VOD v VOC and another appeal

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 18 February 2022
• Neutral Citation: [2022] SGHC(A) 6
• Citation: [2022] SGHC(A) 6
• Docket Number: Civil Appeals Nos 27 and 28 of 2021
• Published date: 23 February 2022
• Year: 2022
• Plaintiff Counsel: Teh Guek Ngor Engelin SC, Linda Joelle Ong and Lee Leann (Engelin Teh Practice LLC),Marcus Ho Shing Kwan and Foo Siew Fong (Harry Elias Partnership LLP)
• Subject Matter: Family Law,Matrimonial assets,Division,Maintenance,Child
• Hearing Date: 30 September 2021
• Court: High Court Appellate Division (Singapore)

Woo Bih Li JAD (delivering the judgment of the court): Background

These are two appeals by a husband and a wife in respect of the judgment (“the Judgment”) of a judge of the General Division of the High Court (“the Judge”) on the division of matrimonial assets and maintenance for a son of the marriage. The Judgment was issued on 28 January 2021. We will refer to the husband and the wife as “H” and “W” respectively. H is the appellant in AD/CA 27/2021 (“CA 27”) and W is the appellant in AD/CA 28/2021 (“CA 28”). Much reference was made to H’s father and some reference was made to H’s mother in respect of various gifts or loans. We will refer to H’s father and H’s mother as “F” and “M” respectively.

Before we continue, we set out the undisputed background facts. The parties were married on 3 January 2015. Their son was born in November 2015. On 28 September 2017, W and the son moved out of a property, where they had resided for about 33 months. W filed a Writ of Divorce on 25 July 2018. Interim Judgment (“IJ”) was granted on 25 January 2019. The first hearing date of the ancillaries was on 1 July 2020.

H and W are dissatisfied with different aspects of the Judgment on the question of division as well as on maintenance. Most of the disputes revolved around the division of matrimonial assets where the Judge decided first as to which assets should be included in the pool of matrimonial assets and then, if included, the value of these assets. He then decided how the included assets were to be apportioned between the parties.

The appeals cover many assets and the burden is on each appellant to show why the Judge had erred on each asset. We will discuss only those assets which either party has succeeded on to some extent in his/her appeal and those which merit some comment. Therefore, the appeal on any asset which is not specifically addressed in our judgment may be treated as dismissed for not satisfying the standard of review to warrant appellate interference.

Matrimonial assets Tokio Marine Policy and Credit Suisse Accounts

We first consider the findings of the Judge where he inferred that two sums of S$205,566.59 and US$116,736.15 (or S$166,263.35) were paid by H to partially discharge a loan which he took from Credit Suisse (“CS”) to purchase a Tokio Marine (“TM”) insurance policy. The Judge found that the source of these sums was the sale of Astrea SGD bonds and Astrea USD bonds belonging to H.¹ Since the sales of the Astrea bonds were done in March 2017 during the marriage, he treated these two sums as proxies of the value of the TM policy and included them as matrimonial assets held by H.²

Likewise, after the payments mentioned above, there was a balance of S$45,817.81 and US$85,259.92 from the sale of the Astrea SGD bonds and USD bonds respectively. H had transferred these two sums to F in December 2017. As the Judge had treated the sale proceeds as matrimonial assets, he also included these two sums as matrimonial assets held by H.

On appeal, H contends that the Judge had erred because in the first place, he had to borrow money from CS to buy the Astrea SGD and Astrea USD bonds. H accepted that when these bonds were sold, a certain sum from each of the sale proceeds (as found by the Judge) was used to pay a loan. However, each was used to pay the balance outstanding on the initial loan to buy the Astrea bonds and not to pay the loan to buy the TM policy for which a large sum of S$863,403.53 was still outstanding as at January 2019.³

The explanation in H’s Appellant’s Case (“HAC for CA 27”) was different from the explanation proffered below to the Judge. At that time, H had said that the S$45,817.81 was derived from dividends of 4.181 million shares in Company X. However, as the Judge noted, the sum came from the sale of Astrea SGD bonds which H accepts on appeal.

It appears that a similar “confusion” also arose in respect of the use of the proceeds from the sale of the Astrea USD bonds and the balance of US$85,259.92.

Accordingly, the Judge was given a different explanation below and the existence of loans to buy the Astrea SGD and USD bonds was also not disclosed. H suggested that he had no opportunity below to elaborate on the Astrea bonds which had not been specifically discussed then. However, this was because it was H who gave the incorrect explanation below that the source was the dividends from shares in Company X, and it was the Judge who then learnt that that explanation was untrue after the Judge examined statements of account from CS which had been disclosed by H.

Indeed, W argues that the explanation offered by H on appeal was contrary to H’s explanation below. The latest explanation was being offered by H’s solicitors and not by H on affidavit. Yet W was willing to accept the Judge’s findings which were based on an examination of statements of accounts alone. She herself had no other explanation.

Since the explanations offered on appeal were not bare allegations but could be supported by reference to the entries in the statements of accounts which were already part of the evidence but not fleshed out until at the hearing of the appeals, we were of the view that in the interest of justice, the explanations on appeal should be considered. It was open to W to show discrepancies in the explanations.

Despite a fairly laborious explanation by H’s counsel, we are in the end satisfied that the contemporaneous documentary evidence satisfactorily supported H’s position that he had taken out a loan from CS to buy each of the Astrea SGD and USD bonds.

In the case of Astrea SGD bonds, he purchased them in June 2016 for S$250,000. There was a credit of S$41,810 in his CS account (which he alleged came from dividends from Company X shares). The balance of S$208,190 was funded by a loan from CS. There was a coupon payment of S$4,915 in January 2017 which was used to partly pay the loan. In March 2017, the Astrea SGD bonds were sold. The Judge noted that the sale proceeds of S$251,422.26 were credited into H’s CS account on 31 March 2017.⁴ On 4 April 2017, S$205,566.59 was used to pay the principal amount and S$37.86 was to pay interest. The balance was S$45,817.81 which was then transferred by H to F in December 2017, as mentioned.

In the circumstances, we are of the view that H has established that the S$205,566.59 from the sale of the Astrea SGD bonds was used to pay the balance of a loan taken to buy those bonds and not to pay the loan used to purchase the TM policy (“the CSTM loan”). Likewise, the US$116,736 from the sale of the Astrea USD bonds was used to pay the balance of a loan taken to buy those bonds and not to pay the CSTM loan. H’s CS financial statements adequately disclose the USD and SGD Astrea Bond transactions that comport with H’s explanation. Thus, neither of these sums should have been included by the Judge as proxies for the value of the TM policy.

As for the balance of S$45,817.81 from the sale of the Astrea SGD bonds, H has showed that it is likely connected to the initial deposit of S$41,810 credited to his account with CS on 20 May 2016. However, the mere credit entry of S$41,810 does not show the source of that sum. Accordingly, we find that he has not discharged his burden to establish his allegation that the source was the dividends from his shares in Company X, and the subsequent S$45,817.81 should be included in the matrimonial assets as an asset held by him.

As for the balance of US$85,259.92 from the sale of the Astrea USD bonds, this is likely to be connected with an earlier payment of US$80,000 to partially pay the loan to buy the Astrea USD bonds as contended by H. However, H has accepted that because he has no documentary evidence to establish the source of the earlier payment of US$80,000,⁵ the subsequent sum of US$85,259.92 should still be included in the matrimonial assets as an asset held by him.

We now address the TM policy. It was bought in September 2014, ie, before the marriage. The premium was a lump sum of S$1,385,434.80. According to H, it was paid as follows:⁶ cash of S$388,000 from F; cash dividends of S$83,620 from shares in Company X; a loan of S$914,000 from CS. This is the CSTM loan mentioned above.

W pointed out that the three components added up to S$1,385,620. There was a difference of S$185.20. While W acknowledged that this was “a minor discrepancy”, she argued that it was “nevertheless suspicious since H has cited these three figures so precisely and has relied on specific documents in support of these figures”.⁷ She also pointed out that H did not show how the CSTM loan was applied.⁸

W’s questions were random and irrelevant as she did not elaborate on what inference she wanted the court to draw. Was she suggesting that there was no such loan or that the TM policy was paid by some other means? If so, by what other means? The Judge had accepted that the CSTM loan was used to partially pay for the TM policy.⁹ Since she was supporting the Judge’s eventual findings without suggesting any other reason for her support, it follows that she was also accepting that the CSTM loan had been used to partially pay for the TM policy. It is also useful to bear in mind that her cross-appeal does not seek any further benefit from the TM policy. For example, she has not suggested that much of the premium of the TM policy was paid from matrimonial assets after the date of the marriage and hence she should be entitled to a portion of the value of the TM policy on that basis, which is a different basis as compared to what the Judge had concluded. Accordingly, we proceed on the basis that the CSTM loan was used to pay part of the premium of the TM policy as alleged by H.

H’s case was that in or about May 2015, S$125,430 was received from dividends from his shares in Company X. This was used to reduce the CSTM loan, which was then S$922,686.43, to S$797,256.43. With interest of...