Kua Swee Lin v Ho Kim Yan

• Jurisdiction: Singapore
• Judge: Hri Kumar Nair J
• Judgment Date: 25 April 2023
• Docket Number: Originating Application 18 of 2023
• Court: High Court (Singapore)

Kua Swee Lin

and

Ho Kim Yan and another

[2023] SGHC 108

Hri Kumar Nair J

Originating Application 18 of 2023

General Division of the High Court

Abuse of Process — Collateral purpose — Applicant and second respondent allegedly delaying proceedings to drag out matrimonial proceedings and exhaust first respondent financially — Whether applicant and second respondent acted in abuse of process — Whether application should be struck out

Evidence — Principles — Parties bringing applications without applying for cross-examination — Parties narrating different accounts while presenting limited or no documentary or corroborative evidence — Whether only undisputed facts should be considered — Sections 103 and 105 Evidence Act (Cap 97, 1997 Rev Ed)

Trusts — Constructive trusts — Resulting trusts — Second respondent allegedly using funds from mother to jointly purchase property with friend — Whether second respondent held proceeds from sale of property on trust — Section 7(1) Civil Law Act (Cap 43, 1999 Rev Ed)

Trusts — Constructive trusts — Resulting trusts — Sole owner of flat adding second respondent as joint tenant — Second respondent adding first respondent as joint tenant — Whether sole owner intended to gift share of flat to second respondent — Whether second respondent intended to gift share of flat to first respondent — Whether respondents held flat on trust

Held, dismissing the application and the cross-claim:

(1) The application was not brought in abuse of process as the evidence did not show any substantial delay or that the conduct of the applicant and second respondent was calculated to unfairly prejudice the first respondent: at [27].

(2) Where the party with the legal burden of proof adduced sufficient evidence such that the evidential burden shifted to the other party, the failure of the latter to adduce contrary evidence or to undermine the former's evidence via cross-examination could result in the former successfully discharging its legal burden of proof: at [29] and [33].

(3) All the facts and circumstances suggested that the second respondent did not intend to give the first respondent a half share of the Flat. The first respondent's name was included because the second respondent believed that he was required to include a family member as a joint owner of the Flat to form a family nucleus, and no other family members were eligible for this purpose. The first respondent's reliance on the HDB lease document as evidence of her ownership was problematic as the respondents had also made untruthful declarations to the HDB in the HDB lease document: at [66].

(4) Further, the second respondent did not regard the Flat as his, and therefore could not have intended to give the first respondent a share of the Flat: at [67] and [83].

(5) The facts and circumstances surrounding Mr Kua adding the second respondent as a joint tenant is not consistent with him intending to give the Flat to the second respondent: Mr Kua did not express any intention, and had no reason, to give the Flat to the second respondent to the exclusion of his other children; Mr Kua's intention was to protect Mdm Ng's interests and the second respondent was the only family member whose name could be added to the lease of the Flat to achieve this purpose: at [70] and [85].

(6) Accordingly, the respondents held the Flat on trust for Mr Kua's estate: at [107].

(7) There was insufficient evidence that the purchase of the GMP had been funded with Mdm Ng's moneys. The second respondent therefore did not hold the GMP Proceeds, or any part therefore, on trust for Mdm Ng: at [95] and [106].

Case(s) referred to

Britestone Pte Ltd v Smith & Associates Far East Ltd[2007] 4 SLR(R) 855; [2007] 4 SLR 855 (folld)

Cooperatieve Centrale Raiffeisen-Boerenleenbank BA v Motorola Electronics Pte Ltd[2011] 2 SLR 63 (folld)

Gabriel Peter & Partners v Wee Chong Jin[1997] 3 SLR(R) 649; [1998] 1 SLR 374 (folld)

Lee Kuan Yew v Tang Liang Hong[1999] 1 SLR(R) 533; [1999] 3 SLR 630 (folld)

Lim Choo Hin v Lim Sai Ing Peggy[2022] 1 SLR 873 (folld)

Low Yin Ni v Tay Yuan Wei Jaycie[2020] SGCA 58 (refd)

Ong Chai Soon v Ong Chai Koon[2022] SGCA 36 (distd)

Pathfinder Strategic Credit LP v Empire Capital Resources Pte Ltd[2019] 2 SLR 77 (folld)

Registrar of Vehicles v Komoco Motors Pte Ltd[2008] 3 SLR(R) 340; [2008] 3 SLR 340 (refd)

TMT Asia Ltd v BHP Billiton Marketing AG (Singapore Branch)[2019] 2 SLR 710 (folld)

The applicant, Kua Swee Lin, acting as deputy for his mother, Ng Bee Ngoah (“Mdm Ng”), sought, inter alia, declarations that the second respondent, his brother, Kua Swee Hor, and the first respondent, the said brother's ex-wife, Ho Kim Yan, held on trust for Mdm Ng: (a) a Housing and Development Board (“HDB”) flat (the “Flat”); and (b) 50% of the net proceeds, amounting to a sum of $237,822.74 (the “GMP Proceeds”), from the sale of a property in Golden Mile Tower (the “GMP”).

The Flat was in the names of the respondents as joint tenants. In 1978, the Flat had been acquired in the sole name of the late Kua Oh Kim (“Mr Kua”) (Mdm Ng's husband and the applicant and second respondent's father). After Mr Kua became ill, he included the second respondent's name as a joint tenant. A year after Mr Kua passed away, the second respondent included the first respondent as a joint tenant of the Flat.

The second respondent acquired the GMP together with his friend, Gu Pei Hua (“Gu”), allegedly with funds from Mdm Ng. The second respondent later sold his half share in the GMP to Gu.

The applicant and the second respondent maintained that: (a) the Flat was held by the respondents on a resulting or constructive trust for Mdm Ng; and (b) Mdm Ng had largely funded the purchase of the second respondent's share in the GMP on the understanding that the second respondent would hold that share, and the proceeds of its sale, on trust for Mdm Ng.

The first respondent denied both said trusts, claiming that: (a) Mr Kua had gifted the Flat to the second respondent, and the second respondent had thereafter gifted a half share to her; and (b) the GMP Proceeds belonged to the second respondent absolutely and were matrimonial property. She filed a counterclaim for an order that the second respondent buy her share in the Flat.

The first respondent applied to strike out the application on the basis that it was an abuse of process. She also submitted that since the application had been filed via an originating application and none of the parties had applied for cross-examination, the court should decide the issues on only the undisputed facts.

Legislation referred to

Civil Law Act (Cap 43, 1999 Rev Ed) s 7(1)

Evidence Act (Cap 97, 1997 Rev Ed) ss 103, 105

Mental Capacity Act 2008 (2020 Rev Ed)

Kasturibai Manickam and Samuel Chong (East Asia Law Corporation) for the applicant;

Goh Hui Hua and Ezra Wong De Wei (Covenant Chambers LLC) for the first respondent;

Mathew Moncy (Mathew Chew & Chelliah) for the second respondent.

25 April 2023

Judgment reserved.

Hri Kumar Nair J:

Introduction

1 Mr Kua Oh Kim (“Mr Kua”) and his wife, Mdm Ng Bee Ngoah (“Mdm Ng”) migrated to Singapore from China many years ago. Their lives embodied the traditions, values and success of our pioneer generation. They became Singapore citizens, started a small business, bought a Housing and Development Board (“HDB”) flat and raised five children. Mr Kua passed away in 2012 and Mdm Ng sadly now suffers from dementia. Unfortunately, their children are embroiled in a dispute with their daughter-in-law over the ownership of assets which the children say rightly belong to Mdm Ng.

2 Mr Kua Swee Lin (“Lin”), acting as deputy for his mother, Mdm Ng, seeks, inter alia, declarations that the respondents, his brother Mr Kua Swee Hor (“Hor”) and Hor's ex-wife, Ms Ho Kim Yan (“Ho”), hold on trust for Mdm Ng: (a) Blk 99 Bedok North Avenue 4 #21-1906, Singapore 460099 (the “Flat”); and (b) 50% of the net proceeds, amounting to a sum of $237,822.74 (the “GMP Proceeds”), from the sale of 6001 Beach Road #02-54 Golden Mile Tower, Singapore 199589 (the “GMP”).

3 The Flat is currently in the names of Hor and Ho as joint tenants. In 1978, the Flat was acquired in Mr Kua's sole name. In 2004, he included Hor's name as a joint tenant. A year after Mr Kua passed away in 2012, Hor included Ho as a joint tenant.

4 Hor acquired the GMP together with his friend, Mr Gu Pei Hua (“Gu”), on 5 November 2013. In August 2022, Hor sold his half share in the GMP to Gu and the GMP Proceeds are currently held by Hor's solicitors in the conveyance.

5 Lin and Hor maintain that the Flat is held by Hor and Ho on a resulting or constructive trust for Mdm Ng. Ho denies the said trust. It is her case that Mr Kua had gifted the Flat to Hor, and Hor had thereafter gifted it to her. She has filed a counterclaim for an order that Hor buys her share in the Flat. Lin and Hor also claim that Mdm Ng had largely funded the purchase of Hor's share in the GMP on the understanding that Hor would hold that share, and the proceeds of its sale, on trust for Mdm Ng. Ho similarly denies that trust – she claims that the GMP Proceeds belong to Hor absolutely and are matrimonial property that should be dealt with in their ongoing matrimonial proceedings. Ho claims that Lin, Hor and their siblings have contrived both trusts to deprive her of her rightful share in these assets now that her marriage with Hor has broken down.

6 I dismiss all the parties' claims with respect to the Flat, and Lin and Hor's claims of a trust over the GMP Proceeds.

The parties

7 Mdm Ng and Mr Kua had five children, who are, from the eldest to the youngest: Ms Kua Swee Hoon (“Hoon”), Lin, Mr Kua Swee Leong (“Leong”), Ms Kua Swee Hong (“Hong”) and Hor (collectively but excluding Leong, the “Children”).

8 Ho and Hor married in 1996. They have three children. Ho initiated divorce proceedings in May 2021 and interim judgment was granted on 9...