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Hui Tsz Kin v Ng Ka Yan Aka Ng Ka Yun Karen

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date10 November 2023
Neutral Citation[2023] HKDC 1586
Year2023
Subject MatterCivil Action
Judgement NumberDCCJ1932/2023
CourtDistrict Court (Hong Kong)
DCCJ1932/2023 HUI TSZ KIN v. NG KA YAN aka NG KA YUN KAREN

DCCJ 1932/2023

[2023] HKDC [1586]

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1932 OF 2023

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BETWEEN
HUI TSZ KIN Plaintiff
and
NG KA YAN also known as Defendant
NG KA YUN KAREN

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Before: Deputy District Judge Queenie Lau in Chambers
Date of Hearing: 18 October 2023
Date of Decision: 10 November 2023

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DECISION

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A. INTRODUCTION

1. This case concerns the entitlement to a sum of HK$1,182,677.64 (the “Sum”) paid by the Plaintiff into a joint account opened in the names of the Plaintiff and the Defendant (the “Account”) when they were boyfriend and girlfriend. After disagreements between the Plaintiff and the Defendant arose, the Defendant withdrew the Sum from the Account without prior notice to or consent from the Plaintiff. The Plaintiff seeks to claim back the Sum.

2. Two applications are before this Court:

2.1 By a Summons dated 9 June 2023, the Plaintiff applies for summary judgment against the Defendant for, inter alia, a declaration that the Plaintiff is the owner of and has proprietary interest over the Sum, and an order that the Defendant pay the Sum to the Plaintiff.

2.2 By a Summons dated 6 October 2023, the Defendant applies for leave to amend the Defence.

B. BACKGROUND

3. The Plaintiff and the Defendant met in January 2022 and started dating in February 2022.

4. In July 2022, the Plaintiff and the Defendant had an argument about whether the Plaintiff was being faithful to the Defendant. To reassure the Defendant, the Plaintiff proposed opening a joint account together with the Defendant so that she could know the Plaintiff’s financial situation.

5. The parties disagree over whether the abovementioned discussion about opening a joint account included the Plaintiff saying to the Defendant that if the Plaintiff were unfaithful to the Defendant again, all the money in the joint account would be fully paid and belong to the Defendant as compensation (the “Alleged Representation”). The Defendant alleges that the Plaintiff did make the Alleged Representation whereas Plaintiff denies having done so. The Alleged Representation is central to the defence that the Defendant relies upon.

6. On 1 August 2022, the Plaintiff and the Defendant opened the Account. At the time of account opening, the Plaintiff transferred HK$1,638,000 (of which the Sum formed part) from his own account into the Account. There is no dispute that the Defendant did not pay any money into the Account.

7. According to the Plaintiff, the money in the Account was intended to and did belong to him, and the money could not be withdrawn by the Defendant without the Plaintiff’s prior consent. On the other hand, according to the Defendant, the Plaintiff’s intention was to allow the Defendant to access and use the money in the Account whenever she wanted.

8. On 20 April 2023, the Defendant unilaterally withdrew the Sum of HK$1,182,677.64 from the Account without prior notice to or consent from the Plaintiff. Despite the Plaintiff’s requests, the Defendant has refused to return any part of the Sum to the Plaintiff.

9. The Defendant claims that she took the Sum because the Plaintiff had been unfaithful to her in April 2023 by installing Telegram on his mobile phone, which she describes as a “mobile dating application”. The Plaintiff says that whilst the question of whether he was faithful or not is irrelevant to the dispute, he was not unfaithful, and he suspects that the Defendant herself may have been unfaithful.

10. According to the Plaintiff, the Defendant’s refusal to return the Sum to him has caused severe financial difficulties for him.

C. LEGAL PRINCIPLES

C1. Summary judgment

11. The principles regarding summary judgment application are well-established. See, for example, China Life Insurance (Overseas) Co Ltd v Li Xiaoming, HCA 570/2017, 11 December 2017, §§47, 50.

12. In resisting an application for summary judgment, a defendant is not allowed to raise and rely upon a defence which has not been pleaded in his Defence. See Kaefer AG v Winfield Marine Services Co Ltd [2022] HKCA 807, §§30-32; Hong Kong Topkey Limited v Wintac (Hong Kong) Limited [2023] HKCFI 1711, §14.

C2. Joint accounts

13. In a joint account, the joint account holders are joint tenants in law. However, the beneficial interest in the account remains a matter that is to be determined by trusts law, with assistance from the presumptions of resulting trust and advancement, and depending on the relationship between the joint holders. See Paget’s Law of Banking, 15th ed, §5.21.

14. More particularly, in relation to the beneficial interest:

14.1 The general principle is that beneficial entitlement to funds in a joint account is to be determined by the common intention of the account holders. See Cheung Sai Lon v Cheung Sai Ha & Or [2020] HKCFI 2551, §20.

14.2 Where a sum of money belonging to one person is paid into a joint bank account, there is a presumption that the owner of that money does not make a gift of it to the account holder and accordingly the money is held on a resulting trust for the provider. See Cheung Sai Lon v Cheung Sai Ha & Or, §19.

14.3 The presumption will be rebutted if the circumstances give rise to a presumption of advancement, or by evidence that the owner intended to transfer the beneficial interest to the account holders jointly, or as the case may be to the other account holder solely. See Cheung Sai Lon v Cheung Sai Ha & Or, §19.

14.4 In drawing inferences of common intention, greater weight is to be given to the source of the funds in the joint account and the presumption of resulting trust in favour of the account holder who provided the funds. See Cheung Sai Lon v Cheung Sai Ha & Or, §20.

14.5 Thus, where all the money paid into a bank account held by two or more persons is provided by one of them, normally there will be a rebuttable presumption that all the money standing to the credit of the account is held on trust for the person who provided the money. See Lewin on Trusts, 20th ed, §10-095.

15. The above is consistent with the general principles in equity on gratuitous transfers of property. See e.g. Law Pak Fun v Tai Lee Fat International Ltd [2015] 4 HKLRD 339, §§26-27.

16. The presumption of advancement does not apply as between a man and his female partner, even if they are living together as man and wife. See Lewin, §10-033.

D. DISCUSSION

D1. Amendment application

17. The Defendant’s proposed amendments are at §4(3) of the Defence. The Defendant had originally pleaded that from the moment the Plaintiff was unfaithful to the Defendant for the second time, or from the moment when the Plaintiff admitted that he had been unfaithful for a second time, all the money in the Account “was fully paid and belonged to the Defendant as compensation” (§4(3)(a) of the Defence). The Defendant now seeks to plead alternatives to that primary case at §§4(3)(b) and (c) of the draft Amended Defence:

“(b) the Plaintiff has been estopped from claiming all the money in the Account, including the Sum; or alternatively

(c) the Plaintiff has waived his right to claim all the money in the Account, including the Sum”.

18. Whilst the Defendant has taken out a Summons for leave to amend the Defence, the stance taken by Ms Natalie S.K. Yeung (appearing for the Defendant) is that this was done “not out of an admission of procedural irregularity but out of a commitment to transparency”: see the Defendant’s skeleton, §4. Ms Yeung also informed me at the hearing that her position is that even without the amendments, the Defendant can still rely on the doctrines of waiver and estoppel.

19. I cannot accept Ms Yeung’s aforementioned position as being correct. I agree with Mr Keith Chan (appearing for the Plaintiff) that in light of Kaefer AG v Winfield Marine Services Co Ltd, §§30-32, and Hong Kong Topkey Limited v Wintac (Hong Kong) Limited, §14, referred to at §12 above, it is clear that the Defendant is not allowed to raise and rely upon a defence which has not been pleaded in her Defence. Further, as Mr Chan has pointed out, estoppel and waiver must both be pleaded. See Hong Kong Civil Procedure 2023, §18/8/15.

20. As to the substance of the proposed amendments, I also agree with Mr Chan that the proposed new alternative pleas are problematic. They are bare assertions of estoppel and waiver without any particularisation, without even any cross-references to other paragraphs. I accept Mr Chan’s submission that whilst, for example, the Alleged Representation (which is pleaded at §2(2) of the Defence) is one candidate for founding the alleged estoppel, there is also another plea at §4(2) of the Defence that “the Plaintiff expressly orally and/or in writing that the Defendant could use and/or spend the money in the Account on various occasions”, and it is unclear from the draft Amended Defence as to which representation is alleged to have founded an estoppel.

21. In §§27-29 of her skeleton, Ms Yeung stated that the Defendant seeks to rely on the Alleged Representation to found waiver and estoppel. Thus, Ms Yeung ultimately did not rely upon §4(2) of the Defence in either her written or oral submissions, and has not sought to rely on any representation from the Plaintiff that the Defendant could use and/or spend the money in the Account even if the Plaintiff had not been unfaithful. Nevertheless, I am of the view that I need to consider the Defence in its entirety in order to decide whether the proposed amendments are...

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