VWB v VWA

[1] The plaintiff (“the husband”) and the defendant (“the wife”) married in 2006. They divorced some 12½ years later, with interim judgment granted on 23 May 2019. Their ancillary matters were dealt with by a district judge (“the First DJ”) on 14 June 2021 in VWA v VWB [2021] SGFC 102 (“VWA”).

[5] Four factors are relevant in the decision whether to grant an extension of time. These were set out by the Court of Appeal in AD v AE [2004] 2 SLR(R) 505 at [9] – [10] in the context of provisions in the Rules of Court (Cap 322, R 5, 1997 Rev Ed), which is in pari materia to r 15 of the Family Justice Rules 2014: the length of the delay; the reasons for the delay; the chance of the appeal succeeding if time were extended; and degree of prejudice caused to the other party, the wife. All four factors are of equal importance, to be balanced against one another, having regard to all the facts and circumstances of the case concerned (Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757 (“Lee Hsien Loong”) at [28]).

[6] The length of the delay is calculated as the time between the between the last day for filing a notice of appeal and the day on which the party who is late files an originating summons seeking an extension of time (Falmac Ltd v Cheng Ji Lai Charlie and another matter [2014] 4 SLR 202 at [18]). In the present case the husband had 14 days to appeal, which expired on 4 November 2022. He filed this OSF on 10 November 2022. The length of delay was 6 days. This was a short delay (see, for example, “a short delay” of 8 days in like circumstances of a 14-day appeal period in UHA v UHB [2017] SGHCF 27 at [9]).

[7] A key consideration in considering a party’s reasons for delay is whether the party seeking an extension of time exercised reasonable diligence (see Lai Swee Lin Linda v Attorney-General [2006] 2 SLR(R) 565 at [45]). The attitude of the applicant is important, whether he had wanted to comply with the rules, and not “take things for granted”: see Lee Hsien Loong at [58].

[8] The husband’s reasons may be summarised as follows: first, he had been confused by the CrimsonLogic Service Centres in the Family Justice Courts (“FJC”) and High Court and the FJC Registry; and secondly, he understood on 4 November 2022 that a district judge (“the Third DJ”) had on that date granted him an extension of time to 2 December 2022 to file his notice of appeal.

[9] The chronology of this matter set out by the husband is as follows. After the hearing on 21 October 2022, he sent an email to the FJC requesting for the FJC to call him on his handphone number, stating that he “will be unable to comply with the courts orders”. He averred that he visited the Crimson Logic Service Centre in the FJC on 28 October 2022 to file an appeal and was informed he should go to the service centre at the High Court. He also averred that he visited the service centre at the High Court on 2 November 2022and was told to go to the FJC Registry. He thereafter called the FJC Registry on 2 November 2022 and was told to seek directions from the judge on 4 November 2022. This was the date fixed by the Second DJ for him to show proof of payment of his monthly instalment.

[10] 4 November 2022 was the last day for any appeal to be filed. The husband appeared before the Third DJ in the afternoon. The relevant portion of the notes of evidence released by the FJC reads as follows:

[11] The husband also averred that he was at the FJC Registry at or around 5.03pm on 4 November 2022 to file an appeal but was told that the Registry was closed and for him to return on Monday.

[12] At around 6.13pm, the FJC sent an email to the husband (“the 4 November FJC email”). The husband read this as consistent with his understanding that an extension of time had been granted by the Third DJ. The relevant portion of the email states:

[13] The husband subsequently tried to lodge an appeal on 7 November 2022. The FJC informed him that he was out of time both in person, and also by email on 8 November 2022. He then filed this OSF on 10 November 2022.

[15] Three matters are pertinent to this analysis. First, 4 November 2022 was the last date of appeal and the premise of the direction given was that no appeal had yet been filed. The husband was still querying the form of the notice to be used. Second and more crucially, the subsequent email from FJC sent at 6.13pm on the same date was also open to two interpretations. Rather than stating that the husband was to show proof on 2 December 2022 that he had filed his appeal on 4 November 2022, it stated that he “may submit his Notice of Appeal” to a judge on 2 December 2022. No distinction was drawn between the Notice of Appeal and evidence thereof (such as reference to a copy or proof), with the use of the word “submit” creating room for ambiguity. In context, mentions courts deal with high case volumes and persons who serve there do so with challenging time limitations. The pertinent point is that the husband’s interpretation was not an unreasonable one. Third, he followed up on matters fairly expeditiously on the following Monday, 7 November 2022, and then in the same week on Thursday 10 November 2022. These facts show diligence on the part of the husband and reasonable confusion in attempting to exercise his right of appeal before the expiry of the period for doing so.

[17] Prejudice cannot refer to the mere fact that the appeal would be continued if an extension were granted. Prejudice must refer to other factors, such as an irreversible change of position: see ARW v Comptroller of Income Tax and another and another appeal [2019] 1 SLR 499 at [78] – [80]; AD v AE at [14].

[19] The length of delay was short, the reasons for the delay were reasonable, and it could not be said that there was no prospect in the appeal or that the wife would be prejudiced. I therefore granted the extension of time.

[20] The principles relating to a stay of execution pending appeal were summarised in VOC v VOD [2021] SGHCF 14 at [13] and are as follows:

(a) As a general proposition, the court does not deprive a successful litigant of the fruits of his litigation pending an appeal. There is no difference whether the judgment appealed against was made on a summary basis or after a full trial.

(b) When a party is exercising his undoubted right of appeal, the court ought to see that the appeal, if successful, is not nugatory. Thus, a stay will be granted if it can be shown by affidavit that, if the damages and costs are paid, there is no reasonable probability of getting them back if the appeal succeeds.

(c) An appellant must show special circumstances before the court will grant a stay. The likelihood of success is not, by itself, sufficient. The special circumstances must be circumstances which go to the enforcement of the judgment and not to its validity or correctness.

[24] In conclusion,

(a) an extension of time to 27 March 2023 was granted for the husband to file an appeal against EMO 997/2022; and

(b) the prayer for a stay of execution was dismissed.