Kay Swee Pin v Ng Kong Yeam

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 20 September 2019
• Neutral Citation: [2019] SGHC 223
• Plaintiff Counsel: Clement Ong Ziying and Joni Khoo Shufen (Damodara Hazra LLP)
• Docket Number: Suit No 643 of 2018
• Date: 20 September 2019
• Hearing Date: 06 August 2019,13 September 2019
• Subject Matter: Unjust enrichment,Necessity,Legal compulsion,Restitution
• Published date: 25 September 2019
• Defendant Counsel: Luo Ling Ling, Nandhu and Timothy Yeo Zhi Wen (RHT Law Taylor Wessing LLP)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 223
• Year: 2019

Choo Han Teck J:

Mdm Kay Swee Pin (“Kay”) filed this suit against her former partner, Mr Ng Kong Yeam (“Ng”), for reimbursement of money that she paid on his behalf. As Ng is non compos mentis, his son Mr Ng Chun San, also known as Gabriel (“Gabriel”), appeared as his litigation representative.

Kay claims she should be reimbursed for two items: first, a sum of S$36,792.98 that she paid to the Inland Revenue Authority of Singapore (“IRAS”) on behalf of Ng for his 2013 taxes; second, legal fees amounting to HK$1,416,395 in relation to a Hong Kong lawsuit that Ng initiated in December 2011, for which she was appointed his “next friend”, the equivalent of a litigation representative, in August 2013.

Ms Luo Ling Ling, counsel for Ng, submits that there is insufficient evidence that Kay had paid the IRAS tax bill and in any event, she did so voluntarily. As for the legal fees, Ms Luo submits that there was no evidence that Kay paid the fees or that Kay had incurred the expenses herself.

Ng’s IRAS Notice of Assessment dated 10 July 2013 indicated that tax of S$36,792.98 was due on 10 August 2013. Kay produced an extract of her bank statements showing a cheque withdrawal of S$36,792.98 on 6 August 2013. After the trial, Mr Clement Ong, counsel for Kay, sought leave to adduce a copy of a cheque for S$36,792.98 written by Kay in favour of IRAS. I granted leave to produce this.

The evidence shows that Kay paid Ng’s taxes on his behalf. The cheque drawn from Kay’s account specifies the same amount due in the Notice of Assessment, down to the exact cent. Ng’s taxes were paid as IRAS never pursued the matter, and Gabriel has no knowledge as to who paid for it. The question then is whether there is a legal basis for Kay to be reimbursed.

Mr Ong submits that Kay is entitled to the sum on the basis of “indebtedness/reimbursement”. Reimbursement is not a freestanding claim, but a remedy aimed at preventing the unjust enrichment of a defendant (SHC Capital Ltd v NTUC Income Insurance Co-operative Ltd [2010] 4 SLR 965 at [38]). Mr Ong also submits that Kay is entitled to the sum on the basis of unjust enrichment. A claim in unjust enrichment requires (a) the enrichment of the defendant, (b) at the expense of the plaintiff, and (c) circumstances which make the enrichment unjust (Benzline Auto Pte Ltd v Supercars Lorinser Pte Ltd and another [2018] 1 SLR 239 at [45]). Here, the key dispute is over the third element, and Kay must show that she had acted out of legal compulsion or necessity in a way that renders Ng’s enrichment unjust.

Kay did not tell Ng’s family about the IRAS Notice and also admitted in cross-examination that there was no legal obligation on her part to pay Ng’s taxes. She insisted that she had acted to protect Ng’s interests. At the material time, Kay and her daughter were Ng’s donees under a Lasting Power of Attorney dated 28 December 2011 (“the LPA”). The LPA was subsequently cancelled on 31 October 2014, when it was discovered that Kay had forged Ng’s signature on the document.

Legal compulsion was addressed in Cosmic Insurance Corp Ltd v Ong Kah Hoe (trading as Ong Kah Hoe Industrial Supplies) and another [1997] 3 SLR(R) 1 at [30], where the High Court held that for a plaintiff to recover any payment that discharges a defendant’s debt to a third party on the grounds of legal compulsion, the plaintiff must show that: he has been compelled or was compellable by law to make the payment; he did not officiously expose himself to the liability to make the payment; and his payment discharged a liability of the defendant.

In the present case, Kay was not compellable by law because, as she conceded, IRAS had no claim against her. Kay may have been Ng’s donee under the LPA, but she had forged Ng’s signature on the document.

Alternatively, Mr Ong submits that it was necessary for Kay to pay Ng’s taxes. The common law does not, outside of cases involving emergencies, permit recovery for expenses incurred in the unsolicited management of the affairs of another (Higgins, Danial Patrick v Mulacek, Philippe Emanuel and others and another suit [2016] 5 SLR 848 at [59]). There must be an element of urgency in the situation.

I find that there was urgency in the present case. The cheque in question was dated 6 August 2013, merely four days before the taxes were due. Although...