Lian Hwee Choo Phebe v Tan Seng Ong

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 28 December 2012
• Neutral Citation: [2012] SGHC 255
• Court: High Court (Singapore)
• Docket Number: Divorce Suit No DT 6396 of 2010
• Year: 2012
• Published date: 30 January 2013
• Hearing Date: 12 October 2012,10 October 2012,11 October 2012
• Plaintiff Counsel: Molly Lim, SC, Sunanda Koh Swee Hiong and Roy Lim Rui Cong (Wong Tan & Molly Lim LLC)
• Defendant Counsel: N Sreenivasan, Stuart Palmer and Judy Ang (Straits Law Practice LLC)
• Subject Matter: Family law
• Citation: [2012] SGHC 255

Tay Yong Kwang J:

The parties were married on 8 August 1974. They have four adult children with ages ranging from 21 to 36. On 21 December 2010, the plaintiff (“the wife”) commenced this divorce suit. On 12 April 2011, the parties were granted an interim judgment for divorce on the ground that they had lived apart for a continuous period of at least three years immediately preceding the filing of the writ and the defendant (“the husband”) consented to a judgment being granted on this ground.

After the interim judgment was granted, the parties filed their respective affidavits of assets and means for the division of matrimonial assets. The wife then asked for discovery and interrogatories against the husband, requesting documents and information on all his companies. The husband objected to her requests because of certain alleged arrangements made between the parties in 1985/86 and/or in their course of dealings, whereby both agreed to a division of their then matrimonial assets with each party thereafter having sole ownership of the divided assets and all such other assets he/she may acquire subsequently and that each would have no claim or interest in the divided assets of the other party or those subsequently acquired by the other party. The husband therefore maintained that the wife was not entitled to the documents and information about his companies which were established after 1986 as they were not matrimonial assets. Similarly, the wife objected to disclosure concerning her companies on the ground that they were not matrimonial assets and the husband did not pursue the matter further in the light of the 1985/86 arrangements.

The wife denied that the arrangements applied to the husband’s companies and therefore took out a discovery application in Summons No. 20543 of 2011.

The husband responded by filing Summons No 690 of 2012 for the determination of preliminary issues. On 16 April 2012, a Deputy Registrar of the Family Court made the following orders: The following questions or issues to be tried and determined as a preliminary issue before the hearing for the division of the parties’ assets, namely: Whether the plaintiff and the defendant have agreed, by their arrangements made in 1985/86 and/or their course of dealings, to a division of their then matrimonial assets and to have no further community of assets between them, with each party thereafter, having sole ownership of the divided assets and all such other assets he/she may acquire subsequently and having no claim, interest and/or liability of whatever nature, for any or all such assets owned or acquired by the other party (collectively referred to as “the Arrangements”); and if so, whether it is just and equitable that each of the plaintiff and the defendant should adhere to the Arrangements for the limited purpose of determining whether the court should, when dealing with the division of matrimonial assets under s 112 of the Women's Charter at the final stage: exclude for its consideration, all the assets acquired by each party since the 1985/86 Arrangements up to date of Interim Judgment; include for its consideration all the assets acquired by each of the parties during the course of their marriage from August 1974 up to 2007 or the date of Interim Judgment; include for its consideration, all the assets acquired by each party since the 1985/86 Arrangements up to 2007 or date of Interim Judgment the hearing of the preliminary issues, as set out in paragraph (a) above, be transferred to and determined by the High Court as the combined assets of the plaintiff and defendant far exceed $1.5m and pursuant to the Supreme Court of Judicature (Transfer of Proceedings pursuant to Section 17A(2)) Order 2007; pending the outcome of the hearing of the preliminary issues, all further proceedings in relation to the division of the parties’ assets, including the discovery, interrogatories and/or other interlocutory applications, be stayed and/or until further order; an early date be given for the hearing of the preliminary issues; for the trial of the preliminary issues: each of the plaintiff and the defendant shall be at liberty to file one further affidavit on or before 25 May 2012 and shall thereafter attend the trial of the preliminary issues for cross-examination on all the respective affidavits of the plaintiff and the defendant filed in respect of both Summons Nos. 690/2012/J and 20543/2011/E, which shall stand as their evidence in chief; the defendant’s solicitors shall prepare the bundles of documents for use at the trial; parties shall be at liberty to apply; the costs of the application shall be reserved to be dealt with at the final ancillary hearing.

Before me, it was agreed that the cross-examination be confined to issue (i) above as issue (ii) could only be determined at the final hearing (which this hearing was not) of the ancillary matters since case law (see the Court of Appeal’s judgment in TQ v TR [2009] 2 SLR(R) 961) requires the court to look into all the circumstances of the case in determining how much weight to be given to any such agreement as specified in issue (i) even if one is found to exist.

The husband’s case

The parties got to know each other in 1971 when they were both students in Ngee Ann Polytechnic. The husband was studying mechanical engineering and the wife was studying commerce. The wife dropped out after one year.

After the husband completed his national service, they married and lived in rented premises. The husband was earning $550 per month working in the then Public Utilities Board (“PUB”) while the wife carried on a hairdressing business for a short while.

The husband claimed that he had always been interested in real estate. He purchased his first property for $42,500 in 1971 while still in polytechnic by paying a deposit of $500 and taking out a loan for the balance. He serviced the loan repayments with the rent collected. After a few years, he sold that property for $74,000. In 1972, while in national service, he managed to help a friend sell a property. From then until 1982, he managed to do a few property transactions with the help of the wife.

As he was employed by the PUB from 1975 to 1984, he needed the wife’s help in his property deals. He would place advertisements in the newspapers using the wife’s contact details. The wife would take the telephone calls from prospective buyers and sellers and fix the appointments for viewing in the evening after he finished his work at the PUB. In 1975, he registered Ocean Housing Agency for the wife to conduct the business of a property agent but no significant deals were made through this agency.

In mid-1980, the owner of a piece of land at 30 Pasir Ria responded to the husband’s advertisement. It turned out that he knew the owner’s son as he was also an employee of PUB. He met the owner and his son a few times to discuss the sale of this plot of land covering some 76,446 square feet. The wife was not at these meetings. The owner was anxious to sell the land but the property market was not doing well then. Sensing a good opportunity, the husband decided to buy the land, intending to develop it into a condominium.

As the husband was the broker for the land and was still working in the PUB, he arranged for the wife to be the buyer with him paying the option fee. The purchase price was $1,758,258. He agreed to pay an additional amount of about $171,000 to remove the squatters on the land because of the then Rent Control Act. He approached his friend, Cheng Lip Kwong (“Cheng”), a civil engineer, to help finance the purchase. Cheong agreed to contribute 25% of the 10% deposit for the land. The other 75% came from the husband’s own money and loans from family and friends. The wife then exercised the option to purchase the land.

The husband next engaged a firm of architects to draw up plans for the development of 32 residential units. The development charges amounted to another $1.63m. Knowing that he could not finance the development, he advertised the property for sale.

The wife’s father, who had just purchased an apartment from a developer called Oasis Development Pte Ltd (“Oasis”), mentioned to Oasis the fact that Pasir Ria was available for sale. Oasis approached the wife who conducted the negotiations for sale, acting strictly on the husband’s instructions as he was then busy dealing with other prospective buyers.

The deal with Oasis was successfully concluded in November 1982 with the wife signing as the registered owner of the land. There was a “buy-back” arrangement whereby the husband agreed to buy 4 residential units from Oasis. The husband, the wife and Cheng agreed that the wife and Cheng would each have one unit while the husband would have two units in the development which became known as Pepys Hill Condominium. The wife took the best unit (number 09-01) out of the four. The total price paid by Oasis was some $5.054m, giving the husband a profit of about $3.125m. After deducting the down payment of 40% of the purchase price of the four units, the balance due to him from Oasis was about $2.009m. This amount was paid to the wife and deposited into their joint bank account.

The parties then went on holiday in the USA and in London. Before leaving on the trip, the husband purchased a traveller’s cheque of US$242,000. During the trip, the parties discussed opening a joint account in Bank of China London with the traveller’s cheque. At the said bank, the wife insisted that the account should be in her sole name. The husband did not object as they were married and he trusted her.

The rest of the money was used for the purchase of several properties in 1983/4. As the parties owned a Housing and Development Board flat at that time, they were not permitted to own private property. The wife suggested that the properties be bought in the names of her mother and her sister...