VUT and another v VUV and others

• Jurisdiction: Singapore
• Judge: Colin Tan
• Judgment Date: 01 August 2022
• Neutral Citation: [2022] SGFC 63
• Court: Family Court (Singapore)
• Docket Number: OSM No 226 of 2019 and Summons No 3099 of 2021
• Published date: 06 August 2022
• Year: 2022
• Hearing Date: 17 January 2022,28 February 2022
• Plaintiff Counsel: Lim Poh Choo and Lee Wan Sim (Alan Shankar & Lim LLC)
• Defendant Counsel: Benjamin Yam (Ray Louis Law Corporation),Lua Wei Liang Wilbur and James Tan (Covenant Chambers LLC)
• Subject Matter: Contempt of Court,Civil contempt
• Citation: [2022] SGFC 63

District Judge Colin Tan:

This was an application by the Plaintiffs for an order of committal.

Introduction

The Plaintiffs had previously filed OSM 226 of 2019 and had sought to be appointed as Deputies for P, a person alleged to lack mental capacity.

P was the 1st Defendant.

The 2nd to 5th Defendants opposed the Plaintiffs’ application and filed their own application (OSM 500/2019) in which they sought to be appointed as Deputies for P.

After hearing the parties, I had concerns and reservations about both sides, and I ordered that one representative from each side was to be appointed as a Deputy for P. Both parties appealed against my decision, and, it was ordered, on appeal, that the 3rd and 4th Defendants were to be P’s Deputies.

The Plaintiffs have since appealed to the Appellate Division, and this appeal is currently pending.

Facts The parties

The Plaintiffs were friends of P.

P was the 1st Defendant, and, although it was subsequently ordered that P was to be removed as a Defendant, in order to avoid confusion, the 2nd to 5th Defendants have continued to be referred to as the 2nd to 5th Defendants for consistency with earlier documents in this case. In these grounds of decision, the Defendants have therefore continued to be referred to as the 2nd to 5th Defendants.

The 2nd Defendant was P’s “adopted” father. I have described him as “adopted” father as there was no legal adoption and therefore no legal relationship between them.

The 3rd, 4th and 5th Defendants were relatives of the 2nd Defendant.

The parties’ cases

The Plaintiffs filed an application for an order for committal and, in their Statement¹, they alleged that the Defendants had acted in breach of an Order of Court dated 5th April 2021 (“the 5th April Order”) and an Order of Court dated 17th May 2021 (“the 17th May Order”).

The Plaintiffs alleged that there had been 5 instances of breaches of the 5th April Order² and 10 instances of breaches of the 17th May Order³.

The Defendants essentially denied these allegations.

The 5th April Order

The Defendants relied on rule 696 of the Family Justice Rules in relation to the 5th April Order.

Rule 696 of the Family Justice Rules provides that, unless the Court allows otherwise pursuant to rules 696(6) or 696(7), an order “must not” be enforced unless it has been served personally.

The 5th April Order could not possibly have been served personally on the Defendants prior to the alleged breaches as the alleged breaches occurred between 11th April 2021 and 9th May 2021 but the Order of Court was only extracted on 31st May 2021.

The first 2 alleged breaches of the 5th April Order took place on 11th and 18th April 2021. The Plaintiffs alleged, in their Statement, that some of the Defendants and various other “relatives” were present when the Plaintiffs went to visit P “whereas only the 2nd Deputy or a single representative appointed by him was permitted to be present at the Plaintiffs’ visits to P”⁴.

This is a mischaracterisation of the 5th April Order. The 5th April Order provided that the Plaintiffs were permitted to visit P and the relevant portion was as follows: “The 2nd deputy (i.e. the 4th Defendant) or a single representative appointed by him is permitted to be present during the 1st and 2nd Plaintiffs’ visit.”

As can be seen from the above, the word “only” was inserted by the Plaintiffs in their Statement but is not present in the 5th April Order.

The plain meaning of the words in the relevant portion of the 5th April Order was that the 4th Defendant or a single representative appointed by him would be permitted to be present during the visit. While this meant that the 4th Defendant could be present personally or he could appoint a single representative to be present on his behalf, the 5th April Order did not specify that these were the “only” other people who would be permitted to be present, nor did it specify that no other people would be permitted to be present. While the use of the term “single representative” did mean that the 4th Defendant could not appoint more than one representative, it did not mean that other people were not permitted to be present on the premises at the relevant time.

As such, I was of the view that the matters complained of by the Plaintiffs in respect of 11th and 18th April 2021 did not constitute breaches of the 5th April Order.

The remaining 3 alleged breaches of the 5th April Order took place on 25th April, 2nd and 9th May 2021. The Plaintiffs alleged that “no one opened the door to P’s residence” when they went to visit P on 25th April and 9th May, and that the “2nd Defendant closed the door on the Plaintiffs” when they went to visit P on 2nd May⁵.

The 3rd, 4th and 5th Defendants stated in their affidavits that they were not present at P’s residence on these occasions. The Plaintiffs did not offer evidence to contradict this, but the Plaintiffs’ Counsel argued that 4th Defendant had breached the 5th April Order by failing to dissuade the 2nd Defendant from preventing the Plaintiffs’ visit.

I saw no merit in this argument as the terms of the 5th April Order were that the Plaintiffs “are permitted to visit P” and the Order did not in any way specify that the Defendants were to stop the 2nd Defendant from preventing the Plaintiffs from visiting.

As such, I was of the view that the matters complained of by the Plaintiffs in respect of the 3rd to 5th Defendants did not constitute breaches of the 5th April Order.

In respect of the 2nd Defendant, he stated in his affidavit that he did not recall hearing anyone knocking on the door on 25th April and 9th May and that he had no recollection of the events alleged by the Plaintiffs in respect of 2nd May.

The 2nd Defendant’s Counsel argued during the hearing that the 2nd Defendant was 96 years’ old and asked that the Court excuse any failure to comply on his part.

I did not agree that age is an excuse for failure to comply with an Order of Court. A person, regardless of how old or how young, is expected to comply with the terms of an Order of Court.

While advanced age may, in some cases, support a claim that a person did not hear someone knocking on the door, the general conduct of the 2nd Defendant and his blatant disregard for Orders of Court (as set out below) made it difficult for me to believe that he was so entirely innocent of wrongdoing on the 3 occasions in question, and I had serious doubts about the 2nd Defendant’s version of events.

However, given that the burden of proof lay on the Plaintiffs, and also that section 28 of the Administration of Justice (Protection) Act 2016 provides that the “standard of proof for establishing contempt of court is that of beyond reasonable doubt”, I was mindful of the fact that having doubts about the Defendant’s version did not necessarily mean that the Plaintiffs had proven their case.

The final aspect to examining the 2nd Defendant’s conduct in relation to 25th April and 2nd and 9th May was what exactly his obligations were under the 5th April Order.

In Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8, the Court of Appeal held as follows:

“In our view, the decisions in Re Oddy ([74] supra) and Iberian Trust ([74] supra) demonstrate the importance and impact of the manner in which an order of court is framed and extracted in determining whether the order can be enforced by way of committal proceedings. As Luxmoore J had observed in Iberian Trust, an order must state in unambiguous terms what had to be done on the part of the defendant in order for committal proceedings to lie against the defendant. This is, in our view, a rule of fairness. A defendant cannot be punished for failing to comply with an order of court if it is unclear what is expected of the defendant.”

In Iberian Trust, Limited v Founders Trust and Investment Company, Limited [1932] 2 KB 87, which was referred to by the Court of Appeal as set out above, the relevant part of the order in question stated as follows: “It is this day hereby adjudged and declared that the plaintiffs are entitled to the return by the defendants of the following shares, viz., 258,000 deferred shares and 11,180 preferred shares in Radium Springs, Ld., within 14 days from the date hereof. And it is further adjudged that the plaintiffs do have a return of the said shares within 14 days from the date hereof.”

Luxmoore J stated as follows in Iberian Trust:

“In my judgment, before the order in the present case be enforced against the defendant company or its directors it is necessary for the plaintiff company to obtain a supplementary order requiring the defendant company and its directors and secretary, within a limited time, to execute a proper transfer of the shares to the plaintiff company.”

In Monex Group (Singapore) Pte Ltd v E-Clearing (Singapore) Pte Ltd [2012] SGHC 189, the High Court held as follows:

“There are two steps I must take in this analysis. The first is to decide exactly what the disclosure order requires the respondent to do. The second is to determine whether he has fulfilled such requirements. In deciding what the disclosure order required, I have to interpret the plain meaning of the language used and any ambiguity should be resolved in favour of the person who has to comply with the order because it was drafted by the plaintiff who had a duty to make the requirements of the order crystal clear so that the respondent would not have any doubt about what compliance with the order entailed.”

The Order of Court stated that the Plaintiffs were permitted to visit P but did not specifically impose positive obligations on the 2nd Defendant.

In considering whether such positive obligations might be inferred, I was of the view that it was important to consider that extent of the Court’s jurisdiction and powers under the Mental Capacity Act 2008 (“MCA”).

This was a case brought under the MCA and...