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Kwan So Ling v Woo Kee Yiu Harry And Others

Judgment Cited authorities 12 Cited in Precedent Map Related
Vincent
Judgment Date30 April 2015
Year2015
Judgement NumberHCA1311/2011
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA1311A/2011 KWAN SO LING v. WOO KEE YIU HARRY AND OTHERS

HCA 1311/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1311 OF 2011

____________

BETWEEN
KWAN SO LING Plaintiff
and
WOO KEE YIU HARRY 1st Defendant
WOO DERRICK 2nd Defendant
The Estate of WOO KAM OI, deceased 3rd Defendant
The Estate of WOO WAI, deceased 4th Defendant

____________

Before: Hon G Lam J in Court
Dates of Hearing: 11-13 and 17 November 2014
Date of Judgment: 30 April 2015

_______________

J U D G M E N T

_______________

Background

1. This action arises from a dispute over the beneficial ownership of a residential property, namely, 2/F, 180 Hai Tan Street, Sham Shui Po, Kowloon.

2. The plaintiff is the widow of the late Mr Woo Kay Sin who died in 1994. Woo Kay Sin was the second of five children of Mr Woo Wai (“Mr Woo Snr”), who died in 1998, and his wife, Woo Kam Oi (“Madam Woo”), who died in September 2012. Their other children are, in order of birth, Woo Sui Mai Helen, Woo Mui Mui Jeanie, Woo Kee Yiu Harry (who is the 1st defendant herein) and Woo Kee Dak Dack. The 2nd defendant is the son of the 1st defendant. Madam Woo’s estate and Mr Woo Snr’s estate have been joined as 3rd and 4th defendants although they were not represented and did not take part in the trial.

3. On 6 August 1963, Mr Woo Snr purchased two properties being 1/F and 2/F respectively, 180 Hai Tan Street. I shall refer to the two properties as “the 1/F property” and “the 2/F property”.

4. In about 1965, the plaintiff first met Woo Kay Sin in Hoiping, Guangdong Province, while he was there to pay respects at the shrines of his ancestors. The plaintiff fell in love with him and they got married on 5 January 1966 in the Mainland. Although Madam Woo went to see the couple at the time, no one from the plaintiff’s immediate family attended the wedding banquet. In 1966 or 1967, Mr Woo Snr, Madam Woo, Helen, the 1st defendant and Dack Woo emigrated from Hong Kong to Canada.

5. The plaintiff alleges that in around 1966, Madam Woo, on behalf of herself and Mr Woo Snr, asked the plaintiff to move to Hong Kong and promised her and Woo Kay Sin that she (ie Madam Woo) and Mr Woo Snr would give two properties (namely, the 1/F and 2/F properties) to Woo Kay Sin and the plaintiff. Madam Woo assured the plaintiff that the couple would be given one property in Hong Kong to live in and the other property to let for income, so that they could make a living without having a job. This alleged promise which is disputed by the defendants forms the central plank of the plaintiff’s case.

6. The plaintiff gave birth to a daughter in 1967 in the Mainland. At that time Mr Woo Snr and Madam Woo gave her a monthly sum of HK$300 to help with her living expenses. It is common ground that the plaintiff and her daughter moved to Hong Kong in around September 1973. The family of three initially lived with Woo Kay Sin’s maternal grandparents in Mongkok. The allowance that Mr Woo Snr and Madam Woo gave them was increased to HK$1,000 per month.

7. It appears that, in around 1974, the couple were entrusted by Mr Woo Snr with the management of the 1/F and 2/F properties. They spent several hundred dollars to partition the 2/F property into five rooms. They and their daughter moved into two of the rooms and let the rest to tenants for a total rent of about HK$600 per month. At about the same time, they also started to collect the rental income of the 1/F property totalling about HK$800 per month.

8. In 1975, by a deed of gift, Mr Woo Snr transferred the 1/F property to the plaintiff and her husband as joint tenants. Up to 1991 the 1/F property had been let to tenants.

9. In 1980 the plaintiff gave birth to a son.

10. In 1985, Mr Woo Snr and Madam Woo returned briefly to Hong Kong – apparently their only visit to Hong Kong after emigrating – and had a conversation with Woo Kay Sin and the plaintiff. According to the plaintiff, Mr Woo Snr assured them that he had not forgotten the promise previously made to them, although he had forgotten to bring the title deeds of the 2/F property with him, and that what had been given to them, ie the two properties, were theirs. This further assurance is disputed by the defendants.

11. In about 1991, Woo Kay Sin, the plaintiff and their children moved from the 2/F property to live in the 1/F property. The whole of the 2/F property was then let to tenants.

12. In 1994, Woo Kay Sin died intestate in Hong Kong.

13. In March 1998, Mr Woo Snr died intestate in Canada. In August 1998, Madam Woo instructed solicitors in Hong Kong to apply for letters of administration in respect of Mr Woo Snr’s immovable property in Hong Kong.

14. In 2001, the plaintiff’s son purchased a flat in Ma On Shan. The plaintiff began to stay there with her son from time to time. In around 2010, she moved out of the 1/F property completely and let it also to tenants. She has since lived with her son in Ma On Shan.

15. On 20 May 2008, letters of administration of the estate of Mr Woo Snr, limited to his immovable property in Hong Kong, were finally granted by the High Court. The only property listed in the attached schedule of property, in respect of which estate duty had been exempted, was the 2/F property with a stated value of HK$650,000.

16. On 5 November 2008, Madam Woo suffered a fall and was admitted to hospital in Canada. On 22 November, in her capacity as administratrix of the estate of Mr Woo Snr, she executed an assignment of the 2/F property to the 2nd defendant for a stated consideration of HK$500,000 (“the 2008 assignment”). It is common ground that no such or any other consideration was in fact paid. In around late 2008 or early 2009, Madam Woo was diagnosed as suffering from dementia. In January 2009 she was admitted to an elderly home and then transferred to a hospital in March 2009.

17. On 2 August 2011, the plaintiff commenced this action to assert ownership of or an interest in the 2/F property. The 1st and 2nd defendants deny that the plaintiff has any interest except a licence to use the 2/F property. By a letter in October 2011, the 2nd defendant revoked his permission for the plaintiff to remain in possession of the 2/F property. Madam Woo died in Canada in September 2012.

18. It is not in dispute that since 1974, the plaintiff has managed the affairs of both the 1/F and 2/F properties, received the rent and paid all outgoings.

The plaintiff’s claims

19. The plaintiff claims, primarily, a declaration that she is the sole beneficial owner of the 2/F property and an order that the 2nd defendant execute a conveyance of the 2/F property to her. She also claims, alternatively, a declaration that she has a licence to occupy or possess the 2/F property during her lifetime.

20. The causes of action relied upon by the plaintiff are common intention constructive trust and proprietary estoppel. Put broadly, her case is that there was a common intention between Mr Woo Snr and Madam Woo on the one hand, and the plaintiff and her husband on the other, alternatively an assurance or representation by the former to the latter, that the plaintiff and her husband were jointly and beneficially entitled to the 2/F property, and that she acted in reliance on this common intention or assurance to her detriment. She contends that it would be inequitable and unconscionable for the 2nd defendant, as successor-in-title to Mr Woo Snr as legal owner, to claim the property and deny her interest in it.

21. In the pleadings, the plaintiff also claims that Madam Woo lacked any requisite mental capacity to execute the 2008 assignment and seeks an order to set it aside. I had some problem with that claim as such since if it was an independent claim impugning the validity of the 2008 assignment alone, it ought to be brought by the personal representative of Mr Woo Snr’s estate, not by the plaintiff. It was, however, clarified in the opening by Mr Jason Wong, who appeared on behalf of the plaintiff, that while the plaintiff avers that Madam Woo lacked mental capacity, she does not raise this as an independent cause of action. He confirmed that if the plaintiff fails on constructive trust and proprietary estoppel, she makes no separate claim to set aside the 2008 assignment for want of mental capacity on the part of Madam Woo. The mental state of Madam Woo at the relevant time, of course, remains relevant to the evidential effect of the 2008 assignment. There is further a pleaded claim of adverse possession but Mr Wong also made clear in opening that it is not pursued.

The defendants’ case

22. The defendants deny the plaintiff’s case. The 1st defendant advances a positive case that it was the intention of Mr Woo Snr and Madam Woo for Woo Kay Sin and his family to have the 1/F property and for the 1st defendant’s and his family to have the 2/F property. The 1st defendant has decided that his son the 2nd defendant should take the legal and beneficial ownership of the 2/F property, hence the assignment by Madam Woo to the 2nd defendant in 2008. After the assignment, the 2nd defendant continued to permit the plaintiff to use the 2/F property until the plaintiff commenced this litigation. By his counterclaim the 2nd defendant claims vacant possession of the 2/F property and mesne profits, although Mr Albert Cheung, who appeared for the defendants, made clear at trial that only a nominal sum is sought.

The applicable legal approach

23. The legal principles applicable to common intention constructive trust are not in dispute between the parties. I have been referred to the leading English cases of Jones v Kernott [2012] 1 AC 776 and Stack v Dowden [2007] 2 AC 432 as well as recent local cases such as Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 and a...

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