Chiang Shirley v Chiang Dong Pheng

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Chao Hick Tin JA,Chan Sek Keong SJ
• Judgment Date: 05 January 2017
• Neutral Citation: [2017] SGCA 1
• Published date: 11 January 2017
• Date: 05 January 2017
• Year: 2017
• Hearing Date: 30 November 2016
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: Ernest Balasubramaniam and Bernadette Chen (Unilegal LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 1
• Docket Number: Civil Appeal No 35 of 2015

Sundaresh Menon CJ (delivering the grounds of decision of the court):

Chiang Shirley (“the Appellant”) and Chiang Dong Pheng (“the Respondent”) are siblings. Since their late father passed away in 2009, the parties have been embroiled in a dispute regarding the administration of his estate (“the Estate”). The present appeal arose out of a consent judgment that was entered in connection with the distribution of the Estate. Specifically, the Appellant was dissatisfied with the fact that the Judicial Commissioner who heard the matter (“the Judge”) purported to exercise an “administrative” power to vary the deadline for the Respondent to comply with one of the payment obligations incumbent upon him under the terms of the consent judgment.

It is well-established that the court does not readily interfere with a consent judgment which the parties have agreed to. The issue that arose in this appeal was whether the Judge had the power to vary the deadline for complying with a payment obligation that was contained in the consent judgment on the basis, among other things, that the time for the performance of that obligation was not of the essence. After hearing the parties, we allowed the appeal. We found that the Judge had erred in varying the deadline for payment which all parties had agreed to. We granted the Appellant interest at a rate of 5.33% per annum on the sum due to her from 3 January 2015, being the date on which payment ought to have been made, until the actual date of payment. Given that the appeal raised an important point of law regarding the court’s powers in respect of consent judgments, we have decided to set out the grounds of our decision.

Background facts

Civil Appeal No 35 of 2015 (“CA 35/2015”) arose from Suit No 820 of 2012 (“S 820/2012”), which was commenced by the executrix of the Estate to seek orders in relation to the distribution of the Estate. The five beneficiaries, namely, the Appellant, the Respondent, their sister Currie Chiang (“the third defendant”), the parties’ late mother (“the fourth defendant”), and the late father’s mistress (“the fifth defendant”), were defendants to the suit.

S 820/2012 was heard in two tranches. The first tranche was heard before the Judge from 7 to 16 January 2014. On 16 January 2014, the parties reached a settlement on the issues relating to the fifth defendant’s entitlement under the late father’s will (“the Will”) and entered into the first consent order (“the First Consent Order”). The fifth defendant’s interest was premised on clause 5 of the Will, under which the late father bequeathed the property situated at 33 Merryn Road to her. Under the First Consent Order, the parties agreed that clause 5 of the Will was valid and that the property situated at 33 Merryn Road would be transferred to the fifth defendant. Importantly, the parties agreed at paragraph 7 of the First Consent Order that “[t]here be no order as to costs with respect to issue of Clause 5 of the Will”. A significant part of the litigation in the first tranche related to clause 5 of the Will, and the Appellant, the Respondent and the third and fourth defendants had all taken the common position that clause 5 of the Will was invalid.

On 1 and 2 July 2014, the second tranche proceeded for hearing without the involvement of the fifth defendant. On 2 July 2014, the remaining parties (namely, the Appellant, the Respondent, the third and the fourth defendants) reached a settlement on all the outstanding matters and entered into a consent judgment (“the Consent Judgment”). The parties agreed, among other things, that:The Respondent, as the surviving account holder of RHB Bank (L) Limited Account Number [redacted], was to divide the remainder balance of US$659,449.29 in the said account between the Appellant, the Respondent and the third defendant equally within six months of the Consent Judgment (paragraph 3 (“Para 3”)).Costs were to be reserved to the Judge (paragraph 9).Parties were at liberty to apply (paragraph 10).

It is clear that under Para 3, the Respondent was obliged to pay the Appellant a third of the balance of US$659,449.29 within six months of 2 July 2014. The parties all agreed that this meant that payment was to be made by the Respondent on or before 3 January 2015. That date came and went, but the Respondent made no such payment. On 8 January 2015, the Appellant wrote to the Respondent’s counsel demanding that the Respondent comply with Para 3, and threatening legal proceedings if the sum of US$219,816.43 (being a third of the total sum of US$659,449.29) was not paid to her by 9 January 2015 at 5pm. After receiving the Appellant’s letter, the Respondent’s counsel wrote to the court on the same day urgently asking for “further directions and/or consequential orders pursuant to prayer 10 of [the Consent Judgment] that distribution under [Para 3] be effected after the taxation and payment of costs ordered thereunder by the [Appellant] to the Plaintiff and 2nd to 4th Defendants”.

In a series of letters dated 9, 12 and 13 January 2015 sent in reply to the Respondent’s letter, the Judge confirmed that “distribution under [Para 3] of [the Consent Judgment] be effected after taxation and payment of costs ordered thereunder by [the Appellant]”. On 10 February 2015, the Judge sent a final letter to the parties confirming the decision he communicated earlier, and stating that he would not entertain any further correspondence. Unhappy with the Judge’s decision, the Appellant filed CA 35/2015 on 17 February 2015 against the Judge’s decision “on 10 February 2015 in relation to the variation of [the Consent Judgment]”.

Separately, by the time CA 35/2015 came before us, costs between the parties had been decided and taxed by the Judge. We briefly set out the events leading to the eventual taxation of costs:On 21 July 2014, the Judge heard the parties on costs pursuant to paragraph 9 of the Consent Judgment (see [5(b)] above). He ordered, among other things, that the Appellant was to pay 70% of the Respondent’s and the third and fourth defendants’ costs on a standard basis.On 18 August 2015, the Judge clarified that his 21 July 2014 costs order included the costs the Respondent and the third and fourth defendants incurred in relation to the litigation over clause 5 of the Will. He further stated that paragraph 7 of the First Consent Order (see [4] above) did not extend to costs incurred by parties other than the fifth...