Smith Brian Walker v Foo Moo Chye Julie

• Jurisdiction: Singapore
• Judge: Steven Chong JC
• Judgment Date: 29 October 2009
• Neutral Citation: [2009] SGHC 247
• Plaintiff Counsel: Tan Siew Kim (Wong Tan & Molly Lim LLC)
• Published date: 03 November 2009
• Court: High Court (Singapore)
• Defendant Counsel: Subramanian s/o Ayasamy Pillai (ACIES Law Corporation)
• Subject Matter: Family Law

29 October 2009 Judgment reserved.

Steven Chong JC:

1 The respondent husband and appellant wife were married on 6 March 1996. The husband is a British citizen and the wife is a Singaporean. The marriage lasted 11 years and the couple has been living separately since July 2006. They have no children from this marriage. The husband has three children from his previous marriage. The husband filed for divorce on 9 February 2007 and interim judgment of divorce was granted on 18 May 2007 on the ground that both parties had behaved in such a way that each of them cannot reasonably be expected to live with the other. The District Judge who heard the parties on the ancillary matters made the following orders on 23 March 2009:

(a) The matrimonial flat at 220 Westwood Avenue #02-07 The Floravale shall be sold in the open market and the proceeds of sale after payment of the outstanding mortgage and the costs and expenses of sale shall be divided in the proportion of 67% to the wife and 33% to the husband. Each to reimburse their respective Central Provident Fund (“CPF”) accounts from their own share of the net proceeds of sale.

(b) The husband is to pay to the wife $23,100 being 15% of the market value of 8 Langlaw Road, Mayfield, Dalkeith, Scotland.

(c) Each party to keep all other assets in his or her own name.

(d) The parties’ joint accounts shall be closed and any balance in the accounts to be divided equally.

(e) The husband is to pay the wife $12,000 as lump sum maintenance.

(f) Each party to bear their own costs.

Issues on appeal

2 The wife has appealed against the orders made by the District Judge in Smith Brian Walker v Foo Moo Chye Julie [2009] SGDC 256 (“GD”). The appeal relates to three issues:

(a) whether the sale proceeds from the matrimonial flat should be distributed in the proportion of 67% to the wife and 33% to the husband before or after the full reimbursement of the amounts drawn out from the parties’ CPF accounts so as to achieve a fair and equitable distribution of the sale proceeds;

(b) whether apportioning 15% share in the Scottish property to the wife is fair, given that the property was purchased with the consultancy fees earned from the Shanghai Sun Island International Golf Club project (“Shanghai Project”) which was awarded to the husband primarily on the strong recommendation of the wife; and

(c) whether the maintenance of $12,000 ($1,000 for 12 months) is fair and reasonable.

3 The wife initially also appealed against the District Judge’s decision in relation to a loan of $24,113.56 which she had extended to the husband. The husband claimed that the amount has been repaid. The District Judge made no order on the wife’s claim for repayment of the loan amount on the ground that the claim did not come within s 112 of the Women’s Charter (Cap 353, 1997 Rev Ed) (“Women’s Charter”). During the appeal, counsel for the wife commendably conceded that the disclosed statements appear to indicate that some payment may have been made for the loan. Accordingly, the appeal as regards the loan was not pursued by the wife.

The matrimonial flat

4 In the court below, the District Judge divided the sale proceeds of the matrimonial flat in the proportion of 67% to the wife and 33% to the husband. However, each party had to reimburse their respective CPF accounts from their own share of the sale proceeds. In other words, the division of the sale proceeds is at source and not after reimbursement of their CPF accounts. Before me, the wife accepts the apportionment at 67:33 in her favour. However, she submits that the apportionment should apply to the net sale proceeds after repaying the parties’ respective CPF accounts. This was the same submission made by the wife in the court below.

5 There is no hard and fast rule whether the sale proceeds should be divided at source or after repayment of the parties’ respective CPF accounts. The approach to divide the net proceeds after repayment of CPF found favour in Wang Shi Huah Karen v Wong King Cheung Kevin [1992] 2 SLR 1025 and recently by the Court of Appeal in Ong Boon Huat Samuel v Chan Mei Lan Kristine [2007] 2 SLR 729. Equally, the approach to apportion at source has also been adopted in several other instances. It will be neither possible nor helpful to attempt to formulate rigid guidelines to assist in deciding whether the apportionment should be made before or after refund of the CPF contributions. This exercise of judicial discretion will depend on a number of imponderables such as their contributions and the reasons why contributions were made in particular proportions, whether the parties had pooled all their assets and in particular their cash, whether the market value of the property has risen or fallen since its acquisition, the amount of CPF and accrued interest to be refunded to the CPF account and the outstanding loan, if any. In the final analysis, each case must necessarily be assessed and decided on their facts. After all, the issue is not which approach should be preferred per se but rather which approach would achieve a fair and equitable distribution taking into account all the factors and the contributions from both parties. In this regard, it is instructive to refer to the observation by Justice V K Rajah in the case of NI v NJ [2007] 1 SLR 75 at [18] (quoted with the approval by the Court of Appeal in Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR 520 at [34]):

The division of matrimonial assets is a subject to be approached with a certain latitude; it calls for the application of sound discretion rather than a purely rigid or mathematical formulae. All relevant circumstances should be assessed objectively and holistically. Generally speaking, however, when a marriage ends a wife is entitled to an equitable share of the assets she has helped to acquire directly or indirectly.

6 In the court below, the wife submitted that the market price of the matrimonial flat was approximately $450,000 whereas the husband submitted that the value was closer to $550,000. In arriving at her decision, the learned District Judge accepted the market value as $550,000. For this appeal, I will also apply the value at $550,000 as accepted by the court below. Further this was also the value originally submitted by the husband.

7 It is the wife’s case that if the sale proceeds are divided at source, her share would be insufficient to fully refund her CPF account. In the court below, the outstanding home loan which was used by the District Judge to arrive at the net value of the flat was $198,999.18. This was the outstanding loan as at September 2007. Since then, further repayments have been made and the outstanding loan presently stands at about $157,000. In addition, it was agreed that agent’s commission and legal fees in the sum of $12,000 and $1,500 would be payable for the sale of the matrimonial flat. If the sale proceeds are divided at source, the wife’s share would be insufficient to fully repay the CPF account together with accrued interest as at September 2007. It will result in a shortfall of about $4,373.19. The husband would instead receive the sum of $53,164.13 after full reimbursement of his CPF account. The shortfall would be even more significant if the outstanding loan of $198,999.18 as adopted by the District Judge was used instead. If the accrued interest is calculated as of October 2009, the shortfall would be even greater:

Sale Price			$550,000.00
Less
	(a)	Outstanding Mortgage	$157,000.00
	(b)	Agent’s commission (2%)	$ 12,000.00
	(c)	Legal fees	$1,500.00; __________
Balance of sale proceeds			$379,500.00; __________
Wife’s share (67%)			$254,265.00
Less	(a)	CPF	$233,755.92
	(b)	Interest (as at Sept 2007)	$24,882.27; __________
Balance to the wife			($4,373.19); __________
Husband’s share (33%)			$125,235.00
Less	(a)	CPF	$66,390.15
	(b)	Interest (as at Sept 2007)	$5,680.72; __________
Balance to the husband			$53,164.13; __________

8 If the sale proceeds are divided after full reimbursement of the CPF contributions, the wife and husband will instead receive net sums of about $32,689.93 and $16,101.0l respectively.

Sale Price			$550,000.00
Less	(a) Outstanding Mortgage		$157,000.00
	(b) CPF Contributions:
		Wife’s CPF	$233,755.92
		Interest	$24,882.27
		Husband’s CPF	$66,390.15
		Interest	$5,680.72
	(c) Agent’s commission (2%)		$12,000.00
	(d) Legal fees		$1,500.00; ______________
Balance of sale proceeds			$48,790.94
Wife’s share (67%)			$32,689.93
Husband’s share (33%)			$16,101.01

9 During the hearing of the appeal, there was some confusion as to the financial contributions made by both parties towards the initial payment for the matrimonial apartment. At my suggestion, both parties produced an agreed schedule for the initial payment. The agreed initial payment for the matrimonial flat amounting to $260,000 came from the following sources:-

(a) Wife’s CPF account	$169,550.00
(b) Husband’s CPF account	$20,450.00
(c) Loan extended by the husband’s employer; (Melchers Project Management Pte Ltd); (“Melchers”)	$70,000.00

10 It is not disputed that part of the initial payment was funded by a loan from the husband’s employer, Melchers, in the tune of $70,000. The husband claimed that the loan was fully repaid by him while the wife maintains that $40,000 was repaid with her funds. In the court below, the District Judge disallowed the wife’s further affidavit to adduce additional documents on the ground that no reason was offered why they were not furnished earlier. The additional documents concern the bank statements of their joint accounts. The purpose was to show, inter alia, that the wife’s funds had been used to repay $40,000 to Melchers. I see no reason why the documents should be excluded given that they relate to the...