Goh Nellie v Goh Lian Teck and Others

CourtHigh Court (Singapore)
Judgment Date22 November 2006
Docket NumberOriginating Summons No 950 of 2006
Date22 November 2006
Goh Nellie
Plaintiff
and
Goh Lian Teck and others
Defendant

[2006] SGHC 211

Sundaresh Menon JC

Originating Summons No 950 of 2006

High Court

Res judicata–Whether plaintiff's action should be dismissed on grounds of “cause of action estoppel”, “issue estoppel” and/or defence of abuse of process–Applicable principles–Succession and Wills–Construction–Plaintiff beneficiary under will seeking to sell property–Defendant beneficiary under will objecting to sale of property–Whether will containing clear indication that each beneficiary having right to veto sale of property–Whether court should exercise discretion to allow sale of property–Section 56 (1) Trustees Act (Cap 337, 2005 Rev Ed)

One Mdm Loh owned two properties (“No 59” and “No 61”). An apartment building was developed on No 59. Mdm Loh, with her family, stayed at No 61 until her death. Mdm Loh bequeathed No 59 and No 61, variously, to her ten children, her grandson and her daughter-in-law. These properties became the centre of a bitter dispute among the beneficiaries, in particular, the plaintiff (“Nellie”), the second defendant (“Lian Chyu”) and the fifth defendant (“Rosaline”).

Rosaline applied for a determination of her right to reside in No 61 (“OS 618/2005”) and an order was made that she could reside in No 61 rent-free as long “as she desired (until sale) and that it shall not be sold without [her] consent (in writing)”.

Subsequently, the majority of beneficiaries to No 61 expressed the desire to sell No 61 notwithstanding objections by Rosaline and three other beneficiaries. As a result of Rosaline's opposition to the sale of No 61, Nellie, in her capacity as administratrix of Mdm Loh's estate, applied to the High Court for an order pursuant to s 56 of the Trustees Act (Cap 337, 2005 Rev Ed) (“the Act”) sanctioning the sale of No 61. The application raised the questions of whether this issue had already been decided in OS 618/2005 and was hence res judicata; and whether the court should not allow the application as there was sufficient indication in the will that each of the beneficiaries had a right to veto the sale of No 61.

Held, dismissing the plaintiff's application:

(1) A court's powers under s 56 (1) of the Act in relation to the management and administration of trust property were limited by the express terms of the trust instrument. This was no more than a reflection of the time-honoured principle that it was not for the courts to rewrite a trust instrument save in very limited circumstances where recourse may be had to the court's inherent jurisdiction. It was clear that while s 56 (1) allowed a court the discretion to empower a trustee to perform an act that was not expressly authorised by the instrument, it could not empower him to perform an act that was expressly forbidden by it. Accordingly, the first task for a court faced with an application for it to exercise its powers under s 56 (1) of the Act was to construe the terms of the trust instrument in order to ascertain whether there was an express prohibition of the very act that the trustee wished, with the court's leave, to perform. It was only in the absence of any such prohibition that the court needed to assess the application on its merits: at [11] to [14].

(2) The umbrella doctrine of res judicata encompassed three conceptually distinct though interrelated principles. The first of these was known as “cause of action estoppel”, which prevented a party from asserting or denying as against the other party, the existence of a particular cause of action, the non-existence or existence of which had been determined by a court of competent jurisdiction in previous litigation between the same parties: at [17].

(3) If the previous decision did not determine the cause of action sued on in the later proceedings, that decision might still be invoked as having determined, as an essential step in its reasoning, an issue that proved relevant in the later case and further consideration of that issue might be foreclosed. This was commonly known as “issue estoppel”. To establish an issue estoppel: (a) there had to be a final and conclusive judgment on the merits; (b) that judgment had to be of a court of competent jurisdiction; (c) there had to be identity between the parties to the two actions that were being compared; and (d) there had to be an identity of subject matter in the two proceedings: at [18] and [26].

(4) In some cases, where neither cause of action estoppel nor issue estoppel were available, a defendant might rely on “the extended doctrine of res judicata” or, as it was more popularly known, the defence of abuse of process. This was distinct from cause of action and issue estoppels. Cause of action estoppel and issue estoppel were absolute bars to relitigation, save in the case of the latter where there was a limited exception in “special cases” or “special circumstances”. Abuse of process was not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter: at [19]to [24].

(5) It was important not to equate finality for the purposes of res judicata with the vexed issue of finality for the purposes of an appeal. The distinction between “final” and “interlocutory” decisions was not relevant to the doctrine of finality in respect of res judicata. Finality for the purposes of res judicata simply referred to a declaration or determination of a party's liability and/or his rights or obligations leaving nothing else to be judicially determined. Whether the decision in question was a final and conclusive judgment on the merits could be ascertained from the intention of the judge as gathered from the relevant documents filed, the order made and the notes of any evidence taken or arguments made. Accordingly, there could be no doubt that the order made in OS 618/2005 was a final determination of the right of Rosaline to reside at No 61: at [28] and [29].

(6) The courts had not taken a narrow view of the requirement of identity between the parties involved in the previous litigation and in the later proceedings. It was clear that the principal players in OS 618/2005 - Rosaline and the administrator of the estate (representing the beneficiaries) - were effectively identical to the parties in the subject application: at [32] and [33].

(7) The requirement that the subject matter of both proceedings be identical encapsulated a number of discrete conceptual strands. First, the issues had to be identical in the sense that the prior decision must have traversed the same ground as the subsequent proceeding and the facts and circumstances giving rise to the earlier decision must not have changed or was incapable of change. Second, the previous determination in question must have been fundamental and not merely collateral to the previous decision so that the decision could not stand without that determination. As to whether an issue was fundamental or collateral, the question had to be approached from a commonsensical perspective, balancing between the important public interest in securing finality and in ensuring that the same issues were not repeatedly litigated on the one hand and on the other, the private interest in a litigant not being foreclosed from arguing an issue which in substance was not the central issue decided by a previous court: at [34] to [37].

(8) Where a litigant raised a point but either conceded or failed to argue it, issue estoppel could still arise in respect of the point conceded or not argued. Whether subsequent litigation was foreclosed in such circumstances would depend also on the applicability of the defence of abuse of process. The relevant principle was that where the issue had in fact been directly covered by the earlier decision, it would be caught either by cause of action estoppel or issue estoppel. As one moved further away from what was directly covered by the earlier decision, then the relevant doctrine became the defence of abuse of process rather than issue estoppel. Thus, where the issue ought to have been raised and was not, it could nonetheless amount to an abuse of process subsequently to litigate that same issue: at [38] to [42].

(9) Whether there was an abuse of process depended on all the circumstances of the case, including: (a) whether the later proceedings in substance was nothing more than a collateral attack upon the previous decision; (b) whether there was fresh evidence that warranted re-litigation; (c) whether there were bona fide reasons why an issue that ought to have been raised in the earlier action was not; and (d) whether there were some other special circumstances that justified allowing the case to proceed. In determining whether the ambient circumstances of the case gave rise to an abuse of process, the court should not adopt an inflexible or unyielding attitude but should remain guided by the balance to be found in the tension between the demands of ensuring that a litigant who had a genuine claim was allowed to press his case in court and recognising that there was a point beyond which repeated litigation would be unduly oppressive to the defendant. The inquiry was directed not at the theoretical possibility that the issue raised in the later proceedings could conceivably have been taken in the earlier, but rather at whether having regard to the substance and reality of the earlier action, it reasonably ought to have been: at [51] to [53].

(10) The order made in OS 618/2005 related only to Rosaline's right of residence at No 61 and was not similar or identical to the issue of whether Rosaline had a right of veto over the sale of No 61, which was at issue in the present application. The latter question was not in fact argued in the earlier proceedings and there was no reason for concluding that it might reasonably have...

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