Svetlana Shiyabutdinova v Raji Ramason

• Jurisdiction: Singapore
• Judge: Lewis Tan
• Judgment Date: 05 July 2022
• Neutral Citation: [2022] SGDC 147
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2470 of 2021 (Summons No 1383 of 2022)
• Published date: 15 July 2022
• Year: 2022
• Hearing Date: 01 July 2022,13 June 2022
• Plaintiff Counsel: Lee Nicolette Wanling (Phoenix Law Corporation)
• Defendant Counsel: Tan Anamah Nee Nagalingam (Ann Tan & Associates)
• Subject Matter: Civil Procedure,Costs,Security,Whether foreign plaintiff on short-term visa pass ordinarily resident in jurisdiction
• Citation: [2022] SGDC 147

Deputy Registrar Lewis Tan: Introduction

More than half a century ago, Lord Denning MR criticised the test of domicile as archaic and prone to uncertainty (In re P (G. E.) (An infant) [1965] 1 Ch 568 (“In re P”) at 583–584). In its stead, his Lordship preferred the test of ordinary residence. This test has “proved resilient” (R (on application of Cornwall Council) v Secretary of State for Health [2016] AC 137 at [37]) and is applied in various contexts, but notwithstanding its relative vintage, difficult questions continue to arise. For example, how does one ascertain the ordinary residence of a person who is mentally incapable of forming a settled intention to live (see R v Waltham Forest London Borough Council, ex parte Vale (unreported, 11 February 1985))? Can a person have more than one ordinary residence (see Tjong very Sumito and others v Chan Sing En and others [2011] 4 SLR 580 (“Tjong very Sumito”))? Or, as in this case, can a person be ordinarily resident in a jurisdiction if his or her visa status is on a short-term basis, without any certainty of a continued extension?

Facts

The Plaintiff, a Russian citizen, met the Defendant, a lawyer and Singapore citizen, in 2017. In January 2020, the Defendant asked the Plaintiff to marry him as he “was very much deeply in love with the Plaintiff and envisaged a life together as husband and wife”.¹ The Plaintiff agreed, and the parties’ marriage was registered in Singapore on 3 June 2020.

A day before their marriage, the parties signed a Deed, which the Plaintiff refers to as a “pre-nuptial agreement”, the key terms of which were: The Plaintiff had a child (hereinafter the “daughter”), over whom the Defendant had no rights over; The Plaintiff and the daughter could “at any time fly to Russia and any other countries of the world”; The Defendant undertook to take care of the Plaintiff and the daughter. Such care included a lump-sum transfer of $100,000 to the Plaintiff’s bank account in Singapore and a monthly payment of $2,000 to an account of the Plaintiff’s choice.

Despite their marriage, the parties never lived together for prolonged periods, as while the Plaintiff and her daughter moved into the Defendant’s Tanglin residence (“the Tanglin residence”), the Defendant continued to live with his mother.² Around March 2021, for reasons still to be determined, the parties’ relationship began to sour, and although the Defendant moved into the Tanglin residence in July 2021, problems continued to ensue. In November 2021, the Plaintiff took out the present action against the Defendant, seeking amongst others damages for the “worry, emotional distress and annoyance” caused by the Defendant’s infringement of her implied right to quiet, undisturbed and uninterrupted enjoyment of the Tanglin residences.

In her claim, the Plaintiff also sought damages for the Defendant’s cessation of his monthly payments of $2,000 and his failure to pay for the school fees of the Plaintiff and her daughter. According to her, these amounted to a breach of the pre-nuptial agreement, wherein the Defendant had undertaken to “support and provide everything that the Plaintiff and [her daughter] need[ed]”. These aspects of the Plaintiff’s claim were however struck out by the learned Deputy Registrar Elaine Lim Mei Yee (“DR Lim”) for being “factually and legally unsustainable” since they were “plainly claims for maintenance in the course of marriage”. Such claims for maintenance fall under ss 69 and 70 of the Women’s Charter 1961, and it was the Family Justice Courts, not the State Courts, which had jurisdiction over these claims. Incidentally, shortly after filing her State Courts claim, the Plaintiff also initiated a claim for maintenance in the Family Justice Courts.³

DR Lim also struck out the Plaintiff’s claim for specific performance owing to the Defendant’s purported failure to sponsor her Long-Term Visit Pass (“LTVP”). This was “legally unsustainable” given that specific performance is a discretionary remedy which will only be granted if it is just and equitable to do so in all the circumstances (citing Lee Chee Wei v Tan Hor Peow Victor and others and another appeal [2007] 3 SLR(R) 537 at [52]–[53]). In this case, the Defendant would have to give onerous undertakings pertaining to the Plaintiff’s conduct if he were to be her LTVP sponsor. This included the payment of a security deposit which would be forfeited in the event of a breach of the undertakings. Given the breakdown of relationship between the parties and as there was no way for the Defendant to ensure that the undertakings would be abided by, ordering specific performance would “cause the [D]efendant substantial hardship”.

Both aspects of DR Lim’s holding were upheld on a Registrar’s Appeal, with the learned District Judge agreeing that the claim for maintenance was within “the exclusive jurisdiction of the Family Justice Courts”. As regards the LTVP issue, the judge observed that the pre-nuptial agreement made no reference to the LTVP, and it was unnecessary to imply a term requiring the Defendant to be the Plaintiff’s LTVP sponsor given how onerous the obligation would be.

As a result, the Plaintiff’s claim against the Defendant remains alive only as regards her claim for harassment that took place between May to July 2021. Also, as the Defendant largely succeeded in his striking out application (which was upheld on appeal), $3,500 in costs remains due to him. However, such sums have not been paid as the Plaintiff claims that she “depend[s] on the Defendant for income and savings”, and her current financial plight has been caused entirely by the Defendant’s breach of the pre-nuptial agreement.⁴

Faced with the unpaid costs orders, the Defendant has taken out this application seeking security for costs of $50,000 from the Plaintiff given that she is ordinarily resident out of jurisdiction in Russia and as she has no ready assets in Singapore available for enforcement. The Defendant resists this application, arguing that she is ordinarily resident in Singapore, and further that it would be unjust to order security for costs as it is the Defendant’s own breaches that have caused her impecuniosity.

Ordinary residence Applicable principles

Order 23 r 1(1) of the Rules of Court (Cap 322, R 5, 2014 Ed) (“ROC 2014”) provides that: 1.—(1) Where, on the application of a defendant to an action or other proceeding in the Court, it appears to the Court —

(a) that the plaintiff is ordinarily resident out of the jurisdiction;

(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so;

(c) subject to paragraph (2), that the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein; or

(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,

then, if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just.

This entails a two-stage test. First, the applicant-defendant must show that one of the four grounds in O 23 r 1(1) applies (eg, that the plaintiff is ordinarily out of jurisdiction). Once this jurisdictional hurdle is crossed, the consideration shifts to whether it would be just in the circumstances to order security for costs: Tjong very Sumito ([1] supra) at [20].

As mentioned, the Defendant’s application is premised on the fact that the Plaintiff is ordinarily resident out of jurisdiction. This is a factual inquiry, and ordinary residence refers to “a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration” (Akbarali v Brent London Borough Council [1983] 2 AC 309 (“Akbarali”) at 343, cited in Tjong very Sumito at [22]). A person can have a wide range of reasons to choose to reside in a country, including “[e]ducation, business or profession, employment, health, family, or merely love of the place” (Akbarali at 344).

A person can be ordinarily resident in more than one jurisdiction, and the court would have jurisdiction to order security for costs against a person ordinarily resident in Singapore if he or she is simultaneously ordinarily resident out of jurisdiction (Tjong very Sumito at [33] and [50]). Hence, in Tjong very Sumito, security for costs was ordered against the plaintiffs even though one of them was ordinarily resident in Singapore and Indonesia.

The Plaintiff’s ordinary residence

Here, much was made about the Plaintiff’s Russian citizenship, but such focus was misplaced. While one’s residence may be the same as his or her nationality, this is not always the case, and residence may change over the course of one’s lifetime. Hence, in Logue v Hansen Technologies Ltd [2003] FCA 81 (“Logue”), the Federal Court of Australia (Victoria) found that the claimant, an Australian citizen who was born and educated in Australia, was ordinarily resident out of Australia as, amongst others, he had substantial assets offshore and no assets of any real value in Australia. By contrast, in Neil Duncan Gillies & anor v Liew Mei Ling &...