Koh Yen Ling v Tan Teik Yu Mark

• Jurisdiction: Singapore
• Judge: Masayu Norashikin
• Judgment Date: 30 September 2015
• Neutral Citation: [2015] SGFC 126
• Court: Family Court (Singapore)
• Docket Number: Divorce Petition No. 1626 of 2013
• Published date: 28 October 2015
• Year: 2015
• Hearing Date: 03 March 2015
• Plaintiff Counsel: Ms Loh Wai Mooi [Bih Li & Lee LLP]
• Defendant Counsel: Ms Suchitra A/P K Ragupathy [Rodyk Davidson LLP]
• Subject Matter: Family law,division of matrimonial assets,monies for first matrimonial property paid by husband's father,whether loan or investment by father,whether subsequent sale proceeds were a gift to the husband alone
• Citation: [2015] SGFC 126

District Judge Masayu Norashikin: Grounds of decision

Introduction

Parties were married in September 2005. Interim Judgment was granted in January 2014 on the Defendant husband’s counterclaim of the Plaintiff wife’s adultery. There are no children to the marriage.

The Plaintiff did not claim any maintenance for herself. The only outstanding ancillary matter issue was division of the matrimonial assets which I heard on 20 January 2015 and 6 March 2015. On 8 July 2015, I made the following orders, and also gave parties brief reasons and calculations for my decision. The matrimonial home at 25 Balmoral Park #08-01 Pinewood Gardens Singapore 259854 shall be sold in the open market within 6 months of the Certificate of Final Judgment. The proceeds of sale shall be used to pay off the outstanding mortgage and term loans. The balance thereafter shall be divided in the proportion 65% to the Defendant and 35% to the Plaintiff. Parties shall refund their respective CPF accounts of all monies utilised for the purchase, together with accrued interest, from their own share. Parties shall have joint conduct of sale. All bank accounts in parties’ joint names shall be closed and the balances thereof be divided equally between the parties. The Plaintiff shall return to the Defendant the diamond cross (white gold) and white gold chain which was a gift from the Defendant’s mother. The Defendant shall retain the Aston Martin car. Parties shall retain all other assets in their respective names and possession. There shall be no maintenance for the Plaintiff. The Plaintiff shall pay the Defendant costs of $1,500 for the divorce and half of the private investigator fees of $4,500. No orders on HSA fees. The Defendant shall pay the Plaintiff costs fixed at $4,000 for the ancillary matters.

The Defendant appealed against the orders as to the division of the matrimonial home and other matrimonial assets, as well as the costs order for the ancillary matters proceedings. I set out the reasons for my decision below. I shall refer to the Plaintiff as the Wife, and the Defendant as the Husband.

Background

The Wife is 34 years old and the Husband 37 years old. Both parties are legally trained and were practising lawyers in eminent law firms during the marriage, though the Wife resigned on 30 September 2013.

When parties got married, they were undergoing pupillage and/or had just qualified as lawyers. Subsequently, they both worked in London from 2007 to November 2009.

The current matrimonial home is a property at 25 Balmoral Park #08-01 Pinewood Gardens, Singapore 259854 (“the Matrimonial Home”). It was purchased in 2010 after parties returned to Si9ngapore and was held by parties as joint tenants until the Wife severed the joint tenancy and the holding was converted to one of tenants-in-common in equal shares. Prior to leaving for the UK, parties’ owned 33 Balmoral Road #09-01 Balmoral Gate Singapore 259811 (“Balmoral Gate”).

The Husband moved out of the Matrimonial Home in October 2012. The Wife moved out in January 2013. Since then, the Matrimonial Home has been vacant.

The Wife is one of the owners of a property under construction known as 3 Leedon Heights #09-01 D’Leedon Singapore 267951 (“Leedon Heights”), purchased on 18 December 2012. She and her mother hold the property as tenants-in-common with her mother having a 95% share and the Wife the remaining 5% share.

The main issues before me, aside from the question of division of the matrimonial assets, were: The status of a sum of money paid using the Husband’s father’s monies for the purchase of Balmoral Gate. This would affect parties’ contributions towards the first home, their respective shares in the sale proceeds and consequently, their shares in the Matrimonial Home. Whether Leedon Heights should be included in the pool of matrimonial assets. Whether the Husband had made more direct and indirect contributions after the Wife stopped depositing her salary into the joint account.

Balmoral Gate

This property was purchased in both parties’ names in 2005 and sold in June 2007 before parties left for the UK for work. The nett sale proceeds were more than $500,000.

The purchase was financed from both the Husband’s and Wife’s CPF accounts (through the monthly mortgage payments), cash from the parties’ joint account as well as a sum of money emanating from the Husband’s father/parents (“the Disputed Sum”). It was agreed that the monies from the joint account would be attributed equally to both parties. What is not agreed is the quantum of the Disputed Sum, and the legal nature of the Disputed Sum.

Wife’s case

The Wife said that the Husband’s father lent the parties a sum of $110,000 for the downpayment of Balmoral Gate. At that time (2005), parties were newly married and had just started working. They did not have sufficient funds to pay the whole deposit and arranged for the Husband’s father to lend them a sum of money that was sufficient to cover the rest of the deposit for Balmoral Gate. They were expected to repay the loan.

This amount was allegedly fully repaid by the parties paying for the Husband’s sister’s university fees in the UK between 2007 and 2009. The Wife said this was a sensible arrangement as parties were then also working in the UK and had funds available in the UK currency (GBP). The arrangement avoided any loss in the exchange rate between Singapore Dollars (SGD) and GBP. The amount paid for the university fees was about SGD120,968.75, roughly the same amount lent to them by the father, taking into account currency exchanges.

As such, the Wife argued that the entire sale proceeds from Balmoral Gate should be attributed to the parties, with no part of it to be attributed to the Husband’s father/parents. Her evidence was that they had made a nett profit of $587,475.66 from Balmoral Gate.

The Wife relied on the following matters in support of her position:- The property was held only in the Husband’s and Wife’s names. The mortgage loan was taken out in both their names, and only they paid the monthly mortgage instalments. The Husband and Wife were the only ones who paid for the property tax, maintenance fees and all costs and expenses relating to the improvement of the property. During their stay in the property, they did not pay any rent to the Husband’s father, nor did the father ask for any rent. The Husband’s father did not ask parties to pay any returns such as interest on the loan. The Husband’s sister was, at all material times, financially dependent on her parents for her overseas education, and never financially dependent on the Husband and Wife. The father was employed at that time and had means to pay for his daughter’s overseas education. Parties conducted themselves at all times such that the Husband and Wife were expected to pay the sum for the sister’s education, and no more. Neither the Husband’s parents nor his sister thanked them for paying the fees. Further, after repayment of the sum was made, all other sums subsequently transferred by the parties to the Husband’s sister were clearly stated to be a loan and to repaid by the sister. The Husband’s father is commercially savvy and holds a Masters in Business Administration. If he had intended for the property to be his investment property (as the Husband contended), he would have gotten himself registered as the owner or one of the co-owners of the property. It would also have been more profitable for him to rent out the property to third parties so that rental proceeds can be collected. The Husband and Wife could have stayed with the Husband’s parents at their property which was large enough to accommodate all of them. Further, it was submitted that the father could have made his investment before the parties got married, when the property market was still depressed. The eventual sale of Balmoral Gate was a decision made by the Husband and Wife, without seeking the father’s consent. The father was also not actively involved in the sale process. There was no evidence that the father’s approval for the sale or the sale price was sought before the Husband and Wife committed to the sale. Nor was the father a party to or copied on the correspondence between the parties and their conveyancing lawyers. The parties had free reign and control over the usage of the sale proceeds. A portion of the proceeds was used to purchase the couple’s Audi car in 2010. A large part of the proceeds of sale of Balmoral Gate was used for the purchase of the Matrimonial Home, which is in the Husband’s and Wife’s names only. Prior to that, a sum of $330,000 was also converted from SGD to GBP when the Husband and Wife thought of buying a flat in London. Since at all times the father was in Singapore, there was no reason for him to suffer exchange costs, if the sale proceeds were his investment returns and belonged to him as the Husband claimed.

Husband’s case

Unlike the Wife, the Husband’s case vacillated and evolved from affidavit to affidavit.

First affidavit

In his first Affidavit of Assets and Means, the Husband made no mention of Balmoral Gate, save to say that he made cash payment of $564,815.05 towards the purchase of the Matrimonial Home. In later affidavits, this appeared to be a substantial portion of the sale proceeds of Balmoral Gate. He was therefore attributing that amount as his sole contribution, with no apportionment to the Wife nor to his father.

Second affidavit

In the Husband’s second affidavit, he said that his parents paid a total of $149,157.84 towards Balmoral Gate, with $120,734.25 coming from his father, and $21,026.22 coming from his mother. The reason given by the Husband for his father’s contribution was that the father had sold a London investment flat in 2003 (in the father’s and the Husband’s joint names) during which time the father was made redundant and...