Ong Wui Swoon v Ong Wui Teck

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 30 October 2012
• Neutral Citation: [2012] SGHC 216
• Court: High Court (Singapore)
• Hearing Date: 13 July 2012,25 June 2012,26 June 2012
• Docket Number: Suit No 385 of 2011/S
• Plaintiff Counsel: Carolyn Tan Beng Hui and Au Thye Chuen (Tan & Au LLP)
• Defendant Counsel: Soh Gim Chuan (Soh Wong & Yap)
• Subject Matter: Probate and Administration
• Published date: 07 November 2012

Woo Bih Li J:

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

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.

The Father died intestate on 14 February 1984.

A schedule 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.

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.

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

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

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.

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”).

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.¹

The residential properties

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

The first property is a Housing and Development Board (“HDB”) flat located at Block 72, Marine Drive, #22-65, Singapore 440072 (“the Marine Drive flat”). According to the Defendant, it was owned by the Father and the Mother in joint tenancy until the Father died, and, subsequently, solely by the Mother until her death.² The Defendant also told the Court that the Marine Drive flat had recently been sold, but no further details were provided.³

The second property is a private apartment located at 30B Sea Avenue, Singapore 424251 (“the Sea Avenue property”). It was bought in 1983 for a stated price of $330,000.⁴ This property was transferred to the Defendant upon completion of that purchase.

The Defendant claimed that the true purchase price of the Sea Avenue property was $323,000 as a result of a vendor’s rebate of $7,000 (because the actual size of the Sea Avenue property was smaller than the vendor had represented).⁵ Apart from the Defendant’s oral testimony, only two pieces of (circumstantial) evidence of this rebate were presented to the Court. The first was a handwritten squib “S$323,000” on a letter of inquiry dated 23 May 1984 from the Inland Revenue Department to the Defendant.⁶ The second was the Notes of Evidence of the 2005 DC Suit, which showed the Defendant’s brother Ong Wui Jin testifying under oath that the Sea Avenue property cost $323,000.⁷

On 6 June 2002, the Sea Avenue property was sold by the Defendant for $575,000.⁸

The third property is a private property located at 114 Pemimpin Place, Singapore 576111 (“the Pemimpin Place property”). On 10 December 1998, it was bought and transferred to the Defendant’s wife, Doreen Tay, for a stated price of $888,000.⁹ Apparently, the Defendant and his wife reside there.

The Plaintiff’s claims

Dissatisfied with the alleged incompleteness and inaccuracy of the August 2011 Account given by the Defendant and having received no distribution from the Estate, the Plaintiff sought an account from the Defendant of all the Estate’s assets, as well as damages for the Defendant’s breach of duty as an administrator of the Estate.¹⁰

The Plaintiff also claimed that the Sea Avenue property was held by the Defendant on trust for the Father from the time of purchase in 1983, and subsequently for the benefit of the Estate upon the Father’s death.¹¹

It was further asserted that the Defendant, in breach of trust, “converted” to his own use the rental collected from the Sea Avenue property and the sale proceeds of said property.¹²

The Plaintiff lastly alleged that the sale proceeds of the Sea Avenue property could be traced into the purchase of the Pemimpin Place property. She therefore claimed a beneficial interest in the Pemimpin Place property too.¹³

The Defendant’s response

The Defendant maintained that the August 2011 Account was accurate.

He denied that he had wrongfully and in breach of trust converted the Estate’s assets, since the balance of the Estate was “negative” and there was thus nothing to convert. In fact, the Defendant said that he remained in deficit as a result of not being able to get reimbursement for the testamentary and administration expenses he incurred on behalf of the Estate.¹⁴

The Defendant also argued that the Sea Avenue property was never held on trust for the Father, and that this must have been so since the latter did not intend to contravene the HDB and Central Provident Fund (“CPF”) rules.¹⁵ There was consequently no breach of trust to complain about.

Finally, the Defendant said that there was no question of the Plaintiff having any beneficial interest in the Pemimpin Place property, since he had not used the sale proceeds of the Sea Avenue property towards the purchase of the Pemimpin Place property (an asset in which the Defendant himself had no beneficial interest at all).¹⁶

The preliminary issues of limitation, laches and acquiescence

The Defendant raised a preliminary argument to the Plaintiff’s claims. As the Plaintiff had commenced the present action some 27 years after the Father’s death, the Defendant contended that a statutory limitation period barred the Plaintiff’s claims. For the same reason, the doctrines of laches and/or acquiescence should apply as well.¹⁷

The Plaintiff argued however that limitation did not apply because she could not, even with reasonable diligence, have found out about the Defendant’s fraudulent breach of trust until the occasion of the Defendant’s oral testimony in the 2005 DC Suit.¹⁸ She also argued that the Defendant was, for a similar reason, not entitled to rely on the doctrines of laches and acquiescence.

After careful consideration, it is my view that the defences of limitation, laches or acquiescence could not avail the Defendant of any relief, but not for the reasons the Plaintiff put forth. As I will explain at [42]-[44] below, I do not need in this case to inquire into the merits of the arguments raised by each party. Since submissions were made by both sides, however, I will pass brief remarks on their arguments. I then set out my reasons as to why, in the circumstances, the Defendant’s contentions on limitation, laches and acquiescence were moot.

The defence based on the Limitation Act

Before I discuss the statutory provisions, I would note as a matter of definition that “trust” as defined in the Limitation Act (Cap 163, 1996 Rev Ed) (“Limitation Act”) includes the duties incident to the office of a personal representative, and “trustee” includes a personal representative (s 2(1) of the Limitation Act, read with s 3 of the Trustees Act (Cap 337, 2005 Rev Ed)). As an administrator of the Estate, the Defendant was a “trustee” for the purposes of the Limitation Act.

In response to the Plaintiff’s claims for, inter alia, an account of the Estate’s assets and an interest in the Pemimpin Place property as the asset into which the sale proceeds of the Sea Avenue property could be traced, the Defendant relied on the statutory time bar provided in s 23 of the Limitation Act.¹⁹ That section reads as follows:

Limitations of actions claiming personal estate of deceased person

23. Subject to section 22(1), no action— (a) in respect of any claim to the personal estate of a deceased person or to any share or interest in the estate, whether under a will or on intestacy, shall be brought after the expiration of 12 years from the date when the right to receive the share or...