Lim Kok Boon v Lee Poh King Melissa

• Jurisdiction: Singapore
• Judgment Date: 11 April 2012
• Date: 11 April 2012
• Docket Number: Divorce No 3178 of 2010 (Registrar's Appeal No 228 of 2011)
• Court: High Court (Singapore)

Lim Kok Boon (Lin Guowen)

Plaintiff

and

Lee Poh King Melissa

Defendant

[2012] SGHC 77

Quentin Loh J

Divorce No 3178 of 2010 (Registrar's Appeal No 228 of 2011)

High Court

Civil Procedure—Rules of court—Whether filing of further arguments under O 55 C Rules of Court (Cap 322, R 5, 2006 Rev Ed) operated as automatic stay of proceedings for purpose of appeal timelines in Subordinate Court—Order 55 C Rules of Court (Cap 322, R 5, 2006 Rev Ed)

This appeal arose out of ancillary proceedings in the District Court. District Judge Wong Shen Kai made his orders on ancillary matters (‘the Order’) on 18 October 2011. The Appellant disagreed with the order, in particular, that $38,850 be deducted from the Appellant's share of the proceeds of sale of the matrimonial flat to account for the Appellant's debts which were discharged by the Respondent. He requested for further arguments on 21 October 2011, but failed to send a copy of the request to the Respondent's solicitors. On 27 October 2011, the district judge certified that he required no further arguments. The Appellant then filed notice of appeal on 8 November 2011. The Respondent applied to strike out the notice of appeal on the basis that it was filed out of time. The Appellant claimed that the appeal was not filed out of time as the timeline for appeal started from 27 October 2011, when the district judge certified that he did not want to hear further arguments, and not from 18 October 2011, when the Order was made. District Judge Edgar Foo (‘District Judge Foo’), who heard the application, rejected the Appellant's argument on the basis that s 28B Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘SCJA’) could not be applied to supplement O 55 C of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘ROC’), as the extension of time to appeal pending a request for further arguments only applied to appeals in the High Court and not in the Subordinate Court. The Appellant claimed in this appeal that District Judge Foo erred in law by holding that the appeal was filed out of time. The Appellant did not apply for an extension of time with this appeal.

Held, dismissing the appeal:

(1) There were two different regimes governing appeals from interlocutory orders or judgments made by a judge in chambers for the Subordinate Courts and the High Court: at [7].

(2) Order 55 C r 1 provided the procedure for appeals from decisions of a district judge or magistrate in Chambers. It was silent on the application or processes when a party asked for further argument thereon, but provided at r 1 (5) that except so far as a court might otherwise direct, an appeal under this Rule would not operate as a stay of proceedings in which the appeal was brought. This had to mean time was not extended when such a request was made: at [10].

(3) Order 56 r 2 provided for the analogous procedure in the High Court. It contained a sub-rule, not present in O 55 C r 1, that the time period for allowing an appeal started from the end of the 14 days; Aberdeen Asset Management Asia v Fraser & Neave[2001] 3 SLR (R) 355 (‘Aberdeen Asset Management’). Where the rules were silent, as O 55 C was, and where a request for further argument was not a bar to an appeal, then this case and its approach was inapplicable: at [11] to [15].

(4) This court did not have the power or jurisdiction to bring the Subordinate Courts Act (Cap 321, 2007 Rev Ed) in line with s 28B SCJA. The High Court's residual discretion under O 92 r 4 was limited to the prevention of injustice or an abuse of process, and this was a wholly inappropriate case to exercise that discretion and to read O 56 r 2 (2) into O 55 r 2: at [16].

(5) The court could not apply the new principles in s 28 SCJA as it superceded Aberdeen Asset Management and statutorily overruled Lim Kok Koon v Tan Jin Hwee Eunice & Lim Choo Eng[2004] 2 SLR (R) 322 in that a request for further arguments operated as an automatic stay of appeal. Unlike the ROC, the SCJA did not apply to the Subordinate Courts: at [17] and [18].

(6) The need for a rational and consistent approach for divorce proceedings was a matter for the Rules Committee and not the court. The transfers of matrimonial matters under Pt X of the Women's Charter (Cap 353, 1985 Ed) and the current split for ancillary matters where the contested net value of the matrimonial assets fell on either side of the $1.5 m divide were all legal, valid and binding. The history of such transfers could not dictate what subsequent clear statutory provisions, rules of court or practice directions should or should not be. It could not be used to read s 28B SCJA into the SCA: at [19] to [21].

Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 3 SLR (R) 355; [2001] 4 SLR 441 (distd)

JH Rayner (Mincing Lane) Ltd v Teck Hock & Co (Pte) Ltd [1988] SGHC 103; [1989] Mallal's Digest 394 (refd)

Jumabhoy Asad v Aw Cheok Huat Mick [2003] 3 SLR (R) 99; [2003] 3 SLR 99 (refd)

Lim Kok Koon v Tan Jin Hwee Eunice & Lim Choo Eng [2004] 2 SLR (R) 322; [2004] 2 SLR 322 (distd)

Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd [1994] 3 SLR (R) 114; [1994] 3 SLR 151 (refd)

Thomson Plaza (Pte) Ltd v Liquidators of Yaohan Department Store Singapore Pte Ltd [2001] 2 SLR (R) 246; [2001] 3 SLR 248 (distd)

Wee Soon Kim Anthony v Law Society of Singapore [2001] 2 SLR (R) 821; [2001] 4 SLR 25 (refd)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 55 C r 1 (5) , O 55 C r 1 (4) (consd) ;O 55 C, O 55 C r 1, O 56 r 2, O 56 r 2 (1) , O 56 r 2 (2) , O 56 r 4, O 92 r 4

Subordinate Courts Act (Cap 321, 2007 Rev Ed) s 32 (consd)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 28B (consd) ; ss 2, 34 (1) (c) (deleted by Act 30/2010 wef 01/01/2011)

Women's Charter (Cap 353, 1985 Rev Ed) Pt X

Arvind Daas Naaidu (Legal 21 LLC) for the appellant

Tan Yew Cheng (Leong Partnership) for the respondent.

Judgment reserved.

Quentin Loh J

1 This appeal from the District Court raises the issue as to when time for an appeal starts to run - the date when the District Court makes the order or the date when the district judge (‘District Judge’) refuses to hear further arguments. This is the sole issue on appeal. There is no alternative prayer to extend time if the notice of appeal is held to be filed out of time. This has not been a live issue in the High Court for some time now and I am surprised to hear from the appellant (‘the Appellant’) that it continues to raise its head ever so often in the Subordinate Courts.

Facts and the decision below

2 District Judge Wong Shen Kai made his orders on ancillary matters (‘the Order’) on 18 October 2011, which included, inter alia,an order that the sum of $38,850 be deducted from the Appellant's share of the net proceeds of sale of the matrimonial flat to account for the Appellant's debts which were discharged by the respondent (‘the...