District Judge David Lim:
The undisputed facts
The undisputed facts of this case, as found in the Plaintiff’s Statement of Claim, the Defendant’s Defence, the parties’ respective Affidavits of Examination in Chief (AEICs) and the Plaintiff’s Opening Statement, may be chronologically summarised as follows: 2000 (November) — The Plaintiff (P) and the Defendant (D), when still married, sold their first matrimonial flat at Woodlands and the balance sum from the sale amounting to some $127,272.60 was paid into their joint UOB account No. ******-964-1 (“the UOB joint account”). 2002 (5 September) — The UOB joint account was closed. 2003 — P and D filed for divorce in the Family Court (as the courts in the Family and Juvenile Justice Division of the Subordinate Courts are commonly referred to by lawyers and litigants). 2004 (6 February) — The parties divorced and a decree nisi was granted by consent of the parties. 2005 (12 January) — A Consent Order was made for the division of their matrimonial assets, whereby P was to transfer her share in the matrimonial flat at Bukit Batok to D in exchange for D paying her $25,000 and reimbursing her CPF account of moneys withdrawn by her for the purchase of the flat in accordance with a payment schedule stipulated in the Order. The UOB joint account was not raised as a matrimonial asset to be divided. Neither did P apply for D to account for the moneys therein. 2005 (1 February) — The decree nisi was made absolute. 2010 (3 September) — P commenced the present action against D, claiming the following reliefs: an account of the sum of $127,272.60 in the UOB joint account; an order for the payment by D of all moneys found to be due to P on the taking of such account of her 50% share in the $127,272.60; and costs.
The parties’ respective cases
In her Statement of Claim, P pleaded that — the sum of $127,272.60 was at all times intended by the parties to be divided equally between them and applied for their respective use in the course of their marriage; during the divorce proceedings, when the parties’ matrimonial assets were being divided, the sum of $127,272.60 “was never declared by the Defendant as an asset for division and the Plaintiff had forgotten about the joint account and therefore did not know nor was she aware as to whether the $127,272.60 was or was not utilized by the Defendant towards their marriage”; it was only after her divorce with D, when she was buying a new HDB flat with her new husband, that she recalled the sum of $127,272.60 in the UOB joint account she had shared with D and, on tracing, found that the moneys in that joint account had been withdrawn by D without her knowledge or approval.
In her AEIC, P disputed that the sum of $127,272.60 in the UOB joint account was used as renovation and furniture expenses for their second matrimonial flat at Bukit Batok, and alleged that D must have used the moneys in the joint account for his own purposes.
In his Defence, D pleaded that — P well knew that the sum of $127,272.60 in the UOB joint account had been used by them for the renovation of their second matrimonial flat at Bukit Batok, for their maid’s salary and for the payment of their housing agent’s commission for the sale and purchase of their first and second HDB properties; the UOB joint account was closed on 5 September 2002 and, at the time of their divorce, P was aware of that and the fact that the moneys in that account had already been used up; P is barred from reopening the issue of their matrimonial assets as this issue had already been dealt with by the Family Court when granting the Consent Order for the division of their matrimonial assets, and her present action would amount to her seeking to take a “back road” to vary the Consent Order or to have a “second bite” into the matrimonial assets when the matter had already been dealt with by the Family Court.
D did not plead the defence of limitation although it was undisputed between the parties (see paragraph 1(b) above) that the UOB joint account was already closed in September 2002 (more than 6 years before P filed her Writ of Summons on 3 September 2010) and section 6(2) of the Limitation Act (Cap. 163) provides that —
“(2) An action for an account shall not be brought in respect of any matter which arose more than 6 years before the commencement of the action.”
In his AEIC, D — maintained that the sum of $127,272.60 in the UOB joint account was used to pay the renovation and furniture expenses for their second matrimonial flat at Bukit Batok, for their maid’s salary, for the payment of their housing agent’s commission for the sale and purchase of their 2 HDB properties, for the purchase of a Rolex watch, and for some of P’s and D’s personal expenses; asserted that P could not say she did not know about the use made of the moneys in the UOB joint account because — they were living together at the time and the renovation expenses were a substantial amount; and she was holding onto the cheque book pertaining to the joint account and had even issued cheques from the joint account; and pointed out that if P did not agree or consent to the use that had been made of the moneys in the UOB joint account, she could have, but did not, raise the issue either when the joint account was being closed or during the divorce proceedings; instead, she proceeded to agree to the Consent Order made by the Family Court for the division of their matrimonial assets.
Preliminary issue/objection raised by Defence Counsel
When the trial began, Defence Counsel Mr Michael Yap rose to make a preliminary objection to the continuance of the trial on the following grounds: that it was wrong for P, after the decree nisi had been made absolute for more than 5 years, to now commence the present action by Writ of Summons in the Civil Court to reopen an issue on the parties’ matrimonial assets; that the Civil Court has no jurisdiction to hear the action and P ought rightly to commence the action in the Family Court, which is the correct forum; that there must be finality in matrimonial proceedings.
Counsel’s written submissions
I directed both Counsel to provide the Court with their written submissions on the preliminary objection raised by Mr Yap, in order that the Court may make a proper determination thereof. However because the first round of written submissions did not address certain issues which I felt were important, I directed both Counsel to provide the Court with further written submissions to address these issues for completeness.
Defence Counsel’s submissions
The first written submissions of Mr Yap may be summarized as follows: the issue at the heart of P’s action is actually the division of a matrimonial asset, i.e. the moneys in the UOB joint account; and the jurisdiction to divide matrimonial assets is vested in the Family Court by section 112(1) of the Women’s Charter (Cap. 353):
“Power of court to order division of matrimonial assets
112.—(1) The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable.”
As such, the present Court, being a Civil Court and not a Family Court, does not have jurisdiction to try P’s action, which ought properly to have been commenced in the Family Court. The Court should therefore dismiss P’s action with costs.
In his further written submissions, Mr Yap made the following points: Although the UOB joint account was closed in September 2002, more than 6 years before P’s present action against D for an account of the moneys therein, until the defence has been amended to plead the defence of limitation, the Court cannot dismiss P’s action on the ground that it is time barred. However, the Defendant is not precluded from applying to amend his defence even at this stage in the proceedings as the trial has not yet proceeded pending the determination of the preliminary objection. The words “The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division...
