Tan Yok Koon v Tan Choo Suan and another and other appeals

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 21 February 2017
• Neutral Citation: [2017] SGCA 13
• Date: 21 February 2017
• Docket Number: Civil Appeals Nos 90, 91, 92, 93 and 95 of 2015
• Published date: 13 May 2017
• Plaintiff Counsel: Ang Cheng Hock SC, Tan Xeauwei, Melissa Mak and Daniel Seow (Allen & Gledhill LLP),Lok Vi Ming SC, Melissa Thng and Carren Thung (Dentons Rodyk & Davidson LLP),Molly Lim SC, Philip Ling and Kam Kai Qi (Wong Tan & Molly Lim LLC),Michael Khoo SC, Josephine Low and Ong Lee Woei (Michael Khoo & Partners),Paul Seah, Keith Tnee, Lau Qiuyu and Leonard Loh (Tan Kok Quan Partnership)
• Defendant Counsel: Desmond Ong and Alex Goh (JLC Advisors LLP)
• Court: Court of Appeal (Singapore)
• Hearing Date: 11 July 2016
• Subject Matter: Equity,Duties,Resulting trusts,When arising,Evidence,Principles,Express trusts,Fiduciary relationships,Admissibility of evidence,Presumed resulting trusts,Civil Procedure,Costs,Trusts

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

These are appeals against the decision of the High Court judge (“the Judge”) in 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 and other matters [2015] SGHC 306 (which was reported in part in [2016] 1 SLR 1150) (“the GD”). These appeals – wherein sibling is pitted against siblings – are very unfortunate. They are the result of a total breakdown in familial ties between the eldest sibling, on the one hand, and her four other siblings, on the other. Both sides have advanced diametrically opposed versions of what their late father – the patriarch of the family – had desired. Only one thing is sure – regardless of which party is ultimately held to prevail, their late father would have been profoundly disappointed (perhaps even heartbroken) at this litany of litigation (as well as the accompanying emotional fallout and stress that it has engendered). As we shall see, this is wholly contrary to the spirit in which he had envisaged the family in general and the family business in particular ought to have developed and, indeed, flourished.

The other difficulty with regard to the present appeals is the fact that there is – leaving aside the (naturally) biased testimony of the various parties and their respective witnesses – a dearth of clear and objective evidence. This is due, in part, to the more informal manner in which the family business was run and, in part, to the very lengthy period of time during which the events germane to the present appeals occurred. The result is that parties have latched on to whatever evidence (in particular, documents) that appears to support their respective cases (on occasion, without sufficient regard to the context in which this evidence ought to be viewed and the overall context that would aid in elucidating their late father’s intentions).

Given the crucial importance of the facts in the context of the present appeal and (in particular) the detailed analysis that follows, it would be helpful to first set out a table of contents to guide the reader, as follows:

Table of Contents	Paragraphs
Introduction	[1]–[3]
Facts	[4]–[43]
	The parties	[5]–[7]
	The factual background	[8]–[34]
		The patriarch’s beginnings	[9]
		The Katong Property	[10]
		Facts relating to the AAS Shares and the Bajumi Shares	[11]–[27]
			The birth of AAS, the siblings’ increasing involvement in AAS and TKT’s exit in 1985	[13]–[18]
			Post-1985 transfers to TCS from the four siblings	[19]
			The Bajumi litigation and the transfer of the Bajumi Shares to NGO	[20]–[27]
				Settlement – the Bajumi Shares transferred to NGO	[21]–[22]
				Bajumi litigation settlement funded by the DBS Term Loan	[23]–[26]
				The 2005 Trust Deed	[27]
		The sale of the Cluny Park Properties and the AAS Shareholder Loans	[28]–[30]
		Facts relating to EnGro and AAIE	[31]–[34]
	Trouble brews, and the disputes begin	[35]–[43]
		TCS begins to exert influence and control in AAS	[36]–[37]
		TKT passes away	[38]–[43]
The litigation below	[44]–[70]
	The claims	[44]–[46]
	The Judge’s decision	[47]–[70]
		OS921	[47]
		S570	[48]–[69]
			General observations	[48]–[50]
			Beneficial ownership of the assets	[51]–[65]
				The AAS Shares	[52]–[55]
				The Bajumi Shares	[56]–[59]
				The AAIE Shares	[60]–[61]
				The EnGro Shares	[62]–[63]
				The Tan family funds (including the Cluny Park Proceeds)	[64]–[65]
			Whether TCS/NGO, as resulting trustees, owed and breached fiduciary duties	[66]
			Costs	[67]–[69]
		S170	[70]
The parties’ position and arguments on appeal	[71]–[81]
	Respective positions on main issue 1: Beneficial ownership of the assets	[73]–[76]
	Respective positions on main issue 2: Liability of TCS and NGO for breach of trust	[77]–[78]
	Respective positions on main issue 3: Costs order against TCS below	[79]–[81]
Our decision	[82]–[239]
	Analysis of main issue 1: Beneficial ownership of the assets	[82]–[177]
		Issue 1A: The AAS Shares	[82]–[128]
			Whether TKT gifted the AAS Shares to his children in the period between 1968 and 1985	[83]–[124]
				TKT’s beliefs and desires	[84]–[87]
				The manner in which shares were transferred from 1968 to 1985	[88]–[91]
				TKT’s continued influence over AAS and his children’s deference to him	[92]–[93]
				Plans for a Tan family trust	[94]–[96]
				The 1986 Trust Letter and the 1990 Trust Letter	[97]–[105]
				The parties’ subsequent declarations	[106]–[122]
					TKT’s Bajumi Litigation affidavit	[111]–[113]
					The 2006 Will and the 2006 Joint Statement	[114]–[115]
					Statements & documents executed by TKT and NGO from 2006 to 2008	[116]–[119]
					Subsequent conduct by the TYK and TCG	[120]–[122]
				Conclusion	[123]–[124]
			Whether the four siblings, by their conduct, relinquished the beneficial ownership in the AAS Shares in TKT’s favour	[125]–[127]
			Whether the four siblings were entitled to the AAS Shares in any event by operation of proprietary estoppel	[128]
		Subsidiary issue – the Cluny Park Proceeds	[129]–[138]
			Whether TCS may argue on appeal that TKT was the beneficial owner of the Cluny Park Proceeds	[131]
			Whether, in any event, TKT beneficially owned the Cluny Park Proceeds	[132]–[138]
		Issue 1B: The Bajumi Shares	[139]–[168]
			Who provided the consideration for the Bajumi Shares?	[141]–[162]
				How was the DBS Term Loan actually repaid?	[143]–[149]
				What were the parties’ intentions as to the repayment of the DBS Term Loan?	[150]–[162]
			Did the beneficial owner of the Bajumi Shares intend to make a gift of them to NGO?	[163]–[168]
		Issue 1C: The AAIE Shares	[169]–[175]
		Issue 1D: The EnGro Shares	[176]–[177]
	Analysis of main issue 2: Liability of TCS and NGO for breach of trust or breach of fiduciary duties	[178]–[224]
		Whether, in the light of the pleadings, the Judge was entitled to find a breach of trust	[180]–[185]
		Whether TCS/NGO owed any duty to perform the trust honestly and to act in good faith for the benefit of the beneficiaries	[186]–[215]
			The nature of a resulting trustee’s duty in principle	[188]–[211]
			Whether TCS and NGO owed any duties to the four siblings	[212]–[215]
		Whether TCS breached her duties to the four siblings	[216]–[222]
			Denial of the four siblings’ beneficial ownership of the AAS Shares	[217]–[218]
			TCS’s exercise of the rights attached to the AAS Shares	[219]–[222]
		Conclusion	[223]–[224]
	Analysis of main issue 3: Costs order against TCS below	[225]–[239]
		Whether the Judge wrongly exercised his discretion in ordering that TCS pay one-third of the costs of each set of plaintiffs	[226]–[235]
		Whether TCS conducted her case dishonestly, irresponsibly or unreasonably such that indemnity costs should be awarded	[236]–[239]
Conclusion	[240]–[241]
Chronology of Shareholdings in AAS	Annex A

Facts

The facts have been very comprehensively set out at [7]–[130] of the GD. Here, we will just set out some essential facts.

The parties

The dispute concerns the legacy of the late Mr Tan Kiam Toen (“TKT”), patriarch of the Tan family. His widow is Mdm Ng Giok Oh (“NGO”). The couple had five children – three sons and two daughters: Dr Tan Choo Suan (“TCS”), born in 1944 (in these proceedings, TCS is party both in her personal capacity and as the sole executrix and trustee of TKT’s estate under a will executed jointly with NGO on 6 February 2008 (“the 2008 Joint Will”)); Mr Tan Choo Hoon @ Tan Cheng Gay (“TCG”), born in 1947; Mr Tan Yok Koon (“TYK”), born in 1948; Mdm Tan Choo Pin (“TCP”), born in 1950; and Mr Tan Chin Hoon (“TCH”), born in 1951.

There are essentially two camps in these appeals. One camp comprises NGO and TCS, while the other comprises TCS’s siblings (whom we will call “the four siblings” or “the plaintiffs”). Essentially, the four siblings claimed that they owned, in equity, certain assets owned at law by either TCS or NGO. TCS claimed, however, that the bulk of assets belonged, in equity, to TKT and therefore...