Foo Jee Boo and another v Foo Jhee Tuang and another (Foo Jee Seng, intervener)

• Jurisdiction: Singapore
• Judge: George Wei J
• Judgment Date: 09 July 2015
• Neutral Citation: [2015] SGHC 176
• Court: High Court (Singapore)
• Hearing Date: 28 May 2015,14 April 2015,09 February 2015
• Docket Number: Suit No 764 of 2013 (Registrar’s Appeals Nos 396 and 397 of 2015, Summons Nos 786 and 787 of 2015)
• Plaintiff Counsel: Philip Ling (instructed) (Wong Tan & Molly Lim LLC), Belinda Ang Poh Choo and Ho Wei Li (Belinda Ang Tang & Partners)
• Defendant Counsel: Manoj Prakash Nandwani and Ang Si Yi (Gabriel Law Corporation),Christopher Anand s/o Daniel and Aw Sze Min (Advocatus Law LLP),Intervener in person.
• Subject Matter: Civil Procedure,Further Arguments,Leave to Appeal,Capacities
• Published date: 16 July 2015

George Wei J:

Litigation involves navigating intricate procedural rules. The rules serve a variety of goals. These include defining and setting out the boundaries of the dispute in the interest of transparency, fairness and the proper and efficient administration of justice. Procedural rules do more than just provide the rules for the contest. In some cases, the procedural rule will interface with the very basis of the substantive right asserted or relied upon by the parties. Whilst there is no doubting procedural rules can be complex and may lead to protracted disputes, it stands to reason that a party’s clear formulation of his or her case is essential. In making this observation, it is recognised that where the facts and circumstances are complicated in themselves, a party’s formulation of his or her case may evolve and this may necessitate amendments to pleadings as the case develops. Nevertheless, clarity over the case presented (at whatever stage of the proceedings) is always important. The present case before me is one where confusion has arisen from the pleadings and the legal issues in respect of the capacities, standing of the parties as well as the related rules on joinder of causes of action. Whilst these are not straightforward issues, the complicated legal arguments which have arisen belie the unfortunate reality of a family that has been torn apart by years of bitter litigation.

Brief factual background

Suit No 764 of 2013 (“S 764/2013”) is part of a long standing family dispute over the distribution of the estates of Foo Tai Joong (“Late Father”), Yap Wee Kien (“Late Mother”), and Foo Jee Fong (“Late Brother”). The Late Father passed away in May 1979, the Late Mother passed away on 25 July 2005, and the Late Brother passed away on 19 July 2007.

Over the course of the present proceedings, the parties have come to accept that the claims in relation to the Late Brother’s estate should not be part of the present litigation. I thus focus only on describing the Late Father’s and Late Mother’s estate.

The Late Father’s estate consists primarily of proceeds from the sale of a bungalow. Foo Jhee Tuang (“the 1st Defendant”) is the sole executor and trustee of the Late Father’s estate. As mentioned, the Late Father passed away in May 1979, some 36 years ago. The Late Mother was the executrix and trustee of the Late Father’s Estate. After her death, on 4 March 2010, the 1st Defendant took over as the executor and trustee of the Late Father’s estate.¹

There are seven beneficiaries under the Late Father’s will, and each of them is entitled to 1/7th of the Late Father’s estate. The seven beneficiaries are the Late Mother, the Late Brother, Foo Li Li (“the 2nd Plaintiff”), Foo Jee Seng (“the Intervener”), the 1st Defendant, Foo Jee Boo (“the 1st Plaintiff”), and Foo Chin Chin (another sibling not involved in the current litigation).

In relation to the Late Mother’s estate, the 1st Plaintiff and the 1st Defendant are joint executors and trustees. The beneficiaries of the Late Mother’s estate under her will are the 1st Plaintiff (50%), the 1st Defendant (25%), and the Intervener (25%). The litigation over the Late Mother’s estate in the present proceedings concerns only her 1/7th share of the Late Father’s estate.

After so many years, neither the Late Father’s nor the Late Mother’s estates have been fully administered. However, some monies from both estates have apparently been paid out by the 1st Defendant to himself pursuant to the beneficial interests and claims that the 1st Defendant has in and against the estates. No other beneficiary has received any pay-outs. Indeed, these pay-outs to the 1st Defendant form the heart of the dispute in S 764/2013.

A long history of acrimonious litigation between the parties precedes S 764/2013. The prior litigation included litigation in the State Courts involving the 1st Plaintiff and 1st Defendant over the Late Mother’s medical expenses², as well as High Court proceedings by the 1st Plaintiff, 2nd Plaintiff and the Intervener against the 1st Defendant for an order that the Late Father’s bungalow be sold and the proceeds distributed in accordance with his Will.³

By way of a court order dated 6 September 2012 made in Civil Appeal No 70 of 2011 (“CA 70/2011”), the Court of Appeal ordered the sale of the bungalow and distribution of the proceeds as per the instructions in the Late Father’s Will. I do not find it necessary to go into the earlier proceedings in this judgment in any detail. The only further reference I make to the previous proceedings relates to how TJH Law Corporation (“the 2nd Defendant”) became embroiled in the present family dispute. Pursuant to the Court of Appeal’s decision in CA 70/2011 on 7 August 2012⁴, the Plaintiffs, the Intervener, and the 1st Defendant jointly appointed the 2nd Defendant as solicitors to act in the sale of the Late Father’s bungalow and to distribute the net sale proceeds to the seven beneficiaries of the Late Father’s estate. In the present proceedings, the plaintiffs bring several claims against the 2nd Defendant for breaches of its duties as solicitors jointly appointed by the parties to administer the Late Father’s estate.

While the draft statement of claim filed by the plaintiffs is long, complex and somewhat confusing as it stands, the claims found therein may be broadly categorised into the claims relating to the Late Father’s estate, and the claims relating to the Late Mother’s estate’s 1/7th share under the Late Father’s estate. These claims may be further categorised into the claims brought against the 1st Defendant, and the claims brought against the 2nd Defendant.

In Statement of Claim (Amendment No 1), the plaintiffs’ claim in the present suit was essentially concerned with the Late Father’s Estate. No claim was brought in respect of the Late Mother’s Estate or the Late Brother’s Estate.

Subsequently, the plaintiffs applied for leave to amend Statement of Claim (Amendment No 1), and the application came before me on appeal (see detailed procedural background below).

Without going into the details, I now briefly outline the gist of the claims brought by the plaintiffs (as found in the plaintiffs’ draft Statement of Claim (Amendment No 2) (“the Draft SOC”)).

In brief, the amendments expanded or added details in respect of the claim against the 1st Defendant and the Late Father’s Estate. The amendments also sought to add new claims against the 1st and 2nd Defendants in respect of the Late Mother’s Estate and the Late Brother’s Estate. I say nothing more about the attempt to bring in a new claim in respect of the Late Brother’s Estate since there is no request for further arguments (or indeed application for leave to appeal) in respect of the dismissal of the amendments in respect of the Late Brother’s Estate.

Both the 1st Plaintiff and the 2nd Plaintiff bring the following claims against the 1st Defendant in relation to the Late Father’s estate⁵: failure to account for monies in the Late Father’s estate (including the proceeds from the sale of the bungalow, as well as the rental income received from the property before the sale); failure to properly distribute the Late Father’s estate or to properly instruct the 2nd Defendant to distribute the Late Father’s estate; failure to properly calculate the beneficiaries’ respective entitlements under the Late Father’s estate, especially in relation to the claims the 1st Defendant and the plaintiffs have against the Late Father’s estate; and wrongfully releasing sums of money to himself above and beyond what he is entitled to as beneficiary or creditor.

Both the 1st Plaintiff and the 2nd Plaintiff bring the following claims against the 2nd Defendant in relation to the Late Father’s estate⁶: wrongfully acting on the sole and unilateral instructions of the 1st Defendant in relation to the Late Father’s estate without consulting the plaintiffs or independently verifying the 1st Defendant’s instructions; wrongly calculated the entitlements of each party, enabling the 1st Defendant to inflate his share; and wrongfully paying the 1st Defendant sums from the Late Father’s estate which exceeds the 1st Defendant’s rightful entitlement.

Both the 1st Plaintiff and the 2nd Plaintiff bring the following claims against the 1st Defendant in relation to the Late Mother’s estate: wrongfully instructed the 2nd Defendant to pay him excess sums out of the Late Mother’s 1/7th share of the Late Father’s estate, thereby unjustly enriching himself; and failed to act fairly towards the beneficiaries when he admitted his own claims against the Late Mother’s estate but not other similar claims of the plaintiffs.

Both the 1st Plaintiff and the 2nd Plaintiff bring the following claims against the 2nd Defendant in relation to the Late Mother’s estate: wrongfully dealing with the Late Mother’s estate when the 2nd Defendant was not engaged or authorised to do so;⁷ wrongfully paying out sums which the 1st Defendant is not entitled to from the Late Mother’s estate to the 1st Defendant;⁸

With this factual backdrop in mind, I now explain the background to the specific interlocutory applications before me.

The applications before me Application to amend the statement of claim

This judgment is broadly concerned with the plaintiffs’ application to amend their statement of claim in S 764/2013.

On 18 September 2014, the plaintiffs filed SUM 4655/2014 for leave to amend their statement of claim in the manner found in the Draft SOC. The amendments proposed by the plaintiffs in the Draft SOC were quite significant. At the hearing before the Assistant Registrar (“the AR”), the Defendants did not object to a number of proposed amendments.⁹ The AR allowed some of the contested amendments, but also disallowed a significant number of paragraphs in the Draft SOC. Both the plaintiffs and the 2nd Defendant were dissatisfied...