Tan Beow Hiong v Tan Boon Aik

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 04 August 2010
• Neutral Citation: [2010] SGHC 218
• Date: 04 August 2010
• Docket Number: Divorce Petition No 601644 of 2002 (Registrar’s Appeal No 720002 of 2010)
• Published date: 11 August 2010
• Plaintiff Counsel: The Appellant in person
• Hearing Date: 28 April 2010,26 May 2010,26 July 2010
• Defendant Counsel: Kristy Tan (Allen & Gledhill LLP) as amicus curiae.,Michael Eu and Josephine Kang (United Legal Alliance)
• Court: High Court (Singapore)
• Subject Matter: Contempt of Court

Steven Chong J: Introduction

This appeal, which arises from a lamentable series of events, raises a number of novel and difficult issues, and underscores the need (highlighted by Chan Sek Keong CJ at para 21 of His Honour’s speech at the Opening of the Legal Year 2010) for greater clarity with regard to the law of contempt.

Background Facts The Decree Nisi and the order of court granting the Respondent sole custody of the sale of the matrimonial flat

On 11 June 2002, a Decree Nisi dissolving the marriage of Mr Tan Boon Aik (“the Respondent”) and Mdm Tan Beow Hiong (“the Appellant”) was granted by District Judge (“DJ”) Emily Wilfred. The Decree Nisi contained a consent order that the parties:

[S]hall within 12 months from the date of the Decree Nisi Absolute sell the matrimonial flat at Blk 712, Pasir Ris St 72, #10-47, Singapore 510712, in the open market. Subject to refunding the parties’ CPF accounts for monies used towards the purchase of the said flat together with the accrued interest, payment of the outstanding mortgage over the said flat and payment of all necessary costs and expenses in connection with the sale, the net sale proceeds shall be divided equally between the [Respondent] and the [Appellant]…

The Decree Nisi was made absolute on 18 September 2002, and by the terms of the consent order, the matrimonial flat ought to have been sold by 18 September 2003.

However, this was not done. The Respondent in his affidavit dated 28 June 2006 alleged that this was due to inaction and/or obstruction by the Appellant. Consequently, the Respondent applied for, and on 20 July 2006 was granted, an Order of Court (the “20 July Order of Court”) that: 1. The [Respondent] to have sole conduct of the sale of the matrimonial flat at Blk 712 Paris Ris Street 72 #10-47, Singapore 510712. 2. The Registrar of the Subordinate Courts be authorised to execute, sign, seal and deliver the Option to Purchase, Transfer, or any deeds, instruments, and documents as required by the Housing and Development Board on behalf of the [Appellant] as joint tenant in connection with the sale of the said matrimonial flat.

…

The order of court dated 5 March 2009 ordering the Appellant to move out of the matrimonial flat within 5 months

Despite the 20 July Order of Court granting the Respondent sole conduct of the sale of the matrimonial flat and empowering the Registrar to execute the necessary documents on the Appellant’s behalf, the matrimonial flat remained unsold and occupied by the Appellant. The Respondent therefore applied on 23 September 2008 (in SUM No 650368 of 2008) for an order that the Appellant be compelled to move out of the matrimonial flat within eight weeks thereof. In his affidavit of even date in support of his application, the Respondent alleged that this was again due to the Appellant’s irrational refusal to cooperate with his conveyancing solicitors and/or property agents. In her affidavit dated 11 December 2008, the Appellant did not satisfactorily explain her continued failure to comply with the Decree Nisi and/or the 20 July Order of Court. In the circumstances, it was unsurprising that, on hearing the Respondent’s application, DJ Low Wee Ping made an order on 5 March 2009 (the “5 March Order of Court”) that:

The [Appellant] move out of the matrimonial flat at Blk 712 Pasir Ris Street 72 #10-47, Singapore 510712, within 5 months from the date of this Order.

The Appellant was therefore obliged to move out of the matrimonial flat by 5 August 2009. It should be noted that in para 27 of her affidavit dated 11 December 2008, the Appellant had requested for a period of “six months” in which to vacate the matrimonial flat, and that the deadline of 5 August 2009 was therefore either generous (since the Appellant was herself only asking for a deadline of six months from the date of her affidavit, ie 11 May 2009) or reasonable (since the Appellant was given five months to move out of the matrimonial flat when she had requested for six months).

Events from 5 March 2009 to 4 January 2010

Despite the lapse of the deadline of 5 August 2009, the Appellant remained in occupation of the matrimonial flat. On 16 August 2009, however, and notwithstanding that sole custody of the sale of the matrimonial flat had been granted to the Respondent, the Appellant (represented by one Ms Winnie Tan (aka Mah Hwee Khoon)) negotiated for the sale of the matrimonial flat to a pair of buyers represented by one Mr Fabian Leong (“Mr Leong”) (Ms Winnie Tan and Mr Leong are collectively referred to as “the agents”). Mr Leong, in his affidavit dated 6 January 2010, alleged that the Appellant had verbally assured him that she would be willing to move out of the matrimonial flat 30 days prior to completion of the sale, which, according to Mr Leong’s affidavit, was originally estimated to be sometime in mid-December 2009. According to paras 9 and 13 of Mr Leong’s affidavit, the Appellant had repeatedly assured him that she would move out of the matrimonial flat by 31 December 2009.

It seems that the Respondent did not object to the Appellant having conduct of the sale, notwithstanding the 20 July Order of Court granting him sole custody, as well as the 5 March Order of Court requiring the Appellant to move out by 5 August 2009, because it appeared to him that the Appellant was finally cooperating, and so as to avoid further acrimony between the parties which might otherwise have jeopardised the sale process. The Respondent’s conduct in this respect cannot be criticised though it was possible that the Appellant may have been led to believe, through the Respondent’s repeated indulgences that deadlines for compliance with court orders would not be strictly enforced.

Inexplicably, however, in October 2009, the Appellant refused to execute the option to purchase, but instead demanded that the Respondent’s solicitors apply to court to have the Registrar execute all conveyancing documents on her behalf in accordance with the 20 July Order of Court. Although this was done in November 2009, the Appellant informed Mr Leong (on 11 December 2009) that she would only move out of the matrimonial flat after completion of the sale.

This was unacceptable to both the Respondent and the buyers, but efforts to persuade the Appellant to leave the matrimonial flat by Ms Winnie Tan proved futile. On 30 December 2009, the Respondent’s solicitors wrote to the Appellant informing her that they would be taking possession of the matrimonial flat on 4 January 2010.

On 4 January 2010, the Respondent’s solicitors, together with Mr Leong, attempted to take possession of the matrimonial flat, but were met with strident resistance from the Appellant, who allegedly said that she would not leave unless an order of committal had been issued against her (para 25 of the affidavit of Eu Hai Meng dated 6 January 2010).

The order for committal

Perhaps understandably, on 6 January 2010, the Respondent made an ex parte application (SUM No 650001 of 2010) for leave to apply for an order of committal of the Appellant for contempt of the 5 March Order of Court. Leave having been granted the same day by the Deputy Registrar, the necessary documents were served on the Appellant on 7 January 2010, and after two rounds of pre-trial conferences, the application for the committal order was eventually heard by DJ Sowaran Singh on 1 March 2010.

At the hearing, the Appellant gave evidence that she did not move out within the five months as directed by the 5 March Order of Court because she understood that since the completion for the sale of the matrimonial flat was only to take place on 1April 2010, she need not move out prior to that date. She further added that based on the completion date of 1 April 2010, she had secured a rental flat commencing on 1 April 2010 and that she would move out by then. Under cross-examination, Respondent’s counsel informed her that the buyers were not agreeable to give her more time beyond 8 or 9 March 2010 (ie a week from the hearing). As legal completion was scheduled to take place on 1 April 2010, it was not entirely clear to me on what basis could the buyers have required the sellers, including the Appellant, to provide vacant possession any time prior to 1 April 2010. It later emerged from her cross-examination that, although the buyers were originally not prepared to let the Appellant move out later than 8 or 9 March 2010, the Appellant was eventually able to persuade them to allow her to move out by noon on 14 March 2010. It should be noted that this date was, therefore, not imposed on the Appellant by DJ Sowaran Singh; rather, it was a date which was mutually agreed, as the transcript revealed: Q: The buyer has told us that he is not prepared to give you more than a week to move out. Can you move out in a week’s time? A: Can I request for two weeks? Q: The buyer cannot do so because he is staying with his in-laws. So can you move out by 8 or 9 March 2010. A: I am more confident in finding a place in two weeks by 14 March 2010.

…

P/C: The buyer is agreeable provided she moves out by noon on 14 March 2010. Q: Will you move out by noon on 14 March 2010? A: Yes. Thank you.

[Emphasis added]

At the conclusion of the hearing, DJ Sowaran Singh held that the Appellant was guilty of contempt for disobeying the 5 March Order of Court by failing to move out of the matrimonial flat within five months of the date of the court order, and committed her to 30 days imprisonment for her contempt (“the Committal Order”). However, DJ Sowaran Singh ordered that her sentence was not to be executed if the Appellant moved out of the matrimonial flat by noon on 14 March 2010. Service of the Committal Order was dispensed with since the Appellant was present and had full notice of the contents of the order, and the Appellant was ordered to pay the Respondent’s costs.

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