High Court · Decided 13 June 2003

Ong Jane Rebecca v Lim Lie Hoa (also known as Lim Le Hoa and Lily Arief Husni) and Others

Feedback & support

[2003] SGHC 126Case no. OS 939/1991, INQ 1/2002

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

[1] This is an inquiry conducted pursuant to a judgment dated 16 July 1996.
[2] The Plaintiff (Jane Rebecca Ong) is the wife of the Second Defendant (Ong Siauw Tjoan @ Sjamsudin Husni). They were married in 1982 and have 3 children. In 1988, the Plaintiff commenced divorce proceedings against the Second Defendant. A decree nisi has been obtained but not made absolute.
[3] The First Defendant (Lim Lie Hoa, also known as Lim Le Hoa and Lily Arief Husni) is the mother of the Second Defendant. The First Defendant’s husband, and the Second Defendant’s father, was one Ong Seng King (also known as Ong Seng Keng, Ong Keng Seng, Ong King Seng and Arief Husni) (the “Deceased”). The Deceased was a wealthy Indonesian businessman with assets in a number of different jurisdictions. He died intestate in Jakarta, Indonesia, on 22 October 1974 at the age of 49 years. According to a petition for letters of administration filed by the First Defendant in the High Court of Singapore (Probate No 8 of 1975), the Deceased was resident in Singapore but domiciled in Indonesia at the time of his death.
[4] The petition for letters of administration in Probate No 8 of 1975 was granted on 17 January 1975. As granted, the petition identified the First Defendant, the Second Defendant and the Third Defendant (Ong Siauw Ping @ Slamat Husni) as the only next of kin of the Deceased. The Third Defendant was the Deceased’s and First Defendant’s son, and the Second Defendant’s brother. As both the Second and Third Defendants were then minors, the letters of administration were granted to the First Defendant as administrator and to one Lim Lie Fong as co-administrator with her.
[5] By an Order of Court dated 8 September 1975, the First Defendant and Lim Lie Fong were granted leave to amend the petition for letters of administration to include a reference to an “unborn child” as a next of kin of the Deceased. This was in fact a reference to the Fourth Defendant (Ong Keng Tong), who was born on 27 June 1975.
[6] By an Order of Court dated 24 July 1978, the letters of administration granted to the First Defendant and Lim Lie Fong were revoked, and the letters of administration were instead granted to the First Defendant as administrator and to the Second Defendant as co-administrator with her. As, at law, administrators and co-administrators bear the same roles and responsibilities, I will refer to both the First and Second Defendants and Lim Lie Fong as “administrators”.
[7] On 29 June 1989, the Second Defendant executed a Deed of Release in which he purported to acknowledge receiving from the administrators of the Deceased’s estate the sums of £1,018,000 and US$150,000 in full and final settlement of his interest in the estate, and purported to discharge and release the administrators of the estate of their duties and obligations.
[8] On 29 August 1991, the Second Defendant executed a Deed of Assignment and a Power of Attorney in favour of the Plaintiff. Under the Deed of Assignment, the Second Defendant assigned to the Plaintiff “one-half of all his entitlement to the distributive share of the residuary estate of [the Deceased] and all other rights (if any) in or to the said Estate”. The Power of Attorney conferred on the Plaintiff powers, inter alia, to demand and sue the representatives of the Deceased’s estate for the Second Defendant’s share in the residuary estate and was declared to be “irrevocable”.
[9] On 21 September 1991, the Plaintiff’s solicitors commenced this action by way of an originating summons. By an Order of Court dated 4 April 1994, the proceedings were ordered to be continued as if the matter had been begun by writ. In her Statement of Claim, the Plaintiff claimed the following relief:
[10] In a judgment dated 16 July 1996, Chao Hick Tin J declared the Deed of Release executed on 29 June 1989 to be void and unenforceable. His Honour further directed that an inquiry be held to determine:
[12] The Plaintiff, the First Defendant and the Second Defendant were the only parties to this action up to 21 February 2002. By an Order of Court dated 22 February 2002, the Third and Fourth Defendants were added as parties to this action on their own application.
[13] Before dealing with my findings on the inquiry, I think it is appropriate to deal with two discrete preliminary issues that have a bearing on the outcome of this case.
[14] First, both the Plaintiff and the Second Defendant attempted to introduce evidence to suggest that the Fourth Defendant was not a son of the Deceased. The object of this exercise was to enlarge the Second Defendant’s share of the Deceased’s estate by shutting out the Fourth Defendant from his claim as a beneficiary.
[15] I did not allow the Plaintiff and the Second Defendant to embark on this line of inquiry. Nor did I allow any cross-examination on this matter. In my opinion, an investigation into the Fourth Defendant’s parentage clearly fell outside the scope of the inquiry ordered pursuant to the judgment dated 16 July 1996.
[16] Although the Plaintiff did allege, at paragraph 11(1)(b) of her Statement of Claim filed on 13 April 1994, that the Fourth Defendant was “not entitled as a beneficiary as he [was] not a lawful issue of [the Deceased]”, this allegation was made merely to support her contention that the First Defendant had acted in breach of trust and/or in breach of her fiduciary duties as an administrator or trustee. At the trial, the Plaintiff did not seek any relief in the nature of a declaration as to whether the Fourth Defendant was a beneficiary of the Deceased’s estate. In her Defence filed on 25 April 1994, the First Defendant denied the Plaintiff’s allegation at paragraph 11(1)(b) of the Statement of Claim. In his Defence filed on 15 June 1995, the Second Defendant stated that this allegation was “not admitted”. When Chao Hick Tin J ordered the inquiry on 16 July 1996, the Fourth Defendant had not even been made a party to this action. It was therefore inconceivable that His Honour could have intended the inquiry to encompass matters that would have been adverse to the rights of the Fourth Defendant, such as an investigation into the Fourth Defendant’s parentage. On the contrary, Chao J described the Fourth Defendant as “another younger brother of the second defendant” at page 8 of His Honour’s unreported judgment dated 16 July 1996.
[17] The Plaintiff and the Second Defendant also faced an evidential problem. Section 114 of the Evidence Act (Cap 97, 1997 Ed) provides as follows:
[18] The Deceased died on 22 October 1974. The Fourth Defendant was born on 27 June 1975, well within 280 days after the marriage between the First Defendant and the Deceased was dissolved by the latter’s death. By virtue of section 114 of the Evidence Act, this was to be treated as conclusive proof that the Fourth Defendant was a legitimate son of the Deceased, unless it can be shown that the First Defendant and the Deceased “had no access to each other” at any time when the Fourth Defendant could have been begotten. There was no admissible evidence of this nature adduced by either the Plaintiff or the Second Defendant to justify embarking on such an investigation. It was not sufficient for them to make bare allegations, whether by themselves or through acquaintances, that the First Defendant and the Deceased did not appear to be on good terms with each other at the time when the Fourth Defendant was conceived. They had to show that the First Defendant and the Deceased “had no access to each other” at all material times.
[19] In Probate No 8 of 1975, the First Defendant declared the Fourth Defendant to be a next of kin and beneficiary of the Deceased. Letters of administration were granted to the First and Second Defendants on the basis that the Fourth Defendant was one of the Deceased’s three sons. The Second Defendant consented to acting as a co-administrator on that basis. The Second Defendant also signed a power of attorney for an application for resealing the Singapore grant of letters of administration in Hong Kong. In that power of attorney, the Second Defendant acknowledged the Fourth Defendant to be a “natural and lawful son” and “next of kin” of the Deceased who was entitled to a share in the Deceased’s Hong Kong estate. The Second Defendant’s allegations about the Fourth Defendant’s parentage were therefore clearly suspect.
[21] At paragraph 9 of her affidavit of evidence in chief filed on 8 March 1999 for the inquiry (the “First Defendant’s affidavit of evidence in chief”), the First Defendant took the position that:
[22] On that basis, the First Defendant asserted that:
[23] No evidence was led on who Ong Siauw Fung and Ong Siauw Lung were. I assumed that they were not legitimate children of the Deceased because:
As section 3 of the Intestate Succession Act (Cap 146) defines “child” as a legitimate or adopted child, illegitimate children are excluded from a distribution under the Intestate Succession Act.
[24] The First Defendant’s counsel made the following points in his written submissions:
[25] Counsel for the Plaintiff and the Second Defendant took the view that the Intestate Succession Act governed the distribution of the Deceased’s estate wherever the assets may be situated. In his written submissions, counsel for the Third and Fourth Defendants stated that the Third and Fourth Defendants accepted that “the Singapore law of intestate succession should apply to the assets of the Estate wherever situated”, and that accordingly, under the Intestate Succession Act, the Second Defendant was entitled to a one-sixth share of the Deceased’s estate.
[26] The common law rules on choice of law in intestate succession are set out in Dicey and Morris on The Conflict of Laws (13th edition, 2000) (“Dicey and Morris”) at pages 1026 to 1027. The relevant rules are as follows:
[27] In contrast, section 4 of the Intestate Succession Act states:
[28] Read in isolation, section 4(2) of the Intestate Succession Act would appear to be inconsistent with the corresponding common law rule on choice of law in intestate succession. However, section 4 of the Intestate Succession Act must be read with section 5 of the same Act. It is section 5 that identifies the “property” which is to be distributed in accordance with the Act. Section 5 of the Intestate Succession Act states:
[29] Reading sections 4 and 5 together, it would appear that:
[30] Section 4 of the Intestate Succession Act was considered and applied in MTT ARSAR Meyammai Achi v V Valliammai also known as Arunachalam Valliappan Valliyammai Achi, OS 659/1992, HC, unreported judgment dated 31 August 1996. In that case, C R Rajah JC held, with respect to the Singapore estate of a deceased person who was domiciled in India, that:
[31] In the circumstances, I am of the view that:
[32] The matter does not end there. The next question is whether the First Defendant has satisfactorily proved the Indonesian law governing intestate succession. As regards proof of foreign law in the English courts, Dicey and Morris states (at page 221):
[33] Dicey and Morris discusses the mode of proof of foreign law in the following terms (at page 225):
[34] This statement on the mode of proof of foreign law must however be qualified by sections 40 and 47 of the Evidence Act (Cap 97, 1997 Ed), which provide as follows:
[35] Sections 60, 61, 62(1)(d) and 62(2) of the Evidence Act are also instructive on the mode of proof of foreign law. They state:
[36] The net effect of these provisions may be summarised as follows:
[37] The First Defendant cannot claim to be a person specially skilled in the Indonesian law of intestate succession. Her evidence on Indonesian law as set out at paragraph 9 of her affidavit of evidence in chief was clearly based on advice that she had received. As the Indonesian law of intestate succession was a question of fact, the First Defendant’s repetition of the advice given by her Indonesian solicitors clearly offended the rule against hearsay. The First Defendant’s personal opinion on Indonesian law had no probative value whatsoever. It was therefore irrelevant that she was never cross-examined on this point.
[38] The letters sent by the First Defendant’s and the Plaintiff’s Indonesian solicitors also did not constitute admissible evidence on the Indonesian law of intestate succession. Those letters did not satisfy the requirements of either section 40 or section 62(2) of the Evidence Act. The contents of the letters were clearly hearsay.
[39] Aside from the issue of admissibility, I also had reservations as to whether the letters presented a complete and accurate picture of the Indonesian law of intestate succession as applied to the facts of this case. To begin with, the parties did not disclose their instructions to their respective Indonesian solicitors. None of the letters made any reference to Ong Siauw Fung and Ong Siauw Lung, even though the First Defendant described them as “natural children” of the Deceased. Were the Indonesian solicitors informed of their existence? Would the advice of the Indonesian solicitors have been different if the Indonesian solicitors were aware of their existence?
[40] The letter dated 19 April 1993 from the Plaintiff’s Indonesian solicitors stated that “[p]ursuant to Articles 852 and [illegible] of Indonesian Civil Code, if a person died intestate the deceased’s property has to be distributed equally among his/her spouse and children”. Yet, it went on to conclude that the First Defendant was entitled to 62.5% of the Deceased’s estate, while each of the Second, Third and Fourth Defendants was entitled to receive 12.5% of the Deceased’s estate. The letter provided no explanation whatsoever as to why the solicitors concluded that:
[41] Similarly, the letter dated 30 August 1991 from the Plaintiff’s Indonesian solicitors did not provide any explanation, by reference to Indonesian legislation or legal precedents, as to the basis for the solicitors’ advice.
[42] The letter dated 3 September 1997 from the First Defendant’s Indonesian solicitors also did not provide any explanation for the conclusion that under the Indonesian Civil Code, the First Defendant would receive half of the Deceased’s estate “as her part in the marital joint asset”, and that the remaining half of the estate would be distributed equally between the First, Second, Third and Fourth Defendants. What was more significant about this letter was that it contained the caveat: “As you may aware that a heir may clearly stating or to decide to refuse of his/her part(s) upon the asset.” This qualification raised the possibility that the apportionment set out in the letter could be varied. The amended petition in Probate No. 8 of 1975 stated that each of the Second, Third and Fourth Defendants was “entitled to 1/6 share” in the Deceased’s estate. The First Defendant signed and reaffirmed the Amended Petition. Her affidavit affirming the Amended Petition attested to the truth of the contents of the Amended Petition. As the distribution of the Deceased’s Singapore movable assets was to have been governed by the Indonesian law on intestate succession, did the First Defendant’s statement in the Amended Petition that each of the Second, Third and Fourth Defendants was “entitled to 1/6 share” in the Deceased’s estate constitute a clear statement of the First Defendant’s intention to vary her entitlement to the Deceased’s estate under Indonesian law? As the Hong Kong grant was a resealing of the Singapore grant, did this constitute an adoption of the position under the Singapore grant? Were these matters brought to the attention of the First Defendant’s Indonesian solicitors when their advice was sought? Were there similar statements made by the First Defendant in her applications for letters of administration in jurisdictions other than Singapore and Hong Kong?
[43] All things considered, I did not consider the letters from the First Defendant’s and the Plaintiff’s Indonesian solicitors to be reliable evidence on Indonesian law as applied to the specific facts of this case. The reliability of the Indonesian solicitors’ advice would depend on the instructions that they had been given. There was no evidence on what those instructions were, or whether the information that the Indonesian solicitors had been given was complete and accurate. Further, the Indonesian solicitors concerned had expressed opinions without explaining the underlying legal bases for their conclusions.
[44] The parties did not at any time agree to admit the position under Indonesian law. There were no pleadings filed for the purposes of the Inquiry. The Plaintiff did not state in her affidavits that she accepted the First Defendant’s assertions on the distribution of the Deceased’s estate under Indonesian law.
[45] PWC prepared a report dated 21 March 2000 (the “PWC report”) on behalf of the Plaintiff for the inquiry. Although paragraph 2.5 of the PWC report seemed to support the First Defendant’s assertion on Indonesian law, the PWC accountants who prepared the report were clearly not persons who were qualified to express an opinion on Indonesian law. If paragraph 2.5 of the PWC report was prepared in reliance on advice from Indonesian solicitors, it would offend the rule against hearsay. As the Plaintiff did not supervise the preparation of the PWC report or dictate its contents, paragraph 2.5 of the PWC report could not be treated as an admission by the Plaintiff, much less an admission that would have absolved the First Defendant from proving the Indonesian law of intestate succession under section 60 of the Evidence Act.
[46] Dicey and Morris deals with the burden of proof of foreign law in the English courts in the following terms (at page 232):
[47] The First Defendant defended the inquiry on the basis that Indonesian law applied to the distribution of the Indonesian assets and the movable assets wherever situated. No other party took this position. The First Defendant therefore bore the burden of proving how the estate should be distributed under the Indonesian law of intestate succession.
[48] Having regard to the circumstances, I was of the view that there was no satisfactory evidence on the Indonesian law of intestate succession. As such, notwithstanding my decision that Indonesian law applied to the distribution of the Deceased’s immovable assets in Indonesia and movable assets wherever situated, I was compelled to apply Singapore law as set out in section 7 of the Intestate Succession Act to the distribution of the Deceased’s entire estate. In the circumstances, the First Defendant was entitled to half of the Deceased’s estate, while each of the Second, Third and Fourth Defendants was entitled to one-sixth of the Deceased’s estate.
[49] I deal next with the methodology adopted for deciding the inquiry. The judgment dated 16 July 1996 provided a framework for the conduct of the inquiry when it listed the five matters to be determined at the inquiry.
[50] The judgment first requires the court to identify the assets of the Deceased’s estate and ascertain their whereabouts. There are 2 relevant dates for this exercise, namely, the date the Deceased died (22 October 1974) and the date the Second Defendant assigned half of his “distributive share of the residuary estate” to the Plaintiff (29 August 1991). The court first has to identify all assets belonging to the Deceased as at the time of his death. All assets declared by the First Defendant to belong to the Deceased would fall within this category. The court also has to determine whether the other assets alleged by the Plaintiff to belong to the Deceased were in fact beneficially owned by the Deceased at the time of his death, or were derived from other assets that were beneficially owned by the deceased at the time of his death. The Plaintiff bears the burden of proving that such assets belonged to the Deceased at the time of his death, or were derived from other assets belonging to the Deceased at the time of his death. What is crucial at this stage of the inquiry is to identify the pool of assets belonging to the Deceased as at the time of his death.
[51] Having identified all of the Deceased’s assets as at the date of his death, the court has to follow through what happened to each asset up to 29 August 1991 or the date on which the asset was disposed of (for instance, by sale), expended or distributed, whichever is earlier. This is necessary to ensure that there is no double-counting of assets that were converted into other assets. Where an asset belonging to the Deceased’s estate is converted into another asset (for instance, where property is sold for cash, or where cash is used to acquire property), the latter is to be added to, and the former is to be subtracted from, the notional pool of assets available for distribution. The court also has to take into account any capital appreciation (or depreciation) of the Deceased’s assets and any income due to the Deceased’s estate between the date of the Deceased’s death and 29 August 1991. Where income (such as rent or bank interest) is earned through an undistributed asset, the money earned forms part of the Deceased’s estate. However, once an asset is distributed to a beneficiary, any capital appreciation of, or income earned from, the asset would belong solely to the beneficiary. As the First Defendant managed the Deceased’s estate and controlled its finances at all material times, she bears the burden of proving that a particular asset has in fact been distributed to a particular beneficiary and the date of such distribution.
[52] Thus, for the purposes of determining the Second Defendant’s share in the Deceased’s estate, the notional pool of assets available for distribution to the beneficiaries would comprise:
less the money utilised to pay the debts and expenses of the Deceased’s estate as at 29 August 1991. In identifying the notional pool of assets available for distribution, the fact that an asset may have been distributed to a beneficiary as at 29 August 1991 is to be disregarded, as the object of this exercise is to determine the full extent of the Deceased’s estate before any distribution takes place. However, once a particular asset has been distributed to a beneficiary, any capital appreciation of, or income earned from, the asset after the asset has been distributed is not to be added to the notional pool of assets available for distribution.
[53] The judgment next required the court to determine the share of the Second Defendant in the estate. There are two steps in this exercise. First, the court would have to value each asset in the notional pool of assets available for distribution.
[54] The value of a cash asset would prima facie be its value as at the date the Deceased died. If there is evidence that the cash was deposited in an interest bearing account (for instance, with a bank or financial institution), any interest earned would be treated as income belonging to the Deceased’s estate. The court cannot presume that all cash assets would necessarily attract interest.
[55] A non-cash asset that is realised for cash before it is distributed would be valued as at the date the asset was realised for cash. This is so regardless of whether the asset was sold before, on or after 29 August 1991. Prior to distribution, each beneficiary would own an undivided share in the non-cash asset corresponding to his or her entitlement under the relevant law on intestate succession. The value of that undivided share is crystallised only on the date the asset is realised for cash. Prima facie, the value of a non-cash asset would be its market value net of any expenses reasonably incurred in realising the asset. That being said, the administrators are trustees, and not insurers, of the Deceased’s estate. They are only required to act with due diligence and care in the management of the estate. Thus, if a particular asset cannot be realised at its market value despite the exercise of due diligence and care on the part of the administrators, that asset must be valued at the sum that was actually realised. If the Plaintiff contends that a non-cash asset was realised below market value, she bears the burden of proving the market value of the non-cash asset as at the date the asset was realised. As the First Defendant managed the Deceased’s estate and controlled its finances at all material times, she bears the burden of proving the expenses incurred in realising the asset, that such expenses were reasonably incurred, and, if the asset was realised at less than market value, that the administrators had exercised due diligence and care in realising the asset concerned.
[56] The proceeds from the realisation of a non-cash asset would be treated in the same manner as a cash asset belonging to the estate. Thus, if the proceeds were deposited in an interest bearing account before distribution, any interest earned would be treated as income belonging to the Deceased’s estate. Likewise, the net income (after deducting any expenses properly incurred) earned from income-generating non-cash assets, such as tenanted properties, would be treated in the same manner as a cash asset belonging to the estate.
[57] A non-cash asset that is transferred to a beneficiary as a distribution to the beneficiary would be valued as at the date of the transfer. Prima facie, the value of the non-cash asset would be its market value net of any expenses reasonably incurred in the transfer. As the First Defendant managed the Deceased’s estate and controlled its finances at all material times, she bears the burden of proving that the asset was in fact transferred to that beneficiary as a distribution to that beneficiary, the market value of the asset as at the date of the transfer, the expenses incurred in the transfer, and that such expenses were reasonably incurred.
[58] A non-cash asset that is not realised for cash or transferred to a beneficiary will be valued as at the date of the inquiry.
[59] Second, the court would have to determine the total value of all the assets in the notional pool of assets available for distribution, and subtract the debts incurred by the Deceased which remained unpaid at the time of his death and all expenses reasonably incurred by the Deceased’s estate up to 29 August 1991. The balance represents the notional value of the Deceased’s estate that is available for distribution as at 29 August 1991 (the “notional value”). This notional value would include the value of non-cash assets that are not realised for cash or transferred to a beneficiary as at the date of the inquiry (the “unrealised assets”). As the First Defendant had failed to prove the Indonesian law on intestate succession to the satisfaction of the court, the Second Defendant’s share in the estate would have to be determined in accordance with Singapore law as set out in section 7 of the Intestate Succession Act. Accordingly, as at 29 August 1991, the share of the Second Defendant in the estate would comprise:
[60] In undertaking this exercise, a distinction must be drawn between the First and Second Defendants’ capacities as administrators and as beneficiaries. In this inquiry, the court is required to determine the Second Defendant’s share of the estate as a beneficiary. The court must therefore determine an appropriate value for each asset belonging to the Deceased’s estate, having regard in particular to its market value and any obstacles that would prevent the administrators from realising the asset at its market value. It is not the function of this court to determine whether the First and Second Defendants had breached their duties as administrators. It would be open to any of the beneficiaries of the estate to bring separate proceedings against the First and Second Defendants for any alleged or perceived breach of their duties as administrators of the Deceased’s estate, subject of course to any defences that may be available to the First and Second Defendants. In determining the Second Defendant’s entitlement as a beneficiary, no account should be taken of any sums for which the Second Defendant might be personally liable to the other beneficiaries for his acts or omissions as an administrator.
[61] A possible consequence of the valuation of the Deceased’s estate in this manner is that the estate’s assets in the actual possession, custody or control of the administrators (or, strictly speaking, the First Defendant) might not be sufficient to satisfy the claims of all the beneficiaries of the estate. However, this did not justify a devaluation of each beneficiary’s share of the Deceased’s estate. If the administrators had sold an asset at a gross undervalue, the court would be abdicating its responsibility to determine the Second Defendant’s share of the estate if the court accepted that grossly low sale price as conclusive of the value of the asset. Likewise, the court would be abdicating its responsibility if it allowed the First Defendant to treat payments that were clearly not attributable to the estate as the estate’s expenses. It is always open to the administrators to seek the court’s directions on how to satisfy the competing claims of different beneficiaries to the remaining assets. When that happens, the court may decide to investigate the reasons for the apparent shortfall, and may well decide to set aside some or even all previous distributions to the beneficiaries, with a view to redistributing the estate’s assets. The object of this inquiry is to determine the Second Defendant’s share as a beneficiary of the Deceased’s estate, and consequently, the Plaintiff’s entitlement as assignee of “one-half of all [the Second Defendant’s] entitlement to the distributive share of the residuary estate of [the Deceased]”. The issue of enforcement of the Plaintiff’s entitlement is a separate matter altogether.
[62] The judgment dated 16 July 1996 next required the court to determine the amount or amounts which had been received by the Second Defendant from the Deceased’s estate. According to a schedule provided by the First Defendant, the Second Defendant received 16 payments amounting to a total of S$1,137,610, £490,161.39, US$150,000 and NZ$447,000 in the period from October 1980 to June 1989. The court would have to verify whether the payments that were allegedly made to the Second Defendant were in fact made, and if so, determine, in relation to each payment, whether it should be characterised as:
[63] The judgment dated 16 July 1996 next required the court to determine the amount still due to the Second Defendant from the estate as at 29 August 1991. This amount would be the difference between:
and the amounts assessed by the court to constitute distributions to the Second Defendant and loans from the estate to the Second Defendant that remained unpaid.
[64] Finally, the judgment dated 16 July 1996 required the court to determine the quantum of the Plaintiff’s share in the estate under the Deed of Assignment dated 29 August 1991. Under the Deed of Assignment, the Plaintiff was entitled to “one-half of all [the Second Defendant’s] entitlement to the distributive share of the residuary estate of [the Deceased]”. Paragraph (3) of the recital in the Deed of Assignment further stated that “The [Second Defendant] has agreed to sell and the [Plaintiff] has agreed to buy one-half of all the [Second Defendant’s] share and interest in the residuary estate of the [Deceased].” Thus, what the Second Defendant assigned to the Plaintiff was half of his one-sixth share in the Deceased’s estate, and not just half of what remained undistributed as at 29 August 1991 (as contended by counsel for the Third and Fourth Defendants). As the Second Defendant could not assign more than what he owned, the amount that he assigned was necessarily limited by the extent of his remaining interest in the estate as at 29 August 1991. It therefore followed that under the Deed of Assignment, the Plaintiff was entitled to:
subject to a cap equivalent to the amount still due to the Second Defendant from the estate as at 29 August 1991.
[65] The Plaintiff would also be entitled to interest on the cash sum due to her as at 29 August 1991 under section 12 of the Civil Law Act (Cap 43, 1999 Ed). However, the sums due to the Plaintiff would have to be set off against the interim payments that she had received prior to the hearing of the inquiry.
[66] It follows from the methodology described that I do not agree with the approaches adopted by the Plaintiff’s accountants (PWC), the First Defendant’s former accountants (Arthur Andersen, hereafter referred to as “AA”) and the First Defendant’s present accountants (Deloitte & Touche, hereafter referred to as “D&T”) for determining the quantum of assets available for distribution as set out in their respective reports prepared for the inquiry. I need say no more about the different approaches adopted in the accountants’ reports.
[67] For the purposes of this inquiry, it will be convenient to deal with the estate’s assets and alleged assets according to the jurisdictions in which they were located. The main jurisdictions were Singapore, Hong Kong, Malaysia and Indonesia. The remaining assets will be grouped together under the rubric “Other Jurisdictions”.
[68] According to the estate duty schedule annexed to the Singapore grant of letters of administration, the Deceased owned the following assets, valued at a total of $4,062,088, at the time of his death:
[70] No 45/47 Robinson Road was sold to one Mr Kho Teng Kwee @ Alex Korompis for $8,000,000 pursuant to a sale and purchase agreement dated 8 August 1980. The property was not valued prior to the sale. The completion took place on 21 October 1980. At the time of completion, the First Defendant alone executed the conveyance, as the Second Defendant was away in London. Subsequently, on 11 April 1981, the First and Second Defendants, as administrators of the Deceased’s Singapore estate, applied by way of Originating Summons No 197 of 1981 for the court’s approval of the sale and for them to be empowered to execute the conveyance. This application was made to remove uncertainty as to whether title had passed under the conveyance executed by the First Defendant alone. This application was granted by the High Court on 24 April 1981.
[71] Notwithstanding the court’s approval of the sale at $8,000,000, the Plaintiff took the view that the property was worth more. Mr Wong Kum Sek (“Mr Wong”), a property valuer engaged by the Plaintiff, gave evidence that as at October 1980, the Open Market Value of No 45/47 Robinson Road was $8,500,000, using the comparative sales method of valuation. Despite the assertion that he had used the comparative sales method of valuation, Mr Wong did not provide any sales data to support his valuation. During cross-examination, Mr Wong conceded that at the time when he valued the property, he was aware that it had been sold for $8,000,000 in October 1980. Curiously, Mr Wong made no reference to this sale in his valuation report. He was also unable to provide an explanation for this omission. Mr Wong also conceded that a reasonable valuer could have valued the property at $8,000,000 in October 1980. The following passages from his evidence during cross-examination illustrate this:
[72] I found Mr Wong’s statement that “$8 million and $8.5 million in a big estate, does not make a difference” somewhat disconcerting. It gave me the impression that Mr Wong had no qualms about erring on the side of generosity in his valuation because he was valuing “a big estate”. In any event, having regard to Mr Wong’s concession that a reasonable valuer could have valued the property at $8,000,000 in October 1980, it could not be said that the administrators’ failure to obtain a valuation of the property prior to the sale led to the sale of the property at an undervalue. Further, the High Court had granted approval for No 45/47 Robinson Road to be sold at $8,000,000, albeit after the initial conveyance in October 1980. In the circumstances, I would assess the value of the property at $8,000,000.
[73] At paragraph 48 of the First Defendant’s affidavit of evidence in chief, the First Defendant stated that the estate received a total of $7,166,859.92 as the proceeds of sale of the property. She claimed that this sum was received in two instalments of $1,543,314.91 on 22 October 1980 and $5,623,545.01 on 24 October 1980. The First Defendant also referred to a document described as a “completion account” exhibited at page 455 of the same affidavit.
[74] I have my doubts as to the veracity of the so-called “completion account”. It stated that the sum due to the estate at the time of completion of the sale was only $6,412,537.46, because:
However, the so-called “completion account” was contradicted by the First Defendant’s admission that the estate received a total of $7,166,859.92.
[75] The estate received a further sum of $50,000 as the deposit paid for the option to purchase dated 4 August 1980, which the purchaser exercised on 8 August 1980. So the estate actually received a total of not less than $7,216,859.92 in respect of the sale of No 45/47 Robinson Road. There was no evidence led to explain the difference of $783,140.08 between the $8,000,000 sale price and the sum of $7,216,859.92 that was indisputably received by the estate. The redemption amount stated in the so-called “completion account” could not have been accurate, given that the estate received not less than $7,216,859.92 from the sale. There was also no evidence that No 45/47 Robinson Road was mortgaged at the time of the sale. On the contrary, in a letter dated 4 December 1974 from the solicitors for United Commercial Bank to the solicitors for the administrators (exhibited at page 672 of the First Defendant’s affidavit of evidence in chief), the bank’s solicitors stated that although their clients held the title deeds relating to No 45/47 Robinson Road, their clients “have no interest in the title deeds”. I think it is reasonable to infer that the property was unencumbered as at 4 December 1974. The legal expenses incurred in connection with the sale appeared to have been dealt with separately as part of the estate’s expenses. In the absence of an explanation for the glaring shortfall of $783,140.08, the estate must be deemed to have received the full sum of $8,000,000 as the proceeds of the sale of No 45/47 Robinson Road.
[76] The First Defendant conceded that the estate had received rental income amounting to a total of $1,604,681 from various tenants of parts of No 45/47 Robinson Road. According to the AA report dated 5 March 1999, this rental was accumulated from 1974 to 1980, and was reflected in a cashbook maintained by the estate’s solicitors, Messrs Lee & Lee.
[77] PWC noted at paragraph 3.11 of its report that “there were certain periods in which no tenancy agreement was available”. On that basis, PWC concluded that the documents that they had been provided with were incomplete and “assumed that in respect of the period where tenancy agreements were not available, the property continued to be rented out”. On that basis, PWC estimated the rental income received by the estate to be $1,935,169. At the inquiry, PWC revised the estimate downwards to $1,876,145.80.
[78] The discovery process in this case has been long and extensive. The Plaintiff went so far as to obtain Anton Piller orders against the First Defendant, pursuant to which numerous documents were seized. If no other tenancy agreements surfaced despite such extensive discovery, it begged the question whether there were any other tenancy agreements (apart from those already disclosed) to begin with. There was really no basis for PWC to make the assumption that “in respect of the period where tenancy agreements were not available, the property continued to be rented out”. In the circumstances, I would assess the total rental income from No 45/47 Robinson Road at $1,604,681.
[79] No 4 Chatsworth Park was sold to City Developments Ltd at the price of $5,249,737.50 pursuant to a conditional contract dated 30 December 1988. Before completing the sale, the administrators obtained a valuation of the property from Bernard Valuers & Real Estate Consultants Pte Ltd. The valuation report dated 24 February 1989, which appears to have been signed by a licensed appraiser, stated the market value of the property to be $3,840,000. The administrators also applied by way of Originating Summons No 237 of 1989 for the conditional contract to be “confirmed with such modification (if any) as the Court shall think fit”, and for he administrators to be empowered to execute the conveyance of the property. On 17 March 1989, the High Court made an order confirming the conditional contract without any modifications and authorising the administrators to execute the conveyance. The High Court made a further order on 28 April 1989 granting leave to amend the description of the property in the Schedule to the Order of Court dated 17 March 1989.
[80] Mr Wong gave evidence for the Plaintiff that as at December 1988, the Open Market Value of No 4 Chatsworth Park was $5,600,000, using the comparative sales method of valuation. Once again, he did not provide any sales data to support this valuation, although he claimed during cross-examination that he “must have some data to base on for [his] workings”. Mr Wong carried out his valuation on 15 July 1999, more than 10 years after the property had been sold. By then, the original building had been demolished. Mr Wong therefore qualified his report by stating that “the value of the property was in its land”.
[81] In essence, the Plaintiff was inviting the court to prefer Mr Wong’s ex post facto valuation, which was made more than 10 years after the sale had taken place and for which no supporting data was provided, over the High Court’s approval of the sale at $5,249,737.50, which approval was supported by a contemporaneous valuation of the property at $3,840,000. There was no evidence whatsoever that the High Court’s approval of the sale was procured by fraud. The Plaintiff’s submission was therefore preposterous and doomed to fail.
[82] At paragraph 60 of the First Defendant’s affidavit of evidence in chief, the First Defendant stated that the estate received, as sale proceeds for the property, a sum of $4,706,471.94 on 5 May 1989 and a sum of $531,258.26 on 11 May 1989. I presumed that one of these sums included the amount of $524,973.75 paid by the purchaser to the administrators’ solicitors and held by the latter as stakeholders. The two sums amounted to a total of $5,237,730.20. The First Defendant provided no explanation for the shortfall of $12,007.30 from the sale price of $5,249,737.50. In the circumstances, the estate must be deemed to have received the full sum of $5,249,737.50 as the proceeds of sale of No 4 Chatsworth Park.
[83] The Plaintiff accepted that the amount available for distribution under the Singapore current account with United Commercial Bank was $15,398.43. Nevertheless, the Plaintiff’s counsel went on to submit, in relation to this account, that the First Defendant had made two transaction deposits of $250,000 on 20 November 1974 and one withdrawal of $39,860.20 on 29 November 1974. He relied on a document found at page 8465 of the Plaintiff’s Bundle of Documents Volume 34. The same document had been disclosed by the First Defendant at page 819 of her affidavit of evidence in chief.
[84] It was not open to the Plaintiff’s counsel to make this submission in blatant disregard of the rule in Browne v Dunn (1893) 6 R 67. The rule in Browne v Dunn provides that any matter upon which it is proposed to contradict the evidence in chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction. It is a rule of practice intended to ensure procedural fairness in litigation. While the mere failure to cross-examine does not necessarily mean that adverse inferences must be drawn against the “defaulting” party (as there may be other explanations for this failure), the absence of cross-examination enables the evidence in question to be regarded with a greater degree of assurance than otherwise might have been the case. (See Liza bte Ismail v Public Prosecutor [1997] 2 SLR 454 at paragraphs 65, 68 and 69.) Further, while the rule does not mean that every point should be put to a witness, if the point sought to be made goes to the heart of the matter, it should be put to the witness. (See Dr Lo Sook Ling Adela v Au Mei Yin Christina [2002] 1 SLR 408 at paragraph 40.) The Plaintiff had the opportunity to cross-examine the First Defendant on the document at page 8465, but did not do so. No explanation was given for this omission. The First Defendant had given unequivocal evidence at paragraph 71 of her affidavit of evidence in chief that the balance in the account as at 27 March 1975 was $15,398.43. The Plaintiff’s counsel’s assertion that the First Defendant had operated, and withdrawn money from, the account in November 1974 suggested that there had been more money in the account. As this would have been a material issue, the assertion should have been put to the First Defendant during cross-examination.
[85] I would add that the evidence did not support the Plaintiff’s counsel’s submission at all. At the bottom of the document at page 8465 were the words “LEDGER UNITED COMMERCIAL BANK HONG KONG”. At the top of the document were the Deceased’s name and the address “24 Ice House St. 5/F. Hong Kong”. It would therefore appear from the face of the document that it did not relate to the Singapore current account with United Commercial Bank. On the contrary, there was a letter dated 4 December 1974 from the solicitors for United Commercial Bank to the solicitors for the administrators (exhibited at page 672 of the First Defendant’s affidavit of evidence in chief) which stated that “as at September 1974 the deceased had a credit balance of $15,398.43 to his credit” in the Singapore current account.
[86] An examination of pages 813 to 826 of the First Defendant’s affidavit of evidence in chief will show that the document at page 8465 was in fact one of a series of bank statements pertaining to the Deceased’s overdraft account with United Commercial Bank in Hong Kong. The following table reproduces the entries on page 8465:
CHEQUE NO.
WITHDRAWALS
DEPOSITS
DATE
BALANCE
[31] OCT 74
5,205,943.87 OD
250,000.00 TR
[20] NOV 74
4,955,943.87 OD
250,000.00 EC
[20] NOV 74
5,205,943.87 OD
39,860.20 IN
[29] NOV 74
5,245,804.07 OD
The movement of the balance in the overdraft account suggests that only the first of the two entries of HK$250,000 made on 20 November 1974 was a deposit entry. The second entry was in fact a reversal of the first entry by the bank, as it brought the overdraft balance back to what it was before the balance was reduced by the first entry. Looking at the transaction codes “TR” and “EC” that were marked against the two entries, it would appear that the first entry was a “transfer” that the bank had erroneously credited to the Deceased’s overdraft account, necessitating an “error correction” as evidenced by the reversal entry on the next line. The withdrawal of HK$39,860.20, which was accompanied by the transaction code “IN”, would appear to be the bank’s deduction of interest on the overdraft. This resulted in an overdraft balance of HK$5,245,804.07. PWC accepted that the estate was liable to pay United Commercial Bank of Hong Kong a sum of HK$5,245,804 in respect of the Deceased’s overdraft. In any event, as the Singapore grant of letters of administration was resealed in the High Court of Hong Kong only on 17 August 1977, the First Defendant could not have been responsible for the entries of 20 and 29 November 1974 in the bank statement. The Plaintiff’s counsel’s submission was therefore clearly misconceived, if not made in bad faith. In the circumstances, I would assess the value of the Singapore current account with United Commercial Bank at $15,398.43.
[87] According to the estate duty schedule annexed to the Singapore grant of letters of administration, the estate had a current account number 1079 with Algemene Bank Nederland NV valued at $25,940.61. This was confirmed by a bank statement dated 30 June 1974 from the bank to the Deceased (see page 689 of the First Defendant’s affidavit of evidence in chief). Pursuant to the administrators’ instructions, the bank placed the said sum in a fixed deposit for one year with effect from 7 November 1974. Had the fixed deposit been held to maturity on 7 November 1975, it would have attracted interest at the rate of 9.5% per annum for the first year. However, the entire sum was withdrawn on 11 July 1975 and paid to the Commissioner for Estate Duties. Thus, this sum did not attract any interest.
[88] The Plaintiff claimed that the Deceased had deposited a further sum of $3,000,000 with Algemene Bank Nederland NV for which the First Defendant was liable to account. This claim was based on a letter dated 8 August 1975 exhibited at page 699 of the First Defendant’s affidavit of evidence in chief. A plain reading of this letter shows that the sum of $3,000,000 had been transferred to the Deceased’s current account on 19 June 1968. The Deceased’s current account showed a balance of only $25,940.61 as at 30 June 1974, when the Deceased was still alive. It was therefore clear that save for a balance of $25,940.61, the sum of $3,000,000 in the current account had been dealt with by the Deceased while he was still alive. In the circumstances, I would assess the value of current account number 1079 with Algemene Bank Nederland NV at $25,940.61 as at the time of the Deceased’s death. The administrators were not accountable for the remainder as the remainder was never in their possession, custody or control.
[89] According to the estate duty schedule annexed to the Singapore grant of letters of administration, the Deceased had placed a deposit of $250,000 with Ministry of Finance. According to a letter dated 7 March 1975 from the Secretary of the Review Committee (Immigration), the Deceased made this deposit “for permanent residence” on 7 June 1967. At paragraph 78 of her affidavit of evidence in chief, the First Defendant stated that the deposit was “placed with the Ministry of Finance on 7 June 1971 for a period of 20 years at an interest of 3% per annum” to enable the First, Second and Third Defendants and the First Defendant’s parents to gain entry into Singapore. The First Defendant admitted to receiving interest of $7,500 per year in the June of each year from 1976 to 1981. She also stated that “[t]he fixed deposit expired on June 1991 and the sum of S$250,000.00 was paid into the [estate’s] DBS account”. On the First Defendant’s own evidence, the deposit with the Ministry of Finance would have earned the estate interest of $7,500 per year from June 1975 to June 1991, or a total of $127,500 over 17 years. In the circumstances, I would assess the value of the deposit with the Ministry of Finance (inclusive of interest) at $377,500 as at 29 August 1991.
[90] Ong Seng King Realty Co (Pte) Ltd had issued 12 shares at $100 per share. According to the estate duty schedule annexed to the Singapore grant of letters of administration, the Deceased owned 11 of the 12 shares in Ong Seng King Realty Co (Pte) Ltd, valued at a total of $1,100. At the time the company was wound up, the company’s only asset was cash amounting to $4,496.41 in a bank account, and the company had no debts (see page 451 of the First Defendant’s affidavit of evidence in chief). At the final meeting of the company on 20 October 1983, the company approved the payment of $3,000 as liquidators’ remuneration (see page 448 of the same affidavit). This left a balance of $1,496.41 available for distribution to the shareholders. Accordingly, the Deceased’s 11 shares in Ong Seng King Realty Co (Pte) Ltd should have been worth $1,371.71 (which is 11/12 of $1,496.41).
[91] The values of the following assets listed in the estate duty schedule annexed to the Singapore grant of letters of administration were not disputed:
Accordingly, these assets are assessed at their values as stated in the estate duty schedule.
[92] The First Defendant stated at paragraph 39 of her affidavit of evidence in chief that she adopted the “revised accounts” prepared by AA that were exhibited at pages 385 to 415 of her affidavit as her evidence for the inquiry. According to Appendix 3-C of the “revised accounts”, the estate’s bank account had an opening balance of $100,577 in 1974. After taking into account various receipts and payments from 1974 to 1991, the estate’s bank account had a closing balance of $8,530 in 1991. At paragraph 85 of her affidavit of evidence in chief, the First Defendant identified the closing balance of $8,530 as belonging to the “Estate’s DBS Account”. At paragraph 44 of the same affidavit, the Defendant identified this account as a Development Bank of Singapore (“DBS”) account number 01-02519-8. There was no evidence that the opening balance of $100,577 was a transmutation of any other asset belonging to the Deceased. Accordingly, I would assess the value of the estate’s DBS bank account at $100,577 as at the time of the Deceased’s death.
[93] Appendix 3-C of the “revised accounts” also disclosed the following additional assets:
These assets are assessed at their values as stated.
[94] The Plaintiff alleged, in her counsel’s closing submissions, that the following should also be treated as assets belonging to the Deceased’s estate:
[95] There were seven properties that were purchased in the name of the First Defendant prior to the death of the Deceased, namely:
[96] The Plaintiff and the Second Defendant alleged that these properties should be treated as belonging to the estate for the following reasons:
[97] The seven properties in question were acquired in the name of the First Defendant some three to six years before the Deceased’s death. There was no evidence whatsoever that the Deceased had ever asserted an interest in any of these properties. The properties would form part of the Deceased’s estate only if the First Defendant held them on trust for the Deceased. The Plaintiff and the Second Defendant bore the burden of proving that these properties were held by the First Defendant on trust for the Deceased. To satisfy this burden, the Plaintiff and the Second Defendant would have to prove that the Deceased provided the funds used to acquire the properties. The Plaintiff and the Second Defendant did not provide any direct evidence to show that the Deceased had paid for the properties in question.
[98] As the properties concerned were acquired more than 20 years before the commencement of this action, it was understandable why the First Defendant was unable to provide documentary evidence to support her assertions that she had used her personal funds or had obtained personal loans to acquire these properties. Given the long passage of time, no adverse inference can reasonably be drawn against the First Defendant on account of her failure to provide such documentary evidence. Nor can the First Defendant be faulted for minor discrepancies in her recollection as to the precise source of funds for each property or as to when the Deceased had made gifts of money to her. The parties were married in 1956 and had two sons early in the marriage (in February 1957 and April 1959). The marriage was in its eighteenth year when the Deceased suddenly died in 1974. At paragraph 6 of her affidavit of evidence in chief, the First Defendant had stated unequivocally that the Deceased had made “numerous gifts of money” to her and that she was “very well provided for financially”. There was no reason to disbelieve these statements. The First Defendant would have accumulated substantial savings of her own from the Deceased’s gifts by 1968, when the first of the seven properties in question was purchased.
[99] The submission made by the Second Defendant’s counsel that the First Defendant had “qualified” her evidence by stating that “the Deceased only gave her huge sums of money in the year 1969 and/or 1970” was misleading. In the relevant passages from her evidence during cross-examination, the First Defendant had maintained that the Deceased would give her money whenever she saw him, which was once a month or once in a fortnight. She agreed that these sums could exceed $50,000. Her reference to “1969 or 1970” was made in answer to a question about when she received one or more cheque payments of about $100,000 from the Deceased.
[100] I had grave reservations about the veracity of the Second Defendant’s evidence on the First Defendant’s finances at the time the seven properties were purchased. To begin with, when the seven properties were acquired from 1968 to 1971, the Second Defendant was a child of no more than 11 to 14 years of age. On what basis could he claim to be acquainted with his parents’ finances during the period from 1968 to 1971? During cross-examination, the Second Defendant reluctantly conceded that he had no personal knowledge at all of how his parents arranged their personal finances. The Second Defendant’s willingness to make such unsupported self-serving statements, coupled with the material differences between his evidence for the trial and his evidence for the inquiry, reinforced my impression (from observing the Second Defendant) that he had no qualms about tailoring his evidence to suit his purposes.
[101] The fact that the Deceased’s estate may have paid income tax, property tax or other expenses relating to the properties was, at best, evidence that the administrators (in particular, the First Defendant) had misapplied estate funds to discharge the First Defendant’s personal expenses. It bears repeating that the Deceased never asserted an interest in the seven properties during his lifetime. Nor did the First Defendant ever declare that she held the properties on trust for the Deceased. In their correspondence and dealings with the tax authorities (then known as the Inland Revenue Department), the estate’s solicitors and accountants had consistently maintained that the seven properties in question belonged to the First Defendant. A letter dated 23 May 1975 from the Inland Revenue Department to the estate’s solicitors suggests that the Inland Revenue Department accepted the submission that the properties registered in the First Defendant’s name did in fact belong to her. That letter enclosed the Deceased’s revised income tax assessments for the years of assessment 1967 to 1974. Under those revised assessments, no reference was made to 17 Leng Kee Road while:
[102] The fact that rental income from these properties was assessed in the Deceased’s name merely showed that the First Defendant and the Deceased had been jointly assessed for income tax in each of the years 1967 to 1974. It did not constitute evidence that the rental income belonged to the Deceased or his estate. Under section 51 of the Income Tax Act (Cap 141, 1970 Ed), the income of a married woman living with her husband was, for the purposes of the Act, deemed to be the income of the husband, and was to be charged in the name of the husband and not in her name, unless she elected to be chargeable in her own name on her earned income. This provision, which treated the First Defendant’s rental income as the Deceased’s income solely for the purpose of computing income tax, did not make the Deceased or his estate the party earning the rental income, much less the owner of the properties in question. It was also telling that the Commissioner of Estate Duties did not treat these seven properties as belonging to the Deceased, even though he had been informed of their existence and of the First Defendant’s claim to ownership of the properties.
[103] The fact that the Deceased listed his residential address as “73N Cairnhill Road, Singapore 9” in his Singapore identity card, and resided at 73N Cairnhill Mansion for some time, did not lead to the conclusion that the Deceased owned 73N Cairnhill Mansion. It is not unusual for a person to reside at an address relating to a property that he does not own. Likewise, the fact that the Deceased’s mother resided at 20-D Norfolk Road did not lead to the conclusion that the Deceased owned the property.
[104] Unlike the Plaintiff and the Second Defendant, the court is not predisposed to speculating whether a man of the Deceased’s stature and wealth would have acquired properties in Singapore other than those registered in his name at the time of his death. Even if the Deceased wished to acquire other properties in Singapore, there was no reason why he could not have acquired them in his own name. There was no credible reason why the Deceased would acquire, or provide the funds to acquire, the seven properties in the name of the First Defendant if he wished to retain the beneficial interest in those properties. What benefit did the Deceased stand to gain from using the First Defendant as a nominee to purchase the properties?
[105] As the Plaintiff and the Second Defendant have failed to discharge the burden of proving that the Deceased provided the funds to acquire the properties, there can be no question of the First Defendant holding the properties on trust for the Deceased’s estate. Accordingly, I find that the seven properties did not belong to the Deceased’s estate. I also find that the expenses incurred by the estate in relation to the seven properties were not legitimate estate expenses. Accordingly, such expenses should not be deducted from the notional pool of assets available for distribution.
[106] Even if the Deceased had provided the funds for the acquisition of the seven properties, the presumption of advancement would have operated to make the properties gifts to the First Defendant. In Yeo Gim Tong Michael v Tianzon [1996] 2 SLR 1, where a husband bought a piece of land for his wife and then claimed that the land was intended for mutual benefit when the marriage broke down, the Court of Appeal held that as there was no evidence to support the husband’s argument, the presumption of advancement operated and the land was to be treated as a gift to the wife. In Teo Siew Har v Lee Kuan Yew [1999] 4 SLR 560, the Court of Appeal observed that the current judicial approach towards the presumption of advancement was to treat it as an evidential instrument of last resort where there was no direct evidence as to the intention of the parties rather than as an oft-applied rule of thumb. The Court of Appeal also noted that whether the presumption will apply in a particular case would have to depend on the facts and circumstances of the case.
[107] Returning to the case at hand, the seven properties were purchased in a span of four years from 1968 to 1971. Yet, until his death on 22 October 1974, the Deceased never asserted an interest in any of the seven properties. There was no credible reason why the Deceased would have purchased the properties in the name of the First Defendant if he wished to retain a beneficial interest in the properties. It could not be to avoid the risk of his creditors getting at the properties, for, as the Court of Appeal observed in Teo Siew Har v Lee Kuan Yew, that could only be done if he intended to give the properties to his wife. Thus, even if the funds for the acquisition of the properties had been provided by the Deceased, as there was no evidence at all of the Deceased’s intention to retain a beneficial interest in the properties, the presumption of advancement would operate to make the properties gifts to the First Defendant. As such, I find that the seven properties did not belong to the Deceased’s estate.
[108] According to the First Defendant’s affidavit of evidence in chief, #18-01 East Tower (or Block B), Horizon Towers was purchased in the name of the First Defendant on 21 December 1981 for $890,000, and was paid for as follows:
[109] The Plaintiff’s counsel submitted that PWC had seen bank documents which showed that “monies from the Estate’s Hong Kong bank accounts were transferred to these personal accounts in 1983 to 1984 to reduce the outstanding loan/overdraft balances”. However, the Plaintiff provided no particulars whatsoever of the “Estate’s Hong Kong bank accounts” from which the funds were allegedly transferred to these three accounts. Nor did the Plaintiff provide any particulars of the amounts allegedly transferred.
[110] I have carefully studied the documents compiled by PWC to support the allegation that “monies from the Estate’s Hong Kong bank accounts were transferred to these personal accounts in 1983 to 1984 to reduce the outstanding loan/overdraft balances”. The majority of the documents were statements of account relating to the above-mentioned overdraft and term loan accounts. There was nothing in the statements of account to suggest that funds from the “Estate’s Hong Kong bank accounts” were deposited in these three accounts. Apart from:
none of the documents relied on evidenced transfers of funds from the estate’s Hong Kong bank account with Sin Hua Trust Savings & Commercial Bank. There was also no evidence that these funds from Sin Hua Trust Savings & Commercial Bank were ultimately paid into any of the three bank accounts from which funds were disbursed to pay for the acquisition of #18-01 East Tower, Horizon Towers. There was therefore no documentary evidence to support the Plaintiff’s allegation “monies from the Estate’s Hong Kong bank accounts were transferred to these personal accounts in 1983 to 1984 to reduce the outstanding loan/overdraft balances”.
[111] However, during cross-examination by the Plaintiff’s counsel, the First Defendant appeared to agree that #18-01 East Tower, Horizon Towers was a “trust property” (see page 57 line 18 of the notes of evidence for the inquiry). During re-examination, when the First Defendant was asked whether #18-01 East Tower, Horizon Towers was an “estate property”, she answered, “No.” Strangely, she went on to volunteer that the property “belongs to the company” (see page 95 lines 18 to 24 of the notes of evidence for the inquiry).
[112] There are two possible explanations for the First Defendant’s apparent agreement that #18-01 East Tower, Horizon Towers was a “trust property”. First, she might have misunderstood the question and did not fully appreciate the implications of her answer. Second, she might have admitted that the property was in fact purchased with money belonging to the Deceased’s estate. I think that the first explanation is the more likely of the two possible explanations. One would have to examine the context of the First Defendant’s answer to determine which was the more probable explanation.
[113] When the First Defendant was first asked whether #18-01 East Tower, Horizon Towers was purchased using trust funds, she readily answered, “No.” She explained that she had borrowed 80% of the funds from the bank and paid for the other 20% with her own money. The First Defendant took the view that she had a “50% share in the trust”, and as such, the money in the estate’s Hong Kong bank account with the Sin Hua Trust Savings & Commercial Bank was trust money mixed with her “own money from the trust”. When the First Defendant used funds from the Sin Hua Trust Savings & Commercial Bank account, she drew from her “50% share” of the “trust money”. The First Defendant did not say that her personal funds from other sources were mixed with the estate’s funds, whether in the estate’s Sin Hua Trust Savings & Commercial Bank account or in any other account in her name.
[114] The First Defendant was then asked certain questions about the sale of #18-01 East Tower, Horizon Towers. None of these questions suggested that #18-01 East Tower, Horizon Towers was a “trust property”. Then came the crucial question and answer:
[115] While it seemed clear from the context of the question that the “trust property” referred to by the Plaintiff’s counsel was #18-01 East Tower, Horizon Towers, it was also clear that the First Defendant did not answer his question at all. The First Defendant, who gave evidence through a Malay interpreter, said that she agreed that “it” was a “trust property” and that she had a “50% share” in the “trust property”. She immediately went on to say that “The money” was not taken from the Second Defendant. In the light of her earlier evidence that she did not use trust funds to acquire #18-01 East Tower, Horizon Towers, it was unlikely that she was referring to #18-01 East Tower, Horizon Towers when she spoke of the “trust property”. She had just given evidence on “trust money” in the estate’s Hong Kong bank account with Sin Hua Trust Savings & Commercial Bank. Read in the context of her earlier evidence, I thought that the “trust property” that the First Defendant referred to as “it” was probably “The money” in the estate’s Hong Kong bank account that was “not taken from Ong Siauw-Tjoan” and in respect of which the First Defendant had a “50% share”.
[116] In the circumstances, I find that #18-01 East Tower, Horizon Towers did not belong to the Deceased’s estate.
[117] According to the First Defendant’s affidavit of evidence in chief, #10-02 Lucky Tower was purchased by Lim Lie Hoa Realty Pte Ltd on 29 July 1980 for the sum of $550,000. Of this, $530,000 was paid as follows:

The judgment continues past this page. Read the rest at eLitigation.

Ong Jane Rebecca v Lim Lie Hoa (also known as Lim Le Hoa and Lily Arief Husni) and Others

Laws this judgment relies on

Grounds of decision

WITHDRAWALS

DEPOSITS

DATE

BALANCE

5,205,943.87 OD

250,000.00 TR

4,955,943.87 OD

250,000.00 EC

5,205,943.87 OD

39,860.20 IN

5,245,804.07 OD