Neo Boh Tan v Ng Kim Whatt
Jurisdiction | Singapore |
Judge | Judith Prakash J |
Judgment Date | 07 March 2000 |
Neutral Citation | [2000] SGHC 31 |
Published date | 11 March 2013 |
Year | 2000 |
Citation | [2000] SGHC 31 |
Plaintiff Counsel | Leong Chooi Peng (Leong Chooi Peng & Co) |
Court | High Court (Singapore) |
JUDGMENT:
GROUNDS OF JUDGMENTThe facts
1. The plaintiff and her youngest son, the defendant, are the joint owners of the flat known as Blk 232 Pending Road #08-21. They were allocated the flat in 1987 by the Housing and Development Board (‘HDB’) under its Resettlement Scheme. At that stage, as all the plaintiff’s other children had grown up and had their own properties, the defendant (then aged about 23) and she were the only persons eligible to take up the offer of the flat.
2. The flat cost $42,600. The only down payment required was the sum of $200, which the plaintiff paid. The balance of the purchase price was settled by a loan which the parties took from the HDB and the monthly instalment payable in respect of this loan was approximately $233. As at July 1998, there was an outstanding balance of $28,592.25 remaining due under the loan.
3. The plaintiff and the defendant lived together in the flat from the time of purchase up till August 1998. In that month, he hit his mother and the plaintiff made a police report. The plaintiff also sought aid from the Legal Aid Bureau and an officer from the Bureau went to interview the defendant. After the interview, the defendant moved out of the flat and did not advise the plaintiff of his new address. She has not seen him or spoken to him since he left the flat.
4. In April 1999, the plaintiff commenced this action whereby she asked for a declaration that she was absolutely entitled to the flat and to have the title in the flat transferred entirely to her. She also asked for an order that if the defendant could not be traced or refused to convey his interest in the flat to her, the Registrar of the Supreme Court be authorised to execute the conveyance on his behalf.
5. As the plaintiff was unaware of the defendant’s address, the originating summons herein had to be served on him by way of substituted service. Pursuant to a court order in that behalf, the originating summons was advertised in one issue of the Lianhe Zaobao and copies were posted on the notice board of the court. Service was effected in this manner in October 1999. Up to the time the matter first came on for hearing before me on 31 January 2000, however, the defendant had not entered an appearance. He did not appear, either, between that date and my final order on the summons which was made on 22 February 2000.
6. The plaintiff’s contention was that she was beneficially entitled to an absolute interest in the flat to the exclusion of any beneficial interest on the part of the defendant because she had made all the payments due in respect of the purchase of the flat. Her evidence on affidavit was that until about 1997 she had earned an income as a part time casual worker. In addition, she had received allowances from some of her nine children including from one son who was a civil servant. That particular son gave her $600 to $700 a month with which she supported herself and paid the instalments on the flat, the conservancy charges and the property tax and other outgoings. The defendant had never contributed anything towards the instalments for the flat. Nor had he paid for any of the other expenses of the flat. He had not worked during the ten years prior to the application and had often borrowed money from her.
7. My first task was to decide whether to accept the plaintiff’s story that she had made all the payments for the flat. I was mindful that I was hearing only one side of the story since the defendant had not appeared and no one else had given any evidence as to the plaintiff’s circumstances. The plaintiff’s evidence was not, however, unsubstantiated.
8. The plaintiff stated that she made payment of the instalments in cash. In order to do so, she would go down each month to the HDB office at Marsiling and her payment would be recorded in the receipt book issued by the HDB. In support of this contention, she was able to produce copies of the relevant receipt books. The HDB receipt books evidenced regular payment of the housing loan instalments from July 1987 up to January 1994, from March 1994 up to March 1998 and from April 1998 up to February 2000. The receipt books issued by the Bukit Panjang Town Council evidenced payment of service and conservancy charges from April 1990 up to March 1992 and she also produced a receipt book from the Sembawang Town Council showing payment of these charges from September 1999 to February 2000. The plaintiff explained that she had not been able to find the other books evidencing payment of the service and conservancy charges.
9. The fact that the plaintiff had most of the relevant receipt books in her possession to my mind showed, more probably than not, that she was the one who had made the payments concerned. I therefore found that the plaintiff had paid all or substantially all of the monies expended for the acquisition of the flat up to the date of the application. It was also clear from the receipt books that she had continued to pay the housing instalments after the filing of the application and up to the date of the hearing.
10. I therefore proceeded to consider the rights of the parties to the flat on the basis that the plaintiff had been the sole contributor to the purchase price.
Legal and beneficial ownership
11. As joint tenants of the flat, the plaintiff and defendant have at law an identical interest in the whole of the flat. The position is, however, different in equity because of the way in which they paid for the flat. The governing principle is that where two or more persons buy a property together but pay for it in unequal shares, then even if they register themselves as joint owners of the property, the law will presume that the express joint tenancy has been severed in equity into an implied tenancy in common in unequal shares proportioned to the amount of the purchase price contributed by each co-owner. As Professor Tan Sook Yee puts it in Principles of Singapore Land Law (at pp 91 to 92):
‘Equity leans in favour of tenancies in common in given situations because of the inherent unfairness of the right of survivorship that obtains where there is a joint tenancy. For example, where A and B have contributed to the purchase price of property in unequal shares or have lent money on mortgage, or are business partners but the conveyance contains no words of severance, at law there would be a joint tenancy. If they are also joint tenants in equity, on the death of one of the joint tenants, the surviving joint tenant will succeed to the ‘share’ of the deceased joint tenant by the right of survivorship, so that the estate of the deceased joint tenant will get nothing. In the circumstances, this result is manifestly unfair and equity will recognise that while A and B are joint tenants at law, they are also tenants in common in equity and each should be entitled to a share proportionate to his contribution. The net result is that A and B are joint tenants in law, holding in trust for themselves as tenants in common...
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