Ko Teck Siang v Low Fong Mei and another and other actions

• Jurisdiction: Singapore
• Judgment Date: 08 January 1992
• Date: 08 January 1992
• Docket Number: Civil Appeals Nos 46, 47, 48, 50 and 51 of 1989
• Court: Court of Appeal (Singapore)

Ko Teck Siang and another

Plaintiff

and

Low Fong Mei and another and other actions

Defendant

[1992] SGCA 3

Yong Pung How CJ

,

Goh Joon Seng J

and

S Rajendran J

Civil Appeals Nos 46, 47, 48, 50 and 51 of 1989

Court of Appeal

Civil Procedure–Pleadings–Striking out–Statements of claim–Setting down for trial occurred long time ago–Applicable factors in exercising discretion to strike out–Whether claims covered by separate legally-binding arrangement–Contract–Contractual terms–Rules of construction–Release provision–Intention and knowledge of person purporting to release

The first respondent Low was the widow of one of the legatees under the will of Ko Teck Kin (“KTK”). Under the will, KTK appointed his widow, Chang, and his brother, the appellant Ko Teck Siang (“KTS”), as the executors and trustees of the will. The second respondent was the daughter of the said legatee. These appeals arise from applications made by KTS and Chang under O 18 r 19 of the Rules of the Supreme Court 1970 to strike out the statements of claim in all the various suits filed against them on the grounds that they disclosed no reasonable cause of action, were frivolous and vexatious and were otherwise an abuse of the process of court. L P Thean J decided not to strike out the various statements of claim (see [1989] 1 SLR (R) 514) and they appealed.

KTK and Chang argued that the respondents' claims arose via the said legatee's estate due from KTK's estate and such claims had been finally settled by way of a deed of family arrangement dated 2 February 1981 (“the deed”) which was embodied in a court order on 3 February 1981. The appellants argued that by virtue of the deed to which Low was a party, they had been released from all claims and actions arising from KTK's estate and the administration thereof. The respondents argued that as a matter of construction of the deed, their claims were not covered under the deed or, in the alternative, that equity restricted the scope of the release to matters within the releasor's (Low's) knowledge as to exclude the present claims.

Held, dismissing the appeals:

(1) The court's discretion under O 18 r 19 to strike out was to be exercised sparingly, and only in very exceptional cases. On the evidence, the High Court judge did not exercise his discretion wrongly. Even if the appellants could show a wrongful exercise of discretion by the judge, it did not follow that they succeeded; the appellate court would still have to exercise its discretion in deciding whether or not striking out was appropriate: at [16] and [17].

(2) The law applicable was straightforward. Generally speaking, in the construction of an instrument, the recitals were subordinate to the operative part. However, when a release was to be interpreted, different considerations applied and the general words of a release might be restrained by the particular recital. Furthermore, from theLyall v Edwards line of cases, it was clear that the general words of a release were to be construed with what the releasor intended. The intention of the parties was far from clearly expressed in the deed. Low was the releasor in the deed and her knowledge was vital but at this stage of the proceedings there was nothing to show the court that she had the requisite knowledge. The court therefore would not exercise its discretion under O 18 r 19 to strike out the statements of claim: at [34], [56] to [60], and [63].

Cloutte v Storey [1911] 1 Ch 18 (refd)

Cross v Earl Howe (1892) 62 LJ Ch 342 (refd)

Grant v John Grant & Sons Pty Ltd [1964] Arg LR 517 (refd)

Jonesco v Beard [1930] AC 298 (refd)

Law v Law [1905] 1 Ch 140; [1904-7] All ER Rep 526 (refd)

Lindo v Lindo (1839) 1 Beav 496; 48 ER 1032 (refd)

Lyall v Edwards (1861) 6 H & N 337; 158 ER 139 (folld)

Moore v Weston (1871) 25 LT 542 (refd)

Nautamix BV v Jenkins of Retford Ltd [1975] FSR 385 (distd)

Payler v Homersham (1815) 4 M & S 423; 105 ER 890 (folld)

Ramsden v Hylton (1751) 2 Ves Sen 304; 28 ER 196 (folld)

Rose v Gossman (1967) 111 SJ 17 (refd)

Salkeld v Vernon (1758) 1 Eden 64; 28 ER 608 (refd)

Turner v Turner (1880) 14 Ch D 829 (refd)

Urquhart v Macpherson (1877-78) 3 App Cas 831 (refd)

Wenlock v Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871 (folld)

Rules of the Supreme Court1970, TheO 18r 19

Leolin Price QC with Tang Liang Hong and Siaw Kheng Boon (Tang & Co) for the appellant/first defendant in Civil Appeal Nos 46, 47 and 48 of 1989

M Sivakumar (Arthur Loke & Partners) for the appellant/second defendant in Civil Appeal Nos 50 and 51 of 1989

Jules Sher QC and Kelvin Chia (Chor Pee & Co) for the respondents/plaintiffs in all five appeals.

S Rajendran J

(delivering the grounds of judgment of the court):

1 These appeals arise from applications made by Ko Teck Siang and Chang Jih Hao under O 18 r 19 of the Rules of the Supreme Court 1970 to strike out the statements of claim in all the various suits on the grounds that: they did not disclose a reasonable cause of action; were frivolous and vexatious and were otherwise an abuse of the process of court. They are appeals from the decision of Thean J who on 4 May 1989 decided not to strike out the various statements of claim. Since the judgment of Thean J, the three suits have been consolidated. For ease of reference, we shall refer to the parties by name.

2 The facts are briefly as follows. On 30 March 1966, Ko Teck Kin (“the testator”) made a will (“the will”) and appointed his wife Chang Jih Hao (“Mdm Chang”), and his younger brother Ko Teck Siang (“Teck Siang”) to be the executors and trustees of the will. On 6 April 1966, the testator made a codicil to the will.

3 On 9 April 1966, the testator died. Clause 12 of the will provided that the testator's shares and interest in Ho Chiang Shipping Co Ltd, Ko Rubber Plantation Ltd, Kah Hin Rubber Co Ltd, Chin Cheng Realty Ltd all of Singapore (“Singapore companies”) and Sun Hing Realty Ltd (“Sun Hing”) of Hong Kong, be divided, inter alia: ⁵⁰/₂₁₀th equal shares for Mdm Chang;²⁰/₂₁₀th equal shares for Ko Oon Kay (“Oon Kay”); and³⁰/₂₁₀th equal shares for Teck Siang. Oon Kay, who was a son of the testator, died on 4 March 1971 survived by his widow Low Fong Mei (“Fong Mei”) and daughter Ko Lee Lian. Letters of administration were granted to Fong Mei and Oon Kay's brother Ko Oon Soon (“Oon Soon”). Fong Mei has since remarried.

4 Disputes between Mdm Chang and Teck Siang arose, and between 28 August 1979 and 29 September 1979 two originating summonses and 12 suits were instituted in the High Court largely between Mdm Chang and Teck Siang. We need only to refer to Originating Summons No 359 of 1979 where Teck Siang, as the executor and trustee of the estate, took out an application against Mdm Chang as the executrix of the estate, and joined all the other legatees of the bequest under cl 12 of the will, and sought a determination of the construction of cll 12 and 13 of the will. Oon Kay was named party to this originating summons as follows: “Ko Oon Kay … or by their representatives to be appointed by the court”. The originating summons did not proceed to a hearing.

5 The parties came to a settlement in all the various suits, and on 2 February 1981, a deed of family arrangement (“the deed”) was made. Fong Mei as co-administrator of the estate of Oon Kay was a party to this deed, and the deed was embodied in an order of court on 3 February 1981. On 2 February 1981, memoranda and declarations of trust were also executed by Teck Siang, Ko Seng Gie (“Seng Gie”) and Ko Chuan Seng (“Chuan Seng”) and shares of the various companies were transferred to the beneficiaries of the trusts by way of gift. Seng Gie and Chuan Seng were the testator's cousin and half brother respectively. The estate of Oon Kay was not a beneficiary under these memoranda and declarations of trust. These memoranda were relied on by Mr Sher acting for Fong Mei as a side arrangement indicative of the existence of a secret trust. Though at the risk of a certain degree of repetition of the learned judge's judgment, we will set out the development of litigation between the parties which provides the tortuous surrounding circumstances and context within which we have dismissed the appeals.

6 On 8 April 1983, Fong Mei and her daughter commenced proceedings in Suit No 1613 of 1983 (Civil Appeal No 46 of 1989) (“first secret trust action”) against Teck Siang, Seng Gie, Chuan Seng and Oon Soon. The claim against Teck Siang, Seng Gie and Chuan Seng was for specific sums of money alleged to be due from them respectively. The basis of Fong Mei's claim was that the shares in the Singapore companies and in Sun Hing were, during the testator's lifetime, held in part by the testator and in part by other registered shareholders in trust for the testator and his relatives. By reason of the trusts created and pursuant to cl 12 of the will, the estate of Oon Kay was entitled to ²⁰/₂₁₀of all the shares and not just those registered in the testator's name. By an agreement in writing dated 30 June 1981, Teck Siang, Mdm Chang, Seng Gie, Chuan Seng and others had sold to Genting Bhd all their respective shares in Kah Hin, Chin Cheng and Ko Rubber. Fong Mei claimed that Teck Siang, Seng Gie and Chuan Seng received the consideration under this sale agreement in trust, and pursuant to cl 12 of the will, Fong Mei was entitled to sums representing their entitlements to those shares, claiming: RM6,743,318.27 from Teck Siang; RM266,618.35 from Seng Gie; and RM266,618.35 from Chuan Seng.

7 On 23 April 1983, Oon Soon who was the fourth defendant in the first secret trust action applied to be struck out. On 17 May 1983, further and better particulars of the statement of claim were filed. On 1 July 1983, Seng Gie and Chuan Seng entered appearance. After Oon Soon was struck out as the fourth defendant on 18 July 1983, Fong Mei appealed on 21 July 1983. This appeal was withdrawn on 24 October...