Re Low Gim Har Janet

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 22 May 1995
• Neutral Citation: [1995] SGHC 129
• Docket Number: Suit No 854 of 1991
• Date: 22 May 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: Lo Kok Siong and Marc Lim (Allen & Gledhill)
• Citation: [1995] SGHC 129
• Defendant Counsel: Davinder Singh, Tan Cheng Han and Manoj Sandrasegara (Cheong Hoh & Associates),Jimmy Yap (Donaldson & Burkinshaw)
• Court: High Court (Singapore)
• Subject Matter: Whether deceased relied on any representation to his detriment,Whether oral collateral agreement to transfer specific properties existed,Formation,Contract,Equity,Estoppel,Whether there was an oral collateral agreement to transfer specific immovable properties,Promissory estoppel,Oral agreement,Proprietary estoppel,Consideration

Cur Adv Vult

The plaintiff, Janet Low, is the executrix of the estate of Low Yok Kay (Yok Kay); the fourth defendant, Peter Low, the joint executor of the estate and the brother of Janet, had originally been joined in this action as a nominal defendant but is now co-plaintiff by consent. The first, second and third defendants, (Hwee, Choo and Bian respectively) are the younger brothers of Yok Kay.

The plaintiffs bring this action in contract or alternatively in equity to recover, on behalf of Yok Kay`s estate, several immovable properties (three houses, Nos 47, 49 and 39 Minbu Road, as well as two units in the 29 Minbu Road block of apartments) (the properties) which they allege their uncles, the defendants, had promised to transfer to Yok Kay in exchange for Yok Kay`s agreeing to the final draft agreement of the proposed distribution of assets in the winding up of the family company (the distribution agreement).

It will be convenient to start by stating the plaintiffs` case and listing the various facts which they asserted in their statement of claim and which were in dispute. This is followed by a summary of the lengthy oral evidence given. Next, there will be an examination of the documentary and oral evidence to see how far it goes to prove, or disprove, the various and specific facts asserted in the plaintiffs` case.

The plaintiffs` main action is in contract. The plaintiffs must prove four facts to succeed in their claims for specific performance:

(1) that an oral contract or contracts for the transfer of specific properties was or were entered into between Yok Kay and the three defendants;

(2) that there was valuable consideration in the form of Yok Kay finally agreeing to approve the final basis to his detriment;

(3) that there is evidence in writing or partly performed as would satisfy s 4 of the Statute of Frauds 1677; and

(4) that the oral contract or contracts were breached.

The plaintiffs` alternative argument is in equity. Under the established doctrines of proprietary estoppel and/or of constructive trust, they must prove:

(1) a representation or representations from the three defendants that the properties would be transferred to Yok Kay;

(2) which had been relied upon by Yok Kay to his detriment, in his signing of the distribution agreement; and

(3) such that it was now inequitable to allow the representors to resile from their promises.

By this the plaintiffs claim that the defendants should be estopped from denying Yok Kay`s rights to ownership of the promised properties, or that they should be declared constructive trustees of the same. They seek a legal transfer of the promised properties to the estate as beneficiary.

The facts not in dispute

The following facts were not in dispute. Yok Kay and the three defendants were shareholders in a family company, Hup Choon Kim Kee Pte Ltd (the company). Hup Choon Kim Kee was originally a family partnership (the firm), which was incorporated in Singapore on 1 February 1963 as a private limited company. The other shareholders in the company were the father, Low Kim Tah (Kim Tah), and the six other siblings, two brothers (Khoon, and Beng, or Alfred) and four sisters.

In 1964, the company purchased from Yok Kay and Khoon a piece of land known as 21 Akyab Road, with four semi-detached and two bungalows built on it (the six Minbu Road houses) for a consideration of $500,000, which was paid by an issue of 5,000 $100 shares in the company. The company then further erected two blocks of apartments on the land: a four-storey block of 24 apartments at Akyab Road (the Akyab Road units), and a ten-storey block of 40 apartments at 29 Minbu Road (the Minbu Road units). In January 1964, the company also purchased land at Ava Road; in 1971, the company purchased the property known as 263 and 263A Balestier Road.

On 17 October 1983, a special resolution at general meeting was passed to voluntarily wind up the company, and to appoint liquidators to distribute the assets. The company`s properties were valued, and a valuation report prepared by Bian dated 31 December 1983 was circulated and signed by all the members of the Low family.

In 1985, the defendants each executed a statement in writing, dated 30 April 1985, undertaking to transfer the properties to Yok Kay, subject to his consenting to the distribution agreement, expressed to be `in consideration of my love and affection for my brother, Low Yok Kay ... as a gift`. Bian personally handed these written undertakings to Yok Kay at SGH, some time after 30 April 1985 but before 31 May 1985. Yok Kay died in SGH on 31 May 1985.

The distribution agreement, dated 15 May 1985, was fully executed by the company, the liquidator Tan Hong Bak (Hong Bak), and all the shareholders of the company, which set out the specifics of the distribution in specie of the assets in the company amongst the shareholders. The liquidator then effected a distribution of all the company`s properties to the shareholders in accordance with the terms of the distribution agreement.

The three defendants became the registered proprietors of the properties, as well as the others allocated to them under the distribution agreement, on 1 June 1985, and so remain. They refused to transfer the properties to the estate of Yok Kay and to account to the same for rents and profits derived from the properties.

The facts to be proved

The following facts were not admitted by the defendants, and thus must be proved by the plaintiffs:

(a) The firm started business in the early 1940s trading in livestock; the business was run by Kim Tah and Yok Kay from about 1943 to 1950. Khoon joined them in the 1950s. The business prospered.

(b) In 1951, the property known as 21 Akyab Road was bought by Yok Kay and Khoon. By 1962, Yok Kay and Khoon had had the six Minbu Road houses built on that land. In 1964 Yok Kay and Khoon transferred the land and the six houses to the company as agreed, but the 5,000 $100 shares in the company as consideration for the transfer were not issued to them.

(c) When the company was incorporated, its shares were allotted in accordance with the directions of Kim Tah and his wife, Chua Wan Neo, amongst the family members, including Yok Kay`s eldest son, Keng Bin. Nobody was required to pay for the shares allotted. When the mother, Wan Neo, died in 1971 her shares were distributed amongst her children.

(d) In 1981 a discussion was held among the members of the Low family as to the voluntary dissolution of the company, and the distribution of its assets, including the immovable properties described above, amongst them. In October 1981 a draft document was drawn up (the first draft) setting out a proposed basis for the distribution of the company`s properties amongst the Low family members. Although the first draft did not mention the share Kim Tah was to receive, it was understood that he would be entitled to all 24 of the Akyab Road units.

(e) This first draft was agreed to by Yok Kay, Khoon, Hwee, Choo, Beng and the four sisters. However, as admitted by the defendants, Bian, the third defendant, objected to this basis of division, writing the words `No I do not agree` on the document; he went on to set out in a separate document his proposed entitlement to the allocation of assets (Bian`s draft).

(f) In order to overcome Bian`s objections, another draft agreement was prepared in November 1981 (the second draft), which took into account the proposed changes in the Bian`s draft, and gave more property to Bian (ie, one house, one more flat, and one more share in Ava Road). The second draft also expressly provided that Kim Tah was to get the 24 Akyab Road units. All the family members including Bian approved of this version, but the father, Kim Tah, did not, or at least Yok Kay was given to understand by Bian that Kim Tah had not yet given his approval of this.

(g) In early 1984 (after the special resolution to wind up the company had been passed, and Bian`s valuation report approved) the Low family brought out the second draft for further discussion. Kim Tah still did not approve it, or Yok Kay was told by Bian that Kim Tah did not approve of it.

(h) Thereafter, the defendants and Yok Kay had a discussion concerning the second draft and Kim Tah`s objection to it. All the defendants, or alternatively only Choo and Bian, suggested to Yok Kay that he should consider reducing his share of the entitlement under the second draft to accommodate Kim Tah`s wishes in order to get Kim Tah to approve the second draft.

(i) Further discussions were held. On the basis of the agreed valuation report prepared by Bian, the Low family members then worked out a fair and equal basis for the distribution of the properties amongst themselves. They also had a ballot for the distribution of the apartments at No 29 Minbu Road. On this basis a third draft was prepared (the third draft).

(j) The basis of allocation under the third draft was discussed among the Low family members. It was unacceptable to Yok Kay. The three defendants then offered to Yok Kay two semi-detached houses, one bungalow and two flats if he would accept that basis of allocation. Yok Kay then agreed. (This was a crucial issue of fact).

(k) After further discussion among members of the family, it was proposed that the third draft would be amended to give the plot of land set aside for road widening (Item N) to Yok Kay, and to provide for cash adjustments for any shortfall or excess in property value received by the family members (the final basis).

(l) Each of the defendants then orally undertook to Yok Kay to transfer to him the properties allocated to them under the final basis if he agreed to approve the distribution under the final basis: Hwee would transfer No 47 Minbu Road; Choo, No 49 Minbu Road, and Units #02-35 and #01-29 at 29 Minbu Road; and Bian, No 39 Minbu Road.

(m) Accepting the defendants` undertakings and pursuant...