Lee Hiok Tng (in her personal capacity) v Lee Hiok Tng and another (executors and trustees fo the estate of Lee Wee Nam, deceased) and Others

JudgeChao Hick Tin JA
Judgment Date18 April 2001
Neutral Citation[2001] SGCA 26
Citation[2001] SGCA 26
Defendant CounselLim Kian Leng Malcolm (Tan & Lim)
Published date19 September 2003
Plaintiff CounselFoo Say Tun and Yang Tze Ching Valerie (Wee, Tay & Lim)
Date18 April 2001
Docket NumberCivil Appeal No 135 of 2000
CourtCourt of Appeal (Singapore)
Subject MatterWhether res judicata in strict sense applies to estop raising of reimbursement question,Avoidance,Whether similar shift in judicial attitude towards presumption in context of father and son,Presumption of advancement,Beneficiaries of estate objecting issues already decided upon in earlier action,Res Judicata,Whether res judicata in wider sense applies to estop raising of gift question,Action against executors of estate for deceased's breaches of trust in respect of partnership assets,Court declaring shares belonged to partnership and not father personally,Son claiming father transfering shares to him as gift,Application of presumption in context of husband and wife diminishing in recent years,Proof of evidence,Gifts,Son seeking reimbursement from estate for expenditure to take up rights issues in respect of shares,Whether condition of identity of parties satisfied,Whether gift effective to convey portion of shares beneficially belonging to father,Court deciding certain shares belonged to partnership and not deceased personally -Subsequent action by executors/sons of deceased to seek court's determination of two questions,Whether gift valid,Son claiming deceased transfering shares to him as gift,Presumptions,Evidence

death of Kheng. The judgment was upheld on appeal by the Court of Appeal ([1993] 3 SLR 148) and finally by the Privy Council ([1996] 2 SLR 297).

The issue in the present appeal concerns only the one lot of 27 Overseas Union Bank (OUB) shares. At the trial of the consolidated action, it was established, that all the movable properties (including stocks and shares) in Singapore belonging to the Kongsi were registered in the name of Nam.

However, on 30 April 1962, Nam purported to give the 27 shares to Tng as a gift by way of transfer. Following the transfer, Tng had taken up and paid for the rights issues originating from the 27 shares. OUB had also issued bonus shares. Through the splitting of the par value of each share from $100 to $1, and through the declaration of bonus shares and rights issue over the years, the 27 shares had become 125,564 shares, each of $1 par value.

Based on the intention on the part of Nam to give Tng the 27 shares, Tng advanced the argument that the appropriate portion of the 27 shares which beneficially belonged to Nam (by virtue of his 8/21 shareholding in the Kongsi and a share in STTCK) should be treated as having been given to Tng.

In April 1999, Tng and Woon, in their capacity as the executors and trustees of Nam, instituted an Originating Summons to seek the court's determination of two questions: (a) the rights of the parties with respect to the gift of the 27 shares from Nam to on 30 April 1962 and more particularly the portion of the gift that Nam held a beneficial interest through the Kongsi and STTCK (the gift question); (b) whether Tng is entitled to an indemnity and/or contribution in respect of all costs and expenses incurred by him pertaining to the 27 shares from the estate of Nam (the reimbursement question).

The defendant was Tng, in his personal capacity. Three beneficiaries of the estate of Nam intervened in the proceedings, and objected to the application on the ground that it amounts to an abuse of the process of court as the issues had already been decided upon by the High Court in the consolidated action. As the High Court had ordered that the executors and trustees of the estate of Nam restore, inter alia, the 27 shares back to the Kongsi, the three interveners submitted that the doctrine of res judicata should apply to restrain this re-litigation. For this Originating Summons, the High Court agreed that the doctrine of res judicata in the wider sense applied in the circumstances and ruled that Tng was precluded from re-litigating the issues sought.

Tng appealed, in his personal capacity, that in relation to the gift question two issues be addressed: (a) whether the gift from Nam to Tng of the 27 shares, which belonged to the Kongsi, were effective to convey to Tng the portion of those 27 shares owned by Nam through his interest in the Kongsi; and (b) whether the transfer of the 27 shares by Nam to Tng raises the presumption of advancement.

As to costs, the interveners, in their case, challenged that the High Court was wrong in not granting costs to Tng and Woon in their representative capacity. The interveners contended that, the costs of Tng and Woon in their representative capacity, should be paid by Tng personally as the proceeding was brought by Tng pursuant to his personal interest. Further, the effect of the order that there be no order on costs in favour of Tng and Woon in their representative capacity would mean that such costs would have to be borne ultimately by the beneficiaries of the estate. However, the interveners did not file any notice of appeal against such order of costs, and merely stated their challenges in their Case and submission.

Held

, dismissing the appeal

(1) The true basis for the doctrine of res judicata in the wider sense is to be found in the concept of abuse of process of the court. It is not in the public interest that in relation to a single matter there could be multiplicity of proceedings (see 22-25); Henderson v Henderson [1843] All ER 378, Talbot v Berkshire County Council [1994] QB 290 at 296, Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Anor [1975] AC 581, Ng Chee Chong v Toh Kouw [1999] 4 SLR 45, Ching Mun Fong v Liu Cho Chit [2000] 1 SLR 51, Greenhalgh v Mallard [1947] 2 All ER 255 at 257 followed.

(2) However, in determining whether a case falls within the scope of res judicata in the wider sense, great care should be exercised as it would amount to shutting out a subject of litigation (see 26); Ng Chee Chong v Toh Kouw [1999] 4 SLR 45, Lawlor v Gray [1984] 3 All ER 345 at 352 followed.

(3) As to the gift question, for the application of the doctrine of res judicata, the condition of the similar identity of the parties was fulfilled. As to the condition of the similar identity of the subject matter, the doctrine of res judicata in the strict sense cannot apply. The issues which Tng now in his personal capacity wishes to put before the court were clearly not before the court in the consolidated action (see 28-30).

(4) As to the gift question, the doctrine of res judicata in the wider sense does not apply, as it concerns only the beneficiaries of the estate of Nam. It would not be appropriate to raise it in the consolidated action (see 31).

(5) When Nam transferred the 27 shares to Tng, Nam was under the impression that the 27 shares were his beneficially. With the 1992 High Court judgment declaring that the 27 shares did not belong to Nam but to the Kongsi, and that Nam acted in breach of trust when he transferred the 27 shares to Tng, the 27 shares were not Nams to give to Tng. As it was Nams intention to give away all the 27 shares, the court could not infer from that that Nam would also have the intention to give away to Tng only that part which beneficially belonged to Nam (see 34-35).

(6) For there to be a gift, two elements must be present: the intent to give and the precise subject matter to be given, to be followed by proper conveyance. Here, both the elements are missing (see 35).

(7) As to the reimbursement question, the 1992 High Court judgment had made an order that an account be taken of all bonus and rights issues which had been declared in respect of the 27 shares and all moneys expended to take up the shares. The doctrine of res judicata in the strict sense applied to estop Tng from pursuing the matter against the estate of Nam. In any event, there is no basis upon which Tng could make a claim against the estate of Nam on account of expenditures incurred on behalf of the Kongsi. Further, there is no evidence that Tng had expended his own personal resources to take up the rights issues of the 27 shares (see 42-44).

(8) As to costs, as the interveners had raised the defence of the doctrine of res judicata in relation to the gift question, and failed, they should thus be given only costs (see 45).

(9) With regard to the costs of Tng and Woon in their representative capacity, as the interveners have not filed any notice of appeal against the order of costs, preceded by an application for leave as required by s 34(2)(b) of the Supreme Court of Judicature Act, the court was unable to consider their contentions. However, for this appeal, Tng and Woon, as executors and trustees of the estate of Nam are entitled to the costs thereof, to be paid by Tng personally (see 46-47).

Per curiam

In the context of husband and wife, the current approach is to treat the presumption of advancement as an evidential instrument of last resort where there is no direct evidence as to the intention of the parties, rather than as an oft-applied rule of the thumb. However, the court left open the question of whether the presumption of advancement in the context of father and son has similarly been weakened, and thus is readily rebutted by comparatively slight evidence (see 36-37 ) Teo Siew Har v Lee Kuan Yew [1999] 4 SLR 560, Pettitt v Pettitt [1970] AC 777 followed, Shephard v Cartwright [1955] AC 431 and McGrath v Wallis [1995] 2 FLR 114 referred.

Case(s) referred to

Ching Mun Fong v Liu Cho Chit

[2000] 1 SLR 51 (folld)

Greenhalgh v Mallard

[1947] 2 All ER 255 at 257 (folld)

Henderson v Henderson

[1843] All ER 378 (folld)

Lawlor v Gray

[1984] 3 All ER 345 at 352 (folld)

McGrath v Wallis

[1995] 2 FLR 114 (refd)

Ng Chee Chong v Toh Kouw

[1999] 4 SLR 45 (folld)

Pettitt v Pettitt

[1970] AC 777 (folld)

Shephard v Cartwright

[1955] AC 431 (refd)

Talbot v Berkshire County Council

[1994] QB 290 at 296 (folld)

Teo Siew Har v Lee Kuan Yew

[1999] 4 SLR 560 (folld)

Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Anor

[1975] AC 581 (folld)

Legislation referred to

Supreme Court of Judicature Act (Cap 322) s 34(2)(b)

JUDGMENT:

Cur Adv Vult

1. This is an appeal by the plaintiff (Tng) against a decision of Amerjeet Singh JC, dismissing the plaintiffs claim in relation to a lot of 27 Overseas Union Bank (OUB) shares, hereinafter referred to as "the 27 shares". The learned judge was of the view that the plaintiff was barred from bringing the present Originating Summons (OS) on the ground of res judicata in the wider sense.

2. The circumstances giving rise to the plea of res judicata are primarily based on a judgment (unreported) given by the High Court in the consolidated action (S 1401/73 and S 2457/81), which judgment was upheld on appeal by this Court ([1993] 3 SLR 148) and finally by the Privy Council ([1996] 2 SLR 297).

Essential facts

3. In order to better appreciate the issues in the present proceeding, there is a need to set out in brief the essential facts relating to the earlier consolidated action. The story began at the end of the nineteen century when three brothers, Lee Wee Kheng (Kheng), Lee Wee Nam (Nam) and Lee Wee Kiat (Kiat) left their village in Canton, China to seek their fortune here. Their father, Lee Hum Chye, came to Singapore in 1917 and in the following year he gave his savings to the three sons and also set up a family fund called "Sze Teck Tng Chye...

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