Wei Ho-Hung v Lyu Jun

• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 19 August 2022
• Neutral Citation: [2022] SGHC(A) 30
• Citation: [2022] SGHC(A) 30
• Published date: 24 August 2022
• Docket Number: Civil Appeal No 130 of 2021
• Plaintiff Counsel: Mahesh Rai s/o Vedprakash Rai and Samuel Soo Kuok Heng (Drew & Napier LLC)
• Defendant Counsel: Lok Vi Ming SC and Qabir Singh Sandhu (LVM Law Chambers LLC) (instructed), Chong Xin Yi and Tan Lena (Gloria James Civetta & Co)
• Subject Matter: Civil Procedure,Appeals,Leave to raise new points,O 56A r 9(5)(b) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed),Contract,Intention to create legal relations,Loan agreements,Gifts,Conditions attached,Trusts,Quistclose trusts,Threshold of proof
• Hearing Date: 22 July 2022
• Court: High Court Appellate Division (Singapore)

Belinda Ang Saw Ean JAD (delivering the grounds of decision of the court): Introduction

This appeal concerned a dispute between an unmarried couple over putative gifts made during the time of their relatively short relationship. It arose from the decision of a Judge of the General Division of the High Court (the “Judge”) in Lyu Jun v Wei Ho-Hung [2021] SGHC 268 (the “Judgment”). On 22 July 2022, we heard the appeal. After hearing submissions from parties, we substantially dismissed the appeal, though we varied an aspect of the Judge’s decision. At [59]–[63] below, we will explain the basis on which we decided to effect this variation.

Background

The background to this matter is stated more fully in the Judgment.

In essence, the parties met in March 2016, and, by May 2016, they became romantically involved. It bears highlighting that the respondent (“Mr Lyu”) was married at the time he and the appellant (“Ms Wei”) entered into their relationship. Mr Lyu remained married throughout, though his wife was in the process of obtaining a divorce from him. He wished to marry Ms Wei after his divorce and to formally start their life together as a married couple. In this connection, he had informed Ms Wei that upon his divorce, some of his assets would need to be transferred to his wife (see the Judgment at [44] and [49]).

During their relationship, Mr Lyu transferred substantial sums of money to Ms Wei. These sums were used to acquire assets in Ms Wei’s name, such as an apartment, as well as for various other purposes which did not result in the ownership of an unencumbered asset, such as to discharge a mortgage over Ms Wei’s apartment. After their relationship soured and ended, Mr Lyu sought to recover these assets and sums of money, the collective value of which he claimed was around S$8 million, though Ms Wei only admitted to receiving around S$7 million (see the Judgment at [7]). This disagreement is not salient.

There were ten assets and sums of money in respect of which Mr Lyu brought claims. Adopting the descriptions used by the Judge (see the Judgment at [8]), the assets and claims concerned the following matters: The D’Leedon apartment; The Car; The discharge of the Bartley mortgage; The Cairnhill option; The first clinic investment; The US surrogacy; The application for Grenadian citizenship; The Marne Road shop; The second clinic investment; and The Rolex watch.

At trial, Mr Lyu’s overarching contention was that the transfers made to Ms Wei were not gifts, and had only been made with a view to building their life together as a married couple. Ms Wei was thus not entitled to retain them once their relationship came to an end. In response, Ms Wei’s general defence was that she received them as gifts of love, and was therefore entitled to them wholly. We note that it was not Ms Wei’s case that she was entitled to a share of the assets and sums of money. For her, it was all-or-nothing, and this is what the Judge understood her case to be as well (see the Judgment at [25]).

The decision below

The Judge found substantially for Mr Lyu and allowed eight of his ten claims. Only the two claims relating to the money used to discharge the Bartley mortgage and the Rolex watch were dismissed (see the Judgment at [62]–[67] and [91]–[93] respectively).

In arriving at his decision, the Judge took into account the parties’ oral evidence on the stand, text messages, and various pieces of evidence which shed light on the context of their communications. In general, such evidence led the Judge to the conclusion that Mr Lyu did not intend – by most of his transfers of funds – to benefit Ms Wei gratuitously.

Grounds of the appeal

Ms Wei appealed the Judge’s decision in respect of all eight claims on which Mr Lyu succeeded. Mr Lyu did not appeal the two claims on which he failed and, so, only eight claims were in issue before us.

For present purposes, Ms Wei’s grounds of her appeal are conveniently grouped around two subsets of those eight claims: The first group comprises Mr Lyu’s claims in respect of: (i) the D’Leedon apartment; (ii) the Car; (iii) the Cairnhill option; and (iv) the Marne Road shop. These claims are grouped together because they raise a common dispositive issue to which we will turn at [24]–[32] below. The second group comprises Mr Lyu’s claims in respect of: (i) the first clinic investment; (ii) the US surrogacy; (iii) the second clinic investment; and (iv) the application for Grenadian citizenship. These claims do not have a common dispositive issue, but the issue arising in relation to each are of a similar character. We will explain this similarity at [19]–[23] below.

Before turning to explain the issues in respect of each group, we pause to highlight that in the Appellant’s Case¹ as well as the Appellant’s Skeletal Arguments,² there was some indication that Ms Wei’s appeal in respect of the Cairnhill option would raise issues which would straddle both groups. However, at the hearing before us, her counsel, Mr Mahesh Rai (“Mr Rai”), confirmed that this was not the case and that the Cairnhill option only fell within the first group, or what he described as the “resulting trust assets”. Accordingly, we only considered her appeal in relation to the Cairnhill option insofar as it related to the first group of claims.

The first group of claims

In respect of the claims falling within the first group, Ms Wei in this appeal abandoned her assertion that the sums used to acquire these assets were transferred to her as gifts wholly for her benefit (see [6] above). Instead, the ground of her appeal was that the Judge erred in determining that Mr Lyu lacked any and all intention to benefit her, even to a lesser degree (ie, less than 100%). As Ms Wei put in her Appellant’s Case: 16. The Judge found that a resulting trust arose over 100% of the D’Leedon apartment because Ms Wei had failed to prove Mr Lyu’s intention to gift the property completely to her. However, as argued … below, the contemporaneous evidence adduced before the Court shows that Mr Lyu undoubtedly had the intention for Ms Wei to possess some beneficial interest. Even if the Judge was not convinced that Mr Lyu had intended to gift Ms Wei with 100% of the beneficial interest in the property, a declaration that Ms Wei holds the entire property on resulting trust for Mr Lyu can only be upheld if the Judge was satisfied that there was a complete absence of intention by Mr Lyu to benefit Ms Wei. 17. The Judge adopted an all-or-nothing approach towards declaring the beneficial owner of D’Leedon Property because Ms Wei had regarded Mr Lyu’s financial contributions as a pledge of love towards her. This led to the Judge remarking that “[n]either party has contended that there is any question of shared ownership of the beneficial interest of any particular asset”. 18. However, regardless of Ms Wei’s genuine expectations during the relationship, the question of donative intent must be answered from Mr Lyu’s perspective. From the contemporaneous documents and Mr Lyu’s oral testimony itself, there is sufficient basis for the Court to draw the conclusion that Mr Lyu intended to benefit Ms Wei. 19. To this extent, Ms Wei seeks leave under Order 56A Rule 9(5)(b) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) to introduce the new point that Mr Lyu had the donative intent to benefit her with at least 50% beneficial interest in the D’Leedon Property.

[emphasis in original in underline; emphasis added in italics]

On this footing, Ms Wei claimed that the evidence should be read to disclose a donative intention on Mr Lyu’s part to benefit Ms Wei with at least 50% of the beneficial interest in the D’Leedon apartment. In respect of this, Ms Wei recognised that this was not an issue canvassed at trial given that her case was that the money had been gifted to her wholly. She thus stated that she was seeking this court’s leave under O 56A r 9(5)(b) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) to raise this as a “new point” on appeal.³

ORDER 56A

APPEALS TO APPELLATE DIVISION

…

Preparation of Cases (O. 56A, r. 9)

…

(5) If a party — (a) is abandoning any point taken in the Court below; or (b) intends to apply in the course of the hearing for leave to introduce a new point not taken in the Court below,

this should be stated clearly in the Case, and if the new point mentioned in sub-paragraph (b) involves the introduction of fresh evidence, this should also be stated clearly in the Case and an application for leave must be made under Rule 17 to adduce the fresh evidence.

Preliminarily, it bears calling to attention that the Appellant’s Case only expressly sought leave under O 56A r 9(5)(b) in respect of the claim concerning the D’Leedon apartment. In Mr Lyu’s Respondent’s Case, it was pointed out to us, however, that Ms Wei had made similar arguments in respect of the Car, the Cairnhill option as well as the Marne Road shop in her Appellant’s Case.⁴ Issue was taken with this, and, in response, Mr Rai made three arguments. First, O 56A r 9(5)(b) uses the phrase “intends to apply in the course of the hearing”. Relying on this phrase, Mr Rai submitted that the court’s leave is not sought in the Appellant’s Case itself. Rather, it is sought at the hearing, and the requirement that an intention to seek such leave be stated in the Appellant’s Case served the more limited function of giving the opposing party notice. Mr Rai cited The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2008] 3 SLR(R) 121 (“The Oriental Insurance”) at [27], where the Court of Appeal permitted the appellant to raise a new point on the basis that “adequate notice” had been given to the respondent. Second, it was clear that Mr Lyu had adequate notice because, in his Respondent’s Case, he did in fact respond to the “new point” in relation to the Car, the...