Jane Rebecca Ong and Others v Ong Siauw Ping
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 17 June 2015 |
| Neutral Citation | [2015] EWHC 1742 (Ch) |
| Docket Number | Case No: HC2013000281 |
| Court | Chancery Division |
| Date | 17 June 2015 |
[2015] EWHC 1742 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Mr Justice Morgan
Case No: HC2013000281
Andrew Twigger QC and Oliver Hilton (instructed by Isadore Goldman for the First Claimant and by Stephenson Harwood LLP for the Second, Third and Fourth Claimants) for the Claimants
Mark Warwick QC and Henry Webb (instructed by Addleshaw Goddard LLP) for the Defendant
Hearing dates: 23 – 27 February and 3 – 4 and 6 March 2015
| Heading | Paragraph no. |
| Introduction | 1 |
| The Ong Family | 8 |
| The house | 10 |
| The present claim to a trust | 11 |
| The evidence | 13 |
| The facts in relation to the claim to a trust | 20 |
| The parties' submissions as to the existence of a trust | 58 |
| Was there a trust? | 60 |
| The claim to rectification of the trust deed | 78 |
| Revocation or rescission of the trust deed on account of mistake | 84 |
| Who were the trustees? | 97 |
| The trust property | 100 |
| The nature of the trust | 101 |
| The position of Tjoan and Jane under the trust | 106 |
| The result so far | 113 |
| The relevant orders | 115 |
| The events from 1987 to 1995 | 120 |
| The litigation in Singapore | 191 |
| Events from 2003 onwards | 206 |
| The discovery that the trust deed had been executed | 246 |
| Setting aside court orders obtained by fraud – the law | 251 |
| Jane's application to set aside the Rich Order | 266 |
| Jane's application to set aside the Collier Order | 304 |
| Jane's application to set aside the Coleridge Order | 318 |
| Jane's application to set aside the Writ of Possession | 326 |
| Jane's application to set aside the mesne profits order | 328 |
| The position of the children | 331 |
| Consequential and other matters | 339 |
Introduction
Although the facts involved in this dispute are lengthy and detailed, I will give a basic account of what the dispute is about. The claim concerns a substantial house at 39 Sheldon Avenue, London, N6 and the proceeds of sale of that house. In early 1986, the house was bought by Madam Lim, who was the mother of the Defendant ("Ping"), the mother in law of the First Claimant ("Jane") and the grandmother of the other Claimants (to whom I will refer as "the children"). At that time, Jane was married to Tjoan Ong ("Tjoan"), another son of Madam Lim. When the house was bought, the intention was that it would be a home for Tjoan and Jane and the children. However, later in 1986, Tjoan and Jane separated and Tjoan never returned to live in the house. Jane and the children continued to live there.
By late 1987 or early 1988, Madam Lim wanted to get Jane and the children out of the house. Jane asserted that the house was held by Madam Lim on trust for Tjoan and/or Jane and Jane began divorce proceedings seeking ancillary relief against Tjoan. Jane also started proceedings in the Chancery Division in which she put forward her claim to a trust of the house. Madam Lim counterclaimed an order for possession of the house. The proceedings took a considerable time and were complicated by Jane initiating proceedings in Singapore as to the administration of the estate of Madam Lim's late husband, Tjoan's father. In all this litigation, Jane's case was that Madam Lim held the house on trust for Tjoan and/or Jane.
In 1995, Madam Lim obtained an order in the Chancery Division that Jane give up possession of the house. That order was stayed pending proceedings in the Family Division. The Family Division proceedings effectively came to an end in 2005, the stay on the order for possession was lifted and Jane and the children were required to vacate the house. Madam Lim then sold the house in 2006. The present whereabouts of the proceeds of sale is unknown.
By 2012, Jane discovered that Madam Lim had in April 1986 signed a trust deed. If that trust deed created a trust of the house, then it would not be a trust under which Jane had any interest. It would be a discretionary trust under which the named beneficiaries included Tjoan and the children and another son of Madam Lim, but not Jane.
Eventually, the present proceedings began. The children seek a declaration that the house was the subject of a trust created by the document signed by Madam Lim in 1986. Madam Lim has now died and her son, Ping, defends that claim on the ground that the document was ineffective to create any trust and/or should be set aside for mistake. The trial of those issues involves an investigation of the facts in 1986 and perhaps up to 1988.
However, this dispute is much wider than a dispute about the legal consequences of what was done in 1986. There was litigation between Jane and Madam Lim from 1988 onwards. A number of orders were made on the basis that Madam Lim was the beneficial owner of the house. In particular, there were orders made in 1995, 2005 and 2007. Jane and the children now seek to have those orders set aside. They say that the orders were obtained as a result of the fraud of Madam Lim. That claim involves an examination of litigation, here and in Singapore, which took place over a 20 year period.
Mr Twigger QC and Mr Hilton appeared on behalf of Jane and the children and Mr Warwick QC and Mr Webb appeared on behalf of Ping. The case was very well argued and I am grateful to counsel for their considerable assistance.
The Ong family
Ong Seng King was a wealthy Indonesian banker and businessman, based in Singapore. He died intestate on 22 October 1974 leaving a widow, Lim Lie Hoa, known as Madam Lim. On 17 January 1975, letters of administration of the estate of Ong Seng King were granted to Madam Lim and her sister. Madam Lim had three sons, namely, Ong Siauw Tjoan (known as Tjoan) who was born on 6 February 1957, Ong Siauw Ping (known as Ping) who was born on 19 April 1959 and Ong Keng Tong (known as Elton) who was born on 27 June 1975. On 24 July 1978, Tjoan replaced Madam Lim's sister as co-administrator of his father's estate. Madam Lim died on 8 August 2009. Ping is the sole representative of her estate.
On 1 October 1982, Tjoan married Jane Butler who was then known as Jane Ong. Tjoan and Jane had three children, namely, Alexander (born on 12 August 1982), Nicholas (born on 15 November 1983) and Jordana (born on 3 March 1985). Jane gave evidence that Madam Lim did not approve of her marriage to Tjoan although, at times, there appeared to be a reasonably good relationship between Madam Lim and Jane. In 1986, Tjoan and Jane separated. On 22 March 1988, Jane presented a divorce petition and sought ancillary relief. A decree nisi of divorce was granted on 11 April 1989. That decree has never been made absolute and the ancillary relief proceedings have not been finally disposed of.
The house
39 Sheldon Avenue is a large house in London N6. In December 1985 it was owned by Million Dollar Properties Ltd and was for sale on the open market. On 14 December 1985, Madam Lim entered into a contract with Million Dollar Properties Ltd to buy the house for a price which was stated to be £637,500. Robert Gore & Co ("RG"), solicitors, acted for Madam Lim in connection with her purchase of the house. The purchase was completed on 6 January 1986 when Tjoan and Jane and their three children went to live in the house. Later, Tjoan moved out and later still Madam Lim brought proceedings for possession of the house against Jane. An order for possession was made on 31 March 1995, subject to a stay of execution. Later, the stay of execution was lifted and a writ of possession was issued. Jane left the house in December 2005 and the children vacated the house on or before 1 February 2006. On 11 May 2006, Madam Lim sold the house for approximately £3.2 million.
The present claim to a trust
In the present proceedings, Jane, Alexander, Nicholas and Jordana claim that Madam Lim declared a trust of the house in around April 1986. Although Alexander, Nicholas and Jordana are now adults, they were minors for much of the period which was examined at the trial and they have been referred to as "the children". For convenience, and without intending any disrespect to them, I will continue to refer to them in this judgment as the children. Jane and the children say that the trust declared in around April 1986 has never been revoked. They say that, following the sale of the house, the proceeds of sale became subject to that trust.
In these proceedings, the claim to the existence of a trust of the house has been pleaded in a number of different ways. In the course of his opening, Mr Twigger made it clear that the claim was now put on two grounds only. Both grounds relied on the existence of a document which was called a "Settlement" and which was signed by Madam Lim, in the capacity of settlor and also of trustee, and by Ping as trustee. Schedule 1 to this document had been drafted with the intention that the trust property would be there identified but the document as signed did not identify any property. It is said on behalf of Jane and the children that this document should be read with other linked documents with the result that the court should find that Madam Lim did declare a trust of the house on the terms of this document and whereby the requirements of section 53(1)(b) of the Law of Property Act 1925 are thereby satisfied. Alternatively, it is submitted that the court should rectify schedule 1 to this document and, as rectified, schedule 1 will identify the house as the trust property.
The evidence
Although the house was purchased in December 1985/January 1986 and the trust document was signed in or around April 1986, RG's file relating to the purchase and the possible declaration of trust is still available and...
To continue reading
Request your trial
-
Kuddusi Can IL (also known as K Jan IL) v Abdurrezzak Yesilkaya (also known as Abit Yesilkaya)
...there has been a declaration “depends on an objective assessment of the words and conduct of the settlor”: Morgan J in Ong v Ping [2015] EWHC 1742 (Ch) at 80 The necessary writing may be a letter ( Kaki v Kaki [2015] EWHC 3692 (Ch)); an affidavit ( Barkworth v Young (1856) 4 Drew 1), and s......
-
Jane Rebecca Ong and Others v Ong Siauw Ping
...dates: 28 September and 5 October 2015 Mr Justice Morgan Introduction 1 On 17 June 2015, I handed down judgment in this case (see [2015] EWHC 1742 (Ch)) and I adjourned consequential matters to a further hearing. In that judgment, I referred to the First Claimant as Jane and to the Second t......
-
Jane Rebecca ONG and Others v Ong Siauw Ping
...EWCA Civ 2069 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION Mr Justice Morgan [2015] EWHC 1742 (Ch) Royal Courts of Justice Strand, London, WC2A 2LL THE PRESIDENT OF THE QUEEN'S BENCH DIVISION, Sir Brian Leveson Lord Justice Underhill and......
-
張才奎所託管中國山水投資有限公司股份相關員工 And Others v 張才奎 And Another
...of benefitting the assignee (as opposed to the original beneficiary) would be void as a fraud on the power: see also Ong v Ping [2015] EWHC 1742 (Ch) at §§106–112. This is not surprising because the assignment does not make the assignee an object of the discretionary trust in place of the a......