Ong & Ors v Ping

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.

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.

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.

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.

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 appears to be virtually complete. This is no doubt because of the extraordinary litigation history in this case. As early as May 1988, Jane had commenced proceedings against Madam Lim asserting the existence of a trust of the house and RG’s file was passed from one firm of solicitors to another in connection with that litigation.

The documentary evidence as to the purchase of the house and the intention to create a trust in relation to the house was supplemented by oral evidence. Mr Hyde, the partner in RG who handled the purchase of the house for Madam Lim, prepared a short witness statement and gave oral evidence. He also referred to an affidavit he had sworn on 20 March 1995 in an earlier round of litigation. Before he gave his evidence, he had quite properly refreshed his memory by reading the relevant file.

Mr Hyde’s evidence in chief did not add much to the position as revealed by the documents. When cross-examined and re-examined he did expand a little on the circumstances but I do not think that his additional evidence was of major significance.

Jane was the principal witness at the trial. She prepared a long witness statement which dealt with the purchase of the house but also dealt with the long history of litigation in the Chancery Division and the Family Division of the High Court in London and the further litigation involving herself and Madam Lim in Singapore. In the course of all that litigation, Jane had prepared a large number of witness statements and affidavits. It is certainly the case that Jane has throughout claimed that Madam Lim had created a trust, of one kind or another, in relation to the house in December 1985 or early 1986. However, the earlier claims that a trust had been created asserted facts and matters that are not now relied upon. Indeed, in her witness statement in the present proceedings, Jane said that the evidence in her witness statement in this action was “not entirely consistent” with evidence she had given, in particular in affidavits, in the earlier rounds of litigation. Having heard Jane cross-examined, I am quite sure that some of the things she said in her oral evidence were wrong. I consider that the evidence which Jane gave at the trial was a reconstruction of the events based upon the documents in order to support the way in which the claim to a trust is now put. I also consider that earlier statements which were made by Jane in the earlier litigation were also attempts by her then to reconstruct the events which happened. Her most recent reconstruction differs from her earlier reconstructions because the case is now being put in a different way. In these circumstances, I can have no real confidence that Jane’s most recent reconstruction of events is reliable as an accurate account of what really occurred.

Ping gave evidence but he stated that he could remember next to nothing about the circumstances in which he signed the deed of trust. He gave evidence about an occasion when he said that he explained the legal effect of the draft deed of trust to Madam Lim. I will refer to this evidence later when I deal with the allegation that Madam Lim would have been entitled to revoke the deed of trust by reason of her mistake as to its legal effect.

The children attended the trial but did not give evidence.

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. As regards the history of the earlier litigation in England and in Singapore, the essential facts can be taken from the very full set of documents relating to that litigation so that it is generally not necessary to rely on oral evidence as to what occurred.

I was given evidence as to the relationship between Tjoan, Jane and Madam Lim in the period up to December 1985, the accommodation then occupied by Tjoan and Jane and their children and Tjoan’s financial position. It is sufficient for present purposes to find that by late 1985 Tjoan, Jane and Madam Lim wanted to find a house that would be bought by Madam Lim and which she would make available for occupation by Tjoan, Jane and their children. Tjoan, Jane and Madam Lim looked at a number of houses and it was decided that Madam Lim would buy 39 Sheldon Avenue. On 13 December 1985, the estate agents for the vendor agreed, subject to contract, to sell the house to Madam Lim for £837,500. It was agreed that contracts were to be exchanged without delay and it was arranged that the solicitors for the vendor and the solicitors for Madam Lim (RG) would meet at the latter’s offices the following day, Saturday 14 December 1985, for that purpose.

On 14 December 1985, contracts were exchanged for the sale of the house to Madam Lim. The written contracts recorded that the purchase price was to be £637,500. Madam Lim was to pay a total of £837,500 to the vendor but it was apparently agreed that £200,000 of that figure was in respect of uncompleted building works or in respect of furniture and fittings rather than as part of the price for the house itself. The apportionment of the sum of £837,500 in this way is somewhat improbable and may very well not have been genuine but nothing now turns on this point. The written contracts provided for Madam Lim to pay a deposit of £100,000 and for completion to take place on 6 January 1986.

There was evidence as to Madam Lim’s command of spoken and written English at the relevant time. At the solicitors’ offices on 14 December 1985, Tjoan translated into Mandarin for his mother what was being said by Mr Hyde and the discussion on that day between Tjoan and his mother was in Mandarin. As will be seen, there was later correspondence in English between Mr Hyde and Madam Lim.

It seems that it was already understood by 14 December 1985 that the house would be bought by Madam Lim, with her money, and that Tjoan, Jane and the children would live in the house. There was no suggestion that they would pay for their occupation. Even by that date, it was understood that there would be some form of trust dealing with the situation. There was discussion on 14 December 1985 as to who would be the beneficiaries under the trust. It was quite clear that the beneficiaries would include Tjoan and the children. It was also understood that Madam Lim’s third son, Elton, would also be a beneficiary. Elton was born in 1975 and so was much younger than Tjoan and Ping. It was foreseen that there might be circumstances in which it would be appropriate for him to live with Tjoan and Tjoan’s family in the house. Madam Lim therefore wished Elton to be one of the beneficiaries under the trust. It was also clear that Jane was not to be a beneficiary. Tjoan sought to reassure Jane in relation to that point by indicating that it was obviously intended that she would live with Tjoan and their children.

I consider that the precise terms of the trust as contemplated on 14 December 1985 were far from settled or clear. Although 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. Mr Hyde gave evidence that at all times Madam Lim made it clear that she wished to retain “control”. However, there was a lack of clarity as at 14 December 1985 as to the extent of that control and how that would be ensured. I doubt if the idea of a discretionary trust had emerged as early as 14 December 1985. The suggestion of a discretionary trust appears to have come later following tax advice from an accountant, as explained further below.

The deposit of £100,000 was paid to the vendor’s solicitors on 23 December 1985. The money came from an account in Madam Lim’s name in Jersey.

On 2 January 1986, Mr Hyde wrote to Madam Lim. He stated that he would prepare a transfer of the house into her name “as a holding measure”. He stated that her earlier instructions as to the beneficial ownership of the house were “quite clear” but since then he had had the opportunity to consider the matter further and his advice was that the house 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. He then proposed that Madam Lim should transfer the house to Ping and Tjoan and one other person who should hold the house as trustees for Tjoan, Elton and Tjoan’s children. He stated that this would be effective to avoid capital gains tax and capital transfer tax and that there would be an advantage in having a professional trustee. It should be remembered that it was only after this date that capital transfer tax became known as inheritance tax and the rules as to the tax treatment of lifetime transfers of value were changed. He asked Madam Lim to give him her instructions as the only alternative would be for the house to be held by Ping and Tjoan as trustees for Tjoan, Elton and Tjoan’s children in equal shares. It seems likely that on 3 January 1986 Mr Hyde sent to Jane a copy of his letter to Madam Lim.

On 6 January 1986, the purchase of the house was completed. The registered title to the house was transferred to Madam Lim who paid £737,500 from her account in Jersey, as the balance of the total purchase price of £837,500. Tjoan, Jane and the children moved into the house on 6 January 1986.

On 6 January 1986, Madam Lim wrote to Mr Hyde in reply to his letter of 2 January 1986. She stated that she would prefer that the ownership of the house should be in her sole name and that the position in relation to beneficiaries should follow the earlier instructions given by her in London. She suggested that Tjoan would bring the title deeds of the house to her on his next visit to Singapore. This letter was received by Mr Hyde on 13 January 1986.

On 14 January 1986, Mr Hyde replied to Madam Lim’s letter. He stated that the house had been transferred into her name and that he would prepare a trust deed incorporating her original instructions.

On 20 January 1986, Mr Hyde sent to Tjoan and Jane a bill for his charges in connection with the purchase of the house. This bill was paid by Tjoan and Jane. They also paid the land registry fee and the stamp duty. Their payments totalled £11,192. It is not said that this payment resulted in the creation of any beneficial interest in favour of Tjoan and Jane.

On 12 February 1986, Mr Hyde wrote to Mr Coxe, of Buzzacott & Co, accountants, seeking advice as to the proposed trust of the house. He explained to Mr Coxe that Madam Lim intended that the house should be occupied by Tjoan, Jane and their children and that it should be held for the benefit of the occupiers and another child of Madam Lim. The letter also explained that Madam Lim wished to avoid capital transfer tax on the setting up of the trust and on her death and, if possible, capital gains tax on the sale of the property when the proceeds might be re-invested in another property to be occupied by the same persons. Mr Hyde added that he had no experience in the relevant area and he would like to discuss the matter over the telephone before arranging a meeting with his clients. I was not told of any telephone discussion nor of any meeting which involved Mr Coxe, although Mr Hyde told me that the later draft of a trust deed was drawn up by him “in co-operation” with Mr Coxe.

On 17 February 1986, Mr Hyde received a letter dated 12 February 1986 from Madam Lim referring to the title deeds of the house which had been transferred into her name.

On 18 February 1986, Mr Coxe wrote to Mr Hyde. Mr Coxe advised that the best way for Madam Lim to have dealt with the matter would have been for her to set up a foreign discretionary trust for her children, their wives and issue. This may have been the first suggestion that the property would be held by Madam Lim on a discretionary trust. However, if Madam Lim had already bought the house herself, and if it could not be argued that she had done so on behalf of the trustees of a settlement which was to be formed, then Mr Coxe suggested that she set up a foreign discretionary trust with a small sum, that she sell the house to the trust (with the trust paying her a purchase price) and that she then reimburse the trust the amount of the purchase price. He pointed out that stamp duty would be payable on the sale to the trustees of the trust. He also suggested another possible way forward. As it happens, matters were not arranged precisely in accordance with Mr Coxe’s advice.

On 18 February 1986, Mr Hyde applied to the Land Registry to register the transfer to Madam Lim.

On 25 February 1986, Mr Hyde wrote a detailed letter of advice to Madam Lim. He began by stating that it was possible for Madam Lim to retain legal ownership of the house and to avoid paying both capital transfer tax and capital gains tax. He then added:

“ … you can retain the property as trustee for the benefit of the family without giving rise to capital transfer tax on the setting up of the trust and without having to part with legal ownership and control of the property.”

Mr Hyde’s letter then gave a description of what had happened (or, more accurately what was supposed to have happened) up to that point. He said that Madam Lim had given instructions that the property was to be purchased “for the trust” and that the monies he had received had been a gift from Madam Lim to the trust. He then said that she had been acting as a trustee when she exchanged contracts and completed the purchase. The letter of 25 February 1986 enclosed a draft trust deed which was said to be in a standard form for a trust resident in Jersey.

The earliest version of a draft trust deed which is now available has a word processing date of 27 February 1986. Whilst it is possible that the draft bearing that date was sent on or about 27 February 1986 with the letter which had been drafted earlier on 25 February 1986, it is more probable that an earlier draft of a trust deed was sent with the letter of 25 February 1986 and the earlier draft was not identical to the draft bearing the date of 27 February 1986. I say that because the letter of 25 February 1986 asked Madam Lim whether she wished her name to be added to the list of names in schedule 2, whereas the draft dated 27 February 1986 includes her name. If that is so, there is no evidence that Madam Lim was sent the draft dated 27 February 1986 because, as will be seen, she was sent a different draft on 13 March 1986. Nonetheless, with the exception of Madam Lim’s name being included in schedule 2, it is likely that the earlier draft of a trust deed sent under cover of the letter of 25 February 1986 was essentially the same as the draft dated 27 February 1986.

The draft dated 27 February 1986 named Madam Lim as the Settlor and the sole trustee. The draft recited:

“The Settlor owns beneficially the property specified in Schedule 1 hereto and described therein as the initial settled property and wishes to make such irrevocable settlement as is hereinafter contained”.

The document was a draft of a discretionary trust. Clause 1 contained definitions. The beneficiaries were defined by reference to the persons named in schedule 2. In the draft of 27 February 1986, the persons named were Madam Lim, Elton, Tjoan and Tjoan’s children. Jane was not named. The trustee had the power to add beneficiaries and to exclude persons from benefit under the trust. The Trust Fund was defined so as to include the property specified in schedule 1 and “[a]ll … other property … placed under the control of and accepted by the Trustees as additions to the Trust Fund”. Schedule 1 had the heading “THE INITIAL SETTLED PROPERTY” and the words of Schedule 1 were: “The sum of [left blank] pounds”.

Clause 2 of the draft stated that the trust was established under the laws of Jersey and the construction and effect of the trust should be subject to the exclusive jurisdiction of Jersey. Clause 3 had the heading “DECLARATION OF TRUST OF ORIGINAL AND ADDITIONAL PROPERTY” and the clause declared a trust of the Trust Fund and stated that the Trustees were to be at liberty at any time during the Trust Period to accept any property of whatsoever nature to the intent that the same should be held by or on behalf of the Trustees as an accretion to the Trust Fund. The draft then contained many detailed provisions suitable for a discretionary trust. Clause 32 provided that the trustees were not obliged to make known to any beneficiary that the trust existed or any matters in relation to it. Clause 33 provided that the trustees were not obliged to disclose to any person any document relating to the way in which they exercised their powers or discretions under the trust. Clause 36 referred to the name of the trust but the name was left blank.

The letter of 25 February 1986 to Madam Lim commented on some of the provisions of the draft trust deed sent with that letter. The letter said that Madam Lim was the settlor and the only trustee. A trustee was described as the officer responsible for the administration of the property for the benefit of the beneficiaries. The letter referred to schedule 1 to the draft and left it to Madam Lim to specify “the amount of your gift”. The letter referred to schedule 2 and asked if Madam Lim wished her name to be added. The letter then stated the trust was established on 14 December 1985 and that the deed should be dated with this date; this was on the basis that the contract for the purchase of the property had been by Madam Lim in her capacity as a trustee.

Also on 25 February 1986, Mr Hyde wrote to Jane, enclosing a copy of his letter of that date to Madam Lim. He referred to:

“ … ensuring that the gift of occupation and the trust of the property for the benefit of the named beneficiaries does not give rise to a charge to capital transfer tax either now or in the future on [Madam Lim’s] death.”

It is possible that Mr Hyde’s letter to Jane enclosed a copy of the draft which had been sent to Madam Lim. In any case, Jane remembers being given a copy of a draft trust deed at some point. She thinks that she was given a draft trust deed when she attended a meeting with Mr Hyde on 12 or 13 March 1986 to which I refer below.

On 3 March 1986, Madam Lim replied to Mr Hyde’s letter of 25 February 1986. She referred to a number of matters, as follows:

On 13 March 1986, Mr Hyde replied to Madam Lim’s letter of 3 March 1986. He explained that the trust was drawn as a discretionary trust for tax reasons and that the trust deed should not specify the shares which the beneficiaries were to enjoy. He enclosed a further draft of the trust deed which showed Ping as a second trustee and removed Madam Lim as a name in the list of beneficiaries in Schedule 2. He referred again to Schedule 1 to the draft and stated that Madam Lim should enter the amount of the original gift. The draft bore a word processing date of 12 March 1986 and incorporated the changes described in the covering letter but, apparently, no other changes as compared with the draft of 27 February 1986.

Jane believes that she and Tjoan attended a meeting with Mr Hyde on 12 or 13 March 1986 when he explained the draft trust deed to them and she left the meeting with a copy of a draft dated 12 March 1986 which she thereafter retained.

On 14 March 1986, Mr Hyde wrote to the Land Registry stating that the transfer should be amended to insert Ping’s name in addition to that of Madam Lim. On 18 March 1986, the Land Registry replied to this letter seeking further information. On 20 March 1986, Mr Hyde replied stating that his instructions had changed and the registration was to proceed in the name of Madam Lim alone. There was no evidence as to how the alleged change of instructions came about.

On 1 April 1986, Madam Lim replied to Mr Hyde’s letter of 13 March 1986. She said that she noted the contents of his letter, that she would retain “the Trustee and Settlement File” and would keep him informed of any changes which might be necessary. On 2 April 1986, Mr Hyde wrote to Madam Lim asking her for confirmation that the trust deed had been executed.

On 14 April 1986, Madam Lim wrote to Mr Hyde:

“In respect of the Trust Deed, I enclose herewith the photo-copy which was executed for your retention.”

Madam Lim was obviously referring to a photocopy of the executed trust deed. This photocopy has not been found. Mr Hyde acknowledged receipt on 18 April 1986.

Mr Hyde told me that at some point Madam Lim had collected the documents from his office. If so, this must have been after 18 April 1986 in view of Mr Hyde’s letter of that date to Madam Lim.

It is accepted that Madam Lim and Ping did execute the trust deed sent under cover of the letter of 13 March 1986. The court was shown the original trust deed which was signed (but not sealed) by Madam Lim and by Ping. Madam Lim signed as settlor and again as trustee and both of her signatures were witnessed. Ping signed as trustee; his signature was not witnessed as Mr Hyde’s draft had not provided for Ping’s signature to be witnessed. On the original trust deed, Madam Lim’s signatures were subsequently crossed out. The court was also given a photocopy of the signature page of the trust deed where Madam Lim’s signatures are again crossed out but the form of the crossing out differs from that on the original trust deed.

As I have just described, the document which has been referred to as a trust deed, or deed of trust, was not executed under seal by Madam Lim or by Ping and therefore did not comply with the common law requirements as to the execution of a deed. Those requirements are summarised in Halsbury’s Laws, 4^th ed., vol. 32, Deeds and other Instruments, para. 227 in relation to the period before the coming into force of the Law of Property (Miscellaneous Provisions) Act 1989 on 31 July 1990. However, because the document was described as a trust deed in the contemporaneous documents, I will refer to it in this judgment in the same way, although it was not technically a deed.

In an affidavit sworn on 10 March 1995 in an earlier round of litigation, Jane said that she had at some point seen a copy of a draft trust deed but neither the original nor a copy of an executed trust deed. She also said that in the first six months of 1986, she had asked Tjoan if he knew whether the trust deed had been executed. She said that Tjoan “eventually” told her that Madam Lim had told him that the trust deed had been executed and that it had been deposited with Sinhua Trust Bank in Hong Kong.

Tjoan and Jane separated in around August 1986 on a trial basis and they permanently separated on 4 January 1987. Thereafter, Jane and the children continued to live at the house.

On two or three occasions in the period August to October 1987, Madam Lim sent Jane a cheque for £2,000. Madam Lim wrote to Jane on 15 October 1987 and her letter referred to the October cheque as being for monthly expenses and for the maintenance of the house. Madam Lim stated that a purchaser (Dr Lean) would view the house in a week or so and that the sale price of the house to Dr Lean was to be £1.3 million and that the house was rented to Jane for £2,000 per week and the lease was to expire at the end of December 1987. On 14 October 1987, Madam Lim also wrote to RG referring to an intended sale of the house to Dr Lean. However, nothing further seems to have happened in relation to this suggested sale to Dr Lean.

The facts which I have set out above are essentially all of the facts which are relevant for the purpose of determining the question as to whether Madam Lim did, in or around April 1986, bring into existence a trust of the house on the terms of the deed of trust. From the end of 1987 onwards, as I will later describe, after Tjoan and Jane had separated, Madam Lim had a radical change of attitude to the continued occupation of the house by Jane and her children. However, with one exception, being Madam Lim’s letter of 16 May 1988 (referred to below), the events after the end of 1987 do not have any real bearing on the legal effect of what had happened, in particular in the period up to April 1986. Later in this judgment, I will place Madam Lim’s letter of 16 May 1988 in its proper context but I will summarise it at this stage by saying that by this letter to Mr Gore, she told him that she “would like to cancel the trust dated 14^th December 1985”.

In due course, I will need to make further findings of fact as to the litigation which took place in this jurisdiction and in Singapore from 1988 onwards. However, in order to make this judgment more intelligible, I will at this point deal with the issues which were argued as to the existence of a trust of the house created by the events which took place before the litigation began.

In opening the Claimant’s case, Mr Twigger submitted that the evidence would establish that Madam Lim intended to create a trust of the house on the terms set out in the deed of trust which she executed not later than April 1986. It was then submitted that it was appropriate for the court to order rectification of the executed deed so that Schedule 1 to the deed identified the initial settled property as the house instead of the property being identified by the words: “The sum of pounds”. In closing submissions, Mr Twigger’s primary submission was that the executed deed together with the letter of 14 April 1986 from Madam Lim to Mr Hyde amounted to an effective declaration of trust of the house on the terms of the deed and that the requirements of section 53(1)(b) of the Law of Property Act 1925 were thereby satisfied. Mr Twigger further submitted that, if it were necessary for the court to order rectification in order to bring into existence an effective trust of the house on the terms of the executed deed, then this was a proper case for the court so to order.

Mr Warwick for the Defendant submitted that the Claimants were not able to point to any complete declaration of trust of the house and that the court was not in a position to bring into existence a declaration of trust by making a purported order for rectification. It was submitted that the Claimants did not rely on an oral declaration of trust but instead relied upon the executed deed. However, the executed deed did not create a trust of the house, or any trust, because the essential requirement of identification of the trust property was not satisfied. Further, section 53(1)(b) of the Law of Property Act 1925 was not satisfied and I was invited to find that the letter of 14 April 1986 did not enclose a copy of an executed deed of trust. It was also submitted that the claim to rectification must fail for two overriding reasons, as well as failing on a detailed analysis of the evidence. The first overriding reason was that a trust of land could not be created by an order for rectification and this was a case where, without an order for rectification of schedule 1 to the executed deed, there was no declaration of trust. The second overriding reason was that rectification could not be sought by persons who had given no consideration for the alleged declaration of trust.

I will first consider the matter without addressing the possibility of rectification of Schedule 1 to the signed document.

The deed stated that the trust was established under the laws of Jersey and that the construction and effect of the provisions of the deed were to be subject to such laws. I was not given any evidence as to Jersey law and all of the submissions of counsel proceeded on the basis that Jersey law was identical to English law. Counsel made submissions as to section 53(1)(b) of the Law of Property Act 1925 seemingly on the basis that a similar legislative provision applied in Jersey. I was invited to decide all questions arising in relation to the trust, including whether a trust existed, by reference to the principles of English law. I will therefore proceed on that basis.

Accordingly, it is necessary to identify what is required under English law in order to create a binding declaration of trust and then to consider what is needed to comply with section 53(1)(b) of the Law of Property Act 1925.

The method of creating a trust which is relevant in the present case is an express declaration of trust by the settlor. This method requires there to be a declaration of trust which sufficiently clearly identifies the property which is to be subject to the trust: see Lewin on Trusts, 19^th ed., paras. 3-004 and 3-005. Whether a settlor has made a declaration of trust depends on an objective assessment of the words and conduct of the settlor. The settlor is presumed to intend the consequences of his or her words and actions: see Swiss Bank v Lloyds Bank [1982] AC 584 at 595F – 596A per Buckley LJ.

In the present case, the suggested declaration of trust is a trust of land. Accordingly, any declaration in this case must comply with section 53(1)(b) of the Law of Property Act 1925, which provides:

“A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.”

Section 53(1)(b) does not require that such a declaration of trust must be declared in writing but only that it be “manifested and proved” by writing which satisfies the requirements of the sub-paragraph i.e. “some writing signed by some person who is able to declare such trust or by his will”: see Lewin on Trusts, 19^th ed., paras. 3-012 and 3-013, citing Forster v Hale (1798) 3 Ves. Jr. 696 at 707 per Arden MR, Smith v Matthews (1830) 3 De G.F. & J. 139 and Morton v Tewart (1842) 2 Y. & C.Ch. 67. These cases were discussed in the course of the argument before me. They establish that the signed writing must not only manifest the fact of the trust but also its terms. Forster v Hale is also authority for the proposition that the terms of the trust may be collected from a document which is not signed by the settlor, provided that the document can be clearly connected with, and is referred to in, the document that is signed; and see Lewin at para. 3-016. The ability to read together the signed document with other unsigned documents referred to in the signed document is also established and illustrated by a number of cases concerning the now repealed section 40 of the Law of Property Act 1925: see Timmins v Moreland Street Property Co Ltd [1958] Ch 110 at 130 per Jenkins LJ and Elias v George Sahely & Co [1983] AC 646 at 655 A – D per Lord Scarman.

Applying these legal principles, the first question is whether, considering the matter objectively, Madam Lim declared herself a trustee of the house. The relevant facts appear from the documents in RG’s file which I have summarised above. Those facts show that it was Madam Lim’s expressed wish that she should acquire legal title to the house in her name to provide a home for Tjoan and his children and so that the house would be held by her on the basis of a trust. As at 14 December 1985, there was clarity as to the identity of the intended beneficiaries but not as to the terms of the trust on which the house would be held. The terms of the trust became defined later as a result of advice taken by Mr Hyde which was passed on to Madam Lim and which terms were then expressed in the various drafts of a trust deed, culminating with the draft which had the word processing date of 12 March 1986. Madam Lim executed that draft of the trust deed and sent it to Mr Hyde under cover of her letter of 14 April 1986. On the balance of probabilities, I find that a copy of the trust deed as executed by Madam Lim and by Ping was enclosed with that letter. The letter expressly said that the copy executed deed was enclosed. Mr Hyde received the letter and he did not reply to the effect that the copy deed was not enclosed. There is no evidence that the copy deed was not enclosed with the letter save for the fact that the copy deed is now no longer available. I do not regard that matter as sufficient to rebut the inference that the copy deed was enclosed with the letter as the letter expressly stated.

The letter dated 14 April 1986 was headed “39 Sheldon Avenue London NW6” and referred to the trust deed and the fact that it had been executed. As executed, clause 3 of the trust deed purported to declare a trust of “the Trust Fund” on the terms set out in the deed. The Trust Fund was defined by the deed as follows:

“(i)

The property specified in Schedule 1 hereto;

(ii)

All monies investments or other property paid or transferred by any person or persons to or placed under the control of and accepted by the Trustees as additions to the Trust Fund;

(iii)

The money investments or other property from time to time representing the foregoing or any part or parts thereof;

(iv)

The income arising to the Trust Fund which is accumulated and added to the capital in accordance with the provisions of this Settlement.”

Schedule 1 to the deed contained the following:

“THE INITIAL SETTLED PROPERTY

The sum of pounds”

Clause 3 of the deed provided that the trustees were to be at liberty at any time to accept any property of whatsoever nature and wherever situate from any person or persons to the intent that the same should be held by or on behalf of the trustees as an accretion to the Trust Fund and from and after the date of such acceptance the Trustees should hold the same accordingly.

I consider that what happened in the present case gave rise to a trust of the house. The matter can be analysed in more than one way, but the various analyses produce the same result. I consider that it can properly be said, reading the executed trust deed with the covering letter of 14 April 1986, that Madam Lim identified the house as the intended trust property and thereby declared a trust of that property. Further, it can properly be said that the trustees accepted the house as the Trust Fund.

I recognise that when he drafted the deed, Mr Hyde intended the house to become part of the Trust Fund in a different way. It may be that the expected way of adding the house to the Trust Fund would have been first to create a trust in relation to a modest sum of money and then to add the house to the Trust Fund by the trustees informally accepting that the house was subject to the trust. Alternatively, it may have been appropriate for the trust to be initially constituted in relation to the sum of £837,500 and then for that sum to be invested in the purchase of the house which would then be held on the terms of the trust. Mr Hyde did not adequately explain to Madam Lim how schedule 1 to the deed ought to be completed by her and she did not understand what was expected of her in that respect. Nonetheless, I consider, viewing the matter objectively, that Madam Lim expressed an intention to hold the house on the terms of the trust deed so that it can be said that she made an express declaration of a trust of the house or that the trustees accepted the house on the terms of the trust deed. The only alternative interpretation of Madam Lim’s words and conduct is to say that she executed the deed but with the intention that the deed would be of no effect, by reason of the fact that she had not completed Schedule 1, or at any rate of no effect unless and until she subsequently took some further step such as identifying the sum which was to be included in Schedule 1. I consider that when she executed the deed she intended to create an effective trust of some trust property rather than not create a trust at all; in the absence of any alternative trust property being specified in Schedule 1 to the deed, it is obvious that the intended trust property was the house and only the house.

The terms of the deed require the trust property to be accepted by the trustees. I will consider in due course whether Madam Lim was the sole trustee or whether she and Ping were the trustees. For the present, I will assume that the trustees were Madam Lim and Ping. I have held that Madam Lim expressly declared a trust of the house and/or accepted the house as being held on the terms of the Trust Fund. What is the position in relation to Ping, assuming he was also one of the trustees? On the evidence, it is clear that Ping did what he was asked to do by Madam Lim in relation to this trust. He left the question of the terms of the trust and the identification of the trust property to her. Accordingly, if it were necessary so to hold, I would hold that, by acting through and in accordance with the wishes of Madam Lim, Ping accepted the house as the Trust Fund within the meaning of the deed.

Mr Warwick submitted that I should hold that the above events did not ever reach the stage of Madam Lim committing herself to a declaration of trust of the house. In addition to his careful analysis of the documents to which I have referred, he also relied on two statements made by Mr Hyde in the course of his evidence. Mr Hyde said that Madam Lim was constantly changing her mind and she blew hot and cold throughout. Mr Hyde also said that Madam Lim wanted to retain control of the property.

I am unable to accept that Madam Lim constantly changed her mind. As to Mr Hyde’s comment to that effect, I can judge the extent to which Madam Lim changed her mind by considering the contemporaneous documents. Mr Hyde did not give evidence of any changes of mind which were not revealed by those documents. Indeed, Mr Hyde made it clear he had a limited recollection of the events apart from what was disclosed by the documents. In so far as the documents show changes of mind on her part, those changes did not relate to the underlying intention to create a trust of the house and do not cause me to have any real doubt as to my earlier assessment of her words and conduct in this case.

As to Mr Hyde’s evidence that Madam Lim wished to retain control of the property, I consider what Madam Lim meant by keeping control is revealed by the exchange of letters dated 25 February 1986 and 3 March 1986; Mr Hyde gave his evidence about retaining control by reference to those two letters. The letter of 25 February 1986 referred to Madam Lim retaining ownership and control of the property by being the trustee of the property (rather than retaining beneficial ownership of it). In her letter of 3 March 1986, Madam Lim referred to being “in charge” in the context of having no beneficial ownership of her own in the property. Accordingly, these references in the evidence are not in any way inconsistent with Madam Lim creating a discretionary trust of the house on the terms of the deed of trust.

I next consider the application of section 53(1)(b) of the Law of Property Act 1925. The letter of 14 April 1986 was signed by Madam Lim. She was able to declare the suggested trust in this case as she was the sole owner of the house. The letter referred to the house and to an enclosed copy of a trust deed. The court can receive extrinsic evidence to identify the enclosed trust deed. I have found that the enclosed copy of a trust deed was a copy of the trust deed executed by Madam Lim and Ping. Accordingly, the trust declared by Madam Lim was manifested and proved by the letter of 14 April 1986 taken together with the executed trust deed. Further, the same result can be arrived at by starting with Madam Lim’s letter of 16 May 1988 which she sent to Mr Gore. This letter is signed by Madam Lim and it refers to the house and to a trust dated 14 December 1985. The court can admit evidence to identify the trust dated 14 December 1985, referred to in the letter, as the trust deed executed by Madam Lim and Ping. Although the letter of 16 May 1988 stated that Madam Lim would like to cancel the trust, this statement recognised that the trust existed at the date of the letter and prior to the proposed cancellation.

Accordingly, I conclude that prior to or on the 14 April 1986, Madam Lim declared a trust of the house on the terms of the deed of trust executed by her and by Ping and/or those trustees accepted the house as held on the terms of the trust deed.

If I am right in holding that Madam Lim declared a trust of the house in the way I have described, there is no need for rectification of the deed of trust by inserting a reference to the house in Schedule 1 to the deed of trust. If there is no need to rectify the deed of trust, then the court ought not to make an order for rectification in this case. Nonetheless, I have considered whether I ought to decide the claim to rectification in case I am wrong in my analysis so far. Before deciding whether to do so, I will briefly summarise the arguments put forward on this point.

Mr Twigger submitted that the court had power to rectify a voluntary settlement if the document in question failed to express accurately the subjective intentions of the settlor. Here, on the assumption that there was not a fully effective declaration of trust, the deed failed to give effect to the settlor’s intention to declare a trust of the house. If rectification is ordered, it has retrospective effect. The intended beneficiaries under the intended trust have locus standi to apply for rectification. There was no reason in principle why the court should decline to order rectification where the effect of the rectification would be to convert an ineffective instrument into an effective one. Mr Twigger supported this last proposition by relying on Marley v Rawlings [2015] AC 129 at [53] and [67] a case of rectification of an ineffective will under the Administration of Justice Act 1982, section 20(1)(a) and Re AIB Jersey Trust Ltd [2010] JLR 169. On the facts, it was submitted that the evidence established that Madam Lim had subjectively intended, by signing the trust deed, to create a trust of the house on the terms of that deed.

Mr Warwick contended that none of the matters required for rectification was established on the facts. However, he also put forward two fundamental objections to rectification in this case. The first was that a trust of land could not be created by “rectification” of something which had no legal effect. He distinguished the decision in Marley v Rawlings where the jurisdiction to make the order was conferred by statute. He said that the point of law on which he relies was not raised in Re AIB Jersey Trust Ltd. His second fundamental objection was that volunteers (a fortiori some only of the volunteers) could not seek rectification so as to acquire rights for which they had given no consideration; he cited Lister v Hodgson (1867) LR 4 Eq 34 and Mc Mechan v Warburton [1896] IR 435. Mr Twigger sought to counter these two authorities by citing Thompson v Whitmore (1860) 1 J & H 268.

In case this matter goes further, I think that I ought to find any facts which would be relevant to a claim to rectification if one were possible in law in this case. Later in this judgment, I will consider in more detail the claim put forward by Ping, as the representative of the estate of Madam Lim, for rescission of the trust deed on the ground of mistake. In the course of making those findings, I make the findings which would be relevant to any claim to rectification. I can summarise those findings by saying that on the evidence in this case, Madam Lim did subjectively intend to create a trust of the house on the terms of the trust deed.

The legal points which were argued on this claim to rectification include the two fundamental points raised by Mr Warwick. The authorities cited, in particular, the authorities relating to the possibility of a volunteer applying for rectification are not straightforward. I consider that the resolution of those fundamental points is better left to a case where the court’s views will affect the outcome. That is not the case here and I will therefore not deal with the claim to rectification any further in this judgment.

Mr Warwick raised a defence of laches to the claim to rectification. If it were necessary to deal with this point, I would not have upheld that defence. As I will later explain, it was only in June 2010 that Jane found a copy of the page of the trust deed with signatures on it. She only obtained a copy of the complete signed trust deed in August 2012. It was only then that she and the children could see that schedule 1 had not been completed. There was no delay thereafter before the children sought to rely on the signed trust deed and to claim rectification. Although Madam Lim has died, that was on 8 August 2009 and it cannot be said that there has been the death of a relevant witness during a relevant period of delay.

Ping has made a Counterclaim in which he seeks an order declaring that if there had been a trust in this case then the trust was revoked by Madam Lim, alternatively an order rescinding the trust. Madam Lim’s right to revoke the trust or the court’s power to rescind the trust is said to arise because Madam Lim allegedly made a mistake when she created this trust. The Counterclaim was made by way of an amendment to Ping’s pleadings during the trial but the allegations in the Counterclaim built upon matters which had previously been pleaded in the Defence and the Claimants did not oppose an amendment to introduce the Counterclaim.

What is pleaded is that when Madam Lim created the trust she mistakenly believed that the arrangement which she was creating was terminable like a will during the lifetime of the testator and so she did not intend to create an irrevocable trust. I will first consider what evidence there is as to the alleged mistake by Madam Lim.

Madam Lim is no longer available to give oral evidence. Although she had been involved in extensive litigation in this jurisdiction since 1988, she only once swore an affidavit or made a witness statement in that litigation; she swore an affidavit in the proceedings in the Family Division on 26 January 2004. In that affidavit, she did not say that she executed the trust deed as a result of a mistake as to its effect.

Madam Lim gave sworn oral evidence in litigation between herself and Jane in Singapore. In that evidence, she said that she consulted her lawyer in Singapore, a Mr Tan, about the draft trust deed. She said that Mr Tan told her that the deed of trust when executed would be irrevocable and that it would be better for her to make a will. She said that she then decided not to sign the draft trust deed and she did not do so. The courts dealing with the Singapore litigation accepted her evidence that she had not signed the draft trust deed. However, the evidence before me shows that she had signed the trust deed. That means that her evidence in Singapore was not correct. Indeed, later in this judgment, I find that her evidence in Singapore in this respect was a deliberate lie. What then am I to make of her evidence in Singapore that she was advised by Mr Tan that the trust deed when executed would be irrevocable? Mr Twigger submits that this evidence negates the case that Madam Lim mistakenly thought that the trust was revocable or like a will. I do not consider that I can give any credence either way to Madam Lim’s evidence in Singapore on this point. The evidence as to the conversation with Mr Tan was put forward as an explanation in support of her lie that she had not signed the trust deed. It is just as likely to be made up as her evidence that she had not signed the document. I cannot rely on it. However, what I have to consider is whether there is evidence to support the contention now put forward that when Madam Lim signed the trust deed, she believed it was revocable, just like a will. It cannot be said that any of the oral evidence which Madam Lim gave in Singapore provides any support for that contention.

Ping gave evidence in support of the contention that Madam Lim made a relevant mistake when she executed the deed of trust. When he gave his evidence, Ping had no difficulty understanding and speaking English. In the early 1980s, he had studied at Southampton University and had been awarded a postgraduate diploma in management studies so he would have been reasonably fluent in English at that time, and since. He said in his witness statement that Madam Lim’s ability to read or write English was extremely limited and that her understanding of spoken English was quite limited. He explained that his recollection of events about the purchase of the house was distant and limited; he said he had a peripheral involvement in that. He had no recollection of signing the deed of trust. He then stated that he did recall Madam Lim showing him a draft of the trust deed and she asked him to explain it to her. He looked at the draft and thought that the effect was that Madam Lim retained sole ownership of “the Property” but when she died the property passed to Elton, Tjoan and Tjoan’s 3 children, as under a will. He said he also thought that if Madam Lim changed her mind in relation to the deed of trust “she would be free to do so and that it would no longer be valid”. He said he communicated his understanding to her but he did not recall the words he used. Earlier in his witness statement, Ping had defined “the Property” as referring to the house so, on his evidence, he and his mother were in no doubt that the draft deed of trust related to the house.

When cross-examined, Ping provided further information about Madam Lim’s use of English in connection, in particular, with business or legal documents. Madam Lim had a small business investing in property in Singapore and she had an office and staff to assist her in her business. When she received documents written in English, her practice was to ask someone in her office to translate them for her. If a reply was needed, she would dictate a reply which would be translated into English and she would sign the reply. It is worth considering the relevance of that evidence to the correspondence between Mr Hyde and Madam Lim in 1986. Ping confirmed that Madam Lim had not asked him to assist her in any way when dealing with that correspondence. This indicates that Madam Lim would have asked someone in her office to translate Mr Hyde’s letters for her. She would then have dictated a reply and the reply would be translated into English, signed by her and sent to Mr Hyde. Madam Lim wrote a number of letters to Mr Hyde, in particular the letters dated 6 January, 3 March, 1 April and 14 April, all in 1986. Those letters refer to a trust and to beneficiaries. The above explanation of how the letters were written would suggest that Madam Lim understood the basics of what was involved in a trust with beneficiaries. It is also relevant to comment that the documents in this case which relate to disputes and other matters in Singapore show that the law in Singapore has concepts as to the existence of a trust which are essentially similar to those of English law. The same applies to the concept of a will in Singapore law.

Ping was cross-examined in detail about the evidence in his witness statement as to the suggested explanation he had given to Madam Lim when he told her that the trust deed was like a will. It seems to me to be surprising that Ping would have any recollection of this conversation when he was unable to recall anything else about the detail of the matter at the time. Indeed, when cross-examined, Ping was unable to provide any real detail about the conversation, or he gave different versions of it. In one version, he was asked by Madam Lim to “translate” the draft trust deed; in another version he was asked to explain it to her. It was also not clear why Madam Lim would want Ping to explain the document to her; he made it clear that he had no particular skill or experience, and certainly none which was superior to hers, to enable him to be of any use in that respect. I also find it unlikely that Ping would after reading the document for a few minutes have said that the document was like a will. There was nothing in the document to suggest that. For these reasons, I find that the alleged conversation never took place.

Ping had suggested in his witness statement that he communicated to his mother his understanding that Madam Lim would be free to change her mind in relation to the document. When cross-examined, he explained that what he meant was that, because the document was only a draft, if she did not sign it she would not be bound by it. That explanation does not suggest that he thought, or that he explained to her, that she could sign the document and then later revoke it.

Mr Warwick submitted that even if I could not accept Ping’s evidence about Madam Lim’s state of mind, I should infer that she at all times believed that she was entitled to revoke the trust. He relied on the evidence as to her desire to retain control, on the proposed sale to Dr Lean, on her letter of 16 May 1988 and the fact that in litigation in this jurisdiction, counsel instructed on behalf of Madam Lim pleaded a claim (on 12 April 1990) seeking an order that the trust be revoked because Madam Lim had not intended to create a trust of the kind pleaded in that other litigation “or at all”.

As to Madam Lim’s desire to retain control, I have already found that her idea of retaining control was not in any way inconsistent with her creating a discretionary trust of the house on the terms of the deed of trust. I further find that retaining control did not amount to her having a right to revoke the trust so created. As to the proposed sale to Dr Lean, I am not able to assess whether she ever genuinely intended to sell to Dr Lean. Her suggestion of a sale may have been to try to manoeuvre Jane into agreeing that she was only a tenant of the house and the tenancy would expire at the end of December 1987. Whatever Madam Lim was trying to achieve at that time, I do not think that it throws any light on her intentions when she signed the trust deed. Between signing the trust deed and the suggested sale to Dr Lean, Tjoan and Jane had separated. This fact obviously changed Madam Lim’s attitude to Jane and the children. Her suggested sale to Dr Lean probably shows that she regretted having created a trust and she wished that she could get out of what she had done. However, I do not think the suggestion of a sale would allow me to infer that when she signed the trust deed, she actually believed that the trust was revocable. Her letter of 16 May 1988 can be readily explained in the same way; I do not infer from that letter that she actually believed in April 1986 that the trust was revocable. The pleading of 12 April 1990 does not support any inference as to Madam Lim’s state of mind in April 1986. In any case, the principal purpose of the pleading was to assert that Madam Lim did not intend to create a trust in favour of Tjoan or Jane “in the manner pleaded” i.e. pleaded by Jane in those proceedings. The trust pleaded by Jane in those proceedings was completely different from the trust created by the signed deed of trust. I acknowledge that the pleading also said that Madam Lim did not intend to create a trust in the manner pleaded “or at all”. The inclusion of those words is not much from which to infer what Madam Lim’s instructions were to her lawyers in 1990. In any case, Madam Lim told lies about her intentions in the Singapore proceedings and I can have no confidence in the truth of anything she told her English lawyers, even if I knew what it was.

Having rejected Ping’s evidence about the alleged explanation of the document, there is simply no evidence that Madam Lim thought that the draft trust deed was like a will or that it was revocable by her. On the contrary, based on the correspondence between Mr Hyde and Madam Lim, I find that Madam Lim subjectively understood that:

On these findings of fact, Madam Lim did not make any relevant mistake. It follows that her estate is not entitled to a declaration that the trust was revoked nor is it entitled to seek rescission of the trust. Even if there had been a mistake, I do not see how it could be said that Madam Lim was entitled unilaterally to revoke the trust, out of court. If I had held that there was a mistake of some kind, it would then be necessary to consider the principles established in Pitt v Holt [2013] 2 AC 108, in particular at [126], as to when equity will be prepared to rescind a trust by reason of a relevant mistake. However, on my findings, none of this arises and I can see no benefit in discussing how those principles might be applied if the facts were different.

My conclusions so far give rise to a number of incidental matters which I will now address.

Madam Lim was a trustee from the execution of the trust until her death. During that period, the trust property was vested in her and she made herself a trustee of it by signing the deed of trust.

I also find that Ping became a trustee by signing the deed of trust and thereby he accepted the office of a trustee on the terms of the trust deed: see Lewin on Trusts, 19^th ed., para 12-023. He was a trustee even though the trust property had not been vested him. There is no principle to the effect that a person can only assume the office of trustee when the trust property is vested in him: see the facts of T Choithram SA v Pagarani [2001] 1 WLR 1.

On Madam Lim’s death, Ping became the sole surviving trustee. Even if Madam Lim had been the sole trustee before her death, the trusteeship would then have devolved to him as her personal representative.

From the inception of the trust until the house was sold, the house was trust property. When the house was sold in 2006, the house ceased to be trust property and the proceeds of sale became trust property. There was no evidence before me as to what has become of the proceeds of sale since 2006.

The trust is a discretionary trust. The three children are named in Schedule 2 to the deed of trust as within the class of beneficiaries for the purposes of the trust. The other named beneficiaries are Tjoan and Elton. The trustees are given certain powers by the trust. These include power:

Clause 20(a) of the deed of trust provides that the trustees shall exercise the powers and discretions vested in them as they shall think most expedient for the benefit of all or any of the persons actually or prospectively interested under the trust and may exercise (or refrain from exercising) any power or discretion for the benefit of any one or more of them without being obliged to consider the interests of the other or others. Subject to clause 20(a), every discretion vested in the trustees is absolute and uncontrolled and every power vested in them is exercisable at their absolute and uncontrolled discretion and the trustees have the same discretion in deciding whether or not to exercise any such power: see clause 20(b).

Being a discretionary trust, the trust did not confer on any beneficiary any right to go into, or remain in, possession or occupation of the house. The trustees had a power to grant a tenancy or licence of the house to any person for such consideration as the trustees should think fit. The reference to “any person” would include, but was not confined to, a beneficiary under the trust. Further, the trustees had a power to permit a beneficiary to reside in the house on such conditions as to the payment of rent, rates, taxes and other expenses and outgoings and as to insurance repair and decoration and for such period and generally upon such terms as the trustees in their absolute discretion should think fit.

On the facts of this case, Madam Lim allowed Tjoan and his family to go into possession or occupation of the house immediately after completion on 6 January 1986 and before the discretionary trust was created in around April 1986. There was no real evidence as to any express terms applicable to that possession or occupation. In the absence of any express terms, the implication would be that there was a gratuitous licence to occupy the house. There is scope for argument as to who the licensee was. It may have been Tjoan alone. That is more likely than the licensee being Tjoan and Jane given the clear and known intention before completion that Jane was not to be a beneficiary under whatever trust was contemplated at that point. Further, it is more natural to think of Tjoan alone as the licensee rather than holding that there was a joint licence to Tjoan and the three children. As to the duration of the licence, the position would appear to be either that the licence was terminable on reasonable notice or it was terminable forthwith but with the occupiers having a reasonable period of time within which to make arrangements to leave the property. When Madam Lim created the discretionary trust in around April 1986, then the trustees continued to permit the previous state of affairs to continue. As the trustees had power to grant a licence of the house to any person and a right to permit a beneficiary to reside in the house on such terms as they thought fit, it is likely that the position remained that Tjoan continued as a licensee or permitted resident on a terminable basis or that Tjoan and the three children were permitted residents on a terminable basis. The licensees or permitted residents were able to allow Jane to occupy the house with them.

As to the trustees’ discretions under the trust, a named beneficiary has a hope that the trustees’ discretions might be exercised in that beneficiary’s favour. In addition, a beneficiary has the right to ask the court to ensure, directly or indirectly, that the trustees’ duties are carried out. This right means that the beneficiary’s hope of a discretion being exercised in his favour is more than “a mere hope”. The trustees must consider how and when to exercise their discretions. They must act within the scope of their powers, they must act honestly and in good faith, they must act impartially, they must direct themselves correctly as to the issue before them, they must take into account relevant matters and leave out of account irrelevant matters, the decision they make must be open to a reasonable body of trustees and they must not act for an ulterior purpose. More generally, discretionary trustees are fiduciaries just like other types of trustee.

Tjoan was a named beneficiary under the trust but Jane never was. There was discussion in the course of argument as to the extent to which a named beneficiary under a discretionary trust can effect an assignment of any right or interest. The question is not a straightforward one. Mr Twigger cited the following passage from Lewin on Trusts, 19^th ed. at 33-010 – 33-012 and there was no contrary argument from Mr Warwick:

“Discretionary trusts and powers

33-010

The general principle concerning expectancies and future property applies in relation to discretionary trusts and powers, though with greater complication and with some qualifications.

Assignment for value

33-011

An assignment for value of money or property to which a beneficiary may become entitled in the future upon the exercise or operation of a power or discretionary trust exercisable or operative in favour or for the benefit of, among others, the beneficiary, is effective to vest in the assignee any right to the money or property to which the beneficiary becomes so entitled upon a valid exercise or operation of the power or discretionary trust in his favour or for his benefit [a footnote refers to Re Coleman (1888) 39 Ch D 443]. In connection with assignments of this nature, three questions arise:

(1)

Upon what does the assignment operate? The assignment operates on nothing other than the money or property, if any, which is paid or delivered, or appropriated for payment or delivery to the beneficiary concerned. Accordingly, the assignment would not operate on an application under the power or discretionary trust of money or property for the benefit of the beneficiary if the application was of such a character as not to vest any transmissible interest in that money or property in the beneficiary who has made the assignment. …

(2)

How does the assignment affect the relationship between the trustees and the assignee as regards money or property validly appropriated upon an exercise of the power or operation of the discretionary trust concerned, and caught by the assignment, if the trustees have notice of the assignment? The trustees’ duty is to pay the money or property so validly appropriated to the assignee and not to the beneficiary who is unable, because of the assignment, to give a valid discharge to the trustees.

(3)

Can the assignment have an effect on the validity of the exercise of the power or operation of the discretionary trust concerned in favour or for the benefit of the beneficiary who has made the assignment? In our view, the answer to this question is yes, if the effect of the exercise of the power would be to benefit the assignee and not the beneficiary (or any other member of the class of objects of the power or trust) and that was the trustees’ purpose in exercising or operating the power or trust in that way, since the exercise of the power would be tainted as a fraud on the power. In such a case, the assignment will fail, not because the assignment is invalid, but because the exercise or operation of the power or trust is void by reason of the fraud on the power and so creates no interest upon which the assignment can operate. But there will be no fraud on the power if the exercise of the power can be justified as being for the benefit of the beneficiary (or another object of the power or trust), despite the assignment. That may be so, for instance, if the assignment for value is to the trustees of another trust which is primarily for the benefit of the beneficiary making the assignment, or to a company which at the time of the exercise of the power or operation of the trust is substantially beneficially owned by that beneficiary. Another example where no fraud on the power would be involved would be where the assignment for value consists of a charge on the discretionary interest of a beneficiary to secure debts due from the beneficiary to the assignee, and the trustees’ purpose in exercising or operating the power or trust in favour of the beneficiary is to benefit the beneficiary by providing funds to relieve the beneficiary from the burden of debts which he otherwise could and would have to meet from some other source.

Voluntary assignment

33-012

A voluntary assignment of property which may be appointed, appropriated or distributed to an object of a power or discretionary trust in the future will be ineffective, because the assignment is not made for value. Further, although objects of discretionary trusts and fiduciary powers have rights to due consideration, those rights are not in themselves transmissible and cannot be assigned, [a footnote refers to Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 at [40]] unless the terms of the settlement otherwise provide, or unless, in the case of a discretionary trust with a closed class of objects all of whom are of full age and capacity, all the beneficiaries join together to make an assignment of the collective interest of them all.”

Applying these statements of principle to the position of Tjoan and Jane, the position is as follows:

Having considered the possibilities of some form of assignment by Tjoan to Jane, it is next necessary to consider the effect, if any, of certain agreements made by Tjoan and Jane in relation to the house.

On 28 March 1988, Tjoan agreed that he would settle Jane’s claim to financial relief by transferring to her “the property, 39 Sheldon Avenue …”. On 11 September 1989, Tjoan wrote to the solicitors then acting for Jane stating that he wished to have this agreement of March 1988 recorded in a court order. In November 1989, Tjoan signed a draft consent order in the matrimonial proceedings. The draft consent order was expressed to be in full and final settlement of all claims beween Tjoan and Jane. The draft consent order provided, so far as material:

“BY CONSENT IT IS ordered that:

1.

Subject to the decree nisi being made absolute herein

(a)

…

(b)

[Tjoan] do transfer and release to [Jane] all and any interest of his in and to [the house].”

I consider that the agreement contained in the draft consent order must be taken to have replaced the earlier agreement of 28 March 1988. The draft consent order was expressed to be conditional upon the decree nisi being made absolute. The earlier agreement was not so expressed, although it is possible that such a condition was implicit. Further, the earlier agreement and the draft consent order contained different terms of settlement. It must have been intended that the later terms would prevail over the former.

A decree nisi was made on 11 April 1989 but it has never been made absolute. Accordingly, if the draft consent order were regarded as a contract binding on Tjoan, notwithstanding the fact that it has never been made an order of the court, then the obligation on Tjoan to transfer any interest he had in the property remained conditional on the decree being made absolute. Further, if the obligation to transfer were to become unconditional, and although the order contemplated some further step by way of a transfer, it could be said that the obligation to transfer would have effect in equity.

The agreement of 28 March 1988 and the draft consent order referred to Tjoan transferring to Jane either the house or his interest in the house. Those agreements were entered into at a time when Jane was contending that Tjoan had a beneficial interest in the house. Jane does not make that claim in the present proceedings; she accepts that at all material times, the only trust of the house was the discretionary trust under which Tjoan could not be said to have a beneficial interest, or indeed any interest, in the house (apart from a revocable gratuitous licence – if that could be called an interest). However Tjoan was a named beneficiary under the discretionary trust. Should the agreement of 28 March 1988 (before it was replaced by the draft consent order), and the draft consent order, be construed so as to be effective as an assignment of the kind referred to in paragraph 107 (5) above? I consider that Jane has a respectable argument for saying that the agreement and the draft order should be so construed; she could rely on the principle of partial performance as stated in the judgment of the Court of Appeal in Thames Guaranty v Campbell [1985] QB 210 at 235A-D and see, also, First National Securities Ltd v Hegarty [1985] QB 850, in particular at 854B-D. The facts of those cases involved a much more straightforward application of that principle than do the facts of the present case but, nonetheless, I conclude that Jane would have had a respectable argument, with reasonable prospects of success, for invoking that principle. However, as already explained, even if the agreement and/or the draft consent order were capable of having that effect, that would not be of much practical benefit to Jane unless and until the trustees exercised their discretion to confer a benefit on Tjoan. Further, it would not be straightforward for the trustees to confer a benefit on Tjoan after they became aware that any such benefit would not be retained by Tjoan but would pass to Jane, who was not a named beneficiary. They could really only act in that way if they were able to conclude that the benefit which passed to Jane would confer a benefit on Tjoan because it would enable him to comply with his agreement to settle the financial relief claim.

The result of the foregoing is that the house was held on the terms of the deed of trust from around April 1986 until it was sold in 2006. Thereafter, the proceeds of sale were held on the terms of that trust. The trust was a discretionary trust and the trust property was at all times in the hands of the trustees, or one of them. While the trust property was the house, Tjoan had a gratuitous revocable licence permitting him to occupy the house. In relation to the period since the proceeds of sale became trust property, there is (at present) no evidence of the trustees exercising any discretion under the discretionary trust to pay any part of those proceeds to a named beneficiary. The named beneficiaries were and remain Tjoan, Elton and the three children. Jane has never been a named beneficiary notwithstanding the arrangements she made with Tjoan in 1988 and 1989 as described above.

Thus far, I have dealt with questions as to the existence of a discretionary trust and the identity of the trustees, the identity of the trust property and the terms of the trust. However, I next have to consider whether I should now make declarations to give effect to my findings so that those declarations will govern the relationships of the relevant parties or whether there is some reason why I should not do so. It is argued on behalf of Ping that declarations to give effect to my findings would conflict in some way with earlier determinations by the courts in this jurisdiction. It is also said that these proceedings by the children to obtain declarations in their favour are an abuse of process because of what did or did not happen in those earlier proceedings. It could be said that it is an odd thing for a court to decide an issue and then to consider whether it is an abuse of process for a party to ask the court to decide the issue. However, an issue or issues as to the trust in this case were ordered to be tried by Mr Registrar Baister on 30 October 2012 and by Mr Robin Knowles QC (sitting as a Deputy High Court Judge) (now Knowles J) on 22 May 2013. A somewhat similar procedural position arose at first instance in Meretz Investments NV v ACP Ltd [2007] Ch 197 (see at [201] - [203]) where the judge dealt with the abuse of process arguments first before addressing the substantive issues. No one asked me to take that course here and both sides addressed me first on the issues as to the trust. I have accordingly dealt with those issues first in this judgment.

At this point, I will identify certain court orders which are said to be relevant. Indeed, the Claimants have applied in these proceedings for these orders to be set aside on the ground that they were obtained by fraud. The orders are:

The Rich Order, the Collier Order and the Coleridge Order all concerned the question of possession of the house. In fact, that order took effect; Jane left the house in December 2005 and the children gave up possession of the house on or before 1 February 2006. Thereafter the house was sold and ceased to be trust property; instead the proceeds of sale became the trust property. Setting aside the order for possession will not have any practical effect so far as the house is concerned. However, Jane wishes to have the Rich Order set aside as it included orders for mesne profits and for costs against her.

As to the Collier Order, it made a conditional declaration as to Jane having no beneficial interest in the house. The condition was later satisfied although in the event the Collier Order’s conditional declaration was replaced by the declaration in the Coleridge Order. On my findings, that declaration was justified. However, the Collier Order reserved the position as to costs and the Coleridge Order ordered Jane to pay Madam Lim’s costs. Accordingly, Jane wishes to have the Coleridge Order, and also the Collier Order, set aside.

As to the order giving permission to issue a writ of possession, Master Bowles made an order for costs against Jane and she wishes to have that order set aside. She also asks for the writ of possession to be set aside although it would not seem that setting it aside at this stage would have any practical consequences. As to the mesne profits order, that order plainly adversely affects Jane and she wishes that to be set aside also.

If I were to set aside some or all of these orders, my decision to do so would have a bearing on the arguments as to whether the children’s claim for declaratory relief, as to the position under the discretionary trust, would be affected. Accordingly, I will first consider whether I should set aside all, or some, of these orders before I consider what course to take in relation to the arguments as to abuse of process.

By 1987, Tjoan and Jane had finally separated and it appeared that their marriage had broken down. After Tjoan left, Jane and the children continued to live in the house. Jane had every reason to feel insecure as to her continued occupation of the house. First, she could expect Madam Lim to take a different attitude to the occupation of the house now that Tjoan had moved out. Secondly, Madam Lim’s letter to her in October 1987 suggested that Madam Lim was going to seek to recover possession of the house at the end of 1987.

Just before, or around this time, Jane sought advice as to her position. She consulted a Mr Oppler of RG and she then consulted a Mr Negas-Fancey, who it seems was a business consultant with some legal experience also. She showed both of them her copy of the draft trust deed. Her evidence as to what they told her was rather limited. When she consulted Mr Oppler she told me that she believed that the trust deed had been signed. The advice she received referred to the fact that Tjoan was a named beneficiary, whereas she was not, although she was not an excluded person (the trust deed allowed the trustees to include persons who were not named beneficiaries providing they were not excluded persons).

I will make two general points at this stage. The first is that, from time to time, Jane was given certain information by Tjoan about whether the trust deed had been executed. However, Tjoan was an unreliable source of information. Sometimes he supported Jane and other times he joined Madam Lim in opposing Jane. I also find that Jane knew that Tjoan was an unreliable source of information.

The second general point is that it is not easy to form a confident assessment of what Jane’s attitude was to the draft deed of trust. In all of the earlier litigation, it was Jane’s case that she and/or Tjoan had a beneficial interest in the house. That case was very different from the house being subject to a discretionary trust and, moreover, a discretionary trust where Jane was not a named beneficiary. I could see the possibility that Jane might have thought that a discretionary trust was nowhere near as helpful to her as her case that she and/or Tjoan had a beneficial interest in the house. It is even conceivable that Jane might have been advised that it was a good thing that Madam Lim had not executed the trust deed. If that advice had been given, it might have led Jane to want to advance the positive case that the trust deed had no effect. Notwithstanding these possibilities, I do not conclude that Jane wanted to promote the case that the trust deed had not been executed. I consider that Jane (and the children to the extent that they were involved from time to time) would have been interested in relying on the trust deed if she or they had thought that it had been executed. I say that because she (and later the children) always referred to the trust deed coupled with the statement that she (and they) simply did not know if it had been executed. That stance is inconsistent with the idea that Jane thought it was in her interests to promote the case that the trust deed had not been executed.

Jane spoke to Tjoan in early 1988 and Tjoan told her that Madam Lim wished to sell the house to raise funds for a particular project. Jane’s evidence was that Tjoan then told her that the trust deed had not been executed by Madam Lim. This evidence was not challenged in cross-examination.

Jane then consulted other solicitors, Wright Webb & Syrett (“WWS”). In February 1988, WWS on behalf of Jane sought to register at HM Land Registry a charge under the Matrimonial Homes Act 1983 in relation to the registered title to the house. On 26 February 1988, the Land Registry wrote to WWS stating that Tjoan was not the registered proprietor of the house and asked various questions as to the persons who had a beneficial interest in the house. On 3 March 1988, WWS replied stating that to the best of Jane’s knowledge and belief, the house was bought for the specific purpose of providing a matrimonial home and that the beneficial interest in the house belonged to Jane and Tjoan together, or to Tjoan alone.

On 22 March 1988, Jane filed a petition for divorce. Her proposed arrangements in relation to the children referred to them remaining in the house as the family home until they completed their education.

On 28 March 1988, Jane wrote to Tjoan proposing terms of settlement of her matrimonial financial claims against Tjoan. Tjoan counter-signed the letter to indicate his acceptance of the proposed terms. One term of this agreement was that Tjoan would transfer the house free of mortgage to Jane.

On 5 May 1988, Jane issued proceedings in the Chancery Division against Madam Lim. In her Statement of Claim, Jane pleaded that Madam Lim held the house on trust for the benefit of Jane, amongst others. The trust was said to have arisen by reason of assurances given by Madam Lim to Jane around the time the house was purchased. Jane did not specifically rely upon the deed of trust referred to above. This claim was never served on Madam Lim. Having issued this claim, WWS on behalf of Jane applied to the Land Registry on 5 May 1988 to register a caution against the registered title to the house. In the application, Jane relied upon an alleged trust of the house and stated that she had commenced proceedings seeking relief in relation to such trust.

On 11 May 1988, Gamlens who were the solicitors acting for Tjoan in connection with the divorce proceedings wrote to Mr Gore of RG making enquiries as to the title to the house. Gamlens stated that they believed there was some trust deed in force and asked for details for the purpose of conducting negotiations with Jane. On 13 May 1988, Mr Gore replied to Gamlens stating that he was unable to provide information without prior instructions from Madam Lim.

On 14 May 1988, the Land Registry wrote to Madam Lim at RG’s address informing her that a caution had been left for registration by WWS on behalf of Jane. The land certificate in relation to the registered title to the house showed that the caution had been registered on 9 May 1988.

It is to be presumed that Madam Lim became aware of the caution registered by Jane because on 16 May 1988, Madam Lim wrote to Mr Gore as follows:

“39 Sheldon Avenue

I refer to the above matter.

I would like to cancel the trust dated 14^th December 1985 created for the following beneficiaries:-

i)

Ong Keng Tong

ii)

Ong Siauw Tjoan

iii)

Alexander Francis Tjoan Zhung Zheng Ong

iv)

Nicholas William Ping Zhung Hurn Ong

v)

Jordana Jane Whoey Ling Ong

Please note that the cancellation will take immediate effect upon receipt of this letter.

Your kind attention and prompt action to the above would be much appreciated.”

This letter is significant as to Madam Lim’s state of mind and position at that time. First, the letter is consistent with her belief that she had previously created a trust. Secondly, she obviously had the original, or a copy of, the trust deed because she was able to give the date of the document and she set out the full names of the beneficiaries; the obvious source for this information is the trust deed itself. Thirdly, she must have thought that there was some point in writing the letter so that she must have thought that she might be able to cancel the trust but I do not think that I could go so far as to hold that she believed that she was entitled to cancel the trust. Fourthly, she plainly wished to cancel the trust so that she could act without regard to its terms; she plainly wished to assert she was the unencumbered beneficial owner of the house.

On 17 May 1988, Gamlens on behalf of Tjoan wrote again to Mr Gore asking him to obtain Madam Lim’s instructions as to the legal and beneficial ownership of the house. On 19 May 1988, Mr Gore wrote to Madam Lim, seeking instructions.

On 23 May 1988, Mr Gore wrote again to Madam Lim stating that he had just received her letter of 16 May 1988. He referred to there having been a draft deed of trust and his understanding that Madam Lim had executed a different form of trust under a different jurisdiction. He said that his firm was not holding any original trust deed. He also said that his firm had told the solicitors for Tjoan and for Jane that his firm was not in a position to disclose information to them. It is not necessary to speculate as to what Mr Gore was thinking when he referred to different forms of trust; he had not been involved with the matter in the earlier period as Madam Lim had dealt with Mr Hyde. However, his letter may have been helpful to Madam Lim in that it told her that his firm did not have an original trust deed and the letter also indicated that his firm did not have any copy of any executed deed. The letter also told her that his firm was not giving information to Tjoan or Jane. The latter statement was not correct because Mr Gore, despite what he said to Madam Lim, was keeping Jane informed to some extent of these communications. The information in the letter may have brought home to Madam Lim that Jane would not be able to show that Madam Lim had executed the deed of trust.

On 1 June 1988, Jane wrote to Tjoan and to Madam Lim stating that she was prepared to settle her financial claims on terms which included the transfer of the house by Madam Lim to her.

On 2 June 1988, Madam Lim instructed RG to give Jane two months’ notice to quit the house; she added that legal action would be taken if Jane did not comply with such a notice. On 7 June 1988, Mr Gore declined to act for Madam Lim in view of a perceived conflict of interest. On 9 June 1988, Madam Lim asked Mr Gore to send back the original title deeds to the house. It appears that RG had retained the original land certificate. On 17 June 1988, Mr Gore sent the title deeds to Madam Lim.

By 21 July 1988, Madam Lim had instructed the firm of Gamlens (the solicitors already instructed by Tjoan) to act for her in connection with proposed proceedings for possession against Jane.

On 28 July 1988, a firm of Singapore solicitors wrote to Gamlens. They stated that they were acting for both Madam Lim and Tjoan in connection with Jane’s matrimonial proceedings. The letter stated that Madam Lim and Tjoan had given them the following instructions:

This letter throws more light on Madam Lim’s state of mind and position. The letter referred to her instructing agents and to her alleged use of the property in order to support her statement that she had bought the house as her investment. The facts about the agents were not accurate and I was not shown any evidence to suggest that the facts about Madam Lim’s use of the house were correctly stated. The letter stated that she had bought the house as her investment and Tjoan and the children were there on a temporary basis. In view of my earlier findings of fact, these statements were untrue. There may be room for discussion as to what trust she was referring to when she instructed her lawyers that: “the Trust does not exist”. By that time, Jane had asserted a trust under which she and Tjoan were the beneficial owners of the house. On my findings, there was no such trust. On that basis, she could properly deny the existence of a trust of that kind. However, she did not suggest that a trust of a different kind did exist and the earlier statements about the house being an investment showed that she was denying the existence of any trust. She may have thought that she could say “the trust does not exist” because it seemed to her that she had the only copy of the executed trust and Jane would not be able to demonstrate that the draft trust deed had ever been executed. There was no evidence that Madam Lim had been advised that the signed deed of trust was ineffective because Schedule 1 was left blank so that I do not think that I can infer, at this point, that that argument was what led Madam Lim to say that the trust did not exist.

On 1 August 1988, Madam Lim wrote to RG referring to her efforts to regain possession of “my house in Sheldon”. On 11 August 1988, RG passed to Gamlens its conveyancing file in relation to the house.

By February 1989, Jane had instructed Brafman Morris (“BM”) as solicitors, in place of WWS. On 22 February 1989, BM wrote to Gamlens (acting for Tjoan) stating that the house was held on trust for Tjoan and Jane. On 7 March 1989, BM wrote to Madam Lim with a draft amended Statement of Claim in the Chancery proceedings which had been issued on 5 May 1988. The amended pleading set out the basis for the claim to a trust. It was alleged that there was an express agreement that the property would be, initially, held on trust for Tjoan and Jane, and then later transferred to them. No reliance of any kind was placed on the deed of trust which was not even mentioned in the pleading.

Before instructing BM, Jane became aware that Tjoan was entitled to a share in his father’s estate. In the early part of 1989, Jane seems to have become aware that it might be open to her to argue that the house was purchased with money belonging to Tjoan. The suggestion was that the money used to purchase the house was part of his entitlement from his father’s estate. The arguable result of that would have been that Tjoan was always the sole beneficial owner of the house.

A decree nisi was pronounced in the divorce proceedings on 11 April 1989.

On 19 April 1989, Jane swore an affidavit in support of her claim for ancillary relief in the divorce proceedings. In her affidavit, she put forward the allegation that the funds used by Madam Lim to purchase the house were funds held by her on behalf of Tjoan; Jane was therefore saying that the house was bought with Tjoan’s money.

By June 1989, Madam Lim had instructed Norton Rose (“NR”) in place of Gamlens, who continued to represent Tjoan. NR were instructed by Singapore lawyers acting for Madam Lim. The solicitor at NR handling the case was Mr Simon Moore. On 7 June 1989, NR wrote to RG an important letter. Although Mr Gore later showed this letter to Jane, it is clear that NR thought they were writing in confidence to the former solicitors for Madam Lim and it would not have occurred to them that what they were saying would have gone to the opposing party, Jane. NR wanted to obtain further information from RG. In this letter, NR referred to RG’s conveyancing file which Gamlens had passed on to NR. NR also stated that they had also been sent (i.e. not within the RG file):

“ … a trust deed dated 14 December 1985 executed by Madam Lim as well as an undated and unexecuted trust deed in almost identical terms”.

Madam Lim must have been the source of the executed trust deed. She must have provided it to her Singapore lawyers and they must have passed it on to NR. It will be remembered that Singapore lawyers had earlier written (on 28 July 1988) that Madam Lim’s instructions were that “the Trust does not exist”.

Also on 7 June 1989, NR wrote to BM introducing themselves as the solicitors for Madam Lim. NR did not tell BM that they had a copy of an executed trust deed. NR stated that there was no question of Madam Lim transferring the house to Jane, as requested in BM’s letter of 7 March 1989.

On 9 June 1989, under cover of his compliments slip, Mr Gore sent to Jane a copy of NR’s letter of 7 June 1989. He asked her to ring him and she did so. They discussed NR’s letter of 7 June 1989. Jane wrote on the compliments slip: “Trust Not Registered at Land Registry”. In her witness statement, Jane said that it was far too long ago to remember everything which was discussed with Mr Gore and then she gave evidence as to what she believed had happened, so far as she could recall. Her evidence, in writing and when cross-examined, was that Mr Gore told her:

I can accept that Mr Gore told Jane that he had not seen an executed trust deed. I am not able to accept that Mr Gore told Jane that because the deed was not registered that it “did not matter”. First of all, I do not accept that Jane has any real recollection of Mr Gore saying that. I find that her evidence is pure reconstruction based on what she wrote on the compliments slip. Mr Gore was not called to give evidence. That means that, apart from the words written on the compliments slip, I do not have any reliable evidence as to what was said during this conversation. Based on the compliments slip, I am inclined to accept that Mr Gore said during the conversation that the trust was not registered, although it is not clear to me whether he would have known that. It is possible that Jane wrote this on the slip at another time. I am not able to find that Mr Gore told Jane that because the trust was not registered it “did not matter”. That is a wholly improbable thing for him to have said and in the absence of reliable evidence that he did say it, I am not prepared to infer that he did so.

On 9 June 2009, RG replied to NR stating that RG had provided its complete file to Gamlens. NR would have known from this, if they did not already, that the RG file did not contain a copy of an executed trust deed.

Jane passed to her solicitors BM the letter of 7 June 1989 (from NR to RG). She did not give evidence as to what advice her solicitors gave her and her then solicitor (Mr Morris) did not give evidence. No action at that point was taken to try to obtain a copy of the signed trust deed. A possible reason might have been that BM felt that they would not be able to disclose to NR that they had become aware of the existence of a signed trust deed by having seen a copy of a confidential letter written by NR to RG.

On 29 June 1989, Tjoan executed a Deed of Release and Indemnity in which he stated that he had received cash from his father’s estate in full and final satisfaction of his interest therein and that he had no further claim in relation to that estate. This deed was later set aside by the Singapore courts as having been procured by Madam Lim’s undue influence.

In around June or July 1989, Jane’s solicitors changed to Cameron Markby Hewitt (“CMH”) as Mr Morris of BM had moved to CMH. On her behalf, on 12 July 1989, CMH issued fresh proceedings in the Chancery Division (“the Chancery Proceedings”) and registered a caution against the title to the house. Jane’s Statement of Case was essentially the same as in the draft amended pleading sent by BM on 7 March 1989 save that Jane now put forward the additional contention that the money used to buy the house was money which belonged to the estate of Tjoan’s late father and was therefore money in which Tjoan had an interest.

On 11 September 1989, Tjoan wrote to CMH agreeing to have the earlier agreement of March 1988 (dealing with financial relief for Jane) recorded in a court order.

On 17 October 1989, NR on behalf of Madam Lim wrote to Jane. They referred to Madam Lim’s contention that Jane was a trespasser in the house and, without prejudice to that contention, they gave Jane notice forthwith to terminate any licence she might have to occupy the house. Ping gave evidence that he had not had any discussion with Madam Lim about her wish to recover possession of the house.

In November 1989, Tjoan signed a draft consent order in the matrimonial proceedings. The draft consent order was expressed to be in full and final settlement of all claims beween Tjoan and Jane. The draft consent order provided, so far as material:

“BY CONSENT IT IS ordered that:

1.

Subject to the decree nisi being made absolute herein

(a)

…

(b)

[Tjoan] do transfer and release to [Jane] all and any interest of his in and to [the house].”

On 12 January 1990, CMH wrote a without prejudice letter to NR proposing a without prejudice meeting between the solicitors, to be attended by Jane. In that letter, CMH asked NR to let them have:

“ … a copy of any Trust document that is alleged to have been executed in relation to the property at Sheldon Avenue. We have been passed a copy of a draft that was originated, we believe, by Robert Gore although do not know if this document was ever executed.”

On 19 January 1990, CMH wrote again to NR and stated that they looked forward to receiving “a copy of the Trust Deed (if any)”.

On 24 January 1990, Norton Rose responded to the letter of 19 January 1990 stating:

“We note that you have asked for premature disclosure of a Trust Deed, if indeed one exists. No doubt the document to which you refer in your letter of 19^th January will be disclosed at the appropriate time, together with an explanation as to how your client came to possess it.”

When NR wrote this letter, they were aware of the existence of the trust deed executed by Madam Lim although they would also have been aware that Schedule 1 to that deed was left blank.

On 1 February 1990, CMH replied to NR’s letter of 24 January 1990 and commented that it would have been more helpful for NR to have sent a copy of the Trust Deed without “quibbling about technicalities”. NR did not reply to this comment.

At the same time as CMH were asking NR for a copy of any trust deed, CMH were also in contact with RG on the same subject. CMH stated that they understood that a Trust Document may have been executed and asked for a copy of it in its executed form. In response on 17 January 1990 Mr Gore pointed out that he had not retained the file in connection with the acquisition of the house and he added:

“As far as I can recall, we prepared a draft Trust Deed which was then subject to revision. We were not involved in the execution of the Trust Deed and have never seen the original signed Deed.”

As can be seen from my earlier findings as to Madam Lim’s letter dated 14 April 1986 to RG, Mr Gore’s recollection was not quite accurate.

On 12 April 1990, Madam Lim served a Defence and Counterclaim in the Chancery Proceedings. This pleading was settled by counsel, Mr Jonathan Brock. The pleading provided as follows:

As indicated earlier, NR had a copy of the trust deed executed by Madam Lim and it is to be inferred that NR had provided a copy of the same to counsel before he settled the Defence and Counterclaim.

Also on 12 April 1990, NR served on Jane a Request for Further and Better Particulars in respect of her claim. Parts of the Request related to certain facts and matters on which Jane relied to support her case as to a constructive trust of the house and in particular, certain alleged oral discussions and the source of the funds used to purchase the house.

Later in April 1990, Madam Lim applied to intervene in the proceedings in the Family Division. Her application was supported by an affidavit of Mr Simon Moore of NR, sworn on 18 April 1990. In his affidavit, Mr Moore stated that Madam Lim’s case was that neither Tjoan nor Jane had any beneficial interest in the house. On 17 July 1990, Madam Lim was given permission to intervene in those proceedings.

On 27 June 1990, Jane filed a brief Reply and Defence to Counterclaim which pleaded that her right to occupy was on the basis pleaded in the Statement of Claim and on no other basis. However, Jane did not provide the particulars which had been requested from her. On 3 July 1990, Madam Lim issued a summons for their production. On 5 October 1990, an order was made by consent for their production. On 12 October 1990, CMH wrote to NR stating that they hoped to serve the particulars shortly thereafter.

In around October 1990, NR prepared a draft list of the documents to be disclosed by Madam Lim in the Chancery Proceedings. The draft is dated 19 October 1990 but disclosure in those proceedings never took place. However, the draft list shows what documents NR had seen by this stage. The list shows that NR had two copies of a deed of trust, documents numbered 113 and 114. Number 113 was said to be a draft with the date 27 February 1986. That was indeed a draft which was not executed by Madam Lim. Number 114 is dated 14 December 1985 and is described as “[Draft] Deed of Settlement …”. Given my earlier finding that NR had the executed deed of trust, I infer that this document is the executed deed of trust. The reference in the list of documents to the document being a “[Draft]” might suggest that NR had not finally decided what they would assert the position was in relation to this document. In the draft list, there is no claim to privilege for the documents numbered 113 and 114. The communications between RG and Madam Lim in relation to the acquisition of the house were marked with an asterix and I infer that the asterix was explained by the use of square brackets around later text in the list where privilege was to be claimed for such communications. This suggests that at the date of the draft list, NR had not finally decided what stance to adopt in relation to the asterixed documents.

On 30 October 1990, some draft particulars in the Chancery Proceedings were prepared and sent to Jane for her approval. The draft particulars did not refer to the trust deed, as having been executed by Madam Lim, or in any other way. However, these draft particulars were not served. On 2 November 1990, a further summons was served by NR on CMH. CMH came off the record on 21 January 1991 and on 24 January 1991 Master Dyson ordered that unless Jane produced the particulars which had been requested within 14 days her claim would be struck out and the action would be dismissed. In the event, the particulars were not provided. There was a further hearing before a Deputy Master on 28 March 1991 when it was explained to Jane that her claim was struck out by reason of her failure to provide the particulars which had been requested. Jane’s evidence as to why the particulars were not served was that “she went to pieces”. It is now accepted on her behalf that it would have been reasonable for her to have served the particulars to avoid the result of her claim being struck out.

On 26 February 1991, Jane agreed with Madam Lim that she (Jane) would give up her claims in relation to the house. As will be seen, Jane did later pursue her claims and Madam Lim did not seek to hold her to this agreement.

In 1991, Jane’s focus seems to have moved from the Chancery Proceedings to proceedings she wished to bring in Singapore to establish that the estate of Tjoan’s father was the source of the monies used by Madam Lim to buy the house. A little earlier, on 26 November 1990, Mr Gore had written to solicitors in Singapore seeking their assistance on behalf of Jane. Mr Gore attached a note with his comments as to the relevant background. In that note, he referred to Madam Lim intending to hold the house on the terms of a trust deed which was never in fact completed.

On 29 August 1991, Tjoan assigned to Jane one half of his rights in relation to his father’s estate. On the same day, Tjoan appointed Jane as his attorney with authority to pursue his claims to his rights in relation to his father’s estate. On 21 September 1991, the Singapore Proceedings were commenced with Tjoan as the Plaintiff seeking a general account from Madam Lim in respect of his father’s estate and an account of the dealings with the estate. Although initially brought by Tjoan, he switched sides (again) back to Madam Lim and eventually in 1992 Jane became the Plaintiff (and Tjoan the Second Defendant). The Singapore proceedings occupied a substantial period of time, from 1991 to 2005 and even thereafter. In due course, I will need to refer to some matters in relation to the Singapore proceedings but for the time being I will continue to make my findings in relation to the proceedings in this jurisdiction.

On 8 January 1992, Jane’s new solicitors, Hughmans, applied to HM Land Registry to register a Class F land charge in relation to the house. The application stated that the house was held on trust for Tjoan, alternatively for both Tjoan and Jane.

On 29 January 1992, having obtained legal aid, Jane issued a summons in the Chancery Proceedings seeking an order setting aside the earlier order of 24 January 1991 which had provided for her claim in those proceedings to be struck out. The summons eventually came before Master Dyson who gave judgment on 20 January 1994. He held that Jane had contumeliously failed to comply with the earlier orders and that she had delayed before issuing the summons to set aside the order of 24 January 1991. He declined to set aside the order providing for the claim to be struck out.

On 24 May 1994, Madam Lim issued a summons in the Chancery Proceedings for summary judgment (pursuant to RSC Order 14) on her counterclaim (for possession of the house and for mesne profits) or for the substance of Jane’s Defence to Counterclaim to be struck out. The summons was supported by an affidavit of Mr Sutton, a partner with NR, who said that he was authorised to swear it on Madam Lim’s behalf. The basis of the application was:

Madam Lim’s application by summons dated 24 May 1994 was dismissed by a Deputy Master on 10 January 1995. There is no record of his reasons but I infer that one of reasons was that he considered that there were technical defects in Madam Lim’s evidence. On 16 January 1995, Madam Lim appealed this decision. In support of the appeal, Mr Sutton swore a further affidavit, on 17 January 1995, on behalf of Madam Lim, in which:

Jane (and the children) took a number of steps in opposition to Madam Lim’s appeal. First, Jane’s new solicitors, Palmer Cowen (“PC”), applied to have the Chancery Proceedings transferred to be heard with the proceedings in the Family Division. This was on the basis that Tjoan had agreed, in those proceedings, to transfer his interest in the house to Jane, and the determination of what interest he had, would have to await the resolution of a question in the Singapore Proceedings whether estate monies belonging to Tjoan (half of which had in the event been assigned to Jane) had been used to purchase the house.

Secondly, the children (who were then minors and so acted via their litigation friend, Ms Conway, Jane’s sister) instructed Mr Oppler of RG to apply to intervene in the Chancery Proceedings. On 2 March 1995, RG sent to Norton Rose a notice of motion for an order that the children be joined to the Chancery Proceedings. The children relied on the affidavits of Mr Hyde and of Ms Conway. In his affidavit, Mr Hyde set out his recollection concerning the purchase of the house and the drafting of a declaration of trust. He did not say whether the declaration of trust had been executed but he explained that he did not have the file relating to the acquisition of the house. Ms Conway’s affidavit referred to a copy of the draft trust deed (which she exhibited) and stated:

“I do not know if that trust deed was ever executed, or indeed, where it is alleged to be at present. However, it is clear that the intention was that the children were to be beneficiaries under a trust and, until it emerges whether that deed was ever executed and, indeed, whether Madam Lim was in fact entitled to the money used to buy the matrimonial home in the first place (an issue which I understand is to be decided shortly in Singapore), it is impossible to establish what the rights of the children in the matrimonial home actually are.”

The various matters came before HHJ Rich QC on 3 March 1995. He had before him skeleton arguments from counsel for the parties, Mr Brock for Madam Lim and Mr Gordon Nurse for Jane. In his skeleton argument, Mr Brock referred to the original Statement of Claim in the Chancery Proceedings and pointed out that Jane’s claim was based on oral discussions “there being no documentary evidence alleged”. It was then submitted that Jane could not argue that she had any other pleaded case apart from the case pleaded in the original Statement of Claim and so “there can be no defence, pleadable or otherwise, to the Counterclaim for possession”. Judge Rich adjourned the matter to 31 March 1995 and he permitted Jane to file further evidence and a draft Amended Defence.

Jane swore an affidavit on 10 March 1995 and she served a draft amended Defence to Counterclaim settled by Mr Nurse. In her affidavit, she stated that a draft trust deed had been prepared by Mr Hyde of RG and that she had a copy of it. She did not have a copy of an executed trust deed. She said that Tjoan had told her that Madam Lim had executed the draft and the executed deed was with a named bank in Hong Kong. She then said that she had subsequently discovered that there was no record or registration of the trust deed. Although her affidavit does not say so, this seems to be a reference to the conversation she says she had with Mr Gore on or about 9 June 1989, as explained earlier. She then said in her affidavit that she “assumed” that the trust deed had not been executed by Madam Lim and the present position was that she did “not know whether it was executed”.

The draft Amended Defence to Counterclaim pleaded Jane’s case in detail. She pleaded alleged representations by Madam Lim and her reliance upon them. She pleaded that there was an equity in her favour and such equity should be satisfied by the court preventing her right of occupation being brought to an end until the house ceased to be required as a home for herself and her children. As to the deed of trust, she pleaded:

“The Plaintiff does not know whether the Defendant executed the said Trust but believed, until about late 1988, that it had been executed.”

After service of Jane’s affidavit and the draft pleading, NR wrote to RG on 17 March 1995 confirming that Madam Lim agreed to a stay preventing enforcement of any order for possession the judge might grant on appeal, but on condition that the children were not joined as parties to the Chancery Proceedings. On 20 March 1995, RG replied to NR and asked certain questions as to the meaning and effect of the suggested stay on any order for possession. On 23 March 1995, NR replied that it was their understanding that no efforts to enforce an order for possession would take place before the family proceedings which raised the question of the ownership of the house had been decided. However, NR reserved a general right to apply for the lifting of the stay. These exchanges did not involve PC, the solicitors for Jane and appeared to be designed by NR, for Madam Lim, as a means of preventing the children being joined as parties to the Chancery Proceedings.

These exchanges between RG and NR also raised questions as to the trust deed. On 20 March 1995, RG pointed out that they did not retain any documents in relation to the trust of the house, for which RG (on behalf of the children) contended. RG then asked NR to provide copies of such documents. In NR’s reply of 23 March 1995, they stated:

“ … that such documents in our possession were the matter of advice given by your firm to Madam Lim in a client/solicitor relationship and therefore such information must be privileged.”

This answer shows that NR had decided that it would not disclose the executed trust deed.

Jane’s solicitors, PC, also wrote to NR seeing disclosure of documents relating to the trust deed. NR replied on 28 March 1995:

“Such documentation formed part of a client/solicitor relationship and therefore must be privileged. As a consequence we do not feel we can disclose such documents without our Client’s permission which is hardly likely to be given in the circumstances.”

Madam Lim’s appeal was heard by HH J Rich QC on 31 March 1995. There is an informal note of his judgment in which he held that:

Judge Rich then made “the Rich Order” which included the following provisions:

I have found some difficulty in understanding what was envisaged might happen in the proceedings in the Family Division after the Rich Order. Judge Rich had ordered Jane to give up possession of the house and to pay mesne profits on the basis that she had been a trespasser in the house after 17 October 1989. However, the judge appears to have contemplated that issues as to the beneficial ownership of the house remained to be investigated in the proceedings in the Family Division. What would happen to the orders for possession and for mesne profits if it were held that Jane had after all a beneficical interest in the house? Similarly, what would happen if it were held that Tjoan had a beneficial interest in the house which he was ordered to transfer to Jane? However, there was no appeal against the Rich Order and the present proceedings are also not an appeal against that order. For the purposes of the present proceedings, the orders for possession and for mesne profits made on 31 March 1995 stand unless and until Jane or the children establish that they should now be set aside.

There was a further request by Mr Oppler of RG, acting for the children, for disclosure by NR of the documents relating to the creation of the trust. This was on 28 November 1995, when Mr Oppler had a conversation with Mr Sutton of NR. Mr Sutton said that he had read the file and he had seen a draft trust deed. He did not mention that there was also a trust deed executed by Madam Lim. Mr Oppler asked for disclosure and Mr Sutton claimed privilege. There was then discussion as to the possibility of the children intervening in the proceedings in the Family Division once the proceedings in Singapore had been concluded and there was inconclusive discussion as to the possibility of an application by the children for disclosure in those proceedings.

At this point, I will break off my findings as to the events in the litigation in this jurisdiction and make my findings as to the litigation in Singapore.

I was provided with voluminous documents relating to the litigation in Singapore. It was not contended that all of this material was relevant to the present case. I consider that those proceedings may be relevant in the following respects:

The Singapore proceedings, issued in Tjoan’s name in September 1991, sought a general account from Madam Lim. An affidavit in support was drafted, but not sworn, by Tjoan. Jane was subsequently added as a Plaintiff to continue the action on the basis of the deed of assignment and the power of attorney, both dated 29 August 1991.

In March 1992, Tjoan switched sides back to his mother, and asked for the Singapore proceedings to be discontinued. Madam Lim therefore applied to strike out Jane’s claim on the grounds of this letter and the 1989 deed of release and indemnity executed by Tjoan. Jane asserted that the deed of release had been obtained by improper means, which was denied by Madam Lim and Tjoan, who also attacked the deed of assignment of 29 August 1991. A number of preliminary issues were therefore ordered to be tried, including as to whether the deed of release and deed of assignment were valid.

Judgment was given in Jane’s favour on 16 July 1996 by Chao Hick Tin J. He upheld the deed of assignment, but set aside the deed of release on the grounds that it had been procured by Madam Lim’s undue influence. The judge found (amongst other things) that the trust deed had not been executed. There was no evidence before him to show that it had been executed and I understand that neither side contended before him that it had been executed. He declined to rule on the question of whether there was a trust of the house. He found that Tjoan was an unreliable witness. Madam Lim did not give evidence. An inquiry was ordered to determine the assets of Ong Seng King and the quantum of Tjoan and Jane’s share as at 29 August 1991, the date of the deed of assignment. Madam Lim and Tjoan appealed this decision but their appeals were dismissed by the Court of Appeal on 16 April 1997.

Over the next few years, various affidavits, accounts and experts’ reports were exchanged concerning assets in Singapore, Indonesia, Hong Kong, Malaysia and Holland. By that stage, the house was only one part of that wide ranging inquiry. However, in relation to the house:

Various interim orders were made during the course of proceedings, including two Anton Piller orders made on 22 December 1999 (one in respect of Madam Lim’s home address, and one for her business address). These orders were made following Madam Lim’s failure to comply with various disclosure orders. The enforcement of the Anton Piller orders yielded 72,000 pages of documents. It is common ground that copies of 3 pages from the executed Trust Instrument were among the Anton Piller documents, including the signature page, signed by Madam Lim and Ping. Jane did not, however, become aware of these until June 2010. I also comment:

Jane did not search the Anton Piller documents herself, but instead gave them to PWC for them to review. PWC had been instructed by Jane. The purpose of PWC’s review was to consider numerous transactions in order to work out what assets fell within the estate.

Ping and Elton were joined as parties to the Singapore proceedings on 22 February 2002 and the inquiry commenced on 21 October 2002 before Assistant Registrar Phang (“AR Phang”). Evidence was given over 21 days and the hearing lasted 23 days. At this hearing, Madam Lim did give evidence, in the course of which, contrary to her own affidavits, she stated that the money used to purchase the Property came from Singapore and was her money. Madam Lim was asked about the draft trust deed and she said:

“At the time of the purchase of the house, I told Robert Gore that should anything happen to me, that means if I were to die, this property would be for the benefit of the beneficiaries. Robert Gore told me that must be put in the form of a trust; otherwise, there would be tax on it. Robert Gore then brought out a document and asked me to sign, but I told him that I would bring this document to Singapore to get further consultation on this document before I put my signature on it. When I arrived in Singapore, I showed the document to Mr Tan Kok Quan. Mr Tan told me that if it is a trust, the deed would be irrevocable. He told me that it would be better for me to make a will. Therefore I did not sign the trust deed.”

Madam Lim’s evidence to the effect that she had not signed the trust deed was not correct. There is no real reason to think that she had forgotten what she had done. I find that her evidence was knowingly untrue. Tjoan also gave evidence at the inquiry to the effect that the trust was never executed.

On 13 June 2003, AR Phang handed down a judgment which ran to 187 pages. He made the following, amongst other, findings:

On 18 June 2003, AR Phang ordered that Madam Lim pay the greater part of Jane’s costs, although they had not been paid by the date of the trial before me.

Both sides appealed. Jane appealed on various findings, including as to the conduct of the inquiry and in relation to the house. Madam Lim appealed in respect of the amounts which the judge had found to have been distributed to Tjoan and in relation to the order for costs. Choo Han Teck J dismissed all the appeals on 16 June 2004.

Further appeals to the Court of Appeal (the final level of appeal) also failed. On 19 January 2005, the judgment of the Court of Appeal in relation to Jane’s appeal was given by Prakash J. Paragraphs 82 – 86 of that judgment dealt with the house. At paragraph 82, the judge noted Jane’s submission (or acceptance) that Madam Lim did not execute the deed of trust. At paragraph 84, the judge held:

“In the circumstances, it was open to AR Phang to find that 39 Sheldon Avenue was not a distribution from the estate. In view of facts that the property was bought in Mdm Lim’s name, the trust deed was never executed (and even if it had been, it would not have been helpful to Jane Ong’s case since it did not purport to create a trust over 39 Sheldon Avenue), no evidence was given by the English solicitors to support the assertion that the original intention had been for it to be beneficially owned by [Tjoan] and [Tjoan] himself took no position as to whether it was a distribution to himself … it cannot be said that AR Phang’s holding on this issue was plainly wrong.”

On 4 May 2005, the Court of Appeal dismissed appeals by Madam Lim.

It is now appropriate to pick up the story in relation to the litigation which occurred in England.

On 24 September 2003, following AR Phang’s judgment, NR on behalf of Madam Lim applied in the Family Division for all proceedings relating to the Rich Order to be transferred back to the Chancery Division. An affidavit in support of the application contended that as a result of the Chancery Proceedings and the proceedings in Singapore it was clear that Jane had no claim to the house and, as the children were all over the age of 18, the proceedings should be transferred back to the Chancery Division.

On 5 December 2003, Jane made a witness statement in opposition to NR’s application to transfer the matter back to the Chancery Division. She stated that even if Madam Lim had used her own money to buy the house, the property was the subject of a trust dated 14 December 1985 and her husband was one of the beneficiaries of that trust. She then added:

“So far as I am aware, the Trust remains in effect.”

At this point, Jane’s solicitors were Clintons and Jane appeared to be asserting that there was an express declaration of trust on the terms of the trust deed.

On 26 January 2004, pursuant to an order requiring Madam Lim to swear an affidavit in support of the application to transfer the matter to the Chancery Division, Madam Lim did so. This is the only affidavit sworn by Madam Lim in proceedings in this jurisdiction; there is also no witness statement from Madam Lim in proceedings in this jurisdiction. In this affidavit, Madam Lim asserted that when she bought the house she had made it plain to Tjoan that the house was being bought for Madam Lim as an investment although Tjoan and his family could live in the house whilst she wished to retain it as an investment. She added: “No Trust in relation to the Property was settled.” She also referred to the litigation in Singapore. She referred to the evidence at the inquiry before AR Phang and she said that Jane was only able to allege that a “draft trust deed” was prepared but never executed. It will be remembered that Madam Lim gave knowingly untruthful evidence at the inquiry that she had not executed the trust deed.

On 26 January 2004, a position statement drafted by NR on behalf of Madam Lim referred to Jane’s witness statement of 5 December 2003 and stated that the Trust referred to by Jane “is a draft Trust Deed which has not been executed”. The position statement then quoted a number of other statements made by Jane over the years to the effect that the trust deed had not been executed.

In an undated position statement (prior to 2 March 2004), Jane put forward a number of bases for contending that she had a beneficial interest in the house; she appeared to accept that no trust deed had been executed by Madam Lim.

On 1 June 2004, Addleshaw Goddard (“AG”) replaced NR as solicitors for Madam Lim.

Counsel for Madam Lim (Mr Howard Shaw) prepared a Note on or before 15 June 2004 in which he stated:

“It appears that at the time of purchase there was a suggestion that [Madam Lim] might declare a trust of the property, however, this was never put into effect.”

By a further position paper prepared on Madam Lim’s behalf by Timothy Scott QC for a Pre-Trial Review (on 17 March 2005) in the proceedings in the Family Division it was stated:

“In January 1986 Madam Lim had bought 39 Sheldon Avenue (“the property”) as a home for [Tjoan], [Jane] and their children. Although she considered placing the property into a trust (and indeed a draft trust deed was prepared) she never did so. She has remained the sole legal and beneficial owner at all times.”

In his position statement, Mr Scott contended that the combined effect of the Chancery proceedings and the Singapore proceedings was that all issues as to ownership of the house and the right to possession of it had been concluded in Madam Lim’s favour. He contended that such issues were now res judicata. Further, Jane should not be allowed to raise new points which she had not raised before.

On 17 March 2005, a Pre-Trial Review of the proceedings in the Family Division was conducted by Mr Peter Collier QC, sitting as a Deputy Judge of the High Court, and he gave a judgment dealing with the matter on 18 March 2005. The Collier Order, made on 18 March 2005, included an order that if, by 29 April 2005, Jane took no steps to set aside or to seek permission to appeal against or otherwise to vary the orders made in the Chancery Division (including the Rich Order) then it was declared that Jane had no beneficial interest in the house and that the possession claim be transferred back to the Chancery Division for the assessment of profits and any ancillary matters and that the stay imposed by the Rich Order be lifted and costs were reserved.

In his judgment given on 18 March 2015, Mr Collier said:

“It also seems to me that there is something in [Jane’s] allegations that Madam Lim obtained the original possession order by deceiving the court who appear to have been told absolutely nothing about the estate, the interests of the husband and the manipulation of estate funds by Madam Lim. It seems to me on that basis it may be that [Jane] has a proper basis to make [an] application, even at this late stage, to set aside the orders which dismissed her claim and gave judgment against her on counterclaim and/or seek to appeal against those orders.”

On 12 April 2005, Jane’s creditors approved her proposal for an Individual Voluntary Arrangement (“the IVA”).

On 27 April 2005, Jane applied for an extension of the 6 week period specified in the Collier Order and an extension was granted ex parte by Coleridge J on 28 April 2005. Madam Lim, however, challenged that order and, on 25 May 2005, McFarlane J revoked Coleridge J’s order of 28 April 2005 and relisted Jane’s application for an extension of time. That was the application which came before Coleridge J on 13 September 2005.

On 11 August 2005, Mr Pietro Marino, a partner at AG, filed an affidavit for that forthcoming hearing, which confirmed that he was authorised to swear the affidavit on Madam Lim’s behalf. He referred to an affidavit which had been sworn by Jane, in support of her application for an extension of time, where Jane had referred to the intention to create a trust; Mr Marino stated:

“It is clear that despite Mr Hyde’s reference to a draft trust deed, no trust deed has ever been executed with regard to 39 Sheldon Avenue. In other words, a conscious decision was taken not to create a trust” (his emphasis);

Mr Marino then referred to the Singapore proceedings. He exhibited a letter from Madam Lim’s Singapore solicitor which (at paragraph 80) quoted the following part of paragraph 84 of the judgment of the Court of Appeal given on 19 January 2005:

“ … the trust deed was never executed (and even if it had been, it would not have been helpful to Jane Ong’s case since it did not purport to create a trust over 39 Sheldon Avenue) … ”

Madam Lim instructed Mr Valentine Le Grice QC and Mr Mark Warwick (who appeared as Madam Lim’s leading counsel at the trial before me). They produced a Note for the hearing before Coleridge J on 13 September 2005. The Note referred to Mr Marino’s affidavit. The Note stated:

“Madam Lim considered placing the Property into a discretionary trust and a trust deed may have been executed. However, [Jane] was not a beneficiary named in that document. Moreover, the Property was not mentioned in the document.” (their emphasis).

A footnote to the last sentence in this statement in the Note referred to paragraph 80 of the Singapore solicitors’ letter referred to in Mr Marino’s affidavit.

I ought to comment on the above passage in the Note which was prepared for the hearing before Coleridge J. The Note refers to a discretionary trust; that is obviously a reference to the deed drafted in early 1986 and is not intended to refer to a trust of the kind asserted by Jane under which she and/or Tjoan had a beneficial interest in the house. Mr Marino’s affidavit, relying on the letter from the Singapore solicitors stated that the trust deed had never been executed. Conversely, the Note says that “a trust deed may have been executed”. Although NR had told Mr Gore in a letter of 7 June 1989 that NR had a trust deed dated 14 December 1985 executed by Madam Lim, that statement was made in the expectation that it would be confidential to Madam Lim’s advisers and would not be communicated to Jane (although in fact it was). Accordingly, this Note was the first time that there was an intended statement from Madam Lim’s side to Jane’s side that a trust deed “may have been executed”. The footnote which referred to paragraph 80 of the Singapore solicitors’ letter must have been intended to support the last sentence of the passage in the note i.e. the statement that even if the trust deed had been executed it would not have helped Jane’s case because the deed did not refer to the house.

It does not appear that Jane, or Coleridge J, picked up the fact that the statement that “a trust deed may have been executed” was new information and contrary to Madam Lim’s case on all earlier occasions.

The Note prepared for the hearing on 13 September 2005 referred to the Chancery proceedings and the Singapore proceedings. In relation to the Singapore proceedings, it was emphasised that AR Phang had held the purchase monies for the house had been Madam Lim’s own monies. It was also submitted that there could not be any allegation of fraud in relation to the decisions in Singapore because they were not dependant on any acceptance of the evidence presented by Madam Lim.

Coleridge J dismissed Jane’s application for an extension of the time allowed by the Collier Order. In his judgment, Coleridge J held that:

The Coleridge Order made on 13 September 2005 declared (said to be for the avoidance of doubt) that Jane had no beneficial interest in the house and ordered that the possession claim be transferred back to the Chancery Division for the assessment of mesne profits and any ancillary matters and that the stay imposed by the Rich Order be lifted and that Jane do pay Madam Lim’s costs.

On 6 October 2005, AG for Madam Lim wrote separate letters to Jane and to each of the children requiring them to give up possession of the house in accordance with the Rich Order and giving them notice under RSC Order 45 rule 3(3)(a) that it was for them to make such application to the court as they saw fit for any relief to which they considered themselves entitled.

On 13 October 2005, the children wrote direct to Madam Lim, stating:

“We have been told that our interest in our home is separate from our Mother’s, Jane Ong, whom you have obtained a possession order against.

…

We have also been told from an early age, by our Parents that our home was subject to a Family Trust Deed (which our Father told us was finalised in Hong Kong through your Bankers or Solicitors’) and which named us as beneficiaries and/or as having some sort of interest in our home and/or at least legal rights to live in our home.”

Madam Lim did not reply to this letter sent to her. Instead she passed it to AG and asked them to reply. They did so on 20 October 2005 and stated that the order for possession required the removal of anybody in occupation of the house. They repeated that the children should make such application as they saw fit to the Court for any relief to which they considered they were entitled and suggesting they take legal advice on the matters referred to in the letter.

On 17 November 2005, AG applied to the court for permission to issue a writ of possession. This application, which was to be heard on 14 December 2005, was served on Jane and the children on 22 November 2005.

On 27 November 2005, Jane wrote to AG a long letter in which she stated:

“I have always told them [i.e. the children] that they were specifically mentioned in a draft trust deed as being beneficiaries of the proposed and intended trust to be set up which was to hold the property.”

Jane’s letter also referred to her sister’s affidavit in 1995, but she stated that she did not have the draft trust deed (it being likely that it was with her solicitors possibly in Singapore), and asking whether AG had nevertheless considered the document. She asked for time so that the children could obtain the relevant documents and advice.

On 29 November 2005, Jane wrote again to AG stating that she would vacate the house before 14 December 2005.

On 2 December 2005, AG replied to Jane, with copies of the letter being sent to each of the children. AG refused to adjourn the hearing set for the 14 December 2005. They then stated:

“Our instructions are clear: no trust in respect of the property at 39 Sheldon Avenue was ever effected by our client in favour of Alexander, Nicholas and Jordana Ong.”

AG’s letter enclosed Mr Gore’s Singapore Affidavit and they referred to two paragraphs of it where Mr Gore had stated that as far as he was aware the trust deed had not been executed.

Madam Lim’s application came before Master Bowles on 14 December 2005. Mr Warwick appeared for Madam Lim. There is a note of the hearing from which it can be seen that:

On 30 December 2005, Madam Lim obtained a Writ of Possession and ordered Jane to pay the costs. Jane moved out of the house on 14 December 2005 but the children remained there. AG arranged for the Writ to be enforced on 17 January 2006.

By 17 January 2006 the Children had instructed Northwood Law Practice which asked AG to defer execution of the Writ of Possession. AG declined to do so. The children then applied later that day for a stay of execution, which was granted ex parte until 19 January 2006; the children were represented at the ex parte hearing by a family friend, Mr Frenchman.

On 18 January 2006, Northwood Law Practice wrote to the Court. They said that the children’s instructions were that there was a trust deed, held by the Bank of China, which provided for a share of the house to be held on trust for the children, their father and their uncle; further investigation was needed to try to obtain the trust deed. The solicitors also contended that the purchase monies for the house were from Tjoan’s father’s estate.

Also on 18 January 2006, Mr Blower filed a further statement referring to recent correspondence between the parties; this included his letter of 2 December 2005. Mr Warwick produced a skeleton argument which referred in detail to the earlier hearing before Master Bowles; he referred to the children making an “unparticularised oral claim to an interest in the Property” and the Master’s comments in respect of that claim.

The children’s application was heard by Hart J on 19 January 2006. The children were again represented by Mr Frenchman and Madam Lim was represented by Mr Warwick, instructed by Mr Blower of AG. I have Mr Blower’s note of the hearing. Mr Frenchman stated that the children had only recently become aware that they were subject to the Rich Order even though they were not parties to the Chancery proceedings. He submitted that there was a trust deed “somewhere”. He also submitted that Madam Lim had lied in the earlier proceedings. In his submissions, Mr Warwick relied on earlier evidence that the trust deed had not been executed. He then referred to the judgment of the Singapore Court of Appeal of 19 January 2005, in particular to paragraph 84 of that judgment referring to a trust of the house. He then submitted that there was “no evidence that a trust deed was ever completed”. He also referred to the findings of the Singapore courts as to the source of the purchase monies for the house.

Hart J gave a judgment refusing the children’s application. He asked himself whether, on the material before him, there was any likelihood that the children would be able to put before the court a claim to a beneficial interest which would entitled them to resist Madam Lim’s claim to possession of the house. He held that there was no more material before the court than there was before Master Bowles on 14 December 2005. He said there was only an assertion based on what they said they had been told by their parents about the existence of some trust deed. The judge then reviewed the evidence as to the existence of the trust deed. He referred to the earlier evidence to the effect that the draft trust deed had not been executed. He also said there was a judicial finding to that effect and he referred to the relevant part of the decision of the Singapore Court of Appeal. He also referred to the findings in Singapore about the source of the purchase monies. He then stated:

“It seems to me that, given the amount of time and resources that have been spent by the children’s mother to date in the litigation, it would simply be astonishing if, within the course of the next 30 days or so, some better evidence could be produced to the public funding authorities of the children having some claim based on an executed Trust Deed, or some other basis upon which a beneficial interest might be asserted, although no such other basis has been suggested.”

The Writ of Possession was executed on 1 February 2006. Jane’s caution and notice which she had registered in relation to the house at the Land Registry were ordered to be removed and the house was sold by Madam Lim on 11 May 2006 for £3,200,701. There was no evidence before me as to what subsequently happened to the proceeds of sale.

On 22 August 2006, Deputy Master Hoffman refused Madam Lim’s application for an interim payment in respect of her claim to mesne profits, and gave directions. On 31 January 2007, Master Bowles adjourned the hearing of the application for the assessment of mesne profits to a date in May 2007. In his judgment on that occasion, he made clear that an attack on the underlying order for mesne profits was not within the scope of the assessment process.

The assessment hearing took place in July 2007. Jane was represented by Mr Staunton of counsel and Madam Lim was represented by Mr Warwick. Master Bowles delivered his judgment on 2 November 2007 and the mesne profits order was made on 20 December 2007. Jane was ordered to pay to Madam Lim mesne profits in the sum of £1,422,699 together with interest to that date which brought the sum then payable to £2,269,784.90 and was further ordered to pay Madam Lim’s costs of the application for the assessment of mesne profits, but so that such order for costs was not to be enforced without the permission of the court in respect of any costs incurred by Madam Lim after 11 April 2007.

Madam Lim died on 8 August 2009. Her last will, dated 9 July 2009, appointed Ping as her executor. There were disputed probate proceedings in Singapore which were later settled and probate of the will of 9 July 2009 was granted to Ping on 3 May 2011.

In March 2006, Jane had brought proceedings in Singapore alleging, amongst other things, negligence on the part of PWC in connection with their role in the earlier Singapore proceedings. It will be remembered that they had carried out a review of the Anton Piller documents. In the course of the further proceedings in Singapore, in 2010, Jane’s solicitor, Andrew Ho of Engeline Teh & Partners, carried out a further review of the Anton Piller documents. On 29 June 2010, he discovered the three pages of the executed trust deed at that time. In 2011, again in connection with this further litigation in Singapore, all the Anton Piller documents were digitalised. This enabled Jane to carry out a search in November 2011 as a result of which she came across Norton Rose’s letter of 7 June 1989 to RG referring to “a trust deed dated 14^th December 1985 executed by Madam Lim …”

As earlier noted, Jane had entered into an IVA in 2005. Madam Lim was not listed by Jane as a creditor for the purposes of the IVA. On 1 February 2012, Ping issued an application (no 8 of 2005) for orders in relation to Jane’s IVA, including an order providing for a set off of the liability of Madam Lim’s estate under the costs order in Singapore against Jane’s liability to pay mesne profits to Madam Lim’s estate.

By this stage, Jane had a copy of the letter of 7 June 1989 from NR to RG and a copy of three pages of what appeared to be an executed trust deed. On 1 March 2012, Jane’s solicitors (Isadore Goldman) wrote to AG asking for a copy of the executed trust deed referred to in the letter of 7 June 1989. AG did not provide a copy of the executed trust deed but complained at considerable length about what was said to be Jane’s wrongdoing in relying upon the letter of 7 June 1989 which was said to be a privileged document. That gave rise to an argument as to whether Jane and Tjoan (as well as Madam Lim) had been clients of RG at the relevant time. On 8 May 2012, Jane applied in the proceedings relating to the IVA for an order that Ping disclose the executed trust deed.

At around the same time, the children (separately represented by Stephenson Harwood, “SH”) also sought disclosure of the executed trust deed. On 29 March 2012, SH wrote to AG asking for a copy. Eventually, on 9 May 2012, AG wrote to SH stating than an incomplete document existed, which was the subject of privilege and Ping would not waive that privilege. On 22 May 2012, SH replied expressing their disagreement that the document was privileged and contending that a trustee could not claim privilege against a cestui que trust. AG’s reply was there was no relationship of trustee and cestui que trust.

Jane’s application for specific disclosure of the executed trust deed came before Deputy Registrar Jones on 17 August 2012. It was accepted by AG at that hearing that they had an original signed document and it was ordered that Ping should disclose that document. The order recorded that Ping submitted to that order “under compulsion”. The executed trust deed was then disclosed to Jane and the children. Thereafter directions were given for the trial of the issues between the parties and they have served full pleadings of their respective cases.

The court may set aside an earlier judgment or order if it is established that the earlier judgment or order has been obtained by the fraud of a party. This must be proved by reliance on new evidence not before the court at the time of the earlier judgment or order. If the judgment or order is set aside on the ground that it was obtained by fraud then it must follow that the earlier judgment or order cannot be relied upon as creating an issue estoppel or as the basis for an argument that a later action is an abuse of process.

Although the decision of the House of Lords in The Ampthill Peerage [1977] AC 547 involved allegations of “fraud” for the purposes of the Legitimacy Declaration Act 1858, it is generally accepted that the decision contains relevant statements of principle as to the circumstances in which a court may set aside an earlier judgment on the ground that it was obtained by fraud. At page 569A–D, Lord Wilberforce stressed the importance of the law providing for finality in relation to judicial decisions determining disputes. One exception to such finality was where the earlier judgment was obtained by fraud. At page 571A-C, he described what was meant by fraud in this context in these terms:

“The real case is based on "fraud." What is fraud for this purpose? Learned counsel … without venturing upon a definition suggested that some kind of equitable fraud, or lack of frankness, was all that is meant, but I cannot accept so anaemic an ingredient. In relation to judgments, and this case is surely a fortiori or at least analogous, it is clear that only fraud in a strict legal sense will do. There must be conscious and deliberate dishonesty, and the declaration must be obtained by it. Authorities as to judgments make clear that anyone wishing to attack a judgment on grounds of fraud must make his allegation with full particularity, must when he states it be prepared to prove what he alleges and ultimately must strictly prove it. The establishment of the fraud is a condition precedent to reopening the case: see Jonesco v Beard [1930] AC 298. Nothing less can be expected in the present case.”

At pages 575E-576H, Lord Simon of Glaisdale also stressed the importance of finality in litigation. At pages 590E-591E, he described what was meant by fraud in the legislation there considered and he explained that fraud in that context meant the same as where an application was made to set aside an earlier judgment for fraud. At page 591B, he added:

“To impeach a judgment on the ground of fraud it must be proved that the court was deceived into giving the impugned judgment by means of a false case known to be false or not believed to be true or made recklessly without any knowledge on the subject. No doubt, suppression of the truth may sometimes amount to suggestion of the false: The Alfred Nobel [1918] P 293. But, short of this, lack of frankness or an ulterior or oblique or indirect motive is insufficient.”

The parties were agreed that the legal principles which apply on an application to set aside a judgment or order for fraud were helpfully set out in the judgment of Aikens LJ in the recent case of Royal Bank of Scotland plc v Highland Financial Partners LP [2013] 1 CLC 596. In that case, RBS obtained summary judgment on the question of liability under a contract between the parties. However, it had done so by dishonestly misleading the other party and the court as to certain matters. Its conduct amounted to fraud. The fraud was discovered during the subsequent quantum hearing. The quantum hearing then proceeded and an award was made accordingly.

In setting aside the liability and the quantum judgments, Aikens LJ set out the following legal principles at [106]:

“106 There was no dispute between counsel before us on the legal principles to be applied if one party alleges that a judgment must be set aside because it was obtained by the fraud of another party.

The principles are, briefly: first, there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. [Ampthill Peerage case [1977] AC 547 at 571B per Lord Wilberforce; to the same effect, at 591B per Lord Simon of Glaisdale. This case did not involve a judgment but a declaration of legitimacy under the Legitimacy Declarations Act 1858 but the principle is the same.]

Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be ‘material’. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court's decision to give judgment in the way it did. [Tuvyuhu v Swigi (QB. unrep. 26 October 1998) per Laws J at page 5 of the transcript.] Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. [Sphere Drake Insurance plc v Orion Insurance Co plc (Com Ct. unrep. 11 February 1999) at [119] per Langley J.] Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was.

Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence. [Kuwait Airways Corp v Iraqi Airways Corp (Perjury II) [2005] EWHC 2524 (Comm) at [198]–[199] per David Steel J.]”

(The passages in square brackets are Aikens LJ’s footnotes.)

Aikens LJ also said that the standard of proof in relation to the alleged fraud was the balance of probabilities: see at [107].

The facts of Royal Bank of Scotland plc v Highland Financial Partners LP were very detailed and it is not necessary to set them out here. The court’s approach to the facts is interesting in that the court considered whether the case was one of a failure to disclose a fact or whether the conduct complained of went further and amounted to the positive giving of a false impression or the making of a false representation. In his statement of principle, Aikens LJ had referred to the concealment of facts. In that case, there had been concealment of certain facts and Aikens LJ held that that concealment led to the making of positively misleading statements: see at [122]. However, at [126], Aikens LJ went on to consider, in the alternative to his finding that there was a continuing positive misstatement, whether there was dishonesty involved in the deliberate concealment. He held that the concealment was dishonest because the concealment meant that the story told in a witness statement was false. Some of the discussion in the judgment might be said to support the argument that there could be dishonesty by reason of dishonest concealment even where there was no misleading statement. However, that was not the ultimate finding of the court in that case. Further, I doubt if concealment which does not involve the making of a misleading statement could amount to fraud in the present context. I have referred earlier to Lord Simon’s comment in The Ampthill Peerage that sometimes suppression of the truth can amount to suggestion of the false and Lord Wilberforce’s comment in the same case that it was not enough to show a lack of frankness with the court. I would add that a failure to disclose a fact when there is a contractual or equitable duty to disclose it will amount to a breach of the relevant contract or equitable duty but will not necessarily amount to fraud or conscious and deliberate dishonesty.

The Royal Bank of Scotland case is also of interest as regards the court’s approach to a submission by RBS that it would be pointless to set aside the liability and quantum judgments because the same conclusion would be reached following a further trial of liability and quantum. As to that submission, Aikens LJ said at [141]:

“141 I cannot accept this argument. In my view it is necessary to concentrate on the only judgment that is said to be impeachable by virtue of a fraud by RBS, viz. the liability judgment. If, as I have concluded, the revelation of RBS's misconduct … would entirely have changed the basis on which RBS might have applied for summary judgment, then, logically, the liability judgment has to be set aside. The fact that, subsequently, the judge was able to conduct the quantum trial on proper (although not full) evidence and reach certain conclusions on the effect of what he subsequently called ‘the suppressed fact’ in terms of the parties' respective liabilities is not to the point for three reasons.

First, I agree with the analysis of Langley J in Sphere Drake Insurance plc v The Orion Insurance Co plc, 11 February 1999, unreported, at page 174–175 that the materiality of the fresh evidence, or the new facts, relates to whether the original judgment is thereby impugned. It is not for the judge considering this issue to re-try the question of the liability of the parties or to see whether the fresh evidence or new facts is material to the final result in the sense of what the decision might be if the matter were to be retried with honest evidence. [See also the judgment of David Steel J in Perjury II at [198]] So the fact that it ‘all came out in the wash’ subsequently in the quantum trial is not relevant. [Although even then the judge did not have the full facts.]

Secondly, it seems wrong in principle to permit a party to keep the fruits of a judgment that has been found to have been obtained by fraud; it would be profiting from its own wrong.

Thirdly, the judge found in the quantum judgment that if there had been full disclosure then there would have been agreement on the market values of the 36 and 52 loans. In the May 2012 judgment he found that SG had hoped, indeed anticipated that the case would settle between the liability judgment and the quantum hearing. The inference must be that if the full facts had been apparent before the liability hearing, the whole claim would have been compromised, probably less advantageously to RBS than the terms of the quantum judgment. It would be unjust now to permit RBS to have the fruits of the quantum judgment, even though obtained on the full facts, if it would not have had that advantage if the full facts had been revealed when they should have been.”

(The passages in square brackets are Aikens LJ’s footnotes.)

In the present case, there was originally common ground, but then there was a very late disagreement, as to whether there was a further requirement which had to be satisfied by a person seeking to set aside an earlier judgment or order which, it was said, had been obtained by fraud. As explained, the claim must be based on material which was not available at the time when the judgment was given or the order made. But is it relevant to inquire as to whether that person could have obtained the material if he or she had tried a bit harder, in other words, if he or she had used reasonable diligence to obtain it so that it would have been available earlier?

In this case, the material which is said to be relevant is evidence that the trust deed was not merely a draft but that Madam Lim had signed it. I have held that Madam Lim created a trust on the terms of the trust deed by signing it whereas it was not submitted to me that I could have reached that finding if she had not signed it. In addition, parts or all of the RG conveyancing file were relevant to the issue whether there was a trust in accordance with the signed trust deed. At all stages before the trial and at the trial itself, counsel for the Claimants accepted that they would fail in their claim to set aside the various orders if I held that they could have obtained the relevant evidence by the use of reasonable diligence. Counsel for the Defendant made submissions to the same effect. Both counsel drew my attention to the authorities which supported the existence of that requirement. The evidence and the argument was then directed to whether or not the Claimants had used reasonable diligence.

By way of illustration of the common ground on the requirement of reasonable diligence, I refer to exchanges which took place during counsel’s openings of their cases. In his opening, Mr Twigger explained to me the requirement as to reasonable diligence. He did not suggest that there was any room for argument as to whether such a requirement existed. His submissions were directed to showing that the Claimants had not failed to exercise reasonable diligence. In the course of Mr Warwick’s opening of Ping’s case, he too referred to the requirement of reasonable diligence. By that point, I had read some of the relevant authorities which had been provided to the court and I reminded Mr Warwick that the Fourth Edition of Spencer Bower and Handley on Res Judicata at para. 17.05, having analysed the authorities in this jurisdiction and in Australia, stated that there was no such requirement. Mr Warwick submitted that the statement in the textbook was wrong and did not represent the law in this jurisdiction. At that point, Mr Twigger intervened to say that he accepted that there was a requirement of reasonable diligence. He said that there was “lots of high authority” to that effect. The trial then proceeded on that basis.

After I had reserved judgment, Mr Twigger and Mr Hilton wrote to me on 14 May 2015, drawing my attention to the decision of Newey J in Takhar v Gracefield Developments Ltd [2015] EWHC 1276 (Ch), decided on 6 May 2015. In that case, Newey J heard full argument on the question whether there was a requirement of reasonable diligence in a case where a claimant seeks to set aside an earlier judgment or order which has been obtained by fraud. The learned judge considered the authorities in this jurisdiction and in Australia and held that there was no such requirement in this jurisdiction. The judge considered that it was sufficient for the claimant to show that he was defrauded and it was not necessary to show that in addition he had been diligent. In their letter, Mr Twigger and Mr Hilton stated that although the point had not been “pursued in closing”, I was now invited to follow Newey J’s judgment.

On 15 May 2015, Mr Warwick wrote to me with his response to the letter from Mr Twigger and Mr Hilton. He drew attention to the occasions before and during the trial when the Claimants accepted that there was a requirement of reasonable diligence. He said that this was not a case of a point that had been taken throughout and then merely “not pursued in closing”; it was a case where it had throughout been accepted by the Claimants that they had to satisfy the requirement of reasonable diligence. Mr Warwick wrote that Mr Twigger’s letter was “disturbing and inappropriate”.

Just before I finalised a draft of this judgment, I became aware of the decision of Burton J in Chodiev v Stein [2015] EWHC 1428 (Comm), published on Lawtel on 9 June 2015. Indeed, Mr Warwick also drew that case to my attention on that day. I indicated to the parties that I did not invite further submissions on that case.

As will be seen, later in this judgment, I address the question of whether the new evidence could have been obtained earlier by exercising reasonable diligence. If the law does impose a requirement that the judgment or order will not be set aside, if the new evidence relied upon would have been available earlier if reasonable diligence had been used, it is satisfied in this case. Accordingly, it is not necessary for me to consider whether the law does impose such a requirement. In view of the two recent conflicting decisions at first instance on that question, I see no point in my discussing this interesting question in this case when it will not affect my decision. I have not therefore invited further argument on this question. Nor have I invited argument on whether I should allow Jane to resile from the concession she earlier made that the law did impose a requirement of reasonable diligence.

I will first set out the pleaded case as to fraud by Madam Lim in relation to the Rich Order. I will then summarise the parties’ submissions in relation to the pleaded fraud. I will then discuss the matters arising and come to my conclusions.

Jane’s pleading of Madam Lim’s fraud, in the period prior to the Rich Order, is contained in paragraph 23 of, and the schedule to, the Re-Amended Particulars of Claim. I can summarise the allegations as follows:

In his opening submissions, Mr Twigger stated:

“To be clear: it is not a part of Jane’s claim, and she is not alleging, that Norton Rose and Jonathan Brock themselves consciously and deliberately misled the Court, or otherwise conspired with Madam Lim to defraud the Court. Whether the lawyers acted properly could not be determined in their absence and without knowing what instructions they were given. What matters is that Madam Lim must have known that the case she was advancing, through her solicitors and counsel, was misleading. The relevant rule is fraud of the party, and for these purposes, the lawyers must be regarded as the mouthpiece of the party.”

In his closing submissions, Mr Twigger stated:

“It is not Jane’s case that Madam Lim knew that she had effectively constituted a trust. Of course she could not know that: it was a legal conclusion. But she did know the facts that she had signed the Trust Instrument and that she had intended to create something that was called a trust.”

Mr Twigger submitted that when Madam Lim applied for summary judgment under RSC Order 14, she owed a duty of candour. He submitted that, when she applied for summary judgment, the duty of candour required her to inform the court that she had signed the trust deed.

RSC Order 14 rule 2 (the relevant rule at the time of the application in this case for summary judgment) prescribed the manner in which such an application should be made. Rule 2 required that the affidavit in support of the application deposed to the fact that, in the deponent’s belief, there is no defence to the claim. In the absence of authority, I would not regard that rule as imposing a “duty of candour”. If a deponent was aware of matters which he genuinely believed did not provide a defence to the claim, then I would consider that he could properly depose to the fact that there was no defence without disclosing those matters. Mr Twigger relied on a note in the 1995 White Book at 14/1/15 which refers to “the duty of candour in interlocutory matters”. No authority is cited for that note. There is, of course, a duty of full and frank disclosure and fair presentation in relation to ex parte applications but the position in relation to inter partes applications is different.

Mr Twigger submitted that there was binding authority to the effect that an applicant for summary judgment under RSC Order 14 did owe a duty to candour to the respondent to that application. He cited the two decisions of the Court of Appeal in Manzanilla Ltd v Corton Property and Investments Ltd, both given on 13 November 1996. That case involved a contract for the sale of land where the purchaser had paid a deposit to be held by the vendor’s solicitors as stakeholders. The contract later went off and the vendor and the purchaser agreed on how the deposit should be divided between them. The vendor’s solicitors were not a party to that agreement, and not made aware of it. The solicitors wished to say that in the events which had happened, the deposit was payable to the vendor and the solicitors could set off against their obligation to pay the same to the vendor, the vendor’s obligation to pay the solicitors their fees and charges. The purchaser applied for the return of the deposit and the solicitors were joined to resist that application. The purchaser applied for summary judgment under RSC Order 86. The purchaser did not disclose the compromise agreement with the vendor. The Master and the Deputy Judge gave the purchaser summary judgment. The solicitors appealed to the Court of Appeal at which point the compromise agreement was disclosed. The Court of Appeal (Butler-Sloss, Millett and Waller LJJ) allowed the solicitors’ appeal.

Millett LJ stated that the concealment of the compromise agreement was regrettable. He said that the application for summary judgment was inappropriate and the affidavit deposing to the belief that the vendor had no defence to the claim was “misleading”. He said that the deponent should have been candid with the court. Waller LJ also thought that the non-disclosure of the compromise agreement was “at the least regrettable” and the agreement was material. The purchaser attempted to give the impression that the vendor had abandoned any claim to the deposit. Butler-Sloss LJ was left with a sense of disquiet at the concealment of the agreement. She thought the affidavit was “misleading”. The members of the court differed in their views as to whether the concealment of the agreement had been material to the way the case had been decided by the Master and the Deputy Judge.

In its second decision in Manzanilla, the Court of Appeal made an order that the solicitors and counsel acting for the purchaser should show cause why there should not be an order for wasted costs against them. All of the members of the court thought that there was a prima face case of improper or unreasonable or negligent behaviour on the part of the lawyers in not disclosing the agreement even though they were divided on the question of causation. i.e. whether that had led to an increase in the appellants’ costs.

I am not persuaded that the court in Manzanilla held that there was a “duty of candour” in relation to applications for summary judgment, as distinct from holding that the affidavit in that case was “misleading”. The case can readily be understood on the basis that the concealment of the agreement meant that the affidavit contained a positive misstatement.

Mr Twigger also reminded me of the remarks of Megarry J in Miles v Bull [1969] 1 QB 258 at 266F, that:

“Order 14 is for the plain and straightforward, not for the devious and crafty.”

That remark was made in a case where the judge held that the Plaintiff’s case was one which required to be investigated at a trial and not one fit for summary judgment. I do not think that the remarks are of any real help in the present context.

It may also be relevant to refer to the judgment of Aikens LJ at [132] in the Royal Bank of Scotland case. Aikens LJ referred to the requirement in CPR PD 24, in relation to an application for summary judgment under CPR Part 24, for the applicant’s witness statement to state that the applicant believed that the respondent had no real prospect of success. It was suggested in that case that the applicant for summary judgment had not complied with that requirement. Aikens LJ thought that if there were deliberate and dishonest misstatement or concealment, then a breach of the requirement added nothing. If there were no dishonest misstatement or concealment, then there would not be a breach of the requirement.

On behalf of Ping, Mr Warwick addressed each of the pleaded allegations of fraud by Madam Lim and submitted that the allegation was not established.

There are difficulties in finding the facts relevant to these allegations of fraud. It is important to note that the alleged statements of a positive character were all made by Madam Lim’s lawyers and not by her personally. Mr Twigger has submitted that it is not open to me to make a finding that her lawyers were dishonest or knowingly made a false statement. Therefore, his case has to be that the lawyers unwittingly made false statements because they were given false information by Madam Lim, who knew the same to be false. That submission takes one into an inquiry as to the instructions which Madam Lim gave her lawyers. Privilege has been claimed in relation to that matter. It is not open to me to draw adverse inferences against Madam Lim on account of the claim to privilege and I do not do so. But the fact remains that I am asked to draw inferences about what her instructions must have been without having access to that privileged material.

I will now make my findings of fact in relation to the matters alleged. I will follow the same order in which I have earlier set out those allegations. As to the first allegation, I find that at all material times, Madam Lim knew that she had signed the trust deed.

The second allegation needs more detailed consideration. I find that when she signed the trust deed, Madam Lim intended to create a trust of the house. As to her belief as to the efficacy of the trust deed, I imagine that when she signed it she did think that she had created an effective trust. However, Mr Twigger submitted in his closing submissions that he did not contend that Madam Lim “knew” that she had effectively created a trust. More relevantly, I have to determine Madam Lim’s state of mind when she instructed NR and when NR and counsel settled the Defence and Counterclaim. I find that NR and counsel had a copy of the signed trust deed. NR had it by 7 June 1989 and it is inconceivable that it was not provided to counsel when he drafted the Defence and Counterclaim. At that point, I infer that Madam Lim was given advice that if the trust deed were relied upon by Jane (and at that time Jane was asserting an entirely different trust, not created by the trust deed) then Madam Lim could argue that as a matter of law, the trust deed was ineffective. I am not able to make a finding as to how confident that advice was but it does not matter. In this case, Ping has argued that the trust deed was ineffective and it has not been said that his argument was in any way improper (although it has not in the event succeeded). Based on the legal advice which I find she received, I find that it was open to Madam Lim to instruct her lawyers in a way which allowed them to plead in the Defence that there was no trust of the house. The position as regards the Counterclaim is different and I consider it further below.

As to the third allegation, I do not find that Madam Lim had any belief different from the belief of her lawyers as to the materiality of the above matters. I will refer to that belief below.

As to the fourth allegation, I do not find that Madam Lim had any belief different from the belief of her lawyers as to whether the above matters ought to be disclosed. I will refer to that belief below.

As to the fifth allegation, based on the legal advice which I find she received, it was open to Madam Lim to instruct her lawyers, and it was open to her lawyers to plead, that there was no trust of the house.

The sixth allegation relates to the Counterclaim where it was pleaded that Madam Lim was entitled to revoke the trust because she had not intended to create a trust in favour of Tjoan or Jane in the manner pleaded (by Jane) or at all. On my findings, Madam Lim was entitled to instruct her lawyers to plead that she had not intended to create a trust of the kind pleaded by Jane. The difficulty comes with the words “or at all”. Strictly speaking those words were unnecessary. All that the pleader had to do was to allege that there was no intention to create the kind of trust pleaded by Jane. The trust created by the trust deed was a trust of a totally different kind from that pleaded by Jane. Although I have held that Madam Lim did intend to create a trust in accordance with the trust deed, I am far from satisfied that she would have been specifically asked to approve the pleading in so far as it added the words “or at all” and I am hesitant in finding that Madam Lim was guilty of conscious and deliberate dishonesty by giving dishonest instructions to her lawyers in that respect. It may very well be that the addition of the words “or at all” was something of an excess of zeal on the part of counsel. In any event, as I will explain, I do not regard any misleading statement as to her intention, involved in the use of the words “or at all”, as being material to what happened in this case. Those words were used to support a contention that if any trust had been created, then it could be revoked or rescinded. Judge Rich held that that there was no case for the existence of a trust. There was nothing to revoke or rescind. I will deal with that topic in more detail later in this judgment.

The seventh allegation refers to the affidavit of 24 May 1994 in which the deponent solicitor stated that he believed that Jane had no pleadable defence. Mr Twigger accepts that the solicitor did have that belief. However, he submits that a defence based on the signed trust deed would have been “pleadable” and therefore it must be inferred that Madam Lim had misled the solicitor as to the factual position and, in particular, that she must have told the solicitor that she had not signed the trust deed. I am unable to draw that inference. The signed trust deed had been provided to NR before 7 June 1989 and they had noticed the fact that it had been executed. They must have considered the significance of that fact. I have already drawn the inference that they and/or counsel advised Madam Lim that she could contend that the trust deed was ineffective (just as was argued at the trial before me). What then was the reason in 1994 for the solicitor having (what is accepted to be) a genuine belief that Jane had no pleadable defence? Was it the advice given earlier as to the efficacy of the trust deed or was it that Madam Lim had told the solicitor that she did not sign the trust deed? Mr Twigger relies on the fact that NR saw the trust deed before 7 June 1989 and the affidavit was sworn in May 1994. He also relies on the fact that the solicitor at NR dealing with the matter in 1989 was Mr Moore and the deponent in 1994 was Mr Sutton. Mr Twigger suggests that it is more likely than not that Mr Sutton did not rely on the earlier assessment of the position in 1989 (and at the time of the Defence in 1990) but instead took instructions from Madam Lim at some point and it was in the course of those instructions that Madam Lim lied to Mr Sutton and told him that she had not signed the trust deed. I am not able to draw such an inference. I know that Madam Lim gave untruthful evidence later in the Singapore proceedings that she had not signed the trust deed, but I am unable to find that it is more likely than not that such a statement was the explanation for Mr Sutton’s affidavit in 1994. The other explanation which I have identified is far more obviously the likely explanation.

The eighth allegation relates to the affidavit where the solicitor deposed to the fact that Madam Lim was beneficially entitled to the house. It is accepted that the solicitor was not dishonest in making that statement. As before, it was submitted that an honest solicitor could only have made that statement if Madam Lim had lied to him and told him that she had not signed the trust deed. I do not accept that submission. I find that the statement was made primarily on the basis that it was Madam Lim’s case that Jane could not establish any of the trusts which Jane had alleged and, further, in so far as the solicitor thought about it, the trust deed (which created a different trust) was ineffective, although it was known to be signed.

Thus far, I have held that Madam Lim did not made a false statement in the course of the litigation which led to the Rich Order with the exception of the use of the words “or at all” in the Counterclaim. As to that, I am doubtful if I should find that Madam Lim was guilty of conscious and deliberate dishonesty in that respect.

If it were relevant, I would find that Madam Lim’s conduct of the litigation which led to the Rich Order was not frank and candid. However, as Lord Wilberforce explained in The Ampthill Peerage, a lack of frankness does not of itself amount to fraud. Further, I hold that a lack of candour in litigation, even in relation to an application for summary judgment, does not necessarily amount to fraud. Madam Lim and her lawyers may have sailed close to the wind in the way in which they conducted the litigation but that does not amount to conscious and deliberate dishonesty. It should also be remembered that the case put forward by Jane, which Madam Lim had to meet, was a case of a completely different trust and at no time did Jane plead that there was a discretionary trust under which she was not a beneficiary (as I have now held).

In case I am wrong to hold that there was no conscious and deliberate dishonesty on Madam Lim’s part in relation to the use of the word “or at all” in the Counterclaim, I will go on to consider whether the Rich Order was obtained by reason of that fraud. I do not consider that it was. First of all, Judge Rich did not deal with a claim to revoke or set aside a trust on the ground that Madam Lim had made a mistake or lacked the necessary intention to create a trust. Judge Rich held that the only case Jane had identified, a case of proprietary estoppel, was a case which he would not give her permission to plead. Further, the words “or at all” were not relevant to any case advanced by Jane or by Madam Lim before Judge Rich. If the words “or at all” had not been there, then the outcome of that litigation would have been the same. Of course, if Madam Lim had been under a duty to disclose to Jane that Madam Lim had signed the trust deed and if Jane had then decided to argue that there was a trust in accordance with the trust deed, even though it was a discretionary trust only and, moreover, one where Jane was not a named beneficiary, then the allegation that Madam Lim did not intend to create a trust would have been material. I say that because it would have been open to Jane to argue that Madam Lim and Ping, as trustees, or even Madam Lim as sole trustee (if that had been the true analysis) had not considered how to exercise their discretions and powers under the trust in relation to possession of the house, that they should consider whether consistently with the trust they should allow the children to continue to reside in the house and if they did so decide, then the children could permit their mother to reside there with them. However, for the reasons I have given earlier, the non-disclosure of the signed trust deed did not amount to fraud.

For the sake of completeness, I will deal with the allegation put forward on behalf of Ping that even if Jane were otherwise entitled to apply to set aside the Rich Order, she is disabled from doing so because, in the course of the litigation leading up to the Rich Order, she could have obtained a copy of the signed trust deed and/or other documents, and could then have put forward the same claim as she now puts forward in the current litigation.

In support of his contention that Jane could have obtained the signed trust deed and/or other documents if she had used reasonable diligence, before the making of the Rich Order, Mr Warwick relies on the facts that:

In his submissions, Mr Twigger addressed four matters (not all of which were advanced by Mr Warwick). First, he addressed a matter put to Jane in cross-examination as to whether she made a deliberate decision not to pursue an argument based on the trust deed because such a trust was not as helpful to her as the kind of trust which she did assert. Secondly, he addressed the significance of the letter of 7 June 1989. Thirdly, he considered whether Jane could have obtained documents from Mr Gore. Fourthly, he dealt with the point that it was Jane’s fault that her claim was struck out.

I can make the following findings in relation to the submission that the trust deed and/or other documents could have been obtained if Jane had used reasonable diligence prior to the Rich Order:

I consider that the only proper way in which Jane could have obtained a copy of the signed trust deed was to obtain it, with or without a court order, from Madam Lim. The solicitors for Jane and for the children asked Madam Lim’s solicitors for a copy of it and they were told it would not be provided. In those circumstances, I do not think that Madam Lim can successfully argue that Jane failed to exercise reasonable diligence to obtain the signed trust deed. I am assisted in coming to that conclusion by the decisions in Bills v Roe [1968] 1 WLR 925 and Skone v Skone [1971] 1 WLR 812.

In Bills v Roe, the Plaintiff sued the Defendant contractor for its negligence as to the way in which it had erected fencing to block a road. The Plaintiff crashed into the fencing and suffered injury. The Defendant wished to allege at the trial that the Plaintiff was driving under the influence of drink. The Defendant did not call any evidence to that effect. The trial judge found for the Plaintiff in relation to the allegation of negligence and awarded damages. The Defendant sought a new trial on the basis of further evidence from a passenger in the Plaintiff’s car who said that the Plaintiff was driving under the influence of drink. The Plaintiff said that the suggested further evidence could have been obtained with reasonable diligence before the trial by approaching the relevant witness and asking for his statement; reliance was placed on Ladd v Marshall [1954] 1 WLR 1489. The Court of Appeal held that the evidence could not have been obtained earlier by reasonable diligence because it was not to be expected that the Defendant should approach the witness as he was “in the other camp”.

Bills v Roe was applied by the House of Lords in Skone v Skone. That case involved a husband’s contested divorce petition relying on his wife’s adultery with a co-respondent. The wife did not give evidence and the co-respondent denied the adultery. His denials were accepted by the trial judge. After the trial, the wife gave the husband certain letters between herself and the co-respondent which were relevant to the question whether she had committed adultery with the co-respondent. The husband appealed seeking a new trial, relying on this further evidence. For this purpose, the husband had to show that he had not failed to use reasonable diligence to obtain the letters before the trial. The House of Lords held that it was not reasonable to expect the husband to ask the wife for her cooperation before the trial as she was in the other camp. The husband could have applied to the court for discovery of documents from both the wife and the co-respondent. Reference was made to Turnbull & Co v Duvall [1902] AC 429 for the proposition that a document which could have been obtained on discovery was a document which could have been obtained by the exercise of reasonable diligence. That case was distinguished on the ground that the co-respondent’s solicitors had written to say that they had no documents to disclose and the husband had no reason to suspect that there were incriminating letters.

Although neither of these cases is exactly in point, as the facts are somewhat different, they are helpful illustrations of how far someone is expected to take matters in the exercise of reasonable diligence. In this case, if Jane had applied for an order for disclosure against Madam Lim at an appropriate time, then I find that Madam Lim would have resisted disclosure of the signed trust deed and RG’s file on the grounds that the documents were privileged. Indeed, Mr Warwick submitted to me at the trial that the documents were indeed privileged. There may have been scope for argument as to whether the signed trust deed, as distinct from the solicitors’ file, was privileged. On the authority of Henry v Henry [2007] NIQB 67, that document would have been disclosable if it were an effective trust deed but would have been privileged if it had been an ineffective draft. It was Madam Lim’s case that the document was an ineffective draft. I find that if Jane had pressed an application for disclosure of the signed trust deed, her application would probably have failed. It is nothing to the point that some years after the Rich Order, Madam Lim’s solicitors extremely reluctantly acceded to an order for disclosure at a time when Jane was able to point to three pages of the trust deed, including the page executed by Madam Lim and Ping.

I am not persuaded that Jane could have obtained a copy of the signed trust deed from Mr Gore. He parted with his file at an early point and Madam Lim’s solicitors declined to return the file to RG when asked to do so. Also, if Madam Lim had been RG’s sole client at the time of the purchase of the house then Mr Gore should not have provided copies of Madam Lim’s documents to Jane and so I would not hold that there was a lack of reasonable diligence on her part in not asking him to do something which he should not have done. There were suggestions from time to time in the correspondence that RG was acting for Jane and Tjoan as well as Madam Lim in which case Mr Gore’s position could have been different. However, in the event at the trial, I was not asked to find that Jane had been RG’s client all along.

As to the fact that Jane’s claim was struck out, I agree that Jane failed to use reasonable diligence to advance her claim to a different sort of trust. However, that claim was struck out and she then had to face the claim to summary judgment on the counterclaim. The claim to summary judgment did not require Madam Lim to give discovery of documents. In any case, as explained, an application by Jane against Madam Lim for discovery would probably not have resulted in disclosure of the signed trust deed.

Standing back, it seems to me that Ping, as the representative of the estate of Madam Lim should not be able to succeed in saying that Jane failed to use reasonable diligence to obtain the signed trust deed when Madam Lim was asked to provide a copy and she refused to do so and there was no other obvious source from which to obtain the document.

I also add that production of the signed trust deed would not have given Jane as strong a case as she had at the trial before me where she was also able to rely on Madam Lim’s letters of 14 April 1986 and 16 May 1988.

Having reached these conclusions on the facts in relation to the question of reasonable diligence, it emerges that it is not necessary for me to discuss the conflict of authority represented by the decisions in Takhar v Gracefield Developments Ltd and Chodiev v Stein. Nor is it necessary to consider whether it would be appropriate to allow Jane to rely on the decision in Takhar (if I were to follow that decision) in view of her earlier concession that the court had to be able to find that the new the evidence could not have been obtained by the exercise of reasonable diligence.

The result in relation to the Rich Order is that I dismiss Jane’s application to set it aside.

The Collier Order was made on 18 March 2005, almost 10 years after the Rich Order was made on 31 March 1995. In the intervening 10 years, there had been litigation in Singapore and a number of significant developments in that litigation. The cross-examination of Madam Lim at the enquiry which began in October 2002 was a significant event. I have quoted the relevant part of Madam Lim’s evidence at paragraph 198 above. In that evidence, Madam Lim said that she did not sign the trust deed. That was untrue and I find that Madam Lim must have known that it was untrue. It was conscious and deliberate dishonesty on her part. That lie and the consequences of it affected the findings of the courts in Singapore.

Between the judgment of AR Phang on 13 June 2003 and the decision of the Court of Appeal in Singapore on 19 January 2005, Madam Lim swore an affidavit in the proceedings in the Family Division in England and there were a number of statements in those proceedings to which I will refer.

Madam Lim’s affidavit is dated 26 January 2004. She said that she made it plain to Tjoan that the house would be acquired “for me” and that it was to be an investment for her and that although Tjoan and his family could live there, that was to be in circumstances where she retained her investment. She then said that: “no Trust in relation to the Property was settled”. She also referred to the evidence at the inquiry before AR Phang to the effect that the draft trust deed had not been executed. I consider that this affidavit was deliberately misleading. It builds upon the lie that Madam Lim told at the inquiry and adds the further false statement that the house was to be an investment for her, even if she allowed Tjoan and his family to live in it.

The position statement drafted by NR on 26 January 2004 stated that there was a “draft Trust Deed which has not been executed”. AG replaced NR on 1 June 2004. On 15 June 2004, Mr Shaw’s note said that there was a suggestion that Madam Lim might declare a trust but “this was never put into effect”.

Jane’s appeal to the Court of Appeal in Singapore was dismissed on 19 January 2005 and in the judgment of Prakash J, there was a clear statement that the trust deed was never executed by Madam Lim. When the Court of Appeal said that the trust deed had not been executed, they clearly meant not signed by Madam Lim. This can be seen from the fact that they dealt separately with the question whether it would have been effective, because it did not identify the house, even if it had been signed by Madam Lim.

Mr Scott’s note, prepared for the hearing on 17 March 2005, stated:

“Although she considered placing the property into a trust (and indeed a draft trust deed was prepared) she never did so. She has remained the sole legal and beneficial owner at all times.”

Mr Scott’s note also referred to the Singapore proceedings, including the decision of the Court of Appeal on 19 January 2005. His note gave a page reference referring to that matter but it is not clear whether the page reference was to the judgment or to the court’s order following judgment. Mr Scott then stated that the combined effect of the Chancery and the Singapore proceedings was that all issues as to the ownership of the house and the right to possession of it had been concluded in Madam Lim’s favour. He submitted that the matter was now res judicata by reason of the judgments in the Chancery proceedings and in Singapore.

I consider that the statements made on Madam Lim’s behalf for use at the hearing before Mr Collier on 17 March 2005 were misleading. Her affidavit of 26 January 2004 was misleading, as described above. The various documents prepared by her lawyers in advance of that hearing were based upon her instructions as contained in her affidavit and, so far as the later documents were concerned, on the basis of the decision of the Court of Appeal in Singapore which was itself based on her untruthful evidence at the inquiry before AR Phang. I find that these misleading statements were the product of conscious and deliberate dishonesty on her part.

I also find that the statements made by Madam Lim were a contributory cause of the order made by Mr Collier. Madam Lim made her misleading statements in order to mislead and they represented the case which she put forward to Mr Collier. Jane was not in a position to contradict that case at that time. If Madam Lim had given truthful evidence when cross-examined in Singapore it would have been revealed that she did sign the trust deed. That would have changed the basis on which Mr Collier dealt with the matter.

I have already held that the signed trust deed and/or other documents such as the letters of 14 April 1986 and 16 May 1988 could not have been obtained by Jane by the use of reasonable diligence before the Rich Order. I now need to consider whether the signed trust deed and/or these other documents could have been obtained by Jane by the use of reasonable diligence before the Collier Order. I have referred to the Singapore litigation and the evidence given by Madam Lim in 2002 that she had not executed the trust deed. However, Mr Warwick points to the Anton Piller orders which were made in the Singapore litigation in December 1999 and the documents which became available to Jane as a result of the execution of those orders. He submitted that if Jane had used reasonable diligence in her search of those documents, she would have found three pages of the trust deed including the page executed by Madam Lim and Ping. That would have enabled her to press for disclosure of the entire trust deed in the way in which she later did. In that way, he submitted that the trust deed could have been obtained by Jane at some point not long after December 1999 if she had used reasonable diligence.

I do not accept the submission that Jane failed to use reasonable diligence in relation to the Anton Piller documents. The fact that Jane sought and obtained the Anton Piller orders showed a high level of diligence was used in her efforts to obtain documents from Madam Lim. When the Anton Piller orders were sought, the purpose of the orders was to obtain documents relating to the administration of the estate of Tjoan’s father. The documents obtained were voluminous. Jane instructed PWC to inspect the documents. The inspection was in connection with the Singapore litigation as to the administration of the estate. The focus of the search was on the issues in that litigation rather than on the question whether Madam Lim had signed the trust deed in relation to the house. The Anton Piller documents did not contain a full copy of the trust deed and the three pages from the trust deed were confusingly beside a different agreement so that it was not obvious that those three pages related to the trust deed. The fact is that Jane instructed PWC to do a search and they did so and did not find the three pages in question. Mr Warwick relies on the fact that Jane brought professional negligence proceedings against PWC in Singapore in which, as I understand it, she alleged that PWC had not done a proper job when searching and interpreting the Anton Piller documents. However, that action did not proceed to judgment and there are no findings of the Singapore courts to the effect that PWC were at fault. I do not have evidence which would enable me to hold that PWC failed to use reasonable diligence in a relevant respect or to hold that any such shortcomings should be attributed to Jane. The fact that the three pages were not found does not of itself establish that there was a failure to use reasonable diligence.

Accordingly, I conclude that the signed trust deed and/or other documents such as the letters of 14 April 1986 and 16 May 1988 could not have been obtained by Jane by the use of reasonable diligence before the Collier Order.

It follows that Jane has demonstrated all of the matters which must be demonstrated for the court to set aside the Collier Order on the ground that it was obtained by the fraud of Madam Lim, and I will order accordingly.

The Coleridge Order was consequential on the Collier Order. If I set aside the Collier Order then it follows, in my judgment, that I should also set aside the Coleridge Order. In addition, the Coleridge Order should be independently set aside by reason of the earlier acts by Madam Lim in misleading the court taken together with further acts of misleading the court, to which I now refer.

On 11 August 2005, Mr Pietro Marino, a partner at AG, stated in his affidavit:

“It is clear that despite Mr Hyde’s reference to a draft trust deed, no trust deed has ever been executed with regard to 39 Sheldon Avenue. In other words, a conscious decision was taken not to create a trust” (his emphasis);

Mr Marino then referred to the Singapore proceedings. He exhibited a letter from Madam Lim’s Singapore solicitor which (at paragraph 80) quoted the following part of paragraph 84 of the judgment of the Court of Appeal given on 19 January 2005:

“ … the trust deed was never executed (and even if it had been, it would not have been helpful to Jane Ong’s case since it did not purport to create a trust over 39 Sheldon Avenue) … ”

Accordingly, acting through her solicitor, Madam Lim was repeating her knowingly untruthful evidence in Singapore and the findings of the Singapore court based upon it. There was no suggestion that her solicitor was not authorised to make this statement. There was no evidence that Madam Lim was unaware of his statement. I infer that she was kept informed. In any event, the solicitor was deploying a finding made in Singapore based on Madam Lim’s untruthful evidence in Singapore.

Madam Lim instructed Mr Valentine Le Grice QC and Mr Mark Warwick (who appeared as Madam Lim’s leading counsel at the trial before me). They produced a Note for the hearing before Coleridge J on 13 September 2005. The Note referred to Mr Marino’s affidavit. The Note stated:

“Madam Lim considered placing the Property into a discretionary trust and a trust deed may have been executed. However, [Jane] was not a beneficiary named in that document. Moreover, the Property was not mentioned in the document.” (their emphasis).

A footnote to the last sentence in this statement in the Note referred to paragraph 80 of the Singapore solicitors’ letter referred to in Mr Marino’s affidavit.

It was submitted that this Note set the record straight and undid the misleading effect of what had gone before. I do not agree. The Note was not explicit and did not explain fully and clearly that it was necessary to disregard earlier findings, because the trust deed had after all been signed, notwithstanding Madam Lim’s repeated evidence to the contrary. It is clear from Coleridge J’s judgment that he did not understand that there was new information contained in this Note and that the Note prepared by Mr Scott, on which he expressly relied, now needed to be corrected. Accordingly, the Note prepared for Coleridge J did not break the chain of causation between Madam Lim’s various misleading statements and the Coleridge Order.

I do not need to consider again the question of reasonable diligence.

I will set aside the Coleridge Order which was obtained by reason of the fraud of Madam Lim.

The Writ of Possession was issued pursuant to the order for possession. It was issued because the stay contained in the Rich Order was lifted by the Collier Order and/or the Coleridge Order. As I am now setting aside the Collier Order and the Coleridge Order, the theoretical effect of that ought to be that the stay in the Rich Order should be restored.

However, the stay was lifted by the Collier Order and/or the Coleridge Order and the writ of possession was issued and enforced. I do not understand how it would be relevant at this stage to set aside the writ of possession and for that reason I will not do so. However, if following judgment, I am persuaded that there would be some point in doing so, I will consider the matter further.

The Rich Order included an order that Jane pay mesne profits in relation to the period from 17 October 1989 until possession were delivered up. The Rich Order also imposed a stay on the order that mesne profits be assessed. That stay was lifted by the Collier Order and/or the Coleridge Order but I will now set aside the Collier Order and/or the Coleridge Order. If follows that the stay in the Rich Order was not lifted and remains in place. Accordingly, the mesne profits ought not to have been assessed and it follows that I should set aside the judgment given by Master Bowles on such assessment.

When he made his order for mesne profits to be assessed, Judge Rich indicated that the right approach to the assessment of mesne profits could be affected by the decisions to be made in the Family Division as to the issues which he apparently considered would be addressed there. In the events which have happened, such issues were not determined on their merits in the Family Division but I have determined in this litigation that at all times before and after 17 October 1989, the house was subject to a discretionary trust created by the trust deed. As explained in the Royal Bank of Scotland case, where a court is satisfied that a judgment or order has been obtained by fraud, it ought to set it aside without itself deciding what order it would be appropriate to make if the matter were to be determined without regard to the former fraud. In the present case, if I leave the Rich Order in place but set aside the Collier Order and/or the Coleridge Order and the mesne profits order, then the position in relation to mesne profits is that Judge Rich’s order for mesne profits to be assessed is the subject of a stay. If there is an application for that stay to be lifted, the court will have to consider that against the background of my findings as to the discretionary trust. If the stay were to be lifted, then the court would have to assess mesne profits against the same background.

My earlier findings and comments as to the use of reasonable diligence apply again in this context.

It was submitted on behalf of the children that they were independently entitled to apply to set aside the various orders. In particular, it was said that they had locus standi to apply for such relief pursuant to CPR 40.9 as persons directly affected by the orders. It was submitted on behalf of Ping that the children did not have locus standi to apply in that way.

It is neither necessary nor appropriate for me to consider an application by the children to set aside the earlier orders (apart from the Rich Order) which I have now held should be set aside on Jane’s application. I therefore need only consider the children’s application to set aside the Rich Order.

Under CPR 40.9, a person can apply to set aside an order if that person is “directly affected” by the order. The children were directly affected by the Rich Order in so far as it contained an order for possession of the house (subject to a stay) and can therefore in principle apply to have that order set aside as against them. The children were directly affected by the order for possession of the house because, even though they were not parties to the Chancery proceedings, the order for possession took effect in relation to all persons in occupation of the house: see McPhail v Persons Unknown [1973] Ch 458 and R v Wandsworth County Court ex parte Wandsworth LBC [1975] 1 WLR 1314. The notes in the current White Book at paragraph 40.9.1 give the example of an order for possession being made in relation to land, occupied by a person who was not a party to the proceedings and not named in the order; the note indicates that such a person is able to apply for an order setting aside or varying the order for possession if he can show that he has a right to remain in occupation of the land. I consider that this note is correct. In the present case, before the order for possession was enforced against the children, based on my findings as to the existence of the discretionary trust, the children would have been entitled to have at least a hearing as to whether Madam Lim would have been entitled to possession as against them. At that hearing, on my findings, they would have been able to show that the trustees, Madam Lim and Ping, had not considered how to exercise their discretion under the trust and so Madam Lim’s unilateral decision, taken in disregard of her obligations as a trustee, to claim possession for her own benefit would not have been a valid decision. Indeed, the position would have been the same even if, contrary to my findings, Madam Lim was the sole trustee.

However, the present position is that the order for possession was executed, the children were evicted from the house, the house has been sold and it is not possible for the children to go back to live there. In these circumstances, I do not see any advantage to them in setting aside the order for possession on their application.

The other parts of the Rich Order, such as the order for mesne profits and the order for costs were not orders made against the children. Those orders were not adverse to the interests of the children. I consider that the children were not directly affected by those orders and so they are not able to apply under CPR 40.9 for those orders to be set aside. It is conceivable that the orders could have been for the benefit of the children as they were in favour of the trustee of the discretionary trust under which the children were beneficiaries. It was not argued that the fact that an order is potentially in favour of a person would allow that person to apply to have that order set aside under CPR 40.9.

I need to consider a further matter in relation to the children. I have determined that the trust deed created a discretionary trust under which the children are named as amongst the beneficiaries. Mr Warwick said it was an abuse of the process of the court for the children to seek relief by way of a declaration of the court (or any other remedy) in accordance with that determination because an application for such relief or remedy is an abuse of the process of the court. For this purpose, Mr Warwick cannot rely upon the Collier Order and/or the Coleridge Order or the writ of possession or the mesne profits order because they will be set aside. However, I have not set aside the Rich Order. That included an order for possession which was an order in rem and which led to the eviction of all of the occupiers of the house including the children.

Mr Warwick submitted that the relevant principles as to abuse of process are those set out by Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31. When he made his submissions, Mr Warwick relied on the various court orders, including the Rich Order, the Collier Order, the Coleridge Order, the order made by Hart J and the mesne profits order and the fact that the children allowed Jane to fight the case for them without themselves becoming parties. However, in view of my decision to set aside the Collier Order, the Coleridge Order and the mesne profits order, I have to assess his submission against that rather different background. The present position is that the only order of the court which directly affected the children was the order for possession made by the Rich Order and that was an order which, in principle, they would have been entitled to have set aside as against them. Further, Judge Rich ordered a stay of the order for possession with a view to keeping open the interests of the children. It was because he ordered a stay, with the agreement of Madam Lim, that the children were not then joined as parties to the Chancery proceedings. Further, when they applied to Hart J to prevent the order for possession being enforced, Madam Lim misled the court by relying on the previous evidence and court decisions to the effect that she had not executed the trust deed. In my judgment, it is not an abuse of process for the children now to obtain a determination that there is a discretionary trust under which they are named beneficiaries. They did not abuse the process of the court but Madam Lim did.

In these circumstances, I do not consider that the children should be prevented from obtaining appropriate relief from the court by reason of the alleged abuse of process.

Following judgment it will be necessary to address the heads of relief to which Jane and the children are entitled. I need to mention one matter which is raised by them in their pleadings and was raised in the course of the trial.

The children seek an order removing Ping as a trustee of the discretionary trust and appointing some other person or persons as trustees in his place. In opening the case, Mr Twigger suggested that consequential matters including the application to remove Ping and to appoint other trustees should be dealt with following judgment. In his closing submissions, Mr Twigger submitted that Ping was not a suitable trustee and I was invited to make a provisional finding that Ping should in principle be removed so that the children could then bring their claim to remove Ping to the notice of Tjoan and Elton (who are also named as beneficiaries under the discretionary trust) and bring the matter back to court if necessary.

Accordingly, Mr Twigger seemed to acknowledge that it would be appropriate for the application to remove Ping to be brought to the notice of Tjoan and Elton so that the court would take account of their views when making its decision whether to remove Ping and whom to appoint as a new trustee.

I consider that I ought not to make provisional findings on this matter and then invite representations from Tjoan and Elton. Instead the application to remove Ping should be served on Tjoan and Elton and, if the matter cannot be agreed, then the court can rule on the matter taking account of all relevant submissions which are made. At the hearing before me, Mr Warwick submitted that because the trust is a Jersey trust, the court did not have jurisdiction to remove Ping and, in particular, Ping had not submitted to the jurisdiction of the court in relation to the claim to remove him as a trustee. Although there was some argument on that point, as I am leaving to another time the question of the removal of Ping, I will not give either a final or a provisional ruling on this question of jurisdiction. That can be dealt with in due course, if the matter is not agreed.