Chin Kim Yon v Chin Kheng Hai [2016] SGHC 02

This case concerns a dispute between the plaintiff, Mr Chin Kim Yon (“Chin”), and his illegitimate son, the defendant, Mr Chin Kheng Hai (“Hai”). The dispute relates to the ownership of 27 Hillview Avenue #08-06, Singapore 669559 (“the Hillview property”). Although Chin paid for the Hillview property when it was purchased in 2000, it was registered in the names of his illegitimate daughter, Ms Chin Yun Qin (“Qin”), who is Hai’s sister, and Hai. Chin contended that the Hillview property is held for him under a purchase money resulting trust and sought a declaration that he is the beneficial owner of the said property. He also sought an order that Hai transfer all rights to the Hillview property to him within 14 days of the order.

Hai, who denied that the Hillview property is beneficially owned by his father, contended that the property was a gift to him and Qin. He relied on the presumption of advancement and equitable estoppel to thwart his father’s claim.

Hai also asserted that upon the death of Qin, who died intestate in January 2014, he was entitled to the latter’s half share of the Hillview property, which was transferred to his father after Qin’s death. In his counterclaim, Hai sought an order that his father transfer Qin’s half share of the Hillview property to him.

Background

Chin, aged 76, worked for a long time as an illegal street hawker before he secured a contract with Singapore Press Holdings for the distribution of newspapers in Jurong. Subsequently, he expanded his newspaper distribution business by acquiring a licence to distribute newspapers in Pasir Panjang.

In 1958, Chin married Mdm Sim Ah Swan. The couple had three sons and two daughters.

Chin said that he and Mdm Sim often quarrelled and they ceased to contact each other in 1969. By then, Chin was in a relationship with Hai’s mother, Mdm Lim Ya. He and Mdm Lim Ya had two illegitimate children, namely, Qin, who was born in 1965, and Hai, who was born in 1967.

Mdm Lim Ya helped Chin in his newspaper distribution business in the Jurong area. Subsequently, Chin transferred his licence to distribute newspapers in Jurong to her. Hai claimed that when he and Qin were in primary school, they helped in the family’s newspaper distribution business.

After Hai completed his national service, Chin sent him to the United States to study. Hai was abroad for six years and, after his graduation, he returned to Singapore and stayed with Qin in the Hillview property, which was then rented by the latter. At that time, Qin was running a business called “Sofa Culture” at Shaw Centre in Scotts Road and Hai helped her in this business after he returned to Singapore from the United States.

On 20 January 2000, Qin, who was then renting the Hillview property, took an option for the purchase of the said property at $700,000 from her landlord. An attempt by Qin and Hai to secure a loan from a bank for the purchase of this property was unsuccessful. Chin, who said that Qin asked him for help, said that he had “no choice” but to step in and pay for the said property. The Hillview property was registered in the names of Hai and Qin as tenants in common with equal shares. Chin said that, as a father, he had to act fairly and that was why the Hillview property was registered in the names of both his children. At the time the Hillview property was purchased, Hai was 33 years old while Qin was 35 years old. Both of them were unmarried.

In June 2003, the Hillview property was mortgaged to DBS bank for a term loan of $400,000 (“the DBS loan”) repayable over 20 years. Although the loan was stated in the loan documents to be for “working capital financing”, it was intended for the purchase of another property by Qin. Chin and Hai were named as the borrowers of the DBS loan. Shortly after obtaining the said loan, Qin, who was single, asked her father to add his name to hers for the purpose of purchasing a HDB flat at 4 Holland Close #06-01 (“the Holland Close HDB flat”) in July 2003.

The relationship between Chin and Hai deteriorated around 2013. Hai alleged that his father did not treat his mother well and that he and his sister had to look after their mother until she passed away on 30 March 2013. Chin, who did not deny that Mdm Lim Ya left him to stay with her children, claimed that she also stayed with him whenever she wanted to do so.

On 11 July 2013, a few months after his mother passed away, Hai went to a house in Johor, at which his father and mother had stayed. Chin was also there with some of his workers. According to Chin, Hai assaulted him and hit him with a bottle after he told Hai to leave the house. However, Hai denied hitting his father and alleged that it was in fact his father who had hit him and who had asked his workers to do likewise. Police reports were lodged in Johor by Hai and his father. In his police report, Chin said that Hai took items from his home and that he was “really afraid of what could happen to [him] in the future”.

Qin passed away on 22 January 2014. Chin claimed that he was entitled to Qin’s half share of the Hillview property under the Intestate Succession Act (Cap 146, 2013 Rev Ed) and applied for the Grant of Letters of Administration for her estate. Qin’s half share of the Hillview property was transferred to him on 13 December 2014. Hai did not object to this transfer at the material time.

Chin discovered after the said transfer that Qin and Hai had defaulted in the payment of some of the instalments due under the DBS loan. He also found out that money was owed to the Management Corporation of the Hillview property for maintenance fees and contributions to the sinking fund.

After making some payments for the outstanding maintenance fees for the Hillview property and instalments for the DBS loan, Chin decided that the said property should be sold as he did not wish to continue to make payments for the DBS loan. His then solicitors, Toh Tan LLP, wrote to Hai on 11 July 2014 to propose that the Hillview property be sold by public auction by Knight Frank Pte Ltd. In a number of letters and emails to Hai, Chin’s solicitors never referred to the alleged resulting trust and did not assert that he was the beneficial owner of Hai’s half share of the Hillview property. Instead, Chin sought the co-operation of Hai as “co-owner” to sell the Hillview property by public auction. As Hai had his doubts as to whether the said property should be sold by public auction, no action was taken to sell it by public auction. In the meantime, on 22 August 2014, the Hillview property was valued at $1.25m by Jones Lang LaSalle.

Chin replaced his solicitors, Toh Tan LLP, with Winston Quek & Co. On 27 October 2014, Winston Quek & Co wrote to Hai to assert for the first time in writing that Hai and Qin held the Hillview property on trust for their father and to demand that Hai transfer his interest in the property to his father within 14 days. As Hai did not accede to the demand, the suit before the court was filed on 14 November 2014.

Abandonment of the counterclaim

In his counterclaim, Hai asserted that a father of an illegitimate child is not entitled to a share of the child’s property under the Intestate Succession Act and that his father had wrongfully acquired Qin’s half share of the Hillview property after she died intestate in 2014. Hai further contended that as he is Qin’s only sibling, he is entitled under the Intestate Succession Act to Qin’s half share of the property. In view of this, Hai sought an order that his father transfer Qin’s half share of the Hillview property to him.

The two-stage test for the presumptions of resulting trust and advancement

As mentioned, while Chin contended that the Hillview property was held on a resulting trust for him, Hai denied that there was any such trust and relied on the presumption of advancement.

In Lau Siew Kim v Yeo Guan Chye Terence and another [2008] 2 SLR(R) 108 (“Lau Siew Kim”), VK Rajah JA, delivering the judgment of the Court of Appeal, pointed out that there is a two-stage test to be applied when considering the presumptions of resulting trust and advancement. He stated (at [57]) as follows:

In line with the two-stage test, whether there is a presumption of resulting trust in favour of Chin will first be considered before the presumption of advancement in Hai’s favour is dealt with.

The presumption of resulting trust

Chin claimed that as he paid for the Hillview property with his own funds, it is presumed that there is a resulting trust of the said property in his favour. It is trite law that when a person pays for a property and registers it in the name of another person without any apparent reason, a resulting trust arises in favour of the former in the absence of contrary evidence. In Dyer v Dyer (1788) 2 Cox Eq Cas 92, Eyre CB said as follows (at 93):

As it was common ground that Chin paid the $700,000 required for the purchase of the Hillview property, there is, without more, a presumption of resulting trust in his favour. This is a rebuttable presumption and it is for Hai to disprove it.

Hai accepted that there was a presumption of resulting trust in his father’s favour. As such, Hai’s counsel, Mr Goh Peck San, advanced his case on the basis of a presumption of advancement. This is understandable because if there is a presumption of advancement, then it is for Chin to rebut the presumption.

The presumption of advancement

The existence of a special relationship between a person who pays for property and the person who is registered as the legal owner of that property gives rise to a presumption of advancement in the sense that this relationship is regarded as prima facie evidence that the former intends to give the property to the latter. In Murless v Franklin (1818) 1 Swans 13, Lord Eldon LC explained (at 17) that the “general rule that on a purchase by one man in the name of another, the nominee is a trustee for the purchaser, is subject to exception where the purchaser is under a species of natural obligation to provide for the nominee”.

The most common examples of a special relationship that gives rise to a presumption of advancement are when a husband transfers property to his wife or pays for property registered in her name and where a father does the same for his children. In the context of gratuitous transfers from a father to his child, the presumption of advancement has, as was accepted by the Court of Appeal in Lau Siew Kim (at [68]), also been justified on the basis of parental love and affection.

The interplay between the presumptions of resulting trust and advancement was considered by the Privy Council in Antoni and another v Antoni and others [2007] All ER (D) 335 (“Antoni v Antoni”), where Lord Scott of Foscote said (at [20]) that “[i]n the absence of adequate rebuttable evidence, the presumption [of advancement] bars the application of the converse presumption, namely, the presumption of a resulting trust”. Traditionally, the presumption of advancement in favour of a child is regarded as quite strong. In the oft-cited words of Evershed J in In re Roberts, Deceased [1946] Ch 1 (at 5), it “is well-established that a father making payments on behalf of a son prima facie, and in the absence of contrary evidence, is to be taken to be making and intending an advance in favour of the son and for his benefit”. In Soar v Foster (1858) 4 K & J 152, Sir W Page Wood VC stated (at 158) that the presumption of advancement extends to a purchase by a father in the name of his illegitimate child. It also extends to relationships between a child and a person standing in loco parentis. While explaining the rationale for this extension in Bennet v Bennet (1879) 10 Ch D 474, Jessel MR said (at 477) that, in relation to a child, “a person not the father of the child may put himself in the position of one in loco parentis to the child, and so incur the obligation to make a provision for the child”.

The presumption of advancement has been criticised and there may be room for debate on the scope of the decision of the House of Lords in Pettitt v Pettitt [1970] AC 777 in relation to the application of the presumption of advancement in the changed social circumstances of today. In that case, Lord Reid noted (at 793) that the considerations that underpinned the presumption of advancement in spousal relationships have largely lost their force so that the strength of this presumption should generally have diminished significance in the case of spousal relationships. However, it is pertinent to note that in the local Court of Appeal decision of Low Gim Siah and others v Low Geok Khim and another [2007] 1 SLR(R) 795 (“Low Gim Siah”), Chan Sek Keong CJ pointed out (at [43]) that the cases where the presumption of advancement was held to have lost its robustness or diminished in importance concerned joint contributions by married couples in acquiring the matrimonial home or properties acquired using joint savings and not the traditional and well-established categories, such as that of father and child. For transfers of property made in the context of these traditional relationships, Chan CJ said (at [44]) that “there is no reason to treat the presumption of advancement as having lost its robustness or diminished in its vigour, and there is no reason why it should not be applied to resolve questions of title in the absence of any evidence indicating otherwise” [emphasis added].

Chin’s counsel, Mr Winston Quek Seng Soon, pointed out that in Teo Siew Har v Lee Kuan Yew [1999] 3 SLR(R) 410 (“Teo Siew Har”), Chao Hick Tin JA, who delivered the judgment of the Court of Appeal, stated (at [29]) that the “current approach towards the presumption of advancement is to treat it as an evidential instrument of last resort where there is no direct evidence as to the intention of the parties rather than as an oft-applied rule of thumb”. However, in Low Gim Siah, Chan CJ explained (at [44]) that Chao JA’s statement in Teo Siew Har is relevant only in a situation where the court needs to determine the intention of both parties, as would be the case where both parties have contributed or agreed to contribute to the acquisition and subsequent upkeep of a matrimonial property. He added that it is obvious that the intention of both parties would not be relevant in the traditional type of relationship, such as that of father and son, where one provides for the other and it is the provider’s intention alone that is relevant. Chan CJ added (at [47]) that “the proper principle to apply in relation to rebutting the presumption of advancement is that the more readily the presumption may be inferred from the relationship, the greater is the evidence needed to rebut it, and conversely, the less readily the presumption is inferable, the lesser is the evidence needed to rebut it”.

In Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048, the Court of Appeal issued a timely reminder (at [51]) that the presumption of advancement will operate only where there is no direct evidence of the intention of the parties. However, it does not follow, as was asserted by Chin’s counsel in his written submissions, that the court should not apply the presumption of advancement here merely because Chin is alive and has given evidence of his intention in court. Much depends on whether his evidence of his intention at the time the Hillview property was purchased is believable and whether there is other evidence to rebut the presumption of advancement. That is why the Court of Appeal stressed in Lau Siew Kim (at [78]) that the strength of the presumption of advancement depends on the circumstances of each case.

Depending on the circumstances, it may not be easy to rebut the presumption of advancement where there has been a gratuitous transfer of property from a father to his children. In Grey v Grey (1677) 2 Swans 594 (“Grey v Grey”), a father paid for a property that was registered in his son’s name. No express trust was declared. Although there was evidence that the father received the profits from the property for twenty years, entered into leases, took fines, enclosed part of the property, built on the property and directed a settlement to be drawn, it was held (at 598) that the “natural consideration of blood and affection” was not displaced and the presumption of advancement was not rebutted. Grey v Grey is still good law and is referred to in Lynton Tucker, Nicholas le Poidevin and James Brightwell, Lewin on Trusts (Sweet & Maxwell, 19th Ed, 2015) at para 9-045. This text cites several cases that have followed this decision, including Commissioner of Stamp Duties v Byrnes [1911] AC 386, where the Privy Council took the view that a father’s receipt of rents from properties given to his two sons did not convert a presumption of advancement in favour of the sons into a trust in favour of the father.

While it has often been difficult to rebut the presumption of advancement in a father-child relationship, it may be rebutted by evidence that the father did not intend to give the property in question to the child. In Re Gooch (1890) 62 LT 384, a father, who transferred certain shares in a company to his eldest son, kept the share certificates and the son paid the dividends received from those shares to his father. Kay J held that the presumption of advancement was rebutted by evidence that the father transferred the shares to his son in order to enable the latter to become eligible for appointment as a director of the company and had not intended to give the shares to his son.

In Lavelle v Lavelle and others [2004] EWCA Civ 223 (“Lavelle v Lavelle”), the presumption of advancement was also rebutted. The facts in this case, shorn of details relating to an allegation of forgery, are as follows. In 1997, G purchased a flat in the outskirts of Manchester in the name of T, his daughter. G contended that he bought the flat for his own use and that he retained the beneficial interest in the flat. However, T, who pointed out that her father had been taking advice on inheritance tax, asserted that he told her in November 1996 that he wanted her and her brother, C, to be registered as the owners of the flat in order to save on inheritance tax. As such, when the flat was finally registered in her sole name, she considered that the effect of this was to vest the flat in her to hold for the benefit of herself and her brother absolutely. The trial judge started on the basis that, as T was G’s daughter, there was a presumption of advancement but found that this presumption was comprehensively rebutted by evidence that G bought the flat for his own use and that he intended to retain the beneficial interest in the flat. The trial judge thus gave a declaration that T held the flat on trust for her father. The judgment was criticised by the English Court of Appeal as discursive and not clearly setting out and resolving material issues but it was nonetheless affirmed. What was “significant” to the Court of Appeal were two statements, the first of which was made by T’s husband, who stated as follows (at [46]):

T’s husband’s “plainly hearsay” statement was held to do nothing more than corroborate C’s witness statement, in which the latter stated as follows (at [46]):

Lord Phillips MR, with whom May and Parker LJJ agreed, found that the two statements referred to above suggested that G’s two children and their solicitors were not confident that G had appreciated that he was giving away his flat to his children when the property was purchased in 1997. His Lordship added that the children’s contention that their father had intended to give them the flat was based on a subsequent analysis of the legal effect of events at the material time rather than upon their belief throughout that their father had given the flat to them. Thus, the Court of Appeal held that G had a beneficial interest in the property even though it was registered in his daughter’s name.

The decision of the court

In the present case, attention must be focussed on Chin’s intention at the time the Hillview property was purchased and registered in the names of his children in 2000.

The state of the parties’ relationship in 2000

In Lau Siew Kim, the Court of Appeal stated (at [78]) that in relation to the presumption of advancement, the state of the relationship between the transferor of the property and the transferee is a factor to be considered to determine whether, in the entirety of the circumstances, it may be readily presumed that the transferor intended to make a gift to the transferee and, if so, whether the evidence is sufficient to rebut the presumption, given the appropriate strength of the presumption in a particular case. As such, it is relevant whether the relationship between the parties was a close and caring one or one of formal convenience when the Hillview property was purchased.

In the present case, the relationship between Chin and his illegitimate children before and at the time of the purchase showed that he cared for them. Chin testified that Qin tended “to look for” him and ask him for help and added that, given Qin’s “character and temperament”, he had to “give her advice every now and then”. As for Hai, Chin stated in his affidavit of evidence-in-chief (“AEIC”) that he fulfilled all his duties as a father to Hai. Although he also said that his relationship with Hai was only “for show” and only “just to please each other”, he testified that whether or not the relationship between him and Hai was sour, he did not just ignore the latter and he, in his own words, took “good care” of Hai. Admittedly, Hai testified that his father was vulgar and he did not feel his father’s love. However, when cross-examined, Hai was emphatic that he did not, as was suggested by Chin’s counsel, say that he had a “lousy” father.

It is also worth noting that when Hai did not do well in his GCE “O” Level examinations and did not qualify for admission to pre-university courses in Singapore, his father sent him to Canada and subsequently to the United States to study. Hai said that he was in Canada for a foundation course and he studied Business Administration in the United States. Chin said that he remitted $36,000 per annum to Hai for more than seven years. Furthermore, when Hai fell and injured his leg in a skiing accident in the United States in 1997, Chin was concerned enough to want him to return to Singapore for treatment and went so far as to send Qin to the United States to accompany Hai on the flight back to Singapore. When cross-examined on the accident and the proposed surgery for his son’s legs, Chin said that while he left it to Hai to decide on whether an operation was necessary, he preferred to have his friend, a master masseur in Simpang Renggam, Johor, massage Hai’s leg. Chin accompanied Hai for the treatment on some occasions.

Subsequently, Hai returned to the United States to complete his studies and, when he graduated, Chin gave Hai’s mother and Qin money to go to the United States to attend his commencement ceremony.

Chin also showed his fatherly concern for Qin and Hai when he testified as follows as to why he paid $700,000 for the Hillview property:

Evidently, Chin had “no choice” but to give his children $700,000 only because he cared for them.

Chin was also rather concerned that he should be a fair father to both Hai and Qin. That was why he wanted the property registered in both their names. When cross-examined, he stated as follows:

When asked why he did not register the property solely in Qin’s name, Chin reiterated as follows that he had to be fair to both Qin and Hai:

Notably, Chin testified that if he should die, the Hillview property would belong to Qin and Hai although he reserved the right to dispose of the property while he was alive. This explains why he had arranged for the property to be registered in both their names as tenants in common with equal shares.

Chin’s evidence convinced me that he cared for Hai and Qin at the time he purchased the Hillview property in their names in 2000. I was satisfied that the state of the relationship between Chin and his illegitimate children at the material time was such that this factor must be taken into account when considering the weight to be given to the presumption of advancement in the present case and whether or not there is sufficient evidence to rebut this presumption. In holding that there is ample room for the operation of the presumption of advancement in this case, I was mindful of the fact that Hai and Qin were already adults when the Hillview property was purchased in 2000. However, this is no reason to exclude the presumption of advancement. Admittedly, in Pecore v Pecore [2007] 1 SCR 795 (“Pecore”), a decision of the Canadian Supreme Court, the majority took the view that given that a principal justification for the presumption of advancement is parental obligation to support their dependent children, the presumption of advancement should not apply in respect of independent adult children. However, Abella J dissented and stated (at [98]) that the origin and persistence of the presumption of advancement in gratuitous transfers to children cannot be attributed to their father’s obligation to support them and natural affection was also an underlying factor in the presumption of advancement in the case of a gratuitous transfer to a child of any age. Notably , in Lau Siew Kim, the Court of Appeal expressed (at [68]) that it was more inclined to Abella J’s view in Pecore that the presumption of advancement emerges no less from affection than from dependency. The court added that despite the majority view in Pecore, the presumption of advancement should “apply to all gratuitous transfers from parents to any of their children, regardless of the age of the child or dependency of the child on the parent” [emphasis in original]. It follows that the fact that Hai and Qin were adults when the Hillview property was purchased and registered in their names does not stand in the way of the application of the presumption of advancement.

Chin’s former solicitors’ letters and emails

Crucially, despite Chin’s assertion that he intended to keep the Hillview property for himself and that he had told Qin and Hai about this, he made several statements through his former solicitors, Toh Tan LLP, which totally undermined his attempt to rebut the presumption of advancement. These statements made by him in 2014, long after the purchase of the Hillview property in 2000, are admissible against him. In Shephard and another v Cartwright and others [1955] AC 431 (“Shephard v Cartwright”), Viscount Simonds explained as follows (at 445) that declarations by a beneficiary of an alleged trust against his own interest that are made after the purchase of the property may be taken against him:

In Teo Siew Har, Chao JA, who delivered the judgment of the Court of Appeal, stated (at [34]) that the principle enunciated by the House of Lords in Shephard v Cartwright that subsequent declarations made after the purchase of property are only admissible against the party who made them and not in his favour “makes a lot of practical sense” for if this was not the rule, a party could advance his own case by making unilateral statements in favour of the existence of a resulting trust.

Notably, Chin testified that he had informed his then solicitors, Toh Tan LLP, that the Hillview property was held on trust for him. Despite this, Toh Tan LLP’s letters and emails to Hai, which were written on Chin’s behalf, consistently acknowledged that Hai had an interest in the Hillview property and the question of a resulting trust in Chin’s favour or his beneficial interest in the said property was never brought up.

The first opportunity for Toh Tan LLP to place on record that Chin is beneficially entitled to the Hillview property was when the firm wrote to Hai on 29 January 2014, very shortly after Qin’s death, as follows:

In the above-mentioned letter, there is no mention of a resulting trust or Chin’s beneficial interest in the Hillview property. Instead, Toh Tan LLP referred to Qin as Hai’s “co-owner” of the said property. Rather telling is the fact that Chin claimed to be entitled to Qin’s half share of the Hillview property not because he held the beneficial interest in that half share but on the disputed ground that he is entitled to it by virtue of the Intestate Succession Act. In claiming Qin’s half share on the basis of an alleged entitlement under the said Act, he was in fact implicitly conceding that had Qin not died intestate but had willed her half share of the Hillview property to Hai, the bequest would have been valid. This contradicts his claim that there is a resulting trust of the Hillview property in his favour.

Following Chin’s decision to sell the Hillview property, Toh Tan LLP wrote to Hai on 11 July 2014. The contents of this letter also undermined Chin’s claim that Hai held a half share of the Hillview property on trust for him. The said letter was worded as follows:

Two points may be noted about this letter of 11 July 2014. First, if there was a resulting trust and Chin is the beneficial owner of the Hillview property, he would surely have laid claim to the whole property. Instead, Toh Tan LLP described Chin as the “joint owner” of the property and referred to Hai as the person “holding the other half share”. Secondly, apart from acknowledging that Hai is a joint owner holding the other half share, Toh Tan LLP referred to the issue of transparency in the auction process for the sale of the house. The question of transparency will only arise if Hai had an interest in the Hillview property and is entitled to a share of the sale proceeds. If he does not have an interest in the said property, the transparency of the auction process is of no concern to him as his father would be entitled to all the sale proceeds.

When cross-examined on why his solicitors did not mention the alleged resulting trust in their letter dated 11 July 2014, Chin had no credible answer and merely said that there was no need to mention the trust because “it is very clear”. When it was pointed out to him that Toh Tan LLP had acknowledged Hai’s half share of the property, Chin gave the absolutely ridiculous answer that the contents of this letter were intended to “make [Hai] happy” and did not affect the alleged resulting trust. The relevant part of the proceedings is as follows:

In an email dated 18 August 2014 to Hai to persuade him to agree to the sale of the property by auction, Toh Tan LLP again acknowledged Hai’s interest in the property. The relevant part of this email was as follows:

As stated earlier, if Hai has no interest in the Hillview property and no share of the sale proceeds, he has no basis for complaining that the best price has not been secured. By fearing that Hai might make such a complaint, Chin accepted that Hai had an interest in the said property and especially so when Toh Tan LLP again referred to him as a “co-owner” of the property without mentioning the alleged resulting trust. Furthermore, Chin’s solicitors asked Hai whether or not he wanted the bank to intervene and have a forced sale of the property and remarked that a forced sale was not to Hai’s interest. If Hai had no share of the sale proceeds, it is Chin and not Hai who will be disadvantaged if a forced sale results in the property being sold at a lower price. When cross-examined on why his solicitors had said that Hai would be disadvantaged by a forced sale, Chin had no coherent answer, missed the point altogether and started to talk about Qin’s death. His testimony was as follows:

In his reply to Toh Tan LLP’s email of 18 August 2014 on 25 August 2014, Hai stated as follows:

Although it was evident from Hai’s email on 25 August 2014 that he was asserting his right to agree to the selling price for the Hillview property on the basis that he had a half share of the property, Chin admitted that Toh Tan LLP did not reply to this letter to point out that Hai had no interest in the said property.

Chin claimed that he did not know why his solicitors, Toh Tan LLP, repeatedly acknowledged Hai’s half share of the Hillview property and failed to assert on his behalf that there was a resulting trust. He should have but did not call anyone from Toh Tan LLP to testify on whether he had given instructions about the alleged resulting trust as he claimed and why his then solicitors did not assert his claim to the beneficial ownership of the Hillview property in this and several other letters and emails written by them to Hai. As for Chin’s repeated assertion that he is an illiterate traditional Chinese man who settled the issue of the alleged resulting trust verbally, Hai’s counsel reminded him that the cross-examination concerned letters written by his solicitors in 2014, at a time when his relationship with Hai had already soured. Chin’s inadequate response was as follows:

What is quite clear is that the cumulative effect of Toh Tan LLP’s letters and emails to Hai in the face of Chin’s claim that they were aware of his beneficial interest in the Hillview property totally undermined his case against the presumption of advancement in Hai’s favour.

Chin’s unsatisfactory evidence

Apart from the damning admissions in Toh Tan LLP’s letters against his alleged interest in the Hillview property, Chin’s evidence on whether or not the Hillview property was a gift to Qin and Hai left much to be desired.

Hai said that his father purchased the Hillview property for him and his sister, Qin. He stated in his AEIC that when the Hillview property was about to be purchased, his father told him and Qin that it was purchased for both of them. During the trial, Hai steadfastly maintained that his father had made it clear that he and Qin owned the said property absolutely.

In contrast, Chin claimed that he intended to keep the Hillview property for himself. In his AEIC, he stated as follows:

Chin testified that he spoke to his late daughter, Qin, about his vested interest in the Hillview property only after the purchase of the property was completed on 24 September 2000. Surprisingly, he could not remember where he had this important conversation with Qin and testified that this was “only a small matter”. Had Chin wanted to retain the beneficial interest in the property, it is more likely than not he would have made this clear to Qin and Hai before he parted with the $700,000 and not after the purchase of the Hillview property. When asked who else was present when he spoke to Qin about the alleged resulting trust, Chin said that her mother was present and that he could not remember if anyone else was there. At this juncture of the cross-examination, Chin did not refer to any conversation with Hai about the resulting trust although he mentioned that Qin telephoned Hai to tell the latter about their father’s beneficial interest in the Hillview property. However, Chin subsequently testified that he also told Hai about the said beneficial interest in his favour, an assertion vehemently denied by Hai.

If Chin wanted to keep the Hillview property for himself, he could easily have had it registered in his own name. When cross-examined on why this was not done, he gave a number of unsatisfactory answers. To begin with, he testified that the property was registered in the names of his children because he intended to acquire another property. He did not explain why the proposed acquisition of another property was relevant to his decision not to register the property in his own name. At that time, there were no additional stamp duties for purchasing a second property.

Chin also testified that registering the property in the names of Qin and Hai was a “temporary” measure to enable them to obtain a loan from the bank. Chin did not explain why a loan was required when he had paid the purchase price for the Hillview property. Did he expect his children to return him the $700,000 that he paid for the Hillview property? However, Chin testified that Qin and Hai had financial problems and could not even pay the rental for their rented apartment before he purchased the Hillview property for them to stay in 2000. Furthermore, when Qin and Hai wanted to mortgage the Hillview property to DBS in 2003, Chin stated in his AEIC that he was “reluctant” to have the property mortgaged as he “had doubts on the ability of both of them to pay the loan”. He added that it was only after his children continued to badger him that he finally relented and agreed to the DBS loan. I thus do not believe Chin’s assertion that registration of the Hillview property in the names of his children in 2000 was to enable them to mortgage the property.

Chin next said that in 2000, he was already in his 60s and it made no difference whether he registered the property in his own name or the names of Qin and Hai. However, it is clear that he had given much thought to the registration process from his evidence that he had wanted both Qin and Hai to be the registered owners of the property as he, as a father, wanted to be fair to the both of them. Furthermore, while he was not fully conversant with the laws of bankruptcy, he knew that Qin was then running a sofa business and conceded that he knew generally that if her business failed, there was a risk that creditors might take over her share of the Hillview property. It was suggested to him that as he knew about this risk, he would not have wanted to run it and would have not have registered the said property in Qin’s name as well if he did not intend to give her a half share of it. When questioned about this risk, Chin denied saying that he did not know about creditors taking over a debtor’s property but said that he was not too sure about this matter. All he could say was that, should this problem arise, Qin would think of a way to solve the problem.

Notably, Chin went so far as to state that the Hillview property was registered in the names of both his children so that they would each get a half share of it after his death. The relevant part of his testimony was as follows:

What Chin meant by “[i]ntention is one thing” was unclear but the fact remains that he had thought about Qin and Hai each having a half share of the property after his death. Furthermore, he never asked for the certificates of title for the Hillview property to be kept by him and although he said that he had asked for the keys to the said property, he was not given a set of keys. In fact, he said that after the purchase of the property, he went to the premises only “once or twice” several years after the purchase and only because he had asked a friend to do painting works there for his children.

To sum up, Chin’s evidence on his intentions when the Hillview property was purchased in 2000 did not rebut the presumption of advancement in Hai’s favour.

Whether the DBS loan rebutted the presumption of advancement

I now turn to consider Chin’s assertion that the fact that he was involved in the DBS loan, which concerned the mortgage of the Hillview property in 2003 to DBS bank for $400,000, showed that Hai and his sister were not the beneficial owners of the property. This assertion did not further his case for two reasons.

First, only events that constitute part of the original transaction regarding the purchase of a property in the name of another are relevant for the purpose of rebutting the presumption of advancement. Secondly, even if the DBS loan is taken into account, the evidence before the court with respect to this loan did not buttress his argument that he held the beneficial interest in the Hillview property.

Numerous cases support the proposition that the mortgage of the Hillview property to DBS bank in 2003, which was undertaken three years after the purchase of the Hillview property, is not relevant as it does not shed light on the state of Chin’s mind at the time the property was purchased in 2000. In Shephard v Cartwright, a father, who purchased shares in the names of his children, dealt with those shares and the proceeds of the said shares without the informed consent of his children. When the children sought an account after he died, his executors sought to rebut the presumption of advancement by pointing out that there was a course of dealings beginning some five years after the purchase of the shares that showed that the father had dealt with the shares for several years as if they belonged to him and that it followed that the shares belonged to the father’s estate. The House of Lords held that such evidence was inadmissible as it was not connected to the original transaction giving rise to the presumption of advancement and did not show that the father did not intend to give the shares to his children at the time they were purchased in the names of the children.

Subsequently, the strict approach in Shephard v Cartwright was relied on by the Privy Council in Antoni v Antoni. In this case, a father, who was the beneficial owner of shares in a property investment company, transferred his beneficial interest in three of the said shares to his three children, with each child getting one share. Subsequently, he remarried and revoked his old will that left his property to his children. He made a fresh will to leave everything to his new wife. After he died, the said wife claimed that the children held the shares in question on resulting trust for their father. The Privy Council took the view that the new will, which was made after the transfer of the shares, shed no light on the father’s intention at the time of the transfer of the father’s beneficial interest to the children and could not be used as evidence to rebut the presumption of advancement because subsequent acts and declarations of a transferor cannot be relied on to rebut the presumption of advancement. Lord Scott reiterated (at [20]) that it is “well established that evidence to rebut the presumption of advancement cannot take the form of denials of a transferee’s beneficial ownership made by the transferor after the event”.

Admittedly, there are a number of English cases favouring what may be called a “looser approach”. In Lavelle v Lavelle, the court, which preferred this looser approach, stated as follows (at [19]):

In United Overseas Bank Ltd v Giok Bie Jao and others [2012] SGHC 56, Belinda Ang Saw Ean J, who observed, obiter, (at [16]) that the looser approach seems “eminently sensible”, referred to the following revised view in Snell’s Equity (John McGhee gen ed) (Sweet & Maxwell, 32nd Ed, 2010) at para 25-013:

More recently, the strict and looser approaches were considered by Vinodh Coomaraswamy J in Tan Chin Hoon and others v Tan Choo Suan (in her personal capacity and as executrix of the estate of Tan Kiam Toen (deceased) and others and other matters [2015] SGHC 306, where he aptly pointed out (at [195]) as follows:

The present case too does not require me to conclude whether the rule in Shephard v Cartwright continues to apply. To my mind, the new approach is not inconsistent with the general rule insofar as it accommodates the caution with which a court must approach subsequent self-serving declarations, because of the risk of a party using post-transaction declarations with hindsight to recast their initial intent in order to bolster the case they now advance. The principle that self-serving evidence is of little probative value underpins both the established approach which excludes it entirely and the new approach which makes its self-serving potential ultimately a matter of weight.

In line with the strict approach endorsed by the Court of Appeal in Teo Siew Har, the DBS loan cannot be taken into account for the purpose of determining Chin’s intention with respect to the beneficial interest in the Hillview property when he paid the purchase price for this property in 2000.

Even if the looser approach is adopted, the fact that Qin included her father’s name in the purchase of the Holland Close HDB flat long after the purchase of the Hillview property did not, without more, rebut the presumption of advancement as there was no proof that it is more probable than not that he was involved because his consent was required for the mortgage of the Hillview property. Hai said that he and his sister initially wanted to sell the Hillview property and purchase two properties so that they would each have one property. However, they realised that the proceeds of sale of the Hillview property might not be enough for the purchase of two properties and they then agreed to mortgage this property so that Qin could buy her own property and they would have two properties in this way. Hai said that his father was involved in the DBS loan only because Qin, who was then single, wanted to purchase the Holland Close HDB flat and needed her father to be a joint purchaser of the flat for the proposed purchase of the said flat to be processed. Chin confirmed that Qin told him that he had to be a co-purchaser of the Holland Close HDB flat before she could proceed with the purchase of the said flat. I believe Hai’s version of events and do not accept that Chin was involved with the DBS loan because his consent was needed for the Hillview property to be mortgaged to DBS. It is more probable than not that this was just another case where Chin’s fatherly love or concern for Qin led him to help her acquire another property.

Chin’s evidence on the DBS loan undermined his credibility. When the cross-examination on the loan proved vexing for him, he claimed that the matter was “complicated”. Although he testified that he could not remember details about the loan, he complained in his AEIC about the DBS loan at paras 16, 17 and 19 of his AEIC as follows:

Chin’s assertion that the DBS loan was not utilised for the purchase of another property could not be substantiated as Qin purchased the Holland Close HDB flat together with him after the loan was obtained. When cross-examined, Chin’s testimony on the alleged betrayal and cheating did nothing to enhance his credibility. Initially, he insisted that no property was bought with the money obtained from DBS loan as he stated as follows:

When confronted with evidence that the Holland Close HDB flat was purchased after the DBS loan was obtained and that he had, as a co-lessee, signed various documents for the purchase of this flat, Chin changed tack and said that he was not sure whether the said loan was utilised for the purchase of the said HDB flat. His testimony was as follows:

I thus find that even if one adopts the looser approach in relation to events subsequent to the purchase of the Hillview property, Chin’s unsubstantiated assertions in relation to the DBS loan did not rebut the presumption of advancement in Hai’s favour.

Equitable estoppel

As I have found in favour of Hai on the basis of the presumption of advancement, Hai’s alternative case on equitable estoppel, which was rather poorly presented, need not be considered. While it is much easier for Hai to rely on the presumption of advancement to support his claim to a half share of the Hillview property as that presumption has to be rebutted by Chin, it is Hai who has to establish that he is entitled to rely on equitable estoppel. There was clearly insufficient evidence to satisfy me that the question of equitable estoppel arose.

Conclusion and costs

It appears that Chin’s change of position after having consistently acknowledged Hai’s interest in the Hillview property was due to his new solicitors’ analysis of the possible legal effect of events in 2000 when the Hillview property was purchased rather than on his genuine belief that he held the beneficial interest in the Hillview property.