Lee Sang Investment Co Ltd v. Catherine Lam Koon Len
Read the full judgment text of HCA 48/1973 on BabelCite. This High Court CFI judgment.
1. This is an action for possession of the premises known as Flat C-32 on the 3rd Floor of Carolina Mansions, Block C, Coombe Road, Hong Kong and the parking spaces appurtenant to it.
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HCA000048/1973 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO. 48 OF 1973 -----------------
----------------- Coram: Leonard J. in Court. Date of Judgment: 27th August, 1974. ----------------- JUDGMENT ----------------- 1. This is an action for possession of the premises known as Flat C-32 on the 3rd Floor of Carolina Mansions, Block C, Coombe Road, Hong Kong and the parking spaces appurtenant to it. 2. The defendant formerly owned the legal estate in the premises and on the 13th December 1971 by an Assignment registered in the Land Office by Memorial No. 862977 she assigned the premises to the plaintiff. On the same date, the plaintiff and the defendant entered into an agreement registered in the Land Office by Memorial No. 862979 whereby the defendant was granted an option to re-purchase the premises and alternatively an option to rent them. It was the plaintiff's contention that neither option having been validly exercised, the defendant was obliged to yield up vacant possession to it. It was the defendant's contention that the Assignment and option were entered into as security for a loan of $550,000; that the transaction had taken effect as a mortgage and that the defendant was therefore entitled to have the property re-assigned to her on payment of the amount for the loan and appropriate interest. Alternatively, the defendant claimed that she was entitled by virtue of the events which had happened to be entitled to exercise the option to re-purchase out of time. The plaintiff company is a private limited company incorporated in Hong Kong and at all relevant times the directors and sole shareholders in the plaintiff company were Madam Teresa Wong Moss and her former husband Mr. C.C. Chiu. Mrs. Moss and Mr. Chiu were divorced in 1970 and Mrs. Moss subsequently married a Mr. W.F. Moss in Oak Run, North California. He died on the 18th of April 1974. Mrs. Moss whom I shall henceforth call by her maiden name Teresa Wong and Mr. C.C. Chiu had substantial business interests in common. While they were married they lived together at No. 41, Stubbs Road, Flat 19, and after their divorce in 1970, Mr. Chiu went to live at Carolina Garden in a block adjacent to that in which the premises in dispute are. Although they were divorced Mr. Chiu and Teresa Wong preserved their business relationship. Teresa Wong was the principal shareholder in the plaintiff company which, although enabled by its Memorandum and Articles so to do, did not engage in the buying and selling of property by way of trade. Besides their interests in the plaintiff company Mr. Chiu and Teresa Wong also had interests in three other companies the principal of which was the Yuen Sang Plastic Company Limited which carries on business in a number of factories which are vested in the plaintiff. Again the flat in which Mr. Chiu lives is vested in the plaintiff. 3. It is common case that all the negotiations concerning and leading to the assignment of the premises were conducted between Teresa Wong and the defendant. Mr. Chiu did not take part in them although he says that before the transaction was completed he went to inspect the premises because he considered the price to be rather high. He did however visit The Chartered Bank with Teresa Wong with a view to mortgaging the premises after the assignment had been completed by the defendant. It is common case that the total consideration passing directly or indirectly between the parties was the sum of $550,000 and although there is evidence that the real property market was rising at about the time the transaction took place I find as a fact that the sum of $550,000 was not a gross undervalue for the premises and the furniture in them. It is common case that on the 13th December 1971 the following documents were executed : firstly, an indenture whereby
Secondly, an indenture of the same date between the same parties expressed to be supplemental to the first Assignment mentioned. This indenture to which I will refer hereafter as the Deed of Option recites the Deed of Assignment above-mentioned and that :
This Deed further recites an agreement that the plaintiff would re-sell the premises together with the furniture fixtures and fittings to the defendant at the same price of $450,000 and $100,000 plus such other sums of money as are thereinafter mentioned within a period of three months from the date thereof. By the first option in this Deed, the plaintiff granted to the defendant the option to purchase the said premises together with the furniture fixtures and fittings at the said price of $450,000 and $100,000 "plus compensation agreed at $5,500 for each or part of a calendar month during which the said option to purchase was not exercised by the Grantee together with all legal costs and disbursements incurred by the Grantor in connection with its purchase of the said premises and the said furniture fixtures and fittings from the Grantee provided that such option shall be exercised by the Grantee only and by the Grantee giving one month's written notice to the Grantor such notice to expire on or before the date three months hence." The Deed of Option went on to provide that in the event of the defendant not exercising the option to re-purchase the plaintiff further granted to the defendant "the option to accept a monthly tenancy of the said premises including the use of the said furniture fixtures and fittings which shall be deemed to have commenced from the 1st day of January 1972 and to expire on the 31st day of August, 1972 at the rent of $5,500 per calendar month exclusive of rate and property tax. Such Tenancy to be in writing and to be prepared by the Grantor's solicitors at the expense of the Grantee, the agreement containing no terms more onerous than those in common use in tenancy agreement currently used in the Colony of Hong Kong provided that the same shall be subject to ratification by the Secretary for Home Affairs on the usual terms. In such event the aforesaid compensation shall not apply". Thirdly, a mortgage of the premises by the plaintiff to The Chartered Bank to secure general banking facilities to the extent of HK$450,000 and interest at 7% per annum. This mortgage was redeemed by the plaintiff on the 9th April, 1973. 4. It was conceded by the counsel for the defendant that if I should hold that the transaction was an outright sale with an option to re-purchase and not a mortgage in the form of a sale the defendant had failed to comply with the strict requirements of the option within the stipulated time. It was further conceded that, if the transaction was a sale with options as to distinct from a mortgage, time was of the essence for exercising with the option and that the option had not been exercised within the time stipulated in the Deed of Option. 5. It was however contended from the outset by counsel for the defendant that even if it be held that the transaction was an outright sale with an option the plaintiff through the representations of Mr. Chiu had created an equity in favour of the defendant which would enable the defendant to exercise the option out of time as the defendant did. The primary question for my decision therefore was whether or not the transaction evidenced by the Assignment and Deed of Option which I have mentioned was an outright sale with an option to re-purchase or a mortgage in the guise of an outright sale with an option. 6. Counsel for the plaintiff properly conceded that it was open to me to look behind the form of the documents to the real intention of the parties and that for this purpose I might properly consider extrinsic evidence. For the plaintiff, Teresa Wong, Mr. C.C. Chiu and Mr. Wilkinson, a valuer, gave evidence. The sole witness for the defence was the defendant. I also had before me an affidavit sworn by William Frederick Moss, the deceased husband of Teresa Wong, which I admitted by virtue of the Evidence (Hearsay) Rules, and an agreed bundle of documents. Neither party called any witness to explain various discrepancies in the agreed bundle which was of very considerable importance in assessing the evidence of Teresa Wong and the defendant. 7. Essentially, the first question for decision by me turned on the evidence of these two witnesses. Much of what they had to say was not disputed. 8. In 1950 the defendant married a Dr. Tso. There were three children of this union now aged 23, 22 and 20 respectively. In 1956 Dr. Tso deserted the defendant and she obtained a divorce on the ground of desertion with custody of the three children. In 1962 the defendant met a Mr. Merl Kelce and became his mistress. He was a very wealthy man and in 1964 he brought the premises in question for her and her children. He died in the middle of 1970 having presented her with the premises and many other valuable presents in the shape of jewellery and cars and securities. His death was a great shock to the defendant and she sought solace in gambling in Macao. This extremely heavy gambling apparently commenced in the middle of 1971 approximately a year after the death of Mr. Kelce. In October 1971 she mortgaged the promises in question to a Mr. LO Chun for the sum of $270,000. However she became heavily indebted to the casino in Macao within a very short time. She needed more cash. She and Teresa Wong were already acquainted - "on nodding terms" as Teresa Wong put it but more cordially as the defendant would have it. Whether the acquaintanceship was close or distant is immaterial for they had a mutual acquaintance in the shape of a Madam Dora Sing whom unfortunately neither party saw fit to call as a witness. This lady apparently acted as a broker or intermediary between persons desiring to borrow money and prospective lenders and particularly as an intermediary between wealthy ladies who wished to raise or lend money on the security of expensive jewellery. Madam Dora Sing was well-known to both the defendant and Teresa Wong and being desparately in need of money the defendant approached her for assistance. Madam Dora Sing brought the defendant to Teresa Wong and was present at various negotiations between them. It was after this introduction took place that the negotiations which led to the completion of the documents I have mentioned took place. 9. As to what occurred, thereafter there were sharp discrepancies between the evidence of Teresa Wong and that of the defendant. Both these witnesses gave evidence in English, although I should have thought that the defendant might have been happier giving evidence in her native language. This could not be said of Teresa Wong who has an impeccable command of English and a nicety in the choice of words that would do credit to any teacher of the language. She showed herself to be a woman of great natural shrewdness and business acumen. 10. It was her case that Miss Dora Sing brought the defendant to her flat at No. 41, Stubbs Road which prior to their divorce had been the matrimonial home she shared with Mr. C.C. Chiu; that the purpose of this visit was to persuade her to purchase the defendant's flat rather than to raise money on any security; that she told the defendant that at that moment she had no necessity to want an extra apartment, but that the defendant importuned her, told her of the death of Mr. Kelce and of her financial difficulties which had resulted from gambling; that the price for the property would be $550,000 with its furniture fixtures and fittings. She stated that after considering the matter she told the defendant that she, Teresa Wong, had re-married, that her husband, Mr. Moss, might object to living in the apartment in which she had resided with her former husband and that she might be interested. She went to see the flat; liked it and the furniture in it and decided to purchase it; that the arrangement was that she would buy the flat for what the defendant had asked for it namely $550,000 to include everything except a carpet and a table. This figure was arrived at before any inventory of the furniture was taken. She went on to say that the defendant had told her that her children were returning for a holiday and she did not wish them to know of her financial state; that the flat had sentimental value to her and asked if it would be possible for her to re-purchase the flat if she could get the money to do so and hence she gave the option. Teresa Wong was at pains to indicate that the first approach made to her by the defendant was in connection with the sale of the flat. She did however concede that prior to the completion of the agreement to sell she lent the defendant the sum of $30,000 to enable her to pay off part of her gambling debts and that although the plaintiff company was nominally the purchaser it had always been considered that the purchase was on her behalf but that the defendant had made no objection to the nominal purchaser being a limited company. It is to be noted that Teresa Wong having been married in California to Mr. Moss on the 10th October 1971 returned to Hong Kong on or about the 15th of that month. Her first meeting with the defendant concerning the property in question took place, she said, in early November 1971. Her decision to "purchase" the flat must have been arrived at before the 12th November 1971 when her solicitors wrote to the defendant's solicitors, and it was prior to that date that Teresa Wong had lent the defendant the sum of $30,000. This loan is described in the letter of the 12th November 1971 from a Messrs. Deacons to Messrs. Helen A. Lo & Co. as a "deposit". The transaction was completed on the 13th of December 1971 by execution of the documents I have mentioned. Prior to that date, Teresa Wong had lent to the defendant a further sum of $50,000. This second loan was not mentioned by Teresa Wong in her evidence-in-chief but it is clear from the agreed bundle that it must have been lent at the very latest on the 1st December 1971 for it is taken into account in a letter of the 2nd December 1971 from Messrs. Deacons to Messrs. Helen A. Lo & Co. with which I will deal later. Teresa Wong went to The United States again on the 19th of December 1971. She returned to the Colony on the 12th March, 1972 so that she was away from the Colony throughout the month of February 1972, on the 12th day of which month the defendant would have had to exercise her option to re-purchase if she was to do so in accordance with the terms of the Deed of Option. On the 24th of February 1972, that is 12 days after the date on which the option to re-purchase should have been exercised, Teresa Wong received a telephone call from her former husband, Mr. C.C. Chiu who told her that the defendant had contacted him and had offered to re-purchase the premises. To this suggestion she did not agree. That, she maintained, was the first telephone call she had received from Mr. C.C. Chiu in reference to the premises, although she had received other communications regarding other business. She had, however, been in correspondence with the defendant. She wrote to her on the 29th December 1971 and the 4th February 1972 and the originals of these letters were before the court; it would seem from them that Teresa Wong and the defendant were on good terms up to the 4th February 1972. In the first of these letters, there is reference to certain jewellery which Teresa Wong held on behalf of the defendant and in the second reference "to a few unfinished business (sic) we have to settle". The opening sentence of the letter of the 4th February reads :
The defendant did not at any time write to Teresa Wong whose evidence was that the unfinished business referred to in the letter of the 4th of February 1972 concerned the defendant's jewellery; this had been pawned by the defendant through Miss Dora Sing and redeemed by Teresa Wong and other of her friends, Teresa Wong returned to the Colony on the 12th of March 1972 to be greeted by a request from the defendant to meet her. This request she refused initially but eventually agreed to because of the importunity of Dora Sing. At this meeting, according to Teresa Wong, the defendant gave her a cheque for $16,500 (being three months rent for the premises) postdated for approximately one week. She handed this cheque to her solicitors in due course. At the meeting the defendant asked her to extend the date for re-purchase which she refused because she said she was not satisfied that the defendant could pay. There was no suggestion at this meeting that the original transaction was by way of loan. It was her case that the cheque for $16,500 represented rent for three months from December to March. [Her solicitor's attitude was slightly different as they stated that they held it as stakeholders pending completion of the lease in accordance with the second option contained in the Deed of Option.] Teresa Wong left Hong Kong again in the summer of 1972 and prior to doing so she said she spoke to the defendant about payment of rent and warned her that she would have to vacate on her return in early September. Throughout the period whenever they spoke no mention was made of re-payment or of buying back the premises. The witness was cross-examined with persistence and skill by Mr. Yu. Throughout the cross-examination she showed a remarkable shrewdness and accuracy of memory. She remained cool, exact in her choice of words and generally was an extremely capable witness. Such doubts as I had as to her veracity arose from the nature of the documents in the agreed bundle and a hardness suggestive of ruthlessness which I detected in her manner. She had married Mr. Moss on the 10th October 1971 and they had set up a home in Oak Run, California. He was a very wealthy and retired businessman and it was their intention that they should spend part of the year in Hong Kong and part of the year in California. Mr. Moss came to Hong Kong on 12th September 1972. They then stayed at the Stubbs Road apartment. They went to visit the defendant in the flat at Carolina Mansions towards the end of September it was as to what transpired at this meeting that Mr. Moss speaks in the affidavit which I admitted under the Evidence (Hearsay) Rules. Under cross-examination the witness, Teresa Wong, corroborated what Mr. Moss had said in his affidavit. Mr. Moss returned to America in February 1973 by which time the writ in these proceedings had been issued. According to his affidavit and Teresa Wong's evidence, on the occasion of their visit to the premises on the 30th September the defendant agreed to vacate the premises in November 1973. It was her failure to honour this agreement that it caused the initiation of proceedings. 11. I am quite satisfied as a result of the evidence of Teresa Wong under cross-examination coupled with the documents that, in the negotiations leading to the signing of the documents I have mentioned, the figure of $550,000 was an "all in" figure. Prior to the parties consulting their solicitors no specific part of that figure was allocated to the furniture. In the course of those negotiations (not before they commenced) Teresa Wong lent to the defendant the sum of $30,000. She got no security for this loan. Some time later probably after the 12th November 1971 and certainly before the 2nd of December 1971 Teresa Wong advanced a further unsecured sum of $50,000. I am quite satisfied that these sums advanced, as they were, without security were lent after conversations as to the flat had commenced. A woman as shrewd and careful as was Teresa Wong would never have advanced $80,000 unsecured unless a deal involving considerable larger sums was in the offing. Teresa Wong explained these two unsecured loans by saying that the defendant's persistence and her obvious need had "caught her at a weak moment". It was suggested to her that the figure of $550,000 was not the price that the defendant asked for the flat but was arrived at because the defendant urgently needed a sum of $200,000 to meet her gambling debts; that $270,000 was due on the mortgage and she owed $80,000 to Teresa Wong the total of these figures coming to $550,000. This I do not accept. Firstly, because it ignores the considerable interest already due on the mortgage and secondly, because I am convinced that the second loan of $50,000 was made after the figure of $550,000 was arrived at. I come to this conclusion partly from the evidence of Teresa Wong and partly from the agreed bundle of documents which I will discuss later. I am however quite convinced that the sum of $100,000 was an arbitrary figure. There had been no valuation on the furniture and fixtures and there had been no inventory taken. As Teresa Wong readily agreed in cross-examination she entered into a mortgage of the premises with The Chartered Bank for $450,000 at 7% per annum on the same date as the Assignment and Deed of Option. I also formed the conclusion that throughout the negotiations, Teresa Wong knew well firstly that the defendant was greatly in need of money to pay gambling debts; that she had pawned very valuable jewellery; that she had expectations from the estate of Mr. Kelce the very wealthy American with whom she had lived; that she was well-known in Hong Kong as being the wealthy owner of expensive cars and jewellery. 12. Teresa Wong was throughout her evidence at pains to emphasize that she acquired the flat for her personal use or that of her children and that for the reason she continued the negotiations. She required the flat for her own occupation primarily because she thought Mr. Moss might not wish to live in the flat at Stubbs Road it having been the flat in which she and her divorced husband Mr. C.C. Chiu had lived together and secondarily in case one of her children might need accommodation. There were a number of reasons why I found it is impossible to accept this evidence. 13. Firstly, Mr. Moss had lived in the Stubbs Road flat on the occasion of his visit to Hong Kong after their marriage from the 12th September 1972 until the 10th February 1973. Secondly, if a delicacy of that kind had prompted her action, she would scarcely have chosen a flat which was in the next block to a flat in which her divorced husband lived and thirdly, and most importantly, because the flat was purchased in the name of the company in which her divorced husband was a co-director and he informed me that the purpose of the acquisition of the flat was for an investment so that the flat could became a business asset. 14. It is to be noted that even if the transaction be regarded as a mortgage it was from the plaintiff's point of view a good stroke of business. The plaintiff was in a position to obtain the bulk of the sum to be laid out by mortgaging the property to The Chartered Bank at interest of 7% per annum. Of the remaining $100,000 $80,000 had already been lent by Teresa Wong to the defendant without prevision for the payment of interest so that even if the transaction be regarded as a mortgage with the mortgagor remaining in possession the interest payable was 12% per annum on the sum advanced and the plaintiff stood to make a profit of 5% per annum on 4/5ths of the sum advanced. Regarded as a mortgage it was a happier arrangement for the defendant. Her mortgage to LO Chun (which had attracted interest at 18% per annum) was liquidated, she received a substantial sum in cash and the interest was reduced by 3 one third. 15. The evidence given by Mr. C.C. Chiu, Teresa Wong's former husband and her co-director in the plaintiff company did not greatly assist the case. He confirmed that all the arrangements leading to the completion of the transaction were conducted by Teresa Wong and that he had gone with her to the bank to effect the mortgage of the property. The bank had other securities from the plaintiff company the securities being mortgages of two factories I have mentioned a mortgage of Teresa Wong's flat in Stubbs Road and a mortgage of the flat at Carolina Mansions in which Mr. Chiu lived. In the course of his evidence, Mr. Chiu indicated that in the course of any negotiations at which he was present no mention was made of a mortgage but purely of a purchase and sale. Most significantly, he volunteered the information that if the transaction was not a purchase and sale The Chartered Bank would not have advanced the sum of $450,000 against a mortgage. He further said that the transaction so far as he was concerned was completed at the end of 1971. He was vague on the question as to whether any option had been granted but finally said that he knew there was an option but did not know about its details until the signing of the agreement. Again he suggested that it did not occur to him when the option had to be exercised. His evidence was that he went to Japan on the 13th of February and did not return until the 21st of February. He was therefore in Hong Kong on the 10th, 11th and 12th of February 1972. This is of importance for it was on those dates that the defendant was to say that she had seen him concerning the re-conveyance of the property to her and he told her that she would have to get in touch with Teresa Wong in The United States. This he denied and stated that his first recollection of seeing the defendant in February 1972 was on his return from Japan when they had tea with Dora Sing at the Marquis Restaurant on the 22nd or 23rd February 1972 when the option had already expired. As to this meeting, he said that the defendant was requesting one month extension of time within which to exercise the option and had requested him to make a long distance call to Teresa Wong. He further stated that it was only after he had had tea on the 22nd or 23rd of February that he went to Messrs. Deacons and found that the option had elapsed. He told Teresa Wong of this and she said that the answer he should give to the defendant was to be in the negative. His knowledge of any negotiations between Teresa Wong and the defendant was wholly dependent upon what Teresa Wong had told him. In so far as the granting of the option to re-purchase was concerned, he said that he was against its very existence and found it ridiculous but that Teresa Wong had persuaded him that it should be inserted at the wish of the defendant as she wanted to be sympathetic. I was not impressed by the evidence of this witness as it was apparent to me that he was concerned to corroborate the evidence given by his former wife and present business fellow director. His failure to do so when discussing the purposes for which the premises were required did not lessen my conviction that in their relations, marital or financial, she had been the dominant character. 16. It would be most difficult to imagine two witnesses who differed more than did Teresa Wong and the defendant. Their personalities were utterly opposed. Where Teresa Wong had been cool the defendant was emotional; Teresa Wong certain, the defendant vague; Teresa Wong shrewd the defendant scatter-brained. The defendant's evidence was that having been born in Japan and lived for some years in China she came to Hong Kong in 1949. She emphasized that the flat in question which had been purchased in 1964, as a home for herself and the children. Up to that time she had worked in Cathay Pacific Airways and Mr. Kelce had brought the flat so that she could leave her work and spend more time with the children. The flat was the first real home which she and the children had enjoyed. The death of Mr. Kelce had come as a great shock to her and changed her way of life entirely. Previously she had been a wealthy woman about town and not a serious gambler although a regular attendant at the races. Some time prior to October 1971 she became a compulsive gambler particularly at the casinos in Macao where she lost a great quantity of money resulting in the pledging of her jewellery (which she said was valued at about one million dollars) for approximately four hundred thousand dollars and in a mortgage of the flat at Carolina Mansions to Mr. LO Chun for the sum of $270,000 with interest at the rate of 18% per annum. In a short time this sum also had been lost at gambling and she was heavily indebted to the casinos in Macao and was being pressed for payment. She had know Teresa Wong earlier as a wealthy woman whom she met at the races and at a riding school at Shouson Hill. They had, however, had no business relationship prior to 1971. She stated that towards the end of October 1971 she had borrowed money from Teresa Wong in sums of $30,000 and $50,000 all over a very short period of time. She stated that she had borrowed the money before the question of the apartment came up. (As I have already said I do not believe that the sum of $50,000 at any rate was so borrowed.) She stated that she was still being pressed for money from the casinos and wanted $200,000. On the 12th November 1971 they reached an agreement about the mortgage of the flat. This was a matter of days from her first meeting. The two loans of $30,000 and $50,000 had been without security but this time she offered security of her flat. Teresa Wong would not agree to lend $200,000 on a second mortgage of the flat and suggested that the defendant should sell it to her. To this the defendant would not agree. She said she could not do so for sentimental reasons. It was the first property Mr. Kelce had brought and it was brought as a family home. Before Mr. Kelce had brought it the children had lived most of time while they were in the Colony with their grandparents. She stated that she told Teresa Wong that she wanted the money for a few months only. Mr. Kelce had left an estate of some thirty to forty million American Dollars and naturally she expected to receive quite a sum from this estate having been his mistress for over ten years. At that time she had American bonds and shares and a lifetime annuity. She also had as she put "some small items of jewellery valued at less than a hundred thousand dollars". She wanted money quickly but nevertheless refused to sell the flat. Thereupon, she said Teresa Wong proposed selling with an option to re-purchase. She had little knowledge of property deals this being the second property in which she had ever had an interest and she had never heard of an option to re-purchase before. On her so informing Teresa Wong "Madam Teresa Wong said 'You are not really selling since you can re-purchase. It has no difference from a mortgage.' So I trust her. That's the reason we entered into the agreement". It was the defendant's case that she had insisted on the insertion of the second option to lease the flat in case anything went wrong in respect of the first option but that at no time did she think she was selling the property. She further stated that she had never asked for $550,000 for the flat but wanted a loan of $200,000. She owed the casinos that sum approximately; she owed Teresa Wong $80,000 and she owed $270,000 as she said on the mortgage. In point of fact, she also owed the interest on the $270,000 but apparently did not take this into consideration. I formed the view for reasons which would appear hereafter that what the defendant wanted was a loan of $250,000 which together with the first loan of $30,000 and the capital due on the mortgage totalled $550,000. Notwithstanding her gambling and her extravagances (apart from her jewellery she owned three motor cars which she valued at $240,000; the American bonds and the life annuity which could have been surrendered at her discretion), she struck me essentially as a simple sentimental impractical woman who would, not unnaturally, place a great value on what had been her first real home. Furthermore she appeared to me to be a person who had no idea whatsoever as to the value of money. She had signed the conveyance and Deed of Option early in December and had gone abroad on the 9th December, firstly to visit, she said, Saigon where there was a Mr. Martin Lee who owed her US$25,000. Notwithstanding the casual manner in which she mentioned such large sums of money, apparently she failed to appreciate that the mortgage she had entered into with Mr. LO Chun was attracting a high rate of interest. I believe she was telling the truth as she saw it when she mentioned these various matters. I did not attribute the various errors she made in her evidence as deliberate untruths but as due to a faulty memory, the effect of emotional strain (she had spent a period under psychiatric care) and to the common failing of remembering facts as one would have wished them to have been. 17. She returned from her trip to Europe on the 6th of February 1972 and according to her, the first thing she tried to do was to get in touch with Teresa Wong. She was unable to do so and instead she called on Mr. C.C. Chiu whom she had met while negotiating with Teresa Wong. She said that he assured her that Teresa Wong would shortly be returning. She told him that she wanted to re-purchase. He promised to telephone Teresa Wong in America and inform her of this. Next day she called to see him again and he said that he had got no answer but would try again that day or afternoon. The following day he said he had got in touch with her and that she would contact the defendant herself as she was travelling all over United States on the East Coast. Nothing happened and four or five days later she tried to reach Mr. Chiu again. She called him on the telephone and arranged for a meeting at the Marquis Restaurant; that a meeting took place at the Marquis Restaurant on the 23rd of February is common case; that the defendant wished then to get the premises back is common case; that she offered to pay an immediate $100,000 on account and that Mr. C.C. Chiu refused to accept this amount is admitted. What is in question is whether or not she asked that the option be extended for a period of one month. This she said she did not do but that he did tell her that any arrangements to be made must be made with Teresa Wong. On the 25th of February she instructed Messrs. Helen A. Lo & Co. to exercise the option. [It should be noted that had the option been exercised on the 12th of February no sum would have been payable until the 12th of March no matter what the nature of the transaction. It had been all along and even then, her impression that the agreement was with Teresa Wong and not with the limited company.] Messrs. Deacons & Co. wrote back refusing the exercise of the option as it was out of time. She made a payment of $16,500 to Teresa Wong when Teresa Wong returned to the Colony in March 1972. This she regarded as interest for the sum of $550,000 she owed for the period from December to March. In May her solicitors informed her that Messrs. Deacons had sent a lease for her signature. This she did not sign as it came to her very much as a surprise. She was advised not to sign it as she was seeking a re-assignment of the premises. It was not until the latter part of November that she changed her solicitors and was advised that the transaction might be regarded as a mortgage and instructed commencement of proceedings to obtain a re-assignment. Before proceedings could be issued on her behalf, she was served with the writ in these proceedings. Her evidence was that she would never have agreed to sell the property outright, and that the whole purpose of her behaviour was to conceal her gambling from her children. Her evidence was in the main undisturbed in cross-examination which disclosed that her attitude to money even apart from her evidence as to gambling losses was casual to the point of being scatter-brained. She admitted for example that she had raised $400,000 on her jewellery but denied that she had personally even pawned it and said that she had entrusted it to Madam Dora Sing. She stressed however that the last thing she would have wished to part with permanently was the flat and this I believed. She could give no coherent account as to the precise amounts that she had lost in gambling or what she had paid to the casinos in Macao. 18. Her evidence as against that of the witnesses for the plaintiff must be judged in the light of the surrounding facts and of the correspondence in the agreed bundle. The first letter in the agreed bundle is from Deacons as solicitors for the plaintiff informing Messrs. Helen A. Lo & Co. for the defendant of an agreement to purchase the premises. This letter is noteworthy in several respects. Firstly, it states that the agreement was "subject to contract". Secondly, it makes no reference to furniture and the agreed price mentioned in it was $550,000. Thirdly, it suggested that the sum of $30,000 (not $80,000) had been paid to the defendant. Fourthly, it suggested that that sum had been paid "as deposit". Fifthly, it suggested that vacant possession should be delivered up on the 1st January 1972 or in default liquidated damages. Sixthly the liquidated damages were to be $5,000 per month. Seventhly it suggested that a sale and purchase agreement be entered into as soon as possible "in view of vacant possession not being delivered on completion". As I see it, this letter is of fundamental importance as it indicated that from the very outset that the parties were agreed that vacant possession was not to be delivered up immediately and its provision for "liquidated damages" in the sum of $5,000 per month indicated a possibility that vacant possession might be delayed indefinitely. On the 23rd November 1971 Messrs. Helen A. Lo & Co. replied to this letter sanding title deeds and draft agreement for sale and purchase. This letter went on to say :
This is quite astonishing since Messrs. Deacons had told them in their letter of the 12th November 1971 that $30,000 had already been paid. 19. On the 24th November 1971 Messrs. Deacons wrote :
In the absence of the draft agreement, this letter is quite impossible to understand but it appears to visualise the payment of two sums : one of $300,000 and the second of $250,000. The first sum to be paid to the mortgagee, Mr. LO Chun and the second sum of $250,000 to the defendant. It ignores the fact that $30,000 and perhaps $80,000 had already been advanced to the defendant. The next document in the agreed bundle is a letter from Deacons of the 27th November 1971 marked "Urgent" and stating :
What had occurred in the three days between the 24th November 1971 and the 27th November 1971 does not emerge from the agreed bundle but obviously Messrs. Deacons' instructions had been radically altered. The letter of the 27th November 1971 bears a pencil notation presumably made in Helen A. Lo & Co.'s office reading :
Two days later on the 29th November 1971 Messrs. Deacons wrote to Messrs. Helen A. Lo & Co. :
On the 2nd December 1971 Messrs. Deacons wrote again to the defendant's solicitors. The letter reads in part :
[The cheque for $292,441 clearly represents the amount due under the mortgage in favour of LO Chun. The two cheques totalled $470,000 which together with the sums of $30,000 and $50,000 advanced by Teresa Wong to the defendant totalled $550,000.] On the 13th December 1971 Messrs. Helen A. Lo & Co. returned the title deeds and documents together with the receipt for $470,000. I have already dealt with the terms of the indenture of the 13th December 1971 and the Deed of Option of the same date. On the same date, that is the 13th December 1971, the premises were mortgaged by the plaintiff to The Chartered Bank for facilities not exceeding $450,000. The interest expressed being at 7% per annum with monthly rents. This mortgage was paid off on the 9th April, 1973. On the 25th February 1972 Helen A. Lo & Co. wrote to Messrs. Deacons giving one month's notice that the defendant intended to exercise her option to re-purchase the premises on the agreed terms. On the 29th February 1972 Messrs. Deacons rejected this purported exercise of the option pointing out that the option must be exercised on the 13th February 1972 to expire on the 12th March 1972 at the latest. On the 9th March, 1972 Messrs. Deacons wrote to Messrs. Helen A. Lo & Co. asking whether the defendant had any intention of exercising her alternative option to accept the tenancy. There was no reply to this letter. On the 22nd of March, 1972 Messrs. Deacons wrote to Helen A. Lo & Co. in the following terms:
Again this letter was ignored. On the 24th May 1972 Messrs. Deacons sent Helen A. Lo & Co. a Tenancy Agreement in triplicate for approval and signature by the defendant together with a joint application to the Secretary for Home Affairs. On the 31st May 1972 they again addressed the solicitors for the defendant sending a debit note for the costs of the Tenancy Agreement. This document was never signed and was expressed to be for a term of eight calendar months commencing on the 1st January 1972 and terminating on the 31st August 1972 at the calendar monthly rent of $5,500 (or $500 more than the liquidated damages originally postulated). On the 3rd July, 1972 Messrs. Deacons again wrote to Helen A. Lo stating that they understood that the defendant had returned to the Colony and asking her to deal with the matter. There the correspondence rests. Proceedings were commenced in January 1973. 20. It will be particularly noted that one important document is missing from the agreed bundle, that is the draft Agreement for sale and purchase sent by Messrs. Helen A. Lo & Co. to Messrs. Deacons with their letter of the 23rd November 1971 and returned by Messrs. Deacons on the 24th November 1971. This document might well have thrown light on the nature of the agreement between the parties. It is however from the agreed bundle that it is missing and I must attribute equal blame to each party for its non-production so that I draw no conclusion from its absence. 21. The second obvious gap in the evidence is the failure of either party to call Madam Dora Sing. She also could probably have thrown light on the nature of the transaction. Since the defendant was setting up the case that the documents were not what they said they were I consider that the primary duty to call her rested on the defendant rather than on the plaintiff. I therefore tend to assume that had she been called her evidence would not have supported the case for the defendant. I appreciate however that a person in her position - that of intermediary - would have been very reluctant to give evidence in the case particularly if the evidence was inimical to the interests of Teresa Wong. So I do not regard her absence as of crucial consequence. 22. I could not say from the demeanour of either Teresa Wong or the defendant that one or the other was intentionally an untruthful witness. Indeed, I had no doubt that that the defendant was telling the truth as she saw it. She was emotional and vague but I did not consider that this was because of a desire to hide the truth. She was of limited intelligence. Teresa Wong definitely was not. Mr. C.C. Chiu struck me as an untrustworthy witness and I did not believe him when he said that he had no conversations with the defendant on the 10th, 11th and 12th of February 1972. I did however believe him when he told me that the purpose of the acquisition of the flat was for an investment so that the flat could become a business asset. There was one other facet of his evidence which I considered was of primary importance. He stated that at the negotiations at which he was present no mention was made of the flat being transferred to the plaintiff as a security. It was purely purchase and sale. He went on to volunteer and it was this that I considered significant "If it was not a purchase and sale The Chartered Bank would not have advanced the money against a mortgage". I consider this remark to be of importance because it indicates that the plaintiff found it necessary to couch the transaction in the form of an out-and-out sale in order that it in turn might mortgage the premises. If the plaintiff (or Madam Teresa Wong and Mr. C.C. Chiu) intended to enter into a mortgage with the defendant that transaction would equally well require financing. The plaintiff could not have obtained the necessary finance on such favourable terms unless the transaction took the form it did. The necessity of securing the advance from The Chartered Bank therefore dictated the form the transaction should take without affecting its reality. 23. I have set out the evidence at considerable detail because many of the findings of fact at which I have arrived are inferential, and it may be that the parties will wish to test their justification elsewhere. On the balance of probability I find that in November 1971 Teresa Wong was staying in her flat at Stubbs Road. She was then married to Mr. Moss, a well-to-do retired American and they had a matrimonial home in Oak Run, California. She was however a wealthy woman in her own right having extensive business interests in the Colony which included shares in and a directorship of the plaintiff company. She and the defendant were then nodding acquaintances but well-known to each other and both were acquainted with Dora Sing, a professional intermediary. The defendant was also a wealthy woman. She was the owner of the flat in question. She had an equity in expensive jewellery and owned expensive cars and a substantial annuity and had American bonds and shares which she regarded herself as holding in trust for her children. Between 1964 and 1970 she had been living with Mr. Kelce an extremely wealthy American who had purchased the flat in question as a family home for herself and her children. He died suddenly in the middle of 1970. His death was a great shock to her and as she recovered from the shock she suffered from great loneliness which she endeavoured to dissipate in gambling. By October 1971 she had lost a considerable fortune. In October 1971 she mortgaged the flat in question to a Mr. LO Chun for $270,000 and interest at a rate of 18% per annum. At all relevant times she expected to receive a considerable sum from the estate of Mr. Kelce but it was until November 1972 and some time in the 1973 that these expectancies were realised in terms of cash. In early November 1971 she was desperately short of cash and was being urgently pressed for payment of gambling debts. She needed this cash quickly. She therefore consulted Dora Sing who brought her to Teresa Wong. She discussed her requirements with Teresa Wong and I have little doubt informed her that the premises were presently mortgaged. Teresa Wong was the kind of person who would have been very quick to realise that a second mortgage could not be regarded as a good security particularly when the interest on the first was 18% per annum. At the same time I have no doubt she had sympathy for the defendant for she at once lent her $30,000 and was agreeable that the defendant should remain on in her family home. There was no evidence before me as to what liquid assets Teresa Wong or the plaintiff may have had at that time but some capital was required and it could not be raised from The Chartered Bank unless the first mortgage was discharged and the property assigned to the plaintiff at least in name. From the letter of the 12th November 1971 it is clear that at first the parties thought that the best form for the transaction to take was an agreement for sale and purchase the initial loan of $30,000 being termed a "deposit". It was on that basis that the solicitors for the plaintiff were first instructed. The confusion of mind in which the defendant found herself at that time is demonstrated by the fact that her solicitors asked for payment of the "deposit". Her instructions to them can scarcely have been very clear. 24. Correspondence between the solicitors ensued during which a further loan of $50,000 was made to the defendant by Teresa Wong. Despite the sympathy which she thus displayed towards the defendant I have no doubt but that Teresa Wong regarded the transaction throughout as a business transaction as distinct from the acquisition of a flat for herself or her family. I find also that the defendant never had any intention of parting with possession of the flat. She intended to raise money on the security of it - and no more. It was for that reason that she insisted on their entering into the Deed of Option. Doubtless she recognised the possibility of losing the flat if she was not able to raise the capital in due course to "re-purchase" it and it was to quieten that fear that the second option was included in the Deed of Option. I consider however that in essence her concern was to raise money to overcome what she regarded with a gambler's optimism as a temporary need. She had expectancies from the estate of Mr. Kelce and she told me, and in this her evidence was never challenged, that these were ultimately realised. She also had money in America. 25. Again I have no doubt but that the plaintiff in the person of its director Teresa Wong fully appreciated this attitude on the part of the defendant. She may have thought the defendant over-optimistic but she must have known that the defendant's interest was to raise money not to sell her flat. 26. Many authorities were cited to me by counsel for the plaintiff of cases where the courts have looked behind what purported to be a conveyance on sale and determined that the true nature of the transaction was that of a mortgage - an equal number by counsel for the defendant. With all respect to counsel no use will be served by my discussing all these cases - each is dependant on its own particular facts but I append a list of them : 27. Mr. Patrick Yu's List of Authorities
28. Mr. Michael Asome's List of Authorities
What is clear and laid down again and again is that Equity looks to the substance of the transaction rather than to the form in which it is couched. Thus at page 951 in Megarry & Wade on The Law of Real Property the learned authors boldly say :
29. To say "the question is what was the real intention of the parties?" is perhaps to over-simplify. For in determining that real intention one must, as I see it, look first to the form in which they have chosen to express that intention and then to the extrinsic evidence. One starts as it were with a presumption that the intention of the parties was as they have expressed it. As was said in the judgment of the Privy Council in Barton v. Bank of New South Wales(1) :
In that case the property in question had originally been mortgaged to the defendant bank by deposit of title deeds and the facilities made available to him had also been secured by his personal bond. The indenture impugned narrated an agreement that the property should be conveyed to the bank and that the plaintiff's debt to the bank (then $723.12.10) should be reduced by £400. The letter leading to this transaction from the plaintiff to the defendant bank set forth a proposal that the bank should :
The words I have underlined were regarded by the Judicial Committee as altogether inconsistent with the idea that the writer supposed for a moment that he was executing a conveyance which was to be a security for the whole debt. The facts there were in no way comparable to the facts here but this case is authority for the proposition that in every case we must start from a presumption that the parties in the deed have "truly set the causes which led to its execution". We know from the facts in this case they have not done so for the deed of conveyance here witnesses that it is entered into "in consideration of the sum of $450,000 to the vendor now paid by the purchaser". It is common case that the actual consideration was a loan of sums amounting to $80,000 made not by the purchaser (the plaintiff) to the vendor (the defendant) but by Teresa Wong to the defendant plus payments of $292,441 in favour of Helen A. Lo & Co. (presumably as solicitors for both the former mortgagee and the defendant) and $177,559 in favour of the defendant which last sum if it be divided as the plaintiff contents it should be divided, consisted of $100,000 the consideration for the purchase of the furniture (itself admitted to an "arbitrary" figure) and $77,559. The presumption then is somewhat easily displaced. 30. There is one line of authority which I at first sight found somewhat difficult to reconcile with the well-established principle that one may look to extrinsic evidence to determine the real nature of the transaction. It is outlined in Fisher & Lightwood's Law of Mortgages 8th Edition at page 10 where it is said :
The concept of mutuality and reciprocity of rights seems difficult of application in cases where pressure as to the "form" of the transaction (as distinct from its essence) has been applied by the lender and in cases were gross undervalue has led courts to refuse to accept assignments at their face value merely because one cannot in such cases imagine the lender wishing to be repaid; to that extent the concept seemed to me to conflict with the accepted doctrine that in the exercise of its equitable jurisdiction the court will use extrinsic evidence such as pressure or gross undervalue to enable it to see behind the "form" of the transaction and determine its reality. [I hasten to remark that no question of "pressure" other than the pressure of circumstances or undervalue arises in this case.] 31. This concept of mutuality and reciprocity perhaps stems as much from the dislike of Common Law lawyers in the 18th and 19th centuries for any interference with freedom of contract as it does from the reluctance of Equity to grant relief in the nature of specific performance at the suit of one party when it could not do so at the suit of the other. It was certainly through devotion to the Common Law that Lord Bramwell in Salt v. Marquess of Northamption(2) says at page 18 :
This same piety or love of fees is, perhaps, behind the plethora of authority which exists on the question as to whether an assignment absolute on its face is or is not a mortgage. The concept of mutuality and reciprocity insofar as it applies to the question at issue is expressed by Lord Cronworth in Anderson v. White(3) :
Since I am quite satisfied by the evidence of the defendant that in her eyes the transaction was one by which she gave her property as security for the repayment of a loan it remains for me to consider whether on the facts as I have found them to be, I could see my way to the plaintiff's having the rights of a creditor. To put it another way let us suppose that the property market in Hong Kong had fallen rather than risen since the date of the transaction and the position been reversed so that the plaintiff sought to recover the sum of $550,000 and interest at the rate of $5,500 per month would I have permitted it to do so? 32. The following matters suggest that I would not :
On the other hand, the plaintiff could have relied on the following factors to entitle it to assume the status of a creditor :
Although I should possibly have been more reluctant to grant to the plaintiff company the status of creditor had the respective positions of the parties being reversed, I consider that these factors, and other "straws in the wind" which it would be pedantic to itemize, would have entitled and indeed obliged me to do so. I am quite satisfied for that reason that the necessary mutuality and reciprocity exists. In all these circumstances I hold that the transaction was by way of mortgage and propose to grant relief to the defendant. 33. Therefore the question as to whether, by the behaviour of Mr. C.C. Chiu, an equity was created to prevent the plaintiff from denying defendant's right to exercise the option after the 13th February 1972 does not arise. As this case may go elsewhere, however, I feel I should set out my views on it. 34. I find as a fact that on the 10th February 1972 the defendant wished to redeem by the exercise of the option; that at that time the defendant notwithstanding the form the documents had taken regarded Teresa Wong as the person with whom she had contracted; that Mr. C.C. Chiu appreciated that the contracting parties were the plaintiff and the defendant but there is insufficient evidence to convince me that he appreciated that the defendant regarded Teresa Wong as distinct from the plaintiff as the contracting party. I do not think he would have given the defendant credit for being so stupid in the face of the documents. I find however that Mr. C.C. Chiu did talk with the defendant on the 10th, 11th and 12th; that she asked him when Teresa Wong would return because she, the defendant, wished to exercise her option, that he said he would telephone Teresa; that on the 11th she asked him the result and he told her he had been unable to contact Teresa but would try again and that on the 12th he told her that Teresa would contact her. I further hold that Mr. C.C. Chiu left the Colony on the 13th February 1972 and that on his return he, the defendant and Madam Dora Sing met at the Marquis Restaurant on the 23rd February 1972. By then of course, the time for the exercise of the option had expired. She nevertheless made an offer for the immediate payment of $100,000 although had she exercised the option on the 12th February 1972 she would not have been called upon to make any payment until the 13th March 1972. This offer was refused on the 24th February 1972 and the defendant immediately contacted her solicitors who on the 25th February 1972 i.e. 12 days late purported to exercise the option. This effort was immediately rebuffed. 35. On 4th February 1972 Teresa Wong had written a friendly letter to the defendant addressing her by a diminutive "Dear Cathy". She had previously on the 29th of December 1971 addressed her more formally as "Dear Catherine". In the letter of the 4th February 1972 she had said :
Apparently the defendant did not react to this request but it would be idle to speculate as to whether that fact caused the implacability manifested by Teresa Wong throughout the trial and indeed by her instruction to Mr. C.C. Chiu to refuse to accept the exercise of the option although it was only 12 days late. The question to be decided is whether Mr. C.C. Chiu's behaviour as detailed above was sufficient to create an equity i.e. whether his conduct was such as to make it inequitable to insist on 13th February 1972 as the deadline beyond which the option could not be exercised. In Bruner v. Moore(4) it was held that :
In Hughes v. Metropolitan Railway Co.(5) the lessor had been lulled by the negotiations into a sense of security which ultimately proved not to have been false. Mr. C.C. Chiu's behaviour could not be regarded as lulling the defendant into a sense of security nor as having caused her to act to her detriment. She approached him, not as agent for the plaintiff which admittedly he was but as the former husband of Teresa Wong who could get in touch with her. She herself could have got in touch through the telephone number given in the letter of the 4th February 1972 and she herself could have, by a simple reference to the Deed of Option, found that all she had to do to exercise the option was to write to the plaintiff. If, therefore, I had held that the documents operated as a genuine sale with an option to re-purchase I should have held that the behaviour of Mr. C.C. Chiu did not create any implied contract to extend the period within which the option might be exercised. There was nothing reprehensible about Mr. C.C. Chiu's conversations of the 10th, 11th and 12th February 1972. What was reprehensible was his denial that they ever took place. 36. In the event the defendant is entitled to judgment. The plaintiff's claim will be dismissed with costs, on the counterclaim there will be a declaration that the defendant is entitled to have the premises re-assigned to her on payment to the plaintiff within 21 days of the sum of $550,000 and interest thereon to date. Interest from the 13th December 1971 to the 13th December 1973 to be at the rate of $5,500 per month. There has been an unprecedanted rise in interest rates since the commencement of this year - a fact of which I consider I am entitled to and do take judicial notice. Interest as from the 13th December 1973 will therefore be payable on the said sum of $550,000 at the rate of 16% per annum in lieu of interest at $5,500 per month. The defendant shall have the costs of her counterclaim and the parties shall be at liberty to apply for further directions and orders.
Representation: Mr. Michael Asome (Deacons) for plaintiff. Mr. Patrick Yu and Mr. Majorie Chui (K.C. Yung & Co.) for defendant. (1) (1890) A.C. 379, 381. (2) (1892) A.C. 1. (3) (1858) 2 De Gex & Jones Reports 97 at 108. (4) (1904) 1 Ch. 305. (5) (1877) 2 A.C. p.439. O.J. No. 48 of 1973 List of cases cited in argument. 1. Megarry & Wade: The Law of Real Property 3rd ed. P.931 2. Snell's Principles of Equity 27th ed. p.378 3. Dart: Vendor and Purchaser 4. Re Watson (1890) 25 Q.B.D. p.27 5. England v. Codrington 28 English Reports P.649 6. Lincoln v. Wright 45 English Reports p.6 7. Re Duke of Marlborough v. Whitehead (1894) 2 Ch. p.133 8. Waters v. Minn (1850) 15 L.T. (o.s.) p.157 9. Maas v. Pepper (1905) A.C. p.102 10. Longuet v. Scawen 27 English Reports p.1106 11. Danby v. Read 23 English Reports p.124 12. Croft v. Powel 92 English Reports p.1230 13. Douglas v. Culverwell 45 English Reports p.1089 14. Barnhart v. Greenshields 14 English Reports p.204 15. Re Lovegrove (1935) Ch p.464 16. Barton v. Bank of New South Wales (1890) 15 A.C. p.379 17. Manchester, Sheffield Railway v. N.C. Wagon Co. (1888) 13 A.C. p.568 18. Williams v. Owens (1840) 5 Mylne & Craig's Report p.306 19. Polsky v. S. and A. Services (1951) 1 A.E.R. p.185 20. Frank H. Wright (Construction) Ltd. v. Frodoor Ltd. (1967) 1 AER p.433 21. United Dominions Trust Ltd. v. ...(illegible) (1966) 1 AER p.968 22. North Central Wagon finance Co. Ltd. v. Brailsford (1962) 1 AER p.502 23. Bruner v. Moore (1904) 1 Ch. p.305 24. Hugher v. Metropolitan Railway Co. (1877) 2 A.C. p.439 25. Hare v. Nicoll (1966) 2 Q.B.D. p.130 26. Samuel Properties (Developments) Ltd. v. Hayek (1972) 2 AER p.881 27. Holwell Securities Ltd. v. Hughes (1974) 1 W.L.R. p.155 28. Alderson v. White (1857) 2 De G & J p.97 29. Perry v. Meddowcroft 49 English Report p.314 30. Ensworth v. Griffiths 2 English Reports p.615 OJ. No.48 of 1973 Hearing date: 22nd to 26th July, 1974. Order of the Court Judgment for the defendant. The plaintiff's claim will be dismissed with costs, on the counterclaim there will be a declaration that the defendant is entitled to have the premises re-assigned to her on payment to the plaintiff within 21 days of the sum of $550,000 and interest thereon to date. Interest from the 13th December, 1971 to the 13th December, 1973 to be at the rate of $5,500 per month. Interest as from the 13th December, 1973 will be payable on the said sum of $550,000 at the rate of 16% per annum in lieu of interest at $5,500 per month. The defendant shall have the costs of her counterclaim and the parties shall be at liberty to apply for further directions and orders.
Representation: Mr. Michael Asome (Deacons) for plaintiff. Mr. Patrick Yu and Mr. Mejuni Chui (K.C. Yung & Co.) for defendant. |