Aw Chee Peng v Aw Chee Loo

[1] The late great writer F. Scott Fitzgerald is reported to have said, “Family quarrels are bitter things. They don’t go according to any rules. They’re not like aches or wounds, they’re more like splits in the skin that won’t heal because there’s not enough material.” The taking of accounts and inquiries (“TAI”) which was conducted by me in this case arose out of such a family quarrel.

[2] The facts of the dispute between the parties in this case, who are brothers, have been set out in Aw Chee Peng v Aw Chee Loo [2022] 5 SLR 451 (the “Judgment”) from [3] to [13]. In essence, the brothers were in dispute over the rental proceeds in respect of two family properties at 12 Jalan Gelenggang (“No 12”) and 12A Jalan Gelenggang (“No 12A”) (collectively, the “Properties”). No 12 is on the ground floor and No 12A is above it.

[3] The Honourable Judge held that, “the defendant was liable to account personally to the plaintiff “for receiving more than his share or proportion of any rents or profits arising from [the Properties]” under s 73A of the CLPA” and found that, “the defendant’s full and unmodified liability to account to the plaintiff dates from 1 January 2021”. The plaintiff therefore became entitled to an account “for rental income received from 1 January 2021 onwards”.

[4] There is another family property at 75 Dedap Road (the “Dedap Residence”). The parties live at the Dedap Residence together with other family members. Whilst there is no rental income to account for in relation to the Dedap Residence, the Dedap Residence is relevant to the TAI of the Properties because the defendant said that he had incurred expenses for renovation and maintenance of the Dedap Residence and should be allowed to set off the plaintiff’s share of those expenses from the account of rental income in respect of the Properties. I will deal with this below.

[5] In the TAI proceedings before me, the plaintiff testified for himself and relied also on the testimony of three witnesses whose attendance had been procured by way of subpoena. The defendant testified for himself.

[6] The central issue before me in this TAI is how much the defendant must pay the plaintiff for rental income received from the Properties from 1 January 2021 onwards. To address this question, the following sub-issues require determination:

(a) Issue (1): the amount of rental income received from No 12 for the period 1 January 2021 to 31 December 2022;

(b) Issue (2): the amount of rental income received from No 12A for the period 1 January 2021 to 31 December 2022;

(c) Issue (3): whether the defendant may set off expenses incurred in connection with the Properties and if so, in what amount; and

(d) Issue (4): whether the defendant may set off expenses incurred in connection with the Dedap Residence and if so, in what amount.

[8] The parties were in agreement that No 12 was rented from (at least) 1 January 2021 onwards at a monthly rental of $7,950.00 until 9 May 2021. After that a new tenancy agreement was entered into between the defendant and the same tenant at a reduced monthly rental of $7,600.00 which will end on 9 May 2024. The parties agreed that the rental income received for No 12 for the period 1 January 2021 to 31 December 2022 which spanned both tenancy agreements amounted to $183,800.00.

[9] The security deposit under the tenancy agreement that was in place as at 1 January 2021 and until 9 May 2021 amounted to $23,850.00, this being the equivalent of three months’ rental. The security deposit under the new tenancy agreement after that amounted to $22,800.00, this being the equivalent of three months’ rental at the reduced monthly rental. The defendant sought to set off the difference of $1,050.00 between the two security deposits such that the amount of rental for which he had to account in respect of No 12 became $182,750.00 ($183,800.00 - $1,050.00 = $182,750.00).

[10] I agree with the plaintiff that it is for the defendant to prove that he returned the difference of $1,050.00 to the tenant (see, Chua Kok Tee David v DBS Bank Ltd [2015] 5 SLR 231 at [23]; s 105 of the Evidence Act 1893 (2020 Rev Ed) (“Evidence Act 1893”)). It cannot be disputed that there was no documentary evidence to support this fact. Further, the defendant did not actually say that he had returned the difference of $1,050.00 to the tenant in May 2021 (or at any other time). Rather, in his table of calculations of the rental income, the line item for May 2021 had the statement, “(S$7,600.00 – S$1,050.00 (return of deposit))”. This somewhat equivocal statement does not suffice. Even if, as the defendant argued, it would be logical to infer that the tenant would have asked for the return of the difference, I cannot find as a fact that the tenant did so ask and that the defendant did so return.

[11] Accordingly, on Issue (1), I find that the amount of rental income received from No 12 for the period 1 January 2021 to 31 December 2022 is $183,800.00.

[12] No 12A was rented to Zheng Guangjun (“PW2”) and his wife Wu Mengling (“PW4”), Tee Kim Ming Leslie (“PW1”), and Huang Zhenglong (“Huang”). PW1, PW2 and PW4 all testified under subpoena at the plaintiff’s behest. Huang did not testify, having apparently left his job in Singapore and returned to China on 12 January 2023, shortly before the TAI hearing started on 17 January 2023.

[13] Parties agreed that the amount of rental income received from PW2 and PW4 together for the period January 2021 to August 2022 was $14,600.00, and for the period September 2022 to December 2022 was $3,160.00, which totalled $17,760.00.

[14] PW1 testified that his rental was $510.00 per month as at January 2021, increased to $560.00 per month with effect from July 2021, increased to $610.00 for July 2022 and August 2022, and then increased to $660.00 per month with effect from September 2022, which totalled $13,640.00 as at December 2022. The plaintiff accepted the evidence of PW1 whereas the defendant said that PW1 only paid, in total, $13,600.00. The difference of $40.00 in total for the four months September to December 2022 apparently arose from fees of $10.00 per month for the use of the internet. The defendant submitted that due to a dispute between PW1 and PW2, PW1 paid this $10.00 to the defendant who handed it over to PW2; the defendant also relied on exhibit P1, being PW1’s handwritten note on which the words “Internet $10” were written. The defendant’s argument appeared to be that $10.00 per month for September to December 2022 should be deducted from the amount paid by PW1 to him and therefore from the amount he had to account to the plaintiff for.

[15] I do not accept the defendant’s argument. No evidence was adduced before me about the supposed dispute between PW1 and PW2 and why that supposed dispute should have led to the defendant being a go-between. Neither was any such case put to either PW1 or PW2 during the course of their respective oral testimonies so that they might have had an opportunity to respond to it. PW4 was not in a position to shed any light on this as her testimony was that her husband PW2 was in charge of all matters concerning the rental for No 12A. Exhibit P1 does not assist the defendant as the words, “Internet $10” do not, by themselves, support the defendant’s case about why that sum should be deducted from the amounts paid by PW1 for the months September to December 2022. Exhibit P1 merely shows that a sum of $10.00 was chargeable or charged for the use of the internet but does not say to whom that sum was chargeable or charged. I thus find that PW1 paid a total amount of $13,640.00 for the period January 2021 to December 2022.

[16] As for Huang, parties agreed that Huang paid rental of $640.00 per month for September 2022 to December 2022, totalling $2,560.00, and that before September 2022, Huang had paid $600.00 per month. Parties disagreed as to whether Huang started renting a room at No 12A from January 2021 onwards (which the plaintiff said was the case) or from March 2022 onwards (which the defendant contended).

[17] The plaintiff urged me to draw an adverse inference against the defendant and to find that Huang started renting a room from January 2021 onwards, contrary to what the defendant said. Amongst other reasons, the plaintiff pointed out that the defendant had maintained throughout the TAI proceedings, starting with his accounting affidavit on 6 June 2022 and including an Answers to Interrogatories on 15 August 2022, that there was no rental income for No 12A. This position was repeated in sworn statements as well as correspondence through his then-lawyers. The plaintiff tracked down the tenants and compelled them to testify. It was only in his Affidavit of Evidence-in-Chief (“AEIC”) on 13 January 2023, two working days before the TAI hearing started, that the defendant disclosed that he had collected rental income from No 12A since at least January 2021, for which he had to account to the plaintiff.

[18] In his AEIC, the defendant dealt with this volte face by saying that (i) there had been miscommunications or gaps in his instructions to his then-lawyers, (ii) he thought that the rental barely covered the utilities and so there was little utility in disclosing the rental, (iii) the tenancy agreements were informal arrangements which need not be declared, and finally (iv) he had signed the Answers to Interrogatories in a rush. When cross-examined, the defendant was unable to provide any better explanation. I do not accept the defendant’s reasons. A miscommunication with one’s lawyers, or being in a rush, may excuse one error but it cannot excuse repeating the error over a period of seven months and embedding it in both correspondence and sworn documents. Even if the rental had barely covered the utilities (which does not appear to be the case based on the evidence before me) and even if the tenancy agreements were informal (which also does not appear to be the case as the tenants seem to have dealt with the defendant at arms’ length rather than being, for instance, family members), it was not for the defendant to decide that he therefore did not have to disclose the rental to the plaintiff. The defendant was represented by counsel throughout the proceedings and should have been properly advised about what he was required to do pursuant to the Judgment.

[19] Under s 116(g) of the Evidence Act 1893, the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. It appears to me that the defendant had not wanted his tenants to testify in these TAI proceedings because he realised that they would say that they had been renting rooms at No 12A for certain periods of time and had paid rental to the defendant for the same. This desire to prevent that evidence from surfacing would be consistent with the defendant’s conduct as described in [17] and [18] above. It is also consistent with what PW1 told the Court – PW1 said the defendant’s wife had brought a letter to the tenants some time in September 2022 for them to sign, and the letter stated that the tenants were not willing to testify in Court. In the end, the plaintiff compelled the tenants to testify and the evidence came to light. To that extent it has become unnecessary for me to draw an adverse inference against the defendant generally as regards the evidence of the tenants.

[20] However, the plaintiff urged me to draw an adverse inference against the defendant specifically in relation to Huang’s tenancy and to find that Huang started renting a room at No 12A from January 2021 as the plaintiff suggested, rather than from March 2022 as the defendant suggested. I took into account PW4’s testimony under cross-examination that Huang had started living at No 12A in 2022 although she could not recall the month. PW4 did not appear to be making any particular effort to support the defendant’s case in her testimony. The defendant’s attempts, as described above, to stop the tenants from testifying seemed to have been directed at all of them collectively rather than against Huang specifically. Also, apart from the dispute about the internet fees in respect of PW1, I note that the occupancy dates and rental amounts set out in the defendant’s AEIC in relation to PW1, PW2, and PW4 were consistent with their testimony. I thus accept that Huang started renting a room at No 12A from March 2022 onwards and the amount of rental he paid totalled $6,160.00.

[21] On issue (2), I find that the total amount of rental collected from No 12A from January 2021 to December 2022 is $37,560.00.

[23] The plaintiff stated that this claim for unearned rental on the Unlet Room was made in trespass by ouster. Whilst the defendant argued that this could not be allowed as such a claim was not pleaded, the plaintiff countered that it was the defendant’s lack of candour regarding his dealings with No 12A that resulted in the plaintiff discovering only at the TAI stage when PW1 was testifying, that there were two untenanted rooms at No 12A. The plaintiff also submitted that the reliefs sought by the plaintiff in the Statement of Claim and granted in the Judgment, are broad enough to encompass an account of rental that ought to have been, but was not, earned for the Unlet Room.

Issue (3): whether the defendant may set off expenses incurred in connection with the Properties and if so, in what amount

[27] The defendant’s case on the expenses incurred in relation to the Properties, and the plaintiff’s response, are set out below. I will deal only with S/Nos 3, 4, 5 and 6 since the plaintiff did not challenge the other items.

[28] The defendant said that the income tax deducted by IRAS for the year of assessment 2022 was $2,753.60 based on his declaration of net rental income for No 12 for 1 January 2021 to 31 December 2021 at $75,290.00. The plaintiff’s objection to this was that there was no adequate proof that this had been the assessed sum and that it had been paid. I am satisfied that this was the assessed sum but I hold that the defendant may not effect the set-off until he provides, to the reasonable satisfaction of the plaintiff, evidence that the said sum has been deducted from his bank account or otherwise paid to IRAS.

[29] I grant parties a liberty to apply to me if they cannot work out between themselves whether the defendant has or has not provided the necessary evidence to the reasonable satisfaction of the plaintiff.

[30] For completeness, I note that the plaintiff did not object on the basis that, as a matter of principle, the defendant was not entitled to set off his personal income tax against the rental. I had concerns about this but in the absence of any arguments from the parties, I say no more.

[31] The defendant initially claimed $16,677.13 in respect of utilities for No 12A from 1 January 2021 to 31 December 2022 but later accepted that his calculations were wrong and instead the plaintiff’s calculations as set out in exhibit P4 were correct. The quantum is therefore $10,625.79.

[34] The documentary evidence showed that the defendant paid $481.50 for each of the policy periods 4 April 2020 to 3 April 2021, 4 April 2021 to 3 April 2022 and 4 April 2022 to 3 April 2023. The defendant submitted that it would be equitable to deem that the defendant had paid $963.00 (ie $481.50 plus $481.50) for the period 1 January 2021 to 31 December 2022. I find that the defendant is entitled to set off a pro-rated portion of the annual premium for the period 1 January 2021 to 3 April 2021, the annual premium for the period 4 April 2021 to 3 April 2022, and a pro-rated portion of the annual premium for the period 4 April 2022 to 31 December 2022. As this would in effect amount to the premium for 24 months, the defendant is entitled to set off an amount of $963.00.

[35] The defendant claimed a sum of $67,142.93 for repair and maintenance works on the Properties, broken down as follows:

$260.00

$13,800.00

$28,000.00

$17,400.00

$3,000.00

$182.93

$4,500.00

[36] The defendant attached to his AEIC, copies of seven personal petty cash vouchers and six third-party receipts or cash invoices to support the aforesaid works (except for the miscellaneous works), totalling $62,642.93. The seven personal petty cash vouchers (“PCV”) added up to $62,200.00 whilst the six third-party receipts or cash invoices (“3P RI”) added up to $442.93. I set out below some key points in relation to these documents.

[3P] RI 4 January 2021

[3P] RI 20 August 2021

[3P] RI 18 April 2022

[3P] RI 24 October 2022

[12] November 2022

[19] November 2022

[37] The defendant’s first argument about these documents relied on the decision of the Court of Appeal in Baker, Michael A (executor of the estate of Chantal Burnison, deceased) v BCS Business Consulting Services Pte Ltd [2022] SGCA(I) 8 (“Baker”). Relying on Baker at [30], [31], and [36], the defendant urged me to accept that he had adduced as much documentary evidence as he was able to, and to accept his oral testimony for the rest of the expenses incurred. The defendant’s second point about these documents was that the plaintiff had no basis to claim that the defendant had forged the payment vouchers. I need not make a finding on forgery because, as I will explain below, I disagree with the defendant on his first argument.

[38] As to the defendant’s first argument, I understand from the decision in Baker that the trustee’s duty to provide proper, complete, and accurate justification and documentation may be fulfilled in different ways or to different degrees, and the question of what is, or is not, sufficient, is fact-centric and depends on, amongst others, whether the trustee is a lay trustee or a professional trustee, the type of expenses in question, the quantum in issue, and evidence of the surrounding factual context. As the Court of Appeal reiterated, “while the legal burden is on an accounting party to justify payments made for the benefit of the beneficiary, “how that burden is discharged will vary from case to case”” (see, Baker at [36]).

[39] However, the documents which the defendant sought to rely on in the present case to prove the expenses incurred for the repair and maintenance of the Properties were challenged on their admissibility and not just on their sufficiency. Thus, it appears to me that in relying on Baker, the defendant has missed the anterior question of whether the disputed documents were admitted in evidence for TAI 1/2023 in the first place.

[40] The question is whether the seven PCV and the six 3P RI were proved by primary evidence, meaning the document itself produced for the inspection of the Court, as required by s 66 read with s 67 and s 64 of the Evidence Act 1893. The defendant cannot dispute that he did not produce for the inspection of the Court any of the documents of the seven PCV or six 3P RI.

[41] The defendant relied on the decision of the Court of Appeal in Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 3 SLR(R) 769 (“Jet Holding”). Specifically, the defendant submitted, firstly, that if the documents are marked and admitted into evidence without objection, the other party cannot object to the admission of the documents later. Secondly, the defendant went on to say that a party is generally deemed to admit the authenticity of documents in an opponent’s list of documents unless he had issued a notice of non-admission within 14 days after inspection of the documents. Finally, the defendant argued that counsel for the plaintiff did not question the defendant during the hearing about the authenticity of the seven PCV or ask him to produce the originals for the inspection of the Court and thus the plaintiff was deemed to have waived any objection to admissibility.

[42] I will deal with the defendant’s three arguments in turn. First, Jet Holding does not assist the defendant. The passage which the defendant relied on in Jet Holding at [51] expressly refers to documents having been marked and admitted into evidence and there is discussion elsewhere in Jet Holding about the use of an agreed bundle of documents to surmount any problems of authenticity (see, for example, Jet Holding at [44], [56]). There was no agreed bundle of documents in TAI 1/2023.

[44] Thirdly, I do not understand how the defendant could have suggested that the defendant was not questioned during the hearing about the authenticity of the seven PCV. On the contrary, he was questioned at length about the seven PCV and also the six 3P RI. It is also not right to suggest that the onus was on the plaintiff to ask the defendant to produce the originals for the inspection of the Court. This argument turns the burden of proof on its head and is unmeritorious.

[45] The plaintiff served a Notice of Non-Admission of Authenticity of Documents which clearly stated that the plaintiff did not admit the authenticity of, and required the defendant to prove at trial, the seven PCV. In his AEIC which responded to the defendant’s 6 June 2022 accounting affidavit, the plaintiff unequivocally put the defendant to proof that he had in fact incurred the expenses, including the seven PCV. During the course of cross-examination, the defendant was expressly challenged on the seven PCV and the six 3P RI. I thus find that, similar to the situation in Jet Holding at [73], “It is clear, in [my] view, that the [plaintiff] had in fact objected to the introduction of the [seven PCV and the six 3P RI]. In the circumstances, the [defendant] ought therefore to have satisfied the requisite requirements under the Evidence Act – in particular those contained in s 66. On this ground alone, [the seven PCV and the six 3P RI] were not admitted into evidence. That was, of course, fatal to the [defendant’s] case in so far as the quantum of [$62,642.93] claimed was concerned.”

[46] The defendant does not fall within any of the exceptions in s 67 of the Evidence Act 1893 such that secondary evidence (meaning, copies as defined in s 65 of the Evidence Act 1893) of the disputed documents could be relied on.

[47] The plaintiff went on to submit that even if the documents were proved as required under s 66 or s 67 of the Evidence Act 1893, they were hearsay evidence and therefore inadmissible. In light of my finding on authenticity, it is unnecessary for me to consider the arguments based on hearsay. The defendant should have adduced the seven PCV and the six 3P RI for the purposes of the TAI proceedings but failed to do so. Without the documentary evidence, there is simply unsupported oral evidence from the defendant, which is insufficient to discharge the burden of proving that he had incurred a significant sum of $62,642.93 in various repair and maintenance works on the Properties.

[50] I thus find that the defendant is not entitled to deduct $67,142.93 from the account he has to give to the plaintiff.

Issue (4): whether the defendant may set off expenses incurred in connection with the Dedap Residence and if so, in what amount

[51] The defendant’s position was that he had incurred expenses in relation to the Dedap Residence. As I mentioned at the outset of this judgment, the parties live at the Dedap Residence together with other family members. The defendant testified that over the period 1 January 2021 to 31 December 2022 he incurred at least an estimated sum of $28,800.00 for maintenance, renovation and repairs and an estimated sum of $13,490.55 for utilities at the Dedap Residence.

[52] The defendant harked back to the finding of the Honourable Judge that there had been an arrangement between the father and the defendant which the plaintiff accepted (“the Arrangement”), and that the Arrangement included using the rental proceeds from the Properties to renovate and maintain the Dedap Residence. The Honourable Judge had also found that the Arrangement had terminated by 1 January 2021 (which is why the defendant has to account to the plaintiff from 1 January 2021).

[53] Notwithstanding this, the defendant submitted that it would only be fair and expedient that the defendant be allowed to set off the plaintiff’s share of the Dedap Residence expenses and that not allowing him to do so would result in the plaintiff being unjustly enriched at the defendant’s expense. The plaintiff disagreed with the defendant and in any event said, for similar reasons as with the seven PCV, that the defendant had not properly proved these expenses.

[54] In light of the Honourable Judge’s decision that the Arrangement ended by 1 January 2021, I find no merit in the defendant’s argument and I do not allow the defendant to set off any part of the expenses supposedly incurred by him for the Dedap Residence from 1 January 2021 onwards on the basis of fairness, expediency, or justice. What the defendant is really saying is that as a matter of good conscience, the plaintiff should be contributing towards maintenance, renovation, repairs and utilities for the Dedap Residence since he is also living there. Whether or not that is so is not something I can or should decide. Because of my finding on this issue, it is not necessary for me to address the dispute over whether the expenses for the Dedap Residence were properly proved by the defendant.

[59] Another difficulty with the OTS is that because the offered payment was contingent on the happening of future events namely, the defendant’s receipt of sale proceeds from the sale of the Properties, the assessment of whether the amount awarded in this TAI is not more favourable than the terms of the OTS should take into account interest lost during that time period. However, the amount of that interest cannot be ascertained at this stage as OA 659 has not concluded and there is no indication that the parties have agreed on a sale of the Properties.

[60] Even leaving aside the element of interest lost, which would be a factor that reduces the value of the OTS, the amount awarded by me in this TAI is more favourable than the amount of $50,000.00 that was offered in the OTS.

[63] As for the defendant’s conduct, I have said above that I do not accept several of his explanations. The accounting affidavit he signed on 6 June 2022 said, “As for [No 12A] there has been no rental income from 1 January 2021 to date.” The AEIC he signed on 13 January 2023 said, “As for [No 12A]… there are four (4) existing occupiers. A breakdown of the rental income received over the years is as follows….” and went on to give the details from January 2021 to December 2022. I have considered both the accounting affidavit signed on 6 June 2022 and the AEIC signed on 13 January 2023. They were very similar both in presentation and in detail: they both reiterated that the plaintiff had denied the Arrangement and commenced this suit, they both stated that the defendant was providing an account for the Properties from 1 January 2021 onwards pursuant to the Judgment, they both set out what the defendant had incurred for upkeep etc for the Properties which should be set off, and they both maintained that the defendant had incurred various sums for upkeep etc for the Dedap Residence which should also be set off. The main point on which they differed was as to the rental for No 12A. It is difficult not to conclude that the defendant consciously concealed the rental for No 12A when he signed his accounting affidavit.

[64] There were also attempts made by the plaintiff in between the two affidavits, through correspondence between counsel as well as Interrogatories, to elicit the truth about the rental for No 12A. Unfortunately, the defendant did his best to deliberately conceal the rental he had collected from No 12A until he knew he no longer could.

[69] In summary, I have found that the defendant is to account to the plaintiff for the following sums:

$183,800.00

$37,560.00

$182,707.44

[71] I grant parties a liberty to apply to me should they be unable to work out the precise sums in accordance with the decision above.

[72] I thank counsel for their assistance throughout these TAI proceedings and express my hope that the parties can find the material to heal the splits in the skin of this family quarrel.