Cheong Yoke Kuen and Others v Cheong Kwok Kiong

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 13 April 1999
• Neutral Citation: [1999] SGCA 27
• Docket Number: Civil Appeal No 256 of 1998
• Date: 13 April 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Chung Tin Fai (Chung Tan & Partners)
• Citation: [1999] SGCA 27
• Defendant Counsel: Oommen Mathew and Stephanie Hong (Tan Peng Chin & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Jurisdiction,Housing and Development Flat,s 47 and s 51 Housing and Development Act (Cap 129),Whether there can be resulting trust over HDB flat,Presumed resulting trusts,Resulting trusts,Whether court has power under Supreme Court of Judicature Act to order sale of property and to make declaratory orders,Policy Considerations on creation of such trust,Civil Procedure,Trusts,s 18(2) Supreme Court of Judicature Act (Cap 322) & First Schedule paras 2 & 14

Judgment:

LP THEAN JA

(delivering the judgment of the court): This appeal concerns a dispute between siblings as to the ownership of a flat, known as Block 23, Outram Park, [num ]10-129, Singapore 162023 (`the flat`). The first and second appellants are the sisters and the third appellant the younger brother of the respondent. In the High Court the appellants` claim for a certain declaration relating to the flat was dismissed, and they have now appealed against that decision.

2. The background

The flat was purchased from the Housing and Development Board (`HDB`) on or about 23 April 1983 in the joint names of the siblings` mother, Poon Ah Ngoi (`the mother`) and the respondent. It was the respondent who made the down payment of the purchase price for the flat and also the subsequent monthly payments to HDB. In addition, he paid all the outgoings of the flat, namely, the conservancy charges, utilities bills and property tax. The reason why the flat was registered in the joint names of the mother and the respondent was that, at that time, it could not be registered in the sole name of the respondent.

3.Prior to the purchase of the flat, since about 1970, the respondent and his family rented the flat from the HDB. Staying with the respondent and his family at that time were the mother and the first and third appellants. At that time or thereabouts, the second appellant was married and had moved out. The first appellant was married in 1975 and moved out of the flat in 1977. Thereafter, only the mother and the third appellant stayed at the flat with the respondent and his family.

4.In 1986, the respondent was allocated a new HDB flat at Serangoon North Avenue and he eventually moved out of the flat with his family in 1987. According to the respondent, the mother wished to continue to live in the flat, but under the `regulations` of the HDB no purchaser or lessee could own more than one flat at any one time. Accordingly, the respondent had to divest his interest in the flat and he transferred his interest in the flat to his mother, who thereby became the sole owner of the flat. He paid all the costs and expenses relating to the transfer, and the transfer was effected in June 1986. He asserted that he merely wanted to provide a place for his mother to live during her lifetime and that it was not his intention that the flat would be transferred to his mother as a gift. After the respondent had moved out of the flat, he continued to pay all the outgoings of the flat while his mother was staying there.

5.The mother passed away intestate on 19 August 1995. The respondent petitioned for the letters of administration to his mother`s estate which was eventually granted on 30 October 1995. The only asset in her name was the flat. Sometime in October 1997, the respondent wanted to sell the flat but could not do so because the third appellant was still staying at the flat at that time. In order to facilitate the sale of the flat, the respondent rented a room at his own expense to accommodate the third appellant. Despite his mother`s demise, the respondent continued to pay all the outgoings of the flat until March 1998 when the present dispute as to the ownership of the flat arose between him and his siblings. By the Originating Summons No 694 of 1998 filed on 9 June 1998 the appellants sought the following reliefs against the respondent: 1a. declaration as to the beneficial interest of the parties in [the flat];

2. an order that [the flat] be sold at a price not below the market value or at such price as the court deems fit; and

3. an order that the [respondent] do execute all necessary documents and take such steps as may be necessary to bring the sale of [the flat] into effect.

6. Decision below

As a preliminary point, the learned judge noted that the appellants had oddly chosen to ground their action under s 18(2) of the Supreme Court of Judicature Act (Cap 322) (`SCJA`). She held that there is no provision in the First Schedule of the SCJA which empowers the court to grant the orders which the appellants sought.

7.Leaving aside the procedural irregularity, the learned judge declined to make the declaration, as she was of the view that the appellants` claim for a share in the flat was untenable at law and was wholly unsubstantiated. Notwithstanding the fact that the respondent had transferred his legal interest in the flat, she held that he continued to retain a beneficial interest in the flat by virtue of his having paid the entire purchase price and the outgoings of the flat. Despite her earlier reservations over the `procedural irregularities`, the learned judge ordered the respondent to take the necessary steps to effect a sale of the flat at a price not below the market value.

8. The appeal

The first issue raised in this appeal is whether the court has the power under the SCJA to make the orders sought by the appellants. We turn first to s 18 of the SCJA which provides as follows:

(1) The High Court shall have such powers as are vested in it by any written law for the time being in force in Singapore.

(2) Without prejudice to the generality of subsection (1), the High Court shall have the powers set out in the First Schedule.

(3) The powers referred to in subsection (2) shall be exercised in accordance with any written law or Rules of Court relating to them.

Paragraphs 2 and 3 of the First Schedule are set out in full below:

2 Power to partition land and to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part of it to be sold, and to give all necessary and consequential directions.

3 Power to order land to be charged or mortgaged, as the case may be, in any case in which there is jurisdiction to order a sale. [Emphasis added.]

9.The appellants argue that para 2 of the First Schedule gives the court the power `in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part of it to be sold, and to give all necessary and consequential directions`. It is therefore submitted that the court has the power to make a declaration as to the beneficial ownership in the flat as para 2 allows the court to `give all necessary and consequential directions`. These submissions are not seriously contested by the respondent in the appeal.

10.In our opinion, the learned judge, with respect, erred in concluding that the SCJA does not confer the power on the court to make declaratory orders or to order the sale of the flat. As this is a `cause or matter relating to land`, para 2 of the First Schedule does confer a power on the court to order a sale of the flat `where it appears necessary or expedient`. Paragraph 14 of the First Schedule also empowers the court `to grant all reliefs and remedies at law and in equity` which includes the power to make a binding declaratory order ( Salijah bte Ab Latef v Mohd Irwan bin Abdullah [1996] 2 SLR 201 ).

11. Ownership in the flat

We now come to the essence of this appeal. The appellants claim that the mother was the owner of the flat and upon her death it forms part of her estate to which they are each entitled in equal shares together with the respondent pursuant to the rules of distribution under the Intestate Succession Act (Cap 146). The respondent, however, claims that he is the beneficial owner of the flat by operation of a resulting trust, because he had paid the purchase price for the flat as well as its outgoings. When he transferred his entire interest in the flat to the mother in 1986, no consideration was paid to him by the mother, and he did not intend to make a gift of that flat to her. Thus, the beneficial ownership of the flat remained with him by operation of a resulting trust.

12.The position in equity as to the ownership of a property by a person who has contributed any money towards purchase thereof is well settled. Where a person has paid the purchase price of a property (`the purchaser`) and the property is conveyed or transferred to him jointly with others, or to one or more persons other than the purchaser, a resulting trust arises in favour of the purchaser, and he is the beneficial owner of the property: Dyer v Dyer [1788] 2 Cox Eq Cas 92. If there are more than one purchaser and they paid the purchase money in unequal shares, the beneficial interest acquired by each of them will be in proportion to their respective contributions. Such a resulting trust is based on the presumed intention of the parties and such presumption is rebuttable by evidence of an intention on the part of the purchaser to make a gift or by the presumption of advancement which arises when a voluntary conveyance or transfer is made to a person to whom the purchaser stands in loco parentis.

13.Hence, in the instant case, if the flat were not an HDB property, the position would be abundantly clear. Whatever purchase money that had been paid for the flat had been paid solely by the respondent. Thus, at the time when the flat was purchased and registered in the joint names of the mother and the respondent, a resulting trust of the property arose in favour of the respondent as he had provided the entire purchase money, and he was the beneficial owner of the flat. There was no evidence that by taking the property jointly with the mother, the respondent intended to make a gift of half or any share of the flat to the mother. Also, there was in such a case no presumption of advancement arising in favour of the mother to displace the presumption of resulting...