TDK v TDL

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 18 September 2017
• Neutral Citation: [2017] SGFC 113
• Court: Family Court (Singapore)
• Hearing Date: 08 June 2017
• Docket Number: Divorce Suit No D 2386/2012
• 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
• Published date: 27 September 2017

District Judge Wong Keen Onn: Introduction

This is the Defendant’s (TDL’s) appeal against the decision made on 8 June 2017 in Summons No. 1485/2017 to vary the Ancillary Order dated 15th July 2016 to allow for sole conduct of the sale of the matrimonial flat known as xxx (referred to “matrimonial flat” or “xxx Flat”) in the open market, the removal of the Defendant’s option to purchase the Plaintiff’s share of the flat and consequential orders.

Background

This variation of the Ancillary Order arose from a protracted contested divorce matter that has spanned nearly four years from the commencement of the writ of divorce¹. Briefly, the parties were married on 8th December 1990 in India and they relocated to Singapore sometime in the 1990s. The Plaintiff (ex-wife Ms TDK) is now 47 years old, a Singapore Permanent Resident, while the Defendant (ex-husband TDL) is 56 years old, now a Singapore citizen. They have 2 children, a 25-year-old daughter and a 17-year-old son. On 18 May 2012, the Plaintiff (ex-wife) commenced divorce proceedings in Singapore. The Defendant (ex-husband) contested the divorce proceedings. He filed numerous applications to stay the proceedings on grounds of forum non-conveniens, adjourn the proceedings and to strike out the pleadings. His applications were all dismissed. He appealed against those decisions but his appeals were subsequently dismissed by the High Court². The Defendant’s actions resulted in a delay in the divorce proceedings for nearly 2 years.

When the divorce proceedings resumed, the Defendant sought a last minute adjournment of the contested divorce hearing to engage a new counsel. After a short hearing, the Court rejected the Defendant’s request to adjourn the hearing. The contested divorce hearing was held on 26 June 2014 and 6 August 2014. At the end of the hearing, the Court granted the Interim Judgment based on the Plaintiff’s claim that the marriage had irretrievably broken down in that Defendant had behaved in such a way that the Plaintiff cannot reasonably be expected to live with the Defendant. The ancillary matters were adjourned to Chambers.

The Defendant then filed two appeals (RAS 177/2014 and 178/2014) against the Family Court’s decision to reject the earlier request for an adjournment of the hearing and to grant the Interim Judgment. As a result, the ancillary proceedings were held back pending the outcome of these appeals. The Defendant’s appeal in RAS 177/2014 and 178/2014 were dismissed by the High Court on 5 November 2015³.

Ancillary Matter hearing

Thereafter, parties were then directed to file affidavits of Assets and Means. The Ancillary matters hearing took place on 24 May, 14 June and 15 July 2016 and the Court made the Ancillary Order on 15 July 2016. The Ancillary Order dealt with the order for care and control of the minor son, for maintenance of the son, and division of the matrimonial assets comprising mainly the matrimonial HDB flat at xxx (“xxx flat”), the xxx property, lands in India, Lands in USA. 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 2016.

Subsequently, on 8 August 2016, the Defendant filed an application (OSN 20/2016) for an extension of time to appeal against the Ancillary Order. That application was irregular and the Assistant Registrar (AR) ordered the Defendant to regularise it and to meet certain conditions. The Defendant failed to comply with the order and his application was struck out by the Assistant Registrar (AR) due to non-compliance. The Defendant appealed against the AR’s decision but his appeal was dismissed by the High Court on 13 October 2016. On 2 November 2016, the Defendant again filed another application (OSN 36/2016) seeking further leave to file a notice of appeal out of time. This application for extension of time to appeal was dismissed by the High Court on 18 April 2017⁴.

Application for Variation

The Ancillary Order provided for an award of approximately 59% of the total matrimonial assets to the Defendant and 41 % to the Plaintiff for a 24 year marriage with the wife being the main homemaker taking care of the two children of the marriage while the husband went to work overseas for most of the length of the marriage. In respect of the matrimonial flat at xxx, the order provided for it to be sold on the open market and the net proceeds, before refund of CPF monies, to be divided in the proportion of 60 % to the Defendant and 40 % to the Plaintiff. There was to be joint conduct of the sale and the Plaintiff was given the option to purchase over the Plaintiff’s share but this had to be exercised in writing not later than 4 months from the date of Final Judgment in 1 August 2016, namely by 1 December 2016. However, by March 2017, there was no successful attempt to sell the matrimonial flat. The Defendant also refused to sign the necessary documentations to purchase over the Plaintiff’s share of the flat.

On 4 May 2017, the Plaintiff (ex-wife) filed an application (Summons No. 1485/2017) to vary the Ancillary Order of Court ORC 3598/2016 dated 15 July 2017 (referred to as “the Order”) on the grounds that her attempts since 2016 to carry out on the sale of the matrimonial flat as per the Ancillary Order had been deliberately thwarted by the Defendant. During the hearing on 8 June 2017, counsel for the Defendant indicated that his client was still prepared to buy over the Plaintiff’s share of the matrimonial flat⁵. The Court then stood down the matter to allow the Plaintiff to prepare the option to purchase and the other necessary forms and for the Defendant to sign the necessary documentation to purchase over the Plaintiff’s share of the said flat. When the hearing resumed, parties informed the Court that the Defendant had decided not to sign the documentation as he could not agree on the selling price even though the Plaintiff counsel has shown to the Defendant and his counsel that the proposed selling price of $560,000.00 was the same as the latest HDB transaction prices (in March 2017) of a similar flat in the same block of flats. The Defendant had wanted a much lower price before he was prepared to buy over the plaintiff’s share⁶. The hearing resumed and after considering the affidavits and hearing the parties’ submissions, I made the following order :

For prayers 2 and 3 of SUM 1485/2017 (Amendment No 1)

(1) Paragraph 3 (a) (3) of the Ancillary Order (AM Order) dated 15th July 2016 to be varied and amended to state the Plaintiff has sole conduct for the sale of the matrimonial flat known as xxx (matrimonial flat) by deleting the last sentence and replacing it with the following sentence which reads:

“The Plaintiff shall have sole conduct of sale of matrimonial flat.”

(2) To insert another paragraph thereafter, namely,

“By Consent, the Defendant agree to the Plaintiff to appoint a private/HDB valuer to conduct a valuation of the matrimonial flat and cost of the valuation to be borne equally between the parties. The Plaintiff is to be reimbursed the half share of the costs of the valuation report from the Defendant’s share of the sale proceeds. The matrimonial flat is to be sold at or above the valuation price.”

(3) In addition, paragraph 3 (a) (4) of the Ancillary Order (AM Order) dated 15th July 2016 shall be deleted and in its place the following paragraphs shall be inserted as follows:

“3 (a) (4)(a) The Defendant to deliver all keys of the matrimonial flat to the Plaintiff’s Solicitors within three (3) days from the date of the Order failing which the Plaintiff will install new locks to the matrimonial flat and a set of which will be given to the Defendant. The costs of installing new locks to be deducted from the net sale proceeds before division

b. The Defendant to vacate within three weeks prior to HDB scheduled completion. c The Defendant to give/deliver vacant possession of the matrimonial flat three weeks prior to the HDB scheduled completion d In the event, the Defendant fails/refuses/neglects to deliver vacant possession of the matrimonial flat within the above stipulated time, the Plaintiff will forthwith dispose/clear all furniture and/or any personal belongings of the Defendant from the flat. The Plaintiff to deduct all disposal fees from the Defendant’s share of the net sale proceeds upon production of receipts. e The Plaintiff to claim outgoings namely utilities, if any due, paid on behalf of the Defendant for the matrimonial flat and the same to be deducted from the Defendant’s share of the net sale proceeds. The other outgoings such town council conservancy charges and property tax, if any due, are to borne in the proportion of 40 % by the Plaintiff and 60 % by the Defendant. If one party pays the share of the outgoings such town council conservancy charges and property tax on behalf of the other party for the matrimonial flat, the same to be reimbursed from the other party’s share of the net sale proceeds f The Plaintiff to deduct a sum of costs $540 incurred as a result of the Plaintiff engaging a locksmith to break open the doors of the matrimonial flat and any other costs to be incurred for future breaks a result of the Defendant not providing to the Plaintiff’s solicitors and/or Plaintiff’s housing agent the keys to the locks of the matrimonial flat which are not installed by the Plaintiff and the same to be deducted from the Defendant’s share of the net sale proceeds” (4) Penal notice clause to be inserted (5) No order on prayer 2 g of the summons (6) Costs fixed at $2,500.00 to be paid by the Defendant to the Plaintiff ...