BOR v BOS and another appeal

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 21 November 2018
• Neutral Citation: [2018] SGCA 78
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal Nos 215 and 223 of 2017
• Year: 2018
• Published date: 24 November 2018
• Hearing Date: 06 August 2018
• Plaintiff Counsel: Yee May Kuen Peggy Sarah, Audrey Liaw Shu Juan and Valencia Soh Ywee Xian (PY Legal LLC)
• Defendant Counsel: Koh Tien Hua and Chew Wei En (Eversheds Harry Elias LLP)
• Subject Matter: Family Law,Maintenance,Wife,Child,Matrimonial assets,Division
• Citation: [2018] SGCA 78

Steven Chong JA (delivering the judgment of the court):

In TNL v TNK and another appeal and another matter [2017] 1 SLR 609 (“TNL v TNK”) at [53], this court affirmed that it would not readily interfere with orders made by a court below pertaining to the division of matrimonial assets, as these are squarely within the trial judge’s discretion. In order to warrant appellate intervention, the trial judge’s decision must be shown to be clearly inequitable or wrong in principle.

The present case is one where appellate intervention is necessitated by several computational errors and omissions by the High Court Judge (“the Judge”) to consider issues which, though raised by the parties, were not actively pursued during the oral hearings. It is unfortunate that the Judge did not receive adequate assistance from counsel, and that despite the Judge’s directions, counsel did not clearly set out their positions on several issues which arose in the course of the proceedings. As a result, various points which would otherwise have had a significant influence on the ultimate division of the matrimonial assets were overlooked. The difficulties are further compounded by the fact that by the time the appeals came before us, both parties had engaged new sets of counsel who were not in a position to fully explain why certain admissions, concessions and omissions were made in the court below.

This case thus underscores the need for counsel to do their part to assist the court in achieving a just outcome in each case. Particularly in complicated matrimonial litigation where there are myriad issues pertaining to the accounting and valuation of assets, counsel have a crucial role to play in apprising the court of their clients’ positions and the supporting evidence on all key issues. Where multiple rounds of submissions and affidavits have been filed, and the parties’ respective positions may have evolved over the course of the hearing, counsel should, at the appropriate time, update the court of any changes in their clients’ positions. This includes informing the court of the points which remain live issues between the parties, and the points which have been abandoned.

Facts

The parties were married on 10 October 2001. The wife (“the Wife”) is 42 years old and is a homemaker. The husband (“the Husband”) is 53 years old and works as a business consultant.¹ They have two sons from the marriage, [T] and [J], presently aged 14 and 12, respectively (collectively, “the Sons”). The Sons reside with the Wife in Singapore. The Husband relocated to China for work sometime in January 2008,² and has permanently resided there since.

The Wife commenced divorce proceedings on 11 April 2012 on the basis that the parties had been separated for a continuous period of four years. Interim judgment was granted on 4 February 2013.³ Thus, the length of the marriage was about 11 years and four months.

Prior to August 2012, the Wife and the Sons lived together with the Husband’s mother and his two daughters from a previous marriage at a property in Sea Breeze Avenue (“the Sea Breeze Property”). In August 2012, however, the Wife and the Sons moved out of the Sea Breeze Property into a rented apartment at Amber Road (“the Amber Apartment”).

The decision below

The ancillary matters were heard in two tranches in May and July 2017. The Judge delivered a detailed oral judgment on 13 November 2017 (“the Oral Judgment”).⁴ In summary, the Judge made the following orders: With regard to custody, control, and care of the Sons, the parties had agreed to share joint custody, with the Wife having care and control and the Husband having reasonable access (Oral Judgment at [3]–[4]). With regard to the division of matrimonial assets, after taking into account the assets which were found to be in the possession of the respective parties, the Husband was to pay the Wife a sum of S$18,000. With regard to maintenance, there would be no maintenance for the Wife. As for the Sons, the Husband was to pay monthly maintenance of S$3,500 for each child.

The orders with regard to the division of matrimonial assets and maintenance are the subject of these appeals. We thus set out the relevant parts of the Judge’s reasoning in more detail.

The Judge’s decision as to division of the matrimonial assets

The Judge noted that the parties had “broadly agree[d] on the identity and quantum of the assets and liabilities that constitute the pool of matrimonial assets, as set out in their Joint Summary of Relevant Information [(“JSRI”)]” (Oral Judgment at [5]). These included two properties in Singapore (namely, “the Sea Breeze Property” and “the Telok Kurau Property”), several bank accounts and securities accounts, CPF monies, an insurance policy, and a car. However, the parties disagreed over the value of seven categories of assets, six of which were in the name of the Husband and one of which was in the name of the Wife (Oral Judgment at [6]). The Judge’s findings on the six categories of assets in the Husband’s name have not been challenged on appeal and it is unnecessary to discuss them in any detail. On the other hand, both parties have appealed against the Judge’s findings in relation to the category of assets in the Wife’s name: namely, bonds which the Judge found to be worth S$11,000,000 (“the Bonds”).

In this regard, the Judge noted that the Wife had admitted through her counsel to receiving bonds worth “at least” S$11,000,000 from the Husband between June 2008 and November 2011. As to what had become of these Bonds or the proceeds from the liquidation or maturity of these Bonds, the Wife took the position that she had “used up” S$11,000,000 on the expenses of the household after the Husband left the family in 2008. These expenses included the following (Oral Judgment at [29]): the Wife’s alleged expenditure of S$55,320 per month on herself, S$25,000 per month on the Sons, and S$13,500 per month for the rental of the Amber Apartment; and the Wife’s expenditure on the Husband’s mother and his two daughters, as well as the upkeep of the Sea Breeze Property.

With regard to the amounts referred to at [10(a)] above, the Judge found that the individual items of expenditure which the Wife used to substantiate her expenditure were “grossly excessive” (Oral Judgment at [32]). According to the Wife, a transfer of S$1,529,040 which she received from the Husband on 31 October 2011 was reimbursement for expenses she incurred on behalf of the family from 2008 to 2011. Using this figure, the Judge estimated that the Wife had a total monthly expenditure of about S$33,979 (this being S$1,529,040 divided by 45 months from January 2008 to October 2011). The Judge then added to this figure a further sum of S$13,500 in monthly rental for the Amber Apartment. The Judge further found that the Wife was spending additional sums of about S$7,500 per month on the Husband’s mother and daughters, as well as the upkeep of the Sea Breeze Properties since January 2008. Based on these findings, the Judge concluded that the Wife would have spent about S$5,690,043 since 2008 (Oral Judgment at [33]).

However, the Judge reasoned that this estimate was “overly generous” because the Bonds, which were of significant value, would have generated interest income or investment returns which the Wife should account for (Oral Judgment at [33]). Taking this into consideration, the Judge found that only about S$4,500,000 could be accounted for as the Wife’s expenditure on herself and the family. This meant that S$6,500,000 was unaccounted for out of the S$11,000,000 worth of Bonds that the Wife had admitted to receiving from the Husband (Oral Judgment at [34]). This amount was taken as assets remaining in the Wife’s possession (Oral Judgment at [44]).

The Judge also addressed several other issues, such as alleged liabilities which were disputed between the parties, which are not the subject of these appeals. Having dealt with those points, the Judge set out her conclusions on the matrimonial assets within the pool and their respective values in tabular form (“the Table”) as follows (Oral Judgment at [42]):

	Asset (Liability)	Value (S$)
Joint Names	Sea Breeze	7,219,864
Telok Kurau	1,570,317
Merrill Lynch WM Account	0
UBS Investment Account	0
OCBC Easisave Account	807
UBS Trading Account	0
(OCBC Housing Loan)	(29,682)
(UBS Time Loan)	(4,504,068)
(UBS Time Loan)	(521,207)
Sub-total for assets in joint names	3,736,032
Wife’s Name	Vehicle SJU[XXXX]	90,000
NTUC Income Policy	38,485
CDP Securities Account	28,550
UOB Current Accounts	36,895
UBS Investment Account	2,109,255
CPF Account	5,973
Bank of China Account	0
([IT] Loan)	0
(UBS Time Loan)	(1,005,934)
Sub-total for assets in Wife’s name	1,303,226
Unaccounted value of S$11m Bonds	6,500,000
Sub-total for assets in Wife’s name including unaccounted bonds	7,803,226
Husband’s Name	Bank of Singapore Accounts	66,139
UOB Current Account	1,608
UOB Savings Account	166
UOB Global Currency Account	2,710
CDP Securities Account	98,775
UOB Bullion and Futures Account	30,699
OCBC Account	6,491
ICBC Account	9,176
Bank of China Multi Currency Account	1,084
Hebei Condominium	333,000
Xinjiang Qiangte	1,379,507
CPF Account	121,237
USD Fixed Income Account	0
China Construction Bank Account	1,040,427
Shijiazhuang Qiangte	0
OCBC Safe Deposit Box	0
Bank of China Account	1,011,598
([LLR] Loan)	0
([WHP] Loan)	0
Sub-total for assets in Husband’s name	4,102,618
Total Pool	Grand Total

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