Ng Chee Chuan v Ng Ai Tee

• Jurisdiction: Singapore
• Judgment Date: 04 March 2009
• Date: 04 March 2009
• Docket Number: Civil Appeal No 49 of 2008
• Court: Court of Appeal (Singapore)

Ng Chee Chuan

Plaintiff

and

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

Defendant

[2009] SGCA 10

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 49 of 2008

Court of Appeal

Contract–Breach–Breach of alleged oral agreement–Whether there was alleged oral agreement–Evidence–Witnesses–Inappropriate to rely primarily on credibility of witnesses as basis for drawing factual interferences where events in question had taken place many years ago and there were undisputed objective facts–Availability of contemporaneous documents reduced need to rely on testimony of witnesses on stand

The respondent, Ng Ai Tee, was the administratrix of the estate of her late mother, Mdm Yap Yoon Moi (“Mdm Yap”). She commenced an action against her half-brother, Ng Chee Chuan (“the appellant”), to recover certain moneys due to Mdm Yap under an alleged oral agreement. The appellant denied the existence of any such agreement.

After analysing the relevant evidence, the trial judge concluded that there was an oral agreement between Mdm Yap and the appellant and gave judgment for the respondent. The appellant appealed.

Held, allowing the appeal:

(1) An appellate court should be slow to overturn a trial judge's findings of fact, especially where they hinged on the trial judge's assessment of the credibility and veracity of witnesses, unless they could be shown to be plainly wrong or against the weight of the evidence. However, intervention by an appellate court was justified where the inferences drawn by a trial judge were not supported by the primary or objective evidence on record: at [12]and [13].

(2) A judge could make a finding on the credibility of a witness based on: (a) his demeanour; (b) the internal inconsistency (or lack thereof) in the content of his evidence; and/or (c) the external inconsistency (or lack thereof) between the content of his evidence and extrinsic objective evidence. It was important to bear in mind the difference between an assessment of a witness's credibility based, on the one hand, on his demeanour and, on the other hand, on inconsistencies in that witness's testimony or between his evidence and the extrinsic objective facts. In the latter situations, the advantage of the trial judge in having heard the witness was not as critical because the appellate court would have access to the same material as the trial judge, and would be in as good a position as the trial judge to assess the witness's credibility: at [14].

(3) While it was no doubt necessary to ascertain the credibility of witnesses in most cases where the oral evidence of the parties conflicted, it was not always appropriate to rely primarily on credibility (determined on the basis of inconsistent testimony) as a basis for drawing factual inferences, especially where the events in question had taken place many years ago and there were undisputed objective facts. In this case, the question of the credibility of witnesses should have played a smaller role in the overall assessment as to where the truth lay given the presence of contemporaneous documents and undisputed facts. The trial judge should have drawn inferences from these pieces of objective evidence instead of reaching conclusions influenced heavily by what was believed to be the credibility of the parties: at [16] and [17].

(4) The behaviour of the parties, scrutinised objectively, militated against the likelihood of an oral agreement having been reached between Mdm Yap and the appellant. The respondent's explanations for arriving at the various figures in the alleged oral agreement also did not gel with her background and training. Objectively assessed, the respondent's reasons did not stand up to scrutiny, and without a credible basis for adopting the figures supposedly used in the oral agreement, the court found it harder still to be convinced that there had been in existence an oral agreement to compensate Mdm Yap. These illogical aspects of the respondent's case had already been canvassed before the trial judge, but faced with the same objective facts, the court was of the view that the trial judge had not drawn the appropriate inferences: at [26] and [39].

(5) The first time the respondent mentioned any sort of an oral agreement was in her letter of 30 July 2002 (“the July 2002 letter”), written nine years after the event, and even then the oral agreement referred to therein was different from the oral agreement alleged in the pleadings. In the letter, the agreement was one where the appellant would pay Mdm Yap a monthly consideration of $2,500 for “as long as she lives”. In court, the respondent alleged that the oral agreement was that the appellant would pay Mdm Yap the sum of $2,500 a month until the entire value of her interest in certain trust shares had been repaid. The trial judge did not draw the correct inferences from the July 2002 letter either: at [42], [48] and [49].

Farida Begam d/o Mohd Artham v PP [2001] 3 SLR (R) 592; [2001] 4 SLR 610 (refd)

Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR (R) 45; [2006] 4 SLR 45 (refd)

Powell v Streatham Manor Nursing Home [1935] AC 243 (refd)

PP v Choo Thiam Hock [1994] 2 SLR (R) 702; [1994] 3 SLR 248 (refd)

Yap Giau Beng Terence v PP [1998] 2 SLR (R) 855; [1998] 3 SLR 656 (refd)

Evidence Act (Cap 97,1997 Rev Ed)s 32

Davinder Singh SC, Chenthil Kumar Kumarasingam and Una Khng (Drew & Napier LLC) for the appellant

Chia Swee Chye Kelvin (Balkenende Chew & Chia) for the respondent.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 The present proceedings stemmed from an action commenced by Ng Ai Tee (“the respondent”), against her half-brother, Ng Chee Chuan (“the appellant”). The respondent is the administratrix of the estate of her late mother, Mdm Yap Yoon Moi (“Mdm Yap”). The action sought to recover certain moneys due to Mdm Yap under an alleged oral agreement. The appellant denied the existence of any such agreement. After analysing the relevant evidence, the trial judge concluded that there was an oral agreement between Mdm Yap and the appellant and gave judgment for the respondent (see Ng Ai Tee v Ng Chee Chuan [2008] SGHC 40 (“the Judgment”)). The appellant appealed. Having heard the arguments of the parties, we allowed the appeal and reversed the decision of the court below. We now give our reasons.

Brief facts

2 The trial judge has canvassed the background facts in great detail at [1]- [59] of the Judgment, including both the appellant's as well as the respondent's version of the events and we propose merely to recite the most salient facts here.

3 Despite the chasm between the parties' versions of the events, some material facts were not in dispute. The appellant and the respondent are half-siblings. Their father was one Ng Ah Hing (“NAH”), who had three wives and nine children. The appellant and his elder brother, Ng Chee Hua, were the sons of NAH's 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 bore him two children - the respondent and her younger brother, Alex Ng Tian Poh (“Alex Ng”). Throughout her marriage to NAH, Mdm Yap and her children were maintained in a separate household from that occupied by Mdm Teng and the other seven children.

4 On 8 June 1993, NAH died intestate. Accordingly, each of his surviving two wives were entitled to inherit 25% of his estate with the remaining 50% to be divided amongst his nine children in equal shares. Among NAH's 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”). In the circumstances, Mdm Teng and Mdm Yap were each entitled to an interest in the shares which NAH held in the Company.

5 It was however the appellant's claim that out of the 4,688 shares, 3,913 (“the trust shares”) had been held by NAH in trust for him. Subsequently, at a family meeting held on 25 June 1993, each of NAH's two wives and eight children (excluding the appellant but including the respondent) executed individual deeds by which each acknowledged the appellant's claim to the trust shares and further declared that he or she had no interest in the said shares.

6 From July 1993 until her death in November 1997, Mdm Teng received a monthly payment of $2,500. Similarly, Mdm Yap also received a monthly sum of $2,500 for about six years until December 1998. In January 1999, this monthly payment was reduced to $2,000, and from July 2002 onward it was further reduced to $1,000. The actual payments to both widows were made by the Company or its subsidiaries.

The dispute

7 The respondent alleged in her pleadings that Mdm Yap had signed a deed only because of an oral agreement between the latter and the appellant to the effect that Mdm Yap would not claim her entitlement to the alleged trust shares or contest the appellant's claim to those shares in exchange for the appellant's 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 reimbursed. By the time all payments to Mdm Yap were halted in end February 2006, Mdm Yap and her estate had received a total of $296,500. The respondent claimed that the total amount payable under the oral agreement was $953,069.85, being 25% of the net value of NAH's estate as assessed by the estate duty office, and therefore, after setting off the payments already received, an amount of $656,569.85 remained due and payable to Mdm Yap's estate.

8 At this juncture, we ought to mention that Mdm Yap passed away on 24 June 2004 but this fact was apparently not known to the appellant until late February 2006 and thus payment to Mdm Yap had only ceased thereafter. It was not in dispute that the respondent never informed the appellant of...