Ong Jane Rebecca v Lim Lie Hoa and Others

• Judge: Lai Kew Chai J
• Judgment Date: 19 January 2005
• Neutral Citation: [2005] SGCA 4
• Citation: [2005] SGCA 4
• Court: Court of Appeal (Singapore)
• Published date: 17 March 2005
• Plaintiff Counsel: Andre Arul (Arul Chew and Partners)
• Defendant Counsel: Khoo Boo Jin and Daniel Tan (Wee Swee Teow and Co),Vinodh S Coomaraswamy and Chua Sui Tong (Shook Lin and Bok)
• Subject Matter: Civil Procedure,Appeals,Inquiry into assets of estate,Whether assistant registrar gave appellant opportunity to put forward best case,Whether assistant registrar erred in excluding various assets as part of estate,Probate and Administration,Account,Difference between common account and account on basis of wilful default,Whether present account was common account or account on basis of wilful default,Whether unrealised assets could be included in common account,Whether beneficiary could pick and choose in common account when trustee used money from mixed fund,Whether undervalue was relevant in common account,Trusts,Breach of trust,Identification of trust property,Administrator mixed estate funds with personal funds in bank account,Effect of mixing trust funds with trustee's personal funds,Whether assistant registrar erred in refusing to include entire account as part of estate

19 January 2005 Judgment reserved.

Judith Prakash J:

1 This appeal is one of three arising out of an inquiry conducted by Assistant Registrar Phang Hsiao Chung (“AR Phang”) into the assets of the estate of Ong Seng King (also known as Ong Seng Keng, Ong Keng Seng, Ong King Seng and Arief Husni) (“the deceased”). The parties participating in the inquiry are all beneficiaries of the estate of the deceased. Before the High Court, AR Phang’s findings were contested: see [2003] SGHC 126. Those appeals were, however, dismissed by Choo Han Teck J ([2004] SGHC 131) and the parties have now appealed further.

Background

2 The deceased was a wealthy Indonesian businessman. He was married to Lim Lie Hoa (also known as Lim Le Hoa and Lily Arief Husni) (“Mdm Lim”). The couple had three sons, the youngest of whom, Ong Keng Tong (“K T Ong”), was born after the death of the deceased. The eldest son is Sjamsudin Husni (also known as Ong Siauw Tjoan) (“S T Ong”) and the second son is Ong Siauw Ping (“S P Ong”).

3 The deceased died intestate in October 1974, leaving substantial assets in a number of jurisdictions. Initially Mdm Lim and her sister were respectively the administrator and co-administrator of the estate. In July 1978, fresh letters of administration were granted to Mdm Lim as administrator and S T Ong as co-administrator as by then S T Ong had turned 21. Mdm Lim, however, continued to wield sole control over the estate.

4 In October 1982, S T Ong married in England. His wife, now known as Jane Rebecca Ong (“Jane Ong”), petitioned for divorce in March 1988 by which time the couple had had three children. Soon after, S T Ong left England for Singapore. When Jane Ong discovered that her husband was a beneficiary of the deceased’s estate, she commenced maintenance proceedings in Singapore.

5 In June 1989, S T Ong executed a deed of release whereby he acknowledged receipt of £1,018,000 and US$150,000 in full and final settlement of his interest in the deceased’s estate. However, after a quarrel with Mdm Lim, sometime during the last quarter of 1990, S T Ong decided to co-operate with Jane Ong to recover his share of the estate from Mdm Lim. In August 1991, he executed a deed of assignment whereby he assigned to Jane Ong “one-half of all his entitlement to the distributive share of the residuary estate of [the deceased] and all other rights (if any) in or to the said Estate”. S T Ong also executed an irrevocable power of attorney giving Jane Ong the power to demand and sue for his share in the residuary estate.

6 On 21 September 1991, an Originating Summons (OS 939/1991) was filed in which S T Ong was named as the plaintiff and Mdm Lim as the defendant. These proceedings sought, inter alia, accounts and enquiries to be taken of the estate. Two months later, S T Ong switched his allegiance back to his mother, Mdm Lim, and Jane Ong then applied to be added as the plaintiff in the action and to make S T Ong the second defendant. Thereafter the proceedings were ordered to be continued as if the matter had been begun by writ.

The decision in OS 939/1991

7 The action was heard by Chao Hick Tin J (as he then was). In his judgment of 16 July 1996 ([1996] SGHC 140), Chao J found that the deed of release by which S T Ong had relinquished his rights to the estate was void and unenforceable as Mdm Lim had used undue influence in order to procure its execution. The deed of assignment in favour of Jane Ong was found to be valid and it was determined that she was, accordingly, entitled to a half-share of S T Ong’s interest in the estate. Chao J then directed that an enquiry be held to determine:

(a) the assets of the estate and their whereabouts;

(b) the extent of S T Ong’s share in the estate;

(c) the amounts that had been received by S T Ong from the estate;

(d) the amounts still due to S T Ong from the estate as at 29 August 1991 (the date of the deed of assignment); and

(e) the quantum of Jane Ong’s share under the deed of assignment.

8 Both Mdm Lim and S T Ong appealed against Chao J’s findings. By a written judgment dated 16 April 1997 (reported as Lim Lie Hoa v Ong Jane Rebecca [1997] 2 SLR 320), the Court of Appeal dismissed these appeals. Subsequently, in February 2002, Mdm Lim’s younger sons, S P Ong and K T Ong, applied successfully to be added as the third and fourth defendants to OS 939/1991, as, being beneficiaries of the estate, they had an interest in the inquiry to be conducted into the assets of the estate and the amounts received by their elder brother.

The inquiry and AR Phang’s decision

9 The inquiry commenced in October 2002. It was held over 23 days. By the time of the inquiry, S T Ong had made another about-turn and during the inquiry and the appeal to Choo J, he was supporting Jane Ong again and fighting Mdm Lim instead.

10 AR Phang addressed the issues raised in the inquiry as follows. First, all the assets belonging to the deceased at the time of his death were ascertained and valued. The legitimate debts of the deceased and the estate expenses were then deducted from the estate, and this allowed AR Phang to arrive at the notional value available for distribution on 29 August 1991. AR Phang held that the distribution of the estate was governed by the Intestate Succession Act (Cap 146, 1985 Rev Ed) of Singapore. On this basis, Mdm Lim was entitled to a half-share of the notional value of the estate, while the deceased’s three sons were entitled to one-sixth each.

11 The amounts that the estate had already distributed to S T Ong by 29 August 1991 were then determined. This was important because although S T Ong had assigned to Jane Ong half of his entitlement to the estate (and not just half of what remained undistributed), her share was necessarily limited by the extent of his remaining interest in the estate. Jane Ong was therefore entitled to one-twelfth of the notional value of the estate, subject to a cap representing S T Ong’s remaining interest in the estate as of the date of the assignment.

12 In ascertaining what assets had belonged to the deceased at the date of his death, AR Phang considered not only assets in the name of the deceased but also assets in the name of Mdm Lim that Jane Ong and S T Ong asserted should be counted as part of the estate’s assets. He made many findings in respect of these assets and dealt with them in detail in his 185-page judgment. Some of his findings were challenged before Choo J and those findings were also challenged before us. It is therefore necessary in this judgment to deal with those findings that are still in issue although this is a rather lengthy process.

Singapore assets

13 AR Phang assessed the net value of the deceased’s estate in Singapore at $11,872,574.21 after deducting legitimate estate expenses. In arriving at this figure, AR Phang rejected Jane Ong’s claims that the following assets should be included as part of the estate:

(a) Properties purchased prior to the deceased’s death in Mdm Lim’s name (collectively referred to as the “Class A assets”), namely:

(i) 31 Ford Avenue;

(ii) 17 Leng Kee Road;

(iii) 251 Tanglin Road;

(iv) 73N Cairnhill Mansion;

(v) 69 Cairnhill Mansion;

(vi) 16 East Sussex Lane; and

(vii) 20D Norfolk Road.

(b) Properties purchased after the deceased’s death in the name of Mdm Lim or “parties related to her” (collectively referred to as the “Class B assets”), namely:

(i) #10-02 Lucky Tower;

(ii) Unit 30D Block A, Leonie Towers;

(iii) #07-02 The Claymore, 27 Claymore Road;

(iv) #18-01 East Tower, Horizon Towers; and

(v) #17-02 Beverly Hills.

Class A assets

14 AR Phang acknowledged that Mdm Lim had been unable to provide documentary evidence to prove that she had used her personal funds to purchase the Class A assets. However, given that they had been acquired more than 20 years previously, no adverse inference could reasonably be drawn against her on this account. AR Phang noted that Mdm Lim was more than capable of accumulating substantial savings of her own and using them to purchase these properties, because the deceased had made generous financial gifts to her throughout their marriage. While she had admittedly used money from the estate to pay income and property tax and other expenses relating to these properties, this did not necessarily indicate that the properties formed part of the deceased’s estate, as she could simply have misapplied estate funds for her personal expenses. Most notably, the deceased had never asserted an interest in any of the properties, even though they were purchased at least three years before his death. In the circumstances, AR Phang concluded that the Class A assets did not belong to the estate.

Class B assets

15 As for the Class B assets, all of which were purchased after the deceased’s death, AR Phang found that there was no substantive evidence to support Jane Ong’s contention that they were purchased with estate moneys. Given the lapse of time, it was understandable why Mdm Lim could not adduce documentary evidence to explain the sources of her funds for acquiring these properties. Although a credit advice showed that $49,999.90 of the purchase price of #17-02 Beverly Hills came from the estate’s Hong Kong bank account with Sin Hua Trust Savings & Commercial Bank (“Sin Hua Trust Bank”), AR Phang emphasised that Mdm Lim was not merely a trustee but also a beneficiary of the deceased’s estate. This $49,999.90 was, in all probability, part of her personal entitlement to the estate.

Conclusion

16 Excluding the disputed Class A and Class B assets, the deceased’s assets in Singapore, comprising various deposits, bank accounts and shares as well as the properties 45/47 Robinson Road and 4 Chatsworth Park, had a net worth of $11,872,574.21.

Hong Kong assets

17 The deceased’s undisputed assets in Hong Kong, including bank accounts, shares and properties, were valued at HK$18,686,098.75 after deducting estate expenses. At the inquiry, Jane Ong contended that the figure should be...