Wee Chiaw Sek Anna v Ng Li-Ann Genevieve

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date28 June 2013
Docket NumberCivil Appeal No 140 of 2012

Court of Appeal

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Tan Lee Meng J

Civil Appeal No 140 of 2012

Wee Chiaw Sek Anna
Plaintiff
and
Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) and another
Defendant

Hri Kumar Nair SC and Tan Sze Mei Angeline (Drew & Napier LLC) for theappellant

Deborah Barker SC and Ushan Premaratne (Khattar Wong LLP) for the firstrespondent

Edwin Tong, Tham Hsu Hsien, Nakul Dewan and Peh Aik Hin (Allen&Gledhill LLP) for the second respondent.

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Women's Charter (Cap353, 2009 Rev Ed) s112

Contract—Misrepresentation—Exaggeration—Husband stated in affidavit of assets that he would pay RM 1,200 in maintenance for each of his two children despite his financial position—Whether husband's statement was mere exaggeration or actionable misrepresentation

Contract—Misrepresentation—Fraudulent—Husband did not reveal earnings of more than US$25,000,000 to wife during marriage and divorce proceedings—Wife did not ask for division of assets—Whether husband fraudulently misrepresented his financial state to wife—Whether wife relied on husband's misrepresentation when she decided to forgo division of assets

Family Law—Matrimonial assets—Division—Husband entered into two contracts for US$25,000,000 and RM 900,000 during marriage—Part of contract sum vested in husband after separation—Whether such assets were susceptible to division during divorce proceedings

Restitution—Unjust enrichment—Wife allegedly forwent division of assets as a result of husband's fraudulent misrepresentation—Husband's moneys could otherwise have gone to wife on division—Husband's moneys settled into trusts—Whether trustees had been unjustly enriched at wife's expense

Trusts—Constructive trusts—Remedial constructive trust—Wife allegedly forwent division of assets as a result of husband's fraudulent misrepresentation—Wife lost opportunity to ask for share of husband's assets—Husband's moneys settled into trusts before his death—Whether remedial constructive trust could now be declared over assets in trusts

The appellant (‘the Appellant’) was the ex-wife of Ng Hock Seng (‘the deceased’), whose estate was represented by the first respondent. The Appellant and the deceased had been married for ten years before they separated on 7 December 1998. As part of their agreement to separate, the deceased undertook to pay for the medical insurance and all educational expenses (including overseas boarding school expenses) of the two children of the marriage. Prior to their separation, the deceased entered into two agreements for the consideration of US$25,000,000 and RM 900,000 respectively. Part of the US$25,000,000 vested in the deceased after the date of separation. The deceased did not reveal the existence of the two agreements to the Appellant, either during the marriage or in the course of their correspondence during the divorce proceedings. The deceased subsequently filed an affidavit of assets and means (‘the Affidavit’) as part of the divorce proceedings, where he stated that he was willing to pay RM 1,200 per child in maintenance ‘ [d]espite his financial position’. The Appellant claimed that the deceased had made fraudulent misrepresentations, intending to induce her to forgo division of assets. The Appellant claimed that she had relied on these fraudulent misrepresentations when she agreed not to ask for division of assets. She relied, in the main, on two sets of documents which she alleged contained the said fraudulent misrepresentations (viz, the correspondence between the deceased and the Appellant after 7 December 1998 and the Affidavit).

Nine years after the divorce was made absolute, the Appellant brought the present claim for fraudulent misrepresentation against the first respondent, after finding out about the moneys that the deceased had earned under the two agreements. The deceased died in 2004. Prior to his death, he settled the moneys earned under the two agreements into four trusts. The Appellant also brought suit against two of these trusts, which now bear some of the (potential) fruits of her claim in fraudulent misrepresentation. She claimed that the trustees (the second respondent) were unjustly enriched as a result of the deceased's fraudulent misrepresentation, as the moneys which they now held would otherwise have been hers if she had not been induced to forgo division. The Appellant also asked for a remedial constructive trust to be imposed over two of the trusts. The second respondent asserted, inter alia, the defence of laches, as the Appellant had waited nine years to bring this claim.

The trial judge dismissed all the Appellant's claims. She found that the Appellant was not induced to forgo division as the impression that the deceased was a man of straw was wholly the Appellant's own perception and not a result of any representation. She also found that the Appellant's claim in unjust enrichment was elusive as the court had no power to determine what the Appellant would have received on division given the passage of time since the divorce. The trial judge reasoned that the moneys the deceased received under the two agreement were not, in any event, matrimonial assets available for division. Moreover, the trial judge found that the funds had been comingled over the 12 years since they were set up, and no proprietary remedy could be asserted over either of the trusts. The Appellant appealed against the trial judge's findings in fraudulent misrepresentation and unjust enrichment.

Held, dismissing the appeal:

(1) Dishonesty was an essential element in the claim of fraudulent misrepresentation and required a high standard of proof. Recklessness was not sufficient to prove fraud. The testimony and credibility of the representor was essential as an indication of his subjective state of mind: at [30], [34] and [52].

(2) In assessing whether an alleged representation was made, the words used had to be...

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