Seet Poh v Lim Lee Cheng

• Jurisdiction: Singapore
• Judgment Date: 17 April 2014
• Date: 17 April 2014
• Docket Number: Divorce Petition No 602563 of 2003 (Registrar's Appeal (State Courts) No 720005 of 2013)
• Court: High Court (Singapore)

Seet Poh

Plaintiff

and

Lim Lee Cheng

Defendant

[2014] SGHC 78

Vinodh Coomaraswamy J

Divorce Petition No 602563 of 2003 (Registrar's Appeal (State Courts) No 720005 of 2013)

High Court

Family Law—Matrimonial assets—Matrimonial home—Consent order permitting either spouse to serve notice on other spouse of intent to purchase that other spouse's half-share in matrimonial home—Wife gave notice to husband of her intention to purchase his interest in matrimonial home—Spouses agreed on value but failed to implement transfer for over one year—Value of matrimonial home increasing in meantime—How to effect just and equitable division of matrimonial home given change in value

The parties were husband and wife. By a consent order dated 29 September 2004, the parties' matrimonial assets were to be equally divided between them. The consent order made express provision that if either spouse wished to retain a particular matrimonial asset, that spouse should serve notice in writing on the other spouse to that effect. The consent order also envisaged that, within 14 days after the notice, one of the spouses would commission a valuation of the asset to fix the amount that the transferee spouse had to pay the transferring spouse to retain that asset. The consent order left it to the parties to determine the time frame to effect the transfer and expressly gave the parties liberty to apply.

Between 2004 and 2009, neither party gave notice under the consent order of an intention to retain the matrimonial home. In 2004, the matrimonial home was worth $1.3 m. By 2009, its value had appreciated to somewhere between $1.4 m and $1.89 m.

On 16 September 2009, the wife gave notice to the husband of her intention to retain the matrimonial home. On 3 May 2010, after a lengthy correspondence, the husband accepted a valuation of $1.75 m proposed by the wife for the house. That valuation fixed the value of his half-interest at $875,000. For more than a year, neither party took any steps to compel the transfer of the husband's half-share to the wife in exchange for $875,000.

By a summons filed on 31 August 2011, the husband sought an order that the wife buy his interest in the matrimonial home at its current value within six months, failing which it be sold on the open market with the net proceeds to be divided equally between the parties. On 29 August 2012, the wife filed a summons seeking an order that the husband buy her interest in the matrimonial home at the price accepted by the husband in 2010 or at its market price in 2009, when she served her notice.

The district judge (‘the District Judge’) decided that it was just and equitable to split the difference between the parties' positions so that the husband would get some of the benefit arising from the rise in property prices over time but without the wife bearing the entirety of the corresponding burden. He thus ordered that the wife be entitled within six months to buy the husband's interest in the matrimonial home at a price equal to the average of the latest valuation in evidence before him as at the date of the order ($2.91 m as at 16 May 2012) and the previous valuation agreed by the parties ($1.75 m on 3 May 2010), failing which it be sold on the open market with the proceeds to be divided equally between the parties.

Held, dismissing the appeals:

(1) Whether a court was dividing matrimonial assets under s 112 (1) of the Women's Charter, supplementing a consent order for division of matrimonial assets so that it could be implemented pursuant to an expressly agreed liberty to apply provision or exercising its powers under s 112 (4) of the Women's Charter to fill a gap or lacuna in a consent order, the imperative had to remain the same: to achieve a result which was just and equitable in all the circumstances of the case: at [35] .

(2) On the facts of this case, it was neither just nor equitable for the husband to take the full benefit of the increase in the value of the matrimonial home after 2009 or for the wife to bear the full burden of that increase: at [46] .

(3) The order which the District Judge made was a sensible way of arriving at a just and equitable result. The latest available value for the matrimonial home in evidence before him was $2.91 m, its value on 16 May 2012. There was no evidence before the District Judge of the value of the matrimonial home in July 2013, the date on which he determined the husband's application. The result of the District Judge's decision was that the wife was entitled to buy the husband's half-share in the matrimonial home at $2.33 m, which was the average of $2.91 m and $1.75 m: at [46] and [47] .

(4) The value of the husband's half-share was $1.165 m, which was half of $2.33 m. That figure represented a 33% increase over the $875,000 which the husband agreed to accept on 3 May 2010 and which he was prepared to accept as late as 8 July 2011, just before he filed his application. That figure also represented a discount of 19% from the $1.455 m which was the value of his half-share based only on his valuation of $2.91 m. That was a just and equitable result taking a broad brush approach and bearing in mind all the circumstances of the case: at [47] .

AYM v AYL [2013] 1 SLR 924 (folld)

Chia Chew Gek v Tan Boon Hiang [1997] 1 SLR (R) 383; [1997] 2 SLR 209 (distd)

NK v NL [2007] 3 SLR (R) 743; [2007] 3 SLR 743 (refd)

Ong Boon Huat Samuel v Chan Mei Lan Kristine [2006] 4 SLR (R) 148; [2006] 4 SLR 148 (refd)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 24, 28 A, 29 A, 34

Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 1996 (S 110/1996)

Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2003 (S 557/2003)

Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2007 (S 672/2007) paras 6 (1) (b) , 6 (2)

Women's Charter (Cap 353, 2009 Rev Ed) s 112 (4) (consd) ;s 112 (1)

Foo Soon Yien and Natalie Chang (Bernard & Rada Law Corporation) for thepetitioner

Sham Chee Keat (Ramdas & Wong) for the respondent.

Vinodh Coomaraswamy J

Introduction

1 The parties are husband and wife. They married in 1978. From 1995, they started living apart, albeit under the same roof. The husband petitioned for divorce in 2003. The decree nisi was granted in September 2003 and made absolute in 2005. On 29 September 2004, in between those two dates, the parties entered a consent order for division of their matrimonial assets. After much correspondence between solicitors, sporadic litigation and ten years, the division of matrimonial assets is now nearly complete. The appeal before me concerns the division of the only remaining undivided matrimonial asset: the matrimonial home.

2 The respondent wishes to retain the matrimonial home. The petitioner has no difficulty with that. The dispute is over whether the petitioner agreed in 2010 to sell his half-share of the matrimonial home to the respondent at a price fixed by reference to its value then, in 2010; if so, whether he is bound to transfer the matrimonial home to the respondent at that price now; if not, how the price which the respondent is to pay to the petitioner for his half-share in the matrimonial home should now be determined.

3 By Summons entered No 650153 of 2011 filed on 31 August 2011, the petitioner sought, amongst many other things, an order that the respondent buy his half-interest in the matrimonial home at its ‘current value’ within six months, failing which it be sold on the open market with the net proceeds to be divided equally between the parties. Almost exactly a year later, on 29 August 2012, the respondent filed Summons entered No 650106 of 2012 seeking, also amongst many other things, an order permitting the respondent to buy the petitioner's half-interest in the matrimonial home at a price fixed by the parties in 2010 or at its market price in 2009.

4 The district judge (‘the District Judge’) who heard both applications ordered that the respondent be entitled to buy the petitioner's interest in the matrimonial home at a price equal to the average of the latest-available valuation adduced by the petitioner and the previous valuation by which the price had been fixed in 2010.

5 Dissatisfied with this order, both the petitioner and the respondent appealed. The appeal came before me. Having heard the parties' submissions, I agreed with the District Judge and dismissed both parties' appeals. The respondent let matters rest with my decision. The petitioner has appealed against my decision to the Court of Appeal. I therefore now set out the grounds of my decision.

The consent order

6 At the time of the decree absolute, the parties had considerable matrimonial assets to be divided. These assets include bank accounts in Singapore and Malaysia with balances of approximately $2.55 m and RM 1.75 m; shares in Singapore worth about $225,000; club memberships worth over $200,000; real property in Singapore then worth over $3 m; and real property in Malaysia then worth RM 1.75 m.

7 With what appear to be the best of intentions, and with each party having the benefit of advice from a very senior and experienced member of the family bar, they agreed to divide their matrimonial assets equally between themselves and, on 29 September 2004, to record that agreement in a consent order. Unfortunately, those good intentions did not follow through into the implementation of the consent order.

8 The consent order provides that all of the parties' matrimonial assets, including the matrimonial home, shall be divided equally between the parties. It includes a general provision that if either spouse wishes to retain a particular matrimonial asset, that spouse should serve notice in writing on the other spouse to...