Ykym v. Ymct

FCMC 15997/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 15997 OF 2011

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J U D G M E N T
Determination of Preliminary Issue of Ownership of Property

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1.The matter before me is for my determination of a preliminary issue over the beneficial ownership of the parties’ former matrimonial home in London before proceeding to a FDR hearing of the Petitioner Wife’s ancillary relief application.

2.The property, which is now estimated to be worth more than £800,000 is registered in the Respondent Husband’s sole name but was all paid for by his mother, the Intervener herein who claims to be the sole beneficial owner, while the Wife’s case is that it was the Mother’s wedding gift to her and the Husband who is holding her half share on trust for her. This is denied by the Husband who claims to have no beneficial interest in the property and is merely holding it for his mother. Essentially his case is the same as that of the Mother.       

3.The issue is therefore one of fact turning on the intention of the Mother at the time of the purchase, to be decided in the same way as it would be in the Chancery Division instead of as a matter of discretion as normally in ancillary relief applications.

Background

4.The Husband and Wife, who were both born in Hong Kong and now aged 36 and 35 respectively, first met in about 1998 while studying in England, and sometime thereafter moved in together in an apartment at Swiss Cottage, London owned by the Husband’s parents, who were described by the Wife as very wealthy.

5.In 2002 the Husband’s father became very ill, and the parties returned to Hong Kong to stay at his parents’ home at Amber Garden, Wanchai, until the father passed away in 2004. In May 2004 the parties returned to London. On 13^th June 2006 the said property at Berkeley Tower, London (“London Property”) was purchased in the Husband’s sole name. As noted above, it was the Mother who paid for its purchase price and all related costs and expenses.

6.On 23^rd December 2006 the parties registered their marriage and made their home in the said London Property. In September 2010 they moved back to Hong Kong and stayed in another flat of the Mother in Amber Garden during which both worked as an accountant.

7.Sadly soon after the parties started to experience marital problems, and on 16^th November 2011 the Wife filed for divorce in these proceedings based on the Husband’s unreasonable behaviour, and sought general ancillary relief, there being no children of the marriage.

8.The petition was not opposed and the decree nisi of divorce was granted on 18^th January 2012, with the question of ancillary relief adjourned for FDR. In her Financial Statement (Form E) the Wife claimed that the London Property was purchased as a wedding gift for her and the Husband and hence she has a 50% beneficial interest in the property (P1 : 24). In his Form E the Husband claimed that the property belongs to his mother and that it was put in his name for convenience purpose only (P1 : 244).

9.On 29^th May 2012, just 1 day before the FDR hearing, the Mother filed an affirmation disputing the Wife’s case that the property was her wedding gift for the parties, that it was in fact for her family’s use in London, and that since her son was living in London, it was more convenient for him to deal with the purchase and hence it was put in his sole name.

10.As a result the parties agreed at the FDR hearing on 30^th May 2012 that the preliminary issue over the beneficial ownership of the London Property should first be resolved by way of a mini-trial in line with what was suggested in TL v ML (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263, and that the Mother be formally invited to apply to intervene in the proceedings for that purpose, which she subsequently did by way of an order dated 27^th July 2012, with all 3 parties pleading their respective case by affirmations instead of by points of claim and defence, as would otherwise be the case in the civil court, with oral testimony and cross-examination at the trial, with Ms Cruden representing the Wife, Mr Clough for the Husband, and Mr Coleman SC for the Mother.

Applicable Principles

11.Since it is not in dispute that the London Property was all paid for by the Mother, the onus is on the Wife to prove that the Mother intended to purchase it as a wedding gift for her and the Husband to be beneficially held by them jointly. Ms Cruden however submits that the Wife is also entitled to rely upon the presumption of advancement which she argues is not wholly inconsistent with her case, which includes the uncontested facts that the Husband is the Mother’s son and that he holds the legal estate of the Property. It is on those facts that she submits that the presumption of advancement arises, and she relies on two recent decisions of the High Court, Lee Tso Fong v Kwok Wai Sun [2008] 4 HKLRD 270, and Lee See Bui Freddy v Choy Kim Pong Lewis and others (Unrept., HCMP 1239/2008, 3 September 2009).          

12.In Lee Tso Fong, where the facts are quite similar, a mother purchased a flat and transferred it to the joint names of her son and daughter-in-law, and when the latter petitioned for divorce and claimed the flat from her husband, the mother sought a declaration that she was the beneficial owner of the flat on the basis that when she bought the flat she intended to house her son and daughter-in-law near their daughters’ school, that she never promised to gift it to them, and that they held it for her benefit under a resulting trust. The son did not contest the proceedings but declared in the divorce proceedings that he had no beneficial interest in the flat. The daughter-in-law claimed that the flat was a gift to them, and that the mother had acknowledged their beneficial interest in a family agreement to buy the flat from them at market price to protect it from being sold to solve their financial problems, while they could buy back the flat at any time by returning monies received from the mother without interest.   

13.In dismissing the mother’s claim against both the son and daughter-in-law, Deputy Judge Anthony To (as he then was) held that :

(a)  The principle that a mother had no obligation in equity to provide for her child was outdated. Given prevailing socio-economic conditions, the presumption of advancement applied equally to the relationship between mother and child as to father and child. It must be presumed, in the absence of contrary evidence, that a mother who purchased property and transferred it to her child intended to gift it to the child (Dagle v Dagle (1990) 70 DLR (4^th) 201, Brown & Another v Brown & Another (1993) 31 NSWLR 582 followed; Watson v Smith [1998] 3 HKC 461 distinguished; Bennet v Bennet (1878 – 79) LR 10 Ch D 474 not followed). (See paras.14 – 17)

(b)   However, in general, the parent and child-in-law relationship could not create the presumption of advancement and it was not appropriate to extend the presumption to that relationship (Knight v Biss [1954] NZLR 55 distinguished). (See para.19)

(c)   The presumption of advancement, which only applied to the parent and child relationship, was an exception to the primary presumption of resulting trust. Evidence which rebutted the former presumption reinstated the latter. Thus, where a parent who purchased property and transferred it to his child sought to rely on the presumption of resulting trust, the legal burden of proof must be on the parent to rebut the presumption of advancement (Murless v Frankin (1818) 1 Swans 13, Napier v Public Trustee (WA) (1980) 55 ALJR 1 applied; Dyer v Dyer (1788) 2 Cox Eq Cas 92, Seldon v Davidson [1968] 1 WLR 1083 distinguished). (See para.25)

(d)   For other relationships, in the absence of contrary evidence, the presumption of resulting trust applied and the evidential onus was on the done to rebut the presumption of resulting trust with evidence of a contrary common intention to make a gift. In special circumstances, the parent and child-in-law relationship would be much closer than that of parent and child and in those exceptional cases, it would be for the child-in-law to prove a gift by rebutting the presumption of resulting trust. But the legal burden of proof remained on the donor. So, if the daughter-in-law in that case succeeded in discharging the evidential onus, the mother would fail, unless she could discharge the legal burden of proof by proving an express trust. (See paras.20, 23, 26)    

14.The learned judge then proceeded to find that the daughter-in-law had succeeded in rebutting the presumption of resulting trust by the common intention of all 3 parties inferred from the circumstances that the mother had maintained a very close relationship with the son and daughter-in-law and their daughters and supported their livelihood, that she purchased the flat to salvage their marriage and to make it convenient for their daughters’ schooling, and that she transferred the flat into their joint names and gave them possession of the flat after having it renovated and furnished according to their specification. He found that the family agreement was evidence that the mother intended to transfer the flat as a gift to them and that she did not retain any beneficial interest in it. Her agreement to purchase the flat at market price, rather than a nominal one, could only convey to a reasonable reader of the agreement her recognition of the son’s and daughter’s legal and beneficial interest therein (Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 897 applied). (See paras.119 -120, 122, 125-127, 133)   

15.In the son’s case, the learned judge held that, given the mother and son relationship, the presumption of advancement applied. Just as the presumption of resulting trust against the daughter-in-law was rebutted, the presumption of advancement in favour of the son was not rebutted by the mother by the mother. Thus, the presumption of resulting trust against the son was also displaced. If the presumption of advancement did not so operate so as to displace the presumption of resulting trust, the latter presumption would also have been rebutted on the facts in any event. (See para.128)

16.In the second case of Lee See Bui Freddy, where the plaintiff claimed that his late wife was holding on trust for him certain money and shares and sought a declaration accordingly, Deputy Judge Au (as he then was) considered whether the burden to rebut the presumption of advancement between a husband and wife had been discharged, held at pp.22-23:

“[69] In the premises, I am not satisfied that Freddy has rebutted the presumption of advancement. In coming to this conclusion, I have reminded myself of the following principles:

(1)   The presumption of advancement is just a judicial instrument of last resort and could be rebutted even by only slight accepted evidence of a contrary actual intention: McGrath v Wallis [1995] 2 FLR 114 at 115A; Overseas Trust Bank v Lee See Ching [1999] 3 HKC 197 at 201E to G per Godfrey JA.

(2)   However, given the local context in Hong Kong, the presumption of advancement should not be treated as so easily displaceable as that accepted in the English jurisdiction: Cheung Pui Yuen & Others v Worldcup Investments Inc & Ors (Unrep., FACV 34 of 2007, 29 October 2008, Bokhary, Chan, Riberio, PJJ, Litton and Lord Scott NPJJ) at para.7 per Litton NPJ.

[70] I find that Freddy purchased the Happy Valley Flat in Madam Tang’s name as a gift for her, and she was not holding it on trust for him. It follows that Freddy does not have any beneficial interest in the sale proceeds thereof or the HK$1,800,000 and the shares.”   

17.This element of local context in Hong Kong referred to above was also considered by the Court of Appeal in Bank of China (Hong Kong) Ltd v China Hong Kong Textile Co Ltd [2011] 4 HKLRD where Lam J (as he then was) said at para.25:

“ … In Hong Kong, bearing in mind the close-knit setting in a Chinese family, we regard much of what had been said in the context of husband and wife can be applied to a mother using her property to finance the business of her son, although we recognise that there might be difference in degree.”  

18.These underlying principles are clear and well established, and as submitted by Mr Coleman for the Mother, when there is a gratuitous transfer containing no express or inferred provisions determining beneficial ownership, the starting point is that there is a rebuttable presumption of resulting trust, that is that the transferor did not intend to make a gift. 

19.The presumption, as submitted, may be rebutted either by extraneous evidence that the transferor did intend to make a gift, or by a counter rebuttable presumption of advancement that the transferor did intend to do so, but where the relationship between the transferor and the transferee is not such as to raise a presumption of advancement, the presumption of resulting trust will operate so that the transferor retains beneficial ownership if there is no evidence of the actual intention of the transferor.

20.Furthermore, while there might be a presumption of advancement between a mother and son, there is clearly no such presumption between a mother and son’s girlfriend, as submitted by Mr Coleman to be the case here. In any event, whatever is the suggested presumption will only apply in the absence of direct evidence of intention, and that such evidence of intention must apply to the time of the purchase, and by reference to the circumstances at that time only: Overseas Trust Bank Ltd v Lee See Ching John [1999] 3 HKC 197; The Oxley v Hiscox [2005] 1 Fam 211; Stack v Dowden [2007] AC 432; Jones v Kernott [2011] 3 WLR 112.

21.Ms Cruden for the Wife however argues that such evidence of the acts and declarations of the parties before or at or immediately after the time of the transaction, constituting part of the transaction, is admissible for or against the party doing the act or making the declaration, but evidence of subsequent acts or declarations is admissible only against the party doing or making them, as it was held by Godfrey JA in Overseas Trust Bank Ltd, supra at p201H – I. 

22.This is what the court did in Lee Tso Fong, supra, she argues, when it applied the rule that subsequent acts and declarations which reflect the intention of the parties are only admissible as evidence against the party who did the act but not in his or her favour, and held at p309:

“ … Mr Wong submits that the Court should only consider the intention of the parties at the time of the transaction. That is a correct proposition. Acts and declarations of the parties before or at the time of the purchase of the property or so immediately after it as to constitute part of the transaction are admissible in evidence either for or against the party who did the act or made the declaration. However, subsequent acts and declarations which reflect on the intention of the parties are also admissible to the extent that they are evidence against the party who did the act or made the declaration, but not in his favour.”     

23.Again I do not think there is any issue here amongst the parties, which is clear that the onus is on the Wife to prove that the Mother intended to purchase the property as a wedding gift for the Wife and the Husband to be beneficially jointly held by them although it was purchased not in their joint names, which is a straightforward factual issue at the time of the purchase, but the court may also take into account or consideration of relevant acts or declaration before or after the purchase to determine what that intention was at the time of the purchase, but as submitted by Mr Clough for the Husband, it would be helpful to bear in mind of what Litton NPJ said in Cheung Pui Yuen and Others v Worldcup Investments Inc and Others, FACV 34/2007 (Bokhary, Chan, Ribeiro PJJ, Litton and Lord Scott of Foscote NPJ) about the presumption of advancement in that it is ‘nothing more than an evidential tool, that its weight varies with the circumstances of the case.’ (See para.6)

24.Accordingly, and bearing in mind these legal principles, I shall next set out the respective case of all those involved, starting with the Wife’s.

The Wife’s Case

25.As noted above, the Wife first made her claim that the London Property was a wedding gift for her and the Husband in her Form E but without any further particulars thereof until her affirmation of 30^th August 2012 (TB : 42), in which she described in details the circumstances surrounding the purchase and thereafter from paragraphs 17 – 34, which can be summarized as follows:

(a)   The Mother was all along well aware that the parties had been cohabiting in London including at the Swiss Cottage apartment owned by her and her husband;  

(b) In 2004 the parties started to look for their own home and eventually decided on the said Property in April 2006, and that it was the Wife who dealt with the purchase and negotiated the terms directly;

(c)   The execution of the purchase was deliberately timed on the same day of the Wife’s 30^th birthday on 13^th June 2006;

(d)   The Wife agreed that her name not be included in the title of the property as it would be more mortgage-efficient if they were later to purchase another property so that she could make use of the first time buyer benefit under the UK system;

(e)   The Mother was well aware of their marriage plan as she needed to give the Husband the engagement ring that she had bought and placed in her deposit box in Hong Kong;

(f)   It was the Wife who arranged renovation and furnished the property according to her own taste without any input from the Husband’s immediate family, and it was the parties who paid for such expenses;

(g)   The property became the parties’ self-owned matrimonial home in London for the next 4 years, during which they jointly contributed to all its running costs except for the management fees which were paid through money the Husband had periodically received from the Mother, until their move to Hong Kong in 2010;

(h)   The Mother was given a duplicate key to the property for her convenience only when she was visiting UK;

(i)   After they left London and relocated to Hong Kong, the parties had let out the said property and the Husband had kept the rental income for his own use without having to account to the Mother;

(j)   It is for all these reasons that the Wife argues that the said property belongs beneficially to her and the Husband and not the Mother, and therefore it should form part of their marital assets.         

26.The Wife further pointed out in her affirmation that the Husband’s 2 elder brothers and a sister had all been generously provided for by their parents including cash, shares in their companies, properties or free accommodation, and hence there is nothing unusual for the Mother to purchase a property for them as wedding gift.

The Mother’s Case

27.The Mother specifically denies that the London Property was a wedding gift for the parties, and her case is set out in her affirmation of 15^th August 2012 (TB : 9) as follows including some relevant background of her connection with UK:

(a)   She and her late husband first met in UK when they were students there and were UK passport holders, that they married in 1959 and have 4 children, with the Husband being their youngest child;

(b)   She and her husband purchased their first property in London in 1959 but sold it in 1965 when they decided to return to Hong Kong;

(c)   In about 1990 when the Husband went to boarding school in UK, she and her husband decided to purchase the Swiss Cottage Property in London so that they and other family members would have a place to stay while visiting the Husband, which she and her husband would do 3 – 4 times a year on average;

(d)   Later in 1995 when the Husband entered university in London, they let him stay in the said Swiss Cottage apartment, while they would continue to travel between UK and Hong Kong until her husband’s health started to deteriorate due to his heart problem in 1997, and had had to cut down on their travelling;

(e)   It was only in late 2001 when the parties came to stay with them at their house in Hong Kong when she learnt that the Wife, then just a girlfriend, had moved into her Swiss Cottage apartment to cohabit with her son, and that as the apartment had been left vacant, she decided to sell it in 2003;

(f)   After her husband passed away in 2004, the parties returned to London in May of the same year where she leant that they first stayed at the home of the Wife’s father and later in a rented apartment;

(g)   She would continue to travel to London to visit her son once or twice each year but given the limited space of his rented apartment, she had to stay in the hotel or at her friend’s place which she found inconvenient, so she decided in September 2005 to purchase a new home in London for her and her family’s future use, and therefore asked the Husband to deal with the matter including sending her photos of various properties by e-mails for her consideration;

(h)   In December 2005 she almost bought an apartment in St. John’s Wood, but the deal fell through when the vendor withdrew it at the last minute;

(i)   In April 2006 she decided on the said London Property at Berkeley Tower, so she flew to London to view the property with the Husband, and told him to go ahead with the purchase on her behalf before travelling on to the US to deal with other matters;

(j)   The purchase of the London Property was completed on 13^th June 2006 by the Husband and was put in his sole name for convenience purpose only as he was then living in London while she would be spending most of her time in Hong Kong, and that it was not any wedding gift for him or the Wife either expressly or impliedly, as at that time she did not even know that they were contemplating marriage, and that even if she had known, she would not have done so as she had never purchased any property for any of her other children as wedding gifts prior to their marriage;

(k)   After the purchase she would choose the furniture, but since the parties were going to live there to look after the place for her on a day to day basis, they would also buy things for the home, while she would keep her own key to the flat with her own bedroom where she had kept some of her clothing, and that she would also pay for the Council Tax and management fees by remitting money to the Husband from time to time either by cheques or by bank transfers for him to do so on her behalf;

(l)   In about September 2010 when the parties returned to stay and work in Hong Kong, she wanted to sell the London Property but the parties suggested to her to wait for the market to go up, so she asked the Husband to in the meantime let it out for rental income;

(m)   As for wedding gifts, she did give certain diamond ornaments and jewelleries to the Wife, similar items to those she had given to her other daughter-in-laws, but certainly never anything in the form of an apartment such as the London Property, which is her own property and not the parties’ matrimonial asset.

The Husband’s Case

28.The Husband’s case is essentially the same as his mother’s, with additional evidence surrounding the circumstances of the purchase of the London Property in his affirmation of 5^th September 2012 (TB : 235) as follows:

(a)   He met the Wife in September 1998 and it was in about February 1999 when she moved in with him at the Swiss Cottage property;

(b)   In December 2001 when his father became critically ill, his mother asked him to return to Hong Kong to spend more time with his father, so he brought the Wife along at her insistence, and while his mother was not pleased about it, she put up with it and treated the Wife well;  

(c)   After his father passed away in January 2004, he and the Wife decided to move back to work in London in May 2004 and after initially staying at her father’s place, they rented an apartment as their home;

(d)   When his mother visited them in London, she found their apartment too small to accommodate her, and so in September 2005 she asked him to search for a property in London as a home for her and the family;

(e)   He and the Wife therefore started viewing various properties and would send photos and information to his mother via the Wife’s email account for her consideration and decision;

(f)   He gradually let the Wife to become more involved in the search of property for his mother, but when it came to liaising with the lawyer it was he who took control as he was authorized by his mother to do so;

(g)   On 15^th May 2006 he received the final version of the contract of sale from his lawyer, who then told him that the completion date would be in 4 weeks, which would take it to 13^th June 2006, and the fact that it was the Wife’s birthday was just coincidental;

(h)   There was never any suggestion or indication by his mother, expressly or impliedly, that the property was a wedding gift for them, as she had planned to purchase a property back in October 2005, long before their plan to get marry;

(i)   When the London Property was left vacant upon the parties’ return to Hong Kong in September 2010, his mother wanted him to sell it but he and the Wife were able to persuade her to wait for the market to go up and in the meantime to let it out, with the rental income being used by him to meet various expenses of the property including tax and management fees as well as his own personal uses as he believed that his mother would not be bothered with its account.                   

The Issues

29.Given the fact that the London property was paid for by the Mother but put in the Husband’s sole name, there are in effect two factual issues that require my determination :

(a)   Was the London Property a wedding gift of the Mother for the parties?

(b)   If not, was it then a gift or advancement by the Mother to the Husband?

A negative answer to issue (a) may of course also answer issue (b), such as if the Mother is found to have never intended to pass the beneficial ownership of the property to the Husband. I shall now consider the evidence before me on these issues, starting with the Wife’s case that it was a wedding gift.

Wedding Gift

30.The onus is of course on the Wife that it was intended to be a wedding gift for her and the Husband when Madam H purchased the property, but Mr Coleman for the Mother has submitted that even the Wife’s own evidence was incapable of making good her such argument, as there was never any evidence either in her affirmation or testimony in court that the Mother had ever expressly or impliedly said so, and that her whole approach to her case was that she merely went along on assumptions of what is known or meant without any actual direct words being used.     

31.Or in the words of Mr Clough for the Husband, that her case consists merely of a mixture of her wishful assertions peppered with inconsistencies and contradictions which do nothing to establish a common intention by the 3 parties to buy the property in the name of the son to be beneficially jointly held by him and his wife.

32.Firstly, he argues, that the Wife was mesmerised by the wealth of the family she married into, as she said in Part 5.5 of her Form E (P1: 42):

“My father-in-law left a very large fortune of inheritance to my mother-in-law and the remaining members of the family including the Respondent. As far as I know, when my father-in-law passed away, the estate duty of his estate cost the family some HK$0.3 billion (even at a time when the stock market crashed and when the Respondent’s father’s assets comprised of a lot of securities and investment).”

33.It was with this belief, Mr Clough suggests, that the Wife came to form her wishful thinking over the property and gave this account of its purchase in the same paragraph of her Form E:

“The Respondent proposed to me shortly before my 29th birthday. On about 13 June 2006, which was my 29th birthday, the London property at Westferry Circus (see Part 2.2 above) was purchased by the Respondent’s mother as a wedding gift for us. We subsequently married on 23 December 2006. The property was registered in the Respondent’s name but it was mutually understood to be our joint property and became our matrimonial home in the UK.”    

34.She then went on to say the following in her said affirmation (TB : 48):

“[20] (The Husband) and I decided to purchase the Berkeley Tower property in April 2006, but not as (The Mother) suggested that the decision was made by her in paragraph 14 of her August 2012 Affidavit ...

[21] (The Husband) was born on the 10th of June and I was born on the 13th of June. He proposed to me on his 30th birthday on 10 June 2006, just 3 days before my 29th birthday that year which would give time for us to be married before my 30th birthday, as we had always planned…”

35.It is these circumstances, Mr Clough submits, that the Court will scrutinise how the Wife puts her case as follows to see the clear and obvious flaws:

(a)   When Husband and Wife returned to London they lived in rented accommodation in Hindon from July 2004 to June 2006, as she said in paragraph 16(c) of her Affidavit (TB : 46) : “This was intended to be temporary until we found a property to purchase.”

(b)   “We decided to buy a property in Canary Wharf … I was the one who dealt with the vendor and the property lawyer directly and who negotiated all the terms in relation to the purchase including direct face to face negotiations with the vendor on the price, the handling of deposit, the fixing of two broken windows and other issues such as management fee investigation.” (TB : 47, paragraph 18)

(c)   “(The Husband) and I decided to purchase the Berkeley Tower property in April 2006, but not as (the Mother) suggested that the decision was made by her in paragraph 14 of her August 2012 Affidavit.” (TB : 48, paragraph 20)

(d)   The Mother was going to purchase the property. She would purchase it in the Husband’s sole name but was intended as a wedding gift and so would be beneficially owned by both the Husband and Wife.

(e)   The Husband suggested putting the property in joint names but the Wife wanted to keep open the UK first time purchaser benefit and declined.

(f)   The parties were engaged when the Husband proposed on 10^th June 2006. This was 3 days before completion which coincided with the Wife’s birthday. In fact the Wife says the completion date had been fixed for 13^th June 2006 since it was her birthday.

36.It is against these evidence of the Wife that both the Mother and the Husband argue that her case was chronologically impossible, as it was in September 2005, more than 1 year before the wedding and some 9 months before the Husband was to propose to the Wife, when the Mother formed the intention to purchase a property in London, and when the said Property was decided on in April 2006, it was still 2 months before the parties’ engagement, and hence it begs the obvious question of how could it be purchased for their wedding gift, when there was no plan for wedding at that time?      

37.While it is not impossible in the circumstances for the Mother to have later changed her mind after learning of the parties’ proposed marriage to decide to treat the property as their wedding gift, but there is simply no evidence at all, not even from the Wife, to suggest that that was indeed the case.

38.In fact, as submitted by Mr Coleman for the Mother, the Wife has never identified any words of gift ever being allegedly spoken or written by the Mother, and that even at the trial the Wife’s evidence is woefully short of establishing the necessary gifting of the Property to her and the Husband whether as a wedding gift or at all.

39.Instead, Mr Coleman argues, that she has sought to place reliance on matters when even if correct do not advance her case, such as her assumption that the Mother must have known that she and the Husband were cohabiting in the Swiss Cottage home from the fact that she sometimes answered the phone when the Mother called, but she never suggested that either she or the Husband had actually told the Mother that fact, which he submits as typical of the Wife’s approach in going along on assumptions of what is known or meant without any actual direct words being used.

40.Assumptions such as that the Husband’s other siblings were also given wedding presents of property, which Mr Coleman argues as factually incorrect, and anyway that would not overcome the absence of any evidence of words of any gift, as presumably that argument is based on an idea of consistency, namely that if the parents gave all the siblings wedding presents of property, so must have the Mother done the same for the Husband and his bride to be.

41.This idea of consistency, he argues, would work against the Wife if it turns out that the other siblings were not given wedding presents of property, and that the evidence shows her to be incorrect, starting with the Mother’s of what wedding presents she actually gave each of them in her 1^st Affidavit (TB : 17 para23), and in her 2^nd Affidavit where she deals with the individual properties said by the Wife to have been wedding gifts for the other children (TB : 304 para4).

42.Firstly, Mr Coleman argues that the 29D Amber Property cannot have been a wedding present for eldest son K and his wife D as they were married in December 1990 where as the property was purchased only in May 1991 and in the name of a company G Ltd where the only shareholders were the Mother and Father, and while it is true that K and D later became the major shareholders, it was much later in 1998 and some 7 years after their marriage, and later in 2007 their shareholdings were transferred to another company known as BM Ltd owned beneficially by the Mother, facts which were never challenged by the Wife at the trial.

43.While the Wife has sought to suggest that the proceeds of 29D Amber, which was sold in December 2007, were used to purchase the home where K and D now live in the US and which she believes is for them to keep, the evidence shows that it was chronologically impossible as the US property was purchased back in 2003 when the father was seeking treatment and it was purchased for him to rest and recuperate while in the US.

44.As for the 25A Amber property which the Wife suggests was for the other brother E and his wife, again it was chronologically inconsistent with her case, as it was purchased in April 1996, some 5 months after E’s marriage in December 1995, in the name of a company S Ltd when the only shareholders were the father and E in equal shares but not his wife, and while E did later in 2003 become the majority shareholder, according to the Mother it was done when the father was critically ill and was only putting his affairs in order.

45.In any event, and regardless of the validity of her argument over these properties for the Husband’s brothers, there is no suggestion from the Wife that his sister C has had a property bought for her for a wedding present, or for any other reason, an inconsistency or anomaly which she did not seek to address either in her own evidence or in her cross-examination of the Mother. 

46.Mr Coleman therefore submits that it is perfectly clear that in so far as the Wife may think, or even may have thought, that she were to be treated like the other members of the family to have received a wedding gift of property, that is simply wrong as an important plank of her case is just not there, i.e. when the Mother told the Husband she wished to buy a property in London and he started looking for it, there is absolutely no suggestion in the Wife’s evidence of her or the Husband having told the Mother that they were getting married, that the engagement itself was in the following June, and that the Mother had asked them to look for a property which she could buy them as a wedding present. There is simply no such evidence.

47.On the other hand, all the evidence as to the circumstances of the purchase of the property clearly align with the Mother’s case, that when she decided to purchase a property in London in September 2005, the process started when the Husband and the Wife obtained the name of the solicitor in October 2005 (TB : 132), and started looking for the property. When potentially suitable ones were found, the details were e-mailed to the Mother via eldest brother K (TB : 247 - 282) for her consideration, and while her purchase of the property in St John’s Wood fell through, as pointed out by Mr Coleman, had it completed, that would have been around the end of 2005 when there was clearly no engagement, let alone wedding between the parties.

48.Furthermore, when the parties found the said Property in April 2006, they sent photos to the Mother as before, who then came to London to look at it and made the decision to purchase it, and before she left she authorized the Husband to purchase it in his name for convenience purpose, and the Wife knew it so, as in one of her correspondences with the Husband (TB : 134), she referred to “your” flat, not “our” flat, which Mr Coleman argues as certainly not consistent with her case, and that whoever else was to be an owner, it did not include her.

49.The Wife’s suggestion that the completion on 13^th June 2006 was chosen as it was her birthday is according to Mr Coleman nonsense, as it is clear from the solicitor’s emails (TB : 284 - 289) that the completion was to be the day that fell 4 weeks after the date of exchange of contract, i.e. 4 weeks from 16^th May 2006, and that as it also happened that the Husband decided to propose to the Wife on his birthday on 10^th June 2006 which was a surprise to her even on her own evidence, it follows that the Mother could not have known about it before that date so as to treat the purchase the property as a wedding gift for them, and while she was subsequently told about the engagement in June 2006, that cannot in my view assist the Wife’s case against the chronology of the purchase, not to mention the fact that no marriage date was fixed by then, which as aforesaid only took place much later on 23^rd December 2006. 

50.The facts that the Mother has a set of keys to the Property from the beginning and throughout, that she had regularly remitted money to the Husband for the Council Tax and management fees with documentary evidence which were not challenged at the trial (TB : 26 – 34), and when they moved to Hong Kong in 2010 the parties suggested to her not to sell the Property are all matters in my view consistent with the Mother’s case that she is the beneficial owner of the Property.

51.While it is true that after the Property has been let out, the Husband has kept some of the rental income for his own use without accounting to the Mother, for which he explained that due to their relatively insignificant amount, his mother did not bother with it, which is in my view not inconsistent with the fact that she has always been generous to her children.

52.There is no question that the Husband’s parents were very wealthy and had made generous provisions for their children, including free accommodation even after their marriage whether in Hong Kong, or in US for K and his family, and of course for the Husband when he was in London, but almost always in all cases that they, and the Mother after the death of her husband, would invariably retain beneficial ownership, whether solely or jointly, of those properties.

53.I believe it was clear to the Husband, and therefore to the Wife too, when the Mother told him to look for the property in London, that he would be allowed to live in that property, and that it would basically become his and therefore their home, in the same way as it was with the Swiss Cottage property, hence it was only natural and normal for them to be so actively involved in the searching and eventually purchasing of the property, and accordingly to have certain say as to the type or location of the property, or the furnishing and decoration thereof, and even to pay for some of them, knowing that there would not be any serious disagreement from the Mother, as after all they were the ones to reside there while the Mother would only be visiting a few times each year for a limited period each, and that it was also only natural for them to be responsible for the running costs, all of which however cannot mean, as pointed out by Mr Coleman, that they have gained beneficial ownership.

Conclusion

54.In conclusion, for all these reasons and upon hearing the Mother in evidence which I find straightforward, firm and concise, the onus of proof of which she has successfully discharged, I have no doubt that she purchased the London Property for her and the family’s use and not as wedding gift for the parties, and that it was put in the Husband’s name for convenience as he was then living in London and was going to be residing in the Property, of which she has always retained sole beneficial ownership.

55.This is not to suggest that I find the Wife to have lied about her interest in the Property, as I agree with both Mr Coleman Clough that it is rather a case that she had just formed the belief that the purchase of the Property was for her and the Husband together, that even though she was never able to say under cross-examination as to when, even on her own case, she became the joint beneficial owner, and that no one told her it was not hers, which is of course not a proper foundation for her case that it was given to her and the Husband as a wedding gift.

56.In the premises and as it turns out, these findings of mine have resolved both of the issues identified in paragraph 33 above. What remains is of course the question of costs which seems obviously be in favour of at least the Mother, but the parties may wish to argue that issue before me at another hearing, or they may prefer to wait until after the FDR hearing to keep it out of the way of their negotiations. Whatever it may be, I shall wait to hear from the parties.

Ms Liza Jane Cruden instructed by M/S Withers for the Petitioner.

Mr Neal Clough instructed by M/S Ip & Heathfield for the Respondent.

Mr Russell Coleman SC instructed by M/S John Ho & Tsui for the Intervener.