Sim Kwai Meng v Pang Moh Yin Patricia and another

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 21 January 2022
• Neutral Citation: [2022] SGHC(A) 1
• Citation: [2022] SGHC(A) 1
• Docket Number: Civil Appeal No 10 of 2021
• Published date: 26 January 2022
• Year: 2022
• Plaintiff Counsel: Navinder Singh and Farah Nazura Binte Zainudin (KSCGP Juris LLP)
• Defendant Counsel: Sean Francois La'Brooy, Cumara Kamalacumar and Sophia Rossman (Selvam LLC)
• Hearing Date: 22 November 2021
• Court: High Court Appellate Division (Singapore)

Woo Bih Li JAD (delivering the grounds of decision of the court): Introduction

This appeal concerns a dispute on the terms of an oral agreement made on 22 June 2015 between a husband (“H”) and wife (“W”) before they were divorced. H is the appellant and W is the first respondent. The second respondent is W’s mother (“M”), who is involved only because she is a co-owner of a property, as elaborated below.

The parties owned two properties:¹ a property in Signature Park (“SP”) which the parties owned as joint tenants; and a property in Mulberry Avenue (“MA”) which was owned as follows:

(i)	50%	:	W
(ii)	33.3% (one-third)	:	H
(iii)	16.7% (one-sixth)	:	M

According to H, all that was orally agreed on 22 June 2015 was that SP would be sold.²

In contrast, W’s account was that the agreed terms of the oral agreement were as follows:³ She would consent to H’s request to sell SP. H would transfer his interest in MA to W. W would transfer her half share of the sale proceeds of SP to H, after deducting $180,000 to compensate her for loss of rent which she would forego as a result of the sale of SP.

As can be seen, there was no dispute about the existence of an oral agreement as such. The dispute was on the existence of an oral agreement based on the terms alleged by W. We will refer to such terms as W’s oral agreement or “the WOA” for convenience.

The main issue before us was whether W was precluded from relying on the WOA by the doctrine of res judicata. There was also the question of whether H himself was precluded by the doctrine of res judicata from raising res judicata against W.

W and M were the plaintiffs below. The trial was heard by Dedar Singh Gill J (“Gill J”), who allowed W’s claim on the WOA and dismissed a counterclaim by H for damages as we elaborate later below. H appealed. On 22 November 2021, we allowed H’s appeal on W’s claim and dismissed his appeal in respect of the dismissal of his counterclaim. We also ordered a sale of MA on the terms stated in our oral judgment delivered that day. Each party was to bear his/her own costs of the trial and the appeal, including disbursements, and the costs of two previous interlocutory applications in AD/SUM 30/2021 and AD/SUM 20/2021. We now set out our grounds of decision.

Background

We recount the history underlying this appeal briefly here. These events are important and will be dealt with in greater detail subsequently.

Date	Event
13 June 1981	H and W are married.4
22 June 2015	H and W enter into the oral agreement.5
September 2015	SP is sold.6
4 November 2015	H files FC/D 4974/2015 (“the Divorce Suit”) on the basis of four years’ separation.7
12 April 2016	W files HC/S 364/2016 (“the Previous Suit”), claiming proprietary estoppel arising out of the WOA.8
9 May 2016	Interim judgment in the Divorce Suit is granted.9
30 May 2016	AR Shaun Pereira orders a stay of the Previous Suit on H’s application.10
5 September 2017 10 October 2017 16 October 2017	DJ Toh Wee San (“DJ Toh”) hears the Divorce Suit in the Family Court.11
3 November 2017	DJ Toh decides:12 W is to have the first right to buy H’s interest in MA for $840,000. If she chooses to exercise this right, she is to confirm this in writing within four weeks of the order. Alternatively, the parties are to jointly sell MA in the open market and complete the sale within six months from the date of final judgment. H and W are to each retain the assets in their own name and/or possession. DJ Toh makes no order for maintenance13 (this is irrelevant for present purposes, and no more will be said about it). DJ Toh grants the parties liberty to apply.14
14 November 2017	Certificate of Final Judgment in the Divorce Suit is issued.15
16 November 2017	W files an appeal in HCF/DCA 153/2017 against DJ Toh’s decision (“the HCF Appeal”).16
26 February 2018	DJ Toh issues her grounds of decision (“DJGD”).17
16 March 2018	W discontinues the Previous Suit.18
10 August 2018 6 September 2018	Tan Puay Boon JC (“Tan JC”) hears the HCF Appeal in the Family Division of the High Court.19
8 October 2018	Tan JC decides the HCF Appeal, upholding DJ Toh’s order granting W the first right to buy H’s interest in MA for $840,000, but setting aside the alternative order for sale of MA in the open market. The liberty to apply order from DJ Toh is retained.20
8 November 2018	H files HC/OS 1359/2018 (“OS 1359”) in the High Court naming W and M as defendants.21 H seeks an order for MA to be sold and for the proceeds to be divided.22
15 November 2018	M passes away.23 Subsequently, W becomes the personal representative of M’s estate and OS 1359 is amended to reflect this.24
22 February 2019	W files HC/SUM 937/2019 (“SUM 937”) to convert OS 1359 into a writ action.25 W argues that the existence of the WOA constitutes a substantive dispute of fact.26 H argues res judicata against W, based on the decisions of DJ Toh and Tan JC in the Divorce Suit.27
19 March 2019	AR Kenneth Choo (“AR Choo”) of the High Court finds that there is no abuse of process by W and W is entitled to pursue her claim based on the WOA. He decides that OS 1359 is to proceed as though begun by writ.28 W and M’s estate are to be the plaintiffs and H is to be the defendant in OS 1359 as converted into a writ action.29
1 April 2019	H files HC/RA 104/2019 (“RA 104”) against AR Choo’s decision.30
2 May 2019	RA 104 is heard before Lee Seiu Kin J (“Lee J”) of the High Court, who directs the parties to seek clarification from Tan JC in the Divorce Suit under the liberty to apply provision made in the Divorce Suit.31
8 July 2019	The parties appear before Tan JC. Tan JC refers the parties to the position taken by W during the HCF Appeal.32 Tan JC asks the parties to consider the correct mode to proceed with the division of matrimonial property, whether in a civil suit before the High Court or in the Family Division of the High Court.33
2 August 2019	W files HC/SUM 3887/2019 (“SUM 3887”) in OS 1359 to adduce further evidence.34
6 August 2019	Lee J dismisses RA 104 and makes no order on SUM 3887.35

Thereafter, pleadings were filed. OS 1359 became HC/S 980/2019 (“the Present Suit”). On 25 and 26 August 2020, the Present Suit was heard by Gill J of the High Court.

On 21 January 2021, Gill J issued his judgment (“the Judgment”). He found that H was not precluded by the decision of Lee J in RA 104 from arguing that W was precluded from raising the WOA (at [41]). However, he also found that W was not precluded by the decisions of DJ Toh and Tan JC in the Divorce Suit from relying on the existence of the WOA (at [46]–[47]). On the evidence, he found that W had established the existence of the WOA (at [52]–[78]).

H then appealed against that decision to the Appellate Division of the High Court. His Appellant’s Case was focused on the question of res judicata against W and did not address the evidence about the WOA.

Our decision The proceedings between the parties

Before addressing the issues raised in this appeal, it is necessary to consider in some detail the prior proceedings between the parties and their proper interpretation. These proceedings largely consisted of a series of events which gave rise to confusion and misunderstanding. At all material times, W was represented by solicitors, although she was represented by one set of solicitors before DJ Toh and Tan JC in the Divorce Suit and a different set of solicitors for OS 1359 and the Present Suit. H was represented by solicitors before DJ Toh and Tan JC in the Divorce Suit, but he represented himself before AR Choo and Lee J. Before us, he was represented by the solicitors who had represented him in the Divorce Suit. For convenience, we will use the expression “family justice court” or “FJC” to refer to the Family Court and the High Court (Family Division) or either of them as the context warrants.

The first important point of reference is the DJGD. At [7]–[9], DJ Toh observed as follows:³⁶ 7. W asserted that H agreed to transfer his 1/3 share in the matrimonial property to W in exchange for her agreement to sell the investment property urgently. Each of them will get an equal share of the net sale proceeds and W is entitled to deduct further sums ($180K and monies from the parties’ common funds) from H’s proceeds as these were monies owing to her. These were due to H’s mounting debts … The investment property was successfully sold but H refused to transfer his 1/3 share in the matrimonial property to W. W submitted that H is estopped from denying the existence of the oral agreement from the various evidence produced by her – i.e. text messages between the parties, the circumstances that existed including a hand written agreement and supporting evidence from their children, W’s mother, relatives and friend. 8. H’s countered that the court should not consider W’s allegations since the court do [sic] not recognize pre and post marital agreements. Further, the alleged oral agreement is also not an agreement made in contemplation of divorce. H also contested W’s story in respect of the finer details surrounding their oral agreement. H asserted that W had tried to force him to sign a handwritten agreement which he refused and this ended in a scuffle. The son was also involved and this episode became an ugly family violence incident in which police reports, medical attention and a family violence protection order were procured. 9. I accepted H’s arguments, as supported by section 112 of the WC. [footnote (in original): In particular, subsection (e) states that any agreement between the parties with respect to ownership and division of...