TDT v TDS and another appeal and another matter

• Court: Court of Appeal (Singapore)
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 26 May 2016
• Neutral Citation: [2016] SGCA 35
• Citation: [2016] SGCA 35
• Defendant Counsel: Josephine Chong Siew Nyuk (Josephine Chong LLC)
• Published date: 01 June 2016
• Plaintiff Counsel: Eugene Thuraisingam and Mervyn Cheong (Eugene Thuraisingam LLP)
• Hearing Date: 14 March 2016
• Docket Number: Civil Appeals Nos 119 and 120 of 2015 and Summons No 15 of 2016
• Date: 26 May 2016
• Subject Matter: Duty of non-parent to child of marriage,Division,Maintenance,Matrimonial assets,Wife,Family Law

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

There are two appeals and one application before this court arising out of ancillary matters concerning the division of matrimonial assets and maintenance in a divorce proceeding. The ancillary matters were heard before the High Court judge (“the Judge”) and her decision is reported at TDS v TDT [2015] SGHCF 7 (“the GD”).

Civil Appeal No 119 of 2015 (“CA 119/2015”) is the Husband’s appeal against the Judge’s decision. In the main, he appeals against how the Judge valued the shares of a particular company which was found liable to be divided as a matrimonial asset. The Husband also seeks a refund of the interim maintenance paid to Q, the Wife’s daughter who was born out of wedlock from a previous relationship (see also below at [5]). The latter point raises interesting questions pertaining to the scope and operation of s 70 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Act”) which have hitherto not been considered by this court.

Civil Appeal No 120 of 2015 (“CA 120/2015”) is the Wife’s cross-appeal against the Judge’s decision. She seeks an upward revision of the proportion of the matrimonial assets which she was awarded. She also seeks an award of nominal maintenance, which gives us an opportunity to elaborate on the principles of nominal maintenance recently laid down by this court in ATE v ATD and another appeal [2016] SGCA 2 (“ATE v ATD”). The Wife also applies in Summons No 15 of 2016 (“SUM 15/2016”) to adduce fresh evidence on appeal. The evidence sought to be adduced came into existence only after the Judge had handed down her decision.

For ease of reference, the nomenclature used in the GD shall be adopted in this judgment.

The background facts

The parties began a relationship in about 2003. At the time, the Husband was in the process of divorcing his wife from his first marriage. On 17 October 2006, the parties married. The marriage lasted for 4.5 years. There are no children to the marriage between the parties, though the Wife has a daughter, Q, who was born out of wedlock from a previous relationship.

After the parties were married, the couple, Q, and the Wife’s mother stayed together in an apartment unit at the Park Green condominium development (“the Park Green apartment”), which was owned by the Wife and her sister. They stayed there from October 2006 until sometime in 2009. In late 2009, the couple moved to a house located at Lentor Vale. Q did not move to Lentor Vale with the couple and continued to live in the Park Green apartment with the Wife’s mother and sister.

On 4 April 2011, an incident occurred between the couple. This resulted in the Wife leaving the Lentor Vale property permanently. She also applied for, and obtained, an expedited personal protection order against the Husband. This marked a significant point in the breakdown of the marriage. Divorce proceedings commenced on 27 September 2011 and interim judgment for divorce was granted on 18 December 2013.

The Wife also applied for and obtained an order that the Husband was to pay interim maintenance of $12,500 per month ($10,000 for the Wife and $2,500 for Q) from 1 May 2011. Upon the Husband’s application for a downward variation of interim maintenance in December 2013, the District Judge reduced the interim maintenance for the Wife and Q to $10,500 a month ($8,000 for the Wife and $2,500 for Q) with effect from November 2012 (see the decision of District Judge Wong Keen Onn (“DJ Wong”) in Summons No [A] of 2012 (“SUM [A]”)). The parties’ cross-appeals against DJ Wong’s decision were dismissed by Tay Yong Kwang J on 23 April 2014. At the time of the hearing before the Judge in March 2015, the Husband had paid a total of $533,500 in interim maintenance for the Wife and Q. The Husband, Wife and Q were at the time of the hearing of the ancillary matters before the Judge, 53, 51 and 19 years old, respectively.

The matrimonial assets relevant to the present appeal

There are five companies which were incorporated by the Husband that are relevant to the present appeals. We set out a brief overview of each company here, as follows: BPL: BPL was incorporated in June 2000. The primary business of the company was originally to market and sell the “Singapore Sling premix” as well as service and maintain beer dispensers and cooling units. Its business was re-organised in 2004. Presently, the Husband owns 100% of the shares in BPL. APL: APL was incorporated in December 2004 to take over the business of marketing and selling the “Singapore Sling premix” from BPL. The Husband owns 83.5% of the shares of APL, and the remaining 16.5% of the shares are owned by two of the Wife’s friends. BSPL: BSPL was incorporated in December 2004 to take over the business of servicing and maintaining beer dispensers and cooling units from BPL. The Husband owns 90% of the shares of BSPL with the remaining 10% owned by one of BSPL’s employees. The parties agree that at the time of the ancillary matters hearing, BSPL was no longer operating as a going concern although they differ as to why this was the case. The Husband alleges that the Wife diverted BSPL’s business to companies that she has an interest in, whereas the Wife states that BSPL lost its business because of the lackadaisical manner in which the Husband ran the company after the marriage had broken down. CPL: CPL was incorporated in April 2005 to sell “Singapore Tourist Passes”. The business did not take off and CPL has been dormant since 2012. The Husband and Wife own 95% and 5% of the shares of CPL, respectively. DPL: DPL was incorporated in August 2000 and the Husband owns 100% of the shares in the company. It is undisputed that during the course of the marriage, the Wife was involved in running both APL and BSPL. Also, the parties not infrequently charged their personal expenses to these companies’ accounts (especially to BSPL’s account).

Besides these five companies, there are also three immovable properties relevant to the present appeals: A warehouse located at Admiralty Street (“the Admiralty Street property”). It appears to have been purchased in June 2010 by BSPL for $700,000. After being purchased by BSPL, it appears that APL (and not BSPL) had mortgaged the property to United Overseas Bank Ltd for a loan facility of $500,000. The Husband suggests that the Admiralty Street property was purchased in August 2010, but in support of his suggestion he relies on a document that in fact deals with another unit located at Admiralty Street. The Admiralty Street property was transferred to DPL for a consideration of $800,000 sometime in April 2012 (ie, after the commencement of divorce proceedings). However, no sale and purchase agreement between BSPL and DPL was exhibited. A landed property located at Andrews Terrace (“the Andrews Terrace property”). The Andrews Terrace property was purchased on 13 November 2010 for $1.85m and was financed by the Husband and the Husband’s father. The renovation work on the property amounted to $400,000. The Wife states that this was paid with funds that came from APL and BSPL, whereas the Husband’s position is that the renovation was funded by money from a bank account that was originally a joint account held by the Husband and his father. An apartment located at a condominium development at Hougang Street known as the Minton (“the Minton property”). This was purchased by the Wife and her sister as joint owners in September 2010 from the proceeds of sale of the Park Green apartment.

Further facts relating to the acquisition and valuation of these assets will be dealt with below where they are relevant to the analysis of the various issues raised in these appeals.

The various court proceedings

Besides this divorce proceeding, the parties are, or have been, entangled in a number of other court proceedings. The main dispute that remains on-going between the parties is Suit No [B] of 2011 (“Suit [B]”). Suit [B] was commenced by BSPL on 20 July 2011 against the Wife and four other defendants. The causes of action are, inter alia, breaches of fiduciary duty, conspiracy to defraud and misuse of confidential information. On 24 February 2012, Suit [B] was consolidated with Suit No [C] of 2011 (“Suit [C]”), which was an action commenced by BSPL against the Wife and five other defendants. The causes of action in Suit [C] were, inter alia, breach of copyright, breach of confidentiality obligations and breach of non-competition obligations. Subsequently, in April 2013, BSPL discontinued Suit [B] as against the other defendants and currently only the claims against the Wife remains. On 20 January 2014, Suit [B] was stayed by Lee Seiu Kin J pending the resolution of these appeals.

The gist of BSPL’s action against the Wife in Suit [B] is for the alleged diversion of a specific business opportunity, viz, the opportunity for BSPL to supply mashed potato machines to 7-Eleven, to another company known as [X] Pte Ltd (“XPL”) in July 2010. The Wife’s pleaded defence is that XPL took up the opportunity with the knowledge and consent of both the Husband and BSPL, and that XPL had agreed to pay BSPL a fee for doing so. The Wife pleaded that she had earned an arrangement fee (termed as “mashed potato commissions”), but that this was also with the consent of BSPL and the Husband. In the alternative, the Wife stated that there was an agreement between her, BSPL and the Husband that she could retain all fees from this arrangement “as part of her matrimonial maintenance and expenses”. Additionally, she counterclaimed against BSPL for damages arising from the wrongful termination of her employment and commenced a third party action against the Husband seeking an indemnity for any sums she might be found to be liable to pay BSPL on the basis that:

By an agreement, understanding and/or arrangement for matrimonial maintenance and expenses...