Geok Hong Co Pte Ltd v Koh Ai Gek and others

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Steven Chong JA,Belinda Ang Saw Ean J,Quentin Loh J
• Judgment Date: 28 February 2019
• Neutral Citation: [2019] SGCA 15
• Citation: [2019] SGCA 15
• Defendant Counsel: The respondents in person.
• Docket Number: Civil Appeal No 174 of 2017
• Plaintiff Counsel: Lee Eng Beng SC and John Seow (Rajah & Tann Singapore LLP)
• Date: 28 February 2019
• Published date: 05 March 2019
• Hearing Date: 14 January 2019
• Subject Matter: Estoppel,Defences,Common intention constructive trusts,Equity,Constructive trusts,Trusts,Laches,Proprietary estoppel

Steven Chong JA (delivering the judgment of the court): Introduction

How does one prove an alleged oral representation when both the representor and representee have passed away before the commencement of the action? Can proof be achieved by way of a statutory declaration executed by the representee days before he passed away? This was one of the core issues before the court below. In spite of the observation of “a number of difficulties in deciding on the credibility of [the] claim”, the court found that the oral representation was proved on a balance of probabilities.¹

The appellant, Geok Hong Company Pte Ltd (“the Company”), is and has been at all material times the legal owner of a property at 17 Glasgow Road (“the Property”). The respondents, who were the plaintiffs in the underlying suit, contend that the estate of the representee has the beneficial ownership of the Property by way of a common intention constructive trust or, in the alternative, by way of proprietary estoppel.²

The factual foundation of the respondents’ case largely rests on an alleged oral representation made by Mr Tan Geok Chuan (“TGC”) to his son, Mr Tan Tiong Luu (“TTL”) some 40 years ago that the Property would be purchased for TTL but that the Property would be registered in the Company’s name to ensure that TTL’s wife would not get any share in the event of a divorce. However, the unique feature of this case is that both TGC and TTL had passed away by the time the action commenced. Further, no one witnessed the alleged oral representation and significantly, neither TGC nor TTL ever informed any other member of the family of this arrangement during their respective lifetime. The respondents are TTL’s wife and children, who have resided in the Property and regarded it as their family home for the past 40 years.

The High Court Judge below (“the Judge”) found that the alleged oral representation was proved to have been made by TGC to TTL primarily based on a statutory declaration (“the SD”) made by TTL just nine days before he passed away. He further found that TTL had suffered detriment in reliance on this representation by undertaking various works to the Property at his own expense and by forgoing the opportunity to purchase his own residential property. Consequently, the Judge found that a common intention constructive trust had arisen in favour of TTL. The Judge further found that the respondents’ alternative claim in proprietary estoppel would also have succeeded, and that the doctrine of laches did not apply to bar the claim. His Grounds of Decision (“the GD”) are reported at Koh Ai Gek and another v Geok Hong Co Pte Ltd (Tan Wei Chieh and others, third parties) [2018] SGHC 74.

With respect, we are of the view that the Judge’s findings in respect of the alleged oral representation were made against the weight of the objective evidence. We are also of the view that the respondents have failed to prove any detriment in reliance on this representation. Further, the doctrine of laches would apply to bar the respondents’ claims in any event. Accordingly, the respondents’ claims in both common intention constructive trust and proprietary estoppel cannot succeed and we accordingly allow the appeal for the reasons set out below.

Facts The parties

The Company is a family-owned company. Since its incorporation, it has been managed by TGC, and subsequently by his children. TGC’s family members are as follows:³ Mdm Ong Bah Chee (“OBC”), TGC’s wife. Mr Tan Tiong Wah (“TTW”), TGC’s eldest son (deceased). Mr Tan Tiong Hin (“TTH”), TGC’s second son (present director). TTL, TGC’s third son (deceased). Ms Tan Tiong Puan (“TTP”), TGC’s eldest daughter (deceased). Mr Tan Tiong Seng (“TTS”), TGC’s fourth son (present director). Ms Tan Tiong Kim (“TT Kim”), TGC’s second daughter (present director). Ms Tan Tiong Cher (“TTC”), TGC’s third daughter (present director). Mr Tan Tiong Khong (“TT Khong”), TGC’s fifth son (present director).

TTL’s family members, who are the respondents in this appeal, are as follows: Ms Koh Ai Gek (“KAG”), TTL’s wife. Mr Tan Weiyang (“TWY”), TTL’s third son. He is the second respondent in his representative capacity as the executor of TTL’s will, and the fifth respondent in his personal capacity. He represented the respondents in the trial below as well as the appeal before us. Mr Tan Wei Chieh (“TWC”), TTL’s second son and the third respondent. Mr Tan Wei Hsien (“TWH”), TTL’s eldest son and the fourth respondent. Ms Zhang Zhaoling (“ZZL”), TTL’s daughter-in-law and TWC’s wife.⁴

Background to the dispute

The Company was founded in 1960 by TGC and two of his nephews. By 1968, TGC bought out his nephews’ shares in the Company and installed his three eldest sons, TTW, TTH, and TTL as directors of the Company. TGC was at all material times the managing director of the Company.⁵

It is undisputed that in 1963, TGC and OBC purchased a property at Surin Lane, but decided to have it registered in TTW’s name.⁶ At that time, TTW was a university student.⁷ The Surin Lane property was TGC’s family home where TGC resided with his wife and children, until some of his children eventually moved out.

TTW subsequently got married on 21 March 1972. About four months later, the Company passed a resolution to acquire the Surin Lane property from TTW.⁸ The respondents contend that TGC decided to transfer the title of the Surin Lane property from TTW to the Company so that TTW’s wife would not be able to get any share in the property in the event of a divorce.⁹

TTL married KAG on 14 October 1975. 11 days later, on 25 October 1975, the Company passed a resolution to purchase the Property at $110,000.¹⁰ A 10 percent deposit for the purchase price was paid two days after the resolution was passed.¹¹ While the parties are in dispute as to the identity of the person who actually paid this deposit, either TGC or the Company, there is no assertion that TTL had paid any portion of the purchase price.

Legal completion of the Property took place on 7 February 1977.¹² The purchase of the Property was reflected in the Company’s financial statement for the year ending 31 December 1976, in the form of a $114,058 increase in the value of fixed assets under “Freehold land and building” over the previous year.¹³

The respondents contend that when TTL was given an offer to purchase the Property, he discussed it with TGC. TGC then told TTL that he would buy the Property for him, since TTL would be staying behind to handle the business while his siblings were studying abroad¹⁴ and that TGC had instructed TTL to register the Property in the name of the Company, so that KAG would not be able to get a share in the event of a divorce (“the oral representation”).¹⁵ The Company denies that the oral representation was ever made.

In or around 1980, TTL and KAG applied for a Housing Development Board (“HDB”) flat, for which they paid a deposit of $9,200 from KAG’s Central Provident Fund (“CPF”) account.¹⁶ KAG explained that they had not initially planned on buying a HDB flat. However, when TTL told her that the Property would be mortgaged to obtain financing for the Company, she felt it would be safer to have their own home in case the mortgagee bank foreclosed on the Property.¹⁷ Eventually, TTL and KAG withdrew their application for the HDB flat on 21 April 1986 by way of a letter to the HDB.¹⁸ The respondents contend that TTL and KAG did so because TGC had told them not to buy the flat, since they already owned a house ie, the Property.¹⁹ The Company disputes this, and contends instead that they had withdrawn their application either because they were short of funds, or because they did not like the location of the HDB flat.²⁰ It is undisputed that TTL and KAG never purchased any residential property of their own thereafter.

TTL and KAG used the Property as their family home from at least 1977 to the present.²¹ However, in the court below, the parties disputed whether TTL and his family had exclusive use of the Property. In particular, the Company contended that:²² TTW and his wife also resided at the Property; TTS and TTP ran a bakkwa (barbecued pork) business out of the enclosed metal shelter at the back of the Property; the Property was also used to store the Company’s goods as well as the goods from TTH’s other businesses. The Company no longer disputes the exclusive use of the Property by TTL and his family.

Over the years, various renovation and repair works were undertaken on the Property, such as the installation of sewerage pipes and the conversion of the garage into an additional bedroom. The respondents contend that the majority of these works were undertaken at TTL and KAG’s own expense.²³ The Company denies this, and contends instead that it had paid for most of the renovation, maintenance, and repair works.²⁴ However, it is undisputed that the property tax levied on the Property, as well as the annual premiums for the insurance policies for the Property were paid for by the Company²⁵ while TTL paid for the outgoings, such as the utilities.

Sometime in 2012, TTL contracted liver cancer. He made a will on 10 October 2012 bequeathing the Property absolutely to KAG, referring to it in the will as “my house”.²⁶

The respondents allege that 20 days later, on 30 October 2012, TTL became agitated after a visit by some of his siblings. He told his children that his siblings had refused to “return” the Property to him, and instead told him to “go and die quickly”.²⁷ None of the respondents witnessed this altercation. He then informed his children that he wished to make a statement before a commissioner for oaths and lodge a caveat against the Property. The SD was made later that evening outlining TTL’s version of events concerning the Property. Notably, the incident with his siblings which allegedly prompted TTL to make the SD was not referred to in the SD. The material...