Koh Bee Choo v Choo Chai Huah

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 10 April 2007
• Neutral Citation: [2007] SGCA 21
• Court: Court of Appeal (Singapore)
• Published date: 11 April 2007
• Year: 2007
• Plaintiff Counsel: Mary Ong and Robert Yeong (Mary Ong & Co)
• Defendant Counsel: Tan Yew Cheng (Leong Partnership) and Peter Tio (Cheo & Tio)
• Citation: [2007] SGCA 21

10 April 2007 Judgment reserved.

Judith Prakash J (delivering the judgment of the court):

Introduction

1 Mdm Koh Bee Choo (“the Wife”) and Mr Choo Chai Huah (“the Husband”) were married in 1984. They had three children who were aged 16, 18 and 22 at the time of the proceedings in the court below. The eldest child, a daughter, studies architecture in Australia; while the two sons study here. In August 1996, the Husband purchased an apartment at 53 Hume Avenue #07-02 Parc Palais (“the Parc Palais flat”), which served as the home of the couple and their children. In July 2003, however, the Husband left the matrimonial home to live with Ms Sun Chang Yun. The Husband and Ms Sun and their two children currently reside at 346 Balestier Road #05-13 Ritz Mansion (“the Ritz Mansion flat”).

2 On 20 April 2004, a decree nisi was granted to the Wife. Thereafter, three hearings took place before the trial judge to divide the matrimonial assets of the couple and to determine what maintenance should be ordered in favour of the Wife. These resulted in the following orders (see Koh Bee Choo v Choo Chai Huah [2006] SGHC 177 (“the GD”) at [2]):

(a) The Husband was to continue to pay the Wife on or before the first day of every month, a monthly sum of $3,000 as maintenance apportioned as to $1,500 for the Wife and $750 for each of the two sons.

(b) The Husband was to continue to bear the expenses of [the Parc Palais flat] for utilities (water, electricity and gas) and cable television, as well as the hire-purchase instalments for vehicle no SDZ302U (“the Wife’s car”) and its road tax and insurance charges. The Husband was to pay for the utilities until such time as the Parc Palais flat was disposed of which would be no earlier than October 2006 with completion [of the] sale to take place no earlier than the last day of the sons’ national examinations.

(c) The Husband was to continue to pay the fees and living expenses of the daughter until she completed her university course in architecture in Australia.

(d) The parties were to have liberty to apply to the Family Court on the issue of maintenance after the Parc Palais flat had been sold.

(e) The Wife was to have the entire net sale proceeds of the Parc Palais flat which she would utilise to rent alternative accommodation for herself and the children at not more than $2,000 rental per month (inclusive of maintenance charges) for a period not exceeding 24 months (but inclusive of an option to renew for 12 months).

(f) The Wife was to have 50% of the Husband’s Central Provident Fund (“CPF”) savings and would have a charge on the moneys in his ordinary and special accounts until such time as the CPF Board was able to release the charged moneys to the Wife.

(g) The Wife was to have 50% of the Husband’s other assets, in particular, in all branches of Mandarin Dental Centre Pte Ltd (“MDC”) which shares would be deemed to include the 60,000 shares transferred to the Husband’s father.

(h) The Husband would authorise the Wife to write to all major local banks including, but not limited to, United Overseas Bank (“UOB”), Development Bank of Singapore Limited and/or Post Office Savings Bank, Overseas Chinese Banking Corporation (“OCBC”), Malayan Banking and the Bank of China, to ascertain if the Husband maintained any accounts or fixed deposits. If there were accounts (with credit balances) and fixed deposits with any bank, the Wife would be entitled to 50% of those balances. The Wife was to bear the banks’ charges relating to her inquiries.

(i) The Husband would undertake to sell [the Ritz Mansion flat] by October 2006 and if he had utilised his CPF savings for the purchase, the Husband was to refund those withdrawals to his CPF account upon completion of the sale and render a statement thereof to the Wife’s solicitors.

(j) The Husband was to transfer 1,000 City Development Ltd and 500 OCBC shares to the Wife.

(k) The parties were to have liberty to apply to the Family Court on the issue of procuring another property for the accommodation of the Wife and children after June 2008.

(l) The Husband was to pay costs fixed at $3,500 to the Wife.

3 The trial judge also dismissed the Wife’s claim for a share in a number of other assets (“the excluded assets”).

4 Being dissatisfied, the Wife has appealed against orders (b), (e), (g) and (k) set out in [2] above and the dismissal of her other claims. She has asked this court to award her, in addition to what she has already received:

(a) a 50% share in the sum of $483,478.91 from a fixed deposit account with OCBC Bank (“the OCBC fixed deposit account”);

(b) a 50% share in the sum of $6,780.22 from another account with OCBC Bank (“the second OCBC account”);

(c) a 50% share in the rental received from the Husband’s Johor Baru property at 45 Jalan Pinang 16, Taman Daya 81100 (“the Johor Baru property”) from January 2002 to the present;

(d) an order for the sale of the Johor Baru property and a 50% share in the sale proceeds;

(e) a 50% share of $78,000 deposited into an account maintained by MDC with United Overseas Bank (“UOB”);

(f) an order authorising the Wife to write to any local or foreign banks to ascertain whether the Husband had maintained an account with them and for a 50% share in any such accounts; and

(g) a 50% share in the surrender value of the following insurance policies:

(i) Prudential whole life with profit policy (no 08086078) with a surrender value of $44,699.17;

(ii) Prudential whole life with profit policy (no 08093454) with a surrender value of $11,316.63;

(iii) Prudential whole life with profit policy (no 17115857) with an unknown surrender value; and

(iv) AIA life plan (no L524952980) with a maturity value of $30,000.

The trial judge’s reasoning

5 The trial judge explained the reasons for ordering the immediate sale of the Parc Palais flat (at [20] to [25] of the GD):

(a) The Parc Palais flat was no longer an asset but a continuing liability, particularly in the light of the Husband having to pay $6,743.00 per month in order to service the mortgage and overdraft loans secured against the flat.

(b) The Parc Palais flat had depreciated in value. Having been purchased for $1.134m, a valuation adduced in evidence showed that, as of 2002, its value was only $853,000.

(c) It appeared from the documents that the Husband had had difficulty servicing the loans since December 2003. This state of affairs could not continue indefinitely. It was also clear that the Husband (and the Wife) had been living on borrowed money for some time; he was spending more than his monthly income.

(d) It therefore made economic sense to sell the property even at a loss, so as to reduce his monthly expenditure and liability.

(e) In the meantime, the Wife could use the balance of the sales proceeds to procure alternative accommodation.

(f) This was not an ideal solution but it was the most pragmatic under the circumstances.

(g) If the maintenance sum ordered and/or the sales proceeds were insufficient, the Wife had liberty to apply after the matrimonial home was sold. By then, a clearer picture of the Husband’s income and liabilities would have emerged. The Wife’s expenses might also be adjusted because the older son would be serving national service while the daughter would be about to complete or would have completed her studies. This would reduce the Husband’s expenses in respect of her education as well as the Wife’s expenses because the daughter would be relatively self-sufficient then.

(h) Ordering the husband to buy another property for the Wife at that time would be pointless because neither the Wife nor the Husband could afford to make such a purchase. In June 2008, however, the parties would have liberty to apply if their financial circumstances had changed.

6 In addition, the trial judge’s refusal to award the Wife any share in the excluded assets was justified at [35] of the GD, as follows:

Counsel for the Wife had cited White v White [2001] 1 AC 596 and Yow Mee Lan v Chen Kai Buan [2000] 4 SLR 466 to support her argument that the Wife’s indirect contributions merited her entitlement to half the matrimonial assets. I did not disagree with the principles extracted from those cases. However, every case turns on its own particular facts. Unlike the wives in White v White and Yow Mee Lan v Chen Kai Buan, the Wife did not work and had not worked, since June 1984, which was almost the entire period of the marriage, let alone help the Husband in his work. As the Husband rightly pointed out, she could and should find a job. She should be taking up courses to improve and upgrade her skills instead of spending three to four nights a week doing line dancing.

In other words, the trial judge was of the view that whatever had already been apportioned properly reflected the total contributions of the Wife to the family and that it was unnecessary to award her any share in the Husband’s remaining assets.

The Wife’s contentions on appeal

7 The Wife’s arguments in support of her appeal may be summarised in the following terms. As to the orders of the trial judge in relation to the Parc Palais flat (see sub-paras (b), (e), (g) and (k) of [2] above), the Wife’s chief grievances are that:

(a) The trial judge had wrongly concluded that the Husband was in poor financial health and could not afford to continue paying the substantial instalments on mortgage and overdraft loans secured against the Parc Palais flat. Accordingly, the factual basis for ordering the immediate sale of the Parc Palais flat was misconceived.

(b) The overriding consideration in deciding on the disposal of the Parc Palais flat ought to have been the welfare of the children and their need for permanent shelter. As such, the trial judge should have delayed the sale of the Parc Palais flat at least until the youngest child reached 21 years of age.

(c) The balance of the proceeds of the sale of the Parc Palais flat should be given to the Wife without the condition imposed by the...