Rayney v Spencer

JurisdictionSingapore
JudgeK S Rajah JC
Judgment Date14 November 1994
Neutral Citation[1994] SGHC 277
Docket NumberDivorce Petition No 938 of 1992
Date14 November 1994
Year1994
Published date19 September 2003
Plaintiff CounselJeffrey Chua (Rodyk & Davidson)
Citation[1994] SGHC 277
Defendant CounselSimon Yuen and Eunice Phua (Khattar Wong & Partners)
CourtHigh Court (Singapore)
Subject Matters 106 Women's Charter (Cap 353),Postponement of repayment of sums withdrawn from Central Provident Fund or ordering non-payment in favour of wife and children,Matrimonial assets,Wife unable to reimburse husband's CPF contribution,Whether proper exercise of court's discretion,Power of court to order transfer where property subject to charge,r 41(3) Matrimonial Proceedings Rules,s 21 Central Provident Fund Act (Cap 36),Division,Land forming part of assets,Whether transfer should still be ordered,Transfer of HDB flat subject to CPF charge to wife,Underlying policy in Charter,Family Law,Application must be served on interested parties,Prodecure under r 41(3) of Matrimonial Proceedings Rules

Cur Adv Vult

The question raised in this case is whether ordering the postponement of repayment of sums withdrawn from a member`s account with the Central Provident Fund (CPF) or ordering non-repayment in favour of the wife and children on the wife`s application for a division of assets is a proper exercise of the court`s discretion under s 106 of the Women`s Charter (Cap 353) (`the Charter`) having regard to the charge on the property and the provisions of the Central Provident Fund Act (Cap 36, 1994 Ed) (`the CPF Act`) and the rules made under it.

The parties married on 29 June 1974.
They have three children. The husband is a safety consultant and the wife is unemployed. The marriage began to fail and the parties executed a deed of separation on 20 October 1990.

The wife petitioned for divorce on the ground that the marriage had irretrievably broken down because the husband had behaved in such a way that she cannot reasonably be expected to live with him.
The husband was absent at the hearing. I was satisfied that the marriage had irretrievably broken down and I ordered:

(a) Dissolution of the marriage to be made absolute in three months.

(b) Maintenance of $2,000 per month for the three children.

(c) Maintenance of $500 per month for the maid to be paid to the wife.

(d) Custody of the children of the marriage to the wife with reasonable access to the husband.

(e) Transfer to the wife of the husband`s interest in the property known as Block 124 Bishan Street 12 #08-127, Singapore 2057 (`the flat`) upon the wife reimbursing the husband`s CPF account, without interest, pursuant to cl 2 of the deed of separation adjourned to chambers.



Separation deed

Clause 2 of the deed of separation made on 20 October 1990 reads:

The husband agrees to transfer his interest in the said flat to the wife upon the wife reimbursing his Central Provident Fund Account, without interest.



The wife exhibited a letter from her husband.
The letter of 12 August 1993, inter alia, states:

That the transfer of matrimonial home at Apt Blk 124, Bishan Street 12 #08-127, shall be made to Elizabeth V Rayney free of interest.



The wife, who has custody of the three children aged 9, 16 and 20, was not employed.
She was trying to obtain qualifications and said that it would be extremely difficult for her to refund her husband`s CPF contributions and interest accrued after she had agreed to pay. Her ordinary account showed a balance of $6,775.33 as at 29 October 1993. According to the valuer`s report approved by the Housing and Development Board (`HDB`), the flat was worth $320,000. She said that she had contributed about $20,000 towards renovation costs for the flat and this was not challenged.

Ancillary reliefs

The husband was absent at the hearing on 6 May 1994 when I heard the application for ancillary reliefs. I ordered:

(a) The husband to transfer his half share in the flat to the wife.

(b) The wife not to reimburse the husband`s CPF account with contributions made by the husband.

(c) The wife to serve a draft order of court on HDB and CPF Board together with supporting affidavits filed by 4pm on 12 May 1994.

(d) HDB and CPF Board at liberty to file an affidavit in reply stating objections, if any, to the transfer of the flat by 30 May 1994.

(e) Order of court not to be extracted until after 3 June 1994.



Where undue hardship would be caused to the wife and dependent children, the husband is, in a proper case, ordered to transfer his property to the wife without her having to reimburse his CPF account sums contributed by him and repayment to the CPF account becomes an issue.


Division of assets

Where there is an application for a division of assets, it must be stated whether the title to the land is registered or unregistered and particulars of any mortgage given. I ordered the wife to serve the draft order on the HDB and CPF Board as provided for in r 41 of the Matrimonial Proceedings Rules 1990 (`MP Rules`) and directed that the order made in her favour be not extracted so that interested parties may be heard before the orders are made final.

The wife exhibited a CPF statement showing a sum of $6,775.33 standing to her credit in her ordinary account.
The husband had contributed $69,449.50 from his CPF account without the interest that would have accrued.

CPF affidavit

Mr Teoh See Leong, the senior manager (Member Services Department) of the CPF Board filed an affidavit in reply on 16 June 1994. He confirmed the principal amount withdrawn from the husband`s account and added that the accrued interest was $20,486.57 as at 3 June 1994 and that both amounts were secured by a charge on the husband`s estate or interest in the flat as provided in s 21(1) of the CPF Act. The charge extends to all rights, benefits and interests of the member. The relevant parts of s 21(1) and (2) read:

(1) Where in accordance with any regulations made under section 77, a member of the Fund has on or after 1st June 1981 withdrawn any money standing to his credit in the Fund for all or any of the following purposes:

(a) to make payment, either full or partial, towards the purchase of an immovable property;

(b) to repay or to make periodic payments towards the repayment of any loan taken by the member to finance or re-finance the purchase of an immovable property;

(c) ...

(d) to pay any costs, fees or other expenses incurred -

there shall be a charge on the member`s estate or interest in the immovable property to secure the repayment of the money withdrawn from the Fund including the interest that would have accrued thereto if the withdrawal had not been made and to secure the payment of the minimum sum into the member`s retirement account; ...

(2) A charge under subsection (1) shall extend to all the rights, benefits and interests of the member ...



Section 77 does not empower the Minister to make regulations to limit the court`s power under s 106 of the Charter but that does not alter the fact that there is a statutory charge on the immovable property to secure repayment of sums paid by the CPF Board to the member although the money paid is regarded as assets that can be considered when division is ordered.
It is necessary to look at the sections closely.

The charge

Section 21(10) of the CPF Act provides that a charge on a property under s 21(1) of the CPF Act shall continue in force until all moneys secured by the charge have been repaid, except in the situations stipulated therein. It has been argued that the charge on the flat must be discharged by repaying all principal amounts drawn together with interest accruing before there can be a transfer of the husband`s interest in the flat to the wife.

In addition to the statutory charge, the CPF Act by s 21(4) provides that by lodgment by the CPF Board with the Registrar of Titles of an instrument for the purpose of registering or notifying any charge under sub-s (1), the CPF Board will have the additional protection powers and security:

(a) a power of sale and all other powers relating to or incidental thereto as if the CPF Board is a registered mortgagee [my emphasis] [see r 41(4)(c) of the MP Rules]; and

(b) the power to sell, assign and dispose of all the rights, benefits and interests under the agreement for the sale and purchase of the immovable property.



The CPF Board as a registered mortgagee is given a power of sale and incidental powers but the court`s power under s 106 of the Charter is not considered although the court has a power of sale under s 106 of the Charter and the court`s power to order a sale by a party who is not a member must be considered with the power of sale given to the CPF Board by another statute.


The CPF Board as a matter of policy and practice, to accommodate the social purpose of the HDB to construct and to let to low and middle income citizens economical homes, co-operates with the HDB to save costs and does not seek to obtain the power to sell, assign and dispose of all rights for the sale and purchase of the HDB flats under s 21(4) of the CPF Act.
It was argued that the accommodation given to the HDB cannot be extended to cases where the court makes orders for the protection of the member and/or his family even when the CPF Board is protected by a court order. (See decision of Warren Khoo J in . There is, however, an appeal against this decision and it is useful to wait for the decision of the Court of Appeal.)

The CPF Board relies on the statutory charge under s 21(1), which was reproduced earlier, and s 21(10) which reads:

A charge under subsection (1) shall continue in force until all the moneys secured by the charge have been repaid or are no longer required by any regulations made under section 77 to be repaid to the Fund or if the Board is satisfied of the occurrence of any of the events mentioned in section 24(e) in which event the member concerned or any other party having an interest in the immovable property shall be entitled to have the charge cancelled.



In short, the argument is that the interests of the CPF Board are protected by the charge and s 106 of the Charter cannot override it notwithstanding the justice of the case.


The High Court has power to order land to be charged or mortgaged in which there is jurisdiction to order a sale (see item 3 in the First Schedule of the Charter).
Section 106 of the Charter confers upon the court a power to order a sale. It must follow that a court exercising powers under s 106 of the Charter can order land to be charged.

Further orders

Mr Simon Yuen for the CPF Board did not object to the orders of the court of 6 May 1994 but he prayed for further orders to give effect and meaning to s 21(10) and for a specific order that the charge on the property shall remain until such time as there is reimbursement of the husband`s contributions to the CPF Board. Mr Teoh deposed that the transfer of the husband`s joint interest without the wife...

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