Tan Poh Beng v Choo Lee Mei

Edmund Leow JC:

[1] This case raises the novel issue of whether an ancillary order issued by a foreign court for the division of property situated in Singapore may be given legal effect in Singapore. I have reluctantly come to the conclusion that it may not.

[2] The Plaintiff and the Defendant (collectively, “the Parties”), who are both Malaysian citizens, were husband and wife. On 7 October 2005, they obtained a decree nisi for divorce from the High Court of Malaya at Ipoh (“the Malaysian Court”) which was made absolute on 15 September 2006.

[3] On 18 August 2006, the Malaysian Court made the following ancillary orders by consent (“the Malaysian Court Order”):

[4] Thereafter, the Plaintiff sought to engage an agent to sell the Singapore property (“the Property”). However, the Defendant refused to sign or execute any of the documents served on her to facilitate the sale. On 13 July 2011, the Plaintiff applied for and obtained an order from the Malaysian Court directing a court officer or registrar to execute the sale and purchase agreement and any other related documents of transfer on the Defendant’s behalf.

[5] On 19 January 2012, the Plaintiff found buyers for the Property (“the Purchasers”) and proceeded to sign an option to purchase, with the Registrar of the Malaysian Court signing it on the Defendant’s behalf. The transfer instrument (“the Transfer Instrument”) was executed on 23 April 2013 by the Plaintiff and the Registrar on the Defendant’s behalf. On 17 May 2013, a cashier’s order for the sum of $1,001.50 in favour of the Defendant was sent to her solicitors, being the proceeds due to her from the sale of the Property.

[6] On 13 September 2013, the Purchasers’ solicitors wrote to the Singapore Land Authority (“the SLA”) seeking to register the Transfer Instrument under the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”). However, the SLA replied saying that under s 56(2)(d) the LTA, read with s 2 of the Interpretation Act (Cap 1, 2002 Rev Ed), it can only register a transfer if it has been executed on behalf of the registered proprietor by an officer of a court of competent jurisdiction in Singapore. The SLA therefore rejected the Purchasers’ request to register the Transfer Instrument.

[7] On 15 November 2013, the Plaintiff filed Originating Summons No 1108 of 2013 seeking to register the Malaysian Court Order in the High Court of Singapore under the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“the RECJA”). However, he withdrew this application after the duty registrar pointed out that the RECJA only applied to money judgments (see s 2(1) of the RECJA).

[8] The Plaintiff then filed the present application on 25 February 2014 seeking the following orders:

[9] I heard the application on 22 May 2014 and reserved judgment. After considering the matter in greater detail, I was of the view that the Plaintiff had not provided any legal basis for the orders sought. I therefore asked the Plaintiff to tender written submissions addressing this issue. Counsel for the Plaintiff then instructed counsel from WongPartnership LLP to render an opinion and assist in crafting the submissions.

[10] On 27 June 2014, the Plaintiff applied for leave to amend his application to seek the following orders instead:

I heard the application for leave to amend on 14 July 2014 and granted it.

[11] On 29 July 2014, the Plaintiff tendered his written submissions setting out the purported legal bases on which I could make the orders he is seeking. The Plaintiff submits that each of the following “heads of jurisdiction” would independently empower me to make the orders sought:

(a) paragraph 2 of the First Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) read with O 31 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”);

(b) the Defendant’s voluntary submission to the jurisdiction of this Court by attending the hearings before me; and

(c) this Court’s inherent jurisdiction.

[12] I will address the three legal grounds relied on by the Plaintiff in turn.

[13] Section 18(2) of the SCJA states that the High Court shall have the powers set out in the First Schedule. Under para 2 of the First Schedule, this includes the power to order the sale of land where it appears necessary or expedient in any cause or matter relating to land:

[14] O 31 r 1 of the ROC states that the High Court has the power to order that any immovable property be sold where it appears “necessary or expedient” for the purposes of the cause or matter to do so:

[15] The Plaintiff submits that it is indeed “necessary or expedient” for this Court to order the sale of the Property. This is because the sale of the Property to the Purchasers has been completed and the Parties have received consideration for the sale. The Purchasers have also taken possession of the Property and now reside there. However, because of the SLA’s refusal to register the Transfer Instrument, legal title to the Property has not passed to the Purchasers more than a year after the completion of the sale. The Court’s order for a sale of the Property is therefore necessary to rectify this unfortunate circumstance.

[16] The scope of O 31 r 1 does not appear to have been considered by local courts. In Wicks v Wicks [1998] 3 WLR 277, the English Court of Appeal had occasion to consider O 31 r 1 of the Rules of the Supreme Court 1965 (UK), which is similar in terms to our O 31 r 1. In that case, the wife, pending determination of her application for ancillary relief, applied for an order that the matrimonial home be sold under O 31 r 1. The High Court Judge allowed her application but was reversed by the Court of Appeal. Despite sympathising with the wife’s position, the Court of Appeal held that O 31 r 1 was a procedural provision and did not confer an original source of jurisdiction allowing it to make the orders sought by the wife (at 289):

[17] Likewise, in In re Robinson, Pickard v Wheater (1885) 31 Ch D 247, the court had to consider the scope of Order LI r 1 of the Rules of Supreme Court 1883 (UK), which stated: “If in any cause or matter relating to any real estate, it shall appear necessary or expedient that the real estate or any part thereof should be sold, the Court or a Judge may order the same to be sold ...”. Pearson J held that this rule did not give the court the power to order a sale of the property where it otherwise would not have the power to do so (at 249–250):

[18] The Plaintiff argues that these authorities are inapplicable here because apart from O 31 r 1, this Court also has the power under para 2 of the First Schedule to the SCJA to order the sale of the Property. Therefore, that paragraph supplies the original jurisdiction or power for this court to make the orders sought.

[19] This argument is misconceived. The Court’s power under both the SCJA and the ROC to order the sale of a property is contingent on there being a substantive legal basis to justify the exercise that power. Neither provision was intended to create an unfettered power on the Court’s part to order the sale of a property simply because it is “necessary or expedient” to do so. In this regard, it bears noting that both para 2 of the First Schedule and O 31 r 1 refer to the need for a “cause or matter” relating to any land or immovable property. In my view, for the purposes of O 31 r 1 and para 2 of the First Schedule (the phrase might have a broader meaning elsewhere), that phrase signifies the need for there to be a cause of action, whether based on common law or statute, creating a substantive legal basis for ordering a sale of the property. An application seeking the sale of property under O 31 r 1 and/or para 2 of the First Schedule does not, without more, qualify as such a “cause or matter”.

[20] This was the interpretation implicitly given to that phrase by the courts in the two English cases cited above, and it was stated in more explicit terms by the High Court of Shah Alam in Rubyna Kaur a/p Surinder Singh v Jasbir Singh a/1 Harbajan Singh [2003] 6 MLJ 753. In that case, the applicant applied for an order for the sale of a piece of property under O 31 r 1 of the Rules of the High Court 1980 (Malaysia) and para 3 of the Schedule to the Courts of Judicature Act 1964 (Malaysia) (these provisions are the equivalents of our O 31 r 1 and para 2 of the First Schedule to the SCJA respectively). The property was bought by the applicant and the respondent before their marriage with the intention of turning it into their matrimonial home. There were no separation or divorce proceedings by the parties or litigation taken up by any interested third party at the time of the application. The court rejected the application, holding that there was no “cause or matter” relating to property (at 761):

[21] In my judgment, therefore, neither para 2 of the First Schedule to the SCJA nor O 31 r 1 of the ROC permits me to order a sale of the Property in the absence of some other legal basis for doing so.

[22] This ground can be disposed of shortly. The mere fact that the Defendant has voluntarily submitted to this Court’s jurisdiction does not mean that I have an open-ended discretion to make any orders I wish in relation to the Property. I must still decide the Plaintiff’s application on the basis of established legal principles. This supposed ground of jurisdiction therefore does not add anything to the analysis at all.

[23] I now turn to the Plaintiff’s final argument, which is that I should exercise the inherent jurisdiction of this Court to make the orders sought. In this context, the phrase “inherent jurisdiction” is really being used to mean the inherent powers of the Court – the former refers to the Court’s inherent authority to hear a matter, while the latter is its inherent capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful party to the dispute: Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 at [33] and [40]–[41]. The Court’s inherent powers are recognised in O 92 r 4 of the ROC, which states:

[24] The inherent powers of the Court may only be exercised in exceptional circumstances where there is a clear need for it and the justice of the case so demands: Roberto Building Material Pte Ltd and others v Oversea-Chinese Banking Corp Ltd and another [2003] 2 SLR(R) 353 at [17]. The principles governing the exercise of the Court’s inherent powers were summarised by Professor Jeffrey Pinsler in his article Inherent Jurisdiction Revisited: An Expanding Doctrine (2002) 14 SAcLJ 1 (“Inherent Jurisdiction Revisited”) at [19] as follows:

[25] The Plaintiff submits that these principles are satisfied in the present case, for the following reasons:

(a) First, the orders sought will prevent injustice to the Purchasers who, being bona fide purchasers of Property, are still unable to take legal title more than one year after completion.

(b) Second, the orders sought will prevent or avoid a situation of serious hardship or difficulty or danger. This is because the Parties are in continuing breach of their implied obligation in the Terms and Conditions for Sale and Purchase dated 10 January 2013 to transfer the title in the Property upon completion, and are liable to be sued for substantial damages.

(c) Third, there is no existing procedural mechanism effectively governing the circumstances. The RECJA only applies to money judgments, and the Malaysian Court Order is not a maintenance order that can be registered and enforced under the Maintenance Orders (Facilities for Enforcement) Act (Cap 168, 1985 Rev Ed) or the Maintenance Orders (Reciprocal Enforcement) Act (Cap 169, 1985 Rev Ed). There is a lacuna in the law insofar as the enforcement of foreign ancillary orders relating to the division of property in Singapore is concerned.

(d) Fourth, there are no alternative procedures available to perfect the sale of the Property.

[26] I am sympathetic to the Plaintiff’s position and am prepared to accept that, as a matter of justice and need, there are strong grounds for making the orders he is seeking. In my judgment, however, I am precluded from exercising this Court’s inherent powers to fill in a lacuna in the law that was deliberately left there by the legislature. This point was highlighted in Goh Yihan, “The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise” [2011] SJLS 178 at 201–202:

[27] A similar observation was made by Professor Jeffrey Pinsler in relation to gaps in the ROC (Inherent Jurisdiction Revisited at [21]):

[28] In the present case, there is compelling evidence to show that Parliament was well aware of the lack of legal avenues to enforce foreign ancillary orders for the division of property in Singapore, but chose not pass legislation to enable their enforcement here. This very area of law was reviewed in the Report of the Law Reform Committee (“LRC”) of the Singapore Academy of Law on Ancillary Orders after Foreign Divorce or Annulment (July 2009). The LRC observed at para 26 that:

[29] Following the LRC’s Report, the Ministry of Community Development, Youth and Sports issued a Consultation Paper dated 13 September 2010 on certain proposed amendments to the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”). Paragraphs 13–15 of the Consultation Paper stated:

[30] The proposed amendments were eventually passed by Parliament on 10 January 2011. The Minister for Community Development, Youth and Sports, Dr Vivian Balakrishnan, explained the amendments as follows (Singapore Parliamentary Debates, Official Report (10 January 2011) vol 87 at cols 2048–2049):

[31] It can be seen from the above material that Parliament was clearly cognisant of the gap in the law relating to the enforcement of foreign ancillary orders for the division of property in Singapore. It chose to plug this gap not by allowing such orders to be enforced here, but by enacting Chapter 4A of the Women’s Charter. Chapter 4A allows the Court to hear applications and make orders for financial relief in respect of foreign divorces (including the division of matrimonial property) if certain conditions are met, and it may hear an application for financial relief even if ancillary orders have already been made by a foreign court (s 121D(3)). Unfortunately, it appears that the Plaintiff will be unable to avail himself of Chapter 4A because the decree for his divorce was made before its commencement date (s 121A(2)). That, however, does not change the fact that I would be circumventing the statutory regime enacted by Parliament if I relied on the inherent powers of the Court to grant the Plaintiff the relief he seeks.

[32] I should add that even without considering the 2011 amendments to the Women’s Charter, I would have been hesitant to rely on my inherent powers to procure what is in effect the enforcement of a foreign order which cannot otherwise be enforced under the relevant law here. In every case where a foreign judgment cannot be enforced in Singapore, there would prima facie be injustice in the sense that the party seeking enforcement would be unable to realise certain legal remedies that have been granted to him by a foreign court after an assessment of the merits of the case. However, that alone is not a sufficient basis for the court to enforce the foreign judgment. In this case, for example, the Malaysian Court Order cannot be enforced under the RECJA because it is not a money judgment. If I were to enforce it on the basis of injustice alone, then the limitations in the RECJA and other laws relating to the reciprocal enforcement of judgments would be rendered meaningless.

[33] Thus, I hold that this is an inappropriate case to exercise the inherent powers of the Court to make the orders sought by the Plaintiff.