Hillfield International Ltd and Others v Chew Lai Yoke Bettina and Another Appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 29 August 2003
• Neutral Citation: [2003] SGCA 35
• Docket Number: Civil Appeals Nos 124 and
• Date: 29 August 2003
• Published date: 17 December 2003
• Year: 2003
• Plaintiff Counsel: Joseph Fok and Morris Yow (David Chong & Co)
• Citation: [2003] SGCA 35
• Defendant Counsel: Tan Chee Meng, Jenny Chang Man Phing and Cho Pei Lin (Harry Elias Partnership)
• Court: Court of Appeal (Singapore)
• Subject Matter: Costs,Civil Procedure,Claims arising from breakdown in marriage between parties,Tort,Whether substantially successful party at trial should nevertheless bear own costs,Factors to be taken into account,Conversion,Construction of deed of separation

Delivered by Judith Prakash J

Introduction

1 The breakdown of the marriage between Michael David Selby (‘Mr Selby’) and Bettina Chew Lai Yoke (‘Ms Chew’) gave rise to two separate actions in the High Court. The divorce proceedings themselves had gone smoothly. The decree nisi made on 15 June 2001 incorporated a consent order providing that, in relation to the issues of custody, maintenance and the division of the matrimonial assets, the parties were to abide by the terms set out in the document executed by them entitled ‘Deed of Separation and Financial Arrangement in Contemplation of Divorce’ and dated 24 May 2001. Annexed to the Deed was a ‘List of items to be removed by the husband’ which enumerated those objects that Mr Selby was entitled to take away from the matrimonial home. That document, referred to as ‘the Annexure’, played an important part in the civil proceedings.

2 The first action, Suit 1200 of 2001, was started by three companies incorporated in the British Virgin Islands, namely Hillfield International Ltd, Silver Falcon Holdings Ltd and Whitham Enterprises Ltd, against Ms Chew. The companies had been set up by Mr Selby for the purpose of holding and managing a substantial portion of the matrimonial assets. At the time of the divorce, he was in possession of all the bearer shares issued by the companies and therefore their sole shareholder. Prior to the divorce, Ms Chew had been the sole director of each of the companies. The deed provided for Ms Chew to resign from those directorships upon the deed being approved by the court and for Mr Selby to indemnify her against any loss, claim or liability arising out of her involvement in the companies. Thus, upon the divorce, Ms Chew was to relinquish any interest that she might have had in the companies.

3 The statement of claim recited that as director, Ms Chew had had possession and control of the respective ‘company kits’ and ‘documents files’ of the three companies. The ‘company kits’ were stated to include the original memorandum and articles of association of each of the companies; their respective official seals; their respective certificates of incorporation and their respective company records. As for the ‘documents files’, these were said to include ‘all banking and financial documents of the respective plaintiffs’ and ‘correspondence files of the respective plaintiffs’. It was alleged that Ms Chew had refused to return the ‘company kits’ and ‘documents files’ to the companies and the companies therefore claimed the return of these items.

4 The second action, Suit 1349 of 2001, was instituted by Mr Selby against Ms Chew. He claimed the return of a number of items which he said he was entitled to remove from the matrimonial home by virtue of the Deed but which Ms Chew had refused to deliver up to him. In addition, Mr Selby claimed for an account of all wine bottles retained by Ms Chew and an order for delivery up of any wine found to be in excess of her share of the wine collection.

5 The suits were consolidated on 22 April 2002 and the consolidated trial was heard by Lee Seiu Kin JC. The companies were wholly successful in their action and Mr Selby succeeded in most of his claims. No one, however, was wholly satisfied.

6 Two appeals were filed. In Civil Appeal no. 124 of 2002, the appellants are the three companies and Mr Selby. The companies are appealing against a direction in respect of the ‘company kits’ made by the trial judge subsequent to his judgment. Mr Selby’s appeal is against the holding that he was not entitled to certain bronze items claimed by him in the action. The companies and Mr Selby are also appealing against the trial judge’s order in respect of the costs of the consolidated actions.

7 Ms Chew is the appellant in Civil Appeal no. 125 of 2002. She is appealing against the holdings of the trial judge in respect of:

(1) all invoices, documents and photographs taken of the art objects and sculptures;

(2) the wine; and

(3) the ‘company kits’.

The credibility of the parties

8 Whilst the proceedings before the High Court were not matrimonial proceedings in the true sense, as they arose out of the breakdown of a matrimonial relationship they were burdened with all the emotional difficulties that commonly accompany such break-ups. Each party thought poorly of the other and, as the judge observed, the evidence of the protagonists was at polar extremes in important areas. Further, they were often unable to adduce contemporaneous documents or oral evidence from third parties in support of their differing stands. On matters like the Art Documents, the judge had to make a decision based only on the oral testimony of the parties themselves. The credibility of each party was therefore a very material matter. The judge accordingly made specific findings on credibility in his judgment. Ms Chew has contested those findings and it is necessary for us to deal with them before going on to the more substantive matters appealed on.

9 Having evaluated the consistency of the evidence given by Mr Selby and Ms Chew and having observed their demeanour in the witness box, the judge came to the conclusion that neither of them had been completely frank and truthful in their evidence. Having said that, however, he found himself ‘driven to conclude’ that Ms Chew’s evidence ‘had been most unreliable’. He also found that there were ‘a sufficient number of clear contradictions in her evidence as would lead [him] to the conclusion that it is not safe to believe her evidence on substantial issues of fact’. He then went on to state:

11. Nevertheless, and particularly in view of my finding that Selby has also been prone to exaggeration in some areas, it is not sufficient for me to simply say, as his counsel urges me to do, that therefore he has been telling the truth in all the matters and she has not. It is necessary for the Plaintiffs to overcome the burden of proof that rests on them as claimants. Where the evidence hinges on the words of the parties, I have preferred Selby’s to Chew’s in view of the finding that I have made in respect of their relative credibility However in respect of any item claimed it is possible for both parties to be correct in that neither has that item and it is simply lost due to the act of a third party. If there is evidence that the loss could be due to this possibility, it would be incumbent upon Selby to produce evidence to discount it.

10 On appeal, counsel for Ms Chew contended that the judge was plainly wrong in finding Mr Selby to be more credible than she was. He highlighted a number of inconsistencies in the evidence given by Mr Selby with respect to items claimed by him. It was alleged that Mr Selby was a contradictory, dishonest and unreliable witness and that his untruthfulness far outweighed any inconsistencies on the part of Ms Chew.

11 It is well known that an appellate court does not lightly disturb the findings that a trial judge has made based on the witnesses’ credibility or for that matter, the findings on credibility themselves. In this case, it appears to us that there is no basis at all upon which we can overturn the findings made below on the relative credibility of the parties. They were findings made not only on the judge’s observation of the behaviour of the witnesses but also on the basis of the internal consistency of the evidence given. Further, the judge did not totally disregard the inconsistencies in Mr Selby’s testimony in his evaluation of the evidence of both the protagonists. He was well aware that Mr Selby had not been entirely frank and that he had made some exaggerated claims. Nevertheless, the judge came to the conclusion that Mr Selby was more credible than Ms Chew. That was a conclusion he was entitled to draw.

Mr Selby’s appeal against the dismissal of his claim for the Bronzes

12 The bronzes in question consisted of two items being:

(1) a Han Dynasty bronze horse and cart; and

(2) a set of 5 pre-Han Dynasty bronze bells.

Mr Selby’s claim for the bronzes was based on the tort of conversion. It was his case that he had purchased both these items and they were his own personal property. Accordingly, he was entitled to them as against Ms Chew, who had admittedly retained them.

13 The judge dealt with the bronzes at ¶¶ 22 to 24 of his judgment. Although he found that Ms Chew’s version of events relating to the acquisition of the bronzes (she averred that they were part of the assets of an oriental art business that she ran) was ‘rather inconsistent’ and that she had demonstrated a ‘parsimonious attitude towards revelation of the true picture’, he rejected Mr Selby’s claim on the basis that these items had not been named in the Annexure which he considered exhaustive of the items which Mr Selby was entitled to. The judge held therefore that ‘it was clearly within the contemplation of the agreement embodied in the Deed that the Bronzes would not go to him’. This finding was also based on ¶ 17(J) of the Deed.

14 Clause 17 of the Deed appears in a section entitled ‘Matrimonial Assets’. By the first three lines, the parties acknowledged that they were aware of each other’s financial position and that they had agreed to ‘the following full and final financial settlement in contemplation of divorce’. That last phrase was followed by ten sub-paragraphs dealing with various matrimonial assets and stating which of the parties was to keep those assets. Sub-paragraph (J), the last of these, read:

The Husband agrees to only remove all his personal belongings, such art collection and moveable property as described in the annexure hereto by 31 July 2001.

Clause 18 re-emphasised the intention of cl 17 by providing that the division of assets stated in ¶¶ 17(A) to (J) was to be in full and final settlement of the parties’ financial claims and Ms Chew’s claim for maintenance under the Women’s Charter (Cap 353).

15 Upon appeal, it was contended on behalf of Mr Selby that the evidence...