Uru v Urv

• Jurisdiction: Singapore
• Judge: Tan Puay Boon JC
• Judgment Date: 28 December 2018
• Court: High Court (Singapore)
• Docket Number: Registrar's Appeal No 14 of 2018
• Date: 28 December 2018

URU

and

URV

[2018] SGHCF 22

Tan Puay Boon JC

Registrar's Appeal No 14 of 2018

High Court (Family Division)

Family Law — Family Court — Procedure — Wife's solicitors endorsing copy of court order served on husband with penal notice — Wife seeking leave to commence committal proceedings based on husband's non-compliance with court order — Leave to commence committal proceedings denied on basis that penal notice not endorsed or approved by court — Whether leave of court required for endorsement of penal notice on copy of court order — Rule 696(4) Family Justice Rules 2014 (S 813/2014)

Held, allowing the appeal:

(1) A distinction should be drawn between the inclusion of a penal notice within a court order and the endorsement of a penal notice on a copy of a court order. Where a court included a penal notice as part of its orders, the penal notice would form part of the court order. This was to be distinguished from the attachment of a penal notice to a copy of a court order, in which case the penal notice would not form part of the court order. The present appeal concerned the latter situation: at [24].

(2) The surrounding context of r 696(4) of the FJR suggested that the endorsement of the penal notice was meant to be performed by the enforcing party. Rule 696(4) appeared between rr 696(2) and 696(3) and r 696(5), which provided that as a prerequisite for enforcement by means of committal proceedings, certain orders had to be served on the person sought to be committed. It was implicitly clear that such service had to be performed at the instance of the enforcing party, rather than the court or any other party, since it was the enforcing party who had to initiate the committal proceedings. This weighed in favour of the view that leave of court was not required for the endorsement of a penal notice on a copy of a court order: at [15].

(3) The decision of the Court of Appeal in Mok Kah Hong v Zheng Zhuan Yao[2016] 3 SLR 1 did not stand for the proposition that leave of court was required for the endorsement of a penal notice on a copy of a court order. In that case, the Court of Appeal's true focus was the issue of whether the orders in question were enforceable by means of committal in the first place: at [31].

(4) Persons subject to court orders should recognise the seriousness of such orders and the possibility of facing adverse consequences if they did not obey them. The language of a penal notice as set out in Form 136 in Appendix A of the Family Justice Courts Practice Directions simply stated that the person subject to the court order would be “liable to process of execution for the purpose of compelling [him or her] to obey” if he or she failed to comply with the order. There was no reason a party should have to seek the court's approval to inform a non-complying party of what he or she should already know: at [38] and [40].

(5) Parties who obtained court orders in their favour should be able to seek enforcement through committal proceedings without an excessive number of procedural hurdles. While there was a risk that parties may abusively use penal notices to wield the threat of committal proceedings in cases where committal was not truly available as a means of enforcement, this risk was adequately addressed by multiple procedural safeguards in the committal application process. It was thus unnecessary to additionally require enforcing parties to seek leave of court for the endorsement of a penal notice on a copy of a court order: at [36] and [39].

Case(s) referred to

Anglo-Eastern Trust Ltd v Kermanshahchi [2002] All ER (D) 296 (refd)

Citiwall Safety Glass Pte Ltd v Mansource Interior Pte Ltd [2015] 1 SLR 797 (refd)

Deery v Deery [2016] NICh 11 (refd)

GM v GN [2004] SGDC 284 (not folld)

LA v TWK [2016] HKCU 2135 (refd)

Loh Eng Leong v Lo Mu Sen & Sons Sdn Bhd [2003] 4 MLJ 284 (not folld)

Mok Kah Hong v Zheng Zhuan Yao [2016] 3 SLR 1 (distd)

Nalpon Zero Geraldo Mario, Re [2013] 3 SLR 258 (folld)

OCM Opportunities Fund II, LP v Burhan Uray [2005] 3 SLR(R) 60; [2005] 3 SLR 60 (folld)

Robert Arnold Tuohy v Gary Bell [2002] EWCA Civ 423 (refd)

Roberto Building Material Pte Ltd v Oversea-Chinese Banking Corp Ltd [2003] 2 SLR(R) 353; [2003] 2 SLR 353 (refd)

Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (folld)

TDQ v TDR [2015] SGFC 72 (refd)

Tunas (Pte) Ltd v Mayer Investments Pte Ltd [1989] 1 SLR(R) 161; [1989] SLR 280 (refd)

UNE v UNF [2018] SGHCF 15 (folld)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 117; [2006] 2 SLR 117 (folld)

Woo Keng Sheng v Gan Geok Kheng [2005] SGDC 191 (not folld)

Facts

The appellant and the respondent were the plaintiff wife and defendant husband respectively in divorce proceedings in the Family Courts. Under the terms of a consent order, each party was to transfer a sum of money as maintenance to the account of [W], a child of the marriage, by a certain date. A copy of the consent order, endorsed by the appellant's solicitors with a penal notice, was served on the respondent on 14 January 2018. As the respondent had not complied with its terms, on 23 March 2018, the appellant applied for leave of court to commence committal proceedings pursuant to r 759 of the Family Justice Rules 2014 (S 813/2014) (“the FJR”). The district judge took the view that the appellant's solicitors required leave of court to endorse the copy of the consent order with a penal notice as a prerequisite to the commencement of committal proceedings. As such leave had not been sought, he denied the appellant leave to commence committal proceedings.

Legislation referred to

Family Justice Rules 2014 (S 813/2014) rr 7, 690(1)(d), 694, 696(2), 696(3), 696(4) (consd); rr 48(4), 208(3)(b), 696, 696(1), 696(2)(b), 696(5), 696(7), 759, 760, 958

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 45 r 1(1), O 45 r 7, O 52 r 2, O 52 r 3

Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) O 45 r 7(4)

Carrie Kaur Gill and Clement Yap Ying Jie (Eversheds Harry Elias LLP) for the appellant;

Respondent absent and unrepresented;

Tan Kia Hua (WongPartnership LLP) as young amicus curiae.

28 December 2018

Judgment reserved.

Tan Puay Boon JC:

Introduction

1 Rules 690(1)(d) and 694 of the Family Justice Rules 2014 (S 813/2014) (“Family Justice Rules”) provide for certain judgments and orders of the Family Justice Courts to be enforced through orders of committal. However, under rr 696(2) and 696(3), a judgment or order may not be enforced in this manner unless a copy of the order has been served on the person sought to be committed. Rule 696(4) goes on to provide that the copy of the court order must be endorsed with a notice in Form 136 (as set out in Appendix A to the Family Justice Courts Practice Directions) informing the person on whom the copy is served that he (or the body corporate in question, as the case may be) is liable to process of execution if he (or the body corporate) does not comply with the order – that is to say, the copy of the court order must be endorsed with a penal notice. The sole issue in the present appeal is whether a party requires leave of court to endorse such a penal notice on the copy of the court order which is served on the person sought to be committed.

2 At the time the appeal was heard, this was a question on which there was a dearth of local authority, particularly at the High Court level. The appeal was also heard on an ex parte basis, with submissions from only one of the parties. Given the relative novelty of the issue, and also being conscious that my decision could have an impact on the interpretation of O 45 r 7 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) which is in pari materia with r 696 of the Family Justice Rules, I felt that the court would benefit from an additional perspective. I thus appointed a young amicus curiae. I am grateful to Mr Tan Kia Hua (“Mr Tan”) for accepting the appointment, and for his thoughtful and well-researched submissions.

Background facts

3 The facts giving rise to the appeal may be stated briefly. The appellant and the respondent are the plaintiff wife and the defendant husband, respectively, in divorce proceedings in the Family Courts. On 10 November 2017, the appellant and the respondent entered into an agreement which was encapsulated in a consent order (“the Consent Order”) to resolve all outstanding issues in the ancillary matters proceedings. Clause (o) of the Consent Order (“Clause (o)”) required each party to transfer a sum of $7,700 as maintenance to the sole account of [W], a child of the marriage, by 2 January 2018. A copy of the Consent Order, endorsed by the appellant's solicitors with a penal notice, was served on the respondent on 14 January 2018.

4 As the respondent had not complied with Clause (o) as at 23 March 2018, the appellant took the view that he was in contempt of court, and sought to enforce the Consent Order by means of committal proceedings. As with applications for committal in the context of civil proceedings (see O 52 rr 2 and 3 of the Rules of Court and Mok Kah Hong v Zheng Zhuan Yao[2016] 3 SLR 1 (“Mok Kah Hong”) at [56]), there are two stages to the committal of a non-complying party under the Family Justice Rules. At the first stage, the applicant applies for leave of court to commence committal proceedings against the respondent (r 759 of the Family Justice Rules). If leave is granted, the applicant may then make the actual application for the order of committal (r 760 of the Family Justice Rules).

5 The appellant initiated the first stage by applying for leave of court to commence committal proceedings against the respondent on 23 March 2018. The application was heard by the learned district judge (“the District Judge”) on 24 April 2018 on an ex parte basis. The District Judge took the view that the penal notice ought to have been endorsed by the court, and not by the appellant's lawyers, or that the appellant required leave of...