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Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date04 January 2005
Subject MatterMatrimonial Causes
Judgement NumberFCMC12889/2002
CourtFamily Court (Hong Kong)
FCMC012889/2002 Y v. A

FCMC 12889 / 2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 12889 OF 2002

_________________

BETWEEN

　 Y Petitioner
　 and 　
　 A Respondent
and
A Finance Company Intervener

_________________

Coram : Deputy Judge C K Chan in Chambers

Date of Hearing : 22 – 23 November 2004

Date of Judgment : 4 January 2005

_________________

J U D G M E N T

_________________

1. This is an application by the petitioner for the following orders : -

(1) The respondent to transfer the premises in Tuen Mun, New Territories, Hong Kong which has been the parties’ matrimonial home during their marriage (“the matrimonial home”); and
(2) The existing charging order on the matrimonial home in favour of the Intervener be discharged.

2. For convenience, I shall call the petitioner the husband and the respondent the wife in this judgment.

Background

3. The husband and wife got married on 28th May 1986.

4. In 1987, they entered into a sale and purchase agreement for the purchase of the matrimonial home at a price of $298,356. The completion of the sale and purchase took place on 20th April 1988 when a deed of Assignment was executed conveying the title to the husband and wife holding as joint tenants. A legal mortgage was also created in favour of a bank for the sum of $260,000.

5. The mortgage was redeemed on 27th February 1997 and all the title deeds were released to the husband and wife.

6. In or about August 2000, the wife approached the Intervener, which was a money lender to take out a loan of $220,000 in her sole name. The title deeds of the matrimonial home and a post-dated cheque of $220,000 were also deposited with the Intervener as security for the said loan.

7. The wife later defaulted in the repayment of the loan and her cheque was also dishonoured. The wife left the matrimonial home in May 2001 and disappeared. Unsurprisingly, the Intervener took out an action in the District Court and default judgment on the sum of $220,000 was obtained. A charging order absolute on the matrimonial home was also obtained by the Intervener on 27th July 2001. Subsequently, 3 other charging orders were made absolute on 8th October 2001, 29th October 2001 and 2nd November 2001 respectively in favour of some other parties who have not taken part in this litigation (all 4 charging orders are hereinafter collectively called “the charging orders”).

8. On 6th November 2002, the husband commenced divorce proceedings against the wife based on the ground of unreasonable behaviour. He claimed that the wife had an affair with a man and had also incurred debts for more than $1,000,000 causing many debt collectors to disturb the family. In the petition, he asked for a dissolution of the marriage with the custody of the 2 children be granted to him. He also asked for a transfer order in respect of the matrimonial home.

9. On 10th November 2003, a decree nisi for divorce was granted and the custody of the 2 children was given to the husband.

10. On 1st March 2004, leave was granted to the Intervener to be joined as a party to these proceedings.

Evidence of the Husband

11. According to the husband’s evidence, he was a full time roasted meat worker earning about $8,500 per month at the time of marriage. He was the sole breadwinner. In April 1988, the family moved from a rented property to the matrimonial home which was purchased in the joint names of the husband and wife.

12. The husband said the matrimonial home was mortgaged to a finance company with the downpayment and other associated charges of about $54,000 all paid by him solely. He said the wife had no income and all subsequent mortgage repayments were made by him alone. In other words, the wife had not made any financial contribution towards the purchase of the matrimonial home.

13. In his affirmation dated 27th May 2003, which was accepted as part of his evidence in chief, the husband said before the purchase of the property, there were several heated quarrels between them on whether the wife should be registered as a joint owner. He said he did not intend to register the wife’s name simply because he was the only person responsible for all the living and household expenses. However, due to the insistence of the wife and partly for convenience, he agreed to have the wife’s name registered. He said he had never intended the wife to be a beneficial owner of the matrimonial home.

14. However, under cross-examination by the Intervener’s counsel, the husband retracted and said the wife had never insisted on the title and there had never been any argument between them. He said it was a joint idea to have both names registered. He agreed to counsel’s suggestion that the registration of the wife’s name was to give her some protection. He further agreed that he was well aware of the legal effect of a joint tenancy, namely that if he should pass away in future, his interest would be taken up by the wife.

15. The mortgage was redeemed in 1997. The returned title deeds were then put inside a drawer at the matrimonial home to which both the husband and the wife had access.

16. In 1999, the husband began to realise the wife’s gambling habit. In 2001, the wife had an affair with another man. She eventually deserted the family and disappeared altogether. After the desertion, the husband found that the title deeds were missing and debt collectors kept on coming to the matrimonial home to look for the wife. Finally, there came this charging order of the Intervener in July 2001.

Arguments for the Application

17. As I understand the husband’s case, he relies on the following arguments in support of this application : -

(1) The wife has disappeared and is not disputing the claim of the husband.
(2) The purchase of the matrimonial home was financed solely by the husband by way of downpayment and subsequent mortgage repayments. Therefore, it was argued that the wife had no beneficial interest in the matrimonial home at all. By operation of the doctrine of resulting trust, the husband should be the sole beneficial owner.
(3) It should have been obvious to the Intervener that both the husband and wife were joint tenants of the matrimonial home. As the Intervener had not ascertained the consent and interest of the husband before lending the money, the Intervener should be fixed with actual or constructive notice of the husband’s equitable interest. Therefore, the charging order can only take after the husband’s interest.
(4) Under the special circumstances of this case, the court should also set aside the charging order.

Wife’s Default

18. According to the husband, the wife left home in about May 2001 and disappeared. After the husband has taken out the present proceedings, the wife has defaulted in appearance. She has failed to attend the trial and there is just no evidence from her on any of the above...

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