Ng Bok Eng Holdings v Wong Ser Wan: Fraudulent Conveyance & Creditor's Rights

The Court of Appeal heard an appeal by Ng Bok Eng Holdings Pte Ltd and Bian Bee Company Pte Ltd against the decision of the High Court in favor of Mdm Wong Ser Wan. Mdm Wong sought to annul the transfer of a property and shares by her husband, Mr. Ng Cheong Ling, to the appellants, arguing that the transfers were fraudulent conveyances under s 73B of the Conveyancing and Law of Property Act. The Court of Appeal upheld the trial judge's decision to annul the transfers, finding that Mr. Ng intended to defraud Mdm Wong, and the appellants had notice of this intent. The court varied the order for account of rental and profits to be effective from the date Mr. Ng was made a bankrupt.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Appeal allowed in part.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding fraudulent conveyance under s 73B of the Conveyancing and Law of Property Act. The court upheld the trial judge's decision to annul the transfer of assets.

1.7 Decision Date

27 April 2005

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Wong Ser Wan	Respondent	Individual	Judgment for Respondent	Won	Ang Cheng Hock of Allen and Gledhill Tan Xeauwei of Allen and Gledhill K Shanmugam of Allen and Gledhill
Ng Bok Eng Holdings Pte Ltd	Appellant	Corporation	Appeal allowed in part	Partial	Chan Kia Pheng of Khattar Wong and Partners Leslie Chew of Khattar Wong and Partners Shaun Koh of Khattar Wong and Partners
Bian Bee Company Pte Ltd	Appellant	Corporation	Appeal allowed in part	Partial	Chan Kia Pheng of Khattar Wong and Partners Leslie Chew of Khattar Wong and Partners Shaun Koh of Khattar Wong and Partners

3. Judges

Judge Name	Title	Delivered Judgment
Chao Hick Tin	Justice of Appeal	Yes
Choo Han Teck	Judge	No
Yong Pung How	Chief Justice	No

4. Counsels

Counsel Name	Organization
Ang Cheng Hock	Allen and Gledhill
Tan Xeauwei	Allen and Gledhill
K Shanmugam	Allen and Gledhill
Chan Kia Pheng	Khattar Wong and Partners
Leslie Chew	Khattar Wong and Partners
Shaun Koh	Khattar Wong and Partners

4. Facts

Mdm Wong obtained a decree nisi for divorce from Mr Ng.
Mr Ng transferred a property and shares to the appellants.
Mdm Wong claimed the transfers were fraudulent to avoid maintenance payments.
Mr Ng claimed the transfers were to settle debts of his companies.
The trial judge found Mr Ng intended to defraud Mdm Wong.
The appellants were found to have notice of Mr Ng's intent.
Mr Ng was later made a bankrupt.

5. Formal Citations

Ng Bok Eng Holdings Pte Ltd and Another v Wong Ser Wan, CA 87/2004, [2005] SGCA 23
Ng Bok Eng Holdings Pte Ltd and Another v Wong Ser Wan, , [2004] 4 SLR 365
Ng Bok Eng Holdings Pte Ltd and Another v Wong Ser Wan, , [2004] 4 SLR 464

6. Timeline

Date	Event
1976-01-01	Mdm Wong married Mr Ng Cheong Ling.
1995-01-01	Mdm Wong applied for a summons against Mr Ng claiming for maintenance.
1996-03-01	Mdm Wong withdrew the summons after Mr Ng promised a monthly allowance.
1996-07-01	Mdm Wong took out a fresh maintenance summons.
1996-08-01	A monthly maintenance of $15,000 was ordered by consent.
1996-10-01	Mdm Wong filed a petition for divorce.
1997-12-01	Financial Agreement was reached and signed between the parties.
1998-06-12	Mr Ng entered into an agreement to sell the Mountbatten property to NBEH.
1998-06-25	Mr Ng entered into an agreement to sell his 60,000 NBEH shares to BBC.
1998-06-27	Sale of Mountbatten property completed.
1998-09-01	Sale of 60,000 NBEH shares completed.
1999-07-08	Deed of separation executed.
1999-07-09	Mdm Wong withdrew her divorce petition filed in 1996.
1999-09-01	Mdm Wong secretly recorded some of Mr Ng’s conversations.
1999-10-09	Mdm Wong filed a fresh divorce petition.
2000-03-01	Mdm Wong obtained a Mareva injunction.
2001-01-01	Mdm Wong commenced a derivative action on behalf of Aromate against Mr Ng.
2002-08-01	Mdm Wong obtained a decree nisi for divorce.
2002-10-11	A bankruptcy order was made against Mr Ng.
2005-02-21	Appeal heard.
2005-02-24	Appeal heard.
2005-04-28	Judgment reserved.

7. Legal Issues

Fraudulent Conveyance
- Outcome: The court found that the transfers were made with the intent to defraud creditors and the appellants had notice of this intent.
- Category: Substantive
- Sub-Issues:
  - Intent to defraud creditors
  - Notice of intent to defraud
  - Valuable consideration
  - Good faith
- Related Cases:
  - [1997] 1 SLR 390
  - [2003] SGHC 144
  - [1977] 3 All ER 831
Account of Rental and Profits
- Outcome: The court varied the order for account of rental and profits to be effective from the date Mr. Ng was made a bankrupt.
- Category: Remedial
- Sub-Issues:
  - Power of the court to grant an account
  - Just and necessary order
- Related Cases:
  - (1740) 2 Atk 107; 26 ER 467
  - (1869) LR 7 Eq 347
  - (1864) 2 E & AR 502
  - (1877) 25 Grant 188
  - [1899] 1 Ch 831
  - [2001] 1 AC 268
Status as Creditor
- Outcome: The court held that Mdm Wong was a creditor of Mr. Ng and was prejudiced by the transfer of assets.
- Category: Procedural
- Sub-Issues:
  - Prejudice to creditor
  - Outstanding maintenance payments
  - Breach of Financial Agreement
- Related Cases:
  - [1977] 3 All ER 831

8. Remedies Sought

Annulment of Transfers
Account of Rental and Profits

9. Cause of Actions

Fraudulent Conveyance
Breach of Financial Agreement

10. Practice Areas

Commercial Litigation
Family Law
Insolvency Law

11. Industries

Real Estate
Legal Services

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Quah Kay Tee v Ong & Co Pte Ltd	Court of Appeal	Yes	[1997] 1 SLR 390	Singapore	Cited for the interpretation and application of s 73B of the Conveyancing and Law of Property Act and its derivation from the Statute of Elizabeth 1571.
Soh Lai Chan v Kuah Peng Hock	High Court	Yes	[2003] SGHC 144	Singapore	Cited to distinguish a case where a family arrangement was not considered a fraudulent conveyance.
Cadogan v Cadogan	English Court of Appeal	Yes	[1977] 3 All ER 831	England and Wales	Cited regarding the status of a creditor under s 172 of the English Law of Property Act 1925, but distinguished on the facts.
Yogambikai Nagarajah v Indian Overseas Bank	Court of Appeal	Yes	[1997] 1 SLR 258	Singapore	Cited for the principle that fraud can be inferred from surrounding circumstances.
Lloyds Bank Ltd v Marcan	Unknown	Yes	[1973] 2 All ER 359	England and Wales	Cited for the principle that intent can be inferred from surrounding circumstances.
Re M Kushler, Ltd	English Court of Appeal	Yes	[1943] 2 All ER 22	England and Wales	Cited for the principle that an intent to defraud can be inferred from all the circumstances.
H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd	Unknown	Yes	[1957] 1 QB 159	England and Wales	Cited for the principle that the state of mind of directors and managers is the state of mind of the company.
El Ajou v Dollar Land Holdings plc	Unknown	Yes	[1994] 2 All ER 685	England and Wales	Cited for the principle of determining the directing mind and will of a company.
Higgins v York Buildings Co	Unknown	Yes	(1740) 2 Atk 107; 26 ER 467	England and Wales	Cited regarding creditors not being entitled to an account of rents and profits before a conveyance is set aside.
Reese River Silver Mining Company v Atwell	Unknown	Yes	(1869) LR 7 Eq 347	England and Wales	Cited (in obiter) regarding creditors not being entitled to an account of rents and profits before a conveyance is set aside.
Bank of Upper Canada v Thomas	Upper Canada Court of Error and Appeal	Yes	(1864) 2 E & AR 502	Canada	Cited regarding creditors not being entitled to an account of rents and profits before a conveyance is set aside.
Smith v Drew	Court of Chancery of Ontario	Yes	(1877) 25 Grant 188	Canada	Cited regarding the question of whether the court should grant an order for an account.
In re Mouat	Unknown	Yes	[1899] 1 Ch 831	England and Wales	Cited as a decision on the Elizabethan Statute where the court avoided the fraudulent conveyance and granted an injunction.
Attorney General v Blake	House of Lords	Yes	[2001] 1 AC 268	England and Wales	Cited for the principle that in exceptional cases, the court can grant the remedy of requiring the defendant to account for benefits received from a breach of contract.
In re Hallett’s Estate	Unknown	Yes	(1880) 13 Ch D 696	England and Wales	Cited for the principle that the rules of Courts of Equity are not supposed to have been established from time immemorial and are altered, improved, and refined from time to time.
Lister v Hooson	Unknown	Yes	[1908] 1 KB 174	England and Wales	Cited regarding the requirement for unsecured creditors to file proofs of debt in bankruptcy.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Section 73B Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed)	Singapore
Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)	Singapore
Bankruptcy Act (Cap 20, 2000 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Fraudulent Conveyance
Section 73B CLPA
Intent to Defraud
Notice of Intent
Creditor
Valuable Consideration
Good Faith
Account of Profits
Maintenance Payments
Financial Agreement

15.2 Keywords

fraudulent conveyance
creditor's rights
property transfer
bankruptcy
matrimonial assets
Singapore law

17. Areas of Law

Area Name	Relevance Score
Fraudulent Conveyance	90
Chancery and Equity	80
Civil Procedure	70
Property Law	60
Division of Assets	60
Family Law	50
Bankruptcy	40
Contract Law	30

16. Subjects

Conveyancing
Fraud
Bankruptcy
Family Assets