Salaya Kalairani (legal representative of the estate of Tey Siew Choon, deceased) and another v Appangam Govindhasamy (legal representative of the estate of T Govindasamy, deceased) and others and another appeal

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 07 December 2023
• Neutral Citation: [2023] SGHC(A) 40
• Hearing Date: 29 September 2023
• Docket Number: Civil Appeals Nos 117 of 2022 and 118 of 2022
• Citation: [2023] SGHC(A) 40
• Court: High Court Appellate Division (Singapore)
• Year: 2023
• Subject Matter: Civil Procedure,Limitation,Equity,Defences,Acquiescence,Laches,Trusts,Resulting trusts,Presumed resulting trusts,Constructive trusts,Common intention constructive trusts
• Published date: 07 December 2023

[LawNet Admin Note: The following judgment is displayed as received from source]

Valerie Thean J (delivering the grounds of decision of the court): Introduction

The late Mdm Tey Siew Choon (“Tey”) and the late Mr T Govindasamy (“TG”) purchased 24 Cuff Road, Singapore (the “Property”) as tenants-in-common in equal shares on 28 May 1970. This was a two-storey property and the upper level was referred to informally as 24A Cuff Road. TG passed away on 10 October 1993, while Tey passed away on 24 May 2015.

After both TG and Tey had passed away, two of TG’s children and two of his grandchildren commenced HC/S 107/2022 (“Suit 107”) in their capacities as the legal representatives and co-administrators of TG’s estate against Mdm Salaya Kalairani (“Kalairani”). Kalairani is the sole executrix and trustee of Tey’s will. Kalairani was sued in two different capacities in Suit 107: her personal capacity and as legal representative of Tey’s estate. References to Kalairani in these grounds of decision are to both these capacities.

In these grounds of decision, we refer to TG’s children and grandchildren in their substantive capacity as “the plaintiffs”. In Suit 107, the plaintiffs sought: (a) an order for the sale of the Property and the distribution of the proceeds of sale; and (b) an account and inquiry of all rental proceeds of the Property received since TG’s death from Kalairani. Kalairani counterclaimed for a declaration that TG held his half-share in the Property on trust for Tey and an order for TG’s half-share to be transferred to Tey’s estate.

The judge below (the “Judge”) allowed the plaintiffs’ claim in part and dismissed Kalairani’s counterclaim. The Judge ordered for the Property to be sold and the net proceeds to be distributed equally between TG’s estate and Tey’s estate. At the same time, he dismissed the plaintiffs’ claim for an account and inquiry of the rental proceeds received by Kalairani after TG’s death, finding that this claim was barred by laches. The Judge explained the reasons for his decision in Appangam Govindhasamy (legal representative of the estate of T Govindasamy, deceased) and others v Salaya Kalairani and another [2023] SGHC 91 (the “GD”).

Both sides filed appeals against the Judge’s decision: AD/CA 117/2022 (“AD 117”) was Kalairani’s appeal against the Judge’s order that the Property be sold and his dismissal of her counterclaim; AD/CA 118/2022 (“AD 118”) was the plaintiffs’ appeal against the Judge’s finding that their claim for an account and inquiry of the rental proceeds was barred by laches.

On 29 September 2023, having heard the parties’ submissions, we dismissed AD 117 and allowed AD 118 in part. We ordered Kalairani to account to the plaintiffs for rent received from the Property from 24 September 2015, and to pay to the plaintiffs half of the rent after deduction of reasonable expenses in respect of the Property and the rental thereof. These are the reasons for our decision.

Facts

Tey and her late husband, Mr Salaya s/o Vengdalamandor (“SV”), married in 1960. SV and TG were good friends. After SV’s death in 1969, TG informally adopted Tey as his daughter and Tey’s four children as his grandchildren.

Tey and TG bought the Property for $40,000 as tenants-in-common in equal shares on 28 May 1970. In the course of the years after its purchase, mortgages were taken out and lodged against the Property on 12 September 1975, 15 April 1983 and 2 August 1984. Each time, TG stood as surety and both Tey and TG assumed joint and several liability for the loan.

TG’s death, and the 1993 and 1995 Powers of Attorney

Following TG’s death on 10 October 1993, in late 1993, Tey visited his family in India with a power of attorney dated 28 December 1993 (the “1993 POA”). This POA was signed by Mdm Rethinathammal (TG’s wife) and TG’s three sons: the 1st respondent, (“Appangam”), Manickam Govindasamy (“Manickam”) and the 2nd respondent (“Subbaiyan”) in their personal capacities. Manickam passed away in 2011 and the 3rd and 4th respondents are his children and hence grandchildren of TG. The 1993 POA described Tey as a “daughter of [TG] and one of the beneficiaries of [TG’s] estate”. The 1993 POA stated, among other things, that the signatories: were the beneficiaries of TG’s estate; were “desirous in having the Grant of Letters of Administration in order to crystalize the assets and to realize same”; and appointed Tey as their attorney to, among other things: apply for and obtain the Grant of Letters of Administration to TG's estate in Singapore; and sell any property of TG in Singapore, “especially the property located at and known as No. 24A Cuff Road”; it was undisputed that 24A Cuff Road referred to the second floor of the Property.

In late 1995, Tey brought another power of attorney to India (the “1995 POA”). The 1995 POA was similar to the 1993 POA, save that it no longer described Tey as TG’s daughter and one of the beneficiaries of TG’s estate. Tey was said to have informed Appangam and Subbaiyan that a new power of attorney was needed because the 1993 POA had not been accepted by the Singapore court. Manickam did not want to sign this POA and it remained unsigned. In July 1996, Manickam gave notice to Tey, through his lawyer, that he was revoking the 1993 POA.

Tey’s will, death and estate

On 28 February 2002, Tey executed a will (the “Will”), in which she appointed Kalairani as sole executrix and trustee of her Will. Tey did not make provision for her eldest son because she had given him another property at 33 Mulberry Avenue in her lifetime. Tey bequeathed 19A Puay Hee Avenue to her second son and 19 Puay Hee Avenue to her youngest son. Clause 6 of the Will provided that: 6. I give my aforesaid daughter [Kalairani] my share in the land and premises known as No.24 Cuff Road, Singapore and the lands and premises known as No.10 Veerasamy Road, Singapore and No.4 Norris Road, Singapore for her absolute use and benefit … Kalairani is also the beneficiary of Tey’s residuary estate under cl 7 of the Will.

On 24 May 2015, Tey passed away. On 23 June 2015, Kalairani obtained a Grant of Probate of the Will. On 21 October 2015, the three mortgages over the Property were discharged and Tey’s half-share in the Property was transferred to Kalairani as beneficiary under the Will. The land register reflected that Kalairani and TG hold equal shares in the Property as tenants-in-common.

Commencement of action

On 23 October 2020, the plaintiffs obtained a Grant of Letters of Administration of TG’s estate. Subsequently, on 24 September 2021, the plaintiffs commenced HC/OS 971/2021 which was later converted into Suit 107.

Decision below

The Judge made the following decisions: dismissed the counterclaim on the basis that Kalairani had failed to prove that TG held his registered half-share in the Property on a resulting trust or a common intention constructive trust in favour of Tey; dismissed Kalairani’s defence of acquiescence; ordered the Property to be sold and the net proceeds to be distributed equally between TG’s estate and Tey’s estate; dismissed the plaintiffs’ claim for an account and inquiry of rental proceeds received by Kalairani and Tey after TG’s death, on the basis that this claim was barred by laches; and ordered costs against Kalairani.

First, on the resulting trust claim, the Judge held that Kalairani had failed to prove that Tey had paid the full purchase price of the Property such that TG held the Property on a purchase price resulting trust for Tey (GD at [43]). There was no direct evidence of Tey’s ability to pay the full purchase price, or TG’s inability to pay half of the full purchase price (GD at [44]–[45]). The Judge further found that the objective evidence showed that Tey did not treat TG’s half-share as her own. The inference to be drawn was that Tey did not pay the full purchase price of the Property (GD at [64]). As for the common intention constructive trust claim, Kalairani had failed to prove that TG and Tey shared a common intention for TG to hold his half-share in the Property on trust for Tey (GD at [117]). Such a common intention constructive trust was contradicted by the 1993 and 1995 POAs (GD at [108]–[109]).

Second, the Judge dismissed Kalairani’s defence of acquiescence for being unclear (GD at [123]). In any event, there was insufficient evidence of acquiescence (GD at [122]).

Third, the Judge held that the plaintiffs were barred by laches from pursuing their claim for an account of the rental received by Kalairani. After the 1995 POA was not signed and the 1993 POA was revoked, it would have been clear to the plaintiffs that the Property would not be sold. Yet, the plaintiffs did nothing with regard to the rental of the Property until after 2018 (GD at [127]).

Fourth, the Judge agreed with the plaintiffs that partitioning the Property was not feasible, given that the relationship between the parties had deteriorated (GD at [130]). Subdivision of the Property was also unlikely given the Conservation Guidelines issued by the Urban Redevelopment Authority (“URA”) (GD at [131]). Therefore, the Judge ordered that the Property be sold in the open market and the net sale proceeds be distributed equally between the plaintiffs and Kalairani (GD at [132]).

Finally, the Judge ordered costs against Kalairani fixed at $130,000, plus disbursements to be fixed by the court (GD at [136]).

Parties’ cases on appeal AD 117

Kalairani contended that the Judge was wrong to have dismissed the counterclaim on the basis that there was no resulting trust or common intention constructive trust in Tey’s favour.¹ Kalairani raised three arguments in support: First, the Judge failed to draw the proper inferences from the evidence regarding the purchasing ability of Tey and TG, and took into account irrelevant factors such as the fact that Tey had borne four children from 1960 to 1965.²...