Li Yuk Lan v. Li Yau Choi

HCA009230/1981

BETWEEN

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Coram: Hon. Liu J.

Dates of Hearing: 15 - 17, 20 - 24, 27 - 29 February 1984

Date of Delivery of Judgment: 29 February 1984

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JUDGMENT

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1. This action has taken some 11 days. It is purely factual, somewhat involved but with little complexity.

2. This is a claim by the plaintiff against the defendant in respect to, inter alia, premises known as Flat H2 in Block 6, Nam Fung Shun Cheun. This action is primarily concerned with the proprietary right to these premises. There is also a claim against the defendant for outstanding balance of loans allegedly made by the plaintiff  to the defendant. In his counterclaim, the defendant seeks to recover from the plaintiff a considerable sum of money allegedly paid by him to the plaintiff for her accommodation. As a result of these disputes between the plaintiff and the defendant who are sister and brother, the family is divided with the plaintiff on one side and virtually, most of the family members involved on the other.

3. This is by no means a pleasant case, unpleasant because of the allegations made by such immediate family members, one against the other. The parents of the parties have taken side with the defendant. They have given evidence in court in support of the defence of the defendant and his counterclaim.

4. The facts can be described as multifarious and perhaps even complicated but without too much difficulty, particularly when they are almost wholly factual. Therefore, to sum up: the plaintiff claims against the defendant for the unpaid balance of alleged loans in the sum of $35,800 together with two declarations to the effect that the defendant is, as registered owner of the suit premises, the plaintiff's trustee and the plaintiff is beneficially entitled to the proceeds of these premises. There has been no suggestion that any interest in or of Flat H2 has been disposed of. Thus, a complementary declaration as regards the plaintiff's alleged beneficial entitlement thereto would suffice. In his counterclaim, the defendant prays for the payment by the plaintiff of $68,600.

5. With that preamble, I can turn to the historical background of the disputes from which the controversies evolved. Far back in 1976, when the plaintiff was collecting her rent of her King's Road premises in the neighbourhood, her curiosity was drawn to a queue for the purchase of flats in a building then to be constructed or under construction. She found everything to her liking, and consequently a deposit of $500 was made. According to the plaintiff, she was then not on good terms with her husband who was said to be fond of gambling. Therefore, the plaintiff was desirous of concealing from her husband the acquisition of yet another landed property. Having paid the $500 deposit, she visited Sau Mau Ping, Kowloon to discuss this matter with her mother. The plaintiff had intended to have her mother serve as the registered owner, in name only, for her acquisition. The mother was herself an occupant on record for the Sau Mau Ping flat, and she suggested the use of the name of the younger brother. According to the plaintiff, the younger brother was consulted and he consented to act as the nominal owner of the property to be acquired on the register. The defendant, so ran the plaintiff's evidence, was told in no uncertain terms and agreed that whenever the plaintiff desired a re-transfer, he would act accordingly. The plaintiff, therefore, claimed to have reached a consensus among the three of them viz. herself, the defendant and her mother. Those discussions culminating in the arrangement and agreement between the plaintiff and the defendant formed the basis of the plaintiff's claim of an express trust.

6. The plaintiff's case is: On that understanding, she went with the defendant back to the developer to whom a further $1,500 was paid. She had no particular future plan for this flat. It was only when the building of which the suit premises form part was near completion that it was proposed by the defendant to have the flat used for storage as well as residence of the parents and himself. The plaintiff readily accepted that proposal as satisfactory, particularly when the mother of the parties was to look after her son.

7. I would return to the payment of the purchase price of the suit premises. The initial deposit was in all $2,000 comprising the $500 paid by the plaintiff on her own visit to the developer and $1,500 paid by the plaintiff in the company of the defendant who had agreed to allow his name to be used. When the "Instruction for Sale" was signed, the plaintiff had to and did pay 10% of the purchase price in the sum of $14,600. Since $2,000 deposit had been paid, the plaintiff merely paid $12,600 plus costs in the sum of $409. Thus, a total of $13,009 was paid by the plaintiff. The plaintiff testified that this sum of $13,009 seemed to have been paid by awing Lung Bank cashier order She had made enquiry from the Wing Lung Bank but to no avail. Another 10% of the purchase price in the sum of $14,600 was to be paid to the developer by 10 instalments of $1,460 each payable on the first day of each  month commencing from the 1st July 1976. The remainder 80% of the purchase price in the sum of $116,800 was to be paid upon the issuance of the Occupation Permit. According to the plaintiff, she presented herself at the office of the developer with her brother, the defendant, for the payment of the first two monthly instalments and thereafter, from time to time, she gave sums ranging from $3,000 to $4,000 to her brother for the payment of the remaining 8 instalments of this further 10% of the purchase price on her behalf. When the building was completed, payment of most the 80% balance was secured by a $100,000 mortgage. Consequently, the plaintiff explained that she was only required to pay $18,036 comprising $16,800 then due together with $1,236, being facilities deposits and other expenses. The plaintiff allegedly also paid $5,069 costs.

8. The $100,000 mortgage required protracted periodical payments of a $1,321.50 monthly instalment. When the defendant allegedly proposed to move into the suit premises, it was said that he offered to pay these mortgage payments. That seemed reasonable as obviously the plaintiff would stand to have to forgo rental. The defendant had paid 42 instalments mostly, if net all, in arrear. The premises were redeemed for $94,166.45 in September 1981 by a Re-Assignment which bears a date of the 7th October. The plaintiff claimed to have herself paid also the last 4 instalments before redemption. It is common ground that the   redemption money and expenses were met by a cheque of the plaintiff's. Consequently, so alleged the plaintiff, all except for 42 monthly mortgage instalments and presumably interests for overdue payments were paid by money of the plaintiff. There does not seem to be much dispute as to the calculation: On the plaintiff's evidence the sum total allegedly coming from her was in the region of $152,166.45. It is even admitted that in meeting the mortgage instalments, the defendant did pay out $55,503 although the reason for and purpose of these payments were hotly contested.

9. Turning to the defendant's version: The mother of the parties allegedly gave $2,000 to the plaintiff for sccuting for a suitable flat. The Sau Mau Ping Estate flat was said to be too small to accommodate other family members on visit, inclusive of the married daughters and their offsprings. Allegedly with these instructions and $2,000 in hand, the plaintiff proceeded to search for a family residence which, according to the parents of the parties, was intended to be a gift to the defendant in return for his agreement to meet the monthly instalments. Having located suitable premises, so it was alleged on behalf of the defendant, the mother handed over to the plaintiff another 3 sums, $10,000, $5,000 and $15,000 respectively. From time to time, the mother continued to keep the plaintiff in fund, those further payments were allegedly recorded in, what has been described, a little red book which both parents maintained mysteriously disappeared shortly before the 1981 redemption. The father of the parties even felt justified in accusing the plaintiff of taking advantage of a 2 hours' rest in the parents' bedroom for perpetrating a theft of this little red book. Both parents maintained that at least $28,000 had been so passed over by the mother to the plaintiff. Pausing here to take account of these 5 payments, $2,000, $10,000, $5,000, $15,000 and some $28,000, that would yield a total of $60,000 and over. Both parents of the plaintiff and the defendant would have the court believe that in times of difficulty in meeting the mortgage monthly instalments he was free to approach his mother.

10. Came late 1981, the defendant was in apparent financial difficulty, and repossession was threatened by the mortgagee. It was thought best between the plaintiff and her mother that the premises should be re-deemed. Again the plaintiff and the defendant disagreed on the alleged arrangement for vesting of the proprietary interest and financing for the redemption. I will first deal with the financing side of such disagreement. For the defendant, it was claimed that his mother put up another sum of $70,000. $40,000 odd was said to have come from sales to goldsmiths of jewellery and gold ornaments with the other $30,000 from his mother's 15,000 business capital furnished by the father and an additional $15,000 cash from the father. A total of $130,000 had allegedly been invested by the parents through the mother: The court was told that the first 4 payments of $2,000, $10,000, $5,000 and $15,000 went towards payments of the deposit and initial payments for the purchase. There was left at the disposal of the mother some $28,000 credit as recorded in the little red book. Together with the sum of $70,000 assembled from family resources, as alleged, it yielded an available total sum of over $130,000. As for the plaintiff, save for 42 mortgage instalments, she claimed to have paid for everything including the redemption. The 1981 redemption money as paid by the plaintiff's cheque was $94,166.45, and as far as the mother is concerned, although her daughter, the plaintiff, had allegedly undertook to lay out money for any deficiency in the proposed redemption, the whole   of the consideration for this 1981 exercise had been accounted for in her $70,000 and some $28,000 totalling over $98,000.

11. It is just as convenient here to embark on the plaintiff's allegation of loans made to the defendant. All in all, so the plaintiff maintained, some $98,800 had, from time to time, been given to the defendant. She listed out in her evidence each and every of these occasions. I have summed up the total which reached over $98,000. I do not propose to repeat the particulars given in her evidence. The plaintiff gave credit to the defendant in the sum of $63,000 as part repayment of these over $98,800 loans and, therefore, she now claims against the defendant for $35,800.

12. The plaintiff also told the court that in June 1979, she was good enough to set up an overdraft facility for the benefit of the defendant. Initially, the ceiling of the overdraft facility was $50,000, but it was subsequently raised to $100,000 by an arrangement for a further pledging of another of her time fixed deposit receipts with the North Point Branch of the Chekiang First Bank. According to the bank, up to the 25th January 1984, the outstanding overdraft due including interests accrued amounted to $55,864.35. The plaintiff explained to the court that at the time when she commenced this action, she knew not the precise indebtedness of the defendant in this overdraft; nor had she then been pressed by the bank for payment as a guarantor. As a matter of fact, the bank left this matter virtually in abeyance until very recently when a formal notification was served on the 19th January 1984. For these reasons, it was said that her involvement with the defendant's overdraft was not made part of the issues in this action for adjudication.

13. On the loans and this overdraft, the defendant claimed that before his O.D. account was set up, he had repaid all outstanding loans, whatever they were, to the plaintiff. After the opening of his overdraft account, so the defendant maintained, from time to time he paid the  plaintiff sums of money. He explained that the plaintiff would not have been able to make use of any of her time fixed deposits during the subsistence of the overdraft facility, particularly when the overdraft facility had exceeded the limit of $100,000. The deposits of the plaintiff were time deposits, and it has never been suggested that the limit of the overdraft facility had at any time been reduced, thus releasing, in effect, with consent of the bank, part of such guarantee security. In the circumstances of this case as known, it did not seem to be wholly without justification for sums of money to have to be paid directly by the defendant to the plaintiff for meeting her imminent needs if, in fact, these sums of money were paid as alleged. The court was also told that payments to the plaintiff by the defendant was recorded in "P1" by the father. The father gave evidence that payments by the defendant to the plaintiff came to $60,000 odd, but the father admitted that, the entries in "D1" were not all correct; in particular he was not able to explain the grand total of $126,650. None of the entries in "D1" had been countersigned by the plaintiff. He sought to take shelter behind loss of memory due to alleged muddle-headedness and age. The father accused the plaintiff of having torn off some pages containing entries for some $20,000 with the result that now the little black book showed only $40,000. Of the $68,600 in the defendant's counterclaim, the alleged documentary evidence can only manage $60,000 odd.

14. The defendant further alleged that when the plaintiff claimed to be in need of some $50,000, she requested the defendant to make arrangement for the release of at least one of her time fixed deposits. The mother of the defendant was, thereupon, approached. She obtained the loan from the eldest daughter in the sum of $50,000. It was duly paid into the overdraft account of the defendant, but according to the defendant, the plaintiff still complained that the payment was inadequate as it would only enable her to withdraw some $40,000 instead of $50,000. Obligingly, at the request of the defendant the mother obtained another loan from the eldest sister in the sum of $10,000 which was in turn paid into the defendant's overdraft account. That seemed to have accomplished the wish of the plaintiff who, consequently, withdrew $50,000 out of her time fixed deposits. According to the defendant, by the time the plaintiff requested his assistance in arranging for the release of $50,000 to her, he had, with his $68,600, in fact, over-paid the plaintiff. The defendant elaborated thus: the bank's indebtedness in the overdraft account was then merely some $40,000 odd. Consequently, the plaintiff had, in fact, been over-paid some $20,000. This is a sum which he, the defendant, would seek to recover from the plaintiff in time to come. The defendant further explained that the present indebtedness up to the 25th of last month in the sum of $55,864.35 or perhaps $55,592.91 in the bank's notice of the 19th January accumulated from the then $40,000 odd  plus accrued interests due to non-payment by the plaintiff of the outstanding loan in the overdraft account, for which he could not therefore be responsible. In conclusion, the defendant denied, vis-a-vis the plaintiff and himself, any liability for paying this remaining outstanding indebtedness to the bank in his overdraft facility.

15. It may well be of some interest to note that the alleged total outlay of the mother in the sum of $130,000 odd plus this further $20,000 allegedly owing to the defendant by the plaintiff together come mathematically very close to what was claimed to be the entire expenditure of the plaintiff for the purchase of this flat in the sum of $152,166.45. This is, as far as this court is concerned, no more than a sheer coincidence, and no reliance, therefore, should be placed on such computation and comparison.

16. As a matter of fact, the plaintiff did not withdraw $50,000 but only $30,000.

17. Therefore, on the one hand, we have an alleged express trust raised by the plaintiff and alternatively, on account of her real contribution in the sum of $152,166.45 as against the defendant's payment of $55,503, the plaintiff claims a proportionate resulting trust in favour of herself with the defendant as trustee. On the other hand, it is the defendant's case that there was no question of any trust, express or implied, by reason of the parents' and the defendant's alleged payment of almost the entire outlay for the purchase of the suit premises save for perhaps a sum of some $20,000. In addition to his alleged $20,000 overpayment to the plaintiff, the defendant also claimed to have paid $4,000 to her on the same evening of the site visit as well as the ten instalments amounting to $14,600. In the result, the allegation was that the defendant and his parents had accounted for virtually every payment made in respect to the purchase.

18. I should now examine the respective financial positions of the plaintiff and the defendant. In 1971, the plaintiff acquired the King's Road flat for $30,000 which was paid by instalments. Also in 1971, the plaintiff married her husband who is now a police officer as they reside in police quarters. In 1976, the plaintiff was in partnership running a snack shop on the ground floor of 309 Des Voeux Road, Central, which gave her a return of some $3,000 per month. In 1978, the plaintiff purchased a flat in Chi Foo Far Yuen for $180,000 which was paid in full in stages over a period of half a year by the time of its completion. In 1979, the plaintiff was more ambitious in her acquisition of a flat in the Aberdeen Centre worth some $400,000 to be paid at the rate of $7,000 per month over a period of 5 years. The purchase price for the flat in Aberdeen Centre should be about to be wholly satisfied by virtue of the time lapse since 1979. Therefore, both before and after the 1976 purchase of the present suit premises by the plaintiff, she was comfortably financed. By any standard, she is a woman of means, and, in fact, it  was conceded by the father that the plaintiff "had money and property". There can be no obstacle, therefore, to the plaintiff being in a position to commit herself to the 1976 purchase of the suit premises.

19. Les us turn to the other side of the coin. The plaintiff's parents are 74 and 60 respectively, They have allegedly been in the jade-ware hawking business for, as far as the father is concerned 20/30 years and the mother 10/20 years. They hawked in Soy Street and other locations, keeping their own separate mobile stalls in the form of a carrier case or bag for displaying their merchandise at various spots in the apporpriate districts. The mother admitted to have to look after the plaintiff's son in the morning, and she told us that the father did the chores, in the afternoon. Despite, their evidence of their commitment to the suit premises, we know at least that the mother, in order to accommodate her son in his overdraft account, had allegedly to borrow  50,000 and a further $10,000 from the eldest sister who was not called. It is difficult to accept that they are people of  sufficient means to be able to undertake  a substantial investment such as that entered into in 1976 for the purchase of the suit premises.

20. The brother hardly left school in 1976 and assisted his sister for a period in the same year, the duration of which was in, dispute. In addition to his duties in the snack shop, he took charge of outdoor deliveries. Including tips, he managed to earn only $600 to $900 a month. In 1977, he decided to and did branch out on his own. He ran the Seven Sea Sporting Goods Company financially assisted by his sister, the plaintiff and allegedly other family members. In 1978, he ran an additional small shop-front of some 100 square feet. Both business brought the defendant little comfort. Financially, he was running his businesses at a loss. He denied in his Defence a loan of $14,800 from the plaintiff. In evidence, he admitted such a loan in the form of a Cheque No. 7664 dated 21st December 1979. He attempted to excuse himself on account of his faulty memory. Besides, so he explained, the cheque he had earlier been shown in relation to the $14,800 loan was one which was a dishonoured cheque of an entity by the name of Olympia.   He denied having seen "P5", but he soon repented in respect to at least one of its pages and possibly two. The evidence of the Assistant Manager of the Chekiang First Bank was hardly contested. According to the Assistant manager, it is impossible for holder of an account, for which the page admitted by the defendant was a bank statement, to be different from the accountholder of the other bank statements in exhibit "P5". The Assistant Manager further confirmed that all the bank statements in "P5"related to one single bank account No, 292. The defendant's Current Account with the Hung Hom Branch of the Chekiang First Bank, "P4" was opened on the 22nd November 1979 but was arbitrarily closed by the bank on the 16th October 1981 by reason of, inter alia, his inability to meet 30 to 40 of his cheques. The plaintiff further told the court that from time to time when the defendant had to be pressed to repay loans given by her, on occasions he would give cheques to the plaintiff as security just for saving her the trouble of having to demand payment from the defendant. The plaintiff explained That there were 7 cheque, in all given in these circumstances, 4 of which had been repaid by the defendant and returned. Another 3 were outstanding totalling some $29,000. As far as the defendant is concerned, he claimed that these 7 and other cheques given by himself to the plaintiff in 1980/1981 were to enable the plaintiff to have ready cash when her time fixed deposits had been surrendered to and were still being kept by the bank for guaranteeing the overdraft facility of the defendant. The defendant told the court that these 7 and presumably other cheques were included in his counterclaim of $68,600. The defendant claimed that all cheques had been repaid and that the plaintiff had promised to destroy these 3 cheques. It is worthy of note that whilst the defendant and his mother explained that these direct payments allegedly paid to the plaintiff at the time when her time fixed deposits were tied down as security for the defendant's overdraft account was through the mother with moneys belonging to the defendant, the father, in his explanation of the little black book "D1", would have the court believe that he personally handed the plaintiff money left by the defendant with his mother who in turn had passed it to him for handing over to the plaintiff. Instead of adhering to the defendant's version that these moneys were paid to the plaintiff direct for her personal imminent use, the father testified that these moneys were paid to the plaintiff for the purpose of paying into the bank. The father left me with an impression that he was determined to repeat some fixed notion of facts, and at times counsel had difficulty in leading him through his evidence.

21. I have come to the conclusion that the plaintiff was financially capable of meeting the commitments undertaken in the purchase of the flat in this action in 1976 but that the defendant and his parents were not likely to be able to finance it.

22. I turn next to some other facets of veracity before I ultimately come to determine the factual issues between the plaintiff and the defendant. The defendant and his parents were vague on their savings, earnings (if any), and the market price and quantity of gold allegedly disposed of in 1981 for the proposed redemption.

23. The defendant himself did not perform well under cross-examination. Whilst both parents claimed to have purchased the flat for him, the defendant claimed to be unaware of his father having joined in the purchase of this flat for him as a gift. The defendant testified that the flat was purchased by his mother for him to own and to pay for the instalments; yet he claimed to become sure of his interest only when his mother allegedly paid the plaintiff $10,000. Under cross-examination, he told the court hat he did not really consider his mother as having made a gift of the flat to him. These strained explanations were probably designed to preserve some consistency in the defendant's acquiescence in the use of his sister name for the initial purchase documents and his consent to the re-transfer of what was alleged to be a perfected gift to his mother. On being asked why he did not enquire of the plaintiff on site visit as to why both of their names appeared on the "Instruction for Sale" and whose flat it was to be, his reply was: "At that time, it was useless for me to ask her about it because I had not so much money to purchase the flat. She had purchased the flat and also had money at that time.". On the evidence of the parents, it is unlikely that the defendant could have been left, at any time, to surmise whether the plaintiff was acquiring the flat for herself.

24. Due to what  was claimed to be erroneous and inaccurate particulars supplied by his legal advisers, the defendant was driven to admit on at least one aspect that "everything said in the past" was incorrect.

25. In cross-examination, the defendant started out quite adamant that payments for the flat were made by the plaintiff's cheques. There can be no doubt in my mind that the bank statements in ''P5'' were from the defendant's account from which these payments in question were in fact satisfied or met by its cheques. It is bewildering why the defendant should admit one bank statement of this account and deny the others, but again, there are many facets in this case which are not only beyond apprehension but from time to time, far exceeded the patient expectation of counsel. Even counsel for the defendant openly admitted that nothing short of speculation could give a possibly sensible answer to the involved manipulations.

26. A sum of $18,036 allegedly paid by the plaintiff's cheque upon the completion of the suit premises also came out of this defendant's account. In his Further and Better Particulars, it was suggested that the defendant contributed $1,000 to $2,000 out of this $18,036. In his evidence in chief, he solemnly told the court that he himself contributed $35,000 out of this $18,036. In cross- exmaination, he explained that his mother laid out the sum of $15,000 and the plaintiff met the balance. I need not comment that it seems to be the case of the defence now that hardly any payment for the purchase of this flat was made out of the plaintiff's pocket. Should there be any shortfall after the alleged outlay by the parents and his alleged contributions, the defendant, so he seemed to claim, would still have his alleged $20,000 debt from the plaintiff to fall back on.

27. On the same account, "P5", it is inconceivable why the mother should have elected to pay the plaintiff cash, then for the plaintiff to transfer it over the defendant and ultimately for the defendant to draw out a cheque to meet contractual obligations arising out of this 1976 purchase of the suit premises. Even without this account of the defendant, there would appear to be no necessity for this intricate manoeuvre viz. cash to be passed from the mother to the plaintiff who would, in turn, cause the defendant to be financially backed so as to enable him to pay ultimately for this 1976 purchase.

28. As for the plaintiff, her case was shifted. Initially, it was pleaded that the premises in question were agreed to be jointly purchased by the plaintiff and the defendant as a residence for the parents and the defendant. It has now been amended to a case of express trust and, alternatively, a resulting trust said to have arisen in the circumstances I have earlier outlined. The plaintiff had no key to the suit premises and the "Instruction for Sale", the deposit receipt for the $2,000, and the first and the second instalments were documents issued to as well the plaintiff as the defendant. It was argued on behalf of the defendant that his name would not have been included if he had not been true owner. On the other hand, I think, the reverse is more true for the plaintiff. Her name was included in these documents, and if she had had no interest in the suit premises, the inclusion of her name would have been objected to. The defendant alleged that he himself thought the plaintiff was the purchaser. Quite logically, the inclusion of the name of the defendant in these documents can reasonably be explained by the plaintiff's evidence of express trust.

29. Criticism was also levelled at the plaintiff that if she had been the owner of the suit premises, it would not have been reasonable for her to make no future plan at all; even the occupation of the suit premises by the parents and the defendant was for a period unspecified. None of these indicia, so elegantly advanced by counsel for the defendant, seems to be conclusive; nor, indeed, does any of them carry too much weight.

30. As far as the plaintiff is concerned, being in possession of much assets in the form of bank deposits and landed properties, her explanation of her endeavours in concealing the purchase of the suit  premises in 1976 from her husband was not quite convincing. There was no other suggestion that the use of her name for the purchase of the suit premises would encounter any other predicament. This is one of the aspects of this case which I must confess that I cannot apply to it a logical analysis. The plaintiff's claim to incomes derived from making patterns and head-dress clips at home and working in wig factories were equally unsatisfactory. Whatever embarrassment she might have in the explanation of her means, she was, without doubt, a woman of means.

31. Coming back to the alleged express trust, the plaintiff told the court that the defendant, in effect, agreed to re-transfer the suit premises upon demand. As I have pointed out, there was no very precise evidence on occupational rights, if any, of the defendant and his parents to these premises. The prayer in the Re-amended Statement of Claim is confined to two general declarations of beneficial right. There is no prayer for any consequential relief. The court is not, therefore, concerned with whether these premises are or the enjoyment of which is subject to any incumbrance in the form of a licence or other occupational right or privilege. What is clear, I find, is that the defendant knew, so did his mother, that these were the plaintiff's property and that his name was to be used as registered owner for convenience of the plaintiff. There was no allegation of any outright gift, inter vivos, by the plaintiff in favour of the defendant. The defence case is that the defendant became registered and beneficial owner by virtue of an intended gift from his parents, which was perfected. The plaintiff, I find, did pay all but 42 mortgage instalments. The mortgage instalments, I further find, were paid by the defendant as a result of arrangement for using the premises as residence. Consequently, those mortgage payments, I find, were not made by the defendant with an intent to acquire or for the acquisition of any beneficial or proprietary right or title to the suit premises or any part thereof. In the solicitors' office, an incident which I shall come to in a moment or two, the plaintiff asked of her mother, in effect, "Sign it back to me, mother. Sign it back to me. Bearing in mind that the premises were then worth some $400,000 and that 20% as well as some 42 mortgage instalments had been paid, upon realisation without redemption, the premises in question would have yielded a substantial and handsome profit to the defendant and the parents if they had had any real claim to the suit premises. There would have been little warrant or necessity for any redemption except perhaps that the tempation of a huge profit in such disposition would cause disruption to the family residence. If the plaintiff had not been the beneficial owner of the suit premises, it would have been most extraordinary for her to arrange for the interest of the flat to revert back to her or make such an unreasonable and groundless demand to the mother in the offices of the solicitors. I have not overlooked the allegation of the parents that they reacted to the request of the plaintiff by stating the obvious, that is to say, "You are not the owner of the premises. Why should it be transferred to you?". But the significance lies not in this disputed response but in the very fact that the plaintiff did make what would otherwise have been an absurd request if she had not had the beneficial interest.

32. It was the plaintiff's cheque which paid for the $94,166.45 in the 1981 redemption. Whilst the defendant and his parents were less than persuasive in accounting for the redemption money, the plaintiff had her $80,000 mortgage of the Chi Foo Fa Yuen premises supplemented by her $10,000 cash. I have also referred to the alleged devious manipulation of passing cash over to the plaintiff and for a cheque of hers to be issued in the 1981 proposed redemption. It was explained that the plaintiff was well versed with business, speculation and investment. The defendant had by then run, though not very successfully, two businesses. Issuing cheque, approaching a firm of solicitors for a redemption and transfer to his mother can hardly be said to be beyond his capability.

33. Lastly, and certainly not least, one would ask oneself what was the motive of the plaintiff. She is well-to-do and the registered owner of three other landed properties. There was no suggestion that she was in any difficulty. She seemed to be a woman to whom cash was available in abundance. She lived in police married quarters, and there was no evidence of any eviction. She displayed no real sign of viciousness against members of her family. In her, I detect grave disappointment.

34. I come finally to the 1981 redemption. By reason of the anxiety which I have set out, so the plaintiff claimed, she and her mother joined force in returning the interest in the suit premises to its true owner. At the beginning, the plaintiff had no knowledge of the defendant's arrears. On account of arrears, there was also the possibility of the payment of an extra instalment if the suit premises were not to be redeemed. The plaintiff and her mother were said to have decided not to forewarn the defendant of the proposed redemption for fear that he might be tempted to dispose of the suit premises in his capacity of registered owner. Therefore, according to the plaintiff, she and her mother went to a solicitors' firm some time in September and gave instructions for redemption as well as a transfer to the mother and a reversion of interest to herself. According to Mr. Chan, the clerk of the solicitors firm, a file was opened on the 16th September. Mr. Chan could not remember if the plaintiff was alone, but he recalled that the identity card of the defendant's mother was available. Coming back to the evidence of the plaintiff, she paid the redemption money on, as it now appears, the 19th September 1981. On or about the 30th September, the plaintiff and the defendant together with their parents attended the office of the solicitors. That is common ground. Despite that, Mr. Chan was imprecise again in the sense that he told the court that the plaintiff was absent. Mr. Chan also took no notice of the father's presence. On this occasion, after protest, the defendant signed the transfer to his mother and at the same time gave a stern warning to his mother that the suit premises should not be transferred to the plaintiff or any other person as she would then be deceived. It was alleged by the defendant and his parents that he was pushed or driven away by the plaintiff, and he left the solicitors, office earlier. When the mother was requested by the plaintiff to sign a document, she fainted and the party left. The plaintiff maintained that her brother left with the family group. The document intended to be signed was a Declaration of Trust. The plaintiff and her parents all told the court that the further document was expected to be executed on the same day. Mr. Chan was again imprecise in testifying that the party had intended to have the Declaration of Trust executed only 2 or 3 days later. When the transfer of the defendant to his mother could be executed and held in escrow pending the signature of the mortgagee, there would appear to be no practical difficulty for the Declaration of Trust to be similarly executed. Mr. Chan, though imprecise at times, agreed with all witnesses that the proposed redemption was deliberately kept from the defendant in some sort of a conspiracy between the plaintiff and her mother. For whatever reason  the proposed redemption was kept from the defendant, there could have been no sensible explanation for the concealment if the defendant had been the true owner who had agreed to transfer the flat to his mother.

35. After the party left the office of the solicitors, the mother and the father and the plaintiff returned with her eldest sister in a few days. Mr. Chan made no reference to the eldest sister. The Declaration of Trust was interpreted, and the mother declined. On this occasion, the parents allegedly made accusations against the plaintiff. On the 5th October, the defendant and his mother returned to the office of the solicitors, and the transfer previously executed was cancelled. Mr. Chan again made no mention of the father.

36. Taking into consideration the case in its entirety and bearing in mind its various quite baffling aspects, there can be no doubt, in my view, that the plaintiff did pay all the purchase price except for the 42 mortgage instalments for the purchase of the suit premises. I also find that the plaintiff and her mother attended the solicitors' office on or about the 16th September giving instructions as the plaintiff has described.

37. Insofar as the plaintiff's case as testified to by her is in conflict with evidence given by the defendant and their parents, I have no hesitation in preferring and accepting the evidence of the plaintiff. The defendant and his parents did not strike me as impressive or reliable witnesses. I further find that the defendant well knew that his name was used for convenience and that he clearly understood the plaintiff to be the true owner and agreed to have the suit premises re-transferred to her upon demand. I also find that in the 1981 proposed redemption, the mother well knew that after redemption and transfer of the suit premises to her by her son, she was to sign another document in effect assuring the plaintiff of her proprietary interest.

38. What was related by the plaintiff and her parents as happening in the office of the solicitors and their reaction to it do not reflect well on them. The behaviour of the defendant and his parents was just too dramatic and seemed almost unreal. I should not speculate, but it was quite likely that the mother had deliberately waited after the plaintiff's payment of the redemption money to sabotage the proposed device for returning to her the interest in the suit premises.

39. The redemption money was paid on the 19th September 1981. The re-assignment bears the date of the 7th October 1981. The plaintiff was cross-examined as to why she took no step to put a halt to the completion of the redemption. However, we know not whether the Deed of Re-Assignment was, in fact, executed only as late as the 7th October 1981. The plaintiff was then pre-occupied with and distressed by the unexpected family opposition. She could perhaps be forgiven for not making enquiry into the possibility of countermanding her redemption instructions. Furthermore, there was no evidence that the Deed of Re-Assignment could, indeed, be stopped or stopped without the consent  of the defendant.

40. I do not accept the allegations made on behalf of the defendant that in addition to his 42 mortgage instalments paid during the residence of the parents and himself in the premises, the defendant or any of his parents has made any contribution to the purchase money of the suit premises. On the evidence, I also find that the plaintiff granted over $98,800 loans to the defendant and that only $63,000 has been repaid by the defendant leaving an outstanding balance due from the defendant to the plaintiff at least in the sum of $35,800. I reject as improbable the defendant's claim for $68,600, being loans allegedly made by him to the plaintiff.

41. In the case as presented, these are all the findings I need make. As there is no consequential relief claimed in the plaintiff's prayer, I need say no more. In the circumstances, it remains for me to order:

Representation:

Mr. Thomas Kwan instructed by Messrs. Foo & Li for the Plaintiff.

Mr. B.K. Ho instructed by Messrs. Hasting & Co. for the Defendant.