Quah Kay Tee v Ong & Co Pte Ltd

CourtCourt of Three Judges (Singapore)
JudgeChao Hick Tin J
Judgment Date12 November 1996
Neutral Citation[1996] SGCA 70
Citation[1996] SGCA 70
Subject MatterInsolvency Law,Voluntary transfer of shares,Shares,Requirement of 'predominant purpose' in conspiracy by lawful means,Whether share transaction avoided,Conspiracy,Administration of insolvent estates,Constructive fraud,Whether tort established on the facts,Lawful means and unlawful means,Donor deeply indebted at time of transfer,Tort,c 5 Statute of 13 Elizabethan (1571)
Defendant CounselWoo Bih Li and Ng Hweelon (Bih Li and Lee)
Docket NumberCivil Appeal No 135 of 1995
Plaintiff CounselSamuel Chacko and Manjit Singh (Manjit Samuel and Partners)
Published date19 September 2003
Date12 November 1996
The facts

In this appeal the validity of the transfer of shares in a private company was in question. The salient facts leading to this appeal were as follows.

(a) Prior to 9 September 1992, the debtor, one Quah Wee Tiong (Wee Tiong), a stockbroker once employed by the respondents, owed the latter money amounting to $1,552,027.99 for share transactions. On 9 September 1992 in Suit No 1842/92 the respondents commenced an action against Wee Tiong for the recovery of the said sum.

(b) On 11 September 1992, the respondents obtained an order to arrest Wee Tiong in the action. The next day, the respondents unsuccessfully attempted to execute the arrest order and to serve the writ of summons on Wee Tiong at 8 Jubilee Road where he ordinarily resided with the appellant, his father. Wee Tiong was outside Singapore at that time.

(c) On 15 September 1992, the respondents obtained an interim injunction in the said action to restrain Wee Tiong from disposing or otherwise dealing with his assets. But the order remained at the time unserved personally on Wee Tiong. On the same day, the respondents` solicitors then, M/s Allen and Gledhill, wrote to M/s David Lim and Partners, who were then Wee Tiong`s solicitors in the sale of a property at 8A Duchess Park, Duchess Road, informing them of the order of interim injunction. M/s David Lim and Partners acknowledged M/s Allen and Gledhill`s letter the same day.

(d) Some time in September 1992, Wee Tiong was notified about the injunction by either his solicitors or his brother, Quah Wee Tong (`Wee Tong`) who was then working in M/s David Lim and Partners. Wee Tong admitted that, in September 1992, he gave advice to Wee Tiong about the injunction.

(e) Some time in December 1992, Wee Tiong returned to Singapore but the respondents were unaware of it. On 8 December 1992, Wee Tiong transferred 720 shares of Soon Aik (Pte) Ltd (Soon Aik) for a purported consideration of $10 to the appellant who is the patriarch of the family`s company.

(f) On 24 April 1993, the Sheriff, accompanied by the respondents` representative and their present solicitors` representative, went to 8 Jubilee Road and arrested Wee Tiong who was brought before the learned judicial commissioner to show cause. The arrest order was discharged after solicitors for both sides were heard. Wee Tiong, through his solicitors, then entered an appearance to the said action.

(g) On 26 July 1993, the respondents obtained judgment against Wee Tiong for the said sum of $1,552,027.99 and interest thereon at 6% pa from 9 September 1992 to 26 July 1993 and costs fixed at $1,500 against Wee Tiong in the said action.

(h) On 13 August 1993, the respondents` solicitor, together with the Sheriff proceeded to the registered office of Soon Aik to inspect the company`s Register of Members. But they were referred instead to Soon Aik`s auditors, Menon and Associates, because Soon Aik`s representative was unable to furnish the records. As it turned out, the respondents` attempt to seize Wee Tiong`s 720 shares in Soon Aik failed because they had already been transferred to the appellant.

(i) On 9 September 1993, the present action was commenced in the court below against the appellant for damages; or alternatively, for an order that the share transfer on 8 December 1992 be avoided and the 720 shares be registered in the respondents` name.

This appeal therefore arose out of the decision by the learned judicial commissioner below to grant the respondents interlocutory judgment against the appellant, with damages to be assessed by the Registrar of the Supreme Court.

The decision below

The appellant`s defence in the court below was that the 720 Soon Aik shares were transferred to him in consideration of a $40,000 loan which he had previously extended to his son, Wee Tiong. This loan was given some time in early 1992, well before the respondents commenced their action for the recovery of debts owed by Wee Tiong. However, the share transfer was only formalised on 8 December 1992.

The learned judicial commissioner found that, on the evidence, the appellant and Wee Tiong had committed a conspiracy to injure the respondents by putting the 720 shares of Soon Aik out of the latter`s reach. He also found that there was an intention to defraud the respondents under s 73B of the Conveyancing and Law of Property Act, thereby rendering the share transfer void. He therefore ordered that the appellant do pay the respondents damages for the conspiracy, in such amount as may be determined by the Registrar of the Supreme Court.

Issues in the appeal

The appellant raised the following issues in this appeal:

(a) whether on the evidence adduced, the respondents had proved that the appellant had conspired with Wee Tiong to injure their interests;

(b) whether the respondents had proved that the transfer of the 720 shares from Wee Tiong to the appellant was made with intent to defraud them and was accordingly void;

(c) whether the learned judicial commissioner had made the correct findings and inferences concerning the two main issues above.

(1) On the face of it this appeal turned only on questions of fact and on whether the respondents had discharged their burden of proof in the court below. But we took the view that there emerged in this case two other important issues which had to be considered. The first related to the question whether constructive fraud had any role to play in avoiding the share transfer. And the second concerned the question whether the tort of conspiracy was proved. We will revert to these matters later.

The appeal

The Elizabethan Statute


The respondents contended that the share transfer was void because it was caught by the Statute of 13 Elizabethan (1571) c 5 intituled An Act Against Fraudulent Deeds, Gifts, Alienations, Etc (the Elizabethan Statute), a statute that was clearly made for the protection of creditors.

However, the learned judicial commissioner stated that the correct provision to apply was s 73B of the Conveyancing and Law of Property Act (Cap 61) (CLPA). His reasoning was as follows:

At this juncture, I wish to clarify that the Elizabethan Statute was replaced in the United Kingdom in a much `shortened` form as s 172(1), (2) and (3) of the Law of Property Act 1925. In Singapore, the Application of English Law Act (Cap 7A), amended the CLPA by identically replacing in a shortened form the Elizabethan Statute by adding s[para ]73B(1)-(3) to that Act which reads:

(1) Except as provided in this section, every conveyance of property made whether before or after 12th November 1993, with intent to defraud creditors, shall be voidable, at the instance of any person thereby prejudiced.

(2) ...

(3) ...

The plaintiffs had pleaded the Elizabethan Statute as governed by s 5 of the Civil Law Act (Cap 43) as they had commenced action on 9 November 1993. Counsel for the defence had made no issue on the lack of any amendment to the pleadings by the plaintiff to substitute the above s 73B for the Elizabethan Statute as the law is in pari materia and as s 73B refers in any case to the conveyance of property both before or after 12 November 1993, the operational date of the law.

The question was whether the Elizabethan Statute or s 73B CLPA were the governing statutory provisions. The wording of s 73B is derived from s 172 of the English Law of Property Act 1925. That section is similar in material respects to s 73B.

Section 172 was itself re-enacted from para 31 of Part II of Sch 3 to the Law of Property (Amendment) Act 1924, which did not independently come into operation. It was this 1924 Act which had substantially altered the prolix sections 2 and 6 of the Elizabethan Statute: see Lloyds Bank v Marcan [1973] 2 All ER 360, 367. Subsequently, the English Law of Property Act 1925 consolidated the said paragraph in the 1924 Act and reproduced it in s 172. Section 3 of the 1924 Act states that `[t]he amendments and provisions, for facilitating the consolidation of the statute law relating to conveyancing and property, contained in the Third Schedule to this Act, shall have effect.` Section 3 made it clear that the said paragraph in the 1924 Act was a consolidation with amendments. In the absence of any express words to the contrary the 1924 Act and the 1925 Act were intended to operate with prospective effect.

Accordingly, if the cause of action accrued before the commencement date of s 73B it would follow that the Elizabethan Statute would apply. By the same token, if the cause of action accrued after the commencement date of s 73B then s 73B would be the governing statutory provisions. Usually...

To continue reading

Request your trial
54 cases
  • Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch)
    • Singapore
    • Court of Three Judges (Singapore)
    • 16 January 2006
    ......, ex parte Princess Edmond de Polignac [1917] 1 KB 486 (folld) Lock International Plc v Beswick [1989] 1 WLR 1268 (folld) Lonrho plc v Fayed [1992] 1 AC 448 (folld) Nikkomann Co Pte Ltd v Yulean Trading Pte Ltd [1992] 2 SLR (R) 328; [1992] 2 SLR 980 (folld) Quah Kay Tee v Ong and Co Pte Ltd [1996] 3 SLR (R) 637; [1997] 1 SLR 390 (folld) R v Siracusa (1990) 90 Cr App R 340 (folld) Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd's Rep 428 (folld) Tay Long Kee Impex Pte Ltd v Tan Beng Huwah [2000] 1 SLR (R) 786; [2000] 2 SLR ......
  • Beckkett Pte Ltd v Deutsche Bank AG and another
    • Singapore
    • High Court (Singapore)
    • 21 September 2007
    ...173 (refd) Medforth v Blake [2000] Ch 86 (folld) Parker-Tweedale v Dunbar Bank plc [1991] Ch 12 (refd) Quah Kay Tee v Ong & Co Pte Ltd [1996] 3 SLR (R) 637; [1997] 1 SLR 390 (folld) Quinn v Leathem [1901] AC 495 (refd) Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410; [1982] 3 All ER ......
  • Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng
    • Singapore
    • High Court (Singapore)
    • 3 August 2009
    ...1 All ER 398 (folld) Poon Kng Siang v Tan Ah Keng [1991] 2 SLR (R) 621; [1992] 1 SLR 562 (folld) Quah Kay Tee v Ong and Co Pte Ltd [1996] 3 SLR (R) 637; [1997] 1 SLR 390 (folld) R v Siracusa (1990) 90 Cr App R 340 (refd) Seagate Technology (S) Pte Ltd v Heng Eng Li [1994] 1 SLR (R) 1; [1994......
  • Recordtv Pte Ltd v MediaCorp TV Singapore Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 21 December 2009
    ...LP v Burhan Uray [2004] SGHC 115 (distd) Osprey, The [1999] 3 SLR (R) 1099; [2000] 1 SLR 281 (refd) Quah Kay Tee v Ong and Co Pte Ltd [1996] 3 SLR (R) 637; [1997] 1 SLR 390 (folld) Copyright Act (Cap 63,2006 Rev Ed)s 200 Rules of Court (Cap 322, R 5, 2006Rev Ed)O 18rr 19, 19 (b)- (d) Civil ......
  • Request a trial to view additional results
7 books & journal articles
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2012, December 2012
    • 1 December 2012
    ...the action in lawful means conspiracy (Crofter Hand Woven Harris Tweed Co, Ltd v Veitch[1942] AC 435; Quah Kay Tee v Ong and Co Pte Ltd[1996] 3 SLR(R) 637). For this reason, it is more difficult to prove predominant purpose to injure in lawful means conspiracy than to prove intention to inj......
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2011, December 2011
    • 1 December 2011
    ...to cause injury or damage to the plaintiff, and the act is carried out and the purpose achieved (Quah Kay Tee v Ong & Co Pte Ltd[1996] 3 SLR(R) 637). 23.81 There was no conspiracy among the second to ninth defendants to drive the plaintiff away from the premises and/or to damage or destroy ......
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2018, December 2018
    • 1 December 2018
    ...period between 2006 and 2008. 1 [2018] SGDC 207. 2 [2018] 5 SLR 1. 3 [2018] SGHC 166. See para 26.39 below. 4 [1920] 3 KB 497. 5 [1996] 3 SLR(R) 637 at [47]–[50]. 6 See para 26.1 above. 7 (1942) 66 CLR 18. 8 (1989) 62 DLR (4th) 261. 9 [2004] 4 SLR(R) 801. 10 [2008] 1 SLR(R) 80. 11 [2011] 1 ......
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2021, December 2021
    • 1 December 2021
    ...of the Rules of Court (2014 Rev Ed) on behalf of all of the members of the affected communities. 66 Quah Kay Tee v Ong and Co Pte Ltd [1996] 3 SLR(R) 637. 67 [1920] 3 KB 497. 68 [2018] 1 SLR 818. This decision was reviewed in (2018) 19 SAL Ann Rev 756 at 785–759, paras 26.5–26.7. 69 Indepen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT