Lee Nellie v Wong Lai Kay

• Jurisdiction: Singapore
• Judge: Yong Pung How J
• Judgment Date: 08 March 1990
• Neutral Citation: [1990] SGHC 17
• Docket Number: Suit No 4332 of 1986
• Date: 08 March 1990
• Year: 1990
• Published date: 19 September 2003
• Plaintiff Counsel: Ann Tan and G Krishnan (Ann Tan & Associates)
• Citation: [1990] SGHC 17
• Defendant Counsel: Dennis Singham (Rodyk & Davidson)
• Court: High Court (Singapore)
• Subject Matter: Trusts,Property transferred to defendant 'in consideration of natural love and affection',Whether defendant trustee for plaintiff over money and property,Whether transfer of property operated as gift inter vivos,Express trusts,Sum of money given to defendant,Creation

Cur Adv Vult

This is an action in which the plaintiff, Lee Nellie, seeks an order that the defendant, Wong Lai Kay, who is her son, retransfer to her a property at 28 Jalan Novena Selatan which she had previously transferred to him, and also repay to her a sum of $40,000 which she had previously handed over to him.

The plaintiff is now 69 years old, and has been widowed since she was 37. She used to be a registered midwife, but at some time when business was bad she had turned to performing illegal abortions. This must have been financially a more rewarding business because, on her earnings, she managed to bring up three children, a daughter Janet, the defendant, and a younger daughter, Irene. Even after this, she managed to save enough money to buy some property.

In 1960, she purchased a semi-detached house at 25 Tham Soong Avenue (the Tham Soong property) for $19,000 and rented it out to the British Forces in Singapore for $350 per month. This earlier property which she purchased is not the subject of dispute, but plays a part in the defence put forward by the defendant to her claim in this action. In 1965, the plaintiff purchased another property, a new two-storey terrace house at 28 Jalan Novena Selatan (the Novena Selatan property), which is the subject of this action, for $36,000. She paid $10,000 as a deposit and the balance of $26,000 was financed by a mortgage loan from The Great Eastern Life Assurance Co Ltd. The mortgagee required a younger person with a steady income to be included as an additional owner, and accordingly the property was registered in the names of both the plaintiff and her daughter Janet, the only one of her children who was of age at that time and who was by then already a teacher. As in the case of the Tham Soong property, she rented out the Novena Selatan property for a couple of years, before she moved her family into it in 1967.

But her straying from the path of conventional midwifery has caused her problems which have largely contributed to the present action. In 1959 or 1960, she was convicted of carrying out illegal abortions, and was sentenced to imprisonment for six months and fined $1,000. While in prison, she had visits from all her children who had been parked with various relatives during their mother`s absence. When she came out, however, she apparently continued to carry out illegal abortions; she had to resort to this because she had three children to support and no other means of income. So in 1966 or perhaps in 1967, she was investigated again by the police, in the course of which her identity card was taken from her by the police.

It is not clear why the identity card was taken from her, or whether there would have been any difficulty at all in her getting it back if she had asked for it, once the police was done with it. It is clear, however, and is common ground, that for a long time nothing was done to get back the identity card from the police, and the loss of her identity card and the police investigations had a traumatic effect on her mind. She became very afraid of the police, and was very apprehensive of being arrested. This fear preyed on her mind and appears to have dramatically affected her attitude to life and her everyday behaviour. The defendant himself gave some graphic illustrations of this in his evidence. He was 21 at the time and recalled various incidents - his mother escaping out of the back door when police officers called at their home in Rangoon Road to see her, her running off to hide in a kampong in Chua Chu Kang, her working as a maid servant in Serangoon Garden Estate, and her disguising herself by wearing sunglasses and shielding herself under an umbrella whenever she went out. This paranoia appears to have lasted for many years.

When the Novena Selatan property was purchased, there was a slight delay in the completion of the terrace house on it, but eventually the whole family moved into it in 1967. In 1969 Janet got married in the house, and her husband also moved in. Janet and her former husband Lee Hai Pey occupied one room, Irene and an aunt (whenever she was there) occupied a second room, and the plaintiff and the defendant both shared the third room, while the remaining room was rented out to a tenant. There had already been some friction between Janet and the defendant after her first child arrived and her family needed two of the rooms. By the time Janet had her second child in 1972, the Novena Selatan property had finally become much too small for all of them to continue living together in harmony. Consequently, Janet and her husband moved over to the Tham Soong property, which was then vacant, paying the plaintiff the same rent of $350 per month as the previous tenant.

Some months later, probably in 1974 and because the defendant had been urging the plaintiff to increase Janet`s rent to $600 per month, she arranged to buy the Tham Soong property from her mother. There are different versions of the purchase price and how it was paid, but it is most likely that the effective total consideration was $50,000. Once again a loan was obtained from The Great Eastern Life Assurance Co Ltd in the form of a cheque for $40,000 which was handed to the plaintiff, and $10,000 was paid to the mortgage loan account of the Novena Selatan property to pay off the balance of the loan. On receiving the cheque for $40,000, the plaintiff handed it over to the defendant to keep the money for her in his bank account. She did this rather than open an account in her own name, because she did not then have an identity card. He placed the cheque instead in a joint savings account which he opened with her at the Standard Chartered Bank. For all practical purposes thereafter, the passbook was at all times in the control of the defendant, who took it upon himself to operate the joint account to the exclusion of the plaintiff. The credit balance left now in the account is only $30.47.

It was around this period and against this background that the Novena Selatan property was transferred to the defendant in 1974. No payment was made by him, and the transfer instrument recited that it was in consideration of natural love and affection. It was executed by both the plaintiff and Janet as co-owners, Janet joining freely in the transfer at her mother`s request as she had always considered her mother to be the real beneficial owner. The solicitors who attended to the transfer took instructions from the plaintiff, and explained the meaning and implication of the transfer before the instrument was executed. Although the plaintiff was the transferor, the costs of the transfer, including stamp duty, registration and legal fees, were paid by the defendant out of the $40,000 the plaintiff had previously handed over to him.

The plaintiff alleges that in fact the transfer of the Novena Selatan property only happened because of her problems at the time with the police and the detention by them of her identity card. Taking advantage of her personal circumstances and her frame of mind, the defendant had suggested to her that if she was arrested again the property could be confiscated, and the defendant had advised her that to protect the property she should transfer it to him temporarily. The Novena Selatan property was accordingly transferred to the defendant, but only on the condition, accepted by the defendant as transferee, that he would transfer back the property to her when she got back her identity card; until this happened, or if the identity card was not returned, she would be allowed to remain in occupation of the property, if necessary, for the rest of her life. At that time, as was the case with the $40,000, she trusted him completely. She had explained all this...