Compelling evidence of post-acquisition variation of common intention

In Chan Ling Ling v Chan Ching Kit ([2017] HKEC 1474) property was held by four siblings as tenants in common. The common intention at the time of acquisition was they would have equal shares.

The defendant argued that there was a post-acquisition variation of this common intention; the varied common intention was that the parties’ respective beneficial interests would reflect their financial contributions.

The defendant argued that the agreement to vary the original common intention should be inferred from an alleged failure of the other siblings to contribute to certain costs associated with the property.

He sought to show that he had contributed 80% of the purchase price / mortgage repayments and so had a corresponding equitable interest.

Deputy Judge Kent Yee summarised the relevant legal principles: there had to be compelling evidence of a post-acquisition variation of the common intention. The court should be slow to infer such an agreement from conduct alone ([38]).

Even if one accepted the defendant’s version of the facts, they did not provide the necessary compelling evidence. The parties remained equal beneficial owners.

Michael Lower

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