Jane Rebecca ONG and Others v Ong Siauw Ping
| Jurisdiction | England & Wales |
| Judge | Sir Colin Rimer,Lord Justice Underhill,Sir Brian Leveson |
| Judgment Date | 12 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2069 |
| Docket Number | Case No: A2/2015/2599 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2017 |
[2017] EWCA Civ 2069
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Morgan
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION, Sir Brian Leveson
Lord Justice Underhill
and
Sir Colin Rimer
Case No: A2/2015/2599
Robert Ham QC and Mark WarwickQC (instructed by Addleshaw Goddard LLP) for the Appellant, Ong Siauw Ping
Andrew Twigger QC and Oliver Hilton (instructed by Stephenson Harwood LLP) for the Four Respondents
Hearing date: 7 th November 2017
Introduction
On 17 June 2015, following an eight day trial in the Chancery Division in February and March, Morgan J delivered a reserved judgment occupying 342 paragraphs. It dealt with many issues in a dispute between members of the Ong family. The claim related to a house at 39 Sheldon Avenue, London N6 ('the house') and its proceeds of sale. The four claimants (now respondents) had, amongst other things, sought a declaration that the house was the subject of a trust created by the late Lim Lie Hoa ('Madam Lim') in 1986.
The judge's order of 20 July 2015 occupied 12 pages. It is necessary only to say that paragraph 1 declared that Madam Lim had, until her death in 2009, held the house, its proceeds of sale and certain other rights relating to it upon the trusts declared in, and on the terms of, a settlement dated 14 December 1985 signed by her and by the defendant (now appellant), Ong Siauw Ping (known as Ping), her son. Paragraph 2 declared that Ping was, and continued to be, a trustee of the house, its proceeds and other rights on the same trusts and terms. Paragraph 4 declared that the only trust of the house that ever existed was that declared in paragraph 1 and that the first claimant, Jane Ong, was not a beneficiary of it.
Ping had opposed the claim that the house was held upon either the declared or any trust. The judge refused him permission to appeal as also, on 27 November 2015, did Davis LJ on the papers. On 25 October 2016, however, upon a renewed application at an oral hearing, Patten and David Richards LJJ gave permission. The only issues raised by the appeal are: (i) whether Madam Lim made a declaration of trust in respect of the house; and, if she did, (ii) whether it was 'manifested and proved' by the writing requirements of section 53(1)(b) of the Law of Property Act 1925. The disposal of the appeal involves the consideration of a series of documents created between December 1985 and July 1988, most of them in early 1986. There is no alternative but to tell the story and summarise the documents.
The Ong family and the story in outline
Madam Lim was married to Ong Seng King, an Indonesian businessman based in Singapore. They had three children: (i) Ong Siauw Tjoan ('Tjoan'), born in 1957; (ii) Ping, born in 1959, the appellant; and (iii) Ong Keng Tong ('Elton'), born in 1975. Ong Seng King died in October 1974 and Madam Lim and her sister obtained a grant of letters of administration of his estate in January 1975. Tjoan later replaced the sister as such administratrix and became a co-administrator with Madam Lim of his father's estate. Madam Lim died on 8 August 2009, leaving a will dated 9 July 2009, which Ping proved as her executor in Singapore in May 2011 and in England in February 2015. He is the sole representative of her estate. At all material times Madam Lim lived in Singapore and was domiciled outside the United Kingdom.
In 1982, Tjoan married Jane Butler ('Jane'), the first claimant. They had three children: (i) Alexander, born in 1982, the second claimant; (ii) Nicholas, born in 1983, the third claimant; (iii) Jordana, born in 1985, the fourth claimant. Tjoan and Jane separated in 1986 and a decree nisi of divorce was granted in 1989. It has never been made absolute.
In December 1985, Madam Lim contracted to buy the house from Million Dollar Properties Ltd. Robert Gore & Co, solicitors ('RG'), acted for her on the purchase. Completion was in January 1986, when Tjoan, Jane and their three children moved into the house. Tjoan later moved out and later still Madam Lim sued Jane for possession. By February 2006, Jane and the children had all moved out. On 11 May 2006, Madam Lim sold the house for about £3.2m. Jane and her children claimed in the proceedings that Madam Lim had declared a trust of the house in about April 1986 and that, after the sale, the proceeds became held on the same trust.
The facts relating to the purchase of the house and the claimed trust
The judge explained the facts in paragraphs 13 to 57 of his judgment. The evidence included RG's file relating to the purchase of the house and the creation of the claimed trust. The judge heard oral evidence from: (i) Mr Hyde, the RG partner who handled the matter; (ii) Jane, the claimants' principal witness; and (iii) Ping. He said Mr Hyde's oral evidence added little to what could be derived from the documents. He was unimpressed by Jane's evidence, saying he had 'no real confidence that [her] most recent reconstruction of events is reliable as an accurate account of what actually occurred.' Ping could remember next to nothing of the circumstances in which he signed the trust deed but gave evidence of the occasion when he explained the effect of the draft deed to his mother. The judge said:
'19. My assessment is that my findings of fact in relation to the claim that there was a declaration of trust must be based primarily upon the contemporaneous documents and the inherent probabilities of the case together with any oral evidence which is not contentious. …'
By 1985, Tjoan, Jane and Madam Lim were looking for a house that Madam Lim would buy and make available for occupation by Tjoan, Jane and their children. They found the house. On 13 December 1985, there was a 'subject to contract' agreement for its purchase by Madam Lim for £837,500 and contracts were then exchanged on 14 December. Madam Lim was to pay a £100,000 deposit. Completion was fixed for 6 January 1986.
Tjoan was with Madam Lim at RG's offices on 14 December when the exchange took place. Madam Lim had only a poor grasp of English and, for her benefit, Tjoan translated into Mandarin what Mr Hyde said, and he and his mother spoke together in Mandarin. It was understood by then that she was buying the house with her money but that it would be occupied by Tjoan, Jane and their children. There was no suggestion that they were to pay her anything for their occupation. It was also understood that there would be some sort of trust of the house dealing with the situation and there was a discussion on 14 December as to who would be the beneficiaries. It was clear they would include Tjoan and the children and that Elton (Madam Lim's youngest son) would also be a beneficiary: Madam Lim foresaw circumstances in which it would be appropriate for him to live in the house with Tjoan and the latter's family. It was also clear that Jane was not to be a beneficiary. The judge found (paragraph 24) that 'the precise terms of the trust as contemplated on 14 December 1985 were far from settled or clear.' Whilst Madam Lim's wishes as to the identity of the beneficiaries were clear, there was no real clarity as to the terms of the contemplated trust.
Madam Lim paid the £100,000 deposit on 23 December 1985, using money from a Jersey account in her name.
On 2 January 1986, Mr Hyde wrote to Madam Lim (in English) at her address in Singapore asking her to ensure that he had the funds necessary to enable him to complete the purchase on 6 January. His letter continued:
'As far as the ownership of the property is concerned I have prepared a Transfer into your name as a holding measure.
Your instructions with regard to the beneficial ownership of the property were quite clear but since I have had an opportunity to consider the matter further my advice is that the property should be owned by a non-resident Trust in the Channel Islands and that at least one of the Trustees should be an independent professional.
My proposal is that you should transfer the property to Ping and Tjoan and one other person to hold the property as Trustees for Tjoan, Elton and the grand-children.
This will be effective to avoid both capital gains tax and capital transfer tax but the main advantage of there being a professional Trustee is to ensure continuity in the event of both Ping and Tjoan being involved in a fatal accident. In the absence of a professional Trustee this would give rise to considerable difficulty.
Please let me have your confirmation that you approve this proposal and if you do not find it acceptable then the only alternative would be for the property to be owned by Ping and Tjoan as Trustees for Tjoan, Elton and the grand-children in equal shares.'
The judge explained (paragraph 89) how Madam Lim dealt with correspondence written in English. She ran a small property business in Singapore and when she received documents in English she would ask someone in the office to translate them for her. If a reply was required, she would dictate one, it would be translated into English and she would sign it. Ping played no part in translating any of the key documents for her. The judge found that this '… explanation of how the letters were written would suggest that Madam Lim understood the basics of what was involved in a trust with beneficiaries.'
The purchase was completed on 6 January, when the house was transferred to Madam Lim against her payment of £737,500, the balance of the total price of £837,500. That payment also came from her Jersey account. Tjoan, Jane and their children moved into the house on the same day. The title was a...
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