Yeo Chong Lin v Tay Ang Choo Nancy and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 25 March 2011
• Neutral Citation: [2011] SGCA 8
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal Nos 81 and 82 of 2010
• Published date: 05 April 2011
• Year: 2011
• Hearing Date: 30 November 2010,01 October 2010,01 November 2010
• Plaintiff Counsel: Nicholas Lazarus (Justicius Law Corporation)
• Defendant Counsel: Imran Hamid Khawaja and Renu Ranjan Menon (Tan Rajah & Cheah)
• Subject Matter: Civil Procedure,Family Law
• Citation: [2011] SGCA 8

Chao Hick Tin JA (delivering the judgment of the court): Introduction

These are two related appeals filed by the Husband, Yeo Chong Lin, and Wife, Nancy Tay Ah Choo, respectively, against the decision of a judge of the High Court (“the Judge”) relating to the division of matrimonial assets following an interim judgment (“decree nisi”) granted by the Family Court. The Judge granted 35% of the matrimonial assets to the Wife and 65% to the Husband. CA 81 of 2010 is filed by the Husband and CA 82 of 2010, the Wife. Both parties are dissatisfied with various aspects of the Judge’s decision. The decision of the Judge may be found at [2010] SGHC 126 (“GD”).

The marriage of the parties is among the longest to come before the courts in recent years. It was a 49 year marriage. The parties were married in 1956. The Husband was the breadwinner and the Wife was a full-time homemaker throughout the entire marriage. In April 2005, the Wife petitioned for divorce on the ground of adultery. A decree nisi was granted in July 2005.There are four children from the marriage and they are all grown-up, the youngest having been born in 1967. At the time the decree nisi was granted, the Husband was aged 73 and the Wife 71. An exceptional feature of this case is that the matrimonial assets are huge, estimated by the Judge to be in the region of about S$116,560,000. It was not disputed that the accumulation of this large amount of wealth was due largely to the efforts, business sense and acumen of the Husband, who came from a rather poor background. In the words of the Judge, “[d]ue to the Husband’s unceasing and tireless efforts, he was able to build up an extremely profitable and diverse business in the marine industry” (GD at [10]). His assets included a substantial shareholding (held through his company, Yeo Holding Pte Ltd (“YHPL”)) in a publicly listed company, Swissco International Limited (“SIL”).

The shares in YHPL which are held by the Husband constitute a large proportion of the matrimonial assets. As at 30 May 2006, the Accounting and Corporate Regulatory Authority (“ACRA”) records showed that the shares in YHPL were held by the following members of the family: Husband - 5,592,298 shares; Two daughters, Catherine Yeo Lee Twan (“Catherine”) and Margaret Yeo Lee Hiang (“Margaret”) - 1,516,556 shares (758,278 shares each); and Son, Alex Yeo Kian Teong (“Alex”) – 2,369,618 shares.

As at 16 September 2009, ACRA records showed that the shares in YHPL were held by the following persons: Husband – 5,213,160 shares; Husband’s brother, Yeo Chong Boon (“Yeo Chong Boon”) – 947,847 shares; Husband’s sister, Anna Yeoh Ai Tin (“Anna Yeoh”) – 947,847 shares; and Son, Alex– 2,369,618 shares.

After the Wife had filed for divorce, the Husband acquired additional assets which he contends should not be regarded as part of the matrimonial assets to be divided. These assets are the following: (a) property at 202A Lornie Road, which was purchased in May 2005, and which was sold before the hearing of the ancillary matters; (b) property at 9 Wak Hassan Drive purchased in November 2005 in his name and the party cited and where there was an outstanding loan; (c) property at 74 Andrews Terrace bought in 2008 in his name and the party cited and where there was an outstanding loan; (d) a number of luxury vehicles bought in 2008 and 2009 on hire purchase; (e) 800,000 shares in Roxy Pacific Holdings Ltd allegedly acquired after March 2008; (f) option to subscribe for 500,000 shares in SIL; (g) 614,000 shares in SIL; and (h) 6 Chestnut Close, which was purchased in October 2007 by YHPL. The Husband argues that these assets should not be regarded as matrimonial assets because after the Wife left the matrimonial home, and in any case after the divorce proceeding was filed, the marriage had effectively come to an end. He contended that the cut-off date (“operative date”) for determining matrimonial assets should be the date when the parties separated or, at the latest, when the divorce proceeding was filed. This point, in turn, raises the issue as to whether, under the Women’s Charter, there ought to be an operative date for determining what assets would fall within the pool of matrimonial assets for division and what that operative date should be. These are issues which we will consider.

Other issues which also arise in these appeals are: (a) How the shares in YHPL given by the Husband to the son and two daughters ought to be regarded; the Judge decided that these shares should be regarded as belonging to the Husband. (b) How the jewellery given by the Husband to the Wife during the marriage ought to be regarded; the Husband has alleged that during the marriage he gave the Wife a considerable number of jewellery items. (c) Whether the apportionment of matrimonial assets at 35:65 in favour of the Husband is just and equitable.

Summons 3287/2010 – Husband’s application to adduce further Evidence on Appeal

Before we examine the question of division of matrimonial assets, we should first refer to Summons No 3287/2010/D (“SUM 3287”), filed by the Husband seeking leave to adduce fresh evidence by affidavit for the purposes of the hearing of the two appeals. The fresh evidence relates to the fact that their two daughters, Catherine and Margaret, have filed High Court Suit No S373/2010/C (“S 373/2010”) on 21st May 2010 claiming beneficial ownership of the 1,516,556 shares in YHPL (“Daughters’ Shares”) which the Judge at GD [28] had held to belong to the Husband and placed them in the pool as matrimonial assets to be divided. The Daughters’ Shares are estimated to have a value of $14,512,086.03.

The Husband averred that the further evidence should be admitted as it relates directly to the heart of the matter in these appeals – who possesses the beneficial ownership of the 1,516,556 shares. Clearly, if the shares belong to the two daughters, they cannot be considered as part of the matrimonial assets to be divided even though the Husband had claimed at the hearing of the ancillary matters before the Judge that the beneficial ownership to the shares vested in him (although they are registered under the daughters’ names) because the daughters had not provided any consideration for the same. The hearing of the ancillary matters was held on 16 to 17 September 2009 and the decision of the Judge was released 26 April 2010. The two daughters commenced S 373/2010 only in May 2010. As the documents relating to S 373/2010 only came into being after the decision had been rendered, they are, therefore, not subject to the requirements as set out in Ladd v Marshall [1954] 1 WLR 1489 (“Ladd v Marshall”). Moreover, even if Ladd v Marshall should apply, the facts in this case would have satisfied the criteria for accepting fresh evidence on appeal as laid down in that case.

The Wife initially disputed the admission of the further evidence on the ground that the evidence related to a matter which had already been brought to the attention of the Judge. She pointed to the fact that on 16 September 2009, she found from an ACRA search that the daughters were no longer listed as shareholders of YHPL and that their shares had been transferred to the Husband’s sister, Anna Yeoh and the Husband’s brother, Yeo Chong Boon. These facts were brought to the attention of the Judge on 17 September 2009. On 22 September 2009, with the leave of court, the daughters filed an affidavit to confirm that the shares were transferred without their consent and that the daughters would be “taking up this matter in due course to investigate”. This affidavit of the two daughters was served on the Husband the next day. Accordingly, the Wife asserted that what was sought to be admitted as fresh evidence was already brought to the court’s attention before the decision was made by the Judge and that it did not fulfil the conditions laid down in Ladd v Marshall. We should add that while the two daughters’ shares in YHPL were purportedly transferred out without their consent, for the purposes of these appeals, the shares will be treated as still being registered under their names.

It is true that the dispute between the Husband and two daughters over the beneficial ownership of the Daughters’ Shares was already highlighted to the Judge and many of the documents filed as evidence for the daughters’ High Court suit were already admitted in this case. Moreover, at the hearing before the Judge, the daughters had also indicated that they would challenge their father’s act in taking away their legal and beneficial ownership in the Daughter’s Shares. Therefore, in a sense, by instituting S 373/2010 nothing really new has happened, only that the daughters have taken the matter one step further as they had earlier indicated.

However, the fact of the matter is that the filing of S 373/2010 was certainly an event which occurred after the judgment was delivered. The documents filed in the writ would not have been documents which the Husband could have produced to the Judge. It cannot be gainsaid that the institution of this writ is directly relevant to the question as to whether the Judge is correct to have treated the Daughters’ Shares as belonging to the Husband and thus formed part of the matrimonial assets. Let us assume for a moment that the decision of the Judge on this question is affirmed and let us further assume that at the trial of S 373/2010 the court held that the Daughters’ Shares belonged to them beneficially as gifts given by their father and that their father was not entitled to take away their shares without their consent. Where would that scenario leave the Husband? The Husband has accused the daughters of aiding their mother (the Wife) in trying to have the shares classified as matrimonial assets by only filing a lawsuit after the decision was released when they could have filed the writ in the four-year period when the...