Tan Sock Hian v Eng Liat Kiang

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 07 April 1995
• Neutral Citation: [1995] SGHC 95
• Citation: [1995] SGHC 95
• Defendant Counsel: Mohan Pillay, Stephen Soh and Joy Tan (Wong Partnership)
• Published date: 19 September 2003
• Plaintiff Counsel: Davinder Singh and Hri Kumar (Drew & Napier)
• Date: 07 April 1995
• Docket Number: Divorce Petition No 2565 of 1994
• Court: High Court (Singapore)
• Subject Matter: Cross-examination of parties in interlocutory proceedings,Whether wife can be cross-examined on supporting affidavit,Principles governing exercise of discretion by court,Failure to file supporting affidavit or state grounds when applying to cross-examine,Wife,Application for interim maintenance,Whether application should be allowed,Maintenance,Whether incurable irregularities,Civil Procedure,Motion (interlocutory),Family Law

The parties were married in 1943 according to Chinese customary law. In 1948, the husband contracted a second marriage, again according to Chinese customary law. Thereafter the husband, the wife and the second wife lived together in one household until May 1994 when the wife left the then matrimonial home. On 18 September 1994, she filed the divorce petition herein on the basis that the marriage had irretrievably broken down because the husband had behaved in such a way that she could not reasonably be expected to live with him. Eight days later, the wife filed a summons-in-chambers asking that the husband be required to pay her reasonable maintenance pending the hearing of the divorce petition.

On 4 October 1994, the husband entered an appearance to the divorce petition and indicated that he was going to contest it. On the same day, he took out an application for an order that the wife be required to attend at the court for cross-examination on the affidavit affirmed by her in support of her application for maintenance. The husband`s application was heard before the assistant registrar on 10 October 1994 and was dismissed. The husband then appealed. I heard the appeal on 27 January 1995 and dismissed it. The husband has appealed again and I therefore give my reasons for the dismissal.

Two issues were considered during the hearing of the appeal: the first related to the reason why the original application was dismissed below and the second to the merits of the application.

(1) Position below

It was common ground that the original application made by the husband was procedurally defective in that the grounds of the application were not stated in the summons-in-chambers. The application therefore did not comply with O 32 r 1 of the Rules of the Supreme Court 1990 (RSC) in that it did not follow Form 62.

Mr Pillay, counsel for the husband, contended that the failure to state the grounds of application in the summons was a mere irregularity that could be cured by an amendment under O 2 r 1 of the RSC. It should be noted that sub-r 1 of that Rule provides:

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirement of these Rules, whether in respect of time, place, manner, form or content or in any respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings or any document, judgment or order therein.

Counsel relied on the case of Carmel Exporters (Sales) v Sea-land Services Inc . In that case after the writ was served on the defendants, they issued and served a summons for an order that the writ be set aside on the ground that the court had no jurisdiction in the matter. The application was taken out under O 12 r 8 of the English RSC but the defendants failed to comply with that rule in that they did not state the grounds of the application in the summons itself or serve the affidavit in support within the period required by the rule. The plaintiffs there contended that these procedural errors were fatal and that the defendants` application must therefore fail. This contention was rejected on the basis that O 2 r 1 of the English RSC (which is in pari materia with our own O 2 r 1) applied to the position. In his judgment, Goff J said at p 1075:

Now it will at once be observed, on a straightforward reading of O 2 r 1(1), there have in the present case been in connection with the proceedings, by reason of something left undone, two failures by the defendants to comply with the requirements of O 12 r 8: and it would appear to follow, first that each of such failures shall be treated as an irregularity; second, that neither shall nullify the step taken by the defendants in the proceedings, that is, their application for an order that the plaintiffs` writ be set aside; and third that the court has a discretion either to set aside the defendants` application or to exercise it power under the rules to allow such an amendment to be made or to make such order dealing with the proceedings generally as it thinks fit.

It was urged upon me that the present case was on all fours with the above decision and, accordingly, I should allow...