Lee Fung Ying v Tee Cee Wee (1939) Rabaul Times 1/12/1939 [29/1939]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: McTiernan J:
• Judgment Date: 26 October 1939
• Citation: (1939) Rabaul Times 1/12/1939 [29/1939]
• Year: 1939

High Court: Latham CJ, Starke J, Evatt J, McTiernan J

Judgment Delivered: 26 October 1939

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Latham CJ:

This is an appeal from a judgment of the Supreme Court of the Territory of New Guinea (Griffiths ACJ) in an action in which the plaintiff Tee Cee Wee claimed £3,000 from the defendant Tom Greenslade Goss as one of the executors of the will of Lee Tam Tuck (otherwise know as Ah Tam) deceased. Judgment was given for the plaintiff for the amount claimed. The plaintiff was also an executor of the will of Ah Tam and the action should have been constituted as an administration action, but no objection was taken to the form of the action in the court below or in this court.

The appellant in this appeal is Miss Lee Fung Ying who is a residuary beneficiary under the will of Ah Tam. She was not a party to the action, but when judgment had been given against the defendant for the amount claimed she sought and obtained leave from this court to be added as a party and to appeal.

The late Ah Tam was concerned in various enterprises in New Guinea. He conducted a small general store, he had an import and export business, and he was a copra merchant and planter upon a substantial scale. He had little acquaintance with the English language and was unable to read or to write either English or Chinese, though he could sign his name in Chinese. The Plaintiff Tee Cee Wee arrived in New Guinea in 1914. He was employed by the Nord Deutsche Lloyd Shipping Company. He understood English and Ah Tam obtained his assistance in correspondence and in indenting goods. These services were rendered outside ordinary business hours, principally at night time. The plaintiff gave evidence that Ah Tam promised him a one half interest in the profits of the store as a reward for his services. Upon the capture of Rabaul by the Australian forces the Nord Deutsche Lloyd Shipping Company ceased to trade there and the plaintiff entered other employment. In 1923 he went into business for himself, but his business failed in 1924.

The plaintiff's case depends principally upon his own evidence relating to what he says happened in June 1924. His evidence is as follows:—

"Ah Tam stopped me on the road and said you had better come and work for me. He said if you are frightened I don't pay you your share of the profits in past business I'll give you something in payment, I knew he would not have much cash in hand. I put a suggestion to him—that I will accept payment after his death. He agreed. Then he told me to type a document out and he would sign it. I left him that time. This conversation was on the road opposite his store. No one present besides.

After I left him I prepared a document myself. I brought it back after a week and explained the contents to him that after he died I would claim payment. He signed willingly. That was done in his own house. Now one present. I saw him sign it."

The document is in the following terms:—

"Ah Tam

Boatbuilder and Storekeeper

Importer and Exporter

Copra Merchant and Planter

Rabaul, New Britain,

Date, 30 June 1924

To the Executor,

Whoever appointed or may or will be appointed to administer my PROPERTY

Please to Mr T. C. Wee, a Commission Agent of Rabaul, in the Territory of New Guinea the sum of (£3000) Three thousand pounds sterling out of my property after my death, which I promised to give to the said T.C. Wee for his services rendered to me in connection with the whole of my business from 1914 up to the above date without pay.

Ah Tam,

(Chinese Signature)"

From the beginning of July 1924 the plaintiff was employed by Ah Tam at a salary of £20 a month. He continued in this employment until Ah Tam sold all his property in July 1931. This employment was a full time engagement.

On 25th June 1931 Ah Tam made his will. The plaintiff took the instructions for the will and interpreted them to the solicitor and the solicitor carried them out. On this occasion the plaintiff made no suggestion that any reference should be made in the will to the £3,000 referred to in the document of June 1924. He said that the forgot about the £3,000, but the learned trial judge did not believe him.

In July 1931 Ah Tam sold his business to a firm of which the plaintiff was a member. The purchase price was £40,000 with interest. The sale agreement provided for the payment of the balance of the purchase money at the rate of £1,500 per annum. The purchasers of the property took over all Ah Tam's liabilities. Those liabilities were recorded in a schedule to the agreement. They did not include any liability of £3,000 to the plaintiff, and the plaintiff said nothing about such a liability to any of the parties. The list of debtors to Ah Tam did include amounts of £289.1.4 and £233.0.3 which the plaintiff owed to Ah Tam for money lent. Ah Tam left for China in August 1931 and never returned. In August 1932 he died. By his will he appointed the plaintiff and the defendant Goss as his executors. The executors swore and filed a statement of assets and liabilities of Ah Tam's estate on 17th, 1933. The statement did not include any reference to the £3,000 mentioned in the document. Nor did the plaintiff say anything to his co–executor or to the solicitor about this sum of £3,000.

The plaintiff did not give the document to his solicitor till 1934. The solicitor made no communication to the present appellant, who was one of the two residuary beneficiaries under Ah Tam's will, until 1936. In 1934 the appellant visited Rabaul and stayed with the plaintiff. The plaintiff said nothing to her about the claim which he now makes.

The plaintiff's story was evidently open to criticism at many points. I have referred to a number of occasions upon which, if the claim had been bona fide, it would have been natural for the plaintiff to refer to it. But the plaintiff was believed upon the essential parts of his evidence. the learned judge found that the document upon which the plaintiff's case is based was in fact signed by Ah Tam, That he knew what he was signing and that there was no fraud in obtaining his signature. These findings must, I think, be accepted by this court. Though the plaintiff's story invites suspicion, there is no satisfactory reason for setting aside the findings of the learned judge who, being aware of the weak points of the evidence, nevertheless accepted the plaintiff as a witness of truth upon the substantial matters to which I have referred.

The plaintiff's claim as endorsed upon the writ was based entirely upon the written document. In the particulars of the statement of claim the plaintiff relied upon an oral agreement in 1914 for one half of the profits of the store business in return for work done by the plaintiff, and upon an oral agreement in 1924 that if the plaintiff would refrain from then claiming payment of the one half profits and would continue to assist Ah Tam in his business and would work for a salary to be arranged, Ah Tam would instruct his executors to pay the plaintiff £3,000. It is further alleged that in pursuance of the last mentioned oral agreement Ah Tam executed the document mentioned.

The parties were not held to their pleadings and it is open to the plaintiff to make any case and to the defendant to rely upon any defence which can be supported by evidence accepted by the learned trial judge. I propose therefore to consider the various ways in which a case may possibly be established for the plaintiff and the defences which are available to the defendant in each case.

In the first place it is clear that the plaintiff cannot claim upon the document as a testamentary disposition. Such a claim would be met by the facts that it has not been witnessed in the manner required for wills and that no probate had been granted.

The claimant therefore makes his claim upon a contractual basis. The learned trial judge found that an agreement was made in 1914 under which, in return for services to the rendered (which were actually thereafter rendered) by the plaintiff to Ah Tam, the latter promised to pay to him one half of the profits of the business of the store. But the plaintiff does not make in this action any claim for one half profits. He claims a sum of £3,000 without any reference to the amount of profits derived from the store. Further, the right of action for one half of the profits would accrue either annually or at latest in 1924 when, it is admitted, the arrangement for sharing profits ceased. Accordingly any claim for one half profits would be barred by the statute of limitations.

the plaintiff therefore relies upon a contract made in 1924 to be performed upon the death of Ah Tam, so that there could be no breach and no cause...