Mohamed Yusoff bin Mohd Haniff v Umi Kalsom bte Abas (Attorney-General, non-party)

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 15 April 2010
• Neutral Citation: [2010] SGHC 114
• Plaintiff Counsel: Peter Pang (Peter Pang & Co)
• Docket Number: Originating Summons No 422 of 2009/B
• Date: 15 April 2010
• Hearing Date: 12 May 2009,22 January 2010,29 June 2009,02 November 2009
• Subject Matter: Judicial Review,Administrative Law
• Published date: 21 April 2010
• Citation: [2010] SGHC 114
• Defendant Counsel: Low Siew Ling (Attorney-General's Chambers),Mohd Muzammil bin Mohd (Muzammil & Company)
• Court: High Court (Singapore)
• Year: 2010

Tan Lee Meng J:

The applicant, Mr Mohamed Yusoff bin Mohd Haniff (“Mr Yusoff”), who was divorced in the Syariah Court from the respondent, Mdm Umi Kalsom binte Abas (“Mdm Umi”), sought leave to apply for judicial review of the Syariah Court’s decision with respect to the division of their matrimonial property. I dismissed the application and now give the grounds for my decision.

The parties, who were married in accordance with Muslim law on 2 March 1985, were divorced in the Syariah Court on 18 August 2003. On that day, the Syariah Court made the following order in relation to their matrimonial home at Block 587, Hougang Avenue 4, #03-646 (the “matrimonial property”):

The matrimonial flat … be sold in the open market and the sale proceeds be apportioned as:

i. To refund with accrued interest the [parties’] CPF monies used in the purchase of the said flat; ii. To make full payment of the outstanding HDB loan; iii. … [N]et proceeds – less (i) and (ii) shall be divided 55% to [Mdm Umi] and 45% to [Mr Yusoff]; iv. Both parties shall equally bear all expenses arising from the sale, including payment of commission to a housing agent.

After the divorce, Mdm Umi and her daughter left the matrimonial property. Mr Yusoff continued to occupy the matrimonial property.

More than two years after the divorce, Mdm Umi instructed a housing agent in September 2005 to sell the matrimonial property. As Mr Yusoff declined to sign the option form, Mdm Umi applied to vary the Order of Court of 18 August 2003 to provide for the signing of documents pertaining to the sale of the matrimonial property on Mr Yusoff’s behalf. On 28 December 2005, the Syariah Court ordered Mr Yusoff to sign the documents required to effect the sale of the matrimonial property and further ordered that if he did not do so, the President or Registrar of the Syariah Court could sign the said documents on his behalf. What merits attention is that on the same day, the Order of Court dated 18 August 2003 was varied by consent and replaced by the following order (“first consent order”):

By consent, paragraph 7 of the Order of Court dated 18 August 2003 shall be varied as follows:-

The matrimonial flat … shall be sold in the open market. The proceeds of sale shall be apportioned as follows:- (i) To make full payment of the outstanding loan with HDB. (ii) To refund with accrued interest the [parties’] CPF monies used towards the purchase of the flat. (iii) To refund [Mr Yusoff’s] cash payment to the mortgage. (iv) The net proceeds – less (i) (ii) and (iii) – shall be divided 55% to [Mdm Umi] and 45% to [Mr Yusoff].

The sale of the matrimonial property for $320,000.00 was completed on 29 March 2006. As Mr Yusoff had already reached the age of 55, the age when a member of the Central Provident Fund (“CPF”) may withdraw a major part of the amount in his or her CPF account, he was not required to refund to his CPF account the entire sum that he had withdrawn from the account for the purchase of the matrimonial property. Instead, he was only required to refund $44,571.61 to his CPF account while Mdm Umi had to refund around $180,000.00 to her CPF account. After deducting the amount due to the Housing and Development Board, the balance of the sale proceeds was $92,164.35.

A dispute arose between the parties as to who was entitled to the $92,164.35. Mr Yusoff contended that he was entitled to the $92,164.35 as he would have had to refund the said sum to his CPF account had he not reached the age of 55. However, Mdm Umi, who wanted a share of the $92,164.35, sought a variation of the first consent order to ensure that this sum was split between her and Mr Yusoff. She relied on s 52(6) of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) (“AMLA”), which allows the Syariah Court, on the application of any interested person, to vary or rescind any order where it is satisfied that the order was based on misrepresentation or mistake of fact or where there has been any material change in circumstances or for other good cause being shown to the satisfaction of the Court. She contended that when the first consent order was made, Mr Yusoff did not disclose to the Court the amount that had to be refunded to his CPF account when the matrimonial property was sold as well as the fact that he had already reached the age of 55.

Mdm Umi’s application to vary the first consent order was heard on 7 August 2006 by the Syariah Court, which varied the first consent order. This new order on 7 August 2006 need not be considered when Mr Yusoff appealed against this Order, the Appeal Board of the Syariah Court (“the Appeal Board”) recorded yet another consent order (“the second consent order”) on 31 January 2007, which is as follows:

[I]t is adjudged by consent that the Order of the Syariah Court dated 7th August 2006 and paragraphs 7 and 8 of the Order of the Syariah Court dated 18th August 2003 in this matter be set aside and the issue of the parties entitlement to the sale proceeds of the matrimonial flat … be remitted back to the Syariah Court for its determination.

[emphasis added]

On 27 November 2007, the Syariah Court made a new order (“the final order”) in relation to the distribution of the proceeds of sale of the matrimonial property. In essence, the Court rejected Mr Yusoff’s claim that he was entitled to the $92,164.35 and ruled that he and Mdm Umi were to share the net profits of sale equally.

Dissatisfied with the new ruling, Mr Yusoff appealed to the Appeal Board. On 9 January 2009, his appeal was dismissed. The Appeal Board explained:

We have reviewed the learned President’s grounds of decision and note that the learned President had carefully considered all of the relevant circumstances in determining the fair amount to be given to each party. The learned President was well aware of the total CPF funds contributed by [Mr Yusoff], as well as the cash contribution made by [Mr Yusoff]…. He even reduced [Mdm Umi’s] initial share of the net profit from 55% to 50% to reflect in his view a fair assessment of how the proceeds were to be distributed.

It was clear to the learned President’s mind that only the sum representing the minimum sum should be refunded to [Mr Yusoff]. The learned President clearly intended that [Mdm Umi] should receive some monies from the proceeds of the sale. To us, the...