Lau Shui Fong v. Ng Lai Kwan Cora

DCCJ1307/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1307 OF 2006

----------------------

----------------------

DCCJ1043/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1043 OF 2007

----------------------

----------------------

[Consolidated by the Order of Registrar J Ko dated the 23^rd day of August 2007]

Coram: H H District Judge Marlene Ng in Court

Dates of Hearing: 22^nd September 2008

Date of Handing Down Judgment: 9^th October 2008

----------------------

J U D G M E N T

----------------------

I. Introduction

1. The 43-year-old Defendant is the 2^nd child of the 66-year-old Plaintiff. The Plaintiff was/is the registered owner of premises known as Flat 11 on 12^th Floor of Kiu Kwan Mansion, Block A, No.395 King’s Road, Hong Kong (“Premises”).

2. There is no dispute that :

(a)  Kiu Kwan Mansion was built more than 40 years ago.

(b) In 1969, the Premises were registered in the name of the Plaintiff’s husband Ng Shiu (“Mr Ng”) and mortgaged to Hang Seng Bank Limited. The mortgage was reassigned in 1972.

(c)  Mr Ng and the Plaintiff had 5 children, ie 3 daughters (ie Ng Lai Fan Winnie (“Winnie”), the Defendant and Ng Lai Man Janet (“Janet”)) and 2 sons (ie Ng Wai Hung (“WH”) and Ng Wai Kwok (“WK”)).

(d) Winnie and WK lived in Hong Kong with their own families. Janet lived in the United Kingdom. By the time of trial, the Plaintiff no longer had any contact with WH, who was previously convicted and imprisoned.

(e)  Mr Ng died intestate on 25^th August 1993. Letters of Administration were granted to the Plaintiff in 1994.

(f)   The Plaintiff became the registered owner of the Premises pursuant to a Deed of Family Arrangement (“Deed”) and an Assent (“Assent”) both dated 21^st March 2000 whereby his children (including the Defendant) being the other beneficiaries of his estate waived all their rights and interests of and in the Premises.

(g)  Since early 2002, the Defendant lived at the Premises, and paid the relevant management fees, rates and all other outgoings.

(h)  In early 2002, the Plaintiff gave the title deeds of the Premises including those listed in paragraph 10(i)-(ix) of the Consolidated Statement of Claim (“Title Deeds”) to the Defendant who had since retained them in her possession.

(i)    By a letter dated 26^th April 2005 from the Plaintiff’s former solicitors (“Demand Letter”), which gave particulars of the Tenancy Agreement and the Plaintiff’s purpose in giving the Title Deeds to the Defendant (see paragraphs 3(a) and (b) below), the Defendant was requested to pay arrears of rent of the Premises from 1^st May 2003 up to the date thereof in the sum of $120,000.00 and deliver up the Title Deeds.

(j)    The Defendant’s solicitors replied by letter dated 9^th July 2005 denying the Defendant was a tenant of the Premises and claiming the Plaintiff gave the Defendant the Title Deeds for the purpose referred to in paragraph 4(d) below. It was further claimed that the Defendant spent a large sum to improve, renovate and redecorate the entire interior of the Premises (“Interior Renovation”).

(k)  By a letter dated 15^th August 2005, the Defendant’s solicitors confirmed the Defendant would not deliver up possession of the Premises and/or the Title Deeds.

(l)    On 27^th September 2005, the Plaintiff’s solicitors issued and served on the Defendant a Transitional Notice of Termination notifying that the Tenancy Agreement (see paragraph 3(a) below) would be terminated on 30^th September 2006 (“Transitional Notice”).

3. The Plaintiff claimed that :

(a)  By an oral tenancy agreement made in/about early 2002 (“Tenancy Agreement”), the Plaintiff as landlord let the Premises to the Defendant as tenant for domestic purpose on a monthly basis at a monthly rent of $5,000.00 exclusive of management fees, rates and all other outgoings.

(b) In/about January 2002, pursuant to the Defendant’s request made on the pretext of taking out a fire insurance policy for the Premises and not otherwise, the Plaintiff gave the Title Deeds to the Defendant.

(c)  In breach of the Tenancy Agreement and notwithstanding the Demand Letter, the Defendant failed and/or refused to pay rent for the Premises since 1^st May 2003.

(d) Despite repeated demands by the Plaintiff including the Demand Letter, the Defendant failed and/or refused to return to the Title Deeds and converted them to her own use.

(e)  Despite expiry of the Transitional Notice, the Defendant failed and/or refused to deliver up vacant possession of the Premises.

(f)   The Plaintiff therefore claimed for vacant possession of the Premises, arrears of rent from 1^st May 2003 to 31^st March 2006 (ie $5,000.00 x 35 months) in the sum of $175,000.00, rent and/or mesne profits at the rate of $5,000.00 per month from 1^st April 2006 until delivery of vacant possession of the Premises, and delivery up of the Title Deeds.

4. The Defendant claimed that :

(a)  Ever since the Defendant started to work and earned income, she gave cash/jewellery to and bought expensive apparel for the Plaintiff (“Previous Gifts”) to the value of $1,200,000.00.

(b) The Premises were never let to the Defendant who never paid any rent to the Plaintiff.

(c)  In early 2002, when the Plaintiff visited the Defendant’s then rented residence at Flat F on the top floor of Block 8, City Garden, North Point, Hong Kong (“Former Flat”), the Plaintiff verbally assured the Defendant she could use and occupy the Premises as if they belonged to her until such time as she married (“1^st Assurance”).

(d) The Plaintiff gave the 1^st Assurance because she was grateful for the Defendant’s Previous Gifts, and gave the Title Deeds to the Defendant as security and evidence of the 1^st Assurance.

(e)  Since early 2002, the Defendant occupied the Premises pursuant to the 1^st Assurance, and paid management fees, rates and all other outgoings as if she were the owner of the Premises.

(f)   In reliance of the 1^st Assurance, the Defendant spent about $220,000.00 on the Interior Renovation.

(g)  The Defendant did not marry, so the Plaintiff was not entitled to possession of the Premises. Further or alternatively, the Plaintiff was estopped from exercising any right to possession of the Premises because the Defendant acted on the 1^st Assurance by spending about $220,000.00 on the Interior Renovation.

The Defendant counterclaimed for a declaration that she was entitled to exclusive possession of the Premises up to the date she marries.

II.   Witnesses

5. Both the Plaintiff and the Defendant gave evidence. Notwithstanding their mother-daughter relationship, there is much bitterness between them as vividly illustrated by the Plaintiff’s calling the Defendant “Ms Ng” in her evidence. The Plaintiff became quite emotional and broke down in tears when she gave evidence, and the Defendant was quite agitated when she recalled the Plaintiff’s alleged name-calling.

6. In assessing witness’ credibility, I have borne in mind not only the parties’ demeanour in court, but also the intrinsic value of their evidence upon considering the totality of the witness’ evidence against the documentary evidence (including witness statements), inferences based on inherent probabilities and/or undisputed facts, the history of events and the pleadings (see the principles set out by Chung J at paragraph 12 of Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13^th August 2005)).

7. On balance I prefer the Plaintiff’s evidence whose account sits well with the factual matrix and is unshaken in cross-examination on the core issues. The same cannot be said for the Defendant whose evidence is unsatisfactory as evident from the analysis below.

III.  Documents

8. There is no dispute as to the admissibility and authenticity of the documents in Part C of the trial bundle. However, on the first day of trial, I was informed by Ms Lam, counsel for the Plaintiff, that Mr Kwong, solicitor for the Defendant, gave her a bundle of documents said to be documents listed as item 10 of Schedule 1 Part 1 of the Defendant’s List of Documents (ie “documents relating to renovation” of various dates, “Disputed Documents”) just before the hearing commenced.

9. It transpired that the Plaintiff did not ask for inspection of the Disputed Documents in the course of the proceedings. On 10^th September 2008, the Plaintiff’s solicitors sent the draft index of the trial bundle (which did not refer to the Disputed Documents) to the Defendant’s solicitors. On 16^th September 2008, the Defendant’s solicitors agreed the draft index, but when the Plaintiff’s solicitors asked for the Disputed Documents, they replied that the documents were not to hand. The Defendant’s solicitors did not prepare any supplementary trial bundle. Further, the Defendant did not offer any explanation for the late availability of the Disputed Documents other than Mr Kwong’s assertion from the Bar table that he received such documents from the Defendant only on the day before trial (ie Sunday). However, after having taken instructions from the Defendant, Mr Kwong confirmed the Defendant would not rely on or adduce the Disputed Documents at trial, and they were not shown to the court.

IV.  Issues

10. The issues in the present case are as follows :

(a)  whether the Defendant gave the 1^st Assurance;

(b) whether the Defendant has been or was married at the time of trial;

(c)  whether the Plaintiff gave Previous Gifts to the value of $1,200,000.00 to the Defendant;

(d) whether there was any Tenancy Agreement;

(e)  whether the Defendant carried out the Interior Renovation, and if so, what was the cost thereof;

(f)   if there was the Tenancy Agreement, whether the Defendant failed to pay rent after April 2003;

(g)  if there was the Tenancy Agreement, whether the Plaintiff was entitled to vacant possession of the Premises and arrears of rent/mesne profits until delivery up of vacant possession;

(h)  if the Plaintiff gave the 1^st Assurance and carried out the Interior Renovation (and there was no Tenancy Agreement), whether the Plaintiff was estopped from seeking vacant possession of the Premises.

11. All along up to the time when she gave evidence, the Defendant maintained the Plaintiff voluntarily gave her the Title Deeds as security/evidence and she was not required to return them to the Plaintiff. But Mr Kwong in his closing submissions conceded the Defendant should return the Title Deeds to the Plaintiff. Consequently, Ms Lam and Mr Kwong agreed that the Title Deeds should be returned to the Plaintiff within 14 days of my handing down this Judgment.

12. Further, even though all along up to the time when she gave evidence the Defendant maintained she was entitled to occupy the Premises until she got married (but not as tenant), Mr Kwong in his closing submissions conceded that notwithstanding any claim of proprietory estoppel, the Defendant should unconditionally deliver up vacant possession of the Premises to the Plaintiff 6 months after my handing down this Judgment. Ms Lam disagreed that the Defendant was entitled to remain at the Premises for another 6 months, but reminded that Mr Kwong’s concession amounted to admission by the Defendant of the maximum equity even if she were able to establish proprietory estoppel.

V.    Legal principles on proprietory estoppel

13. Mr Kwong confirmed that the Defendant’s defence and counterclaim rested solely on proprietory estoppel arising from the Plaintiff’s 1^st Assurance and the Defendant’s expenditure in relation to the Interior Renovation. He also agreed with the legal principles of proprietory estoppel set out in Ms Lam’s written opening submissions.

14. The modern starting point of the doctrine of proprietary estoppel is Ramsden v Dyson (1866) LR 1 HL 126 in which Lord Kingsdown said at p.170 as follows :

“If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without obligation by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation.”

15. Lord Templeman in AG of Hong Kong v Humphreys Esatte (Queen’s Gardens) Ltd [1987] AC 114, 121 stated that the doctrine of proprietory estoppel is where “…… a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment in that belief is enabled to obtain that interest”.

16. A modern formulation of the essential elements of the doctrine can be found at Megarry &  Wade, The Law of Real Property 7^th ed (2008) at pp.698-699 as follows :

“(i)  An equity arises where:

(a)   the owner of land (O) induces, encourages or allows the claimant (C) to believe that he has or will enjoy some right or benefit over O’s property;

(b)  in reliance upon his belief, C acts to his detriment to the knowledge of O; and

(c)   O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive.

(ii)    This equity gives C the right to go to court to seek relief. C’s claim is an equitable one and subject to the normal principles governing equitable remedies.

(iii)   The court has a wide discretion as to the manner in which it will give satisfy the equity in order to avoid an unconscionable result, having regard to all the circumstances of the case, including, but not limited to, the expectations and conduct of the parties.

(iv)  The relief which the court may give may be either negative, in the form of an order restraining O from asserting his legal rights, or positive, by ordering O either to grant or convey to C some estate, right or interest in or over his land, to pay C appropriate compensation, or to act in some other way.

The issue in any given case is whether it would be unconscionable for O to deny that which he has allowed or encouraged C to assume to his detriment.”

VI.  Premises

17. The Premises were the Plaintiff’s matrimonial home since 1969 even though she was not named as a co-owner. Mr Ng offered several times to add her name as co-owner. At first she was too ill to attend to the same, and later she thought it unnecessary since she was already residing at and had no intention to sell the Premises. In fact, she had lived at the Premises for more than 30 years.

18. The Plaintiff lived frugally because Mr Ng had limited income and only gave her a few hundred dollars (and on occasion $1,500.00) for her monthly household expenses. She supplemented the household income by earning about $4,000.00 per month from providing child care services at home. There is dispute as to whether she did such work for 10 odd years (according to the Plaintiff) or for a shorter period (according to the Defendant), but nothing turns on such difference.

19. In my view, although the Plaintiff was not named as a co-owner of the Premises prior to 2000, she contributed to the purchase of the Premises by looking after and earning household income for the family. The mortgage was paid off in 1972, so the Defendant (who was then 7-8 years old) was too young to have made any meaningful contribution. Whilst I accept the Defendant helped to assemble plastic flowers and transistors at home when she was young, I am not persuaded she made any material contribution for the purchase of the Premises.

20. Mr Ng passed away in 1993. In 1994, the Defendant took the initiative to liaise with solicitors on arrangements to vest ownership of the Premises in the Plaintiff. The Plaintiff at first thought it unnecessary, but eventually she and her children signed the Deed and Assent. The Defendant confirmed the solicitor explained and she understood the legal effect of the Deed was that the Plaintiff became the sole owner of the Premises upon her children (including the Defendant) waiving any claim to the Premises.

VII. Previous financial contributions

(a)  Defendant

21. It is the Defendant’s case that (a) of her siblings she gave the most financial support to the Plaintiff and (b) since she started to work and earn income she continuously gave the Previous Gifts to the Plaintiff over the years to a total value of $1,200,000.00. Although not mentioned in her pleadings and/or witness statement, the Defendant gave evidence that she also paid for the Plaintiff’s hospital fees.

22. On balance, I do not accept the Defendant’s evidence :

(a)  Although Mr Kwong suggested to the Plaintiff in cross-examination that the Defendant had worked as a nightclub hostess, the Defendant did not mention her job or income in her witness statement or evidence.

(b) The Defendant gave evidence that prior to March 2003 she paid regular monthly maintenance of about $9,000.00 to the Plaintiff out of her bank account, yet she never mentioned this in her witness statement or disclosed her bank passbooks or statements in support of her contention.

(c)  The Defendant did not particularise the jewellery that she gave to the Plaintiff. But the Plaintiff was able to state clearly the Defendant only gave her 8 pieces of ornaments and provided photographs of such items. I prefer the Plaintiff’s plea and evidence that such ornaments were not worth more than $10,000.00.

(d) The Defendant did not particularise the apparel she gave to the Plaintiff, eg the approximate quantity for each season. On the other hand, the Plaintiff was able to state clearly under cross-examination that the Defendant only bought her 3 pairs of shoes, 2 pairs of slacks, 2 summer dresses, 1 winter suit and 1 overcoat, which apparel was unsuitable since the Defendant bought them according to her preferences rather than the Plaintiff’s. Again, I prefer the Plaintiff’s evidence which were detailed and believable.

In the circumstances, I reject the Defendant’s bare assertion that she was capable of paying and/or actually paid regular monthly maintenance of $9,000.00 to the Plaintiff.

23. I prefer the Plaintiff’s evidence that the Defendant (a) never told her family much about her work, and (b) only made irregular contributions to the Plaintiff’s maintenance on an on-and-off basis. In the Plaintiff’s eyes, the Defendant was not a caring daughter. She would stop maintenance contribution to the Plaintiff for an extended period if, say, the Plaintiff told her off for wearing revealing clothes. Even when the Defendant felt like giving some money to the Plaintiff, it was very “受氣” for the Plaintiff and Mr Ng (and later the Plaintiff) to accept a few hundred to a thousand dollars at a time from the Defendant who scolded them fiercely and on 1 occasion even slapped Mr Ng.

24. But when she gave evidence the Plaintiff fairly volunteered the information that for about a year in/about 1996 the Defendant gave her a monthly contribution of $6,000.00. Such payments arose out of a telephone conversation whereby the Defendant found out the Plaintiff could not even afford an outside meal when returned home late after visiting WH who was then in jail.

25. In my view, the Plaintiff’s evidence above has a ring of truth. I accept that prior to late 2001 and/or early 2002 the Plaintiff lived frugally and had simple meals because she had no income apart from meagre contributions from her children.

26. It is common ground that the Defendant paid WH’s legal fees for his criminal trial. The Plaintiff fairly admitted she could not afford to pay such legal fees, but on balance I accept she did not request the Defendant to pay such fees. In the circumstances, I do not see how the Defendant’s voluntary payment of such fees can be regarded as her contribution for the Plaintiff. 

27. But even had the Defendant paid regular monthly maintenance of about $9,000.00 to the Plaintiff and gave her the Previous Gifts to the value of $1,200,000.00 (which I disagree), it would not have assisted the Defendant. The bulk of such contributions/gifts (which I disagree) would have been made before the Deed was executed in 2000, but notwithstanding such contributions/gifts (which I disagree) the Defendant took the initiative to have the Premises vested in the Plaintiff and to waive any claim of right/interest of and in the Premises. In my view, this does not sit well with the Defendant’s contention (which I reject) that the Plaintiff made the 1^st Assurance because of her Previous Gifts to the Plaintiff.

(b)  Janet

28. There is no dispute Janet gave maintenance contributions to the Plaintiff although not in large sums. In the Plaintiff’s eyes, Janet was a caring daughter who gave half of her monthly income to the Plaintiff on a regular basis ever since she started to work. After Janet went to the United Kingdom, she had no work for the first 2-3 years and could only remit a hundred odd dollars for her parents’ birthdays. Later she remitted about £2,000.00 to the Plaintiff each year, and gave money to the Plaintiff whenever she visited Hong Kong (ie a few thousand dollars upon arrival and all leftover monies upon departure).

29. As seen in paragraph 34 below, it is common ground that Janet paid for the Dongguan Premises purchased in the names of Janet and the Plaintiff. In my view, given Janet’s regular financial contributions to the Plaintiff, it is improbable that the Plaintiff would have made the 1^st Assurance to the Defendant and allowed her to occupy the Premises to the exclusion of her siblings pursuant thereto because of the Previous Gifts.

(c)   WH

30. I accept the Plaintiff’s evidence that WH with his previous conviction found it hard to hold down any job, and he did not make any financial contribution to her.

(d)  Winnie and WK

31. Both Winnie and WK had their own families. Winnie rarely gave money to the Plaintiff, but would treat her to “yum char” on her birthday. Every now and then Winnie’s husband would give the Plaintiff a few hundred dollars. When he started to work, WK gave $500.00 a month to the Plaintiff, which was increased to $3,500.00 when he still lived at the Premises. Later, he moved out due to some misunderstanding.

VIII.    Former Flat

32. Before early 2002, the Defendant lived at the Former Flat, which was 800-900 sq ft in size, and she paid a monthly rent of $14,000.00 (according to the Defendant) or $14,000.00 with subsequent reduction to $13,000.00 (according to the Plaintiff). Nothing turns on such difference. The building where the Former Flat was located was newer than Kiu Kwan Mansion, and the living condition of the Former Flat was better than that of the Premises. 

IX.  Plaintiff’s move to Mainland China

33. In late 2001, Janet invited the Plaintiff to live in the United Kingdom, but the Plaintiff was reluctant because (a) the weather was cold there, (b) she did not understand the English language, and (c) she feared she would be bored. The Plaintiff preferred to live in Mainland China as the living standard was cheaper, and she also had a mind to provide a home for WH if required. So Janet told the Plaintiff to look for a property in Mainland China, and gave her a sum between $100,000.00 and $200,000.00 to purchase such property.

34. In/about late 2001 or early 2002, the Plaintiff used Janet’s funds to purchase a secondary market property in Dongguan, Mainland China (“Dongguan Premises”) in the joint names of Janet and herself. The Plaintiff kept her counterpart of the title deeds of the Dongguan Premises. Janet Ng returned to the United Kingdom shortly after the purchase, so she only collected her counterpart of the title deeds from the estate agency when she visited the following year. The Plaintiff’s boyfriend, Mr Chan Hoi Wah (“Mr Chan”), paid for the refurbishment of the Dongguan Premises including furniture, curtains and metal gate.

X.    Tenancy Agreement

35. On balance, I prefer the Plaintiff’s evidence that at/about end of 2001 or early 2002, she mentioned to the Defendant she would move to the Dongguan Premises and let out the Premises to earn rental income for her living expenses. I also accept the Plaintiff asked the management office of Kiu Kwan Mansion and her friends to help let the Premises for such purpose after she moved out.

36. It is common ground that the Defendant broke up with her boyfriend at about that time. She claimed she left him because he was ill and could not take care of her. In any event, the Plaintiff gave evidence (which the Defendant did not refute and which I accept) that the Defendant was upset by the break-up.

37. I further prefer the Plaintiff’s evidence that taking into account the Defendant’s spendthrift nature in relation to personal expenditure and her obligations to pay rent, management fees and utilities expenses of the Former Flat (which the Plaintiff estimated to total about $30,000.00 per month), the Plaintiff was concerned the Defendant would exhaust her nest egg of about $1,000,000.00 (inclusive of a sum of $700,000.00 given by her ex-boyfriend) in less than 3 years. In light of such background and since the Plaintiff intended to let the Premises anyway, I find on balance that she offered to let the Premises to the Defendant.

38. If taken up, such offer would have killed two birds with one stone with the Defendant avoiding payment of expensive rent and outgoings for the Former Flat and the Plaintiff earning rental income for her living expenses. At first, the Plaintiff asked for a monthly rent of $4,500.00 inclusive of rates but exclusive of management fees and all other outgoings, but the Defendant told her “晤好咁瑣碎啦,我俾五千鈫一個月俾你啦”. Eventually, it was orally agreed the Plaintiff would let the Premises to the Defendant for a monthly rent of $5,000.00 exclusive of all management fees, rates and all other outgoings in respect of the Premises (ie the Tenancy Agreement), and the Defendant would let the Plaintiff and Mr Chan stay overnight at the Premises when they visited Hong Kong to purchase provisions and seek medical treatment.

39. I accept the Tenancy Agreement would help the Defendant save about $8,000.00-$9,000.00 on rent alone, so if she lived frugally, she would have what the Plaintiff regarded as “富裕生活” and might even have some savings. The Tenancy Agreement would also benefit the Plaintiff by generating regular rental income for her living expenses and giving her a place to stay when she visited Hong Kong.

40. Mr Kwong cast doubt on the Tenancy Agreement since it was open-ended with no fixed term. I am not persuaded this is enough to discredit the Plaintiff’s evidence in this respect. First, it is the very nature of a monthly tenancy not to have a fixed term. Secondly, the Plaintiff explained (and I accept) that since the Defendant was her daughter, she did not sign any written tenancy agreement or contemplate the length of the tenancy term. Thirdly, the Plaintiff thought that if she became too old to shuttle between Mainland China and Hong Kong, she would return to live in Hong Kong (since she was dependent on local public medical services) whereupon she would ask the Defendant to deliver up possession of the Premises. Winnie and WK had their own families and would not be able to take her in. I find such thinking realistic and credible for a woman in her sixties with limited income, and I accept the Plaintiff believed she could repossess the Premises upon giving notice to the Defendant.

41. In my view, it is logical and probable for the Plaintiff to insist on the Tenancy Agreement. I accept the Plaintiff had little savings and insufficient maintenance from her children, and it was Mr Ng’s intention to let her have the Premises to sell or let in order to support herself. In my view, that was why her children (including the Defendant) concurred in giving her sole ownership of the Premises, and indeed the Defendant did not offer any other reason for the Deed. It is therefore sensible and believable that upon moving to the Dongguan Premises the Plaintiff would let the Premises (ie her sole income-generating asset) to earn rental income for her living expenses. I find it improbable that the Plaintiff would remove the means to support herself by giving the 1^st Assurance to the Defendant.

XI.  1^st Assurance

42. The Defendant claimed she moved to the Premises in early 2002 because the Plaintiff told her “不如省卻萬四租金，妳搬番[the Premises]住，妳可以住到你結婚為止，期間不用交租，只需要交水電煤、差餉、管理費等雜費” (ie the 1^st Assurance), and she agreed.

43. I find it unbelievable that the Plaintiff would have made the 1^st Assurance to the Defendant :

(a)  At that time, the Defendant was 37-38 years old. Prior to early 2002, she had dated and cohabited with boyfriend(s) and rejected offer(s) of marriage. It appears that whilst she is no stranger to romance, she has not found her way to the altar. As explained above, she broke up with her boyfriend at about that time, and there was no new suitor with whom she was prepared to consider marriage. Although the Defendant claimed fate might bring new romance or even marriage her way, she confessed she was not thinking of marriage at all in early 2002. Against such background, I find it improbable that either party had the Defendant’s marriage in mind when they discussed her occupation of the Premises.

(b) As apparent from the Plaintiff’s evidence (which I accept), she was skeptical of the Defendant’s marriage prospects. She knew that throughout the years the Defendant had been in and out of cohabitation with 1 boyfriend or another, and she believed there was little difference to the Defendant between cohabitation and marriage apart from the marriage certificate. Against such background, I find it unlikely that the Plaintiff would offer to let the Defendant occupy the Premises until she got married.

(c)  Given the Plaintiff’s dependency on rental income from the Premises, I find it improbable that she would excuse the Defendant from paying rent for occupying the Premises or let any gratuitous occupation of the Premises expire upon such an uncertain event as the Defendant’s marriage which might not happen at all.

(d) The Defendant claimed the 1^st Assurance was justified by her Previous Gifts to the value of $1,200,000.00. Even if the Defendant did give the Previous Gifts to the Plaintiff (which I disagree), the Defendant could not satisfactorily explain why the Plaintiff would benefit her and not the other children, especially Janet who also waived her right/interest of and in the Premises but gave maintenance contributions to the Plaintiff and purchased the Dongguan Premises for her.

(e)  The Defendant admitted in evidence that the 1^st Assurance only gave her a right to occupy the Premises but no beneficial interest, so she was required to unconditionally deliver up possession of the Premises when she got married. This does not sit well with the 2^nd Assurance referred to in paragraph 49 below.

(f)   The Defendant gave evidence that she was entitled to reside at the Premises until she got married, which does not sit well with the concession in Mr Kwong’s final submissions that she should reasonably reside at the Premises for another 6 months only irrespective of marriage or otherwise.

44. I accept the Defendant was still unmarried at the time of trial, but I do not agree she was entitled to reside at the Premises until she got married. Mr Kwong submitted that the Plaintiff’s 1^st Assurance made out of good-hearted and motherly concern was not uncommon in Chinese-style families. But there are no pleadings or evidence on such alleged custom. I find on balance the Plaintiff did let the Premises to the Defendant pursuant to the Tenancy Agreement for their mutual benefit as described above.

XII. Title Deeds

45. In the past, Mr Ng handled and paid the management fees, utility expenses and all other matters in relation to the Premises. After he passed away, the Plaintiff did not know much about the Premises. She was an elderly housewife who did not understand the English language and who had not purchased any property other than the Dongguan Premises which was done with Janet’s help. She kept part of the Title Deeds in her safe deposit box and part of them at home (because the safe deposit box was too small). Whilst I accept she knew the Title Deeds were important enough documents to be placed in her safe deposit box, I am not persuaded she realised the legal significance of the Title Deeds, and I accept she spoke the truth when she said she never thought about such matter at all.

46. I accept that in a casual telephone conversation with the Plaintiff in/about late 2001 and early 2002 which touched on property fire insurance, her friend朱玉霞 (“Madam Chu”) warned of loss if a fire broke out and there was no insurance to pay for repairs to the Premises. Mr Ng never mentioned and the Plaintiff did not know anything about fire insurance, but the Plaintiff accepted Madam Chu’s suggestion to purchase fire insurance coverage for the Premises. During a subsequent telephone conversation with the Defendant, the Plaintiff mentioned her conversation with Madam Chu. The Defendant was eager to offer help as the Plaintiff would not have understood English insurance policy terms, and she asked the Plaintiff to give her the Title Deeds to arrange purchase of fire insurance coverage for the Premises.

47. There is no dispute that the Plaintiff gave the Title Deeds to the Defendant. The Defendant claimed the Plaintiff went to the Former Flat with Mr Chan and gave her the Title Deeds. The Plaintiff claimed the Defendant invited her to “yum cha” and she went alone to give the Title Deeds to the Defendant. Nothing turns on the above differences as to the circumstances of delivery of the Title Deeds to the Defendant. I find on balance the Plaintiff gave the Title Deeds to the Defendant for the purpose discussed in the above paragraph.

48. I do not agree with Mr Kwong’s submission that the Plaintiff’s contentions did not hold water :

(a)  Mr Kwong argued that if the Plaintiff’s contentions were correct, the fire insurance would have been in place, but there was no fire insurance policy in the Plaintiff’s name. But such argument conveniently ignores the Plaintiff’s evidence (which I accept) that (i) despite the Defendant’s eager offer as aforesaid nothing came out of it and no insurance company ever contacted the Plaintiff, and (ii) the Plaintiff was quite aggrieved by the Defendant’s excuse that she did not yet have time to purchase the fire insurance policy and the Defendant’s rebuke of “你慌我食咗你呀” when she telephoned to ask the Defendant to return the Title Deeds.

(b) Mr Kwong claimed that if there were any need for fire insurance coverage, Mr Ng would already have attended to the same. But there is no evidence as to whether there was any fire insurance policy in relation to the Premises when Mr Ng was the registered owner. I accept the Plaintiff’s evidence that she had no idea and could not find any documents concerning the Premises (even the utility bills) when Mr Ng died.

(c)  Whilst parting with possession of the Title Deeds is not a light matter, I see nothing sinister in the Plaintiff giving the Title Deeds to her daughter (ie the Defendant) for the purpose of arranging fire insurance for the Premises. It is not as if the Plaintiff was giving away the Title Deeds, and the Defendant was the one who liaised with lawyers for the Deed and WH’s legal fees. The Plaintiff was incapable of handling such matter, and despite her reservations about the Defendant’s filial respect there was no reason to mistrust the Defendant over such matter.

49. The Defendant in her witness statement and evidence claimed that when the Plaintiff gave her the Title Deeds, the Plaintiff told her “你唔使驚，將來層樓我死咗都會俾你，現在先俾啲契你揸手” (“2^nd Assurance”), and it was reasonable for the Plaintiff to have made the 2^nd Assurance given her Previous Gifts to the Plaintiff.

50. However, the Defendant’s pleadings did not refer to the 2^nd Assurance at all. In paragraph 8(b) of the Consolidated Defence and Counterclaim, it was averred that “[the] Plaintiff gave the Defendant the [Title Deeds] as security and evidence that the Defendant can use occupy and enjoy the Premises as if it belongs to her to until such time as she has married” (ie the 1^st Assurance). I find the unexplained discrepancy between the 1^st and 2^nd Assurances unreliable.

51. Even when the Defendant gave evidence, she claimed on one hand that she had no beneficial interest in the Premises apart from a right to occupy until she got married (ie 1^st Assurance), but on the other hand she alleged she was entitled to prevent the Plaintiff from exercising her ownership rights (say, to mortgage the Premises) because of her contingent beneficiary interest in the Premises upon the Plaintiff’s demise (ie the 2^nd Assurance). These contentions do not sit well together.

52. Further, it is difficult to understand why the Plaintiff would promise to bequeath the Premises solely to the Defendant when her other children especially Janet also gave money to the Plaintiff and paid for the Dongguan Property. I note that by the Deed all the Plaintiff’s children (including the Defendant and Janet) waived any interest in the Premises notwithstanding any prior contribution/gift to the Plaintiff.

53. I also do not agree with the Defendant’s suggestion that the Plaintiff never demanded return of the Title Deeds prior to commencement of the present action. In fact, in 2005 the Plaintiff did demand by way of the Demand Letter. In my view, it was rightly conceded that the Defendant had no right to retain the Title Deeds, and the same should be returned to the Plaintiff.

XIII.    Interior Renovation

54. After the Plaintiff moved to the Dongguan Premises, the Defendant carried out the Interior Renovation by replacing the floor, renovating the toilet/kitchen/rooms, purchasing new furniture and electrical household goods, painting the walls, etc. The Defendant claimed she did so because of the 1^st Assurance. I disagree as I have rejected the 1^st Assurance for reasons explained above. Further, the Defendant admitted that the 350 sq ft Premises were in a dilapidated state, and (on balance I also find) she decided to carry out the Interior Renovation because she wanted to live more comfortably when she moved from the newer, larger and more comfortable Former Flat to the older, smaller and more dingy Premises.

55. The Defendant claimed she spent $220,000.00 on the Interior Renovation, which she paid for in cash or by cheque from her bank account. Yet she did not disclose any bank passbooks or statements, and chose not to adduce any of the Disputed Documents to support her contention. Thus, whilst I accept the Defendant did carry out the Interior Renovation, I am not convinced by her bare assertion that she expended $220,000.00 for such purpose. In any event, since I have rejected the 1^st and/or 2^nd Assurances, the Interior Renovation cannot aid the Defendant’s claim of proprietory estoppel.

56.  There is no dispute that after the Defendant moved into the Premises, the exterior wall of Kiu Kwan Mansion was renovated. But Plaintiff was not informed of such renovation because (and I also accept) the Defendant had a habit of not telling her things, and the low monthly rent (which would not be increased) under the Tenancy Agreement reflected the Defendant’s agreement to pay for all outgoings (including any share of renovation cost borne by the Premises, ie “Share Cost”).

57. Mr Kwong suggested it was obvious the Defendant relied on the 1^st Assurance and paid the Share Cost, but I prefer the Plaintiff’s evidence in the above paragraph. First, there is no evidence that Plaintiff as owner of the Premises was required to contribute any Share Cost over and above payment of management fees of the Premises. Secondly, I have for reasons explained above rejected the 1^st Assurance. Thirdly, the Defendant did not in her pleadings or witness statement aver any reliance on payment of any Share Cost in contra-distinction to her expenditure for the Interior Renovation for establishing her claim of proprietory estoppel.

XIV.    Occupation of the Premises

58. When the Plaintiff moved to the Dongguan Premises in early 2002, she gave the keys of the Premises to the Defendant who moved in after the Interior Renovation was completed. Interestingly, it is common ground that the Plaintiff did not have keys to the Premises. This is strange even on the Defendant’s case (which I disagree) because as registered owner of the Premises the Plaintiff was entitled to possession of the Premises when the Defendant got married. The Defendant did not offer any satisfactory explanation.

59. I find on balance that the Defendant refused to allow the Plaintiff and/or Mr Chan to stay overnight at the Premises when they visited Hong Kong as originally agreed, and the Plaintiff had no keys to the Premises because the Defendant (a) changed the metal gate and the door lock of the main entrance, (b) claimed she was not used to sharing accommodation with others since she left home in her teens to live on her own, (c) at times preferred paying the Plaintiff to stay overnight at a hotel, and (d) claimed she was entitled to exclusive possession of the Premises since she paid rent.

60. In my view, this explained why the Plaintiff had to take day trips to Hong Kong or on occasions sleep in the living room of Winnie’s home or on the floor at WK’s home, and why the Plaintiff had never visited the Premises and had no idea of the internal condition after the Interior Renovation.

XV. Payments by the Defendant

61. The Defendant claimed that when the Plaintiff moved to live at the Dongguan Premises she gave $28,000.00 to the Plaintiff, and thereafter until March 2003 she continued to pay monthly maintenance (not rent) of about $9,000.00 directly to the Plaintiff (and not through Winnie) out of her bank account.

62. On the other hand, the Plaintiff claimed she and Mr Chan stayed in Mainland China for Chinese New Year in 2002 as it was cold and wet, and the Defendant gave the relevant monthly rent to Winnie who passed it to the Plaintiff. Such mode of payment was adopted for about 3-4 months, but out of the monthly rent Winnie gave $3,000.00 to the Plaintiff and $2,000.00 to WH who was unemployed. Mr Kwong complained that the Plaintiff failed to call Winnie (who lived in Hong Kong) to give evidence, but the Plaintiff explained that Winnie had to work. In any event, having considered the totality of the evidence, my rejection of the 1^st and 2^nd Assurances and the overall unreliability of the Defendant’s evidence, I prefer the Plaintiff’s case in this respect.

63. The Plaintiff added that since she could not afford to engage movers, she and Mr Chan moved her belongings to the Dongguan Premises bit by bit whenever they visited Hong Kong, so the Defendant paid rent to her directly in cash for the first months. The Defendant also gave the relevant monthly rent in cash directly to the Plaintiff during her visits to the Dongguan Premises (a) with her friend and her friend’s parents during Chinese New Year in 2003 and (b) with WH during the SARS epidemic in March 2003.

64. In my view, the Plaintiff’s evidence when considered against the above factual matrix has a convincing ring. Although the Defendant claimed payment of $28,000.00 in early 2002 and regular monthly payments of $9,000.00 thereafter, she did not disclose any bank documents to support such contention, and did not offer any explanation for such non-disclosure. I am unable to accept her bare assertions.

XVI.    Dispute in March 2003

65. It is common ground that there was a big row between the Defendant and Mr Chan on 26^th March 2003 when the Defendant and WH visited the Dongguan Premises. The Defendant claimed the dispute was over health and hygiene matters during the SARS epidemic. On the other hand, the Plaintiff claimed the Defendant threatened to kick Mr Chan out of the Dongguan Premises, and in response Mr Chan rebuked the Defendant for mistreating the Plaintiff and not communicating with her over an extended period. The issues herein do not turn on the subject matter of the dispute, so it suffices to note that harsh words passed between the Defendant and Mr Chan. There was also a suggestion that Mr Chan took a chopper to the Defendant, but was warded off.

66. The Plaintiff claimed that when the Defendant returned to Hong Kong the following day, she telephoned to tell the Plaintiff she no longer had any filial feelings for the Plaintiff and would cease calling the Plaintiff mother. The Plaintiff replied there was no point in maintaining such relationship if she felt that way. The Defendant claimed she would not return the Title Deeds (so as to prevent any sale of the Premises) or pay rent, “等[the Plaintiff]唔好食得咁安樂，兜兜轉轉[the Premises]同埋[the Title Deeds]都落[the Defendant]手上”. The Defendant also demanded the Plaintiff to repay the expenses for the Interior Renovation in the sum of HK$180,000.00, but the Plaintiff replied she had never asked the Defendant to renovate the Premises lavishly.

67. I prefer the Plaintiff’s evidence in the above paragraph. It is telling that the Defendant did not return the Title Deeds even when she failed to purchase fire insurance policy for the Premises and when the parties’ relationship fell apart. The underlying basis of mutually benefiting each other was gone. Since I have rejected the 1^st and/or 2^nd Assurances, the Defendant had no reason to retain the Title Deeds unless she intended to thwart proper exercise of the Plaintiff’s ownership rights over the Premises.

XVII.   Post-March 2003

68. It is common ground that the Defendant ceased all payments to the Plaintiff after the row at the Dongguan Premises. There is a minor difference between the parties as to whether the Defendant ceased payment in April 2003 (according to the Defendant) or May 2003 (according to the Plaintiff). In all the circumstances, I prefer the Plaintiff’s contention.But what is more material is the non-payment was of rent and not of maintenance payment.

69. The Plaintiff claimed that when she subsequently telephoned the Defendant to chase for outstanding rent, the Defendant dared her to report to the police to arrest her. When the Plaintiff asked the Defendant what she wanted from not paying rent and refusing to deliver up possession of the Premises, the Defendant pretended she could not hear the Plaintiff and hanged up. Still later, the Defendant arranged password control for her home telephoneand redirected her mobile telephone to her answering service, which essentially cut off all communications.

70. On the other hand, the Defendant claimed the Plaintiff telephoned to call her names, “佢話如果我唔俾個五十萬俾佢嘅嚟, 佢將我以前嘅男朋友嗰啲名全部公開俾人聽”, so she immediately hanged up. She bought a recorder to record future telephone conversation should the Plaintiff tried to disturb her again.

71. Again, I prefer the Plaintiff’s evidence in paragraph 69 above. Although I accept there was bitterness between the parties, I am persuaded that when the Defendant ceased to pay rent the Plaintiff was more anxious about regular income for her own long-term financial survival than in making the alleged threats suggested by the Defendant, which allegations did not appear in the Defendant’s witness statement at all. In my view, it was the Defendant’s avoidance of the Plaintiff’s reasonable demands that the Plaintiff eventually had to retain solicitors to issue the Demand Letter.

72. Mr Kwong cast doubt on the Plaintiff’s claim because she did not take any active step to retain solicitors until 2005. However, the Plaintiff explained she was financially hard up and had to borrow money for legal fees. At that time, WK gave her about $1,000.00 each month, which she used up for her trip(s) to Hong Kong (including travelling expenses, cost of meals and expenditure on purchase of provisions). She lived on the sum of £2,000.00 Janet remitted to her each year, and borrowed money for any shortfall and for funding the present litigation. The Plaintiff was so financially straitened and so embarrassed by her delay in repaying her loans that she had to sell the Dongguan Premises shortly before trial and move back to Hong Kong. I see no reason to doubt the Plaintiff’s evidence.

73. In light of the foregoing analysis, the Plaintiff has clearly established the Tenancy Agreement. She has also established that in breach of the Tenancy Agreement, the Defendant failed to pay rent since May 2003 and failed to deliver up vacant possession of the Premises despite expiry of the Transitional Notice. On the other hand, the Defendant has failed to establish any proprietary estoppel. Given such findings, it is unnecessary to consider how the equity should be exercised upon establishing proprietory estoppel.

XVIII.  Conclusion

74. In the circumstances, I grant judgment in favour of the Plaintiff for the following :

(a)  the Defendant do deliver up vacant possession of the Premises to the Plaintiff;

(b) the Defendant do pay to the Plaintiff arrears of rent from 1^st May 2003 to 30^th September 2006 (ie $5,000.00 x 41 months) in the total sum of $205,000.00;

(c)  the Defendant do pay mesne profits at the rate of $5,000.00 per month from 1^st October 2006 until delivery of vacant possession of the Premises;

(d) the Defendant do pay interest on the outstanding rent in (b) above from the due date to the date hereof at the rate of 8.25% pa and thereafter at judgment rate until payment;

(e)  the Defendant do deliver up the Title Deeds to the Plaintiff within 14 days from the date hereof.

75. The Defendant’s counterclaim is dismissed.

76. There is no reason why costs should not follow event. I grant a costs order nisi that the Defendant do pay to the Plaintiff costs of the action (including costs of the counterclaim and all costs reserved if any) to be taxed if not agreed. Mr Kwong did not dispute that certificate for counsel was appropriate, so I grant certificate for counsel for the Plaintiff.

Representation:

Ms Rachel Lam instructed by Messrs Bobby Tse & Co for the Plaintiff.

Mr Paul Kwong of Messrs Paul Kwong & Co for the Defendant.