Neo Tai Kim v Foo Stie Wah

• Jurisdiction: Singapore
• Judge: T Kulasekaram J
• Judgment Date: 17 September 1981
• Neutral Citation: [1981] SGCA 8
• Date: 17 September 1981
• Subject Matter: Matrimonial assets,Resulting trusts,Onus on person seeking to negate presumption of advancement,Family Law,Presumption of advancement,Whether rebutted,Trusts,Division,Presumed resulting trusts,Property in wife's name
• Docket Number: Civil Appeal No 109 of 1980
• Published date: 19 September 2003
• Defendant Counsel: LAJ Smith (LAJ Smith)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: HE Cashin (Murphy & Dunbar)

This appeal by the appellant and cross-appeal by the respondent arises from certain orders relating, to property rights inter se made by FA Chua J in consolidated suits nos 3744 of 1976 and 3999 of 1976 and in suit no 637 of 1977 ordered to be heard by the same trial judge immediately after the hearing of the consolidated suits. At the hearing of the consolidated suits the parties agreed that the evidence led therein be used in Suit No 637 of 1977. At the time of the trial the appellant and the respondent were husband and wife respectively, they having been married in 1954 according to Chinese customary rites.

Suit n o 3744 of 1976

- In this suit the respondent, who was the plaintiff therein, averred that (1) she was the registered sole proprietor of a restaurant business situate at No G27, Supreme House, Penang Road, Singapore (the premises) and known as Skillets and (2) she was entitled to possession of the premises as lessee by a lease dated 12 September 1974 made between the owners of the premises and herself. She further averred that the Asia Commercial Banking Corp Ltd had allowed Skillets overdraft facilities up to a limit of $100,000 on the security of her two Properties known as 42 Mount Sinai Avenue and 56 Mount Sinai Drive, Singapore. Her claim against the appellant, who was the defendant in the suit, was for possession of the premises together with all the equipment, furniture and fittings therein and for an account of all receipts and payments dealings and transactions carried out by the appellant from 1 June 1974 to date of judgment.

In his amended defence and counter-claim the appellant contended that he was at all material times the true owner of Skillets and that it was registered in the respondent`s name as his nominee and that by reason thereof the respondent was holding Skillets in trust for him and counterclaimed that Skillets, registered in the Registry of Business Names in the name of the respondent, was held by her as his trustee and nominee for his benefit absolutely. He further averred that he was the true owner of the aforementioned two properties and that all payments for their purchase including all outgoings were made by him out of his funds and sought a declaration that these two properties registered in her name were held by her in trust for him absolutely.

In her reply to the amended defence and counterclaim the respondent, inter alia, denied that the appellant had invested any capital in Skillets and denied that the payments for the purchase of the aforementioned properties were made by the appellant out of his own funds.

Suit

N o 3999 of 1976

- In this suit the respondent; the plaintiff therein, pleaded that she had mortgaged her two pieces of immovable property known as No 44 One Tree Hill and No 36 Belmont Road to the Chung Khiaw Bank Ltd and Malayan Banking Berhad respectively to secure the overdraft account of the appellant, the defendant therein, with the two banks. She claimed for two declarations that she was entitled to be discharged and exonerated from all liabilities under the two mortgage deeds dated respectively 15 March 1972 and 25 February 1974 and for orders that the appellant (1) do pay forthwith to the two banks all moneys due and owing to them and (2) do obtain reconveyances of the said two properties.

The appellant in his amended defence and counterclaim pleaded that all payments for the purchase of the said two properties including all outgoing, expenses were made by him out of his own funds and counterclaimed for a declaration that the said two properties which were registered in the name of the respondent were held by her in trust for him. On an application by the respondent under O 14 r 3 judgment was entered on 4 March 1977 for the respondent on her claim for the two declarations, leave being given to the respondent to defend the balance of the claim. In her reply to the amended defence and counterclaim the respondent averred that (1) the funds used to purchase 44 One Tree Hill were her own funds and (2) the funds used to purchase 36 Belmont Road were funds generated from a business known as Emerald Room in which she worked full time as a working wife and the house which was bought from the funds so provided was meant and intended to be for her sole beneficial use.

Suit

N o 637 of 1977 - In this suit the appellant, the plaintiff therein, claimed against the respondent, the defendant therein, for a declaration that houses Nos 19 Jalan Mariam, Singapore and 2 Grove Lane, Singapore registered in the respondent`s name were held by her in trust for him absolutely. In her defence the respondent pleaded that she and the appellant, her husband, had for several years carried on business as restaurateurs together and that these two properties among others, were by agreement between the appellant and herself bought out of the funds of such business for her sole beneficial use.

It is quite clear from the record of appeal that both parties led evidence and presented their cases well outside the limits of their pleadings without objection from either side. It therefore lies ill in the mouth of the appellant for him to say in his grounds of appeal that `the learned trial judge erred in law in considering the doctrine of presumption of advancement when the respondent never pleaded it nor relied on it to prove that the property purchased (44 One Tree Hill) in her name was in fact hers` and again that `The respondent in her pleadings and in her evidence rested her case on the fact that she bought the said house (44 One Tree Hill) out of her savings which fact the learned trial judge rejected. It was never the respondent`s case as set out in her pleadings or relied on in her evidence that the said house was bought for her as the matrimonial home`. In this situation we are not surprised that the trial judge based his findings on the evidence as presented in court and gave his judgment on the submissions made to him by counsel. We therefore propose to deal with this appeal on the basis of the evidence presented in the trial court and on the submissions made by counsel to the trial judge.

At the end of the trial the issues before the learned trial judge were, in our view, as follows:

A On the evidence before the trial court and in accordance with equitable principles relating to trusts who was or were the beneficial owner or owners of No 44 One Tree Hill (Suit 3999 of 1976), the matrimonial home of the respondent, the legal estate therein being vested in the respondent.

B On the evidence before the trial court and in accordance with equitable principles relating to trusts and according to the law of partnership who was or were the beneficial...