Chu Kai on v. Chu Kwan on and Another

HCA010546/1996

HCA 10546 of 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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BETWEEN
	CHU KAI ON	Plaintiff
	AND
	CHU KWAN ON	1st Defendant
	WONG HIU CHAU	2nd Defendant

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Coram : The Honourable Mrs Justice V. Bokhary in Court

Dates of Hearing : 6, 7, 8, 11, 12 and 13 May 1998

Date of Handing Down of Judgment : 10 June 1998

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J U D G M E N T

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1. This case turns on facts. It is possible to deal with it quite briefly; and that is what I propose to do. It is a family dispute. I do not believe that anything which a court might say could reduce the bitterness between the parties. Indeed the danger is of increasing such bitterness by saying too much. Time alone, I think, can repair the human relationship involved. All that the court can do is to pronounce upon, as briefly as possible, the legal relationship as it emerges from the facts properly to be found on the evidence adduced.

2. The Plaintiff and the 1st Defendant are brothers, with the latter as the elder. The 1st and 2nd Defendants are husband and wife, having got married in 1989.

3. As for the subject-matter of the litigation, it is a flat, namely Flat 7, 22nd Floor, Block B (Yue Wo House), 19 Ngan Shing Street, Yue Tin Court, Shatin, New Territories ("the Flat").

4. Shortly stated, the Plaintiff's case against the Defendants, being for possession of the Flat and mesne profits to be assessed by a Master, is as follows:-

(1) He is the registered owner of the Flat, which had been assigned to him by the Housing Authority by an Assignment dated 3rd February 1983.

(2) The Defendants are in occupation of the Flat and have been since before this action was commenced.

(3) He demanded before the commencement of this action, and continues to demand, that the Defendants move out of the Flat. But they refused, and continue to refuse, to do so.

5. If those are the facts and no other circumstances affecting the legal position exist, then it would be plain that the Plaintiff's claim must succeed. The Defendants do not resist the Plaintiff's claim on the basis that those are not the facts. Instead they resist it on the basis that there do exist other circumstances affecting the legal position.

6. The case run by the Defendants and the Plaintiff's response to it are essentially as follows:-

(1) Defendants' case

The Plaintiff is not the sole beneficial owner of the Flat. In his Defence, the 1st Defendant says that he and the Plaintiff are co-owners of the Flat. The 1st Defendant repeated that when giving evidence. But he also said when giving evidence that the Flat was the property of the whole family, consisting of: himself as the eldest brother; the Plaintiff as the second brother; the third and youngest brother; and their parents. Here I should mention that the mother passed away in 1988.

Plaintiff's response

The Plaintiff is the sole beneficial owner of the Flat as well as the registered owner thereof.

(2) Defendants' case

The 1st Defendant and the Plaintiff had followed a practice whereby each would apply to buy a flat under the Home Ownership Scheme on the understanding that whichever one of them was successful would acquire the property not on his own behalf only but rather as the representative of the whole family. Three such applications were made. The first was an unsuccessful one by the Plaintiff. The second was an unsuccessful one by him. And the third was the successful one which resulted in the acquisition of the Flat.

Plaintiff's reference

There was never any such practice or understanding.

(3) Defendants' case

Before the success of that application was known, the only agreement as to payment for the Flat was an oral one between the 1st Defendant and the Plaintiff that they would pay the 10% deposit for the flat "jointly".

Plaintiff's response

There was never any agreement of that or any other kind between him and the 1st Defendant about the Flat.

(4) Defendants' case

After the application succeeded, the 1st Defendant handed the Plaintiff $12,000.00 in cash. This sum was to be for the 1st Defendant's half share of the $17,600.00 due by way of 10% deposit, with the remaining to go towards the first mortgage repayment and legal fees and other fees. (He did not say what other fees).

Plaintiff's response

The 1st Defendant never handed the Plaintiff any cash.

(5) Defendants' case

The 1st Defendant arranged and paid for the decorations to the Flat. (Here the 1st Defendant produced a receipt dated 15th April 1983 from a decorator addressed to him itemising $11,330.00 for material and labour in respect of decorations to the Flat, and acknowledging, by way of a notation dated 18th May 1983, receipt of a cheque for $11,380.00 i.e. $50 more than the itemised amount).

Plaintiff's response

It was the Plaintiff who arranged and paid for the decorations of the Flat. The 1st Defendant neither arranged nor paid for the same. (As for the receipt the Plaintiff accepts neither the accuracy or indeed the authenticity of the same. He further says that only the work and material set out in the first three items of the receipt were done and supplied. None of the work or material set out in the remaining items were done or supplied. He cannot remember whether the decorator who did the work was the one named in the receipt.)

(6) Defendants' case

Then in May 1983, the 1st Defendant moved into the Flat on his own, and came to an oral arrangement with the Plaintiff whereby each would do the following. The Plaintiff would make the mortgage repayment of about $1,700.00 per month. He, the 1st Defendant, would pay to their mother about $1,700.00 per month as a contribution towards family expenses, with something extra during the major festivals. This arrangement continued for some years.

Plaintiff's response

The 1st Defendant moved into the Flat in October 1989 (doing so with his then girlfriend, who is now his wife the 2nd Defendant). There was never any arrangement as to mortgage repayment or contribution towards family expense. The Plaintiff does not know what (if anything) the 1st Defendant paid to their mother. But there was no arrangement in that regard.

(7) Defendants' case

Then at the beginning of 1988, their mother passed away; and the 1st Defendant then came to another arrangement with the Plaintiff under which he, the 1st Defendant, would cease to make any family contribution but would instead take over the monthly repayment of the mortgage loan. This arrangement lasted from May 1988 to June 1996.

Plaintiff's response

That is not what happened. From about December 1990 onwards, he, the Plaintiff, was constantly pressing the Defendants to move out of the Flat; but they constantly refused to do so. There came a time when the 1st Defendant asked for the mortgage loan number so that he could make the monthly mortgage repayment, which were in the region of $1,600.00. Unable to persuade the Defendants to leave and at his wits' end, he gave the number to the 1st Defendant. From about January 1991 onwards, the 1st Defendant made most of the monthly mortgage repayment, but not all of them so that the Plaintiff himself had to make some of them. This was at a time when the market rent for the Flat was in the region of $4,000.00-$5,000.00 per month. All the while he was still pressing the Defendants to leave. The 1st Defendant kept stalling saying that he was not yet ready to leave. Things went on like that with each of them making some of the monthly instalments until June 1996 when the 1st Defendant ceased to make any such repayment.

7. The inherent probabilities as I view them in the context and atmosphere of all the circumstances as they unfolded before me lean, in my view, in favour of the Plaintiff's account. The documents produced by each side are by no means conclusive or even particularly helpful. Ultimately I am driven to find the facts essentially on my assessment of the only two witnesses in the case, the Plaintiff and the 1st Defendant. And in my assessment, the Plaintiff is the credible witness, not the 1st Defendant. The Plaintiff impressed me as reliable. The 1st Defendant did not so impress me. On all points on which their evidence conflicts, I find that the truth is represented by what the Plaintiff says, not what the 1st Defendant says.

8. There is therefore no foundation on the facts as I find them for the case which the 1st Defendant seeks to raise in opposition to the Plaintiff's claim. Accordingly the Plaintiff's claim succeeds.

9. I give judgment for the Plaintiff against both Defendants for vacant possession of the Flat, staying execution of the order for possession up to and including 10th July 1998. I also award the Plaintiff against both Defendants mesne profits, to be assessed by Master, in respect of the Flat for the period from 15th September 1996 until the delivery of vacant possession.

10. I further make an order nisi that the Defendants do pay the Plaintiff the costs of the claim to be taxed on a party and party basis if not agreed. Since the Defendants are in person, I will mention for their information that Order 42 rule 5B(6) of the Rules of the High Court provides in regard to orders nisi as to costs that "unless an application has been made to vary that order, that order shall become absolute 14 days after the decision is pronounced".

	(V. Bokhary)
	Judge of the Court of First Instance, High Court

Representation:

Mr S.C. Lam (instructed by Messrs Sit, Fung, Kwong & Shum) for the Plaintiff.

1st Defendant, Mr Chu Kwan On, present in person.

2nd Defendant, Ms Wong Hiu Chau, present in person.

1st Defendant's application for extending time to set down the appeal dismissed by Court of Appeal. Please refer to CACV157/1998 dated 15 January 1999