Ng v. Ng

2012 BCCA 195 Ng v. Ng COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ng v. Ng, 2012 BCCA 195 Date: 20120507 Docket: CA038904 Between: Philip Kwok Piu Ng and Stephanie Oi Che Ng Respondents (Plaintiffs) And Andrew Kwok Tai Ng, Angela Kay Chee Ng and Young Chi Woo Appellants (Defendants) And Olympia Jue, also known as Olympia Woon Chi Ng Respondent (Defendant by Counterclaim) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Levine The Honourable Madam Justice Neilson On appeal from: Supreme Court of British Columbia, February 17 and June 17, 2011 (Ng. v. Ng, 2011 BCSC 192 and 2011 BCSC 791, Vancouver Docket S064827) Counsel for the Appellants, Angela Ng and Young Woo: D.J. Taylor S.K. Sheena-Nakai Counsel for the Respondents, Philip and Stephanie Ng: G. Rafter Place and Date of Hearing: Vancouver, British Columbia March 30, 2012 Place and Date of Judgment: Vancouver, British Columbia May 7, 2012 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice Levine The Honourable Madam Justice Neilson Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The parties to this litigation are, with one exception, the children of Po Sum Ng and Pui Kui To and were raised in Hong Kong. The one exception is the defendant Young Chi Woo, who is the husband of the defendant Angela Kay Chee Ng. Differences among the siblings arose after their father's death in 2002. This litigation is but one part of a much larger dispute in Hong Kong over his estate, but even this trial, which involved eight properties in British Columbia, occupied 16 days in the Supreme Court and was the subject of lengthy reasons for judgment (indexed as 2011 BCSC 192), supplemented by further reasons (indexed as 2011 BCSC 791). [2] Given the length and the detailed nature of the findings of the trial judge, Mr. Justice Cullen (as he then was), I do not intend to recount or summarize his reasons here. I will assume that the reader has read them as supplemented. I will use the same names for the parties as did the trial judge, and like him, I intend no disrespect in referring to the siblings by their first names. Overview of Claims [3] The plaintiffs, Philip and Stephanie, live in Hong Kong. As the trial judge noted at para. 5 of his reasons, they allege that between about 1988 and 1995, they sent money from Hong Kong to their sister Angela in Vancouver to enable her to "purchase, finance, maintain and manage various rental properties and one recreational property for them." Angela is a chartered accountant. According to the statement of claim, she did not charge the plaintiffs for her services, but they often gave expensive gifts, or extended loans and other benefits, to her and her husband. Ultimately, there were six residential properties in Vancouver of which Philip, Stephanie, or Andrew were the registered owners, a seventh (the "Nanton" property) which was purchased by the father Mr. Ng and registered in the names of Philip and Stephanie, and a recreational property ("Woolridge Island") in which each plaintiff owned a 10% interest. [4] From time to time, when Angela requested additional funds for the payment of mortgages or the maintenance of the rental properties, Philip and Stephanie say they remitted the required funds. However, their requests for "meaningful or significant accounting" with respect to the properties were not heeded. The statement of claim alleges that in early 2006, it came to the plaintiffs' attention that Angela had used powers of attorney granted by the plaintiffs, to place mortgages against five of the properties in favour of herself, Dr. Woo, and/or Andrew. Each such mortgage was in the principal amount of $800,000 and payable on demand. The plaintiffs denied having authorized Angela to execute the mortgages and pleaded they had no knowledge of them. [5] The plaintiffs also alleged that Angela had caused one of the properties (West 23rd Avenue) to be sold and that she had not accounted to them for the proceeds. As well, it was said that, acting on the plaintiffs' instructions in May 2004, she had caused another property (West 20th Avenue) to be sold and had received net proceeds of some $166,400, but had not accounted for that amount to Stephanie, the registered owner. The plaintiffs stated that although they had revoked Angela's powers of attorney, she continued to hold herself out as their attorney and had refused to discharge the mortgages. Thus the plaintiffs' prayer for relief sought: (a) a declaration that the Mortgages are of no force and effect; (b) a direction to the Registrar of Land Titles to discharge the Mortgages; (c) damages against Kay [Angela] for breach of trust; (d) damages against Kay for unjust enrichment; (e) damages against Dr. Woo, Kay and Andrew for conversion; (f) an interim interlocutory injunction restraining Kay, Dr. Woo and/or Andrew from dealing with any of the Properties or any of the assets of the Plaintiffs; (g) order for an accounting as between the Plaintiffs and the Defendants; (h) costs; and (i) such further and other relief as this honourable court may seem just. [6] For their part, Angela and Dr. Woo (the "Woo defendants") pleaded in their statement of defence that Angela had "voluntarily agreed to assist in the management of a number of properties owned in whole or in part by the Plaintiffs" (my emphasis) and that she had not requested and never received any remuneration therefor. It was said she had "professionally, properly, and most diligently" performed all accounting work related to the properties and "consistently communicated with and took all steps necessary to report the financial status and affairs of the Properties to the Plaintiffs." [7] The Woo defendants further pleaded that shortfalls were often experienced between the rental incomes from the properties and the costs of maintaining them, which shortfalls were "made up from funds derived from [Dr. Woo's] income." They say the plaintiffs agreed to reimburse Dr. Woo and that the mortgages placed on four of the properties were intended to secure the accumulated shortfalls, with the express or implied consent of the plaintiffs. (The Nanton property was, they pleaded, subject to a trust settled by Mr. Ng, for the benefit of the parents and their descendants, and the mother had instructed Angela to register a mortgage to protect this property from being sold by the plaintiffs without notice to the other beneficiaries of the trust.) Angela and Dr. Woo denied any breach of fiduciary duty and alleged that the plaintiffs were attempting to enrich themselves unjustly at Dr. Woo's expense. [8] In a counterclaim, the Woo defendants alleged that they had incurred various costs and expenses on behalf of the plaintiffs in relation to the properties and personal loans, totalling $1,063,063.99 in the case of Philip, and $711,692.18 in the case of Stephanie. They alleged that the plaintiffs had been unjustly enriched as a result of the Woo defendants' payment of various acquisition and maintenance costs on their behalf, and that they should be entitled to trace the payments they had made into the properties and to claim equitable title or interests therein on a constructive trust. They sought judgment for expenses allegedly paid on behalf of the plaintiffs; general damages for "breach of fiduciary duty, breach of contract, unjust enrichment, and breach of trust"; a declaration that they were entitled to interests in the remaining (i.e., unsold) properties to the extent of the payments made by them on the plaintiffs' behalf; vesting orders to the extent of the constructive trusts alleged; an accounting from Philip, Stephanie and/or Olympia "of all rental income, profit, interest, or other income of any source related to the Rental Properties from April 1, 2006 forward"; and an order restraining the plaintiffs from dealing with the properties without the prior approval of the Court. The Trial Judgment [9] Cullen J. summarized the broad allegations before the Court as follows: The plaintiffs' claim is based on an assertion that each of them sent various sums of money from Hong Kong to Angela in Vancouver to enable Angela, using their powers of attorney and money, to purchase, finance, maintain and manage various rental properties and one recreational property for them. There are seven properties at issue, two of which have been sold. An eighth property is claimed by the plaintiffs, albeit on a somewhat different footing, as a gift purchased for them by their father, Mr. Ng. They allege that Angela has wrongfully executed a mortgage against that property and an assignment of rents in favour of Dr. Woo and Andrew. The plaintiffs similarly claim that Angela misused the powers of attorney given to her and her position of trust to mortgage or sell the other seven properties. All the properties were acquired between 1988 and 1995. The plaintiffs claim that by her actions, Angela has acted in breach of trust and has unjustly enriched herself, Dr. Woo and Andrew as a result of which they are entitled to damages for breach of trust, unjust enrichment and conversion as well as to various ancillary orders. The defendants, on the other hand, resist the plaintiffs' claim by asserting that neither plaintiff provided any funds to Angela to purchase, finance, maintain or manage any of the properties. The defendants maintain that all the funds for the purchase of the seven properties at issue came from Angela and Dr. Woo (and in the case of the recreational property also from Eleanor and her husband, Stan Cheung ("Stan"). The defendants further submit that the plaintiffs were registered as owners of the respective rental properties to enable Angela and Dr. Woo to defer income and tax liability during Dr. Woo's peak earning years and to enable the plaintiffs to share in the long-term fruits of the real estate market in Vancouver by in effect, agreeing to lend their names to the purchases, rentals and eventual sales of the various rental properties. The defendants assert that as a result of the agreement, they allege there would be in due course an accounting to Dr. Woo and Angela for their investment, interest on their investment and a reasonable profit. The defendants counter-claim against the plaintiffs and the defendant by counter-claim, Olympia, for unjust enrichment. They seek a declaration of a constructive trust in the respective properties as well as various ancillary orders to account for their claimed interests and investments in the properties. [At paras. 5-8.] [10] Then followed the trial judge's detailed findings and analysis of the flow of funds amongst the parties as could best be gleaned despite the "loss of records and the erosion of memories." (Para. 9.) Beginning at para. 318 of his reasons, he rejected Angela's evidence "on a number of critical points" and rejected the "underlying premise" of the Woo defendants' case that the plaintiffs had not sent money to Angela "in furtherance of the property acquisition plan." He explained in detail which parts of Angela's evidence he did and did not accept at paras. 326-349, which need not be repeated here. [11] With respect to the evidence of Stephanie and Philip, Cullen J. accepted "overall" that they had had "access to funds of their own and used those funds to make significant contributions towards the acquisition and maintenance of the various properties." He continued: So far as Stephanie is concerned, for the reasons I have already set out, I accept her evidence over that of Angela and Eleanor that, in the main, the wire transfer documents represent some funds that Stephanie sent to Angela in furtherance of the plan that she and Philip would buy investment properties in Vancouver using Angela as a power of attorney. I accept that both Philip and Stephanie earned sufficient income through their respective employment that, when combined with their free accommodation, allowed them to accumulate capital for use in acquiring the investment properties in Vancouver. As to what sums were advanced by Stephanie and Philip for use in the property purchase plan, and what, if any, sums were loaned to them by Angela as part of the overall financial relationship among them, the issue is somewhat clouded by incomplete or non-existent records and issues of reliability and credibility. [At paras. 352-3.] The trial judge did not accept all of Stephanie's evidence, some of which was inconsistent and uncorroborated except by her own notes. He observed: ... Again, given the difficulties that have been identified with Stephanie's recollections, and given the contradictions in her evidence, I am not satisfied that the burden of proof is met without some objective corroboration of the asserted transactions. I thus conclude that in total, between 1988 and 2005, Stephanie advanced the sum of $527,232.48 towards the property purchase plan, but not the $862,616.48 that she claims. [At paras. 359-60.] [12] Cullen J. then set out his primary findings with respect to the parties' respective claims and counterclaims: Insofar as Philip is concerned, a determination of what he expended on the property purchase plan is more problematic, given the scarcity of records and the somewhat speculative nature of what he claims to have sent and received back from Angela. While I do not accept Angela's evidence that Philip advanced no funds in furtherance of the property purchase plan, I am simply unable, on the evidence before me, to determine what amounts he advanced and to what extent the funds he did advance were used by Angela in the property purchases. At the same time, because of my conclusion that Angela's evidence lacks credibility and reliability and cannot be relied on to provide a proper foundation for any sort of accounting, I am unable to conclude on the balance of probabilities that the defendants have made out their counterclaim against Philip. In the result then, I conclude that both Philip and Stephanie made substantial ongoing contributions to the purchase and maintenance of the various investment properties, that Angela's evidence to the contrary cannot be relied on, that the quantum of Philip's contributions cannot be determined and that Stephanie's proven total contribution is $527,232.48. I further conclude that as of 2007, the balance owing from the Woo defendants to Stephanie is $138,713.60 based on the plaintiffs' analysis of the parties' respective contributions, income and expenses after discounting Stephanie's contribution in the way that I have detailed. So far as Philip is concerned, I am unable to conclude what, if anything, he is owed by Angela, or what, if anything, he owes Angela. This is a circumstance in which the burden of proof determines the outcome, as the onus is on Philip as plaintiff, to show that the defendants owed him funds resulting from the transactions at issue, and the onus is on the defendants as plaintiffs by counterclaim to prove that Philip owes them funds arising out of the various transactions including the asserted personal expenses and loans. In the circumstances, I find that neither Philip nor the Woo defendants have discharged their respective burden of proof entitling them to damages, and I dismiss their respective claims against one another in that regard. Insofar as Stephanie is concerned, I award her damages in the amount of $138,713.66 together with pre-judgment interest. [At paras. 361-64; emphasis added.] [13] The trial judge next turned to the Nanton property, finding that the declaration of trust in evidence with respect to that property was void for uncertainty, with respect to both objects and subject matter. (See paras. 372-3.) Not being satisfied that the presumption of resulting trust had been rebutted, the trial judge declared that the plaintiffs hold this property in trust for their father's estate. [14] At the end of his reasons, Cullen J. made the following orders: (a) a declaration that the mortgages are of no force and effect; (b) a direction to the Registrar of Land Titles to discharge the mortgages and the Certificates of Pending Litigation; (c) the plaintiff Stephanie is entitled to an award of damages against the Woo defendants in the amount of $138,713.60 together with interest in accordance with the Court Order Interest Act on that amount.; (d) the plaintiff Philip Kwok Piu Ng's claim of damages against the Woo defendants is dismissed; (e) the counter-claim of the defendants against the plaintiffs and as against Olympia is dismissed; (f) there will be a declaration that the Nanton Avenue Property is held in trust by the plaintiffs for the estate of the father, Po Sum Ng; (g) the remaining relief sought by the defendants, plaintiffs by counter-claim, is dismissed. [At para. 380.] Supplemental Reasons [15] Four months later, the trial judge issued supplemental reasons in response to the defendants' request that he amend his original reasons to correct what they asserted were errors in the calculation of damages in favour of Stephanie and the dismissal of the defendants' claim against Philip. The alleged errors related to the Court's use of Exhibit 26, which had been put into evidence by the plaintiffs at trial and contained three schedules purporting to summarize "the agreed upon revenues and expenses contained in a Notice to Admit (dated November 5, 2009) entered into evidence at trial on May 3, 2010." (Para. 6.) [16] After describing the parties' respective positions, Cullen J. concluded that it would not be appropriate to vary his award. He noted that the fundamental difficulty at trial had been in "finding a foundation for a factual determination respecting the financial transactions between the plaintiffs and the defendants, particularly Angela." The parties' claims, he observed, were "infused with uncertainty". Even though he was satisfied Philip had made "significant and substantial" contributions to the acquisition of the properties, he was not able to determine "whether his contributions were such as to establish that he was a creditor of Angela" - just as he was unable to conclude that he was a debtor of Angela as she alleged in her counterclaim. (Para. 20.) A similar situation existed with respect to Stephanie. The trial judge continued: It is important to recognize that with respect to both Philip's and Stephanie's claims, my findings did not favour the defendants, whose position was that neither Stephanie nor Philip had made any contributions towards the acquisition of the properties at issue. Given that context, I am not satisfied that a finding that Philip did not prove the quantum of his contributions towards the property purchases, or that Stephanie did not prove the full contribution which she claimed to have made, is the equivalent of a finding in favour of the defendants' counterclaim. Although the defendants asserted that neither Stephanie nor Philip made any contributions, which I found not to be the case, they adduced no satisfactory evidence in support of their counterclaims to establish what contributions they made to acquire the properties at issue upon which I could base a finding that Stephanie and/or Philip were indebted to them. In the case at bar, I have essentially found the defendants to be the "wrong doers" in that they denied, and did not account for the contributions made by the plaintiffs to the property acquisition. It is in that context that I dismissed Philip's claim against the defendants and the defendants' counterclaim against Philip and awarded Stephanie judgment in the amount of $138,713.66. [At paras. 22-3; underlining added.] [17] He rejected the proposition that he should have based his award of damages on a mathematical calculation of the revenues for the properties referred to in the Notice to Admit, stating that he was not satisfied the Notice told the "entire story of the parties' financial dealings or that it would do justice to the parties to confine the award to a mathematical calculation based solely on its content." (Para. 26.) In his words: I found the fundamental premise of the Woo defendants' counterclaim, that they put up all the funds for the property acquisition, to be false. I also found that Angela fabricated evidence in support of that false premise. In those circumstances I am not satisfied that the other evidence adduced by the defendants even in the form of a Notice to Admit is sufficiently reliable to overcome the deficiencies woven into the defendants' counterclaim and I would not give effect to it as against either of the plaintiffs. [At para. 35; emphasis added.] [18] Finally, the trial judge awarded the defendants 20% of their costs to reflect their success on the Nanton property issue, but awarded the plaintiffs 40% of their costs as special costs and the remaining 40% at scale B against the defendants. On Appeal [19] The grounds of appeal advanced by the appellants Angela, Dr. Woo, and Andrew, can be divided into two general groups. The first deals with the ownership of the properties which Philip and Stephanie retained after trial, i.e., the remaining residential properties other than the Nanton property and their 10% interests in Woolridge Island. The errors alleged on the part of the trial judge on this general subject are that: The Trial Judge made a palpable and overriding error in finding, or alternatively drawing an unsupportable inference, that Philip made "significant contributions", in an unknown amount, to Angela with respect to the subject properties and that Philip had a recognizable [sic] beneficial ownership interest in the subject properties despite the absence of proof of quantifiable contributions toward acquisition. The Trial Judge erred in not determining how much money Stephanie contributed for each specific property, in order to ground a recognizable [sic] beneficial ownership interest. The Trial Judge made a palpable and overriding error in making adverse findings against Angela regarding credibility based on articulated grounds that did not support the conclusions, or alternatively the inferences drawn. The Trial Judge erred in finding that Angela had not discharged her burden of proving that the source of funds used for the acquisition, financing, management and maintenance of the subject properties was from her and her husband and was not from Philip or Stephanie. The Trial Judge erred in failing to give effect to an evidentiary presumption in favour of Angela, which presumption was not rebutted. [20] The second group of alleged errors relates to the calculation of damages and the Court's treatment of the Notice to Admit and Exhibit 26. I will return to those grounds in due course. Factual Findings [21] I begin with the appellants' challenges to the trial judge's findings and inferences of fact - that much of Angela's evidence was not believable; that she had not discharged the burden of proving that she and her husband's own funds were used to acquire, finance, manage and maintain the subject properties; and that Philip (and Stephanie) had made "substantial ongoing contributions to the purchase and maintenance of the various investment properties", although the trial judge was not able to quantify Philip's contribution or to determine how much money Stephanie contributed to each specific property. With respect, I cannot see how these grounds of appeal can succeed in this case, given the trial judge's careful assessment of credibility and his lengthy and detailed findings of fact. The appellants acknowledge that in order to succeed in overturning these findings, they must show that the trial judge made palpable and overriding errors or that his findings were not supported by the evidence. They have not done so. [22] The evidence in this case was obviously deficient, as the trial judge acknowledged many times. Nevertheless, he was required to do the best he could. He observed that the probative value of the many documents produced at trial was dependent on the credibility and reliability of the parties' testimony about such documents (paras. 322-3) and he gave detailed reasons for rejecting much of Angela's evidence and some of Stephanie's evidence. The judgment is replete with references to the inconsistencies in the evidence of virtually every party. In the final analysis, the Court preferred the evidence of the plaintiffs. It is simply not open to us to retry the case - particularly in this instance, where the documentary evidence is so deficient and the case is so dependent on credibility. I would reject the grounds of appeal that in general terms challenge the Court's factual findings and inferences. Presumptions [23] The appellants advance a more significant argument based on the unchallenged fact that the funds which Angela used to pay the down payments, mortgage instalments and other acquisition costs relating to the rental properties were paid from her bank account. Even accepting the trial judge's findings, the appellants submit that there is an "evidentiary presumption" that funds in an account belong (beneficially) to the person in whose name the account stands. As stated in the appellants' factum: A rebuttable presumption must arise that money distributed from a bank account has come from the owner of the bank account. The burden to prove ownership of those monies by another rests with that other party asserting ownership in them. With respect to bank accounts, unambiguous language in the banking documents in determining intention creates a rebuttable presumption in favour of the written word. [24] In support, the appellants cite Pecore v. Pecore 2007 SCC 17, which of course confirmed that "the long-standing common law presumptions continue to have a role to play in disputes over gratuitous transfers." (Para. 23.) Neither 'side' in this case alleges a gratuitous transfer. However, at para. 104 of Pecore, Abella J. said this regarding a survivorship interest which arose on the wording of bank account documents: ... I have difficulty seeing any continuing justification for ignoring the presumptive, albeit rebuttable, relevance of unambiguous language in banking documents in determining intention. I think it would come as a surprise to most Canadian parents to learn that in the creation of joint bank accounts with rights of survivorship, there is little evidentiary value in the clear language of what they have voluntarily signed. Rothstein J. for the majority in Pecore observed: While I agree that bank documents do not necessarily set out equitable interests in joint accounts, banking documents in modern times may be detailed enough that they provide strong evidence of the intentions of the transferor regarding how the balance in the account should be treated on his or her death: see B. Ziff, Principles of Property Law (4th ed. 2006), at p. 332. Therefore, if there is anything in the bank documents that specifically suggests the transferor's intent regarding the beneficial interest in the account, I do not think that courts should be barred from considering it. Indeed, the clearer the evidence in the bank documents in question, the more weight that evidence should carry. [Para. 61.] [25] The case at bar does not involve ambiguous bank documents, nor a conflict between banking documents and other documents. As such, I do not see how the Court's comments in Pecore are of real assistance. I accept, however, that as a matter of common sense, the person in whose name money is held by a bank will normally be taken to be the owner of such funds in the absence of a presumption of law or evidence to the contrary. [26] There are several reasons, however, why this "common sense inference" cannot prevail in this case ‒ even assuming that it was advanced at trial. First, the Woo defendants' pleading purported to seek property interests as a result of their payment of costs and expenses in respect of "properties owned in whole or in part by the plaintiffs." (See para. 6 above.) Thus the trial focussed not on ownership but on the question of what funds had been expended by whom with a view to the assessment of damages for unjust enrichment. The onus was on the plaintiffs to prove that they had remitted funds to Angela for which she had not accounted. In respect of the Woo defendants' counterclaim, the onus was on them to prove that they had expended their own funds to make up various shortfalls, and then legitimately registered the mortgages to secure the amounts owed to them. The remedy of constructive trust was sought for the alleged unjust enrichment and the Woo defendants did not plead any express or resulting trust. Their statement of defence implied that they had made up the "shortfalls" on behalf of the plaintiffs ‒ presumably as owners of the properties. Even the Woo defendants' submission (described by Cullen J. at para. 7 of his reasons) that the plaintiffs were only intended to "share in the long-term fruits of the real estate market in Vancouver by in effect, agreeing to lend their names to the purchases, rentals and eventual sales" was vague as to the arrangement being alleged in terms of ownership of the properties. [27] In the event, as I understand it, counsel argued the case, and the trial judge approached it, as one of unjust enrichment. As has been seen, the onus of proof was an important factor in the Court's assessment of the final outcome (see especially paras. 361-364 quoted earlier in these reasons.) Cullen J. found as a fact that Philip and Stephanie had had "access to funds of their own and used those funds to make significant contributions towards the acquisition and maintenance of the various properties." (At 350.) He accepted Stephanie's evidence that: ... in the main, the wire transfer documents represent some funds that Stephanie sent to Angela in furtherance of the plan that she and Philip would buy investment properties in Vancouver using Angela as a power of attorney. I accept that both Philip and Stephanie earned sufficient income through their respective employment that, when combined with their free accommodation, allowed them to accumulate capital for use in acquiring the investment properties in Vancouver. [At para. 352.] The Court must be taken to have rejected the appellants' assertion that "all the funds for the purchase of the seven properties at issue came from Angela and Dr. Woo" (para. 7) and by inference, that there was an agreement of some kind between the plaintiffs and defendants that the plaintiffs became the registered owners of the properties only to enable Angela and Dr. Woo to defer income tax liability during Dr. Woo's peak earning years. (Para. 7.) Consistent with this, Cullen J. declined to grant the Woo defendants any interest, beneficial, constructive or otherwise, in the properties, discharged the mortgages, and dismissed the Woo defendants' claims to damages for unjust enrichment. The fact the Court was unable to quantify exactly Philip's contributions or to allocate Stephanie's contributions to specific properties does not in my view assist Angela and Dr. Woo in these circumstances. [28] Even if I were wrong on this point, there is as the plaintiffs argue, a statutory presumption that the Woo defendants would have had to overcome in respect of the beneficial ownership of the properties. This presumption arises from s. 23(2) of the Land Title Act, R.S.B.C. 1996, c. 250, which provides: 23 (2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to [various exceptions] (The various exceptions listed in subparas. (a)-(j) of s. 23(2) are not applicable to this case.) [29] The law is clear that the presumption can also be displaced by the operation of a presumption of advancement (which applies only between parents and children or married spouses) or where an agreement exists under which one party would be unjustly enriched if the titleholder were held to be the beneficial owner: see Skender v. Skender 2006 BCCA 162; Dhaliwal v. Olleck 2012 BCCA 86; Kirk v. Dawe 2011 BCCA 406. Again, in terms of the parties' "agreement" or understanding, the question of who was unjustly enriched and who was not, was at the heart of this case. The trial judge found that on the balance of probabilities, the Woo defendants had not made out their counterclaim against Philip (para. 361), that Philip had not discharged the burden on him to "show that the defendants owed him funds resulting from the transactions at issue", and that Stephanie was entitled to damages from the defendants in the amount of $138,713.60. As Cullen J. observed in his supplemental reasons, the fact the plaintiffs could not show exactly how much they contributed is "not a 'wrong' that gives rise to an assumption of damages in the defendants' favour." (Para. 32.) Nor does it, whether alone or in combination with the 'evidentiary presumption' relied on by the Woo defendants, give rise to an equitable interest in land. Given the trial judge's findings, it is simply not open to the Woo defendants to contend that Angela was the "owner" of the funds that were used to acquire the properties. That contention was clearly resolved by the trial judge in favour of the plaintiffs. Further, given the presumption created by s. 23(2), it is not open to the Woo defendants to contend that they are the owners of the remaining properties. [30] In my view, the trial judge did not err in leaving Philip and Stephanie in possession of and entitled to beneficial ownership interests in the properties or the proceeds of sale therefrom. The Calculation of Damages [31] The second group of errors in judgment advanced on behalf of the appellants was as follows: The Trial Judge made a palpable and overriding error in accepting inadmissible, unproven, disputed hearsay evidence in Exhibit 26, and refusing to give full weight to the formal admissions made by the Plaintiffs in response to the Defendant's Notice to Admit, which admissions were never sought to be withdrawn and in circumstances where the admissions were not refuted by other specific evidence. The Trial Judge made a palpable and overriding error in his acceptance of calculations proffered by the Plaintiffs in Exhibit 26 which included alleged revenue income regarding the Nanton and Woolridge Properties but failed to include any calculations for expenses related to such properties, with the result that the calculations were fundamentally flawed. The Trial Judge erred in considering rental income generated by the Nanton Property as relevant to the Plaintiffs' claims, in circumstances where the Trial Judge determined that Philip and Stephanie had no beneficial interest in such property. [32] The evidence with respect to Exhibit 26 and the Woo defendants' Notice to Admit is less than satisfactory, to say the least. Exhibit 26 consisted of three schedules which purported to show on the left side of each page cash received by Angela and on the right side of the page, cash paid out by Angela to and from Stephanie (Schedule II), Philip (Schedule III) and Philip and Stephanie combined (Schedule I). The document was introduced, without objection by the Woo defendants, into evidence by counsel for the plaintiffs early on in the trial when Philip was being examined in chief. When asked to identify the document, he said it showed the "combined cash flows" of himself and Stephanie. He was not asked who had prepared it or on what basis. Stephanie was asked in cross-examination about the document and said it had been prepared by an accountant, Mr. Lam. She was asked why the amount of property rental income "kept by Ng Kay Chi" - i.e., Angela - as stated in Schedule II of Exhibit 26 was more than $100,000 greater than the corresponding number in an earlier version that she had been shown in discovery, but was unable to explain this discrepancy. [33] It appears that two Notices to Admit were entered into evidence on May 4, 2010 by counsel for the defendants (who was not counsel in this court). This was done without any comment on the face of the record, and the plaintiffs' reply to the Notices was not adduced into evidence. It has been provided to us and essentially admitted the cash-flow figures, but not their source(s). At para. 6 of his supplemental reasons, the trial judge said this: The defendants submit that the accuracy of the figures in Exhibit 26 was never proven by the plaintiff and at no time did the defendants accept their accuracy. They argue that Exhibit 26 purports to summarize the agreed upon revenues and expenses contained in a Notice to Admit (dated November 5, 2009) entered into evidence at trial on May 3, 2010. [34] Unfortunately, the main Notice to Admit, which contains the appellants' summary of the cash flow relating to the properties during the period at issue, was broken down according to properties, while Exhibit 26 combined the figures for all the properties and broke down the figures according to year of expenditure. Thus it is not possible for us to compare the figures in the two documents. Nevertheless, it seemed to be common ground at the hearing of the appeal that Exhibit 26 had with one exception been based on the figures contained in the primary Notice to Admit. It would appear from the trial judge's supplemental reasons that he made this assumption as well. [35] The appellants contend that, as stated by Cullen J.: The crux of the defendant's argument is that the "property rental income" figures in Exhibit 26 (column 4) are not accurate and are greater than the actual revenues from the Notice to Admit. They argue that the Notice to Admit indicates that the plaintiffs admitted that the combined rent for the West 27th, West 23rd, West 13th, West 20th and West 31st properties is $1,183,445.50. However, Schedule 1 of Exhibit 26 lists this combined income as $1,667,677.18, resulting in a $484,231.68 difference. If the total combined rent revenues are broken down according to Stefanie's and Philip's respective shares, the defendants claim that Stephanie's total rental income is $646,825, whereas Philip's is $536,620.50. Because the revenue figures were overstated, the defendants argue that the court's calculation of damages was incorrect. The defendants accept the property expenses listed in Schedule 1 totalling $1,505.922.76 (column 10). The defendants argue that if the expenses are broken down according to Stephanie's and Philip's respective shares, Stephanie's share of expenses is $803,334.81, which corresponds to the figure allocated to her in Schedule 2, and Philip's share is $702,587.95 which corresponds to the figure allocated to him in Schedule 3. ... The defendants state that Stephanie was awarded $138,713.66 based on the plaintiffs' accounting of Schedule 2. This award was determined by subtracting $335,384 (the amount I concluded was not proven by Stephanie) from the "balance due from / (due to) [Angela]" figure of $474,097.66 (found at the last column of the Schedule). Schedule 2 has property rental income of $888,940.84, but according to the defendants should only be $646,825 based on the Notice to Admit, an overstatement of $242,115.84. Therefore, the defendants argue that if what they allege to be the correct rental income figure is used, this results in Stephanie owing the defendants $103,402.18. With respect to Philip, the defendants argue that given that there are admitted revenue and expense figures, the court's adverse conclusions on Angela's credibility do not mean that the court cannot determine what amount is owing. They submit that there is no need to refer to any accounting prepared by Angela since the relevant figures have been admitted as correct by the plaintiffs (the Notice to Admit) and since it is the plaintiffs' own document (Exhibit 26) that is being relied upon. The defendants claim that if the correct property rental figure is inserted into Schedule 3 ($536,620.50 instead of $778,736.34), then this would result in Philip owing the defendants $110,725.59. The defendants note that $110,725.59 is the minimum amount that Philip would owe assuming a $750,000 contribution. Since I concluded that there was not enough evidence to support this alleged contribution, the award of damages against Philip should be $860,725.59 (assuming $0 contribution) according to the defendants. [Supp. Reasons at paras. 7, 9 and 10.] [36] In summary, it appears that the property rental income figures appearing in Exhibit 26 included not only the revenues taken from the Notice to Admit, but revenues from the Nanton and Woolridge Island properties. The Notice to Admit did not provide any information concerning income generated by those properties even though an accounting for those properties was sought in the plaintiffs' pleading and as noted in the plaintiffs' factum, there was evidence that these properties did generate income that was reported by Angela to Canadian tax authorities on behalf of Philip and Stephanie. As we have seen, this was not brought to the trial judge's attention until after his initial reasons had been issued. As far as I am aware, no explanation has been given to the Court for why this occurred. [37] As has also been seen, the trial judge rejected the Woo defendants' argument that the assessment of damages should have been determined solely with reference to a "mathematical calculation based on the revenues for the five properties referred to in the Notice to Admit". (Para. 24.) He observed that there had been no evidence that income from the Nanton and Woolridge Island properties had been attributed to anyone other than Stephanie and Philip and that there was no evidence any amounts credited to them had actually been received by them. In his analysis: There was no evidence of how Angela used these funds. Those circumstances justify the existence of revenue credited to Stephanie and Philip above and beyond what was referred to in the Notice to Admit as between them and the Woos. Some untangling of the revenues credited to Stephanie and Philip from the Nanton property may be necessary as between them and their father's estate, however, that is not determinable in this action. For those reasons, I am not satisfied the Notice to Admit tells the entire story of the parties' financial dealings or that it would do justice to the parties to confine the award to a mathematical calculation based solely on its content. [Paras. 25-6; emphasis added.] [38] Notwithstanding the appellants' arguments that this conclusion was not "appropriate" and that the figures on which the trial judge relied in making his damage award in favour of Stephanie were skewed, I am not persuaded that the trial judge erred in declining to confine himself, when assessing damages, to the Notice to Admit. It need hardly be repeated that the evidence in this case was less than complete and less than satisfactory. I cannot say it was wrong in law for the trial judge to decline to take a mathematical approach to the assessment of damages or to take into consideration the probability that income had been received from the two properties "above and beyond" what was included in the Notice. [39] In these unusual circumstances, I would dismiss the grounds of appeal relating to Exhibit 26 and the trial judge's assessment of damages. For the reasons stated above, I would also reject the grounds of appeal relating to the ownership of the properties. It follows that I would dismiss the appeal. "The Honourable Madam Justice Newbury" I Agree: "The Honourable Madam Justice Levine" I Agree: "The Honourable Madam Justice Neilson"