Lui Kam Lau and Others v. Leung Ming Fai

HCA001978/1988

HEADNOTE

Trust - contribution made by common law husband - whether resulting or constructive trust - agreement to transfer property - whether part performance.

No. A1978 of 1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Deputy Judge Tong, Q.C.

Dates of hearing: 28 - 30 April and 1 May 1992

Date of delivery of judgment: 11 May 1992

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J U D G M E N T

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1. The Plaintiffs are the sons of and administrators of the estate of Madam Ng Pui Lin ("Deceased") who died on 7th January 1985. By this action, the Plaintiffs sought to recover possession of certain premises known as Flat A, 14th Floor, rung Yip Building ("the Premises") and mesne profits from the Defendant. The Plaintiffs' title to sue is not in dispute.

2. The Defendant and the Deceased went through a ceremony of marriage on or about the 20th December 1981 ("the Marriage") and had been living together as man and wife at the Premises at least since the date of the Marriage. It is not in dipute that the Marriage was never registered and hence never had any legal effect. I should also mention that the Defendant is not the natural father of the Plaintiffs.

3. The Plaintiffs accept that the Defendant's occupation of the Premises prior to the death of the Deceased was lawful but claim that since the death of the Deceased, the Defendant had wrongfully remained in possession of the Premises.

4. By his Defence, the Defendant relies on two contentions and also counter-claims for, inter alia, a Declaration that the estate of the Deceased holds the Premises upon trust for him. The Defendant's two contentions are :-

(a)    That he had made substantial monthly mortgage payments to the Liu Chong Hing Bank ("the Bank") under the mortgage of the Premises ("the Mortgage") since 20th December 1981 (the date of the marriage).

(b)    That before her death, the Deceased informed the Defendant that she intended to assign the Premises by way of gift to the Defendant and asked the Defendant to redeem the Mortgage. Acting on the Deceased's request, the Defendant did redeem the Mortgage by paying a sum of $68,236.45 to the Bank on 4th January 1985. There was thus an agreement to convey the Premises to the Defendant which agreement was partly performed by the Defendant.

5. Although the above pleaded facts can arguably also support a case of gift inter vivos or proprietary estoppel, Mr. Chan, appearing for the Defendant expressly declined to put his case on the basis of there being a gift inter vivos. This is understandable in view of authorities such as Milroy V. Lord (1862) 4 De G.F. & J. 264 and In re Fry (1946] Ch. 312. As for proprietary estoppel, Mr. Chan did attempt to raise this argument at a late stage but I ruled that he had not pleaded this defence and no leave should be given to him to plead this alternative defence by way of amendment.

The Defendant's Evidence

6. I should say at once that after hearing the Defendant's evidence I formed the distinct impression that he is a sincere and truthful witness. His evidence is generally logical and internally consistent. He never hesitates to give an answer which may be harmful to his case or his interest and his evidence remained largely unscathed despite a rather lengthy and at times overbearing cross-examination by Miss Cruden. I accept his evidence as being reliable and truthful.

7. The Defendant said that he met the Deceased in 1978 and in around December 1978 he moved in with the Deceased living at the Premises. The Land Registry records at Pages 33 to 36 of the Plaintiff's bundle showed that the Premises were bought by the Deceased in her own name in April 1976 for $195,000 of which a sum of $136,500 was advanced by the Bank under the Mortgage. In about February or March 1979, the Defendant began paying the monthly mortgage instalments of $1,864.90.

8. When asked why he assumed the payment of the mortgage instalments, he said he did so because he felt as a man of the house he ought to make these payments. He never intended these payments to be a gift to the Deceased. It was not suggested to him that these payments were loans. He went on to say in re-examination that he paid the instalments because he was living at the Premises and that the Deceased asked him to make the payments and she did not want him to move out of the flat.

9. The Defendant also said he paid for most of the outgoings and household expenses apart from some minor items which were paid by the Deceased. He sometimes let the Deceased paid for some of these minor items just to please her. Both the Defendant and the Deceased were working at the material time. He was a bartender working long hours at a salary of between $8,000 to $9,000 and the Deceased worked as a part-time cashier in some night club in Tsimshatsui at a salary of between $3,000 to $4,000. These figures were not seriously challenged by the Plaintiffs in cross-examination. In my judgment, it is logical that the Defendant should take care of the major items of daily expenditure including the monthly mortgage instalments.

10. In 1984, the Deceased became seriously ill. It was later confirmed that she had cancer. She eventually died on 7th January 1985 at the Hong Kong Sanatorium Hospital ("the Hospital"). Before she died, the Deceased told the Defendant that "everything belonged to her would be (the Defendant's]". She asked the Defendant to make enquiries with the Bank as to the outstanding balance of the mortgage loan which the Defendant did. The Deceased asked the Defendant to redeem the Mortgage so that she could assign the Premises to the Defendant. She also suggested the Defendant should go to see Messrs. Hamptons, Winter & Glynn; a solicitor firm ("the Firm"), so that the formalities of the redemption and proposed assignment could be effected.

11. The Defendant did go to the Firm but he could not find the person the Deceased suggested he should see. He nevertheless instructed the Firm to attend to the redemption and the assignment.

12. Meanwhile, the Defendant found out that the total outstanding sum necessary to redeem the Mortgage was $68,236.45. On 4th January 1985, the Defendant drew a cheque on his own personal account (page 30 of the Defendant's bundle) in the amount of $68,236.45 and paid over the cheque to the Bank. He gave evidence to the effect that he did not have the sufficient money to discharge the Mortgage but he managed to borrow sufficient money from his friends and relatives to do that.

13. Exhibit "D6" is a copy receipt issued by the Bank produced by a loan officer of the Bank ("DW2") who gave evidence. The receipt records the number of the cheque as being "204254". That accords with the number of the Defendant's cheque shown at page 30 of the Defendant's bundle. Without a doubt, the Defendant did redeem the Mortgage using his own funds. Miss Cruden speculates in her final submissions that the money might have come from the Deceased but there is no such evidence to this effect.

14. The credibility of the Defendant was attacked by Miss Cruden by reference to a series of unwarranted and perhaps unreasonable demands made by the Defendant in 1985 or 1986. In particular, there is a letter in the Plaintiff's bundle (at page 32) where the solicitors of the Defendant wrote to the Plaintiffs' previous solicitors demanding a payment of $152,976.45. The Defendant admitted in cross-examination that the said sum included the redemption money and the funeral expenses but not the monthly mortgage instalments paid by him.

15. I would not attach a great deal of weight to these demands. They were made in 1985 or 1986. They simply indicated that at that time the Defendant was prepared to vacate the Premises if his offer was accepted. The offer was not accepted. If anything, the demands confirmed at least that the Defendant had incurred the redemption money if nothing else. I do not think the Defendant's credibility is in any way dented by these demands.

The Plaintiffs' Evidence

16. The Plaintiffs called only one witness, the second named Plaintiff, Lui Hon Yiu ("PW1"). I must say that despite the fact that he is a wail-educated police officer, I find him a wholly unreliable witness.

17. More than once, he gave evidence which was immediately contradicted by known facts or documents. For example, he alleged he had a conversation with the Deceased while she was at the Hospital after she had an operation. The Statements of Account of the Hospital at pages 32 to 34 of the Defendant's bundle, however, showed that the Deceased never had any operation during her stay at the Hospital at the time. She was so ill she in fact died a few days later.

18. Mr. Lui claimed that he lived at the Premises in 1984 until October that year and yet he was not aware that the Deceased went into The Hong Kong Central Hospital on the 7th September 1984 for an operation. He only recalled the incident when he was shown the receipts issued by the Hong Kong Central Hospital (pages 8 to 16 of the Defendant's bundle). But he still maintained that he only knew of his mother's admission to the hospital after she came out two days later.

19. He also claimed he once took the Deceased to see a Doctor when she felt pain while walking with him in the streets of Sai Ying Pun. And yet, he was unable to remember anything of the visit to the Doctor; he can neither remember the name of the doctor nor which region in Hong Kong the clinic was. Later in cross-examination, he changed his story by saying that the visit to the doctor occurred not while he was walking with the Deceased in the streets of Sai Ying Pun. He also said that the clinic was near central or western.

20. But I think the most obvious lie that Mr. Lui told was his evidence that after he moved out of the Premises in October, he maintained close telephone contacts with the Deceased two or three times a week for the next month and so'. Thereafter, he called the Deceased about once every one or two weeks. On each occasion, he telephoned the Deceased at home and found her sounding normal. And yet, the documents showed that the Deceased was in fact hospitalised from 20th October 1984 to 30th October 1984, 4th November 1984 to 20th November 1984 and then again from 10th December to 11th December 1984. Mr. Lui was not aware of the Deceased's stays at these hospitals nor did he visit her despite the fact that according to his evidence, he was scolded by the Deceased for not visiting her when she was first hospitalised in September 1984 and that the incident left him a "very deep impression".

21. Despite claiming that he was not on bad terms with the Defendant, at least not in the beginning, it is obvious from the way and manner he referred to the Defendant that there is a very strong animosity towards the Defendant. It is not for me to speculate the cause of this animosity but this may well have clouded his judgment in not telling the truth or the whole truth to this Court. I reject the evidence of Mr. Lui completely.

Corrobation

22. Having rejected the evidence of Mr. Lui. I have only the evidence of the Defendant before me. Miss Cruden, quite rightly, warned me of the danger of relying on the evidence of the uncorroborated evidence of the Defendant. My attention was drawn to page 241 of Cross on Evidence, 7th edn. :-

"4. CLAIMS AGAINST THE ESTATES OF DECEASED PERSONS

A claim against the estate of a deceased person will not generally be allowed on the uncorroborated evidence of the claimant, but there is no rule of law against allowing it in England. The absence through death of one of the parties to the transaction calls for caution in such a case, but claims have been allowed where there was no corroboration."

23. In In Re Gonin Deceased [1979] 1 Ch. 16, at page 32F, Walton J. said :-

"Now it is common sense that all claims against the estate of a deceased person which had not been put forward whilst they were still living fall to be scrutinised with considerable care, for the obvious reason that the other party to the agreement is in the nature of things unable to give his or her version of events."

24. I bear in mind these warnings and I have considered the evidence of the Defendant most carefully. Upon a close scrutiny of his evidence I find his evidence is corroborated in material respects by other witnesses, logical and consistent with known facts and documents and more likely than not to be true.

25. The Defendant's evidence that the Deceased wished to give him the Premises out of her love and affection for him is corroborated by the brother ("DW3") and sister ("DW4") of the Deceased. The Deceased's evidence that he had been living in the Premises prior to the Marriage in December 1981 is also corroborated by the same witnesses.

26. The Defendant's evidence that the Deceased only took on a part time job in Tsimshatsui is corroborated by the evidence of the sister of the Deceased.

27. The Defendant's evidence that he redeemed the Mortgage is corroborated by the cheque (page 30 of the Defendant's bundle) and the Bank's receipt (exhibit "D6").

28. The Defendant's evidence that he instructed the Firm to attend to the formalities of the redemption of the Mortgage is corroborated by the Bank's letter dated 3rd January 1985 (at page 29 of the Defendant's bundle and exhibit "D4").

29. Given the fact that the Defendant was earning about twice as much as the Deceased and that he was living in the Premises even before they were "married", I consider it more logical and likely that it was the Defendant who had been paying the monthly mortgage instalments.

Findings of Facts

30. On the evidence recited above, I make the following findings of primary facts :-

(i)    The Defendant had been living with the Deceased for a considerable period of time prior to the Marriage in December 1981.

(ii)    Throughout this period, the Defendant was working full time earning about $8,000 to $9,000 a month.

(iii)    During this same period, the Deceased only worked part time (obviously except when she was seriously ill and/or was hospitalised) and was earning about $3,000 to $4,000 a month

(iv)    The Defendant did pay for all the monthly mortgage instalments ever since a few months after he began living with the Deceased.

(v)    The Deceased did wish to make a gift of the Premises to the Defendant out of love and affection

(vi)    The Deceased did ask the Defendant to and the Defendant did go to make enquiries with the Bank and instruct the Firm with a view to redeem the Mortgage and prepare an assignment of the Premises in his favour.

(vii)    The Defendant did redeem the Mortgage using his own funds.

Agreement to Convey and Part Performance

31. On these findings I now must turn to the contentions of the Defendant. I shall first examine the contention of the agreement bewteen him and the Defendant that the Premises would be assigned to the Defendant in consideration of the Defendant redeeming the Mortgage.

32. In my judgment, the evidence falls short of establishing such an agreement. The letter dated 22nd November 1986 (page 32 of the Plaintiff's bundle) written by the Defendant's solicitors spoke of the Deceased out of "her own desire to express her love and affectionate (sic) to [the Defendant]" wished to assign the Premises to the latter by way of gift after the Mortgage had been redeemed. Nowhere in this letter, written within two years of the death of the Deceased, was. It mentioned that there was an agreement between the Deceased and the Defendant.

33. The Defendant repeatedly said in his evidence that the Deceased simply said "everything belonged to her would be mine". The brother and sister of the Deceased confirmed that it was the wish of the Deceased to give the Premises to the Defendant. Neither mentioned anything about an agreement.

34. When asked by this Court, the Defendant made it clear that what was said by the Deceased to him was not the making of a bargain but an expression of an intention to give :-

"Q. You now say, your wife did say to you that she intended to make a gift of the Premises to you?

A.    Yes, she did say this.

Q.    But at the same time, she asked you to redeem the property ?

A.    Yes, she asked me to ask the Bank for the balance of the mortgage and asked me to pay off the balance..

Q.    Would you have redeemed the property had she not indicated to you she wanted to make a gift of the Premises to you ?

A.    I would.

Q.    So you redeemed the property solely to please your wife and not in return for the Premises as a gift ?

A.    Correct."

35. What the Deceased intended to do was to make a gift inter vivos of the Premises in favour of the Defendant. She intended that upon the discharge of the Mortgage she would execute a formal assignment of the Premises in favour of the Defendant. Unfortunately, she died before this could be done. The gift was never perfected.

36. In view of my finding that there was no agreement made between the Defendant and the Deceased, it is not necessary for me to go on and consider whether or not there was part performance on the part of the Defendant suffice for me to say that had I found that the alleged agreement was made, I would have found on the evidence that there was sufficient part performance of the alleged agreement.

Implied Trust

37. The other alternative contention of the Defendant is, that by making the monthly mortgage payments and redeeming the Mortgage, there was and there is in favour of the Defendant a resulting or constructive trust of that part or share of the Premises which represents the contributions made by the Defendant.

38. Since I am concerned here with the situation where a person advances money to purchase a property registered in another's name, I think I am more concerned with the principle of resulting trust rather than constructive trust. However, it hardly matters what label one uses. What the Court is concerned with is a trust implied by law of the Premises or part thereof held by the registered owner, the Deceased, when she was alive and her estate upon her death, in favour of the Defendant.

Presumption of Advancement

39. Where a property is purchased in the name of one but with the money of another, the Court must ascertain the true intention of the parties as to whether it is the former or the latter who should have the beneficial interest in the property. Where there is admissible evidence of the actual express intention of the parties, the Court will act on such intention accordingly. But where the intention is not expressed, the Court must ascertain the intention of the parties objectively. In so doing, the Court will resort to two tools: the presumption of resulting trust and the prseumption of advancement. Each presumption is but a starting point. It simply shifts the burden to the opposing party. For a presumption is not a finding of the Court. It is merely a rebuttable assumption. Ultimately, the Court will still have to consider the evidence and the surrounding circumstances to determine where lies the beneficial interest.

40. The principles above are so well settled andrecognised that I hardly think it necessary to cite any authorities to support them. My attention, however, was drawn to Lily Cheung V. Commissioner of Estate Duty [1988] 1 H.K.L.R. 517 where Mr. Justice Godfrey in his usual lucid and succint manner described (at page 521D) these modern principles in terms which most laymen will understand :-

"The Court, finding it impossible to ascertain the actual intention, has to search for the presumed intention of the parties, the matter thus resolving itself into a battle of competing presumptions. These are the presumption of resulting trust,and the presumption of advancement.

Where two persons advance purchase money jointly,and the purchase is taken in the name of one only, there is to be presumed a resulting trust in favour of the other as to so much of the money as he advanced. This often occurs when two people contribute to the purchase of a house for their joint use, and a common example is the purchase of a matrimonial home by both spouses. But as the doctrine of resulting trust is based on the unexpressed but presumed intention of the two purchasers, it may not arise where the relation existing between them is such as to raise a different presumption, that is, a presumption that a gift was intended. This presumption, the presumption of advancement, applies when the person providing the purchase money is under an equitable obligation to support or make provision for the person to whom the property is conveyed, for example, a wife. Accordingly, if a husband buys property and has it conveyed to his wife, on the face of it and in the absence of any other evidene, this is a gift to her (either of the property, or of his cash contributions towards its purchase price, I shall return to this point later). However, under modern conditions, with the reduction of the wife's economic dependence on her husband, the force of the presumption of advancement is much weakened, especially in relation to purchases of the matrimonial home, and to purchases in which some evidence of the circumstances of the transaction is still available."

41. In this case, it is common ground that the Defendant was never legally married to the Deceased. However, the relation of husband and wife was certainly recognised and accepted not only by the immediate parties but also by their relatives, e.g. the broker and sister of the Deceased. However weak the presumption may be, the Court must look for pointers which suggest that the contributions made by the Defendant were not intended as a gift.

Presumption of Resulting Trust

42. The leading modern authority on resulting trust of the matrimonial home is Gissing V. Gissing [1971] A.C 886, H.L. At page 907B-E, Lord Diplock said :-

"Where a matrimonial home has been purchased outright without the aid of an advance on mortgage it is not difficult to ascertain what part, if any, of the purchase price has been provided by each spouse. If the land is conveyed into the name of a spouse who has not provided the whole of the purchase price, the sum contributed by the other spouse may be explicable as having been intended by both of them either as a gift or as a loan of money to the spouse to whom the land is conveyed or as consideration for a share in the beneficial interest in the land. In a dispute between living spouses the evidence will probably point to one of these explanations as being more probable than the others, but if the rest of the evidence is neutral the prima facie inference is that their common intention was that the contributing spouse should acquire a share in the beneficial interest in the land in the same proportion as the sum contributed bore to the total purchase price. This prima facie inference is more easily rebutted in favour of a gift where the land is conveyed into the name of the wife : but as I understand the speeches in Pettitt v. Pettitt four of the members of your Lordships' House who were parties to the decision took the view that even if the 'presumption of advancement' as between husband and wife still survived today, it could seldom have any decisive part to play in disputes between living spouses in which some evidence would be available in addition to the mere fact that the husband had provided part of the purchase price of property conveyed into the name of the wife."

43. His Lordship went on to consider various factual situations and at page 908B to D said this :-

"Even where there has been no initial contribution by the wife to the cash deposit and legal charges but she makes a regular and substantial direct contribution to the mortgage instalments it may be reasonable to infer a common intention of the spouses from the outset that she should share in the beneficial interest or to infer a fresh agreement reached after the original conveyance that she should acquire a share. But it is unlikely that the mere fact that the wife made direct contributions to the mortgage instalments would be the only evidence available to assist the court in ascertaining the common intention of the spouses."

Viscount Dilhorne said in. the 'same case (at page 900F) that :-

"If such a common intention is absent, in my opinion the law does not permit the courts to ascribe to the parties an intention they never had and to hold that property is subject to a trust on the ground that that would be fair in all the circumstances.

My Lords, in determining whether or not there was such a common intention, regard can of course be had to the conduct of the parties. If the wife provided part of the purchase price of the house, either initially or subsequently by paying or sharing in the mortgage payments, the inference may well arise that it was the common intention that she should have an interest in the house.

To establish this intention there must be some evidence which points to its existence. It would not, for instance, suffice if the wife just made a mortgage payment while her husband was abroad. Payment for a lawn and provision of some furniture and equipment for the house does not of itself point to the conclusion that there was such an intention."

44. I conclude from the authorities cited above that the fact that a spouse has made substantial direct, and in some cases, indirect contributions towards either the deposit or the mortgage instalments or even general housekeeping expenses is a circumstance from which the common intention that he or she should have a beneficial interest in the property which is registered in the name of the other spouse can be inferred. This is clear from the speech of Lord Diplock in Gissing V. Gissing [1971] A.C. 886 cited above : see also Grant V. Edwards [1986] 1 Ch. 638, C.A. at p. 654F to 655G per Sir Nicolas Browne-Wilkinson V.-C.

45. Such an inference, of course, is only to be drawn if there is no direct evidence of intention. But where the evidence relied on is substantial direct contribution, the drawing of the inference, though not a matter of course, is readily justifiable and often accepted by the courts. This is made clear by Lord Bridge in the most recent case of Lloyd's Bank Plc. V. Rosset [1991] 1 A.C. 107, H.L. at page 132E :-

"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 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 onthe agreement in order to give rise to a constructive trust or a 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."

46. The principles to be applied are the same whether or not the parties are married see Gordon V. Douce [1983] 1 W.L.R. 563, C.A. at p. 565F-566A per Fox L.J.,

47. But the fact that the parties are not married, may well be a pointer that their respective independent separate interests should be recognised. In Bernard V. Josephs [1982] 1 Ch. 391, C.A., Griffiths L.J. said at p. 402E :-

"But here I would like to sound a note of caution. Most of the decided cases have been dealing with married people. The legal principles to be applied are the same whether the dispute is between married or unmarried couples, but the nature of the relationship between the parties is a very important factor when considering what inferences should be drawn from the way they have conducted their affairs. There are many reasons why a man and a woman may decide to live together without marrying, and one of them is that each values his independence and does not wish to make the commitment of marriage; in such a case it will be misleading to make the same assumptions and to draw the same inferences from their behaviour as in the case of a married couple. The judge must look most carefully at the nature of the relationship, and only if satisfied that it was intended to involve the same degree of commitment as marriage will it be legitimate to regard them as no different from a married couple."

48. This is, of course, a case where there was no express agreement as to the respective spouses' beneficial entitlement in the Premises. Miss Cruden referred me to a passage in Cowcher V. Cowcher [1972] 1 W.L.R. 425, at p. 432D where Bagnall J. said :-

"So much for the formation of the trust. As to its continuance there can be no doubt that the trust, and the equitable interests arising under it, cannot be changed except with the consent of all interested parties, and that such a change must involve a disposition of all or part of an equitable interest by one party to another see Grey V. Inland. Revenue Commissioners (1960] A.C. 1. By section 53(1)(c) of the Law of Property Act 1925 such a disposition must be in writing; and this requirement applies to a disposition of an equitable interest arising under a resulting trust : see Oughtred V. Inland Reveue Commissioners [1960] A.C. .206. In spite of this a parole agreement for valuable consideration to vary the trusts, of which equity would grant specific performance, would be as valid as an assignment in writing; for it would operate as an agreement for sale of an equitable interest upon which the vendor would become a trustee for the purchaser subject only to the payment of the consideration. In my opinion, such an agreement, having terms of sufficient certainty, could be implied from conduct only in the most exceptional circumstances. In particular, the mere payment by one beneficial owner of a mortgage instalment properly payable by the other could not alter the beneficial interests or, in my view, imply an agreement to alter those interests."

49. Relying on this passage Miss Cruden seeks to argue that the inference that the Defendant should have a beneficial interest in the Premises could not or should not be drawn from the fact of contribution alone. Bagnall J. in the passage cited by Miss Cruden was dealing with a variation of a trust already established. Here, we are concerned with the ascertainment of the spouses' intention where there was no express declaration or agreement as regards their respective beneficial entitlement, if any, in the Premises. In any event, I find the passage read in the sense relied on by Miss Cruden to be wholly incompatible with the various authorities I have referred to above. I would prefer those authorities to Cowcher v. Cowcher.

50. Finally, it will appear from the authorities that where there is evidence to show that there was a common intention between the spouses that the spouse making the contribution should have a share in the property, it must follow that any presumption of advancement is hence rebutted. On the other hand, if there is no evidence of common intention, objectively ascertained or otherwise, then in some cases, the presumption of advancement will come into play. The key to the resolution of disputes such as the present one is therefore to identify the common intention of the parties by reference to the evidence.

Direct Evidence of Intention

51. Bearing in mind these principles I approach the evidence with care with a view to first see if there is any direct evidence of intention and only if finding none that I should consider whether the circumstances are such that I should draw an inference of a common intention that the Defendant should have a beneficial interest in the Premises from his contributions towards the purchase,of the same.

52. I have the direct evidence of the Defendant that he did not intend the monthly mortgage payments to be gifts to the Deceased but simply a discharge of his responsibility as a man of the house. I have already said this is evidence which I accept.

53. There is the further evidence that the Defendant began to assume the responsibility of paying the monthly mortgage instalments a few months after he began cohabiting with the Deceased. ^The Defendant himself put the approximate date as being February or March 1979. The brother of the Deceased gave evidence to the effect that the Defendant began living with the Deceased about one year before the Marriage, that is, in 1980. The sister of the Deceased put the time as about one and a half year before the Marriage. I prefer the evidence of the Defendant. It is clear from the evidence of all three witnesses that the Defendant had been living with the Deceased for some considerable time before the Marriage. The Defendant has the best reasons to remember more accurately the period of cohabitation with the Deceased. He is the one with the most immediate concern.

54. I am aware that in the Re-Amended Defence and Counterclaim, the Defendant only claimed to have made mortgage payments since 20th December 1981. His claim, if found by this Court will be limited by his own pleadings but there is no reason why I must ignore his evidence that he in fact began paying the mortgage instalments before the Marriage. These are substantial payments over the years. There is nothing to suggest the nature or intent of these payments ever changed after the Marriage. I have in mind the note of caution sounded by Griffiths L.J. in Bernard V. Josephs [1982] 1 Ch. 391, C.A. at p. 402E. Here we have a working man and a working woman living together, possibly before deciding whether they were suited to each other as man and wife. There is no evidence to show that these payments were loans or reimbursements as Miss Cruden so boldly suggests. In my judgment, the evidence clearly shows that the Defendant never intended to make a gift of these payments to the Deceased.

55. As to the redemption money, I think the position beyond argument. The corroborated evidence is that the Deceased wished to convey her interest in the Premises to the Defendant as a gift. She wanted the Defendant to discharge the Mortgage first so that the gift could be completed. There is no conceivable reason why the Defendant in these circumstances should make a gift of the redemption money to the Deceased when he knew as was the fact that she had cancer and was dying and that she was to convey the Premises to him by way of a gift in any event.

56. In my judgment, there is direct evidence of intention that the contributions made by the Defendant both in relation to the mortgage payments and the redemption money were not intended as gifts. If the presumption of advancement is applicable at all, which I seriously doubt, it is rebutted by the evidence. The common intention of the Defendant and the Deceased must be that the Defendant should have a share in the beneficial interest of the Premises. This is further confirmed by the evidence of the Defendant when he said in re-examination :-

"when my wife was still alive, she asked me to pay the instalements and she did not want me to move out of the house."

57. This suggests that the Deceased intended that the Defendant should have an interest in the Premises so that he could regard it as his home too.

Inference of Common Intention

58. If I were wrong in finding that there was direct evidence of intention that the Defendant should have an interest in the Premises, I would still have found for the Defendant on the basis that an inference of common intention to the same effect could and should be drawn in. this case from the circumstances under which substantial payments were made by the Defendant. The Defendant and the Deceased were not legally married and there is nothing to rebut the inference that the principle of resulting trust should operate. As a matter of law, I accept the principle laid down by Lord, Diplock in' Gissing V. Gissing [1971] A.C. 886, H.L. and Lord Bridge in Lloyd's Bank Plc. V. Rosset [1991] 1 A.C. 107, H.L. that substantial direct contribution alone, in the absence of evidence to the contrary, is sufficient to found a case of resulting trust in these circumstances.

Consequential Orders

59. It follows from my finding above that the Defendant do have a beneficial interest in the Premises and as a co-owner must be entitled to live in the Premises.The Plaintiffs' claim for possession and mesne profits must therefore be dismissed.

60. As for the Defendant's Counterclaim, I shall make an Order in terms of paragraphs (1) and (2) of the prayer for reliefs in the Counterclaim. I make no Order as regards paragraphs (3) and (4) of the same.

61. Although there is no specific claim that the extent of the Defendant's interest in the Premises should be ascertained, both parties have addressed me on this point. I also regard as important for the future conduct of the parties to decide this question. I therefore shall attempt to determine on the evidence the extent of the Defendant's interest in the Premises.

62. I start on the premise that the pleaded case of the Defendant is that he began paying the monthly mortgage instalments in December 1981 at a monthly sum of $1,864.90. The Land Registry records (at pages 33 to 36 of the Plaintiff's bundle) show that the Premises were purchased on 30th April 1976 at a price of $195,000 with a mortgage sum of $136,500. Obviously, the Deceased had paid for the deposit of $58,500 herself. She also paid the monthly mortgage instalments thereafter until the Defendant assumed the payment thereof.

63. The Bank officer told me that after the initial three years, the capital repayment was $24,000. I do not have direct evidence as to what capital sum should be attributed to the Deceased assuming the Defendant began to take up the monthly repayments in December 1981. Doing the best I can and in a way fair and just to the parties, I calculate from the evidence of the Bank officer that up to December 1981, the Deceased would have repaid a sum of about $44,667 by way of capital over a period of 67 months assuming there was no movement in interest rates. The total capital contribution by the Deceased would be rounded down to $103,000 or 52.9% of the total purchase price. The balance of the purchase price was then all paid for by the Defendant. His contributions to the Premises would therefore amount to 47.1% of the total purchase price.

64. Bearing in mind these percentages and the evidence that the Deceased over the years had always intended what was hers to be the Defendant's and vice versa it is not unreasonable for me to hold that the Defendant should have a half share in the Premises and I so hold.

65. I make an Order nisi of costs against the Plaintiffs and I shall hear the parties as to any consequential orders, if necessary.

Representation:

Appearances :

Miss Lisa Jane Cruden instructed by Messrs. K.M. Lai & Co. for the Piaintiffs

Mr. Louis Chan instructed by Messrs. So & Karbhari for the Defendant