Lau Loon Seng v Sia Peck Eng

JudgeKan Ting Chiu J
Judgment Date26 June 1999
Neutral Citation[1999] SGHC 166
Citation[1999] SGHC 166
Defendant CounselRobert Yu (Low & Robert Yu)
Published date19 September 2003
Plaintiff CounselGeorge Lim and Foo Say Tun (Wee Tay & Lim)
Date26 June 1999
Docket NumberDistrict Court Appeal No 5063 of
CourtHigh Court (Singapore)
Subject MatterWhether judge has jurisdiction to decide that they are held on trust,Drawing of adverse inference against party for failure to make full and frank disclosure of assets,Necessary for court to make finding on value of undisclosed assets,Division may be effected by payment of equivalent value of divided share,Matrimonial assets,Assets held in names of third parties,Division,s 112 Women's Charter (Cap 353),Whether principle of equal division preserved in 'just and equitable' division,Family Law,Order of division need not result in sale of asset

: This appeal arose from the breakdown of a long marriage, leading to divorce and disagreement over the division of the matrimonial assets.

The parties were married in 1957.
At that time, they had little means. The husband was working as a shop assistant earning $130 a month, and the wife was not employed. In 1972, the couple set up a business, South Educational Supplies Corporation, which was registered with the wife as sole proprietor. It carried on retail sales of books, magazines and stationery from the family home. The wife looked after the home, attended to three children of the marriage and managed the business while the husband continued to work as a shop assistant.

The business grew, and became the distributor for a Hong Kong company in 1976.
Eventually the husband left his job and joined the business. He took charge of wholesale business while the wife attended to the retail sales. In 1983 he became the sole proprietor in place of the wife. The business expanded with the incorporation of a company, Southern Printing and Publishing Co Pte Ltd in 1976 and in 1978 another company, SE Supplies (M) Sdn Bhd, was incorporated in Malaysia.

Although the wife was engaged in the family business for more than ten years, she complained that her husband was always miserly towards her.
He kept the income of the family businesses for himself but she received no salary or CPF contributions, and only received a monthly allowance.

While the family businesses flourished under the management of the husband and a son of the marriage, the marriage faltered.
The wife petitioned for divorce in 1996. The marriage was finally dissolved in 1998, 31 years after it was contracted.

The main dispute between the parties was not the dissolution but the division of the matrimonial assets and the maintenance for the wife.
These matters were heard before a district judge who made the following orders:

1 the respondent shall transfer all his rights, interests and title in the property known as No 11 West Coast Park, Singapore 127635 to the petitioner with the petitioner bearing all legal fees and charges incidental to the transfer;

2 the property known as Apt Block 141 Bukit Batok Street 11 [num ]12-25, Singapore 650141 shall be sold on the open market and the nett proceeds of sale (less cost and expenses incidental to the sale) be divided 40 percent to the petitioner and 60 percent to the respondent;

3 the respondent shall pay to the petitioner an amount in cash equivalent to 40 percent of the value of the following assets as at the date of this order:

(a) the property known as Star City Service Suites Berjaya Star City (B-40-20 E);

(b) half share of the property known as Block 194 Pandan Loop [num ]07-24 Pantech Industrial Park, Singapore 128383;

(c) 299,996 shares in Southern Printing & Publishing Co Pte Ltd;

(d) 125,001 shares in SE Supplies (M) Sdn Bhd;

(e) 155,000 shares in SE Supplies (M) Sdn Bhd of which 115,000 shares are held in the name of Low Loon Hook @ Liew Yoon Fook and 40,000 shares are held in the name of Saw Chin Hua in trust for the respondent.

4 the valuation of the assets listed in para 3 herein shall be carried out within two months of the date of this order by a reputable valuer to be mutually agreed by the parties.

5 the cost of the valuation shall be borne by the respondent.

6 the respondent shall pay to the petitioner an amount in cash equivalent to 40 percent of the assets listed in para 3 herein within two months of the date of the valuation

...

10 the respondent shall pay the petitioner a lump sum maintenance of $72,000 within one month of the date of the order herein;



No 11 West Coast Park (`the West Coast Park property`) was the matrimonial home of the parties, jointly owned by them.
The husband left the home when the marriage broke down, but the wife continues to reside there. Apt Block 141 Bukit Batok Street 11, [num ]12-25 (`the Bukit Batok property`) was also acquired in the names of both parties. The husband has been residing in this apartment since he left the matrimonial home.

The judge also ordered that each of them is to retain other assets they hold in their own names, including bank deposits, shares, CPF funds and jewellery.


The husband appealed against the orders.
His counsel contended that the district judge erred

(i) in finding that 155,000 SE Supplies (M) Sdn Bhd shares registered in the names of Low Loon Hock @ Liew Yoon Fook (the husband`s brother) and Saw Chin Hua (the brother`s wife) were held in trust for the husband (`the trust issue`);

(ii) in finding that the wife was entitled to `at least 50% of the value of all the matrimonial assets` (`the 50% entitlement issue`);

(iii) in making the orders relating to the West Coast Park and Bukit Batok properties and the husband`s business interests and other interests (`the division issue`);

(iv) in finding that the husband had not made a full and frank disclosure of his assets and drawing an adverse inference against him (`the adverse inference issue`); and

(v) in ordering the husband to pay for the valuations to be carried out (`the valuation costs issue`).

I will deal with each issue in turn.


The trust issue

The complaint was that the judge had no jurisdiction to decide on the issue because the wife should take a separate application for a declaration of trust and because it was wrong to make the decision without notice to the registered owners of the shares.

I do not see any basis for the complaint.
The husband knew the wife regarded those shares as matrimonial assets, and he had addressed the issue in his affidavits. The issue was confined to the division of property between the two of them. The wife did not want the registered owners to transfer any of their shares to her. She obtained an order that the husband pay her the value of her division in the shares. The two registered owners are not affected by the order as they are not required to transfer any shares to her. Whether they are liable to transfer the shares to the husband is a separate issue to be resolved between them and him if a dispute arose.

The 50% entitlement issue

The district judge had found that the wife `had played a major role in the early days of the family business until the children were old enough to help their father. She was in fact instrumental in the creation of the family wealth`. She went on to say that `(i)t was my view that the wife through her efforts should be entitled to at least 50% of the value of all the matrimonial assets.`

The judge appeared to have placed a greater value on the wife`s input than the latter has done herself.
Her counsel submitted that she `contributed significantly in money, property or more towards the growth and maintenance of the family`, but did not say that she was instrumental to the creation of the family wealth. No evidence was adduced of the extent of her contribution to family businesses during her involvement up to 1982, or the size of the family businesses at that time compared to the size at the time of the divorce.

Counsel for the wife defended the finding and cited the following passage in p 959 of Associate Professor Leong Wai Kum`s Principles of Family Law in Singapore :

It is submitted that s 112 provides an opportunity to adopt a simpler approach to giving credit for the proper discharge of roles during marriage. It may, perhaps, be unnecessary to analyse the parties` conduct and financial contributions towards the purchase or the family`s needs as carefully as the Court of Appeal felt required to do in the past. One spouse may have done more than the other but it may not be necessary to compare them this carefully in an exercise aiming, not to return to the spouse a share representing what he or she has done during marriage, but, simply, to give each partner a just and equitable share of the net gains of the marital partnership. On the new s 112, it is hoped that the norm will be an equal division of the net gains of the marital partnership. The satisfactory discharge of either role should entitle the spouse to half of the net gains. Deviation from an equal division should only be made on exceptional grounds. This simpler approach will free the courts from the need to carefully analyse parties` conduct during marriage and to ascribe proper credit for items of conduct. If marriage is an emotional and economic partnership, the two
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