Teh Siew Hua v Tan Kim Chiong

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 04 June 2010
• Neutral Citation: [2010] SGHC 172
• Year: 2010
• Date: 04 June 2010
• Published date: 21 June 2010
• Hearing Date: 04 May 2010,20 April 2010,30 March 2010
• Plaintiff Counsel: Lim Hui Min (Legal Aid Bureau)
• Citation: [2010] SGHC 172
• Defendant Counsel: The Respondent in person.
• Court: High Court (Singapore)
• Docket Number: Divorce Petition No 2178 of 1991 (Summons No 600037 of 2010)

Steven Chong J:Introduction

This was an application by Mdm Teh Siew Hua (“the Petitioner”) under s 112(4) of the Women’s Charter (Cap 353, 2009 Rev Ed) to vary an order made by the High Court in a Decree Nisi granted on 30 January 1992, some 19 years ago.

At the end of the hearing, I granted the Petitioner’s application, but in view of the novel point this case raised under the Limitation Act (Cap 163, 1996 Rev Ed) (“the Act”), I now give the reasons for my decision. I was informed by counsel for the Petitioner, Ms Lim Hui Min, that the situation faced by the Petitioner is not an uncommon one and therefore it would be useful for a reasoned decision to be delivered.

Background

The marriage between the Petitioner and Mr Tan Kim Chiong (“the Respondent”), solemnised on 4 January 1965, was dissolved by a Decree Nisi dated 30 January 1992 granted by K S Rajah JC. It was further ordered in para 1 of the Decree Nisi that:

The Respondent do transfer his interest in the matrimonial property known as “Blk 813 Tampines Street 81, #11-544, Singapore 1852” to the Petitioner.

The Decree Nisi was made absolute on 26 May 1992, but the Respondent took no steps to comply with the order and transfer his interest in the matrimonial property (now known as “Blk 813 Tampines Street 81, #11-544, Singapore 520813”) to the Petitioner. On her part, the Petitioner took no steps to compel the Respondent to effect the transfer until recently, in November 2009, when she requested that the Respondent do so. As the Petitioner was getting on in years, she decided to take steps to regularise the situation to ensure that her beneficiaries, ie her children, would not face difficulties from the Respondent should she pass away.

The Respondent, however, refused to comply, and asked for the property to be sold and the proceeds to be divided equally. Such a course of action being unacceptable to the Petitioner, she then applied, via the Legal Aid Bureau, to vary the Decree Nisi by including the following two orders:1.That the Respondent is to sign all the necessary documents to effect the transfer of the matrimonial flat referred to in paragraph 1 of the Decree Nisi within 7 days of the service of this order on the Respondent by ordinary post (“the stipulated time”).2.That should the Respondent fail to sign the necessary documents to effect the said transfer within the stipulated time, the Registrar of the Supreme Court is to be empowered to sign all the necessary transfer documents on his behalf.

Issues

The Respondent challenged the application on the sole basis that he had no knowledge of the order because both the petition and the consequent order were not served on him. This initially posed difficulties to the Petitioner since the order was made some time ago and she was unable to fully explain the circumstances under which the order came to be made. Eventually, however, the Legal Aid Bureau managed to retrieve the court file and an affidavit was filed to exhibit the earlier affidavit of service which was filed for the Decree Nisi. It was clear from the affidavit of service that the Respondent had knowledge of the petition. Given that it happened so long ago, it was perhaps understandable that the Respondent was unable to recall the precise circumstances under which the order was made.

Although this effectively disposed of the objection raised by the Respondent, I expressed concern at the hearing that there might be a question of a time bar. The Decree Nisi was granted in 1992, but the Petitioner had failed to take any step to enforce the order therein for 19 years. In particular, I queried whether:(a)the application was time-barred under s 6(3) of the Act;(b)the application required the leave of court under O 46, r 2(1)(a) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”);(c)the application was time-barred under s 9(1) of the Act; and(d)the application was defeated by acquiescence, laches or delay.

Counsel for the Petitioner, Ms Lim, was able to expeditiously furnish me with a clear and comprehensive set of submissions and authorities which addressed these questions, and I would like to record my deep appreciation and gratitude to her and the Legal Aid Bureau for their assistance in this matter, as well as for the commendable work that they do.

Preliminary Observations on s 112(4) of the WWomen’s Charter

The power of the court to vary an order as to the division of matrimonial assets is to be found in s 112(4) of the Women’s Charter, which reads:

The court may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made.

[emphasis added]

It has been suggested that an order for the division of matrimonial assets is a “one-off order” and as such, does not allow for variation: Leong Wai Kum, Principles of Family Law in Singapore (Singapore: Butterworths Asia, 1997) at p 910, approved in Lee Kok Yong v Lee Guek Hua (alias Li Yuehua)[2007] SGHC 26 at [16]. Nonetheless, the court can vary such an order if it is appropriate to do so, such as where the court order is unworkable or did not provide for a particular situation or contingency which has arisen subsequent to the order: Nalini d/o Ramachandran v Saseedaran Nair s/o Krishnan[2010] SGHC 98 at [13].

The express wording of s 112(4) of the Women’s Charter ([9] above), in particular the operative phrase “ at any time it thinks fit”, appears to suggest that the power it confers on the court to vary or revoke any previous order cannot be extinguished by the mere lapse of time. Whether this suggestion is correct, however, would depend on further consideration of the provisions of the Act since, as McGee, Limitation Periods (London: Sweet & Maxwell, 5th Ed, 2006) (“McGee”) points out at para 1.046:

[I]t follows from the absence of any common law concept of limitation that in the event of a lacuna in the statutory provisions, no limitation period will apply.

Whether the Application was Time-Barred under s 6(3) of the Act

Section 6(3) of the Act provides:

An action upon any judgment shall not be brought after the expiration of 12 years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of 6 years from the date on which the interest became due.

“Action” is defined in s 2 of the Act as including “a suit or any other proceedings in a court”. It followed, therefore, that if the Petitioner’s application was “an action upon any judgment”, it would have been time-barred by the operation of s 6(3) of the Act.

In my view, the Petitioner’s application was not “an action upon any judgment”, and s 112(4) of the Women’s Charter was therefore not subject to s 6(3) of the Act.

The Act was based on the UK’s Limitation Act 1939 (2 & 3 Geo 6, c 21) (see [50] of the Court of Appeal’s judgment in Poh Soon Kiat v Desert Palace Inc (trading as Caesars Palace)[2010] 1 SLR 1129 (“Caesars Palace (CA)”), s 2(4) of which was in pari materia with s 6(3) of the Act, while s 31 read:

“Action” includes any proceedings in a court of law, including an ecclesiastical court.

Following the final report of the Law Reform Committee on Limitations of Actions (1977) (Cmnd 6923), the Limitation Act 1939 was subsequently re-enacted as the Limitation Act 1980 (c 58), s 24(1) of which was identical to ss 2(4) of the Limitation Act 1939 and s 6(3) of the Act, save that the limitation period was reduced from 12 years to 6 years, while the definition of “action” in s 38(1) of the Limitation Act 1980 remained the same as in ss 31 of the Limitation Act 1939.

Given the history of the Act, English judgments on the scope of s 2(4) of the Limitation Act 1939 and s 24(1) of the Limitation Act 1980 are highly persuasive authorities on the interpretation of s 6(3) of the Act. Indeed, the Court of Appeal in Caesars Palace (CA) stated at [53] that:

In our view, since [the Act] can be traced back to the 1939 UK Limitation Act, Brandon J’s decision in Berliner Industriebank is authoritative on the ambit of ss 6(1)(a) and 6(3) of [the Act]…

[emphasis added]

The reference is to Berliner Industriebank Aktiengesellschaft v Jost[1971] 1 QB 278 (“Berliner Industriebank”), which was itself founded on the reasoning employed in an earlier case, W T Lamb & Sons v Rider[1948] 2 KB 331 (“Lamb”).

In Lamb, the plaintiffs obtained judgment against the defendant for the price of goods sold and delivered in December 1938, but no steps were taken to enforce the judgment until March 1946. Since more than 6 years had passed, the plaintiffs needed leave to proceed to execution under Ord 42, r 23(a) of the UK’s Rules of the Supreme Court, 1883 (“RSC”) (similar to O 46, r 2(1)(a) of the ROC (see below at [30])). Before the English Court of Appeal, the plaintiffs contended that they did not require leave to issue execution, on the ground that Ord 42, r 23 was ultra vires the statutory right, contained in s 2(4) of the Limitation Act 1939, to issue execution at any time up to 12 years. In particular, it was contended that proceeding to execution counted as “any proceedings in a court of law” in s 31 of the Limitation Act 1939 and was therefore “an action upon any judgment” in s 2(4).

Rejecting this contention, Scott LJ held at 338 that s 2(4) of the Limitation Act 1939 dealt only with the substantive right to sue for and obtain a judgment, while RSC Ord 42 was only concerned with the procedural machinery for enforcing a judgment that had already been obtained. Scott LJ then concluded that:

The two subjects were formerly quite independent and distinct, the one from the other, and we are quite unable to attribute to the definition of "action" in the Limitation Act, 1939, the effect of merging the two together.

This...