Ha Yuet Chi v. Yeung Yiu Keung

DCCJ 4616/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION NO.4616 OF 2008

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Coram: Deputy District Judge Alfred H H Chan

Date of Hearing: 11 and 12 March 2010

Date of Handing Down Judgment: 12 November 2010

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JUDGMENT

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1.The Plaintiff and the Defendant are mother and son. They are the registered owners, as joint tenants, of a Home Ownership Scheme flat at Flat C, 19^th Floor, Block 2, Chevalier Garden, Shatin (“the Flat”), and a car-parking space no.52, Commercial Development, Chevalier Garden (the “Car-park”).

2.In this action, the Plaintiff claims a declaration that the two properties are held on trust for her and that she has the sole beneficial interest in the two properties. She also claims that she has been effectively excluded by the Defendant from the Flat and seeks occupation rent in respect thereof.

Background

3.The Plaintiff, born in 1926, married Mr Yeung Shu Wing in 1945.  Together they raised 8 children – 8 sons and 2 daughters, who were born between 1947 and 1967.  The Defendant, born in 1957, was the sixth child.  The family originally resided in a corrugated iron hut, and then moved to two adjacent housing estate units in Tung Tau Estate in 1962.  At different stages, the older children, as they grew up or got married, moved out.  In around 1984 or 1985, the family became aware of plans for the redevelopment of Tung Tau Estate,  By this time, only the Defendant and the youngest son Yeung Chin Shing, aged about 27 and 17 respectively, were still living with their parents.  According to the formal notice to quit given by the Housing Authority in 1987, the family would have to move out by February 1989.  They could accept rehousing offered by the Housing Authority, or enrol themselves under the Home Ownership Scheme to purchase a flat of their own.  They chose the latter option, and in 1984 or 1985, registered themselves under the Scheme.

4.Mr Yeung Senior had been running a home industry style metalwork business, along with the Plaintiff, since 1955.  In 1971 they formalised the business and set up the Wing Sun Metal Factory at rented premises.  By 1984, they were able to purchase their own factory premises (“the factory premises”) at an industrial building in Fotan in Shatin, with the Plaintiff as the sole registered owner.  Most of the sons, including the Defendant, helped out in the factory at various times. In 1994, Mr Yeung Senior and the Plaintiff retired from the business, which was then taken over by two of the sons.  The business was finally closed down in 2004, when the Plaintiff also sold the factory premises.

5.The purchase of the Flat was completed on 1 October 1987 for a consideration of $266,600, with the Plaintiff and the Defendant being the registered owners as joint tenants. It is not in dispute that the down-payment of $146,600 was provided by Mr Yeung Senior and the Plaintiff from their joint bank account, and the balance of $120,000 was financed by a 10-year mortgage loan from the China State Bank Ltd (the predecessor of the Bank of China).  What is in dispute is whether the joint tenancy of the Defendant as co-owner was intended as a gift to the Defendant, and whether the Defendant made contributions to the mortgage payments.

6.The two parents and the two remaining sons (the Defendant and Chin Shing) moved into the Flat. In January 1989, the Car-park was also purchased, again with the Plaintiff and the Defendant being the registered owners as joint tenants.  The Car-park was made available for use by a light goods vehicle which belonged to the Wing Sun Metal Factory.  After the Plaintiff and Mr Yeung Senior retired from the business, they sold the vehicle.  Since then, the Car-park has been let and the rental income has been received by the Plaintiff.  Again it is not in dispute that the purchase price of $35,000 was provided by Mr Yeung Senior and the Plaintiff, but the Plaintiff’s case is that the Car-park was never intended as a gift to the Defendant.

7.Meanwhile, the youngest son got married and he and his wife moved out of the Flat in 1994, with only the Defendant living with the parents.  In 1997, Mr Yeung Senior passed away, leaving the Plaintiff and the Defendant in residence in the Flat.

8.In January 2006 the Defendant married a lady from Mainland China, and the two of them lived in the Flat with the Plaintiff.  It was then that domestic strife began to surface.  There were frequent quarrels and arguments among the three occupants.  In October 2006 the Defendant and his wife moved out of the Flat to avoid further unpleasantness, but within a few months’ time, they had to move back, in early 2007.  Some of the quarrels led to reports being made by the Plaintiff to the police about threatening behaviour by her daughter-in-law, and on one occasion, the Plaintiff was pushed to the floor by her daughter-in-law, which led to a criminal charge for common assault being laid against the latter, who was dealt with in the Shatin Magistracy by way of a conditional discharge and binding-over, compensation of $1,000 to the Plaintiff, and a fine of $2,000 for breach of an earlier bond.  In May 2008, the Plaintiff moved out of the Flat and has not been back since.

The Evidence

The Plaintiff

9.The Plaintiff gave evidence that all decisions were made between her and husband who trusted her.  Although she was illiterate, Wing Sun Metal Factory was registered as a sole proprietorship in her name.  She also signed Employer’s Returns for the business.  The factory premises which they bought were registered in her sold name.  She was also registered as the head of the household for their Tung Tau Estate units.

10.She and her husband had a joint bank account, into which income from the metalwork business was deposited.  The money for the down-payment for the Flat and the redemption of the outstanding mortgage in 1995, and the money for the purchase of the Car-park, all came from that joint account.  It was her and her husband’s joint decision to redeem the mortgage on the Flat 2 years early.  The monthly mortgage payments, about $1,400 per month with fluctuations, were also made through the joint account.

11.She never intended to make a gift of the Flat to the Defendant, and since she and her husband made their decisions together, she would have known if her husband had any such intention or related discussion with the Defendant.  The reason she and her husband decided to include the Defendant as a joint owner was that when they needed to apply for a mortgage, she was told by someone (the identity of whom she could not now recall), that as she and her husband were getting older (they were in their fifties and sixties respectively at the time), it would be difficult for them to get a mortgage from a bank; it was suggested to them that they should include a younger person as one of the applicants for the mortgage loan.  In 1984 or 1985, of the two sons living at home with them, the youngest son Chin Shing was too young (18 years of age or just under), and so they chose the Defendant.

12.As to making the Defendant a joint tenant, she explained that it was the Housing Authority’s policy (and still is) that where there were to be more than one owner, the Housing Authority would only accept joint ownership.  She was present at the solicitors’ office when she and the Defendant signed on the Assignment, and no one explained to her the meaning of a joint tenancy or its legal consequences.

13.In 1989, when car-parks in Chevalier Garden first became available for sale, she and her husband decided to buy a car-park, so that the light goods vehicle of the metalwork business could be parked there.  She denied that the purchase was the Defendant’s idea.  The whole of the purchase price, $35,000, was paid from their joint account.  After she and her husband retired from the business in 1994, they sold the vehicle and since then the Car-park has been let.  She would get tenants through estate agencies.  It was she who has been receiving the rental income.

14.She said that when they first moved into the Flat, the youngest son Chin Sing was still studying secondary school, and he started working after graduation.  Chin Sing would pay $1,000 to $2,000 a month towards household expenses.  Later he got married, and after he and his wife lived at the Flat for 2 years, they moved out of the Flat.

15.Initially, she said that the Defendant never made any contribution towards household expenses.  After correction by her own counsel, she agreed that the Defendant began to pay her $1,500 a month, for only 3 to 4 years, after moving into the Flat.  Before then, the Defendant had never contributed to household expenses.

16.She and her husband had never given assets of any significant value to any of the children.  They expected the children to take care of themselves financially and at the same time did not expect the children to support them in their old age.  The joint bank account (which became her own account after her husband died) would be their retirement fund, and the Flat would be their residence. When asked if she had considered what was going to happen to the two properties after she died, her answer was effectively that she had not made any arrangements about it.

17.She also explained how, after her daughter-in-law started living with them, the Defendant and his wife were always arguing or quarrelling.  Apart from the matters referred to in paragraph 8 above, on one occasion, she was locked out of the Flat because a padlock had been placed on the grill of the front door. Even before she left the Flat permanently in May 2008, she had had to move out of the Flat and back a few times.

18.Under cross-examination, the Plaintiff explained that when the Defendant was in his twenties, he had an accident and suffered some severe burns, as a result of which he had to go in and out of hospital, and was unable to work.  This lasted a number of years.  By the time they moved to the Flat, the Defendant had been back at work, as a taxi driver.  She denied the suggestion that she or Mr Yeung Senior had considered purchasing a residence from the private sector, whether it was Amoy Garden as suggested or elsewhere, and they had never asked the older sons whether they would take up the mortgage payments for such a residence, or for the Flat.  When asked what discussion she and Mr Yeung Senior had had with the Defendant over the latter being made a joint tenant, she said they never discussed it with the Defendant.  She only told the Defendant shortly before signing.  When asked when she first became aware of the perceived need for a younger person as an applicant for a mortage loan, she said it was when they needed to apply for a mortgage.  They also never had any discussion with the Defendant about requiring or expecting him to make the mortgage payments, and she dismissed such a possibility due to the Defendant’s lack of financial capability.

19.It was suggested to her that making the Defendant a joint owner of a Home Ownership Scheme property would make him ineligible for public housing.  When asked if she or Mr Yeung Senior had discussed this issue with the Defendant, she said never, but it was never their intention that after her death, the property should go to the Defendant.

20.She said that the $1,500 monthly payments (over 3 to 4 years) by the Defendant were not mortgage payments, but mere contribution towards the household, as he was living under the same roof.  She denied that the Defendant had paid $2,000 a month for 10 years.  At first she denied that the Defendant had ever paid the management fees for the Flat, but after being shown some documents, she agreed that in more recent times, the Defendant has been paying the management fees.  She said that the Defendant had played no part in getting tenants for the Car-park, and denied that the Defendant had posted advertisements in public places to attract prospective tenants.

21.At the personal level, she agreed that she had had no problem with the Defendant before his marriage, and that even now, her relationship with the Defendant was good.  As for her daughter-in-law, the Plaintiff would not say that their relationship was bad, just that the couple were always quarrelling.  In relation to the incident in which she was unable to gain access to the Flat because a padlock had been placed at the door, she agreed that afterwards she was given a set of keys by the Defendant.  She also agreed that prior to that incident, it was she who had on an earlier occasion placed at the door a padlock to which the Defendant and his wife had no keys.  The Plaintiff also agreed that after she left the Flat in May 2008, she had gone back a few times with no difficulty.

Other Witnesses for the Plaintiff

22.Two more witnesses were called for the Plaintiff.  Mr Yeung Yiu Sing is third child of the family, and the second oldest son.  He related how, between 1975 and 1978, the Defendant was hospitalised as a result of burns suffered in a fire.  He also spoke to an incident in about 1987 when the Defendant acted as the middle-man in introducing a customer to the metalwork business, received from the customer the purchase price but held it back from the business for a year; and it was only after persistent requests that the Defendant paid back what was due to the business.  Mr Yeung Yiu Sing also said that his parents had always expected the children to be financially independent, while at the same time never expected the children to look after them in their old age.  As far as he understood, his father would not make a gift of the two properties to the Defendant.  Under cross-examination, he denied having ever been asked by his father to take up the mortgage payments for an Amoy Garden property that his father was allegedly considering purchasing, or for the Flat.  He also denied that he had quarrels with his father over money matters.

23.Mr Chak Ping Kuen is the husband of the seventh child and the youngest daughter of the family. In 1986, the Defendant borrowed $50,000 from him, and it was not until 1989 that the Defendant repaid $30,000, with the balance still outstanding.  In 1995, the Defendant borrowed $100,000 from him for the Defendant’s “lingzhi” business, which had never been repaid.  He denied that the $100,000 was an investment in the “lingzhi” business instead of a loan.  After the death of Mr Yeung Senior, the family decided to buy a niche in a columbarium in Shatin, and each child had to contribute a sum of $25,000.  The Defendant never paid his share, which was in the end paid by the Plaintiff.  In cross-examination, Mr Chak agreed that the Defendant did not take part in the decision to buy a place in the columbarium and he was not sure if the Defendant ever agreed in the first place to make a contribution.

The Defendant

24.The Defendant gave evidence that due to an injury (his burns), he was unable to work and support himself until about 1980 when he was about 23.  Later he started working as a driver and in 1983 became a taxi driver, earning about $6,000 a month.  With his savings, he also started a trading business in Mainland China, which ceased in 2005.  He said that before the purchase of the Flat, his father asked him if he would like to be a co-owner of the Flat, and if so, he would have to pay the monthly mortgage repayments.  His father said that he was getting on and in due course the Flat would belong to the Defendant, and reminded the Defendant that if the Defendant became an owner, he would not be able to apply for public housing.  The Defendant agreed to be a co-owner and to make the mortgage payments.  It was his understanding that the Flat was a gift to him; his parents would reside there until they die, when the Flat would be solely owned by him.  He believed that he was included as a co-owner because he was a son and he had the financial means to pay for the mortgage.  As to why the other sons were not chosen, he believed that it was because his father had in fact earlier asked two of his older brothers if they were willing to pay for a mortgage for a flat in Amoy Garden, which was turned down by his brother. His younger brother Chin Sing was too young at the time to take up the financial responsibility.  Since the purchase of the Flat, the Defendant paid $2,000 each month in cash to the Plaintiff specifically intended for the mortgage payments, for a total of 10 years, i.e. until 1997.

25.It was his suggestion to his father that they should buy a car-park, as he regarded it as a good investment.  He believed that he was included as a joint owner because his father had been impressed with the way he had kept up with the monthly payments and was paying more than the monthly mortgage payment amounts.  He understood that the Car-park was also intended as a gift to him.  Since sometime in the 1990’s, the Car-park had been let.  He had helped in locating tenants for the Car-park, and sometimes tenants were found by estate agents.  The rent has always been paid over to the Plaintiff.

26.In cross-examination, when asked what sort of savings he had in around 1984 or 1985, the Defendant said that he did not have much.  His business in Mainland China was mainly the trading of electronics.  Although he did not have much savings, he did have other partners.  When asked about the alleged discussion with his father about taking up the mortgage payments for the Flat, he agreed that they did not talk about the actual sums.  When challenged how he was able to promise to make the payments when no sums were even mentioned, the Defendant answered that he had an idea in his own mind, but he was a taxi driver by then and that gave him a relatively steady income, while at the same time his expenses were low because he did not spend money on entertainment.  As to the management fees and rates for the Flat and the Car-park, the Defendant said that he started paying them from about 1999, when the Plaintiff stopped the autopay arrangement.  He would pay the money to the Plaintiff for her to pay to the management office.  After he got married, he would give the money to his wife for her to make the payments.

The Law

27.Before I make my findings in this case, I should say a brief word on the law applicable in this case.  In this case, at least some of the money for the purchase of the properties came from the father and the mother.  In Lee Tso Fong v Kwok Wai Sun, [2008] 4 HKLRD 270, it has been held that in Hong Kong the presumption of advancement applies to a mother and child relationship.  However, I agree with both parties’ submission that the most important issue is the intention of the parties at the time of the purchase: Re Superyield Holdings Ltd [2002] 2 HKC 90; Stack v Dowden [2007] 2 AC 432.  Ultimately the court’s task is to come to a conclusion about the intention of the parties involved, as gleaned from the available evidence of their conduct at the time of the purchase of the properties and thereafter, the history of their relationships and any relevant individual characteristics of the persons involved.  I should also note that since the two properties are registered in the joint names of the Plaintiff and the Defendant, the burden is on the Plaintiff to show that there is a resulting trust in her favour.

Discussion

The Properties

28.The Plaintiff is now about 84.  Despite her venerable age, she appeared to me to be enjoying relatively robust health.  In her evidence, which was conducted in Cantonese, she had no difficulty in understanding and answering questions put to her. Despite her lack of education and her illiteracy, the Plaintiff was an integral part of the family and also the family business.  Perhaps slightly unexpectedly, it was the Plaintiff and not her husband who became the registered proprietor of Wing Sun Metal Factory.  She signed the Employer’s Returns.  The income from the business went into a bank account which was in the joint names of herself and her husband.  When they bought the factory premises in 1984, she was the sole owner.  When they bought the Flat and the Car-park, it was the Plaintiff and not her husband who became one of the joint owners.  When eventually after their retirement the Car-park was let, it was also the Plaintiff who signed the tenancy agreements, and not the Defendant. She received the rental income.  She has also kept a very good, if not meticulous, record of documents, such as bank passbooks covering all the way back to the 1980’s, demands or receipts for management fees and rates, and even the household registration card for their Tung Tau Estate housing units.  It was the Plaintiff who has custody of the title deeds to the Flat and the Car-park.  In short, the Plaintiff was and still is a shrewd and intelligent lady, quite capable of looking after her own interests.  The Defendant has put forward the case that it had been Mr Yeung Senior who was the dominant figure in making all the decisions concerning the family and the family business.  The Plaintiff said that the decisions were always jointly made between her husband and herself.  In this regard, I have no doubt that the Plaintiff would have been an important part of any major decisions, including the purchase of the properties.

29.The Defendant left school at Form 3 in secondary school.  He tried to learn the trade by helping out in the family business, but he said he was not very good at it and not very interested.  Then in 1975, when he was about 18, in an accident the details of which none of the family members spoke about, he suffered burns which hospitalised the Defendant for the next few years.  He did not have a very good start to his adult life.  In cross-examination, when asked whether in 1983, before the family decided to purchase the Flat, he contributed to household expenses, he admitted that he did not, and added that at that time, he would be lucky not to have to ask the family for support, and he was not proud of it.  Working as a taxi driver later gave him a more steady income. But he also dabbled in trade in China, no doubt wishing to make something of himself, but the China business probably was not as successful as he had hoped.  In the witness box, he spoke with the very occasional stutter, although it could have been due to nervousness; and he did not come across to me as being particular bright.  All the other children of the family have become independent and live on their own.  Only the Defendant continued to live with the Plaintiff (until she left in May 2008).  Although he moved out with his wife at one stage, that lasted for only a few months.  Perhaps of all the children, he has been the least successful, or at least has not been a great achiever.

30.I now come to the evidence surrounding the purchase of the Flat.  The Plaintiff’s evidence was that the reason the Defendant was included as a joint owner was that they needed, or at least thought they needed, a younger person to join in the mortgage application.  She also said, of the two sons still living with them, the youngest son Chin Sing was too young, not even 18, and so naturally they chose the Defendant.  She also admitted that the first time she became aware that they needed to get a younger person to apply for a mortgage was when they needed to get the mortgage.  That would have been 1987.  By that time, the youngest son was already about 20.  That throws some doubt on the Plaintiff’s recollection of events.  More important, though, is that among the documents supplied by the Plaintiff was a mortgage dated 16 March 1984 executed by the Plaintiff in favour of the China State Bank over the factory premises, in respect of general banking facilities up to $90,000 to be granted to the Plaintiff and Wing Sun Metal Factory as the requesting parties.  Although the facility was described as general banking facilities for the business, the mortgage was executed on the same day as the completion of the purchase of the factory premises.  It was a mortgage loan for financing the said purchase.  The Plaintiff was able to obtain a mortgage, on her own without a younger person, in 1984.  In 1987, when they wanted to obtain a mortgage for the Flat, she already had experience of obtaining a mortgage – on her own without a younger person.  That mortgage by the way was discharged in October 1989.

31.The Plaintiff also said that she virtually had no discussion with the Defendant about including him as a joint owner of the Flat.  She only told him about it shortly before they had to sign the relevant documents.  If her intention had been to remain as beneficial owner of the Flat despite the Defendant’s paper title, one would expect her to have laid her cards on the table and made it clear at least to the Defendant, if not to the other children as well.

32.She also said that she, her husband and the Defendant never had any discussion about the Defendant’s disqualification from applying for public housing after the Defendant became a joint owner of the Flat.  By then, the Plaintiff and her husband had lived in public housing for over 20 years; some of their older children who had moved out were living in public housing or had applied for it.  The Plaintiff and her husband with their experience of public housing would have been keenly aware of the difficulties in applying for public housing and the requirements therefor.  They must also have realised that the Defendant most likely would need to apply for public housing at some stage in the future.  If their intention in including the Defendant as a joint owner had merely been for their own convenience to facilitate the mortgage application (and at the same time imposing at least a legal liability on him), without having even mentioned the issue of disqualification from public housing to the Defendant, then they would have done him a great disservice.  This was not something which the Plaintiff and her husband, who by all accounts were caring and responsible parents, likely would have done.  See also Chan Yin v Chan Yee Mei, unrep, DCCJ 8506/2001, 14 April 2002, Deputy District Judge Marlene Ng.

33.Mr Wilfred Tsui, counsel for the Plaintiff, posed for the court’s consideration the question why Mr Yeung Senior, and/or the Plaintiff, would have singled out the Defendant for favourable treatment, when they had never given assets of any significant value to any of the children.  Mr Alwin Chan, counsel for the Defendant, suggested that by then the Defendant had a steady stream of income as a taxi driver so that he would be able financially to support the mortgage payments; the older sons had previously turned down a similar offer in respect of Amoy Garden or had had disagreements with Mr Yeung Senior over money matters; and the youngest son was just too young.  For the purpose of this judgment, it is unnecessary for me to making an actual finding as to why the Defendant had been chosen to be included as a joint owner.  However, it is not beyond the realm of reason that the parents had done it because they felt that the Defendant, of all the children, was the one most in need of a helping hand in life.  Unlike the older brothers, he had failed to show his worth in the family business.  Then he suffered severe burns in an accident which set him back for quite a few years.  I mention this only to indicate that a decision to “single out” the Defendant in such a way would not have been an irrational, or even unfair, decision.  On the other hand, I agree with Mr Tsui’s submission that the Defendant’s ability to meet the mortgage payments has been overstated.  The evidence shows that by 1987, the parents’ financial position was fairly comfortable in their modest way.  They had been able to purchase the factory premises in 1984.  The joint account passbook showed a very decent balance just before the purchase of the Flat.  Later, in 1989, they were able to purchase the Car-park with cash upfront, and to redeem the mortgage on the factory premises.  They would not have needed financial help from the Defendant.  However, this perhaps further supports the notion that far from seeking help from the Defendant, they were trying to guide him, through the imposition of a regular financial commitment, towards a more responsible life.

34.I now come to the issue of mortgage payments.  On the Plaintiff’s own admission, the Defendant did contribute $1,500 a month after moving into the Flat, albeit for only 3 or 4 years.  It is also significant that before then, he had never made any such contribution.  This is consistent with the Defendant’s evidence that he had been asked by his father to make the mortgage payments for the Flat, so that he only started making contributions after the family moved into the Flat.  Although in her evidence the Plaintiff said she regarded the payments as contribution to basic household expenses and not mortgage payments, the important thing is that the Defendant began to make contributions towards the pool of resources for meeting the household’s overall outgoings.  It would have been unrealistic to expect such contributions to be earmarked as mortgage payments or household expenses.

35.It is not necessary for me to find whether the Defendant had been paying $2,000 or $1,500 a month, and whether such payments lasted only a few years as the Plaintiff said, or for the entire 10 years as the Defendant claimed.  I suspect that the truth probably lies somewhere in between, with the Defendant paying what he could due to his uncertain finances.  A precise arithmetical calculation of each party’s contribution is less important in a family setting: Stack v Dowden, per Baroness Hale of Richmond.  What is important is the intention of the parties at the time of the purchase.  Having regard to the family history, the parties’ relationships and their individual characteristics, and the evidence as a whole, including the evidence that the Defendant commenced making contributions towards the outgoings of the household right after the move to the Flat, I am not satisfied on the balance of probabilities, that the Plaintiff and her husband intended at the time of the purchase that the whole of the beneficial ownership in the Flat should remain with the Plaintiff.

36.As to the evidence of the two other witnesses called by the Plaintiff, I regard their evidence as having marginal relevance.  It tends to show that perhaps the Defendant was far from financially secure, and was perhaps a little unreliable.  It may have more of a bearing if the parents had actually needed financial help, but as the other evidence shows, it is unlikely that the parents, in including the Defendant as a joint owner, was looking for such help.

37.Both counsel submit that the decision on the issue of ownership of the Car-park should follow the decision on the Flat.  Given that the Car-park was purchased only 2 years after the Flat, in the same property development, and the same parties were named as the joint tenants of the Car-park, I agree that the parties had intended the same arrangement to apply to the Car-park.  For this reason and those stated above, I have come to the same conclusion in respect of the Car-park.

Ouster

38.I now come to the issue of exclusion or ouster of the Plaintiff from the Flat.  As joint tenants, the Plaintiff had an equal right to enjoy the Flat as the Defendant has.  Where a co-owner has been excluded from the property by the other (and such ouster may be actual or constructive), the offending co-owner is liable to pay occupation rent to the other.  See Dennis v McDonald [1981] 2 All ER 632; Chieco v Evans (1990) 5 BPR 1127.

39.While I have great sympathy for the Plaintiff, I am unable to find on the evidence that she had been ousted from the Flat.  The incident of the padlock on the door is insufficient to show ouster, as the Plaintiff admitted that she had been given a set of keys to the padlock afterwards, and in any event, it was the Plaintiff herself on an earlier occasion who put a padlock on the door.  As to the conduct of the Defendant’s wife, it is no doubt unfortunate that she had pushed the Plaintiff on to the floor, but even on the Plaintiff’s evidence, her relationship with the Defendant was actually fine, and even in relation to her daughter-in-law, she would not say it was bad, just that the Defendant and his wife were quarrelling all the time.  The evidence as a whole does not support a case of ouster.

Conclusion

40.For the above reasons, I dismiss the Plaintiff’s action, and I make an order nisi that the Plaintiff do pay to the Defendant the costs of this action, while the Defendant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Postscript

41.As I mentioned to the parties at the end of the hearing, whatever decision I make in this case is unlikely to resolve the parties’ domestic issue, which is what triggered the present proceedings.  In the light of the family relationship between the parties in this case, the trial has been conducted by both counsel with appropriate sensitivity.  From what I could observe, the relationship between the Plaintiff and the Defendant is far from being irreparable, and I hope that the parties will not regard this judgment as in any way posing an obstacle to their reconciliation, if that is at all possible.

Mr Wilfred Tsue, instructed by Kitty So & Tong, for the Plaintiff

Mr Alwin Chan, instructed by K B Chau & Co and assigned by the Director of Legal Aid, for the Defendant