Ong Wui Swoon v Ong Wui Teck

• Jurisdiction: Singapore
• Judgment Date: 30 October 2012
• Date: 30 October 2012
• Docket Number: Suit No 385 of 2011
• Court: High Court (Singapore)

Ong Wui Swoon

Plaintiff

and

Ong Wui Teck

Defendant

[2012] SGHC 216

Woo Bih Li J

Suit No 385 of 2011

High Court

Limitation of Actions—Particular causes of action—Account

Probate and Administration—Administration of assets—Beneficiary claimed administrator failed in duty to render accurate account of assets in deceased's estate—Whether certain assets belonging to estate

Ong Thiat Gan (‘the Father’) died intestate in 1984. The plaintiff and the defendant were two of his children. In 1986, their mother (‘the Mother’) and the defendant were appointed joint administrators of the Father's estate (‘the Estate’). It was common ground that the plaintiff was entitled to one-twelfth of the Estate under the intestate succession rules then in force. However, and this was also common ground, the defendant told the plaintiff that the Estate was ‘negative’, resulting in there being nothing to distribute.

The Mother subsequently passed away in 2005, leaving a will the validity of which was contested in court and ultimately upheld. During those court proceedings, however, the defendant had appeared to admit his failure to distribute the Estate. This led the plaintiff to commence the instant proceedings against the defendant.

Prior to trial in these instant proceedings, the plaintiff had taken out an application for summary judgment against the defendant, asking the latter to render an account of all the Estate's assets (‘the Summary Judgment’). The Summary Judgment was given on 1 August 2011, ordering the defendant to give a statement of account by 15 August 2011. On 8 August 2011, the defendant tendered what he claimed to be an accurate account of all the Estate's assets (‘the August 2011 Account’) to the High Court and the plaintiff. Dissatisfied with the alleged inaccuracy of the August 2011 Account, the plaintiff claimed, inter alia, for another account of the Estate's assets, which allegedly included a property the defendant was said to have held in trust for the Father (‘the Sea Avenue property’), as well as damages for the defendant's breach of duty. The defendant denied all those claims and also raised the defences of limitation, laches and acquiescence.

Held, allowing the claims in part:

(1) The defendant's failure to appeal against the Summary Judgment obviated the need in this case to examine the merits of any argument on limitation, laches or acquiescence. The Summary Judgment was an order of court requiring compliance with the orders made therein, until and unless it was subsequently set aside by another ruling. There was no appeal by the defendant against the Summary Judgment. Indeed, he even sought to comply with the Summary Judgment by producing the August 2011 Account. It was therefore no longer open to the defendant to argue the defences of limitation, laches or acquiescence: at [44].

(2) The defendant had not given a proper account of the assets of the Estate in the August 2011 Account. It was not open to him to argue that he was unable to do so because he did not have certain documents which were kept by another sibling. He made no attempt to get those documents, and was content to use his non-possession of those documents as an excuse whenever the August 2011 Account was shown to be inaccurate or incomplete: at [138].

(3) The plaintiff failed to establish that the defendant held the Sea Avenue property, or part thereof, in trust for the Father: at [136].

(4) An inquiry would be ordered to determine the total value of the Estate available for distribution to the beneficiaries, after taking into account the debts, expenses and permitted deductions of the Estate. If that value was determined to be positive, the defendant was to distribute to the plaintiff the latter's share of the Estate in kind or in cash: at [143] and [151].

(5) The defendant would be liable not only to account for those assets which he himself listed in the August 2011 Account as belonging to the Estate, but also to account for those assets which were actually received by the Estate or by him for the Estate, as well as assets which would have been received by the Estate without any further action on the defendant's part at the relevant time. He would not be liable, however, to account for assets which he would have received for the Estate if not for his wilful default: at [144].

(6) Given the order for an inquiry and for the defendant to distribute to the plaintiff her share of the Estate, no other order would be made as to the plaintiff's vague claim for damages or her allegation of the defendant having converted the Estate's assets: at [152].

[Observation: The time bar provided in s 23 of the Limitation Act (Cap 163, 1996 Rev Ed) might not apply to all actions in relation to the administration of a deceased person's estate, but only to actions brought in respect of a claim to the personal estate of a deceased person or any share or interest thereof: at [32].

In the context of estate administration, the limitation period applicable in the UK to an action for an account and for payment of amounts found due upon the taking of the account was not that laid down in respect of claims to the personal estate of a deceased person. Rather, such an action for an account and payment was seen as a claim to trust property in the possession of the personal representative. In Singapore, the situation was less clear since the action for an account by itself might already be caught by s 6 (2) of the Limitation Act. There was an important question as to how ss 6 (2), 22 (1) and 23 (a)of the Limitation Act operated inter se in actions for an account in the context of estate administration: at [38].]

Doss v Doss (1843) 3 Moo Ind App 175; 18 ER 464 (refd)

Loftus, Re [2007] 1 WLR 591 (refd)

Mayer v Murray (1878) 8 Ch D 424 (folld)

Ong Jane Rebecca v Lim Lie Hoa [2005] SGCA 4 (folld)

Tan Kow Quee, Re Estate of [2007] 2 SLR (R) 417; [2007] 2 SLR 417 (refd)

Yap Teck Hee, Re [1940] MLJ 122 (refd)

Limitation Act (Cap 163, 1996 Rev Ed) ss 6 (2) , 22 (1) , 23, 32 (consd) ;ss 2 (1) , 21, 22 (1) (b) , 23 (a)

Trustees Act (Cap 337, 2005 Rev Ed) s 3

Limitation Act 1980 (c 58) (UK) ss 21 (1) , 22, 23 (consd) ;ss 21 (1) (b) , 22 (a)

Carolyn Tan Beng Hui and Au Thye Chuen (Tan & Au LLP) for the plaintiff

Soh Gim Chuan (Soh Wong & Yap) for the defendant.

Judgment reserved.

Woo Bih Li J

1 The plaintiff Ong Wui Swoon (‘the Plaintiff’) and the defendant Ong Wui Teck (‘the Defendant’) are siblings. The Plaintiff alleged that the Defendant failed in his duty as an administrator of their late father Ong Thiat Gan's estate (‘the Estate’) to render an accurate account of its assets. She therefore sued the Defendant, asking him to not only render another account of all the Estate's assets, but also to pay damages for his alleged breach of duty. The Plaintiff also asserted a beneficial interest in the sale proceeds of a private property, which she claimed the Defendant held on trust for their father.

The facts

Family background

2 The Defendant is the eldest son of Ong Thiat Gan (‘the Father’) and Chew Chen Chin (‘the Mother’). There were five other children. In descending order of position, their names are Ong Wui Tee, Ong Wui Jin, the Plaintiff, Ong Wui Leng, and Ong Wui Yong (collectively ‘the Ong Family’). Ong Wui Tee committed suicide in 1990.

3 The Father died intestate on 14 February 1984.

4 Aschedule of the Estate's assets (‘the Estate Duty Schedule’) was subsequently prepared ostensibly by the Mother and the Defendant. On 13 May 1986, the Deputy Commissioner of Estate Duties certified the payment of estate duty in respect of the Estate's assets as stated in the Estate Duty Schedule. Later, on 22 December 1986, the Grant of Letters of Administration was issued by the High Court. The Mother and the Defendant were appointed joint administrators of the Estate.

5 Both parties did not dispute that under the rules of intestate distribution then in force, the Mother as the surviving spouse was entitled to half of the Estate's assets, and the six children were entitled to the other half equally. Each of the six children was therefore the beneficiary of one-twelfth of the Estate.

6 As for the Mother, she passed away on 8 January 2005, leaving a will dated 3 January 2005 which named the Defendant as its sole executor. The validity of this will was contested by the other four surviving children of the Mother. Hence, the Defendant filed District Court Suit No 2260 of 2005/H (‘the 2005 DC Suit’) to uphold the validity of the will. The will was upheld by the District Court in 2007. Appeals from the judgment in the 2005 DC Suit to the High Court (District Court Appeal No 1 of 2008/F) and the Court of Appeal (Civil Appeal No 4 of 2009/Q) were dismissed.

Procedural history

7 The dispute in this action centres primarily on the assets of the Estate.

8 The action was originally commenced as Magistrate's Court Suit No 10516 of 2010/B (‘the 2010 MC Suit’). The Plaintiff successfully applied (in Originating Summons No 15 of 2011/B) to transfer the proceedings to the High Court.

9 At the High Court, the Plaintiff applied for summary judgment (in Summons No 2818 of 2011/C) against the Defendant for him, as one of the Estate's administrators, to render an account of all the Estate's assets. (This was one of the reliefs claimed in the amended Statement of Claim.) An assistant registrar granted the application on 1 August 2011 and ordered the Defendant to give a statement of accounts by 15 August 2011 (‘the Summary Judgment’).

10 On 8 August 2011, the Defendant tendered what he claimed to be an accurate account of all the Estate's assets (‘the August 2011 Account’) to the High Court and the Plaintiff.

The residential properties

11 Before I proceed further, I would elaborate on three residential properties which were mentioned in this dispute.

12 The first property is a Housing and Development...