General Division of the High Court · Decided 1 December 2025

The company's advance to the defendant was a loan, not a gift, and was not waived

Tjiang Giok Moy and another v Ang Jimmy Tjun Min and another matter

Feedback & support

[2025] SGHC 236Case no. Originating Claim No 56 of 2022

The decision, in one line

Not legal advice

The company's advance to the defendant was a loan, not a gift, and was not waived

Summary by laws.sgParagraphs [192], [216]

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

Ask about this judgment

Grounds of decision

Official text from eLitigation

Introduction
[1] Mdm Tjiang Giok Moy (“Mrs Ang”) and Ms Eileen Ang (“Eileen”) are the joint account holders of a Citigroup Private Bank (“Citibank”) account (“Citibank Account”). In HC/OC 56/2022 (“OC 56”), they claim against Mr Ang Jimmy Tjun Min (“Jimmy”) for unauthorised withdrawals of around $2m made by Jimmy from the Citibank Account. Jimmy is Mrs Ang’s son and Eileen’s brother.
[2] The three of them are also the shareholders of Banner (China) Investment Company Limited (“Banner”). In HC/OC 192/2022 (“OC 192”), Banner claims against Jimmy for the return of an advance of around $11m made to him. OC 56 and OC 192 were consolidated and tried as one action.
OC 56
[3] It is undisputed that on 27 May 2016, Jimmy withdrew $1.04m from the Citibank Account and deposited it into his personal account. On 7 June 2016, Jimmy withdrew $0.95m from the Citibank Account and deposited it into his personal account. These withdrawals will collectively be referred to as “the Withdrawals”. Mrs Ang and Eileen aver that Jimmy was aware that he was not authorised to make the Withdrawals. In OC 56, they seek the repayment of the Withdrawals.
[4] Jimmy does not contend that he has a beneficial interest in the Citibank Account. His pleaded defence is, primarily, that Mrs Ang and Eileen authorised the Withdrawals and are, in any event, estopped from claiming the repayment of the Withdrawals.
OC 192
[5] It is undisputed that Banner advanced about RMB55m, which is around $11m (the “Advance”), to Jimmy on 18 August 2016. Banner avers that the Advance was an interest free loan that was payable on demand (the “Loan”). In OC 192, Banner claims the repayment from Jimmy of the Advance.
[6] Jimmy’s defence in OC 192 is that the Advance was a gift from Banner to him, and, in any event, Banner is estopped from claiming repayment of the Advance or had waived its right to do so.
Issues
[7] Parties agreed prior to and after the trial, that the following issues arise in OC 56 and OC 192:
(a) OC 56 Issue 1: Whether the Withdrawals were made without Mrs Ang and Eileen’s knowledge or authorisation.
(b) OC 56 Issue 2: Whether Mrs Ang and Eileen are estopped from claiming for the repayment of the Withdrawals.
(c) OC 192 Issue 1: Whether the Advance was a loan or a gift to Jimmy, in particular, whether Mrs Ang made the alleged representations to Jimmy.
(d) OC 192 Issue 2: Whether Banner is estopped from its claim.
(e) OC 192 Issue 3: Whether Banner waived the Loan.
OC 56 Issue 1: Authorisation for the Withdrawals
Mrs Ang and Eileen’s case
[8] On or around 22 May 2008, Jimmy signed a document titled “General Third Party Mandate” (the “2008 Mandate”), by which Mrs Ang and Eileen: (a) authorised Citibank to, among other things, accept instructions from Jimmy in relation to the operation of the Citibank Account; (b) confirmed that Citibank is not obliged to ascertain or inquire the purpose for which any instruction was given by Jimmy or to seek confirmation of any instructions; and (c) agreed to be bound by any acts taken by Citibank in accordance with any instruction given by Jimmy pursuant to the 2008 Mandate.
[9] Mrs Ang and Eileen testified that they granted Jimmy the 2008 Mandate pursuant to the understanding and agreement that Jimmy was to act for and on their behalf and benefit and was only permitted to use the Citibank Account to invest for their benefit. The monies in the Citibank Account did not belong to Jimmy. He had to account to Mrs Ang and Eileen on all investments made using the monies from that account. He had to first check and obtain their approval before using monies from the Citibank Account for his or other persons’ benefit, and would have to repay any such sum he withdrew or used unless they agreed he did not have to repay them. These will be referred to collectively as the “Agreed Obligations”. These Agreed Obligations were conveyed by Mrs Ang to Jimmy.
[10] Jimmy was granted the 2008 Mandate because Jimmy was part of the family and was staying in the Peirce Road Property where his food and accommodation were taken care of. With the mandate, Jimmy could do his part and contribute to the family by making investments with Mrs Ang and Eileen’s consent.
[11] Jimmy accepted that he required Mrs Ang’s approval to make withdrawals from the Citibank Account. In his OC 56 Defence, he pleaded that he “could, and did, make withdrawals from the Citibank Account, from the profits generated from the funds in the Citibank Account using the Peirce Road Property as collateral, with the approval of Mrs Ang”. In his AEIC filed for OC 56, he stated that he “could and did make withdrawals from the Citibank Joint Account, but only from the profits generated from the funds in the Citibank Joint Account by using the Peirce Road Property as collateral, and with the approval of [Mrs Ang]”.
[12] It is undisputed that there were at least three occasions after Jimmy was given the 2008 Mandate where Jimmy sought and obtained Mrs Ang and/or Eileen’s authorisation for the withdrawal of monies from the Citibank Account for his own purposes: (a) on 23 May 2008, he withdrew around $1m for his intended wedding to a former girlfriend; (b) in or around August 2012, he withdrew US$678,846 and S$3,242.10 to purchase an insurance policy; (c) in September 2012, he withdrew S$144,020.99 to purchase a Volvo XC90.
[13] Having agreed to take on and assume responsibility for the management and operation of the Citibank Account, Jimmy stood as a fiduciary in relation to it. He owed Mrs Ang and Eileen, among other things, duties of loyalty and fidelity under common law and/or in equity. In Tan Yok Koon v Tan Choo Suan [2017] 1 SLR 654 (“Tan Yok Koon”), the Court of Appeal at [192] cited Millet LJ in Bristol and West Building Society v Mothew [1998] Ch 1:
[14] An unauthorised withdrawal of money is a breach of fiduciary duties; Daniel Fernandez v Edith Woi [2021] 5 SLR 712 (“Daniel Fernandez”) at [111].
Mrs Ang’s evidence
[15] In or around 2016, in light of the deteriorating relationship between Mrs Ang and Eileen on one hand, and Jimmy and his wife, Ms Cynthia Zou (“Cynthia”), on the other, Mrs Ang and Eileen asked Jimmy to move out of the Peirce Road Property where they had all been living in, to look for his own property and live in his own home.
[16] Mrs Ang thought that one of her properties at Leonie Towers, or a property at Leedon Residence, was suitable. Jimmy, however, was not interested in the properties. Sometime in 2016, Selena, the family’s Citibank Relationship Manager, informed Mrs Ang that Jimmy had viewed the Tomlinson Property. Mrs Ang arranged to view the Tomlinson Property on her own and was not impressed. She did not feel that the Tomlinson Property, which Jimmy preferred, was suitable for Jimmy and his family. She told Jimmy her views, but Jimmy did not agree with her. She repeated to him that she did not approve of the Tomlinson Property.
[17] On 25 May 2016, Jimmy sent her a WhatsApp message while she was on holiday in Holland. He said he wanted to update her that the developer accepted his offer for the Tomlinson Property, and he needed to draw $1.035m from the Citibank Account, being the balance booking fee and for the option to purchase. Mrs Ang read the message as a request to allow him to withdraw the moneys. She was not prepared to agree without discussing it with Eileen. She did not agree and did not reply to him nor forward it to anyone else. When Mrs Ang returned to Singapore on 7 June 2016, Jimmy did not follow up on his request and she left it as that.
[18] Around June 2016, Jimmy told her he had decided to purchase the Tomlinson Property and that he had paid the downpayment and stamp duty. He asked her to help with the balance purchase price of around $11m. She assumed that because she did not give her consent in response to Jimmy’s WhatsApp message of 25 May 2016, he had found other ways to pay for the downpayment and stamp duty. She told him she would have to consider his request and discuss it with Eileen.
[19] Sometime after this conversation, Eileen informed Mrs Ang that she had learnt from Selena that Jimmy made the Withdrawals from the Citibank Account to pay for the downpayment and stamp duty for the Tomlinson Property. Eileen told Mrs Ang that Jimmy did not ask Eileen for approval.
[20] Mrs Ang denied that she encouraged Jimmy to purchase the Tomlinson Property, that she represented to Jimmy that the Tomlinson Property would be a gift to him, that he could use the funds from the Citibank Account to pay for the Tomlinson Property, or that she would cause Banner to gift Jimmy the bulk of the purchase price for the Tomlinson Property. Mrs Ang also denied that she had full knowledge that Jimmy lacked financial ability to pay for the downpayment and stamp duty for the Tomlinson Property with his own funds.
Eileen’s evidence
[21] Eileen testified that beginning sometime in 2012 when Jimmy and Cynthia lived at the Peirce Road Property, there were arguments between Mrs Ang and her on one hand, and Jimmy and Cynthia on the other. Things worsened around 2016, and they asked Jimmy to look for his own property, move out and live in his own home.
[22] Jimmy did not ask Eileen for her approval for the Withdrawals and Eileen only knew about the Withdrawals sometime in June 2016 from Selena. She then conveyed to Mrs Ang what she had learnt from Selena. Mrs Ang told Eileen that Jimmy also did not ask her for her approval. At around the same time, Mrs Ang informed Eileen that Jimmy had asked her to help him with the balance purchase price of the Tomlinson Property of around $11m. Mrs Ang said that she had advised Jimmy not to purchase the Tomlinson Property because it was not suitable for his young family. As their relationship with Cynthia had become strained and they no longer trusted her, Eileen and Mrs Ang discussed their concern that if they gave $11m to Jimmy, Cynthia would benefit from it if something untoward happened to Jimmy or if there was a divorce. However, they did not want to worsen the already strained relationship with Jimmy and decided not to confront him immediately about the Withdrawals or ask that he make repayment of the Withdrawals.
[23] Around June 2016, Mrs Ang suggested that they help Jimmy with the balance purchase price by way of a loan from Banner to Jimmy. With this arrangement, Jimmy would not have to forfeit the deposit, Jimmy would still have to pay the $11m back to Banner, and Cynthia would not stand to benefit from the money. Mrs Ang spoke to Jimmy about it and later informed Eileen that Jimmy agreed to the loan arrangement. Eileen then left it to Mrs Ang and Jimmy to work out how Banner would loan this sum to Jimmy.
Jimmy’s case
[24] Jimmy denies that he was not permitted to withdraw monies from the Citibank Account unless he obtained express approval from Mrs Ang and Eileen. He submits that it is doubtful if the “Agreed Obligations” exist. Mrs Ang said on the stand that she did not understand some of the “Agreed Obligations” and she “cannot come up” with the same.
[25] Jimmy provides his own account of events as to the provenance of the 2008 Mandate. After his father passed away, his family needed to provide security to obtain fresh loan facilities from Citibank to refinance a loan facility with OCBC which had previously been under his father’s name. Mrs Ang and Eileen hence obtained an $8m loan facility from Citibank around March 2008 by pledging the Peirce Road Property. This was the family home in which the family believed that they each had an interest in. In return for his agreement to put it up as security, Jimmy was given the 2008 Mandate as assurance that he would be able to monitor the use of the Citibank Account.
[26] Jimmy avers that Mrs Ang orally approved the Withdrawals on multiple occasions. This included an oral conversation in early-March 2016 during which Mrs Ang encouraged Jimmy to put an offer on the Tomlinson Property and that it would be bought as a gift, and another oral conversation on or around 23 May 2016. Jimmy further avers that Mrs Ang also told Jimmy that she would notify Eileen and Mr Jeffrey Khoo (“Jeffrey”) of these arrangements. Jeffrey is Eileen’s husband and a director of Banner.
[27] Jimmy claims that at a meeting involving Mrs Ang, Jeffrey and Jimmy on 11 December 2018 (“11 Dec 2018 Meeting”), Mrs Ang acknowledged that the Withdrawals were for Jimmy to purchase the Tomlinson Property. Jimmy refers to Mrs Ang saying the following at the 11 Dec 2018 Meeting:
(a) In response to Jimmy’s statement that “Mother, you also agreed for me to buy” the Tomlinson Property, Mrs Ang confirmed “I agree”.
(b) Mrs Ang also said:
Decision
Whether the Agreed Obligations existed
(1) Whether Jimmy has pleaded that the Agreed Obligations do not exist and that he does not require approval
[28] I first deal with Mrs Ang and Eileen’s contention that Jimmy had not pleaded that the Agreed Obligations do not exist and that he does not require approval. They submit that Jimmy’s pleaded defence in OC 56 was that he had obtained Mrs Ang’s approval for the Withdrawals, and that he had accepted that he required Mrs Ang’s approval. It was not open to Jimmy to resile from his pleaded position. In contrast, Jimmy submits that he had denied the existence of the Agreed Obligations and pleaded that he did not require approval. This is not inconsistent with the other part of his pleaded case, that he did obtain approval on some instances concerning big ticket purchases, including the Withdrawals.
[29] In his pleadings, Jimmy: (a) denied Mrs Ang and Eileen’s account of events in relation to the genesis of the 2008 Mandate; (b) denied that he knew, understood and agreed to the Agreed Obligations; (c) pleaded his contrary account of events leading up to the 2008 Mandate. This is, however, muddled by Jimmy’s averment that he could and did make withdrawals with the approval of Mrs Ang. The rest of the Defence related to Jimmy having obtained Mrs Ang’s approval and how Mrs Ang informed Jimmy that she would notify Eileen accordingly.
[30] In my view, the Defence could have been pleaded far more clearly. As it stood, the Defence, and its focus on how Jimmy had factually obtained approval, gave the impression that Jimmy did not contest the fact that he needed approval. However, I am prepared to read the Defence charitably, that Jimmy has denied the existence of the Agreed Obligations and has set out the material facts on his own case as to the genesis of the 2008 Mandate. The Agreed Obligations formed the foundation of Mrs Ang and Eileen’s case that Jimmy required approval. A challenge to the Agreed Obligations would necessarily entail a dispute as to whether approval was required. Jimmy should thus be entitled to contest the existence of the Agreed Obligations and whether he required approval.
[31] In any event, while the general rule is that parties are bound by their pleadings and the court is precluded from deciding on a matter that parties have decided not to put into issue, this general rule may be departed from where no prejudice is caused to the other party in the trial or where it would clearly be unjust for the court not to do so; V Nithia v Buthmanaban s/o Vaithilingam [2015] 5 SLR 1422 (“V Nithia”) at [38]–[40]. This includes a situation where it is apparent that both sides have come to court ready to deal with an issue despite its omission from the pleadings; V Nithia at [41], How Weng Fang v Sengkang Town Council [2023] 2 SLR 235 (“How Weng Fang”) at [29].
[32] Notwithstanding the objections that counsel for the claimants had articulated on the pleadings on the first day of trial, Mrs Ang and Eileen’s AEICs had dealt with the issue of the Agreed Obligations and whether Jimmy required approval. Having had notice that Jimmy would put this into issue in the Judge Case Conference and on the first day of trial, counsel for the claimants extensively cross-examined Jimmy on the Agreed Obligations. I am satisfied that no prejudice would be caused to Mrs Ang and Eileen in considering the issue of the Agreed Obligations and whether Jimmy required approval.
(2) Whether Jimmy is precluded from contending otherwise by the rule in Browne v Dunn
[33] On a related note, Mrs Ang and Eileen contend that since Jimmy’s counsel did not challenge Mrs Ang or Eileen’s evidence about the Agreed Obligations, Jimmy is precluded from contending that the Agreed Obligations do not exist.
[34] Mrs Ang and Eileen rely on the rule in Browne v Dunn (1893) 6 R 67 (“Browne v Dunn”). While the rule is not rigid and does not require every point to be put to the witness, this would be generally required where the submission was “at the very heart of the matter”; Hong Leong Singapore Finance Ltd v United Overseas Bank Ltd [2007] 1 SLR(R) 292 at [42]. Mrs Ang and Eileen submit that, in Jimmy’s counsel’s words, the Agreed Obligations were the foundation of their case.
[35] I assess that Jimmy’s counsel did question and challenge Mrs Ang extensively on the existence of the Agreed Obligations. But Jimmy’s counsel did not challenge Eileen on the existence of the Agreed Obligations. During the closing oral submissions, counsel explained that this was because it was Mrs Ang that conveyed the obligations to Jimmy. However, Eileen testified in her AEIC that she was part of the discussion in which Jimmy had agreed to take on the Agreed Obligations. She explained that since Jimmy was staying at the Peirce Road Property with his accommodation and food taken care of, the 2008 Mandate was granted for Jimmy to do his part and contribute to the family by making investments with Mrs Ang and Eileen’s consent. Eileen was not challenged on this.
[36] I am satisfied that given the diametrically opposite position taken by Jimmy and the differing accounts as to the reasons behind the grant of the 2008 Mandate, in fairness, Eileen should have been challenged and given an opportunity to explain the contradiction. Jimmy would on this basis, be precluded from making submissions that the Agreed Obligations do not exist.
(3) Whether Jimmy required authorisation from Mrs Ang and Eileen before he could withdraw monies from the Citibank Account
[37] I have nevertheless assessed the issue of whether Jimmy required authorisation from Mrs Ang and Eileen before he could withdraw monies from the Citibank Account and use it for his own benefit, in terms of its substantive merits. This involves the following sub-issues:
(a) Mrs Ang and Eileen’s testimony about the Agreed Obligations and the need for their authorisation before Jimmy could make withdrawals from the Citibank Account for his own use;
(b) The parties’ explanation as to why Jimmy was given the 2008 Mandate;
(c) Jimmy’s case as to when he required authorisation.
(A) Mrs Ang and Eileen’s testimony
[38] I begin with Mrs Ang and Eileen’s evidence. Both Mrs Ang and Eileen testified in their AEICs as to the existence of the Agreed Obligations. Jimmy submits that it is doubtful that the Agreed Obligations exist, because Mrs Ang said on the stand that she did not understand some of these obligations, that she “cannot come up” with the same, and that she did not get it when counsel for Jimmy asked her about the obligations.
[39] This submission is based on a partial citation of the transcripts and does not reflect what actually transpired during cross-examination. When counsel for Jimmy asked Mrs Ang if she came up with the Agreed Obligations, she gave the following responses:
[40] It is clear from the above that when Mrs Ang said that she “cannot come up with this”, she was in fact saying that she could not have come up with the Agreed Obligations on her own, that something must have happened for them to come up with it, that they sat down to talk about it and obtained unanimous agreement. Thus, Mrs Ang’s evidence on the stand is consistent with what she testified to in her AEIC.
[41] Further in the cross-examination, when Mrs Ang told counsel for Jimmy that she needed to know what obligations he was talking about, she also asked “What document are you talking about?”. Mrs Ang was not stating that she did not understand the Agreed Obligations. She was, in fact, asking counsel which document he was referring to when he asked about the obligations. Hence, Mrs Ang’s response cannot be taken as her failing to understand the Agreed Obligations.
[42] Jimmy also points to Mrs Ang’s identification of three names who could sign off for the Citibank Account, Eileen, Mrs Ang herself and Jimmy, as being contrary to Mrs Ang and Eileen’s pleaded case. Jimmy contends that his evidence – that he was given the full mandate to the Citibank Account to be treated as an account holder like Mrs Ang and Eileen, and that he did not need authorisation from Mrs Ang – is consistent with Mrs Ang’s own view that Jimmy, herself and Eileen was to have access to the Citibank Account on an equal footing.
[43] Taken at face value, this statement of Mrs Ang does not cohere with any parties’ case. In any event, while Mrs Ang is not accurate in stating that the three names could sign off for the Citibank Account, neither does her statement go as far as to say that Jimmy had full mandate and did not need authorisation to use the monies therein for his own benefit. Indeed, Mrs Ang had testified just prior that there were three names attached to the account and that before anyone could act, agreement was required from the three of them. Her statement was thus made in affirming that Eileen and her agreement was needed, rather than as submitted the defendant, that her authorisation was not needed.
[44] I hence find that Mrs Ang’s evidence on the Agreed Obligations was not shaken after the cross-examination. Eileen’s evidence was also not controverted after cross-examination. This was sufficient to discharge Mrs Ang and Eileen’s burden of proof to establish a prima facie case as to the existence of an agreement on the Agreed Obligations, and I turn to consider Jimmy’s explanation.
(B) Parties’ explanations as to the 2008 Mandate
[45] Second, I consider the parties’ respective explanations as to the existence of the Agreed Obligations or the lack thereof, and the circumstances surrounding the 2008 Mandate.
[46] Jimmy claimed that he was given the 2008 Mandate, without the imposition of the Agreed Obligations, because of his interest in the Peirce Road Property. Because the Peirce Road Property was to be used as security for a facility with Citibank to refinance loans that were previously under his father’s name, the 2008 Mandate was granted as assurance. It is undisputed that the Peirce Road Property is under Eileen’s name. Mrs Ang and Eileen gave uncontroverted evidence that Eileen’s parents gave her the monies to purchase it, and they wanted to give it to her as a wedding gift.
[47] When asked to describe his interest in the Peirce Road Property, Jimmy did not assert that he had a legal or beneficial share in it. Instead, he said that it is the family home, and he had “the right to live” there, although he acknowledged that there was no discussion as to the duration of this right. Jimmy relies on various correspondences relating to the renovation of the Peirce Road Property in 2008 to suggest that Jimmy was envisaged as having a wing of his own in the home, and Jimmy was a key person managing the renovation. I accept from the available documentation that Jimmy was involved in the renovation, and that there were rooms labelled in the floor plan to be “Jimmy’s bedroom” and “Jimmy’s bathroom”. There were also discussions about “Jimmy’s Apartment” and “Eileen’s Apartment” within the Peirce Road Property. This is suggestive that there was some accommodation then for Jimmy to reside at the Peirce Road Property.
[48] However, this, without more, does not indicate that Jimmy had a legal interest or even a right to live at the Peirce Road Property. Jimmy did not put forward any suggestion of a legal basis underpinning such a right, for example, his father’s will or some other agreement. Nor did he provide an explanation of why he did not sue to enforce this alleged interest, when he was “kicked out” of the Peirce Road Property. It appears that what Jimmy perceives to be an “interest” in the Peirce Road Property was not a legal interest, but more of an informal familial understanding, premised on the nature of the Peirce Road Property as a family home, that he would be able to live there. I can accept that perhaps Jimmy was under the impression that he would have a right to live there. But there is no evidence that this right was unlimited, that the family had conveyed this to him or that they had laboured under the same understanding. Notably, Jimmy does not even mention in his Closing or Reply Submissions what such an “interest” is. Given the vague nature of this “interest”, I do not find Jimmy’s claim that the 2008 Mandate was granted as an assurance in light of this “interest” to be believable.
[49] The credibility of Jimmy’s claim that the 2008 Mandate was given as an assurance in recognition of his “interest” to live there, is also undermined by his own admissions that he did not actively monitor or manage the Citibank Account. According to him, the ensuing right to monitor the Citibank Account was a “very valuable right” which allowed him to look after the safety of the Peirce Road Property, by ensuring that the Citibank Account would not be overleveraged to avoid the enforcement of the security. Despite this, he allowed Jeffrey to monitor the Citibank Account, and in his words “I just have no time to monitor that”. If indeed Jimmy has the alleged interest in the Peirce Road Property as claimed, it is questionable why he would choose not to monitor the account.
[50] I turn now to consider Mrs Ang and Eileen’s case in relation to the Agreed Obligations. Mrs Ang and Eileen claimed that the 2008 Mandate was given to Jimmy as a way for him to contribute to the family, as he was staying at the Peirce Road Property with food and accommodation taken care of. Jimmy contends that it made no sense for him to take on onerous Agreed Obligations for the sole benefit of Mrs Ang and Eileen, when Jimmy was already contributing to the family by managing the family businesses as director. I agree with the claimants that the burden imposed by the Agreed Obligations on Jimmy is vastly overstated. The Agreed Obligations permit, but do not compel, Jimmy to make investments. Jimmy could choose not to use the Citibank Account for investments. Further, Jimmy would also stand to benefit from his family’s largesse, even under this arrangement, so long as he had sought Mrs Ang and Eileen’s permission. Mrs Ang had agreed to Jimmy’s request to tap onto the Citibank Account for a number of expenses, including $1m for his wedding; see [12] above. I therefore do not accept Jimmy’s contention that it made no sense for him to take on the Agreed Obligations.
(C) Jimmy’s case as to authorisation
[51] I turn next to the third sub-issue, which relates to Jimmy’s case on when he needed the authorisation of Mrs Ang and Eileen for the Withdrawals. Jimmy’s case on this is highly inconsistent.
[52] First, while Jimmy denied the Agreed Obligations in his defence, he also pleaded that he “could, and did, make withdrawals from the Citibank Account, from the profits generated from the funds in the Citibank Account using the Peirce Road Property as collateral, with the approval of Mrs Ang”. While he stated in his AEIC that the Agreed Obligations make no sense, he also stated that he:
The inclusion of the words “but only” as well as “and with the approval of” suggests that he only could withdraw from the Citibank Account with Mrs Ang’s approval, which comports with the general tenor of a case that he required and had received approval. He also cited three occasions after he was given the 2008 Mandate, where he sought and obtained Mrs Ang’s authorisation for the withdrawal of monies from the Citibank Account for his own purposes.
[53] Second, Jimmy’s evidence on the stand was also unclear and internally inconsistent.
[54] When Jimmy was asked whether he required Mrs Ang or Eileen’s approval for withdrawals from the Citibank Account, “yes” or “no”, he equivocated and said “it’s not a simple yes-or no answer”.
[55] When Jimmy was asked to explain what he meant by him being given a full mandate to the account, he initially said that he could make small withdrawals for himself, but if “there’s a big amount, out of respect for [Mrs Ang], [he] will ask [Mrs Ang] first”. If it is not a big ticket item, he could just withdraw. He testified that a big ticket item “means anything that is above 200,000”. When it was pointed out to him that he had stated in his AEIC that his purchase of a car for around $144,000 in 2012 (i.e., below $200,000) was expressly consented and approved by Mrs Ang, he then said that he “just went ahead and do it” and that he did not “in that sense, get her consent or authorisation”. However, this contradicts what Jimmy had expressly stated in his AEIC.
[56] It was subsequently pointed out to Jimmy that there was evidence of an exchange where he was trying to get Selena to make the case to Mrs Ang for his purchase of insurance for his sons. Jimmy explained that he needed to do that as the insurance was a big amount and “if it is a big amount, then I need to seek her approval”. When queried what he meant by big amount, he said that it is a ballpark figure and can go up to “500,000”.
[58] Jimmy’s case vacillated on the stand. He had first started out by saying that he would ask Mrs Ang only out of respect. Later, he said that he needed to seek her approval. Finally, he circled back to his original position that he did not need Mrs Ang’s approval and only chose to obtain it. His account of what constituted big ticket items also shifted. This was initially $200,000. It later became $500,000.
[59] Besides being inconsistent with his pleadings, AEICs and his own evidence on the stand, Jimmy’s testimony is also inconsistent with what is presented in some of the documentary evidence. On 3 March 2016, he sent a WhatsApp message to Selena, informing her that he had “checked w my mum already this morning on utilizing about USD 1MM on the joint account to help me w my Sin property … purchase”. If indeed the use of the Citibank Account monies was entirely up to him and he did not need approval, it is not clear why he would feel the need to inform Selena that he had already checked with Mrs Ang on the use of the monies from the Citibank Account.
[60] From his inability to put forward a clear position, the sheer inconsistencies, and multiple iterations of a simple but key point – of when he needed authorisation – Jimmy came across as a witness who was making up the evidence as he went along. Even on a more charitable assessment, I find that Jimmy is not at all a credible witness in this aspect of his evidence. He was unclear and incredibly inconsistent on a key aspect of his case. He did not give me any basis to believe his evidence, that he did not need authorisation from Mrs Ang and Eileen to make the Withdrawals.
[61] In summary, I accept Mrs Ang and Eileen’s evidence on the Agreed Obligations and find that Jimmy required their authorisation for the Withdrawals. I reject Jimmy’s case that he was given the 2008 Mandate because of his “interest” in the Peirce Road Property and that he did not need authorisation from Mrs Ang and Eileen.
Whether Mrs Ang and Eileen authorised the Withdrawals
[62] I turn next to examine whether on the evidence, Mrs Ang and Eileen did authorise the Withdrawals.
(1) The available text messages
[63] Jimmy relies on a series of contemporaneous WhatsApp messages to suggest that Mrs Ang had made the alleged representations to him and must have had knowledge of the Withdrawals.
[64] First, Jimmy relies on a WhatsApp message dated 3 March 2016 to Selena in which Jimmy stated that he had “checked w my mum already this morning on utilizing about USD 1MM on the joint account to help me w my Sin property … purchase”. Jimmy submits that this is contemporaneous evidence that goes to establish that a representation had been made in early-March 2016, and that there was no reason for Jimmy to have lied about the same before the Withdrawals. When Mrs Ang was questioned on whether she had spoken to Selena in relation to this message, Mrs Ang claimed that she was in Holland in March 2016 because her elder brother had passed away. However, the available documentary evidence suggested that Mrs Ang only flew to Holland on 23 May 2016 at 11.55pm, and that Mrs Ang’s elder brother only passed in September 2019. When this was put to Mrs Ang, she accepted that she could not remember very clearly but could go and check up on this. The 3 March 2016 message provides some measure of support that Mrs Ang was kept in the loop in relation to Jimmy’s purchase of a property in Singapore, given that this message came two months before the Withdrawals and it seems unlikely that Jimmy was tactically posturing even then. However, as Mrs Ang’s evidence is that she was supportive of Jimmy purchasing some property, but she was very much against his purchase of the Tomlinson Property, this in itself does not advance Jimmy’s case very far. It was not put to Mrs Ang that on 3 March 2016, she told Jimmy that he could use US$1m to purchase the Tomlinson Property.
[65] Second, Jimmy points to a WhatsApp message sent to Mrs Ang on 25 May 2016. The message in full stated:
[66] In this context, Jimmy had testified in his AEIC that on 23 May 2016, he had spoken to Mrs Ang about the purchase of the Tomlinson Property. According to Jimmy, in this conversation, Mrs Ang confirmed that the downpayment and property tax for the Tomlinson Property would be covered by existing funds in the Citibank Account, with the remaining purchase price to be funded either from the Citibank Account or through a bank loan extended to Banner. Mrs Ang also said that she would inform Eileen and Jeffrey about the proposed arrangements. When Jimmy took the stand, he clarified that the conversation took place on 22 May 2016 and not 23 May. He explained that this mistake was not spotted until counsel for the claimants pointed out that the conversation could not have taken place in the claimants’ opening statement, as he had taken the midnight flight to Shanghai on 23 May 2016.
[67] The claimants submitted, in response to this clarification, that Jimmy’s claim that this was a mistake is false and that he had made it up when he realised the conversation could not have taken place. In the circumstances, I am prepared to infer that Jimmy made an honest mistake on this. If this was concocted, he could have stated earlier that the conversation took place on 22 May, since he was the one that disclosed the immigration records that the claimants referred to.
[68] There is some corroborative evidence that there was a conversation on 22 May 2016. First, the 25 May 2016 message itself stated that Jimmy wanted to “update” Mrs Ang that “the developer had accepted [his] offer”. As worded, it suggests that Mrs Ang had some context of what offer Jimmy was referring to. Second, when a text message from Jimmy to Selena on 24 May 2016 was put to Mrs Ang, she reiterated several times that Jimmy had informed her, but she was not agreeable and did not give her consent. In the 24 May 2016 text message, Jimmy informed Selena that he had informed Mrs Ang that he had put a 1% booking fee for the Tomlinson Property. and that if the offer is accepted, he would have to top up the 9%, which is $1.305m, and would probably have to draw from the Citibank Account first.
[69] While there is some corroborative evidence of a conversation around 22 May 2016 between Mrs Ang and Jimmy (as claimed by Jimmy), there is the pertinent question of what was conveyed by Mrs Ang in that conversation. Mrs Ang’s evidence in response to the 24 May 2016 text message (sent by Jimmy to Selena) was that she told Jimmy several times when he informed her, that she was not agreeable to his purchase of the Tomlinson Property. Similarly, returning to the 25 May 2016 message (sent by Jimmy to Mrs Ang), when the message was put to Mrs Ang, she likewise testified that she did not agree. It is undisputed that she did not reply to Jimmy or forward it to Eileen. Her evidence is that she assumed then that because she did not give her consent to Jimmy, he later found other ways to pay the downpayment and stamp duty for the Tomlinson Property. She was not challenged on this.
[70] I assess that Mrs Ang’s explanation is reasonably consistent with the surrounding circumstance. When Jimmy was describing his conversation on 22 May 2016 with Mrs Ang to Selena, Jimmy did not say that Mrs Ang had given her permission. Jimmy only said that he had informed Mrs Ang that he had put the 1% and that he “probably” will draw from the Citibank Account first. This is a far cry from what he now describes as the substance of the 22 May 2016 conversation, that Mrs Ang had “confirmed” that the downpayment and property tax would be covered by funds in the Citibank Account.
[71] Third, Jimmy points to Mrs Ang being subsequently added to a WhatsApp group “down pmt for purchase”, which consisted of Jimmy, Selena and Edna (a Citibank officer). On 26 May 2016 at 12.59pm, Jimmy sent a message asking Edna to call him “for voice lock on SGD1.04M I need for down payment …”. On 7 June 2016, Jimmy messaged Selena in the group chat, asking her to call him “for VL for SGD 950k for the stamp duty payable anytime”. When Mrs Ang was questioned on these messages and whether she knew that Jimmy was going to withdraw the $1.04m and $950,000, Mrs Ang testified that she could not remember. In my view, the fact that Citibank officers are being messaged about the downpayment and stamp duty, could be suggestive that the monies were being drawn from the Citibank Account. However, that is not conclusive, since the messages were not explicit about where the monies were drawn from. The messages could conceivably be about financing from Citibank through other means.
[72] On balance, I assess that the text messages do not show that Mrs Ang had knowledge of or consented to the Withdrawals. While there may have been a conversation on 22 May 2016, Mrs Ang explained that she was only informed, but she did not consent. She reiterated this on multiple occasions and in my assessment, her testimony is credible. Her explanation that she assumed Jimmy had funded the downpayment and stamp duty by other means is consistent with her position that she did not consent, and reasonable. Eileen’s evidence that she did not authorise the Withdrawals was unshaken. Jimmy did not have any contrary evidence. Since Eileen is a joint account holder of the Citibank Account, and her approval for the Withdrawals is required (not just Mrs Ang’s), this on its own, is fatal to Jimmy’s case.
(2) The 11 December Meeting
[73] Jimmy relied on two exchanges made at the 11 Dec 2018 Meeting, where Mrs Ang, Jimmy and Jeffrey were present, to contend that Mrs Ang’s subsequent conduct is corroborative of such consent. However, I find that they do not evidence the alleged representations. In this analysis, I note that the claimants and Jimmy have each furnished a set of transcripts and translations. I have assessed that the differences in translation are minor and do not affect the substance of the conversation. However, for convenience, I will refer to the translation furnished by Jimmy.
[74] First, Jimmy claims that Mrs Ang said that she agreed to gift him the Tomlison Property, as he had stated “Mother you also agreed for me to buy”, and she replied “I agree” and “now you bought this one, I also agreed that you purchase. Not that I disagree.”
[75] In my view, this has to be assessed in the context of the conversation. The exchanges leading up to these statements related to Mrs Ang voicing her views that the Tomlison Property was not suitable for Jimmy’s family and launching into a long recount as to how she sought to persuade Jimmy to choose the Leedon Residence or Leonie Towers properties instead. In response to Mrs Ang saying that she had offered him Leonie Towers, Jimmy told her that he saw Leonie Towers, “but I still prefer to buy it on my own.” This point is then repeated twice by Jimmy. Then he says “you, mother agreed for me to buy it on my own too. So this case is closed. So we don’t need to discuss.” Mrs Ang replied “I agreed, but today you are talking about it, so I'm saying it out…” Jimmy was about to respond further, saying “Okay. Now…” This was when Mrs Ang made the statement that Jimmy relies on. In full, she said: “Forget it. Don’t … okay, now I have agreed that you buy this. Not that I disagree, mm?” Jimmy responded “So we move on. We don’t need to discuss this anymore”.
[76] When read in its full context, it is apparent that Mrs Ang was not saying that Jimmy could make the Withdrawals and she would gift the Tomlinson Property to him. If anything, the exchange makes it abundantly clear that Mrs Ang was unhappy with and disapproved of Jimmy’s choice of the Tomlinson Property, and that Jimmy knew it. This unhappiness was sufficiently strong that Mrs Ang saw the need to bring it up some six years after the fact. This supports Mrs Ang’s evidence that she did not approve of Jimmy’s purchase of the Tomlinson Property and is consistent with her case that while she knew of the offer, she did not know or consent to the Withdrawals. She may have ultimately agreed to the purchase, but this does not mean that she consented to the Withdrawals. Her subsequent agreement to the purchase could likewise be evinced on her own case, by her extension of a loan through Banner to Jimmy.
[77] The second exchange that Jimmy relies on, is when Mrs Ang said that “The house is now free, right?” Jimmy submits that by this, Mrs Ang meant that the Tomlinson Property was free as a gift to him. Mrs Ang denied that this is what she meant and reiterated that the property was not meant as a gift to him. Jeffrey testified that he agreed to Mrs Ang’s statement then as he had perceived that, by “free”, Mrs Ang was referring to the Tomlison Property being free from encumbrance, and not that it was a gift to Jimmy.
[78] The Defendant’s Closing Submissions was accompanied by a document that appears to indicate that there was a bank mortgage on the Tomlinson Property as of May 2017. This was not adduced through any witness. In any event, whether there was in fact a mortgage on the Tomlinson Property is not material here. In the first place, Jimmy’s evidence was that he wanted to take out a mortgage over the Tomlinson Property “to reinvest for my family”. In his submissions, he explains that this particular mortgage loan was a cash out loan for investment. This is separate from the issue of whether the Tomlinson Property was purchased with a mortgage loan, which is what the exchange, taking Jimmy’s case at the highest, may have been about.
[79] More fundamentally, the issue is Mrs Ang’s state of mind when she said “free”, and not whether she was factually accurate in making that assertion. Mrs Ang denied that by “free”, she meant that the Tomlinson Property was a gift. Jeffrey affirmed that he understood Mrs Ang to mean free from encumbrance. Importantly, Jimmy himself in re-examination explained that his understanding of the word “free” was that “she gifted to me, she help me pay for it, so it’s free from loans, free from encumbrance” [emphasis added]. While Jimmy did preface that Mrs Ang had gifted to him the Tomlinson Property, his explanation of his understanding of the phrase “free from encumbrance” is similar to Jeffrey’s testimony. Given Mrs Ang and Jeffrey’s evidence, and what Jimmy stated in re-examination, I find no reason to attribute any other meaning to Mrs Ang’s use of the word “free”. I find that she did not mean by her statement, that she was gifting the Tomlinson Property to Jimmy.
[80] Finally, I find that, contrary to Jimmy’s submission, the absence of any mention of the repayment of the Withdrawals at the 11 Dec 2018 Meeting does not lead to the inference that the Withdrawals were authorised. Mrs Ang’s evidence was that her intent was to stop Jimmy from fighting with Eileen and Jeffrey, that she wanted peace in the family and not disharmony. This was unchallenged. Moreover, Jimmy’s own evidence was that by this meeting, Mrs Ang was “trying to find harmony and peace”. It is unsurprising then, that Mrs Ang would not bring up repayment of the Withdrawals at that meeting.
(3) Revocation of the 2008 Mandate
[81] I turn to consider the circumstances surrounding the revocation of the 2008 Mandate and assess its consistency with the parties’ cases. While not directly relevant, the parties’ subsequent conduct offers some insight as to whether the Withdrawals were indeed unauthorised.
[82] Eileen’s testimony is that following the discovery of the Withdrawals, Mrs Ang and Eileen felt that steps had to be taken to stop such incidents from reoccurring. They decided to remove Jimmy’s ability to make withdrawals from the Citibank Account, while preserving his ability to make investments with consent. Sometime in April 2017, they approached Selena, who suggested revoking Jimmy’s 2008 Mandate and replacing it with a fresh mandate that allows Jimmy only to make investments and deposits with the Citibank Account. As Mrs Ang and Eileen were concerned that Jimmy would be upset by a change in the scope of the mandate, the scope of Jeffrey’s mandate in relation to the Citibank Account was similarly altered.
[83] Jimmy believes that the 2008 Mandate was revoked and replaced with the 2017 Mandate as he had already commenced investigations into financial irregularities associated with the family businesses, and Mrs Ang and Eileen sought to prevent him from tracing any misappropriated funds flowing to the Citibank Account.
[84] In my assessment, the circumstances surrounding the revocation of the 2008 Mandate are broadly more consistent with Mrs Ang and Eileen’s account of events.
(a) First, Jimmy has not furnished any evidence that he had commenced investigations into the alleged financial irregularities as early as April 2017. While Jimmy claimed to have requested information in or around early 2017, the only email produced in connection with these requests is dated 1 October 2018.
(b) Second, Jimmy is unable to explain or even postulate a reason why Jeffrey’s mandate would have to be limited at around the same time, if indeed the objective of Mrs Ang and Eileen was to forestall Jimmy’s investigations. In contrast, Mrs Ang and Eileen’s explanation that Jeffrey’s mandate was also limited to assuage Jimmy is believable.
(c) Third, Jimmy’s account of events is suggestive of some kind of deception on Selena’s part, in misrepresenting to him that the forms she asked him to sign were meant to update personal particulars while not informing him that the 2008 Mandate would be removed or replaced. However, it is Jimmy’s own position that Selena was very close to the family and shared a special relationship. Without more evidence, I would be disinclined to believe such a serious allegation. In any event, Selena was not called as a witness by either party to testify as to what had occurred.
(d) Lastly, I note that the purpose of the forms, in granting a fresh, limited mandate, was self-evident from their title and contents. It is not clear how Jimmy would construe these forms to be for the purpose of updating personal particulars.
[85] I am therefore satisfied that the revocation of the 2008 Mandate in 2017 offers some measure of corroborative support that Mrs Ang and Eileen did not approve the Withdrawals.
(4) Other factors relied on by Jimmy
[86] For completeness, I will also address three other factors that Jimmy relies on to support his case, which I find do not assist him.
(A) Family practice of generosity
[87] First, Jimmy referred to what he framed as a family practice of his parents treating their children fairly and generously. However, what Jimmy referred to were predominantly past incidents of generosity towards Eileen and not towards Jimmy. While there were some occasions where withdrawals were made from the Citibank Account to benefit Jimmy, including withdrawals of US$1m for Jimmy’s wedding, $144,020.99 to purchase a car, as well as US$678,846 and $789,416.00 for the purchase of insurance for Jimmy and Cynthia, these gifts were made with Mrs Ang’s approval. These instances do not go towards showing that Mrs Ang agreed to make the particular gift in question to Jimmy, namely, the Tomlinson Property. Furthermore, there is uncontroverted evidence that Mrs Ang did not agree with the Tomlinson Property as a family home for Jimmy. In addition, the monies in the Citibank Account do not fully belong to Mrs Ang. They also belong to Eileen. The monies in the Citibank Account were thus not wholly Mrs Ang’s to gift.
(B) Action was brought with collateral purpose
[88] Second, Jimmy refers to his investigation of the financial records of the family businesses beginning some time in 2017, the subsequent discovery of financial irregularities and the formal commencement of proceedings in Hong Kong on 5 January 2021. He claims that this affected his relationship with Mrs Ang and Eileen, and caused them to bring OC 56 and OC 192 against him as a pressure tactic. Jimmy’s case is that issues only cropped up in 2017 and 2018. He denies that the relationship had soured in 2015 and in early 2016. He testified that his relationship with Mrs Ang was good all the way until 2020 before she filed the present suits.
[89] There is, however, evidence that suggests that Jimmy’s relationship with them was not good, even as early as around 2015, way before Jimmy commenced the Hong Kong proceedings in 2021.
[90] Mrs Ang testified that in 2015, her relationship was Jimmy was not on very good terms. Eileen explained that beginning in around 2012, Cynthia and Mrs Ang frequently argued over domestic matters and over time, the arguments became more frequent. As Jimmy would usually side with Cynthia in the arguments, this caused a strain in the relationship between Mrs Ang and Eileen, on the one hand, and Jimmy and Cynthia on the other. Eileen also testified that sometime in or around 2015, she and Mrs Ang discovered SMS messages between Cynthia and Cynthia’ mother, where Cynthia’s mother said that Jimmy was an “old man” and Cynthia had to “scheme” and know how to “snatch money”. Sometime in 2016, Mrs Ang and Eileen asked Jimmy to look for his own property and move out of the Peirce Road Property.
[91] The weight of documentary evidence supports Mrs Ang and Eileen’s contentions. First, the conversations between Jimmy and Selena evince that the relationship between him and Mrs Ang was not the best, even around July 2015. From the conversation, it appears that Jimmy had treated Selena as a conduit through which he could persuade Mrs Ang on the purchase of insurance coverage for his children, after Jimmy himself had spoken to Mrs Ang but was faced with resistance. Jimmy testified that Selena, as the bank’s relationship manager, would be better placed to explain the necessity of the insurance policies to Mrs Ang. However, the points that Jimmy had sought Selena to convey, such as being fair to all her grandchildren, Jimmy’s sons being very young compared to Eileen’s, could have been conveyed by Jimmy himself. They did not appear to require the technical expertise of a bank officer. Jimmy also explained that he often travelled for work and thus relied on Selena to do the explanation. However, there is no evidence that he was away for work during this period, such that he had to rely on Selena to convey points which he could have made himself. When cross-examined on the need to go through Selena to convince Mrs Ang, Jimmy did not claim to be overseas. Furthermore, even if he had to travel, that would not rule out opportunities for him to further speak to Mrs Ang personally on this when he returned to Singapore or over the phone, rather than rely on Selena. While there is evidence that Selena and the family shared a close personal relationship, this does not detract from the claimants’ contention that Jimmy himself could have spoken to Mrs Ang if the relationship was good. I do not find Jimmy’s explanation as to why he relied on Selena to be credible.
[92] Second, around 14 May 2018, Jimmy and Cynthia brought their two domestic helpers to the police station to inform the police that Eileen had incited the domestic helpers to report their mistreatment by him to the Ministry of Manpower. While this incident postdated the Withdrawals, it provides some corroborative support as to Eileen’s assertion that from around 2015, she and Mrs Ang had become increasingly troubled by the poor treatment of domestic helpers, and that this was a longstanding source of tension between them.
[93] Third, when Jimmy was cross-examined on the meeting between him and Eileen at COMO Dempsey on or around 25 November 2019, he agreed that the relationship between Mrs Ang and Cynthia “of course” deteriorated after the meeting.
[94] Jimmy contends that the relationship between Mrs Ang and Eileen on one hand and Jimmy and Cynthia on the other could not have been poor from the outset, because even on 18 August 2015, Mrs Ang approved the use of about $789,416 from the Citibank Account to purchase insurance in Cynthia’s name. I note that this appears to be life insurance under which Jimmy’s children would stand to benefit if something were to happen to Cynthia, and so it could be said that Cynthia did not stand to directly benefit. Nonetheless, I accept that this could be suggestive that relations between the parties was not poor. At the same time, there is no evidence from any party as to what transpired leading up to the purchase of this insurance. Jimmy’s exchange with Selena on the purchase of insurance for his sons, set out at [91] above, demonstrates that at that point, Jimmy had to work through an intermediary to persuade his mother to buy insurance for his children. When questioned on the state of family relations and the purchase of insurance, Eileen explained that at the time of purchase of insurance, the family had issues with Cynthia, but the family still agreed to it because it was for the family and for his children. It was not put to Mrs Ang that Mrs Ang agreed to buy this insurance because she had a good relationship with Cynthia then. I am thus unable to place much weight on this episode.
[95] Jimmy also contends that the mother-son relationship remained strong in 2016. I accept that despite the deterioration of relationships, there is evidence that Mrs Ang continued to treat Jimmy as her son, and on occasions relented in her own way. For example, she eventually agreed to the insurance for Jimmy’s children, she wanted Jimmy to choose from her existing list of properties and recommended properties outside of this as well, she held the 11 Dec 2018 Meeting to try to get the siblings to reconcile, and she relented to Jimmy’s purchase of the Tomlinson Property despite her dislike of that property.
[96] In my assessment, these instances where Mrs Ang relented or showed kindness to Jimmy, are not demonstrative of the harmonious relationships between her and Jimmy and Cynthia. Instead, they reflect the tension she faced as a mother, not agreeing with certain steps taken by Jimmy, but who was ultimately still her son.
[97] On the whole, I find that the weight of evidence indicates that the relationship between Mrs Ang and Eileen, and with Jimmy and Cynthia, started deteriorating from around 2015 to 2016, and not just in 2021 when Jimmy commenced the Hong Kong proceedings.
[98] Consequently, I am unable to accept that there is a direct causal link between Jimmy’s commencement of the Hong Kong proceedings and the position taken by Mrs Ang and Eileen in OC 56 and OC 192.
(C) Inability to afford the payments
[99] Third, Jimmy contends that he would not have been able to buy the Tomlinson Property alone and it would make no sense to look for a home in that price range, and that it was only with Mrs Ang’s support and promise of a gift that he was encouraged to purchase the Tomlinson Property. Mrs Ang had full knowledge that Jimmy would not have the financial ability to make the downpayment and relevant stamp duties at the material time.
[100] In my view, it is speculative to say that Mrs Ang would know as a fact that Jimmy would not be able to afford the downpayment and relevant stamp duties, or that Jimmy would not have made the purchase without reassurance from Mrs Ang. Bearing in mind that the downpayment and stamp duties amounted to around $2m as opposed to the full purchase price of around $13m, I do not think that the available evidence suggests that Jimmy would not have been able to afford the downpayment and relevant stamp duties on his own, or that Mrs Ang would necessarily have known about this.
[101] Jimmy accepted that his father’s estate is substantial, he is a 25% beneficiary of that substantial estate and that he is a man of some means in light of this bequest. He held directorships and managerial roles in companies in Malaysia, Shanghai, Hong Kong, the US and Singapore. Although Jimmy contends that his combined income at the time was modest and amounted only to about S$12,000 to S$15,000, and that most of the assets from his father’s estate were illiquid in nature, it is not implausible given his involvement in various businesses, that he could have gathered the requisite funds to make the downpayment and relevant stamp duties, before asking Mrs Ang for her assistance, whether in the form of a loan or a gift of monies.
[102] I therefore do not think that the evidence on the state of Jimmy’s finances advances his case that Mrs Ang must have made the representations and approved the Withdrawals.
(5) Conclusion on whether the Withdrawals were authorised
[103] In summary, having considered the evidence as a whole, I find that although Mrs Ang had knowledge that an offer would be put in for the Tomlinson Property and Jimmy had informed her that he sought to withdraw monies from the Citibank Account, Mrs Ang did not agree or consent to the Withdrawals. She did not know that the Withdrawals would be made. Further, Eileen did not authorise the Withdrawals.
Whether there was a breach of fiduciary duty
[104] Mrs Ang and Eileen’s case is that Jimmy, having agreed to take on and having assumed responsibility for the management and operation of the Citibank Account, is a fiduciary on the basis of a principal-agent relationship,. In his pleadings, Jimmy does not advance the case that he is not a fiduciary in relation to the Citibank Account, beyond a bare denial that he was not subject to the Agreed Obligations. Nor did he set out any reasons why he is not a fiduciary in the circumstances of this case. He also does not contend that if the Withdrawals are unauthorised, there is nevertheless no breach of his fiduciary duties. Indeed, in his Opening Statement, he submits that withdrawal of monies merely for personal use may not lead to a conclusion of breach, especially when a principal had knowledge of and consented to the same. He also has not argued in his written submissions that if the Agreed Obligations exist, he is nonetheless not a fiduciary. As I find that Jimmy was subject to the Agreed Obligations, that he needed Mrs Ang and Eileen’s authorisation for the Withdrawals, and that such authorisation was not obtained, it follows that Jimmy is a fiduciary and is in breach of his fiduciary duties to Mrs Ang and Eileen in relation to the Citibank Account; Daniel Fernandez at [111].
OC 56 Issue 2: Estoppel (Withdrawals)
Jimmy’s case
[105] Jimmy avers that if the court finds that he was not authorised to make the Withdrawals, Mrs Ang and Eileen are nevertheless estopped from claiming for the repayment of the Withdrawals. Jimmy relies on the doctrine of promissory estoppel. In this, Jimmy premises his claim to estoppel on two different forms of representations.
(a) First, Jimmy relies on various representations allegedly made by Mrs Ang in 2016 that the Tomlinson Property would be gifted to him.
(b) Second, Jimmy contends that silence can also constitute an unequivocal representation when there is a duty to speak. Mrs Ang had a duty to speak, when she saw the WhatsApp messages and knew that Jimmy was utilising monies from the Citibank Account. Mrs Ang ought to have taken a course of action to uphold her legal rights if she objected to the Withdrawals. She and Eileen failed to do so.
[106] In reliance on Mrs Ang’s representations, Jimmy purchased the Tomlinson Property. He would not have moved out of the Peirce Road Property but for the representations. In respect of detriment, Mrs Ang knew that Jimmy did not have the financial ability to pay for the Tomlinson Property downpayment with his own funds. Jimmy and his family were residing comfortably at the Peirce Road Property. If not for the promise, he would not have purchased the Tomlinson Property.
Mrs Ang and Eileen’s case
[107] Mrs Ang and Eileen submit that the Defence has not pleaded the material facts, which according to Jimmy, gave rise to the alleged representation for estoppel or that Jimmy relied on that representation to his detriment. This is fatal as it is a failure to plead the essential ingredients of an estoppel defence. All that Jimmy has pleaded is that it would be “inequitable” for Mrs Ang and Eileen to require the repayment of the Unauthorised Withdrawals, as they only made their letter of demand for repayment more than five and a half years after the Withdrawals were made.
[108] There was no representation or promise made to Jimmy that he could use the monies in the Citibank Account to pay for the Tomlinson Property. Jimmy’s claim that he suffered detriment by expending time and effort to search for a property, moving out of the Peirce Road Property and spending a sum of money for the Tomlinson Property which he could not repay, is wholly contrived. The fact that he was able to purchase a property of his own choosing which provided him and his family with a roof over their heads, can hardly be said to be a detriment.
Decision
[109] For Jimmy to rely on promissory estoppel as a defence, it is trite that Jimmy would have to show that (a) the promisor made a clear and unequivocal promise or representation; (b) the promisee acted in reliance on that promise or representation; and (c) the promisee suffered detriment as a result of that reliance; Aero-Gate Pte Ltd v Engen Marine Engineering Pte Ltd [2013] 4 SLR 409 at [37].
Whether the estoppel defence was properly pleaded
[110] First, I consider the submission that the estoppel defence was not properly pleaded. In a claim based on promissory estoppel, any supporting allegations must be pleaded with sufficient detail and “with sufficient particulars of the substance of the representations, the reliance alleged to have been placed on the representations and the detriment suffered by the party in relying on the representations”; Eller, Urs v Cheong Kiat Wah [2020] SGHC 106 at [108], citing V Nithia at [5] and [43]. The pleading must disclose the material facts necessary to support such a claim to give fair notice of the substance of the claim; Letchimy d/o Palanisamy Nadasan Majeed v Maha Devi d/o Palanisamy Nadasan [2021] 1 SLR 970 at [5].
[111] In Pertamina Energy Trading Limited v Credit Suisse [2006] 4 SLR(R) 273 (“Pertamina Energy”) at [85], the Court of Appeal noted that in relation to the third criterion of detriment, the party relying on estoppel must “(a) plead and identify what steps it would have taken and (b) prove that it would have had a real chance of protecting or improving its situation or that it would have taken that chance”.
[112] Having assessed Jimmy’s Defence in OC 56, I am of the view that the estoppel defence was not properly pleaded, and it was insufficiently particularised. Taking a broad view of the pleadings, I am satisfied that Jimmy had pleaded both the alleged express representations that the Tomlinson Property was a gift and that there was silence on the part of Mrs Ang and Eileen. This is also supplemented by the further and better particulars furnished by Jimmy, in which he detailed Mrs Ang’s alleged oral encouragements to purchase the Tomlinson Property and represented that “this house will be bought for you”. However, there were no particulars as to the detriment allegedly suffered by Jimmy. Per the Court of Appeal’s guidance in Pertamina Energy at [85], Jimmy must plead the steps that he would have taken which would have improved or protected his situation. This was not done. There was no identification of any detriment suffered by Jimmy.
[113] However, as I noted above (at [31]), the court may consider an unpleaded issue where no prejudice is caused to the other party in the trial or where it would clearly be unjust for the court not to do so; V Nithia at [38]–[40]. In my assessment, Jimmy had properly pleaded the element of detriment in his Defence in OC 192 in relation to the Advance. There, he averred that he had (a) suffered the detriment of expending time and effort to search for a property, and then moving out of his part of the family home at the Peirce Road Property and (b) suffered the detriment of spending a sum of money which he would not be able to repay on demand, such that it would be inequitable for Banner to resile from Mrs Ang’s representations. While this was pleaded in relation to another action, given that Mrs Ang and Eileen are represented by the same counsel and have mounted a joint case with Banner in OC 192, they would have been prepared to deal with this issue of detriment at trial. This is buttressed by the consideration that Jimmy had also set out these two heads of detriment in his AEIC for OC 56.
[114] Thus, I am satisfied that no prejudice would be occasioned to Mrs Ang and Eileen in considering the defence of promissory estoppel, and Jimmy should be entitled to argue the defence.
Whether the estoppel defence was made out
[115] I turn to consider Jimmy’s estoppel defence on its merits. In so far as Jimmy relies on the alleged representations from Mrs Ang, that has been dealt with above. I found that Mrs Ang did not make the alleged representations. There is also no evidence of any express representation from Mrs Ang and Eileen that they would not be claiming for the repayment of the Withdrawals.
[116] It appears from Jimmy’s written submissions, that Jimmy has also pinned his estoppel defence on Mrs Ang and Eileen’s silence for about five and a half years, and his submission that there was a duty on Mrs Ang’s part to speak up if she objected to the Withdrawals.
[117] Mere silence and inactivity would not normally suffice to constitute a clear and unequivocal representation, although mere silence may amount to a representation in certain circumstances, particularly where there is a duty to speak; Fook Gee Finance Co Ltd v Liu Cho Chit [1998] 1 SLR(R) 385 at [36]–[37], Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2018] 1 SLR 317 (“Audi Construction”) at [58]–[61]. Whether there is a duty to speak is a question which must be decided having regard to the facts of the case at hand and the legal context in which the case arises. The expression “duty to speak” does not refer to a legal duty as such, but to circumstances in which a failure to speak would lead a reasonable party to think that the other party has elected between two inconsistent rights or will forbear to enforce a particular right in the future, as the case may be. This is an objective assessment made by reference to how a reasonable person apprised of the relevant facts would view the silence in the circumstances, though the parties’ relationship and the applicable law which governs it will be a critical focus of the court’s assessment of whether those circumstances exist.
[118] Jimmy’s written submissions do not explain why Mrs Ang had a duty to speak. There is a reference to the principal-fiduciary relationship as contended by Mrs Ang and Eileen, but that is only one aspect of the consideration. Nor does the existence of a fiduciary relationship, in and of itself, leads to the imposition of a duty to speak. The defendant has provided no explanation in his submissions regarding any of the relevant considerations highlighted by the Court of Appeal in Audi Construction at [58]–[61]. Jimmy does not even say what, according to him, Mrs Ang had a “duty” to speak about. There is also a dearth of explanation about this in the pleadings and Jimmy’s AEIC. Indeed, Jimmy’s AEIC does not even mention a duty to speak on the part of Mrs Ang and Eileen and reliance on silence. Nor is there evidence from him that he reasonably thought that Mrs Ang and Eileen had elected between two inconsistent rights or would forbear to enforce their rights against Jimmy. Instead, Jimmy says in his AEIC that he acted in reliance of Mrs Ang’s alleged representations that the Tomlinson Property would be bought as a gift for him.
[119] It is for the defendant to put forward his case on this. However, he has not advanced any substantial case or explanation. I thus find that Jimmy has not shown that there was a duty on the part of Mrs Ang and Eileen to speak and there could be no reliance on their silence. It follows from this alone, that his defence of estoppel would fail.

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

The company's advance to the defendant was a loan, not a gift, and was not waived

Grounds of decision

Introduction

OC 56

OC 192

Issues

OC 56 Issue 1: Authorisation for the Withdrawals

Mrs Ang and Eileen’s case

Mrs Ang’s evidence

Eileen’s evidence

Jimmy’s case

Decision

Whether the Agreed Obligations existed

(1) Whether Jimmy has pleaded that the Agreed Obligations do not exist and that he does not require approval

(2) Whether Jimmy is precluded from contending otherwise by the rule in Browne v Dunn

(A) Mrs Ang and Eileen’s testimony

(B) Parties’ explanations as to the 2008 Mandate

(C) Jimmy’s case as to authorisation

Whether Mrs Ang and Eileen authorised the Withdrawals

(1) The available text messages

(2) The 11 December Meeting

(3) Revocation of the 2008 Mandate

(4) Other factors relied on by Jimmy

(A) Family practice of generosity

(B) Action was brought with collateral purpose

(C) Inability to afford the payments

(5) Conclusion on whether the Withdrawals were authorised

Whether there was a breach of fiduciary duty

OC 56 Issue 2: Estoppel (Withdrawals)

Jimmy’s case

Mrs Ang and Eileen’s case

Decision

Whether the estoppel defence was properly pleaded

Whether the estoppel defence was made out