BLQ v BLR

• Court: High Court (Singapore)
• Judge: Tan Siong Thye JC
• Judgment Date: 30 December 2013
• Neutral Citation: [2011] SGHC 288
• Citation: [2011] SGHC 288
• Docket Number: RAS No 101 of 2013 (Divorce Suit No 409 of 2012)
• Hearing Date: 02 December 2013
• Plaintiff Counsel: Willie Yeo (Yeo Marini & Partners)
• Defendant Counsel: Ms Luna Yap (Luna Yap & Co)
• Subject Matter: Civil Procedure,Appeals,Extension Of Time,Leave
• Published date: 10 February 2014

Tan Siong Thye JC: Introduction

This judgment relates to two summonses filed by the applicant-husband. SUM 30400/2013 is the husband’s application for leave to appeal to the Court of Appeal. 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

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.

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.

The issues before the learned 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: The matrimonial flat at Block 661B 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 utilized for the purchase of the flat with accrued interest; 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; 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 monies. 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; 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 paragraph (a). 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; In view of the division of the matrimonial flat, there shall be no maintenance for the wife and each party is to retain all other assets in their respective names; No order as to costs; Liberty to apply.

The husband appealed against the learned District Judge’s decision. The appeal came before me on 21 October 2013. I dismissed the husband’s appeal. In the course of the hearing of the appeal the parties informed the court that there were some calculation errors on the undisputed figures before the Family court. The husband pointed out that there were computation errors relating to the payment of conservancy charges and property tax of the matrimonial flat submitted to the learned District Judge. The wife agreed with these errors. The learned District Judge had originally calculated that the husband had contributed 59% to the matrimonial flat, with the wife contributing 41%. Taking into consideration the revised amount of conservancy charges and property tax paid the direct contributions for the matrimonial flat became 66%-34% in favour of the husband. I therefore, corrected the errors and ordered that the proceeds of sale of the matrimonial flat be divided in the ratio of 86:14 in favour of the wife. I affirmed the other orders of the learned District Judge.

Subsequently, the husband filed SUM 30400/2013/Z and SUM 30539/2013/L, seeking an extension of time to apply for leave to appeal to the Court of Appeal, leave to appeal to the Court of Appeal and a stay of execution pending my decision to grant leave and the outcome of the appeal to the Court of Appeal. The application for leave to appeal to the Court of Appeal was filed on 7 November 2013, more than 2 weeks after I had dismissed the husband’s appeal.

Issues

There are five issues for my consideration: What is the requisite time frame for the filing of an application for leave to appeal to the Court of Appeal? Does the High Court have the jurisdiction to extend the time for the filing of an application for leave to appeal to the Court of Appeal? Should the High Court extend the time for the husband’s application for leave to appeal to the Court of Appeal? Is the husband required to apply for an extension of time to file a notice of appeal? Should the High Court extend the time for the husband’s application for leave to appeal to the Court of Appeal? Should leave be granted to the husband to appeal to the Court of Appeal if application for the extension of time to appeal is granted? If so, should execution be stayed pending the outcome of the appeal to the Court of Appeal?

What is the requisite time frame for the filing of an application for leave to appeal to the Court of Appeal?

Both parties informed the court that the requisite time frame for filing an application for leave to appeal to the Court of Appeal was seven days. However, there are no provisions that expressly prescribe the requisite time frame. I shall now examine the apposite provisions. It is important to emphasise that the husband sought leave to appeal against the decision of the High Court exercising its appellate jurisdiction. The first relevant provision is 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”). Paragraph 6(2) of the 2007 Transfer Order states:

Except with the leave of the Court of Appeal or a Judge of the High Court, no appeal shall be brought to the Court of Appeal from a decision of the High Court in respect of any appeal heard and determined by the High Court pursuant to sub-paragraph (1), regardless of the amount in dispute or the value of the subject-matter.

O 56 r 3(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) indicates that the prescribed period for filing the application for leave to appeal is seven days. It reads:

A party applying for leave under section 34 of the Supreme Court of Judicature Act to appeal against an order made, or a judgment given, by a Judge must file his application to the Judge within 7 days from the date of the order or judgment. [emphasis added]

This explains why the parties submitted that the prescribed period for filing such application in this instant case is seven days. The husband in SUM 30400/2013 prayed for extension of time “to apply for leave under section 34 of the Supreme Court of Judicature Act”. Is Section 34 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) applicable in this case? Section 34 states:

Matters that are non-appealable or appealable only with leave 34.—(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

(a) where a Judge makes an order specified in the Fourth Schedule, except in such circumstances as may be specified in that Schedule; (b) [Deleted by Act 30/2010 wef 01/01/2011] (c) [Deleted by Act 30/2010 wef 01/01/2011] (d) where the judgment or order is made by consent of the parties; or (e) where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final. (2) Except with the leave of a Judge, no appeal shall be brought to the Court of Appeal in any of the following cases: (a) where the amount in dispute, or the value of the subject-matter, at the hearing before the High Court (excluding interest and costs) does not exceed $250,000 or such other amount as may be specified by an order made under subsection (3); (b) where the only issue in the appeal relates to costs or fees for hearing dates; (c) where a Judge in chambers makes a decision in a summary way on an interpleader summons where the facts are not in dispute;

(d) where a Judge makes an order specified in the Fifth Schedule, except in such circumstances as may be specified in that Schedule; or

(e) where the High Court makes an order in the exercise of its appellate jurisdiction with respect to any proceedings under the Adoption of Children Act (Cap. 4) or under Part VII, VIII or IX of the Women’s Charter (Cap. 353). (2A) Subsection (2)(a) shall not apply to any case heard and determined by the High Court in the exercise of its original jurisdiction under — (a) section 17A; (b) section 59 or Part X of the Women’s Charter; or (c) any written law which requires that case to be heard and determined by the High Court in the exercise of its original jurisdiction. (2B) An order of a Judge giving or refusing leave under subsection (2) shall be final. (3) The President may, after...