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

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 28 September 2012
• Neutral Citation: [2012] SGHC 197
• Court: High Court (Singapore)
• Docket Number: Suit No 1002 of 2009
• Published date: 04 February 2013
• Year: 2012
• Hearing Date: 22 November 2011,21 November 2011,17 February 2012,24 November 2011,23 November 2011
• Plaintiff Counsel: Indranee Rajah SC, Alex Toh and Angeline Tan (Drew & Napier LLC)
• Defendant Counsel: Deborah Barker SC, Leon Le Lyn and Ushan Premaratne (KhattarWong LLP),Edwin Tong, Tham Hsu Hsien and Nakul Dewan (Allen & Gledhill LLP)
• Subject Matter: Family Law,matrimonial assets,division,Equity,defences,laches,Restitution,unjust enrichment,Trusts,Constructive trusts
• Citation: [2012] SGHC 197

Lai Siu Chiu J:

This was an unusual case. An ex-wife Anna Wee Chiaw Sek (“the plaintiff”) sued the estate of her former husband Ng Hock Seng (“the deceased”) for the fraudulent misrepresentations he had allegedly made to her before they were divorced. The executrix of the deceased’s estate is Ng Li-Ann Genevieve (“the first defendant”) who is the daughter of the deceased by his first marriage. The plaintiff also sued BNP Paribas Jersey Trust Corporation Limited (“the second defendant”) in its capacity as trustee of two trusts set up by the deceased during his lifetime. At stake in these proceedings are assets worth approximately S$28.8m that were amassed by the deceased during the course of his marriage to the plaintiff, which existence was unknown to her until after his demise (on 15 June 2004). It was the plaintiff’s case that the deceased deceived her into thinking he was a man of little or no means and hence she did not apply for a division of matrimonial assets in 1999-2000 during the parties’ divorce proceedings.

The facts

The plaintiff is an East Malaysian and comes from a wealthy Sarawak family; she is the niece of a prominent Singapore banker. The plaintiff met the deceased in 1986 and married him on 19 December 1988 in Singapore. The couple had two children, a son, Joshua Ng Wei Huong (“Joshua”) born on 7 February 1989 and a daughter, Azura Ng Su-Ann (“Azura”) born on 17 October 1990, now aged 23 and 21 respectively (collectively “the children”). Like the deceased, the plaintiff has a child (a son) named Shah Nassar from a previous marriage.

The deceased was a Singaporean. After the parties’ marriage, they moved into a flat belonging to the plaintiff’s family located at Trendale Tower Singapore (“the Trendale flat”). The deceased was then running his own company called Casablanca Pte Ltd (“Casablanca”) which was in the business of distributing beauty products in Singapore and Malaysia. The deceased had a retail outlet in Singapore for his beauty products. However, he was not very successful in his business ventures. The deceased had difficulties paying the salaries of Casablanca’s Malaysian employees and had to borrow from the plaintiff to meet his liabilities. Apart from the plaintiff’s family members, the deceased apparently also borrowed money from his brother Ng Hock Leng (“the deceased’s brother”).

The plaintiff’s father subsequently transferred the Trendale flat into the joint names of the deceased and the plaintiff on condition that the deceased took over servicing of the mortgage loan of the property which outstanding sum then approximated $600,000. The deceased encountered difficulties in keeping up with the mortgage payments shortly after the transfer of title. He and the plaintiff then decided to and did relocate to Kuching, Sarawak to live with the plaintiff’s parents.

The couple lived with the plaintiff’s parents from 1990 to 1993. In November 1992, the plaintiff purchased a house at Jalan Stampin, Sarawak (“the plaintiff’s house”) into which the couple moved in March/April 1993. Although he indicated he would, the deceased did not pay the mortgage instalments on the plaintiff’s house after he had made the initial 10% deposit, again due to his financial difficulties.

The deceased was diagnosed with tongue cancer while the couple were still living with the plaintiff’s parents. Instead of conventional treatment, the deceased opted for traditional Chinese medical treatment. To that end, the couple made several trips to China between 1993 and 1995. The plaintiff paid for the deceased’s treatment and their trips.

By 1990, the plaintiff had started her own business called Equipage Sdn Bhd (“Equipage”) which acted as a factory representative for an Australian company called Sebel which undertook turnkey projects for the supply and installation of institutional equipment and auditorium seats. Amongst the clients of Equipage were various statutory bodies as well as the Sarawak State government.

The plaintiff claimed that for the rest of their married life, she was the main provider for the family. She not only paid the family’s living and travel expenses but also the deceased’s medical expenses. She was also the children’s primary care-giver. Further, she gave the deceased a supplementary credit card (as the deceased was unable to obtain credit cards due to his lack of income) and paid the charges that he incurred thereon. When the deceased adopted a macrobiotic diet after being diagnosed with cancer, the plaintiff also paid for the organic products that the deceased imported from Singapore as part of his diet. The plaintiff bore the travelling expenses that the deceased incurred for his trips to Brunei, Hong Kong, Germany and China to explore business opportunities. She also paid (through Equipage) for the first defendant’s trips as well as those of the deceased’s brother and mother when they came from Singapore to visit him.

During the period that the deceased was ill, he was only engaged in sporadic employment. The deceased had a room at the plaintiff’s office where he brokered deals and handled business proposals. Apart from introducing him to people in business circles, the plaintiff played no role in the deceased’s business affairs.

The plaintiff alleged that because of his violent disposition, the deceased frequently abused her verbally and occasionally physically as well. His behaviour together with his frequent absences from home took a toll on the parties’ marriage. This eventually led to the plaintiff’s filing of divorce proceedings in October 1998 on the ground that the marriage had broken down irretrievably.

Prior to her filing Divorce Petition No 4428 of 1998 (“the divorce proceedings”), the deceased had moved out of the plaintiff’s house to a flat. However, he continued to come and go as he pleased at the plaintiff’s house until an incident on 30 November 1998 when he allegedly turned violent. That was the proverbial last straw that broke the camel’s back where the plaintiff was concerned. Following that incident, the parties entered into a separation agreement on or about 7 December 1998 (“the separation agreement”) to regulate their relationship pending the divorce proceedings and to prevent the deceased from coming to the plaintiff’s house without her consent.

Under the terms of the separation agreement, the plaintiff agreed to support herself (as the deceased said he had no means to do so) but he agreed to support the children and that the plaintiff would have their sole custody, care and control but with unlimited access to the deceased.

A supplementary memorandum dated 7 December 1998 (‘the supplementary agreement”) was added to the separation agreement. By the supplementary agreement, the deceased acknowledged he was indebted to the plaintiff in the sum of RM500,000 (“the agreed debt”) for all the expenses that he had incurred during the marriage but which were borne by the plaintiff. The deceased further acknowledged that he was indebted to the plaintiff’s father, brother and the plaintiff’s cousin in the total sum of RM480,000. The deceased further agreed to partially discharge the agreed debt by paying the plaintiff RM100,000 in five equal monthly instalments commencing on 7 January 1999. According to the plaintiff, the deceased never paid but she did not press him for payment. She said she did not have the heart to do so because of the deceased’s poor health. The plaintiff took steps to recover the agreed debt only after the demise of the deceased (see [44] below).

In the course of the divorce proceedings, the plaintiff sought (which the deceased resisted), maintenance for the children at RM3,750 per child per month from him. In his affidavit of means, the deceased deposed he was in no position to pay any maintenance as he was unemployed due to ill health and age and that he was supported by his siblings, friends and well wishers. He offered to pay RM1,200 per child per month instead as maintenance.

On 27 April 1999, the District Court (“the court”) granted the plaintiff a decree nisi. On 28 February 2000, the court inter alia awarded the plaintiff sole custody, care and control of the children. The deceased was ordered to pay RM3,750 per child per month for the children’s maintenance with effect from 1 February 2000, that he pay for their educational expenses up to tertiary level and that he procure medical insurance policies for them. It was the plaintiff’s case that the deceased did not pay the maintenance ordered either promptly or fully.

On 6 October 2000, the decree nisi was made absolute. Believing that the deceased had no financial means to do so, the plaintiff did not apply for maintenance for herself at the determination of ancillaries for the divorce proceedings. Neither did she apply for a division of matrimonial assets as the deceased had consistently represented to her that he had little or no assets.

It was the plaintiff’s case that while he was alive, the deceased had actively concealed his true financial position from her. Unbeknownst to her, the deceased had accumulated assets worth over US$20m during his lifetime which assets he had settled into trusts and offshore companies. Indeed, one such trust was established on 23 April 1999, four days before the decree nisi was granted.

After his demise, the plaintiff discovered that in his lifetime, the deceased had secured lucrative contracts from the Sarawak State government on behalf of two companies, one of which was Meissner & Wurst Sdn Bhd (“M&W”), part of the Meissner & Wurst group (“M&W group”) of companies from Austria. The M&W group inter alia is involved in engineering, construction and project management as well as in chemicals and high technology infrastructure.

The second company that the deceased was involved in was Interconnect Sdn Bhd (“Interconnect”) which was a joint venture between Interconnect Technology...