Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin

JurisdictionSingapore
Judgment Date17 October 2014
Date17 October 2014
Docket NumberSuit No 251 of 2013
CourtHigh Court (Singapore)
Mahidon Nichiar bte Mohd Ali and others
Plaintiff
and
Dawood Sultan Kamaldin
Defendant

[2014] SGHC 207

Lee Kim Shin JC

Suit No 251 of 2013

High Court

Civil Procedure—Limitation—Whether s 6 Limitation Act (Cap 163, 1996 Rev Ed) applied—Whether limitation period was postponed by reason of s 29 Limitation Act—Sections 6 and 29 Limitation Act (Cap 163, 1996 Rev Ed)

Contract—Mistake—Non est factum—Whether parties who had executed documents which had been explained by lawyers could avail themselves of doctrine of non est factum

Evidence—Proof of evidence—Whether evidence on a number of issues might be rejected in full in circumstances where case was organised and evidence mustered on an all-or-nothing basis

The dispute was between a mother (‘Mother’) and three of her four children (‘Plaintiff Siblings’) on the one side as the Plaintiffs, and the remaining child on the other side as the sole defendant (‘Dawood’). The parties were fighting over the ownership of a property (‘the Property’) which belonged to the children's father (‘Father’) but was registered in Mother and Dawood's joint names following Father's death as part of the administration of his estate.

The Plaintiffs claimed that the registration of the Property with Mother and Dawood as joint tenants amounted to a breach of an agreement between the Plaintiffs and Dawood under which the Property was to be registered in Mother's sole name (‘the Plaintiffs' 2004 Agreement’). Dawood claimed that there was no Plaintiffs' 2004 Agreement. He claimed, instead, there was an agreement between the parties that the Property was to be registered in Mother and Dawood's joint names in consideration of Dawood taking care of Mother (‘Dawood's 2004 Agreement’).

At the heart of the competing claims was a ‘Deed of Renunciation of Beneficial Interest’ (‘Deed’) which had been executed by the Plaintiff Siblings together with other legal documents as part of the administration of Father's estate. Under this Deed, the Plaintiff Siblings renounced their interest in the Property in favour of Mother and Dawood. The Plaintiff Siblings did not deny signing the Deed but claimed that they had been deceived into signing it. Dawood rejected this suggestion and asserted that all the documents were properly executed in front of the solicitors engaged by the parties (‘the Solicitors’).

Dawood also claimed that the Plaintiffs' action was, in any event, time-barred as the six-year limitation period for contractual claims had lapsed. The Plaintiffs submitted that the six-year limitation period was inapplicable because their claim was not contractual, and that in any event, the limitation period was postponed by reason of Dawood's fraudulent conduct in surreptitiously transferring the Property to Mother and his joint names.

Dawood also made two counterclaims. The first was for damages resulting from the Plaintiffs' Siblings' lodgement of a caveat against the Property. Second, in the event that the court found in favour of the Plaintiffs, Dawood claimed that the Plaintiff Siblings were liable, in proportion to their respective interests in the Property, for the costs and expenses related to the administration of Father's estate and the upkeep of the Property.

Held, dismissing the claim and allowing the counterclaim in part:

(1) The Plaintiffs' principal claim, that there had been a Plaintiffs' 2004 Agreement which Dawood breached by transferring the Property to Mother and himself under a joint tenancy was a plain vanilla contract claim. The six-year limitation period under s 6 of the Limitation Act (Cap 163, 1996 Rev Ed) therefore applied: at [48] .

(2) Whether the limitation period was postponed because of fraud or concealment, pursuant to s 29 of the Limitation Act, was unsuitable for determination as a preliminary threshold question in cases where the question of fraud or concealment turned on the proving of a myriad of facts which were hotly contested. The present case was one such example as the court's findings on the evidence in relation to that factual matrix were determinative of both the main cause of action as well as the applicability of s 29 of the Limitation Act. It was important to note that for such cases, even if the court found that the action was time-barred because the limitation period was not postponed, both the merits of the substantive dispute and the limitation period issues would have been determined with the consequence that the substantive dispute would be subject to the usual res judicata principles: at [62] to [64] .

(3) As both sides had organised their case and mustered their evidence on an all-or-nothing basis, the entire case theory put forward by either side on the circumstances surrounding the signing of the Deed of Renunciation of Beneficial Interest had to be accepted or rejected in full. There was no room for any middle ground, notwithstanding the general rule of evidence that the evidence of a witness ought not to be rejected completely simply because the witness was unreliable or untrue in some parts: at [99] .

(4) On a balance of probabilities, neither side was able to prove that their respective agreement was the genuine agreement. All that could be concluded safely was that the parties executed certain documents which in their nature had the effect of transferring of the Property to Mother and Dawood as joint tenants. Specifically, the evidence by Dawood and the Solicitors in relation to the manner of execution of the Deed of Renunciation of Beneficial Interest was more credible than those of the Plaintiffs: at [68] and [101] to [151] .

(5) Accordingly, there was no Plaintiffs' 2004 Agreement. There was therefore no breach of the Plaintiffs' 2004 Agreement. The six-year limitation period was hence not postponed: at [162] and [164] to [166] .

(6) Given that there was no Plaintiffs' 2004 Agreement, the Plaintiff Siblings could not claim to have any interest in the Property arising from Dawood's breach of the Plaintiff's 2004 Agreement. They could not even have held an honest belief that they had a caveatable interest from the very beginning because, on the Plaintiffs' own case, the terms of the Plaintiffs' 2004 Agreement was for the Property to be registered in Mother's sole name. Consequently, the Plaintiff Siblings had lodged the caveat without reasonable cause and were liable for Dawood's loss of $807.98: at [169] to [173] .

(7) Whilst there was sufficient cause to conclude that the existence of the Plaintiffs' 2004 Agreement was ‘not proved’, the same evidence did not support a finding that the genuine agreement between the parties was Dawood's 2004 Agreement: at [154] .

[Observation: If the person signing the document has had the document explained to him by someone with the proper qualifications and skills (such as lawyers, as happened in this case), then barring exceptional circumstances, it would be highly implausible that the signatory could subsequently claim that he was mistaken in thinking that the document was fundamentally different. The doctrine of non est factum was not meant to give contracting parties an easy way out of a bargain, especially one that was entered into irresponsibly: at [183] to [185] .

Sections 93 and 94 of the Evidence Act (Cap 97, 1997 Rev Ed) merely governed the admissibility of evidence; they did not contain or manifest any principle of law that allowed for the invalidation of an instrument: at [190] to [194] .]

Aamna Taseer v Shaan Taseer [2012] 2 SLR 348 (refd)

Alwie Handoyo v Tjong Very Sumito [2013] 4 SLR 308 (folld)

Bank of America National Trust and Savings Association v Herman Iskandar [1998] 1 SLR (R) 848; [1998] 2 SLR 265 (refd)

Chua Teck Chew v Goh Eng Wah [2009] 4 SLR (R) 716; [2009] 4 SLR 716 (folld)

Ho Soo Fong v Standard Chartered Bank [2007] 2 SLR (R) 181; [2007] 2 SLR 181 (folld)

Loo Chay Sit v Estate of Loo Chay Loo, deceased [2010] 1 SLR 286 (refd)

Saunders v Anglia Building Society [1971] AC 1004 (refd)

Tay Tuan Kiat v Pritnam Singh Brar [1985-1986] SLR (R) 763; [1986] SLR 290 (refd)

Teh Siew Hua v Tan Kim Chiong [2010] 4 SLR 123 (refd)

Evidence Act (Cap 97, 1997 Rev Ed) ss 93, 94 (consd)

Land Titles Act (Cap 157, 2004 Rev Ed) s 128 (consd) ;s 4 (1)

Limitation Act (Cap 163, 1996 Rev Ed) ss 6, 9, 23, 29 (consd) ;ss 29 (1) , 29 (1) (a) , 29 (1) (b)

Bernard Sahagar (Lee Bon Leong & Co) for the plaintiffs

Zhulkarnain Abdul Rahim and Jansen Aw (Rodyk & Davidson LLP) for thedefendant.

Lee Kim Shin JC

1 Disputes between family members over family assets are some of the most difficult cases to adjudicate for a number of reasons. The evidence is usually incomplete either because family members generally do not document their dealings unlike in a commercial environment, or because a long passage of time has passed between the events which give rise to the dispute and the commencement of proceedings, or both.

2 The veracity of the available evidence too is often difficult to assess, especially when much of the evidence comprises direct testimony from family members, most of whom are emotionally charged by the dispute and therefore prone to dramatising their recollection.

3 That was the exact scenario I struggled with in this unhappy dispute involving the administration of a Muslim estate. The dispute is between a mother (‘Mother’), her eldest son (‘Jahir’) and two daughters (‘Aysha’ and ‘Noorjahan’) on the one side (collectively ‘the Plaintiffs’), and another son as the sole defendant on the other (‘Dawood’). I will sometimes refer to Jahir, Aysha and Noorjahan collectively as ‘the Plaintiff Siblings’.

4 The sole family asset that was in dispute is a landed property at 4 Merryn Terrace (‘the Property’) which had been conveyed into the joint names of Mother and Dawood in 2005 following the death of the father (‘Father’) in 2000.

5 The Plaintiffs' principal claim was that Dawood had deceived them in a number of ways...

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2 cases
  • Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin
    • Singapore
    • Court of Appeal (Singapore)
    • 28 July 2015
    ...(as the plaintiffs) to prove their case, he dismissed their claim (see Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin [2014] 4 SLR 1309 (“the GD”) at [6]). Beginning with the Appellants’ Agreement, the Judge found that there were several irreconcilable inconsistencies and ......
  • Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin
    • Singapore
    • Court of Three Judges (Singapore)
    • 28 July 2015
    ...(as the plaintiffs) to prove their case, he dismissed their claim (see Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin [2014] 4 SLR 1309 (“the GD”) at [6]). Beginning with the Appellants’ Agreement, the Judge found that there were several irreconcilable inconsistencies and ......
2 books & journal articles
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • 1 December 2015
    ...the appellants nor Dawood had proven their version of the pre-deed agreement: Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin[2014] 4 SLR 1309. That being the case, the appellants' argument that the RBI Deed was a breach of their prior agreement failed, and the issue that remained was......
  • Contract Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2014, December 2014
    • 1 December 2014
    ...of extremely limited application, an attempt was nevertheless made to invoke it in Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin[2014] 4 SLR 1309. Here, a dispute had arisen amongst members of a family concerning the ownership of a property. A weakness in the plaintiffs' case lay in......

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