Tsu Soo Sin nee Oei Karen v Ng Yee Hoon

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 28 February 2008
• Neutral Citation: [2008] SGHC 30
• Court: High Court (Singapore)
• Published date: 03 March 2008
• Year: 2008
• Plaintiff Counsel: Brendon Choa and Chen Chuen Tat (Acies Law Corporation)
• Defendant Counsel: Indranee Rajah SC, Celeste Ang, Dipti Jauhar and Daniel Soo (Drew & Napier LLC)
• Subject Matter: Contract,Probate and Administration
• Citation: [2008] SGHC 30

28 February 2008

Lai Siu Chiu J:

1 This action was a claim by Karen Tsu (“the plaintiff”) against Ng Yee Hoon (“the defendant”) who is her sister-in-law, for the return of $666,666 (“the sum”) allegedly paid by the plaintiff to the defendant by mistake. I would add that this is the third suit between the plaintiff and the defendant’s family as, in two previous suits viz Suits No. 514 of 2006 and 79 of 2007 (“the previous actions”) the plaintiff had been sued by one of the defendant’s brothers Oei Tjiong Bin (“Tony”) who also features in this action. I had awarded judgment in the previous actions to Tony (see Oei Tjiong Bin v Tsu Soo Sin [2007] SGHC 215) and the plaintiff’s appeal against the same is pending.

2 The plaintiff was married to Oei Boon Wan (“Boon Wan”), the younger brother of Tony. Boon Wan passed away on 14 April 2002 and the plaintiff was granted the letters of administration to his estate on 24 May 2006. The plaintiff’s father-in-law or Tony’s father Oei Tok Kek (“the late father”) passed away on 12 October 1999. Tony is the sole executor of the late father’s estate, having been granted probate on 27 December 1999. Tony’s eldest brother Whang Ming Whee (“Ming Whee”) had passed away on 23 September 1995 and Ming Whee’s widow is Tan Boon Poh (“Boon Poh”).

3 The evidence adduced in the previous actions showed that the late father was a very traditional Chinese man who favoured sons over daughters. Under his Will dated 24 February 1997 (“the Will”), the late father left his entire estate to his sons and gave nothing to any of his four daughters. The late father’s four daughters in order of seniority are:

(i) Oei Geok Baw (“Geok Baw”)

(ii) The defendant

(iii) Ng Guat Hwa (“Guat Hwa”) and

(iv) Ng Geo Eng (“Geo Eng”)

(Hereinafter they will be referred to collectively as “the sisters”). Under the Will, Boon Poh received a share of the estate in her capacity as the sole administratrix of Ming Whee’s estate. (The three beneficiaries under the Will are hereinafter collectively referred to as “the beneficiaries” while the late father’s estate will be referred to as “the estate”).

The facts

4 Sometime after the death of the late father and after the Will had been read, Tony, Boon Wan and Boon Poh met at Tony’s house at the latter’s invitation. Guat Hwa was present but not the defendant. Either Tony or Boon Wan apparently proposed that when the beneficiaries received their share of the estate, they would each give a portion thereof to the sisters. Boon Poh did not raise any objections to the proposal.

5 On 21 November 2002, Tony, Boon Wan, Boon Poh, the plaintiff, Guat Hwa, the defendant and the defendant’s husband Tay Lee Tee (“Tay”) met at the defendant’s residence at No. 33 Fort Road. At this meeting, Tony explained that with the defendant’s help, the assets (comprising mainly of shares in listed companies) of the estate had been realized and the net sum available for distribution to the beneficiaries was $4,585,013.53. (Divided equally between the beneficiaries, each would receive $1,528,337.85). Tony handed cheques dated 21 November 2002 each in the amount of $1,528,337.85 to the plaintiff and to Boon Poh. (The cheques of $1,528,337.85 each will be referred to as “the estate’s cheques” collectively or singularly as “the estate’s cheque”).

6 Tony then added that when Boon Wan was alive, the beneficiaries had agreed to contribute a sum of $2m for distribution amongst the sisters. He then handed to the defendant his own cheque for $666,668 issued in her favour. The plaintiff similarly took out her cheque book and wrote out a cheque for the sum in the defendant’s favour which she also handed to the defendant. Both cheques were post-dated to Monday 25 November 2002. Boon Poh did not have her cheque book with her but she was not asked to return home (at No. 59 Fort Road which is opposite the defendant’s house) to retrieve her cheque book to issue a cheque. In any case, Boon Poh indicated she wanted to wait until the estate’s cheque had cleared before she issued her own cheque for $666,666. (The three cheques from Tony, the plaintiff and Boon Poh would total $2m).

7 According to the defendant, Boon Poh telephoned her on or about 25 November 2002 to say the estate’s cheque had cleared and Boon Poh had prepared a cheque for $666,666 (“Boon Poh’s cheque”) which the defendant could pick up. The defendant went over to Boon Poh’s house and collected Boon Poh’s cheque which was also issued in the defendant’s favour and dated 26 November 2002.

8 The cheques from Tony and the plaintiff were cleared on 25 November 2002 while Boon Poh’s cheque was cleared on 26 November 2002. After the total sum of $2m had been credited to the defendant’s account with the United Overseas Bank Ltd (“UOB”), Tay issued cheques each in the amount of $500,000 to Guat Hwa and Geok Baw. The defendant personally handed Guat Hwa’s cheque to Guat Hwa and arranged for Geok Baw’s cheque to be delivered to Geok Baw’s daughter Bee Lay at the office of Siong Guan Pte Ltd (“Siong Guan”), the family company where Bee Lay worked.

9 The defendant did not pay 500,000 to Geo Eng. Geo Eng’s husband is Tan Hak Siang (“Tan”) who had taken a loan of $500,000 for Yew Say Pte Ltd (“Yew Say”) from Tay sometime in February 1998. Yew Say was the family business of Tan. A month later, Tan approached Tay again for financial assistance. This time Tan wanted a standby letter of credit for his new business Yew Say International which was set up to import fruits from New Zealand for sale to China. After discussing amongst themselves, the defendant and Tay agreed to help Tan. Tay arranged for a standby letter of credit to be issued for a maximum amount of $3m in favour of the New Zealand Apple and Pear Board from whom Tan bought his fruits.

10 Tan and his family business ran into difficulties with the result that the standby letter of credit was called upon in the amount of $2,568,913.19. Tan had agreed to be personally liable for the loans taken by the company to the limit of $3,176,000. Tan did not pay the sum owed to Tay and in 2000, he and Geo Eng were adjudged bankrupts. Tay filed a Proof of Debt in the amount of $2,568.913.19 against Tan’s bankrupt estate on his own and on behalf of the defendant. Tay excluded therefrom the sum of $500,000 Tan had borrowed personally for the reason that he did not want to add to Tan’s debts, thinking Tan would repay the personal loan if and when Tan had the means.

11 The defendant therefore intended that Geo Eng’s share of $500,000 should be setoff against what Tan owed to her and/or to Tay. The defendant informed Tony of her intention soon after the meeting in [5]. Tony (who was aware of Tan’s debt to his sister and brother-in-law) indicated he would speak to Geo Eng.

12 Shortly thereafter, Tony informed the defendant that Geo Eng had agreed to allow the defendant to retain Geo Eng’s ¼ share of the $2m as part payment of the amounts owed by Tan to Tay and the defendant. Consequently, neither Tay nor the defendant issued a cheque to Geo Eng for $500,000.

13 After receiving $500,000, the defendant expended the moneys by way of annual gifts (which amounts increased over the years) to her three children. She would inform her children the source of the gifts and thank her brother and two sisters-in–law for their generosity. She had already thanked all three benefactors on 21 November 2002.

14 On 11 August 2006, Tony commenced proceedings against the plaintiff in the previous actions. In Suit No 514 of 2006, Tony and Siong Guan jointly sued the plaintiff for the return of loans totalling $870,000 taken by Boon Wan in her capacity as his legal representative. In Suit No 79 of 2007 (which was initially commenced in the lower courts but subsequently transferred to the High Court), Tony sued the plaintiff to recover a loan of $110,000 he had made to her personally after Boon Wan’s demise.

15 Soon after Tony’s commencement of the previous actions, the defendant received a letter from the plaintiff’s solicitors dated 14 September 2006 demanding the return of the sum, on the ground that the same had been paid under duress or compulsion. The letter alleged that Tony, in his capacity as the executor of the estate, had threatened the plaintiff on or about 21 November 2002 that he would not release Boon Wan’s share ($1,528,337.85) of the estate to the plaintiff unless she made out a cheque for the sum. In the alternative, the plaintiff’s solicitors alleged that the plaintiff paid the sum to the defendant under the mistaken belief that Tony had a legal right to withhold from the plaintiff Boon Wan’s share of the estate until she had paid the sum.

16 The plaintiff’s solicitors demanded repayment of the sum from the defendant within seven days failing which action would be commenced for its recovery. The defendant through her solicitors responded that the plaintiff’s demand for repayment of the sum was “misconceived”. The defendant did not accede to the plaintiff’s demand for repayment even after two further letters from the plaintiff’s solicitors dated 15 January and 18 January 2007. Consequently, the present suit was filed by the plaintiff on 22 January 2007.

17 It was the plaintiff’s case that she was told by Boon Poh on or about 8 January 2007 that the latter did not recall any meeting with Boon Wan and Tony prior to Boon Wan’s demise, where there was a discussion followed by agreement, that when the beneficiaries received their shares of the estate, they would give a portion to the sisters.

18 While this suit was still pending, Boon Poh’s solicitors wrote to the defendant’s solicitors on 3 September 2007[note: 1] asserting that at the meeting she attended during Boon Wan’s lifetime with Tony and Boon Wan (soon after the late father’s demise), Tony had proposed a figure of $1m to the sisters. Boon Poh’s solicitors claimed that Boon Wan did not respond or agree to the proposal as Tony had claimed at the meeting on 21...