Ang Toon Teck v Ang Poon Sin

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 05 March 1998
• Neutral Citation: [1998] SGHC 67
• Court: High Court (Singapore)
• Year: 1998
• Published date: 21 February 2013
• Plaintiff Counsel: P Balagopal with Anand K Thiagarajan (Palakrishnan & Partners)
• Defendant Counsel: Chua Lee Ming with Doris Lai (Lee & Lee)
• Citation: [1998] SGHC 67

Judgment:

Cur Adv Vult

Introduction

1. The late Mr Ang Kim Thor ('the patriarch') was the head of a large family. He had two wives, two sons (one by each wife), and at least 14 grandchildren, six of whom were grandsons. In 1976, the patriarch made a will. He appointed his elder son, Ang Toon Teck, the plaintiff in this action, and his eldest grandson, Ang Poon Sin, the defendant in this action, as the executors and trustees of his will. Under the terms of the will, the patriarch's assets were to be divided into 20 shares and these shares were to be distributed among his six grandsons.

2. The patriarch died on 15 May 1982. By that date, what would otherwise have been his assets were held either in the names of the plaintiff and defendant jointly or solely in the name of the defendant. The plaintiff and the defendant are now fighting over the actual ownership of the assets. The plaintiff claims that both parties were holding them on trust for the estate of the patriarch and/or for the beneficiaries of his will. The defendant says that the patriarch gave away these assets and, as of his death, he had nothing left to go into his estate. The assets in dispute are, mainly, the house known as 43 Faber Walk which is jointly owned by the plaintiff and defendant, a sum of $420,000 which was put into a fixed deposit account in the names of the plaintiff and defendant on 28 April 1982 and a sum of $500,000 which up to 14 May 1982 was held in a savings account in the joint names of the patriarch and the defendant.

The facts

3. Prior to February 1981, the patriarch owned a large piece of land at Jalan Lim Tai See. The family house was situated there. It was occupied by the following persons: the patriarch himself, his mother, his two wives and his sons and their families. The plaintiff's family comprised his two wives, his two sons and eight daughters by Madam Loh, his first wife, and his three sons by his second wife. The defendant is the plaintiff's eldest son. The other son of the patriarch, Ang Thian Sung, had a wife and at least one child, a son named Ang Song Hin.

4. In February 1981, the patriarch sold the land at Jalan Lim Tai See for $2,201,350. A sum of $220,135 was paid as a deposit with the balance being due on completion. Completion was scheduled for 12 months after the date of the agreement for sale since there were squatters on the land who had to be cleared before vacant possession could be given.

5. In 1981, the patriarch was aged 76. He was not in very good health. He spoke only Hokkien and, apparently, was not literate in Chinese. Neither was he literate in English. He had retired as a taxi driver. There is no doubt that he relied heavily on his eldest son, the plaintiff, who was then working as customs officer, and on the defendant. There is also no doubt that he doted on the defendant as the eldest grandson and also because the defendant had suffered from polio as a child and had been left with a crippled hand. The patriarch had shown this preference in his will by allocating to the defendant five shares out of the 20 shares into which his estate was to be divided whereas the other grandsons had been allocated only three shares each.

6. Two months or so after the agreement for sale of Jalan Lim Tai See was signed, the deposit was released to the patriarch. He collected the cheque from his lawyers and then banked it into a new current account with the Tat Lee Bank, Buona Vista Branch (which I shall call 'TLB a/c 1'), which had been opened in the joint names of the patriarch, the plaintiff and the defendant, specifically for this purpose. TLB a/c 1 could be operated by any two of the three account holders, signing jointly. The defendant explained that these arrangements had been made for two reasons. The first was security in the sense that if anything untoward happened to the patriarch, the other two account holders could still operate the account. According to the defendant, this was the patriarch's idea. Secondly, the signing authority had been fixed at any two account holders in order that there would be proper control of the funds in the account.

7. Once the deposit monies had been received, the parties started looking for a new home. It had been decided that the family would split up with one of the patriarch's wives', her son, Ang Thian Sung, and his family living together in a flat purchased by Ang Thian Sung while the patriarch himself would live with his other wife and the plaintiff and his family. The patriarch agreed to give Ang Thian Sung $100,000 out of the proceeds of sale of Jalan Lim Tai See to assist him in the purchase of his flat. In the event, $61,000 of this money was given while the patriarch was still alive and the balance of $39,000 was paid by the defendant after the patriarch's death.

8. It was the plaintiff who found No. 43 Faber Walk, a semi-detached house. The patriarch and the defendant then went to view this property and the patriarch agreed to buy it at the price of $710,000. In early November 1981, the then owner of 43 Faber Walk, one Mr Woo, executed an option in favour of the plaintiff and the defendant who were described as the purchasers. According to the defendant, the option was in favour of the plaintiff and himself because his grandfather had told them before it was signed that 43 Faber Walk would be in their joint names as he was giving the property to both of them. The plaintiff, on the other hand, asserted that 43 Faber Walk was bought in the names of the defendant and himself because the patriarch was getting old and he wanted the house to be part of his will and for the plaintiff and the defendant to carry out his wishes under the will when he died.

9. The plaintiff and defendant duly exercised the option. Completion was fixed for 28 February 1982. The patriarch and his family were allowed to move into the house prior to that date in consideration of the payment of interest on the balance purchase price. In the event, completion was delayed till April 1982 because there were some difficulties with clearing the squatters in Jalan Lim Tai See and the parties were not able to pay the balance due for 43 Faber Walk until they received the proceeds of sale of Jalan Lim Tai See.

10. Completion of the sale of Jalan Lim Tai See took place on 24 April 1982. On 26 April, the patriarch accompanied by both the plaintiff and the defendant went to the office of his solicitors, M/s RS Balan & Co, to collect a cashier's order for the sum of $1,643,535.50 representing the balance of the proceeds of sale. By this time, completion of the purchase of 43 Faber Walk was long overdue and the parties had already had to pay interest to Mr Woo for the delay in completion. A letter had been issued by Mr Woo's solicitors stating that if completion did not take place on 30 April 1982, the sale would be cancelled and all monies paid to Mr Woo so far would be forfeited.

11. The patriarch was anxious to complete the purchase of 43 Faber Walk. According to the defendant, the parties were advised that the fastest way of receiving the proceeds of the cashier's order for $1,643,535.50 so that they could purchase a cashier's order to pay for 43 Faber Walk would be to deposit that first cashier's order into an account with the bank which had issued it, that is the Standard Chartered Bank (SCB). If they were to deposit the cashier's order into TLB a/c 1, it would take some time to clear and there would necessarily be delay in the issue of a cashier's order in favour of Mr Woo.

12. The patriarch accompanied by the defendant and his younger brother, Mr Herbert Ang, therefore went straight from their solicitors' office to the branch of the SCB at Fook Hai Building. There, two accounts in the joint names of the patriarch and the defendant were opened. The mandate for both accounts required that they be operated jointly by the account holders. The first was a current account and the cashier's order was deposited into this account. The account holders immediately gave instructions for a cashier's order for $600,000 in favour of Mr Woo to be issued from the monies in the current account and for a further $500,000 to be transferred from that account into the second account which was a savings account. At the end of the day, the SCB current account had a balance of $543,535.50. The plaintiff was not present at the bank that day because he had had to go to work after leaving the solicitors' office.

13. The cashier's order for $600,000 was given to Mr Woo's solicitors on 26 April itself in substantial satisfaction of the balance due to him. The purchase was completed on 30 April 1982 whereupon the plaintiff and the defendant became the legal owners of 43 Faber Walk as joint tenants. On completion a further $14,800.77 had to be paid to Mr Woo and thereafter legal fees and stamp duties amounting to about $26,400 had also to be met.

14. The patriarch was not well, so on the 26th itself, after completing their banking transactions, the defendant took his grandfather to see a doctor. The doctor gave him a referral letter to Alexandra Hospital. The patriarch was examined there the same day but was sent home after the consultation. On the next day, 27 April 1982, the patriarch was admitted to Jurong Hospital. A few days later, the defendant was advised to take him to Gleneagles Hospital for scanning and it was then confirmed that the patriarch had cancer of the pancreas which had spread to the kidney. The patriarch was then sent back to Jurong Hospital.

15. In the meantime, on 28 April 1982, a sum of $500,000 was withdrawn, by cheque (presumably signed by both the patriarch and the defendant), from the current account with SCB and paid into TLB a/c 1. On the same day, the plaintiff and the defendant signed a cheque drawn on TLB a/c 1 for the sum of $420,000 and deposited it in a newly opened fixed deposit account in their joint names with Tat Lee Bank (TLB a/c 2).

16. In court the...