Lim Kaling v Hangchi Valerie

• Jurisdiction: Singapore
• Judge: S Rajendran J
• Judgment Date: 28 April 2003
• Neutral Citation: [2003] SGHC 99
• Docket Number: Originating Summons Nos 1096 and
• Date: 28 April 2003
• Published date: 07 October 2003
• Year: 2003
• Plaintiff Counsel: Randolph Khoo (Drew & Napier LLC)
• Citation: [2003] SGHC 99
• Defendant Counsel: Ms Loh Wai Mooi (Bih Li & Lee)
• Court: High Court (Singapore)
• Subject Matter: Wife lodging caveat on property registered in husband's name pending division of matrimonial assets,Land Titles Act (Cap 157, 1994 Rev Ed) ss 4, 115, Women's Charter (Cap 353, 1997 Rev Ed) s 112,Land,Whether wife has "caveatable interest",Effect,Caveats

1 The plaintiff (“husband”) and the defendant (“wife”) were married on 27 June 2000. The husband had, prior to his marriage, bought two properties in Singapore, namely, (a) an apartment at #26-01 Four Seasons Park (“#26-01”) and (b) a house at 13 Astrid Hill (“No 13”). The parties did not live together in either of these properties save that when they returned from the United States of America in late October 2001 they lived for a period of six weeks at #26-01. In December 2001, the wife moved out of #26-01 and has lived separately from the husband since.

2 In June 2002, the husband entered into a contract for the sale of #26-01. Completion was scheduled for 6 August 2002. On the day of completion, the husband discovered that the wife had, on 5 August 2002, lodged a caveat – CV18121J – under s 115(1) of the Land Titles Act (“the LTA”) against #26-01. By that caveat the wife claimed “an equitable interest in the matrimonial property (#26-01) under s 112 of the Women’s Charter”. The Grounds of Claim, as stated in CV18121J was:

The Caveator’s status is the legal wife of Lim Kaling (the Registered Proprietor) and has a share in the property which is the matrimonial asset and home of the Registered Proprietor and the Caveator.

The husband immediately applied – vide OS 1096/2002 – under s 127(1) of the LTA for the removal of that caveat.

3 On 7 August 2002, Lee Seiu Kin JC made interim orders in respect of OS 1096/2002 enabling the sale to be completed with the proceeds of sale being held by stakeholders until the OS was dealt with.

4 On 17 September 2002, the wife commenced an action for judicial separation – vide Div P 603499/2002 – against the husband alleging unreasonable behaviour. She could not, except with leave of court, have commenced dissolution proceedings since the parties had been married for less than 3 years. The husband filed a Memorandum of Appearance contesting the petition for judicial separation.

5 The husband subsequently discovered that the wife had – by caveat CV881290J filed on 5 August 2002 – also made an identical claim against No 13. He immediately took out OS 1136/2002 for the removal of that caveat. OS 1136/2002 and OS 1096/2002 were heard together by me.

6 Section s 115(1) of the LTA under which the caveats were lodged provides as follows:

Any person claiming an interest in land … may lodge with the Registrar a caveat in the approved form ...

The word “interest” in relation to land is defined in s 4(1) of the LTA to mean “any interest in land recognised as such by law, and includes an estate in land”.

7 The caveator is not required under the LTA to verify his interest in the land to the Registrar before lodgement of the caveat. As Selvam J pointed out in Tan Soo Leng David v Wee, Sektu & Kumar Pte Ltd [1993] 3 SLR 569 at 575G, s 115(1) pre-supposes that the caveator has a valid interest in the property which needs protection by caveat. In that judgment Selvam J refers to the Torrens legislation in Australia as the spring source of our LTA.

8 Upon an application by the caveatee under s 127(1) of the LTA for the removal of the caveat, the burden is on the caveator to satisfy the court that the caveat should not be removed. This is evident from s 127(1) itself which reads:

At any time after the lodgement of a caveat, the caveatee may summon the caveator to attend before the court to show cause why the caveat should not be withdrawn or otherwise removed, and the court may make such order, either ex parte or otherwise, as seems just.

The Privy Council in the Malaysian case of Eng Mee Yong v Letchumanan [1979] 3 WLR 373 reiterated this rule. Discussing the burden on the caveator and the caveatee the Privy Council opined: “it is for the caveator to satisfy the court that there are sufficient grounds in fact and in law for continuing in force a caveat …”

9 In the present proceedings, the wife’s position was that #26-01 and No 13 were part of the matrimonial assets over which she had, by reason of s 112(1) of the Women’s Charter, an “equitable” interest. Section 112(1) of the Women’s Charter provides as follows:

The court shall have power, when granting or subsequent to the grant of a decree 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.

The wife’s caveats were lodged – according to the submissions of Ms Loh Wai Mooi, counsel for the wife – in order to preserve the status quo pending determination of the parties’ rights as regards the two properties at the conclusion of the matrimonial proceedings.

10 The first question for consideration in these two applications is whether the power of division that a court has under s 112(1) of the Women’s Charter, is a power that constitutes – in respect to the spouse who is not the owner of the property – “an interest in land recognised as such by law”. I will refer to such an interest as a “caveatable interest”.

11 If the interest that the wife in this case claimed in respect of each of the two properties was a caveatable interest, the court will go on to consider (secondly) whether the evidence in support of that interest discloses a serious question to be tried and (thirdly) whether the balance of convenience lies in favour of the caveat remaining on the Land Register pending the determination of that interest (see Murugappa Chettiar Lakshmanan v Lee Teck Mook [1995] 1 MLJ 782; Tan Soo Leng David v Wee, Saktu & Kumar Pte Ltd [1993] 3 SLR 569). If the first question is answered in the negative, then the caveat will be set aside and the court need not consider the second and third questions.

12 Can the power that the court has to order the division of matrimonial assets when granting a decree of divorce, judicial separation or nullity be said to constitute a caveatable interest? It is relevant to note that – until exercised – that power remains only a power. Whilst a spouse may hope that the court will order the division of certain properties, until the order for division is in fact made, that hope will remain merely a hope: an inchoate expectation. Even after...