Read the full judgment text of CACV 000142/1988 on BabelCite. This Court of Appeal judgment was delivered on 24 January 1989 before Silke, V.-P., Hunter & Macdougall JJ.A..
Civil law – charging orders – resulting trust – presumption of advancement – joint tenancy – tax enforcement – default judgment – civil appeal – Court of Appeal – Inland Revenue – whether the mother was the sole contributor of the purchase money for the charged premises – the Commissioner of Inland Revenue obtained default judgments in 1983 and 1984 in three District Court actions against the Defendant Yeung Cheung Foon David for unpaid tax totalling $104,995 plus costs, which remained unsatisfied – in January 1988 three Charging Orders Nisi were obtained against Flat A7, 1st Floor, Viking Gardens, Causeway Bay, registered in the joint names of the Defendant and his mother Tin Wing Lan as joint tenants – the property had been purchased in August 1985 for $370,000, comprising a $10,000 cheque deposit drawn on the mother's Hang Seng Bank account, a $64,000 cashier order, and a $296,000 mortgage from the Kincheng Banking Corporation, repaid at $3,600 per month – the mother filed summonses on 25 June 1988 to be joined as a party and to discharge the Charging Orders Nisi, contending that she alone provided the purchase money and that the son's name was added only to procure mortgage facilities – the trial judge found the mother's evidence unconvincing and refused to discharge the Orders Nisi – the Court of Appeal dismissed the appeal, holding that the mother had not discharged her burden of proving sole contribution where the $10,000 deposit cheque was funded by another cheque of unknown provenance and the $64,000 cashier order was funded by total deposits of $79,000 including unexplained large cash deposits of which a $45,000 cash deposit coincided with the disposal of the joint business – the court further held that the mortgage repayments came solely from the rent of the Patterson Street premises jointly owned by the mother and her incapacitated husband, and that the mother's management of those monies was on behalf of her husband and the family rather than as her sole property – the Court of Appeal accepted the trial judge's finding that the family was a traditional, close-knit Chinese family, and that the August 1985 transaction was strongly indicative of the parents seeking to ensure the welfare of their only son upon their deaths, rather than of a sole beneficial ownership by the mother – the Court of Appeal expressly declined, with respect, to address the application of the presumption of advancement arising from the mother-son relationship and the continued applicability in 1989 of the Chancery decision in Bennett v Bennett to Hong Kong circumstances, leaving that question open as it was unnecessary to the decision – appeal dismissed with costs.
Legal issues: Whether the mother was the sole contributor of the purchase money for the charged premises
Outcome: Appeal dismissed with costs.