Wee Ah Lian v Teo Siak Weng

• Jurisdiction: Singapore
• Judge: Karthigesu J
• Judgment Date: 28 February 1992
• Neutral Citation: [1992] SGCA 15
• Docket Number: Civil Appeal No 87 of 1990
• Date: 28 February 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: SK Isaac (Isaac & Puva)
• Citation: [1992] SGCA 15
• Defendant Counsel: P Suppiah (P Suppiah & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 106 Women's Charter (Cap 353),Ancillary orders,Family Law,Whether parties agreed to settlement,Whether settlement can be upheld in the exercise of the court's discretion,Full and frank disclosure of assets to be made to court hearing ancillary matters,Division,Matrimonial assets

Cur Adv Vult

The appellant, Wee Ah Lian (the wife) appeals against the ancillary orders made on 31 August 1990 in Divorce Petition No 618 of 1986. The ancillary orders were as follows:

(a) all assets (No 124 Pasir Ris Road, Singapore, No 27 Puncak Ria Lima, Bukit Ferringhi, Penang, Malaysia, HDB flat Apartment Block 107, No 2238F (now #07-2238) Bedok North Road, Singapore, and US$171,783.82 (account in Hong Kong) be realized into cash by 31 December 1990);

(b) the Pasir Ris property and any other property already sold or realized be valued as at today`s date if parties do not agree on their value;

(c) there be equal division of total assets in cash;

(d) each party is to account for what he or she has already received or realized by the sale of property or withdrawal of cash from the Hong Kong account;

(e) the balance after deduction of receipts of each party be paid to that party;

(f) the order for custody of son, Shannon, and access to continue;

(g) the maintenance for wife be the nominal sum of $10 per month with liberty to apply;

(h) the maintenance for son be the nominal sum of $10 per month with liberty to apply;

(i) there shall be liberty to apply by both parties;

(j) the petitioner [the wife] is to pay one third of the taxed costs to the respondent [the husband].

The wife, then a divorcee, married the respondent, Teo Siak Weng (the husband), then a widower, in the Registry of Marriages, Singapore on 4 January 1973. There is one child of the marriage, a son, Shannon Teo Yoon Cheong born on 12 March 1974.

On 9 April 1986 the wife commenced divorce proceedings against the husband citing his unreasonable behaviour for the irretrievable breakdown of the marriage. She also claimed the sole custody of the son, but was agreeable to giving the husband reasonable access, maintenance for herself and the son and a division of the matrimonial assets.

On the same day, 9 April 1986, the wife applied for and obtained an ex parte interim injunction restraining the husband from dealing with, disposing of or in any manner parting with the US$171,783.82 or any part thereof and from selling or otherwise parting with possession of the Penang property at No 27 Puncak Ria Lima, Bukit Ferringhi. Following an inter partes hearing on 20 May 1986, the ex parte interim injunction was ordered to be continued until further order.

The husband, who by his memorandum of appearance had indicated his intention to answer the wife`s petition, appealed against the order made on 20 May 1986 to continue the ex parte injunction. The hearing of the appeal was fixed for 15 July 1986. No answer appears to have been filed by the husband in the divorce proceedings.

On 11 July 1986 the wife`s solicitors sent a telex to the husband`s solicitors marked `without prejudice`. In the events which followed in these proceedings nothing turns on this telex being marked `without prejudice`. [See Tomlin v Standard Telephones & Cables Ltd 1 at p 1382 per Danckwerts LJ.] It is necessary to set out this telex in full. It reads:

We are instructed that there is a settlement as follows:

(1) That the appeal herein be withdrawn.

(2) That Account No 32-40330-9 at Overseas Union Bank, King`s Avenue Branch in the joint names of husband and wife be henceforth operated on a joint basis, ie all withdrawals or cheques drawn on the said account must require the authorization or signatures of them both.

(3) That the appellant [the husband] acknowledges that he has since the filing of the divorce petition utilized overdraft facilities in Account No 32-40330-9 to the extent of above $550,000.

(4) That the sum of US$171,783.82 plus all interest accrued thereon held by the appellant in Account No 260-20994-001 in the Hongkong & Shanghai Banking Corp, Hong Kong be paid to the petitioner/ respondent, Wee Ah Lian [the wife] who undertakes to deposit the said sum so released into the said Account No 32-40330-9 at OUB Singapore.

(5) That the appellant acknowledges that the sum outstanding to the OUB is his personal debt and he will within five years from the date hereof repay all outstandings to the OUB for the purpose of ensuring that the property No 124 Pasir Ris Road is free from all encumbrances within five years from the date hereof.

(6) That upon repayment aforesaid the appellant shall cease to be a joint signatory to the account and the petitioner shall operate [the] same for her sole use and benefit.

(7) That the appellant forthwith relinquishes all his right title and interest to the one-half undivided share in the property known as No 124 Pasir Ris Road and will undertake to sign all documents necessary to transfer his said half share to the petitioner, whereby she becomes the sole owner of the property.

(8) That the appellant will forthwith transfer his right title and interest in the property known as No 27 Puncak Ria Lima, Penang to the petitioner for her absolute use and benefit.

(9) That the HDB flat No 2238F, Block 107, Bedok North Road currently occupied by the appellant`s parents be either sold or valued at current market value and the proceeds of sale or the sum equivalent to its market value be paid to the petitioner within five years from the date hereof.

(10) That the appellant converts to Roman Catholicism.

(11) That the appellant continues the psychiatric treatment presently received in relation to his sexual conduct, until such time as he is cured.

(12) That the appellant continues maintenance as before.

(13) That in the event that the reconciliation presently attempted by the parties breaks down and the petitioner proceeds with the divorce herein the appellant confirms that the petitioner`s share of the matrimonial property under prayer (iv) of the petition is:

(a) The whole of No 124 Pasir Ris Road free from encumbrances.

(b) The whole of No 27 Puncak Ria Lima, Penang free from encumbrances.

(c) A lump sum equivalent to the market value of No 2238F, Block 107, Bedok North Road.

(14) The petitioner confirms that in the event of divorce she will not make any further claims apart from (a), (b) and (c) above in respect of prayer (iv) of the petition.

(15) The divorce petition herein be adjourned sine die.

(16) That the petitioner`s solicitor and client costs incurred todate be paid by the appellant.

Kindly obtain instructions on the above. If confirmed a draft order of Court of Appeal will have to be agreed upon.

The husband`s solicitors did not respond to the above telex. Instead, they proceeded with the husband`s appeal against the continuation of the ex parte interim injunction which the court had ordered on 20 May 1986. The appeal was heard on 15 July 1986 and dismissed.

We will pause here to observe that by not responding to the wife`s solicitors` telex of 11 July 1986 and by proceeding with his appeal on 15 July 1986 the husband was clearly denying `that there (was) a settlement` on the terms set out in the wife`s solicitors` telex of 11 July 1986 or at all. It will be noted that what the wife`s solicitors were putting to the husband`s solicitors was that they were instructed by their client that the parties had agreed to settle their disputes themselves and had agreed upon certain terms which the husband`s solicitors were asked to confirm after taking instructions from their client. It is also evident from the telex itself that the confirmation that there was a settlement and if so that the telex contained the terms of the settlement must be communicated to the wife`s solicitors before 15 July 1986 when it was expected that the husband`s appeal would be heard or at any rate before the husband`s appeal was in fact heard. Otherwise, the terms of having the appeal withdrawn and embodying the terms of the settlement in a draft order of the Court of Appeal to be agreed upon would make no sense.

It seems to us less likely that the parties had agreed to settle their disputes and all that the wife`s solicitors wanted from the husband`s solicitors was confirmation of the terms of the settlement. It seems to us more likely that the parties were still exploring the possibilities of a settlement and that the wife`s solicitors` telex of 11 July 1986 was an offer put forward by the wife`s solicitors on her behalf which when accepted, if it was accepted, before the hearing of the husband`s appeal would constitute an agreement. There is no evidence to support that the parties were ad idem when the wife`s solicitors` telex of 11 July 1986 was sent to the husband`s solicitors. The wife`s offer of the terms for a settlement was not accepted before the time impliedly set for acceptance, namely 15 July 1986, or at the latest before the husband`s appeal was heard.

It should also be noted that the wife`s solicitors` telex of 11 July 1986 expressly provided for the contingency of the reconciliation attempts breaking down. Items 13, 14 and 15 refer to this. It should further be noted that there is no inconsistency between the two parts of the wife`s solicitors` telex of 11 July 1986 in so far as to how, what was claimed by the wife to be matrimonial assets should be dealt with, whether there was reconciliation or there was no reconciliation. Compare items 7, 8 and 9 with items 13 and 14.

The elaborate provisions contained in items 2, 3, 4, 5 and 6 relate to the uplifting of the deposit of US$171,783.82 maintained in the husband`s name in Hong Kong; for the payment of its Singapore dollar equivalent into the joint account with the Overseas Union Bank`s branch at King`s Avenue; for the operation of that joint account; and for the ultimate discharge of the overdraft facilities enjoined to that joint account and the release of No 124 Pasir Ris Road which secured the overdraft facilities enjoined to the joint account. These provisions apply only in the contingency of the parties being reconciled.

Thus, in our view there was no agreement for a settlement before the husband`s...