ULB v ULC

• Jurisdiction: Singapore
• Judge: Colin Tan
• Judgment Date: 26 March 2018
• Neutral Citation: [2018] SGFC 34
• Court: Family Court (Singapore)
• Hearing Date: 07 November 2017
• Docket Number: Originating Summons 124 of 2016
• Plaintiff Counsel: Mr Palaniappan Sundararaj (Straits Law Practice LLC)
• Defendant Counsel: Mr Ashok Kumar Rai (Harry Elias Partnership LLP)
• Subject Matter: Family Law - Mental Capacity Act
• Published date: 11 April 2018

District Judge Colin Tan: Introduction

This was a case involving an application to revoke a Lasting Power of Attorney.

The Defendant has appealed on the issue of costs.

Background

This application was filed by the sister of the Donor (“P”) of the Lasting Power of Attorney (“LPA”).

She alleged that the Donee under the LPA, i.e. the Defendant, had been misusing his powers under the LPA and was preventing her as well as P’s husband and daughters from seeing P¹.

After considering the evidence and submissions, I made the following orders: I dismissed the Plaintiff’s application to revoke the LPA; and I granted the Plaintiff’s application for P to be examined by a medical expert to determine if there were any medical concerns in regard to the Plaintiff visiting P.

Subsequently, Dr Jacob, the psychiatrist who examined P, recommended that the Plaintiff be granted “full visitation rights” to P².

The Plaintiff then filed a Summons application seeking an order for access to P³. This application was fixed for hearing on 9th October 2017.

However, on the day of the hearing, the Defendant’s Counsel sought an adjournment and stated that he was not prepared to argue the case on that day.

I reprimanded the Defendant’s Counsel as such conduct was not acceptable given that counsel are expected to be prepared to argue their case when attending a hearing.

The importance of counsel being prepared for hearings and not assuming that an adjournment would be granted was emphasised by the Court of Appeal in Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673 and by the High Court in Singapore Investments (Pte) Ltd v Golden Asia International (Singapore) Pte Ltd [2009] SGHC 149.

I ordered that the Defendant was to pay to the Plaintiff costs fixed at $700, and I also ordered that the Defendant was not permitted to claim this sum from P as P ought not to bear costs arising from the Defendant’s Counsel default.

When all outstanding matters had been concluded, counsel argued the issue of costs in respect of the Originating Summons application. After hearing counsel, I made no order as to costs, and the Defendant filed the current appeal.

Arguments put forward by counsel

The arguments raised by the Defendant’s Counsel are set out below.

Plaintiff’s behaviour

The first point put forward by the Defendant’s Counsel was that the legal proceedings could have been avoided if the Plaintiff had “behaved reasonably instead of commencing legal action”⁴.

The Defendant’s Counsel cited a letter of demand sent by the Plaintiff’s solicitors in support of his argument⁵.

While I accepted that the tone of this letter, like virtually all other letters of demand, was not amiable, it was difficult to say that it was entirely unreasonable.

At the same time, the reply sent by the Defendant’s solicitors was equally un-amiable⁶.

In particular, the Defendant’s solicitors described the allegations in the letter of demand as “self-serving and one-sided” and they also stated that they “have instructions to accept service of process on behalf of our client”.

The two letters suggested that while the Plaintiff did not approach the matter in an amicable friendly manner, the Defendant was equally unprepared to be amicable and was quite willing to engage in litigation with the Defendant.

However, the fact that the Plaintiff actually sent a letter instead of commencing legal action immediately showed that the Plaintiff had tried, to some degree at least, to resolve the matter without litigation.

In addition, the Plaintiff had arranged for a meeting involving P and the Defendant on 2nd August 2015 to try to deal with the various issues⁷. While the Defendant had a different version of what happened during the meeting, he did admit that such a meeting had indeed taken place⁸.

Based on the above, it was difficult to accept the Defendant’s Counsel’s submission that the Plaintiff had acted very unreasonably.

Amendment of Originating Summons

The second point put forward by the Defendant’s Counsel was that costs should be awarded because the Plaintiff had amended her Originating Summons⁹.

I agreed with the Defendant’s Counsel that some work was wasted and that this ought to be considered when ordering costs.

However, I was of the view that given the degree of similarity between the original Originating Summons and the Amended Originating Summons, any costs order ought not to be overly large.

Prayer 2 of the Originating Summons was dismissed

The third point raised by the Defendant’s Counsel was that prayer 2 of the Originating Summons (i.e. application for revocation of the LPA) was dismissed and therefore the Defendant ought to be awarded costs.

I agreed with the Defendant’s Counsel on this issue.

Prayer 3 of the Originating Summons was granted

The fourth point raised by the Defendant’s Counsel was that, in respect of prayer 3 of the Originating Summons (i.e. appointment of independent medical expert to evaluate P), the parties should each bear their own costs.

What transpired in respect of this issue was as follows: At the case conference on 17th January 2017, the Defendant agreed to P being examined by a doctor of his choice, i.e. Dr Goveas, and the Plaintiff agreed to this. At the case conference on 7th March 2017, the court was informed that Dr Goveas had stated that he could assist only if the parties agreed to a single 30-minute meeting to discuss and agree on the plan of care, including visitation¹⁰. Since what Dr Goveas had proposed did not appear to be an assessment of P, directions were given to clarify with Dr Goveas that what was being sought was his expert medical opinion and not his assistance to broker an agreement. Subsequently, Dr Goveas offered to arrange for a visit supervised by his nursing staff and, based on his letter, it did not appear that he was prepared to assess P personally and give an expert opinion on the issue at hand¹¹. At the case conference on 11th April 2017, the Plaintiff’s Counsel informed the court that they wanted a different psychiatrist, i.e. Dr Jacob, to assess P. The Defendant’s Counsel opposed this and wanted Dr Goveas to assess P. Directions were given for filing CVs of the experts and the matter was fixed for hearing. At the hearing on 24th April 2017, after considering the submissions of both counsel as well as the fact that Dr Goveas did not appear to be prepared to assess P personally, I ordered that the Plaintiff be permitted to appoint Dr Jacob to assess P.

Therefore, while the Defendant had agreed to an assessment, the choice of doctor was a contested issue and the Plaintiff had succeeded on this portion of the application.

As such, I felt that costs in respect of this issue ought to be awarded to the Plaintiff.

Other submissions by the Defendant’s Counsel

During the hearing, the Defendant’s Counsel made several submissions which are set out below.

The Defendant’s Counsel submitted that the Defendant had succeeded after a 2-day trial.

The Defendant had succeeded in respect of prayer 2 but the Plaintiff had succeeded in respect of prayer 3.

In addition, the...