fc_judgments: 43
Data source: lawnet.sg/lawnet/web/lawnet/free-resources
This data as json
| _id | _item_id | tags | date | court | case-number | title | citation | url | counsel | timestamp | coram | html | _commit |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 43 | 9f9804b98e9f0002367e4c5a9cf7332e78cf4c5c | [
"Family Law \u2013 Costs",
"Family Law \u2013 Costs \u2013 Whether Legal Aid obtained through fraud or misrepresentation"
] |
2024-06-14 | Family Court | Divorce No 4868 of 2022 (Summons No 1012 of 2024) | WXG v WXH | [2024] SGFC 41 | https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31649-SSP.xml | [
"Tang King Kai (Tang & Partners) for the plaintiff",
"Ng Wen Wen (Grace Law LLC) for the defendant."
] |
2024-06-26T16:00:00Z[GMT] | Soh Kian Peng | <root><head><title>WXG v WXH</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WXG <em>v</em> WXH </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31649-SSP.xml')">[2024] SGFC 41</a></span></h2><table id="info-table"><tbody><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Case Number</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Divorce No 4868 of 2022 (Summons No 1012 of 2024)</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Decision Date</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">14 June 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Tribunal/Court</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Family Court</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Coram</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Soh Kian Peng </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Counsel Name(s)</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Tang King Kai (Tang & Partners) for the plaintiff; Ng Wen Wen (Grace Law LLC) for the defendant. </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Parties</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> WXG — WXH </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Costs</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Costs</span> – <span style="font-style:italic">Whether Legal Aid obtained through fraud or misrepresentation</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">14 June 2024</p></td><td><p class="Judg-Date-Reserved">Judgment reserved</p></td></tr></tbody></table><p></p> <p class="Judg-Author"> Assistant Registrar Soh Kian Peng:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1 This is my decision on costs in respect of SUM 1012. My decision in respect of that summons, which was the Wife’s application for discovery and interrogatories, can be found in <em>WXG v WXH</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31582-SSP.xml')">[2024] SGFC 32</a>.</p> <p class="Judg-1"><a id="p1_2"></a>2 The Husband is the recipient of legal aid. His counsel, Mr Tang, has been appointed by the Legal Aid Bureau (“LAB”) to act for him.<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span></p> <p class="Judg-1"><a id="p1_3"></a>3 Where costs are concerned, there are two relevant provisions. The first is s 12(4)(<em>c</em>) of the Legal Aid and Advice Act 1995 (“LAA”). That provision states:</p> <p class="Judg-Quote-1"> <b>Endorsement and filing of Grant of Aid</b> </p> <p class="Judg-Quote-1">(4) Where any Grant of Aid is so filed, the aided person —</p> <p class="Judg-QuoteList-2">(c) is not, except where express provision is made in this Act, liable for costs to any other party in any proceedings to which the Grant of Aid relates; and</p> <p class="Judg-1"><a id="p1_4"></a>4 The second relevant provision is s 14 of the LAA. It states:</p> <p class="Judg-Quote-1"> <b>Court may order payment of costs by aided person in certain event</b> </p> <p class="Judg-Quote-1">14.—(1) Where it appears to a court that any of the circumstances mentioned in subsection (3) exists in relation to an aided person, the court may order the aided person to pay the costs of all or any of the following persons:</p> <p class="Judg-QuoteList-2">(a) the Director;</p> <p class="Judg-QuoteList-2">(b) the solicitor who acted for the aided person;</p> <p class="Judg-QuoteList-2">(c) the other party.</p> <p class="Judg-Quote-1">(2) In subsection (1), a reference to an “aided person” includes, in any case where the Grant of Aid has been cancelled before the making of the order, the person who immediately before the cancellation was the aided person.</p> <p class="Judg-Quote-1">(3) For the purposes of subsection (1), the circumstances are as follows:</p> <p class="Judg-QuoteList-2">(a) the Grant of Aid issued to the aided person has been obtained by fraud or misrepresentation;</p> <p class="Judg-QuoteList-2">(b) the aided person acted improperly in bringing or defending any legal proceedings, or in the conduct of those proceedings.</p> <p class="Judg-Quote-1">(4) Where an order is made under subsection (1), the costs must be taxed as if the party ordered to pay costs were not an aided person.</p> <p class="Judg-Quote-1">(5) The costs so ordered to be paid must, unless otherwise directed by the order, include —</p> <p class="Judg-QuoteList-2">(a) fees and charges of the nature referred to in section 12(4)(a) and (b); and</p> <p class="Judg-QuoteList-2">(b) any sums which, pursuant to section 13(3), were expended by the Director in meeting out-of-pocket expenses or were advanced by the Director for that purpose.</p> <p class="Judg-Quote-1">(6) Where the costs of the Director or the solicitor who acted for the aided person ordered to be paid under subsection (1) include any of the fees, charges or sums referred to in subsection (5), then if any amount is recovered by the Director in respect of such costs, the same must be applied in the first instance in or towards the satisfaction of such fees, charges or sums.</p> <p class="Judg-Heading-1">Parties’ Submissions</p> <p class="Judg-1"><a id="p1_5"></a>5 Counsel for the Wife, Ms Ng, argued in her written submissions that the Husband should, notwithstanding the fact that he was the recipient of legal aid, be ordered to pay costs of $3000. She argued that the Husband’s conduct warranted such a costs order being made. For one, the Wife had incurred significant costs as a result of various delays in proceedings being brought on by the Husband’s non-compliance and obstruction.<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span> The Husband had, according to Ms Ng, delayed matters by claiming at various junctures, that he was seeking legal aid, or that he was looking for another lawyer, or that he wanted to settle the matter with the Wife.<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span></p> <p class="Judg-1"><a id="p1_6"></a>6 A more serious allegation which the Wife levels at the Husband is that he had obtained legal aid through fraud or misrepresentation (s 14(3)(<em>a</em>) of the LAA). Ms Ng highlighted several pieces of evidence which pointed to this. The first was in relation to the arguments that had been advanced in the hearing of SUM 1012 before me. Ms Ng had, in that hearing, explained that discovery was necessary because there was a suspicion that the Husband had dissipated assets and closed his bank accounts.<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span> It was also highlighted that the Wife was surprised that the Husband had qualified for legal aid on 25 September 2023.</p> <p class="Judg-1"><a id="p1_7"></a>7 The second reason Ms Ng advances as to why the Husband should be made to pay costs is that s 14(3)(<em>b</em>) of the LAA applied in the present case – in other words, the Husband had acted improperly in defending SUM 1012 or in his conduct of the proceedings. Ms Ng argues that the Husband’s failure to provide full and frank disclosure and withholding critical information constitutes improper conduct within the meaning of s 14(3)(<em>b</em>) of the LAA. Because of the Husband’s refusal to disclose documents that should have been disclosed in the voluntary disclosure process prior to the hearing of ancillary matters, that necessitated the Wife taking out SUM 1012.</p> <p class="Judg-1"><a id="p1_8"></a>8 Mr Tang, on the other hand, argued that the Husband should not be ordered to pay costs as s 14(3)(<em>b</em>) of the LAA did not apply in the present case.<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span> For one, merely defending the application could not possibly constitute improper conduct – it was well within the Husband’s rights to resist the Wife’s application for discovery and interrogatories in SUM 1012. In any case, what the Husband had wanted to do in SUM 1012 was to explain why he could not comply with the Wife’s specific requests for discovery and interrogatories. Mr Tang also emphasised that the Husband had not been dilatory in replying or disclosing the documents which he had in his possession. The Husband had, as early as 8 January 2023, voluntarily disclosed the existence and details of all his bank accounts and amounts standing in credit to the Wife.<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span> Finally, it should also be noted that the Wife was not entirely successful in her application.</p> <p class="Judg-Heading-1">My Decision</p> <p class="Judg-1"><a id="p1_9"></a>9 The statutory scheme as set out in the LAA makes it clear that costs shall not be ordered against a legally aided person, unless the exceptions set out in either s 14(3)(<em>a</em>) or s 14(3)(<em>b</em>) of the LAA were made out. The statutory scheme modifies the position as to costs that are set out in Rules 852 and 854 of the Family Justice Rules 2014: see <em>CSR v CSS</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/29457-SSP.xml')">[2022] 5 SLR 675</a> at [34].</p> <p class="Judg-1"><a id="p1_10"></a>10 The question which I had to decide was whether these two exceptions were established in the present case such that the Husband should be ordered to pay the Wife costs of SUM 1012. The decision of the General Division of the High Court in <em>Anpex Pte Ltd v Cheng Yong Sun</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/29042-SSP.xml')">[2022] SGHC 294</a> (“<em>Anpex</em>”) provides a useful illustration as to when these exceptions are made out.</p> <p class="Judg-1"><a id="p1_11"></a>11 In that case, the plaintiff had sought costs against the second defendant who was legally aided. The court ruled (<em>Anpex</em> at [4]) that the fact that the second defendant’s defence had failed was not, in of itself, evidence of misconduct. If this was the case, then every plaintiff who succeeds against a legally aided defendant would be entitled to costs. There had to be evidence that the defendant had conducted their defence in a way that a reasonable defendant would not.</p> <p class="Judg-1"><a id="p1_12"></a>12 In addition, the court also considered (<em>Anpex</em> at [5] – [7]) whether the second defendant had obtained legal aid through fraud or misrepresentation. The court asked for evidence of how legal aid was applied and approved. An Assistant Director of Legal Aid from the LAB (the “Director”) gave evidence that when the second defendant applied for legal aid, she had met the criteria as her savings and non-CPF investments were below the threshold limit of $10,000 and that she did not own any other property besides her HDB flat. The Director also explained that a legal aid applicant’s wealth was determined at the point of application for legal aid and that there was no reason to suspect that the second defendant earned a salary above what was declared in her CPF statements. LAB also did not have any information that the second defendant was concealing assets.</p> <p class="Judg-1"><a id="p1_13"></a>13 Based on this, the court was satisfied that the second defendant was technically entitled to legal aid. There was therefore no basis to order that the second defendant pay costs to the plaintiff.</p> <p class="Judg-1"><a id="p1_14"></a>14 In the present case, I did not think it open to me to decide, at this stage, whether the Husband had indeed procured legal aid through fraud or misrepresentation. That would involve determining whether the Husband had indeed dissipated assets, and when he had done so. This is also the precise issue that has to be decided by the judge hearing the ancillary matters. In any event, determining whether legal aid had been procured through fraud or misrepresentation would also turn on what the Husband had told LAB, and why LAB had decided to grant legal aid (see <em>Anpex</em> at [5] – [6]).</p> <p class="Judg-1"><a id="p1_15"></a>15 As for the Wife’s argument, that s 14(3)(<em>b</em>) of the LAA applied because the Husband had, through his actions, caused substantial delays, there was insufficient material before me to decide whether the substantial delays were indeed because of the Husband’s actions. It appears that the delays arose from the fact that LAB had cancelled the provisional grant of aid on the 13<sup>th</sup> of October 2023 and subsequently reinstated the provisional grant of aid on the 23<sup>rd</sup> November 2023. There is, currently, nothing on the record that sheds light on LAB’s decision to rescind the grant of legal aid, before subsequently restoring it.</p> <p class="Judg-1"><a id="p1_16"></a>16 In the circumstances, the costs of SUM 1012 shall be reserved to the judge hearing the ancillary matters: Rule 853(1) of the Family Justice Rules 2014. LAB is to provide evidence of how legal aid was applied for and approved (see <em>Anpex</em> at [5]).</p> <p class="Judg-1"><a id="p1_17"></a>17 For the avoidance of doubt, nothing I have said here shall bind the judge hearing the ancillary matters.</p> <p class="Judg-1"><a id="p1_18"></a>18 It remains for me to thank both Mr Tang and Ms Ng, once again, for their assistance.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Grant of Aid dated 19 February 2024.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Wife’s Written Submissions dated 12 June 2024 at [8].</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Wife’s Written Submissions dated 12 June 2024 at [9].</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Wife’s Written Submissions dated 12 June 2024 at [11].</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup>Husband’s Written Submissions dated 3 June 2024 at [6].</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>Husband’s Written Submissions dated 3 June 2024 at [5(ii)].</p></div></content></root> | 1320 |
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