Ooi Chhooi Ngoh Bibiana v Chee Yoh Chuang

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA,Chao Hick Tin SJ,Quentin Loh J
• Judgment Date: 24 August 2020
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 215 of 2019
• Date: 24 August 2020

Ooi Chhooi Ngoh Bibiana

and

Chee Yoh Chuang (care of RSM Corporate Advisory Pte Ltd, as joint and several private trustees in bankruptcy of the bankruptcy estate of Freddie Koh Sin Chong, a bankrupt) and another

[2020] SGCA 83

Andrew Phang Boon Leong JA, Chao Hick Tin SJ and Quentin Loh J

Civil Appeal No 215 of 2019

Court of Appeal

Land — Sale of land — Sale under court order — Effect of bankruptcy — Whether court should order sale of property where property being occupied by non-bankrupt co-owner

Held, dismissing the appeal:

(1) Reading s 18(2) with para 2 of the First Schedule of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”), the High Court had the power to direct a sale of land where it appeared necessary or expedient. This power was a general one. There was no reason in principle why there ought to be a distinction between the applicable principles dealing with an application by a non-bankrupt co-owner and an application by the OA or trustees in bankruptcy. While the overarching directive was that the court could order a sale where it was “necessary or expedient” to do so, the specific interests concerned might be different where the OA or a trustee in bankruptcy made an application: at [21].

(2) The Judge had correctly identified the general principle, which was that the court had to consider all the facts and circumstances of the case and conduct a balancing exercise of the various considerations at play in determining whether a sale should be ordered. Each case gave rise to different interests and the weight to be given to the relevant factors would depend on the precise facts and circumstances of each case. There was also no categorical rule that the relationship between the parties was always irrelevant in a case involving the OA or a trustee in bankruptcy: at [25] and [26].

(3) The Judge did not apply a different test than that set out in Su Emmanuel v Emmanuel Priya Ethel Anne[2016] 3 SLR 1222. There was no reason in principle why the court ought to consider an application for sale by an OA or a trustee in bankruptcy from any particular starting point. This would restrict the broad directive possessed by the court pursuant to s 18(2) read with para 2 of the First Schedule of the SCJA, and would be contrary to the principle that the court was to conduct a balancing exercise of various factors. Mdm Ooi's proposed approach could not be justified on the basis of public policy. Unlike Housing and Development Board (“HDB”) flats, there was no rule of public policy pertaining to private residential properties which provided that they were not liable to division amongst a bankrupt's creditors: at [31] and [32].

(4) The Judge had correctly emphasised the length of time which had passed since the making of the bankruptcy order and had correctly noted that the sale might have been delayed if less than a year had passed between the making of the bankruptcy order and the present application. The length of time should also be viewed in the context of the correspondence between the OA and/or PTIBs and Mr Koh and/or Mdm Ooi. There was no indication that the PTIBs had been acting otherwise than in good faith. If the suggestions proposed by the OA and/or the PTIBs had been seriously pursued by either Mr Koh and/or Mdm Ooi, the court might have come to a different view on the sale of the Property. Another crucial factor was that not ordering the sale would mean that the SCC would never be able to recover the debt. There would also be sufficient funds from the sale of the Property for Mdm Ooi to buy another property and for Mr Koh to annul his bankruptcy: at [35] to [38].

(5) The balance lay in favour of the sale of the Property. Given the extraordinary circumstances presented by the COVID-19 pandemic and the advanced age of both Mdm Ooi and Mr Koh, Mdm Ooi was granted 12 months from the date of the decision to sell the Property and to settle Mr Koh's outstanding debts, unless the parties could arrive at some other mutually acceptable arrangement: at [40].

Case(s) referred to

Singapore Swimming Club v Koh Sin Chong Freddie [2016] 3 SLR 845 (refd)

Su Emmanuel v Emmanuel Priya Ethel Anne [2016] 3 SLR 1222 (refd)

Facts

The property (“the Property”) was purchased by Mdm Ooi and her husband, Mr Koh, in 1977 as joint tenants. The Property also came to be occupied by their second son, their daughter-in-law, their grandson and their domestic helper. As at 2016, the Property was valued at $5.7m. In 2012, the Property was listed on a property listing website, with an asking price of $7.8m. On 4 August 2016, a bankruptcy order was made against Mr Koh. Mr Koh owed the bank $1,408,724.83 for the mortgage on the Property and the Singapore Swimming Club (“the SSC”) $1,832,653.05. The debt owed to the SCC represented the judgment debt (including interest) arising from a successful claim by its members against Mr Koh. On 25 July 2018, the Official Assignee (“OA”) wrote to Mr Koh asking whether: (a) Mdm Ooi would buy over his 50% share in the Property at market value; (b) whether he would find a third party buyer for the Property; or (c) whether he could satisfy his debts in full without selling the Property. Mr Koh responded stating that neither he nor Mdm Ooi had any intention to sell the Property. On 15 March 2019, the OA again wrote to Mr Koh, asking that the Property be sold on the open market for the benefit of Mr Koh's creditors. Mr Koh repeated his earlier position that there was no intention to sell the Property. Subsequently, the private trustees in bankruptcy (“the PTIBs”) were appointed in place of the OA. The PTIBs wrote to Mdm Ooi requesting that she inform them whether: (a) she or her children would be able to buy Mr Koh's half share; or (b) Mr Koh and Mdm Ooi would be prepared to put the Property up for sale, failing which they would apply to court to sell the Property.

The PTIBs filed an application seeking an order that the Property be sold. The High Court judge (“the Judge”) granted the PTIBs' application. On appeal, Mdm Ooi argued, inter alia, that the Judge had formulated a new legal test to determine whether the court should order the sale of co-owned property, and that the Judge's approach was weighted in favour of the creditors' interests. Mdm Ooi proposed an alternative approach in which the court considered factors pertaining to the homeowner first before deciding whether the property was suitable for realisation in bankruptcy or should instead be viewed as a “permanent haven”.

Legislation referred to

Bankruptcy Act (Cap 20, 2009 Rev Ed) ss 36(1)(b), 76(1)(a)(i), 78(1), 78(2)(c), 111(a), 112(b)

Housing and Development Act (Cap 129, 2004 Rev Ed) ss 51(5), 51(6)(a), 51(6)(b)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 18(2), First Schedule para 2

Seah Zhen Wei Paul and Kang Weisheng Geraint Edward (Tan Kok Quan Partnership) for the appellant;

Chang Man Phing Jenny, Lim Xian Yong AlvinandJoel Tieh Wenjun (WongPartnership LLP) for the respondents.

24 August 2020

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

Introduction

1 This appeal concerned an application by private trustees in bankruptcy (“the PTIBs”) under s 18(2) read with para 2 of the First Schedule of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) for the court to order a sale of property (“the Property”) in circumstances where the non-bankrupt co-owner of the Property, ie, the appellant, Ooi Chhooi Ngoh (“Mdm Ooi”), still lives in the Property. The High Court judge (“the Judge”) in Chee Yoh Chuang and another v Ooi Chhooi Ngoh[2020] 4 SLR 1141 (“the GD”) ordered the sale of the Property after balancing the potential prejudice that would be suffered by Mdm Ooi and members of her family living in the Property, as well as the potential prejudice that would be suffered by the sole unsecured creditor of Koh Sin Chong Freddie (“Mr Koh”), ie, the Singapore Swimming Club (“the SSC”), and ultimately found that the balance lay firmly in favour of the sale of the Property. Mdm Ooi appealed against that decision and, in the event that the sale of the Property was ordered, asked that the sale be delayed by at least two years in the light of the COVID-19 pandemic.

2 Having carefully considered the parties' written as well as oral submissions, we agreed with the Judge's decision and dismissed the appeal. We now...