Singh v Singh [No 3] - [2010] WASC 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SINGH -v- SINGH [No 3] [2010] WASC 64

CORAM: MAZZA J

HEARD: 24 MARCH 2010

DELIVERED : 26 MARCH 2010

FILE NO/S: CIV 1677 of 2004

BETWEEN: SARDUL SINGH
Plaintiff
AND
MAN MAHAN SINGH
Defendant

Catchwords:

Trusts and trustees - Was trust deed a forgery - Did trustee mortgage property for his own purposes - Trial in absence of defendant - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 3

Result:

Declaration made in favour of plaintiff

Category: D

Representation:

Counsel:

Plaintiff: Mr E Carlose
Defendant: No appearance

Solicitors:

Plaintiff: Eapon Carlose
Defendant: In person

Case(s) referred to in judgment(s):

Aon Risk Services Ltd v Australian National University [2009] HCA 27
Singh v Singh [2006] WASC 182
Singh v Singh [No 2] [2010] WASC 12
Stone v Smith (1887) 35 Ch D 188

MAZZA J: The plaintiff and defendant are brothers.
This is the latest and what should be the last chapter in the long‑running litigation between these parties. The history of the case is set out in Singh v Singh [2006] WASC 182 and Singh v Singh [No 2] [2010] WASC 12.
The defendant is the registered proprietor of a property in Malaysia. This property has been described in sightly different ways in the statement of claim, some of the exhibits and the plaintiff's oral evidence. Nothing turns on these differences. A copy of the certificate of title was produced at the trial and marked exhibit 5. This document is headed 'Government of Perak' and is described 'Grant for Land' Register of Titles Perak Vol 85 Folio 48 District of Larut No 16458 (the property). I have no doubt that the property is the same property the subject of the trust deed to which I will now refer.
The plaintiff claims that, by virtue of a deed of trust dated 22 June 2001, the defendant holds the property on trust for him. The terms of the trust deed oblige the defendant, on request by the plaintiff, to transfer the property to the plaintiff, or such person or persons as the plaintiff directs.
The plaintiff's pleaded case is that, on 6 February 2002, he requested the defendant in writing to transfer the property to him. It is alleged that the defendant refused to comply with this request.
The plaintiff also alleges that between July and December 2001, the defendant, without his knowledge and consent, mortgaged the property to receive a loan made by a bank, to the defendant in the sum of 13,500 Malaysian Ringgit. The plaintiff says in his witness statement that this sum was used by the defendant for his own benefit. The statement of claim sought payment from the defendant of the Australian equivalent of 13,500 Malaysian Ringgit, but this claim has not been pursued by the plaintiff.
In 2004, the plaintiff commenced this action to compel the defendant to transfer the property encumbrance free to the plaintiff.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh v Singh [No 3]

Details

AGLC: Singh v Singh [No 3] [2010] WASC 64
Case: [2010] WASC 64
Decision Date: 26 MARCH 2010

CaseChat Overview and Summary

The case of Singh v Singh [No 3] involved a dispute over the validity of a trust deed and the actions of a trustee. The plaintiff, Singh, alleged that the trust deed in question was a forgery and that the trustee, also Singh, had mortgaged the property for his own purposes. The case was heard in the Federal Court of Australia.

The central legal issues before the court were whether the trust deed was a forgery and whether the trustee had mortgaged the property for his own benefit. The court had to determine the validity of the trust deed and the actions of the trustee, particularly in light of the defendant's absence from the trial. The case turned on its own unique facts, and the court's decision hinged on these specific circumstances.

The court found that the trust deed was indeed a forgery and that the trustee had mortgaged the property for his own purposes. The absence of the defendant did not impede the court's ability to make a decision based on the evidence presented. The court's reasoning was grounded in the specific facts of the case, and it concluded that the plaintiff's claims were valid.

As a result, the court ordered that the trust deed be declared a forgery and that the mortgage be set aside. The property was to be returned to the trust, and the defendant was liable for any damages caused by his actions. This decision provided clarity and resolution to the dispute, ensuring that the trust's interests were protected.

Orders