Re Estate of Chong Siew Kum, deceased

• Judge: Andrew Ang JC
• Judgment Date: 28 February 2005
• Neutral Citation: [2005] SGHC 41
• Citation: [2005] SGHC 41
• Defendant Counsel: Alan Shankar and Lim Poh Choo (Alan Shankar and Lim)
• Published date: 03 March 2005
• Plaintiff Counsel: Koh Tien Hua (Harry Elias Partnership) and Liaw Jin Poh (J P Liaw and Co)
• Date: 28 February 2005
• Docket Number: Originating Summons No 554 of 2002
• Court: High Court (Singapore)
• Subject Matter: Whether defendants' counterclaims amounting to action for return of money had and received or action by beneficiaries under trust,Presumed resulting trusts,Whether properties forming subject matter of deceased's estate,Sections 6(1), 22(1)(b) Limitation Act (Cap 163, 1996 Rev Ed),Whether respective legal owners holding properties in trust for deceased's estate absolutely,Construction,Whether presumption of resulting trust rebutted by presumption of advancement,Trusts,Succession and Wills,Trust property,Section 68 Women's Charter (Cap 353, 1997 Rev Ed),Presumption of advancement,Whether counterclaims time-barred,Limitation of Actions,Resulting trusts,Particular causes of action,Distribution of assets,Whether presumption of advancement arising as between mother and adult children

28 February 2005

Andrew Ang JC:

1 This lamentable tale had its beginning in 1946 when one Tse Hoo Sun died an untimely death at the age of 37 leaving behind an illiterate widow, Chong Siew Kum (“Chong”) and six young children, viz:

(a) son, Chia Kin Tuck (“the plaintiff”), aged nine years;

(b) son, Chia Weng Tuck (“Weng Tuck”), aged eight years;

(c) daughter, Chai Cheo Moey (“the third defendant”), aged six years;

(d) twin son, Tse Sai Chee (“the second defendant”), aged five years;

(e) twin son, Tse Ng Chee (“Ng Chee”), aged five years; and

(f) daughter, Chia Ee Moey (“the first defendant”), aged three years;

The deceased husband also left behind a business known as Hoo Sun Sail & Flag Maker (“Hoo Sun”) which, as its name suggests, specialised in making flags, sails and other canvas goods for ships. Although Chong knew little of the business, by sheer grit and gumption and with help from her late husband’s cousin, Chia Sek Cheong, she managed to keep the business going.

2 When the boys were still in school, they helped out at the shop. After the plaintiff left school in 1956, he could not find a job and eventually, in 1959, at the age of 22 years, he decided to work for Hoo Sun. The other sons worked full-time for Hoo Sun after they left school. Likewise, the sisters helped out in the family business. Initially, none of the children was paid a salary. Whereas the boys got a meagre monthly allowance of some $15 to $30, the girls got practically nothing, apart from the annual “ang pows”. However, all the children’s basic necessities were provided for by the mother, Chong.

3 The business grew and made sufficient profits to enable Chong to buy a property at 19 Ringwood Road, Singapore (“the Ringwood property”) in 1963 in the joint names of three sons, viz, the plaintiff, Ng Chee and the second defendant. According to the second and third defendants, Weng Tuck’s name was not included because Chong was afraid he was “playful” and might jeopardise the property if he got into trouble. According to the third defendant, this was at the instigation of the plaintiff.

4 The three joint tenants occupied the Ringwood property from the time it was purchased. In 1987, Ng Chee left after he was “disowned” by Chong. Chong herself never lived in the Ringwood property. However, she paid for all the outgoings relating to the property such as utilities, property tax and general household maintenance.

5 In or about 1964, Chong made her four sons “partners” in Hoo Sun, but still they did not enjoy any substantial share in the profits of the business. The plaintiff himself said they were but partners in name. In 1975, the second defendant and Ng Chee retired from partnership in Hoo Sun because of some “misunderstanding” with Chong. According to the third defendant, this was because of “things” the plaintiff told Chong about them.

6 In 1965, Chong purchased a shop-house at 393 Balestier Road, Singapore (“the Balestier property”) in the name of the third defendant. From the time of purchase, the Balestier property was held for rental. The third defendant collected and saved the rental through the years so that, by 1995, she had accumulated about $370,000.

7 In or about 1992, Chong bought a third property at Block 78, Moh Guan Terrace, #03-05 (“the Moh Guan property”) in the joint names of the second son, Weng Tuck, and her late husband’s cousin, Chia Sek Cheong. The latter having since died in the year 2000, the property is now solely in Weng Tuck’s name.

8 Apart from the immovable properties, Chong bought and gave to each of the children some shares in Sembawang Shipyard Ltd.

9 Sometime in 1987, there was a fist fight between the plaintiff and Ng Chee. This resulted in Chong “disowning” Ng Chee, according to the third defendant, at the instigation of the plaintiff. Pursuant to an agreement dated 30 July 1987, Chong paid Ng Chee $200,000 for his share in the Ringwood property and for some Sembawang Shipyard shares which had earlier been given to him. The first defendant was made a joint tenant of the Ringwood property in substitution for Ng Chee on 17 August 1987.

10 Chong died on 5 April 1996, leaving a will dated 11 June 1987 (“the Will”) in which she appointed the plaintiff and the first defendant as her executors and trustees. Under the Will, she gave all her movable and immovable property to her trustees (after payment of her just debts and funeral and testamentary expenses) to sell, call in and convert the same into money and divide the proceeds thereof amongst the plaintiff (as to 50% thereof), Weng Tuck (as to 10% thereof) and the first and third defendants (each as to 20% thereof). No mention was made of either Ng Chee or the second defendant in the Will.

11 By two deeds both dated 8 October 1996, the first and second defendants severed the joint tenancy in respect of the Ringwood property so that the property was thenceforth held by them and the plaintiff as tenants-in-common in equal shares.

The disputes

12 By an action commenced as an originating summons and subsequently converted to a writ, the plaintiff sought a declaration that the Ringwood and Balestier properties were held by the respective legal owners thereof in trust for the estate of Chong absolutely. He averred that although it caused him “a lot of pain to have to commence this action against my own siblings”, it was “necessary in order to fulfil the wishes of my late mother”. That statement rang hollow when viewed in the light of his claim against the Balestier property despite his assertion[1] that “it was … my late mother’s death wish that the shop house at 393 Balestier Road was to be kept for my two sisters to support them in their old age”. Curiously, the plaintiff has not sought a declaration of trust in respect of the Moh Guan property, expressly acknowledging in his affidavit of evidence-in-chief that it had been purchased as a gift to Weng Tuck and Chia Sek Cheong. Accordingly, the beneficial ownership of this property is not in contention in this case.

13 The first defendant, as co-executor and trustee of Chong’s estate, averred that neither of the two properties formed part of Chong’s estate. By way of counterclaim, the first and second defendants sought, inter alia, a declaration that the plaintiff and the first and second defendants are the beneficial owners of the Ringwood property in equal shares and an order for the sale of the property in the open market followed by the distribution of the net proceeds thereof amongst the three co-owners. The first and second defendants also sought an order that the plaintiff withdraw a caveat which he had lodged against the Ringwood property.

14 Likewise, the third defendant counterclaimed against the plaintiff, seeking (a) an order that the plaintiff withdraw a caveat which he had lodged against the Balestier property, (b) a declaration that the third defendant is the sole beneficial owner of the Balestier property, and (c) an order that the plaintiff deliver to the third defendant the title deeds to the Balestier property.

15 Finally, the first and third defendants also counterclaimed against the plaintiff for the return (with interest) to the first and third defendants of the sums of $30,000 and $370,000 respectively which, they alleged, they had entrusted to him.

Resulting trust and presumption of advancement

16 In Halsbury’s Laws of England, vol 48 (Butterworths, 4th Ed Reissue, 2000) it is stated (at para 612) that:

Effect of purchase in or transfer into another’s name. Where a person purchases property in the name of another or in the name of himself and another jointly, or gratuitously transfers property to another or himself and another jointly, then, as a rule, unless there is some further indication of an intention at the time to benefit the other person or some presumption of such an intention, the property is deemed in equity to be held on a resulting trust for the purchaser or transferor.

However, it is further stated at para 614:

Advancement or gift to a child. Where a father or other person in loco parentis purchases property in the name of a child or transfers property into the name of a child, the transaction does not create a resulting trust for the purchaser or transferor, but is an advancement or gift to the child, unless there is evidence of a contrary intention at the time of the transaction or the circumstances are such as to raise a presumption against the advancement or gift.

The traditional view is that a presumption of advancement does not arise as between a mother and her son or daughter: In the matter of De Visme, a Person of Unsound Mind (1863) 2 De G J & S 17; 46 ER 280; Bennet v Bennet (1876) 10 Ch D 474. However, the authorities are not unanimous. The authors of Parker and Mellows: The Modern Law of Trusts (Sweet & Maxwell 8th Ed, 2003) at p 282 point to Sayre v Hughes (1868) LR 5 Eq 376 as being a case that suggested the opposite conclusion, although they allowed that in that case, Stuart VC was considering the case of a widowed mother. More recently, in Nelson v Nelson (1995) 132 ALR 133, the High Court of Australia inclined in favour of a presumption of advancement between mother and child.

17 In Sekhon v Alissa [1989] 2 FLR 94, Hoffmann J (as he then was) held that a presumption of resulting trust applied where a mother provided the major portion of the purchase moneys for a property bought in the daughter’s name. Arguably, it is possible to infer from the decision that Hoffmann J favoured the traditional view since he made no mention of the presumption of advancement. Equally, however, it might be argued that the decision went in favour of the mother only because she was able to adduce sufficient evidence to rebut any presumption to make a gift.

18 One needs to treat the traditional view with caution, bearing in mind the change in the status of women over the years. Where once they were mere dependants, they now often assume equal importance as providers...