Mak Kin Kee v. Mak Pun Tai

DCCJ004886/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4886 OF 1969

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Coram: Morley-John, D.J.

Date of Judgment: 10 April 1970

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JUDGMENT

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1. This case is concerned with the property known as Flat D, Gillies Manson 27-37 Gillies Avenue, Kowloon. This property which I shall refer to hereafter as "the flat" was originally purchased in 1964, by one Mak Joy, the father of the plaintiff and the defendant. Mak Joy died intestate on the 11th June 1966 leaving as sole issue the plaintiff and the defendant. The defendant had been married long ago by Chinese Law and Custom, and according to such law and custom, upon her marriage she ceased to be a member of her own family and entered the family of her husband, and also under such law and custom she would not benefit from her father's estate upon an intestacy. After the death of Mak Joy letters of administration of his estate were granted to the plaintiff as only next of kin on 29th December 1967, and the flat then became vested in the plaintiff as administrator. By an assent dated 17th September 1968 executed by the plaintiff as sole surviving son and sole beneficiary and registered in the Land Office by Memorial No. 642990 the flat became vested in the plaintiff in his personal capacity.

2. The defendant who prior to her father's death had been living in the flat continued to live there, and rented out various cubicles to subtenants.

3. The plaintiff in his Statement of Claim has pleaded that since the death of his father he orally granted to the defendant a licence or permission to reside at the flat on condition that she would collect and account to the plaintiff the rents and profits of the other parts of the flat from the tenants. That the defendant has failed to account to him the said rents and profits and has failed to pay to him the amount she had collected from 1st January 1968 to 1st July 1969, amounting in all to $5890 which sum he claims together with an injunction to restrain the defendant from using the flat, and he also claims damages.

4. The defendant in her Statement of Defence denied that she resided in the flat by way of licence but she admitted that she collected the rents and profits of the other parts of the flat from the tenants and that she did account for the same to the plaintiff. The defendant annexed to her Statement of Defence an account of the monies received and paid by her to the plaintiff in connection with the flat, which accounts show a credit balance of $254.90 in favour of the plaintiff.

5. The defendant also pleaded that her late father had bought the flat for the joint benefit of the plaintiff and the defendant and that during his life time he had orally entrusted the plaintiff with the duty of dealing with the flat in accordance with her father's wishes after his death; that her father stated that after his death the flat would belong to both the plaintiff and the defendant in equal shares and expressly or impliedly expressed his desire that after his death the flat should be transferred by the administrator of his estate in equal shares to the defendant and the plaintiff and that the plaintiff should for this purpose regard himself as a trustee of the defendant's share in the premises when he became administrator. The defendant pleaded that the plaintiff became a trustee of the flat on the death of her late father under an implied of express trust by the father during his life time to arise on his death. That it was because the defendant owns a half share in the flat and that she believed that such half share would eventually be transferred to her that she resides in the flat. Alternatively the defendant pleaded that she occupied the flat by virtue of a service tenancy originally granted to her by her late father, and either expressly or impliedly acknowledged and continued by the plaintiff as administrator of her late father.

6. The defendant also counterclaimed that the Court declare that the trust referred to exists and that she is entitled to a half share in the flat and further that the flat be transferred in accordance with the terms of the trust to the plaintiff and defendant in equal shares. Alternatively that the Court find that the defendant is in occupation of the flat by virtue of a service tenancy which has not been properly terminated by the plaintiff, and that she is therefore entitled to possession of the flat until such tenancy is terminated. The defendant also claimed damages.

7. The plaintiff gave evidence concerning his father's purchase of the flat and his death on 11th June 1966. The plaintiff produced the letters of administration granted to him on 29th December, 1967 as the natural and lawful son and only next of kin (Ex.P1) and he also produced the Assent duly executed by himself and registered in the Land Office which vested the flat in himself as beneficial owner (Ex.P2).

8. The plaintiff stated that after his father had purchased the flat in 1964, the flat was occupied by his father, the plaintiff and his family and also the defendant. However the plaintiff stated that the defendant was not a welcome occupant of the flat and that his father objected to her living there. He said that he and his family with the exception of his elder daughter moved out of the flat some three months after his father's death in September 1966, but that the defendant remained in occupation. He stated that after his father's death the flat was divided into five cubicles, one of which was occupied by the defendant and one by his elder daughter until her marriage in 1969.

9. Although in his statement of claim the plaintiff pleaded that he had orally granted to the defendant a licence or permission to reside at the flat on condition that she would collect the rents and profits and account to him, from a close perusal of the record I notice that the plaintiff when giving his evidence made no overt mention of such licence or permission. He merely stated that from January 1968 the defendant collected $310 per month in rents, and that he was claiming rent from the defendant at the rate of $310 per month from January 1968 to July 1969, and that although the defendant had stated in her Statement of Defence that she had accounted for the rents, in fact she had not. However in examination in chief he did produce a letter (Ex.P3) written on his instructions by his solicitors to the defendant in which mention was made that the defendant had been residing at the flat on his licence and that she had been collecting the rent and profits of the flat but had failed to account for the same to the plaintiff.

10. When the accounts annexed to the Statement of Defence were put to the plaintiff he stated that the defendant had not paid him any money as recorded in the accounts between 1st January 1968 and 1st July 1969 and that the only money he had received during that period was $100 from his daughter. Also that he had received no money from the defendant since he had issued his writ in the middle of July 1969 to the present day. He said that the figure of $310 per month that he was claiming he had obtained from the defendant. He also stated that he had paid the rates and property tax on the flat since his father's death, that the demands were sent to the flat and when this happened the defendant would telephone him and inform him of the arrival of the demand note. He agreed that the defendant paid the telephone charges and water charges. It was only at the conclusion of his evidence when I asked the plaintiff if he could produce the receipts for rates and property tax, and he told me that he could, that in answer to a question put by his solicitor he admitted that he had only paid such demands once and that after that, demands for rates and property tax were paid by the defendant.

11. The defendant who was not represented at the trial, although she had been represented at an earlier stage, in her evidence stated that she had been living in the flat ever since her father had purchased it but that the plaintiff never lived there but that one cubicle in the flat belonged to him but was always kept locked, and that when her father purchased the flat he had said that he was purchasing it for her and the plaintiff to live in as she was at that time living in a but in Tin Hau Temple, but the plaintiff did not come to live in the flat. She agreed that she was a married woman and had been married according to Chinese Law and Custom and that her husband was still alive.

12. The defendant produced various documents, among which was an exercise book (Exhibit D1A) from which she said that the accounts annexed to the Statement of Defence had been prepared. She also produced a note book (Ex.D2) in which she said were recorded the sums of money she had paid to the plaintiff from January 1968 to June 1969. These sums tallied with those set out in the accounts. She also produced an exercise book (Ex.D4) which she said contained details of the accounts that she had kept from 1st August 1969 to 28th December 1969, together with rent receipts and receipts for all the outgoings connected with the flat (Exhs.2 and 3).

13. The defendant also gave details with regard to the letting of the various cubicles in the flat which agreed with the accounts which she had submitted. She stated that after deducting all outgoings on the flat she would pay any money left over to the plaintiff. She stated that as they were brother and sister she had never asked for any receipts from the plaintiff, but she admitted that since receipt of the solicitors' letter dated 21st June 1969 (Ex.P3) she had not paid any money to the plaintiff. She stated that the plaintiff had never personally told her to vacate the flat and that the only notice she had received was the solicitors' letter (Ex.P3).

14. With regard to her claim to be in occupation of the flat by virtue of a service tenancy the defendant said that while her father was alive, she looked after him and used to take him to the doctor as he was a diabetic. She stated that she knew the definition of a service tenancy and then stated "I am not thinking of a service tenancy but just a place to live in," and that when her father died as the flat had belonged to her father she didn't need to perform any service for her brother, the plaintiff.

15. In cross-examination it was put to the defendant that the books of account that she had produced had been prepared by her after the commencement of this action. This was denied by the defendant, who then admitted that none of the books had been written by her, because she was illiterate, but that the records had been kept by her, and the books had been written on her instructions first by a tenant, and then later by her niece's husband. She admitted that she could not explain the accounts annexed to her statement of Defence because of her illiteracy. The defendant also agreed that her father had invited her to live with him because she had been living in a squatter area which was dangerous and that it was for her sake that he had invited her to live in his flat.

16. With regard to her evidence that she sent the balance of the rents to the plaintiff after deducting outgoings, I asked the defendant what her source of income was, whereupon she told me that her husband and son paid her a little money, but if at times she didn't have enough money for her needs she would keep some of the money she received as rent for herself. That both she and the plaintiff would have a part of the proceeds and if the balance after deduction of the outgoing was large then the plaintiff would receive a larger share. When it was pointed out to her that there were no items appearing in the accounts showing that she had retained any money for her own use with the exception of $254.90 which she admitted owing the plaintiff, and that as the accounts balanced the sums appearing therein as having been remitted to her brother couldn't be correct, as she had produced receipts for the other outgoings, she replied that because of her illiteracy she couldn't remember anything but that the note books were written upon her instructions.

17. The defendant called as her witness her niece Mrs. Mak Yuk-sim, the elder daughter of the plaintiff, she corroborated the evidence of the defendant as to who lived in the flat at various times. However she did say that although the plaintiff lived in Shaukiwan, he did have a cubicle in the flat which he occasionally occupied. She stated that she had never heard that her grandfather objected to the defendant residing in the flat, but on the contrary as her grandfather was an invalid, the defendant looked after him. Mrs. Mak also stated that she remembered at one meal time she had heard her grandfather say that he had bought the flat for both the plaintiff and the defendant to live in. With regard to the account books her evidence was somewhat confused. She stated that the accounts were written up by her husband before she was married, but that he only copied the entries into the book Ex.D1A recently, indicating that the entries had been copied from some earlier accounts, also that the entries in the book Ex.D4 were written by her husband at the end of last Chinese New Year. She stated that sometimes she would give the plaintiff money from the defendant when she visited the plaintiff, and that on other occasions when the plaintiff visited the flat she had seen the defendant give him money. That the defendant had told her that as the defendant's father had purchased the flat for the defendant and plaintiff to live in, the defendant after collecting the rent would save some for her own expenses and pay the balance to the plaintiff. Mrs. Mak stated that the defendant had never told her that she was entitled to half the rent from the cunicles but merely that she and the plaintiff would use part of the proceeds.

18. Dealing first with question as to whether any trust exists in favour of the defendant as claimed, the law is quite clear as to this in that section 7 of the Statute of Frauds which is in force in this Colony by virtue of the Application of English law Ordinance Cap.88, provides that a declaration of trust of real estate must be made or proved by a writing signed by the person who creates it, or by his last will in writing. In this case the alleged declaration of trust, was on the defendant's own pleadings made orally by her father inter vivas to take effect after his death and therefore under the provisions of the Statute of Frauds must be considered void and of no effect.

19. As to the defendant's claim that she occupies the flat by virtue of a service tenancy originally granted by her father and acknowledged and continued by the plaintiff, although this claim was not really pursued by the defendant at the trial I am satisfied that no evidence was adduced before me which supports such claim.

20. I am satisfied therefore upon the evidence adduced before me that the plaintiff is the sole registered owner of the flat, that the defendant did not have any beneficial interest as alleged and further that the relationship of Landlord and Tenant did not exist between the plaintiff and the defendant. I am also satisfied that notice was given by the plaintiff to the defendant to quit the flat on or before 30th June, 1969.

21. The remaining question to be decided is the plaintiff's claim for the sum of $5890 and damages. Although various allegations were made that the accounts produced were prepared purely for the sake of this action and that they were not in existence before the commencement of this action, I note that the defence appeared to adopt them in so far as the items of expenditure were concerned and only challenged those items relating to payment of moneys by the defendant to the plaintiff. Therefore as to the plaintiff's claim for rents and profits from 1st January 1968 to 1st July 1969, the plaintiff now claims the sums remaining after payment of the outgoings as shown in the accounts ending 31st July 1969, minus the $100 which he admits receiving from the defendant during this period. As to the plaintiff's claim for damages he claims the credit balance as shown in the account book Ex.D4 which shows detailed accounts from 1st August to the end of December 1969, together with the rent of $300 admittedly collected by the defendant for the months of January and February 1970 less admitted outgoings of $114.75. The plaintiff also claims rent for the cubicle occupied by the defendant from 1st July 1969 to 28th February 1970 at the rate of $60 per month based on the rent of the cheapest cubicle in the flat, which I consider a reasonable figure.

22. The defendant has admitted that she has not paid over any moneys to the plaintiff since June 1969, and I am therefore left with the question of whether or not the defendant paid any moneys to the plaintiff during the period 1st January 1968 to 31st July 1969 and if she did what amount did she pay. The plaintiff contends that the defendant paid him no moneys with the exception of one payment of $100. Having heard all the evidence in this case I do not believe him. From the evidence of his daughter Mak Yuk-sim there is obviously no love lost between the plaintiff and the defendant. I was very impressed by Mrs. Mak's evidence, she was subjected to detailed questioning and I am satisfied that she was a truthful witness. The plaintiff originally claimed all the proceeds of the rents of the flat, on the grounds that he paid all the outgoings, as is shown in his pleadings, and it was only later at the conclusion of his evidence when asked to produce receipts that he admitted that the outgoings were paid by the defendant. He also stated that his father raised objection to the defendant residing in the flat whereas Mrs. Mak clearly corroborated the defendant's evidence that the defendant looked after her invalid father, and that he did not object to the defendant living in the flat. The defendant on the other hand at first said that with the exception of the $254.90 outstanding to the plaintiff's credit she paid over the balance of rent received after deduction of outgoings to the plaintiff as shown in the accounts. However she later admitted that she kept some of the money for her own use, but was unable to say how much. I am satisfied from the evidence of the defendant as corroborated by Mrs. Mak that certain sums were paid by the defendant to the plaintiff or by the defendant through Mrs. Mak to the plaintiff, but there is no evidence before me as to how much was so paid, and it is therefore with some reluctance that I am forced to come to an arbitrary assessment. As the defendant before the commencement of these proceedings believed that she was entitled to a half share in the flat, I assess the amount that she paid to the plaintiff as half that appearing in the accounts for the period 1st January 1968 to 31st July 1969, and I therefore give judgment for the plaintiff for this amount together with the sum of $254.90 standing to the plaintiff's credit. As to the plaintiff's further claims I give judgment for the plaintiff for the amount shown as credit in the book Ex.D4 together with the rents admittedly collected by the defendant for the months of January and February 1970 less the admitted outgoings, and also rent for the cubicle occupied by the defendant at a rent of $60 per month as from 1st July 1969 to 28th February 1970. These sums to be calculated by the parties and in the event of non agreement to be calculated by the Registrar.

23. I also grant an injunction as claimed in sub-paragraph (1) of the plaintiff's prayer together with costs and I order a stay of execution for one month.

24. The defendant's counter-claim is dismissed.

10 APR 1970

Representation:

Charles Sin of P.H. Sin & Co. for plaintiff.

Defendant in person.