Ho Kiang Fah v Toh Buan

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 10 March 2009
• Neutral Citation: [2009] SGHC 60
• Docket Number: Suit No 45 of 2008 (Registrar's Appeal No 282 of 2008)
• Date: 10 March 2009
• Year: 2009
• Published date: 24 March 2009
• Plaintiff Counsel: Appellant acting in person
• Citation: [2009] SGHC 60
• Defendant Counsel: Yap Teong Liang (T L Yap & Associates)
• Court: High Court (Singapore)
• Subject Matter: Whether Family Court more appropriate forum to litigate issues relating to division of matrimonial asset,Striking out,Family court,Whether jurisdiction of High Court properly invoked where proceedings relating to subject matrimonial asset already pending in Family Court,Ancillary powers of court,Civil Procedure,Family Law,Whether proceedings an abuse of process of court,Whether fact that ancillary proceedings pending in Family Court relevant,Whether s 112 Women's Charter (Cap 353, 1997 Rev Ed) able to apply selectively to different matrimonial assets

10 March 2009

Belinda Ang Saw Ean J:

1 The plaintiff, Ho Kiang Fah, and the defendant, Toh Buan, are in the midst of matrimonial proceedings. For convenience, the plaintiff is referred to hereinafter as “H”, and the defendant, as “W”. The Writ for Divorce was filed on 31 August 2006. A decree nisi (now known as Interim Judgment) was granted on 29 January 2008. The next stage of the matrimonial proceedings deals with ancillary matters such as the division of the matrimonial assets of the parties, maintenance and custody of the children of the marriage (“the ancillary proceedings”). In that connection, both parties have filed their respective affidavits of assets and means. In September 2008, the parties were in the process of discovery which would have to be completed before the ancillary proceedings are listed for hearing. It was not disputed that the discovery process would include the subject property. In her Statement of Claim for Divorce, W sought, along with the declaration for entitlement to the matrimonial assets, custody of the children and maintenance from H.

2 On 23 January 2008, H filed the present proceedings in the High Court against W, the short title of which is Suit No. 45 of 2008 (“Suit 45”). The Writ of Summons was served on W on 28 January 2008, the day before the decree nisi was obtained. On 3 April 2008, H filed an O14 application by way of Summons No. 1535 of 2008(“the O14 Summons”). The specific orders sought by H in Suit 45, and in the O14 Summons, related to a property known as Parc Oasis at 51 Jurong East Avenue 1 #18-03 Singapore 609782 (“the property”). In brief, the orders H sought were as follows:

(a) A declaration that H and W owned the property in equal shares or in such proportion as the court finds just;

(b) A declaration that H’s liability under the housing loan is only 22.8% of the loan amount of $500,000;

(c) An order that W pays to H the sum of $169,122.53 being excess payment by H towards the housing loan;

(d) Alternatively, an account by W of all sums paid by H towards repayment of the DBS loan in excess of H’s liability and an order for payment by W to H of all sums found to be due from W to H on the taking of such an account;

(e) An order that the property or W’s share in the property be sold in the open market;

(f) If the whole of the property is sold, an order that the sale proceeds are to be divided equally between the parties; and

(g) An order that W fully discharges the outstanding housing loan prior to completion of the sale of the property.

3 On 2 July 2008, Assistant Registrar (“AR”) Ms Chung Yoon Joo granted W unconditional leave to defend H’s claims. H’s other application to strike out W’s counterclaim to recover her share of the rental income from the property was dismissed. H appealed against that part of the order of AR Chung granting unconditional leave to defend his claim. The appeal was listed for hearing before me on 4 August 2008. H is a qualified lawyer. He acted in person as he did not instruct his counsel, Mr Leong Why Kong, to argue the appeal although Mr Leong was still his counsel for the matrimonial proceedings. After hearing the parties, I adjourned the appeal for the parties to consider further the question whether the jurisdiction of the High Court was properly invoked in the light of ongoing matrimonial proceedings in the Family Court of the Subordinate Courts. H’s response to the court’s question at the adjourned hearings on 8 and 18 September 2008, in brief, was the same – the proceedings were properly commenced; it was permissible to take the property and the associated disputes out of the Family Court since the jurisdiction of the High Court and the Family Court overlapped. Counsel for W, Mr Yap Teong Liang’s position was the opposite. At the end of the adjourned hearing on 18 September 2008, I ruled that this was a case where an inappropriate attempt was made to use the proceedings in the High Court for a collateral purpose. The proceedings constituted a plain abuse of the court’s process, and on the court’s motion and in exercise of the court’s inherent powers, the action and counterclaim were ordered to be struck out. I now publish the reasons for my decision.

4 By way of background facts, on or around 21 June 1993, the property was acquired by H and one Chong Thian Choy (“Chong”) as tenants-in-common. A loan was taken out with Hong Leong Finance Ltd by H and Chong for this purpose (“the Hong Leong loan”). Not too long thereafter, on 10 November 1994, Chong sold his share in the property to W at the price of $325,000. Upon completion, the property was registered in the names of H and W as joint tenants.

5 To finance this purchase from Chong, both H and W obtained a loan of $500,000 (“the DBS loan”) from the then Credit POSB Pte Ltd, which has since been taken over by DBS Bank Ltd (“DBS Bank”). The DBS loan was used to finance the purchase of Chong’s share in the property as well as to redeem the outstanding Hong Leong loan of $305,000 which was in the name of H and Chong.

6 H’s main contentions in these proceedings were: (a) the parties had agreed that each was to have an equal share in the property; (b) his share of liability for the DBS loan was 22.8% of the loan amount of $500,000; and (c) he had overpaid his share of the DBS loan and sought repayment of $169,122.53 from W. His stance was that the disputes must be resolved applying, inter alia, the principles of property and contract law.

7 W rejected H’s assertions. She argued that H had no basis to allocate to W the responsibility for the full payment of $305,000 to redeem the Hong Leong loan. Separately, the alleged sum of $161,785.05 attributed “to the parties’ personal use” and towards expenses for the property was not supported by evidence. No evidence was produced as to which portion of the $161,785.05 was used for personal expenses and which portion was for expenses pertaining to the property.^{[note: 1]} In retaliation, W counterclaimed against H to recover her share of the rental income H had collected since the time the property was rented out in 1995.

8 The hearing before AR Chung was focused on the triable issues of fact and law to resist the application for summary judgment. That is not to say that Mr Yap did not submit before AR Chung that H’s claims related to a property acquired during the marriage, and as it was a matrimonial asset, the disputes should be dealt with in the Family Court. Mr Yap’s point was that the property and three other matrimonial assets were subject to division in a just and equitable manner under s 112 of the Women’s Charter (Cap. 353, 1997 Rev Ed), and as such, the parties’ respective direct and indirect contributions towards the property are important. Mr Yap filed, on behalf of W, her Defence and Counterclaim on 19 February 2008. It was pleaded in the Defence that the parties’ respective share in the property and the application for the sale or transfer of the property were part of the ancillary matters to be determined in the ancillary proceedings.^{[note: 2]} In his skeletal submissions dated 4 August 2008, Mr Yap repeated and questioned the appropriateness of the present proceedings. Plainly, taking into account the position repeatedly stated by Mr Yap, there was no basis for H’s criticism that the court should not interfere with H’s preference to seek declaratory orders from the High Court even though there was another court available to pursue the same relief.^{[note: 3]} Above all, it must be remembered that the court has inherent jurisdiction to prevent an abuse of process (see Lai Shit Har & another v Lau Yu Man [2008] 4 SLR 348 at [22]). It follows that whenever there is an attempt to abuse the court’s process the court can and must, even on its own motion, act to protect and control the court’s process as was the case here. In the words of Punch Coomaraswamy J in Heng Joo See v Ho Pol Ling [1993] 3 SLR 850 at 855, a court cannot remain idle when abuse of process takes place in its face.

9 Coming back to the arguments canvassed at the appeal, H said that Suit 45 was brought to dissolve the parties’ investment and resolve the disputes between the parties in relation to the investment of a property (see [6] above). He cited Chong Li Yoon v Soo Yook Thong [1993] SLR 181 to support his assertion that the action was properly brought in the High Court as the claims were primarily matters in the law of contract and quasi-contract and not ancillary matters to be determined in the ancillary proceedings. As such, the claimant had to commence a separate civil action and not invoke the jurisdiction of the court in matrimonial proceedings. Besides, proceeding by a writ action gave H access to the O14 procedure to have the dispute determined summarily. H relied upon Temple v Temple [1976] 1 WLR 701 in support of his proposition. Since that case held that it was possible to sue to enforce a maintenance agreement, by the same token and analogously, H claimed that he too...