Bmp v Bmq

• Jurisdiction: Singapore
• Judgment Date: 05 December 2013
• Date: 05 December 2013
• Docket Number: Divorce No 5 of 2011 (Registrar's Appeal Subordinate Courts Nos 193 and 194 of 2012)
• Court: High Court (Singapore)

BMP

Plaintiff

and

BMQ and another appeal

Defendant

[2013] SGHC 263

Lionel Yee JC

Divorce No 5 of 2011 (Registrar's Appeal Subordinate Courts Nos 193 and 194 of 2012)

High Court

Contempt of Court—Civil contempt—Wife obtaining Mareva injunction against husband in divorce proceedings—Wife obtaining ex parte leave to apply for committal of husband for breach of Mareva injunction—Husband seeking to set aside order granting leave to wife to apply for committal—Whether wife's statement filed in support of her application for leave defective—Whether service of court order on husband required to be proved in application for leave to apply for committal—Whether test of prima facie case of contempt applicable in determining whether leave to apply for committal should be granted—Order 52 r 2 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The plaintiff wife (‘the Plaintiff’) filed for divorce against the defendant husband (‘the Defendant’). The Plaintiff was granted a Mareva injunction restraining the Defendant from dealing with certain assets, including the matrimonial property. Subsequently the Plaintiff took out an ex parte application under O 52 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘Rules of Court’) for leave to apply for an order of committal against the Defendant on the ground that the Defendant was in contempt of court for failing to comply with the Mareva injunction. Leave was granted and the Plaintiff duly applied for an order of committal against the Defendant.

The Defendant then filed an application to set aside the order granting leave to the Plaintiff to apply for committal and to strike out the Plaintiff's application for committal, arguing that the statement filed by the Plaintiff pursuant to O 52 r 2 (2) of the Rules of Court was defective, that the Plaintiff did not produce an affidavit of service to prove that the Mareva injunction had been personally served on the Defendant, and that the Plaintiff did not make full and frank disclosure at the hearing of the Plaintiff's ex parte application for leave to apply for committal.

The Defendant's application was heard by a district judge (‘the District Judge’) who set aside the order granting leave to the Plaintiff to apply for committal with respect to the matrimonial property but granted leave to the Plaintiff to apply for committal with respect to the Defendant's dealings with some of his shares and the proceeds of an insurance policy. The Defendant filed an appeal against that part of the District Judge's orders granting leave to the Plaintiff to apply for committal. The Plaintiff filed a cross-appeal against that part of the District Judge's orders setting aside the earlier order granting leave to the Plaintiff to apply for committal.

Held, allowing the appeal and dismissing the cross-appeal:

(1) The threshold for granting leave to apply for an order of committal under O 52 r 2 of the Rules of Court was that of a prima facie case of contempt. While the court would not simply rubber-stamp an application for leave to apply for committal, the court also would not venture into the merits of the substantive committal application at this stage: at [13] to [19] .

(2) Order 52 r 2 (2) of the Rules of Court required that an application for leave to apply for committal be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal was sought (‘O 52 r 2 (2) statement’). There was no exception to this rule for committal applications made at the Subordinate Courts: at [20] and [21] .

(3) The test was whether the O 52 r 2 (2) statement was of sufficient particularity to give the alleged contemnor enough information to enable him to meet the charges against him, from the perspective of a reasonable person in his position. Any deficiencies in the O 52 r 2 (2) statement could not be cured by references to other documents or by explanations from counsel either orally or in writing: at [24] and [25] .

(4) The test of sufficient particularity of the O 52 r 2 (2) statement was to be enforced at the leave stage and the matter would not be allowed to proceed further if the O 52 r 2 (2) statement was faulty. However, if the O 52 r 2 (2) statement failed to set out sufficient details of the alleged breaches of the original order, the court had jurisdiction to entertain a fresh application in the proper form founded on the same alleged contempt: at [26] and [27] .

(5) Although the Rules of Court did not expressly require the O 52 r 2 (2) statement to set out whether and how the order of court was served on the alleged contemnor, this should be done as a matter of good practice and such information had to be included in the affidavit supporting the application for leave to apply for committal: at [28] , [29] and [31] .

(6) The District Judge had erred in refusing leave to the Plaintiff to apply for committal with respect to the matrimonial property by finding, on a balance of probabilities, that the Defendant only had notice of the Mareva injunction after the transaction complained of was completed. At the leave stage, the proper evidential threshold was that of a prima facie case: at [34] and [35] .

(7) Nevertheless, the District Judge was correct to set aside the ex parte order granting leave to the Plaintiff to apply for committal with respect to the matrimonial property since the relevant paragraph of the Plaintiff's O 52 r 2 (2) statement did not adequately set out the case which the Defendant had to meet: at [36] to [41] .

(8) The Plaintiff's O 52 r 2 (2) statement also did not set out with sufficient particularity what the charges made against the Defendant were with respect to his shares: at [48] and [50] .

(9) It was not appropriate to grant the Plaintiff leave to apply for committal proceedings in respect of the Defendant's alleged disposal of the proceeds of his insurance policy although the Defendant would probably have understood what the alleged contemptuous conduct was from the O 52 r 2 (2) statement. The O 52 r 2 (2) statement should have included more details, such as the details of the alleged disposal, and neither it nor the supporting affidavit stated whether and how the Defendant had notice of the Mareva injunction. Moreover, the Plaintiff's complaint concerning the Defendant's insurance policy constituted only one small remnant of the entire O 52 r 2 (2) statement, the rest of which was irregular. Further, the Plaintiff was not precluded from re-applying for leave to apply for committal on the same grounds with an O 52 r 2 (2) statement in the proper form, in which case all the allegations should be dealt with in a single application: at [54] and [55] .

Ang Boon Chye v Ang Tin Yong [2011] SGHC 124 (refd)

Arthur Lee Meng Kwang v Faber Merlin Malaysia Bhd [1986] 2 MLJ 193 (refd)

B (JA) (An Infant) , Re [1965] Ch 1112 (folld)

Barnes v Seabrook [2010] EWHC 1849 (Admin) (refd)

Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC) (refd)

Chiltern District Council v Keane [1985] 1 WLR 619 (folld)

Chou Yi Feng v Chou Yi Chen HCA No 4393 of 2001 (23 November 2002) (CFI,HK) (refd)

Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441 (folld)

Harmsworth v Harmsworth [1987] 1 WLR 1676 (folld)

Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401 (refd)

Kabushiki Kaisha Sony Computer Entertainment Inc v Ball [2004] EWHC 1192 (Ch) (refd)

Kirk v Walton [2009] 1 All ER 257 (refd)

M (Minors) (Access: Contempt: Committal) , Re [1991] 1 FLR 355 (refd)

Malgar Ltd v RE Leach (Engineering) Ltd [2000] FSR 393 (refd)

Neo Mei Lan Helena v Long Melvin Anthony [2000] SGDC 28 (refd)

Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR (R) 518; [2007] 2 SLR 518 (refd)

Ronald Philip Devereux v Majlis Perbandaran Langkawi Bandaraya Pelancongan [2012] 4 MLJ 665 (refd)

Royal & Sun Alliance Insurance Plc v Kosky [2013] EWHC 835 (QB) (refd)

Summit Holdings Ltd v Business Software Alliance [1999] 2 SLR (R) 592; [1999] 3 SLR 197 (folld)

Syarikat M Mohamed v Mahindapal Singh [1991] 2 MLJ 112 (folld)

Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 (refd)

Tan Sri Dato' (Dr) Rozali Ismail v Lim Pang Cheong @ George Lim [2012] 3 MLJ 458 (refd)

Tan Sri G Darshan Singh v Tetuan Azam Lim & Pang [2013] 5 MLJ 541 (folld)

The New Straits Times Press (M) Bhd v Ahirudin bin Attan [2008] 1 MLJ 814 (refd)

Wee Choo Keong v MBf Holdings Bhd [1993] 2 MLJ 217 (folld)

Woodsville Sdn Bhd v Tien Ik Enterprises Sdn Bhd [2009] 3 MLJ 191 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 52 r 2 (consd) ;O 1, O 2, O 32 r 6, O 45 r 7, O 45 r 7 (2) , O 45 rr 7 (6) -7 (7) , O 52, O 52 r 2 (2) , O 52 r 3, O 52 r 6

Rules of Court 1996

Rules of the Subordinate Courts (Cap 321, R 1, 1993 Ed) O 51 r 2 (2)

Civil Procedure Rules 1998 (UK) Pt 81;rr 32.14, 81.17, 81.18

Civil Procedure (Amendment No 2) Rules 2012 (UK)

County Court Rules 1981 (UK) O 29

Rules of Court 2012 (M'sia) O 52 r 3

Rules of the High Court (HK) O 52 r 2

Rules of the High Court 1980 (M'sia) O 52 r 2

Rules of the Supreme Court (UK) O 52

Peter Cuthbert Low and Choo Zheng Xi (Peter Low LLC) for the plaintiff

Khoo Boo Teck Randolph and Anusha Prabhakaran (Drew & Napier LLC) for the defendant.

Judgment reserved.

Lionel Yee JC

1 The court's power to compel obedience to its orders and rulings in civil proceedings through penal sanctions is founded not only on the need to vindicate the rights of litigants but also on the need to uphold its authority and protect the administration of justice: see Pertamina Energy Trading Ltd v Karaha Bodas Co LLC[2007] 2 SLR (R) 518 at [22] - [27]. However, because of the summary and quasi-criminal nature of the court's jurisdiction in civil contempt as well as the fact that the liberty of the respondent is at stake, it is important that there be compliance...