Yong Kin Sen v Loke Jian Xun Gabriel Prieztiano

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD,Kannan Ramesh JAD
• Judgment Date: 31 January 2024
• Docket Number: Originating Application No 57 of 2023
• Court: High Court Appellate Division (Singapore)

Yong Kin Sen (administrator of the estate of Loke Siew Kee, deceased)

and

Loke Jian Xun Gabriel Prieztiano

[2024] SGHC(A) 4

Woo Bih Li JAD and Kannan Ramesh JAD

Originating Application No 57 of 2023

Appellate Division of the High Court

Probate and Administration — Executors — Executor resisting claim by beneficiary of will on basis that trust property did not belong to estate but to third party — Executor did not interplead or take out administration action or seek directions from court — Whether executor could resist claim by beneficiary

Held, dismissing the application:

(1) If the Defendant had valid reason to believe that some of the shares belonged to LSS, it was not for the Defendant to act on her own and resist the Plaintiff's claim for the Balance in respect of the Disputed Shares. To do so would be to act contrary to the Will. The Defendant should have asked LSS formally if he was claiming ownership of the Disputed Shares. If so, then the Defendant should have taken out an interpleader application or an administration action or an application to seek directions from the court: at [28] and [29].

(2) It was not for the Defendant to argue LSS' claim for him, and there was no basis for the Defendant to continue to resist the Plaintiff's claim. The application was thus futile and should not have been pursued at all: at [30] to [32].

[Observation: It was not clear that this was a case of contractual illegality because the share transfers had been carried out, and what the Defendant was alleging was that LSH held the Disputed Shares on trust for LSS thereafter: at [34].]

Case(s) referred to

Lau Sheng Jan Alistair v Lau Cheok Joo Richard [2023] 5 SLR 1703 (refd)

Ochroid Trading Ltd v Chua Siok Lui [2018] 1 SLR 363 (refd)

Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (refd)

Facts

Eight brothers held shares in a company (the “Company”), including one Loke Soon Han (“LSH”), Loke Soon Seet (“LSS”) and Loh Soon Yam (“LSY”). The respondent in this application, Loke Jian Xun Gabriel Prieztiano (the “Plaintiff”), is LSH's son.

LSH passed away in 2010. Under LSH's wills, all of his shares in the Company were given to the Plaintiff. Loke Siew Kee (“LSK”), LSH's sister, was the executor of LSH's estate. LSK sold all the shares in the Company but declined to pay a portion of the sale proceeds to the Plaintiff. The Plaintiff commenced action against LSK in the District Court for the unpaid sale proceeds (the “Balance”). After trial commenced but before its completion, LSK passed away, and her husband, Yong Kin Sen, the applicant in this application, was appointed to represent LSK as the defendant in the action (the “Defendant”).

The Balance corresponded to 67,567 shares in the Company (the “Disputed Shares”) which were transferred to LSH on 18 May 2011 pursuant to two share transfer agreements. The shares comprised 59,523 shares transferred by LSS to LSH and 8,044 shares transferred by LSY to LSH. According to the Plaintiff, these shares were sold pursuant to a genuine sale of the shares in 2002. On the other hand, the Defendant alleged that the 67,567 shares belonged to LSS. The Defendant pleaded that the share transfer agreements were entered into in or around 2002 in anticipation of LSS' bankruptcy which occurred in 2003. However, the Defendant argued in the Defendant's closing submissions that the share transfer agreements was entered sometime in or around 1995 instead.

The district judge (the “DJ”) took the view that the Defendant's central position was that there was a collateral oral agreement in 2002, just before the adjudication of bankruptcy of LSS, to put LSS's shares out of the reach of his creditors, and the Defendant's pleadings precluded the Defendant from arguing that the agreement was entered in or around 1995. The DJ concluded that the purported collateral oral agreement would be a fraud on LSS' creditors and illegal, and the Defendant should not be allowed to rely on it. The judge in the General Division of the High Court (“the Judge”) agreed with the DJ and dismissed the appeal.

The Defendant sought permission to appeal against the decision of the Judge in this application, arguing that the Judge made errors of law.

Jasjeet Singh s/o Harjindar Singh (Dhillon & Panoo LLC) for the applicant;

Foo Soon Yien and See Zhi Yan (BR Law Corporation) for the respondent.

31 January 2024

Woo Bih Li JAD (delivering the judgment of the court):

1 AD/OA 57/2023 (“OA 57”) is an application for permission to appeal against the decision of a judge of the General Division of the High Court (the “Judge”) given on 17 November 2023. For the reasons stated below, we dismiss the application.

Background

2 There were eight brothers who held shares in Kian Hoe Loke Kee Pte Ltd (“the Company”). The eight brothers were:

(a) Loke Soon Han (“LSH” or the “Deceased”);

(b) Loke Soon Seet (“LSS”);

(c) Loh Soon Yam (“LSY”);

(d) Loke Soon Yeow;

(e) Lok Soon Liong;

(f) Loke Soon Sim;

(g) Loke Soon Nam; and

(h) Loke Soon Chuan.

3 Gabriel Prieztiano Loke Jian Xun (the “Plaintiff”) is the son of LSH.

4 The Plaintiff claimed that in or about 2002, LSS had agreed to transfer 59,523 ordinary shares in the Company to LSH at the price of ten cents per share.

5 The Plaintiff also claimed that sometime in or about 2002, LSY had agreed to transfer 16,087 shares in the Company to LSH at the price of ten cents per share.

6 LSH passed away on 21 November 2010. He had made two Wills dated 15 November 2010 and 16 November 2010 respectively.

7 LSH's sister, Loke Siew Kee (“LSK”) was the executor of LSH's estate.

8 On 18 May 2011, LSS's 59,523 shares were transferred to LSH, and LSY's 16,087 shares were transferred to LSH.

9 On 7 November 2012, LSK was granted probate of LSH's estate based on the first Will. It is not clear why the grant was based on the first Will, but nothing material turns on this because parties proceeded on the basis that all of LSH's shares in the Company were given to the Plaintiff under the Wills even though the first Will mentioned 59,523 shares only and it is the second Will which...