Chong Poh Siew v Chong Poh Heng

JudgeMPH Rubin J
Judgment Date06 August 1994
Neutral Citation[1994] SGHC 206
Docket NumberSuit No 1539 of 1992
Date06 August 1994
Published date19 September 2003
Plaintiff CounselPhilip Jeyaretnam (Helen Yeo & Pnrs)
Citation[1994] SGHC 206
Defendant CounselGoon Hoong Seng (Low Yeap & Co)
CourtHigh Court (Singapore)
Subject MatterRegistered deed of assignment,When court can go behind register to make finding on nature of the various transactions,Civil Procedure,Approach of court,Failure to register trust deed,Trusts,Pleadings,Reliance on contradictory pleas in the alternative,Trust estate,Assignee to property contemporaneously executing trust deed claiming to hold property in trust for third party

Cur Adv Vult

The plaintiff, Chong Poh Siew, and the defendant, Chong Poh Heng, are brothers. Their father, the late Chng Kim Huat, died in 1959 leaving behind ten children and a house known as No 5 Bassein Road, Singapore. Each of the children was entitled to one-tenth share in the said house. In order to identify the various persons who played some role or other in this dispute, reference should be made to the family tree annexed to this judgment.

The present action concerns a one-tenth share (hereinafter called `the disputed share`) in the said house which the plaintiff claims that he purchased from his third younger brother, Chong Poh Yew (since deceased), for $14,000 sometime in the course of May 1970, partly by using $3,000 from his own funds and partly through a loan of $11,000 given to him by his sister, Mdm Chong Lan Heong (known variously as Mdm Chong, Chong Lan Hiong, Chng Lan Heong, LH Harris or Mrs RE Harris).
Mdm Chong was, until her death on 30 September 1984, the dominant trustee of their late father`s estate, the co-trustee being the defendant.

The plaintiff is now claiming a nett sum of $390,000 as being his entitlement from the disputed share.
In this regard he places reliance on a deed of assignment dated 17 June 1970 executed by his late brother, Chong Poh Yew, and registered with the Registry of Deeds on 24 June 1970 (PB-67-71) which states amongst other things that the disputed share was assigned to the plaintiff for a consideration of $14,000.

The house was sold by the trustees in May 1990 for $4m.
At the time of its sale the plaintiff was one of the trustees and he had already been paid whatever sums due to him in respect of his original share as well as another one-tenth share which he had acquired earlier from another brother, Chong Poh Siong. However the plaintiff`s claim for $390,000 (one-tenth of the sale price of $4m less a sum of $10,000 for legal expenses) in respect of the disputed share had been rejected by the defendant who is currently the only ongoing trustee of the father`s estate.

The defendant in rejecting the claim of the plaintiff, relies on a trust deed executed by the plaintiff contemporaneously with the deed of assignment declaring himself trustee of one-tenth undivided share in the property for Mdm Chong.
The original of the trust deed is no longer available and a file copy of the said deed was produced to the court and included in the agreed bundle of documents (PB-72/73 as well as DB-44/45).

The execution of the trust deed is not in dispute now.
The plaintiff admits its execution by him. But in the rider contained in his amended reply, he avers that in order to finance part of his purchase of one equal tenth part or share of the house, he borrowed from his sister, Mdm Chong, a sum of $11,000 free of interest and that for the sole purpose of securing the loan of $11,000, the trust deed was entered into and delivered to his sister to be held in escrow subject to the condition that it was not to take effect unless the plaintiff failed to repay this loan of $11,000. He further avers that the loan of $11,000 was fully repaid in instalments by 1977; thereafter his sister returned the deed of assignment to him and told him that she had destroyed the trust deed. The plaintiff contends that the trust deed had at no time taken effect.

In the main, the whole action revolves around a question of fact as to who is telling the truth about this mystifying trust deed.
Was it executed only as a stopgap measure to underpin the plaintiff`s commitment to repay a loan or was it in fact intended for the benefit of Mdm Chong such that she employed the plaintiff only as a trust vehicle? Mdm Chong is not alive to tell her story. It therefore becomes necessary to evaluate the evidence of the parties, the effect of a number of letters exchanged between their solicitors as well as other documents included in the agreed bundles.

The plaintiff in his affidavit of evidence-in-chief (exh P-1 filed on 14 May 1993) narrates what he alleges to be the circumstances under which he proceeded to purchase the disputed share from his brother, the late Chong Poh Yew.
The material part (as appears at paras 11-16 of the affidavit) reads as follows:

11 ... Chong Poh Yew, my third younger brother also wanted to sell his share. He communicated his intention both to my eldest sister, Chng Lan Hiong, the dominant trustee and myself as I had made known my intentions to the other beneficiaries to purchase their shares because I was more interested in getting as many shares as possible and eventually to buy over the whole property which intention I had stated earlier in my offer. My sister, Chng Lan Hiong, a trustee, in fact, encouraged me to buy this share from Chong Poh Yew. Though she was married, she was married to a foreigner and as they did not have any children there was no necessity to expand her empire. I informed my sister I had some money but was at that time short of about $11,000 to buy over the share at the price of $14,000. She volunteered to loan me the money, free of interest.
    12 Accordingly, the sale was concluded and a deed of assignment was prepared in the office of M/s Lee & Lee. The solicitor-in-charge was Mr Tan Bock Hoay (sic). As offered, I accepted the loan of $11,000 from my sister and paid out from my own pocket a sum of $3,000 for the purchase of the one-tenth undivided part or share of Chong Poh Yew. The said assignment was dated 17 June 1970 and registered in Vol 1803 No 110.
    13 I would like to reiterate no beneficiary was ever precluded from purchasing any share. There was another sale of share in the said property from Dr Chong Poh Kong to Dr PS Cheng. If my sister, Chong Lan Hiong, was interested, she could have purchased it in her name. If for some reason she did not want to buy in her name, she could have bought it in the name of her husband and if what the defendant has stated, there were family gatherings and they had discussed the matter in my absence, she could have bought it in anyone else`s name who were present at the gatherings including the defendant. What transpired between me and my sister none knew .
    14 In order to secure the loan, my said sister consulted Mr KumarLal, an advocate and solicitor. He advised us to have the assignment registered and my sister to hold back the said document with a simple declaration of trust . Though the actual loan was $11,000, the total amount that was actually paid was inserted in the said deed so that the entirety of the one-tenth undivided share or part would appear to be in trust and the said document would also be kept by my sister along with the assignment till the loan amount was repaid. I also paid the costs for the preparation of the deed and solicitors` fees and other expenses.
    15 During the next few years, I repaid the whole loan by paying annually $1,000 and variable sums of not less than $1,000 each time. The entire loan amount was repaid by 1977. Thereafter, my sister returned to me the deed of assignment in my favour and that she had destroyed the trust deed (sic).
    16 Nothing was said or heard of about the deed of trust during her lifetime. My sister passed away on 30 September 1984. After her lifetime and up to the time when the property was sold and the proceeds were about to be distributed even after her demise, her late husband and sole executor, Robert Edwards Harris, never communicated with me on the subject. He was the general manager and a director of Fiat Motors and was their representative for Southeast Asia. This deed of trust was never registered with the Registry of Deeds and Titles. At no time my late sister, Chong Lan Hiong, ever took any steps to request me to assign the one-tenth undivided part or share to herself or to any other person. Neither did her executor, Robert Edwards Harris, ever wrote to me to confirm that I was holding the one-tenth undivided share or part which I purchased from my brother, Chong Poh Yew, in trust for his deceased wife or in his favour as executor. Neither did either of them ever make any claim against me for the one-tenth undivided part or share during their respective lifetimes. There was no dispute of any nature whatsoever at any time between the said executor and myself. [Emphasis added.]

The plaintiff testified that he had fully repaid the loan he took from his sister by the year 1977.
He claimed that except for the initial repayment of a sum of $3,000 and the last payment of $1,000, there were receipts issued by his sister but unfortunately he had misplaced them. He asserted that at the time he made the last payment in 1977, his sister returned to him the deed of assignment assuring him that she had destroyed the trust deed.

As to the execution of the trust deed itself, he claimed that everything was taken care of by his sister and he never appeared before any solicitor let alone Mr Kumar Lal to sign the deed.

During cross-examination, the plaintiff`s attention was drawn to a joint affidavit affirmed by him and the defendant in March 1990 in connection with their application, as the then trustees of their late father`s estate, to the High Court under s 35(2) of the Conveyancing and Law of Property Act (Cap 61), for sanction to sell the house.
The said affidavit (exh D-4) includes an enclosure - exh `E` - which appears to acknowledge that the estate of Mdm Chong is entitled to two-tenth share in the house. The plaintiff though admitting to affirming the affidavit claimed that he had never seen this exhibit and when he signed the affidavit the said annexure was not included therein.

Above all, he was emphatic in his denial that the defendant handed over to him any trust deed in 1987.
He maintained that the trust deed had by then been destroyed by his sister.

The evidence of the defendant substantially appears in his affidavit of evidence-in-chief (exh D-5 filed on 12 May 1993).
The relevant segment of the defendant`s affidavit (as appears at paras...

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