Purnima Anil Salgaocar v Lakshmi Anil Salgaocar (suing as the administratrix of the estate of Anil Vassudeva Salgaocar, deceased)

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 05 June 2023
• Neutral Citation: [2023] SGHC(A) 21
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 81 of 2022
• Hearing Date: 15 March 2023
• Citation: [2023] SGHC(A) 21
• Year: 2023
• Plaintiff Counsel: Lim Gerui and Estad Amber Joy (Drew & Napier LLC)
• Subject Matter: Contract,Contractual Terms,Rules of construction,Civil Procedure,Injunctions,Enforcement of negative covenant
• Published date: 06 June 2023

Woo Bih Li JAD (delivering the judgment of the court): Introduction

This is an appeal against the judge’s (the “Judge”) decision to grant an injunction: Lakshmi Anil Salgaocar (suing as the administratrix of the estate of Anil Vassudeva Salgaocar, deceased) v Purnima Anil Salgaocar [2023] SGHC 49 (the “GD”).

Having considered the parties’ respective cases, we allow the appeal and set aside the injunction. These are our reasons.

Facts and Procedural History

This case concerns a dispute between a mother (“L”) and a daughter (“P”) in respect of the estate of the patriarch of the family (“AVS”).

On 11 August 2015, a suit was filed, ie, HC/S 821/2015 (“S 821”) by AVS against one Darsan Jitendra Jhaveri (“DJJ”) claiming that a trust was created with DJJ as trustee. AVS passed away intestate on 1 January 2016 and L has continued the action as sole administratrix of his estate (“the Estate”).

The beneficiaries of the Estate are L, as his widow, and four children which include P. Disputes arose between P and L.

On 13 April 2020, L and P entered into a settlement agreement. P subsequently alleged that L had breached their settlement agreement and filed HC/OS 928/2020 (“OS 928”).

On 27 May 2021, L and P entered into a second settlement agreement (“2SA”) to settle OS 928.

Under cl 7 of 2SA, L was obliged to provide an account (“the Accounts”) of certain assets referred to as “the Estate’s Non-India Assets” (the “Non-India Assets”) for the period from 1 January 2016 to 31 December 2020 to be drawn up by an independent and qualified accountant. The Accounts were to be procured and placed at the office of Mr Gurbachan Singh of GSM Law LLP by 1 December 2021. P was entitled to inspect the Accounts with advance notice given but not to take photos, video or audio recordings of any material or information during the inspection.

P alleges that L breached this provision for two reasons. First, the Accounts were not provided on 1 December 2021, even though cl 20 of 2SA stipulates that time shall be of the “essence in the performance of this Agreement”.

Second, even when a document was eventually provided late (for inspection on 28 January 2022), it was not an account of the Non-India Assets. Instead, it was a thin report by an accountant which purported to set out valuations of the Non-India Assets, excluding the assets which are the subject of S 821, on two dates, ie, 31 December 2015 and 31 December 2020. P’s grievance was not that the report should include the assets which are the subject of S 821 but rather that, even for the other Non-India Assets, the report did not contain any information on L’s dealings with the other Non-India Assets between 31 December 2015 and 31 December 2020. We will say more about this contention later.

Accordingly on 27 April 2022, P filed an action, ie, HCF/OSP 6/2022 (“OSP 6”) in the Family Justice Court under r 786 of the Family Justice Rules 2014 for an order: to direct L to provide the Accounts and make a copy available to P within one month from the date of the court’s order; that an independent auditor be appointed from certain named accounting practices to audit the Accounts; that P be at liberty to apply for an inquiry into any unauthorised disbursements shown in the Accounts; that P be given liberty to falsify or surcharge the Accounts; and costs.

Instead of filing an affidavit in reply to OSP 6, L filed another action which was an originating claim in HC/OC 49/2022 (“OC 49”) on 18 May 2022. In this action, L alleged primarily that by filing OSP 6 itself, P herself was in breach of 2SA because under the terms thereof, viz, cll 11 and 18, P was precluded from commencing any action, even if L were in breach of 2SA, except an action for breach of 2SA, until S 821 was finally determined. Under 2SA, the final determination of S 821 included the trial and any appeal thereafter. In other words, L perceived OSP 6 as an action which was not for breach of 2SA as such.

L also claimed damages for P’s alleged breach including repayment of certain money which L had paid P under cl 4 of 2SA. L sought the following reliefs in OC 49: an injunction to restrain P from commencing or maintaining any action other than for breach of 2SA until the final disposal of S 821; a declaration that P is not entitled to commence or maintain any action other than for breach of 2SA until the final disposal of S 821; damages for breach of 2SA including the repayment of certain money paid by L to P under 2SA; and costs and interest.

On 31 May 2022, L filed HC/SUM 2031/2022 (“SUM 2031”) in OC 49 to seek an injunction to restrain P along the lines as alleged in the main relief sought in OC 49.

On 1 June 2022, L filed HCF/SUM 145/2022 (“SUM 145”) in OSP 6 for OSP 6 to be struck out or stayed pending the hearing of OC 49. SUM 145 was supposed to have been filed on 31 May 2022, ie, at the same time when SUM 2031 was filed but due to some error it had to be re-filed on 1 June 2022.

On 10 June 2022, P filed a defence and counterclaim in OC 49. In her counterclaim, P sought payment of money which L was obliged to make under cl 4(b) of 2SA (see below at [22]).

On 28 June 2022, SUM 2031 was heard and decided by the Judge who granted an injunction as sought in SUM 2031.

On 12 July 2022, P filed AD/OA 10/2022 (“OA 10”) in the Appellate Division of the High Court (“AD”) for permission to appeal against the decision of the Judge.

On 13 September 2022, the AD granted P permission to appeal. On 15 September 2022, P filed AD/CA 81/2022 (“AD 81”) as her appeal against the Judge’s decision. This formed the subject matter of the present appeal.

On 13 October 2022, P filed HC/SUM 3781/2022 (“HC SUM 3781”) in OC 49 for: an order that L to produce certain documents in discovery; a declaration that 2SA remained binding on L; an order that L pay damages being equivalent to the amounts payable by L under 2SA and an order that L continue to make such payments; and interest and costs.

Apparently, SUM 3781 was split into two hearings, one before a judge and one before an assistant registrar (“AR”). The application for discovery of certain documents was first heard by an AR on 22 November 2022 who dismissed it. P’s appeal against that decision was heard by Justice Philip Jeyaretnam on 27 January 2023 and he dismissed P’s appeal.

In the meantime, on 25 November 2022, Jeyaretnam J heard the other aspect of SUM 3781, ie, that L be ordered to make payment of certain money under 2SA. Under cl 4(a) of 2SA, L was to pay P $135,000 in two instalments. Under cl 4(b), L was also to pay P $15,000 on the 15th day of each calendar month from 15 June 2021 until the final distribution of the Non-India Assets. L had paid the $135,000. She had also paid the $15,000 monthly payments until P’s allegation that L had breached her obligation to provide the Accounts whereupon L stopped making the $15,000 monthly payments (from June 2022) and in fact claimed the return of the money which she had already paid to P. Jeyaretnam J noted that L was alleging that 2SA still subsists, ie, L was not saying that 2SA had been terminated. Accordingly, he ordered L to make payment of the $15,000 per month to P as damages (in so far as this pertained to overdue payments) and to continue to pay that sum in accordance with 2SA.

On 28 February 2023, Kannan Ramesh JAD rendered his decision in S 821: Lakshmi Anil Salgaocar (suing as the administratrix of the estate of Anil Vassudeva Salgaocar) and another v Darsan Jitendra Jhaveri and others (Kwan Ka Yu Terence, third party) [2023] SGHC 47. This was said by L to be in favour of the Estate. However, as DJJ may file an appeal, that decision is not the final determination of S 821 for the purpose of 2SA.

On 4 May 2023, the trial of OC 49 was heard by Jeyaretnam J. We understand that closing submissions are due to be submitted by 5...