1 All of the parties to this action are siblings. ¹ Although there are nine parties to this action, there are in fact only eight siblings. That is because the second defendant is the first defendant sued in his capacity as the sole intended executor of the estate of the parties’ late mother, Ms Chan Swee Hiong @ Tjeng Soei Siang (“the Mother”). ²

2 The first defendant is registered as the sole owner of a house at 8 Jalan Pari Kikis, Singapore 488534 (“the Property”). ³

3 The claimants’ pleaded case is as follows. The first defendant holds legal title to the Property subject to obligations that he undertook orally to the Mother before the purchase of the Property. The Mother lent him the entire purchase price of the Property. ⁴ The loan was subject to the principal term or understanding that the first defendant would sell the Property after the Mother’s death if a majority of the siblings wished to do so and then divide the sale proceeds equally among the siblings. ⁵

4 The Mother died in 2005. ⁶

5 By this action, the claimants seek to hold the first defendant to the obligations that they allege he undertook to the Mother. The primary legal difficulty that they face is that it is not their case that he undertook any of these obligations directly to any of them. The claimants therefore advance three causes of action against the first defendant: (a) a claim for breach of these obligations characterised as a contract that the claimants seek to enforce in right of the Mother through the procedure known as the Vandepitte procedure (see [49] below); (b) a claim that the first defendant holds the Property on constructive trust for the claimants; and (c) a claim that the first defendant would be unjustly enriched if he is not held to his obligations to the Mother. ⁷

6 The defendants applied to strike out the claimants’ statement of claim in its entirety on the ground that it discloses no reasonable cause of action. An assistant registrar (“the AR”) allowed the application and dismissed the action.

7 The claimants have appealed against the AR’s decision to a judge in chambers.

8 For the reasons that follow, I have dismissed the claimants’ appeal. In brief, their claim is plainly and obviously unsustainable. The contract claim fails at its threshold. The Vandepitte procedure is available only to the beneficiary of a trust. The claimants are unable to identify any type of trust on which they rely. Nor does the statement of claim plead facts capable of establishing that the Mother held the benefit of the first defendant’s contractual obligations on trust for them. The constructive trust claim fails because the equity that the claimants invoke – known as the Pallant v Morgan equity (see [83]–[87] below) – requires both: (a) an arrangement that the claimants were to have an interest in the Property that precedes the acquisition of the Property; and (b) detriment suffered in reliance on that arrangement. Neither requirement is even pleaded. The claimants have not pleaded any facts that could have operated in equity to give rise to a constructive trust. All that the claimants plead, at best, is the breach of a constructive trust that they simply assert arose. The unjust enrichment claim was wholly misconceived. It was rightly withdrawn in the course of oral argument.

9 The claimants have appealed to the Appellate Division against my decision to dismiss their appeal. I now set out the grounds for my decision.

10 As I have mentioned, the parties are all eight of the Mother’s children. ⁸ The Mother was an Indonesian citizen. ⁹ So too was her husband, Mr Chong Tong Yee (“the Father”). ¹⁰

11 The Mother executed a will in August 1997. It names the first defendant as the sole executor of her estate. ¹¹ No grant of probate naming the first defendant as her sole executor has ever been issued in respect of her estate. ¹² The first defendant is joined to this action as his mother’s intended sole executor because the Vandepitte procedure requires that joinder.

12 The defendants’ application to strike out the statement of claim is brought on the sole ground that it discloses no reasonable cause of action. In considering an application brought on that ground, the court receives no evidence (O 9 r 16(2) of the Rules of Court 2021 (“the Rules”)) and therefore must assume that the facts as pleaded are true. I must therefore deal with this appeal on the same basis. Therefore, nothing in these grounds amounts to a finding of fact or should be taken to amount to a finding of fact.

13 I assume to be true the following summary of the relevant facts that I have drawn entirely from the statement of claim.

14 In 1958, the Mother and the Father purchased a family home at 2 Kingsmead Road, Singapore 267957 (“the Kingsmead Property”). ¹³ At some time between 1970 and 1981, the Father transferred his share in the Kingsmead Property to the Mother. ¹⁴

15 In 1982, financial difficulties drove the Mother to sell the Kingsmead Property. ¹⁵ She intended to use the proceeds of the sale to pay off her debts and to buy a new family home. ¹⁶ By the end of 1982, she had found a buyer for the Kingsmead Property at a price of $900,000. ¹⁷ She had also decided to purchase the Property, which was for sale at $505,000. ¹⁸

16 In December 1982, the Mother paid the deposit of $50,500 to the vendor of the Property. ¹⁹ The solicitors that she thereafter engaged advised her that she could not take a conveyance of the Property because she was not a Singapore citizen. The Residential Property Act 1976 (2020 Rev Ed) (“the RPA”) prohibited her from becoming the owner of the Property without permission from the Controller of Residential Property. ²⁰ Her solicitors applied for the necessary permission. Permission was refused. ²¹

17 The refusal left the Mother in what the claimants call “a quandary”. ²² She had committed herself both to selling the Kingsmead Property and to purchasing the Property. She stood to lose her deposit if she withdrew from the purchase. And her family urgently needed a home. ²³

18 The Mother’s solution was to lend the purchase money for the Property to a sibling who was then a Singapore citizen. ²⁴ Only two of the siblings were then Singapore citizens: the first defendant and the third claimant. The third claimant already owned her own property. ²⁵ The Mother therefore decided to lend the purchase money to the first defendant. ²⁶

19 In January 1983, the Mother lent $505,000 to the first defendant ²⁷ on the terms set out at para [21] below. The first defendant used the money to purchase the Property in his sole name. At the same time, he granted the Mother a mortgage over the Property. In March 1983, the Property was conveyed to the first defendant as its sole registered owner. ²⁸ He has, from that day to the present day, remained the sole registered owner of the Property.

20 The first defendant has never repaid any part of the Mother’s loan. Her mortgage remains on the register as a charge on the Property. ²⁹

21 The Mother lent the purchase money for the Property to the first defendant on the following oral terms or on the following common understanding (“the Agreement”): ³⁰

22 In the alternative, the claimants plead that these terms formed an oral collateral agreement between the Mother and the first defendant (“the Collateral Agreement”) ³¹ that is “evidenced by” the mortgage. ³² The claimants also plead an implied term that the first defendant will pay each claimant an equal one-eighth share of the Property’s market value if he were to dispose of the Property otherwise than by sale. ³³

23 Counsel for the claimants accepts that the Agreement and the Collateral Agreement are nothing more than the same contract pleaded in two different ways. ³⁴ I therefore refer to both simply as “the Agreement”.

24 The Mother told the first, second and sixth claimants of the existence of the Agreement in January 1983. ³⁵ She told the remaining claimants about it separately and later. ³⁶ She reiterated to the claimants on various occasions that the Agreement was intended to safeguard the Property as the family home and ultimately to benefit all of the siblings. ³⁷ She assured the claimants that the first defendant had promised to honour the Agreement and that they did not therefore need to take any steps to protect their interest in the Property. ³⁸

25 Since the purchase of the Property in 1983, various claimants and their family members have occupied it. ³⁹

26 The first claimant became a Singapore citizen in 1998. ⁴⁰ Three of the siblings were, from that point on, Singapore citizens: the first claimant, the third claimant and the first defendant.

27 The dispute crystallised in 2023, four decades after the purchase of the Property.

28 Since late 2023, the first defendant has asserted to the first claimant that he can deal with the Property as he pleases, ie, without regard to the Agreement. ⁴¹

29 In December 2024, pursuant to the Agreement, the claimants’ solicitors asked the first defendant by letter to: (a) sell the Property; (b) divide the proceeds equally among the eight siblings; and (c) make the first and third claimants co-owners of the Property. ⁴²

30 The first defendant did not comply.

31 The claimants commenced this action in March 2025.

32 The statement of claim pleads the three causes of action that I have described at [5] above: (a) a claim for breach of contract, invoking the Vandepitte procedure; (b) a claim for a constructive trust; and (c) a claim in unjust enrichment. The principal relief that the claimants seek is an order that the Property be sold and that the net sale proceeds be divided equally among the eight siblings. ⁴³ In the alternative, the claimants seek an order that the first defendant transfer a one-third share in the Property to each of the first and third claimants or pay damages to be assessed. ⁴⁴

33 In May 2025, the defendants applied to strike out the statement of claim in its entirety under O 9 r 16(1)(a) of the Rules. ⁴⁵

34 The AR allowed the application, struck out the statement of claim and dismissed the action with costs. ⁴⁶ His reasons for allowing the application are set out in a judgment that he handed down in September 2025 (“the Judgment”).

35 Before the AR, the defendants advanced six grounds in support of their application. ⁴⁷ First, the claims contravene ss 3 and 23 of the RPA. Second, s 6(d) of the Civil Law Act 1909 (2020 Rev Ed) (“the CLA”) renders the Agreement unenforceable. Third, the claimants have no standing to enforce the Agreement and cannot invoke the Vandepitte procedure. Fourth, the claims in constructive trust and unjust enrichment have no pleaded factual basis. Fifth, the first defendant has no authority to act on behalf of the Mother’s estate because no grant of probate in his favour has ever been extracted and he is therefore incapable of being sued in that capacity as the second defendant. Sixth, the claims are time barred under the Limitation Act 1959 (2020 Rev Ed).

36 The AR relied on the first, third and fourth grounds to strike out the statement of claim.

37 On the contract claim, he held that the claimants could not invoke the Vandepitte procedure for three reasons. First, the Mother’s contractual rights under the Agreement are not choses in action capable of being held on trust. ⁴⁸ Second, and in any event, the statement of claim pleads no material facts to support the existence of any trust of those rights. ⁴⁹ Third, even if such a trust arose, the beneficial interest that it would confer on the non-citizen siblings contravenes s 3 of the RPA. ⁵⁰

38 On the constructive trust claim, the AR held that the elements of the Pallant v Morgan equity are not made out. ⁵¹ Any institutional constructive trust would in any event have arisen at the time of acquisition and would therefore contravene ss 3 and 23 of the RPA. ⁵² Finally, the claimants have no sustainable cause of action to support any claim for a purely remedial constructive trust. ⁵³

39 On the unjust enrichment claim, the AR held that any enrichment of the first defendant was at the Mother’s expense and not at the claimants’ expense. ⁵⁴

40 On appeal, the claimants attack each strand of the AR’s reasoning. ⁵⁵

41 On the contract claim, the claimants submit that a contractual right is itself a chose in action and that a trustee need not hold any interest in property in order to hold the benefit of a contractual obligation on trust. ⁵⁶ They submit that the circumstances pleaded in the statement of claim suffice to show that the Mother intended to hold the first defendant’s contractual obligations on trust for the claimants. ⁵⁷

42 On the constructive trust claim, the claimants submit that the Pallant v Morgan equity arises from the Mother’s dealings with the first defendant and not from their own dealings with him, and that the constructive trust the equity gives rise to arises only when the acquiring party disavows the pre-acquisition arrangement. ⁵⁸ On that basis, they say, their claim is outside the prohibitions in the RPA. ⁵⁹

43 On the unjust enrichment claim, they rely on the concept of interceptive subtraction. ⁶⁰

44 On these points, the defendants defend the AR’s decision on all of the grounds that he relied on in his judgment. They emphasise what they describe as the insurmountable obstacle of the RPA. ⁶¹ Either the claimants assert a beneficial interest in the Property (in which case the RPA avoids that interest), or they assert no such interest (in which case they have no basis for any of the relief that they seek). ⁶² The defendants also submit that the claimants’ two positions are irreconcilable. The claimants deny that the Agreement conferred on anyone an interest in the Property in order to put their claim outside the prohibitions in the RPA. At the same time, they assert an arrangement under which they were to have an interest in the Property in order to invoke the Pallant v Morgan equity. ⁶³

45 Three issues arise on the appeal before me:

46 The principles governing striking out are well established and were common ground. They can be stated briefly.

47 The court’s power under O 9 r 16(1)(a) of the Rules is to be exercised only in plain and obvious cases: The “Osprey” [1999] 3 SLR(R) 1099 at [6]; Masoud Rahimi bin Mehrzad and others v Attorney-General [2024] 4 SLR 331 at [23]. A reasonable cause of action is one that has some chance of success when only the allegations in the pleading are considered: Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [21]. A cause of action will not be struck out under this limb merely because it is weak and unlikely to succeed. But a cause of action that is legally unsustainable will be struck out under this limb. A cause of action is legally unsustainable if it is clear as a matter of law at the outset that, even if the claimant were to succeed in proving all the facts that he offers to prove in his pleading, he will not be entitled to the remedy that he seeks: The “Bunga Melati 5” [2012] 4 SLR 546 at [39].

48 The claimants accept that they are not parties to the Agreement. ⁶⁴ They therefore accept that they cannot sue on it in their own right. ⁶⁵ They also accept that the Contracts (Rights of Third Parties) Act 2001 (2020 Rev Ed) cannot conceivably apply to a contract made in 1983. ⁶⁶ Their claim in contract therefore stands or falls with their ability to invoke the Vandepitte procedure.

49 The Appellate Division considered the Vandepitte procedure in Finaport Pte Ltd v Techteryx Ltd and another matter [2025] 1 SLR 1236 (“Finaport”). The Vandepitte procedure permits a beneficiary of a trust to pursue a cause of action that the trustee holds on trust for the beneficiary, in circumstances where the trustee refuses, in breach of duty, to pursue the cause of action against a third party: Finaport at [40]–[41]. Invoking the Vandepitte procedure is nothing more than invoking a procedural short-cut. Equity offers a beneficiary in that situation the procedural shortcut of suing the third party directly and joining the trustee as a co-defendant. The Vandepitte procedure thereby telescopes into a single action what would otherwise be two successive actions: (a) the beneficiary’s action against the trustee to compel him to perform his duty by pursuing a substantive cause of action against a third party that is vested in the trustee as part of the trust property; and, if that action succeeds, (b) the trustee’s consequent action against the third party. Because the effect of the Vandepitte procedure is purely procedural, it confers no substantive rights on a beneficiary: Finaport at [2] and [40].

50 It follows that a claimant who invokes the Vandepitte procedure must successfully negotiate two steps. At the first step, the claimant must establish that there is property capable of forming the subject matter of a trust. Here, that property is said to be the benefit of the first defendant’s contractual obligations to the Mother under the Agreement. At the second step, the claimant must establish facts from which the law will find a trust of that property in his favour.

51 The AR held that the claimants failed at the first step. ⁶⁷ I differ from him on that point (see [52]–[64] below). But I hold, in any event, that the claimants fail at the second step (see [66]–[78] below). That holding suffices to warrant dismissing the claimants’ appeal against the AR’s decision to strike out the contract claim.

52 The AR’s analysis on the first step rested on three propositions. First, for the Mother’s contractual rights against the first defendant to be capable of being the subject-matter of a trust, they must amount to choses in action. Second, a chose in action is a species of property that can be claimed or enforced only by commencing action to vindicate the property right, and not by taking physical possession of the property: Ying Khai Liew, Guest on the Law of Assignment (Sweet & Maxwell, 4th Ed, 2021) at para 1-07. Third, the Mother had no right to any property enforceable by action, because “[e]ven if [the Mother] were to enforce the contractual promises…against the first defendant, she would not be able to claim any personal rights over the [Property] herself”. ⁶⁸ From these three propositions, the AR concluded that her contractual rights against the first defendant did not constitute choses in action that can be the subject matter of a trust.

53 My difficulty with the AR’s conclusion lies only in his third proposition.

54 A chose in action is property even if the right that its holder must vindicate by action to take possession of it is a purely personal right. The common law’s classification of personal property assumes as much. All personal property is either in possession or in action: “[a]ll personal things are either in possession or in action. The law knows no tertium quid between the two”: Colonial Bank v Whinney (1885) 30 Ch D 261 at 285 per Fry LJ. His analysis was approved on appeal: Colonial Bank v Whinney (1886) 11 App Cas 426. The chose in action is accordingly defined in terms that are themselves proprietary. In Torkington v Magee [1902] 2 KB 427 at 430, Channell J described the expression “chose in action” as one “used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession”. That remains the definition today. Moore-Bick LJ adopted it in Your Response Ltd v Datateam Business Media Ltd [2015] QB 41 at [13], in a judgment which likewise describes intangible property as “consisting of rights to benefits obtainable only by action (and thus known as choses in action)”. On the orthodox taxonomy, therefore, the fact that a right can be enjoyed only by claiming or enforcing it by action is precisely what places it within this category of property, regardless of whether the object of that right is classified as personal or proprietary in nature.

55 The paradigm chose in action is the simple contract debt. As between creditor and debtor, a debt is as purely personal a right as a right can be. Yet the law has long treated that right, viewed as an asset in the creditor’s hands, as property. At common law a debt was regarded as a strictly personal obligation, and its assignment was for that reason suspect. Equity took a different view: it “admitted the title of an assignee of a debt, regarding it as a piece of property, an asset capable of being dealt with like any other asset, and treating the necessity of an action at law to get it in as a mere incident”: Fitzroy v Cave [1905] 2 KB 364 at 372 per Cozens-Hardy LJ. In the same vein, a debt has been described as a species of property even though litigation is required to reduce it into possession: Camdex International Ltd v Bank of Zambia [1998] QB 22 at 32F–32G per Hobhouse LJ, citing Ellis v Torrington [1920] 1 KB 399 at 411 per Scrutton LJ. The modern statement of the position is that of Lord Hoffmann in Re Bank of Credit and Commerce International SA (No 8) [1998] AC 214 at 226H: “The depositor’s right to claim payment of his deposit is a chose in action which the law has always recognised as property.” The depositor holds nothing but a personal right against the bank. Yet that right is an asset that may be sold, assigned or charged, and which the law will protect as the depositor’s property.

56 There is no paradox in this once it is appreciated that a chose in action has a dual aspect. As between obligee and obligor, the right is personal: it binds the obligor alone, and it is enforced against the obligor by action. As between the obligee and the rest of the world, the right is an asset that its holder alone is entitled to enjoy, and a right that the holder may alienate, charge, settle on trust or bequeath, which creditors may attach in execution, and which vests in the holder’s trustee in bankruptcy or liquidator upon insolvency. Even the benefit of a contract expressed to be incapable of assignment may be held on trust: Don King Productions Inc v Warren and others [2000] Ch 291.

57 Statute proceeds on the same footing. Section 4(8) of the CLA renders an absolute written assignment of “any debt or other legal chose in action”, upon written notice to the debtor, effective in law to “pass and transfer the legal right to such debt or chose in action”. The definition of “property” in s 2(1) of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) expressly includes things in action.

58 The proprietary character of a chose in action thus resides not in any thing that is capable of possession but in the holder’s exclusive entitlement to the benefit of the obligation, an entitlement that is good against third parties generally. The action by which that benefit must be realised is merely the mode of enforcement. It is “a mere incident” of the asset, in Cozens-Hardy LJ’s phrase: see further Roy Goode, “Ownership and Obligation in Commercial Transactions” (1987) 103 LQR 433.

59 To classify a chose in action as property is not, of course, to say that every proprietary remedy attaches to every chose in action. In OBG Ltd v Allan [2008] 1 AC 1 (“OBG”), a majority of the House of Lords held that the tort of conversion does not extend to purely contractual rights. That is because conversion is founded upon interference with possession, and possession is a concept that can have no application to intangible property: at [94]–[106] per Lord Hoffmann. But the proprietary status of a chose in action was not doubted. Lord Hoffmann himself observed that the tort of inducing a breach of contract “treats contractual rights as a species of property which deserve special protection” (OBG at [32]), and the minority would have extended conversion to choses in action precisely because they are property: at [220]–[233] per Lord Nicholls, with whom Baroness Hale agreed on this point. The nature of the asset conditions the remedies by which it is protected. But it does not determine whether it is property at all. The same understanding underlies the recognition in Singapore that things in action form a broad and flexible category of personal property capable of accommodating novel intangible assets: ByBit Fintech Ltd v Ho Kai Xin [2023] 5 SLR 1748 (“ByBit”) at [34]–[36]; CLM v CLN [2022] 5 SLR 273 at [45]–[46], applying the description of a right of property given by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 (“Ainsworth”) at 1248.

60 It is important to distinguish between the subject matter of a trust and the object of a contractual obligation. The subject matter of a trust must be a proprietary right. But the object of a contractual obligation can be any type of right, whether it is a proprietary right or a purely personal right. Regardless of its object, a contractual obligation is capable of being the subject-matter of a trust.

61 The trust of a contractual obligation presupposes this very distinction. In Les Affréteurs Réunis Société Anonyme v Leopold Walford (London), Limited [1919] AC 801 (“Walford”), a charterer held on trust for a broker the benefit of a shipowners’ contractual obligation to pay a commission to the broker. The charterer had no right of its own to receive the commission. More importantly, the charterer had no interest in any underlying property. What the charterer held on trust for the broker was the shipowner’s purely personal contractual obligation itself. If a chose in action had to be a right to property enforceable by action, Walford could not have been decided as it was. The same is true of Harmer v Armstrong [1934] Ch 65 at 88, on which the claimants also rely. That case stands for the proposition that the beneficiary of a trust of a contractual obligation enforces the contract according to its tenor, in favour of the trustee and not in favour of himself. ⁶⁹

62 On the claimants’ case, the object of the contractual obligations that the first defendant owed the Mother under the Agreement is a bundle of personal rights associated with the Property but not amounting to proprietary rights in the Property. But that does not mean that that bundle of personal rights is not a chose in action, is not a right of property and is incapable of being the subject-matter of any trust.

63 Two further points do not detract from this analysis. First, performance of the first defendant’s bundle of contractual obligations would have benefited the claimants rather than the Mother. That point goes only to identifying who takes the benefit of the first defendant’s performance of the object of the contract. It does not go to whether what the Mother held were choses in action and therefore rights of property. Second, the first defendant’s contractual obligations were contingent. They would bind the first defendant to performance only upon the Mother’s death and, even then, only at the election of a majority of the siblings. But a contingent contractual right is nevertheless a contractual right and is therefore nevertheless a chose in action. Contingency affects only the value of a chose in action. It does not affect its character as property.

64 I therefore accept the claimants’ submission that the Mother’s contractual rights against the first defendant under the Agreement are choses in action and therefore property capable of being the subject matter of a trust. That conclusion does not, however, suffice to carry the claimants home. Identifying property that is capable of being held on trust for them is merely the first step that the claimants must negotiate in invoking the Vandepitte procedure. The second step requires them to establish facts from which the law will find that a trust of that property has arisen in their favour.

65 For the reasons that follow, the claimants have failed to establish any such facts.

66 The claimants’ pleading of the facts that give rise to a trust in their favour is wholly inadequate. The relevant plea comprises the following three paragraphs: ⁷⁰

67 There are no facts pleaded in these three paragraphs that are capable of giving rise to a trust in the claimants’ favour. Paragraphs 25 and 26 plead that the Mother reiterated the purpose of the Agreement to the claimants and assured them that the first defendant would honour his obligations under the Agreement (see [24] above). These acts of the Mother, without more, cannot conceivably give rise to a trust. Paragraph 26 pleads, in addition, that the first defendant himself assured some of the claimants that he would honour the Agreement. These assurances to the claimants equally cannot conceivably create a trust of the Mother’s rights. Paragraph 27 pleads no facts at all. It merely asserts a bare conclusion of law that a trust arose. It does not even plead the type of trust that allegedly arose.

68 A statement of claim must plead the material facts which, if proved, establish each element of a recognised cause of action. The statement of claim is intended to and must give the defendant fair notice of the case that he will have to meet: V Nithia (co-administratrix of the estate of Ponnusamy Sivapakiam, deceased) v Buthmanaban s/o Vaithilingam and another [2015] 5 SLR 1422 at [34], [38]–[40] and [43]. A defendant cannot possibly know how to defend a claim resting on nothing more than a bare assertion of a trust of unspecified type.

69 The deficiency proved to be incurable by amendment. Counsel for the claimants confirmed before the AR, and again before me, that the claimants do not rely on an express trust. ⁷¹ That concession is correctly made. These paragraphs plead no facts to establish the necessary certainty of intention on the Mother’s part. The Mother merely informing the claimants of the first defendant’s obligations under the Agreement does not in any way establish her genuine, binding intention to create a trust of her contractual rights against the first defendant under the Agreement. ⁷²

70 In the course of argument, I invited counsel repeatedly to identify the type of trust on which the claimants do rely. He was unable to go beyond a vague assertion of an “implied trust”. He accepted that he could not tell me what type of implied trust it is. ⁷³

71 “Implied trust” is a genus of trust. It is not a species of trust. The genus “implied trusts” comprises at least the resulting trust and the constructive trust in their several respective subtypes: see, for example, Koh Cheong Heng v Ho Yee Fong [2011] 3 SLR 125 at [35]–[37]. Each subtype arises on different facts and requires a claimant to establish different elements. A claimant who cannot say which type of trust he relies on cannot even know, let alone plead, the facts he must establish in order to succeed. And if the claimant cannot know what facts he must plead to establish his claim, the defendant cannot hope to know how to respond to and defend that claim. In those circumstances, the court cannot even begin to say whether the facts that the claimant has pleaded are a sufficient plea for the courts to find that a trust has arisen.

72 In his oral reply submissions, counsel for the claimants sought for the first time to characterise the trust as a constructive trust. He proposed to amend para 27 of the statement of claim accordingly. ⁷⁴ A new characterisation of the claim, advanced for the first time in reply at the hearing of an appeal against the striking out of that very claim comes far too late. The belated and offhand way in which the characterisation emerged makes clear that it is a pure afterthought and is not something advanced with any basis or even with any seriousness.

73 But even if I were to consider this characterisation of the trust pleaded in para 27 of the statement of claim as a “constructive trust”, it does not save the claim for the reasons that follow.

74 A constructive trust does not arise from an intention to create it. It arises by operation of law where recognised circumstances coincide to make it unconscionable for the legal owner to deny another’s interest. The facts pleaded in the statement of claim are incapable of giving rise to a constructive trust in the claimants’ favour of the Mother’s bundle of rights against the first defendant under the Agreement. Everything pleaded is equally consistent with an ordinary contract made by a parent for the benefit of her children. The Mother bargained with the first defendant for terms that would benefit the claimants after her death. She told the claimants about her bargain with the first defendant. She assured the claimants that the first defendant would keep his end of the bargain.

75 All that these pleaded facts establish is that the Mother intended to benefit the claimants by entering into the Agreement. An intention to benefit a third party is not an intention to create a trust of the benefit of the contract for that third party. An authority that the claimants themselves cite makes this clear: Chitty on Contracts vol 1 (Sweet & Maxwell, 35th Ed, 2024) (“Chitty”) at paras 21-082–21-085. ⁷⁵ That is why counsel was right to concede that the claimants cannot rely on an express trust. Nor is an intention to benefit a third party, without more, a circumstance that equity recognises as affecting the conscience of the party who holds that intention. Such an intention is therefore equally incapable of giving rise to a constructive trust. If the position were otherwise, every contract for the benefit of a third party would give rise to a constructive trust in favour of the third party of the rights intended to benefit the third party. The doctrine of privity would be a dead letter. Parliament would have enacted the Contracts (Rights of Third Parties) Act 2001 to address a non-existent problem.

76 “The quandary” that the Mother faced does not assist the claimants in establishing a trust. ⁷⁶ Neither the fact that the Mother entered into the Agreement for the benefit of the siblings nor the pressure arising from the other circumstances pleaded, including “the quandary”, is capable in law of giving rise to a trust in favour of the claimants of the Mother’s bundle of contractual rights against the first defendant under the Agreement.

77 The claimants point also to the Mother's assurance to the claimants (see [24] above) that they need not take any further steps to safeguard their interests because the first defendant had assured the Mother that he would perform his obligations under the Agreement. ⁷⁷ The claimants say that this is evidence that the Mother intended that the first defendant perform his obligations to the claimants under the Agreement. ⁷⁸ That may be so, but that intention cannot give rise to a constructive trust of her bundle of rights under the Agreement against the first defendant.

78 The statement of claim therefore pleads no facts capable of establishing any kind of trust, express or implied, of the benefit of the Agreement in favour of the claimants. There is therefore no foundation on which the Vandepitte procedure can operate. It is accordingly plain and obvious that the contract claim is legally unsustainable.

79 Given this finding, it is unnecessary for me to decide whether a trust of the Mother’s bundle of contractual rights under the Agreement against the first defendant would have contravened the RPA.

80 The claimants’ alternative case to their claim in contract is that the first defendant has held the Property or its value on constructive trust for them since late 2023 or December 2024: ⁷⁹

81 In their written submissions, the claimants put this constructive trust on two alternative bases: either an institutional constructive trust arising to vindicate the Pallant v Morgan equity or a remedial constructive trust. ⁸⁰

82 Both of these bases are plainly and obviously unsustainable.

83 The elements of the Pallant v Morgan equity are summarised in Ong Heng Chuan and another v Ong Boon Chuan and another [2003] 2 SLR(R) 469 (“Ong Heng Chuan”) at [7], citing the decision of the English Court of Appeal in Banner Homes Group plc v Luff Developments Ltd [2000] Ch 372 (“Banner Homes”) at 397–399.

84 Three elements are necessary to establish the Pallant v Morgan equity:

(a) Two parties must reach an arrangement before one of them acquires property to the effect that the non-acquiring party will obtain an interest in the property. The parties’ arrangement need not amount to a contract. But it must be an arrangement on which both parties in fact proceed and not merely negotiations that the parties understand to be non-binding or subject to contract: Banner Homes at 398; Generator Developments Ltd v Lidl UK GmbH [2018] EWCA Civ 396 at [78]–[85].

(b) The acquiring party must acquire the property in circumstances that are consistent with the terms of the arrangement.

(c) Referable to and in reliance on the arrangement, either: (i) the acquiring party must gain some advantage in connection with his acquisition of the property; or (ii) the non-acquiring party must suffer some detriment.

85 When the three Pallant v Morgan elements are satisfied, a constructive trust arises over the property in favour of the non-acquiring party. If and when the acquiring party repudiates the parties’ arrangement by denying the non-acquiring party’s interest, a court of equity will enforce the constructive trust against the acquiring party.

86 The important point to note at the outset is that it is the coincidence of the three Pallant v Morgan elements at the point of acquisition that affects the conscience of the acquiring party in equity and that makes it unconscionable for him thereafter to retain the property free of the non-acquiring party’s interest. It is this effect on the acquiring party’s conscience at that moment in time that calls the constructive trust into existence at that moment in time. The unconscionability in the acquiring party’s subsequent repudiation of the parties’ arrangement is not a constitutive element of the constructive trust. It is merely a breach of the constructive trust that was constituted at the time of acquisition.

87 Three consequences follow from the institutional character of the trust to which the Pallant v Morgan equity gives rise. First, the non-acquiring party upon acquisition takes a true proprietary interest with the usual incidents. The non-acquiring party’s proprietary interest binds third parties subject to registration and indefeasibility rules, it survives the acquiring party's insolvency with priority over unsecured creditors and it carries the ordinary remedies available to a beneficiary under a trust. These include the remedy of an account, tracing into substitutes and, where appropriate, orders for sale. Second, the content of the non-acquiring party’s interest is modulated by the terms of the pre-acquisition arrangement with the acquiring party. The constructive trust does not confer on the non-acquiring party inevitably and automatically an interest in the property that is equal in every way to the acquiring party’s interest. The constructive trust confers on the non-acquiring party no less but equally no more than the very interest that the parties’ pre-acquisition arrangement envisaged. Third, because the trust arises by operation of law upon acquisition, the court’s role is purely declaratory and is not constitutive. A court that accepts a claimant’s case on the Pallant v Morgan equity does no more than recognise a constructive trust and an equitable interest that has existed since acquisition. The court does not conjure an equitable interest vested in the non-acquiring party into existence when it enters judgment in his favour.

88 The first Pallant v Morgan element requires the claimants to show that they reached an arrangement with the first defendant before he acquired the Property to the effect that they should each obtain a one-eighth interest in the Property.

89 The claimants fail on the first element for two reasons.

90 First and most fundamentally, the statement of claim pleads no arrangement of any kind or at any time with anyone under which the claimants were to obtain any interest in the Property whatsoever. The only possible arrangement in this case is the Agreement. But, in order to navigate the prohibitions in the RPA, the claimants plead expressly that the Agreement conferred no interest in the Property on them at any time. Thus, the claimants’ pleaded case, as they themselves characterise it in their written submissions, is that: (a) the restrictions that the Agreement imposed on the first defendant’s rights to enjoy, use and dispose of the Property are purely personal rights, and even then subject to conditions; ⁸¹ (b) the Agreement confers on the claimants purely personal rights against the first defendant; ⁸² and (c) the Agreement creates no interest in the Property vested in any of the claimants. ⁸³ Even if the claimants’ rights under the Agreement became unconditional, ie, after the Mother died and after the siblings elected by a majority to sell the Property, their rights associated with the Property would still be purely personal rights.

91 The consequence of the claimants’ pleaded case, therefore, is that the first defendant has been entitled at all times, both at law and in equity: (a) to sell the Property; (b) to convey to a purchaser absolute title to the Property; and (c) to receive as absolute owner in his own hands and in his own right the entire proceeds of sale. ⁸⁴ The claimants accept that, even on their best case, if the first defendant had sold the Property and then immediately become bankrupt, the claimants could do no more than prove in his bankruptcy as unsecured creditors for a one-eighth share of the proceeds of sale. ⁸⁵ They could assert no proprietary right in the proceeds, ⁸⁶ even if the proceeds remained available to be traced into. An arrangement that, at best, confers on the claimants no more than a bundle of purely personal rights against the defendant is the very antithesis of the arrangement to obtain an interest in property that the first Pallant v Morgan element requires. The claimants cannot assert an arrangement to obtain an interest in the Property in order to invoke Pallant v Morgan while at the same time denying any such arrangement in order to avoid the prohibitions in the RPA.

92 The Pallant v Morgan claim fails on the first element for a second and independent reason. It is implicit in each element of Pallant v Morgan that the arrangement in relation to the property must be between the acquiring party and the non-acquiring party. The Agreement is, under the privity rules at common law, incapable of giving rise to personal rights that the claimants can enforce in personam against the first defendant. A fortiori, the Agreement must be incapable of giving rise to property rights that the claimants can enforce in rem against the world. Expanding the first Pallant v Morgan element to accommodate the claimants’ case would lead to an intolerably destabilising inroad into the security of property rights.

93 The Pallant v Morgan claim is therefore unsustainable for two reasons: (a) the rights that the claimants were to have under the only possible pre-acquisition arrangement pleaded were purely personal rights; and (b) any pre-acquisition arrangement was not between the claimants and the first defendant but between the Mother and the first defendant.

94 The Pallant v Morgan claim fails equally on the third element. The third element requires each claimant to establish that, referable to and in reliance on the Agreement, either: (a) the first defendant gained some advantage in connection with his acquisition of the Property; or (b) each claimant suffered some detriment. The only detriment that the claimants plead in the statement of claim is detriment to the Mother. That detriment arose from lending the first defendant the entire purchase price, interest free and without any obligation on him to repay it. That is certainly a detriment to the Mother that is referable to her arrangement with the first defendant. And it is true that the first defendant derived an advantage in acquiring the Property from the Mother. But any equity arising from this advantage and this detriment runs to the Mother and only to the Mother. It does not run to the claimants. The claimants do not plead any detriment of their own. Indeed, they cannot have suffered any detriment. In relation to the Property, they were, at best, pure volunteers. The claimants’ knowledge of the Agreement gained from the Mother and her assurances to them in connection with it cannot, in itself, establish any detriment to the claimants. The claimants do, however, plead as a fact that the claimants have contributed to the expenses of the Property since its purchase. ⁸⁷ But this is not pleaded as detriment, much less as detriment that is referable to the Agreement and that the claimants incurred in reliance on the Agreement.

95 The Pallant v Morgan claim is unsustainable for a third and independent reason arising from timing. For reasons I have explained, an institutional constructive trust of this kind arises, if at all, out of and at the time of the acquisition. As Chadwick LJ put it in Banner Homes at 397:

96 As I have mentioned, a Pallant v Morgan constructive trust attaches at the time of the acquisition because it is at that moment that the arrangement affects the acquiring party’s conscience. Banner Homes itself makes this clear. Chadwick LJ at 397 approved the following analysis in Paragon Finance plc v D B Thakerar & Co (a firm) [1999] 1 All ER 400 at 409: the acquiring party’s “possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust”. The acquiring party’s later inconsistent conduct is therefore no more than a breach of a trust that has already arisen. The words “if he seeks to act inconsistently with it” in the passage quoted at [95] above fix the condition on which equity’s intervention becomes necessary. They do not fix the time at which the trust comes into existence. A trust cannot be breached before it exists.

97 The claimants’ case is an inversion of Pallant v Morgan. The claimants’ case is that the Pallant v Morgan constructive trust has arisen only since “late 2023 and/or 23 December 2024”, ⁸⁸ when the first defendant acted unconscionably by repudiating the Agreement. ⁸⁹ That is some 40 years after the first defendant acquired the Property. On the claimants’ case, it is the repudiation of the Agreement that brings the Pallant v Morgan trust into existence rather than the existence of the trust that makes the repudiation of the Agreement an occasion for the court’s intervention. The statement of claim therefore pleads, at best, the breach of a constructive trust. It does not plead facts capable of bringing a constructive trust into existence, whether in 1983 or in 2023.

98 In the course of argument, counsel proposed to cure the Pallant v Morgan claim by amending para 30 of the statement of claim to plead that the first defendant stood in a fiduciary relationship to the Mother. ⁹⁰ The amendment would have been futile. The statement of claim pleads no facts capable of establishing that the first defendant owed fiduciary obligations to the Mother. A fiduciary relationship could arise only where the first defendant voluntarily places himself in a position in which the law can objectively impute an intention on his part to undertake fiduciary duties to the Mother, chief among them the duty of loyalty: Tan Yok Koon v Tan Choo Suan and another and other appeals [2017] 1 SLR 654 at [192]–[194]. Nothing pleaded in the statement of claim begins to approach that position as against the Mother. And it is not the Mother who now claims a proprietary interest in the Property.

99 It is unclear whether the remedial constructive trust forms part of Singapore law. The Court of Appeal has twice discussed the doctrine without having to decide conclusively whether it does form part of Singapore law: Ching Mun Fong (executrix of the estate of Tan Geok Tee, deceased) v Liu Cho Chit [2001] 1 SLR(R) 856 at [35]–[36]; Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) and another [2013] 3 SLR 801 (“Anna Wee”) at [182]–[185]. The most recent survey of the position treats it as unsettled: Zaiton bte Adom v Nafsiah bte Wagiman and another [2023] 3 SLR 533 (“Zaiton”) at [148]–[149].

100 For the purposes of these grounds, I assume in the claimants’ favour that the remedial constructive trust is part of Singapore law.

101 As its name suggests, a remedial constructive trust is a remedy and not a cause of action: Zaiton at [150]. To secure the remedy of a constructive trust, a claimant must first establish a cause of action. Only then can the court consider whether a constructive trust is the appropriate remedy.

102 The claimants have no sustainable cause of action on which to seek the remedy of a constructive trust. Their contract claim fails for the reasons given at [66]–[78] above. Their claim in unjust enrichment has been withdrawn (see [104]–[111] below). That claim is, in any event, plainly and obviously unsustainable. There is accordingly no cause of action remaining for which a constructive trust can be a remedy.

103 The constructive trust claim in both of its forms is therefore plainly and obviously unsustainable.

104 Paragraph 31 of the statement of claim pleads that, by reason of the matters pleaded earlier in the statement of claim, the first defendant “has been unjustly enriched at the expense of the Mother and/or the Claimants”. ⁹¹ Like para 27 of the statement of claim, this is asserted as a bare conclusion of law.

105 A claim in the law of unjust enrichment requires the claimant to plead and prove that the defendant was enriched, that the enrichment was at the claimant’s expense and that the enrichment was unjust: Anna Wee at [98] and [113]. The law of unjust enrichment does not operate to reverse an enrichment simply because a court can be persuaded to consider the enrichment to be unjust. The enrichment must be unjust by reason of a recognised unjust factor, such as mistake, duress or failure of consideration: Anna Wee at [132] and [134].

106 Despite being pressed to do so in the course of oral arguments, claimants’ counsel was unable to identify a sustainable unjust factor. He proposed first a breach of trust and then necessity. ⁹²

107 Breach of trust is not sustainable as an unjust factor both on the law and on the facts. It is not sustainable on the law because a breach of trust is a wrong, and wrongs are not unjust factors. When a trust is breached, a range of proprietary and personal causes of action become available to the beneficiary. But they become available to the beneficiary in equity, not in unjust enrichment. A wrong focuses on the defendant’s conduct. The unjust factors, in contrast, focus on the claimant. Unjust enrichment responds to factors that vitiate or qualify the claimant’s intention to enrich the defendant. These factors include mistake, duress or failure of consideration. Unjust factors do not respond to wrongs, ie to the defendant’s fault: Anna Wee at [108]–[109]. The facts surrounding a breach of trust may independently engage a recognised unjust factor. But there is no head of recovery in unjust enrichment for which a claimant can seek to reverse a transfer on the sole basis that the transfer was in breach of trust.

108 On the facts, breach of trust is unsustainable as an unjust factor because the claimants cannot establish any trust to be breached for the reasons given at [66]–[78] above.

109 Necessity, in so far as it is recognised as an unjust factor at all, is concerned with a claimant who confers a benefit on the defendant in response to a risk of imminent harm to the defendant’s person or property, as where a doctor renders emergency treatment to an unconscious patient: see, for example, Re Rhodes; Rhodes v Rhodes (1890) 44 Ch D 94. Nothing of that kind is pleaded in the statement of claim or could be pleaded on these facts.

110 A claim in unjust enrichment also faces the difficulty that the AR identified in the Judgment: any enrichment of the first defendant was at the Mother’s expense, and not at the claimants’ expense. ⁹³

111 Claimants’ counsel therefore conceded in his oral reply submissions that the claim in unjust enrichment is unsustainable. He accordingly withdrew this claim. ⁹⁴

112 The AR rested his decision in substantial part on the RPA. He held that any trust in favour of the non-citizen claimants would contravene s 3 of the RPA and that an institutional constructive trust arising on the facts pleaded would contravene s 23 of the RPA. The parties devoted much of their submissions on appeal to these holdings. The questions that the parties addressed include whether s 3 extends to a contingent contractual right to the proceeds of sale and whether s 23 proscribes a constructive trust that arises by operation of law. ⁹⁵

113 It is unnecessary for me to decide these questions. The RPA can operate to bar a claim only if the claim is otherwise sustainable. For the reasons that I have given and that have nothing to do with the RPA, the claimants have no sustainable claim. Nevertheless, because the parties addressed the RPA questions fully, I express my tentative views on them.

114 The AR held that any trust of the Property in favour of the non-citizen claimants would have contravened s 3 of the RPA. ⁹⁶ Assuming in the claimants’ favour that a trust of the Property in favour of the claimants arose on the pleaded facts, that holding is in my view likely to be correct. The purpose of the RPA is to ensure that foreign persons are unable to obtain any interest in restricted residential property except under carefully controlled conditions: Tan Cheow Gek and another v Gimly Holdings Pte Ltd [1992] 2 SLR(R) 240 (“Tan Cheow Gek”) at [23]. An arrangement under which a Singapore citizen acquires residential property on terms intended to confer all or part of its beneficial ownership on foreign persons lies at the very heart of the RPA’s prohibition.

115 The AR’s holding is more doubtful, however, in so far as it extends to the claimants’ personal rights under the Agreement. Defendants’ counsel accepted, correctly in my view, that a bare personal right to be paid a share of the proceeds of a sale of the Property – unaccompanied by any proprietary interest in the Property or in the proceeds of its sale as a fund – is a purely personal claim that cannot engage any of the prohibitions in the RPA. ⁹⁷ Tan Cheow Gek does not hold otherwise. It rests only on the well-established proposition that a purchaser under a contract for the sale of land thereby acquires an equitable interest and therefore a proprietary interest in the land itself (at [18]). A merely personal right to a share of the proceeds of a sale of a property confers no comparable interest on the holder of that right, all the more so when any such sale is subject to a contingency and therefore may never take place. On the claimants’ best contractual case, unless and until a majority of the siblings agree to sell the Property, the claimants hold nothing but a contingent personal claim against the first defendant. A majority decision to sell the Property would satisfy the contingency but would leave entirely unchanged the personal nature of the claimants’ rights against the first defendant.

116 The harder question, which defendants’ counsel pressed, is whether the analysis changes if the claimants’ pleaded rights are viewed as a synthetic proprietary right calculated to subsist purely on the personal plane. The synthetic proprietary interest includes the right to live in the Property, the right to be added as a legal co-owner of the Property upon becoming eligible to do so, the right to require the Property to be sold upon majority election and, in that event, the right to a share in the proceeds of sale. ⁹⁸ It is at least arguable that a bundle of personal rights under a contract that is calculated to be the functional equivalent of a proprietary right in residential property as a matter of substance without amounting to a proprietary right in that residential property as a matter of legal form is within the prohibitions in the RPA.

117 It is not difficult to sketch the contours of such a contract, going well beyond the Agreement pleaded in this case. The legal owner of the residential property would grant the foreign person a perpetual, irrevocable and exclusive licence to occupy and use the property, with possession delivered and the owner excluded. The owner would covenant to pay over to the foreign person all fruits of the property (ie rents, profits, insurance moneys, government compensation), with the foreign person covenanting to bear all outgoings and to indemnify the owner against them. The foreign person would take an irrevocable power of attorney to manage, let and sell the residential property in the owner’s name and covenant not to deal with or encumber the property except as directed. The owner, if a company, would covenant to remain a single-purpose entity with no other creditors. The benefit of the contract would be freely assignable, with the owner supplying irrevocable consent in advance to novation, so that the bundle of rights could pass from hand to hand. Damages would be stipulated to be an inadequate remedy for the foreign person’s loss.

118 Two limits are inherent in the design. First, the drafting must stop short of any agreement, option or right to call for a conveyance of the residential property or for any lease of it exceeding 7 years. That is because a specifically enforceable contract for the disposition of the land confers, in itself, an equitable interest: Lysaght v Edwards (1876) 2 Ch D 499; Walsh v Lonsdale (1882) 21 Ch D 9. This would engage s 3 directly. Second, no drafting can replicate the two incidents that distinguish property rights from personal rights: (a) the bundle of rights must inevitably rank as no more than an unsecured claim in the owner’s insolvency; and (b) the bundle could not bind a purchaser of the residential property.

119 My tentative view is that even a purposive interpretation of the RPA cannot go as far as prohibiting this type of contract. The RPA’s prohibitions are expressly directed at rights of property in residential property and not at personal rights associated with residential property. Section 3(1) prohibits, except as provided in the RPA: (a) the transfer of “any residential property or any estate or interest therein to any foreign person” (s 3(1)(a)); (b) the creation of “any trust for sale” in respect of any such property or estate or interest in favour of a foreign person (s 3(1)(b)); and (c) the purchase or acquisition of any such property or estate or interest by a foreign person “except by way of a mortgage, charge or reconveyance” (s 3(1)(c)). A transfer, trust or acquisition in contravention of s 3(1) is void under s 3(2). Section 23 closes the equitable route to acquiring a right of property. Section 23(1) provides that a citizen or approved purchaser must not purchase or acquire any estate or interest in residential property as the nominee of a foreign person with the intention that it be held in trust for the foreign person. Section 23(2) provides that “[a]ny trust created in whatever manner or form” pursuant to such an arrangement is void, with “no resulting trust in favour of the foreign person”.

120 The operative concepts in the RPA are therefore uniformly proprietary: transfer, purchase, acquisition, trust and, above all, “estate or interest”. What the RPA prohibits a foreign person from acquiring is ownership, legal or beneficial, or any other estate or proprietary interest in residential property beyond the statutory exceptions.

121 It appears to me that the RPA does not, even on a lavish purposive interpretation, prohibit the creation of purely personal rights against the owner of residential property, however extensive. A contract, without more, confers on the counterparty no estate or interest in the land. It is true that the choses in action that the contractual counterparty acquires are themselves property (see [54]–[59] above). But the proprietary interest is only in the personal rights themselves and is in no way a proprietary interest in the land. The RPA therefore does not prevent a foreign person from acquiring a synthetic beneficial interest of the kind that the defendants posit: a bundle of personal rights calculated to be the functional equivalent of a proprietary interest in residential property as a matter of substance without amounting to a proprietary interest in that residential property as a matter of legal form.

122 Legal history counsels caution, however, against treating the boundary between personal rights and property rights as immovable. Purely personal rights have repeatedly hardened into property rights. The mechanism for this process of reification, at both common law and in equity, has been the accretion of judicial decisions that enforce the personal right against an ever-widening class of third parties, and strengthen the remedy from mere damages to recovery of the property itself. For example, at common law, the term of years began as a personal right of the tenant protected by action only against the landlord. But once the action of ejectment allowed the tenant to recover the land itself from a third party including a purchaser, it became a property right. The use, and later the trust, began as a personal obligation binding the conscience of only the feoffee or trustee. But as the courts of chancery enforced the obligation successively against heirs, personal representatives, creditors and purchasers with notice, the beneficiary’s personal right hardened into an equitable property right: Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 at 705C–706A cited in Tan Yok Koon at [198]; Akers and others v Samba Financial Group [2017] AC 424 at [82]–[83] per Lord Sumption. The equity of redemption came to be recognised as “an estate in the land”, ie as an equitable interest in the land: Casborne v Scarfe (1737) 1 Atk 603 at 605 cited in Çukurova Finance International Ltd and another v Alfa Telecom Turkey Ltd (Nos 3 to 5) [2016] AC 923 at [73]. The restrictive covenant, in origin a mere contract, became a burden that equity allowed to run with the land and thereby bind successors in title: Tulk v Moxhay (1848) 2 Ph 774.

123 Reification is not inevitable, however. For example, the courts have declined: (a) to turn the contractual licence into an interest in land (King v David Allen & Sons Billposting Ltd [1916] 2 AC 54; Ashburn Anstalt v Arnold [1989] Ch 1); (b) to accord proprietary status to the deserted wife’s equity (Ainsworth); and (c) to allow parties to mint novel proprietary rights by mere agreement (Keppell v Bailey (1834) 2 My & K 517 at 535 followed in Bestland Development Pte Ltd (in liquidation) v Manit Udomkunnatum and another [1996] 2 SLR(R) 300 at [12]; Hill v Tupper (1863) 2 Hurl & C 121, as explained in Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and others [2018] 3 WLR 1603 at [56]). But the categories of property remain the creation of judicial decision and have never closed: see, as to things in action, ByBit at [34]–[36].

124 It is conceivable that the common law or equity may one day by accretion of judicial decision come to characterise the holder of a bundle of personal rights calculated to be the functional equivalent of a proprietary interest as having, in substance, an interest in the land itself. At that point, it is clear that such an arrangement would come within the prohibitions in ss 3 and 23 of the RPA. Unless and until a doctrinal development of that kind enters our jurisprudence, however, a synthetic proprietary right appears to lie outside the prohibitions in the RPA, which strike at rights in rem not at rights in personam. The defendants’ construction would in substance invite the court to anticipate that development by reading “estate or interest” as embracing personal rights which in combination synthesise a proprietary interest. Nothing in this appeal requires me to decide whether the language of the RPA can bear that reading, and I say nothing more about it.

125 As for s 23 of the RPA, the AR, applying Public Prosecutor v Intra Group (Holdings) Co Inc [1999] 1 SLR(R) 154 (“Intra Group”) at [36], held that an institutional constructive trust arising on the pleaded facts would be caught by the prohibitions in the RPA because the Property would have been purchased with the intention of benefiting the claimants. ⁹⁹ I agree, on the claimants’ own premise. Intra Group distinguishes between trusts created with the consent of, or with the intention of benefiting, a foreign person (which the RPA prohibits) and trusts imposed by law against the wishes of a foreign person (which it does not). The Appellate Division has since held that the RPA’s prohibitions extend to a common intention constructive trust that a foreign person and the owner of residential property intend to use to circumvent the RPA: Chee Yin Meh v Ong Kian Guan and others [2023] 2 SLR 495 at [23].

126 A constructive trust arising to vindicate the Pallant v Morgan equity on the case that the claimants advance in the statement of claim would arise precisely because the first defendant acquired the Property on the basis of an arrangement to circumvent the RPA by benefiting his non-citizen siblings at a time when they were prohibited from co-owning the Property. That is far closer to the consensual arrangement that the RPA prohibits than to a trust imposed by law against a foreign person’s wishes.

127 As I have said, none of this arises for decision. My decision on this appeal rests entirely on the grounds set out at [48]–[111] above.

128 It is plain and obvious that the statement of claim discloses no reasonable cause of action against the first defendant. The contract claim under the Vandepitte procedure fails because no trust of the benefit of the Agreement is pleaded or is capable of arising on the facts pleaded (see [48]–[79] above). The constructive trust claim fails because the essential elements of the Pallant v Morgan equity are either wholly unpleaded or are fundamentally incompatible with the claimants’ own pleaded case (see [80]–[103] above). The claim in unjust enrichment has been withdrawn and is, in any event, factually and legally unsustainable (see [104]–[111] above).

129 The AR was therefore correct to strike out the statement of claim in its entirety and to dismiss the action, albeit for reasons that are slightly different from those on which I rely.

130 I have therefore dismissed the appeal with costs. The claimants shall pay to the defendants a single set of the costs of and incidental to the appeal fixed at $16,000 including disbursements.