Re Singapore Symphonia Co Ltd & others

• Jurisdiction: Singapore
• Judge: Edmund Leow JC
• Judgment Date: 26 November 2013
• Neutral Citation: [2013] SGHC 261
• Hearing Date: 15 November 2013
• Citation: [2013] SGHC 261
• Year: 2013
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 786 of 2013
• Plaintiff Counsel: Andrew Chan and Goh Zhuo Neng (Allen & Gledhill LLP)
• Subject Matter: Trusts,Termination
• Published date: 28 November 2013

Edmund Leow JC:

The applicants sought declarations in the following terms: that the fourth applicant (“the Tote Board”), which is the named settlor under a trust deed dated 28 May 1989 (“the Trust Deed”) made between the Tote Board and Goh Keng Swee, Edmund William Barker, Tan Boon Teik and Koh Beng Seng (being the original trustees of the Trust (as defined below)) to constitute the Singapore Totalisator Board Trust (“the Trust”), and which has paid an aggregate sum of $25m into the Trust, is a beneficiary under the terms of the Trust; and that the only beneficiaries of the Trust are the first applicant (“the SSO”) and the Tote Board.

On 15 November 2013, I heard the matter and granted the declarations sought. For reasons which will be apparent I now issue grounds for my decision.

The SSO is a company which at present runs the Singapore Symphony Orchestra. The second and third applicants are the only current trustees of the Trust. The Trust was constituted by way of the Trust Deed on 28 May 1989 and under the terms thereof the Tote Board settled a capital sum of $25m on the Trust, the income on which was to be distributed from time to time to the SSO, subject only to the proviso that any loss or shortfall to the capital sum had to be made good before income could be paid out. The Trust was stated to be effective from 28 May 1989 to the end of the 21st year from the death of the last surviving of the four original trustees named in the Trust Deed. At the end of this time or in the event that the Trust became incapable of performance, the capital sum was to revert to the settlor, the Tote Board. As one of the original named trustees is alive and well, the Trust remains effective to this day.

The reason for this application is thus. During the period of the financial crisis around 2008, the value of the Trust fell below $25m. The trustees thus could not pay out any income and the SSO, which had budgeted for such income, was therefore put into deficit. In early 2009, it wrote to the Tote Board seeking a top-up of the capital sum. The Tote Board refused but eventually agreed instead to donate all the moneys standing in the Trust to the SSO’s own endowment fund. Unfortunately, there were no provisions in the Trust Deed permitting the premature dissolution of the Trust. The solution hit upon was for the beneficiaries of the Trust to terminate the Trust under the rule in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482, and then...