Archive for the ‘Burden of proof’ Category

Equity follows the law: the burden of proof

November 12, 2016

In Lam Fung Ching Annie v Tse Kwok Wing Jacky ([2016] HKEC 2387, CA) the Court of Appeal rejected an application to appeal to it. L, T and T’s father held property as joint tenants. L severed the joint tenancy by notice and successfully applied for an order for sale. T sought to appeal against this finding and order. It appears to have been accepted that there was an equitable tenancy in common since it was accepted that T held her share on trust for her father. At first instance, the judge rejected T’s argument that her father was the sole beneficial owner; L was able to show that she was entitled to a one-third beneficial interest. There was some discussion as to the burden of proof. The Court of Appeal (Kwan JA giving the judgment) took the view that, following the severance, L had a one third share as a legal tenant in common. It was for T to show why the equitable position should differ from this and she had failed to do so ([22] and [23]).

Michael Lower

The burden of proving reliance in proprietary estoppel

May 9, 2011

The plaintiff in a proprietary estoppel claim has to show reliance on the belief / promise / assurance. Where there has been conduct from which reliance can be inferred the burden of showing that there has been no reliance shifts to the defendant.

In Wayling v Jones ((1995) 69 P & C.R. 170 CA (Eng)) the plaintiff had lived with a Mr Jones for many years in a homosexual relationship. He also worked for Mr Jones. In return he received just pocket-money and living expenses. Mr. Jones made repeated assurances that when Mr Jones (much older then Mr. Wayling) died, Mr. Wayling would inherit his business. Mr. Jones died but without having altered his will to leave the business to Mr. Wayling. At first instance, Mr. Wayling’s proprietary estoppel claim failed. The problem area was that of reliance on the promise. The Court of Appeal was satisfied that he had relied on the promise. It held that once there was evidence of conduct from which reliance could be inferred (working without pay for many years) then the defendant had to prove that there had been no reliance.