Lee Bee Kim Jennifer v Lim Yew Khang Cecil

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 09 November 2005
• Neutral Citation: [2005] SGHC 209
• Court: High Court (Singapore)
• Year: 2005
• Published date: 11 November 2005
• Plaintiff Counsel: Randolph Khoo and Veronica Joseph (Drew and Napier LLC)
• Defendant Counsel: Engelin Teh SC and Linda Ong (Engelin Teh Practice LLC)
• Subject Matter: Family Law,Maintenance,Wife,Quantum of maintenance for wife,Matrimonial assets,Division,Gifts,Matrimonial Home,Unexplained movements in bank account,Whether division just and equitable
• Citation: [2005] SGHC 209

9 November 2005 Judgment reserved.

Andrew Ang J:

1 The petitioner and the respondent were married on 8 September 1981. Immediately after they were married, the couple went to England where the respondent pursued further studies. Upon their return in 1983, they stayed with the respondent’s parents at 16 Leedon Park for about three months before moving into 63 Bin Tong Park. Until sometime in December 2000, when the petitioner left the matrimonial home, they lived together at this address. This property, together with the respondent’s parents’ residence and several other properties, were owned by SP Lim & Co Pte Ltd (“SP Lim & Co”) which was an investment company started by the respondent’s father (S P Lim) and owned by the latter, his wife and their three sons of whom the respondent is the second. The petitioner and respondent have four sons currently aged 23, 21, 18 and 16.

2 The petitioner filed for divorce on 18 August 1997 on the ground that the marriage had irretrievably broken down by reason of the fact that the respondent had behaved in such a way that she could not reasonably be expected to live with him. The respondent filed an Answer and Cross Petition and the petitioner filed a Reply and Answer to Cross Petition. Eventually, however, those subsequent pleadings were withdrawn and a decree nisi was granted on 5 January 1999 based on the wife’s Amended Divorce Petition.

3 The ancillary matters on custody, care and control of the children, maintenance for the petitioner and children, and division of matrimonial assets were adjourned to be heard in chambers.

4 A Consent Order dated 5 June 2001 gave them joint custody while care and control of the children was given to each of the parties (with liberal access to the other) whenever the children were with such party. The remaining ancillary matters, together with a claim by the petitioner for reimbursement of certain expenses, were heard by the learned district judge, Tan Peck Cheng. The hearings in chambers took place on 14 April 2003, 19 December 2003, 14 March 2004, 6 May 2004 and finally on 28 March 2005 when the following orders were made:

1. The Respondent do pay the Petitioner lumpsum maintenance fixed at $1,400,000.00.

2. In addition, pursuant to Summons-in-Chambers No 651979 of 2002, the Respondent is to reimburse the Petitioner the sums of:-

(a) $61,573.22 being rental expenses incurred from December 2000 to August 2002; and

(b) RM$24,009.00 being the children’s travel expenses.

3. The Respondent shall pay to the Petitioner $500,000.00 being the Petitioner’s share of the matrimonial assets.

4. The Respondent shall pay the Petitioner costs to be agreed or taxed.

5. There be liberty to apply.

The respondent appealed against the whole of the decision while the petitioner appealed against orders 1 and 3.

Respondent’s appeal on maintenance (Registrar’s Appeal from the Subordinate Courts No 720026 of 2005)

5 The lump sum maintenance of $1,400,000 ordered by the district judge was based on a monthly maintenance of $7,000 (ie, $8,000 less $1,000 which the petitioner was found to be capable of earning) for 17 years. The respondent made the following contentions as regards maintenance:

(a) $8,000 adjudged as the petitioner’s maintenance was too high;

(b) the petitioner was capable of earning more than $1,000 per month;

(c) the respondent could not afford to pay $7,000 net maintenance per month; and

(d) the order for a lump sum payment was inappropriate.

Is $8,000 per month excessive?

6 The respondent contended that:

(a) the interim monthly maintenance of $4,000 previously ordered should have been followed and the district judge did not give reasons for departing from the figure; and

(b) the only issue the court should have considered was whether to include the petitioner’s rental claim of $1,800. The respondent also said that various specific expenses claimed by the petitioner as part of her maintenance were excessive.

As pointed out by counsel for the petitioner, by suggesting a figure of $4,000 out of his admitted average monthly income (inclusive of bonuses) of $28,982.41, the respondent was in effect asking for a reduction of 20% from the interim monthly maintenance which the petitioner had hitherto been receiving.

7 I agree with the petitioner’s counsel that the interim maintenance awarded pendente lite is usually less than the final award: see Prasenjit K Basu v Viniti Vaish [2003] SGDC 303. At the interim stage, the court does not have the full means to make a thorough investigation of the parties’ financial matters or their lifestyles (among other factors) which it will have to examine thoroughly at the ancillaries stage. For this reason, it will usually err on the side of conservatism, ordering less than what the applicant can ultimately expect at the ancillaries stage. There was no reason in law for the district judge to be bound by the interim maintenance order. (Incidentally, the interim maintenance order was for $5,000 and not $4,000, the additional $1,000 being for transport allowance.) Besides, the petitioner moved out of the matrimonial home after the interim maintenance order and would therefore require more maintenance by reason of having to rent accommodation and to pay for all the incidentals that keeping an apartment entailed.

8 It follows from the above that it is incorrect to say that the only issue the district judge should have considered was whether to increase the interim maintenance by $1,800. The district judge was correct to consider other expenses consequent upon the petitioner moving out. In submitting that $8,000 maintenance was too high, the respondent also contended that certain specific expenses were too high. However, the respondent adduced no evidence to show what the petitioner’s expenses ought to be. He merely made bald assertions as to what the figures ought to be. In contrast, the petitioner had receipts and invoices and tabulated her expenses based thereon. Although she offered in her ninth affidavit to make available the documentary proof of her expenses, this was never taken up.

9 Overall, the impression I had was that the respondent’s approach was to seek to cut down what had been allowed by the district judge notwithstanding that the sums might be reasonable. A case in point is the $1,800 rental for the Hilltops apartment at Cairnhill. Notwithstanding that the rental of $1,800 was already a low figure, the respondent sought to attack the expenses on the ground that the petitioner should have rented a smaller apartment. The respondent ignored the disparity between the matrimonial home in Bin Tong Park and the modest Hilltops apartment. His complaint was that the petitioner did not need 2,300 sq ft. Would he have been happier if she had rented a smaller but newer apartment at a higher rental? Was it unreasonable to make provision for the children to stay overnight if they chose to do so, bearing in mind that he did not have exclusive care and control?

Inability to pay

10 The respondent claimed to be unable to afford to pay the petitioner maintenance of $7,000 a month. He claimed that the lavish lifestyle the parties enjoyed was a thing of the past which had been supported in part by loans from his parents. The district judge disbelieved those claims. I see no reason to disagree.

11 The respondent is an executive director of Chemical Industries (Far East) Ltd (“CIL”), a listed company controlled by the Lim family. The respondent contended that his average net monthly income was $22,921.08 but failed to factor in his bonuses. The district judge had found that since the respondent claimed that his monthly expenses were $26,282 (which included payment of the petitioner’s interim maintenance), the respondent had sufficient means to pay the monthly maintenance of $7,000 (which was just an increase of $2,000 over the interim maintenance). I accept the petitioner’s contention that this did not take into account the respondent’s income from his investment activities. (To be fair, I should add the obvious, that the investment activities could suffer losses as well.)

12 In support of his contention that he was unable to provide the maintenance ordered, the respondent claimed to have various liabilities. These had been disregarded by the district judge for various reasons. The respondent’s liabilities will be considered in detail later on in the judgement. For the moment, suffice it to say that on the evidence available to her, it was certainly open to the district judge to disregard those liabilities.

The petitioner capable of earning more than $1,000 per month?

13 The district judge found that after the petitioner married at the age of 20, she was a full-time housewife, except for two periods.

(a) The first period (1985–1992)

The petitioner started a playgroup in or about 1984. When she passed a Montessori course, the playgroup became a recognised Montessori playgroup. The group consisted mainly of friends’ children and functioned for the benefit of her own children. According to the petitioner, after paying for expenses, there was no profit. It should be noted that this was despite the free use of her home for running the playgroup. When her husband asked her to stop in 1991, she went to help her former assistant at the latter’s playgroup but stopped when the respondent asked her to help out at Direct Store Holdings Pte Ltd (“Direct Store”), a retail store set up by the respondent and some friends.

(b) The second period (1993–1996)

The petitioner helped out at Direct Store at the request of the husband after the store sacked the manager for mismanagement. For this she received $2,500 a month. Whilst the respondent argued that the petitioner was capable of earning $2,000 to $3,000 a month, the petitioner stated that she was only earning $1,000 a month giving tuition to young children and helping out at a kindergarten. She further stated that as time went by it would be difficult for her to work in...