Lee Hong Choon v Ng Cheo Hwee

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 17 January 1995
• Neutral Citation: [1995] SGHC 12
• Docket Number: Divorce Petition No 2528 of 1993
• Date: 17 January 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Goh Aik Chew (Goh Aik Chew & Co)
• Citation: [1995] SGHC 12
• Defendant Counsel: Zero Nalpon (Leo Fernando)
• Court: High Court (Singapore)
• Subject Matter: Duty of solicitors where parties were represented,Consent orders,Whether affidavit of means to be supplied before court could approve draft consent order,Duty of court,Whether failure to supply affidavit a material irregularity,Judgments and orders,Civil Procedure,Family Law,Whether limited to approving draft consent orders,Matrimonial proceedings,Principle of party control,rr 40 & 41 Women's Charter (Matrimonial Proceedings),Legal effect of consent order derived from court

Duty of the court

Cur Adv Vult

The question is whether the duty of the court is limited to approving draft consent orders where the parties have agreed to the terms in matrimonial causes when ancillary reliefs are being determined.

Background

The parties were married on 7 January 1988. The husband is an administrative officer and the wife is an accounts clerk. They have no children. The husband petitioned for divorce on the ground that the marriage had irretrievably broken down in that the wife had committed adultery with an unknown man.

The petition was heard by GP Selvam J on 2 February 1994. The husband was represented by counsel but the wife was not represented and was absent at the hearing. GP Selvam J ordered a decree for dissolution of the marriage and adjourned the ancillary relief for the division of assets which was prayed for in the following terms:

(ii) That the respondent may be ordered to transfer [her] half share interest in the property at Blk 521 Hougang Ave 6 #08-45, Singapore 1953 to the petitioner absolutely;

(iii) Such further and other relief as this honourable court may deem fit.

Mr Goh Aik Chew, solicitor for the husband, appeared before the learned registrar but the wife did not attend the pre-trial conference. Mr Goh told the registrar that the wife had confirmed her agreement in writing to him for the consent order to be heard and made final. The consent order reads:

The respondent do transfer her share title interest in the flat known as Blk 521, Hougang Ave 6 #08-45, Singapore 1953 to the petitioner absolutely with all stamp and legal fees payable thereon borne by the petitioner upon the petitioner refunding the respondent`s CPF account (with interest lost thereon) of all withdrawals made by her for the purchase of the said flat.

At the hearing before me on 14 July 1994, Mr Goh submitted a draft consent order for my approval. I asked him about the value of the property. He did not know. The wife was not present. I did not approve the draft consent order that was submitted but ordered an affidavit of means and contributions made towards acquisition of assets to be filed including amounts in the Central Provident Fund (CPF) and accounts of the parties. I also ordered a valuation report be exhibited to the affidavit of means and asked for particulars of the outstanding balance on the property.

The wife instructed solicitors on 19 July 1994 and filed an affidavit on the same day. Paragraphs 3 and 4 of the affidavit read:

3 However, I would like to inform the court that I am very prepared and willing to transfer my share title interest in the flat known as Blk 521, Hougang Ave 6, #08-45, Singapore 1953 to the petitioner, and the petitioner to bear the costs and fees of the transfer, and the petitioner also to refund all moneys and interest (for which I had withdrawn towards the purchase of the matrimonial flat) into my CPF account.

4 I have been advised that I am entitled to more than the refund of CPF withdrawals, but I am still prepared. I am willing to even transfer to the petitioner and should he intend to sell and make a profit it is up to him. However, the petitioner says that he wants to use it for his family, as his mother and family members live on a different floor, of the same block in the matrimonial flat.

At the resumed hearing before me on 15 August 1994, Mr Goh, whose client had not filed the affidavit ordered, said that since the wife was acting on legal advice, the affidavit ordered should be waived. The draft consent order was confirmed by the wife`s solicitor although the husband had not filed any affidavit of means and rr 40 and 41 of the Matrimonial Proceedings Rules 1990 (MP Rules) provide for an affidavit setting out full particulars of property and income to be filed. Mr Goh argued that the circumstances had changed. The husband`s reluctance to describe his means and assets was evident and it could not have escaped the notice of the wife`s solicitor.

Mr Goh relied on the Supreme Court Practice Directions (Part VIII Divorce Matters) and the decision of . The draft consent order submitted for my approval was not accompanied with a statement giving full particulars of all the assets acquired during marriage and the contributions made by the parties.

The arguments of Mr Goh can be summarized as being (i) where parties are represented by counsel; (ii) and there is a consent order; (iii) the duty of the court is to approve the draft consent order because parties would have been properly advised.

Party control

Parties to pending proceedings may give effect to the terms of their agreement to compromise or settle their disputes, whether such agreement is arrived at before or at the trial.

The general principle is that, except in specified cases or circumstances, the parties to the intended, threatened or pending proceedings are entitled to compromise or settle their proceedings on any terms they agree and at any time or stage of the proceedings they choose, without the approval or reference to the court. This is known as the principle of `party control` or `party autonomy`, and it is of exceptional importance since its effect is to promote the resolution and disposal of pending proceedings and thus to reduce to a fairly acceptable minimum the number of actions or proceedings which are actually tried by a judge at a plenary trial or are finally adjudicated upon by the court. The law encourages the compromise or settlement of civil disputes and employs a number of devices or techniques for this purpose. These include:

(1) the right of the parties to negotiate under the protection of the privilege of `without prejudice`;

(2) the device of a payment into court in satisfaction of a claim for debt or damages;

(3) the making of an `open offer` in claims other than for debt or damages;

(4) the making of a written offer expressed to be `without prejudice save as to costs`;

(5) the offer of a contribution in third party proceedings;

(6) the offer to accept liability up to a specified proportion.

The classes of cases or circumstances in which parties cannot settle or compromise proceedings without the approval of the court are numerous and include all matters concerning or relating to:

(1) probate actions;

(2) all other proceedings in which there may be said to be a public interest element involved.

It is not necessary to set out the other cases.

A consent duly given by a party or his legal representative cannot be withdrawn arbitrarily unless there has been a mistake. A party cannot arbitrarily get out of a consent order even if it has not been perfected, but such an order may be set aside where it appears that the consent was given under a misapprehension or upon a misrepresentation, however innocent.

Authority of solicitors

Once proceedings have begun, a solicitor has a general authority to compromise on behalf of the client, provided that he acts bona fide and not contrary to express instructions. The question is whether a solicitor can be said to have acted bona fide where -notwithstanding the requirements of rr 40 and 41 of the MP Rules and the decision in the case of , where the Court of Appeal ruled that contributions in the CPF accounts of the parties are matrimonial assets - the parties produce draft consent orders without particulars of assets, liabilities and means that should have been made available and there is a doubt in the court`s mind as to whether all the assets acquired during marriage have been considered by the solicitors and placed before the court where the matrimonial home is held out as being the only asset.

An order for the division of assets cannot be varied unlike orders for maintenance and custody. An order for the division of assets should not therefore leave open channels of possible controversy between the parties.

Where a wife, after agreeing to reimburse the husband`s CPF account with contributions made by him, later discovers it is beyond her means and applies for the property to be sold, she is left with no remedy.

The wide variety of the forms and methods for settling pending proceedings provides room for manoeuvre in the negotiations leading up to a settlement and increases the flexibility of the terms upon which a settlement can be concluded but the basic facts must be placed before the court so that the court can be satisfied that the order being made is a fair and just one having regard to the facts of the case. Parties cannot blow hot and cold. In , the Court of Appeal said:

As for the chances of the appeal succeeding, counsel for the wife said that the appeal was against the decision of the learned judicial commissioner for not including payment of the sum of $160,000 with interest which had been `agreed` by the parties in the deed. This sum of money arose under the aborted deed of reconciliation, which was repudiated by the wife when she appeared before Chua J in an application to the court by the husband to approve the deed. She now wanted to rely on that portion of the aborted deed where she was to be paid $160,000 by the husband. In our opinion, she was blowing hot and cold selectively: first of disavowing the deed and now

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