Lim Lie Hoa and Another v Ong Jane Rebecca

JurisdictionSingapore
JudgeKarthigesu JA
Judgment Date16 April 1997
Neutral Citation[1997] SGCA 17
Docket NumberCivil Appeals Nos 119 and
Date16 April 1997
Year1997
Published date19 September 2003
Plaintiff CounselTan Kok Quan and Kannan Ramesh (Lee & Lee)
Citation[1997] SGCA 17
Defendant CounselHarry Elias, Philip Fong and Melvin Khoo (Harry Elias & Partners),Andre Arul, Gavin Ooi and Chew Kia Heng (Arul Chew & Partners)
CourtCourt of Appeal (Singapore)
Subject MatterDeed of release manifestly disadvantageous to son,Litigation is funded by third party -Whether assignment is champertous,Presumed,Capacity,Undue influence,Assignment of part of beneficial share in estate to the respondent estranged wife,Assignment of part of beneficial share in estate by beneficiary to respondent estranged spouse,Assignment to assist in recovering maintenance owing by assignor from his beneficial share of estate -No express reference to maintenance payable by assignor to assignee in assignment,Equity,Beneficiary of estate executing deed of release in full and final satisfaction of his rights to estate in favour of mother,Whether presumption rebutted,Mother and son relationship raising presumption of undue influence,Whether absence of such express connection is fatal to assignment,No independent advice,Respondent sues as assignee against administrator of estate,Contract,Assignment,Son dominated by mother

(delivering the judgment of the court)

There are two appeals before us, and both arose out of the decision of Chao Hick Tin J in which he gave judgment for the respondent allowing in part her claims against the appellants.
The appellants filed separate appeals against the decision. Both the appeals were heard together as they raise the same issues of fact and law.

The facts

The factual background to the appeals has been dealt with in detail by Chao Hick Tin J and for the purpose of these appeals may be briefly set out as follows. The first and second appellants are the wife and son respectively of one Ong Seng Keng, a wealthy Indonesian businessman and banker, who died on 23 October 1974 (the deceased). At the time of his death the second appellant was a minor, and the first appellant and her sister Lim Lie Fong were appointed administratrices of the estate of the deceased (the estate). In 1978 the second appellant attained the age of majority and became the co-administrator with the first appellant in place of Lim Lie Fong.

The respondent is the estranged wife of the second appellant.
They met in England in 1978 and were married there on 1 October 1982. They have two sons and one daughter now aged 14, 13 and 12 respectively. The parties first lived and cohabited at the apartment, 6 Audley Court, Mayfair, London which was held in joint names of the second appellant and his brother, Ping. In late 1981, a house, 4 Beaumont Place, Hadley Highstone in Barnet was purchased in the names of the second appellant and the respondent with the assistance of a loan from a financial institution secured by a mortgage on the property. They then moved and lived there until 1983. The second appellant could not maintain the mortgage payments and the mortgagee took proceedings to recover possession of the house. The parties then moved back to 6 Audley Court.

In late 1985, the first appellant bought a house, 39 Sheldon Avenue, London (Sheldon property), and it was registered in her name.
The second appellant and the respondent moved and lived there as their matrimonial home. The respondent and the children are still residing there.

Since 1986 the relationship between the second appellant and the respondent became strained and subsequently deteriorated.
In March 1988 the respondent commenced divorce proceedings against the second appellant. She wrote to the second appellant proposing a settlement of various financial matters including, among other things, a transfer of the Sheldon property to her, payment of a lump sum of o250,000 and clearing of all existing debts. This proposal was acceptable to the second appellant who at that time expected to be able to realize some funds from one of his projects. He did not contest the petition, and a decree nisi was obtained in July 1988.

At the time of commencement of the divorce proceedings, the second appellant had incurred some debts he could not repay.
In particular, there was an amount of o40,000 owing in his joint account with the respondent and an overdraft of o9,000 in the respondent`s personal account. In April 1988 or thereabouts, the second appellant left England, and for about two months, the respondent had no news from him. Creditors of the second appellant were calling at their matrimonial home and pressing for payment. Lacking funds for the maintenance of the three children and herself, the respondent consulted one Martin Stainton, an accountant, who advised her to meet the two appellants in Singapore to resolve the matter. The respondent obtained a loan from a company, in which Martin Stainton was a director, namely, Ramogan Ltd t/a Gomar Leasing (Gomar Leasing), and with that financial assistance she came to Singapore in May 1988 with Martin Stainton accompanying her as her financial consultant.

There was a dispute as to what happened in Singapore.
But the court below found that the respondent asked for money and threatened maintenance proceedings against the second appellant. She did in fact instruct Messrs Murphy & Dunbar to commence proceedings for maintenance. While in Singapore, Martin Stainton wrote an undated letter to the first appellant demanding a resolution of the matter and threatening publicity if the respondent`s demands were not met. The respondent also wrote a letter to the first appellant demanding the transfer to her of the Sheldon property and a sum of o500,000. Nothing came out of these letters.

The respondent then returned to England.
According to her, it was at this time that she found certain probate and other papers at their home, 39 Sheldon Avenue, and she passed them to Martin Stainton. Upon perusing the documents, the latter informed her that the second appellant was actually a beneficiary of the estate. This, according to the respondent, came as a shock to her, as she had always been told by the second appellant that his mother alone was entitled to his father`s fortunes.

On 1 August 1988, the respondent commenced maintenance proceedings against the second appellant in Singapore.
At the hearing the respondent placed the probate and other papers before the court showing that the second appellant was a co-administrator and beneficiary of the estate, but the second appellant denied all knowledge of his entitlement. The hearing was then adjourned to enable him to sort matters out with his mother. At the resumed hearing on 10 August, a consent order was made under which the second appellant was to pay to the respondent o4000 per month as maintenance for herself and the three children. The second appellant was also ordered to pay to the respondent the arrears of maintenance amounting to o23,500 by the end of that month.

The second appellant paid up the arrears of maintenance in September 1988 after he was threatened with committal proceedings by the solicitors for the respondent.
It is not disputed that the first appellant assisted the second appellant in the payment; in fact she paid on behalf of the second appellant the arrears of maintenance and the maintenance for the next few months. However, in March 1989, the first appellant stopped helping the second appellant to make the maintenance payments. According to the second appellant, the reason for this was that the respondent had incensed his mother in a telephone conversation. The second appellant then went to see the solicitor for the respondent and explained why he could not keep up with the maintenance payment. The solicitor advised him to seek independent legal advice, and recommended Mr Arjan Chotrani whom he subsequently instructed.

In June 1989, the second appellant accompanied the first appellant to Hong Kong.
There, before a solicitor and in the presence of the first appellant the second appellant executed a deed of release dated 29 June 1989 (the release), whereby he acknowledged receipt of the sums of o1,018,000 and US$150,000 in full and final settlement of his interest in the estate and discharged and released the administrators of the estate of their duties and obligations.

In July 1989, the second appellant wrote a letter under his own hand clarifying his position.
He said that he would not give evidence against either side and that he had no knowledge that he was an administrator or a beneficiary of the estate until the maintenance suit was brought against him. He also said that the Sheldon property was bought for his family and it was his wish that they should have it, if they so desired. The second appellant`s evidence was that this letter was written by him at the behest of the respondent. In September 1989, the second appellant wrote another letter agreeing to transfer his share in the Sheldon property to the respondent, to pay her a sum of o250,000 and to settle the existing overdraft on their joint account. The second appellant testified that the respondent prepared the letter. The learned judge below found that while he believed that the letter was signed at the request of the respondent, the second appellant knew what he signed.

Sometime during the last quarter of 1990, the respondent made a telephone call to the second appellant asking for o1m, and stating that thereafter he would be rid of her.
The second appellant thought that this proposal was attractive but when he consulted his mother, the latter refused and a quarrel between them ensued. Thereafter, the relationship between the mother and son deteriorated. The second appellant said he was too `proud` to rely on his family after the quarrel. He then got in touch with the respondent. Subsequently, she informed him that her financial backers were optimistic that he had a good chance of recovering from his mother a large sum as his share of the estate. She said that they should cooperate to take action against his mother. According to him, she told him that if he was agreeable, he would receive o5,000 a month from the financial backers if he took action against his mother. They then started to collaborate to get the accounts from the mother. Their expenses were thereafter paid out of loans provided by Gomar Leasing until August 1991.

In February 1991, the second appellant and the respondent were discussing strategies against the first appellant.
The respondent`s English solicitors suggested that she should obtain an assignment of a share of the second appellant`s entitlement to the estate and a power of attorney from the second appellant so that she could commence and maintain an action against the first appellant. This was communicated to their Singapore solicitors. At that time Mr Jimmy Yap (Yap) was acting for the respondent and Mr Arjan Chotrani (Chotrani) for the second appellant. On 14 February 1991, the second appellant wrote a letter relating to a proposed arrangement with the respondent. It envisaged that they would enter into an agreement whereby the respondent would acquire half of his interest in the estate thus enabling her to join him in proceedings against the first appellant for the accounts of the...

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