COURT OF FINAL APPEAL, HKSAR
CHIEF JUSTICE ANDREW LI
JUSTICE PATRICK CHAN PJ
JUSTICE R.A.V. RIBEIRO PJ
JUSTICE G.P. NAZARETH NPJ
SIR GERARD BRENNAN NPJ
16 JUNE 2008
Chief Justice Li
I agree with the Judgment of Mr Justice Ribeiro PJ.
Justice Chan PJ
I agree with the Judgment of Mr Justice Ribeiro PJ.
Justice Ribeiro PJ
This appeal concerns equitable rights alleged to have arisen in the course of a relationship between an unmarried couple regarding a property which they occupied and which is owned by a limited company.
The respondent (“Miss Luo”) and Mr Willy Hui Shui See (“the deceased”) had lived together as a couple for some four years (together with Miss Luo’s daughter for some of that time). They were intending to marry when, unfortunately, Mr Hui died suddenly. He did not leave a will. The deceased’s sister, Miss Hui Mi Chi (“Miss Hui”) is the sole representative of his estate (“the estate”). Miss Luo and her daughter continue to occupy a flat in a building known as Hillview Court in Sai Kung (“the Property”), which is the property in dispute and the flat where Miss Luo and the deceased had cohabited. The Property is owned by a company called Glory Rise Limited (“Glory Rise”) of which Miss Luo is a 35% shareholder, with the balance of its shares now held by the estate.
Miss Hui, acting on behalf of the estate and as a director of Glory Rise, caused that company to institute proceedings against Miss Luo for possession of the Property and for mesne profits. Miss Luo resists those claims on the basis of certain rights allegedly acquired in the course of her relationship with the deceased. She issued her own proceedings (HCCW 568/2002), petitioning as a minority shareholder to wind up Glory Rise on the just and equitable ground and claiming other relief pursuant to section 168A of the Companies Ordinance Cap 32. The estate, Miss Hui and Glory Rise are named as respondents in those proceedings.
At first instance, Kwan J (HCCW 568/2002 and HCA 285/2003, 17 November 2004) decided that Glory Rise holds the Property on a common intention constructive trust for its shareholders in the proportion of their respective shareholdings, representing a 35% beneficial interest in the Property for Miss Luo. Furthermore, her Ladyship held that Miss Luo was entitled to a 35% interest in the shareholders’ loans made or caused to be made by the deceased to Glory Rise. Glory Rise’s claim for possession and mesne profits was dismissed on the footing that Miss Luo is an equitable tenant in common of the Property and entitled to remain in possession. Kwan J also ordered Glory Rise to be wound up, directing that the liquidator should have regard to the rights and interests of the shareholders as adjudicated upon in the proceedings. Their appeal to the Court of Appeal having been dismissed (CACV 381/2004, Rogers VP, Le Pichon JA and Suffiad J (27 December 2006)), the estate, Miss Hui and Glory Rise now bring the present appeal by leave of the Appeal Committee granted on 21 September 2007.
At the start of the appeal, the Court invited submissions on the question of whether a promissory estoppel may have arisen on the Judge’s findings. The hearing was adjourned to allow counsel time for preparation and the Court is grateful for the assistance they provided on that question as well as on the other issues in the appeal.
A. The course of events
The facts, as found by the Judge, may be summarised as follows. Miss Luo was married to a Mr Yik on the Mainland in April 1992. They went to live in the United States and had a daughter, Mon Din, born in August 1993. In 1995, they came to Hong Kong, but separated shortly afterwards. Miss Luo continued to live and work here on her own, her daughter being looked after by her parents in Shanghai.
In 1996, she first met the deceased, a Hong Kong businessman, who had, since 1980, been investing and trading in properties. This was a business which he carried on together with Miss Hui, often through companies in which they each held shares. One such company was called Inter-Trade Agencies Limited (“Inter-Trade”) in which the deceased held 80% and Miss Hui held 20% of the shares. The deceased also did business with Mr Cheng Pui Kit (“Mr Cheng”). In 1993, the deceased was diagnosed with lung cancer. He recovered after surgery, but thereafter relied substantially on Miss Hui to handle his business affairs.
Not long after they met in 1996, Miss Luo and the deceased developed an intimate relationship and began living together in a rented flat. In September 1997, they moved into a different flat on the 4th floor of Wah Po Building in Prat Avenue in Tsimshatsui. That property was purchased by the deceased in Miss Luo’s name. He paid the deposit of $500,000 and also the mortgage repayments, as well as other expenses, while they were in occupation.
The Property was acquired in the course of the business being carried on by the deceased with Miss Hui. Miss Luo was not involved. It was decided to use Glory Rise as the vehicle for its acquisition and, in April 1998, Miss Hui signed the contract on behalf of Glory Rise to acquire the Property for $7,790,600.00.
Glory Rise had been incorporated in June 1997 with a nominal capital divided into 10,000 shares of $1.00 each, of which 6,000 shares were allotted to Mr Cheng and 4,000 to the deceased. As Mr Cheng was not to participate in this investment, he divested himself of his shares in Glory Rise before completion of the Property’s purchase. On 3 February 1999, he transferred 4,000 shares to the deceased and 2,000 shares to Miss Hui.
Initial payments for the Property exceeding $2.5 million were paid by the deceased and Miss Hui in the proportions of 80:20, reflecting their respective shareholdings in Glory Rise. Those payments were treated as shareholders’ loans. The balance of the purchase was financed by a term loan of $4 million from a bank, repayable by 180 monthly instalments of $41,768.99, secured by a first legal charge over the Property and by a joint and several personal guarantee given by the deceased and Miss Hui.
The Property was assigned by the vendors to Glory Rise on 12 February 1999 and the mortgage instalments for March and April 1999 were thereafter paid, in the 80:20 proportion, by the deceased and Miss Hui. During that period, the Property was placed with estate agents in an attempt to re-sell it or to let it profitably. However, by April 1999, no acceptable offers had been received.
Meanwhile, in February 1999, the deceased proposed marriage to Miss Luo and she accepted. However, Miss Luo was still waiting for her divorce from Mr Yik to come through. The decree nisi was in fact only issued on 14 June 1999 and made absolute on 21 September 1999. Nevertheless, during February, the couple went to Shanghai to collect Mon Din and to bring her to Hong Kong where the three of them began to live together as a family. The deceased treated Mon Din in all respects as if she were his daughter.
In April 1999, as the sale or rental of the Property had not been achieved, the deceased decided to take it over for their own occupation. Miss Hui stopped contributing to the mortgage repayments having at that point paid a total of $528,576.40 towards acquiring the Property. The deceased, Miss Luo and Mon Din moved into the Property and the Tsim Sha Tsui flat was let. Miss Luo spent some $70,000.00 on decorating the master bedroom and in buying furnishings for the Property. She also arranged for her furniture in the Tsim Sha Tsui flat to be moved there.
When, in June 1999, Miss Luo’s decree nisi was issued, the deceased renewed his proposal of marriage. He decided that Miss Luo should have 35% of the shares in Glory Rise and, on 25 June 1999, he transferred 3,500 of his then 8,000 shares to her without receiving any payment in return. Simultaneously, he arranged for Miss Hui to transfer her 2,000 shares to himself. However, as the deceased was then in a tight cash position, Miss Hui executed the transfer documents in escrow and the transfer was not completed until March 2000 when the deceased was able to reimburse her contributions towards acquisition of the Property. It is in this context that a centrally important promise or assurance was found to have been communicated by the deceased to Miss Luo, a matter to which I shall return.
To relieve the deceased’s then cashflow needs, Miss Luo lent him $1 million in June 1999. She also paid the mortgage instalment for August 1999. However, in March and April 2000, the deceased’s financial position improved. During those two months the transfer of Miss Hui’s 2,000 shares in Glory Rise to the deceased was completed and she received reimbursement of $528,576.40; Glory Rise’s debt to Miss Hui in that amount was adjusted in its books to represent a debt to the deceased; Miss Luo’s mother, brother and sister-in-law came to Hong Kong and received customary gifts of money and jewellery from the deceased in anticipation of the marriage; he repaid with interest the $1 million he had borrowed from Miss Luo; and the bank mortgage loan was discharged partly by means of a loan from Inter-Trade.
Thus, as at mid-April 2000, Glory Rise was owned as to 6,499 shares, by the deceased, as to 3,500 shares by Miss Luo and as to 1 share by Miss Hui, holding that share on trust for the deceased. Its directors were the deceased and Miss Hui. The mortgage encumbrance on the Property had been removed and Glory Rise now owed $5,653,840.00 to the deceased and $2,919,850.00 to Inter-Trade (in which Miss Hui was a 20% shareholder). Miss Luo was, however, unaware of these details and, as further discussed below, believed that she had been given a 35% beneficial interest in the Property. It was intended that the marriage would take place in October of that year.
The deceased fell ill on 31 August 2000 and died on 1 September 2000. Miss Hui subsequently caused her sister to be appointed as a director of Glory Rise and, on 22 January 2001, the company purported to give Miss Luo one month’s notice revoking her licence to occupy the Property. The action for possession and the petition proceedings were then commenced.
B. The main findings of the Judge
Central to this appeal are Kwan J’s findings as to the promise or assurance given by the deceased to Miss Luo in the context described above. Her Ladyship found that the couple would probably have married but for the deceased’s sudden death (Judgment §28) and that the 3,500 shares had been transferred to Miss Luo as a gift (Judgment §37) in June 1999 at which time (Judgment §68):
.... the deceased had represented to her he was to buy out Miss Hui’s interest in the Property and that he would give her 35% interest in the Property, this was to provide her with financial security when he proposed marriage to her a second time. He had further told her that the Property would be owned by them jointly and it was to be their matrimonial home.
Taking into account the fact that the deceased had then proceeded to take over Miss Hui’s interest in Glory Rise and to discharge its indebtedness to her and to the bank, replacing it with a debt to Inter-Trade which the deceased controlled as an 80% shareholder (Judgment §68), her Ladyship found (Judgment §44):
.... that the deceased had intended to confer 35% beneficial interest in the Property to Miss Luo so as to give her some form of financial security in anticipation of their marriage.
While Miss Luo was not aware until after the deceased’s death that the Property was held by a company (Judgment §70), she understood from the deceased (and reasonably so understood) that she was to have a 35% interest in the Property and that he was to retain a 65% interest (Judgment §68).
Kwan J furthermore went on to find (Judgment §45):
.... that in transferring the 3,500 shares in the Company to Miss Luo, it must have been the deceased’s intention to assign to her as well 35% of the loans that he had provided or caused to be provided to the Company to fund the purchase price and the outgoing expenses of the Property. To hold otherwise would defeat the deceased’s intention that she should have a 35% interest in the Property through her shareholding in the Company. It would have been meaningless merely to give her 35% of the shareholding without a corresponding proportion of the loans to the Company, as she would hardly have derived any real benefit from her shareholding if the proceeds of realisation of the only asset of the Company were to be used wholly or substantially to pay off the existing loans to others.
Miss Luo’s evidence, which the Judge accepted, was that she had acted in reliance upon the deceased’s promise that he would marry her and give her a 35% interest in the Property as a measure of security in that (Judgment §§46-47:
.... she had spent HK$70,000.00 to decorate the master bedroom in the Property and to purchase furnishings; she had arranged for all her furniture in her property in Tsimshatsui to be moved to the Property; she had paid one mortgage instalment of HK$40,000.00 for the Property in August 1999; she had remained living with the deceased and had not sought employment until after he passed away.
In the Court of Appeal, the only factual challenge mounted by the appellants concerned the Judge’s finding that there had been detrimental reliance on the part of Miss Luo. It was unsuccessful (Court of Appeal, per Le Pichon JA, §§15-19). At the hearing of the present appeal, however, Mr Russell Coleman SC pointed out that certain matters put forward as constituting detrimental reliance on Miss Luo’s part self-evidently had preceded, and so could not have arisen in reliance upon, the deceased’s promise made in June 1999. They include Miss Luo’s expenditure of $70,000.00 on decorating and furnishing the Property and moving her furniture in the Tsim Sha Tsui flat to the Property. Mr Anderson Chow SC, accepted the obvious proposition that matters constituting reliance upon a promise cannot be matters which occurred prior to the making of that promise. He sought, however, to argue that it was not clear on the Judge’s findings that the matters in question necessarily preceded the June promise. In my view, the sequence is plainly as Mr Coleman submits. The only matters chronologically capable of constituting conduct in reliance on the promise made in June 1999 consist of Miss Luo continuing to reside with the deceased de facto as man and wife, foregoing the pursuit of any employment opportunities of her own and paying the $40,000 mortgage instalment on the Property in August 1999.
Kwan J’s findings regarding the assurance given by the deceased were accepted by the Court of Appeal without challenge by the appellants (Court of Appeal §10). However, Mr Coleman sought to question those findings in this Court, contending that Miss Luo’s evidence as to what exactly the deceased had said was far too vague to justify a finding that she had been promised a 35% interest in the Property. That is a challenge against concurrent findings which cannot be entertained. As the Court has frequently stated, its practice is not to disturb concurrent findings unless a proper basis can be shown for contending that there has been a miscarriage of justice or violation of some principle of law in the sense explained in Sky Heart Ltd v Lee Hysan Co Ltd (1997-98) 1 HKCFAR 318. In particular, the Court will not review concurrent findings merely on a submission that the courts below did not accord appropriate weight to the evidence: Aktieselskabet Dansk Skibsfinansiering v Brothers (2000) 3 HKCFAR 70 at 84. Such a review is essentially what Mr Coleman invited the Court to embark upon. I would add that, on the basis of such excerpts from the evidence as we were shown, the Judge was in my view fully entitled to make the relevant findings.
C. Common intention constructive trust affecting the Property
C.1 The decisions below
Miss Luo’s contention, accepted by Kwan J and upheld by the Court of Appeal, was that a common intention constructive trust in respect of the Property founded on the express assurance conveyed to her by the deceased came into being (Judgment §58). Her case was held to fall within the first category of such trusts referred to by Lord Bridge of Harwich in Lloyds Bank plc v Rosset  1 AC 107 at 132, in the following terms:
The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel.
As noted previously, Kwan J found that it was the common intention of the couple that Miss Luo should have a 35% beneficial share of the Property and that Miss Luo had acted to her detriment or significantly altered her position in reliance on that common intention or, at any rate, that the appellants had not discharged the burden of negating her reliance on the deceased’s assurance (Judgment §§67-68, 71).
Kwan J held that it made no difference that the Property was owned, not by the deceased, but by Glory Rise (Judgment §64):
It should make no difference to the application of the principles of constructive trust that the legal title is held by a company instead of an individual, so long as it is established to the satisfaction of the court that at the time of the acquisition of the property, or at some subsequent relevant period in exceptional circumstances, the intention is that the company is not to own the property beneficially but to hold it as a trustee or nominee for the beneficial owner. I accept the submission of Mr. Au that there is no legal impediment to find that the Company is only holding the Property as a constructive trustee for the shareholders who are the beneficial owners, provided I am satisfied on the evidence that the requisite common intention is established.
She concluded that Glory Rise held the Property as a trustee for Miss Luo and the deceased in the proportion of their respective shareholdings and accordingly that Miss Luo has a 35% beneficial interest in the Property (Judgment §73). It was held that this made Miss Luo a tenant in common in equity and gave her a good defence against Glory Rise’s claim for possession (Judgment §§73-74).
In the Court of Appeal, Le Pichon JA upheld the existence of a constructive trust, but expanded it to embrace both the deceased’s shares in Glory Rise and the Property (Court of Appeal §22):
On any view, by 9 March 2000 the plaintiff and the deceased were the only shareholders beneficially interested in the company. Once the constructive trust had been established, the deceased could not have dealt with his shares in the company in a manner that was inconsistent with that trust. In my view, the company became trustee of the property holding it in trust for the plaintiff and the deceased at the very latest as from that date. I do not see any legal impediment to the constructive trust attaching not only to the shares held by the deceased in the company but also to the underlying assets where no person other than the plaintiff and the deceased had any interest in the company.
C.2 Inapplicability of the common intention constructive trust
I am, with respect, unable to agree with the approaches adopted below. The ownership of the Property by Glory Rise is in my view a crucial obstacle to applying the common intention constructive trust doctrine in the present case.
Prior to the deceased deciding that the Property should serve as their family home, it had clearly been beneficially owned as a marketable investment by Glory Rise. The company borrowed money from its shareholders and from a bank to purchase the Property and executed a mortgage on it by way of security. Glory Rise’s interest in the Property is said to have been transformed into the interest of a trustee solely on the basis of a constructive trust resting on the couple’s common intention. There is certainly no reason – and none is alleged – to lift the corporate veil or for treating Glory Rise as anything other than a legal person distinct from its shareholders. The basic proposition that a shareholder has no legal or equitable interest in the company’s property (as opposed to a right to share in the profits of its business and to a distribution of any surplus on liquidation) therefore applies (see, eg, Macaura v Northern Assurance Co Ltd  AC 619 at 626-627).
It is against this background that the alleged common intention constructive trust must be considered. As the line of cases commencing with Pettitt v Pettitt  AC 777 and Gissing v Gissing  AC 886 show, where beneficial interests arise in a domestic cohabitation context, equity converts the person in whom the property is vested into a trustee of that property for both parties. As Lord Diplock puts it in Gissing v Gissing  AC 886 at 904:
Any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom the legal estate in the land is not vested must be based upon the proposition that the person in whom the legal estate is vested holds it as trustee upon trust to give effect to the beneficial interest of the claimant as cestui que trust.
This is so in cases where a resulting trust arises by virtue of the claimant’s contribution in money or in some other way towards the property’s acquisition. Equity holds the legal owner to be a trustee of that property for the claimant in an appropriate share, giving effect to the parties’ presumed intention: Westdeutsche Landesbank Girozentrale v Islington LBC  AC 669 at 689G, 708.
It is also the case where a constructive trust is imposed. Equity attaches the conscience of the legal owner and attributes to the claimant an appropriate beneficial interest in the property. As Millett LJ pointed out in Paragon Finance plc v D B Thakerar  1 All ER 400 at 409:
A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another.
Where a constructive trust is alleged to arise on the basis of the parties’ common intention, it is the intention commonly held by the property owner and the claimant regarding their shared beneficial interests in the property that matters. The trust is constituted by the claimant’s detrimental reliance on their common intention and the unconscionability of the property owner departing therefrom.
It follows that Glory Rise’s ownership of the Property is crucial. The fact that A and B might form a common intention that they should have shared beneficial interests in C’s property cannot in principle be sufficient to impose a constructive trust on C to hold C’s property on trust for A and B. C is not party to and does not unconscionably depart from any common intention, so there is nothing to constitute C a trustee for A and B. If B does not make good his promise, he might attract personal liability to A, but it does not mean that an equitable interest in C’s property is created in favour of A.
The approach adopted by Kwan J runs counter to these principles in postulating that the doctrine of constructive trust applies if the court finds “that at the time of the acquisition of the property, or at some subsequent relevant period in exceptional circumstances, the intention is that the company is not to own the property beneficially but to hold it as a trustee or nominee for the beneficial owner” (Judgment §64).
The “intention” referred to must be the common intention of Miss Luo and the deceased on the evidence canvassed. But the existence of that common intention cannot transform Glory Rise into a constructive trustee and does not result in Miss Luo acquiring any proprietary interest in the Property. Moreover, Miss Luo did not know at any stage before the deceased’s death that the Property was held by a company so that there could not, on the evidence, ever have been the posited common intention that Glory Rise should hold the Property as trustee.
The same difficulties beset the approach adopted by Le Pichon JA insofar as she held that the common intention of the deceased and Miss Luo that the latter should have a 35% interest in the Property converted Glory Rise into a trustee of its sole asset in favour of its shareholders.
It is also, with respect, difficult to see any foundation for Le Pichon JA’s suggestion that a constructive trust attached to the deceased’s shares in Glory Rise. The Judge’s findings as to common intention relate only to beneficial interests in the Property (Judgment §§44, 68, 73) and also to the shareholders’ loans to Glory Rise (discussed below). There was never any discussion of anyone acquiring an interest in the deceased’s 6,500 shares. On the contrary, the Judge found (as the evidence clearly warranted) that the deceased’s intention was that “they were to hold shares in the Company in the proportion of 35% and 65%” (Judgment §68), although she found that this was a “legal nicety” which the deceased had not communicated to Miss Luo. The deceased plainly meant to keep the 6,500 shares and to remain the majority shareholder. If the deceased had come under some equitable obligation preventing him from dealing with his own shares in a manner inconsistent with that obligation, this might take effect as a personal equity – as discussed below in relation to promissory estoppel – but that could not have resulted in the creation of any beneficial interest in favour of Miss Luo in the Property.
C.3 The authorities on “interposed” companies
Several decided cases were cited to the Judge in support of the suggestion that the “interposition” of a company makes no difference where a common intention exists as between individual shareholders that they should enjoy shared beneficial interests in the company’s property. However, with one exception mentioned below, none of those cases involve the court actually deciding that such suggestion is correct. Thus, although Re Schuppan (a bankrupt) (No 2)  1 BCLC 256; Philip Lowe (Chinese Restaurant) Ltd v Sau Man Lee (Unreported) English Court of Appeal, 9 July 1985; and Lalani v Crump Holdings Ltd  EWHC 47 (Ch), are cases containing dicta which may be thought to admit of the possibility of that suggestion being valid, they were each in fact disposed of on findings that the evidence did not establish any common intention in the first place. The court therefore never had to confront the question whether the fact that the disputed property was vested in a company made any difference and the judgments contain no analysis of that issue.
Re Superyield Holdings Ltd  2 HKC 90; Popely v Ayton Ltd  All ER (D) 149; and Re Hansby Co. Ltd HCMP 4610 of 2003, 12 May 2004, Barma J, were also cited but are, in my view, not relevant. The issue in those cases was whether persons causing property to be vested in a company had intended (or by a presumption of resulting trust, were presumed to have intended) the company to hold such property as their nominee or trustee; or whether, on the other hand, they had intended the company to hold it beneficially (treating, for example, the purchase monies they had provided as a loan). No such questions arise in the present case. As noted previously, Miss Luo was not even aware of the involvement of any company in holding the Property.
The one case which does appear to lend support to the approach which I have rejected is Chan Pui Chun v Leung Kam Ho  BPIR 723, where His Honour Judge McGonigal, sitting as a Deputy Judge of the English High Court, referred (at 729) to Re Schuppan  1 BCLC 256 and then stated in respect of the facts of his case  BPIR 723 at 747:
.... it is clear that the agreement was that the parties would be beneficial owners of Hill House in the proportions of 51 to 49. Accordingly, Melodious is a trustee and a shareholding of 51 to 49 in Melodious reflects the parties’ interests in the sole asset of Melodious at that time, namely Hill House.
I would respectfully decline to adopt this approach for the reasons previously given.
D. A 35% interest in the shareholders’ loans to Glory Rise
Kwan J’s conclusion that it must have been the deceased’s intention to assign to Miss Luo 35% of the loans provided to Glory Rise to fund acquisition of the Property was reached on the footing that it would otherwise have been “meaningless merely to give her 35% of the shareholding” given the company’s level of debt. She directed the Liquidator to give effect to this by having regard to her adjudication of Miss Luo’s rights and interests.
In so doing, the Judge was obviously seeking to ensure that the deceased’s transfer of the shares to Miss Luo in the context of his assurance should be financially meaningful. That is an objective which one can readily endorse. However, I am unable to accept that this can be achieved on the basis that a beneficial interest in 35% portion of the total advances to Glory Rise had somehow been assigned or otherwise transferred to Miss Luo.
The difficulty is, in the first place, that the evidence does not justify a finding of any intention on the part of the deceased to confer on Miss Luo a 35% beneficial interest in the advances to Glory Rise. Indeed, the evidence strongly militates against such an intention. Secondly, even if the intention hurdle can be overcome, the deceased simply did nothing to effect an assignment or otherwise to transfer to Miss Luo any interest in the debt.
When the deceased decided to make the Property the family home he plainly had the debt position of Glory Rise very much in mind and took steps to alter it. He caused the company to discharge the mortgage and to replace its debt to the bank with a debt to Inter-Trade which he controlled as 80% shareholder. He also took over its debt to Miss Hui when he took over her 2,000 shares. It is of especial significance that (as the Judge found: Judgment §45) when he did so, he caused Glory Rise to adjust its ledgers to show that the debt owed to Miss Hui was, as from on 9 March 2000, owing to himself. No such adjustment was ever made to the company’s ledgers so as to show a debt owing to Miss Luo. Glory Rise continued to acknowledge its debts solely to the deceased and to Inter-Trade.
The evidence therefore leaves no room for inferring that the deceased intended to effect an immediate assignment or transfer of a portion of Glory Rise’s debt to Miss Luo. On the contrary, it shows that the deceased intended to take over the whole of Glory Rise’s debt (subject only to Miss Hui’s indirect interest in the debt through her 20% shareholding in Inter-Trade). He was eliminating “outsiders” so that only he and Miss Luo would be the shareholders; and he would himself have full control over Glory Rise’s debt. He could then decide at leisure what, if anything, he wanted to do about that debt. But there is nothing whatsoever to suggest that he either intended or effected an immediate transfer of 35% of Glory Rise’s debt to Miss Luo.
E. Promissory estoppel
E.1 The doctrinal context
Although, for the reasons discussed, the facts as found are incapable of sustaining any acquisition by Miss Luo of a beneficial interest either in the Property or in Glory Rise’s debt, that does not mean that she must be denied all relief. Such facts may be capable of giving rise to a personal equity in her favour, binding upon the deceased and therefore upon his estate. Thus, in Maharaj v Chand  1 AC 898 at 907-908, a case involving an unmarried cohabiting couple, a statute which restricted dealings in land without the relevant consent had the effect of preventing any beneficial interest in land being established in favour of the woman who might otherwise have acquired such an interest on the basis of a common intention constructive trust. But as Sir Robin Cooke, delivering the judgment of the Privy Council, noted, Ibid at 908:
No matter whether or not the facts of a given case go far enough to establish an equitable interest in land, they may satisfy the requirements for a promissory estoppel.
His Lordship went on to hold that the woman was entitled to equitable relief by virtue of a promissory estoppel.
I pause to note that the terms “personal equity” and “mere equity” are sometimes used to refer to such equitable interests. There appears not to be any consensus as to their usage. Differences are sometimes drawn between the two concepts in respect of questions relating to priorities, assignability and so forth. But as such questions do not presently arise, any difference between these two concepts is not material and I will use these terms interchangeably simply to signify equitable rights of a personal character which do not give rise to any beneficial interest in property, including equitable rights arising in consequence of a promissory estoppel.
The doctrine of estoppel continues to represent a developing area of the law and aspects of the applicable principles are subject to debate. Thus, there is discussion as to the extent to which promissory estoppel and proprietary estoppel overlap, with a body of opinion inclining towards the view that there is no real difference between them. In the present context, proprietary estoppel is inapplicable because the deceased, not being the owner of the Property, was not in a position to confer on Miss Luo a proprietary interest in it. However, as Maharaj v Chand establishes, this does not prevent recourse to promissory estoppel. The doctrines therefore differ at least to that extent. However, it is at the same time clear that many of the constituent elements of the two forms of estoppel are shared and where that is so, authorities on proprietary estoppel provide guidance in cases involving promissory estoppel.
E.2 The requirements of promissory estoppel
A promissory estoppel may be said to arise where (i) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (ii) one party (“the promisor”), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (“the promisee”) that the promisor will not enforce or exercise some of those rights, duties or powers; and (iii) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise: Spencer Bower – Estoppel by Representation, 4th Ed (Lexis-Nexis UK) XIV.1.1, p 441; Snell’s Equity, 31st Ed (Thomson, Sweet & Maxwell) §10-08, p 261-262.
While it is necessary for the purposes of exposition to identify the separate elements of the doctrine, it should be borne in mind that when applying them to the facts, each element does not exist in its own watertight compartment to be kept separate from the others. Each element acquires its meaning and content in the context of the other elements. This was emphasised by Robert Walker LJ in Gillett v Holt  Ch 210 at 225 in relation to proprietary estoppel in the following terms:
.... the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments .... [The] quality of the relevant assurances may influence the issue of reliance, .... reliance and detriment are often intertwined, and .... whether there is a distinct need for a ‘mutual understanding’ may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.
Thus in the present case, the meaning of the words or conduct constituting the promise or assurance has to be understood in the light of the parties’ particular relationship and especially in the light of the legal rights or powers exercisable, and known to be exercisable, by the promisor. As the learned authors of Spencer Bower put it (at XIV.2.8, p 455), one should put in focus “not simply the actions of the promisor but the proper interpretation to be placed on those actions given the shared background and knowledge of the parties”.
E.3 The relationship existing between the deceased and Miss Luo
The deceased and Miss Luo were living together in the Property as man and wife, treating Mon Din as their daughter, and intending to get married in October 2000. In June 1999, at the time his promise was made, the deceased was the controlling shareholder of Glory Rise (having 80% of its shares) and had the power to cause Glory Rise to exercise its rights over the Property in a manner adverse to the interests of Miss Luo. If, for instance, they had decided to separate, he would have had the power to cause Glory Rise to evict her from the premises. He could also have caused the company to dispose of the Property without any of the proceeds going to Miss Luo. That is plainly a sufficient relationship for the purposes of promissory estoppel. The Privy Council took the same view in respect of the similar relationship between the couple in Maharaj v Chand  1 AC 898.
E.4 The sufficiency of the deceased’s promise or assurance
While the promise need not be express, the meaning of the promise conveyed by the promisor’s words or conduct must be clear and unequivocal. He must make it clear that he is promising not to enforce the relevant rights or powers: Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd  AC 741 at 755, 761, 771. This message must be conveyed with a clarity similar to that needed to vary a contract, Ibid at 758, 762. Whether there is sufficient clarity is to be assessed objectively by the court, Seechurn v Ace Insurance SA-NV  2 Lloyd’s Rep 390.
The court will seek to ascertain the meaning in substance of the promise. It is the substance of its meaning that must be clear and unequivocal. A promisor may make his intentions perfectly plain but, not being a lawyer, may express himself in terms which are legally imprecise or inaccurate. A promisee may likewise clearly understand the substance of what is being promised without any knowledge of the legal rights or powers within which the promise is framed.
Similar situations arise where cohabiting couples form a common intention regarding shared interests in property and a helpful approach to getting to the substance of their mutual intentions is suggested by Gleeson CJ in Green v Green (1989) 17 NSWLR 343. The man, who owned the property and had since died, had repeatedly told the woman with whom he had cohabited (in rather unusual circumstances) that she was to have “this house” and made other statements to similar effect. He was found clearly to have promised (and to have been reasonably understood to have promised) her an interest in the property but he had obviously not addressed the precise beneficial interest that the woman was intended to take. Gleeson CJ stated that the proper approach in such a case, Ibid at 358:
.... is to seek a result which will most closely give effect to the common intention of the parties bearing in mind, first, that they did not themselves specifically address the matter of the legal form which would be conducted to give effect to their intention, and secondly, that this is an area in which equity is at its most flexible.
The Court translated the clear intention that the woman should have a beneficial interest in the property into a finding that the couple intended that they should be beneficially entitled to the property as joint tenants, giving the woman the right of survivorship, Ibid. A similar approach is helpful when assessing the meaning of promises relied on in the promissory estoppel context.
The Judge’s findings as to the promise given by the deceased to Miss Luo are set out in Section B above. What, if anything, can be said to be its clear and unequivocal meaning? The deceased expressly promised her a 35% interest in the Property which was to be their family home as a form of security pending their intended marriage. This was plainly intended to have immediate effect since the idea of providing Miss Luo with some “security” must involve her acquiring some immediate tangible benefit while their marriage was pending (as Miss Luo waited for her divorce to come through). This is reinforced by the fact that the deceased accompanied that promise with an immediate transfer to Miss Luo of 3,500 of his shares in Glory Rise and simultaneously arranged for Miss Hui to execute in escrow a transfer of her 2,000 shares to him. While the deceased’s promise was expressed in legally imprecise terms – ignoring the legal form of Glory Rise’s ownership of the Property – the essential meaning of his promise was, in my view, unambiguous. He was committing himself there and then to providing her with security reflecting a 35% interest in the Property. Similarly, although Miss Luo did not appreciate that the transfer to her was of shares in a company rather than of a 35% share in the Property itself, she reasonably understood that the substance of the promise was that she was being given a beneficial 35% interest in the flat where they were residing and which was to be their family home, with a view to giving her some security pending their marriage.
Viewed objectively, the deceased, not being the legal or beneficial owner of the Property, was not in a position to confer on Miss Luo a proprietary interest in the property. He could confer no more than the beneficial ownership of the shares which he transferred to her. But he was in a position to fulfil the substance of his promise by giving her 35% of the value of the Property and by ensuring her undisturbed occupation of the flat. He was at all times Glory Rise’s controlling shareholder. And by March or April 2000, he had proceeded to take over effectively the whole of its debt (including its debt to Inter-Trade in which he was the 80% shareholder). He therefore had the power to ensure that Miss Luo could occupy the Property undisturbed by the company and, if the Property were sold, he would be in a position not only to discharge the Inter-Trade debt but also to pay Miss Luo the equivalent of 35% of the proceeds of sale. However, it is clear that the deceased was retaining 65% of the shares and therefore cannot be taken to have intended to sterilize the value of those shares by leaving Miss Luo in continued possession of the Property if commercial considerations demanded its sale or if the relationship terminated. But if the deceased had chosen to dispose of the Property, he would (subject to the discussion of reliance which follows) have to fulfil his promise by ensuring that Miss Luo received 35% of the then value of the Property or otherwise satisfy in some appropriate manner, the equity raised in her favour.
In my view, understood in the abovementioned context, there was a clear and unequivocal promise made by the deceased to Miss Luo sufficient to found a promissory estoppel. The substance of the promise, expressed in terms which take into account the legal forms employed, was that the deceased would, as controlling shareholder of Glory Rise, secure for Miss Luo a 35% interest in the value of the Property if and when the same should be realised by the company and that, unless and until the Property was disposed of and her 35% entitlement duly provided for, Miss Luo would have the security of being allowed to occupy it as her home without interference by the company. Put negatively, the deceased was promising to forgo exercising his legal powers (as controlling shareholder of Glory Rise) to cause the Property to be disposed of without Miss Luo receiving a 35% share of the proceeds or to cause her to be evicted pending disposal.
E.5 Reliance on the promise and unconscionability
As Robert Walker LJ pointed out in Jennings v Rice  1 P & CR 8, 100 at 112, it is where “the quality of the assurances which give rise to the claimant’s expectations and the extent of the claimant’s detrimental reliance on the assurances” in combination make it unconscionable for the promisor to go back on his promise that the doctrine applies. In the present case, the deceased’s assurance was explicit and was plainly intended by him to be relied on. It naturally gave rise to Miss Luo’s expectations of a 35% beneficial interest in the Property and security in its occupation pending any disposal. And, as noted above, the Judge found that in reliance upon the deceased’s promise, Miss Luo continued to reside with him de facto as man and wife, forwent the pursuit of employment opportunities of her own and paid the $40,000 mortgage instalment for August 1999. These are significant acts and omissions of detrimental reliance. In my view, the combined expectation and reliance factors in the present case plainly make it inequitable or unconscionable for the estate now to act inconsistently with the deceased’s promise. Accordingly, all the elements of promissory estoppel are established and a personal equity is raised in favour of Miss Luo. It becomes necessary to consider what relief should be granted to give effect to that equity.
F.1 Principles as to relief
In Stack v Dowden  2 AC 432 at 448, §37, Lord Walker of Gestingthorpe contrasted the consequences of a proprietary estoppel with the consequences of a common intention constructive trust:
Proprietary estoppel typically consists of asserting an equitable claim against the conscience of the ‘true’ owner. The claim is a ‘mere equity’. It is to be satisfied by the minimum award necessary to do justice (Crabb v Arun District Council  Ch 179, 198), which may sometimes lead to no more than a monetary award. A ‘common intention’ constructive trust, by contrast, is identifying the true beneficial owner or owners, and the size of their beneficial interests.
As previously noted, a promissory estoppel similarly gives rise to such a personal or “mere” equity. The disparaging-sounding epithet “mere” is used, as the passage from Lord Walker’s judgment shows, to indicate that no proprietary interest accrues to the claimant. It certainly does not mean that the relief which may be granted is insignificant.
In deciding upon the relief, the court determines the extent of the equity raised and the relief needed to satisfy it. As Scarman LJ stated it in Crabb v Arun District Council  1 Ch 179 at 199:
.... there can be no doubt that since Ramsden v Dyson (1865) LR 1 HL 129 the courts have acted upon the basis that they have to determine not only the extent of the equity, but also the conditions necessary to satisfy it, and they have done so in a great number and variety of cases.
The court aims to grant the relief required “to enable the claimant to have the benefit of the equitable right which he is held to have”, Ibid.
It is well-established that in fashioning such relief, the court has great flexibility and addresses the substance of the equity raised in determining its extent. It is not constrained, for instance, by the lack of legal precision in the way the promise or assumption founding the estoppel was expressed. Thus, in Plimmer v Wellington Corporation, (1884) 9 App Cas 699 at 713 a case which is properly regarded as involving a proprietary estoppel, Sir Arthur Hobhouse, giving the advice of the Privy Council, stated:
The question still remains as to the extent of interest which Plimmer acquired by his expenditure in 1856. Referring again to the passage quoted from Lord Kingsdown's judgment [in Ramsden v Dyson], there is good authority for saying what appears to their Lordships to be quite sound in principle, that the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated.
(See also Inwards v Baker  2 QB 29 at 37.)
As Lord Walker indicated, the court does not grant relief beyond the minimum necessary to do justice, although his Lordship had noted in an earlier decision that this “does not require the court to be constitutionally parsimonious” although “it does implicitly recognise that the court must also do justice to the defendant”: Jennings v Rice  1 P & CR 8, 100 at 113, per Walker LJ. See also Pascoe v Turner  1 WLR 431. Where the equity is raised by operation of the doctrine of promissory estoppel in relation to a clear-cut promise that can readily be given effect, “the court’s natural response is to fulfil the claimant’s expectations.” But this is subject to the remedy not being disproportionate to the detriment which its purpose is to avoid. If realising the claimant’s expectations in full would result in such a disproportion, the court will seek to satisfy the equity in a more limited way, while not abandoning its attempt to fulfil those expectations to an appropriate degree: Jennings v Rice  1 P & CR 8, 100 at 111 per Aldous LJ and at 114-116 per Walker LJ.
In formulating its decree, the court has a wide discretion to satisfy the equity raised in an effective way, applying the principles mentioned above. Practical considerations involving such matters as the administrative feasibility and cost of the measures ordered; their fiscal consequences; the need in some cases for a “clean break” between antagonistic parties (Pascoe v Turner  1 WLR 431 at 438-439; Gillett v Holt  Ch 210 at 237), and so forth, are properly taken into account.
While some differences have developed as between Australian and English jurisprudence in relation to the constituents of certain estoppels, with the Hong Kong courts presently inclining towards the English approach, there is no divergence among the jurisdictions regarding the court’s wide and flexible discretion to grant appropriate relief. In Waltons Stores (Interstate) Ltd v Maher (1987-1988) 164 CLR 387 at 419 Brennan J indicated some of the measures open to a court to give appropriate effect to an equity:
The element which both attracts the jurisdiction of a court of equity and shapes the remedy to be given is unconscionable conduct on the part of the person bound by the equity, and the remedy required to satisfy an equity varies according to the circumstances of the case. As Robert Goff J said in Amalgamated Property Co v Texas Bank  QB 84 at p 103: ‘Of all doctrines, equitable estoppel is surely one of the most flexible.’ Sometimes it is necessary to decree that a party’s expectation be specifically fulfilled by the party bound by the equity; sometimes it is necessary to grant an injunction to restrain the exercise of legal rights either absolutely or on condition; sometimes it is necessary to give an equitable lien on property for the expenditure which a party has made on it: see Snell’s Principles of Equity, 28th ed (1982), p 562. However, in moulding its decree, the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct.
An example of the court exercising its discretion in a manner relevant to the present case can be found in Campbell v Griffin  EWCA Civ 990. The English Court of Appeal there sought to satisfy an equity raised by a proprietary estoppel by imposing an equitable charge on the property in question and making a number of supporting ancillary orders. Robert Walker LJ (with whom the other members of the Court agreed) stated (at §36):
The court has a very wide discretion in satisfying an equity arising under the doctrine of proprietary estoppel. That discretion includes power to award a fixed sum charged on the property. I would declare that Mr Campbell is entitled to the sum of £35,000 charged on the property, but that he must give up possession of the property to enable it to be sold by Mrs Ascough’s executors, and that interest on the sum of £35,000 should not start to run until 56 days after Mr Campbell has given vacant possession in order to enable the house to be sold.
F.2 Relief in the present case
Kwan J ordered Glory Rise wound up and constituted the Official Receiver its provisional liquidator. The Court of Appeal left that order undisturbed and this Court should, in my view, do likewise. A winding-up on the just and equitable ground is justified in the present case since the substratum of Glory Rise, which was the intended vehicle for holding the Property as the matrimonial and family home of the deceased, Miss Luo and Mon Din, disappeared with the death of the deceased. Leading Counsel for both sides indicated that in the event that the appeal did not succeed, their respective clients would prefer to have the Property sold by the Liquidator with the proceeds dealt with in accordance with the orders of the Court. As the appeal must, in my opinion, be dismissed, I will accordingly approach the relief to be ordered on the assumption that the Property will be sold by the Liquidator as soon as reasonably practicable.
The relief required to satisfy the equity raised in favour of Miss Luo is relief aimed at satisfying in substance the expectations engendered by the deceased’s promise and binding on the conscience of the estate, namely, that she should receive 35% of the value of the property on disposal and that she should have undisturbed occupation pending disposal.
To give effect to the first aspect of her equity, I would declare that she is entitled, on disposal of the Property, to receive a sum equivalent to 35% of the net proceeds of sale (that is, the proceeds after deduction of the reasonable expenses of the sale) out of the sums to be distributed by the Liquidator to the estate both as a creditor and a contributory of the company in liquidation. Inter-Trade is unaffected by Miss Luo’s equity and should therefore receive its liquidation dividend in full.
It follows from the second aspect of her equity that the estate’s claims against Miss Luo for vacant possession and payment of mesne profits were correctly rejected since these are measures inconsistent with the equity raised. I would therefore affirm the Order made by Kwan J (upheld in the Court of Appeal) dismissing Glory Rise’s claim. However, Miss Luo should be required (as a condition of granting her relief) to give up possession of the Property upon receiving reasonable notice to do so from the Liquidator so as to enable him to sell the Property with vacant possession. Her entitlement to part of the eventual proceeds should be secured by creating an equitable charge on those proceeds in the hands of the Liquidator.
Accordingly, upon completion of the sale, the share of the net sale proceeds to which the estate is entitled both as creditor and contributory should stand charged in the hands of the Liquidator with payment of a sum representing 35% of the net sale proceeds to Miss Luo in satisfaction of the Judgment of this Court. To cater for any possible delays in receipt of the charge amount, there should be an Order that interest should begin to run on the charge amount commencing 30 days from completion of the sale.
Upon receipt of the sum representing her 35% interest, Miss Luo should hold the 3,500 shares in Glory Rise together with any entitlement as contributory to any surplus in the liquidation in trust for the estate and should, upon request, take all necessary steps to transfer such shares and any benefits attaching thereto to the estate.
I would accordingly dismiss the appeal and make the following Orders, namely, that:
Subject to the Orders and Directions set out below, the Orders of Kwan J dated 17 November 2004 in HCA 285/2003 and HCCW 568/2002; and the Orders of the Court of Appeal dated 27 December 2006, be affirmed;
A Declaration be granted that, subject to paragraph (c) which follows, the Respondent is entitled, upon sale of the Property by the Liquidator, to receive a sum equivalent to 35% of the net proceeds of such sale, that is, the sale proceeds after deduction of the reasonable expenses of the sale, to be paid out of the sums to be distributed by the Liquidator to the estate both as a creditor and a contributory of the company in liquidation;
As a condition of the Respondent’s entitlement referred to in the preceding paragraph, that the Respondent do give up possession of the Property upon receiving from the Liquidator reasonable notice (of not less than one month) in writing to do so;
Upon completion of the sale, the share of the net proceeds to which the estate is entitled both as creditor and contributory of the company in liquidation do stand charged in the hands of the Liquidator with payment of a sum representing 35% of the net sale proceeds to the Respondent in satisfaction of the Judgment of this Court;
Interest do begin to run on the charge amount at the judgment rate commencing 30 days from completion of the sale;
Upon receipt of the charge amount in full, the Respondent do hold her 3,500 shares in Glory Rise together with any entitlement as contributory to any surplus in the liquidation in trust for the 1st Appellant (the Estate) and, upon receipt of a request in writing issued on behalf of the Estate, do forthwith take all necessary steps to transfer such shares and any benefit attached thereto to the Estate;
There be an order nisi that the costs of this appeal be to the Respondent and a direction that any representations by the Appellants on the question of costs should be lodged in writing within 14 days from the date of this Judgment, with liberty to the Respondent to lodge written submissions in reply within 14 days thereafter, and that in the absence of such submissions from the Appellants within the aforesaid period of 14 days, that this costs order stand as an order absolute;
There be liberty to the parties to apply to a Single Permanent Judge for directions regarding the implementation of this Order.
Justice Nazareth NPJ
I agree with the Judgment of Mr Justice Ribeiro PJ.
Sir Gerard Brennan NPJ
I agree with the Judgment of Mr Justice Ribeiro PJ.
Chief Justice Li
The Court unanimously makes the orders set out in the concluding paragraph of Mr Justice Ribeiro PJ’s Judgment.
 In the District Court, subsequently transferred to the High Court as HCA 285/2003.
 Appearing with Mr Jason Wong for the appellants.
 Appearing with Mr Eugene Fung for Miss Luo.
 In Re Schuppan (a bankrupt) (No 2), per Judge Maddocks sitting as a High Court Judge, at 268; in Philip Lowe (Chinese Restaurant) Ltd v Sau Man Lee, per May LJ at p 1; and in Lalani v Crump Holdings Ltd, per Sir Andrew Park at §§28 and 45.
 See, eg, Snell’s Equity, 31st Ed (Thomson, Sweet & Maxwell), §2-01; Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies, 4th Ed (Lexis Nexis Butterworths), §§4-135 to 4-175; and P Parkinson & D Wright “Equity and Property” in The Principles of Equity, 2nd Ed, P Parkinson (Ed), §316.
 For example: Crabb v Arun District Council  1 Ch 179 at 193; Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd  QB 84 at 122; Rose v Stavrou  L&TR 133 at 141; Gillies v Keogh  2 NZLR 327 at 331.
 By her Order dated 17 November 2004 in HCCW 568/2002.
 Dated 17 November 2004 in HCA 285/2003.
Russell Coleman SC and Jason Wong (instructed by Messrs Ko & Co) for the appellants.
Anderson Chow SC and Eugene Fung (instructed by Messrs DLA Piper Hong Kong) for the respondent.
all rights reserved