Ng Ai Tee (administratrix of the estate of Yap Yoon Moi, deceased) v Ng Chee Chuan

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 19 March 2008
• Neutral Citation: [2008] SGHC 40
• Court: High Court (Singapore)
• Year: 2008
• Published date: 20 March 2008
• Plaintiff Counsel: Kelvin Chia Swee Chye (Balkenende Chew & Chia)
• Defendant Counsel: Yoga Sharmini Yogarajah and Ryan Thomas Jacob (Haridass Ho & Partners)
• Subject Matter: Civil Procedure
• Citation: [2008] SGHC 40

19 March 2008 Judgment reserved.

Judith Prakash J

Background

1 This is, basically, a family dispute. The plaintiff, Mdm Ng Ai Tee, has commenced action as the administratrix of the estate of her mother, Mdm Yap Yoon Moi (“Mdm Yap”) against her half brother, the defendant, Ng Chee Chuan, to recover certain moneys due to Mdm Yap under an alleged oral agreement.

2 The plaintiff and the defendant are two of the nine children of one Ng Ah Hing (“NAH”) who died on 8 June 1993. NAH had three wives. The defendant and his elder brother, Ng Chee Hua (“Larry Ng”), were the sons of the second wife but, as this marriage ended when the boys were young, they were brought up by NAH’s first wife, Mdm Teng, and lived with her and her five children. Mdm Yap was NAH’s third wife and she had two children by him, the plaintiff and her younger brother, Alex Ng Tian Poh (‘Alex Ng”). Throughout his marriage to Mdm Yap, NAH maintained her and their children in a separate household from that occupied by Mdm Teng and his other children.

3 NAH was an enterprising and successful businessman. When he died, he had assets in Singapore, Malaysia and Hong Kong. Among these assets were 4,688 ordinary shares in a company called Sin Thai Hin Trading Pte Ltd (now known as Sin Thai Hin Holdings Pte Ltd) (“the Company”) which served as his main business vehicle. The dispute in this case arose out of the claim that the defendant made on his father’s death that 3,913 of those shares (“the trust shares”) had been held by NAH on trust for him.

4 NAH died intestate. As a result, under the provisions of the Intestate Succession Act, (Cap 146, 1985 Rev Ed) each of his wives was entitled to inherit 25% of his estate with the remaining 50% being divided amongst his nine children in equal shares. Thus, Mdm Teng and Mdm Yap were each entitled to claim an interest in the trust shares.

5 At a family meeting held on 25 June 1993 (“the 25 June meeting”), however, each of NAH’s heirs including his wives and all his children except the defendant executed a deed by which they acknowledged the defendant’s claim to the trust shares. Apart from the name and description of the maker of each deed, the contents of all the deeds were identical. Each deed was signed before an advocate and solicitor who also made an attestation that he had fully explained the nature of the deed to each of the signatories whose signature he witnessed and that such signatory appeared to perfectly understand the contents of the deed. The deed signed by Mdm Yap read as follows:

THIS DEED is made by YAP YOON MOI (holder of NRIC No. 0450212/D) of 25J Jalan Datoh, Singapore 1232 on the 25^th day of June One Thousand Nine Hundred and Ninety-Three (1993)

WHEREAS

1. NG AH HING, Deceased (hereinafter called “the Deceased”) holder of NRIC No. 0762739/D late of 23 Jalan Raya, Singapore 1336 passed away at 23 Jalan Raya, Singapore 1336 on the 8^th day of June 1993.

2. I am the lawful wife and next of kin of the Deceased.

3. The Deceased had at the date of his demise, 4,688 shares in SIN THAI HIN TRADING PTE LTD.

4. The Deceased had made it known that of the said 4,688 shares he held 3,913 shares for the exclusive benefit of the Deceased’s lawful son and next of kin NG CHEE CHUAN, holder of NRIC No. 0085765/C.

NOW THIS DEED WITNESSETH that I the abovenamed YAP YOON MOI hereby acknowledge that the Deceased held 3,913 shares in SIN THAI HIN TRADING PTE LTD upon trust for the said NG CHEE CHUAN and further declare I shall have no claim or interest in the said shares.

6 The plaintiff’s case is that Mdm Yap signed the deed because, at the defendant’s request, she had made an oral agreement with him not to claim her entitlement to the trust shares or to contest the defendant’s claim that 3,913 shares were held in trust for him, in exchange for his promise to pay her the sum of $2,500 per month until the entire value of her 25% stake in the trust shares had been paid off. Payment of the allowance was halted after February 2006. By then, Mdm Yap and her estate had received a total of $296,500. The plaintiff’s claim is that the total amount payable under the oral agreement was $953,069.85 (being 25% of the net value of the estate of NAH as assessed by the estate duty office) and therefore that, after set-off of the payments already made, the amount of $656,569.85 was still due and payable to the estate of Mdm Yap.

7 The defendant’s case is that there was no such oral agreement. He asserted that his siblings and step-mothers had voluntarily recognised the trust over the trust shares in his favour and had gratuitously relinquished their respective claims to the same after the circumstances had been explained to them at the 25 June meeting. Regarding the payment of $2,500 per month, he said that he had voluntarily undertaken to procure that the Company and/or its subsidiaries or associates would make a monthly payment of this amount to each of Mdm Teng and Mdm Yap as financial support for his father’s widows. There was no agreement to buy over Mdm Yap’s interest from her on the basis of the value of the trust shares and when Mdm Yap died, her allowance died with her.

8 It can be seen from the summary above that the dispute herein is a dispute of fact as to whether or not the parties had concluded a contract whereunder in return for payment Mdm Yap had relinquished any interest in the trust shares that she might otherwise have held. In a case like this, where documentation is sparse, credibility of the witnesses and the inherent likelihood of the stories they tell become decisive. I must therefore recount the evidence in some detail.

The plaintiff’s story

Ng Ai Tee

9 The plaintiff is the elder child of Mdm Yap and NAH. She is a professional, having graduated from the National University of Singapore in 1985 with a Bachelor’s degree in accountancy. At the time of the trial she was working as a tax consultant in a company owned by herself and her husband.

10 In her affidavit of evidence-in-chief, the plaintiff set out the background of the two families of NAH. The two families lived in separate homes and there was little interaction between them. Mdm Teng owned a house at Jalan Raya whilst Mdm Yap owned an apartment at Jalan Datoh. These homes had been given to them by NAH. Apart from occasional visits during festive occasions, the plaintiff and her family did not spend a great deal of time with Mdm Teng’s family.

11 NAH was born into a poor family in China in 1923. He immigrated to Singapore in 1935 and over the years he developed his business interests until he had a variety of businesses. Mdm Yap who did not have formal education was concerned as to how she would be provided for in the event of her husband’s death. NAH assured Mdm Yap that she would be adequately taken care of since his shares in the Company were intended for the family. The plaintiff said that NAH had never stated or even hinted that he was holding his shares in the Company on trust for the defendant.

12 NAH died suddenly on 8 June 1993. At that time he held 4,688 shares in the Company out of which 3,913 were the trust shares. The plaintiff said that the number 3,913 was not selected randomly. It was the number of shares that would give the defendant a 51% stake in the Company when added to his own shareholding in the Company at that time.

13 According to the plaintiff, one or two weeks after NAH’s death, Larry Ng visited her at her office and asked her to get her side of the family (ie Mdm Yap, Alex Ng and herself) to support the proposed transfer of the trust shares to the defendant so that he could become the majority shareholder of the Company. When the plaintiff informed her of this request, Mdm Yap was unhappy. She was reluctant to transfer her shares to the defendant as she was intending to sell them to the Company’s shareholders in order to obtain funds to provide for her in her old age. The plaintiff suggested to Mdm Yap that she should receive some payment for the shares if it was necessary for them to be transferred. Mdm Yap then asked the plaintiff to work out a reasonable price for the shares.

14 The plaintiff did so. She knew that NAH had held about 50% of the shares in the Company. She therefore decided to use the Company’s most valuable assets (ie the Sin Thai Hin building and the freehold land on which it stands) to estimate the value of the shares. She took the cost of the land and building as being $3.2m on the basis of the Company’s audited accounts. She then applied a multiplier of 2.5 to reflect the appreciation in value from the time the building had been constructed (around the late 1980s). The plaintiff derived the approximate value of her mother’s share as follows:

[50% x $3,200,000 x 2.5] x 25% = $1 million

She rounded this figure down to $900,000 to factor in a possible ten percent margin of error since she was dealing with estimated numbers.

15 The plaintiff informed Mdm Yap that it was not likely that the defendant would be able to pay $900,000 in one lump sum. She said that it would be more reasonable to break the compensation down into monthly instalments. At the time, Mdm Yap was 52 years old. Based on a life expectancy of 80 years, she would have 28 years more to live. Working backwards, the plaintiff arrived at a figure that was slightly higher than $2,600 per month. She then rounded this down to $2,500 for convenience. Mdm Yap said that this monthly sum would be acceptable to her if she was compelled to relinquish her shares.

16 Shortly thereafter, the defendant had a meeting with Mdm Yap and the plaintiff. During the meeting, he tried to persuade Mdm Yap to relinquish her entitlement to the trust shares. He said that he needed to have the trust shares transferred to him immediately so that he would be able to own a majority stake in the Company. The defendant claimed that this had to be done in order for him to take over from NAH as the operator of the business. He emphasised that the...