Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Tong Stella Wai Yan v Wong Kwok Wing Wendy

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date09 July 2013
Subject MatterMiscellaneous Proceedings
Judgement NumberDCMP1611/2012
CourtDistrict Court (Hong Kong)
DCMP1611/2012 TONG STELLA WAI YAN v. WONG KWOK WING WENDY DCMP1611/2012 TONG STELLA WAI YAN v. WONG KWOK WING WENDY DCMP1611/2012 TONG STELLA WAI YAN v. WONG KWOK WING WENDY DCMP1611/2012 TONG STELLA WAI YAN v. WONG KWOK WING WENDY

DCMP 1611/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1611 OF 2012

-----------------------

IN THE MATTER OF Section 6 of the Partition Ordinance, Cap 352 of the Laws of Hong Kong

and
IN THE MATTER OF ALL THAT the estate right title benefit and interest of and in ALL THOSE 3 equal undivided 216th parts or shares of and in ALL THOSE pieces or parcels of ground registered in Land Registry as SECTION B OF NEW KOWLOON INLAND LOT NO 2498 AND THE REMAINING PORTION OF NEW KOWLOON INLAND LOT NO 2498 AND THE EXTENSION THERETO and of and in the messuages erections and buildings erected thereon TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy Flat C on 1st floor, To Yuen Mansion, 39 To Yuen Street, Kowloon
-----------------------

BETWEEN
TONG, STELLA WAI YAN Plaintiff

and
WONG KWOK WING, WENDY Defendant
-----------------------
Before: His Honour Judge Alex Lee in Court
Dates of Hearing: 20 & 21 May 2013 and 11 June 2013
Date of Judgment: 9 July 2013

-----------------------

JUDGMENT

-----------------------

INTRODUCTION

1. This is about a dispute over an apartment (“the Property”) in Kowloon which the plaintiff’s father (PW1) and the defendant had previously owned as joint tenants and occupied as a co-habiting couple. After their breaking up, PW1 severed the joint tenancy and years later assigned to the plaintiff his interest in the Property. The plaintiff, who resides not in Hong Kong but in the United States, applies for an order for sale and asks that the net proceeds be shared equally between herself and the defendant.

2. The defendant initially opposed the application. Affirmation evidence, written openings and case authorities were filed by both parties on the assumption that there would be argument on whether a sale should be ordered. However, at the commencement of the trial Mr Pun, counsel for the defendant, informed that the defendant would no longer oppose the sale. Thus, the remaining issue is one of apportionment only.

THE ISSUES

3. It has been the position of Mr Leung, counsel for the plaintiff, that the parties should each be entitled to 50% of the net proceeds of sale of the Property. Mr Leung relied on the fact that the Property had been purchased and mortgaged in the joint names of PW1 and the defendant and therefore it was clear that their common intention was that there should be equal ownership. This was so, despite the plaintiff’s case that PW1 had in fact contributed more than the defendant had done towards acquisition of the Property and the subsequent repayment of the mortgage loan. Mr Leung submitted that there was no or not sufficient evidence to show any change of the common intention. As such, the plaintiff (as the successor in title of PW1) and the defendant should each be entitled to a 50% share. Mr Leung relied on Stack v Dowden [2007] 2 AC 432.

4. Mr Pun did not dispute that it had been the common intention of PW1 and the defendant that the Property be held in equal ownership. However, it was submitted that the common intention had changed as a result of events which occurred after the breaking up, with the result that a new common intention should be inferred or imputed that the defendant be entitled to more than a half share. Mr Pun relied on Jones v Kernott [2012] 1 All ER 1265. Alternatively, Mr Pun submitted that credits should be given to the sums the defendant spent on mortgage repayment and also maintenance and improvement of the Property after PW1 had ceased to repay any of the mortgage loan since January 2000. Reliance was placed on Cracknell v Cracknell [1971] 356, 363D-E.

5. Apart from the issue of apportionment, there is also a side issue of occupation rent. As the defendant has been in sole occupation of the Property after PW1 moving out in late 1997/early 1998, it was submitted by the plaintiff that the defendant should pay an occupation rent to her for the entire period that the defendant is in sole occupation of the Property. This was opposed by the defendant on the basis that the defendant was entitled to stay on the Property by virtue of her co-ownership. It was also pointed out that PW1 had moved out on his own account rather than being expelled by the defendant. In his closing submission, the position adopted by Mr Leung was that, in order to facilitate the sale of the property and a matter of fairness, the defendant should be ordered to vacate the Property on or before a date to be fixed by the court and if the defendant fails to compile with that order, then she should be made to pay an occupation rent to the plaintiff after that date. Mr Pun’s position is that the defendant should be allowed to stay until before the completion of the proposed sale and there should be no occupation rent.

THE RELEVANT LEGAL PRINCIPLES

6. The leading authority of the relevant law is the judgment of the English Supreme Court in Stack v Dowden, supra. The starting point is that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage, there is no presumption of a resulting trust arising from their having contributed to the purchase price in unequal shares. The presumption is that the parties intended a joint tenancy both in law and in equity. But that presumption can be rebutted by evidence of a contrary intention, which may more readily be shown where the parties did not share their financial resources.

7. The principle in Stack v Dowden has been applied and developed in the subsequent cases and the most important of which is the judgment of the Supreme Court in Jones v Kernott, supra. It is noted that in Stack v Dowden, the search is primarily to ascertain the parties’ actual shared intentions, whether expressed or to be inferred from their conduct. However, in Jones v Kernott, the court goes further and holds that in appropriate cases where the actual intentions cannot be ascertained or inferred, the court may impute an intention to the parties which they might never had, by reference to what the court considered fair having regard to the whole course of dealing between them in relation to the property. The distinction between inference and imputation is clearly explained in the minority judgment of Lord Neuberger in Jones Kernott as follows:-

“ [126] An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.”

8. The principles of “common intention constructive trust” in respect of family home in joint-name cases, as recast in the joint leading judgment of Lord Walker and Lady Hale in Jones v Kernott, to which Lord Collins, Lord Kerr and Lord Wilson agree, are as follows:-

(i) In joint names cases, the starting point is that equity follows the law. One begins the search for the proper allocation of shares in the property with the presumption that the parties are joint tenants and are thus entitled to equal shares.

(ii) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home or (b) that they later formed the common intention that their respective shares would change.

(iii) The common intention, if it can be inferred, is to be deduced objectively from the parties’ conduct: the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.

(iv) Where it was clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it was not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, the answer is that each was entitled to that share which the court considers fair, having regard to the whole course of dealing between the parties.

(v) ‘The whole course of dealing in relation to the property’ should be given a broad meaning, enabling a similar range of factors to be taken into account as might be relevant to ascertaining the parties’ actual intentions.

(vi) Each case will turn on its own facts. Although financial contributions are relevant, there are many other factors which might enable the court to decide what shares were either intended (as in case (iii)) or fair (as in case (iv)).

Although Lord Kerr and Lord Wilson in the minority differed from the other members of the court as to whether there was sufficient evidence in that case to infer a change of the common intention of the parties, both of them concurred with the majority that the appeal should be allowed but on the different basis that such a change of intention should be imputed to the parties.

9. An example of the court imputing an intention to the parties can be found in Aspden v Elvy [2012] 2 FCR 435, where Behrens J, applying Jones v Kernott...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT