Wong Ser Wan v Ng Cheong Ling

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 28 November 2005
• Neutral Citation: [2005] SGHC 218
• Docket Number: Divorce Petition No 2545 of 1999
• Date: 28 November 2005
• Year: 2005
• Published date: 01 December 2005
• Plaintiff Counsel: Ang Cheng Hock and Tan Xeauwei (Allen and Gledhill)
• Citation: [2005] SGHC 218
• Defendant Counsel: Loh Wai Mooi and Neda Namazie (Bih Li and Lee)
• Court: High Court (Singapore)
• Subject Matter: Whether agreements made in contemplation of divorce,Whether gifts from husband to wife during marriage constituting matrimonial assets divisible on divorce,Matrimonial assets,Whether gifts of shares and property from husband's father constituting matrimonial assets,Agreements made between husband and wife during marriage regarding ownership and division of matrimonial assets,Section 112(2)(e) Women's Charter (Cap 353, 1997 Rev Ed),Sections 69(5)(a), 69(5)(c) Women's Charter (Cap 353, 1997 Rev Ed),Application for maintenance for child above 21 years of age on ground of mental or physical disability of child,Maintenance,Family Law,Division,Application for maintenance for child above 21 years of age receiving instruction at tertiary educational establishment,Child,Whether court should grant applications,Gifts

28 November 2005 Judgment reserved.

Judith Prakash J:

Introduction

1 There are several related matters for decision before me. All arose out of the breakdown of the marital relationship between Mdm Wong Ser Wan (“the wife”) and Mr Ng Cheong Ling (“the husband”). The main proceedings concern the ancillary matters arising out of their divorce and the others concern maintenance of the wife and children.

2 The parties were married in January 1976. They had three children: a son, Ng Ezine (“Ezine”), born on 16 June 1977, a daughter, Ng Eharn (“Eharn”), born on 14 September 1979 and another son, Ng Ewe (“Ewe”), born on 6 May 1986. In 1999, the wife filed the petition in the main proceedings. The husband did not contest the petition and a decree nisi was granted to her on 1 August 2000. Custody of the youngest child was given to the wife. The marriage had lasted for 24 and a half years. The wife is now 57 years old while the husband is 54 years old.

3 The matters in issue in the ancillary proceedings are the division of the matrimonial assets and the wife’s claim for future maintenance of herself and Ewe. The maintenance summonses concern Ezine and Eharn’s claims for maintenance from the husband and the husband’s application for variation of the existing consent maintenance order made on 14 August 1996 (“the consent maintenance order”) to nothing. The wife had also filed Maintenance Summons No 1269 of 2001 to enforce payment of arrears under the consent maintenance order but that summons is not before me for decision.

4 The facts in this case are somewhat different from those that usually present themselves in applications of a similar nature. There are two reasons for this. First, the breakdown of the marriage took place over a prolonged period of time during which the parties had various dealings with each other in relation to maintenance and property. Such dealings resulted in written agreements on these matters. One of the main issues before me is the extent to which such agreements should be recognised now that the decree nisi has been granted. Second, the parties were involved in two previous sets of court proceedings, viz, District Court Suit No 600011 of 2001 (“the DC suit”) and High Court Suit No 310 of 2003 (“Suit 310”) in which findings were made that may have an impact on this decision.

Background

5 The breakdown of the marriage started in 1993 when the wife discovered that the husband was having an affair. Subsequently, there were problems about maintenance and in December 1995, the wife filed a maintenance summons against him. This summons was withdrawn in March 1996 after the husband promised to give the wife maintenance of $12,000 a month. The situation deteriorated thereafter and in July 1996, the wife filed a fresh maintenance summons. At the hearing of this summons on 14 August 1996, the parties, both of whom were represented by solicitors, agreed on the consent maintenance order. This provided for the husband to pay the following sums to the wife:

(a) $15,000 per month for the maintenance of the wife and the three children comprising:

(i) $7,000 for household expenses, children’s day-to-day expenses, salaries of maids and cost of groceries; and

(ii) $8,000 for the personal expenses of the wife;

(b) all expenses incurred by the wife in relation to overseas travel including airfare, transport and accommodation expenses;

(c) the credit card expenses of the wife,

(i) in the case of overseas expenses, comprising expenses for car rental, taxis, dining, and shopping for the children; and

(ii) in the case of expenses in Singapore, limited to $2,000 a month;

(d) all the medical, educational, travel and overseas living expenses of Ezine;

(e) all the medical, educational and travel expenses of the other two children;

(f) all the wife’s medical expenses and her expenses at the American Club; and

(g) all wages for the driver and gardener, and all petrol expenses for the car.

6 The husband did not, however, fully meet his obligations under the consent maintenance order. Additionally, in October 1996, he admitted to the wife that he had continued his adulterous affair. Shortly thereafter, the wife filed a divorce petition grounded on adultery. Three months later she filed a maintenance summons against the husband for arrears in maintenance.

7 Following a letter from his solicitors which expressed the desire of the husband to save the marriage, the parties began negotiations. These discussions eventually led to the signing of an agreement termed the “Financial Agreement” on 1 December 1997. By the terms of the Financial Agreement, the husband agreed to cease his relationship with the co-respondent named in the divorce petition and to carry out his moral and financial obligations towards the wife and the children. By cl 7, the husband agreed that he would continue to pay the wife monthly maintenance in accordance with the terms of the consent maintenance order. The Financial Agreement also contained a whole list of gifts to be made by the husband to the wife. These were as follows:

(a) the husband agreed to give to the wife absolutely and irrevocably the following immovable properties:

(i) 5633 Chancellor Boulevard, Vancouver, BC (“Chancellor Boulevard”);

(ii) 4756 Drummond Drive, Vancouver, BC (“Drummond Drive”);

(iii) #3-1919 Beach Avenue, Vancouver, BC (“Beach Avenue”); and

(iv) 3 Cluny Hill, Singapore (“Cluny Hill”).

(b) he agreed to repay the sum of C$1.23m secured by Beach Avenue by 31 December 2003;

(c) he agreed to pay the mortgage instalments for Cluny Hill and to discharge all indebtedness relating to that property within the next three years;

(d) he agreed to give her the sums of S$2.5m and US$320,000 in the following instalments:

(i) the US$320,000 was to be paid within seven days of the date of the Financial Agreement;

(ii) S$500,000 was to be paid within three months;

(iii) S$1m was to be paid by 30 November 1998; and

(iv) the remaining S$1m was to be paid by 30 November 1999.

(e) he agreed to transfer to her all shares then held by him in a company called Lei Garden Restaurant Pte Ltd, such transfer to be completed no later than 15 February 1998.

8 The husband fulfilled some but not all of the provisions of the Financial Agreement. He did not transfer the shares in Lei Garden Restaurant Pte Ltd to the wife by 15 February 1998 but on 10 February 1999, he paid over to her the sum of S$2,646,000 which he had received from a third party on the sale of these shares and the wife accepted this sum in satisfaction of the husband’s obligation in respect of the shares. He did transfer to her all the immovable properties but he did not pay off the mortgage on Beach Avenue or that on Cluny Hill. Further, he failed to pay all the mortgage instalment repayments accruing in respect of Cluny Hill and the wife had to pay those. In respect of the cash gifts, the husband did not pay the wife the sums of $1m due on 30 November 1998 and 30 November 1999. Finally, he did not comply fully with the consent maintenance order.

9 In the meantime in mid-1998, the husband sold certain assets. The first was a property at 764 Mountbatten Road, Singapore (“the Mountbatten property”) which he sold to a company called Ng Bok Eng Holdings Pte Ltd (“NBEH”) for US$2m. The second comprised shares in NBEH which he sold to another company called Bian Bee Company Pte Ltd (“Bian Bee”) at the price of US$1m. Both Bian Bee and NBEH are companies owned and controlled by the husband’s family. In Suit 310, sitting in the High Court, I found that the two conveyances of these assets had been made by the husband with the intent of defrauding the wife and declared the conveyances to be void. This decision was affirmed by the Court of Appeal in Civil Appeal No 87 of 2004.

10 On 8 July 1999, the parties entered into a deed of separation (“the Deed”). By this deed, they agreed to continue to live separately and apart at Cluny Hill and made provision for the wife to have care and control of the children and for the husband to have liberal access to them. The Deed provided that the terms set out in the consent maintenance order and the Financial Agreement should continue to apply. It was also agreed that if either party was in breach of any of the provisions of the Deed, the other party might proceed to take such legal action, including the presentation of divorce proceedings, as if the Deed had not been made. After the Deed was signed and pursuant to its terms, the wife withdrew the divorce petition that she had filed in 1996.

11 Shortly thereafter, however, the wife learnt that the husband had been seen again with the woman he had previously had the affair with. Suspecting that he was not keeping his promise to cease improperly associating with other women, the wife began recording the husband’s telephone conversations at his office at Aromate Pte Ltd (“Aromate”). After listening to some of these conversations, she believed that he was planning to dissipate his assets so that she would receive a smaller share of the matrimonial assets in the event of a divorce. She was so upset that she filed a fresh divorce petition on 8 October 1999 (the petition in the present proceedings) and instructed her solicitors to apply for a Mareva injunction to prevent the husband from dissipating his assets. A Mareva order was granted in her favour in March 2000.

12 In the meantime, the husband had filed an application in the Magistrate’s Court for a downward variation of the consent maintenance order on the basis of his poor financial position and the wife’s alleged abuse of the order. The husband was cross-examined on the affidavits he had filed in support of his application and, after the evidence was taken, his application was dismissed. This happened on 13 April 2000.

13 Shortly before that, on 18 March 2000, the husband had filed an originating summons in the High Court against the wife for a declaration that the Financial Agreement was null...