Ong Chai Soon v Ong Chai Koon and others

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 22 April 2022
• Neutral Citation: [2022] SGCA 36
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 54 of 2021
• Year: 2022
• Published date: 27 April 2022
• Hearing Date: 21 February 2022
• Plaintiff Counsel: Choo Zheng Xi and Yuen Ai Zhen Carol (Peter Low & Choo LLC) (instructed), Kertar Singh s/o Guljar Singh, Anil Singh Sandhu s/o Kertar Singh and Rueben S Pillaii (Kertar & Sandhu LLC)
• Defendant Counsel: Nandwani Manoj Prakash and Quah Chun En Joel (Ke Chun'en) (Gabriel Law Corporation)
• Citation: [2022] SGCA 36

Andrew Phang Boon Leong JCA (delivering the judgment of the court):Introduction

Established in February 1960 amidst an acute housing shortage, the Housing & Development Board (“HDB”) was tasked with the considerable endeavour of providing homes for the rapidly growing population of a newly self-governing state (see Centre for Liveable Cities & HDB, Housing: Turning Squatters into Stakeholders (Cengage Learning Asia Pte Ltd, 2013) at p 5). Today, HDB properties house approximately 80% of Singapore’s population (see HDB, “HDB History and Towns” (accessed 9 March 2022)). This remarkable feat of national planning has been facilitated over the years by an intricate statutory regime, chiefly comprising successive iterations of the Housing and Development Act and the Land Acquisition Act. These statutes have, in turn, imposed various restrictions and conditions on the rights that private individuals may acquire in HDB property, being as it is property with a rather unique character.

One such restriction is set out in s 51(10) of the Housing and Development Act (Cap 129, 2004 Rev Ed) (“the HDA”), which provides that “[n]o person shall become entitled to any protected property (or any interest in such property) under any resulting trust or constructive trust whensoever created or arising”. The proper interpretation of this provision and its predecessors has been considered by our courts on numerous occasions. Since the decision of Sundaresh Menon JC (as he then was) in the High Court decision of Tan Chui Lian v Neo Liew Eng[2007] 1 SLR(R) 265 (“Tan Chui Lian”), the consistent position adopted in the case law has been that the provision only bars ineligible persons from becoming entitled to any interest in HDB property under a resulting or constructive trust (which we refer to as “the Eligibility Interpretation”). In the High Court decision of Lim Kieuh Huat and another v Lim Teck Leng and another[2020] SGHC 181 (“Lim Kieuh Huat (HC)”), however, a different interpretation was proposed by Andre Maniam JC (as he then was) – that the provision bars all persons (including eligible persons) from becoming entitled to an interest in HDB property under a resulting or constructive trust if they do not already have an entitlement to the property in question (which we label “the Pre-Existing Interest Interpretation”).

The present appeal raises squarely the question of which interpretation of s 51(10) of the HDA should be preferred. Having considered the language of the provision, its legislative history and evolution, as well as the broader contextual and historical developments in which it must be situated, we endorse the Eligibility Interpretation and reject the Pre-Existing Interest Interpretation proposed in Lim Kieuh Huat (HC). In this regard, we disagree, with respect, with the analysis of the High Court judge below (“the Judge”), who expressed a tentative preference for the Pre-Existing Interest Interpretation at [152] of the High Court decision in Ong Chai Koon and others v Ong Chai Soon [2021] SGHC 76 (“the Judgment”). We affirm the Judge’s other findings regarding the common intention constructive trust that arose in this case and the inapplicability of the defence of laches. When the Eligibility Interpretation is applied, the consequence of these findings is that the respondents are entitled to the equitable relief they seek. It is on this basis that we dismiss the appeal.

Facts

The factual background to this case was canvassed in detail by the Judge at [3]–[22] of the Judgment, and we restate the material facts below.

The parties

The parties are the six children of Mr Ong Chen Kiat and Mdm Ang Mong Kwa: (a) Ms Ong Sor Kim (“SK”); (b) Ms Ong Soh Ai (“SA”); (c) Ms Ong Sor Mui (“SM”); (d) Mr Ong Chai Soon, the appellant and the eldest son of the Ong family; (e) Mr Ong Chai Koon (“CK”); and (f) Ms Ong Kim Geok (“KG”), listed from oldest to youngest (see the Judgment at [3]). We refer to SK, SA, SM, CK and KG collectively as “the respondents”.

The propertiesThe flats in Yishun

In 1988, the kampong land on which the Ong family lived was compulsorily acquired by the government. A significant sum was paid to them in compensation (“the compensation moneys”), which was kept and managed by the parties’ mother. Although the precise amount of the compensation moneys was disputed before the Judge, the parties’ evidence suggested that it was somewhere in the range of $100,000 to $176,000 (see the Judgment at [9]).

To assist in their resettlement, the Ong family was offered the opportunity to purchase two adjoining three-room HDB flats in Yishun. One flat (“Unit 172”) was paid for with about $60,000 of the compensation moneys, and was registered in the joint names of the parties’ parents. The other flat (“Unit 174”) was completely financed by a loan from the HDB, and was registered in the joint names of the appellant and CK. It was common ground that the appellant did not make any financial contributions to the payment of the loan for Unit 174 over the years (see the Judgment at [10]). We refer to Unit 172 and Unit 174 collectively as “the Yishun Flats”.

The property in Hougang

In February 1989, a tender for a two-storey HDB shophouse in Hougang (“the Property”) was successfully made in the appellant’s name, resulting in the execution of a tenancy agreement dated 31 March 1989 between the HDB and the appellant (see the Judgment at [11]).

The Property, which was a shophouse, consisted of a commercial space on the ground floor and a residential unit on the second floor. The commercial space was sub-divided into four separate spaces and let to various sub-tenants. One of these spaces was occupied by a hairdressing salon known as “Red Point Hair Beauty and Trading” (“Red Point”), which was a sole proprietorship registered in the appellant’s name. SK, SM and KG worked at Red Point from its inception until 2018, when the parties’ dispute arose (see the Judgment at [12]).

Changes in the ownership and occupancy of the properties

Over the years, the registered ownership of the Yishun Flats and the Property changed several times, as follows (see the Judgment at [13]–[15]):Unit 172: In 1994, the parties’ father passed away and their mother became the sole owner of Unit 172. In 1995, SM was added as a joint owner of Unit 172, and she became the sole registered owner of Unit 172 when the parties’ mother passed away in 2016.The Property: In 1995, the HDB offered the Property for sale to the appellant (the existing tenant), which the appellant took up. The purchase price of $782,000 was completely financed by a bank loan. The appellant was registered as the owner of the Property, and remains the sole registered owner to date.Unit 174: In 1999, CK was deregistered as a co-owner of Unit 174 as he wished to apply for an HDB flat of his own. SK replaced him as registered co-owner of Unit 174. To date, the appellant and SK are the registered joint owners of Unit 174.

Similarly, the occupancy of the Yishun Flats and the Property changed several times over the years (see the Judgment at [16]–[18]):Except for KG who was married in 1989, most of the Ong family resided in the Yishun Flats after moving out of the kampong. SA moved out of the Yishun Flats in the mid-1990s, and CK did so in 1999.The appellant: While the appellant maintained a room at Unit 174, he usually stayed on the second floor of the Property.SK and SM: In 2003, SK, SM and the parties’ mother moved from Unit 172 to the second floor of the Property. Following this, the Yishun Flats were rented out and the rental proceeds were used to pay for the family’s expenses. After the parties’ mother passed away in 2016, SK and SM continued to live in the Property until they were forced to move out by the appellant in 2018. SK and SM then moved to Unit 174.

The events leading up to the suit

On 25 June 2017, a family meeting was held at the Property (“the Family Meeting”). The meeting, which was audio-recorded, lasted for more than two and a half hours. It was described by the Judge as “fractious” with “plenty of shouting and arguing”, and “[m]any longstanding family issues were raised” (see the Judgment at [20]). Towards the end of the meeting, the appellant signed a document (“the Document”) which stated as follows:

AGREEMENT

I, Ong Chai Soon [(NRIC)] agree to share the following properties under my name with all of my siblings equally as the following properties were financially supported by late mother, Ang Mong Kwa, prior to her passing:1.[The Property]2.[Unit 174 of the Yishun Flats]

My five siblings are Ong Sor Kim [(NRIC)], Ong Soh Ai [(NRIC)], Ong Sor Mui [(NRIC)], Ong Chai Koon [(NRIC)], Ong Kim Geok [(NRIC)].

I agree to acknowledge that my siblings and I have an equal say in the matters of the mentioned properties.

In the event of selling the mentioned properties, I agree to divide the proceeds equally among my siblings and I.

After the meeting, the appellant sought legal advice. Subsequently, on 2 July 2017, he made a police report claiming that he had been forced by threats of physical violence to sign the Document (see the Judgment at [21]).

On 25 January 2018, the appellant began to demand that KG, SK and SM (who worked at Red Point) pay him rent for use of the premises, but they refused. Red Point’s business ceased shortly thereafter (see the Judgment at [21]).

On or around 25 June 2018, the appellant applied for a personal protection order (“PPO”) against the respondents. The PPO application was eventually resolved by a settlement agreement in which the parties agreed that the respondents “will not visit” the appellant at the Property, and that this was “without admission of liability by any of the parties” (see the Judgment at [21]).

On 27 December 2018, the respondents commenced proceedings against the appellant, seeking (among other things) an order that the Property...