TDL v TDK

[4] The principles for granting an extension of time are not in dispute. As stated by the Court of Appeal in Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 (“Lee Hsien Loong”) at [18] (cited recently in Werner Samuel Vuillemin v Oversea-Chinese Banking Corp Ltd [2017] 3 SLR 501 at [15]), four factors are to be considered:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the chances of the appeal succeeding if the extension of time were granted; and

(d) the prejudice caused to the would-be respondent if an extension of time were granted.

[5] The Court of Appeal in Lee Hsien Loong also noted that, in the context of appeals, the overriding concern is that there should be finality (at [33]).

[6] Having considered the four factors listed above, I was of the view that the applicant’s chances of succeeding in his intended appeal was not without any prospect of success. Nevertheless, given the length of the applicant’s delay, the reasons for such delay and the prejudice that would be caused to the respondent, I decided that it would not be appropriate to grant a further extension of time. I shall address each of the four factors in turn, starting with the chances of the appeal succeeding.

[7] In considering the merits of the appeal, the court may adopt a very low standard. Lee Hsien Loong at [19] enjoined the court to consider whether the appeal is “hopeless”, citing Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 3 SLR(R) 355 at [43]:

[8] In the present case, the applicant intended to appeal against the following ancillary orders made by the Judge:

(a) that the respondent receives care and control of the son;

(b) that the respondent receives a 40% share of the sale proceeds of the matrimonial flat;

(c) that the applicant transfers all his interests in the Miltonia Property to the respondent for no cash consideration;

(d) that the respondent keeps her CPF monies, gold ornaments, other precious metals and family heirlooms to which the applicant had contributed;

(e) that the respondent transfers her interests in the matrimonial properties in the US and India to the applicant, but that he bears all fees relating to the transfer of the properties;

(f) that the applicant pays maintenance of $1,400 per month (subsequently varied to $1,000 per month from April 2017) for the son; and

(g) that the applicant pays the respondent the costs of the proceedings.

[9] These orders fall into these categories:

(c) the orders as to the division of matrimonial assets; and

(d) costs.

Under s 137(2) of the Women’s Charter (Cap 353, 2009 Rev Ed), no appeal may lie purely on the issue of costs. I therefore considered the chances of the appeal succeeding in relation to the other categories of orders which the applicant intended to appeal.

[12] Regarding the division of matrimonial assets, the applicant made a brief and general submission as follows:

[13] Looking at his contention with reference to the list of matrimonial assets set out in the parties’ Ancillary Matters Fact and Position Sheets, and using the applicant’s values for the Miltonia Property and land in India and the USA, the Judge appeared to have awarded the applicant 59% of the matrimonial assets:

This was a 24-year marriage, and the respondent, aside from contributing financially, was the primary caregiver to the children for much of the marriage while the applicant worked overseas. It was not clear that there was merit in the applicant’s appeal on the overall division of the assets.

[14] Nevertheless, the test being whether the appeal is hopeless (see [7] above), the threshold for this factor was a very low one. While it was not clear that the applicant’s intended appeal had merit, it could not be said that the appeal was hopeless. An appeal would require detailed analysis of the range of factors that a court must consider in ordering the division of matrimonial assets under s 112(2) of the Women’s Charter. In addition to challenging the global allocation of 59% to the applicant, the applicant may also have appealed against the individual orders made in respect of the various properties within the pool of matrimonial assets.

[15] In view of the above, it could not be said that the applicant had no prospects at all of succeeding upon appeal. The chances of his appeal succeeding were thus a neutral factor (see Lee Hsien Loong at [19]). However, this neutral factor was to be balanced against the other three factors, all of which weighed against the applicant. I turn now to the length of the delay.

[16] Prior to bringing the present application, the applicant had filed a prior application (OSN 20/2016) for an extension of time to appeal against the Judge’s orders on 8 August 2016. This was 10 days after the time period permitted for filing a notice of appeal against the Judge’s ancillary orders had expired on 29 July 2016.

[19] Subsequently, on 2 November 2016, the applicant filed the present application (OSN 36/2016) seeking leave to file a notice of appeal out of time. The originating summons was later amended, and the amended originating summons was re-filed on 17 November 2016.

[20] In view of the procedural history detailed above, the question arose as to how the length of delay should be assessed. The applicant argued that the period of delay was less than two weeks because he filed OSN 20/2016 on 8 August 2016 to seek an extension of time to file his notice of appeal.

[22] The length of delay in this case was, at the very least, the time between the last day for filing a notice of appeal, 29 July 2016, and the day on which the applicant filed the present application, 2 November 2016. This was a period of about three months, which was far in excess of the two-week appeal window provided in r 825 of the Family Justice Rules 2014 (S 813/2014).

[23] It should be noted that even a delay of 49 days has been held by the Court of Appeal to be “[b]y any standard ... very substantial” (AD v AE [2004] 2 SLR(R) 505 at [11]). In light of this, the delay of over three months in this case was a factor which militated in favour of dismissing the application for an extension of time.

[26] The issue of prejudice was the strongest factor weighing against granting him an additional extension of time.

[27] The respondent has been living in rented accommodation. After the ancillary orders were made, the applicant did not comply with them. On 21 November 2016, the respondent filed an application (SUM 3981/2016) for the Miltonia Property to be transferred to her pursuant to the ancillary orders, on account of the applicant’s failure to effect such transfer. SUM 3981/2016 was heard by the Judge on 14 December 2016. The Judge made no orders on SUM 3981/2016 because counsel for the applicant told him that only the High Court had jurisdiction to hear the matter, and in any event, the parties were discussing the transfer of the Miltonia Property from the applicant to the respondent.

[29] On 2 April, Mr Singh wrote to the court with further arguments to the effect that complying with the Condition would prejudice the applicant’s appeal. This was inconsistent with the position Mr Singh had taken in court on 30 March 2017, when he had expressly agreed to comply with the Condition. The court’s decision was reiterated in a Registrar’s Notice when an appointment was given to parties. Ms Sharma in fact requested Mr Singh to procure the applicant’s attendance in court on 6 April 2017 so that he could sign the relevant papers, which she had brought with her to court. If the applicant had been present, the papers would have been signed that very day. Mr Singh said on 6 April that he had not seen Ms Sharma’s request, and had told the applicant that he need not attend at court.

[30] Mr Singh then expressly agreed in the course of the hearing before me that he would see to it that the applicant would execute the relevant transfer documents by 7 April 2017. Despite the further extension, the relevant transfer documents remained unsigned by the applicant at the close of business on 7 April 2017. This was in spite of the fact that Ms Sharma had personally delivered the transfer documents to the office of Mr Singh at 3.25pm on 6 April 2017. Although Mr Singh offered the excuse that the applicant was busy during working hours, the applicant could have signed the transfer documents as early as the evening of 6 April 2017.

[31] When Ms Sharma telephoned Mr Singh at 4.55pm on 7 April 2017, she was informed by Mr Singh’s secretary that she had no instructions on the execution of the transfer documents for the Miltonia Property. It was only after the close of business hours, at 6.54 pm, that Mr Singh sent an email to Ms Sharma informing her that the applicant had signed the relevant transfer documents. Further, the transfer documents were only sent to Ms Sharma at 12.10pm on 10 April 2017. Ms Sharma refused to accept them. Mr Singh followed up with two letters to the court, first at 1.47 pm and then at 9.19 pm, requesting further arguments (“the 10 April Letters”)

[32] In the letter sent to the court on 10 April 2017 at 9.19 pm, Mr Singh stated that he had misinterpreted my orders on 6 April 2017. It seems he had the mistaken impression that he had a total of eight days to sign and return both the transfer documents as well as the mortgage-in-escrow, rather than one day to sign and return the transfer documents and eight days to sign and return the mortgage-in-escrow. Case law is clear, however, that a mistake by a solicitor is insufficient reason to justify granting an extension of time to file a notice of appeal (see Kunal Gobind Lalchandani v Konduri Prakash Murthy [2005] SGHC 94 at [35] citing Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd [2002] 3 SLR 357 at [13]–[14]). More importantly, I found it difficult to accept Mr Singh’s explanation. On 6 April 2017, he clearly communicated that he understood the orders, which were explained and repeated to him. The claims about his alleged confusion were made only by way of letter, without the support of an affidavit. Moreover, the account given in the 10 April Letters was inconsistent with what Mr Singh told the court at the hearing on 18 April 2017 in several ways: First, Mr Singh stated in the 10 April Letters that “on 7 April 2017 [his] client was only able to come to our office to execute the Transfer [documents] after 6pm”. Before me he claimed that his “client only came at 4pm”. Secondly, Mr Singh stated in the 10 April Letters that his office attempted to deliver the signed transfer documents in the “morning” of 10 April 2017, when the delivery had in fact been attempted at 12.10pm. While these inconsistencies could also be taken as inadvertent inaccuracies rather than attempts to mislead, neither the account in the 10 April Letters nor the account offered by Mr Singh at the hearing on 18 April 2017 gave good reasons for any further extension; unsurprising, neither account was supported by affidavit. The extension given on 6 April 2017 had been conditional, and the time set for complying with the Condition had passed.

[35] The Court of Appeal’s guidance in Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196 at [30] is instructive: