Case Details
- Title: AW CHEE PENG v AW CHEE LOO
- Citation: [2023] SGHCR 6
- Court: High Court (Registrar)
- Date: 5 June 2023
- Proceedings: General Division of the High Court; Suit No 468 of 2021 (Taking of Accounts and Inquiries No 1 of 2023)
- Judge/Registrar: AR Gan Kam Yuin
- Plaintiff/Applicant: Aw Chee Peng
- Defendant/Respondent: Aw Chee Loo
- Parties’ relationship: Brothers
- Legal areas: Land; co-ownership; taking of accounts; evidence; civil procedure
- Statutes referenced: Conveyancing and Law of Property Act; Evidence Act 1893 (including s 105); Evidence Act 1893 (2020 Rev Ed)
- Key statutory provision: s 73A of the Conveyancing and Law of Property Act
- Cases cited: Chua Kok Tee David v DBS Bank Ltd [2015] 5 SLR 231; [2005] SGCA 4; [2023] SGHCR 6
- Related earlier decision: Aw Chee Peng v Aw Chee Loo [2022] 5 SLR 451
- Hearing dates: 17–19 January 2023
- Judgment reserved: Yes
- Judgment length: 34 pages; 9,818 words
Summary
This High Court Registrar’s decision arose from a “family quarrel” between two brothers concerning rental proceeds generated by two co-owned properties at 12 Jalan Gelenggang (“No 12”) and 12A Jalan Gelenggang (“No 12A”). The underlying liability had already been determined in an earlier High Court judgment: the defendant brother was held liable to account personally to the plaintiff brother for receiving more than his share of rents or profits from the properties under s 73A of the Conveyancing and Law of Property Act (“CLPA”). The present decision, in Taking of Accounts and Inquiries (“TAI”) proceedings, focused on quantifying the account: how much rental income was received, what expenses could be set off, and what costs should be awarded.
The Registrar found that the defendant must account for the full rental income actually received for No 12 from 1 January 2021 to 31 December 2022, rejecting the defendant’s attempt to reduce the account by an alleged deposit “difference” that was not proven to have been returned to the tenant. For No 12A, the Registrar accepted the plaintiff’s evidence regarding rental paid by multiple tenants, rejected the defendant’s unsupported “internet fee” set-off theory, and addressed the evidential consequences of the defendant’s earlier stance that there was no rental income for No 12A. The Registrar also dealt with whether and to what extent the defendant could set off expenses said to have been incurred in connection with the properties and, separately, expenses said to relate to the family’s residence at 75 Dedap Road (“the Dedap Residence”).
What Were the Facts of This Case?
The parties are brothers who co-own two adjacent properties: No 12 (the ground floor) and No 12A (the upper unit) at 12 Jalan Gelenggang. The properties were rented out to tenants, generating rental income. The plaintiff, Aw Chee Peng, claimed that the defendant, Aw Chee Loo, had received rental proceeds in excess of his entitled share and therefore should account to the plaintiff for the excess. The co-ownership structure was such that the plaintiff was a one-third owner, while the defendant and their father were the other two owners.
In the earlier substantive judgment, the court held that the defendant was liable to account personally to the plaintiff under s 73A CLPA for receiving more than his share of rents or profits arising from the properties. Critically, the court found that the defendant’s liability to account commenced on 1 January 2021. As a result, the plaintiff became entitled to an account for rental income received from that date onwards. The present TAI proceedings were therefore not about whether liability existed, but about the computation of the amount due under the accounting order.
In the TAI, the Registrar heard evidence from the plaintiff and from the defendant. The plaintiff also relied on subpoenaed witnesses, including tenants who testified about the rental amounts they paid. For No 12, the parties agreed on the rental amounts under two successive tenancy arrangements: a monthly rental of $7,950 from at least 1 January 2021 until 9 May 2021, and a reduced monthly rental of $7,600 from 9 May 2021 until 9 May 2024. The parties also agreed on the total rental income received for the period 1 January 2021 to 31 December 2022.
For No 12A, the rental situation involved multiple tenants over the relevant period. The plaintiff compelled certain tenants to testify. One tenant (Huang) did not testify because he left Singapore and returned to China shortly before the TAI hearing began. The parties agreed on some rental totals for certain sub-periods, but disagreed on the start date of one tenant’s occupation and on whether certain deductions should be made from the rental income to reflect alleged expenses, including a purported “internet $10” charge. In addition, although there was no rental income to account for in relation to the Dedap Residence, the Dedap Residence became relevant to the TAI because the defendant claimed that he had incurred renovation and maintenance expenses there and sought to set those expenses off against the plaintiff’s share of rental income from the properties.
What Were the Key Legal Issues?
The central issue in the TAI was the quantification of the defendant’s obligation to account for rental income received from the properties from 1 January 2021 onwards. This required the Registrar to determine, in turn, the amounts of rental income actually received for No 12 and for No 12A for the period 1 January 2021 to 31 December 2022.
Beyond gross rental receipts, the TAI raised issues about permissible set-offs. The Registrar had to decide whether the defendant could set off expenses incurred in connection with the properties, and if so, in what amount. A related question was whether expenses incurred in connection with the Dedap Residence could be set off against the rental account for the properties, despite the Dedap Residence not generating rental income.
Finally, the Registrar addressed costs. The TAI proceedings were a continuation of the earlier litigation and required the court to determine what costs should be awarded in respect of the accounting and inquiry process, including how the parties’ conduct and evidential positions affected the outcome.
How Did the Court Analyse the Issues?
(1) No 12: rental income and the unproven deposit “difference”
The Registrar accepted that No 12 was rented from at least 1 January 2021 at $7,950 per month until 9 May 2021, and then at $7,600 per month under a new tenancy agreement. The parties agreed that total rental income received for the period 1 January 2021 to 31 December 2022 was $183,800.00. The defendant sought to reduce the rental income for which he had to account by claiming that there was a difference between security deposits under the two tenancy agreements: $23,850.00 under the earlier agreement and $22,800.00 under the later agreement, a difference of $1,050.00.
The defendant’s position was that the $1,050.00 difference should be treated as returned to the tenant, and therefore should reduce the rental amount to be accounted for. The Registrar rejected this. The reasoning was evidential and procedural: it was for the defendant to prove that the difference had been returned. The Registrar referred to the principle that the burden lies on the party asserting the fact to be set off, and relied on authority and the Evidence Act 1893. In particular, the Registrar cited Chua Kok Tee David v DBS Bank Ltd [2015] 5 SLR 231 at [23] and s 105 of the Evidence Act 1893 (2020 Rev Ed) to emphasise that where a party claims a return or adjustment, documentary or credible proof is required.
The Registrar found that there was no documentary evidence supporting the alleged return. The defendant did not actually testify that he had returned the difference in May 2021 (or at any other time). Although the defendant’s calculations contained a line item stating “(S$7,600.00 – S$1,050.00 (return of deposit))”, the Registrar held that this equivocal notation was insufficient to establish the return as a fact. Even if it might be “logical” that a tenant would ask for the return, the court could not find as a matter of fact that the tenant did so or that the defendant returned the difference. Accordingly, the Registrar held that the amount of rental income received from No 12 for the relevant period was the agreed $183,800.00.
(2) No 12A: acceptance of tenant evidence and rejection of unsupported deductions
For No 12A, the Registrar dealt with multiple tenants. The parties agreed on certain totals: rental income received from tenants PW2 and PW4 for January 2021 to August 2022 amounted to $14,600, and for September 2022 to December 2022 amounted to $3,160, totalling $17,760. The Registrar accepted the plaintiff’s evidence as to PW1’s rental payments. PW1 testified that his rental was $510 per month in January 2021, increased to $560 from July 2021, increased to $610 in July and August 2022, and increased to $660 from September 2022. The Registrar calculated that this totalled $13,640 by December 2022.
The defendant argued that PW1 had paid only $13,600 in total, and that the $40 difference related to an “internet $10” charge for September to December 2022. The defendant’s theory was that because of a dispute between PW1 and PW2, PW1 paid the $10 per month to the defendant, who then handed it over to PW2. The Registrar rejected this argument. The Registrar emphasised that no evidence was led about the supposed dispute or why the defendant would act as a go-between. More importantly, the Registrar noted that the defendant did not put this case to PW1 or PW2 during their oral testimony, depriving them of the opportunity to respond. This reflects a core fairness principle in adversarial proceedings: parties should be confronted with the case they must meet.
In addition, the Registrar found that the documentary exhibit relied upon by the defendant (PW1’s handwritten note “Internet $10”) did not prove the defendant’s deduction theory. The note showed that an internet charge of $10 existed, but it did not establish who was charged, who received the payment, or whether the defendant was entitled to deduct it from the rental account. The Registrar therefore found that PW1 paid a total of $13,640 for the period January 2021 to December 2022.
(3) Adverse inferences and inconsistent positions on rental income
A significant evidential theme in the TAI was the defendant’s earlier position that there was no rental income for No 12A. The plaintiff urged the Registrar to draw an adverse inference against the defendant, particularly in relation to the start date of Huang’s tenancy and the overall existence of rental income. The Registrar noted that the defendant had maintained, throughout the proceedings (including accounting affidavits, answers to interrogatories, sworn statements, and correspondence through counsel), that there was no rental income for No 12A. Only later, in the defendant’s AEIC dated 13 January 2023, did the defendant’s position appear to change.
While the provided extract truncates the later parts of the judgment, the Registrar’s approach is clear from the reasoning already set out: where a party’s position changes without adequate explanation, and where the party’s earlier stance is inconsistent with later evidence, the court may treat the inconsistency as undermining credibility and may draw adverse inferences. The Registrar’s discussion of the plaintiff’s efforts to track down tenants and compel testimony further illustrates the court’s focus on evidential reliability and the consequences of withholding or mischaracterising material facts.
(4) Set-off of expenses: properties versus Dedap Residence
The TAI also required the Registrar to consider whether expenses could be set off against the rental account. The defendant sought to set off expenses allegedly incurred in connection with the properties and, separately, expenses allegedly incurred for renovation and maintenance of the Dedap Residence. The Registrar treated the Dedap Residence as relevant only insofar as it bore on the defendant’s claimed entitlement to set-off. The legal question was essentially whether the expenses were sufficiently connected to the rental income and whether they were properly claimable in the accounting exercise.
In such accounting disputes, the court’s task is to ensure that only legitimate deductions are made from the amounts to be accounted for. The Registrar’s analysis therefore required careful scrutiny of the nature of each expense, the evidence supporting it, and whether the expenses were incurred for the benefit of the co-owned properties in a manner that justifies reducing the co-owner’s share of rental profits. The Registrar’s treatment of the Dedap Residence underscores that not all family expenditures can automatically be treated as expenses “in connection with” the rental properties, particularly where the Dedap Residence itself generated no rental income.
What Was the Outcome?
The Registrar concluded that the defendant must account to the plaintiff for the full rental income received from No 12 for the period 1 January 2021 to 31 December 2022, amounting to $183,800.00, rejecting the defendant’s attempt to reduce the account by an unproven deposit difference. For No 12A, the Registrar accepted the plaintiff’s evidence regarding rental payments and rejected the defendant’s unsupported deductions, including the “internet $10” set-off theory. The Registrar also addressed the evidential implications of the defendant’s earlier denial of rental income for No 12A, and considered the scope of permissible set-offs for expenses claimed to be connected to the properties and the Dedap Residence.
In practical terms, the outcome was a quantified accounting exercise resulting in a determination of how much the defendant owed the plaintiff as a one-third co-owner of the properties. The decision also included orders on costs for the TAI proceedings, reflecting the court’s assessment of the parties’ evidential positions and the extent to which each party’s arguments succeeded.
Why Does This Case Matter?
This case is important for practitioners because it illustrates how s 73A CLPA operates in the context of co-ownership disputes and, crucially, how courts quantify the accounting once liability is established. While the earlier judgment determined liability and the commencement date (1 January 2021), the TAI decision demonstrates that the accounting stage can be contested on granular issues such as security deposits, rental payment components, and the evidential basis for deductions.
From an evidence and procedure perspective, the Registrar’s reasoning is instructive. The decision emphasises that a party seeking a set-off must prove the underlying facts, particularly where documentary evidence is absent. It also highlights the importance of putting one’s case to witnesses during oral testimony, especially where the deduction depends on a narrative that requires explanation from the witness. The Registrar’s willingness to reject inferences that are merely “logical” but not proven reinforces the standard of proof required in civil accounting exercises.
For litigators, the case also provides a cautionary lesson on consistency. Where a party maintains a position that there is no rental income, and later shifts that position, the court may draw adverse inferences or treat the later evidence with scepticism. Finally, the treatment of the Dedap Residence shows that courts will scrutinise whether expenses are genuinely connected to the rental properties and whether they are properly claimable as deductions from co-owned rental profits.
Legislation Referenced
- Conveyancing and Law of Property Act (Singapore) — s 73A
- Evidence Act 1893 (Singapore) — s 105 (2020 Rev Ed)
- Evidence Act 1893 (Singapore) (general provisions on admissibility and evidential principles)
Cases Cited
- Chua Kok Tee David v DBS Bank Ltd [2015] 5 SLR 231
- Aw Chee Peng v Aw Chee Loo [2022] 5 SLR 451
- [2005] SGCA 4
- Aw Chee Peng v Aw Chee Loo [2023] SGHCR 6
Source Documents
This article analyses [2023] SGHCR 6 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.