Neil John Ryan & Another v Rosaline Berger

• Judge: Tan May Tee
• Judgment Date: 29 June 2000
• Neutral Citation: [2000] SGDC 26
• Citation: [2000] SGDC 26
• Published date: 19 September 2003
• Court: District Court (Singapore)

Judgment

GROUNDS OF DECISION Cur Adv. Vult.

Background

1. The Petitioner, an Australian national, married the Respondent, an American, in Los Angeles, California, USA, on 11 May 1984. On 25 August 1998, a decree nisi was granted on the Respondent’s Amended Cross-Petition which pleaded that the marriage had irretrievably broken down by reason that the Petitioner had committed adultery with the Party-Cited and the Respondent found it intolerable to live with the Petitioner. The Party-Cited in this case was the Filipino maid engaged by the parties to help in the care of the child. The ancillary matters prayed for in the Amended Cross-Petition were adjourned to be heard in chambers. These as set out in prayers (c) to (f) of the Amended Cross-Petition were as follows:

(c) that there be an order for division of all matrimonial assets

(d) that the Respondent be granted sole custody, care and control of the only child of the marriage with reasonable access to the Petitioner,

(e) that the Petitioner pays lump sum maintenance to the Respondent in lieu of periodic maintenance, an amount to be decided by the Honourable Court,

(f) that the Petitioner pays maintenance to the only child of the marriage,

2. The ancillary matters came on for hearing before me on 31 August to 2 September 1999. The proceedings were then adjourned for parties to file further affidavits to provide the valuations of certain assets. After hearing final submissions on 17 November 1999, I made the following order on 15 December 1999.

"Custody

1. The Respondent shall have custody, care and control of the child of the marriage, N, born on 18 December 1990, but shall consult the Petitioner and obtain his consent with respect to the choice of schools/educational institutions where the child is to receive his education.

2. The Petitioner shall have access to the child as follows:

(1) every alternate weekend from Friday 5.00 pm to Sunday 7.30 pm

(2) every other Friday from 5.00 pm to 9.00 pm, i.e. on the weeks without weekend access

(3) half of all school holidays

(4) alternate public holidays

(5) alternate Christmas holidays commencing Christmas 2000

3. There shall be liberty to both parties to bring the child out of the jurisdiction of the Court during the school holidays subject to the travelling parent informing the other parent 2 weeks in advance of the intended trip with details of the itinerary, flight arrangements and accommodation arranged for the trip. By consent, as security to ensure the child’s return to the jurisdiction, the other party’s share in the matrimonial assets namely the property at Centuryville Tanglin Park and Centrepoint shall be forfeited to the other party in the event of failure to bring the child back to Singapore. A penal notice shall be attached to the Order of Court

4. There shall be liberty to apply.

Matrimonial assets

5. The pool of matrimonial assets comprised the following:

[address]	$2,450,000.00
Centrepoint #05-61	$ 600,000.00
Tanglin Park #06-04	$2,100,000.00 (subject to mortgage of $882,000.00, net value is $1,120,200.00)
410 South Barrington Ave #205 Brentwood LA California (in Respondent’s sole name)	$ 510,000.00 (US$ 300,000.00)
Maserati car (in Respondent’s name)	$ 55,000.00
Exploration PNG (S) Pte Ltd	500,000 shares (value unascertained as company is subject to voluntary winding-up
Exploration PNG Pty Ltd	Value unknown
Pratt Ryan Oilfields	Value unknown
Heli-Hovell Pte	Value unknown
Petitioner’s CPF monies	$ 38,000.00
OCBC Joint Bank account	$ 1,287.85

6. The parties have 50% respectively of the value of the following matrimonial assets:

(1) Centuryville #07-01

(2) Centrepoint #05-61

(3) Tanglin Park #06-04

(4) 410 South Barrington Ave #205 Brentwood in LA California

(5) Maserati car

(6) Balance in OCBC joint account 501-9-054708

(7) monies in the Petitioner’s CPF account

(8) shares in Exploration PNG (S) Pte Ltd, Exploration PNG Pty Ltd, Pratt Ryan Oilfields & Heli-Hovell Pte

7. The Respondent shall be entitled to reside in Centuryville with the child and shall be given the first option to be exercised within 3 months of the order made today to purchase the Petitioner’s 50% share in this property at the current valuation of $2,450,000.00 subject to her paying the Petitioner his 50% share and bearing all costs expenses and requisite stamp fees in connection with the transfer. In the event the Respondent fails to exercise her option within the stipulated period, the Petitioner shall then have the option similarly valid for 3 months commencing from the expiry date of the Respondent’s option, to purchase the Respondent’s share for the same consideration and subject to the same terms.

8. In regard to the other 2 Singapore properties, parties shall mutually agree on the sale or disposal of their respective proportionate interests in these properties either to one another or to third parties, failing which there shall be liberty to apply for consequential orders in relation thereto. Upon disposal of these properties, the net proceeds of sale, shall be divided equally. For avoidance of doubt, the net proceeds of the Tanglin Park property shall mean the sale price less the outstanding bank loan amount and all costs and expenses of sale. The Petitioner shall refund his own CPF account the amounts utilised/withdrawn for the payments to the vendor and the mortgagee for this property. The net rental income derived from these properties, if any, shall be shared equally between the parties until the properties are disposed of.

9. The Respondent shall pay to the Petitioner the sum of US$150,000.00 being his share in the Brentwood property held in her sole name.

10. The Respondent shall pay to the Petitioner the sum of S$27,500.00 being his half share of the Maserati car.

11. The Petitioner shall pay to the Respondent the sum of US$32,500.00 being the Respondent’s half share of the US$65,000.00 damages recovered in the civil suit.

12. The Petitioner shall pay to the Respondent the sum of S$8,504.00 being his contribution towards the renovations of the matrimonial home for the child’s benefit.

13. The Petitioner shall pay to the Respondent the sum of S$19,000.00 being half of the amount standing in his CPF ordinary account.

14. In regard to the companies which are owned by the parties as equal shareholders, the parties shall share equally in the costs of the winding-up, any tax liabilities and the costs of valuation of the shares of the companies and any other incidental expenses.

Maintenance

15. The Petitioner shall pay to the Respondent the sum of S$120,000.00 representing a lump sum maintenance to her. (being $2,000.00 for 5 years)

16. The consent order made on 31 August 1999 for the maintenance of the child shall remain until further order.

Costs

17. The Petitioner shall pay the Respondent costs of the ancillary proceedings fixed at $25,000.00."

The appeals

3. Both the Petitioner and Respondent filed appeals after leave was granted by the High Court. I should say a few words on the conduct of the proceedings prior to leave being granted by the High Court for these appeals. Any appeal against my orders should have been filed within 14 days of my order, i.e. no later than 29 December 1999. The Petitioner’s solicitors did not lodge a notice of appeal within time. Instead she chose to apply for leave to appeal. The application for leave was fixed by the Registry to be heard by me on 12 January 2000. It should have been obvious upon reading Section 21 of the Supreme Court of Judicature Act together with Order 55 of the Rules of Court that the order made on 15 December 1999 was not one for which leave was required to appeal. In any event, a leave application, if necessary, had to be filed within 7 days of the order made. The summons-in-chambers seeking leave was however only filed on 29 December 1999, the 14^th day after my order. It appeared to me that counsel for the Petitioner chose to disregard the Rules of Court and the Practice Direction governing appeals which had been in force since 1 January 1999. When the summons came before me on 12 January 2000, I made no order on the application as there was no legal requirement for leave before an appeal could be filed.

4. As the time limited for filing her client’s appeal had since expired, leave of the Court was now required to file it out of time. She then had to file an application for extension of time which she did. That summons was heard before another District Judge who dismissed the application. An appeal was filed against that dismissal which went before the High Court on 6 April 2000. The High Court allowed the appeal and granted both parties an extension of 30 days to appeal my order made on 15 December 1999 subject to inter alia payment of costs by the Petitioner and application being made to me under the "Liberty to Apply" provision in my order pertaining to custody of the child. Parties came before me informally on 28 April 2000. There was no consensus between counsel on the purpose of that attendance. Having perused the minutes of the learned High Court Judge, and mindful that I was functus officio as regards the Order made on 15 December 1999, I informed parties that the terms of my order pertaining to custody and access were such that if the provisions were no longer workable by virtue of a change in circumstances, parties should make a formal application to Court with the supporting evidence to seek a variation accordingly under the "Liberty to apply" provision.

5. So although the Respondent whom I believe had no intention of appealing my order in the first place, now decided to appeal against those parts of the order which went against her. The Respondent’s appeal is RAS 720040 of 2000. Her appeal is essentially against Paragraph 9 of my Order that she be required to...