TNL v TNK and another appeal and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 03 March 2017
• Neutral Citation: [2017] SGCA 15
• Plaintiff Counsel: Lim Poh Choo (Alan Shankar & Lim LLC)
• Docket Number: Civil Appeals Nos 43 and 53 of 2016 and Summons No 82 of 2016
• Date: 03 March 2017
• Hearing Date: 29 November 2016
• Subject Matter: Family Law,Matrimonial assets,Maintenance,Civil Procedure,Costs,Appeals,Wife,Division
• Year: 2017
• Defendant Counsel: Choh Thian Chee Irving, Looi Min Yi Stephanie and Chuah Hui Fen, Christine (Optimus Chambers LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 15
• Published date: 24 March 2017

Judith Prakash JA (delivering the judgment of the court): Introduction

The two appeals before us arise out of the breakdown of a 35-year long marriage in which the parties played traditional roles, the husband being the breadwinner and the wife being the keeper of the hearth and main child-carer. These fundamental facts underlie the main legal question that faces us which is whether, and if so, how, our recent decision in ANJ v ANK [2015] 4 SLR 1043 (“ANJ”) should be applied to a marriage such as this.

Background

The husband, TNL (“the Husband”), and the wife, TNK (“the Wife”), were married in November 1978. They are now aged 61 and 57 respectively. Their three children, two sons and a daughter, are all adults. There is some dispute over whether the Wife was employed in the early years of the marriage. However, for all intents and purposes, the Husband supported the family economically and the Wife looked after the household. The Husband used to be an executive director in a company he had helped start (“the Company”), but he had left this position by the time of the hearing of the ancillaries.

The Wife commenced divorce proceedings against the Husband in March 2013. The divorce was uncontested and interim judgment was granted on 7 May 2013. The issues raised at the hearing of the ancillaries before the judicial commissioner (“the Judge”) concerned the division of matrimonial assets, maintenance for the Wife, and costs.

The Judge ordered an equal division of the matrimonial assets and that a lump sum maintenance of $171,517 be paid to the Wife by the Husband. The Judge made no order on the costs of the ancillaries but ordered costs of $2,000 for the divorce in favour of the Wife. The Judge’s written grounds of decision are set out in TNK v TNL [2016] SGHCF 7 (“GD”).

Both parties have appealed against the Judge’s decision. Civil Appeal No 43 of 2016 (“CA 43”) is the Husband’s appeal while Civil Appeal No 53 of 2016 (“CA 53”) is the Wife’s appeal. The issues in the appeals overlap and basically are the same as those argued before the Judge. The Wife has also taken out Summons No 82 of 2016 (“SUM 82”) to adduce further evidence on appeal.

SUM 82

We deal first with SUM 82.

It appeared from the fact that three sets of “new” documents were annexed to her affidavits filed in support of this application that the Wife was seeking the admission of all of them. However, by the time she filed her written submissions, the Wife had decided to seek to adduce only one set of “new” documents, viz, bank statements in respect of the parties’ joint account with OCBC Bank (“the OCBC Joint Account”) for the months of April to June 2013 (“the New Bank Statements”).

It is well established that in order to be granted leave to adduce the New Bank Statements, the Wife must satisfy what are commonly known as the Ladd v Marshall conditions (see Ladd v Marshall [1954] 1 WLR 1489 (at 1491)): the evidence could not have been obtained with reasonable diligence for use at the trial (“the First Condition”); the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive (“the Second Condition”); and the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible (“the Third Condition”).

The Wife contends that the New Bank Statements buttress her position on what happened to the proceeds from the sale of a jointly-owned apartment at a development known as the Interlace (“the Interlace Sale Proceeds”), and that the Husband had failed to account sufficiently for the same. She highlights, in particular, an outgoing transfer of $300,000 reflected in the statement for the month of April 2013 (“the $300,000 Transfer”). There is no doubt that the New Bank Statements satisfy the Third Condition. However, we are of the view that the New Bank Statements do not satisfy the First and Second Conditions.

With respect to the First Condition, it is not disputed that the Wife could have obtained the New Bank Statements at any time during the proceedings before the Judge. The Wife submits, however, that the Husband bore the responsibility of adducing the New Bank Statements but chose not to do so. Specifically, the Wife points to an order of court dated 5 August 2014 which required the Husband to provide quarterly statements in respect of the OCBC Joint Account for the period from July 2011 to July 2014. The Wife also contends that a “large impetus” for her having obtained the New Bank Statements was the Husband’s allegation to the effect that she was the one who had taken the Interlace Sale Proceeds. We find the Wife’s submissions to be quite beside the point. The fact remains that, with reasonable diligence, the Wife could have obtained the New Bank Statements for use below. We would have been prepared to dismiss SUM 82 on this basis alone.

There is also the matter of the non-satisfaction of the Second Condition. We consider it significant that the statements in respect of the OCBC Joint Account for the months of March and July 2013 were in evidence before the Judge and are now before us. These show a credit balance of $340,482.37 at the end of March 2013 and one of only $1,675.88 at the start of July 2013. Thus, it was already plain at the hearing below that amounts totaling more than the Interlace Sale Proceeds (which amounted to $331,057.77) had been transferred out of the OCBC Joint Account during the intervening period. The question is where these moneys were transferred to. In this regard, the $300,000 Transfer is unhelpfully described as “TRANSFER SA” in the statement for the month of April 2013. In addition to the $300,000 Transfer, the statements for April and June 2013 simply show one large withdrawal made by cash cheque in each of those months. No information regarding the purpose of those two withdrawals can be gained from these entries either. Consequently, the New Bank Statements do not shed any further light on what is already disclosed by the evidence. A fortiori, we do not think that they would have an important influence on the result of the case.

In the premises, we dismiss SUM 82 and order that the Wife bear the costs of the application. Given what we have said at [10]–[11] above, it is evident that SUM 82 should never have been brought. We take this opportunity to remind appellants that there will be costs consequences when unmeritorious applications to adduce further evidence on appeal are made. We are mindful that because this is a matrimonial matter, prior to these appeals, the Wife and her legal advisors may have assumed that a more lenient approach would be taken with respect to costs. Therefore we fix the costs at $2,000. However, we emphasise that costs are likely to be fixed at higher levels in future cases.

The appeals proper

We now turn to consider the issues that arise in CA 43 and CA 53. These relate to: (a) division of the matrimonial assets; (b) maintenance for the Wife; and (c) costs of the ancillaries.

Division of the matrimonial assets The pool of matrimonial assets

We start by looking at the pool of matrimonial assets. In this regard, the asset pool used by the Judge is as follows:

Table 1: Asset Pool used by the Judge
S/No	Asset/Ownership	Joint names	Husband’s	Wife’s
1	Matrimonial home	$2,900,000	-
2	The OCBC Joint Account	$11,908	-
3	Two cars	-	$224,814	-
4	Husband’s insurance policies	-	$55,522	-
5	Husband’s shares in the Company	-	$914,894	-
6	Husband’s bank accounts	-	$98,247	-
7	Husband’s CPF	-	$221,833	-
8	Wife’s insurance policies	-	-	$100,811
9	Wife’s shares in the Company	-	-	$481,608
10	Wife’s shares	-	-	$622
11	Wife’s bank account (with the daughter)	-	-	$1,276
12	Wife’s CPF	-	-	$189,135
Total	$2,911,908	$1,515,310	$773,452
$5,200,670

Most of the items in Table 1 were not disputed before the Judge. Thus, the Judge focused her attention on the following disputed assets: proceeds from the surrender of two of the Wife’s insurance policies (“the Insurance Proceeds”); the Interlace Sale Proceeds; and sums withdrawn from the POSB Bank joint account in the names of the Wife and the couple’s daughter (“the Wife-Daughter Account”) which were used to pay for the daughter’s flat (“the Withdrawn Sums”).

While accepting that there was merit in both parties’ contentions about sums the other had taken, the Judge declined to return any of these sums to the asset pool.

The Insurance Proceeds

The Insurance Proceeds comprise proceeds from the surrender of: (a) an AIA policy on 20 June 2007 for the sum of $43,848.20 (“the AIA Policy”); and (b) a Great Eastern policy on 19 July 2010 for the sum of $34,404.50 (“the GE Policy”). The Judge found that the Wife had retained the Insurance Proceeds without satisfactory explanation.

On appeal, the Husband does not appear to be asking for the Insurance Proceeds to be returned to the asset pool. The Wife, on the other hand, highlights that the AIA Policy and the GE Policy were, respectively, surrendered about six and three years before the commencement of divorce proceedings. She points to the Judge’s observation at [34] of the GD that during the course of the marriage, “there seemed little expectation that [the parties] would each hold the other to precise line items and balance sheets” and submits that this applies to the Insurance Proceeds. As opposed to the Interlace Sale Proceeds, the “divisive and definitive factor” according to the Wife is that, in 2007 and 2010, it was “arguably inconceivable that the [moneys] were...