Chum Mei Diu v. Sum Fan Hung

HCA 946/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 946 OF 2013

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JUDGMENT

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Introduction

1.The plaintiff and defendant are sisters, and this is another unfortunate case where siblings have fallen out over the purchase and holding of a real property.  It is apparently also another case which flows in part from the sharp price drop of real property which occurred in Hong Kong at the end of 1997 and into 1998.

2.The particular property the subject of the action is a flat known as Flat E, 14th Floor, Block D, Tsuen Tak Garden, 208 Tsuen King Circuit, Tsuen Wan, New Territories, Hong Kong (“the Property”).  It was purchased by an agreement for sale and purchase dated 26 June 1997, and an assignment dated 15 September 1997.  The purchase price was $2,065,000.  It was purchased by part capital down payment and with the benefit of a loan in the sum of $1,445,000 secured by a mortgage in favour of The Hongkong and Shanghai Banking Corporation Limited (“HSBC”).

3.It was purchased in the name of the defendant, though it is common ground that it was originally held by the defendant on trust for the plaintiff, who made all the financial contributions to the purchase in the form of deposits, stamp duty, legal fees and agency commission.  Indeed, though the defendant was the named mortgagee (as she was also the named legal owner), all mortgage payments were in fact made or funded by the plaintiff until December 2000.

4.The core issue in the case arises out of discussions between the plaintiff and defendant in December 2000, after the plaintiff had experienced financial difficulties and was no longer able to afford to cover the mortgage payments, and at a time when the value of the Property had fallen to around $1,000,000, so that there was negative equity of around $350,000.

5.In short, the defendant says that the parties reached an agreement whereby the plaintiff waived any interest she had in the Property in exchange for the defendant taking up all responsibility for the Property including the meeting of the mortgage instalments.  The plaintiff says that she never waived her interest in the Property which remained held on trust for her, so that when the defendant sold the Property in late 2009 that was a breach of trust.

6.Hence, the core issue in the case is as to whether or not an agreement was made in fact between the parties in December 2000, and if so what were its terms.  Alternatively, the question arises as to whether the discussions between, and the subsequent conduct of, the parties was such to give rise to a proprietary estoppel.

7.The alternative question arises because Mr Lung, on behalf of the defendant, accepts that there are difficulties with the formalities required by section 5 of the Conveyancing and Property Ordinance Cap 219, as any disposition of an equitable interest in land must be in writing.

8.At trial, oral evidence was given by the plaintiff and defendant and their sister, Sum Mei Ngam (who was called by the defendant), and each was subjected to cross-examination on the witness statements they had filed.

9.Before me, the plaintiff was represented by Mr Sammi Hui and the defendant by Mr Vincent Lung.

The Pleaded Cases

10.The gist of the plaintiff’s pleaded case in her re-amended statement of claim is that the Property has always belonged beneficially to the plaintiff absolutely as a result of an oral agreement made between the parties.  It is pleaded that that remains the position, notwithstanding the dispute which arose between the plaintiff and defendant regarding the Property since December 2000.  Therefore, when the defendant sold the Property in late 2009, that was in breach of the duties owed to the plaintiff by the defendant as trustee and the defendant has failed to account to the plaintiff.

11.Hence, the plaintiff claims a declaration that the defendant held the Property on trust for the plaintiff, that the plaintiff was the beneficial owner of the Property, and for an account of the rentals and proceeds of sale, together with damages to be assessed and interest.

12.I note that the plaintiff’s pleading does not expressly address whether the plaintiff is liable to reimburse the defendant for expenses paid by the defendant as trustee of the Property. However, at trial the plaintiff has accepted that such reimbursement would be appropriate.

13.At the pre-trial review, the plaintiff sought further to amend the claim, but the amendment application was withdrawn against the opposition of the defendant and in the light of the fact that, if permitted, it might cause delay to this trial.  In cross-examination of the plaintiff, Mr Lung sought to introduce the proposed further amendments as showing inconsistencies in the plaintiff’s case.  Mr Hui objected to the line of questions.  I said I would allow the questions de bene esse and rule later on the point.

14.Mr Lung wanted to pursue the line of questions because the proposed amendments were to change the description of the original oral agreement between the parties to one by which they would make a long-term investment in property with each owning 50 per cent of the Property, but that the plaintiff paid the full amount of the purchase costs because the defendant requested a loan of the money.  This is rather different from the un-amended claim.

15.However, there was no signed statement of truth for the proposed further amendments, and the plaintiff explained in evidence that she put it forward as a means to recognise the defendant’s expenditure and by which the ownership interest in the Property might be shared between the parties.  In the light of that explanation, and in light of the fact that the proposed further amendment was opposed and withdrawn, I do not think it is helpful to the necessary analysis to give this point any further consideration.  That is, whilst I rule on allowing the line of questions, I consider the answers and the context lead me to place no weight on this point in the overall assessment against the other evidence.

16.The gist of the defendant’s pleaded case is that, as a result of the plaintiff’s financial difficulties, the plaintiff asked the defendant to take up the mortgage instalments as from January 2001, in return for which the plaintiff would relinquish and waive all her title and interest in the Property so that the defendant would be at liberty to deal with the Property in any way she saw fit from that time.  The defendant pleads that after the meeting at Mei Ngam’s house, but before the end of December 2000, the defendant reluctantly accepted that offer so that an agreement was made accordingly.

17.It is pleaded that the agreement was reduced into writing by Mei Ngam in a Draft Agreement, albeit that it was not signed by the parties.  As a result of the agreement, the defendant took sole responsibility for settling all mortgage instalments and other outgoings of the Property from January 2001 until 2010.  During that period, the plaintiff never took any part in matters concerning the Property, nor did she raise any issue over the defendant’s entitlement to the rental income or the Property.

18.Hence, the existence of any continuing trust after December 2000 is denied, as is any breach of trust.

19.There is also a pleading by which the defendant relies upon proprietary estoppel, on the basis that it would be unconscionable for the plaintiff to deny the defendant’s beneficial ownership of the Property or of the net sale proceeds.

20.There is an alternative case that should it be considered that the defendant remains the trustee of the Property, the plaintiff as beneficiary must give reimbursement of the expenses met by the defendant since 2001, so that in fact the plaintiff would owe money to the defendant, which is the basis of the counterclaim.

21.There is a further alternative counterclaim to a declaration that the Property is held on resulting trust for the plaintiff and defendant in such proportions representing their respective financial contribution towards it.  But this further alternative was not really pushed, as Mr Lung thought it highly unlikely to arise on the facts.  I do not think it does arise on the facts, and it need not be considered further.

The Applicable Law

22.Before turning to deal with the facts, it may be helpful to identify the legal context.  Most of it was not disputed between the parties.

23.It is common ground between Mr Hui and Mr Lung that, if I conclude on the facts that the defendant remained trustee of the Property for the benefit of the plaintiff in and after 2001, then the sale of the Property in 2009 was a breach of trust, as a bare trustee does not have a power of sale in Hong Kong law.

24.In that case, Mr Hui asserts that the appropriate remedy would be to place the plaintiff in the position that she would have been in but for the breach of trust, with the quantum of any compensation to be calculated by reference to the date of judgment (and not the date of the sale of the Property); see, for example, Target Holdings Limited v Redferns [1996] 1 AC 421, at 436C, and 437D-E.

25.Mr Lung for the defendant accepted that the lack of formalities relating to the alleged agreement in 2000 mean that he must rely on the doctrine of proprietary estoppel.  Proprietary estoppel is said to arise in certain situations in which a person has done acts in reliance on the belief that he has, or that he will acquire, rights in or over another’s land.  The concept of proprietary estoppel is distinct from promissory estoppel, both in the conditions which must be satisfied before it comes into operation and in its effects.

26.In this case, the argument is that there is not merely a question of acquiescence by the landowner (the plaintiff), but encouragement or inducement or representation by her, from which a promise to the other party (the defendant) can be inferred.

27.In the context of proprietary estoppel by a positive representation or assurance, there is no requirement of any “clear and unequivocal” representation, so long as the representation is “clear enough”.  Of course, whether the representation is clear enough is dependent on the context.  It has been said that the promise must be unambiguous and must appear to have been intended to be taken seriously.  Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made.  Also, in many cases, it may not be realistic to try to pinpoint the date at which the assurance became unequivocal, so long as it can be seen that the assurance is one on which it was ultimately reasonable to rely.  Of course, a sentence which would be ambiguous and unclear in one context can be a clear and unambiguous assurance in another context.  See Chitty on Contracts (31st edition) Vol I, paragraphs 3-148 to 3-150, citing inter alia Thorner v Major [2009] UKHL 18 at paragraphs 54 to 64.

28.A proprietary estoppel claim will arise only where a person has acted in reliance on the assurance.  The element of reliance is the causal link between the assurance and detriment asserted.  But there is no need for the assurance to be the single or primary motivating factor behind the person acting to his detriment, in order to show reliance on the representation or assurance.  It is sufficient that the representation induced or influenced his decision to perform the relevant acts.  See The Law of Waiver, Variation and Estoppel by Wilken and Ghaley (3rd edition), paragraphs 11.53 to 11.54 and Wayling v Jones (1993) 68 P&CR 170, at 173.

29.Though both Mr Hui and Mr Lung included various authorities in the lists exchanged between them, I do not think I need refer to any others as they were not really highlighted in submission.

Undisputed Facts

30.The evidence canvassed at the trial revealed considerable common ground between the parties, as follows.

31.The plaintiff and the defendant are two of four surviving sisters.  The other two sisters are called Mei Ngam and Mei Hing.  The defendant is the younger sister of the plaintiff.  Each is married and lives separately with her own family.  The plaintiff was educated only up to Form 4, and was described by herself as being not as “smart” as the defendant.

32.Prior to the purchase of the Property, the plaintiff and the defendant had engaged in two previous property transactions together.  On each occasion they had purchased a property as joint and equal partners, but had sold the property as confirmors.  As I was not told otherwise, I shall assume that those transactions were probably able to make at least some profit.

33.In around June 1997, the plaintiff and the defendant reached an oral agreement that a further property would be purchased, that it would be held in the sole name of the defendant, but that it would held on trust for the plaintiff, who would pay the purchase price and the instalments to repay the necessary mortgage loan.  (There was some dispute as to why the prospective property would be held in this way - the defendant asserting (and the plaintiff denying) that it was because the plaintiff was applying at the same time for a flat under the Home Ownership Scheme - but I do not think it necessary to resolve that dispute.)

34.After making the oral agreement, the plaintiff and defendant visited the Property, as was introduced to them by the estate agency, Midland Realty.  The plaintiff agreed to purchase the Property at the price of $2,065,000.  In accordance with the oral agreement, the defendant was named as the purchaser on the provisional sale and purchase agreement and the subsequent formal sale and purchase agreement.

35.Perhaps not unusually in a family context, the trust arrangement was entirely oral, and there was no written declaration of trust.  Therefore, if the trust arrangement were to be ended, there was no need to have revoked any prior written declaration.

36.Again, in accordance with the oral agreement, the plaintiff made various payments towards the Property, including: an initial deposit of $100,000; a further deposit and stamp duty together in the sum of $128,000; and a further deposit of $414,000.  The conveyancing fees were also paid by the plaintiff.

37.The balance of the purchase price was raised through a mortgage loan with HSBC, taken out in the name of the defendant for the loan amount of $1,445,000.

38.After completion of the purchase of the Property, the plaintiff let the property to a tenant for a period from December 1997 to December 1998, and subsequently to another tenant from February 1999 to January 2001.  The first tenancy agreement was signed by the plaintiff as landlord.  The second tenancy agreement was signed by the plaintiff’s husband on her behalf, as landlord.

39.The plaintiff made 39 mortgage instalment payments, using a combination of rental receipts received from the tenants and her own funds, provided to the defendant to enable the payments to be made.  The last mortgage instalment payment made by the plaintiff was in December 2000.

40.In addition to arranging the tenancies and effecting payment of the mortgage, the plaintiff (as owner) was responsible for the upkeep and management of the Property until December 2000.  She paid various management fees, government rates and rent and utility charges as they fell due.  At some point prior to December 2000, the plaintiff arranged for the defendant to change the terms of the mortgage to permit bi-weekly instalments, which it was thought might save on interest charges.

41.However, by December 2000 the plaintiff was experiencing financial difficulties such that she was no longer able to afford to continue to pay the mortgage.  As a result, there were discussions between the plaintiff and the defendant, at times involving other members of the family, in particular Mei Ngam.

42.The precise content of the discussions is in dispute (see below), but the discussions led to arguments which quickly became heated.  Mei Ngam, who described herself as playing the role of ‘peacekeeper’, arranged a meeting at her home to seek to resolve matters.

43.The meeting at Mei Ngam’s home took place in December 2000 and was attended by the plaintiff and her husband, the defendant and her husband, Mei Ngam, Mei Hing and the sisters’ mother. However, because the meeting became heated, Mei Ngam took the children present away from the meeting, and as a result she missed most of the substantive discussions between the parties.  She saw the plaintiff and defendant and their husbands leave after about 30 minutes.  Her knowledge of the meeting arises from what she says she was told after it by those who were present.

44.It seems that the plaintiff’s husband was upset by the content of the meeting and took out his anger or frustration by hitting the plaintiff in front of the others present.  (Precisely what caused his anger was in dispute.)

45.Despite the failure of the meeting to reach a resolution, Mei Ngam understood that an agreement was subsequently reached between the plaintiff and the defendant.  Apparently out of a desire to ensure that the agreement was properly recorded, so that there would be no later trouble arising from it, another meeting was arranged by Mei Ngam to be held at a Café de Coral on 1 January 2001.  Mei Hing was also invited and was supposed to attend.

46.However, on 1 January 2001, the only people who attended the meeting were Mei Ngam, the defendant and the plaintiff’s husband.  The plaintiff herself, the defendant’s husband and Mei Hing did not attend.  (It is in issue as to whether the plaintiff was invited to the meeting, or even knew of it.)

47.At that meeting, Mei Ngam produced a draft agreement (“the Draft Agreement”), which she said in evidence she thought reflected the agreement previously reached between the plaintiff and the defendant, and which was in the following terms (as in certified translation):

Both parties hereby enter into an agreement regarding the Property as follows

(1)   [The defendant] purchased the Property in the name of government registration, whereas [the plaintiff] was responsible for paying monthly the mortgage payment to the bank until December 2000.

(2)   [The defendant] herself shall pay the remaining balance of the mortgage to the bank, beginning from January 2001 under the circumstances of [the plaintiff] not paying any mortgage payment.

(3)   Both parties agree that [the defendant] shall solely handle the Property beginning from January 2001.  Any losses or benefits caused by or derived from the Property shall have no connections with [the plaintiff].  Both parties shall also not pursue liabilities against each other.

(4)   Both parties agree to void all previous verbal agreements and documents and this agreement shall prevail.

48.Although Mei Ngam signed the Draft Agreement (as “witness”, below the space for the defendant to sign), no one else did sign it.  It seems that the plaintiff’s husband refused to sign as Mei Hing was not there to act as a witness, and the defendant thought that there was no point in signing if no one else was going to sign.

49.From January 2001, all mortgage instalments were paid by the defendant.  From that same date, all other matters relating to the management of the Property were dealt with by the defendant. The Property was let out for various periods (although with some gaps) under various tenancy agreements from 2001 until 2009.  Those tenancy agreements were made by the defendant, and the plaintiff had no knowledge of them and was not consulted about them.  The defendant used the rental income to defray the mortgage instalment costs, though the mortgage instalments were not fully covered by the rental income.  The defendant also paid all other expenses and outgoings on and relating to the Property from January 2001 onwards.

50.In March and May 2001, the plaintiff received two letters from solicitors who stated they were acting on behalf of the defendant and her husband.  The first letter was dated 23 March 2001, and stated that an agreement had been made between the plaintiff and the defendant in about June 1997 for the defendant to hold the Property registered in her name as trustee for the benefit and use of the plaintiff.  The letter points out that the plaintiff had been paying the mortgage loan under December 2000, but had defaulted in paying since January 2001.  Hence, notice was given that the defendant intended to cease acting as trustee, and to re-assign the Property to the plaintiff.  The letter asked for a response within seven days, following which the defendant would either sell the Property or commence legal action against the plaintiff to hold her fully liable for any loss and damage.

51.The second letter was dated 10 May 2001 and first referred to the plaintiff’s failure to have replied to the earlier letter.  The letter went on to inform the plaintiff that the defendant had made certain payments “for and on [the plaintiff’s] behalf”, in the net total of a little over $34,000.  The letter demanded that unless that sum were paid to the defendant within seven days, the defendant would have no alternative but to institute legal proceedings against the plaintiff for, inter alia, recovery of that sum without further notice.

52.The plaintiff did not respond to either letter and no further contact was made by those solicitors or any others on behalf of the defendant.

53.Neither letter suggested that an agreement had been made in or around December 2000, by which the plaintiff had waived her own beneficial interest in the Property in return for the defendant taking up the obligation of meeting the mortgage instalments and otherwise becoming responsible for the Property.  On their face, the contents of the two letters are inconsistent with such an agreement having been made a few months earlier.

54.Eventually, the defendant sold the Property to a third party by a sale and purchase agreement dated 21 December 2009 (completion taking place in 2010).  The defendant did not consult the plaintiff before the sale, or tell the plaintiff of the sale after it took place or was completed in early 2010.

55.The third-party purchaser had been introduced through an estate agent.  The sales price was $1,218,000.  Though the point had originally been pleaded in the claim, at trial it was confirmed for the plaintiff that there was no longer any allegation that that sales price in 2009 was at an undervalue to the then market value (although the plaintiff pointed out that it was still significantly less than the original purchase price).

56.The net sales proceeds amounted to approximately $545,000.  Nevertheless, even taking into account rental income, this was a few hundred thousand dollars less than the defendant’s total expenditure on the Property since 2001.  The sales proceeds cannot be regarded as any profit.

57.An agreed schedule was produced identifying the amounts expended by each of the plaintiff and the defendant on the Property.  Between June 1997 and December 2000, the plaintiff expended a total sum of $1,171,989 (although there was some rental income to be set out off against that sum).  Between January 2001 and early 2010 (when the Property was sold), the defendant expended a total sum of $1,261,430 (although she also received rental income of $359,600).

58.There was no contact between the plaintiff and defendant for many years from 2001.  Though the plaintiff and defendant attended wider family events between 2001 and 2012, they sat at separate tables and did not speak to each other, and certainly not about the Property.

59.The parties’ mother died in 2009.

60.In 2012, and sometime after learning of the sale of the Property, the plaintiff instructed solicitors to write a letter before action to the defendant asserting her claim to beneficial ownership of the property and the defendant’s breach of trust.

61.The valuation of the Property as at May 2015 (taken as roughly the time of trial or judgment), as assessed by an expert whose opinion was adduced with leave of the Court and which was not challenged, was $3,230,000.

Analysis of the Evidence

62.In my assessment of the evidence I have taken into account the demeanour of the witnesses when giving their oral testimony.  However, I am conscious that demeanour can be deceptive, that it needs to be approached with care, and that it is important to test the oral evidence against any contemporaneous documentation, and in terms of the inherent probabilities and improbabilities.

63.In any event, in this case the demeanour of the plaintiff and the defendant seemed to me largely to reflect the differences in their education and experience, as was recognised by them themselves.  I did not regard either of them as particularly “out-performing” the other as a witness.  Therefore, I place relatively little weight on their demeanour in my overall assessment, preferring to focus on what was said rather than the way it was said.

64.As to Mei Ngam, whilst she was called as the defendant’s witness, it was not suggested to her in cross-examination that she had any motive or incentive for giving deliberately untrue evidence.  She described her role during events in late 2000 as an attempt to be something of a ‘peacemaker’ within the family, and her evidence is fairly to be regarded as somewhat independent of either the plaintiff or defendant.  Of course, it too falls to be tested against any contemporaneous documents and the inherent probabilities and improbabilities.

65.I have also taken into account that the evidence canvassed centred on oral discussions which occurred some 12 years or more before the date of the witness statements filed in this action, and now more than 14 years ago.  I do not find it surprising, nor do I take it against any witness, that there was a degree of inconsistency within what the witnesses said at trial were the words or phrases used by themselves or others so long beforehand in 2000.

66.In his closing submissions, Mr Lung confirmed that the defendant does not seek to enforce the 2000 agreement per se, in light of the difficulties regarding formalities.  Rather, he says, the tenor of that agreement forms the underlying basis of a proprietary estoppel claim so that it is not necessary for the defendant to prove the creation of an agreement as if she were asserting a contractual claim.  What the defendant must do is to satisfy the requirements of a claim in proprietary estoppel (see above).

67.Nevertheless, whether an agreement or consensus was reached between the plaintiff and defendant in around December 2000 is at the centre of this dispute.  What the parties said and did (and/or what they did not say or do) falls to be assessed against the undisputed facts which I have already set out.  I have performed that task, and made my assessment accordingly.

68.The plaintiff recognises that as the owner responsible for the upkeep and management of the Property, she took care of every aspect of it until December 2000, including paying the mortgage on schedule.

69.The plaintiff’s case on her evidence was that when she realised the extent of her financial difficulties in December 2000, she turned to the defendant for advice as to how to alleviate those difficulties in the context of the mortgage instalments required for the Property.  The plaintiff says that she wanted only advice first, as she hoped that there would be a suggestion as to the method so that she would not be in such a difficult position to pay the mortgage.  She thought the defendant might have advice as she was very knowledgeable about buying and selling property.

70.The plaintiff says that the defendant then suggested that if she (the plaintiff) would waive any interest in the Property and let the defendant take the Property as beneficial owner, the defendant would continue to pay the mortgage.

71.The plaintiff thought that this was an “evil” plan, by which the defendant intended to seize the Property from her, and that it was not supportive of her in her difficult period.  As a result, a heavy quarrel occurred and they began to hate each other to the extent that communications eventually ceased altogether.

72.The plaintiff says that the defendant’s suggestion was first made to her in a telephone call.  Thereafter, because the arguments started, Mei Ngam stepped in and a meeting was called to take place at her home.  However, that meeting also became heated very quickly and the plaintiff became angry when the defendant repeated the same suggestion that she should take over ownership of the Property from the plaintiff, in return for taking over the burden of the mortgage repayments.

73.Although it did not feature much in the trial, the plaintiff gave evidence that there was one other suggestion canvassed at the meeting, namely that the plaintiff and the defendant could become joint owners of the Property, but on the basis that they would become jointly responsible for payment of the outstanding mortgage going forward in an agreed amount (for this purpose) of $1,400,000.  The plaintiff says that this was suggested by the defendant, but she (the plaintiff) rejected it.  It also angered her.

74.In her evidence, the defendant also alluded to this alternative suggestion and that it was not agreed.  But I note that it is another suggestion under which the plaintiff would have had to bear a real loss of moneys already paid, and would also lose half of her beneficial interest in the Property.

75.As a result, no consensus or agreement was reached by the end of the meeting at Mei Ngam’s home.

76.Mr Hui placed great emphasis on the common ground that the plaintiff was angered in the discussions.  He asked rhetorically why else the plaintiff would have been so angry if it were not for the fact that the defendant had made the suggestion that she (the plaintiff) should give up her ownership in the Property when she put so much money into it.  He also relied on the fact that it was important for the defendant’s case that it was the plaintiff who made the offer or assurance so that it was open to the defendant to have accepted it or acted in reliance on it.  The defendant’s case is much more difficult if the suggestion came from the defendant as she could not have accepted her own offer or acted in reliance on it.

77.As to this point, I think that there are numerous possibilities why the plaintiff might have been upset, including that she faced a very real predicament that she could not afford to continue the mortgage payments, and the fact that the value of the sum she had expended on the Property had effectively been lost by the great downward fluctuation in the market value of the Property since purchase.

78.On the other hand, I also think it might be asked why the defendant would have made the suggestion, when to have done so was unlikely to have been seen as commercially attractive at that time (see below).

79.The defendant’s evidence was that the suggestion came from the plaintiff herself as to the plaintiff surrendering her ownership interest in the Property in return for the defendant taking up the mortgage repayments.  The defendant says that she was in effect presented with a stark choice; the plaintiff simply made clear that she could not afford to, and would not, make the mortgage payments.  This upset the defendant, because it was the defendant who was the named owner of the Property and the borrower under the mortgage, hence who would be the target of any action as might be taken by HSBC.

80.The defendant says that when the plaintiff called her to tell her of her financial difficulties, the defendant first suggested that the plaintiff should sell the Property to cut the loss. However, the Property was then in negative equity of around $350,000.  The plaintiff said that if the Property was in her name, she would have petitioned for her own bankruptcy.  But as the Property was in the defendant’s name, it was the defendant’s problem.

81.The plaintiff then offered and requested the defendant to take up the mortgage payments from January 2001, in return for which the plaintiff would waive (or “give up”) her interest in the Property. Hence, the defendant would be able to deal with the Property in any way she thought fit after January 2001.

82.Mr Hui pointed out in cross-examination of the defendant that the chronology of events as apparently revealed by the defendant’s witness statement suggested that the plaintiff’s alleged offer was first made before the meeting was held in Mei Ngam’s home, but that in her evidence-in-chief the defendant had insisted that the offer was first made at that meeting.  However, whilst I understand the proper exploration of the chronology in cross-examination, and the possible difference in the events in the evidence as a whole given by the defendant, I do not think that difference means that the defendant’s evidence is unreliable in this respect.  Also, as I shall turn to shortly, her version of events is broadly supported by the evidence given by Mei Ngam.

83.In the event, whenever the plaintiff’s alleged offer was made, the defendant was not initially attracted to that option.  She did not see why she should pay the mortgage, but at the same time she was concerned that the bank might pursue her under the mortgage and might even petition for her bankruptcy.

84.As to the meeting at Mei Ngam’s home, the defendant agrees with the plaintiff that the meeting became heated and that no consensus had been reached by the end of the meeting.  However, the defendant says that the plaintiff made or reiterated her offer to give up ownership of the Property in return for the defendant dealing with it.

85.That meeting was attended by both husbands of the plaintiff and the defendant respectively, as well as by Mei Hing and the sisters’ mother.  The plaintiff says that her husband became angry at the suggestions made by the defendant, which is why her husband hit her (the plaintiff) in the meeting.  The defendant says that the plaintiff’s husband became angry at the plaintiff’s irresponsibility, which is why he hit her. Though this is a minor point, I find the latter version much more likely.

86.Mei Ngam gave evidence that she had telephone calls with both the plaintiff and the defendant.  She recalls the plaintiff describing her deep financial difficulties and inability to pay the mortgage instalments of the Property any more.  Mei Ngam also recalls that the defendant told her that the plaintiff offered to give up her ownership of the Property and requested the defendant to take up the Property and to settle the mortgage payments from January 2001.

87.It was because this could not immediately be resolved between the plaintiff and the defendant that Mei Ngam called the family meeting at her home.  However, as the meeting became heated quite quickly, Mei Ngam took the children who were present downstairs to avoid them seeing the arguments, so she missed most of the substance of the meeting.

88.Mei Ngam says she was told by Mei Hing and her mother after the meeting as to what had occurred in the meeting. Essentially, she says she was told that the plaintiff made it clear that she would no longer pay off the mortgage, and that it was the defendant’s problem, whilst the defendant said that she did not think she should pay.

89.Mei Ngam then explained in her evidence that after the meeting, but before 1 January 2001, she had further telephone discussions with the plaintiff and defendant.  The defendant told her that even though she was reluctant, under the circumstances she had to deal with the mortgage, that is, she had to pay off the outstanding mortgage herself.  The defendant felt she had no alternative but to deal with it.

90.Mei Ngam says the plaintiff told her she did not want the Property, she had no alternative and no way to deal with the Property, and she was not going to make any further mortgage payment.

91.Mei Ngam thought the parties had therefore reached common ground.

92.So Mei Ngam told the plaintiff and defendant that to avoid future trouble, it was better to have things in black and white.  At another point in her evidence, Mei Ngam said that she wanted their husbands to know about the arrangements, namely that one was going to give up ownership of the Property and the other would take over.  This was, as she put it, so that all of them should bear the consequences, and things would be clearer if there were a face-to-face meeting.

93.As a result, she says, she drafted the Draft Agreement and invited the plaintiff and defendant and their husbands, and Mei Hing, to a meeting that was to take place in a Café de Coral on 1 January 2001.

94.Mei Ngam was cross-examined by Mr Hui on his suggestion that there could not have been a prior agreement that the plaintiff would give up her rights in the Property, as there is no clause in the Draft Agreement which actually says so.  I disagree.

95.Against the facts recited in clauses (1) and (2), clause (3) specifically identifies an agreement that the defendant should be the person solely handling the Property from January 2001.  More specifically, it seems to me that the reference to the fact that “any losses or benefits caused by or derived from the Property shall have no connections with [the plaintiff]” must be a reflection of the fact that the plaintiff had given up her ownership interests in the Property.  It was only by beneficially owning the Property that the plaintiff would suffer a loss or gain a benefit.

96.Hence, whether the value of the Property (whether on paper or on a subsequent sale) went down or went up would be of no concern to the plaintiff, and any loss would be borne by, or benefit taken by, the defendant.  The clause seems to me to ram the point home by providing also that neither party would pursue any liability against the other.

97.On top of that, clause (4) identifies that all previous verbal agreements would be voided.  The only previous verbal agreement ever identified in the evidence was the oral agreement by which the Property was originally purchased in the name of the defendant, but to be held on trust for the plaintiff.

98.Of course, as I have already indicated, the Draft Agreement was never signed by either the plaintiff or the defendant. This is because the plaintiff did not go to the Café de Coral, and the defendant saw no point in signing a document unless the plaintiff was also going to sign.  Nevertheless, I accept Mr Lung’s submission that the unsigned document retains some evidential value as a possible contemporaneous record of what had previously been agreed.  I accept Mei Ngam’s evidence that she drafted the document so as to record what she understood from her discussions with the parties had already been agreed.  I reject the suggestion that the draft agreement was in terms that Mei Ngam hoped in vain could be agreed.

99.In so finding, I also accept that it was the plaintiff who made the offer or assurance that if the defendant were to take up responsibility for the mortgage payment and the Property, she (the plaintiff) would give up the Property as she could not pay and would not pay and did not want the Property.

100.Mr Hui invites me to find that the lack of the plaintiff’s signature on the Draft Agreement is evidence that she did not agree, and had not agreed, to give up her ownership in the Property.  I think that is a difficult submission for him to advance in light of the plaintiff’s own evidence that she did not even know of the meeting, and had not seen the Draft Agreement until disclosed in these proceedings.  Mr Hui might have been on safer ground had he been able to say that the plaintiff had seen the document but refused to sign it; but he could not say that.

101.In any event, I do not accept that the plaintiff did not know about the intended meeting at the Café de Coral (even if it is correct that she had not seen the Draft Agreement until fairly recently).  This is because the plaintiff’s husband did attend that meeting, and I accept Mei Ngam’s evidence that the plaintiff’s husband knew about the meeting because she told the plaintiff and invited them both to attend.

102.I have considered whether her failure, or refusal, to attend the meeting is itself evidence of her not previously having agreed to the terms set out in the Draft Agreement, or to any other agreement or assurance by which she voluntarily gave up ownership in the Property. However, that seems to me to be likely a neutral point in the light of the plaintiff’s claim to have had no knowledge of the meeting (even though I have rejected that claim).

103.One particular piece of evidence given by Mei Ngam struck me as having the ‘ring of truth’ about it.  When asked if the plaintiff was willing to give up her property rights, she answered that as the plaintiff was not going to pay mortgage instalments any more, of course she was going to give up the rights.  Mei Ngam said she explained to the plaintiff at the time that it was the same as buying a car on hire purchase, when if you no longer make payments the car will be taken away.  Mei Ngam said that the plaintiff understood from that analogy that if she was no longer paying mortgage instalments, she would lose all rights.

104.Probably implicit in that analogy of a purchase of a car by hire purchase is not just losing the car, but losing value of the previous hire payments made.

105.But it seems to me that the commercialities are even more stark in the property context.  On behalf of the plaintiff, Mr Hui submits that it is inherently unlikely that she would have given up all the value that she had paid into the Property by way of down payment, purchase costs, and the 39 mortgage instalments, totalling over $1 million.  Of course, I accept that there would have been extreme reluctance on the part of the plaintiff to see that money go ‘down the drain’, but the fact was that the Property had lost about $1 million of value previously reflected in the purchase price.  That is why there was a considerable negative equity of the order of $350,000.

106.That sense of reluctance might also have generated a degree of frustration and anger.  But the plaintiff in reality had little practical alternative.  In December 2000, if the plaintiff had instructed the sale of the Property, it would have been sold (if at all) at a significant discount to the purchase price, and the loss in the amount of the negative equity would have crystallised at once.  Had it not been sold, or until it was sold, the mortgage instalment payments would have had to have been met.

107.Alternatively, had no further instalment payments been made, HSBC would likely have foreclosed or commenced proceedings.  Although those proceedings would have been taken against the named owner, that is the defendant, the defendant would have had a cast iron claim over against the beneficial owner, the plaintiff.  That again would have been the immediate crystallisation of at least the loss reflected in the negative equity.  Clearly, the plaintiff was not in a financial position to make good the negative equity.

108.Therefore, it seems to me that there was real commercial value to the plaintiff at that time to have walked away from this particular investment, in effect removing the immediate and ongoing need to meet the mortgage payments as well as capping her losses at the amount that she had already expended, and leaving future mortgage obligations and the commercial risk of owning the Property to the defendant.

109.On the other side of the dealings, what the defendant says was agreed between her and the plaintiff was not necessarily very commercially attractive to the defendant.  If she had simply wanted a property similar to the Property, she could have bought one in the market without taking on any negative equity.  I therefore accept the submission made by Mr Lung that the defendant’s actions, far from evidencing an “evil” scheme to take unfair advantage of the plaintiff at a time of difficulty and so unfairly to take the Property from the plaintiff, actually evidence real assistance given to the plaintiff at the time.  I acknowledge that the defendant’s assistance was given with great reluctance, in circumstances where the defendant rather felt she had no choice, but practical assistance it was.

110.I take into account the plaintiff’s evidence at trial that she encountered financial difficulties for only a relatively short period of eight months to a year or so from the end of 2000. That might be the case looking with the benefit of hindsight, but it is in my view unlikely to have been able to have been forecast as at December 2000.  I also think that there is some merit in Mr Lung’s criticism of that part of the plaintiff’s evidence, when he points to the fact that there was no real contact between the plaintiff and the defendant for a period of more than 10 years from January 2001, and this is difficult to reconcile with any suggestion that the plaintiff had temporary financial difficulties after which she could have taken back responsibility for the Property from the defendant.

111.I also reject the plaintiff’s suggestion that any part of the reason that she did not contact the defendant and left all dealings in the Property to her was because she trusted the defendant to manage the Property well for her (the plaintiff) as beneficial owner.  On the plaintiff’s own evidence as to the “evil” nature of the defendant’s intentions, plainly no trust would have remained.

112.Though it might also seem trite or cute to say so, one essence of the creation of a trust is in the “trust” reposed in the trustee.  The plaintiff said she trusted the defendant in 1997 which is why the defendant became trustee.  But once that trust was, on the plaintiff’s own case, destroyed in December 2000 to the extent that the parties did not speak, it seems obvious that the trust arrangements must have been brought to an end in some manner.  The only obvious end - when the Property was not sold and was not simply assigned from bare trustee to beneficiary, but continued to be held by the defendant - was for the defendant as former trustee to take the Property beneficially.

113.I am also conscious that it is no part of either side’s evidence that there was ever discussion of the possibility that the defendant might loan the plaintiff money to tide her over her (perhaps, temporary) financial difficulties.  Also, the plaintiff denied that she treated the defendant’s contributions to the Property from January 2001 as some kind of limitless loan without interest or repayment terms.  Indeed, no attempt was ever made to repay any “loan” and it was late in this action that the plaintiff even expressly acknowledged any duty to reimburse if the trust remained.

114.Part of the plaintiff’s evidence was that she had tried to make contact with the defendant, but that the defendant refused contact, including by hanging up the phone if the plaintiff called.  I reject that evidence as inherently improbable over so many years.  First, the defendant gave unchallenged evidence that she had not moved home or changed her telephone number over all the years.  Secondly, though they had fallen out as a result of these events, they did still attend family events and some contact might have been brokered, but the plaintiff gave no evidence of any such attempt.  There were numerous ways in which the plaintiff might have engaged the defendant, including through the medium of one of the sisters, or even their mother before she passed away in 2009, let alone through solicitors.

115.Indeed, in 2012, the plaintiff plainly had no difficulty in instructing solicitors to write a letter before action to the defendant, without any prior direct contact.

116.I accept that the plaintiff may not ever have used precisely the words in December 2000 that she was waiving the beneficial interest in the Property.  But in the final analysis, I think that her words and conduct were more than sufficiently clear to amount to a representation or assurance that all beneficial interest would be taken up by the defendant if the defendant were to step in and take over all dealing with the Property, including the meeting of future mortgage instalments.  I conclude that the plaintiff’s clear assertions that she could not and would not pay for the mortgage, that she would have no choice but to give up, that the defendant would have to deal with the problem and the Property, and so on, were wholly reasonably understood in context in exactly the way in which the defendant and Mei Ngam describe.

117.I accept that the defendant may also have paid the mortgage in part simply because she was legally the person obligated to do so, as she admitted in cross-examination by Mr Hui.  But at least a motivation - and it seems to me the primary motivation - to pay the mortgage and be responsible for the Property was to take over the beneficial ownership from the plaintiff.  I also accept Mr Lung’s submission that the defendant was not asked perhaps a more key question, namely what she would have done if the plaintiff had made the assurances, but then said she would not implement them.

118.Realistically, when she might have simply given up the Property and looked to the plaintiff for any loss arising from the negative equity, the only likely reason why the defendant took over the Property and the mortgage payments was in reliance on an assurance from the plaintiff that she (the defendant) would thereby become its true beneficial owner and take whatever loss or benefit as might later transpire.

119.I also accept that the fundamental change in the way in which the parties dealt with the Property after December 2000 is entirely consistent with the defendant’s case.  I do not think it is at all reasonably reconcilable with the plaintiff’s case, which I reject.

120.I have taken into account the two letters sent by the solicitors on behalf of the defendant and her husband in March and May 2001, the content of which is inconsistent with there having been a prior agreement or consensus that the trust arrangement would cease, and that the defendant would become both legal and sole beneficial owner of the Property.  Nevertheless, I accept the defendant’s evidence that she had not been personally responsible for giving instructions to the solicitors, that she had not seen the solicitors’ letters at the time they were written in 2001, and that the letters were the result of instructions given by her husband to a legal clerk, who he knew at that firm, which instructions were either misunderstood by the legal clerk or were unclear from the husband.  I accept that the solicitors were not shown the Draft Agreement as any evidence of the prior dealings between the plaintiff and the defendant.

121.I take the point from Mr Hui that this evidence was not contained in the defendant’s witness statement, but it does not seem to me to be unlikely that she was not asked about these letters when she made the witness statement because there is no reference to those letters in that statement.  Therefore, it may be that the first time that she had the opportunity to explain the letters was in her oral evidence.

122.Though not canvassed by the parties at trial, it might be said that the two letters are even capable of evidencing a brief episode of ‘buyer’s remorse’ from the defendant, simply not carried through despite the threat the letters contained.  That there was never in fact any real attempt to extract reimbursement from the plaintiff is at least consistent with the defendant’s case, even if it does not on its own disprove the plaintiff’s case.  At bottom, I do not think the letters outweigh all the other evidence which seems to me to show (as I have found) a clear offer or assurance by the plaintiff accepted and relied upon by the defendant.

123.There is no need for me to deal with the alternative case predicated on a finding that the defendant has remained trustee of the Property, holding it in trust throughout for the benefit of the plaintiff.  However, had it been necessary to address that alternative case, I am not sure that it would necessarily have led to a finding that the plaintiff would still owe money to the defendant upon reimbursement and an accounting between them.

Conclusion

124.The plaintiff’s claim falls to be dismissed.

125.The defendant is entitled to, and I make, a declaration that she became the sole legal and beneficial owner of the Property from January 2001, and remained so throughout the period until completion of the sale of the Property in 2010.

Costs

126.At present, I see no reason why costs should not follow the event.  But I shall make an order nisi in the first instance that the costs of the action be paid by the plaintiff to the defendant to be taxed if not agreed.  The order will become absolute unless either party makes application for variation within 14 days.  If such an application is made, it will be dealt with on paper, and the party applying for variation will file her written submissions within 7 days after the application is made, and the party opposing variation shall file her written submissions within 7 days thereafter.

Postscript

127.I express my gratitude to both counsel, who have conducted the trial with fairness and sensible procedural economy and efficiency.  I only fear that the costs of the action as a whole will turn out to be disproportional to the amount at issue.

Mr Sammy Hui, instructed by Messrs Oliver C M Chan & Co, for the Plaintiff

Mr Vincent Hung, instructed by Messrs T K Tsui & Co, for the Defendant