Moorthy Selvaraj (As One of the Beneficiaries of the Estate of Karupaya Selvaraj, Deceased) v. Karupayee Ammal (As the Administratrix and One of the Beneficiaries of the Estate of Karupayaselvaraj, Deceased) and Others

HCA 413/2016

[2024] HKCFI 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 413 OF 2016

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BETWEEN

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J U D G M E N T

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Introduction

1.The Plaintiff commenced the present action in February 2016 seeking an order replacing his Mother (the 1^st Defendant) as the administratrix of his Father’s estate[1] and associated orders primarily directed towards his Mother giving an account of her administration of the estate. In January 2017 the writ was amended to add an additional and different claim. The Plaintiff sought an order that his Mother perform her obligations under a deed of family arrangement dated 28 November 2005 (“DFA”) signed, alleges the Plaintiff, by himself and each of his Brothers: Mohan (the 4^th Defendant), Selvam (the administrators of his estate are the 2^nd and 3^rd Defendants) and Shivkumar (the 5^th Defendant). The Plaintiff also seeks an order that each of the Defendants perform their obligations under an oral agreement which the Plaintiff alleges was also made between them on 28 November 2005 and which he argued either formed part of the DFA, was collateral to it or was a standalone agreement made at the same time as the DFA (“Oral Agreement”).

2.On 19 May 2008 Selvam died and when the Action was commenced the co-administrators of his estate were made the 2^nd Defendant and 3^rd Defendant. The 3^rd Defendant ceased to be a party on 10 October 2017. On 12 October 2022 Mother died as on 28 March 2023, did Mohan. At the trial only the 2^nd and 5^th Defendants appeared. The 2^nd Defendant appeared in person. The 5^th Defendant was represented by Deepak Nagpal and Keith Chan. The Plaintiff was represented by Anthony Chan SC and Louis Cheng.

3.It was the Plaintiff’s position until trial that he should replace his Mother as administratrix of Father’s estate, alternatively that a professional administrator should be appointed. At trial the Plaintiff abandoned his principal contention that he should replace his Mother and accepted, as does the 5^th Defendant, that a professional should be appointed, although they differ over the identity of the appointee. The 2^nd Defendant seeks an order that she be appointed as the administratrix. Before dealing with what is a fairly simple dispute about who should be appointed to replace Mother I will deal with the principal dispute that I am required to determine, namely, the allegation that the Plaintiff and the other beneficiaries of Father’s estate agreed at a meeting on 28 November 2005 (“November meeting”) the terms of the DFA and the Oral Agreement changing their rights to the estate on intestacy.

4.There is no dispute that Selvam, Mohan and the Plaintiff signed the DFA. Shivkumar pleads in his Defence that he did not agree its terms, does not recall signing the DFA and is doubtful that the signature on the copy produced by the Plaintiff is his, however, he is not entirely sure. Shivkumar denies the Oral Agreement was made. In their Defences Mother and Mohan plead that Mother did not agree the terms of the DFA and deny the Oral Agreement was made. Mother and Mohan died after service of their Defences. The 2^nd and 3^rd Defendants deny that Mother agreed the terms of the DFA or the Oral Agreement. Their Defences were pleaded long after Selvam died. The principal issue for determination is whether Mother said that she agreed all the terms of the DFA. The language she used would have to be clear; it could not be equivocal Although the Plaintiff’s case is pleaded in such a way that it leaves open the possibility of the Court finding that the Plaintiff has failed to prove Mother agreed the DFA, but he has proved the Oral Agreement, this possibility was not canvassed before me by Mr Chan and given the Plaintiff’s evidence it would not be a credible finding. In practice if I am not satisfied that the Plaintiff has proved that Mother agreed the terms of the DFA it follows that he will not have proved the Oral Agreement.

5.Only the Plaintiff gave evidence. When his case closed the 5^th Defendant elected not to give evidence and Mr Nagpal made a no case to answer submission. I recently summarised the Court’s approach to such a submission in [29]–[32] of Re T-Hero Industrial Co. Ltd[2]. This is a two stage process. The Court first determines whether the plaintiff has demonstrated a prima facie case; if so, it will then decide whether the plaintiff’s case is established on the balance of probabilities. In practice if the case turns on factual findings the two stages will merge. This is such as case.

The DFA and Oral Agreement

6.The DFA is a short agreement. It has its origins in a draft agreement produced for Mohan by Deacons. The operative terms were as follows:

“1. The First Party, the Second Party, the Third Party, the Fourth Party and the Fifth Party expressly agree that all of the deceased’s worldwide assets and estate shall be divided as below.

2. Notwithstanding that the grant of probate in Hong Kong is pending as at the date of this Deed, the First Party, the Second Party, the Third Party, the Fourth Party and the Fifth Party expressly agree that US$5,330,781 each of the Third Party and the fourth party’s entitlement to his share in Singapore be distributed to the Third Party’s account and the fourth party account before 12^th December 2005.

3. Insofar as the deceased’s worldwide assets real properties, the First Party, the Second Party, the Third Party, the Fourth Party and the Fifth Party expressly agree as set below:

A. Office property at unit 1006 at 1065 King’s road, 10^th floor, Quarry Bay office, B1 warehouse and Mohan’s warehouse agree by all parties that will goes to under the name of first party and second party.

B. Office Property at unit 1005 at 1065 King’s road, 10^th floor, Quarry Bay and small warehouse adjoining property at 1003 to be given to party four.

C. Office Property at 1003 at 1065 King’s road, 10^th floor, Quarry Bay goes to party three and party five.

D. Property at 116-126 Tin Hau Temple Road, 8^th floor A6 will go to fifth and first party.

E. The properties in India that is No.1 leith castle north street, Santhome, and House in Veerasolam India plus cash, and things in safety box will go to first party only.

4. The sum coming from HK probate will be shared by all five parties according to Hong Kong law. Except HK$6,000,000 will be deducted from 3^rd party.

4. This Deed supersedes any agreement that may have been reached between the First Party, the Second Party, the Third Party the Fourth Party and the Fifth party in respect of the deceased’s worldwide assets and estate.”

7.The terms of the Oral Agreement are pleaded as being:

“(7) Further or alternatively, without prejudice to paragraph (6) above, an Order that each of the Defendants do perform their obligations in accordance with an oral agreement (‘the Oral Agreement’) which was made between the Plaintiff, Selvam Selvaraj and each of the 1^st, 4^th and 5^th Defendant on 28^th November 2005 as (a) part of the 2005 DFA if the same was held to be made partly orally and partly in writing; (b) collateral agreement to the 2005 DFA; or (c) a standalone agreement made at the same time as the 2005 DFA as follows:-

(i) the profits earned up to the financial year of 2003-2004 by GMT Industrial Limited be distributed to the estate of Selvam Selvaraj (i.e. to the 2^nd and 3^rd Defendants);

(ii) the profits earned up to the financial year of 2003- 2004 by G-Toys Manufacturing Limited and Global Gain Enterprise Limited be distributed to the Plaintiff;

(iii) the profits earned up to the financial year of 2003-2004 by Leaves Industries Limited to the 4^th Defendant; and

(iv) a sum of US$8 million less the amount already paid under the 2005 DFA be distributed to the Plaintiff.”

8.There is no dispute that Mother did not sign the DFA and the Plaintiff does not suggest that there is any other document signed by her indicating that she agreed its terms or the terms of the Oral Agreement.

Principles on fact finding

9.The principle allegation made by the Plaintiff and which he has to prove is that Mother agreed orally on 28 November 2005 to the terms of the DFA. Other than for the documents said to prove a payment by Mother in part performance of the DFA which I will explain later, there are no documents at all, which are in anyway referrable to Mother’s agreement. Consequently, in order to prove Mother’s agreement it is necessary for the Plaintiff to prove that Mother said at the meeting on 28 November 2005 that she agreed the terms of DFA. The only evidence (again other than part performance), which the Plaintiff relies on to prove Mother’s agreement is his own oral evidence of what he recalls was said at the meeting, which took place over 18 years ago.

10.As Coleman J observes in Yu Man Fung Alice v Chiau Sing Chi Stephen[3] determining what was said or agreed orally at a meeting, which occurred many years before trial is inherently problematic. Not only do memories fade, but even honest witnesses are prone to construct their memory of events to confirm their beliefs, prejudices, or interests[4]. In Gestmin SGPA SA v Credit Suisse (UK) Ltd[5] Leggatt J, sitting at first instance, explains the difficulty, which the unreliability of memory poses for the determination of an allegation, which a party attempts to prove by oral evidence. It also poses a difficulty for a lawyer preparing such evidence; a subject to which I shall return later. In [16]–[21] of his judgment Leggatt J describes the reasons why memory is fallible. In [22] he states what in his view is the best approach for a judge to adopt in the trial of a commercial case:

“In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

Leggatt J’s opinion is directed to commercial cases but I can see no reason why it would not be applicable to civil cases generally.

11.Leggatt J returned to this subject in Blue v Ashley[6]. In [68]–[69] he explains that his observations in Gestmin have subsequently been approved by a number of judges and academic psychologists:

“68. A long list of cases was cited by counsel for Mr Blue showing that my observations in the Gestmin case about the unreliability of memory evidence have commended themselves to a number of other judges. In some of these cases they were also supported by the evidence of psychologists or psychiatrists who were expert witnesses: see e.g. AB v Catholic Child Welfare Society [2016] EWHC 3334 (QB), paras 23-24, and related cases. My observations have also been specifically endorsed by two academic psychologists in a published paper: see Howe and Knott, ‘The fallibility of memory in judicial processes: Lessons from the past and their modern consequences’ (2015) Memory, 23, 633 at 651-3. In the introduction to that paper the authors also summarised succinctly the scientific reasons why memory does not provide a veridical representation of events as experienced. They explained:

‘…what gets encoded into memory is determined by what a person attends to, what they already have stored in memory, their expectations, needs and emotional state. This information is subsequently integrated (consolidated) with other information that has already been stored in a person’s long term, autobiographical memory. What gets retrieved later from that memory is determined by that same multitude of factors that contributed to encoding as well as what drives the recollection of the event. Specifically, what gets retold about an experience depends on whom one is talking to and what the purpose is of remembering that particular event (e.g., telling a friend, relaying an experience to a therapist, telling the police about an event). Moreover, what gets remembered is reconstructed from the remnants of what was originally stored; that is, what we remember is constructed from whatever remains in memory following any forgetting or interference from new experiences that may have occurred across the interval between storing and retrieving a particular experience. Because the contents of our memories for experiences involve the active manipulation (during encoding), integration with pre-existing information (during consolidation), and reconstruction (during retrieval) of that information, memory is, by definition, fallible at best and unreliable at worst.’

69. In addition to the points that I noted in the Gestmin case, two other findings of psychological research seem to me of assistance in the present case. First, numerous experiments have shown that, when new information is encoded which is related to the self, subsequent memory for that information is improved compared with the encoding of other information. Second, there is a powerful tendency for people to remember past events concerning themselves in a self-enhancing light.”

12.These observations have also met with approval in Hong Kong from Coleman J, who summaries them in [56] of Yu v Chiau, and also DHCJ Paul Lam SC in Sarah Sally Chan-Kent v Chim Sau Ching[7]. They are also consistent with Robert Goff LJ’s explanation of his own experience of assessing the credibility of witnesses giving evidence in cases of fraud, which are consistent with my experience and are, in my view, equally instructive in a consideration of the reliability of a witness’s memory of what was said at a meeting[8]:

“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses motives and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

13.In my view Leggatt J’s observations are also broadly consistent with the principles, which the courts have developed to guide judges in determining whether to accept a witness’s oral evidence[9]. The principles are based more on experience and common sense than the sophisticated reasoning to be found in Gestmin[10] and Blue v Ashley[11]. They include having regard to the context in which events are said to have taken place and what can be gleaned from the contents of contemporaneous documents or data. However, Leggatt J is going further than this. He is suggesting that we know that memories of what was or was not said or done are commonly inaccurate and that determining a disputed fact or matter by assessing, which of two or more conflicting recollections is likely to be correct will commonly result in an unreliable answer. Several points arise from this. First, although it is open to a party to pursue a claim based on an oral agreement, understanding or a recollection of an event, for which there is little, if any, corroborating documents the party should be informed that proving the claim may be very difficult because of the difficulties I have described in a court choosing between alternative narratives in the absence of contemporaneous records. The court does not have to choose who to believe; if it takes the view that the evidence is unreliable, it can decide the case on the burden of proof. Secondly, before assessing the oral evidence the court should determine what facts or matters cannot be disputed or are probable; what I shall refer to as the objective facts. Taking a view on the veracity of the oral evidence first and then considering what can be ascertained from the objective facts runs the risk of the objective facts being given less significance than they should be. In the present case the obvious examples of objective facts are (1) that Mother did not sign the DFA when her sons did (2) according to the Plaintiff she took a copy away to sign later despite the fact that it was his evidence that she could not read English, and (3) she never did sign the DFA. Plainly none of these facts demonstrate that Mother agreed the terms of the DFA at the November meeting. They are more consistent with her not doing so. It is against the background of these objective facts that the Plaintiff’s oral evidence has to be assessed. This brings me to the third point I would make.

14.Given the challenge of proving an oral agreement made over 18 years ago it was necessary for careful and precise evidence to be adduced. The way in which the Plaintiff’s case was formulated both in his pleading and his witness statement is lamentably inadequate.

15.In the Amended Statement of Claim Mother’s agreement to the DFA is pleaded in the following terms:

“7. On 28 November 2005, the Beneficiaries agreed orally, in writing and/or by conduct that the Deceased’s worldwide assets and the Estate shall be divided and distributed in accordance with the terms of a Deed of Family Agreement (‘DFA’).

8. So far as it was made orally, the Beneficiaries made the said agreement at a meeting on 28 November 2005 at Unit 03 on 10/F, Eastern Centre, No. 1065 King’s Road, Hong Kong.

9. So far as it was made in writing, the said agreement was evidenced by Selvam, the Plaintiff, the 4^th and 5^th Defendant signing on the DFA. The 1^st Defendant took away the signed copy of the DFA after the meeting saying she would sign it later.

…

13. Further, or alternatively without prejudice to the matters pleaded at paragraphs 7-11 above, at the meeting on 28 November 2005 described at paragraph 8 above, the Beneficiaries made an oral agreement (‘Oral Agreement’) as (a) part of the DFA (b) collateral agreement to the DFA or (c) a stand alone agreement made at the same time as the DFA in which they agreed that…”

16.The Plaintiff does not provide any particulars of how Mother came to agree the terms of the DFA with her Sons. The Plaintiff’s witness statement is equally barren of detail:

“43. On 28^th November 2005, a meeting took place between our family members, namely Mother, Selvam, Mohan, Shiva and myself at Unit 1003 (‘the Meeting’). The purpose of the Meeting was to discuss the administration and distribution of the Estate. Prior to the Meeting, Mohan had asked his solicitors to draft the DFA for the family members’ discussion and agreement.

44. During the Meeting, all family members agreed to the terms as set out in the DFA. Selvam, Mohan, Shiva and I executed the DFA in each other’s presence. Mother indicated that she would sign the DFA later and took away the signed copy of the DFA after the Meeting. I have been advised by my solicitors and verily believe that the DFA was binding on Mother, Selvam, Mohan, Shiva and myself and is still binding on each of us. A copy of the DFA has been disclosed as item no. 37 in the Plaintiff’s List.

…

48. In addition, during verbal discussions between all family members present at the Meeting, an agreement was made orally between the Mother, Selvam, Mohan, Shiva and myself (‘the Oral Agreement’). We agreed that since Selvam, Mohan and I each managed our own companies, namely GMT, Leaves and G-Toys/Global Gain respectively, it would only be fair that upon Father’s death, the profits earned up to the financial year of 2003-2004 (the time of Father’s death) by each of the family companies be distributed to the sibling who managed the company. In this regard, GMT’s profits would be distributed to Selvam, G-Toys and Global Gain’s profits would be distributed to me and Leaves’ profits would be distributed to Mohan.

49. The parties also agreed at the Meeting that a total sum of US$40 million in Father’s various overseas bank accounts, including those in Singapore, would be shared equally amongst Mother, Selvam, Mohan, Shiva and myself i.e. a sum of US$8 million to each party. At the time, Mother stated that she would first pay US$4 million to me and the remaining balance of US$4 million at a later stage.”

17.In order to satisfy the court that the Plaintiff’s memory of Mother using language that clearly indicated her agreement to all the terms of the DFA and the Oral Agreement was sufficiently reliable that it should be preferred to his Mother’s evidence and that of Mohan and Shivkuma, it was necessary at the very least to demonstrate that the Plaintiff had a clear recollection of the circumstances in which the meeting took place, how it was conducted and who said what. However, the Plaintiff does not tell us how the meeting came to be arranged, what discussions had taken place prior to the meeting, what discussions he had with his Mother prior to it, what time it started, how the discussion evolved, who said what and precisely what he recalls his Mother saying, which he says indicated her agreement to all the terms of the DFA. This may be because the Plaintiff would not provide this information to his lawyers and rejected advice that if what I have quoted was the best he could do he would lose. Be that as it may, (A) faced with what amounts to a bare assertion that his Mother agreed the terms of the DFA and the Oral Agreement, (B) the absence of any contemporaneous documents supporting her agreement other than the equivocal at best, documents said to demonstrate partial payment, and (C) Mother and the Plaintiff’s Brothers denying her agreement; it was not realistic to think that the court would find simply on the Plaintiff’s say so that Mother had agreed the DFA or the Oral Agreement.

18.Leggatt J’s observations are directed to the evidence of an honest witness. In cases in which it is likely that witnesses are lying or tailoring their evidence to present it in a way which they assume is likely to make it more compelling, the task of assessing the accuracy of oral evidence is that much harder. A recent example of a commercial case in which this problem was present is China Health Group Limited v Li Zhong Yuan & others[12]. An important component of the plaintiff’s evidence in China Health was what its principal witness, Chung Ho, recalled had been said at meetings in June and July 2014, which was the only direct evidence of what the plaintiff argued was an illicit payment to the 1^st defendant connected with the plaintiff agreeing with the 2^nd defendant changes to the redemption terms of preference shares issued by the plaintiff to the 2^nd defendant. His evidence changed materially between the filing of his first witness statement and a supplemental witness statement, which the plaintiff sought leave to introduce shortly before trial: [35]–[45] of the judgment. Mr Chung’s explanation for his change of evidence was a combination of new matters coming to mind as a result of reading the defendants’ witness statements and recalling what was said at the meetings differently because be considered the matter from a different perspective. The explanation itself demonstrates that memory is unreliable for the type of reasons explained by Leggatt J.

19.In China Health the problem of determining whose memory was reliable was made more acute because much of the evidence before me was given in Chinese and, as the plaintiff’s counsel acknowledged at the outset of the trial, involved the court determining whether the plaintiff had demonstrated that Mr Chung’s most recent recollection was on the balance of probabilities accurate and truthful and, necessarily, the defendants were lying. Once the memory of a witness is shown to be unreliable in any material respect necessarily the witness’s evidence of what was said at a meeting becomes less valuable and, when the witness’s evidence conflicts directly with that of the evidence of the defendant, it becomes of little value. Although not relevant to this case as the Plaintiff gave evidence in English, the type of problems that I have discussed are even more significant when evidence of what a witness recalls has to be interpreted, and the court’s ability to assesses nuance and demeanour are materially impaired.

20.The next matter that I need to address concerns how facts, which are not recorded in documents or independently verified are proved concerns the drawing of inferences from a defendant not giving evidence. Mr Chan argued that, to use his term, “all adverse inferences” should be drawn from the 5^th Defendant’s failure to give evidence. This suggests that the Plaintiff’s evidence is made more compelling simply by virtue of the 5^th Defendant choosing not to give evidence disputing the facts alleged by the Plaintiff. This seems to me plainly to be wrong. A defendant’s election alone to make a no case to answer submissions and, in Hong Kong, the consequential election not to call evidence, is equally consistent with the defendant taking the view that the plaintiff’s case is so weak that there is no need to give evidence. There is no presumption that an adverse inference is to be drawn from a defendant’s decision not to call a witness. There must be a case to answer before an inference can be drawn from a defendant’s decision not to call a witness to rebut it, that the witness’s evidence would not have assisted in answering the prima face case[13], but even then it does not necessarily follow that such an inference can be drawn. A defendant can proceed on the basis that although a prima facie case was advanced in pleadings and witness statements after cross-examination of the plaintiff’s witnesses it can be demonstrated that the case has not been proved on the balance of probabilities and the defendant need not call any evidence; which will normally result in a no case answer submission being made. What a failure to call a witness cannot do is to transform a plaintiff’s unsatisfactory evidence into satisfactory evidence. Before turning to address the Plaintiff’s evidence, which I have not already considered in this section of the judgment, I would deal with one other point, which concerns drawing inferences from the absence of documents.

21.Coleman J observes in [19] of Yu v Chiau[14] that the absence of a written record of an agreement may make the existence of a contract and its terms harder to prove. Mr Chan argued that this was said in the context of a commercial dispute and although in the commercial world even if a formal written contract had not been signed one would normally expect some reference to an agreement which has been made in emails, Whatsapp messages or similar, as Mother was in her late 60s during the relevant period, and could not read English, nothing could be read into the absence of anything emanating from her or sent to her referring to the DFA and to her agreement to its terms or the terms of the Oral Agreement. I would accept that less can be read into there being nothing written passing between Mother and any of her sons about the DFA than might be the case in a purely commercial transaction. However, I agree with Mr Nagpal that the same is not true as between the sons. They are businessmen and communicated by emails on occasions. On the Plaintiff’s case all four sons signed the DFA and it is uncontroversial that at least three did. It is remarkable that despite this none of them ever appear to have sent to one of the others an email or a message referencing the agreement, particularly when it was clear that (other on the Plaintiff’s case, for the part performance) it was not being implemented. The first reference to Mother having agreed the DFA comes in a letter from the Plaintiff’s solicitor dated 26 January 2016. Clearly the absence of any documentary evidence referring even indirectly to Mother agreeing the DFA is more consistent with Mother not having agreed the terms of the DFA or the Oral Agreement rather than her having done so. I also agree with Mr Nagpal that such documentary evidence as there is runs contrary to Mother having agreed the DFA. On 11 March 2008 the Plaintiff wrote to Mohan at a time when Selvam was the administrator of their Father’s estate complaining about his conduct and referring to the distribution of the assets in terms, which would have made reference to the DFA natural if all the parties had agreed to it. There is no reference to it. Also Mother’s will dated 2 June 2010 by clause 4.2 leaves Unit 03 on the 10^th floor of the Eastern Centre at No.1065 in King’s Road to Shivkumar, which is inconsistent with clause 3(c) of the DFA.

The Plaintiff’s evidence

22.The Plaintiff was a wholly unconvincing witness. His answers about the circumstances in which the DFA came to be agreed and how precisely the parties did so drifted from little if any recollection in the case, for example, of the circumstances in which the original draft of the DFA produced by Deacons came to be changed, to the unconvincingly precise such as his claim to recall that each of the signatories of the DFA signed with different pens. The clearest example of his memory and evidence being unreliable was in relation to the alleged Oral Agreement. In cross-examination he accepted that at the November meeting everything that was agreed was contained in the DFA; he did not suggest, as is his pleaded, case that in addition the Oral Agreement had been reached. In re-examination having been shown his witness statement and asked (perhaps inappropriately) whether what he described was correct, he said yes and that he had been confused by Mr Nagpal’s questions. What these answers clearly demonstrate was the unreliability of his evidence of what was discussed and agreed.

23.The Plaintiff was also cross-examined about his conduct as a director of various Family companies. His answer when faced with documents that called into question the way in which various matters were handled such as the failure to register Mother as shareholder of various companies, the refusual to provide information and explain payments to him by GMT, was to blame Mohan, say he relied on his professional advisers or simply to disagree without explaining why. For example, he denied that there had been a common understanding between him and Mohan that sums paid to them by GMT were not loans and repayable despite what is said in the board resolution dated 18 December 2014 approving the payments. He said that they had simply acted on the advice of the company’s lawyers, which contradicts what is said in [104] of his witness statement. When this was pointed out to him in cross-examination and it was suggested that the resolution and associated agreement were false documents he disagreed and said that the company had acted on its lawyer’s advice, that Mohan made the decision, and they were entitled to the money. It seems to me that this is inherently unlikely.

24.In addition to what the Plaintiff says was his Mother’s express agreement to the terms of the DFA and the Oral Agreement at the November meeting, he relies on part performance. In [14] of the Amended Statement of Claim dated 12 September 2023 it is pleaded that in or around 2005 Mother paid him US$4,000,000 in partial performance of the DFA and the Oral Agreement. This is denied by Mother in her defence. In [49] of his witness statement the Plaintiff says that she would initially pay him US$4,000,000 as part of his share of the US$40,000,000, which the Plaintiff says it was agreed as part of the Oral Agreement would be distributed amongst the siblings. In [51] he goes onto say this:

“51. In partial performance of the DFA and the Oral Agreement, Mother paid the sum of US$4 million to me in or around 2005. In around December 2005, Mother and I held a joint account in DBS Bank Ltd (Singapore branch) with account no. 0001-021769-7-031. We had invested the sum of US$3,985,000 as fixed deposit with a maturity period of 7 days. By reason of the DFA and the Oral Agreement, and on the premise that I would be entitled to the 1^st tranche of US$4 million, I had withdrawn the deposit from the joint account with Mother and transferred the same to my sole name bank account with DBS Bank Ltd (Singapore branch) (account no. 0001-023563-9-031). Copies of the Statement of Account in respect of the joint account and my sole name account for the period from 7^th December 2005 to 10^th December 2005 and 4^th October 2006 to 7^th October 2006 have been disclosed as item nos. 72-73 in the Plaintiff’s Supplemental List of Documents.”

25.However, the banking documents produced by the Plaintiff to which he refers to do not demonstrate a payment by his Mother to him. What they demonstrate is that he and his Mother had two joint accounts with US$3,985,000 and US$3,499,325.90 respectively in them in December 2005 and that the Plaintiff had a sole account with US$4,140,042.55 in it in early October 2006. Plainly these do not demonstrate a transfer by Mother to the Plaintiff of US$4,000,000 in December 2005. The fact that the Plaintiff was able to produce the statements that he has disclosed, but has failed to produce documents recording a transfer to him, whether to his personal account or a joint account in December 2005, of US$4,000,000 suggests that none took place; it certainly does not demonstrate that the alleged payment was made. It seems to me unlikely that it was.

Conclusion in respect of the DFA and Oral Agreement

26.In my view the Plaintiff has failed to show a prima facie case that Mother agreed the terms of the DFA or the Oral Agreement and, if I am wrong about that, he has failed to prove it on the balance of probabilities.

Application to replace Mother as administratrix

27.By the time this matter came on for trial the Plaintiff agreed with the 5^th Defendant that an independent professional accountant should be appointed as administrator of their Father’s estate. Ms Fan argued that she was the appropriate replacement. However, it seems to me that given the animosity and difficulties involved and her lack of relevant experience of administering an estate she would not be suitable. I have been presented with various candidates by the Plaintiff and the 5^th Defendant. The Plaintiff’s candidates are from PwC. The 5^th Defendant has proposed Deloitte or Mr Mat Ng from Grant Thornton. I am familiar with the accountants (who are primarily insolvency practitioners). All of them I would expect to be capable of administering the estate. It will not be especially complicated and in my view given that I must choose I would do so based on who would be the most economical appointee, which on the information before me is Mr Ng.

Costs

28.Most of the costs of this Action since the claim in respect of the DFA and the Oral Agreement were introduced in January 2017 have related to that claim. Clearly, the Plaintiff should pay the costs of the Action relating to those claims. Mr Chan argued that should I find against the Plaintiff in respect of those claims I should order that his costs of seeking the removal of Mother should be paid out of his Father’s estate. I disagree. What the Plaintiff principally sought until trial was his own appointment as administrator; the appointment of an independent professional of remained an alternative. Having had the benefit of hearing his evidence in my view the Plaintiff was plainly unsuitable and I would not have appointed him. He would not have achieved what he principally sought to achieve. I will make the following costs order. I will make a costs order nisi that the Plaintiff pays the 2^nd and 5^th Defendants’ costs of the Action including any costs reserved with, in the case of the 5^th Defendant a certificate for two counsel, such costs to be taxed if not agreed and paid forthwith.

Order

29.The parties should send my Clerk a draft minute of the terms of the order to be made.

Mr Anthony Chan SC and Mr Louis Cheng, instructed by Cheung & Choy, for the plaintiff

The 2^nd defendant appeared in person

Mr Deepak Nagpal and Mr Keith Chan, instructed by Karas So LLP, for the 5^th defendant

Haldanes, for the 1^st defendant, did not appear

The 4^th defendant was not represented and did not appear