Yeong Swan Ann v Lim Fei Yen

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 09 January 1999
• Neutral Citation: [1999] SGCA 1
• Docket Number: Civil Appeal No 64 of 1998
• Date: 09 January 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Ann Tan and Sarjeet Singh (Ann Tan & Associates)
• Citation: [1999] SGCA 1
• Defendant Counsel: David Liew (Kenneth CP Tan & Liew)
• Court: Court of Appeal (Singapore)
• Subject Matter: Equality of division and in fairness,Matrimonial assets,Whether loan considered part of matrimonial assets,s 106 Women's Charter (Cap 353),Whether court has jurisdiction and power to order repayment of loan between parties,ss 106, 106(2) & 106(4) Women's Charter (Cap 353),Scope of s 106 of the Women's Charter,Division,Family Law

Judgment:

YONG PUNG HOW CJ

(delivering the grounds of judgment of the court): Introduction

1.This appeal arises out of an order dividing the matrimonial assets of the parties under the then s 106 of the Women`s Charter (Cap 353) made pursuant to a decree nisi granted to the wife, who is the respondent in this present appeal, on 24 January 1996 pursuant to the former s 88(3)(b) of the Women`s Charter dissolving their marriage which had been contracted on 23 May 1987. The decree nisi awarded custody of the two children of the marriage, now aged 6 and 4 respectively, to the wife. The ancillary matters were adjourned to chambers and the subject of the division of the matrimonial home (a flat) and the issue of the husband`s access to the children were dealt with by another court. The only issues in this appeal are, an order to the husband to repay the wife the sums of $6,600 and $22,300 pursuant to prayer 11(e) of the wife`s cross-petition and the division of certain shares held by the husband that had previously been the subject of much dispute in a separate civil suit. In the court below, Lai Siu Chiu J ordered that the husband repay the wife the $6,600 and $22,300 and that the husband transfer 12,000 Amalgamated Steel Mill Bhd (ASM) shares and 10,000 First Allied Corporation (FAC) shares to the wife within ten days of the order.

2. Facts

In 1993, the husband joined the Safra Resort Country Club (SRCC). The joining fee for this club was $6,600. The wife claimed that she had paid this sum of money as the husband had no money to do so himself. The wife also claimed that she had loaned the sum of $22,300 in cash to her husband over a period of time during the duration of their marriage.

3.The shares in question were in the husband`s name and consisted of 20,000 FAC shares purchased on 10 January 1994 and 25,000 ASM shares purchased on 27 December 1993 and 12 January 1994 respectively. The prices for the three lots of shares were $47,664.69, $59,902.70 and $15,000 respectively and totalled $122,567.39. The wife claimed that she and her mother had funded all of the purchases of these shares. The shares were the subject of a separate lawsuit whereby the husband had in DC Suit No 5003/95 sued the firm of stockbrokers, Lim & Tan Securities Pte Ltd and one of their dealer`s representatives, Doris Liau, for conversion of the shares which he alleged were wrongly released to his wife in July 1994. The wife was joined as a third party to the action. As Doris Liau did not defend the action, the trial was confined to the third party action. The district judge found that the wife had not made out her defence of ownership of the shares and ordered that the shares be returned to Doris Liau. No ruling was however made as to whether the shares were or were not matrimonial property.

4. The decision below

In the court below, Lai Siu Chiu J ordered the husband to repay the sums of $6,600 and $22,300 to the wife and to transfer 12,000 ASM and 10,000 FAC shares to the wife. In coming to her decision, the learned judge stated that, on the affidavit evidence, she had no doubt that the husband had no scruples about lying and did lie on oath, and as such his testimony could not be accepted and indeed was thoroughly discredited by the exhibits in his wife`s affidavits. Apart from her general observations that the husband was a spendthrift, the learned judge also observed that the question of the husband`s CPF savings was never taken into account in the division of the matrimonial assets.

5.Additionally in relation to the specific prayers in the wife`s cross-petition, the learned judge found that the wife had indeed paid for the SRCC membership even though it was in the husband`s name. As the wife and children would in practical terms now be unable to use the club`s facilities, it was only fair that the husband reimburse the wife for the payment of the membership fees, especially since the membership can neither be transferred nor sold.

6.As regards the wife`s other loan to the husband of $22,300, the learned judge found that this was adequately supported by the husband`s own hand-written note which the husband did not or could not satisfactorily explain away. As such, the learned judge accepted the wife`s submissions that she had indeed loaned the above sum to the husband. The learned judge ordered this despite the case of Chong Li Yoon v Soo Yook Thong [1993] 3 SLR 181 which stated that a loan being a claim in contract or quasi-contract, did not come within the range of orders that the court could order within its jurisdiction under Pt IX, Chs 4 and 5 of the Women`s Charter. This was because it seemed to the learned judge that it was not in the interests of the parties, especially the wife, to allow legal niceties to affect the necessity of ordering a clean break between the parties vis--vis the matrimonial assets, as opposed to ordering that the wife should start fresh proceedings to recover the loan of $22,300.

7.In regard to the shares, the learned judge found that as the source of funds for the husband`s purchase of shares was mainly from the wife, the shares in question were therefore matrimonial assets. Lai Siu Chiu J accepted counsel for the wife`s submissions that the husband simply did not have `seed` money with which to commence trading as he had only been earning the modest salary of $1,200 in 1987 working for the wife`s father and that, for a time in 1989 he was unemployed as a result of closing down the company that he owned. Those facts, coupled with the fact of his admission in the hearing of the DC suit mentioned above that the wife had probably made cash deposits of $32,000, $4,200 and $9,000 into his UOB current account between 17 November 1993 and 25 January 1994 meant that she likely funded the purchase of some shares, albeit not ASM or FAC. The learned judge then determined the wife`s entitlement to the shares, taking into consideration the factors set out under s 106(1) of the Women`s Charter, and that the decision of the district judge in the DC Suit touching on the ownership of the shares was irrelevant in that regard.

8.Lai Siu Chiu J found that, as the facts showed that the wife had primarily shouldered the financial burden for the duration of the seven years` marriage, and that the husband in the course of the proceedings had shifted his stance whenever it suited his interests, an appropriate order would be to divide the FAC shares equally between the parties and to give the husband 13,000 as against 12,000 to the wife, of the ASM shares.

9. The appellant`s case

The husband appealed against the whole of the learned judge`s decision. His main ground of appeal in regard to the $6,600 and the $22,300 was that the issues were not adjudicated in the correct forum. Counsel for the husband argued that both these matters should not have been determined under the ancillary hearing of the divorce proceedings and should instead have been adjudicated in a civil suit. It was also argued that the learned judge had erred in her finding of fact that the wife had paid the $6,600 membership fee to SRCC, that the wife had in fact loaned the sum of $22,300 to the husband and that the husband had not earlier paid back the wife the said sum in any case.

10.In regard to the division of the shares, the appellant asserted that issue estoppel applied and it was wrong for the learned judge to reopen the issue of the wife`s alleged payments for the shares when it had been conclusively found in the District Court that the wife had no beneficial interest in the said shares. Also, if the shares were to be treated as matrimonial assets, that the wife`s entitlement should be considered under ss 106(3) and (4) instead of s 106(1) of the Women`s Charter as the shares were acquired by his sole effort and not by the parties` joint efforts. The husband contended that, if this was done, the wife should not be given virtually 50% of the total amount of the shares.

11. The appeal

There were three distinct types of assets that are in issue here, namely, the $6,600 SRCC membership fee, the loan of $22,300 and the shares.

12. The $6,600 SRCC membership fee

The husband contended that the sum of $6,600, if at all paid by the wife, was a loan and as such it was not within the learned judge`s jurisdiction to order that the husband pay the wife back the sum in ancillary proceedings as the loan should only be recoverable in contractual or quasi-contractual proceedings pursuant to the authority of Chong Li Yoon v Soo Yook Thong . Practical considerations that the judge cited, such as the fact that neither the wife not the children could now use...