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    01:17 AM Devathas Satianathan (Justices' Law Clerk, Supreme Court of Singapore)

    Case Comment on Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin (Non est factum)

        

    After a party signs a contractual document, can he avoid the obligations that flow from that contract on the basis that he did not understand the terms of the document? In Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin [2015] SGCA 36, the Court of Appeal revisited the law on non est factum by answering the question posed with a qualified “yes”.

    The case involved a deed signed by three siblings and their mother. According to the deed, the three siblings renounced their interests in their father’s estate in favour of the fourth sibling and their mother. It transpired that although the three siblings had signed the document, there was a radical difference between what they were signing away (their beneficial interest) and what they thought they were signing away (their rights to be co-administrators). In this note, I will focus primarily on the court’s observations in regard to non est factum.

    Facts

    The appellants were three siblings within the family along with their mother. The respondent, Dawood, was the last sibling. The key asset in question was the family home at 4 Merryn Terrace, situated within a stone’s throw of the Singapore Botanic Gardens. It was found to have been worth around $3m and was the principal asset within the father’s estate.

    Problems began when the father passed away on 15 March 2000. The home had been registered in his sole name. The question was how – and to whom – ownership should pass. Dawood took charge. Four months after the father’s passing, he applied to the Syariah Court for a Certificate of Inheritance, one of the documents required to administer an estate. Oddly, in his application he declared to the Syariah Court, as was reflected in the certificate, that the only beneficiaries of his father’s estate were him and his mother.

    Four years passed thereafter without event. On 19 February 2004, Dawood met his lawyer, Mr Harjeet Singh (who was assisted by Ms Gurmeet Kaur), for the first time. Dawood showed the Certificate of Insurance to Mr Singh. Based on the attendance note prepared, as well as Mr Singh’s handwritten note documenting the meeting, Dawood made no mention of his siblings. Nevertheless, the certificate was shortly thereafter discarded and Mr Singh applied for a fresh certificate, which reflected Dawood’s siblings’ positions as beneficiaries, on 24 February 2004. This indicated Mr Singh was likely alerted to the fact that Dawood was not the only child (and hence the inaccuracy of the first certificate) between 19 and 24 February 2004.

    After having received the second certificate, Mr Singh telephoned Dawood. During that conversation, Dawood instructed Mr Singh that all the appellants had agreed to appoint him as the sole administrator of his father’s estate and that his three siblings had agreed to renounce their interests in the estate and to have the home transferred to Dawood and his mother as joint tenants. Mr Singh thought this was a fair arrangement, despite hitherto not having met any of Dawood’s siblings, and did not question the instructions.

    On 27 February 2004, Mr Singh met Dawood’s family for the first time. In Mr Singh’s presence, Dawood’s siblings and mother signed various probate papers. These papers included two deeds – the Deed of Renunciation of Persons with equal rights, by which the siblings and the mother gave up their rights to administer the father’s estate, and the Deed of Renunciation of Beneficial Interest (“the RBI Deed”), by which the siblings renounced their respective interests in the father’s estate. Neither Mr Singh nor Ms Kaur kept an attendance note as to what transpired during this meeting. It was therefore up to the court to piece together what happened.

    The Judicial Commissioner found himself confronted with inconsistent and unreliable evidence from some of the witnesses and had to resort to determining the most logical possible sequence of events. In this regard, he dismissed the appellants’ account that Mr Singh had only shown them the signature pages primarily because he was not persuaded that there was a conspiracy between Dawood and Mr Singh to cheat the appellants (the High Court Judgment at [113]). He also seemed to place reliance on “Mr Singh’s professional standing as a senior lawyer with more than 30 years in practice” (the High Court Judgment at [113]).

    In any case, the deeds were signed. Pursuant to the two deeds, the home was transferred to Dawood and his mother as joint tenants on 29 March 2005. The transfer was registered on 15 April 2005.

    It transpired that neither the siblings nor the mother knew that the home was registered in the names of Dawood and his mother as joint tenants. Not only had Dawood not shown any of his siblings the title deed or taken the effort to explain the ramifications of their signing the probate papers, Mr Singh had not informed either the siblings or the mother of the transfer.

    The fallout that soon followed was marked first by the siblings’ attempt to lodge a caveat against the property on 15 November 2011. By this point, the siblings were (collectively) seeking independent legal advice. On 27 March 2013, along with their mother, they commenced their suit against Dawood. Sometime in October 2014, the mother unilaterally severed the joint tenancy. A few months later, she passed away.

    The parties’ cases

    The appellants’ case was that all the siblings – Dawood included – had come to an agreement to waive their respective interests in the father’s estate to benefit their mother solely. They thought the probate papers would give effect to this agreement. When they signed the papers they therefore did so on an erroneous footing.

    Dawood’s case was principally that all the siblings had arrived at an agreement which was accurately captured by and reflected in the probate papers.

    The decision

    At the High Court, the Judicial Commissioner found that neither of the alleged agreements had been proved (Mahidon Nichiar bte Mohd Ali and others v Dawood Sultan Kamaldin [2014] 4 SLR 1309 (“the High Court Judgment”) at [68]). For this reason, the claim was dismissed.

    The Court of Appeal agreed with the Judicial Commissioner’s finding that neither agreement had been proved (at [37]). However, it then went on to determine if the RBI Deed had been validly executed. It found it had not. This was because not only were the siblings (whose interests in this transaction were fundamentally opposed to Dawood’s) represented by the same solicitor as Dawood, that solicitor took instructions from Dawood alone, failing to check with the siblings if those instructions accurately represented their intentions (at [80] and [116]–[117]). On this ground, the Court of Appeal set aside the RBI Deed and ordered that the land register be rectified to reflect that the home was held by the parties as reflected in the (second) Certificate of Inheritance (at [136]).

    Having resolved the main issue at hand, the Court of Appeal went on to consider if the defence of non est factum was made out.

    Non est factum

    The defence of non est factum involves two limbs. First, there must be a radical difference between what the party signed and what he thought he signed. Second, the party must show he had taken care in signing the document.

    The Judicial Commissioner found that neither limb was met on the facts. First, there was no radical difference to speak of. This was because Mr Singh had explained to the siblings the effect of signing the RBI Deed (the High Court Judgment at [151] and [181]). On this basis, “what they had signed” and “what they thought they had signed” must have been aligned. Second, the Judicial Commissioner noted that even if there was a “radical difference”, the siblings had not taken care in signing the RBI Deed (the High Court Judgment at [184]).

    The Court of Appeal disagreed. This was principally because it disagreed with the Judicial Commissioner’s inference that Mr Singh must have explained the effect of signing the RBI Deed to the siblings (at [108]). Instead, it noted, in the light of Mr Singh’s conduct of “uncritically [swallowing] everything that Dawood told him”, there was “no reason to imagine he would specifically set out to draw out and impress upon the [siblings] the full significance of what they would be doing by executing the RBI Deed, especially since … it was just one among several probate documents signed on that day” (at [104]). On that basis, what the siblings thought they were signing away was not aligned with what they were actually signing away. In fact, there was a radical difference between the two. Further, the siblings could not be said to have been negligent. This was because they were simply lay and unsophisticated clients relying – reasonably – on their solicitor, Mr Singh, to protect their interests in relation to a rather complicated arrangement (at [122]).

    Comment

    The Court of Appeal agreed with the Judicial Commissioner that the doctrine of non est factum was a narrow one (at [123], citing with approval the High Court Judgment at [185]–[186]). The Court of Appeal also agreed with the Judicial Commissioner’s finding that all parties were present at Mr Singh’s office on 27 February 2004 when they signed the RBI Deed. Where they crucially differed was that, as mentioned, the Court of Appeal found that Mr Singh had not explained the effect of signing the RBI Deed to the siblings. This seemed to supply the foundation for the Court of Appeal’s view that the defence was established.

    There are a few interesting points in relation to how non est factum featured, and was dealt with, both before the High Court and the Court of Appeal. First, counsel for the appellants seemed to have only raised his non est factum argument at a rather late stage (the High Court Judgment at [175]). And even when he did so, his position was that it “was made out on the facts, but alternatively, ‘in any rate’ … had no application because (a) ss 93 and 94 of the Evidence Act (Cap 97, 1997 Rev Ed) applied; and (b) ‘no third party rights or interests were involved’” (the High Court Judgment at [178]). Notwithstanding that non est factum was seemingly reluctantly pleaded and argued, the Judicial Commissioner dealt with it in a charitable manner (see the High Court Judgment at [189]–[194], where the Judicial Commissioner dealt with the Evidence Act point). It seems fitting, then, that from shaky foundations in counsel’s reluctant submissions, the non est factum defence was eventually dealt with – upheld, no less – by way of obiter dicta.

    The second point relates to the first limb of the non est factum defence. The first limb requires a comparison between two states of affairs – what parties thought they signed and what they had in fact signed (and the ramifications flowing from that). In analysing the former, the Court of Appeal seemed to proceed on the basis that the siblings thought they were simply signing away their rights to be co-administrators (at [121]). Between this and (actually) signing away their beneficial interests, there was undoubtedly a “radical difference”. However, on the siblings’ pleaded case, they claimed to have thought that they were waiving their beneficial interests in the home to benefit their mother solely (at [21]). Both the Judicial Commissioner and the Court of Appeal found that the appellants’ alleged agreement – that all the siblings, Dawood included, had agreed to waive their beneficial interests in the home to benefit their mother – had not been proved on a balance of probabilities (at [37]). But even if there were no concluded agreement as such, it was possible that the siblings thought they were waiving their beneficial interests in the home to benefit their mother solely when they were signing the RBI Deed. Between this and actually waiving their rights to benefit both their mother and Dawood, can it still be said there was a “radical difference”?

    The next two points, I think, address this question. The third point relates to the solicitor’s conduct throughout this case. It was unmistakeable that a central theme of the Court of Appeal’s judgment was Mr Singh’s disregard for the siblings’ interests throughout the episode. The court’s concern in preventing such behaviour among solicitors in the future even manifested in a “Coda” on solicitors’ duties when acting for multiple clients with conflicting interests (at [139]–[158]). Where there were gaps in the evidence (in particular, in relation to the 27 February 2004 meeting), the Judicial Commissioner’s approach was to proceed on the basis of Mr Singh’s experience in the industry and what a reasonable solicitor of his experience would have done (the High Court Judgment at [112]). He therefore concluded that Mr Singh must have “read out to and explained to the [appellants] the contents and effect of signing the [RBI Deed]” (at [181]). The Court of Appeal, however, took a more cynical view of what Mr Singh had done – or rather, must have done – at the meeting, in the light of all his shortcomings in relation to hitherto failing to safeguard the siblings’ interests. It found that it was “improbable that Mr Singh had sufficiently brought home to the [appellants] the very distinct nature of, on the one hand, the renunciation of their rights to be administrators of the [father’s] estate and, on the other hand, the [siblings’] renunciation of their beneficial interests in the home” (at [116(a)]).

    The fourth point relates to the RBI Deed that was in fact signed and the ramifications of having the home held by the mother and Dawood in joint tenancy. The Court of Appeal noted that Mr Singh “did not explain the significance of the precise manner in which the home was to be held” by the mother and Dawood (at [116(b)]). This goes to the “dichotomy” requirement the first limb of non est factum in that the appellants’ expectation differed from what they in fact signed. But what of “radical difference”? This ties in with the second point raised above. On the appellants’ pleaded case, ie, between giving the home to the mother and Dawood on joint tenancy and giving it solely to the mother, the difference does not seem as radical. The matter was made more complicated given the state of the law in 2004 in regard to the applicability of the common law right of survivorship to matters governed by Muslim personal law (at [116(b)]). In short, it was unclear if the law of survivorship applied to such matters. At its lowest, if the law of survivorship did not apply, the practical difference was that Dawood would be entitled to half the home (as opposed to a quarter, as was Dawood’s share based on the applicable law relating to succession). At its highest (and, perhaps, most radical), Dawood would be entitled to the entirety of the home (as opposed to, once again, a quarter).

    The next two points relate to the second limb of the non est factum defence, in particular, whether the clients were negligent, and if they should have done anything different. The Court of Appeal characterised this case as one “where a group of law and unsophisticated clients had gone to the solicitors in the expectation that the latter were looking out for and would advise them properly as to their interests in connection with the execution of a document that formed part of a set of probate papers dealing with a somewhat complicated arrangement” (at [122]). The court found this reliance reasonable. As a matter of contrast, in Cheng William v Allister Lim & Thrumurgan and another and another appeal [2015] 3 SLR 201 (“Allister”), the Court of Appeal noted that “a client who omits to reveal information that the solicitor would be expected to need in order to properly carry out that which is within his special expertise” (Allister at [23]). Those comments were made in the context of the court’s finding that the client there was contributorily negligent for failing to communicate a piece of information that he appreciated was important to his solicitor – namely, his belief that the property in question had a remaining leasehold of 62 years (Allister at [32]). Assuming Mr Singh had taken on a more active role in ascertaining the siblings’ instructions and the siblings had nevertheless remained reticent about what they expected the probate papers to yield, would their actions (or inaction) amount to negligence within meaning of the second limb of non est factum? As noted by the Court of Appeal, where the solicitor acts for multiple parties with potentially conflicting instructions yet receives instructions only from one of the clients, the solicitor ought not only to communicate directly with the other clients but also to confirm if indeed the instructions he receives are reflective of their intentions (at [143] and [144]). Had Mr Singh advised the siblings to seek independent legal advice and allowed them some time to do so (and they chose not to), the siblings could arguably be said to have been negligent (see Kuek Siew Chew v Kuek Siang Wei and another [2015] 1 SLR 396 at [63]).

    Sixth, and finally, this case epitomised how fact-dependent the non est factum defence is. In Oversea-Chinese Banking Corp Ltd v Frankel Motor Pte Ltd and others [2009] 3 SLR(R) 623 (“OCBC”), the High Court rejected the plea of non est factum because, amongst other things, the prominent presence of the words “personal guarantee” and “guarantor’s name” on the guarantee executed left the appellant in a position where, even if he did not realise he was signing a guarantee, he was precluded by his negligence and carelessness from relying on non est factum (ie, he had not exercised care within meaning of the second limb) (OCBC at [26]). Could the same be said of the siblings in this case? In fact, in this case, there was a further twist. The signatures required in the RBI Deed were “palpably different” than in the other deed – in particular, the “absence of [the mother’s] signature or the need for it [in the RBI Deed] was glaringly obvious” (the High Court Judgment at [119]). That said, in OCBC, the appellant was a director who was sufficiently proficient in the English language (at [24]). Here, as the Court of Appeal took pains to emphasise, not only were the siblings “lay and unsophisticated clients” with only modest education, the transaction was complex and involved multiple documents (at [122]–[124]). Coupled with how Mr Singh featured (which was relevant insofar as the siblings were under the impression their interests were being looked after by a professional and, in this regard, they were let down), the facts of this case fall quite comfortably beyond that of OCBC.

    * This blog entry may be cited as Devathas Satianathan, "Case Comment on Mahidon Nichiar bte Mohd Ali v Dawood Sultan Kamaldin", Singapore Law Blog (13 August 2015) (http://www.singaporelawblog.sg/blog/article/127)

    ** The opinions contained in the commentary reflect the author’s own views and are not to be understood as reflecting the views of the author’s employer.

    *** A PDF version of this entry may be downloaded here

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