Yip Mei Ling Agnes (m.w.) v Tan Thiam Chye

• Jurisdiction: Singapore
• Judge: Lim Hui Min
• Judgment Date: 28 April 2003
• Neutral Citation: [2003] SGDC 100
• Plaintiff Counsel: Syma Zainab (Michael Khoo & Partners)
• Published date: 04 October 2003
• Court: District Court (Singapore)
• Defendant Counsel: Raymond Yeo (Koh Ong & Partners)
• Subject Matter: Family Law,Application to amend Answer to include Cross-Petition

1 The Respondent in this case has filed a Summons-in-Chambers (No. 650433 of 2003) (“the SIC”) to pray for, inter alia, leave to file a Supplemental Petition, or alternatively, to file an Amended Answer (to include a Cross-Petition).

2 At the hearing before me on 21 April 2003, the Respondent withdrew the prayer for leave to file a Supplemental Petition and proceeded only on the prayer for leave to file an Amended Answer to include a Cross-Petition.

3 The Divorce Petition in this case was filed on 1 October 2002 (“the Petition”). The Answer was filed on 7 November 2002 (“the Answer”), and the Reply on 18 December 2002. Affidavits of Evidence-in-Chief were exchanged by the parties on 11 March 2003. On the same day, the SIC was filed.

4 The Petitioner has objected to this SIC on the basis that the proposed amendments to the Answer to include a Cross-Petition will cause her prejudice which cannot be compensated by costs, and that the application to amend the Answer is not bona fide, but a mere delaying tactic in these proceedings.

Nature of Amendments Sought to be Made

5 The Respondent’s counsel has submitted that the Answer has already made reference to the Petitioner’s unreasonable behaviour. I am in agreement with this. After having perused both the Petition and the Answer, as well as the proposed Amended Answer and Cross-Petition, I am of the view that the contents of the proposed Cross-Petition, to a large extent, overlap with the contents of the Answer. The main issues in the proposed Cross-Petition are that:

i. The Petitioner is a domineering, quarrelsome and hostile person (paragraph 33(a) of the proposed Cross-Petition);

ii. The Petitioner involves the children in quarrels between the Petitioner and the Respondent and manipulates them emotionally (paragraph 33(b));

iii. The Petitioner is obsessed with her religion, imposes it on the family, and has been deceitful to the Respondent (a free-thinker), in this regard (paragraph 33(a)-(k));

iv. The Petitioner has made no effort to contribute to the family expenses, has refused to co-operate with the Respondent in financial planning for the family and has been unreasonably secretive about her own finances. (paragraphs 33(l)-(p));

v. The Petitioner has displayed no concern for the Respondent, in respect of the physical handicap he suffers from, and on the occasion when he suffered an injury (paragraphs 33(q)-(r)); and

vi. The Petitioner has refused to take any steps to salvage the marriage (paragraph 34).

6 Most of these issues have already been set out in the Answer:

i. Paragraphs 5-8 of the Answer corresponds with paragraph (i) above;

ii. Paragraph 31 corresponds with paragraph (ii) above;

iii. Paragraph 15-21 corresponds with paragraph (iii) above;

iv. Paragraphs 10-13 corresponds with paragraph (iv) above; and

v. Paragraph 28 corresponds with paragraph (v) above.

7 In my view, the only issues which have been brought up in the proposed Cross-Petition and which have not already been raised in the Answer, would be: the Petitioner’s alleged lack of sympathy at the Respondent’s physical handicap (paragraph 33(r)); the Petitioner’s lack of contribution to the family expenses (paragraph 33(o)); and the Petitioner’s alleged refusal to take any steps to salvage the marriage (paragraph 34). In my view these are not completely unrelated, distinct new issues, but are related to the issues already set out in the Answer.

Principles Governing Grant of Leave to Amend

8 The court has the power to grant leave to amend pleadings after service pursuant to Rule 22 of the Women’s Charter (Matrimonial Proceedings) Rules (1998 Edition). Both counsel were agreed (and I accept this) that the basic principles governing the grant of leave to amend pleadings in divorce proceedings are, inter alia, as follows:

i. The principles to allow an amendment in divorce proceedings are similar to those of other civil proceedings. (See Tolstoy on Divorce, Sweet & Maxwell 7^th Edition, at page 235);

ii. Generally, amendments should be allowed so as to ensure that all matters in controversy between the parties are before the court, provided this can be done without injustice to other parties which cannot be compensated by costs (See Humphrey’s Family Proceedings, 19^th Edition, at page 66, Wright Norman & Anor v OCBC Ltd [1994] 1 SLR 513, and Civil Practice in Singapore and Malaysia, Jeffrey Pinsler, Volume 1, at paragraphs X[203], [205]-[225]]

9 In determining whether there is injustice to other parties as a result of the amendments, the court will consider the following factors:

i. Whether the application to amend is made in good faith, which involves a consideration of whether the amendments relate to facts within the applicant’s knowledge at the time the original pleadings were filed.(See Nelson v. Nelson and Slinger [1958] 2 All ER 744, and Hong Leong Finance Ltd v Famco (S) Pte Ltd & Ors [1992] 2 SLR 1108)

ii. Whether the amendments merely clarify the issues in dispute, or permit a distinct defence to be raised for the first time (See Lam Soon Oil and Soap Manufacturing Sdn Bhd & Anor v Whang Tar Choung & Anor [2002] 2 SLR 395) (The latter amendments would be subject to greater scrutiny by the court.)

iii. The stage of proceedings at which the application to amend is made (See Hong Leong Finance, supra):

The court must consider the strain the litigation imposes on parties, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other. (per Judith Prakash JC, in Hong Leong Finance, supra.)

iv. The effect on the applicant’s case if the amendments were not allowed (See Robertson v. Robertson [1954] 3 All ER 413)

Whether Facts Within the Respondent’s Knowledge

10 The Petitioner’s counsel has submitted that all the facts of unreasonable behaviour in the Cross-Petition were within the Respondent’s knowledge at the time the original pleadings were filed, and that insufficient reason has been given by the Respondent for not filing the Cross-Petition in the first place, and for the delay in making this application to amend. This application to amend should therefore not be allowed.

11 She has cited a number of cases (inter alia, Parkinson v. Parkinson [1869] 2 L.R. 27, Aggett v. Aggett [1962] 1 All ER 190, Lewis v Lewis [1958] 1 All ER 859, and Cartledge v Cartledge 4Sw & Tr 248) to show that the court has allowed the amendment of pleadings in situations where the applicant managed to satisfy the court that the facts to which the amendments related were not within his knowledge at the time the original pleadings were filed. Conversely, in the case of Austin v Austin (1871), 41 L.J.P.&M. 8 the court had refused leave to amend a divorce petition to include fresh charges of cruelty, as these facts were within the petitioner’s knowledge at the commencement of the suit and she should have stated “once for all” what complaint she had in this respect against her husband. I do not choose to follow Austin v. Austin, which, being an English case, is not binding on me. Firstly, it was decided more than a century ago, and has since been superseded by other English authorities such as Nelson, supra, and local authorities such as Hong Leong Finance, supra. Secondly, Austin contains no reasoning aside from the principle which I have set out above. I am of the view, in the light of the other authorities which I have set out in paragraph 9 above, that simply because the facts to which the amendments relate were in the applicant’s knowledge at the time of the filing of the original pleadings is not by itself a reason to refuse leave to amend the pleadings. The reasons why the applicant did not draft the original pleadings in the manner he now wishes to amend them must be considered.

12 Before I deal with the Respondent’s reasons in this regard, however, I note that it may be argued by the Respondent (though this submission was not made by the Respondent’s counsel) that although the facts of the Petitioner’s unreasonable behaviour were in the Respondent’s knowledge at the time of the filing of the Answer, the fact that the marriage had irretrievably broken down was not. Under Section 95 of the Women’s Charter (Cap. 353), the court will only grant a decree...