Julia Amanda Renata Amesbury (m.w.) v Singleton Marc Alexander and Another

• Jurisdiction: Singapore
• Judge: Lim Hui Min
• Judgment Date: 14 May 2004
• Neutral Citation: [2004] SGDC 120
• Court: District Court (Singapore)
• Published date: 26 May 2004
• Year: 2004
• Plaintiff Counsel: Michelle Elias (Harry Elias Partnership)
• Defendant Counsel: Poonam Mirchandani (Mirchandani and Partners)
• Subject Matter: Family Law,Evidence and procedure,Application for striking out of affidavit on the basis that it contained hearsay and opinion evidence
• Citation: [2004] SGDC 120

14 May 2004 Judgment reserved.

District Judge Lim Hui Min:

1 The respondent husband in this case had taken out two applications, summons-in-chambers no. 650504 of 2004 (“the first SIC”) filed on 16 March 2004, and summons-in-chambers no. 650639 of 2004 (“the second SIC”) filed on 6 April 2004. The first SIC prayed for, inter alia, the striking out of certain paragraphs as well as an exhibit in the petitioner wife’s affidavit filed on 17 February 2004, as well as for leave to reply to certain paragraphs of the said affidavit. The second SIC prayed for, inter alia, the striking out of paragraph 5 of an affidavit by one Oscar Veronese (the wife’s witness) (“Oscar”) filed on 19 March 2004 (“Oscar’s affidavit”). The first SIC came up for hearing before me on 7 April 2004. I dealt with all the prayers of that SIC, save for those prayers for the striking out of a certain paragraph and the exhibit in the wife’s affidavit filed on 17 February 2004 (which paragraph and exhibit related to Oscar’s evidence). I adjourned these prayers to be heard together with the second SIC, on 21 April 2004, as they concerned the same subject matter as the second SIC. I have given an order in terms of the striking out prayers relating to Oscar’s evidence in the first SIC. In respect of the second SIC, I have ordered the whole of Oscar’s affidavit to be struck out. These orders are without prejudice to any application the wife may make for leave to file a fresh affidavit by Oscar. I set out my reasons for my decision below.

Factual matrix

2 I set out the key events in the parties’ marriage and the divorce proceedings, insofar as they are relevant to the two SIC applications, in the table below.

S/No.	Event	Date
1	Husband and wife co-habited	1994-04.09.99 (see paragraph 44 of wife’s affidavit filed on 30 September 2003 (“the wife’s 1st affidavit”)
2	Parties married	04.09.99
3	SCB joint account (in the names of husband and wife) opened	After October 1999 (see paragraph 46 of the wife’s 1st affidavit)
4	Divorce Petition filed	08.04.03
5	Decree Nisi granted	25.07.03
6	Wife’s 1st affidavit filed; Husband’s 1st affidavit filed	30.09.03; 29.09.03
7	Wife’s 2nd affidavit filed; Husband’s 2nd affidavit filed	03.11.03; 18.11.03
8	Wife’s 3rd affidavit filed; Husband’s 3rd affidavit filed	16.12.03 12.11.03
9	Wife’s 4th affidavit filed; Husband’s 4th affidavit filed	26.01.04; 27.01.04
10	Court ordered the 5th and final round of affidavits to be filed by 17 February 2004. Replies were to be confined to fresh issues, namely, the husband’s allegation that the wife had sold furniture in the matrimonial home and pocketed the proceeds.	27.01.04
11	Wife’s 5th affidavit filed; Husband’s 5th affidavit filed	17.02.04; 20.02.04
12	The first SIC filed	16.03.04
13	Oscar’s affidavit filed	19.03.04
14	The second SIC filed	06.04.04
15	Hearing of the first SIC: q Leave granted by the court to the wife to file a reply affidavit (the wife’s 6th affidavit) to deal with paragraph 20 of the husband’s 5th affidavit, on the specific issue of monies transmitted by the husband to his first wife. q Leave granted by the court to the husband (and the co-respondent, if necessary) to file reply affidavits to the wife’s 5th affidavit.	07.04.04
16	Wife’s 6th affidavit filed	16.04.04

Issues in respect of which Oscar’s evidence given

3 Oscar’s evidence has been given in respect of an investment made in a dot.com company called Worldmine (“the Worldmine investment”). This issue first appeared in paragraph 36 of the wife’s 1^st affidavit. In this paragraph, the wife stated that she had sold her London flat in 1998, and received GBP 70,000 for the sale. This sum was deposited into a Scottish Provident savings funds account. The fund performed badly, and the husband and wife decided to transfer the money out. The wife stated:

“Thus, the balance was transferred to our current joint account at SCB. Before I transferred the money to my personal HSBC account, sometime in 1999, the Respondent withdrew about GBP 10,000 from the account without my permission. He used the GBP 10,000 along with S$180,000 to fund his friend’s new dot com company which subsequently went bankrupt. (emphasis added)

As the investment was allegedly done without her permission, the wife is of the view that she should not be responsible for the loss— presumably on the grounds that the culpability of each party in losing or squandering the matrimonial assets (as opposed to acquiring them) is a factor to be taken into account by the court in deciding how to divide the matrimonial assets.

4 Paragraph 23b of the husband’s 2^nd affidavit states his position quite clearly:

(a) That the sum of GBP 10,000 was not transferred by him without the wife’s permission;

(b) That he did discuss with the wife about investing in Worldmine, and although she initially had reservations on the investment, she eventually agreed to it;

(c) She was always aware of the investment and the extent of the investment which was made in Worldmine;

(d) He would not have proceeded with the investment if she had objected either to the investment itself or the amount of the investment; and

(e) The total amount withdrawn from the SCB joint account for the investment was S$180,000, and not GBP 10,000.

The husband’s view is that as the Worldmine investment was agreed to by the wife, both parties should be equally responsible for the loss.

5 In reply, paragraph 88 of the wife’s 3^rd affidavit states, inter alia:

(a) Her discovery of the Worldmine investment almost caused the breakdown of her marriage in 2001;

(b) She eventually agreed that a sum of only S$60,000 at the most could be invested; and

(c) Without her knowledge the husband committed more than twice this sum, i.e. S$180,000.

6 In his 4^th affidavit, the husband denies the wife’s allegations, but adds no new information on this issue. Aside from a reference to Oscar’s evidence in the wife’s 5^th affidavit, and Oscar’s evidence as set out in his affidavit, no further new information on this issue has been tendered by the wife in her subsequent affidavits.

7 From my perusal of the parties’ affidavits, it seems that the essential issues of disagreement between the parties concern (a) the wife’s alleged knowledge of and/or agreement to the Worldmine investment, and the extent of the said investment and (b) whether there was any friction in the marriage caused as a result of the wife’s alleged disapproval of this investment and her unhappiness that the husband kept her in the dark about it.

SIC prayers

8 The first SIC prays for the following items to be struck out:

(a) The sentence in paragraph 49 of the wife’s 5^th affidavit which states “Page 54 of the exhibit marked “JARA_6” shows a true copy of a letter from Oscar Veronese dated 12 February 2003 endorsing the fact that the Respondent invested considerably more than I had agreed to in the dot com company, and that this did cause difficulties in our marriage.”

(b) Page 54 of the wife’s 5^th affidavit, which is a letter by Oscar, dated 12 February 2004 (“Oscar’s letter”)

9 The second SIC prays for paragraph 5 of Oscar’s affidavit to be struck out, which paragraph consists of the following 7 sentences:

Sentence No.	Sentence
1	I know that the said investment by the parties was a source of contention early in their marriage.
2	It is my clear understanding that the Petitioner had agreed, against her instincts and after much persuasion from the Respondent and his close friend and founder of the company, to investing in Worldmine.com.
3	The investment was to come from parties’ joint savings funds and the Petitioner initially only agreed to a certain sum to be invested.
4	However, at a later date she discovered that the amount of their money which the Respondent had committed was in fact larger than the investment to which she had initially agreed.
5	The Petitioner told me that the Respondent had not advised her of his intention of increasing the commitment to be drawn from their joint funds.
6	This lack of openness and honesty was a big issue for parties, and in particular for the Petitioner, soon after they got married.
7	The Petitioner was extremely upset and disturbed by the Respondent’s covert and unilateral action.

10 The text of Oscar’s letter and paragraph 5 of Oscar’s affidavit is in substance and even in wording almost entirely similar. In my view, the only difference of any significance between the letter and the affidavit would be in the first paragraph of the letter, which states: “I have known Julia and Marc Singleton for a number years [sic] and, as such, can give an example of what I believe to be Marc’s duplicitous nature by citing the following:” (emphasis added)

The husband’s arguments against Oscar’s evidence

11 The husband’s arguments for striking out Oscar’s evidence are threefold: That the evidence, as it has been presented in the wife’s 5^th affidavit and in Oscar’s affidavit is firstly, opinion evidence; secondly, hearsay; and thirdly, the late stage at which the evidence has been introduced is oppressive to the husband. The husband has also argued that the reference to the husband’s “duplicitous nature” is scandalous and should be struck out on that basis. I will deal with the “oppressive” point first.

Evidence introduced oppressively late

12 Under Order 41 Rule 6 (Scandalous, etc., matter in affidavits) of the Rules of Court, the court may strike out any matter in any affidavit which is scandalous, irrelevant or otherwise oppressive. The husband’s counsel has argued that the wife should have introduced Oscar’s evidence at a much earlier stage, namely, at the time of filing of her first affidavit, since the issue of the Worldmine investment was brought up in her first affidavit. At the very least, after the husband set out his version of this issue in his second affidavit, the wife...