Blq v Blr

• Jurisdiction: Singapore
• Judgment Date: 30 December 2013
• Date: 30 December 2013
• Docket Number: Registrar's Appeal Subordinate Courts No 101 of 2013 (Divorce Suit No 409 of 2012)
• Court: High Court (Singapore)

BLQ

Plaintiff

and

BLR

Defendant

[2013] SGHC 288

Tan Siong Thye JC

Registrar's Appeal Subordinate Courts No 101 of 2013 (Divorce Suit No 409 of 2012)

High Court

Civil Procedure—Appeals—Leave—Extension of time—Husband filing application for leave to appeal to Court of Appeal two weeks after initial appeal from District Court was dismissed—Relevant time limit for filing leave application—Whether husband was out of time in filing leave application—Whether husband should be granted extension of time to file leave application—Whether there was prima facie case of error

The parties' 37-year marriage broke down irretrievably in January 2011 after the wife's accidental discovery of the husband's 15-year affair with a mistress. The ancillary issues came before a district judge (‘DJ’), who made certain orders. The husband's appeal against the DJ was dismissed, save for the rectification of some undisputed errors in the computation of certain sums pertaining to the matrimonial flat.

The husband subsequently attempted to appeal to the Court of Appeal. The husband's application for leave to appeal to the Court of Appeal was filed more than two weeks after the husband's initial appeal was dismissed. The husband therefore also sought an extension of time to apply for leave to appeal to the Court of Appeal, and a stay of execution.

Held, dismissing the husband's applications:

(1) Section 34 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘the SCJA’) did not apply to cases falling under Pt X of the Women's Charter (Cap 353, 2009 Rev Ed). Order 56 r 3 (1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), which imposed a time limit of seven days for an application for leave to apply to the Court of Appeal made pursuant to s 34 of the SCJA, did not apply to an application for leave under the Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2007 (Cap 322, S 672/2007) (‘the 2007 Transfer Order’). There was no express provision governing the requisite timeframe: at [8] to [12] .

(2) The law had to be interpreted in a harmonious whole. It would be highly anomalous for there to be no time limit for the application for leave for cases pertaining to Pt X of the Women's Charter. There was absolutely no reason to treat such cases differently from all other civil cases: at [23] .

(3) The husband was out of time. The requisite timeframe for appeals from Pt X cases was seven days, like all other civil cases: at [25] .

(4) Order 3 r 4 of the Rules of Court gave the High Court jurisdiction to extend the time for an application for leave to appeal to the Court of Appeal: at [27] .

(5) If this court granted the husband leave to appeal, the husband should file the notice of appeal within one month from the date on which leave was given: at [29] .

(6) Although para 6 of the 2007 Transfer Order stated that leave might be sought from the Court of Appeal or a judge of the High Court, a party might only apply to the Court of Appeal if there were special circumstances which made it impossible or impracticable to apply to the High Court: at [30] .

(7) With regard to the husband's extension of time to file his application for leave, the determinative factor in this regard was the husband's chances of successfully obtaining leave to appeal. There would be no point in granting an extension of time if the husband could not successfully obtain leave to appeal: at [33] and [35] .

(8) The test for whether leave should be granted for an appeal to the Court of Appeal consisted of the following three disjunctive limbs: (a) prima facie case of error; (b) question of general principle decided for the first time, or (c) question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage: at [38] .

(9) The husband's contention that there was a prima facie case of error was wholly without merit. Case law disclosed that the two primary methods in which a court could take into account undisclosed assets were not exhaustive. A court was not forced to choose between making a finding of the value of undisclosed assets or ordering a higher proportion of the known assets to be given. In any event the DJ was fully entitled to order an increase in the proportion of the matrimonial home to be allocated to the wife instead of ordering a transfer of money: at [40] , [41] and [43] .

Abdul Rahman bin Shariff v Abdul Salim bin Syed [1999] 3 SLR (R) 138; [1999] 4 SLR 716 (folld)

IW v IX [2006] 1 SLR (R) 135; [2006] 1 SLR 135 (folld)

Lau Loon Seng v Sia Peck Eng [1999] 2 SLR (R) 688; [1999] 4 SLR 408 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR (R) 862; [1997] 3 SLR 489 (folld)

NK v NL [2007] 3 SLR (R) 743; [2007] 3 SLR 743 (folld)

Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 (not folld)

Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196 (folld)

Tay Sin Tor v Tan Chay Eng [1999] 2 SLR (R) 385; [2000] 2 SLR 225 (refd)

Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 (refd)

Central Provident Fund Act (Cap 36, 2013 Rev Ed)

Rules of Court (Cap 322, R 5, 2004 Rev Ed) O 56 r 3 (1)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 56 r 3 (consd) ;O 3 r 4, O 56 r 3 (1) , O 56 r 3 (2) , O 56 r 16 (4) , O 57 r 17

Rules of the Supreme Court 1970 O 56 r 2

Rules of the Supreme Court (Cap 322, R 5, 1990 Ed) O 56 r 2, O 56 r 3 (1)

Supreme Court of Judicature Act (Cap 15, 1970 Rev Ed) s 34

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) s 28 A

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) ss 28 A, 28 A (2) (b)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 34 (consd) ;ss 28 A, 34 (2) (e)

Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 1996 (S 110/1996) para 6

Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2007 (S 672/2007) paras 6, 6 (2)

Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) (Amendment) Order 2004 (S 632/2004)

Women's Charter (Cap 353, 2009 Rev Ed) ss 112, 113, Pts VII, VIII, IX, X

Willie Yeo (Yeo Marini & Partners) for the applicant

Luna Yap (Luna Yap & Co) for the respondent

.

Judgment reserved.

Tan Siong Thye JC

Introduction

1 This judgment relates to two summonses filed by the applicant-husband. Summons No 30400 of 2013 (‘SUM 30400/2013’) is the husband's application for leave to appeal to the Court of Appeal. Summons No 30539 of 2013 (‘SUM 30539/2013’) is the husband's application for a stay of execution pending the outcome of the husband's application for leave to appeal to the Court of Appeal.

Background

2 The husband is a 61-year-old crane operator while the respondent-wife is a 55-year-old cleaner. They have two children aged 37 and 35. The parties' 37 years marriage broke down irretrievably in January 2011 after the wife's accidental discovery of the husband's 15 years' relationship with a mistress. The husband also has a 14-year-old daughter with the mistress.

3 The husband filed for divorce on the ground of unreasonable behaviour on the part of the wife. The wife counterclaimed for divorce on the ground of the husband's unreasonable behaviour. Interim judgment was ultimately granted on an uncontested basis.

4 The issues before the learned district judge (‘District Judge’) were the division of the matrimonial assets and the maintenance for the wife. The learned District Judge found that the husband had made $581,860.48 withdrawals from bank accounts without satisfactory explanation. At the Family court it was not in dispute that the wife had made direct financial contributions amounting to 41% of the matrimonial HDB flat. In view of the wife's indirect contributions, the learned District Judge held that it would be fair and just for the wife to have 65% of the flat. Taking into account the large unaccounted withdrawals and lump sum maintenance for the wife for a clean break, she awarded the wife 90% of the matrimonial flat. On 8 July 2013, she made the following ancillary orders:

(a) The matrimonial flat at Block 661 B Jurong West St 64 #11-418 Singapore 642661 shall be sold in the open market within six months from the date of this order and the proceeds of sale after payment of the costs and expenses of sale shall be divided in the proportion of 90% to the wife and 10% to the husband. Each is to reimburse if necessary their own CPF accounts with money utilised for the purchase of the flat with accrued interest.

(b) If the parties are required to reimburse their CPF accounts upon the sale of the matrimonial flat and should there be a shortfall in the defendant's share of the proceeds of sale, the amount of the shortfall shall be transferred from the husband's CPF accounts to the wife's CPF accounts.

(c) The above order is made subject to the Central Provident Fund Act (Cap 36) (‘CPF Act’) and the subsidiary legislation made thereunder in respect of the member's CPF moneys. The 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.

(d) The wife shall have the first option to purchase the husband's share of the matrimonial flat. If the wife does not indicate her intention to purchase the matrimonial flat within one month from the date of this Order, the matrimonial flat shall be sold as provided in para (a).

(e) The Registrar of the Subordinate Courts shall be empowered to sign all necessary documents for the sale of the matrimonial flat in place of either party if either party fails to sign within seven days' written notice to do so.

(f) In view of the division of the matrimonial flat, there shall be no maintenance for the wife and...