Yap Hwee May Kathryn v Geh Thien Ee Martin and Another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 03 July 2007
• Neutral Citation: [2007] SGHC 108
• Docket Number: Originating Summons No 983 of 2006
• Date: 03 July 2007
• Year: 2007
• Published date: 24 July 2007
• Plaintiff Counsel: Engelin Teh SC and Linda Ong (Engelin Teh Practice LLC)
• Citation: [2007] SGHC 108
• Defendant Counsel: Luna Yap (Luna Yap & Co),Josephine Chong (UniLegal LLC)
• Court: High Court (Singapore)
• Subject Matter: Section 112(1) Women's Charter (Cap 353, 1997 Rev Ed),Matrimonial assets,Division,Whether "decree of divorce" including decree nisi,Order of division relating to assets at specific date,Family Law,Whether operative date should be date of decree nisi or decree absolute

3 July 2007 Judgment reserved.

The parties

1 The first defendant, Martin Geh Thien Ee, is in the midst of divorce proceedings from the second defendant, Jacqueline Sim Lean Choo. The divorce proceedings, D No 1393 of 2005, was filed by the second defendant on 2 April 2005 and a decree nisi was granted by the Family Court on 24 May 2005. The plaintiff, Kathryn Yap Hwee May, was the co-respondent in the divorce proceedings.

The background

2 After the marriage of the first defendant and the second defendant broke down, the first defendant co-habited with the plaintiff and her two children. The plaintiff and the first defendant bought a house at 12E Sime Road (“the property”) as tenants in common in equal shares and operated a joint account No 027-xxx-6 with the DBS Bank (“the joint account”).

The plaintiff’s application

3 The plaintiff’s application before me was for:

i. A Declaration that as at 4 November 2003, all the 1^st Defendant’s rights, interest and title in the property known as 12E Sime Road Singapore 288292 (“the Property”) had been transferred to the Plaintiff and that the Plaintiff is the sole legal and beneficial owner of the Property;

ii. A declaration that the total sum comprising all the deposits made by the Plaintiff into the DBS Joint Account No. 027-xxx-6 (“the Joint Account”), less the sum of $12,584.85, being the Plaintiff’s personal expenses, belongs to the Plaintiff wholly and beneficially and that the 1^st Defendant do account to the Plaintiff for the same;

iii. A Declaration that the balance in the Joint Account as at 30 April 2006 (being S$39,882.56) belongs to the Plaintiff absolutely;

I shall refer to them as prayers 1, 2 and 3 respectively.

The reason for the plaintiff’s application

4 The plaintiff took out the application because the property and the joint account had become entangled in the divorce proceedings between the two defendants. The second defendant had obtained two interlocutory injunctions over the property and the joint account:

(a) On 6 January 2006, an interlocutory injunction was granted against the plaintiff (as the co-respondent in the divorce proceedings) from disposing of the property, unless a sum of $208,000 from the sale proceeds is retained.

(b) On 30 September 2005, the first defendant was injuncted from disposing of several assets, including the money in the joint account.

5 The second defendant had sought and obtained those orders on the ground that the first defendant’s interest in the property and the joint account were matrimonial assets which should be preserved and made available for division by the Family Court.

6 The plaintiff made her application in the High Court in the belief that the Family Court does not have the power to determine whether the property and the money in the joint account are matrimonial assets. It was submitted:

8. It is the Plaintiff’s position that the Family Court is only vested with the powers under section 112 of the Women’s Charter (Cap. 353) to make orders over matrimonial assets owned by the 1^st and 2^nd Defendant. An asset can only conceivably be defined as a matrimonial asset provided the 1^st Defendant and/or the 2^nd Defendant has a right, interest or title in the same. Section 112 does not empower the Family Court to make orders pertaining to assets owned by 3^rd parties absolutely. As such, in determining whether the 1^st Defendant has any share or interest in the assets that the Plaintiff owns, the provisions under the Women’s Charter (Cap. 353) do not apply. The Court is obliged to apply legal principles under general law to determine the rights and interests of the 1^st Defendant and the Plaintiff vis-à-vis the Property and the Joint Account. Only in the event that the Court, in applying general legal principles, finds that the 1^st Defendant does indeed have a share or interest in the Property and/or the Joint Account, can the 2^nd Defendant thereafter take the position that the 1^st Defendant’s share in such assets constitutes matrimonial assets and invoke the Family Court’s jurisdiction to apportion such share or interest of the 1^st Defendant between the 1^st and 2^nd Defendants.

9. In the case of Lau Loon Seng v Sia Peck Eng [1999] 4 SLR 408 [“Lau Loon Seng”], the wife sought division of shares which were held in the names of third parties in trust for the husband. The husband contended that the Family Court had no jurisdiction to decide on the issue of those shares held in the names of third parties. On appeal, the Honourable Justice Kan Ting Chiu held that the husband’s contention failed because in that case, the wife merely sought a payment by the husband for the value of those shares. She was not seeking an order that required the third parties to transfer any shares to her.

The complaint was that the judge had no jurisdiction to decide on the issue because the wife should take a separate application for a declaration of trust and because it was wrong to make the decision without notice to the registered owners of the shares.

I do not see any basis for the complaint. The husband knew that the wife regarded those shares as matrimonial assets, and he had addressed the issue in his affidavits. The issue was confined to the division of property between them. The wife did not want the registered owners to transfer any of their shares to her. She obtained an order that the husband pay her the value of her division in the shares. The two registered owners are not affected by the order as they are not required to transfer any shares to her. Whether they are liable to transfer the shares to the husband is a separate issue to be resolved between them and him if a dispute arose.[note: 1]

7 The facts in Lau Loon Seng differ from the facts of the present case in one significant way. In Lau Loon Seng, the shares alleged to be matrimonial assets were held by persons who were not parties to the proceedings. For that reason, a determination on the beneficial ownership of the shares could not be made without their participation in the proceedings. In the present case, the property and the joint account were held by the plaintiff with the first defendant. As the plaintiff was already a party in the divorce proceedings before the Family Court, the Family Court can deal with the beneficial ownership of the property and the money in the joint account because all the necessary parties are before it.

8 The plaintiff had made the application with the intention of obtaining declarations that the property and the majority of the money that had been deposited into the joint account belonged to her and thus should not be tied up with the divorce proceedings. I shall review the merits of and necessity for each prayer.

Prayer 1 – the property

9 The plaintiff and the first defendant contracted to buy the property in October 2002 at the price of $2.08m and the purchase was completed in January 2003.

10 The first defendant paid $208,000 towards the deposit payment while the plaintiff paid $266,190.57. They took a loan of $1,650,000 and bore the monthly repayments equally. The first defendant did not retain his interest for long. In August 2003, he contracted to sell his interest in the property to the plaintiff for $208,000, and the sale was completed in November 2003. The process by which the price of the first defendant’s share in the property was fixed at $208,000 was not explained.

11 The injunction granted in relation to the property appears to have some reference to the $208,000 paid to the first defendant. However, since the $208,000 had been paid to the first defendant, it is not apparent why the plaintiff, rather than the first defendant, was injuncted from...