Chng Bee Kheng and another (executrixes and trustees of the estate of Fock Poh Kum, deceased) v Chng Eng Chye

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 26 February 2013
• Neutral Citation: [2013] SGHC 48
• Date: 26 February 2013
• Docket Number: Suit No 860 of 2011
• Published date: 17 April 2013
• Plaintiff Counsel: Alvin Yeo SC, Sim Bock Eng and Lionel Leo (WongPartnership LLP)
• Hearing Date: 29 August 2012,30 August 2012,27 August 2012,31 August 2012,28 August 2012,12 October 2012
• Defendant Counsel: Cavinder Bull SC, Foo Yuet Min and Daniel Cai (Drew & Napier LLC)
• Court: High Court (Singapore)
• Subject Matter: Estoppel,Equity,Trusts,Express trusts

Chan Seng Onn J: Introduction

The dispute arises out of the administration of the estate of the parties’ deceased mother, the late Mdm Fock Poh Kum (“Mdm Fock”). It concerns the beneficial ownership of a two-storey linked house with a land area of approximately 5,712 square feet or 531 square metres at 7 Robin Walk Singapore 258152 (the “Property”), which is the subject of a trust deed. The disputing parties are family members. The Plaintiffs, who are the executrixes and trustees of Mdm Fock’s estate, claim that the Property is held on trust for Mdm Fock’s estate. The Defendant, who is the brother of the Plaintiffs and the legal owner of the Property, alleges that the trust deed is a sham and does not mean what it says. Mdm Fock’s estate therefore is not the beneficial owner of the Property.

Background

Although the trial was relatively short with just five witnesses from both sides, the dispute revolves around events which took place over the course of four decades. The determination of the key issues, in my view, turns on one’s interpretation of the factual matrix, particularly the intention of the key family members at the material time and the nature of the relationships between the family members. I have therefore endeavoured to illustrate as much of the context as is relevant to the ascertainment of the intention and knowledge of the key protagonists.

The family

Mdm Fock married Mr Chng Gim Cheng (“Mr Chng”) in 1944. They have six children. The Defendant is the second eldest, while the 1st and 2nd Plaintiffs are the fourth and sixth child respectively. Mr Chng passed away on 3 September 1988, while Mdm Fock passed away more recently on 23 November 2009. The other three children are Chng Bee Suan (“Bee Suan”), the eldest; Chng Eng Hwee, the third eldest; and Chng Bee Choo, the fifth eldest. The Defendant’s wife, Augustine Chng (“Augustine”), moved in and stayed with the family at the Property when she married the Defendant in 1977.

The Property

The Property was purchased for $260,000 and was paid for in various tranches, as evidenced by receipts signed off by Mr Robert Hsieh of Boswell, Hsieh & Lim (“Mr Hsieh”), who was the solicitor acting for Mr Chng. The last tranche was paid on 21 February 1974. The transfer of the Property was executed and lodged on 23 February 1974, though the Property was only registered in the Defendant’s sole name on 11 March 1974. It is not clear why there was this lapse of time of 16 days between the execution and lodgement of the transfer and the registration of the Defendant as the owner of the Property.

There are a total of three receipts. The first receipt dated 9 January 1974 shows that Mr Chng paid $26,000.¹ This was the 10% deposit for the Property. Although Mr Hsieh sought the balance of the purchase price and his costs from Mr Chng,² two receipts dated 21 February 1974 show that the second and third tranches of approximately $112,000 and $131,000 respectively were paid for not by Mr Chng directly, but by the Defendant and Far Eastern Bank respectively.³ Far Eastern Bank disbursed the sum pursuant to an overdraft facility account under the Defendant’s name, but for which Mr Chng was the guarantor.⁴ The Defendant clarified that the $112,000 paid by him in the second tranche was a combination of drawings on the overdraft facility at Far Eastern Bank and monies given to him by Mr Chng.⁵ This is a noteworthy clarification as the Defendant was only 24 years old when the Property was purchased. He had just completed his National Service and was starting work at Mr Chng’s trading business, Sumber Trading Company (“Sumber Trading”), earning a monthly income of $800. The overdraft facility at Far Eastern Bank was eventually cleared and the account was closed on 19 March 1984.⁶ The Defendant claimed that he cleared his overdraft facility using funds provided by his parents-in-law and Mr Chng.⁷

The entire family of eight stayed in a flat at 33-B Tiong Poh Road (the “Tiong Poh flat”) before they moved into the Property in 1974. The Tiong Poh flat was fully paid for by Mr Chng, but was registered in Mdm Fock’s name to protect it from Mr Chng’s potential business creditors.⁸ At the Property, Mr Chng and Mdm Fock occupied the master bedroom, while the six children shared the other three rooms. After the Defendant got married in 1977, he and Augustine stayed in the Defendant’s room. Except for the Defendant, Mr Chng’s other five children moved out of the Property when they got married. The 2nd Plaintiff was the last to move out in 1987. When Mr Chng passed away, Mdm Fock continued to occupy the master bedroom.⁹

The Trust Deed

A trust deed was executed by the Defendant as trustee on 23 February 1974 (the “Trust Deed”), even though the Defendant was only registered as the owner of the Property 16 days later on 11 March 1974. However, it is significant to note that the Trust Deed was executed on the same day that the transfer of the Property was executed and lodged on 23 February 1974. The Trust Deed, which was drafted and witnessed by Mr Hsieh, reads:

WHEREAS the Trustee is the registered proprietor of all that land and premises known as No. 7 Robin Walk, Singapore (hereinafter called “the said property”) but the consideration for the said property was provided by FOCK POH KUM of No. 33-B Tiong Poh Road, Singapore and the said property was transferred to the said Trustee as trustee for the said FOCK POH KUM as the trustee hereby acknowledges.

NOW THIS DEED WITNESSETH that the said CHNG ENG CHYE declares that he holds the said property in trust for the said FOCK POH KUM according to the nature and tenure thereof and hereby agrees that he will at the request and cost of the said FOCK POH KUM make application to the Land Titles Registry or other appropriate authority and execute and do all such documents acts and things as may be necessary to procure the said property to be transferred to and registered in the name of such person or otherwise dealt with at such time and in such manner as the said FOCK POH KUM shall direct or appoint.

IN WITNESS WHEREOF the said CHNG ENG CHYE has hereunto set his hand and seal the day and year first above written.

In essence, the Trust Deed states that: (a) the purchase price of the Property was provided by Mdm Fock; and (b) the Property was transferred to the Defendant to be held on trust for Mdm Fock.

Mdm Fock was not present when the Trust Deed was executed. Interestingly, although Mr Hsieh’s bill of costs for the execution of the Trust Deed reflected the Defendant as the client, the cover letter enclosing the bill of costs was addressed to Mdm Fock.¹⁰ It is undisputed that the Trust Deed was handed over to Mdm Fock after it was executed and was in her possession till her death in November 2009.

The Trust Deed was discovered by the 2nd Plaintiff when she opened Mdm Fock’s safe deposit box at United Overseas Bank (“UOB safe deposit box”) on 17 December 2009. In addition to the original Trust Deed, the UOB safe deposit box also contained, inter alia, Mdm Fock’s original will (the “Will”), which was executed on 18 November 2002, a copy of the certificate of title to the Property, the original bill of costs from Mr Hsieh, several pieces of jewellery which were tagged with the names of the persons they were to be given to, and a certificate for over 1 million shares in Sumber Holdings Private Limited (“Sumber Holdings”).¹¹ Sumber Holdings is the successor entity to Sumber Trading.¹²

Key events after Mdm Fock’s death The 31 January 2010 meeting

On 10 January 2010, the 2nd Plaintiff distributed copies of the Will to the family. On 31 January 2010, there was a meeting at the 1st Plaintiff’s home to discuss the administration of Mdm Fock’s estate. All six children were present. The Plaintiffs informed everyone of the Trust Deed at this meeting. At this point, there is a divergence of views as to what transpired. According to the 2nd Plaintiff, the Defendant said that he had signed the Trust Deed and that it remained valid. When the 1st Plaintiff stated that the Property had to be included in the Schedule of Assets as part of Mdm Fock’s estate, the Defendant purportedly replied that the Plaintiffs could “go ahead”.¹³ The Defendant’s version, however, was that he had maintained that he was the rightful owner of the Property.¹⁴

The 19 April 2010 letter

On 19 April 2010, the Defendant wrote a letter to the Plaintiffs marked “Without Prejudice” (“the 19 April 2010 Letter”).¹⁵ In the letter, he disagreed that he was holding the Property on trust for Mdm Fock (or her estate). The Defendant also asserted that “the money to purchase the Property came from [him]”, and that the Trust Deed was executed “simply to give [Mdm Fock] peace of mind so that she could live in the Property without fear of being evicted one day”. The Plaintiffs responded with a letter on 4 May 2010 and proposed a meeting to “address and resolve the issues at hand”.¹⁶

The 24 May 2010 meeting

A meeting took place on 24 May 2010 at the Defendant’s office at Sumber Holdings (“the 24 May 2010 Meeting”). It was attended by Bee Suan, the Plaintiffs, the Defendant, and the Defendant’s son, William Chng. The conversation at the meeting was recorded on tape. From the transcript of the recording, the Defendant stated that it was Mr Chng who had paid for the Property.¹⁷ The Defendant also repeated that the Trust Deed had been executed to give Mdm Fock the peace of mind that she would not be evicted from the Property, and he said that it was Mdm Fock who had wanted the Trust Deed.¹⁸

The present proceedings

On 8 July 2010, the Plaintiffs’ solicitors wrote to the Defendant for the return of the Property to Mdm Fock’s estate. The Defendant did not comply and the Plaintiffs commenced the present proceedings on 24 November 2011 seeking, inter alia, a declaration that the Property is held on trust by the Defendant for the Plaintiffs as the...