Peh Eng Leng v Pek Eng Leong

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 24 April 1996
• Neutral Citation: [1996] SGCA 29
• Docket Number: Civil Appeal No 147 of 1995
• Date: 24 April 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: Cheong Yuen Hee, Loh Kim Kee and Tang Gee Ni (Chia Tang Kumar & Loh)
• Citation: [1996] SGCA 29
• Defendant Counsel: Ram Goswami (Ram Goswami)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether presumption of resulting trust rebutted,Resulting trusts,Trusts,Review by appellate court,Appeals,Civil Procedure,Presumed resulting trusts,When appropriate,Findings of fact,Test to be used by court in reviewing such findings,Circumstances when such a trust would arise

Cur Adv Vult

The appellant, who was the plaintiff in the court below, failed in his action for a declaration and other consequential orders that the property (a shop unit, 10 Anson Road, #01-52, International Plaza, Singapore 0207), which was registered in the respondent`s name was held by the respondent in trust for him. The respondent claimed that he was both the legal and beneficial owner of the property. Notwithstanding that the respondent claimed that he was the legal and beneficial owner of the property, it was mortgaged to the Chung Khiaw Bank to secure a current account overdraft facility of $100,000 for the appellant. The respondent having paid the Chung Khiaw Bank a sum of $101,500.53 to secure the discharge of the mortgage on the property successfully counterclaimed for the repayment of $101,500.53 together with interest thereon at 8% pa from 6 June 1989 to the date of judgment, 19 September 1995.

The appellant now appeals against both his failure to get the declaration and the judgment on the counterclaim entered against him.

The facts which give rise to this appeal are these.

The appellant and the respondent are brothers. The appellant is the elder of the two. At the time of the purchase of the property in the middle of 1982 the appellant, who was educated in the English medium up to secondary four, was reasonably well established in business and was a partner in a shipping and trading business called KSL Trading Agencies, which he and his partner ran from offices in International Plaza. The respondent had completed only primary six in an English medium school followed by one year`s technical training at the Baharuddin Vocational Institute. He had no regular employment but engaged himself in horse racing and in fact owned two race horses and helped his mother in running a food business at Teban Gardens.

We will deal first with the purchase of the property and the appellant`s claim that the property is held by the respondent in trust for him absolutely and the consequential orders claimed by the appellant. The appellant`s evidence-in-chief closely followed what he had pleaded in his statement of claim. It was that sometime in July 1982 he decided to purchase the property with a view to setting up a snack bar. The respondent who was without work and unmarried approached the appellant and requested the appellant to find him some work. Since the appellant had other businesses to manage he offered the respondent the work of managing the proposed snack bar at the property which he proposed to call `Jackson`s Corner` after his own Christian name, Jackson.

The respondent agreed but suggested that the property be purchased in his name as it would give him greater confidence in operating the snack bar and make him a more responsible person. The respondent agreed that the snack bar would be called `Jackson`s Corner`. The appellant thought it over and agreed. In his affidavit of his evidence in chief the appellant said:

... It was expressly orally agreed that I was to provide the full purchase price, stamp and legal fees for the purchase of the property, although the title to the property was to be registered in the name of the defendant. It was further expressly and/or implicitly agreed that the defendant was to hold the property in trust for me and would transfer the title of the property to me whenever so requested by me.

The appellant secured from Eban Photo Suppliers Pte Ltd, the previous owners of the property, an option in the name of the respondent to purchase the property from them for $216,580 by paying them the option money of $10,000 by a cheque drawn on his current account with Malayan Banking Bhd, Selegie Road Branch. The option was dated 28 July 1982 and provided that the option would remain open for acceptance until 4pm on 4 August 1982. The appellant took the respondent to Loganathan & Co, a firm of solicitors the appellant knew and requested Mr Loganathan to act for the respondent in the purchase of the property. The respondent signed the option before Mr Loganathan and the appellant handed to Mr Loganathan a cheque for $11,658 drawn as before on his current account being the balance of the 10% of the purchase price of the property.

The appellant went on to say in his evidence-in-chief that he intended to partially finance the purchase of the property by securing an overdraft facility of $100,000 from the Chung Khiaw Bank against the mortgage of the property. The appellant maintained that he had explained this to the respondent before they went to Mr Loganathan`s office to sign the mortgage documents. He also maintained that Mr Loganathan explained to the respondent in English that the property was being mortgaged to the Chung Khiaw Bank to secure a current account overdraft facility of $100,000 for the appellant. The appellant signed the mortgage documents as the borrower and the respondent as the mortgagor. The appellant, himself, paid the bank`s solicitors` charges for the mortgage.

When completion of the purchase of the property was due on 31 August 1982, the amount payable to the vendors` solicitors was $195,557.27. This was paid by two cashier`s orders, one from the Chung Khiaw Bank for $100,000 debited against the appellant`s current account in respect of which the appellant had just secured the overdraft facility of $100,000 and the other from Malayan Banking, Selegie Road Branch for $95,557.27, which was debited against the appellant`s current account with that bank.

A final sum of $7,598.75 being the stamp and registration fees on the transfer and legal fees was in the first instance paid to Mr Loganathan by cheque by Mdm Chiang Kim Eng, the appellant`s partner in KSL Trading Agencies and later reimbursed by the appellant. It so happened that Mdm Chiang was in Mr Loganathan`s office when the question of the stamp fees on the property came up and the appellant asked her to pay this and the other fees due to Mr Loganathan. Mdm Chiang who had left the partnership of KSL Trading Agencies at the date of the trial testified to this effect.

All the foregoing payments were properly documented and the appropriate documents were produced in evidence in support thereof.

The appellant claimed in his evidence-in-chief that from completion until sometime in 1986, he paid all the maintenance and service charges, property tax and other outgoings on the property. In proof thereof the appellant produced documentary evidence of the payment of property tax on the property for the half-year ended December 1983 and June 1984; payment of maintenance fees in respect of the property for the period February to April 1984; and payment of insurance premium and stamp duty for the renewal of fire insurance on the property for one year from 27 September 1986.

He claimed that he stopped paying for the outgoings on the property sometime in 1986 as he had on numerous occasions requested the respondent to transfer the title of the property to him but the respondent had `failed, refused or neglected to do so.`

From the date of purchase of the property, the snack bar business of Jackson`s Corner, registered as a sole-proprietorship in the name of the respondent, was run at the property by the respondent. The appellant and another brother joined the business as partners on 1 March 1984. On 17 June 1986 the appellant withdrew from the business as a partner.

On the foregoing evidence the appellant claimed that he was the beneficial owner of the property and entitled to:

(a) a declaration that the property now registered in the name of the respondent is held by him in trust for the appellant absolutely;

(b) an order that the respondent transfers the title of the property to the appellant or as he shall direct, free from all encumbrances within such time as the court shall deem fit;

(c) an account of the rents, profits and income received by the respondent or by any other person or persons by the order or for the use of the respondent or either of them of the property, since the completion of the purchase of the property;

(d) the award of interest; and

(e) the award of the costs of the proceedings.

The law on implied or resulting trust is well settled. The doctrine applies to pure personalty as well as land. When the presumption of advancement does not arise, as here, a presumption of trust results to the real purchaser when on a purchase property is conveyed into the name of someone other than the real purchaser. In support of this doctrine Snell`s Principles of Equity (1982, 28th Ed) at p 179 cites this passage from the judgment of Eyre CB from the celebrated case of Dyer v Dyer (1788) 2 Cox Eq 92; 30 ER 42 at p 93:

The clear result of all the cases, without a single exception,

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