Ng Kim Seng v Kok Mew Leng

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 22 September 1992
• Neutral Citation: [1992] SGCA 58
• Docket Number: Civil Appeal No 112 of 1989
• Date: 22 September 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: P Suppiah and Noor Mohamed Marican (Noor Mohamed Marican & Associ-ates)
• Citation: [1992] SGCA 58
• Defendant Counsel: Loong Seng Onn (WK Tan & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 106 Women's Charter (Cap 353),Family Law,Matrimonial assets,Relevance of 'matrimonial factors' not listed in s 106 of the Women's Charter (Cap 353) in deciding on a fair division,Division

This appeal was argued before us on 26 November 1991. At the end of the hearing, we varied the order of the court below to the extent that appears at the end of these grounds of judgment. We now give our reasons for doing so.

Background

The appellant and respondent were formerly husband and wife. They were married in Kuala Lumpur in September 1967 and there are two children of the marriage, a boy born in October 1968 and a girl born in March 1972. The parties were divorced on the petition of the wife. The decree nisi was granted on 15 May 1989 and was made absolute on 12 January 1990. The fact supporting the irretrievable breakdown of the marriage was that the parties had lived separate and apart for a continuous period of four years, commencing from 1984, immediately preceding the presentation of the petition for divorce on 17 June 1988. The petition for divorce also alleged the unreasonable behaviour of the husband as a fact of the irretrievable breakdown of the marriage. A similar allegation of unreasonable behaviour was also made against the wife by the husband in his reply and cross-petition. Custody of the children was given to the wife by an order of court dated 25 July 1989, and the husband was also ordered to pay maintenance of $750 per month for the children. Those orders were not under appeal and the appeal only concerned an order of Tan Teow Yeow JC dated 11 October 1989 wherein the interests in the matrimonial home at No 89 Faber Drive, Singapore were divided as follows:

(1) The beneficial share of the matrimonial home at No 89 Faber Drive, Singapore be as follows:

Petitioner [the wife] - four-fifths (4/5)

Respondent [the husband] - one-fifth (1/5)

(2) The petitioner has the sole discretion either to:

(i) sell the whole of the matrimonial home to a third party; in which case the respondent is to execute all such documents as are necessary to convey and transfer the matrimonial home to the said third party and the respondent is to be paid one-fifth (1/5) share of the net sale proceeds (1% broker`s fees and legal fees to be deducted); or

(ii) retain the whole of the matrimonial home for herself; in which case the respondent is to execute all such documents as are necessary to convey and transfer his rights, title and interest to the petitioner and upon such execution, he is to be paid Singapore dollars: one hundred and forty-four thousand (S$144,000)

each party to bear their own legal costs and disbursements in either transaction.

(3) The petitioner`s discretion in para 2 above is to be exercised within one month from the date of this order.

(4) The respondent is to quit and deliver up possession of the matrimonial home on the completion of either of the aforesaid events.

The wife chose to retain the matrimonial home for herself and paid to the husband the amount stated in para 2(ii) of the above order.

Facts relating to the matrimonial home

The matrimonial home was purchased at the end of 1972 and title was conveyed into the sole name of the husband in January 1973. The purchase price of the matrimonial home was $107,000 and the source of funds for the payment of the purchase price and the legal costs and disbursements was made up as follows:

Gift from the wife`s father $ 75,000

Mortgage loan from the husband`s employers

$ 66,000

$141,000

It was not disputed that the gift of $75,000 from the wife`s father was intended as a gift to her and that the mortgage loan was taken out by the husband in his own name from the Jurong Town Corporation where he was then employed as a quantity surveyor. Between January 1973 and December 1978, the monthly instalments on the loan were repaid by deductions out of the husband`s salary. No schedule of repayments was put into evidence but the wife`s allegation that the husband had only paid a sum of $19,800 towards the home was not contradicted.

During the period between January 1973 and December 1978, the parties operated a joint account into which they paid their salaries and out of which they paid their living expenses. The wife said that while the mortgage loan was outstanding, the husband`s contribution to the joint account was small as a significant portion of his salary was deducted by his employers towards the repayment of the loan. As a consequence, it was said by the wife that the family`s living expenses during this time were met out of her salary as a teacher. These matters were not denied by the husband.

The mortgage loan was redeemed in December 1978. At that time, the outstanding balance was $52,423.44 and this was repaid out of a sum of $56,000 advanced by the wife`s father. The nature of this advance is uncertain. The wife`s evidence partly suggested that the money was a gift to her, while at the same time it was suggested that it was a loan from her father to the husband which the husband was liable to repay. Of particular significance was a letter dated 20 February 1988, which was exhibited in the wife`s affidavit filed on 27 September 1988, from the wife`s father to the husband in the following terms:

You will recall that sometime in December 1978 I lent to you $56,000 to help you to redeem your loan of [sic] 89 Faber Drive from Jurong Town Corporation.

In 1979, when you left Jurong Town Corporation, I lent to you a further sum of $50,000 to buy up Mr Ng Thin Wah`s company to set up your own business.

The above loans totalling $106,000 were made to help you as my son-in-law and for the sake of Mew Leng [the wife].

Now that I am getting on in years, I would like you to repay to me the above loans as soon as possible and in this regard I would...