BWU and another v BWW and another matter

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 16 May 2019
• Neutral Citation: [2019] SGHC 128
• Court: High Court (Singapore)
• Docket Number: HC/Suit No 875 of 2018 and HCF/Divorce (Transferred) No 1027 of 2016
• Published date: 22 May 2019
• Year: 2019
• Hearing Date: 21 January 2019,30 January 2019,15 April 2019
• Defendant Counsel: Ng Jeanny (M/s Jeanny Ng),Jeffrey Lau See-Jin (Lau & Company)
• Subject Matter: Land,Housing and Development Act,Constructive trust,Family Law,Ancillary Matters,Division of matrimonial assets,Maintenance of wife
• Citation: [2019] SGHC 128

Choo Han Teck J:

There are two proceedings before me. Divorce No 1027 of 2016 concerns the ancillary matters in divorce proceedings between the plaintiff (“Wife”) and the defendant (“Husband”). Separately, in Suit No 875 of 2018 (“Suit 875”), the plaintiffs are the Husband and his mother (“the Mother”) and the defendant is the Wife. Suit 875 was brought by the Husband to determine his Mother’s beneficial interest in the Ang Mo Kio HDB flat (“AMK Flat”), which is a matrimonial asset in the joint names of the Husband and the Wife (collectively referred to as “the Parties”).

On 5 June 1991, the Husband and the Mother applied to the Housing and Development Board (“HDB”) to approve the purchase of the AMK Flat in their joint names (“the Application”). At the time of the Application, the Mother and her husband (then a bankrupt but has since died) were the joint owners of a HDB flat at Owen Road (“Owen Road Flat”). The Application was approved by HDB on 4 January 1992 with two conditions: that the Owen Road Flat be disposed within six months of taking possession of the AMK Flat (“the Disposal Condition”); and to comply with the Official Assignee’s condition that half of the net proceeds of the sale of the AMK Flat is to be remitted to the Official Assignee for the benefit of the Mother’s late husband’s creditors.

The AMK Flat has not been sold, so only the Disposal Condition is relevant for present purposes.

The AMK Flat was purchased for $178,000 in the Husband’s sole name on 1 June 1993 with the lease commencing from 1 December 1994. On 6 December 1994, the Owen Road Flat was transferred to Agnes and David, the Mother’s daughter and son (Husband’s brother), thus complying with the Disposal Condition. In February 1997, Agnes transferred her share of the Owen Road Flat by way of a gift to the Mother, who again became the joint tenant of the Owen Road Flat. In September 1999, David also transferred his share to the Mother by way of a gift, who then became the sole owner of the Owen Road Flat until December 2017, when she transferred the Owen Road Flat to Agnes and her husband.

The Husband and Wife were married on 19 July 1994 and on 14 February 1997, the AMK Flat was transferred to a joint tenancy in their names in celebration of Valentine’s Day and the third anniversary of their marriage, or so the Husband claims. Their marriage was a childless one of approximately 23 years. The Wife is 49 years old this year, and works as an assistant teacher earning a gross salary of $1,400 per month. The Husband is 52 years old this year, and works as a site supervisor earning a nett salary of $3,400 per month. The Wife filed a writ of divorce on 4 March 2016 and interim judgment was granted on 1 March 2017 on the grounds that both the Husband and Wife had behaved in a manner that they cannot reasonably be expected to live with each other. Thereafter proceedings in the Family Court stalled because the Husband claims that the Mother has a share in the AMK Flat. After a long delay, the Husband and Mother filed a writ of summons on 5 September 2018 seeking a declaration that the Mother owns a 50% beneficial interest in the AMK Flat. On hearing from counsel that the Wife is diagnosed with cancer, I directed Suit 875 and the outstanding ancillary matters to be heard before me at the same time to expedite the resolution of the matters that have been outstanding for too long. I will first deal with this issue, before the contested ancillary matters relating to the division of matrimonial assets and the maintenance for the Wife.

Sections 47(1)(a) and 51(10) of the Housing and Development Act (Cap 129, 2004 Rev Ed) (“HDA”) provides as follows: 47(1) No person shall be entitled to purchase any flat, house or other living accommodation sold subject to the provisions of this Part if such person, his spouse or any authorised occupier – (a) is the owner of any other flat, house, building or land or has an estate or interest therein;

…

51(10) No person shall become entitled to any protected property (or any interest in such property) under any resulting trust or constructive trust whensoever created or arising.

Section 47(1)(a) of the HDA prohibits a person from owning another HDB flat when he already has an existing legal or beneficial interest in a HDB flat. Section 51(10) of the HDA complements s 47(1) of the HDA by preventing ineligible persons from acquiring an interest in HDB flats via a resulting or constructive trust implied by law (Tan Chui Lian v Neo Liew Eng [2007] 1 SLR(R) 265 at [10]). It is this effect of conferring an interest in the HDB flat to an ineligible person that is disallowed, and not the underlying resulting or constructive trust (Low Heng Leong Andy v Low Kiang Beng Lawrence (administrator of the estate of Tan Ah Kng, deceased) [2013] 3 SLR 710 at [21]–[22]).

Mr Jeffrey Lau, counsel for the Husband and the Mother, submits that there was an oral agreement between the Husband and the Mother that each shall own a 50% beneficial interest in the AMK Flat regardless of their respective contributions. The crux of Mr Lau’s submission is that the Mother became a person eligible to own the AMK Flat when she fulfilled the Disposal Condition by selling the Owen Road Flat to Agnes and David on 6 December 1994. As a result, Mr Lau argues that s 51(10) of the HDA did not operate to prevent the Mother from asserting an entitlement in the AMK Flat by way of a common intention constructive trust. Further, the Mother claimed in her affidavit dated 24 November 2017 that she “agreed that [the Wife]’s name be added in as joint tenant, but limited to her having her share with [the Husband]’s 50% equitable interests in the [AMK Flat]”.

Ms Jeanny Ng, Counsel for the Wife, submits that s 51(10) of the HDA prohibits the Mother from asserting any entitlement in the AMK Flat via a constructive trust as she had flouted the Disposal Condition when she became the joint owner of the Owen Road Flat once again in February 1997. Further, Ms Ng submits that even though the AMK Flat was eventually transferred to Agnes and her husband in December 2017, the Mother was still in breach of the Disposal Condition between February 1997 and December 2017. In response, the Husband and the Mother assert in their joint affidavit dated 31 March 2019 that:

[The transfer] was allowed by Singapore Land Authority and Housing Development Board. Could this then be flouting the HDB’s requirements, if the rightful authorities allow or permit registration?

Between 6 December 1994 and February 1997, the Mother was not a registered owner but an occupier of the AMK Flat. The evidence did not suggest that the relevant authorities knew, or were informed about the Mother’s alleged beneficial interest in the AMK Flat. Had the authorities been so informed, it was likely that they would not have allowed Agnes to transfer her share of the Owen Road Flat to the Mother in February 1997 pursuant to s 47(1)(a) of the HDA.

In Cheong Yoke Kuen and others v Cheong Kwok Kiong [1999] 1 SLR(R) 1126, referred to by Ms Ng, the respondent and his mother there were the joint owners of a HDB flat (“the HDB Flat”) which was paid entirely by the respondent. The respondent subsequently transferred his legal interest in the HDB Flat to his mother after he bought another HDB flat in Serangoon (“the Serangoon Flat”) with his family. Upon his mother’s death, the respondent claimed that he became a beneficial owner of the HDB Flat by way of a resulting trust. The Court of Appeal held that when the respondent acquired the Serangoon Flat, he was no longer eligible to hold any interest in the HDB Flat. L P Thean JA held at [23]:

… It is apparent to us that in order to comply with s 47 the respondent transferred his entire interest in the [HDB Flat] to his mother. But having acquired the [Serangoon Flat] he is not eligible to hold any interest in the old [HDB Flat], and therefore the resulting trust arising in his favour would be against the policy consideration contended by counsel.

Similarly, even if I were to accept that the Husband here held a 50% beneficial interest in the AMK Flat on a constructive trust for the Mother, the Mother was no longer eligible to hold any beneficial interest in the AMK Flat when she became a joint owner of the Owen Road Flat in February 1997. Consequently, s 51(10) prohibits the Mother, an ineligible person, from being entitled to any interest in the AMK Flat by way of a constructive trust. For the avoidance of doubt, the Mother’s eventual disposition of the Owen Road...