Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) and another
Jurisdiction | Singapore |
Judge | Chao Hick Tin JA |
Judgment Date | 28 June 2013 |
Neutral Citation | [2013] SGCA 36 |
Court | Court of Appeal (Singapore) |
Docket Number | Civil Appeal No 140 of 2012 |
Published date | 09 July 2013 |
Year | 2013 |
Hearing Date | 09 April 2013 |
Plaintiff Counsel | Hri Kumar Nair SC and Tan Sze Mei Angeline (Drew & Napier LLC) |
Defendant Counsel | Deborah Barker SC and Ushan Premaratne (KhattarWong LLP) |
Subject Matter | Contract,Misrepresentation,Fraudulent,Exaggeration,Family Law,Matrimonial Assets,Division,Restitution,Unjust Enrichment,Trusts,Constructive Trusts,Remedial Constructive Trusts |
Citation | [2013] SGCA 36 |
This is an appeal against the trial judge’s (“the Judge”) decision in
The threshold issue is whether the Appellant’s ex-husband, Mr Ng Hock Seng (“the Deceased”), who died in 2004, had fraudulently misrepresented to the Appellant that he had little or no assets, thus inducing her to forgo division of matrimonial assets at ancillary proceedings. Prior to his death, the Deceased had transferred the monies in his estate into four trusts, two of which are held by the Second Respondent as trustee for the benefit of the Appellant’s two children by the Deceased and the Appellant’s stepdaughter, who is also the First Respondent and executrix of the estate of the Deceased (“the Estate”). If the Appellant succeeds on the threshold issue, the fruits of her claim lie, potentially, in these four trusts. She ultimately made a claim against two of these trusts, arguing that she would have received the monies which had been transferred into those trusts had she asked for a division of the matrimonial assets.
The facts Parties to the dispute The Appellant and the Deceased were married on 19 December 1988 and separated sometime in August 1998. The parties signed a deed of separation (“the Separation Agreement”) on 7 December 1998 and the decree
The First Respondent, Ms Ng Li-Ann Genevieve, is the sole executrix of the Estate and the Deceased’s first daughter from a previous marriage.
The Second Respondent, BNP Paribas Jersey Trust Corporation Limited, is the trustee of two British Virgin Islands (“BVI”) trusts with the Deceased as settlor. The first trust was established on 23
There are two children of the marriage, Joshua Ng (“Joshua”) and Azura Ng (“Azura”), who are beneficiaries of the 1999 trust. The Appellant, however, is listed as an “excluded person” in the 1999 and 2002 trusts. Under BVI law, this precludes the Appellant from being a beneficiary of the 1999 and 2002 trusts.
Background to the disputeThe Deceased and the Appellant were in Singapore at the commencement of their marriage. After the Deceased’s business failed, they moved to Kuching to be closer to the Appellant’s family. The Appellant was the main breadwinner of the family and paid for the Deceased’s living and medical expenses. The Appellant claimed that the Deceased had many failed businesses.
In 1998, the Deceased entered into two agreements with Meissner & Wurst Sdn Bhd (“M&W”) for his appointment as the Strategic Business Advisor for M&W’s first Silicon Wafer Fabrication Project (“the Project”). The agreements were as follows:
Thereafter, the relationship between the Deceased and the Appellant further soured. Things came to a head in August 1998, and the Deceased moved out of the matrimonial home. The Deceased continued to visit the matrimonial home from August to November 1998. During this time, the Deceased set up Armanee Assets Limited (“Armanee”) on 28 October 1998, a BVI company intended as a vehicle for use and investments of the monies received under both M&W agreements (“the monies”). On 22 October 1998, the Appellant signed a divorce petition (“the Divorce Petition”) but did not file it until after the parties had formally separated in December 1998.
On 7 December 1998, the parties entered into the Separation Agreement “for better regulation of the relationship of the parties during the interim period pending the outcome of the hearing of the Divorce Petition”. The Separation Agreement dealt with care and control as well as support and maintenance of Joshua and Azura, the separation of living arrangements between the Appellant and the Deceased, part payment of RM100,000 in debt owing from the Deceased to the Appellant, and transfer of full beneficial ownership in the matrimonial home to the Appellant. The Separation Agreement also specified that the Appellant was to support and maintain herself. A supplementary memorandum signed on the same day contained an undertaking by the Deceased to settle in full additional debts amounting to RM850,000 and S$30,000 owed to the Appellant and her family members.
The following day, the Appellant and the Deceased drew up an agreed parenting plan (providing for monthly maintenance by the Deceased of RM3,750 per child) and a notice of consent to the divorce proceedings. The year of separation on the notice of consent was falsely stated as 1995. The Divorce Petition was modified to include this consent and filed on 22 December 1998.
The Deceased received his first payment of the monies on 28 January 1999. On 10 March 1999, the Deceased set up a second company, Prominent Market Investments Limited (“Prominent”), to hold the monies.
On 23 April 1999, the Deceased set up the 1999 trust with $1,000. This was later endowed with all funds and assets under Prominent and Armanee. The beneficiaries of the 1999 trust are Joshua, Azura and the First Respondent (should Joshua and Azura pre-decease her). By this time, the Project had been successfully procured (see [8(a)] above), and the balance of US$15,000,000 owing under the First M&W Agreement had become due to the Deceased.
The decree
On 28 June 1999, the Deceased bought another BVI company, South Sea International Limited (“South Sea”), to hold his
As part of ancillary proceedings, the Appellant filed her affidavit of assets and means on 3 December 1999. The Deceased filed his affidavit of assets and means on 13 January 2000 (“the Affidavit”). The Affidavit stated that the Deceased’s income came from family, friends and well-wishers.
The Appellant and the Deceased subsequently reached an agreement on the outstanding ancillary matters, in particular for care and control as well as support and maintenance of Joshua and Azura. The Appellant also agreed to forgo any claim to a division of matrimonial assets. This agreement was recorded in a consent order dated 28 February 2000. Under the consent order, the Deceased and the Appellant had joint custody of Joshua and Azura. The Deceased was to pay RM3,750 in monthly maintenance for Joshua and Azura, and provide for their medical insurance and all educational needs up until tertiary level. The Appellant subsequently claimed that she had only agreed to forgo division because she believed that the Deceased had little or no assets to divide. She also claimed that, had she known of the existence of the monies, she would have asked for division and been awarded a portion of the monies. This is the basis for her claim in fraudulent misrepresentation.
Not long after, on 26 April 2000, the Deceased transferred US$2,000,000 from the Armanee account into another trust managed by Merrill Lynch Bank and Trust Company (Cayman) Limited (“Merrill Lynch”). This was in addition to US$1,000,000 which had already been transferred to a second trust managed by Merrill Lynch on 2 February 2000, before the consent order was made. The Appellant has not made a claim against either of the Merrill Lynch...
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