Tan Chin Hoon and Others v Tan Choo Suan (in her personal capacity and as executrix of the estate of Tan Kiam Toen, deceased) and Others

• Jurisdiction: Singapore
• Judgment Date: 27 November 2015
• Date: 27 November 2015
• Docket Number: Suits Nos 570 of 2010 and 170 of 2011 and Originating Summons No 921 of 2012
• Court: High Court (Singapore)

Tan Chin Hoon and others

Plaintiff

and

Tan Choo Suan (in her personal capacity and as executrix of the estate of Tan Kiam Toen, deceased) and others

Defendant

[2015] SGHC 306

Vinodh Coomaraswamy J

Suits Nos 570 of 2010 and 170 of 2011 and Originating Summons No 921 of 2012

High Court

Contract — Contractual terms — Implied terms — Implied duty to co-operate — Oral agreement reached by parties to compromise disputes containing condition precedent that Attorney-General’s consent be obtained — Whether duty to co-operate should be implied — Whether duty to co-operate required parties to do all that was reasonably required to persuade Attorney-General to consent — Whether duty to co- operate was breached

Equity — Defences — Laches — Claims brought several years after transactions took place — Whether plaintiffs guilty of prolonged, inordinate and inexcusable delay in bringing action — Trustees Act (Cap 337, 2005 Rev Ed)

Limitation of Actions — Equity and limitation of actions — Assets subject to resulting trusts transferred more than six years before action brought — Whether claim to recover assets time-barred under s 22(2) Limitation Act (Cap 163, 1996 Rev Ed) — Whether exception in s 22(1)(b) Limitation Act applied to resulting trusts — Sections 22(1)(b) and 22(2) Limitation Act (Cap 163, 1996 Rev Ed)

Trusts — Resulting trusts — Presumed resulting trusts — Father allotted or transferred or directed transfers of shares to children — Whether presumption of resulting trust rebutted by direct evidence — Whether presumption of advancement applied to rebut presumption of resulting trust

Trusts — Resulting trusts — Presumed resulting trusts — Siblings transferring shares to eldest sibling — Whether presumption of resulting trust rebutted by direct evidence

Facts

The patriarch of the Tan family (“TKT”) passed away on 15 November 2008. His eldest child (“TCS”) became the sole executrix and trustee of his estate. Following his death, his youngest four children (TCG, TYK, TCP, and TCH) claimed that they owned in equity certain assets which were owned at law either by TKT’s widow (“NGO”) or by TCS. NGO claimed that the assets to which she held legal title were her property absolutely. TCS claimed that the bulk of the assets to which she held legal title belonged in equity only to TKT and therefore fell to be distributed under the couple’s will. Before the court were three sets of proceedings: Suit No 570 of 2010 (“S570”), Suit No 170 of 2011 (“S170”) and Originating Summons No 921 of 2012 (“OS921”).

In S570, TYK, TCP and TCH sought declarations that they were the owners in equity of four groups of assets:

(a) 2.54m shares in Afro-Asia Shipping Company (Private) Limited (“AAS”) registered in TCS’s name (“the AAS Shares”), which made up 47.78% of AAS;

(b) 2.66m shares in AAS registered in NGO’s name, comprising 50% of AAS, which had been transferred to NGO by another family (“the Bajumi Shares”);

(c) 1.75m shares in Afro-Asia International Enterprises Pte Limited (“AAIE”) registered in TCS’s name, comprising 35% of AAIE (“the AAIE Shares”);

and (d) funds from various Tan family sources which the family entrusted to TCS over time and which the plaintiffs referred to collectively as the “Tan family funds”.

Although this was not pleaded, it also appeared that the plaintiffs were asserting a claim to 1.419m shares in EnGro Corporation Limited (“EnGro”) registered in TCS’s name.

TCS and NGO brought a counterclaim in S570 and joined TCG, who was not otherwise a party to S570, as the fourth defendant to their counterclaim. They sought declarations that the assets claimed by the plaintiffs in S570 belonged to either TKT’s estate or NGO, and not the plaintiffs.

In S170, TCG, TYK, TCP and TCH asserted a beneficial claim to a property registered in TCS’s name located at 2 East Coast Terrace (“the Katong Property”).

During the trial of S570 and S170 in 2011, the parties reached an oral agreement to compromise their disputes (“the Compromise”). TCS, as TKT’s executrix and trustee, insisted that the approval of the Attorney-General (“the AG”) be a condition precedent to the Compromise.

In July 2012, the AG declined to grant his consent. TCG, TYK, TCP and TCH commenced OS921 against TCS and NGO claiming that the Compromise was binding on the parties even though the AG had not given his consent and seeking the following relief:

(a) A declaration that the Compromise was a binding settlement of the disputes in S570 and S170.

(b) An order rectifying the Compromise by removing the requirement for the AG’s consent and for specific performance of the Compromise as rectified.

(c) In the alternative, a declaration that TCS and NGO were estopped from asserting that the condition precedent had not been fulfilled, as well as an order for specific performance of the Compromise.

(d) Finally, and in the further alternative, an order that TCS pay damages to the plaintiffs arising from her breach of the Compromise. OS921 was heard before the trial in S570 and S170 was set to resume in 2013. The court dismissed the plaintiffs’ prayers to rectify the Compromise and for specific performance of the Compromise as rectified. The court deferred its decision on the remainder of OS921 until the end of the trial in S570 and S170 because a decision on those heads depended on findings of fact that could only be made after the parties’ evidence in OS921 had been tested by cross- examination.

Held, dismissing the remaining prayers in OS921, largely allowing the plaintiffs’ claims in S570, and...