Singapore International Commercial Court

86 This court had in fact previously found that there was some evidence of an arrangement for the Trust Assets to be transferred to an Irish company. We quote the relevant parts of our Judgment as follows:

87 The Defendants also point to an email from Chantal dated 29 June 2016 which referred to "bcs in ireland",^[61]which most likely refers to BCS Cosmetics. For these reasons, we think that it is sufficiently established that there were plans to move the Ethocyn business to an Irish company, and that BCS Cosmetics was set up for that purpose.

88 In the light of these facts, we find that S/N 403, the transfer of US$22,079.52 to BCS Cosmetics, has been adequately justified as being an expense incurred for the purpose of giving effect to the plan to transfer the assets and moneys to Ireland. At this point in time, around 24 October 2016, it was not yet clear that Weber would act contrary to the Trust, and this sum can be properly deducted from the Trust as an expense.

89 However, the fact remains that this transfer to BCS Cosmetics was never effected, and the present proceedings were commenced on 20 November 2017. In other words, based on the evidence before this court, it appears that BCS Cosmetics did not eventually carry out the Ethocyn business as the Trust Assets were not transferred to it. In our judgment, the entries for the latter two payments (S/Ns 412 and 415) in February and May 2017 respectively should be falsified. First, the timing of these payments is telling. By this time, the 12 December 2016 Meeting (see the Judgment at [181]) had already taken place, at which, according to Heika, Weber claimed for the first time that the Trust Assets and Trust Moneys belonged to him. Indeed, the Defendants' case at trial concerning the 12 December 2016 Meeting was that it was a discussion concerning Heika's interest in acquiring the Ethocyn business from BCS or Weber at arm's length, a claim that was rejected by this court at [182] of the Judgment. It follows that, in truth, by this time, Weber was already acting in breach of the Trust. Secondly, it appears that although there was some plan for an Irish company to be used to transfer the Trust Assets and Trust Moneys to the Estate, this was never done and the Trust Assets and Trust Moneys were not transferred to the Estate (see the Judgment at [186]). The inference to be drawn is that the payments were not in fact properly made for the purpose of the Ethocyn business, since the plans involving BCS Cosmetics were not followed through with. Thirdly, the Defendants' case that these sums of money (totalling over US$1.1m) was for "share capital" is not justified by any documents or evidence (since the documents presented only show that the sums were transferred out to BCS Cosmetics,^[62]without showing what the sums were used for). Indeed, the only other documentation shows that it was Weber who gave instructions to the employees at BCS to effect the transfer.^[63]

90 The difference between the two later payments and the first of these payments (S/N 403 on 24 October 2016) lies in the dates and the possibility that these were in fact properly incurred for the purposes of a transfer of the Ethocyn business to BCS Cosmetics, pursuant to the discussions as referred to at [86] above. We therefore conclude that the entries S/Ns 412 and 415 should be falsified.

91 This category pertains to expenses incurred by Renslade (S) for a total of US$8,716.73 and payments made to BCS for a total of US$8,500.42.

92 The breakdown of each of these expenses incurred by Renslade (S) is as follows:^[64]

93 The Defendants argue that these were expenses incurred as a result of the operations of these companies, and that these were also loans to two companies, Legendary Cosmetics and Power Post, which were companies set up on Chantal's instructions.^[65]Baker argues that no records have been produced showing that Chantal had authorised these payments.^[66]

94 These expenses were reflected in an expense report dated 11 October 2000 and sent to Chantal.^[67]In our view, this is prima facie evidence of Chantal's approval of these expenses - the fact is that Chantal was given a report of these expenses, and despite the absence of written confirmation of approval, this is evidence from which it can be inferred that Chantal did approve the transactions. This is buttressed by the fact that Chantal was aware of Legendary Cosmetics and Power Post, and had received various emails concerning the business of these two companies.^[68]Specifically, some of these emails referred specifically to invoices due to be paid by Legendary Cosmetics and Power Post. Indeed, on 21 September 2000, Chantal received an email in which she was updated with the following:^[69]

We therefore think that the Defendants have discharged their burden of justifying these deductions.

95 In relation to the payments to BCS (S/N (a) of the table at [92] above and the US$8,500.42 paid to BCS), for the reasons that we have elaborated above, we find that these payments to BCS were justified. The evidence shows that these were amounts paid by Renslade (S) to BCS.^[70]Eg, Weber 20 at pp 651-655 (JBOD Vol A4 at pp 1789-1793).These pertained to the expenses relating to domiciliation, directorship, taxes, filings, and secretarial fees. Insofar as there is no indication that Chantal had directed that Renslade (S) be wound up or that all activities in relation to that company should cease, it appears that these fees were just part of the general administrative and operational expenses of the company. We therefore find that these deductions are justified.

96 For these reasons, we conclude that these entries should not be falsified.

97 This category concerns two payments that were made in relation to alleged legal services provided by Wehinger:

(a) S/N 17 of the "Outgoings" in the Combined Account, referring to a payment of US$6,040.50 to Wehinger on 20 June 2001 allegedly for legal services provided in relation to the Ethocyn business; and

(b) S/N 413 of the "Outgoings", referring to a payment of US$18,588.88 to Wehinger Kaelin Ferrari AG (Wehinger's firm) on 11 April 2017, allegedly for Wehinger's fees in meeting with Heika.

98 There is sufficient evidence that the payments were actually made. The question here is whether they were authorised or properly incurred.

99 In relation to S/N 17, the payment of US$6,040.50, we see no reason to falsify the entry. Baker's only objection is the standard objection based on the absence of documentary evidence of Chantal's authorisation. However, in this instance, we think that the natural inference is that Wehinger was indeed providing legal services in relation to the Ethocyn business, and Chantal would likely have approved it (expressly or impliedly) in the process of conducting the Ethocyn business. This was in 2001, when relations were good between the various parties. As we observed at [98] of the Judgment, Chantal and Wehinger shared a working relationship from as early as 10 August 1989, and Wehinger was assisting Chantal in the Ethocyn business. The sum is not so significant relative to the Trust Assets and Trust Moneys as to warrant any doubt as to the veracity of the expense. Further, although Wehinger has subsequently adopted a position that he was never engaged by Chantal, it is sufficiently clear, on the facts before this court, that at around 2001, Wehinger was working with Chantal on the Ethocyn business, since Wehinger had confirmed in March 2000 that he, together with Weber, would support her business and assist with setting up the necessary corporate structure in Singapore (see the Judgment at [98]). Given our own clear findings in the Judgment, we proceed on this basis for the sum paid in 2001, and make an order consistent with the evidence before us. Wehinger's position elsewhere is more relevant when there is uncertainty in the evidence, or to periods when the relationship may have soured.

100 In relation to S/N 413, we begin by noting that the payment was made on 11 April 2017, after Chantal's death. As Baker notes, he was not approached for approval as the executor of the beneficiary Estate.^[71]As such, prima facie , there is no authorisation for this payment unless it can be said that this was a continuation of a standing direction from Chantal prior to her passing. Further, we note that the invoice for these charges^[72]is stated to be for the period 16 September 2016 to 11 April 2017. In that regard, we highlight material parts of our findings in relation to Wehinger:

(a) There was documentary evidence that was consistent with Chantal's view that Wehinger was acting for her (see the Judgment at [162]). While we declined to "determine the exact nature of Chantal's relationship with Wehinger ( ie , whether he was in fact acting as Chantal's lawyer) as it is not an issue raised by the parties" (at [163]), this court observed that "Chantal believed that Wehinger was acting on her behalf and, on the evidence before [the court], Wehinger never disabused her of her belief" (at [163]).

(b) There was an agreement at the 12 December 2016 Meeting, at which Wehinger was present, for the Defendants to transfer the Trust Assets and/or Trust Moneys to the Estate via an Irish company, but this was not done (see the Judgment at [188(q)]). It is Baker's case that Wehinger had failed to act promptly and in doing so, supported the Defendants.^[73]

101 At the same time, there is an ongoing suit in the US commenced by Baker against Wehinger, described by Weber as being based on Wehinger's "part in assisting Weber in his actions against Chantal and the Estate".^[74]In that suit, Wehinger has filed a motion for the suit to be dismissed on the basis that the court lacked personal jurisdiction, or on the basis of forum non conveniens .^[75]For present purposes, what is relevant is that Wehinger has adopted a position in that suit which clearly contradicts any attempt to recover any legal fees from Chantal or the Estate:^[76]

102 In the light of this contradictory evidence, and given the fact that at least after December 2016, there appears to be indication that Wehinger was not acting in the Estate's interests, we conclude that the entry at S/N 413 should be falsified. However, we clarify that this is based on a finding that the Defendants have not proved that the expense was properly incurred and authorised, rather than any positive findings concerning Wehinger's relationship with Chantal or Wehinger's alleged misconduct, which is a matter to be resolved in the ongoing proceedings against Wehinger.

103 This dispute concerns various payments that Renslade (HK) allegedly made for its "general and administrative expenses", relating to S/Ns 83, 122, 159, 196, 232, 265, 306, 341, 379, 409, 421 and 423 of the outgoings in the Combined Account. These are entered into the Combined Account as annual entries, with some degree of breakdown into various categories of expenses. For ease of reference, we set out the annual expenses identified in the Combined Account and the amount disputed by Baker in the following table:

We also set out the parties' respective positions on the sub-categories of expenses incurred in each year in Annex A to this judgment.

104 The Defendants' case is that these expenses were incurred in the course of the Ethocyn business and with Chantal's knowledge. They note that these expenses have been verified by two sets of accountants: (a) the general and administrative expenses amounting to US$1,657,241.06 have been reflected in audited financial statements; and (b) an additional verification was undertaken by Mr Arora, confirming that US$1,686,631.47 amounted to properly verified expenses.^[78]Baker's objections are largely based on the standard objection that there is an absence of documentary evidence showing Chantal's authorisation for the specific expenses. Further, he raises specific issues with particular outgoings, for example, a US$17,722.64 donation to Foundazione Eco Himalaya, payments to Dev and/or for the Arrowhead Property, bank charges for unauthorised transactions such as a CHF305,000 loan to Goldwing Investment Pte Ltd.^[79]Further, payments were made in relation to a patent application that was filed without Chantal's or Baker's approval, and payments were accounted for to Heuking Kuhn Luer Wojtek ("HKLW"), which is Dr Ralf Wojtek's ("Wojtek's") law firm.^[80]Other unexplained payments with contradictory explanations include US$3,500 as "staff incentives" which contradicted their claim that Renslade (HK) did not have employees of its own, and shareholding fees paid to BCS Connexion Services Pte Ltd ("BCS Connexion") which remains unexplained as Renslade (HK)'s sole shareholder was Weber and not BCS Connexion.^[81]

105 At the outset, we reiterate that the mere fact that the audited financial statements may refer to these expenses does not mean that they were properly incurred and that they should not be falsified. Similarly, Mr Arora's opinion that they are sufficiently supported by documentation does not resolve the issues that are before us for determination.

106 Our analysis below proceeds on the premise that Renslade (HK) was in fact the company which held the Trust Moneys beginning some time in 2007, after BCS/Weber retained a 5% commission/remuneration. That 95% of the revenue was channelled to Renslade (HK), which held the proceeds on trust (see the Judgment at [140(b)] and [223]). In our judgment, it follows that certain steps had to be taken for Renslade (HK)'s operations and administration, and that the expenses incurred in relation to those steps would be properly incurred. Baker appears to recognise this in that his objections do not extend to all of the expenses incurred by Renslade (HK). For example, he has not objected to deductions for auditor's fees, postage and courier expenses, printing and stationery, telephone charges and most of the travelling expenses incurred prior to 2017. However, Baker does maintain objections to other categories of alleged expenses. His position on these categories can be summarised according to the types of expenses. Given the level of specificity at which the parties have joined issue, we provide our findings at a similar degree of granularity, according to the categories of expenses rather than the year in which they were incurred.

107 Although the administration, management, registered office and secretarial fees are listed separately in the Combined Account, we deal with these together as the evidence (from Renslade (HK)'s audited reports) shows that these fees were paid to BCS Connexion^[82]or, from 2012 onwards, an unspecified related company (as the audited financial statements did not provide a further breakdown of the specific related company the fees were paid to). We are satisfied that these expenses were properly incurred for the purposes of the functioning of the Ethocyn business and Renslade (HK). These expenses seem to us to be part and parcel of the operational costs of a business. Baker has provided no reason to doubt that these were actually paid to these related companies, or that these services were not actually rendered. The absence of direct evidence of Chantal's approval of these expenses is not fatal to the Defendants' case here as these fees appear, on the face of it, to pertain to the operation of Renslade (HK), which Chantal was aware of and wished to continue (in the absence of any direction to stop Renslade (HK)'s operations). These entries should therefore not be falsified.

108 We also find that the majority of the bank charges and overdraft charges were properly incurred. Baker's arguments in this regard are primarily that the Defendants have not shown that the bank charges were incurred in relation to transactions directed or approved by Chantal, and that there is no evidence of any authorisation for Renslade (HK) to maintain an overdraft account and to incur overdraft charges thereon. We disagree. While it is true that the Defendants bear the burden of proving that outgoings were properly incurred, we are satisfied that bank charges would be incurred in the normal operation of a business, especially a company which held significant funds and made a significant number of transfers. As for the overdraft account, we do not think it implausible that an overdraft may be incurred as part of the normal operation of a company. On the whole, we are satisfied that the burden is sufficiently discharged given the inherent likelihood that these charges may be incurred in the course of operations.

109 As for the specific allegations of unauthorised transactions, however, we are prepared to make deductions accordingly. We proceed only on those transactions that have been highlighted to us given our views that bank charges would generally and normally be incurred in the course of an operational business. Two specific transactions have been highlighted by Baker. One is a transfer of US$50,000 to Your World Media. We do not think that this is ultimately unauthorised (see [118] below) and say no more in this regard. The other is a loan of CHF305,000 to one Goldwing Investment Pte Ltd ("Goldwing"). We agree that there is no indication of how Goldwing was related to the Ethocyn business, and note that the loan agreement with Goldwing that was tendered did have the preamble redacted. It is also telling that the loan agreement was signed by Weber for both sides.^[83]The debit note for this sum transferred to Goldwing dated 12 October 2010 shows charges totalling US$107.69.^[84]We falsify these entries only to the extent of US$107.69.

110 This was a sum of US$14,145.00 declared as an expense in 2011. It does not appear that any justification or details have been provided in relation to this sum. Although it appears that Renslade (HK) held a net value of US$2,185,060 in bonds in 2011,^[85]it is not apparent that the income from the bonds has ever been accounted for or that these investments were specifically authorised by Chantal. While there was some reference to bonds purchased in 2014,^[86]this was a few years after this expense was declared. Given that it is unclear what these bonds were and how they related to the Ethocyn business, this casts doubt on the propriety of charging this expense to the Trust. This expense should therefore be falsified.

111 Custodian fees were paid for in 2015, 2016, 2017, 2018, and 2019,^[87]amounting to a total of US$106,698. However, no indication is given of what these custodian fees were for, which is surprising given that these expenses were incurred relatively recently. Insofar as they pertain to investments that Renslade (HK) may have made, we think that these should not be deducted as there is no indication that the profits for the investments were accounted for. Unlike other expenses like administration and secretarial fees, we are unable to arrive at any conclusion on the nature and purpose of these expenses from the face of the financial statements. The absence of any real explanation as to the purpose of these fees justifies falsification of these entries.

112 Directors' fees were paid in 2007-2008,^[88]2009,^[89]2010,^[90]2011,^[91]and 2013,^[92]amounting to a total of US$26,139.97. This coincided with the periods in which Weber,^[93]one Mr Teo Kim Por^[94]and one Mr Ang Meng Hai Markus David were appointed as directors.^[95]Although Weber has provided these financial statements showing payments to directors, it is not clear to whom the payments were made and whether there were any underlying approvals by Chantal for these payments.^[96]Unlike business expenses for the operation of a company, directors' fees are not a necessity and cannot be inferred to have been approved simply because of the company was operational, and unless express approval can be shown for these fees to be charged to Renslade (HK), we conclude that these entries should be falsified.

113 These exchange losses were identified in the financial statements for 2012, 2014, 2015, 2016, 2018, and 2019. The explanatory notes to the financial statements explain the following relating to foreign exchange:^[97]

114 Although the specific transactions are not identified, given the multiple jurisdictions involved in the Ethocyn business and the large sums of money transferred over time, we consider that such losses can be considered part and parcel of the operation of Renslade (HK) as a business, and, on that basis, the Defendants have discharged their burden. We do not see a reason to falsify these entries.

115 These marketing fees were paid to Legendary Cosmetics.^[98]Eg , Weber 20 at p 681; p 719 (JBOD Vol A4 at pp 1819 and 1857).As indicated in the Combined Accounts (at S/N 97), the Defendants' case is that "[t]he marketing fee charged by Legendary Cosmetics to Renslade [(S)] or Renslade HK (as the case may be) was for Legendary Cosmetics to be placed with funds for the operation costs to maintain the company."^[99]As discussed at [76]-[77] and [93]-[94] above, we agree with the Defendants that Chantal had requested that Legendary Cosmetics be set up, and hence, that there was at the very least implicit approval of any costs that were necessary for the operations of that company. Although further details of what Legendary Cosmetics did are not provided, we do not find that is fatal to the Defendants' case given the clear evidence that Chantal had approved the setting up and operation of Legendary Cosmetics. We conclude that these entries should not be falsified.

116 In general, we accept that professional fees would be part of the expenses incurred in the operation of Renslade (HK). While Baker has sought to falsify expenses relating to fees paid for patent services in 2017 to 2019, we do not think these expenses should be falsified.^[100]We are satisfied that they were incurred for the purpose of maintaining the Ethocyn Rights in various jurisdictions, and given that the Estate will have the benefit of the Ethocyn Rights, we do not think it is right not to charge the expenses relating to these patents to the Trust Moneys.

117 However, there are specific instances where the objections raised by Baker warrant falsification. First, insofar as any payments were made to Dev for the reasons we canvassed above at [83], we do not think any payment is justified. This objection pertains to payments of (a) US$2,260.70 in 2010;^[101](b) US$4,154.53 in 2011;^[102](c) US$3,899.65 in 2012;^[103]and (d) $4,173.53 in 2013.^[104]These entries, totalling US$14,488.41, should be falsified. Secondly, insofar as any payments were made to HKLW, being Wojtek's law firm, in 2016 and onwards, we think that these should be falsified as well, for the same reasons as discussed in relation to Wehinger's fees (see [101]-[102] above). In our view, there is sufficient basis on which for us to conclude that around 2016 onwards, Wojtek was not acting in the interests of the Trust - indeed, we found at [181] of the Judgment that Wojtek was representing BCS at the 12 December 2016 Meeting. Even though the Defendants claim that these services were incurred in connection with the Ethocyn business,^[105]we ultimately consider that the period of time when these services were allegedly rendered gives rise to the inference that even if the services were done for the Ethocyn business, they were ultimately done so for the Defendants' benefit. As a matter of fairness, we see no reason why these should be charged to the Trust's account. Hence, while we will allow the deduction for payments made in 2016 (since it is not clear when in 2016 Wojtek began to act exclusively for the Defendants at the Estate's expense), we will not allow a deduction of the payments to HKLW in 2017. We note here that in an earlier version of the account, the Defendants had identified four payments to HKLW in 2017 totalling US$80,333.48:^[106](a) US$26,024.30 on 24 January 2017; (b) US$16,174.42 on 16 March 2017; (c) US$18,600.45 on 26 April 2017; and (d) US$19,534.31 on 21 June 2017.^[107]The first of these was placed under the legal and professional fees paid by Renslade (HK) in 2016 in the Combined Account, although it was in fact paid out in January 2017.^[108]It appears to us that the remaining three were placed under the legal professional fees paid on 2017.^[109]Given our reasoning above, we therefore falsify these entries to the extent of US$80,333.48.

118 In 2017, the financial statement reflects a loan to a related company of US$50,000 being written off. Based on the details provided of the loans to related companies, it appears that this was a US$50,000 loan to Your World Media.^[110]This loan appears on the financial statements from 2010.^[111]That the loan was extended sometime in 2010 is also corroborated by the debit note dated 3 March 2010 showing a transfer of US$50,000 in favour of Your World Media.^[112]For the reasons noted at [76] above, we find that there is sufficient basis to conclude that Chantal had requested Your World Media to be set up and that expenses would be incurred by that company. While the specific purpose of the loan of US$50,000 is unclear, it appears sufficiently likely to have been part of the funds needed to operate and sustain Your World Media. Although there is no evidence that Chantal had specifically approved the writing off of this loan, given that this was a sum provided to a related company, this suggests that the loan was not intended to be repaid in the first place. We are satisfied that the burden of proof has been satisfied in relation to this sum, which should not be falsified.

119 One provision for bad debt is shown in the audited financial statements for the year ending 31 December 2013, for the sum of US$117,384. In context, this appears to be a bad debt that was owed by Renslade Holdings Pte Ltd, ie , Renslade (S).^[113]This loan appears to have been present as early as 2009, beginning with a loan of US$109,498.^[114]For similar reasons as above, we think that the internal transfers of money are not so far from the operation of the Ethocyn business and Renslade (HK) as to warrant a falsification of this entry. For similar reasons, the provision for bad debt in 2014 for the sum of US$7,322, relating also to Renslade (S) appears to be justified.^[115]We find that the Defendants have satisfactorily discharged their burden of proof on the face of the documents and in the context of what else we know of the Ethocyn business.

120 Baker has not objected to the travelling expenses charged to Renslade (HK) before 2017, but objects to the entries in 2017 and 2019. We agree with Baker that these entries should be falsified. It is clear to us that at least from 2017 onwards, the Defendants had adopted a position fundamentally contrary to their duty as trustees. As we noted at [19] above, this means that we should subject the expenses incurred at around this time to a higher degree of scrutiny. We have not been provided with any evidence of the purposes of these trips, or how they may have contributed to the Ethocyn business. Indeed, as Ms Woo highlighted in her submissions, it was not clear why there was a need to travel to Germany, for example, as there was no Ethocyn business there.^[116]In the circumstances, we are unable to conclude that the Defendants have discharged their burden of proof, and find that these expenses, which total US$6,189 (being the sum of US$1,623^[117]and US$4,566^[118]) should be falsified.

121 Withholding tax was provided for in 2014 to 2018. We accept that such tax appears to be part of the normal operation of the business of Renslade (HK). In the absence of any specific allegation concerning these amounts, we do not think that the Defendants have failed to discharge their burden to justify these outgoings.

122 The Defendants argue that this sum of US$17,722.64 was transferred on Chantal's instructions.^[119]However, in the absence of specific evidence of this request, the absence of any connection to the Ethocyn business and given the absence of any other evidence upon which the inference of instructions or approval may be drawn, we conclude that the Defendants have not discharged their burden of justifying this outgoing.

123 Based on our findings above, the total amount to be falsified from these entries would be US$265,824.19, being the sum of US$107.69, US$14,145.00, US$106,698, US$26,139.97, US$14,488.41, US$80,333.48, US$6,189 and US$17,722.64.

124 The dispute here concerns US$2m that was allegedly paid by Nu Skin to BCS Pharma Corporation instead of BCS. This is related to the claims that BCS had brought in the US, and which forms the subject of the anti-suit injunction, which we discuss in our judgment relating to that application in SIC/SUM 37/2021, Baker, Michael A (executor of the estate of Chantal Burnison, deceased) v BCS Business Consulting Services Ltd and others [2021] SGHC(I) 14. In these proceedings, Baker recognises that the US$2m was indeed Trust Moneys. However, he takes the position that because Weber had breached his duties by the time of the payment of US$2m in 2018, he has foregone any right to compensation.^[120]

125 We note that the outcome of the US proceedings does not affect the narrow question of whether Weber is entitled to a 5% commission/remuneration for the US$2m paid by Nu Skin, which was intercepted and transferred to BCS Pharma Corporation instead. This is because Baker concedes throughout that these are Trust Moneys. Hence, the only question here is whether Weber is still entitled to the 5% commission/remuneration in 2018.

126 In our view, by 2018, Weber was not entitled to any commission or remuneration on the US$2m. The learned authors of Lewin on Trusts at para 20-034 opine as follows:

127 The Defendants have not cited any contrary authority or disputed this principle. Their argument here is simply that this argument "is clearly an afterthought".^[121]However, this misses the point. The issue of whether Weber is entitled to 5% of this particular transaction was not a question to be determined at trial. This is the appropriate point at which the objection is taken. We think that the principle put forward by Baker is sound - in this case, Weber had asserted his own interest contrary to the interest of the beneficiary, and in doing so, effectively denied the existence of the trust. From that point onwards, there is no basis on which Weber should be allowed to take the benefit of the alternative, that even if his denial of the trust is incorrect, he should be allowed to deduct his commission/remuneration as usual. The very denial of the trust is as fundamental a breach as can happen. We therefore conclude that S/N 426, for US$100,000, should be falsified.

128 One of the final categories consists of a single entry (S/N 430) listed as "Other outgoings, including miscellaneous costs and expenses", amounting to US$3,659,469.30. The Defendants concede that supporting documents have not been located for these expenses. However, they maintain that these expenses were incurred and provide a number of examples:

(a) Weber provided consulting services "to develop and expand the Ethocyn business that were clearly outside and beyond the scope of the services of a trustee". Weber claimed that his hourly rate was US$400 from 2000 to 2010 and US$500 from 2001 to the present. For example, between 2000 and 2002, he assisted with the work necessary to review a new facility in Budapest, closing that facility, and finding another location for an Ethocyn purification laboratory. In 2000 and 2001, he advised Chantal with respect to the preparation of distribution agreements between different companies. He also provided advice "on all relevant business decisions", helped to expand the business, including expanding into more international market, assisted to find potential packaging and filling suppliers in China in 2013-2014, making business plans for building a production and distribution facility in Europe, providing services in relation to the Nu Skin SDA, making contacts for Chantal in various countries, establishing multiple companies, planning for the transfer of the Ethocyn business to Ireland, discussing the establishment of a foundation, and having meetings with Chantal and her daughters.^[122]

(b) This sum also included general and administration expenses incurred by Renslade (S) for the Ethocyn business for 2000 to 2007, totalling around US$1.03m. As this company has been wound up and the records destroyed "after the end of the statutory retention period", Weber claimed that he was unable to provide a breakdown of the expenses incurred. However, the US$1.03m was derived from a comparison with the expenses incurred by Renslade (HK) from 2007 to 2019, which averaged US$147,405.13 per year. Multiplying that by 7 years, the Defendants arrived at the sum of US$1.03m.^[123]

(c) Personal expenses were incurred including medical fees relating to Birka Burnison's accident in India in or around 2016, and a payment of US$340,000 in or around 2010 in relation to a blackmailing incident involving Heika.^[124]The latter, in particular, was upon Chantal's instructions.

(d) Expenses of about US$50,000 were expended in the establishment of the Amarillis Foundation.^[125]

129 We begin with a general observation that the total sum of US$3,659,469.30, of which no breakdown has been provided, is prima facie suspicious given that the accounts neatly resulted in no money being owed by the Defendants to Baker. When asked about this coincidence, Ms Chong submitted that this was not a case of backward engineering, but that everything was (or, at least, must have been) spent for the purpose of the Ethocyn business.^[126]While the specific expenses under this category included estimations, these were extrapolations from other sources of information. We are not ultimately convinced by this explanation. While we have been willing to allow deductions on the basis of other evidence which has established to our satisfaction that certain deductions were properly incurred, even in the absence of clear documentary evidence of approval or instruction, this cannot go so far as to allow the Defendants' wish to claim broad swathes of expenses with generic explanations. As such, when it comes to S/N 430, we start from the position that none of the deductions should be allowed unless the Defendants can show that they have satisfied their burden of proof. We turn then to the categories expressly referred to by the Defendants.

130  First, in relation to Weber's claims to be remunerated for his services, we find that these deductions are not warranted. In the first place, there is no evidence at all of any agreement between Chantal and Weber concerning his remuneration for these services, apart from the 5% commission/remuneration which we deal with in our next point. In this regard, if Weber was indeed providing professional consulting services, it is surprising that no documentation of any contract or retainer has been provided. Certainly, there is no evidence of any agreement as to the US$400 or US$500 hourly rate. In fact, when we sought clarification from Ms Chong concerning the nature of these claims, she candidly recognised that these were not claimed from Chantal or the Trust at the time, and agreed that this was, in effect, an attempt to retrospectively seek compensation.^[127]These were not actual payments out of the Trust Moneys, but some kind of notional estimation of the value of services that Weber considers that he has provided to the Ethocyn business. In any event, we find that these services were already compensated for by the 5% commission/remuneration. As we have discussed above at [47] and [51], we find that this 5% sum was intended to compensate Weber for all the services he provided to Chantal and the Ethocyn business. Hence, these deductions are not warranted and should not be charged to the account.

131 Secondly, in relation to Renslade (S)'s alleged expenses, we find that these deductions should not be allowed. First, the Defendants' explanation for why there are no documents is not convincing and, in any event, not excusatory. There is no reason why the documents should have been destroyed even if the statutory retention period had expired (assuming that it did) - any such period would only set the minimum period required, but does not (and Weber cannot suggest that it does) mandate that the documents be destroyed. The absence of documents is therefore a matter entirely within the Defendants' (and particularly, Weber's) responsibility. Further, it is a trustee's duty to maintain records and documents, and any risk as to the absence of documents should be borne by the trustee and not the beneficiary. Secondly, there is no proof that these expenses to the sum of US$1.03m were incurred. The sum arrived at was based on an estimation drawing on the expenses incurred by Renslade (HK) from 2007-2019, and was not based on any evidence as to what was actually paid out. Again, the absence of evidence and documentation is a risk that the trustee is to bear, since the trustee was in a position to maintain accurate records. Thirdly, even this method of estimation is flawed, given that Renslade (HK) was actively receiving and handling the proceeds from the Nu Skin SDA, as these were transferred from BCS to Renslade (HK) to hold, in the period from 2007-2019. However, there is no indication of what Renslade (S) did from 2002-2007 and what expenses would be incurred in that regard, after the Ethocyn rights were transferred to BCS in 2002. Given the weakness in the justification for these expenses, and the absence of any real way of arriving at the expenses actually incurred by Renslade (S), we think that this sum should not be deducted.

132 Thirdly, we turn to the deductions of US$10,000 for Birka's medical expenses in 2016, and US$340,000 for the alleged blackmailing incident involving Heika. We think that the medical expenses of US$10,000 should not be deducted, as there is no indication that Chantal had instructed Weber to make that payment out of the Trust Assets. Indeed, Weber's own evidence is that as Chantal "was already seriously ill at that time", he paid for the necessary expenses.^[128]There is no reason to suggest why Weber should be taken to use the Trust Assets (noting that at the material time, Chantal was the beneficiary), and not his own personal funds. As for the US$340,000 deduction, however, we think that it is justified. The situation described by Weber is very specific, and Chantal's request may (in the circumstances) reasonably not have been documented.^[129]There are no counterindications that this expense was not directed by Chantal, and, apart from Baker's denial that this ever occurred, he has not put forward any evidence from Heika to dispute Weber's account.

133 Fourthly, in relation to the US$50,000 allegedly expended in setting up the Amarillis Foundation, we think that there is sufficient basis for this expense being deducted. This court found at [177] of the Judgment that "Weber had all along acted as a fiduciary for Chantal and the May and July 2016 Meetings were for the purposes of discussing how to return the alleged Trust Assets/Moneys back to Chantal and her daughters, through the Foundation " [emphasis added]. We also note (as above at [89]) that it was apparently only in the December 2016 Meeting that Weber claimed to be the beneficial owner of the Trust Assets (see the Judgment at [181]). At the time that the Foundation was set up and the arrangements were being made, therefore, it appears that there were in fact some steps taken towards effecting the transfer of the Trust Assets through the Foundation. Hence, it may be concluded that these expenses were incurred upon some arrangement for the return of assets to Chantal, and we think that even though this plan was not effected ultimately, the expenses were incurred at the time properly.

134 For the above reasons, we conclude that this category of miscellaneous outgoings should be reduced to US$390,000 only (being the sum of US$340,000 and US$50,000).

135 Apart from the outgoings generally, there are two specific disputes relating to how the Loan Repayment Order (see [8] above) was given effect to by the Defendants. We deal with these disputes here and in the following sub-section.

136 This dispute relates to the Defendants' inclusion at S/Ns 428 and 429 of the "Outgoings" in the Combined Account of a deduction of US$12,282,261.34 from the Trust Moneys (being the sum of US$11,498,045.20 and US$784,216.14 respectively). These sums are equivalent to the CHF9.5m loan that this court had ordered Weber to repay, together with the 3% interest from 30 June 2014 to 29 April 2020. Baker, however, argues that S/Ns 428 and 429 should not include the 3% interest to be paid on the CHF9.5m, which he calculates to be CHF1,662,894.67 ("the Loan Interest"), as Weber is to be personally liable for the 3% interest and should not be allowed to deduct it from the account.^[130]

137 At the hearing before us, Ms Chong did not contend strenuously for the Loan Interest to be included in the account.^[131]She pointed us to Weber's affidavit, where he stated that he would leave this issue to be addressed by the accounting expert.^[132]Ms Chong then referred us to Mr Arora's opinion, where he stated:^[133]

138 We note here that Mr Arora's opinion is not dispositive of this issue (see also [56] above), and that this is an issue of the proper characterisation of the 3% interest in law, rather than as a matter of accounting practice. This is so because the treatment of this 3% interest is tied up with Weber's liability for CHF9.5m and the proper characterisation of that principal sum.

139 While it may be true that Weber had decided to use the CHF9.5m to invest in bonds, that does not change the fact that this was a sum loaned to him by Chantal (as we have found in the Judgment), and that there was an agreed 3% interest to be paid on that sum. The proper view of the CHF9.5m was that it was removed from the Trust Moneys at the time of the loan, becoming the subject of a personal obligation on Weber to repay the CHF9.5m with 3% interest. Whatever he chose to do with that sum of money, it was incumbent on him to return the principal and interest by the necessary date. The Loan Repayment Order extracted from our Judgment reflects this. Strictly speaking, instead of reflecting this as deductions in S/Ns 428 and 429 on the basis that these sums were paid to D&N under the Court of Appeal's order, the sum of CHF9.5m was instead to be deducted at the time when the loan was entered into, as that was when the CHF9.5m was, by Chantal's directions, removed from the Trust and placed on loan to Weber.

140 Seen in this way, it is clear that only CHF9.5m was taken out of the trust and no longer needs to be accounted for in the Trust Moneys. However, any interest on the CHF9.5m is not related to the Trust, and should not be deducted from the Trust Moneys. The 3% interest is due on the loan , which is owed directly to Chantal and, now, her Estate. Weber is personally liable for the 3%, and should not be allowed to deduct that 3% from the Trust Moneys. As such, S/Ns 428 and 429 should be reduced by CHF1,662,894.67.

141 We highlight for completeness that this does not result in double-counting of any sum of money. What this means is that CHF1,662,894.67 of the moneys transferred to D&N (and hence, the plaintiff) pursuant to the Loan Repayment Order is to be considered as coming from Weber personally. Under the Combined Account, this sum had been incorrectly included in the deductions from the Trust. This means that, upon this correction being made, there remains an equivalent sum to be paid from the Trust Moneys on the taking of the account.

142 This dispute concerns the applicable exchange rate between US dollars and Swiss Francs for the purposes of deducting the payment made by the Defendants to D&N in compliance with para 3 of CA/ORC 122/2020.The brief background to this particular head of dispute is as follows:

(a) After the Judgment, the Defendants applied for a stay of execution. The Court of Appeal decided in CA/ORC 122/2020 that Weber should pay D&N CHF9.5m plus 3% interest from 30 June 2014 to 29 April 2020, for D&N to hold pending the disposal of the Appeal.

(b) On 26 August 2020, D&N received US$11,498,045.20. Applying the exchange rate as of 26 August 2020, this was equivalent to CHF10,443,674.46. There was hence a shortfall of CHF719,220.21.

(c) Subsequently, on 4 March 2020, the Defendants instructed their bank to transfer CHF932,589.20 (being CHF719,220.21 plus the 5.33% interest). The effective date of the transfer was 5 March 2021. On 8 March 2021, D&N received US$764,721.12.

143 Baker argues that based on the exchange rate applied on 8 March 2021, when D&N received the payment, the sum of CHF719,220.21 would be equivalent to US$764,721.12, and that only this sum should be deducted from the Trust in the Combined Account.^[134]The Defendants argue that the proper exchange rate should be that applied on 4 March 2021, giving the sum of US$784,216.14 (which is reflected in S/N 429).^[135]In the alternative, the Defendants are willing to rely on the exchange rate on 5 March 2021 instead, which would give US$778,462.38.^[136]

144 In our view, the ideal exchange rate to have applied would have been the exchange rate when the CHF9.5m was first taken out of the Trust by Weber . This follows from our view above that, in truth, when Chantal extended this loan to Weber, the sum was no longer part of the Trust but was the subject of a personal obligation owed by Weber. In reality, this sum ceased to be a trust asset when the loan was granted. However, no evidence has been led of the exchange rate on this date, and we determine this issue on the basis of the parties' respective positions.

145 We find that the exchange rate as of 5 March 2021, the effective date of transfer, should be used. In contrast to the question of whether the full amount has been received by Baker (which justifies the use of the exchange rate on the date of receipt for to calculate the shortfall of the transfer on 26 August 2020), the exercise of accounting is concerned with arriving at the proper value of the Trust Assets and Trust Moneys. In that sense, the relevant valuation is at the time the moneys are transferred out of the Trust Moneys, which would be the effective date of transfer, being 5 March 2021 in this case. Therefore, the appropriate value for the deduction would be US$778,462.38 instead of US$784,216.14, a difference of US$5,753.76.

146 We therefore find as follows:

(a) S/Ns 4, 5, and 14, referring to a total of US$15,400 by BCS to Renslade (S), should be falsified.

(b) S/Ns 6, 10, 11, 13, 16, 18, 21, 22, 24, 26, 27, 29, 31, 33, 34 and 36, referring to the payment of US$25,142.97 of management fees to BCS should not be falsified.

(c) S/Ns 12 and 15, referring to the payment of US$331,269.08 to Plexus AG should be falsified.

(d) S/Ns 35, 39, 52, 68, 82, 100, 121, 158, 195, 231, 264, 305, 340, 378, 408, 420, 422 and 424, referring to the US$2.7m for BCS's personnel and administrative overhead, should be falsified

(e) The entries for payments of US$59,145.57, US$109,334.51 and US$118,732.23 in respect of Legendary Cosmetic, Your World Media and BCS Pharma Pte Ltd should not be falsified.

(f) S/Ns 329, 362 and 372, referring to payments totalling US$9,523.65 to Dev, should be falsified.

(g) S/Ns 412 and 415, referring to payments totalling US$1,119,688.45 (being the sum of US$511,920 and US$607,768.45) should be falsified, while S/N 403 should not be falsified.

(h) Entries for expenses incurred by Renslade (S) to the value of US$8,716.73 and payments to BCS for US$8,500.42 should not be falsified.

(i) Of the payments to Wehinger, S/N 413, referring to a payment of US$18,588.88 to Wehinger's firm on 11 April 2017, should be falsified, but S/N 17 need not be falsified.

(j) Of the payments for Renslade (HK)'s general and administrative expenses, only US$265,824.19 should be falsified, while the remainder should not be falsified.

(k) S/N 426, an entry for US$100,000, being a claimed 5% commission/remuneration of the US$2m payment by Nu Skin to BCS Pharma Corporation in 2018, should be falsified.

(l) Of the "other outgoings" claimed under S/N 430, the entry should be falsified except to the extent of US$390,000, that is, to the value of US$3,269,469.30 (being US$3,659,469.30 - US$390,000).

(m) S/Ns 427 and 428 should be modified to only reflect the CHF9.5m principal that was deducted from the Trust Moneys when the loan to Weber was first made. As such, the 3% interest on the loan, amounting to CHF1,662,894.67 should not be included in any deduction and should be falsified to that extent.

(n) S/N 428 should be modified to reflect the exchange rate on 5 March 2021, which would give US$778,462.38, a difference of US$5,753.76 from the stated sum in S/N 428 of the Combined Account. As such, the outgoings should be reduced by US$5,753.76.

147 In total, therefore, the outgoings in the Combined Account are reduced by US$7,835,517.31 and CHF1,662,894.67. In addition, as we noted at [13] above, the Defendants had modified the outgoings in the Combined Account after it was provided to the plaintiff. We include these modifications here as follows:

(a) A deletion of S/Ns 19 and 25, ie , a sum of US$15,786.30, from the Combined Account's outgoings, which the Defendants agreed to in a letter dated 26 April 2021.^[137]

(b) A reduction in the legal and professional fees claimed for 2014, 2017, 2018 and 2019, as follows:^[138]

(c) An addition of US$2,847 to the registered office fee for Renslade (HK) in 2009 and for bank charges in 2010,^[139]which categories of outgoings we have found acceptable above.

This results in a net reduction of US$23,906.92 based on Weber's own amendments to the Combined Account, which we find appropriate to incorporate.

148 Given that the account had, at the outset, resulted in no money being owed by the Defendants, the reduction of the outgoings by these amounts (the falsified entries and the modifications to the Combined Account) means that the Defendants are to pay US$7,859,424.23 (being the sum of US$7,835,517.31 and US$23,906.92)and CHF1,662,894.67 on the taking of the account.

149 The next issue for determination in SUM 25 is the extent of interest to be paid on the sum due from the Defendants to the plaintiff on the taking of the account. Baker's position is that pre-judgment interest should be ordered, and the interest rate of 5.33% per annum should apply to both pre-judgment and post-judgment interest.^[140]The Defendants highlight that the award of pre-judgment interest is discretionary, and submit that pre-judgment interest of 3.7% per annum would be fair.^[141]There is therefore no dispute over the usual 5.33% per annum as post-judgment interest, and we are concerned here with pre-judgment interest. We address this in two steps: first, whether pre-judgment interest should be awarded, and if so, what the appropriate rate of interest should be.

150 The basis for the power to award pre-judgment interest is s 12(1) of the Civil Law Act (Cap 43, 1999 Rev Ed), which reads:

We note for completeness that the phrase, "any debt or damages", has been construed broadly to also include sums recoverable in equity: see Management Corporation Strata Title Plan No 473 v De Beers Jewellery Pte Ltd [2002] 1 SLR(R) 418 at [54], following BP Exploration Co (Libya) Ltd v Hunt (No 2) [1983] 2 AC 352 at 373.

151 While the Defendants are correct to note that the award of pre-judgment interest is a matter of the court's discretion, the position is more nuanced than that. As the Court of Appeal stated in Grains and Industrial Products Trading Pte Ltd v Bank of India and another [2016] 3 SLR 1308 (" Grains ") at [138]:

152 The sole basis for the Defendants' submission that this court should exercise its discretion not to award pre-judgment interest is that the Defendants had paid into court the sum of S$10,330,658.91 on 28 January 2020 ( ie , prior to the Judgment which was handed down on 29 April 2020).^[142]However, in our view, this is not sufficient to justify not awarding pre-judgment interest. In particular, the span of time between that payment and the handing down of the Judgment (around three months) is much shorter than the span of time between 30 October 2017 (when the Defendants failed to comply with the demand for the Trust Assets and Trust Moneys to be accounted for and transferred) to the date of the Judgment or even the date when the initial sum was paid in January 2020. Further, as the rationale for pre-judgment interest is to compensate "a successful claimant for the time value of money the use of which was lost between the date on which the claimant's cause of action arose and the date of the judgment" ( Grains at [137]), the fact remains that even in respect of the S$10,330,658.91, the plaintiff did lose the time value of the money. We therefore find that pre-judgment interest should be awarded in this case in accordance with the general principle stated in Grains .

153 As for the date from which pre-judgment interest should run, we note that there is no dispute. We agree with Baker that this date should be 30 October 2017, which was the deadline given in the letters of demand sent to the Defendants for an account of the Trust Assets and Trust Moneys, and for the return of the said assets and moneys.

154 Baker argues that 5.33% per annum should be the applicable interest rate, while the Defendants argue that the more appropriate interest rate is 3.7% per annum.

155 Baker's position is essentially that 5.33% per annum is the default interest rate that the courts tend to apply, and that a party must show a reason for and adduce evidence to justify a departure from the 5.33%.^[143]Further, Baker argues that the proposed interest rate of 3.7% per annum should not be adopted as the expert opinion relied upon is flawed.^[144]In this regard, Baker attacks both the assumptions made in the Defendants' reliance on Mr Arora's opinion, and has also relied on its own expert, Mr Montek Mayal ("Mr Mayal"), to suggest that the calculations and results arrived at by Mr Arora are also incorrect.

156 The Defendants argue that the interest rate of 3.7% per annum is appropriate, "as it fairly reflects the return on investments during the time that [Chantal] was in control of the Ethocyn business and/or acquiesced in the investments made by Renslade [(HK)]".^[145]They submit that the evidence pertaining to Renslade (HK)'s investments would reflect Chantal's likely investment of the Trust Moneys, and that interest of 3.7% per annum accurately reflects the return on that hypothetical investment. The rate of 5.33% per annum would overcompensate the Estate.

157 We agree with Baker that the authorities show that in the absence of any reason to depart from the default rate, the default interest rate of 5.33% per annum would apply, even in respect of pre-judgment interest: see, eg , Grains at [143]; Anuva Technologies Pte Ltd v Advanced Sierra Electrotech Pte Ltd and another suit [2020] 4 SLR 569 at [70]. One example where the court had so departed was in Ong Teck Soon (executor of the estate of Ong Kim Nang, deceased) v Ong Teck Seng and another [2017] 4 SLR 819 (" Ong Teck Soon "), where the High Court held that the executor, after confronting the first defendant about the withdrawals, was content for the funds to remain in the bank account . As such, the court awarded interest at the actual rates earned in that account ( Ong Teck Soon at [85]). It is worth pointing out, however, that this lower interest rate was in respect of the period from the accrual of the action to the date of the writ - the usual 5.33% rate applied from the date of the writ to the date of judgment ( Ong Teck Soon at [80]).

158 In the present case, it is not necessary for us delve into the details of how Mr Arora arrived at the rate of 3.7% per annum. In our view, the Defendants' position is based on a number of assumptions that are ultimately untenable, even apart from the question of how the specific number should be calculated.

159 First, the reliance on Renslade (HK)'s investments assumes that Chantal had agreed to these investments. We agree with Baker that the Defendants have not shown any basis for this as a matter of fact - the Defendants' only argument is that this would have followed from Chantal's direction of the Ethocyn business and the fact that she was informed of transactions. Further, the Defendants rely on the fact that she had given a CHF6m loan with interest of 3% per annum. However, in our view, this evidence is equivocal. As Baker notes, there is some indication that Weber made independent decisions as to investments, and it is not clear to what extent and to what degree of detail Chantal was updated on these activities.^[146]

160 Secondly, in any event, the more crucial difficulty is that the Defendants' arguments assume that the relevant investment strategy is Chantal's. However, there is no reason why this should be the case. Chantal had passed away on 2 October 2016. The pre-judgment interest sought in this case is from 30 October 2017, the deadline for the demands to be complied with by the Defendants. By that time, Baker was already the executor of the Estate, which would have received the payments. In that regard, it is what the Estate would have done upon receipt of the payments by 30 October 2017 that is relevant. This is consistent with the approach taken in Ong Teck Soon where the executor's conduct (and not the testator's) was taken as the relevant factor for adjusting the applicable interest rate. If the purpose of pre-judgment interest is to compensate for the time value relating to the use of the funds, given the fact that the funds could only have been used by the Estate, it follows that the relevant value must be considered in respect of what the Estate might have done. In this regard, the Defendants' arguments are flawed.

161 Hence, we think that at a very fundamental level, the Defendants' attempts to rely on the returns obtained by Renslade (HK) on its investments are flawed. In the absence of any evidence of what the Estate would have done with the sums that were due on 30 October 2017, there is no reason to depart from the usual rate of 5.33% per annum. As such, we find that the rate of 5.33% should also apply to the pre-judgment interest.

162 There being no dispute over post-judgment interest, it follows that the appropriate interest payable on the sums due to the plaintiff on the taking of the account should be 5.33% per annum from 30 October 2017 until the sums of money are received by the plaintiff. In this regard, the interest on specific sums should only run until the specific sums are received by the plaintiff, if the payment is made in tranches.

163 The final dispute between the parties concerns a tax provision of US$70m for alleged US tax liability that the Defendants have included in the Combined Account (see S/N 431). We note, at the outset, that it remains unclear to us what is sought by the inclusion of this tax provision. Ms Chong has clarified that this does not refer to a sum of money being held for this purpose.^[147]Instead, it appears that it is a notional sum which, we imagine, the Defendants would like to offset against any sums found to be due to the plaintiff. Whatever it may be, however, we find no basis at all for allowing the Defendants to make such provision for alleged tax liability.

164 The Defendants claim that Baker had written to Weber's German counsel, Wojtek, stating that he or the other Defendants may be exposed to tax liability in the USA in connection with the Ethocyn business. Weber claims to understand that this refers to the tax liability related to the funds received by or due to Chantal and/or her Estate during her lifetime. Further, the Defendants argue, Baker's own tax adviser, Mr Wayne Johnson, had given evidence in his affidavit filed on 6 December 2019 that once the Trust Assets were ruled to belong to Chantal, these assets became subject to the attachment of a lien, to secure any claims that the US Inland Revenue Service ("IRS") would have for the taxes payable. The Defendants take the position that unless Baker has complied with all tax obligations in the US, it is reasonable and correct for a tax provision to be made. The Defendants rely on a report by Mr Robert McKenzie ("Mr McKenzie") for an estimate of US$70m in tax provision.^[148]

165 Baker takes the position that the Defendants have not shown that they would be liable for any US tax liability. Mr McKenzie's report only states that the Estate and/or Baker (as executor of the Estate) would be liable to the IRS. Baker relies on the opinion of his US tax law expert, Mr Mark E Matthews ("Mr Matthews"), who has concluded that the Defendants would not be liable for any taxes if they return the Trust Assets and Trust Moneys to Baker, and that the Estate currently does not owe taxes.^[149]

166 We first begin by clarifying the scope of Mr Johnson's evidence in his affidavit filed on 6 December 2019. While it is true that Mr Johnson had provided evidence that upon the decision of the court that the Trust Assets and Trust Moneys belonged to the Estate (as they belonged to Chantal), an inchoate lien would attach to secure the claims that IRS might have for estate taxes payable, Mr Johnson did not opine that there were any such outstanding tax liabilities. Indeed, he stated that "[a]t this point there has been no U.S. income tax assessed on the assets", and it is only after the court finds that Chantal was the beneficial owner that Baker would have to report this income and pay any tax associated with it.^[150]This evidence is neither here nor there. Further, it is not entirely clear to us what the nature of that inchoate lien would be, and whether it would follow the Trust Assets and Moneys as a proprietary lien, or whether it imposed personal liability on the party holding the Trust Assets and Moneys when the lien arises.

167 We turn to set out, in brief, Mr McKenzie's evidence. In his view, Chantal was the "grantor of a foreign grantor trust", and therefore, had the obligation to file a number of forms with the IRS annually. Upon her death, the Estate, as beneficiary of the trust, had to file similar forms.^[151]As these forms were not filed, the Estate would be liable for the unpaid tax (estimated to be within the range of around US$9m to over US$13m) and penalties (ranging from around US$19m to over US$68m).^[152]As Baker notes, Mr McKenzie's evidence is limited to the Estate's liability for unpaid taxes and the related penalties.^[153]

168 Baker's tax expert, Mr Matthews, highlights that the Defendants would not be liable to the IRS for any income tax obligations arising from Chantal's individual tax returns, for any estate tax, or for any of the Estate's tax obligations. He refers to two provisions that could potentially impose liability on the Defendants, but concludes that these would not apply. Having considered Mr McKenzie's report, he was also of the view that the majority of that report was irrelevant as it did not consider the question of the Defendants' liability.^[154]

169 While the expert evidence traverses a number of different areas, the central issue, in our judgment, is simply whether there is any basis for the Defendants to retain a tax provision, which must turn on whether the Defendants would personally be liable for any unpaid tax or tax penalties. If there is no such liability, and if any liability at all would fall on the Estate, then there is no justification at all for a tax provision, since the Defendants would not be liable in the first place, and would certainly then not be liable upon the transfer of the Trust Assets and Trust Moneys. Whatever liabilities would then be for the Estate to resolve and would not involve the Defendants.

170 The expert evidence does not establish that the Defendants would be personally liable for any taxes or penalties. Mr McKenzie's report only deals with the Estate's liabilities. Mr Matthews has provided the only indication of possible statutes under which the Defendants might be liable, and has concluded that these would not apply. There is no contrary submission based on US law. As such, the evidence points only one way, which is that the Defendants would not be personally liable for any taxes or penalties. It follows that the provision for tax is not justified, since the Defendants are not actually affected by any tax liability. Therefore, the tax provision for US$70m should be removed from the Combined Accounts.

171 For the reasons above, we grant the following orders:

(a) The Defendants are to pay the plaintiff the sums of US$7,859,424.23 and CHF1,662,894.67, as the sums due from the Defendants on the taking of the account.

(b) The Defendants are to pay to the plaintiff interest at the rate of 5.33% per annum on the moneys due to the plaintiff on the basis of the Trust, from 30 October 2017 until such date (or dates, if various sums are received at various time) that the sums are received by the plaintiff. For the avoidance of doubt, this interest is also to apply to the sum of US$10,330,658.91 paid to D&N which was released to Baker under the Release Order, and interest on this sum shall run until the date when Baker received the sums under the Release Order.

172 Turning to the issue of costs, we invite the parties to consider coming to an agreement on the costs of this application. In the event and to the extent that parties are unable to agree, they are to file written submissions no longer than 5 pages (excluding annexes and authorities) within one month of this judgment.