Lutfi Salim bin Talib v British and Malaysian Trustees: Specific Production & Common Interest Privilege
In Lutfi Salim bin Talib and another v British and Malayan Trustees Ltd, the High Court of Singapore heard an appeal regarding an Assistant Registrar's order for the defendant, British and Malayan Trustees Ltd, to produce certain documents in a case concerning the administration of a trust. The claimants, Lutfi Salim bin Talib and Zayed bin Abdul Aziz Talib, alleged breach of duties by the defendant. The court, presided over by Justice Chua Lee Ming, allowed the appeal in part, finding that the defendant's affidavit regarding the non-existence of certain documents should have been treated as conclusive, but dismissed the appeal regarding documents subject to common interest privilege. The court ordered each party to bear its own costs.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Appeal allowed in part and dismissed in part.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Appeal regarding the production of documents in a trust dispute. The court addressed the conclusiveness of affidavits and common interest privilege.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Lutfi Salim bin Talib | Claimant | Individual | Appeal allowed in part and dismissed in part | Partial | |
| Zayed bin Abdul Aziz Talib | Claimant | Individual | Appeal allowed in part and dismissed in part | Partial | |
| British and Malaysian Trustees Limited | Defendant | Corporation | Appeal allowed in part and dismissed in part | Partial |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chua Lee Ming | Judge of the High Court | Yes |
4. Counsels
4. Facts
- The first claimant is a beneficiary under a trust created by an Indenture of Settlement dated 10 September 1921.
- The defendant, British and Malayan Trustees Ltd, has been the trustee of the Trust since 31 March 1989.
- A dispute arose regarding the interpretation of the Indenture, specifically whether the Pari Passu Interpretation or the Branch Interpretation should apply.
- The defendant initially adopted the Pari Passu Interpretation based on legal advice.
- The first claimant and his brother informed the defendant that the Branch Interpretation should apply.
- The defendant sought further legal advice, including opinions from M/s Allen & Gledhill LLP and Mr John Martin QC.
- The High Court decided in favour of the Branch Interpretation in OS 163/2019.
- The claimants commenced an action against the defendant, claiming breach of duties.
5. Formal Citations
- Lutfi Salim bin Talib and another v British and Malayan Trustees Ltd, Originating Claim No 230 of 2023 (Registrar’s Appeal No 10 of 2024), [2024] SGHC 85
6. Timeline
| Date | Event |
|---|---|
| Indenture of Settlement creating the Trust was dated. | |
| British and Malayan Trustees Ltd became the trustee of the Trust. | |
| Mr. Shafeeg Salim bin Talib died without issue. | |
| Allen & Gledhill LLP issued a draft opinion. | |
| Mr. John Martin QC issued an opinion. | |
| Allen & Gledhill LLP issued an opinion. | |
| Allen & Gledhill LLP issued an opinion. | |
| Allen & Gledhill LLP issued an opinion. | |
| The first claimant provided the defendant with a copy of Mr. Nicholas Le Poidevin QC’s opinion. | |
| The defendant issued Trustee’s Circular No 78. | |
| The defendant issued Trustee’s Circular No 79. | |
| The defendant filed HC/OS 163/2019. | |
| The High Court decided in favour of the Branch Interpretation. | |
| Mr. Abdul Aziz bin Amir bin Talib passed away. | |
| The claimants commenced the present action against the defendant. | |
| The parties exchanged their respective lists of documents. | |
| The claimants applied for an order that the defendant produce documents. | |
| Hearing date. | |
| Judgment date. |
7. Legal Issues
- Production of Documents
- Outcome: The court held that the 'plain and obvious' test should be applied when determining whether to go behind an affidavit relating to the production of documents.
- Category: Procedural
- Sub-Issues:
- Specific production
- Sufficiency of affidavit of documents
- Legal Professional Privilege
- Outcome: The court held that the joint interest exception to legal privilege applied to documents relating to Trustee's Circulars Nos 78 and 79 and OS 163/2019, as the legal advice was obtained for the benefit of the Trust as a whole.
- Category: Substantive
- Sub-Issues:
- Common interest privilege
- Joint interest exception
8. Remedies Sought
- Damages
- Other remedies (not specified)
9. Cause of Actions
- Breach of trust
- Breach of fiduciary duty
10. Practice Areas
- Commercial Litigation
- Trust Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| British and Malayan Trustees Ltd v Lutfi Salim bin Talib and others | High Court | Yes | [2019] SGHC 270 | Singapore | Cited for the High Court's decision in OS 163/2019, which favored the Branch Interpretation of the Indenture. |
| Soh Lup Chee and others v Seow Boon Cheng and another | High Court | Yes | [2002] 1 SLR(R) 604 | Singapore | Cited as authority for the proposition that the court may order further discovery if it has a reasonable suspicion that there are further documents to be discovered. |
| Natixis, Singapore Branch v Lim Oon Kuin and others | High Court | Yes | [2023] SGHC 301 | Singapore | Cited for the application for specific discovery under O 24 r 5 of the Rules of Court 2014 (2020 Rev Ed). |
| CIFG Special Assets Capital I Ltd (formerly known as Diamond Kendall Ltd) v Polimet Pte Ltd and others | N/A | Yes | [2016] 1 SLR 1382 | Singapore | Cited for the principle that the relationship between a trustee and beneficiary is recognised as one that gives rise to a joint interest. |
| Lewis and others v Tamplin and others | N/A | Yes | [2018] 21 ITELR 277 | N/A | Cited for the principle that beneficiaries have no joint interest in legal advice obtained by trustees for themselves personally, eg, legal advice in relation to a possible breach of trust or defending an action commenced against them. |
| Jones v The Monte Video Gas Company | N/A | Yes | (1880) 5 QBD 556 | N/A | Cited for the principle that the court has the discretion to order further discovery if the affidavit is insufficient. |
| Lyell v Kennedy | N/A | Yes | (1884) 27 Ch D 1 | N/A | Cited for the 'lighter test' of 'reasonable suspicion' as the test applicable in deciding whether to allow further discovery. |
| Talbot v Marshfield | N/A | Yes | (1865) 62 ER 728 | N/A | Cited for the principle that beneficiaries have no joint interest in legal advice obtained by trustees for themselves personally, eg, legal advice in relation to a possible breach of trust or defending an action commenced against them. |
| Krok v Szaintop Homes Pty Ltd (No 1) | N/A | Yes | [2011] VSC 16 | N/A | Cited for the principle that beneficiaries have no joint interest in legal advice obtained by trustees for themselves personally, eg, legal advice in relation to a possible breach of trust or defending an action commenced against them. |
13. Applicable Rules
| Rule Name |
|---|
| Order 11 r 2 of the Rules of Court 2021 |
| Order 11 r 3 of the Rules of Court 2021 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Rules of Court 2021 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Trust
- Indenture of Settlement
- Pari Passu Interpretation
- Branch Interpretation
- Trustee's Circular
- Legal privilege
- Common interest privilege
- Specific production
- Affidavit of documents
15.2 Keywords
- trust
- production of documents
- legal privilege
- common interest
- affidavit
- Singapore
- court
- trustee
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Production of documents | 90 |
| Trust Law | 85 |
| Legal Privilege | 80 |
| Civil Procedure | 75 |
| Fiduciary Duties | 70 |
| Evidence Law | 60 |
16. Subjects
- Trusts
- Civil Procedure
- Discovery
- Privilege