TBX v TBY

• Jurisdiction: Singapore
• Judge: Janice Chia
• Judgment Date: 10 April 2015
• Neutral Citation: [2015] SGFC 46
• Court: Family Court (Singapore)
• Hearing Date: 21 January 2015,18 February 2015,29 October 2014,03 September 2014
• Docket Number: Divorce No. 2808 of 2013, Summons No. 35061 of 2013
• Plaintiff Counsel: Mr Campos Godwin Gilbert (M/s Godwin Campos LLC)
• Defendant Counsel: Mr Ahmad Nizam Bin Abbas (M/s Straits Law Practice LLC)
• Subject Matter: S99(2) Women's Charter,Applicable principles for setting aside an Interim Judgment which was properly obtained,'Material Facts' test.
• Published date: 06 January 2016

District Judge Janice Chia:

Introduction

The Defendant (wife) applied to set aside the Interim Judgment granted to the Plaintiff (husband) on 28 October 2013. At the conclusion of the hearing, I dismissed the Defendant’s application with costs. The Defendant has appealed against my orders and I set out my reasons here.

Background

The Plaintiff commenced the present divorce proceedings on the ground of the Defendant’s unreasonable behaviour on 6 June 2013. The Defendant was personally served on 14 August 2013. The Defendant personally filed a Memorandum of Appearance on 16 August 2013 but failed to file a Defence. Interim Judgment was subsequently granted on 28 October 2013 on an uncontested basis on the Plaintiff’s Statement of Claim and Statement of Particulars (Amendment No. 1) (hereinafter referred to as “SOP”). The Defendant filed the present application on 22 November 2013. For completeness, the Defendant had filed a Personal Protection Order (“PPO”) complaint and a maintenance complaint against the Plaintiff. At the first hearing of this application, the Plaintiff’s counsel sought an adjournment pending the outcome of the PPO trial. This was granted. The decision on the PPO trial was delivered on the same day before the hearing of this application. The PPO was granted against the Plaintiff in favour of the Defendant. At the hearing before me, the Plaintiff’s counsel had informed me that his client intends to appeal the decision of the PPO trial. Nonetheless, I had directed that the hearing is to proceed.

The Defendant’s position

The Defendant claims that she had failed to file her Defence in time due to the following reasons: Multiplicity of concurrent proceedings There were a total of 3 ongoing Court proceedings involving the same parties at the material time, namely MSSxxx/2013, SSxxx/2013 and the present divorce matter. She was overwhelmed by the deadlines for all 3 actions. The deadlines for her to file reply affidavits for MSSxxx/2013 and SSxxx/2013 were on 2 September 2013. The deadline for her to file a defence to the divorce would expire on 5 September 2013. At the material time when she was served with the Writ of Divorce, she was represented by the Legal Aid Bureau (“Bureau”) for MSSxxx/2013 and SSxxx/2013, but she was not represented for the divorce proceedings. It was also at this time when the Bureau discharged themselves from acting for her in the maintenance and PPO proceedings. Therefore, she did not file the Defence in time. No access to the letterbox of the matrimonial home She had not access to the letterbox after the Plaintiff left the matrimonial home on 23 May 2013. Therefore, she had no notice of the Status Conference of 26 September 2013. She only managed to gain access to the letterbox on 27 October 2013, 1 day before the grant of Interim Judgment, when she engaged a locksmith to open the letterbox, at her father’s advice.

It is also the Defendant’s position that the Interim Judgment should be set aside for the following reasons: It is clear that the Defendant intended to defend the divorce as the Defendant had applied for a PPO against the Plaintiff based on the incident on 21 May 2013. This is the same incident which the Plaintiff had relied on in his SOP to allege that the Defendant had behaved unreasonably. Therefore it would not make sense for the Defendant to apply for a PPO and yet not take steps to defend the divorce. Most part of the Plaintiff’s SOP centred around the incident of 21 May 2013, and the fact that a PPO was granted to the Defendant against the Plaintiff for the same incident will support the Defendant’s arguments that there has been material non-disclosure by the Plaintiff which would go towards the root of Interim Judgment. There are many untruths in the Plaintiff’s SOP, which the Defendant wishes to rebut.

The law

The power of the Court to set aside an Interim Judgment is set out in s99(2) of the Women’s Charter. Notwithstanding the Defendant’s Written Submissions, both counsels agree during the hearing that the applicable test for setting aside an Interim Judgment is the ‘material facts test’ which is laid out in Chng Yock Eng v Kwa Tech Meng [2004]SGDC268. In short, the Defendant must show that the Interim Judgment ‘could be attacked by any other material fact which was not disclosed to court’ (as elaborated in the case of Tan Bee Hoon v Goh Leong Heng Arus Chen Mei Yun [2005]SGDC221). To put it in another way, the facts which were not disclosed must of such materiality that the Court would not have granted the Interim Judgment had the same facts been disclosed to the Court. It is clear that this is a far higher standard than the standard required to set aside a default judgment, being “reasonable prospect of success”. The burden of proof lies with the party seeking to set aside the Interim Judgment. The question therefore arises as to whether the Defendant can show that the Plaintiff has failed to disclose material facts which would go to the root of the Interim Judgment.

Applying the principles to the facts of the case

I first turn to the reasons for the...