Chan Fook Kee v Chan Siew Fong

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 29 May 2001
• Neutral Citation: [2001] SGHC 114
• Docket Number: Divorce Petition No 488 of 1999
• Date: 29 May 2001
• Year: 2001
• Published date: 05 April 2004
• Plaintiff Counsel: Amarjit Kour d/o Balwant Singh (Peter Low Tang & Belinda Ang)
• Citation: [2001] SGHC 114
• Defendant Counsel: Low Wee Jee (Thomas Tham & Partners)
• Court: High Court (Singapore)
• Subject Matter: O 55D r 11(1) Rules of Court,Substantial direct and indirect contributions from wife,Whether wife should be awarded entire flat,District judge ordering division of matrimonial assets,Whether special grounds for admitting fresh evidence exist,Some contributions from husband,Adducing fresh evidence,Wife appealing,Division,Family Law,Matrimonial assets,Wife applying to admit fresh evidence to prove payment of instalments,Civil Procedure,Appeals,Husband resisting application,ss 112(2), 114(1) Women's Charter (Cap 353, 1997 Ed)

[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.]

Lai Kew Chai J:

Introduction

1 This is an appeal concerning the division of matrimonial assets and maintenance, which were ordered after the divorce of the appellant (‘wife’, who is 54 years old) and the respondent (‘husband’, who is 60 years of age). The matrimonial property is known as No 30 Ah Hood Road, #12-02 Nadia Mansion, Singapore (“the flat”). It has an area of 212 m² and usefully it had seven balconies which helped in the accommodation of student lodgers. At all material times it was accepted by all concerned that it was worth about $960,000. The district judge ordered that the flat be sold in the open market and the proceeds of sale after discharging the mortgage loan and related expenses was to be in the proportion of 35% to the husband and 65% to the wife. It was further ordered that any refund which the husband might be required to make to the Central Provident Fund Board shall be made by him out of his share of the net proceeds of sale of the flat. As to the maintenance, the district judge ordered the husband to pay her a lump sum of $40,000 and that it shall be deducted by the wife out of his share of the net proceeds of sale. No order as to costs was made in respect of the proceedings below.

2 To give a perspective of the sums involved, I would set out in broad terms how the division would have panned out in monetary terms. During the appeal before me, I was told that the mortgage loan and the related expenses were estimated to be $100,000. The wife would have received about $559,000 and the husband $301,000. Out of that sum he would have to pay her the lump sum maintenance of $40,000 and return to the CPF Board a small sum but retaining the bulk of $164,000 (inclusive of interest deemed as earned) since he is past the CPF withdrawal age of 55.

Appeal and additional evidence

3 The wife appealed against the orders for division of the flat and the maintenance. When the appeal first came on for hearing before me I was told by counsel for the wife, Steven Lam, that he had studied the papers and concluded that the records showing the sources for the payments had to be collated and adduced before the court to show that the wife in truth and in fact had made direct contributions and that the husband, rather belatedly and in circumstances of sheer necessity, contributed to the payment of the flat out of his CPF account. Those crucial evidence was not led before the district judge. The district judge had found that the evidence regarding the direct contributions were “confusing and convoluted” but she was of the firm view, which I entirely shared as it was amply supported by the overwhelming evidence, that the wife had made substantial indirect contributions within the relevant paragraphs of ss 112(2) and 114(1) of the Women’s Charter (Cap 353, 1997 Ed) (“the Charter”). The district judge found on the incomplete evidence before her that each spouse contributed “slightly more than $100,000, towards the purchase price”. The judge was in that finding referring to the initial progress payments. In relation to the subsequent payments for the flat, the district judge found that the husband paid $123,970.91 through his CPF account and that the wife contributed the sum of $92,258.94. In percentage terms, the husband on the incomplete evidence contributed 58% and the wife 42% towards the purchase of the flat.

4 Why did the district judge award the wife 65% of the net proceeds of sale of the flat in view of her lesser direct financial contributions? The reason is this. Having considered the compelling evidence of the wife’s indirect contributions under the aforesaid statutory paragraphs of ss 112(2) and 114(1) of the Charter, she concluded that it was just and equitable to award the wife another 20% “for her indirect contributions”. I will set out the evidence with sufficient particularity and my views on the respective conduct, roles and contributions of the spouses later in these grounds of decision.

5 I return to the wife’s application to admit the additional evidence, which was heard on 27 October 2000. The husband strongly resisted the admission of the additional evidence. The evidence was available and no reason was offered why the evidence, if they were important, were not adduced.

6 The appeal is governed by O 55D r 3(1) which stipulates that such an appeal is by way of a rehearing. In relation to the admission of further evidence on questions of fact, the High Court under O 55D r 11(1) has power to do so by, among other means, affidavit evidence but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, “no such further evidence (other than evidence as to matters which have occurred after the date of trial or hearing) shall be admitted except on special grounds”.

7 Counsel for the wife referred me to para 50.35 of Rayden and Jackson on Divorce and Family Matters and the case of Hughes v Singh (1989) Times, 21 April in which the English Court of Appeal decided in April 1989 that a court should admit fresh evidence when to refuse it would affront common sense or a judge’s sense of justice. In my view, the tests are quite settled. Yong Pung How CJ, in delivering the judgment of the Court of Appeal in Nikko Merchant Bank (Singapore) v Syamsul Bachri (1991) CA 17/89 (unreported), stated that “(to) justify reception of fresh evidence …, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”.

8 I go to the substance of the matter. I examined the 14 banking documents exhibited in the wife’s affidavit affirmed on 25 October 2000. They proved that the husband did not pay any part of the initial deposit of $200,217.60. In 1984 they agreed to purchase the flat for $500,544, having exercised the option to purchase on 20 March 1984. The flat was still under development. It was completed in July of the following year. The first four initial deposits were of $50,054.40 each. The couple had in fact agreed to pay for them in equal shares. But the documentary evidence, which she sought to adduce, proved that he did not carry out his part of the bargain. She paid the initial “booking fee” out of her UOF SGD Fixed Deposit Account No 606-405-729-1. The balance of $54.40 was withdrawn from her DBS savings account. In April 1984 the second instalment became payable. She again lifted another UOF fixed deposit of $50,000 and paid the balance of $54.40 from her DBS savings account. When the third and fourth instalments fell due in June 1984, the husband was unable to pay. The wife used her UOB Fixed Deposit No 51128 to pay for the third instalment. In his letter to United Overseas Bank of 6 June 1984 the husband admitted just as much. As for the payment of the fourth instalment, the husband’s letter confirmed that he was strapped for cash in his business in Indonesia and again the wife used her UOB fixed deposit under receipt No 51128 to pay for it.

9 When considering the additional evidence, I read the previous depositions of the husband as to who had paid for the four initial instalments. In para 18 of his first affidavit, he claimed that the wife “never worked” and never contributed to the purchase price. Her name “was only inserted as a co-lessee”. He claimed he paid by his cash and by a loan from Overseas Finance Ltd. The truth was that they obtained a loan against a mortgage of the flat of $500,000 out of which $300,000 was used to pay for the balance of the flat to the vendors. The other sum of $200,000 was used by him for his garment business in...