UK: Settlor Not Living "La Dolce Vita" After Singapore High Court Determines A Failure To Surrender Beneficial Interest In Assets

Summary

In Dolce Vita Fine Dining Company Limited v Zhang Lan and others [2022] SGHC 278 the High Court of Singapore determined that assets held within a family trust structure were beneficially owned by the settlor of those trusts. In particular, although the Judge found that the settlor had executed documents putting these assets into a company within the trust, he determined that the settlor never intended to relinquish their beneficial interest in those assets and thus retained that beneficial interest. This ultimately led to an order that creditors of the settlor could enforce against those assets.

This decision concerns Zhang Lan (the "Settlor") who is a wealthy Chinese businesswoman and has been involved in a protracted dispute with La Dolce Vita (the "Plaintiff") which has involved an arbitration and proceedings in New York, Hong Kong, and Singapore.

Hussein Mithani, an associate in our disputes and private wealth team, and Daniel Chia, head of litigation at our Singapore alliance firm Prolegis LLC, consider the decision in more detail below.

Background

The Settlor owned Success Elegant Trading Limited ("SETL"). SETL had bank accounts in its name, one at Credit Suisse AG and one at Deutsche Bank AG (the "Bank Accounts").

In 2013, the Plaintiff acquired shares in companies beneficially owned by the Settlor. The proceeds of the sale of those shares were paid to the Settlor's personal bank account. The Settlor then made payments totalling some $142 million to the Credit Suisse account between March 2014 and July 2014 and part of this amount was later transferred into the Deutsche Bank account between March 2014 and November 2014.

During this time, in June 2014, the Settlor established a Cook Islands family trust, known as the Success Elegant Trust, for the benefit of her son, grandchildren, and remoter issue (the "Trust"). The Settlor claimed this trust was irrevocable and that she had no rights under the Trust and transferred her sole share in SETL to the trustee of the Trust. Whilst these transfers were taking place, the Plaintiff and Settlor were engaged in a dispute which ultimately went to arbitration and involved a freezing injunction being imposed in respect of the Settlor's sought.

Even though some of the transfers into the Credit Suisse account pre-dated the establishment of the Trust, the Settlor's position was that the assets in the Bank Accounts were held for the benefit of her son and his issue the moment they were transferred.

In May 2020, the Plaintiff registered an arbitral award in its favour in Hong Kong and Singapore against the Settlor. Subsequently, the Plaintiff sought to enforce its judgment debt in Singapore and sought to appoint receivers over the cash and securities held in the Bank Accounts. The Singapore enforcement proceedings were brought on the basis that, notwithstanding SETL's legal ownership of the Bank Accounts, Ms Zhang remained the beneficial owner of the assets held in the Bank Accounts.

Judgment

The Court held that the Settlor beneficially owned the assets in the Bank Accounts despite the fact they were held by a company within the Trust for the benefit of her son and grandchildren. Consequently, the Court held that it would be just and convenient to appoint receivers over the Bank Accounts.

The Court was asked to determine two points: (i) could receivers be appointed over property in which the Settlor had effective control but no equitable interest; and (ii) did the Settlor beneficially own the assets held in the Bank Accounts (despite the fact she had transferred these into the Trust).

On the first point, The Court noted that the key point was whether the Settlor had any rights over the Bank Accounts. If she did not then any receivers appointed by the Plaintiff could not compel the trustee of the Trust to comply with any receivership orders. The Judge determined that the key issue here would be whether the Settlor had a beneficial interest or ownership over the Bank Accounts.

On the second point, the Court noted that a resulting trust would arise where one person transfers property to another without the intention to benefit the other and held this was common ground between the parties. The Court then considered the Settlor's intentions at the time of the transfer and her actions in respect of the Bank Accounts and Trust. On analysing the evidence before it, the Court held that the Settlor interfered with the money in the Bank Accounts (despite having no right to do so) and had no intention to relinquish its beneficial interest in the money held in the Bank Accounts. By way of example, the Court relied on evidence that the Settlor had transferred money from the Bank Accounts to purchase an apartment in New York. that the Judge went on to say that the Settlor was motivated by a "desire to protect her funds from potential claims by La Dolce Vita arising from the sale without giving up her ability to make use of those funds for her own benefit". The Judge also noted that the Settlor's actions demonstrated that she thought that she had free use of the Bank Accounts. On the basis of these findings, the Court found that there was a resulting trust and the Settlor retained a beneficial interest which would allow the appointment of a receiver.

Comment

For some, the outcome of this case might appear concerning in that it could suggest that it is possible for creditors of settlors to get their hands on trust assets. However, the finding in this case is that the money in the Bank Accounts in question never truly made its way into the trust structure ie it is not a trust busting case, but rather a finding that the settlor retained beneficial ownership of an asset.

This case provides a useful reminder about the limits of asset protection of trusts in circumstances where a non-beneficiary settlor retains control of assets and/or treats them as if they were the absolute owner. This could draw the inference that: (i) the trust is an "illusion" or "sham"; or (ii) a settlor never intended to relinquish beneficial interest fully (as was determined in this case). Settlors who place assets into trust for asset protection reasons must therefore be mindful of this and should be careful how they interact with such assets if they want to retain such protection in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.