Chan Sek Keong J

This action was commenced on 8 August 1987 by the plaintiffs, who are income beneficiaries of the family settlement, for the purpose of removing the then existing trustees, viz Hongkong Bank Trustee (Singapore) Ltd ('HBT'), the first defendants herein, as trustees of the family settlement and the appointment of British and Malayan Trustees Ltd ('BMT') in their place. On 23 January 1989, HBT applied by S/C No 443 of 1989 to be discharged as trustees and to have the second, fourth and fifth defendants appointed as trustees in their place. On 31 March 1989, I made an order in that summons discharging HBT as trustees of the family settlement and appointing BMT in their place (see [1989] 4 MLRH 249, [1989] 3 MLJ 84). The said second, fourth and fifth defendants have appealed against that order.

Issue

The issue as to whether HBT ought to have been removed on the grounds relied upon by the plaintiffs was not argued in S/C No 443 of 1989. The parties now require the court to decide the said issue for the purpose of determining whether the parties to the original action are entitled to have their costs of the action up to 23 January 1989 when S/C No 443/89 was filed, and if so, against whom and on what basis.

Plaintiffs' grounds

The grounds relied upon by the plaintiffs for the removal of HBT as trustees are set out in the affidavit of the second plaintiffs filed on 16 January 1990. The plaintiffs have alleged that HBT have failed to do the following things as trustees of the family settlement:

(1) to act as trustees of the relation and the charity settlements in breach of the terms of the family settlement;

(2) to inform the beneficiaries of the terms and fees of their appointment as trustees;

(3) to act properly in relation to the distribution of income from the Australian investments in repatriating overseas income to Singapore and thereby subjecting non-resident beneficiaries to Singapore tax, and also promptly in regard to the same;

(4) to avoid incurring unnecessary expense in the administration of the family settlement, eg in making police report against the defaulting trustees on the 'loss' of interest income which were intended for distribution to the Muslim poor;

(5) to make the correct deductions for withholding tax in respect of the income for the year 1986;

(6) to take into its safe custody some trust documents;

(7) to take prompt control of two Australian companies which belonged to the family settlement and the mortgages in favour of the previous trustees;

(8) to invest the trust funds in authorized investments in Australia and to disclose to the beneficiaries the advice of Queen's Counsel on how to deal with the Australian investments;

(9) to remit the sum of US$477.77 to a beneficiary, as a result of which he was paid five months late;

(10) to avoid incurring unnecessary expense in taking advice from solicitors on a claim involving $371;

(11) to compute correctly the estate duty payable on the estate of one of the deceased's beneficiaries, viz Fatimah, resulting in the estate duty being reduced, after the intervention of the plaintiffs;

(12) to hold an even hand amongst the beneficiaries by discriminating against the family members of two former trustees, Hussein and Mustapha.

I do not find it necessary to review the evidence in respect of all the above complaints. Many of these were trivial complaints. Some of them were exaggerated complaints which were, no doubt, contributed to a certain extent by the excessive caution and delays on the part of HBT. One of them had nothing to do with the administration of the family settlement except that it was construed as putting obstacles in the way of a beneficiary from recovering a sum of money owing to him by the settlement.

The thrust of the second complaint was not the failure to disclose the terms and fees of HBT's appointment as trustees, but that the amount of fees charged by HBT was excessive. No doubt the plaintiffs considered that they did not get good value for