Tiong Swee Eng v Yeo Khee Siang

• Jurisdiction: Singapore
• Judgment Date: 27 April 2015
• Date: 27 April 2015
• Docket Number: Suit No 871 of 2013
• Court: High Court (Singapore)

Tiong Swee Eng

Plaintiff

and

Yeo Khee Siang

Defendant

[2015] SGHC 116

Judith Prakash J

Suit No 871 of 2013

High Court

Contract—Misrepresentation—Action for rescission—Declaration of assets in mediation case summary—Declared assets forming part of settlement agreement—Whether representation made to contracting party—Whether representation false—Whether representation relied on

Contract—Misrepresentation—Whether duty of disclosure imposed—Whether settlement agreement was family arrangement—Whether settlement agreement was post-nuptial agreement—Whether post-nuptial agreement imposing duty to disclose prior disposal of assets—Section 112 (2) (e) Women's Charter (Cap 353, 2009 Rev Ed)

Contract—Misrepresentation Act—Representor failing to declare property genuinely forgotten—Whether representation fraudulent—Whether rescission disproportionate response—Whether loss suffered by representee—Section 2 (2) Misrepresentation Act (Cap 390, 1994 Rev Ed)

The plaintiff wife and the defendant husband, who were still married at the time the proceedings were heard, had been involved in Suit No 1009 of 2012 (‘S 1009’) relating to proceeds from the sale of shares which the wife purportedly held on trust for the husband. In March 2013, the wife, the husband and their respective solicitors attended a mediation conducted by the Singapore Mediation Centre, for which both parties had tendered case summaries. As part of his case summary, the husband provided a list of assets (‘the Asset List’) which set out the matrimonial pool of assets.

The mediation was successful and both parties entered into a settlement agreement (‘the Settlement Agreement’) as a consequence. The terms of the Settlement Agreement were in full and final settlement of all claims in relation to S 1009 and were stated to be ‘made in contemplation of any divorce between the parties’. It was not disputed that the Asset List formed the basis for determining the assets that were the subject of the Settlement Agreement.

Immediately after the parties entered into the Settlement Agreement, the wife had second thoughts, leading to the commencement of the current proceedings. She claimed damages and rescission of the Settlement Agreement on the grounds of misrepresentation and/or material non-disclosure by the husband. It was discovered after the parties had entered into the Settlement Agreement that the husband had, some years earlier, transferred shares to their daughter and given $3 m to their son to purchase a property in Australia. A number of other assets were also disclosed by the husband after the current proceedings had commenced (‘the Newly Disclosed Assets’). All of these were not expressly disclosed in the Asset List.

Held, granting the application in part:

(1) A settlement agreement was simply a species of contract to which the general legal principles laid down in Lim Koon Park v Yap Jin Meng Bryan[2013] 4 SLR 150 in relation to an actionable misrepresentation apply. Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur[2014] 3 SLR 1284, relating to the weight to be attributed to a settlement agreement in determination of ancillary matters upon divorce rather than to its validity, did not apply in the present case: at [19] to [21] .

(2) The communication of a falsehood to a plaintiff's agent, if meant for the plaintiff, who then relied on it, was sufficient to establish liability on the part of a defendant. On the facts of this case it was obvious that the contents of the Asset List were meant to be imparted to the wife who would have to decide whether or not to settle. There was also no doubt that any representation made in the Asset List was communicated to the wife's solicitor. This was sufficient to found liability on the part of the husband: at [24] .

(3) It was not necessary that the individual items on the Asset List were communicated to the wife; all that was required for the wife to succeed was that the husband's representation as to the veracity of the Asset List was communicated to her: at [27] .

(4) Most of the Newly Disclosed Assets had in fact been disclosed in the Asset List. However, the omission of a property at Anak Bukit Resorts, Johor Bahru (‘the Anak Bukit Property’), which both parties had forgotten about, from the Asset List did constitute a misrepresentation of the matrimonial pool of assets by the husband. This was either an innocent or a negligent misrepresentation: at [34] to [36] .

(5) It was neither appropriate nor necessary to draw an adverse inference against either party under s 116 illustration (g) of the Evidence Act (Cap 97, 1997 Rev Ed) for failing to call their daughter as a witness in the present case. In any event, even without drawing an adverse inference against the wife, the argument that the parties' daughter held shares on trust for the benefit of the husband failed given the paucity of evidence that the wife had adduced: at [42] and [43] .

(6) There was no duty of disclosure imposed on the husband in the present case. The Settlement Agreement could not be considered a family arrangement as it was made in the context of an end to the family, and did not seek to preserve the family property or the peace or security of the family by avoiding litigation. Further, while the Settlement Agreement would likely be regarded as a post-nuptial agreement falling within s 112 (2) (e) of the Women's Charter (Cap 353, 2009 Rev Ed) in the event of a divorce between the parties, the fact that in a future divorce one party or the other might seek to rely on the Settlement Agreement to govern the distribution of matrimonial assets did not impose any positive duty of disclosure regarding the disposal of assets prior to the date of the agreement: at [60] and [61] .

(7) Even if there was a duty of disclosure on the husband, such a duty would not have extended to a listing of all matrimonial assets acquired since the inception of the marriage. The suggestion that a declaration of matrimonial assets subject to division had to include all assets acquired and disposed of during the marriage simply because of the prospect of dissipation was clearly incorrect: at [53] and [56] .

(8) The wife had relied on the Asset List in entering into the Settlement Agreement: at [69] .

(9) As the nature of the misrepresentation in respect of the omission of the Anak Bukit Property was clearly non-fraudulent, s 2 (2) of the Misrepresentation Act (Cap 390, 1994 Rev Ed) applied to allow for an award of damages in lieu of rescission. Rescission would be a disproportionate response in this case, and an award of $1,000 as nominal damages was more appropriate. The wife remained a joint owner of the Anak Bukit Property and, had it been disclosed, probably would not have claimed it for herself but agreed that, as with another jointly-owned property, it be held for their children: at [72] and [75] to [77] .

Alwie Handoyo v Tjong Very Sumito [2013] 4 SLR 308 (folld)

Au Kin Chung v Ho Kit Joo [2007] SGHC 150 (refd)

BG v BF [2007] 3 SLR (R) 233; [2007] 3 SLR 233 (distd)

Jurong Town Corp v Wishing Star Ltd [2005] 3 SLR (R) 283; [2005] 3 SLR 283 (folld)

Kim Hok Yung v Cooperatieve Centrale Raiffeisen-Boerenleenbank BA [2000] 2 SLR (R) 455; [2000] 4 SLR 508 (folld)

Lim Koon Park v Yap Jin Meng Bryan [2013] 4 SLR 150 (folld)

RBC Properties Pte Ltd v Defu Furniture Pte Ltd [2015] 1 SLR 997 (folld)

Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] 3 SLR 1284 (refd)

Teng Ah Kow v Ho Sek Chiu [1993] 3 SLR (R) 43; [1993] 3 SLR 769 (distd)

Thode Gerd Walter v Mintwell Industry Pte Ltd [2009] SGHC 44 (refd)

Evidence Act (Cap 97, 1997 Rev Ed) s 116 illus (g)

Misrepresentation Act (Cap 390, 1994 Rev Ed) s 2 (2) (consd) ;s 2 (1)

Women's Charter (Cap 353, 2009 Rev Ed) s 112 (2) (e) (consd)

Tan Tuan Wee Andy (Sim Mong Teck & Partners) for the plaintiff

Philip Ling and Yap Jie Han (Wong Tan & Molly Lim LLC) for the defendant.

Judgment reserved.

Judith Prakash J

Introduction

1 The plaintiff wife and the defendant husband have been married since 1979. They are still living in the same household and the wife cooks for the husband though otherwise they do not have much to do with each other. Unfortunately, since 2012, they have been adversaries in two law suits, of which this is the second. The first law suit, Suit No 1009 of 2012 (‘S 1009’) in which the wife was also the plaintiff, was apparently resolved by a settlement agreement made on 11 July 2013 (‘the Settlement Agreement’) but that very night the wife had second thoughts. Those second thoughts led to correspondence between the parties' solicitors and, ultimately, culminated in this action.

2 In this action, the wife claims damages and rescission of the Settlement Agreement on the grounds of misrepresentation and/or material non-disclosure by the husband. The husband in turn has made a counterclaim for a declaration that:

(a) the Settlement Agreement is valid and binding on both parties;

(b) the wife has acted in breach of the Settlement Agreement in trying to wrongfully repudiate it; and

(c) the parties have reached a full and final settlement of S 1009 and that suit must be deemed to have been discontinued.

The husband also seeks damages.

3 The misrepresentation and non-disclosure alleged by the wife relate to the husband's statement of ‘the matrimonial pool of assets’ (‘Asset List’) contained in the husband's ‘Mediation Case Summary’ (‘Summary’) which was prepared and presented for the purpose of a mediation session arranged for S 1009. Generally, the issues that arise therefore are whether there was misrepresentation, if so, whether the wife relied on the misrepresentation and if there was a duty to disclose which was breached by the husband.

The facts

The background

4 The parties are now in their seventies. The husband was previously married to the wife's younger sister and had two children, a boy and a...