父 母 追 回 88 萬 「 兒 女 債 」
( 星 島 日 報 報 道 ) 父 母 常 謂 「 一 身 兒 女 債 ， 一 世 還 唔 晒 」 ， 原 來 也 非 必 然 。 一 對 已 退 休 父 母 養 育 四 名 子 女 成 人 ， 更 出 資 近 百 萬 元 予 次 子 到 英 國 修 讀 機 械 工 程 碩 士 學 位 ， 又 另 付 百 三 萬 元 作 次 子 新 婚 居 所 ， 但 四 年 後 次 子 提 出 只 付 七 千 五 百 元 租 金 ， 不 再 付 家 用 ， 結 果 關 係 決 裂 ， 父 母 昨 在 區 院 成 功 向 次 子 討 回 供 書 教 學 至 英 國 碩 士 學 位 費 用 近 八 十 八 萬 元 。
現 年 三 十 七 歲 的 機 械 工 程 碩 士 陳 文 煒 為 本 案 答 辯 人 ， 他 與 父 母 陳 炳 坤 及 郭 瑞 貞 （ 譯 音 ） 對 簿 公 堂 ， 昨 日 區 院 法 官 裁 定 這 筆 「 兒 女 債 」 屬 借 貸 而 非 無 條 件 餽 贈 ， 裁 定 父 母 得 值 ， 兒 子 需 要 清 還 八 十 八 萬 六 千 多 元 。
陳 家 關 係 原 本 良 好 ， 陳 文 煒 雖 然 會 考 成 績 麻 麻 ， 但 及 後 獲 父 母 合 資 近 百 萬 元 資 助 到 英 國 取 得 機 械 工 程 碩 士 ， 回 港 工 作 ， 現 時 職 位 及 收 入 均 不 俗 。 法 官 於 判 詞 指 ， 畢 業 回 港 後 陳 文 煒 一 直 與 父 母 同 住 ， 直 至 二 千 年 結 婚 ， 才 由 父 母 斥 資以百三萬 購 入 青 衣 翠 怡 花 園 一 單 位 給 新 婚 兩 小 口 居 住 ， 單 位 業 主 為 陳 文 煒 及 其 母 ； 陳 當 年 承 諾 每 月 給 父 母 七 千 五 百 元 作 租 金 ， 及 後 陳 亦 依 諾 ， 每 月 給 父 母 多 於 此 數 ， 並 按 年 遞 增 至 最 高 一 萬 四 千 元 ， 兩 夫 婦 就 每 晚 回 父 母 家 吃 飯 ， 至 ○ 三 年 陳 誕 女 後 ， 嬰 兒 亦 曾 交 母 親 照 顧 。
但 自 ○ 五 年 六 月 起 ， 陳 文 煒 向 家 人 表 示 新 聘 印 傭 行 將 上 班 ， 要 求 將 女 兒 接 回 青 衣 的 家 住 ， 更 謂 不 會 每 晚 回 父 母 家 共 膳 ， 每 月 給 父 母 的 款 項 亦 下 調 至 七 千 五 百 元 ， 令 父 母 大 為 不 悅 。 ○ 五 年 八 月 陳 家 因 而 召 開 家 庭 會 議 ， 席 間 陳 父 要 求 查 看 陳 文 煒 的 稅 單 被 拒 ， 雙 方 不 歡 而 散 ， 陳 父 當 即 要 求 兒 子 歸 還 當 日 供 書 教 學 的 費 用 ， 又 直 言 除 非 次 子 將 單 位 業 權 交 回 ， 才 可 接 受 他 每 月 只 給 父 母 七 千 五 百 元 的 「 降 價 」 ， 陳 文 煒 當 時 答 應 ， 稍 後 亦 將 翠 怡 花 園 的 一 半 業 權 轉 回 父 親 名 下 ， 與 家 人 劃 清 界 铫 。
陳 父 及 陳 母 於 法 庭 作 供 指 ， 當 年 供 幼 女 到 澳 洲 讀 書 及 借 款 予 幼 子 學 車 ， 數 目 大 小 子 女 均 有 歸 還 ， 因 此 當 年 供 陳 文 煒 到 英 國 讀 書 ， 大 家 均 清 楚 是 借 貸 名 義 ， 陳 有 責 任 歸 還 。
法 官 裁 定 陳 父 陳 母 的 口 供 可 信 ， 並 指 雖 然 赴 英 費 用 已 屬 九 八 年 的 往 事 ， 法 理 上 已 超 出 追 溯 期 限 ， 但 由 於 ○ 五 年 八 月 陳 家 家 庭 會 議 破 裂 後 ， 陳 文 煒 答 應 會 還 款 ， 自 此 更 不 定 期 給 款 ， 因 此 借 貸 關 係 仍 然 存 在 。
陳 父 指 當 年 共 匯 款 六 萬 七 千 多 英 鎊 予 兒 子 ， 並 在 他 回 港 出 席 胞 姐 婚 宴 期 間 給 他 三 萬 四 千 元 使 用 ； 因 此 以 一 英 鎊 兌 換 十 三 點 五 港 元 的 換 算 率 ， 陳 父 共 借 出 九 十 三 萬 九 千 餘 元 予 陳 文 煒 留 學 ， 當 中 已 不 計 當 年 共 九 百 英 鎊 的 紅 封 包 。 由 於 陳 文 煒 自 鬧 翻 後 已 歸 還 五 萬 二 千 餘 元 予 父 母 ， 因 此 法 庭 裁 定 陳 仍 欠 父 母 八 十 八 萬 六 千 餘 元 。
至 於 陳 文 煒 反 向 父 母 追 討 一 半 業 權 ， 法 官 指 不 接 納 陳 文 煒 的 口 供 ， 雖 然 他 本 為 翠 怡 花 園 單 位 的 業 主 ， 但 他 只 是 名 義 上 代 父 母 託 管 ， 因 此 判 其 取 回 物 業 一 半 業 權 敗 訴 。 案 件 編 號 ： 區 院 民 事 一 六 五 四 ─ ─ 二 ○ ○ 七 。
2008/3/4
【本報訊】電子廠學徒年幼時讀書不成，但兼職念書，取得佳績，決定負笈英國進修機械工程，終考獲碩士學位，衣錦還鄉，更成家立室，與父母三代同堂，和諧共處。惟好景不常，親子關係轉壞，碩士生更決定大幅削減家用，終令父母大怒，決定追討十多年前借給他的學費。該對父母昨在區域法院獲判勝訴，可取回88.6萬元。
父母均為衣車工人
暫委法官葉佐文判案說，原告父母育有四名子女，除了被告外，亦有借錢予其他子女考車牌及讀書，亦有要他們還錢，而原告父母並非大富之家，又沒偏袒被告，故不信被告所指，學費是父母所饋贈。
本案原告為陳炳坤及郭瑞清（譯音），被告為37歲的次子陳文煒。原告共育有四名子女，原告夫婦均為衣車工人，陳父其後轉職衣車維修行業，至2003年退休。夫婦最初於1969年購入旺角一個單位居住，但一家人只佔用其中一個房間，其餘房間均租出。
被告由於中學成績不理想，中學畢業後便投身社會，當上電子廠學徒。原告夫婦其後於1988年轉售旺角物業，搬往葵涌區居住。直至1990年，被告已升任技師，他晚上到理工進修，終考獲高級文憑。
1993年初，被告要求父母供他到英國修讀大學，他於98年碩士畢業，學費合共93萬多元。被告其後回港工作，2000年原告購入青衣翠怡花園一單位予被告與妻子居住，至2005年原告欲將家用減半，原告反對，雙方為此爭持不下。原告遂入稟法院向被告追討留學費。法官昨裁定該筆費用為借貸，被告須償還尚欠的88萬多元，而被告並無居住物業的權益。
案件編號： DCCJ1654/07
DCCJ
1654/2007
IN THE
DISTRICT COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
CIVIL
ACTION NO. 1654 OF 2007
_______________
BETWEEN
CHAN
BING KWUN
1st
Plaintiff
KWOK SUI
CHING
2nd
Plaintiff
and
CHAN MAN
WAI (陳文煒)
Defendant
_______________
Coram:
Deputy District Judge E. Yip in Court
Dates of
hearing: 14, 15 and 18 February 2008
Date of
Handing Down of Judgment: 3 March 2008
_______________
Judgment
_______________
Introduction
1. The
Plaintiffs sue the Defendant for repayment of loans. The Defendant says those were gifts. In any event, their action is
time-barred. He counterclaims against
the 1st Plaintiff a sum equal to a half-share in a flat. The 1st Plaintiff says that the Defendant had
no interest in the flat.
Matters
not in dispute
2. In
1954, the 1st Plaintiff came to Hong Kong from Mainland China. He was first apprenticed in the
sewing-machine industry. He then
repaired and traded in sewing-machines.
In 2003, he was near full retirement.
3. The
2nd Plaintiff married the 1st Plaintiff in 1968. She first worked as a sewing worker and
baby-sitter. As they began to have more
children, she became a full time homemaker.
4. They have 4 children as follows:
(1) Man Yu, a daughter, born on 11 December 1969;
(2) The defendant, a son, born on 27 November
1970;
(3) Man Pui, a daughter, born on 27 June 1972;
(4) Man Fai, a son, born on 25 December 1975.
5. In
1969, they bought a flat in Bute Street, Mongkok. They occupied one room and rented out other
rooms.
6. In
1987, the Defendant completed the certificate examination with unsatisfactory
results. He was to repeat F.5.
7. In
1988, they sold the flat in Bute Street to buy a flat in Sun Kwai Hing Garden. They began to reside there. His second sitting for the certificate
examination did not yield satisfactory results.
8. In
1989, the Defendant was employed as an apprentice in an electronics factory.
9. In
1990, the Defendant was employed as an apprenticed technician in the town gas
company. In the evening he attended the
high diploma course in Hong Kong Polytechnic.
He obtained good academic results.
10. In
early 1993, he asked them to provide money for his studying for a bachelor's
degree in mechanical engineering in U.K.
It would take two years. They
agreed to help him. They provided him
with the money.
11. In
1995, he further asked them to provide the money for a master's degree in
U.K. They agreed on the same terms.
12. As
he had a tight budget, he only returned to Hong Kong once, to attend the
marriage of his elder sister, Man Yu, in March 1997.
13. In
early 1998, upon obtaining a master's degree, he returned to Hong Kong to live
with them and the younger brother.
14. In
April 1998, he got a job. He began to
pay them $8,000 per month to them as a thankful gesture.
15. In
late 2000, he was planning to get married.
He was looking for a matrimonial flat.
He discussed with the Plaintiffs.
They eventually agreed to purchase a flat, namely Flat B, 20th Floor,
Block 7, Greenfield Garden, Tsing Yi (“the Greenfield Flat”) in the joint name
of the 2nd Plaintiff and him. They would
pay for everything, including purchase price, transaction costs, and
renovation. He would pay them $7,500 per
month as occupation fee. The purchase
was completed on 16 January 2001.
16. From
January 2001 to May 2001, the Defendant paid them $10,000 per month.
17. In
June 2001, the Defendant paid them $11,000 per month.
18. From
July 2001 to December 2004, the Defendant paid them $14,000 per month.
19. In
November 2003, the Defendant’s daughter was born. An Indonesian maid was employed to look after
her. The daughter and the maid resided
in the Plaintiffs’ flat in Sun Kwai Hing Garden. The Defendant and his wife had supper
there. The Plaintiffs were to pay for
the daughter’s expenses and the maid’s salaries. Later, the maid was dismissed. The 2nd Plaintiff took charge of the baby
until her (the 2nd Plaintiff’s) arm was injured. The Defendant’s mother-in-law then
temporarily looked after the daughter in Greenfield Garden.
20. In
June 2004, the Plaintiffs had discharged the mortgage by full payment. Despite that, the Defendant paid them $14,000
per month afterwards.
21. From
January 2005 to June 2005, the Defendant still paid them $14,000 per month.
22. In
June 2005, the new maid was approved by the authority and soon to arrive in
Hong Kong to work. The Defendant told
the Plaintiffs that the baby and the new maid would stay in the Greenfield
Flat. The Defendant and his wife would
no longer come to have supper with the Plaintiffs. He would reduce the monthly payment from
$14,000 to $7,500. The Plaintiffs were
not happy with the reduction.
23. On 7
October 2005, the Defendant conveyed the Greenfield Flat back to the 1st
Plaintiff’s name.
24. The
aforesaid facts are common ground.
The
Plaintiffs' case
25. The
1st and the 2nd Plaintiffs give evidence.
They adopt their witness statements [A38-39; A29-36] as part of their
evidence-in-chief. They also give oral
evidence.
26. In
the present trial, the factual disputes between the Plaintiffs and the
Defendant are as follows:
(1) what was the nature of the sums provided to
the Defendant;
(2) what was said in the family meeting in August
2005;
(3) what was the nature of the payment from 30
December 2005 onwards;
(4) what was the Defendant’s interest in the
Greenfield Flat.
(1) What
was the nature of the sums provided to the Defendant
27.
Before they provided him with the money for his studying in U.K., they had said
clearly that the Defendant would have to return the loans when requested by
them. They would adopt a fixed exchange
rate of ₤1:HK$13.50. In order to
demonstrate that sums provided to their children are repayable, the 2nd
Plaintiff also mentions in Court the case of their younger daughter, Man Pui,
and the younger son, Man Fai. The
Plaintiffs had made a first loan of $394,000 for Man Pui’s studying in
Australia in 1989. Man Pui repaid in full
by instalments between 1995 and 2002.
They made a second loan of $270,000 to her. She began to repay in 2004. So far, she still owes them $70,000. The Plaintiffs had made a loan to Man Fai to
learn to drive. He had repaid in
full.
(2) What
was said in the family meeting in August 2005
28. In
August 2005, there was a quarrel in the family meeting. The Defendant said he would reduce the
monthly payment from $14,000 to $7,500.
The 1st Plaintiff asked the Defendant to repay his loans. The Defendant replied that the 1st Plaintiff
could give a figure and he would repay.
The meeting ended in disagreement, which lasted until the present
trial. Afterwards, the Plaintiffs and
the Defendant only talked to each other through social workers or lawyers.
(3) What
was the nature of the payment from 30 December 2005 onwards
29. On
30 December 2005, the Defendant began to repay the Plaintiffs’ loans. He first paid $1,000. He continued to repay irregular sums on a
monthly basis. Up to the last day of
trial (i.e., 18 February 2008), the Defendant still owes them $939,168.12.
(4) What
was the Defendant’s interest in the Greenfield Flat
30. They
had never said that the Defendant was to be a joint owner. The Defendant's name was used only because he
had a regular income with proof whereas the father did not have.
The
Defendant's case
31. The
Defendant adopts his witness statement [A41-53] as part of his
evidence-in-chief. He also gives oral
evidence.
(1) What
was the nature of the sums provided to the Defendant
32. The
Plaintiffs never said that he had to repay the money for his studying in
U.K. He has no record kept of the sums
provided by them. Before he left, he had
transferred his savings, NZ$10,000 and HK$20,000, into his father's bank
account by way of gift. He has kept no
record of these. Nor has he any
impression of what sums the 1st Plaintiff had provided to him. After he returned to Hong Kong and got a job,
he continued to provide the Plaintiffs with money as a thankful gesture.
33. As a
matter of law, the alleged loan agreement would be void for uncertainty or
there was no intention to create any legal relationship.
34. He
has kept no record but he disputes the dates and amounts of the sums provided
by the Plaintiffs.
(2) What
was said in the family meeting in August 2005
35. In
July 2005, the family meeting was held.
The Plaintiffs complained about his reduction of the monthly payment
from $14,000 to $7,500. They would only
accept such an amount if the Defendant conveyed the Greenfield Flat back to his
father's name. The 1st Plaintiff asked
to see his tax return. He refused to
show the 1st Plaintiff. The meeting
ended in heated disagreement. Neither
the Plaintiffs nor he ever talked of any loans or repayment.
36. In
early January 2006, he received a demand letter dated 30 December 2005 from the
Plaintiffs' solicitors for repayment of loans.
This is the first instance where the Plaintiffs have ever said that
those were loans.
(3) What
was the nature of the payment from 30 December 2005 onwards
37. Up
to the last date of trial, he had been paying the Plaintiffs irregular sums on
a monthly basis. None has been intended
or expressed as repayment of loans.
38. As a
matter of law, if the sums provided by the Plaintiffs were loans, the
Plaintiffs’ cause of action had been statute-barred.
(4) What
was the Defendant’s interest in the Greenfield Flat
39. They
had said that he would be a joint owner.
The
issues to be resolved
40. I
have to resolve the issues hereinbelow.
The
education in U.K.
(1) How much money had the Plaintiffs provided to
the Defendant;
(2) Whether the money provided by the Plaintiffs
to the Defendant was by way of loan or gift;
(3) If it was by way of loan, whether it was void
for vagueness or uncertainty;
(4) Whether there was any intention to create
legal relationship;
(5) Whether it would cover the sums related to the
master’s degree and the loan upon the Defendant’s return to Hong Kong;
(6) If it was a loan agreement which could be
enforced, whether the Plaintiffs' action has been time-barred;
(7) If not statute-barred, how much the Plaintiffs
can now recover from the Defendant.
The
Greenfield Flat
41. I
have to resolve whether the Defendant was a joint owner of the Flat.
42. To
clarify this issue, I have asked defence counsel whether, in the event of the
defence failing to prove an agreement to be a joint owner, I shall consider the
issue of a resulting trust. This is
because the Defendant has alleged to have made some contribution towards its
purchase. At the present juncture, the
defence pleadings have not canvassed this.
Defence counsel confirms that the Defendant will not be relying on a
resulting trust, so I do not have to consider it.
Closing
submissions
43. I
have considered the Plaintiffs' and the defence full written submissions. I shall refer to the parties’ submissions in
due course. The defence submissions do
not seem to be entirely systematic at times as different matters are put under
the same heading. I shall try my best to
formulate the Defendant’s case systematically.
This
Court's findings
On the
Defendant's evidence
44.
Defence counsel submits [para. 41(b) of Submissions] that the Assignment dated
7 October 2005 recited the Defendant as “the beneficial owner” [A197 Clause
1].
45. I
have noted two points relevant to, but not raised in, this submission. Firstly, the Assignment [A197 Clause 1] had
stated that “receipt [of $660,000] is acknowledged”. Secondly, the even-dated confirmation letter
signed by him to the conveyancing solicitors had stated that “[the Defendant
and the 1st Plaintiff] have already settled [the payment of $660,000] direct
[themselves] and that you are not in any way involved therein”.
46. I
now put everything into context. The
Plaintiffs were not particularly well-off.
There were four siblings, equally favoured by the Plaintiffs. Man Pui had to repay to the Plaintiffs the
loan for her studying. Man Fai had to
repay driving-lesson fees. The Defendant
had a decent and reasonably well-paid job.
The flat was worth $1,320,000.
Even if we assume the Defendant had been paying the mortgage instalments
until redemption in June 2004, he says he had paid, say, about $280,000. The Plaintiffs had paid all other monies,
inclusive of legal fees and decoration.
The relationship between the Plaintiffs and the Defendant had gone from
bad to worse since July or August 2005.
He said he no longer respected the Plaintiffs. They had to make contacts through social
workers. When asked in Court as to why
he would sign to transfer the flat back to his father's name, he explains that
he still trusted that they would pay him back the value of the ½ share.
47. Amid
deteriorating relationship, the Plaintiffs had no reason to enter into an
agreement “in the beginning of October 2005” (as pleaded by the Defendant: A15
para. 21) to favour him over other children in upgrading his. I do not find his evidence of such an
agreement credible.
48. I do
not find the Defendant a credible witness.
On the
1st and the 2nd Plaintiffs’ evidence
49.
Defence counsel purports to point out various inconsistencies and inherent improbabilities
between and in their evidence.
50. He
queries [para. 19(a) of Submissions] whether it was the 2nd Plaintiff’s or the
Defendant’s idea to look for another flat after the Defendant got married. I find no significance in this.
51. He
queries [para. 19(b) of Submissions] why the 2nd Plaintiff said that she did
not know what sort of inexpensive flat the Defendant was looking for on the one
hand whilst she also said that the Defendant was happy to take up the
Greenfield Flat at $7,500 based on the market rate for a newly renovated flat
of similar attributes on the other hand.
I find no significance in this.
52. He
queries [paras. 16(e) and 19(c) of Submissions] why the Plaintiffs did not
treat the surplus out of the $14,000 per month or other generous sums provided
by the Defendant as repayment of the alleged loan. I note that it is the Defendant’s own
evidence that the sums had nothing to do with any alleged loan agreement. Defence counsel cannot submit against his
client’s own evidence.
53. He
queries [para. 19(d) of Submissions] why the trend of the Defendant’s payments
was quite regular. It does not look like
payments for purchases requested by the Defendant. I find nothing to contradict the 2nd
Plaintiff’s evidence that those were for the purchases of seafood, mushroom,
and conpoy.
54. He
queries [para. 19(e) of Submissions] why the 1st Plaintiff had not asked the
Defendant to convey the Greenfield Flat back to his (the 1st Plaintiff’s) name
as soon as practicable after June 2004.
However, I agree with the 2nd Plaintiff’s evidence that there was no
hurry to do so.
55. He
queries [para. 19(f) of Submissions] why the Plaintiffs had not prepared any
instruments to evidence the Defendant’s trusteeship to the Greenfield
Flat. I do not find it a fair
comment. The Plaintiffs are not legally
trained. Reciprocally speaking, the
Defendant could have done so to protect his beneficial interest, if any.
56. He
queries [para. 19(h) of Submissions] why the Plaintiffs said they had never
seen any of the Defendant’s academic results before he went to U.K. To be accurate, I think they had seen some,
but not all. I find no significance in
this.
57. He
queries [para. 19(j) of Submissions] queries why the 2nd Plaintiff had
misstated that the 1st Plaintiff had no bank account in his sole name. I find no significance in this.
58. He
submits [para. 15(m)-(o) of Submissions] that the alleged exchange rate is hard
to believe. I see nothing wrong with the
parties pre-fixing a rate for the sake of simplicity and convenience.
59. He
submits [para. 15(l) of Submissions] that there was no reason the Plaintiffs
did not claim the first ₤5,000 allegedly provided to the Defendant if it was a
loan. I note from the 1st Plaintiff’s
evidence that there is no record of it, not even in the handwritten record
[B8]. A litigant is at liberty not to
lodge a claim based on flimsy evidence.
60. I
find the 1st and the 2nd Plaintiffs credible and reliable witnesses. On all facts in issue, I accept their
evidence and reject the Defendant’s evidence.
On the
education in U.K.
(1) How
much money had the Plaintiffs provided to the Defendant
61. The
1st Plaintiff had prepared a list of the monies, consisting of remittances and
cash sums, to the Defendant [A222]. This
list was in turn prepared from his (the 1st Plaintiff’s) handwritten record
[B8]. He had lost the bank records for
the 5 remittances dated before 23 April 1996 as well as for the 5 cash sums in
₤. He accepts in Court, however, that
those 5 cash sums in ₤, in total ₤900, were to be deducted from his present
claim because they were red packet money.
His present claim for his remittance is therefore $905,168.12 (i.e.,
₤67,049.49 x $13.5). Besides, he had
also provided $34,000 (i.e., $22,000 + $12,000) to the Defendant upon the
Defendant’s return to Hong Kong.
62. The
Defendant says he has no impression of the dates and the sums. I am satisfied that all those aforesaid were
true and accurate sums the Plaintiffs had provided to the Defendant. The total is $939,168.12.
(2)
Whether the money provided by the Plaintiffs to the Defendant was by way of
loan or gift
63.
According to the Plaintiffs’ evidence, the sums were provided to the Defendant
by way of loan, not gift.
(3) If
it was by way of loan, whether it was void for vagueness or uncertainty
64.
Defence counsel submits [paras. 12 and 17 of Submissions] that the loan would
be void for uncertainty because:
(1) There was no fixed amount of loan(s) or
ascertainable amount of loan(s);
(2) As it was not secured by any collateral, there
was no “cap” to the amount to be advanced;
(3) There
was no time or definable time of repayment;
(4) There was no manner of repayment; by
instalments with fixed interval and amount, by a one-off repayment, or by
instalments at any time and any amount as the Defendant likes;
(5) There was no definition of “full-time study”;
(6) It was not stated what sort of request would
suffice: verbal or written.
65. I do
not find any of these to be obstacles.
The Plaintiffs would provide such loan(s) as when requested by the
Defendant to study full-time. The
Plaintiffs would tell the Defendant when and how much to repay. The defence has not raised any arguments
about half-time study, the form of request for repayment, or the Defendant’s
inability to repay. I do not find the
loan(s) uncertain.
(4)
Whether there was any intention to create legal relationship
66.
Defence counsel submits [paras. 13-16 of Submissions] that the parties had
no intention to create legal relationship.
67. He
submits [para. 15(b)-(c), 17(b) of Submissions] that there was a fatherly moral
obligation to provide the Defendant with the education in U.K. by way of gift,
the more so because the Defendant’s academic results had improved a lot before
he left for U.K. I think, reciprocally
speaking of a moral obligation, a son may be expected to regard the aged
father’s life savings as merely loans, not gifts.
68. He
submits [para. 15(f)-(i) of Submissions] that at the time of the alleged loan
agreement in January 1993, it was not envisaged by anyone that the Defendant
would participate in a master’s degree, or that the likely expenses would
substantially exceed $300,000. I do not
think that it matters. The Plaintiffs
could only provide such loans within their means. They never regarded $300,000 as the
maximum. The same goes for the loan
($34,000) provided upon the Defendant’s return to Hong Kong.
(5)
Whether it would cover the sums related to the master’s degree and the loan
upon the Defendant’s return to Hong Kong
69.
Defence counsel submits [para. 18 of Submissions] that the Plaintiffs can only
rely on one agreement of loan, which was made in 1993. Therefore, it cannot include the subsequent
sums related to the master’s degree and the loan upon the Defendant’s return to
Hong Kong. I do not agree. According to the Plaintiffs’ evidence, the
purpose of the loan was to enable the Defendant to study full-time and
thereafter to get a job. The Plaintiffs
and the Defendant had both agreed to continue on the same terms after he
obtained the bachelor’s degree.
(6)
Whether the action was statute-barred
70.
Defence counsel refers to Chitty on Contracts, 29th ed. Vol. 1 at para. 28-036
and submits that the action was statute-barred:
[W]here no time for repayment was specified
in a contract of loan, or where the loan was expressed simply to be repayable
‘on demand’, the lender’s cause of action in general accrued when the loan was
made and time began to run from that moment.
As a result, once the loan was outstanding for more than six years
(which not infrequently happens in the case of loans between friends or members
of a family) the lender’s right to recover money lent became barred
notwithstanding that no demand for repayment had been made.
71. On
that basis, the Plaintiff’s cause of action ought to have expired on 1 April
2004 (i.e., 6 years after the last sum provided on 31 March 1998). Defence counsel submits that there was no act
on the part of the Defendant to reactivate this cause of action. The Plaintiffs’ counsel submits that in this
connection the repayment of $1,000 made by the Defendant on 30 December 2005
was the first token of repayment.
72.
There is an argument between counsel as to whether it was after the Defendant
had received the Plaintiffs’ solicitors’ letter dated 30 December 2005 [A214]
that the Defendant first began to repay.
I do not think it matters much either way.
73. I
accept that in the family meeting held in July or August 2005, the Plaintiffs
had asked the Defendant to repay their loans.
The Defendant had replied that he would.
I note that the Defendant had moved out from the Greenfield Flat by the
end of December 2005. The last link between
the parties was the Greenfield Flat. I
see no reason for the Defendant, who began to begrudge the Plaintiffs so much,
to give any money to them as a thankful gesture. I think the more probable inference is that
those sums from 30 December 2005 onwards were nothing but repayments of the
loans. In the premises, the Plaintiffs’
cause of action was reactivated from 30 December 2005.
(7) If
not statute-barred, how much the Plaintiffs can now recover from the Defendant
74. I
accept the 1st Plaintiff’s evidence as to what sums ($939,168.12) had been
provided to the Defendant by way of loans.
I do not accept the Defendant’s evidence that he had given the 1st
Plaintiff NZ$10,000 and HK$20,000 before he left for U.K.
75.
Since 30 December 2005, the Defendant had paid to the Plaintiffs the sum of
$52,500 [para. 25 of Plaintiff’s Submissions].
I am of the view that those were for repayment of the loans. Thus, the Defendant still owes the Plaintiffs
$886,668.12 (i.e., $939,168.12 - $52,500).
On the
Greenfield Flat
76. I
accept the Plaintiffs’ evidence. The
Defendant was a mere trustee with no beneficial interest.
Conclusion
77. I
allow the Plaintiffs’ claim in the sum of $886,668.12. This shall carry interest at judgment rate
from today until payment. I dismiss the
Defendant’s counterclaim. I make an
order nisi for the Plaintiffs to have the costs of the action (including the
costs for the counterclaim), with certificate for counsel. This order shall become absolute 14 days from
today.
(E.
Yip)
Deputy
District Judge
Representation:
Mr.
Kenneth Lam instructed by Messrs. Chung & Kwan for the 1st and the 2nd
Plaintiffs.
Mr. Tony
Li instructed by Messrs. Andy Fung & Associates for the Defendant.
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