BUE and another v TZQ and another

• Jurisdiction: Singapore
• Judge: Tan Puay Boon JC
• Judgment Date: 28 December 2018
• Neutral Citation: [2018] SGHC 276
• Plaintiff Counsel: Abdul Wahab bin Saul Hamid and Jovita Ann Dhanaraj (IRB Law LLP)
• Date: 28 December 2018
• Docket Number: Originating Summons No 146 of 2018
• Hearing Date: 11 May 2018,04 April 2018
• Subject Matter: Trusts,Resulting Trusts,Family Law,Advancement,Constructive Trusts
• Published date: 20 March 2019
• Defendant Counsel: Seenivasan Lalita and Tan Li Yi, Caleb (Virginia Quek Lalita & Partners),Yeow Tin Tin Margaret and Jeanna Loe Yuqing (Hoh Law Corporation)
• Court: High Court (Singapore)
• Citation: [2018] SGHC 276
• Year: 2018

Tan Puay Boon JC: Introduction

The plaintiffs are brothers (“the brothers”). The first defendant is their biological father (“the father”), and the second defendant is their (former) step-mother (“the step-mother”). The brothers and the father are the registered proprietors of a Housing and Development Board (“HDB”) flat at Choa Chu Kang Avenue 2 (“the Property”), which the step-mother is seeking a share of in the divorce proceedings between her and the father.

The brothers’ application herein (“the Application”) is for a declaration that they are each entitled to a beneficial share of 33.3% of the value of the Property. In the alternative, they seek an equitable determination of the parties’ shares in the Property. The brothers also pray that in the event of a sale of the Property, the proceeds should be distributed to the parties in proportion to their respective shares in it, after deducting the outstanding HDB loan, the costs and expenses of the sale, and the legal and stamp fees.

Background

The father filed the writ for divorce against the step-mother on 10 November 2014. The interim judgment for the divorce was granted on the step-mother’s counterclaim on 31 March 2016. After the hearing before the Family Court on 24 November 2016, the order on the ancillary matters was made on 29 November 2016. The father was dissatisfied with the decision of the Family Court, and filed an appeal (HCF/DCA 164/2016) (“the Appeal”) on 9 December 2016. Subsequently, before the hearing of the Appeal, the interim judgment was made final on 15 December 2016.

The brothers filed the Application on 30 January 2018. They had previously applied unsuccessfully to intervene in the divorce proceedings in the Family Court (FC/SUM 3263/2017), and to set aside the decision of the Family Court on the ancillary matters (FC/SUM 3152/2017). The Family Court had ruled that the brothers had no beneficial interest in the Property, and that their names were added to the title to the Property to dilute the step-mother’s interest in the same. That decision was made in the absence of any documentary evidence of their financial contributions to the Property: see TZQ v TZR [2017] SGFC 40 (“the GD”) at [6]. These documents have since been admitted with the leave of the High Court on the application of the father (HCF/SUM 144/2017) for the purposes of the Appeal. Also, on 6 March 2018, with the consent of the father and step-mother, an assistant registrar of the Family Justice Courts allowed an application by the brothers to intervene in the Appeal.

The preliminary issue

Both the Application and the Appeal were fixed together for hearing before me. The brothers were represented by the same counsel in both proceedings.

At the hearing on 4 April 2018, a preliminary issue arose as to whether the court should hear the Application at all. The step-mother submitted that the brothers, having been allowed to intervene in the Appeal, would no longer need to pursue the Application. This was because they would be bound by the decision in the Appeal, in which the court could deal with the brothers’ alleged interest in the Property for the purpose of the divorce proceedings. The brothers could not have two cases running at the same time. The brothers’ response was that they would take the same position in the Application and the Appeal. They added that the decision in the Application would delineate and preserve their alleged interest in the Property before the Appeal was decided. The father’s submission was that the brothers’ rights would be determined in the Application, but they would nevertheless be bound by the decision in the Appeal because of their intervention. He also submitted that in my appellate capacity, I could not exercise powers which the Family Court did not have.

I decided that the Application should be allowed to proceed: At the time of the hearing, the High Court had decided UDA v UDB and another [2018] 3 SLR 1433 (“UDA (HC)”), holding that in proceedings under s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“s 112 proceedings”), the court has no power to make direct orders against a third party claiming an interest in an alleged matrimonial asset: see UDA (HC) at [31]. I respectfully agreed with that ruling. The High Court further held that the court has two options where a third party claims an interest in an alleged matrimonial asset. The first is to determine the interests in the asset but to make no order against the third party, either because (i) the court finds that neither party to the marriage has a beneficial interest in the asset, and therefore excludes it from the pool of matrimonial assets or (ii) there are “substantial matrimonial assets to be divided apart from the disputed asset”: see UDA (HC) at [14]–[15]. Option (i) was not available here because it seemed clear from the evidence that the father, at least, had a beneficial interest in the Property, and thus the Property could not be excluded from the pool of matrimonial assets. Option (ii) was also not available. The Family Court had ordered that the division of the matrimonial assets was to be achieved, either in whole or in part, through a distribution of monies in the father’s Central Provident Fund (“CPF”) accounts. However, this was no longer possible as the father had withdrawn most of the monies that were to be distributed and expended them (see [19] below). The only significant asset left for distribution was the Property. The second option noted by the High Court was to stay the s 112 proceedings to allow the property dispute to be determined in a separate civil action. Here, the separate civil action had indeed been commenced by the brothers and, in the circumstances, I came to the view that I should hear it. I therefore proceeded to hear the Application. After the hearing on 4 April 2018, the Court of Appeal delivered its decision in UDA v UDB and another [2018] 1 SLR 1015 (“UDA (CA)”) which broadly affirmed the rulings in UDA (HC). This fortified my view that it was appropriate to hear the Application.

As the step-mother’s share of the Property would depend on what the father’s share of the Property was, I heard the Application before the Appeal, during which I also heard the brothers in their capacity as interveners. As noted above, this was before the decision in UDA (CA) was handed down. In UDA (CA), the Court of Appeal stated the following at [54]:

Given that the third party cannot participate in those [s 112] proceedings, whilst he may ask for leave to intervene in the proceedings, the only purpose of such intervention would be to notify the court of his interest and apply for a stay of the s 112 proceedings pending determination of his separate civil suit. [emphasis added]

The brothers should therefore not have been heard in the Appeal after their application to intervene was granted, notwithstanding that they took the same position in the Appeal as they did in the Application.

The material facts

Although the Application was brought to determine the parties’ respective interests in the Property, that matter was closely related to what had taken place in the marriage between the father and step-mother. Therefore, besides the history of the ownership of the Property, it was necessary to examine some details of that marriage, as well as events that took place before it. Indeed, a number of affidavits of the father and step-mother filed in the divorce proceedings were also referred to in the Application.

The brothers were the only children from an earlier marriage entered into by the father. According to the step-mother, the father was married twice before their marriage but nothing turns on this.¹ The Property was originally purchased by the father and the brothers’ biological mother (“the parents”) on 1 October 1992,² with the 99-year lease starting on 1 July 1993. The Property was transferred by gift to the father on 25 September 1996 in his sole name.³ The parents’ marriage ended in 2003.⁴ The father and the brothers have been living in the Property since its purchase.

The father, who was born in March 1955,⁵ turned 55 in 2010. He is 63 years old this year. The step-mother is 59 years old this year. They knew each other since 1993, when they were still married to their previous spouses. Around that time, in 1993 or 1994, the step-mother, who has three daughters from her first marriage which ended in 1995, moved into the Property with her youngest daughter.⁶ The brothers were then eight and six years old respectively.

The father married the step-mother on 10 July 2003. They have no children from this marriage.

About a year after she married the father, the step-mother sold a property that she had purchased using her share of the sale proceeds of the matrimonial flat from her previous marriage, and received $83,795.13.⁷ Although she lived in the Property until she left in 2012, the step-mother never obtained any legal interest in the Property, and was only an occupier there.

In May 2012, the step-mother left the Property for a trip to India with her daughters. When they came back to Singapore in August that year, they did not return to the Property. Instead, they went to live with the eldest daughter of the step-mother, and have not gone back to live in the Property ever since. The step-mother alleges that the locks to the Property were changed and she was not allowed to return to the Property when she came back from India.⁸ The father and the brothers deny this.⁹ They claim that she did not make any attempt to return; they gave her a set of the keys to the Property, but she refused to return to it. For the purpose of the Application, it is not necessary for me to decide whose version is correct. It is undisputed that the step-mother ceased to live in the Property since August 2012 at the latest.

In September 2012, the step-mother applied for maintenance from the father. A...