Tan Yow Kon v Tan Swat Ping and Others

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeSundaresh Menon JC
Subject MatterStriking out,Section 127(1) Land Titles Act (Cap 157, 2004 Rev Ed),Land,Applicable principles,Misjoinder,Order 15 r 6(2)(a) Rules of Court (Cap 322, R 5, 2006 Rev Ed),Whether defendants necessary or proper parties to plaintiff's action,Plaintiff arguing court should not exercise discretion to order removal of caveat on property having regard to balance of convenience test alone as plaintiff having interest in such property,Principles for exercise of court's discretion to order removal of caveat,Scope of court's discretion to remove improper or unnecessary parties to action,Pleadings,Order 18 r 19 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Withdrawal,Caveats,Parties,Civil Procedure,Application to strike out action against certain defendants on ground that plaintiff's statement of claim disclosing no reasonable cause of action against such defendants
Date19 July 2006
Plaintiff CounselC R Rajah SC and Han Kee Fong (Tan Rajah & Cheah) and Seethapathy s/o Mannapuri Padmanabham (S Nabham)
Defendant CounselMolly Lim SC and Shannon Ong (Wong Tan & Molly Lim LLC) and Wee Hong Lin (H L Wee & Co)
Published date21 July 2006
Docket NumberSuit No 102 of 2006 (Registrar's

19 July 2006

Judgment reserved.

Sundaresh Menon JC:

Background

1 The sixth defendant in these proceedings is a partnership through which a substantial family business had been conducted. The plaintiff and all the other defendants are siblings. There were ten children in the family: six sons and four daughters. The sixth defendant was initially formed as a sole proprietorship in 1953 by Mr Tan Kheng Siong, the father of the other six parties in these proceedings. Subsequently, in 1967, it was registered as a partnership when Mr Tan Kheng Siong admitted his wife Mdm Yap Soh Choon and their second son, Mr Tan Peng Nam as partners.

2 Mr Tan Kheng Siong passed away in 1984 and his wife passed away in 1993. Over the years, the constitution of the partnership changed. Initially, the third and fifth sons and the third daughter (who is the first defendant in these proceedings) were admitted to the partnership. Later, as each parent passed away, other children were admitted. The plaintiff, who is the eldest son, was admitted as a partner in 1988. According to the plaintiff, one of his brothers, the third son, left the partnership at this time and was allowed to take over a part of the firm’s business representing his share in the partnership assets.

3 In or around 1994, the partnership was substantially re-organised following the mother’s death. The mother’s share in the firm passed to the daughters. At this time, the three other daughters (in addition to the first defendant who was already a partner) first became partners and the first defendant became the manager of the firm. Two of the sons left the partnership also at this time, and a year later, another son left the partnership. Thereafter, the plaintiff and one other son Mr Tan Wee Bin were the only sons still in the firm. Mr Tan Wee Bin later passed away and his estate is joined as the third defendant acting by its executor (who is the youngest son), Mr Tan Wee Keong Darren (“Mr Darren Tan”).

4 The plaintiff claimed that the three sons (leaving aside Mr Tan Wee Bin) who had withdrawn from the partnership in 1994 and 1995 had each been paid the equivalent of $800,000 in cash representing their share of the partnership assets. The plaintiff further claimed that he had been promised by the first and second defendants as well as by one of his brothers on behalf of the other defendants that his share of the partnership would similarly be valued at $800,000 and would be paid to him when he withdrew or retired from the firm.

5 The plaintiff contended that the family business was to be run for the benefit of all the family members equally and that partnership assets had been entrusted with the first and second defendants on the same basis. He also maintained that over the years, partnership funds had been used to purchase and develop properties including the two properties against which he has now lodged caveats.

6 The plaintiff’s complaint is that following his mother’s death, he has been kept out of the family business and the partnership assets. He no longer receives the salary he had previously been drawing as a partner. Further, he claims, the first defendant, on behalf of all the other parties, has now denied that the plaintiff is entitled to any share in the partnership assets or to payment of the sum of $800,000 which had earlier been promised. Further, the sixth defendant’s business has now ceased though he only became aware of this after the fact.

7 The plaintiff accordingly commenced this action. The action was brought against those who were still registered as partners in the sixth defendant at the time it ceased business. These were the plaintiff’s four sisters and his youngest brother in his capacity as the executor of the estate of Mr Tan Wee Bin.

8 In the action, the plaintiff sought a declaration of his entitlement to payment of the sum of $800,000 or to a share of the partnership assets; a declaration that the two properties mentioned in [5] above form part of the partnership assets; an account of all partnership dealings and assets; an order that the defendants indemnify him in respect of the amounts found to be due to him; and various reliefs relating to the winding up of the affairs of the sixth defendant.

9 The defendants responded to the suit with an application for the claim against the second to the fifth defendants (“the Remaining Defendants”) to be struck out under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”). The defendants contended:

(a) that the principal relief was sought against the first defendant. Moreover, she had been the manager of the partnership at the material times and she alone, it was submitted, was in a position to respond to the plaintiff’s allegations since the others were passive partners who in the main had acquired their interests upon their mother’s death;

(b) that no allegation was levelled by the plaintiff against the Remaining Defendants. There were, so it was said, some passing references to the second defendant but as to the others, beyond reciting the circumstances in which they had become partners, they were not mentioned again save in the context of the reliefs sought; and

(c) in the alternative, that the first defendant had in any event undertaken to meet any claim that the plaintiff might succeed in and therefore the Remaining Defendants were neither necessary nor proper parties. It was therefore contended that pursuant to O 15 r 6(2)(a) the Remaining Defendants should cease to be parties to these proceedings.

10 The defendants also applied for the removal of caveats that had been lodged against the two properties. One of these was held in the first defendant’s name. The other had been held in Mr Tan Wee Bin’s name and is now registered in Mr Darren Tan’s name. The defendants were largely successful before the learned assistant registrar who heard the application at first instance. The claim was struck out against the Remaining Defendants under O 18 r 19. It was also declared that the first defendant “is the proper and necessary party to defend against the Plaintiff’s claims … and has consented to be the main Defendant in this action in place of the Remaining Defendants”. As a consequence of the action against the third defendant being struck off, the caveat against the property now registered in Mr Darren Tan’s name was ordered to be removed. Certain ancillary orders were also made.

The appeal

11 The present appeal was brought by the plaintiff against the learned assistant registrar’s order. The plaintiff instructed Mr Chelva Rajah SC for the appeal. Ms Molly Lim SC was instructed and appeared on behalf of the defendants before the learned assistant registrar and before me.

12 Mr Rajah argued that the plaintiff’s claim centred on his entitlement to be paid the sum of $800,000 or a sum to be assessed representing the value of his share in the firm’s assets. Mr Rajah argued that the plaintiff was seeking no more than what had been promised him by the first and second defendants and by one of the brothers on behalf of the other parties in 1994. This was precisely what had been done in the case of all the other brothers when they had left the partnership, save that in relation to Mr Tan Wee Bin who passed away in 2002, Mr Rajah said his client was not aware of the terms upon which his share had been settled. Mr Rajah argued however that as Mr Tan Wee Bin had been a partner of the firm at the time of his death, he must have had some interest in the firm’s assets and as the plaintiff was seeking an account of the dealings of the partnership he was entitled to join his estate.

13 Mr Rajah also referred to various provisions of the Partnership Act (Cap 391, 1994 Rev Ed) in support of his contention that the plaintiff’s claim against the Remaining Defendants was not out of bounds. In response to a query from me, Mr Rajah stated that the plaintiff’s claim for an account of the partnership dealings was in the alternative to his primary claim which was for the sum of $800,000 to be paid to him.

14 With respect to the caveats, Mr Rajah pointed out that there were two properties. The learned assistant registrar had only dealt with one of the properties, namely 82 Lorong K, Telok Kurau, Singapore 425713 (“No 82”) which had once been held in Mr Tan Wee Bin’s name and is now registered in Mr Darren Tan’s name. The learned assistant registrar had made an order for the removal of the caveat against No 82 on the basis that the order for removal was consequential to the striking-out of the claim against the third defendant. As to the other property, 63 Lorong K, Telok Kurau, Singapore 425763 (“No 63”), the learned assistant registrar had adjourned the application to be heard before a judge. As it had not been dealt with below, it was not the subject of the appeal and hence was not before me.

15 In so far as the properties were concerned, Mr Rajah argued that his client’s case was that these had been acquired with partnership assets and, pursuant to s 21 of the Partnership Act, his client was entitled to stake a claim to these. Mr Rajah submitted in effect that No 82 had been held by Mr Tan Wee Bin on trust for the partnership. He maintained that Mr Darren Tan, as the executor of the estate, is impressed with the same trust. However, Mr Rajah also made it clear that his client’s interest was a monetary one in the sense that it was to ensure he got proper value for his interest in the assets of the partnership and it was not to protect any emotional or other attachment to this particular property.

16 Ms Lim, in response, stated at the outset that she was not maintaining that there was no substantive claim to be adjudicated in this action. Rather, she explained, the statement of claim made no allegations against the Remaining Defendants. There was an assertion that they were partners of the sixth defendant and then various reliefs were sought, including against them. According to Ms Lim, there...

To continue reading

Request your trial
15 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT