para 44-10 at p.708, the learned editors go on to say that :

"If it were found that one party was in occupation to the exclusion of the other, the court would direct an inquiry as to the occupation rent to be paid unless it were shown that the party not in occupation could have enjoyed the right to occupy but chose not to do so voluntarily. Conversely, if the occupier has expended money in improvements or repairs, the court will inquire into the amount of the increased value as a result of such expenditure and give him credit for it. The increased value is a charge on the land to be paid out of the proceeds before division, but liability for an occupation rent is personal to the occupying co-owner and is not chargeable on the purchaser or mortgagee of his share." (my emphasis)

66.Further, if the party who has sole occupation of the property receives rent by letting the property, he must give credit for a due proportion of the rents received by him. Woo J in Tang Yin Ling's case referred to Dennis v McDonald [1982] Fam 63 (also at [1982] 1 All ER 590) (neither case were cited by Mrs Chan or Mr Chan) to explain that the nature of the compensation is not damages for trespass. "The nature of the payment is that of some sort of compensation to be paid by a trustee, for they are trustees for each other ..., to a beneficiary (for they are both beneficiaries) for an exclusive enjoyment of the trust property attributable to such an action, namely, that of ouster, on the part of the paying party as is inconsistent with the discharge in due order of the trust." ([1982] 1 All ER 590, 592-3) Sir John Arnold P in Dennis v McDonald described the nature of the payment at p.593 by reference to the circumstance that "... the payer is housed in a property of which he is a trustee to the exclusion of the payee, who is equally a beneficiary, and that the purpose to which the payer puts the property has nothing to do with the case."

67.It is clear from the above that for the party in occupation to avoid liability to pay compensation, it must be shown that the joint owner could have used or occupied the property but chose not to do so. There is no dispute that the Flat was let by the Defendant since 1st April 1995 and the Plaintiff could not have enjoyed the right to occupy. Even when the Flat was not let, the Plaintiff had no access to the Flat and, even on the Defendant's case, he was only offered alternative accommodation whilst he was in Hong Kong. I therefore find that the Defendant excluded the Plaintiff from use and occupation of the Flat irrespective of whether the Flat was let or not. As the parties were joint owners having unity of possession, I find that such exclusion was unjustified and compensation must be paid by the Defendant to the Plaintiff. However, the Defendant's evidence (which is not disputed) was that she had through Chan Yee Man made an offer of keys to the Plaintiff in June 2001. I therefore find that after June 2001, the Plaintiff has not been ousted from possession of the Flat.

68.The only evidence of help to assess the compensation is the amount of rent payable by the various tenants of the Flat. The tenancy agreement dated 31st March 1995 (AB77-79) was a one-year tenancy from 1st April 1995 to end of March 1996 at the monthly rent of HK$7,000.00 but the tenant only stayed for 10 months. The second tenancy agreement dated 9th May 1996 (AB83) provided for two-year term at the monthly rent of HK$7,000.00 but no rent had been paid. The third tenancy agreement dated 23rd June 1999 (AB95-98) also provided for a two-year term from 1st July 1999 to 30th June 2001 at a monthly rent of HK$7,200.00, which was reduced to HK$6,500.00 from 1st October 2000. The third tenant ceased paying rent after March 2001. The parties are agreed that credit must be given for renovation costs of HK$49,331.00.

69.In all the circumstances, I assess that the Plaintiff is entitled to the following compensation from the Defendant, to run from 1st April 1995 to 30th June 2001, as follows :

70.Mr Chan argued that the mortgage repayments that she had to pay should be reduced by the income from the Flat. This goes against not only the joint tenancy arrangement between the parties where the Plaintiff would have his half share beneficial interest (with all rights flowing therefrom) but also the Defendant's promise to pay the mortgage repayments. The Defendant in her evidence accepted her responsibility for the mortgage repayments and outgoings and, indeed, she paid all the mortgage repayments and outgoings. I do not find it appropriate to deduct from the compensation the mortgage repayments and outgoings.

(2) Plaintiff's claim for damages for conversion

71.I have found that the Plaintiff has not proved on the balance of probabilities that the Defendant has converted the Plaintiff's furniture and personal belongings. Even if I am wrong, I am not satisfied that the Plaintiff is entitled to substantial damages, namely, the value of the goods and chattels converted.

72.The burden is on the Plaintiff as claimant to adduce evidence in support of his claim for damages, including the value of the goods and chattels at the time of conversion (see Clerk & Lindsell on Torts 18th ed para 14-100 at p.72). The Plaintiff has not adduced any evidence on the value of the various items of furniture and personal belongings. Mrs Chan agreed that these items were the Plaintiff's own belongings and he could have, had he wished, given evidence on the same. The conversion, if any, occurred in 1995, the action was commenced in 2001 and the particulars of damages claimed were furnished as early as May 2001. Even if the Plaintiff proved conversion, he was not entitled to anything more than nominal damages. The Plaintiff did not ask for an assessment at a future date and had that request been made, it would be refused as the court should not allow the Plaintiff a second chance to perfect his case to the prejudice of the Defendant (see Born Chief Company trading as Beijing Restaurant v Tsai, George and Tsai, Mary CACV229/1995 (unreported), 10th April 1996). Since there is not an iota of evidence on the value of the said furniture and personal belongings, I need not consider Mrs Chan's submission that where the wrongdoer refused to produce the converted goods, it was to be presumed against him to be of the greatest value that goods of that type could be.

(3) Plaintiff's claim for legal costs

73.The Plaintiff claims for legal costs in respect of proceedings for the eviction of the last tenant of the Flat by the Plaintiff in 2001. Mr Chan submitted that as the tenancy is a lawful tenancy created by the Defendant, the Plaintiff had no right to evict the tenant. I have found that the Defendant did not have the Plaintiff's authority to enter into or arrange this tenancy. However, no evidence was adduced by the Plaintiff on the quantum of legal costs incurred. There is no direction for split trial on liability and quantum. It was the Plaintiff's burden to adduce evidence to prove such damages and I therefore find that the Plaintiff has failed to discharge this burden. Mrs Chan submitted but without supporting evidence that legal costs must have been incurred and that the same has not been taxed.

74.Under this head of claim, I am only prepared to award nominal damages of HK$1.00. I find that the Plaintiff had been unreasonable in refusing to take the keys offered by the Defendant through Chan Yee Man and later through the Defendant's solicitors in August 2001. To explain such refusal on the ground that he was concerned for his personal safety is without merit. Legal costs (if any) incurred after such offers should not lie at the Defendant's door.

(4) Defendant's claim for declaration of sole ownership of the Flat

75.Mr Chan submitted that as the Defendant paid the entire the purchase price of the Flat with no contribution from the Plaintiff, the Plaintiff held his half share in trust for the Defendant. He cited Yuen Tam-wan v Ho Chan Yuet-lan and anor [1985] HKLR 280 and Lloyds Bank plc v Rosset and anor [1990] 1 All ER 1111 in support.

76.Both Mr Chan and Mrs Chan are in agreement as to the legal principles. In Yuen Tam-wan's case, Litton V-P said at pp.285-6 as follows :

" In the absence of relevant findings of facts by the trial judge, and the application of the law to such findings, we in this court are driven to approaching this case from first principles. In cases of this kind there are broadly speaking two categories of cases : (1) Those cases, perhaps rare, where there was some agreement, arrangement, understanding between the spouses that the proprietary interest in property should be shared in a particular way; and (2) those cases, perhaps more common, where there is no evidence to support a finding of an agreement or arrangement, and the court is driven to infer the common intention from conduct. See Lord Bridge in Lloyds Bank Plc v. Rosset [1991] 1 AC 107 at 132E to 133F ......"

In Yuen Tam-wan's case, there was no finding of fact as to any agreement or arrangement between the parties and the court had to infer the common intention of the parties from their conduct, namely, a part of the purchase price was provided by appellant's mother and the mortgage repayments were discharged by the appellant. It was on this basis that the court came to the conclusion that the 2nd respondent held his half share in trust for the appellant from the time of acquisition.

77.In Lloyds Bank plc v Rosset and anor, Lord Bridge said at pp.1118-1119 as follows :

" The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to the acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or proprietary estoppel.

In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do."

78.I am of the view that there is evidence before me and I have found that there was an agreement, arrangement or understanding reached between the parties that the Flat was to be shared beneficially and the Plaintiff had altered his position by surrendering the Old Flat and his eligibility to public housing. In light of my findings above, the Defendant's claim for a declaration that she is the sole beneficial owner of the Flat is dismissed.

(5) Defendant's claim for declaration that the Plaintiff is not interested in the Flat

79.Mr Chan informed the court that the Defendant no longer wished to pursue the claim for a declaration that the Plaintiff is and was at no time interested in the Flat and shall no longer assert any claim in rem in respect thereof. However, no application was made to withdraw the claim. In light of my findings above, this claim is dismissed.

(6) Defendant's alternative claim for repayment of share of mortgage repayments and expenses by the Plaintiff

80.Paragraph (3) of the prayer for relief in the Amended Counterclaim asked the Plaintiff to repay his share of the mortgage loan repayments and miscellaneous expenses in accordance with the percentage interest deemed by the court. It is common ground, and the Defendant confirmed in her evidence, that the Defendant was responsible for the purchase price including the mortgage repayments and the outgoings. I see no reason to alter the arrangement reached between the parties on which the Plaintiff relied and the Defendant has performed. This claim is therefore dismissed.

(7) Defendant's claim for the de-registration of the notice of severance

81.Paragraph (4) of the prayer of relief in the Amended Counterclaim sought an order to vacate the registration of the notice of severance of the joint tenancy of the Flat. Since I have already decided in the Plaintiff's favour on the matter of the joint tenancy, the Plaintiff was entitled to serve the notice of severance on the Defendant (which service was admitted by the Defendant) and register the same with the Lands Registry. This claim is dismissed.

(8) Defendant's claim for damages for wrongful eviction of the tenant

82.The Defendant claims for loss of rental and damages for the Plaintiff's wrongful eviction of the tenant from the Flat in 2001. Mr Chan submitted that since the parties are both legal owners of the Flat, the Plaintiff could have no remedy against the tenant where the Defendant, a legal co-owner, granted a tenancy to the tenant. Hence, the Plaintiff is liable for loss and damages arising from such wrongful eviction.

83.I have found that the Defendant acted wrongfully in preventing the Plaintiff from exercising his rights of use and occupation of the Flat by unilaterally leasing out the Flat. To allow the Defendant to maintain this claim will be tantamount to allowing the Defendant to rely on her own wrong to seek damages from the Plaintiff. That cannot be right. It would be inequitable and unjust and the court will not lend itself to support such claim. In the circumstances, this claim is also dismissed.

Costs order nisi

84.There is no apparent reason why a costs order nisi should not be made. The Plaintiff has succeeded to a large extent in relation to his claim. However, he failed to establish that the Defendant converted his furniture and personal belongings and he only recovered nominal damages in respect of his claim for legal costs for eviction of the tenant. I therefore apportion the trial time spent in relation to the successful issues to assist the taxing master and make an order nisi that the Defendant do pay the Plaintiff the costs of the counterclaim and 80% of the costs of the Plaintiff's claim, to be taxed if not agreed, with certificate for counsel, and the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mrs Dora Chan instructed by Shamson Zeall & Co for the Plaintiff.

Mr Louie Chan instructed by Erwin Young, Chu & Law for the Defendant.