TDK v TDL

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 26 October 2018
• Neutral Citation: [2018] SGFC 96
• Court: Family Court (Singapore)
• Docket Number: Divorce Suit No D 2386/2012
• Year: 2018
• Published date: 10 November 2018
• Hearing Date: 17 July 2018
• Plaintiff Counsel: Anuradha d/o Krishan Chand Sharma (Winchester Law LLC)
• Defendant Counsel: Dhanwant Singh (S K Kumar Law Practice LLP)
• Subject Matter: Family Law,Matrimonial assets,Variation
• Citation: [2018] SGFC 96

District Judge Wong Keen Onn: Introduction

This is the Defendant’s (TDL’s) appeal against the decision on 17 July 2018 in Summons No. 1717/2018 to vary the Order of Court ORC 3389/2017 dated 8 June 2017¹ to facilitate the sale of the matrimonial flat (“flat”). The variation was to order that “the Defendant shall not by himself or through any third party disrupt or interfere with the conduct of sale of the matrimonial flat (“flat”)” and “shall leave and leave the said flat within 5 weeks from the date of this Order” and other consequential orders.

Background

This variation of the Ancillary Order arose from a protracted contested divorce matter that has spanned over nearly six years². The parties were married on 8 December 1990 in India and they relocated to Singapore sometime in the 1990s. The Plaintiff (“ex-wife” or “TDK”) is now 48 years old, a Singapore Permanent Resident. She became a homemaker after the marriage. The Defendant (ex-husband TDL) is 57 years old, now a Singapore citizen, went to work outside Singapore for a significant length during the marriage. They have 2 children, a 26-year-old daughter and a 18-year-old son. On 18 May 2012, the Plaintiff (“ex-wife”) filed for divorce in Singapore on the grounds of the Defendant’s unreasonable behaviour. The Defendant (“ex-husband”) applied to stay the proceedings on forum non-conveniens and contested the divorce proceedings. On 6 August 2014, the Court, after a contested divorce hearing, granted the Interim Judgment based on the Plaintiff’s claim³.

Ancillary Order, notices of appeals and Variation order in 2017

Subsequently on 15 July 2016, the Court made an Ancillary Order⁴. The original Ancillary Order allowed the Defendant to buy over the Plaintiff’s 40 % share in the xxx matrimonial flat within 4 months of the Final Judgment, failing which it was to be sold on the open market⁵. No appeal was filed within 14 days of that decision, which time had expired on 29 July 2016. The Plaintiff extracted the Final Judgment on 1 August 2016⁶.

On 8 August 2016, the Defendant filed an application (OSN xxx/2016) for an extension of time to appeal against the Ancillary Order. This was struck out by the Assistant Registrar (‘AR”)⁷. The Defendant’s appeal against the AR’s decision was dismissed on 13 October 2016 by the High Court. On 2 November 2016, the Defendant again filed another application (OSN xxx/2016) seeking further leave to file a notice of appeal out of time. This further application for extension of time to appeal was dismissed by the High Court on 18 April 2017⁸. The Defendant appealed against the decision to the Court of Appeal. On 19 March 2018, the Court of Appeal dismissed the Defendant’s appeal⁹.

In the meantime, the Plaintiff tried to sell the property and this was thwarted by the Defendant. She then successfully varied the Ancillary Order in Court to provide for selling of the matrimonial flat, that she has sole conduct of sale and that the Defendant was to deliver vacant possession three (3) weeks prior to the scheduled completion date. The Defendant filed a notice of appeal but the appeal lapsed and was deemed withdrawn on 25 October 2018¹⁰.

Variation Order made

On 18 May 2018, the Plaintiff filed this Summons 1717/2018 to vary the Order of Court ORC 3389/2017 dated 8 June 2017 (which varied the Ancillary Order) to order the Defendant and his tenants to vacate the flat within 7 days because they had prevented the sale of the flat by making it near impossible to allow prospective buyers to view the flat. The Defendant resisted the application. After considering the affidavits and hearing the parties’ submissions, I made the following order: Defendant shall vacate and be excluded from the matrimonial flat situated at xxx (hereinafter referred to as "Teck Whye flat") within 5 weeks from the date of this Order. The Defendant shall not arrange or cause to bring any other persons to enter into or stay in or occupy the Teck Whye flat from the date of this Order. To facilitate the conduct of the sale for the Teck Whye flat, the Defendant shall not by himself or through any agent, servant or third party, interfere or disrupt the conduct for sale of the Teck Whye flat. In addition, the Defendant shall not be present or be within the vicinity of the Teck Whye flat and the Plaintiff and/or housing agents bring prospective buyers to view the said flat. Prayer 3(3) of the Order of Court dated 8th June 2017 to be deleted. Leave granted to withdraw Prayers 2 (b and c), 3 and 5 of FC/Sum 1717/2018 Costs of $2,000.00 to be paid by the Defendant and the same to be deducted from his share of the net sale proceeds of sale Penal Notice to be inserted for the Defendant.

The Defendant has appealed against my decision. I now give my reasons for the decision.

My Decision in Summons 1717/2018

This is an application by the Plaintiff (ex-wife) to vary mainly the paragraphs 3, 5 and 6 of the Order of Court dated 8 June 2017 (referred to as “the June 2017 Order”)¹¹ by seeking an order for the Defendant and all third parties to vacate the matrimonial flat and to allow the Plaintiff to take immediate possession of the flat for the purposes of facilitating the sale of the said flat.

For ease of reference, paragraphs 3, 5 and 6 of the Order of Court dated 8 June 2017 (“June 2017 Order”) are reproduced below: “3. By Consent, the Defendant agrees to the Plaintiff to appoint a private/HDB valuer to conduct the valuation of the matrimonial flat and costs for the valuation to be borne equally between the parties. The Plaintiff to be reimbursed her half share of the valuation report from the Defendant’s share of the net sale proceeds. The matrimonial flat is to be sold at the valuation price and/or above the valuation price

…..

5. The Defendant to vacate the matrimonial flat within three weeks prior to HDB scheduled completion 6 The Defendant to give/deliver vacant possession of the matrimonial flat three weeks prior to the HDB scheduled completion” The Plaintiff’s arguments

Counsel for the Plaintiff submitted that the Family Court has the power to vary and/or give additional order as prayed for in the Plaintiff’s summons under section 112(4) Women’s Charter¹². Given that the Defendant did not dispute the evidence in the Plaintiff’s affidavit, the Defendant should be taken as agreeing and admitting to the Plaintiff’s version of events that transpired from 8 June 2017 to 9 July 2018. The Plaintiff submitted that the June 2017 Order has now become unworkable as, one, the Defendant had refused to do the purchase and conveyancing except on his own timing to the Plaintiff’s prejudice; and, two, the Defendant had prevented that Plaintiff and her housing agent to market the flat and/or have prospective buyers to view the flat. She asked the Court to grant order in terms of the summons.

Defendant’s arguments

The Defendant objected to this application. Counsel for the Defendant submitted that it was not necessary for the Plaintiff to take over possession of the flat as the parties had agreed in November 2017 for the Defendant to buy over the Plaintiff’s 40 % share based on the agreed flat’s market value of $510,000.00. His delay in proceeding with the purchase was...