Chan Sek Keong CJ (delivering the judgment of the
court):
These are three related appeals against the decisions of the High Court Judge (“the Judge”) in Suit No 163 of 2008 (“Suit 163/2008”) (see Koh Joo Ann (alias Koh Choon Teck) v First Grade Agency Pte Ltd [2009] SGHC 87 (“the GD”)). Suit 163/2008 concerned the beneficial ownership of a strata unit known as 88 Stevens Road, Stevens Court, #02-02, Singapore 257865 (“the Property”), which is registered in the name of Koh Joo Ann (“Koh”). On 22 August 2007, First Grade Agency Pte Ltd (“First Grade”) lodged a caveat against the Property (“the Caveat”) on the basis that Koh held the Property on trust and that the legal title to the Property was to be transferred by Koh upon demand. In Suit 163/2008, Koh sought, inter alia, the removal of the Caveat and a declaration that Koh is the beneficial owner of the Property (“the Declaration”). First Grade and another company, Inhil Investment Pte Ltd (“Inhil”), counterclaimed for an order for Koh to transfer the Property to a third company, Yeo Siak Hor Pte Ltd (“YSHPL”), or such other nominee as may be nominated.
The appeals before this court are as follows: In Civil Appeal No 11 of 2009 (“CA 11/2009”), Tay Jui Chuan (also known as Tay Juhana) (“Tay Juhana”) has appealed against the decision of the Judge in Summons No 5194 of 2008 (“SUM 5194/2008”) to dismiss an application for him to be added as a plaintiff to the counterclaim by First Grade and Inhil. In Civil Appeal No 27 of 2009 (“CA 27/2009”), First Grade and Inhil have appealed against the dismissal of their counterclaim. In Civil Appeal No 28 of 2009 (“CA 28/2009”), Koh has appealed against the decision of the Judge that the Property was held by Koh on trust for Tay Juhana and that the trust arrangement was conceived to evade the provisions of the Residential Property Act (Cap 274, 1985 Rev Ed) (“the RPA”), which was in force at the time the Property was transferred to Koh. For convenience, First Grade, Inhil and Tay Juhana will be collectively referred to as “the Appellants” in this judgment where appropriate.
Factual background
First Grade, Inhil and YSHPL were incorporated in Singapore and are members of or are associated with the “Sambu Group”. The Sambu Group is a group of more than a dozen companies involved in the manufacturing of coconut-based products and is controlled by Tay Juhana, its founder. Tay Juhana is also the patriarch of the Tay family and the uncle of Koh. First Grade was the “marketing arm” of the Sambu Group. At all material times, none of First Grade’s shareholders and directors was a Singapore citizen. First Grade was therefore a “foreign person” for the purposes of the RPA (per s 2(1) of the RPA). Inhil was the property development arm of the Sambu Group and its shareholders and directors were Singapore citizens at all material times. Inhil was managed by Tay Ban Geok (also known as Tay Teng Hoei) (“Mdm Tay”), the sister of Tay Juhana and Koh’s maternal aunt. Sometime around the mid-1980s, Inhil developed six strata units in a four-storey residential development (ie, Stevens Court) for sale. As it was a four-storey residential development, the sale of the strata units to “foreign persons” was prohibited under s 3(1) of the RPA. According to the defence and counterclaim, after Stevens Court was completed in 1996, the property market at that time was not favourable for the sale of the units. Inhil, therefore, decided to transfer all strata units, including the Property, to members of the Tay family (including Koh) who were Singapore citizens. The consideration for the transfer of the Property to Koh was stated as $700,000. It was alleged in the defence and counterclaim that First Grade had paid $550,000 and that Inhil had paid the balance of $150,000 which (as Mdm Tay testified at trial) had been borrowed from Tay Juhana.
In Suit 163/2008, Koh’s case (as found in his pleadings and his affidavit of evidence-in-chief (“AEIC”) filed for the trial) is, in substance, as follows: Koh is the registered proprietor and beneficial owner of the Property, which was transferred to him in 1996 as a gift from Tay Juhana for whom Koh had worked for 28 years. Koh’s mother died when he was seven years of age. He, thereafter, stayed with his grandmother, Yeo Siak Hor (Tay Juhana’s mother), and was financially supported by Tay Juhana. In 1976, six months after he completed national service, Koh commenced work as a supervisor at PT Pulau Sambu Kuala Enok (“PSK”), a company which was part of the Sambu Group. Over the years, Koh worked his way up through the ranks and was eventually appointed managing director of PSK in 1994 and vice-president in the Sambu Group in 2000. He spent 28 years of his life working for Tay Juhana. Sometime in 1993, Tay Juhana told Koh (in Teochew) at a meeting that he would give Koh a unit in Stevens Court (which turned out to be the Property). The reason for the gift was not disclosed to Koh. When asked by Tay Juhana what he intended to do with the Property, Koh informed Tay Juhana that he intended to give the Property to his daughter (whom he had with his first wife) when she turned 21. One request Tay Juhana had was to be allowed to use the Property as an informal office and for meetings. Koh agreed. At that time, Tay Juhana knew that Koh would not be using the Property as his residence because Koh already had a house in Singapore and was based in Sumatra. Tay Juhana also knew that Koh had a mistress (who later became his second wife), one Maigawaty, who was working for PSK. At no time did Tay Juhana or anyone else mention that Koh was to hold the Property on trust. Koh did not know that the Property had been registered in his name until he received a property tax bill for the Property. Koh did not pay the property tax and other outgoings for the Property as it was being used by Tay Juhana as an informal office and to hold meetings. Koh left the payments of these expenses to Tay Juhana to deal with. Similarly, Koh was content to leave the subsidiary strata certificate of title for the Property (“the SSCT”) with Tay Juhana. Koh was happy to be treated as a member of the Tay family. In 1997, he acted as a guarantor for loans amounting to “millions of US dollars” extended to the Sambu Group by Bank Negara Indonesia (“BNI”). In or about 2002 and 2003, when the Sambu Group was facing cash-flow problems, he readily agreed to mortgage the Property to obtain bank loans to assist. In 2004, Tay Juhana, after a falling out with Koh, dismissed Koh as the managing director of PSK and demoted him to being a general manager in charge of purchasing and production. Koh subsequently resigned from all his positions in the Sambu Group on 16 August 2004. After Koh resigned, Tay Juhana called him for a meeting on 25 August 2004 (“the 25 August 2004 Meeting”) at which Koh was asked to return all his shares in companies in the Sambu Group (which Tay Juhana had earlier given to him) in exchange for his release as a guarantor for loans granted by BNI to the Sambu Group. Koh was angry but felt helpless and so he agreed to return all his shares to Tay Juhana. Tay Juhana then told Koh that he regretted giving him two properties and asked Koh three times to transfer the Property back to him. Koh agreed. At this point, Tay Juhana said that he would support Koh financially for the rest of Koh’s life. On 13 September 2004, Koh went to the office of First Grade and signed the share transfers for his shares in the Sambu Group companies. He was also asked to sign two other documents, namely: one dated 16 August 2004, which stated that he had no claim against First Grade with respect to remuneration, fees, compensation for loss of office or on any account whatsoever; and one dated 13 September 2004, appointing Mdm Tay to sell and dispose of the Property on such terms as she thought fit (“the 13 September 2004 Letter”). He signed both documents. As at the date that he swore his AEIC, Koh did not know whether a release of his guarantee to BNI had been obtained. Between April and July 2007, Koh was asked to sign the transfer instrument to transfer the Property to YSHPL. He was prepared to do so on condition that he receive a written acknowledgement, signed by Tay Juhana, that Tay Juhana would support him financially for the rest of his life. However, Tay Juhana was unhappy with Koh for linking the issue of the transfer of the Property with his promise of financial assistance. In the end, Tay Juhana refused to provide the written acknowledgement and Koh did not sign the transfer instrument. On 22 August 2007, First Grade lodged the Caveat against the Property, pursuant to s 115 of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”), claiming to be the beneficial owner:
[b]y virtue of an agreement between the Registered Proprietor and the Caveator that the Registered Proprietor would hold (the Property) on trust for the Caveator and that the legal title to the Property would be transferred to the Caveator upon demand made by the Caveator on the Registered Proprietor.
Koh attempted to have the Caveat removed. After hearing
representations from Koh and First Grade, the Registrar of Titles eventually
decided that First Grade’s claim had to be adjudicated in court
Accordingly, Koh was requested to obtain a court order to remove the
Caveat.
The case for First Grade and/or Inhil, as set out in the defence and counterclaim, is, in the main, as follows: The Property was transferred to Koh “on condition that [Koh] was to work for the Sambu Group until retirement, i.e. until he was 60 years of age, and that he would faithfully discharge his duties in the course of his employment”. The Property was transferred to Koh not as a gift and that Koh “had agreed with Tay Juhana that he would hold the Property on trust”. In the alternative, given that the purchase monies for the Property had been provided by...
