Mak Saw Ching v Yam Hui Min, Barbara Rebecca

• Jurisdiction: Singapore
• Judge: Lee Kim Shin JC
• Judgment Date: 24 October 2014
• Neutral Citation: [2014] SGHC 212
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1216 of 2013
• Year: 2014
• Published date: 11 November 2014
• Hearing Date: 14 July 2014,06 May 2014,02 July 2014,10 June 2014
• Plaintiff Counsel: Low Wan Kwong Michael (Crossbows LLP)
• Defendant Counsel: K Mathialahan (Guna & Associates)
• Subject Matter: Trusts,resulting trusts,automatic resulting trusts,presumed resulting trusts,Equity,mistake
• Citation: [2014] SGHC 212

Lee Kim Shin JC: Introduction

Originating Summons No 1216 of 2013 (“OS 1216”) concerned a rather unfortunate dispute between a grandmother (“the Applicant”) and her granddaughter (“the Respondent”) over the beneficial ownership of a Housing and Development Board flat at Block 81 Commonwealth Close #10-103 Singapore 140081 (“the Flat”). The dispute manifested itself in the wider context of an acrimonious divorce between the Respondent’s parents.

The primary relief sought by the Applicant in OS 1216 was a declaration that the Respondent held her legal half-share in the Flat on trust for the Applicant. In the course of the proceedings, this trust was particularised as a resulting trust arising in the Applicant’s favour.

I dismissed OS 1216 on 14 July 2014 because the Applicant had not proven the resulting trust she asserted. As the Applicant was legally aided, I made no order as to costs. The Applicant has since appealed against my decision. I therefore set out the grounds for my decision.

The Background The parties

The Applicant is currently 83 years old. She is the paternal grandmother of the Respondent. The Applicant and her husband, Yam Pak Kee (“Pak Kee”), had two children. Their son, Yam Wing Kong (“Wing Kong”), is the Respondent’s father.

Wing Kong was previously married to the Respondent’s mother, Maria Cristina S Yam (“Maria”). Apart from the Respondent, they have another daughter, Isabel Yam Min Yi (“Isabel”). Maria filed for divorce against Wing Kong on 9 April 2013. Interim judgment of divorce was granted on 24 September 2013.

The undisputed facts

The Applicant and Pak Kee acquired the Flat as joint tenants in 2001. They paid the purchase price of the Flat in full using the sale proceeds of their previous flat. Pak Kee passed away on 14 September 2009.

On 22 October 2009, the Applicant made an application with the Housing and Development Board (“the HDB”) for Pak Kee’s death to be notified and to include the Respondent’s name as a joint tenant of the Flat.

On 2 December 2009, the Applicant executed a transfer of the Flat to the Respondent as a joint tenant with herself. The consideration for the transfer was stated in the transfer document as “Natural Love and Affection” and the transfer was notified as a “Gift” on the HDB lease. Upon registration of the transfer on 3 February 2010, the Respondent became a legal joint tenant of the Flat together with the Applicant.

Sometime in early January 2013, the marriage between Wing Kong and Maria broke down acrimoniously. The Respondent sided with her mother. On 21 January 2013, Maria and the Respondent left the matrimonial flat to live elsewhere at another HDB flat. I pause here to note that the breakdown in the marriage occurred more than three years after the addition of the Respondent as a joint tenant of the Flat.

On 25 March 2013, the Applicant severed the joint tenancy with the Respondent, making them tenants in common in equal shares.

On 16 August 2013, the Applicant’s solicitors sent a letter to the Respondent to demand that the Respondent transfer her rights and interests in the Flat to the Applicant. The Respondent’s solicitors replied on 5 September 2013 to refuse the Applicant’s demand.

On 18 December 2013, the Applicant filed OS 1216 against the Respondent.

The disputed facts

The main dispute of fact in OS 1216 concerned whether the Applicant had intended the transfer of the Flat to the Respondent as a gift. The Applicant’s case was that the transfer was not intended as an absolute gift. Instead, she had intended the transfer to benefit her son, Wing Kong. The Respondent denied this and claimed that the transfer was intended as an absolute gift.

In support of their respective positions, the parties filed two affidavits each. In the Applicant’s first affidavit dated 8 November 2013, she stated that: Although the transfer to the Respondent was worded as a gift, the Applicant had no intention of making a gift. Rather, the Applicant had wished to “plan her succession” for Wing Kong but he could not be made a joint tenant of the Flat because he held another HDB flat in his name. The Respondent was made a joint tenant of the Flat instead. This was on the condition that the Respondent was to give the sale proceeds of the Flat to Wing Kong upon the Applicant’s demise. This was done on the advice of an HDB officer. The Applicant was not advised on the making of a will. She also did not obtain legal advice. The Respondent had not behaved like an owner of the Flat. She did not pay the purchase price, conservancy fees or utilities bills in respect of the Flat. The Respondent also did not stay at the Flat. The Respondent was siding with Maria in the divorce proceedings. Therefore, the Applicant had lost trust in the Respondent and wanted the Respondent’s name removed from the title to the Flat.

The Respondent filed a reply affidavit on 3 February 2014. She deposed that: The transfer was intended as a gift. The Applicant and the Respondent shared a close relationship. When the Respondent was a child, the Applicant had looked after her and bought her gifts. Conversely, when the Applicant underwent surgery for breast cancer in 2009 and when Pak Kee passed away, the Respondent took care of the Applicant. After Pak Kee’s death, the Applicant approached the Respondent and Maria at the Flat to discuss adding the Respondent’s name as an owner. The Respondent was reluctant at first but she eventually agreed when the Applicant insisted that she deserved to be a joint tenant. The Applicant knew that she could make a will to devise the Flat. Wing Kong had in fact suggested that she do so. However, the Applicant said that she had already decided to make the Respondent a joint tenant. Wing Kong did not object. On 22 October 2009, the Applicant, Wing Kong, Maria, Isabel and the Respondent went to the HDB office to file the notice of Pak Kee’s death and to add the Respondent as a joint tenant of the Flat. They were attended to by an HDB officer who explained the procedures for and the implications of the transfer to them in full. The Applicant and the Respondent then signed the relevant forms. On 2 December 2009, the Applicant, Wing Kong, Maria and the Respondent again went to the HDB office. On this day, the Applicant signed the transfer and other relevant documents. This was done after an HDB officer had clearly explained the nature of the documents to the Applicant. The consideration in the transfer form was stated as “Natural Love and Affection” on the Applicant’s instructions. The HDB officer who attended to them on 2 December 2009 did not advise the Applicant on succession planning. Moreover, he would not have given the advice alleged by the Applicant because such advice would have contravened the Housing and Development Act (Cap 129, 2004 Rev Ed) (“the HDB Act”). The Respondent did not contribute towards the purchase price of the Flat because it was already paid in full when she was made a joint tenant. The Respondent had also stayed with the Applicant in the Flat on a number of occasions after the transfer. Thereafter, the relationship between the Applicant and the Respondent remained close. It was only after the breakdown of Wing Kong’s and Maria’s marriage, and after the Respondent sided with Maria, that the Applicant had claimed that the transfer was not intended to be a gift. Wing Kong had instigated and influenced the Applicant to file OS 1216 because he was unhappy with the Respondent for siding with Maria in the divorce proceedings. Wing Kong had previously harassed the Respondent and Maria to demand that the Respondent transfer her share of the Flat to the Applicant. Wing Kong was driving OS 1216 because he wanted the benefit of the Flat for himself upon the Applicant’s death.

On 19 February 2014, the Applicant filed a further affidavit to respond to the Respondent’s first affidavit. She stated that: Admittedly, the relationship between the Applicant and the Respondent was previously close. However, the Applicant did not love the Respondent to the exclusion of her other family members. In making the transfer, the Applicant had intended to provide for Wing Kong and (indirectly) his family. There was no reason for the Applicant to provide for the Respondent only. The Applicant did not consider making her other granddaughter, Isabel, a joint tenant because she was not an adult yet. Before deciding to make the Respondent a joint tenant of the Flat, the Applicant had gone to the HDB office on her own to enquire. She was told that she could not add Wing Kong’s name as a joint tenant because he was a current owner of a HDB flat. At the material time, both the Applicant and Wing Kong were ignorant of the option of making a will. When the parties were at the HDB office on 22 October 2009 and 2 December 2009, the Applicant had reminded the Respondent of her obligation to give the sale proceeds of the Flat to Wing Kong upon the Applicant’s demise. The Respondent did not stay at the Flat on a number of occasions as she had alleged. Instead, she only stayed for one or two nights before moving back to stay with her parents. The Respondent complained about the Applicant’s nagging. The Respondent also complained that there were ghosts in the Flat. Wing Kong had not instigated the Applicant to commence OS 1216. The Applicant was interviewed by the Legal Aid Bureau and her assigned lawyers. They would have ascertained whether she was under Wing Kong’s influence. When Wing Kong had asked the Respondent to return her share in the Flat to the Applicant, he had done so on the Applicant’s instructions. Maria had brainwashed the Respondent to be hostile towards the Applicant. Sometime in March 2013, the Respondent called the Applicant to say that the Applicant would die without a coffin because Wing Kong had squandered her savings. The Respondent also said that she would...