Ngai Few Fung v. Cheung Kwai Heung
Read the full judgment text of DCCJ 2331/2004 on BabelCite. This District Court judgment was delivered on 23 February 2006.
1. The plaintiff and the defendant are joint tenants of a property known as Flat B, 12th Floor, Tak Wai Building, No. 25 Cheong Lok Street. It is hereinafter referred to as “the Property”.
Cited by 3 cases
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DCCJ2331/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2331 OF 2004
BETWEEN
Coram: Her Honour Judge C B Chan in Court Date of Delivery of Judgment: 23 February 2006
J U D G M E N T
1.The plaintiff and the defendant are joint tenants of a property known as Flat B, 12th Floor, Tak Wai Building, No. 25 Cheong Lok Street. It is hereinafter referred to as “the Property”. 2.It is the plaintiff’s case pleaded in the Statement of Claim that from on or about 29 April 1998 the parties started to carry on a partnership venture by purchasing property. 3.It is not in dispute that the Property was purchased at the price of $2,380,000.00 and mortgaged to the American Express Bank Limited for a loan of $1,666,000.00, which was drawn down on 1 June 1998 and owed by the parties herein jointly. 4.The plaintiff pleaded that the terms of the partnership were agreed orally or were implied as follows:
5.It is the plaintiff’s case that he paid the following towards the purchase of the Property in April to June 1998:
The defendant paid $50,000 towards the initial deposit. 6.The plaintiff pleaded that after the purchase of the Property, the property market suffered a downturn. The parties were not able to sell the Property. 7.The defendant asked to move into the Property to reside there after the Property was decorated and she agreed to make payment of mortgage instalments. The plaintiff agreed to the suggestion and allowed the defendant to move into the Property. 8.The plaintiff pleaded that the defendant has failed to make the mortgage instalments since February 2002. The plaintiff reluctantly paid the mortgage instalments since then, up until the present. 9.The plaintiff pleaded that he has repeatedly insisted with the defendant that the Property should be sold or, alternatively, the defendant purchase the entire Property from the plaintiff so that the plaintiff could be released from his obligations under the mortgage loan. The defendant refused this. 10.By a letter dated 21 April 2004, the plaintiff gave notice to the defendant by a letter from his solicitors, Messrs Henry Fok & Company, to terminate the partnership venture with immediate effect. In this action, the plaintiff claims for a declaration that the partnership venture between the plaintiff and the defendant has been dissolved from 21 April 2004; in the alternative, that the partnership be dissolved by the court on the ground that the defendant has wilfully or persistently committed breaches of partnership; that it is not reasonably practical for the plaintiff to continue to hold the Property in partnership with the defendant any more. 11.The plaintiff also pleaded that the mutual trust and confidence between the plaintiff and the defendant has gone and that it is just and equitable that the partnership venture be dissolved and the Property be sold. 12.In this action, the plaintiff in the prayer in the Statement of Claim claims three items:
The defendant’s case 13.The defendant who had no legal representation pleaded in her defence that the plaintiff and herself had been colleagues from 1995 when they worked at Maxyee Holdings Development Limited (hereinafter referred to as “Maxyee Holdings”). They were also intimate friends. The plaintiff is an accountant. 14.She pleaded that the plaintiff forcefully took the money left her by her former husband in the sum of $2 million, as well as her salary of $30,000.00 per month. She stated that she did not keep an account of these as he was her boyfriend. The plaintiff promised that he would look after her for life and would stay with her. 15.The plaintiff and herself had earlier purchased another property as joint tenants at 10th Floor, Flat A of Hang Cheong Building in Shanghai Street (hereinafter referred to as “Hang Cheong Building Property”). The plaintiff and his girlfriend had formerly occupied the Hang Cheong Building Property. In relation to the Property, she pleaded that the plaintiff had said that he would make a gift of that Property to her. 16.She pleaded in her defence that the plaintiff had stated to her that he wished to use his money for investment and she had to be responsible for making mortgage instalment payments. She pleaded that she had made mortgage repayments from June 1997 to January 31, 2002 on the Property in the sum totalling $434,419.00. In relation to her living expenses and household expenses, the plaintiff paid for those and he also provided her with a subsidiary credit card. 17.She pleaded that, from February 2002, the plaintiff paid the mortgage instalments. She denied that the plaintiff was unwilling to make the mortgage repayments. She pleaded that the plaintiff agreed that when she was unemployed the plaintiff would be responsible for paying the mortgage instalments. She stated that the Property was not purchased for speculation as a partnership venture. She and her family resided there. She had paid the decoration expenses and the furniture of the Property. 18.In his reply, the plaintiff denied that he had forcefully taken $2 million from the defendant left to the defendant by her former husband, or had taken the defendant’s monthly salary from her. He also denied that he had given any promise to look after the defendant for the rest of her life, or to make a gift of the Property to her. 19.The plaintiff pleaded that since the defendant left the employment of Maxyee Holdings, the defendant was unemployed. Out of friendship for her, but not otherwise, he helped her financially from time to time, as requested by the defendant, on her promise to repay him in full. However, as her financial situation got worse, he stopped providing further financial assistance for the defendant. The plaintiff asked the defendant for repayment and the defendant signed an Acknowledgement of Debt, stating that the financial assistance provided by the plaintiff to the defendant exceeded the sum of $2 million. 20.In short, the plaintiff’s case, related to the purchase of the Property, is that the plaintiff and the defendant purchased the Property as a partnership business venture subject to the terms pleaded by the plaintiff in his Statement of Claim. The defendant denied that and said that the plaintiff purchased the Property for herself to reside in with her family; and further, that the plaintiff had promised to make a gift of the Property to her and to look after her for life. 21.It is to be noted that the defendant did not make any counterclaim in respect of what is pleaded in her defence, either in relation to the Property or the alleged payments made by her to the plaintiff. 22.The parties raised a lot of peripheral factual issues between them. 23.However, the only claim is that made by the plaintiff, there being no counterclaim. So the issue is to consider whether the plaintiff has established his claim. In so doing, the defence will be considered as it is in the defence that the defendant alleges that the plaintiff’s claim cannot be substantiated as the defendant seeks to advance her case being the reason for the purchase of the Property. 24.In considering the issue, I will consider the plaintiff’s evidence. The plaintiff admitted in the course of the trial that he did have an intimate relationship with the defendant. He denied that he purchased the Property as a gift for the defendant, and he denied that he agreed to look after the defendant for life. 25.He stated that on or about 2 August 1996 he and the defendant started to buy property for investment in partnership. The properties were purchased as joint tenants with a view for profit. The first property was the Hang Cheong Building Property. This was sold in 1999. They purchased a second property, the Property in question, in partnership. 26.In relation to the Hang Cheong Building Property, it was agreed that the profit, after deducting all expenses, would be divided in the proportion of the capital injected by each party. As the property market dropped after the purchase of the Hang Cheong Building Property, this property could not be sold. The parties agreed that the defendant could move into the Hang Cheong Building Property. The defendant had to pay all mortgage instalments and outgoings and, should a purchaser be found, she would have to move out. 27.He stated that in the sale of the Hang Cheong Building Property the defendant had exaggerated the floor area of the Hang Cheong Building Property and this became the subject of litigation in High Court Action No. 8665 of 1997. This litigation ended in settlement. This property was sold at a loss and the balance of the proceeds was given to him. 28.In relation to the Property, the plaintiff stated that, in April 1998, the parties purchased the Property. The defendant only paid the sum of $50,000 towards the initial deposit. Apart from this and certain mortgage instalments paid by the defendant, the remaining sums towards the purchase were paid by him. He stated that he paid a total of $1,722,218.50 towards the purchase of the Property. Particulars of the sums are at paragraph 9 of his witness statement. 29.He stated that in 1999 the parties entered into an oral agreement where the defendant agreed to pay mortgage instalments, management fees, rates and other expenses of the Property, and on those terms she could move in to reside in the Property. It was agreed that she would reside there until the Property market recovered. Should the Property be sold, the defendant would have to move out of the Property. He stated that he had never promised to make a gift of the Property to the defendant or to continue to pay mortgage instalments, or to provide living expenses and other expenses for the defendant. 30.The plaintiff stated that since the defendant left the employment of Maxyee Holdings, the defendant was continually out of work. The plaintiff had to give her financial assistance. The plaintiff agreed to lend her money until the beginning of 2002. The defendant did not repay any of such sums to him. The plaintiff, therefore, stopped further loans to her. 31.In 2002, the defendant signed an Acknowledgement of Loan stating that she owed the plaintiff not less than $2 million. This included sums lent to her and the sums expended through the credit card given to her, and all other sums paid on her behalf. 32.The plaintiff disputed the defendant’s evidence that the Acknowledgement of Loan signed by her was for the purpose of her application for social security and to show the Social Welfare Department that, despite owning the Property, she owed the sum of more than $2 million. The defendant continually failed to make mortgage instalment payments, management fees, rates in a timely manner with the result that there were Notices issued related to these. He had to make these payments unwillingly over a period of time. 33.It was, therefore, in 2003 that he wrote letters to the defendant by registered post with two proposals. The first was to authorise him to sell the Property, to acknowledge that the remaining interest of the Property belonged to him so that he could sell the Property in order to repay the mortgage loan, and to use the remaining proceeds of sale to repay the loan due by the defendant to him. Alternatively, the defendant had to produce proof that she had the means to pay off the loan due to him, and to repay the mortgage loan. She could purchase his interest in the Property and pay off the mortgage. As regards the amount owed to him, she could pay that off within six months. These registered letters sent to the defendant were returned in the post. 34.He wrote to her again on 2 October 2004 with a view to diminish his loss. He proposed that she transfer the Property to him and he would end this action and pay the defendant $20,000.00 in compensation. The defendant did not reply. 35.He stated that the defendant was dismissed by Maxyee Holdings for fabricating claims against the company. She was the only staff investigated by ICAC. 36.In the course of this trial, the plaintiff stated that in relation to the monthly sums of $82,000.00 alleged by the defendant to have been paid by her into his HSBC bank account, no. 582-6-001595, these monthly sums were, in fact, sums that he had first paid into her bank account by cheques drawn on his Kwong On Bank, account no. 402-002-0016-1. She then used these same sums he paid into her HSBC bank account to deposit into his HSBC bank account no. 582-6-001595. He showed from the statements of his Kwong On bank account no. 402-002-0016-1, at page 288 to 308 of the second supplemental bundle of documents, the withdrawals from that account and the cheques issued from that account in the sum of $82,000.00 to the defendant at pages 309 , 311, 313 and 321 of the same bundle of documents. 37.The plaintiff admitted that he undertook such an operation in order to give the impression to the HSBC bank that he had a stable monthly income of $82,000.00 paid into his bank account. This was for the purpose of causing HSBC, his bank, to continue the grant of the overdraft they gave him. 38.Similarly, he issued payments of $25,000.00 per month into the defendant’s bank account in order to create a picture of a stable income to the defendant’s bank. The defendant would transfer or deposit the same amount each month back into the plaintiff’s Kwong On Bank account. Two cheques of $25,000.00 drawn out of the plaintiff’s Kwong On Bank account and issued to the defendant are at pages 323 and 325 of the second supplemental bundle of documents. 39.The plaintiff stated in evidence that he had paid money into the defendant’s bank account from July 1998, to enable her to pay the mortgage instalments, until April 2001. From May 2001, the defendant paid the mortgage instalments out of her own funds until December 2002. He stated that the sums alleged by the defendant to have been paid to him, at page 181 of the bundle of documents and page 229 of the bundle of documents, were not, in fact, sums that were paid out of the defendant’s own resources to him. 40.Apart from the aforesaid, the plaintiff admitted, in paragraph 19 of his witness statement, at page 36 of the bundle of documents, that in 1999 he was a consultant of the company, namely “Tung Luen Hung Koo Yau Han Kung Si” (“Tung Luen”) to help this listed company to restructure. In the process, he had to clean up a number of shell companies. 41.The defendant wanted to get some extra living expenses and agreed to the purchase of these shell companies in her name and her mother’s name at a nominal sum of $1. In return, the plaintiff would invite the defendant for meals or other advantages. These shell companies were thereafter wound up after their sale. He states that this procedure was approved by auditors of international standing. Whatever the standing of such procedure, it is clear the defendant and the plaintiff worked at close quarters and in co-operation with one another, and assisted one another in their respective operations, whilst carrying on as intimate friends. 42.In these proceedings, the defendant accused the plaintiff of shady dealings and dishonesty, and the plaintiff accused the defendant of the same. The defendant’s evidence 43.The defendant alleged that the plaintiff had many girlfriends. Despite that, he told her that he loved her more than the rest. He informed her that he could not cohabit with her because she has a son, and also they worked for the same company. 44.She said that he had a girlfriend, Wong Wai-wah, then living at Flat A, 10th Floor, Hang Cheong Building. The plaintiff sold this same Property to the defendant and himself as joint tenants. The defendant stated that the plaintiff had told her the reason why he did that was because he loved her more than all the other women. As the Property was small, being only 300 square feet, he then purchased the Property in the names of the plaintiff and the defendant as joint tenants for her, her mother and son to live in. 45.She had helped him when he was being investigated by the ICAC. He had ordered her not to say anything when interrogated by the ICAC so that the plaintiff would not be implicated when he was being investigated for defrauding Maxyee Holdings. She did that, and the plaintiff was grateful to her and, hence, offered to make a gift of the Property to her. She alleged that he had defrauded many women and defrauded money from his employers. He was dismissed by his employers after working in each case for about a year. 46.She stated that the plaintiff and herself did not enter into any business venture or oral agreement related to business venture. With the objective of staying together with the plaintiff, she had given to the plaintiff the money given to her by her former husband, and the plaintiff had stated that he and she will be together and he would look after her for life. If he died, the Property would be hers. It was for that reason that the Property was purchased in joint tenancy. 47.In relation to the advertisement of the Property in 1999, she said she did not try to sell the Property in 1999. She had designed the interior decoration of the Property and paid for its decoration. The reason why she gave information for the publication of articles about the Property in the “Apple Daily “ on 5 April 1999 and in the “Economic Times” on 31 March 1999 was because she wanted the journalists to take photographs of the interior decoration of her Property. She said she did not have a camera that could do justice to the decoration, whilst the journalists had such a camera. 48.She stated that she did not separate her own money with the plaintiff’s; hence, she made mortgage instalment payments. When she did not have money, the plaintiff would give her money. She did not require the plaintiff to sign any loan note. 49.She stated it was in November 2003 when the plaintiff entered into a new relationship with a staff of his company. As a result of this, her relationship with the plaintiff was broken off. The plaintiff then wrote a letter to require her to transfer the Property to him. She stated that she did not agree to the sale of the Property as she lived there with her family. She stated that the plaintiff had deceived her into giving him her money. 50.The defendant alleged that she paid the sums to the plaintiff as set out in the schedule at page 229 of the bundle of documents. These sums were monthly payments of $82,000.00 from the defendant’s HSBC account, no. 053-1-017838, to the plaintiff’s HSBC account, no. 582-6-001595. These were paid into the plaintiff’s HSBC account no. 582-6-001595 as listed in this schedule at page 229 of the bundle of documents. These monthly statements started from December 1997 to October 1999 and totalled the sum of $1,804,000.00. She stated that these sums were paid from her bank account as stated aforesaid. 51.She also claimed that she made the payments into the plaintiff’s Kwong On Bank account, no. 402-002-0016-1, as listed in the statement at page 181 of the bundle of documents. These sums totalling $1,632,300.00, together with the payment of $275,000.00 made into the plaintiff’s HSBC account no. 022-121388-001, come to $1,907,300.00, and she stated that the plaintiff owed her these sums. 52.The defendant also said she paid all the decoration expenses of the Property, as well as the furniture, in the sum of $300,000.00. She submitted a receipt in support of this. However, this receipt is dated in the year 1997, before the date of the purchase of the Property, so that the date of the receipt and the date of the purchase is not compatible. Credibility of the parties 53.Having considered all the evidence, where there is a lot of allegations of dishonesty by one party as against the other, I find that the plaintiff is not a reliable witness. 54.He resorted to the artificial movement of funds of $82,000.00 per month from his bank account to the defendant’s HSBC bank account and, thereafter, back from the defendant’s HSBC bank account into his own HSBC bank account to create a false picture of his credit-worthiness. In effect, this was to mislead the bank into thinking that he had a regular monthly source of income in the sum of $82,000.00. In the same way, he also deposited a monthly sum of $25,000.00 into the defendant’s bank account and caused the defendant to do the same, to repay to his bank account a monthly deposit of $25,000.00. 55.This is a serious matter as the intent behind it is to create a false picture of his financial standing with the bank in order to cause the bank to maintain his overdraft. 56.Hence, I find he is not a man of integrity or credibility. 57.The credibility of the defendant has been found wanting. 58.She co-operated with the plaintiff in relation to this. She had alleged that she gave the plaintiff $82,000.00 per month as listed in the schedule at page 229 of the bundle of documents. The plaintiff provided evidence to show that $82,000.00 per month was first transferred from his Kwong On Bank account to the defendant’s HSBC account before she deposited such monthly sums into the plaintiff’s HSBC account. 59.When evidence relating to the original source of these $82,000.00 monthly payments was disclosed, the defendant merely stated that this showed that the relationship between the plaintiff and the defendant was an intimate one and they were like husband and wife. The defendant did not deny that the monthly sums of $82,000.00 per month which she alleged she deposited into the plaintiff’s HSBC bank account first came from the plaintiff. Hence, the conclusion to be drawn is that the defendant had fabricated the evidence that she had paid the $82,000.00 per month, as listed at page 229 of the bundle of documents, into the plaintiff’s HSBC bank account out of her own resources. 60.The credibility of the defendant is clearly at issue. She is neither a credible nor a reliable witness. There are many instances in the evidence which show this fact, but I highlight just this one evidence of her lack of credibility. But, in fact, the lifestyle that she describes and what she has done show a lifestyle of lack of integrity, lack of credibility. 61.In view of this, I do not accept the evidence of the defendant. 62.I have to consider whether the Property was purchased as a partnership venture subject to the terms pleaded by the plaintiff. To do so, I first turn to the law. 63.The fact that a property is purchased in joint names is not evidence which, on its own, could establish either the existence of a partnership or the fact that the property was purchased as a partnership business venture. 64.The following paragraphs of Halsbury’s Laws of England, volume 35, support this. In relation to paragraph 2 headed “Essentials of Partnership”:
In paragraph 4, headed “Business”, it states:
Paragraph 6, headed “Co-ownership and Partnership Distinguished”, it states:
In paragraph 7, headed “Co-owners of Land”, it states:
65.In relation to the alleged partnership in this case, it was not in writing. The plaintiff had pleaded in his Statement of Claim that the terms of the partnership were agreed orally or were implied. There were no particulars pleaded in the Statement of Claim, nor did the plaintiff give evidence of particulars as regards the time when, the place where, the agreement was made and the precise words spoken, either by himself or by the defendant, that brought into existence the alleged partnership agreement between them. The exact words spoken by either of them and the occasion on which it was spoken was not referred to in the evidence of the plaintiff. 66.As the relationship of the plaintiff and the defendant was one which was not strictly a business relationship but one where they were intimate friends and lovers, the boundaries of business relationship, if any existed, and private relationship seemed to have been blurred so much so that the plaintiff was not able to give evidence of the time, the place, the words spoken by either party that gave rise to the formation of the alleged partnership agreement between the plaintiff and the defendant, and it was pleaded, in the alternative, that the partnership agreement and its terms were implied. 67.There was no pleading of the material facts that were relied on by the plaintiff as the basis for his contention that a partnership agreement or the terms of the partnership pleaded could be implied. This is required by the rules of pleading. 68.As I have stated earlier, I found the plaintiff not to be a credible nor a reliable witness. His oral evidence would therefore not be reliable and could not be accepted. I cannot accept the part of his evidence which was related to the existence of the partnership agreement or the terms of the partnership agreement between the parties. 69.Despite that, I considered the circumstantial evidence to see whether there could be circumstantial evidence that could support, on a balance of probability, the existence of the alleged partnership agreement as pleaded or its terms as pleaded. The evidence suggests that both the plaintiff and the defendant maintained an overdraft, and it seems to be the case that both entered into and made efforts that put a lot of effort into making money. In the case of the plaintiff, he worked on the side as a consultant, apart from his regular job, to make extra money beyond what he obtained from his regular job. 70.It would therefore not be surprising for either the plaintiff or the defendant to have an inclination for investment in property. However, this is not sufficient to point to the fact of the existence of the partnership agreement or the partnership business venture as the basis for the purchase of the Property. 71.On the other hand, the evidence also shows that the plaintiff and the defendant had purchased the Hang Cheong Building Property in 1996. It was alleged by the plaintiff that was when he first started entering into the partnership with the defendant for investing in property. However, they were unable to sell this property because the property market had slumped, and so the plaintiff and the defendant had to hold onto the Hang Cheong Building Property until 1999 when it was finally sold at a loss. 72.Under such circumstances, the reasonable investor would take stock and be reluctant to purchase another property for investment until their earlier investment for profit could be sold so that they do not extend their financial commitment further in the purchase of another property. Further, an investor in such circumstances would be painfully aware of the risks of an untimely investment when they purchased another property for investment before the first investment property has been sold, and that first investment venture had proved to be unsuccessful in making the profit they had hoped. 73.The plaintiff and the defendant purchased the Property as joint tenants. This suggests the Property was not purchased purely as a partnership business venture, because upon the death of one of them it would vest on the other who survives. Purely partnership business ventures would usually set out clearly the capital investment of each, the profit-sharing basis, and would not normally have a provision that were one of the partners to die before the other, the capital investment of the deceased partner would go to the surviving partner. 74.The plaintiff’s evidence was that when it became clear the Property could not be sold immediately the plaintiff agreed that the defendant could move into it with her family on condition that she should pay the mortgage instalments, the rates and the management fees. However, their evidence shows that the plaintiff paid all the mortgage instalments from July 1998 to April 2001. This was the case when the defendant and her family resided in the Property from some time in 1999 onwards. The plaintiff made the mortgage instalment payments by paying sums sufficient for such payments into the American Express bank account of the defendant within this period. It was only from May 2001 to December 2002 that the defendant paid the mortgage instalments. 75.The plaintiff had given to the defendant the use of his subsidiary credit card from his credit card account. This suggests that the relationship between the plaintiff and the defendant was more than that of partners of a business venture. Hence, the plaintiff was willing to make mortgage instalment payments. 76.Under such circumstances, it makes it difficult to decipher from the factual matrix a clear intention between the parties to purchase a property purely as a business venture of a business partnership. The fact heavily relied on by plaintiff’s counsel to support the existence of a partnership was the publication in the “Apple Daily” and the “Economic Times” of information related to the Property with a statement that the Property would be available for sale at a certain price. The advertisement in the “Apple Daily” was on 5 April 1999 and that in the “Economic Times” was on 31 March 1999. 77.However, even taking this fact into account as evidence that may support a desire to sell the Property at a certain time, it is not sufficient to establish a partnership venture and a partnership agreement as pleaded by the plaintiff. Even were the Property purchased with a mixture of motives, whether it was the motive for investment or for other reason, that itself does not support the existence of a partnership agreement or that the purchase of the Property was a partnership business venture. 78.The defendant has pleaded a case and gave evidence of a case contrary to the plaintiff’s case. I found her credibility and reliability to be at issue. It is her contention that the plaintiff agreed to make a gift of the Property to her. However, as her credibility is at issue, there is no way in which her evidence of this could be accepted. There are indications that would contradict this contention, and that is that the defendant had herself placed the articles related to the Property in the two newspapers to advertise for sale. She had also paid mortgage instalment in respect of the Property from May 2001 to December 2002. She had also made an initial payment of $50,000.00 towards the deposit of the Property. 79.I therefore do not accept the defendant’s evidence and her case nor the plaintiff’s evidence related to his case. 80.On the basis of the aforesaid, I come to my finding that the Property was not purchased by the plaintiff and the defendant as partners, nor was it a partnership business venture. 81.The plaintiff had not pleaded an alternative case to apply for an order for sale of the Property under the Partition Ordinance. 82.As I found there was no partnership between the plaintiff and the defendant, the plaintiff’s case must fail. 83.I make the following order: the plaintiff’s claim be dismissed. Costs of the action be to the defendant to be taxed if not agreed.
Representation: Mr Ho Ming-kay, Kenneth of Messrs Henry Fok & Co., for the Plaintiff Defendant, in person, present |
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