VPB v VPC

• Jurisdiction: Singapore
• Judge: Chia Wee Kiat
• Judgment Date: 22 February 2021
• Neutral Citation: [2021] SGFC 15
• Court: Family Court (Singapore)
• Hearing Date: 28 January 2021,20 January 2021
• Docket Number: FC/D 3292/2018 (FC/SUM 1512/2020 & FC/SUM 2311/2020)
• Plaintiff Counsel: Mr Douglas Pang (COVENANT CHAMBERS LLC)
• Defendant Counsel: The Defendant in person.
• Subject Matter: Family law,Variation,Consent Order,Division of Matrimonial Assets
• Published date: 27 February 2021

District Judge Chia Wee Kiat: Background

There were two applications before me. The first application FC/SUM 1512/2020 (“SUM 1512”) was filed by the Defendant on 16 June 2020 and the second application FC/SUM 2311/2020 (“SUM 2311”) was filed by the Plaintiff on 8 September 2020.

The parties were married on 11 November 2011. There are no children to the marriage. On 16 July 2018, the Plaintiff (the wife) commenced divorce proceedings. This was contested by the Defendant (the husband) who filed a Defence and Counterclaim on 21 August 2018. Interim Judgment was granted on 19 March 2019 on the Defendant’s Counterclaim and the ancillaries were adjourned to chambers. On 21 June 2019, the parties entered into a consent order (“the Consent Order”) resolving all ancillary matters. The Interim Judgment was made final on 7 August 2019.

SUM 1512 and SUM 2311 were applications to vary cl. 1(2) of the Consent Order. The applications were heard on 20 January 2021 and I gave my decision on 28 January 2021 with brief grounds. I indicated that in the event of an appeal, full written grounds will be rendered in accordance with the Family Justice Rules.

As the Defendant filed Notice of Appeal on 10 February 2021, I now set out my grounds of decision.

Consent Order

The Consent Order provides as follows: 1 Division of the Matrimonial Home 1 The Defendant shall be given the option to retain the property at [redacted] (the “Flat”) within six (6) months of the Certificate of Making Interim Judgment Final (the “FJ”): i. Upon the Defendant’s exercise of the option to retain the Flat, the Plaintiff shall transfer her interest in the Flat (other than by way of sale to the Defendant upon the Defendant refunding to the Plaintiff’s CPF account all monies utilised by her plus accrued interest towards the Flat as at the date of the transfer. ii. The defendant shall also take over the outstanding mortgage loan and bear all costs and expenses to the transfer. 2 Should the Defendant not exercise the option to take over the Flat within the period of six (6) months from the date of the FJ, the Flat shall be sold in the open market within twelve (12) months of the date of the FJ and the sale proceeds shall be utilised in the following manner: i. Payment of the outstanding mortgage loan on the Flat; ii. Payment of all costs and expenses arising out of and/or incidental to the sale (including but not limited to agent’s commission, legal fees and disbursements) in the proportion of 50.0% to the Defendant and 50.0% to the Plaintiff; iii. To refund all the Plaintiff’s CPF monies and accrued interest; iv. The balance shall be payable to the Defendant; and v. The Defendant shall refund to his CPF account all monies (plus accrued interest) utilized by him for the purchase of the Flat. 3 The orders made herein are subject to the Central Provident Fund Act (Cap.36) (the “CPF Act”) and the subsidiary legislation made thereunder. The CPF Board shall give effect to the terms of this order in accordance with the provisions of the CPF Act and the subsidiary legislation made thereunder. 4 The Registrar or the Deputy Registrar of the Family Justice Courts under Section 31 of the Family Justice Act (Act 27 of 2014) is empowered to execute, sign or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven (7) days of a written request being made to the other party. 2 Division of the matrimonial assets (aside from the matrimonial home)

There shall be no further division of matrimonial assets and each party is to retain his/her assets in their respective names and/or with third parties.

3 Maintenance for wife/incapacitated husband

There shall be no maintenance payable to the Plaintiff.

4 Others 1 The aforesaid shall be in full and final settlement of all claims between the Plaintiff and the Defendant and there shall be no further claims by one party against the other in this respect; 2 Parties to bear their own costs; and 3 Liberty to apply

Under the Consent Order, the Defendant was given the option to take over the Flat within 6 months of the Final Judgment (i.e. by 6 February 2020) failing which the Flat was to be sold on the open market within 12 months from the date of the Final Judgment (i.e. by 6 August 2020).

The Defendant did not exercise the option to take over the Flat by the stipulated time but filed SUM 1512 for an extension of time for sale of the Flat. The Plaintiff also filed SUM 2311 similarly seeking an extension of time for sale of the Flat and also various other terms. Subsequently, the Plaintiff modified the terms of her proposed variation in light of correspondence received from the HDB and CPF after filing her application.

The Defendant has since found a purchaser for the Flat at the sale price of $610,000 on 18 October 2020. The Plaintiff agreed that the Defendant could proceed with the sale of the Flat at the sale price of $610,000. I was informed at the hearing on 20 January 2021 that the buyer has exercised the option and the final appointment for the completion of the sale is due on 4 March 2021.

Issues in dispute

The variation sought by the Plaintiff is set out at Annex A of the Plaintiff’s written submissions. At the hearing, the Defendant confirmed that he has no objection to sub-paragraphs 1 (i) to (v) of Annex A. These are terms relating to the extension of time and conduct of the sale of the Flat which are uncontroversial since a buyer has been found. Counsel for the Plaintiff suggested that instead of 18 months as stated in paragraph 1 of Annex A that the Flat be sold within 20 months and this was accepted by the Defendant as it does not affect the substance of the disputes.

The bone of contention lies in sub-paragraphs 1 (vi) and (vii) which state as follows: (vi) The sale proceeds of the Flat shall be utilized in the following manner: (a) Payment of the outstanding mortgage loan on the Flat; (b) Refund to both parties’ CPF accounts of the CPF monies utilized for the purchase of the Flat (with accrued interest); and (c) Payment of all costs and expenses out of and/or incidental to the sale (including but not limited to agent’s commission, legal fees and disbursements) in the proportion of 50.0% to the Defendant and 50.0% to the Plaintiff. (vii) In the event that the sale proceeds are insufficient to pay the requisite CPF refunds to either owner’s CPF accounts upon the sale of the Flat, the Defendant shall be responsible for topping-up the shortfall to both parties’ CPF accounts in cash, and such shortfall shall be topped-up in one lump sum at the time of the completion of the sale. For the avoidance of doubt, the Defendant shall top-up such lump sum to the Plaintiff’s CPF account, regardless of whether the Defendant is required by the CPF Board to top-up the shortfall to the parties’ CPF accounts.

Plaintiff’s position

The basis of the Plaintiff’s proposed variation is that the Consent Order is unworkable as the CPF is unable to effect the refund of the Plaintiff’s CPF monies prior to the refund of the Defendant’s CPF monies. This is because the sale of the Flat is a negative sale and the balance amount is insufficient to make the required CPF refunds in full. The CPF Board...