Ong Pang Seng v Toh Ah Lye

• Jurisdiction: Singapore
• Judge: Sowaran Singh
• Judgment Date: 26 August 2015
• Neutral Citation: [2015] SGFC 111
• Court: Family Court (Singapore)
• Docket Number: Divorce Petition No.1403 of 2013
• Year: 2015
• Published date: 04 September 2015
• Hearing Date: 24 July 2015,27 May 2015
• Plaintiff Counsel: Ms. Michelle E.Woodworth/Ms Yeo Hui Qin Audris (M/s RHTLaw Taylor Wessing LLP)
• Defendant Counsel: Mr. Lee Kay Tuan David (M/s Shenton Law Practice LLP)
• Subject Matter: Catchwords: Family Law,ancillary matters,division of home and assets,maintenance
• Citation: [2015] SGFC 111

District Judge Sowaran Singh:

The Plaintiff (husband/father) and the Defendant (wife/mother) married in June 1983. They have an adopted daughter¹ who is now 24 years of age². It was a long marriage. On the 20 March 2013 the husband filed for a divorce based on the wife’s unreasonable behaviour. The husband was described³ as being 56 year-old administrative executive whilst the wife was a 54-year-old sole proprietor. The wife did not want the divorce. At the conclusion of a contested hearing Interim Judgment (IJ) was granted on the 20 February 2014 and the ancillaries were adjourned to Chambers. Final Judgement (FJ) was applied for and granted on the 20 February 2015. The ancillaries came up for hearing on the 26 May 2015 and concluded on the 24 July 2015.

The parties had assets valued at more than $4 million over which there was much dispute. Apart from their movable assets, there were 3 properties in question namely: - the matrimonial home (the home). It was purchased in March 1991⁴ for the sum of $475,000 with a mortgage loan of $250,000. The mortgage loan was fully repaid in December 2000. It is held in their joint names as tenants in common in equal shares. The wife claimed that it was valued at $1.6 million whilst the husband averred that it was worth much more at about $2.02 million. It is a 2 storey intermediate terrace home with a basement. - an investment property bought in September/October 1995 for the sum of $706,560. It was held in parties’ names as joint tenants. It is a condominium unit on the 10th floor. It was rented out⁵ and sold in October 2014(the Hillview property) for the sum of $965,000. Out of the net sales proceeds a sum of $418,523 was paid to the wife and the balance sum of $418,523 was being held by the husband’s solicitors as stakeholders pending the ancillary hearing. - another property in the sole name of the wife (the Bartley property)⁶ which she bought on 12 May 2012 at a price of $629,000. She still has this property for which the TOP has not been issued. There is an outstanding mortgage loan of $377,400. The wife used a cash sum of $284,440 for its purchase.

At the conclusion of the hearing the court ordered that the home be sold in the open market within 4 months and the net sales proceeds, after payment of all sales expenses, divided equally between the parties with each party refunding into their CPF accounts from their respective share such sums as were required to be refunded under CPF rules. They were also to have joint conduct of the sale. The wife was entitled to all the net sales proceeds of the Hillview property and the husband’s solicitors were to pay over to her the entire sum that they were holding as stakeholders within one month. She was to retain the Bartley property as well. There were two joint accounts and the court ordered that the wife was to keep the proceeds of their DBS savings account and the husband those of their POSB savings account. Apart from these orders both parties were to keep all the other assets that were in their own names. There was to be no maintenance for the wife. The parties were also to bear their own costs.

The Appeal

On the 31 July 2015, the wife filed an appeal⁷ against the court’s decision except for the order that she was entitled to all the net sales proceeds of the Hillview property. The husband too had filed an appeal against the court’s decision on the 11 August 2015⁸ in respect of its orders on the division of the flat and the net sales proceeds of the Hillview property. The court will now deal with the issues that arose including those raised by the husband’s appeal although his appeal was mired in some technical details and as at the date of these Ground of Decision he has yet to first obtain leave for extension of time⁹.

The Parties Written Submissions in Brief The Husband’s Submissions in Brief

The husband in his written submissions¹⁰ asked that the home be sold and after refunding both parties CPF monies and payment of the sales expenses, the net proceeds be divided 80% to him and 20% to the wife. He also wanted sole conduct of the sale. For the Hillview property he asked for a fair division of the sales proceeds. Their joint POSB account was to be closed and the balance sum of $2,906 retained by him. Their joint DBS account was also to be closed and the balance sum of $5,278 could be kept by the wife. Each party was to retain all other assets that were in their own respective names. There was to be no maintenance payable by him to the wife and each was to bear their own costs. He said that he was now 59 years old and a part-time administrative executive drawing a gross monthly salary of $2,000 (take home: $1,739). He earned another $2,500 a year from his book-keeping fees. Their daughter was now 24 years of age and she was adopted by them in 1993. He accepted that their marriage spanned some 31 years. They were all still residing in the home since September 1991.

He claimed that he had paid some $753,737(or 90.5%) towards the home and the wife only paid about $78,846 (or 9.4%).This included cash for the option fee, initial capital payment, conveyancing charges (of $47,500 + $128,522 + $20,385)¹¹, his CPF funds, renovation costs ($20,000) and other improvements ($12,560). In 1989 he had won a lottery of $190,000 which helped him to pay for the home. Although the price of the home was $475,000 they took a loan of only $250,000 as his lottery savings enabled him to pay for “most of the balance sum of $225,000. He paid a total sum of $176,000 in cash”¹² and another sum of $43,240 from his CPF. After the initial payments he continued to be responsible for paying the loan instalments. Through his efforts he was able to fully redeem the mortgage loan after 9 years even though the repayment period was 15 years. He also contributed $20,000 towards the renovations, furniture and fittings. The initial renovations cost about $60,000 of which he paid $20,000. The wife paid a larger share because she needed to convert the basement into an office for her business Arxxx (Ar). Thereafter he paid a further sum of $12,560 for maintenance works. He also paid for the utilities and property tax. After the home was bought the wife began to operate her business from the basement. As she did not have to pay rent her business prospered and became profitable. He allowed the wife rent-free use of the home from 1991 until the end of 2013.

On the Hillview property he submitted that he was prepared not to seek a division of the sales proceeds if the wife was awarded 20% or less of the home. However, if she was awarded more than 20% of the home, he asked for a fair division of the Hillview property. The parties had never resided in the Hillview property and it was rented out in order to finance the mortgage loan instalments. He pointed out that the total sum paid for this property was disputed. The wife had initially asserted that she paid a total of $949,863.28 (as at 30 April 2014) but later revised this sum to $1,084,418.67 (as at 31 October 2014). Her evidence was thus not credible and there had been double counting. In view of the lack of information on the total sum paid he submitted that the parties contributions be calculated against the original purchase price of $706,560. He calculated that he had paid for this property a sum of $168,033 (or 27.7%) and the wife a sum of $438,644 (or 72.3%). His share included a sum of $163,750 being 50% of the rental income of $327,500 from 1st July 1998 to 31 May 2015.The wife was in charge of collecting the rent and using the sum to pay for the mortgage. According to the wife she had collected the sum of $327,500. Although the wife claimed that she paid for this property in cash he submitted that it was actually financed by the efforts of both parties. The wife’s business was able to save a substantial sum of money on rent over a span of some 18 years. He estimated that based on an estimated rent of $1,500-$2,000, she saved between $324,000 - $432,000 in the form of rental expenses for her business Ar. He also made some payments towards this property and helped the wife with the accounts, billing and debt collection of Ar.

He also helped the wife in her career, ferried her in his car for events, gatherings and her courses. He paid for the daughter’s education expenses since she started attending at a childcare centre until she completed her studies at the local Polytechnic. He took the child to the doctors when she was sick and on several overseas holidays to New Zealand, China and Malaysia. He had made significant financial and non-financial contributions to the marriage. On their other assets (besides the home and the Hillview property), he listed that he had some $376,583 (and not the sum of $1,458,243 according to the wife) excluding his lottery winnings of some $507,500 which were not subject to division as these sums had been “double-counted”¹³. The wife’s other assets according to him came up to $824,995 and not $823,888 as the wife claimed. Hence their total assets (including the sum of $418,523 being the proceeds of the Hillview property each held) came up to $2,008,626.The wife had double-counted his past CPF withdrawals as these sums were paid into his OCBC bank account. In any case these withdrawals of $167,354 took place almost 4 years ago long before the divorce began and the wife should not be allowed to claim a division of the full sum as it would have depleted over the years. Similarly his lottery winnings of $507,000 were depleted over the years and there was again double-counting as these were put into his OCBC bank account. Including the value of the home their total assets would increase to $4,028,626. If the wife were awarded 20% of the home and the entire sum from the Hillview property he would receive 50.5% and the wife 49.4% of their total assets.

On the wife’s maintenance he submitted that he was not currently paying the...