AOO v AON

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 29 September 2011
• Neutral Citation: [2011] SGCA 51
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 192 of 2010
• Year: 2011
• Published date: 14 October 2011
• Hearing Date: 25 May 2011
• Plaintiff Counsel: Christopher Yap (Christopher Yap & Co)
• Defendant Counsel: Wong Yoong Phin (Wong Yoong Phin & Co)
• Subject Matter: Family Law
• Citation: [2011] SGCA 51

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

This was an appeal by the wife against a decision of the High Court which restored an ancillary order made in the Family Court (see AON v AOO [2011] 2 SLR 926 (“the GD”)). In arriving at her decision, the learned judge (“the Judge”) was of the view that the ancillary order should be construed as a consent judgment instead of a default judgment. As will be seen, the precise characterisation of the ancillary order was crucial to the resolution of the present appeal. Having allowed the appeal and having set aside the ancillary order, we now give the detailed grounds for our decision.

The factual background

The appellant wife and the respondent husband were married on 3 February 1994. There were two children (“the children”) who at the time of the hearing before this court were 15 and 17 years of age, respectively. In January 2009, the husband confronted the wife with evidence of the latter’s alleged infidelity. The evidence consisted primarily of photographs, obtained with the assistance of a private investigator, showing that the wife was behaving intimately with another man. After confronting the wife, the husband indicated his unequivocal desire to divorce the wife and engaged solicitors to act for him towards this end. On the instructions of the husband, the solicitors produced a draft deed of settlement (“the deed”) in respect of ancillary matters. The deed purported to evince the parties’ intention with regard to maintenance, division of matrimonial property and custody of the children and the wife was given a copy of the deed only some eight days after being confronted by the husband. The salient features of the deed are as follows: (i) firstly, that the husband would have sole custody of the children with reasonable access granted to the wife; (ii) secondly, that the matrimonial home would be transferred to the husband without any refund of the wife’s contributions via the Central Provident Fund (“CPF”); and (iii) thirdly, that the wife would provide for herself and waive her right to claim for maintenance. The deed was signed by the wife on 12 February 2009 and it was executed by the husband on 16 February 2009, this last mentioned date being approximately one month after the husband had confronted the wife about her alleged infidelity. We pause parenthetically to observe that the deed may be categorised as a postnuptial agreement as it was made with a view towards the dissolution of the marriage. Divorce proceedings commenced swiftly thereafter, with the husband filing a writ for divorce on 17 February 2009. The divorce proceeded on an uncontested basis with an interim judgment for divorce being granted on 5 May 2009 in the absence of the wife who elected not to attend the divorce hearing.

The manner in which the ancillary order came to be made on 7 October 2009 forms the bone of contention between parties. The first ancillary matters pre-trial conference (“APTC”) was adjourned on 28 May 2009 due to the wife’s absence. Thereafter, notwithstanding the wife being notified of their respective dates and timings, three further APTCs were adjourned due to her absence. The hearing for ancillary matters was eventually set for 7 October 2009. The wife did not appear during the hearing and the presiding District Judge made the following orders (for the avoidance of doubt, the plaintiff in the orders below referred to the respondent husband):

(1)... [T]he Plaintiff [shall] have sole custody and control of the two (2) children of the marriage...with reasonable access to the Defendant;

(2)... [T]he Defendant shall, within three (3) months from the grant of the Final Judgment and subject to the approval of the Housing & Development Board where required, transfer all her share and interest in the matrimonial flat at and known as Apartment Block 145 Lorong Ah Soo #02-141 Singapore 530145 (“the matrimonial flat”) together with all furniture, fixtures and fittings and decorations therein to the Plaintiff with no CPF refund to be made to the Defendant’s CPF account(s) and the Plaintiff shall henceforth bear: - (a) the outstanding Housing & Development Board’s loan; (b) all moneys, if any, due to the Housing & Development Board; and (c) all conveyancing, stamp registration and administrative fees relating to the said transfer;

(3) ... [T]his Order be made subject to the CCentral Provident Fund Act, Chapter 36 (“the CPF Act”) and the subsidiary legislation made thereunder and the CPF Board shall give effect to the terms of this order in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder;

(4) [T]hat the Registrar or Deputy Registrar of the Subordinate Courts under Section 45 of the Subordinate Courts Act, Chapter 321 be empowered to execute, sign or indorse all documents necessary to effect the transfer of the matrimonial flat on behalf of the Defendant should the Defendant fail to do so within seven (7) days of a written request being made to her;

(5) ... [T]he parties, including CPF Board, be at liberty to apply for further direction(s) generally; and

(6) ... [T]here be no order on costs.

What is clear from the facts is that, firstly, the wife made no appearances (whether in person or through a legal representative) in the ancillary proceedings despite having been accorded multiple opportunities to do so and, secondly, the ancillary order tracked the provisions of the deed (see [2] above).

The wife filed an application on 8 March 2010 to set aside the interim judgment and the final judgment (entered in November 2009) for divorce as well as the ancillary order.

Decision of the District Court

At the hearing of the wife’s application on 10 June 2010, counsel for the wife informed the District Judge (“the DJ”) that he was only applying to set aside the ancillary order. The DJ held that a court had the power to set aside regularly obtained orders where the party seeking to set aside the order had a real prospect of success if the matter was litigated. The threshold applied by the DJ was set out in the case of Abdul Gaffer v Chua Kwang Yong [1994] 3 SLR(R) 1056 (“Abdul Gaffer”), which essentially followed the English decision in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc (The Saudi Eagle) [1986] 2 Lloyd’s Rep 221 (“Saudi Eagle”). Having decided what the applicable legal principles were, the DJ then proceeded to set aside the ancillary order on the grounds that the wife, if given an opportunity to litigate, had a real prospect of success in obtaining some award of maintenance as well as a share in the matrimonial home.

Being dissatisfied with the decision of the DJ, the husband appealed to the High Court.

Decision of the High Court

When the matter was heard before the High Court, the Judge construed the main issue being whether the ancillary order should be treated as a consent judgment or a judgment obtained in default of appearance. In the Judge’s view, the characterisation of the ancillary order was significant in so far as the legal thresholds which the wife had to fulfil prior to a court exercising its discretion to set aside the ancillary order were concerned.

The Judge first correctly highlighted the fact that the test for setting aside regular default judgments had been restated since Abdul Gaffer. In Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907 (“Mercurine”), this court held (at [50] and [60]) that the appropriate test to be applied when considering whether a regular default judgment should be set aside was that which was established in the House of Lords decision in Evans v Bartlam [1937] AC 437, viz, “whether the defendant could establish a prima facie defence in the sense of showing that there are triable or arguable issues” (see Mercurine at [60]), and not the “real prospect of success” test enunciated in Saudi Eagle.

The Judge then adopted the threshold for setting aside ancillary orders made by consent as stated in the Singapore High Court decision of Lee Min Jai v Chua Cheow Koon [2005] 1 SLR(R) 548 (“Lee Min Jai”), where Choo Han Teck J stated (at [5] and [6]) as follows: 5 Under s 112(4) of the Women's Charter (Cap 353, 1997 Rev Ed), the court ‘may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made’. But this section, and the authorities referred by Mr Chia, should not be construed as an invitation to revise the terms of a settlement merely so that they appear more equitable or will be, in fact, more equitable in the objective opinion of the court. Privately settled terms in respect of the ancillary matters in a divorce may not always appear to be fair. But divorce is a very personal matter, and each party would have his own private reasons for demanding, or acquiescing to, any given term or condition in the ultimate settlement. What the court should be alert to, is that one party had not taken an unfair advantage over the other in the course of negotiating and settling the terms. Hence, in Dean v Dean [1978] 3 All ER 758, the court held (as set out in the headnote) that:

[W]here an agreement between the parties had been reached at arm's length and the parties had been separately advised, the agreement itself would be prima facie evidence of the reasonableness of its terms, and formal discovery would probably be unnecessary.

6 In the present case, the matrimonial flat was a gift by the respondent's grandmother to him as well as the petitioner. The petitioner was aware that she had a share in that flat and told her previous solicitor so. The terms of settlement were clearly reached at arm's length, and there was no question of the respondent concealing any material fact from the petitioner.

In...