Ho Kon Kim v Besty Lim Gek Kim and Others

Ho Kon Kim v Besty Lim Gek Kim and Others

The sale agreement and surrounding matrix established that Madam Ho retained a beneficial interest in one subdivided lot (one-third) which Ms Lim held on trust; Ms Lim breached that trust by re-mortgaging the property for unrelated company borrowings; RHB, having notice and expressly agreeing in the regulating agreement to discharge the vendor's unit free of payment, took the mortgage subject to Madam Ho's equitable interest so that RHB holds an undivided one-third share on constructive trust; the wasted costs order against the solicitors was unjustified and set aside.

Citation
[2001] SGCA 64
Parties
Appellant/plaintiff: Ho Kon Kim; Respondent/defendant: Besty Lim Gek Kim; Respondent/defendant (solicitors): William Lai & Alan Wong; Respondent/defendant (mortgagee): RHB Bank Berhad; Appellant (legal Representative): James Leslie Ponniah; Appellant (legal Representative): Wong Ann Pang
Court
Court of Appeal
Jurisdiction
Singapore
Judgment Date
26 September 2001
Case Number
CA 164/2000, Suit 165/2000Q, CA 167/2000
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeals From High Court Dismissal and Costs Order
Outcome
Appeal allowed in part: High Court dismissal set aside as to Ms Lim and RHB; declarations made for Madam Ho; costs awarded to Madam Ho against Ms Lim and RHB; appeal by solicitors allowed and wasted costs order set aside.
Legal Topics
Constructive Trust, Breach of Trust, Indefeasibility of Title, Land Titles Act Ss46 47, Knowing Receipt/assistance in Breach, Wasted Costs Orders
Source Language
English
Property Law Trusts and Equity Land Law Civil Procedure Professional Conduct/costs Constructive Trust Breach of Trust Indefeasibility of Title +3 more

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Parties

Ho Kon Kim

Appellant/plaintiff

Besty Lim Gek Kim

Respondent/defendant

William Lai & Alan Wong

Respondent/defendant (solicitors)

RHB Bank Berhad

Respondent/defendant (mortgagee)

James Leslie Ponniah

Appellant (legal Representative)

Wong Ann Pang

Appellant (legal Representative)

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeals From High Court Dismissal and Costs Order

Legal Issues

  1. 1 Whether the vendor under the sale agreement retained an equitable interest in a subdivided lot after transfer
  2. 2 Whether the transferee (Ms Lim) breached trust by discharging OCBC mortgage and re-mortgaging to RHB for unrelated borrowings
  3. 3 Whether RHB took the mortgage subject to Madam Ho's equitable interest and should be constructive trustee

Ratio Decidendi

The sale agreement and surrounding matrix established that Madam Ho retained a beneficial interest in one subdivided lot (one-third) which Ms Lim held on trust; Ms Lim breached that trust by re-mortgaging the property for unrelated company borrowings; RHB, having notice and expressly agreeing in the regulating agreement to discharge the vendor's unit free of payment, took the mortgage subject to Madam Ho's equitable interest so that RHB holds an undivided one-third share on constructive trust; the wasted costs order against the solicitors was unjustified and set aside.

Court Disposition

Appeal allowed in part: High Court dismissal set aside as to Ms Lim and RHB; declarations made for Madam Ho; costs awarded to Madam Ho against Ms Lim and RHB; appeal by solicitors allowed and wasted costs order set aside.

Orders

  • Declaration that Ms Lim holds an undivided one-third share of the property on trust for Madam Ho and that Ms Lim committed a breach of trust; judgment for damages with liberty to apply for assessment
  • Declaration that RHB as mortgagee holds the undivided one-third share on trust for Madam Ho and must account for one-third of net proceeds on any exercise of power of sale