fc_judgments: 85

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_id	_item_id	tags	date	court	case-number	title	citation	url	counsel	timestamp	coram	html	_commit
85	5ca576ccd5b855ccdbae6b5de036b349129ddd22	[ "Family Law \u2013 Inspection of original of document exhibited in affidavit" ]	2024-09-30	Family Court	D 5893/2022 (FC/RA 7/2024)	XCZ v XDA	[2024] SGFC 78	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%2F32246-SSP.xml	[ "Ms Tan Xuan Qi Dorothy and Ms Lim Fang-Yu Mathea (PKWA Law Practice LLC) for the Plaintiff", "Ms Julie Tok Law Corporation (Julie Tok Law Corporation) for the Defendant" ]	2024-10-07T16:00:00Z[GMT]	Chia Wee Kiat	<root><head><title>XCZ v XDA</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> XCZ <em>v</em> XDA </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/32246-SSP.xml')">[2024] SGFC 78</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">D 5893/2022 (FC/RA 7/2024)</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">30 September 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"> Chia Wee Kiat </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"> Ms Tan Xuan Qi Dorothy and Ms Lim Fang-Yu Mathea (PKWA Law Practice LLC) for the Plaintiff; Ms Julie Tok Law Corporation (Julie Tok Law Corporation) 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"> XCZ — XDA </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Inspection of original of document exhibited in affidavit</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">30 September 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Chia Wee Kiat:</p> <p class="Judg-1"><a id="p1_1"></a>1 The Plaintiff shall be referred to as the “Wife” and the Defendant shall be referred to as the “Husband”.</p> <p class="Judg-1"><a id="p1_2"></a>2 In FC/SUM 1115/2024 (“SUM 1115”), the Wife applied for the following orders:</p> <p class="Judg-2"><a id="p1_2-p2_1"></a>1) That the Defendant, on reasonable notice, produce at M/s Julie Tok Law Corporation, situate at 21 Merchant Road Level 4 (SPACES) Singapore 058267, the following document, namely the original Agreement for Personal Loan dated 27 February 2016 (exhibited at Page 148 of the Defendant’s Affidavit of Assets and Means filed on 1 August 2023), and that the Plaintiff and/or her solicitors be at liberty to inspect and peruse the document so produced, and to make notes of their contents, and be entitled to be supplied with copies thereof on payment of the proper charges;</p> <p class="Judg-2"><a id="p1_2-p2_2"></a>2) Costs; and</p> <p class="Judg-2"><a id="p1_2-p2_3"></a>3) Such other orders as this Honourable Court deems fit.</p> <p class="Judg-1"><a id="p1_3"></a>3 FC/RA 7/2024 (“RA 7”) is the Husband’s appeal against the decision of the learned Assistant Registrar Tan Zhi Xiang (“the AR”) given on 10 June 2024 granting an order-in-terms of prayer 1 of SUM 1115.</p> <p class="Judg-1"><a id="p1_4"></a>4 RA 7 came up for hearing before me on 16 August 2024. On 23 July 2024, I affirmed the AR’s decision and dismissed the Husband’s appeal with costs fixed at $3,500 (all in) to the Wife. The Husband filed a request for further arguments on 23 August 2024. The Wife responded on 26 August 2024.</p> <p class="Judg-1"><a id="p1_5"></a>5 Having carefully considered the Husband’s request and the Wife’s response, I certified, pursuant to rule 839(3)(a) of the Family Justice Rules, that no further arguments were required. The Husband has filed an appeal vide HCF/RAS 17/2024.</p> <p class="Judg-1"><a id="p1_6"></a>6 These are my grounds of decision.</p> <p class="Judg-Heading-1">Background</p> <p class="Judg-1"><a id="p1_7"></a>7 Parties are in the midst of contested ancillary matters proceedings.<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span> In the Husband’s Affidavit of Assets and Means filed on 1 August 2023 (“DAOM”), the Husband averred that that he owed his mother, [HM], a sum of $1,137,269.41.<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span> As evidence of the loan, the Husband exhibited an “Agreement for Loan” dated 27 February 2016 (“Loan Agreement”) signed by the Husband and [HM] and witnessed by one [PA]. <span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span> It appears from the Loan Agreement that various cheque payments amounting to $1,137,269.41 were made out by [HM] as a personal loan to the Husband for a property purchase.</p> <p class="Judg-Heading-1">The Wife’s case</p> <p class="Judg-1"><a id="p1_8"></a>8 In her Supporting Affidavit, the Wife says that she was extremely surprised to see the Loan Agreement. To the best of her understanding, the monies transferred to them from [HM] were meant as gifts.<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span> By claiming this sum as a loan from his mother, the Husband is claiming the sum as his direct contributions to the matrimonial home.<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span></p> <p class="Judg-1"><a id="p1_9"></a>9 The Wife sought clarifications from the Husband<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span> via her 1<sup>st</sup> Request for Interrogatories dated 8 September 2023 (“RFI”) requesting the Husband to state the following:<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span></p> <p class="Judg-Quote-1">1) What date the agreement was signed;</p> <p class="Judg-Quote-1">2) The identity of the person/persons who drafted the agreement;</p> <p class="Judg-Quote-1">3) Where parties signed the document;</p> <p class="Judg-Quote-1">4) Whether the Husband, [HM], and the witness were present at the same location; and</p> <p class="Judg-Quote-1">5) The relationship of [PA] to the Husband and/or [HM].</p> <p class="Judg-1"><a id="p1_10"></a>10 The reason for the request, as stated in the RFI, was as follows:<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span></p> <p class="Judg-Quote-1">Relevant to ascertaining the veracity of the loan agreement, as well as relevant to ascertaining the pool of the matrimonial assets.</p> <p class="Judg-1"><a id="p1_11"></a>11 In his Reply to Interrogatories, the Husband stated as follows:<span class="FootnoteRef"><a href="#Ftn_9" id="Ftn_9_1"><sup>[note: 9]</sup></a></span></p> <p class="Judg-Quote-1">a) The agreement was signed after the Defendant had returned from the US in 2016, in or around the July-Aug 2016 period.</p> <p class="Judg-Quote-1">b) The agreement was drafted by [HM].</p> <p class="Judg-Quote-1">c) All the parties had signed the agreement in Singapore. However, the Defendant is unable to recall the exact location where the agreement was signed.</p> <p class="Judg-Quote-1">d) All parties were present at the location.</p> <p class="Judg-Quote-1">e) [PA] is a property agent who handled the transaction of the matrimonial property. He is not related to Defendant nor [HM].</p> <p class="Judg-1"><a id="p1_12"></a>12 The Wife found it strange that the Loan Agreement, signed in July or August 2016, was backdated to 27 February 2016.<span class="FootnoteRef"><a href="#Ftn_10" id="Ftn_10_1"><sup>[note: 10]</sup></a></span> On 12 March 2024, the Wife’s solicitors wrote to the Husband’s solicitors to inform them that the Wife intended to obtain a forensic examination of the Loan Agreement and sought the Husband’s confirmation that he would provide her with the original copy of the said document.<span class="FootnoteRef"><a href="#Ftn_11" id="Ftn_11_1"><sup>[note: 11]</sup></a></span> Specifically, paragraph 2 of the letter states as follows:<span class="FootnoteRef"><a href="#Ftn_12" id="Ftn_12_1"><sup>[note: 12]</sup></a></span></p> <p class="Judg-Quote-1">Our client intends to obtain a forensic examination of the document titled “Agreement for Personal Loan”, exhibited at Page 148 of your client’s Affidavit of Assets and Means filed on 1 August 2023. Kindly confirm that your client has no objections to providing us with the original copy of the said document.</p> <p class="Judg-1"><a id="p1_13"></a>13 On 12 March 2024, the Husband’s solicitors requested for clarifications in the following terms:<span class="FootnoteRef"><a href="#Ftn_13" id="Ftn_13_1"><sup>[note: 13]</sup></a></span></p> <p class="Judg-Quote-1">We refer to your letter dated 12 March 2024.</p> <p class="Judg-Quote-1">With reference to Paragraph 2 of your said letter, kindly let us know as regards your client’s obtaining a forensic examination of our client’s “Agreement for Personal Loan” exhibited at Page 148 of his Affidavit and Means filed on 1 August 2023 (hereinafter referred to as “the said document”):</p> <p class="Judg-QuoteList-2">1. Your client’s intention and purpose of obtaining the same;</p> <p class="Judg-QuoteList-2">2. On what basis your client is seeking the forensic examination, and what your client is attempting to establish;</p> <p class="Judg-QuoteList-2">3. Who your client will be engaging to carry out the forensic examination;</p> <p class="Judg-QuoteList-2">4. Which tests will be carried out and the goals of the tests;</p> <p class="Judg-QuoteList-2">5. How the chain of custody of the said document will be maintained; and</p> <p class="Judg-QuoteList-2">6. When the said document will be returned to us.</p> <p class="Judg-Quote-1">Please let us have your reply before the close of business tomorrow. Nothing in this letter is to be construed as our client’s consent to your client’s request. All our client’s rights are hereby reserved.</p> <p class="Judg-1"><a id="p1_14"></a>14 On 14 March 2024, the Wife’s solicitors responded to the queries as follows:<span class="FootnoteRef"><a href="#Ftn_14" id="Ftn_14_1"><sup>[note: 14]</sup></a></span></p> <p class="Judg-Quote-1">1. We refer to the above matter and to your letter dated 12 March 2024.</p> <p class="Judg-Quote-1">2. Our client intends to obtain a forensic examination of the said document to determine the veracity of your client’s claims regarding when the document was signed.</p> <p class="Judg-Quote-1">3. Our client intends to engage the Health Science Authority (“HSA”) for the purposes of the forensic examination. It will be for HSA, the experts, to determine the appropriate tests for such purpose, and to advise on the duration of these said tests.</p> <p class="Judg-Quote-1">4. We will ensure that the document is kept under lock and key when in our premises (i.e. before and after the said document is used for the purposes of the relevant tests at the HSA). In addition, our lawyers will personally pick up and return the said document to your good office.</p> <p class="Judg-Quote-1">5. In the meantime, all of our client’s rights are reserved.</p> <p class="Judg-1"><a id="p1_15"></a>15 On 20 March 2024, the Husband’s solicitors replied to state that the Husband was unable to find the original Loan Agreement.<span class="FootnoteRef"><a href="#Ftn_15" id="Ftn_15_1"><sup>[note: 15]</sup></a></span> The reply stated as follows:<span class="FootnoteRef"><a href="#Ftn_16" id="Ftn_16_1"><sup>[note: 16]</sup></a></span></p> <p class="Judg-Quote-1">We refer to the above matter and your letters dated 12 and 13 March 2024.</p> <p class="Judg-Quote-1">We are instructed that our client has spent the last few days trying to locate the original of the “Agreement for Personal Loan” exhibited at Page 148 of his first Affidavit of Assets and Means filed on 1 August 2023 but has been unable to find the original of the said document.</p> <p class="Judg-Quote-1">Please let us have your client’s proposed next step in these proceedings, subject to our client’s agreement, that parties will be taking, before the close of business, today.</p> <p class="Judg-Quote-1">All our client’s rights are hereby reserved.</p> <p class="Judg-1"><a id="p1_16"></a>16 On 21 March 2024, the Wife’s solicitors issued a Notice to Produce Documents Referred to in Pleadings or Affidavits (“NP”) requiring the Husband to produce the Loan Agreement for inspection.<span class="FootnoteRef"><a href="#Ftn_17" id="Ftn_17_1"><sup>[note: 17]</sup></a></span></p> <p class="Judg-1"><a id="p1_17"></a>17 On 25 March 2024, the Husband’s solicitors sent a Notice Where Documents May Be Inspected (“NI”) in the following terms:<span class="FootnoteRef"><a href="#Ftn_18" id="Ftn_18_1"><sup>[note: 18]</sup></a></span></p> <p class="Judg-Quote-1">Take notice that a copy of the document the original of which is lost and cannot be located and mentioned in your notice of the 21<sup>st</sup> day of March 2024 may be inspected at 21 Merchant Road Level 4 (SPACES) Singapore 058267 on the 28<sup>th</sup> day of March 2024 between the hours of 10am and 11am.</p> <p class="Judg-1"><a id="p1_18"></a>18 The Wife says that the Husband’s position set out in his NI suggests that he is objecting to producing the original Loan Agreement for inspection. It would make no sense for her solicitors to inspect a copy of the Loan Agreement which had already been provided in the DAOM.</p> <p class="Judg-1"><a id="p1_19"></a>19 The Wife believes that the Loan Agreement and its authenticity and veracity are relevant and necessary for disposing fairly of the matter. The alleged loan of close to $1.15 million stated in the Loan Agreement forms a substantial portion of the Husband’s alleged indirect contributions towards the matrimonial home. It will have to be determined if the Loan Agreement is a genuine document, or simply an afterthought, drafted and signed by the Husband and his mother once divorce proceedings were likely, to preserve a larger share of asset for the Husband.<span class="FootnoteRef"><a href="#Ftn_19" id="Ftn_19_1"><sup>[note: 19]</sup></a></span> Given the importance of the Loan Agreement and the huge impact it could have on the case, the Wife does not believe that the Husband has misplaced the document.<span class="FootnoteRef"><a href="#Ftn_20" id="Ftn_20_1"><sup>[note: 20]</sup></a></span> Further, the Wife says that the Husband had previously given her a coloured-version of the same Loan Agreement. She believes that that Husband’s excuse that he has misplaced the Loan Agreement is a convenient excuse to avoid a forensic testing of the original document. <span class="FootnoteRef"><a href="#Ftn_21" id="Ftn_21_1"><sup>[note: 21]</sup></a></span></p> <p class="Judg-Heading-1">The Husband’s response</p> <p class="Judg-1"><a id="p1_20"></a>20 The Husband does not dispute that the Loan Agreement is significant and relevant. In his Reply Affidavit, the Husband says that the Loan Agreement is documentary evidence of the substantial portion of his direct financial contributions towards the matrimonial home and will certainly have a bearing on the determination of the division of the matrimonial home. It is an authentic document which he would be relying on in the ancillary matters hearing. Similarly, his mother would be relying on the Loan Agreement for the return of the monies to her.<span class="FootnoteRef"><a href="#Ftn_22" id="Ftn_22_1"><sup>[note: 22]</sup></a></span></p> <p class="Judg-1"><a id="p1_21"></a>21 The Husband says that the monies extended under the Loan Agreement were meant to be a loan to him and not a gift.<span class="FootnoteRef"><a href="#Ftn_23" id="Ftn_23_1"><sup>[note: 23]</sup></a></span> He explains as follows:<span class="FootnoteRef"><a href="#Ftn_24" id="Ftn_24_1"><sup>[note: 24]</sup></a></span></p> <p class="Judg-Quote-1">With reference to Paragraph 13 of the Plaintiff’s Affidavit, I would reiterate that the Plaintiff and I were physically in the US, in the State of California then. The Loan Agreement was signed sometime in or around July/August 2016 after our return to Singapore. There was never any denial that my mother and I had decided to backdate the Loan Agreement to 27 February 2016 as it was a day after the last date that the last cheques were dated. We had felt that doing so would be an accurate representation of the agreement. If the Plaintiff had needed to know details like these, she could have requested for them when parties were exchanging the various Requests for Interrogatories and Discovery, which were followed by several rounds of exchanges of clarifications. There is no discrepancy whatsoever as untruthfully alleged by the Plaintiff.</p> <p class="Judg-1"><a id="p1_22"></a>22 The Husband says that he was working off a copy of the Loan Agreement for his DAOM. When asked by the Wife’s solicitors to produce the original copy for forensic examination, he did not know that the original copy of the Loan Agreement was already lost at that point in time. He had thought that it was kept somewhere and could be located.<span class="FootnoteRef"><a href="#Ftn_25" id="Ftn_25_1"><sup>[note: 25]</sup></a></span> It was only when he attempted to look for the original copy of the Loan Agreement that he realised that it was lost.<span class="FootnoteRef"><a href="#Ftn_26" id="Ftn_26_1"><sup>[note: 26]</sup></a></span></p> <p class="Judg-1"><a id="p1_23"></a>23 The Husband says that notwithstanding that the Wife had been informed that he did not have the original of the Loan Agreement, the Wife proceeded to serve on him the NP.<span class="FootnoteRef"><a href="#Ftn_27" id="Ftn_27_1"><sup>[note: 27]</sup></a></span> In compliance with the said notice, his solicitors were compelled to serve the NI on the Wife, essentially stating that a copy of the Loan Agreement could be inspected.<span class="FootnoteRef"><a href="#Ftn_28" id="Ftn_28_1"><sup>[note: 28]</sup></a></span> However, no one turned up at his solicitors’ office for the inspection.<span class="FootnoteRef"><a href="#Ftn_29" id="Ftn_29_1"><sup>[note: 29]</sup></a></span> His solicitors immediately followed up with an email dated 28 March 2024 to put on record the following:</p> <p class="Judg-Quote-1">We refer to the above matters.</p> <p class="Judg-Quote-1">We wish to put on record the following:</p> <p class="Judg-Quote-1">Vide your letters dated 12 and 13 March 2024, your client had requested for a forensic examination of the Agreement for Personal Loan exhibited at Page 148 of our client’s Affidavit of Assets and Means filed on 1 August 2023.</p> <p class="Judg-QuoteList-2">1. Our client’s reply vide our email dated 20 March 2024 informed you that our client was <u>unable to locate the original of the document</u> requests.</p> <p class="Judg-QuoteList-2">2. Despite the same, your client proceeded to serve our client with a Notice to Produce Documents Referred To In Pleadings or Affidavits on 21 March 2024.</p> <p class="Judg-QuoteList-2">3. Our client’s Notice of Where Documents May Be Inspected was then served on you on 25 March 2024.</p> <p class="Judg-QuoteList-2">4. The date of inspection was scheduled on 28 March 2024 between the hours of 10 am and 11 am at our office.</p> <p class="Judg-QuoteList-2">5. However, the inspection did not take place as no one from your good office turned up at our office.</p> <p class="Judg-QuoteList-2">6. There was no courtesy of an email to inform us of your client’s instructions to abort the inspection.</p> <p class="Judg-QuoteList-2">7. Time has been unnecessarily wasted.</p> <p class="Judg-QuoteList-2">8. Our client’s rights are hereby reserved, including but not limited to asking for costs of today’s aborted inspection.</p> <p class="Judg-Quote-1">[emphasis in original]</p> <p class="Judg-1"><a id="p1_24"></a>24 The Husband says that there was no suggestion that he was objecting to producing the original Loan Agreement for inspection as alleged by the Wife.<span class="FootnoteRef"><a href="#Ftn_30" id="Ftn_30_1"><sup>[note: 30]</sup></a></span> As he had stated clearly in his solicitors’ email dated 20 March 2024 that the original was lost,<span class="FootnoteRef"><a href="#Ftn_31" id="Ftn_31_1"><sup>[note: 31]</sup></a></span> the Wife ought not to have proceeded to serve on him the NP.<span class="FootnoteRef"><a href="#Ftn_32" id="Ftn_32_1"><sup>[note: 32]</sup></a></span></p> <p class="Judg-1"><a id="p1_25"></a>25 The Husband reiterates as follows:<span class="FootnoteRef"><a href="#Ftn_33" id="Ftn_33_1"><sup>[note: 33]</sup></a></span></p> <p class="Judg-Quote-1">… the Plaintiff is entitled to her beliefs, which in this case, I would say is wholly unsubstantiated. However, the truth of the matter and as I have reiterated, is that the ORIGINAL of the Loan Agreement cannot be found. It is worth noting that the document was made some eight (8) years ago. With the passage of time, the ORIGINAL document had unfortunately been misplaced and cannot be found. We do not know when the ORIGINAL copy was misplaced over the past eight (8) years.</p> <p class="Judg-Quote-1">… I would reiterate that when I instructed my solicitor to write to the Plaintiff’s solicitors, the first and foremost concerns I had amongst others, were the Plaintiff’s intention and purpose of obtaining the Loan Agreement for a forensic examination and how the chain of custody of the document would be maintained, all of which were valid concerns, if the said document was to be handed to the Plaintiff. I was trying to locate the ORIGINAL Loan Agreement then and did not know that the ORIGINAL was already lost at that point in time. I was working off a copy of the Loan Agreement for my Affidavit of Assets and Means. I had only realized that the ORIGINAL of the Loan Agreement was lost when my attempts to find it, failed.</p> <p class="Judg-1"><a id="p1_26"></a>26 The Husband contends that this was not a case where he had offered inspection of a copy instead of an original document, which defeated the purpose of inspection. Rather, it was the Wife who ought not to have taken out and served the NI on the Husband when she was aware and had knowledge that the original of the document was lost.<span class="FootnoteRef"><a href="#Ftn_34" id="Ftn_34_1"><sup>[note: 34]</sup></a></span></p> <p class="Judg-Heading-1">The Wife’s reply</p> <p class="Judg-1"><a id="p1_27"></a>27 The Wife says that when she returned from the United States to Singapore by herself for a period of about two weeks in February and March 2016, she viewed the matrimonial home with the Husband’s mother and the agent, without the Husband being present. Throughout the view, the Husband’s mother did not mention at any point in time that she intended to loan monies to them for the purchase of the matrimonial home. This was despite the fact that the Loan Agreement was allegedly backdated to the time when she was in Singapore and viewing the matrimonial home with the Husband’s mother.<span class="FootnoteRef"><a href="#Ftn_35" id="Ftn_35_1"><sup>[note: 35]</sup></a></span></p> <p class="Judg-1"><a id="p1_28"></a>28 The Wife says that there is a significant discrepancy in the date of the Loan Agreement and the actual date of signing as alleged by the Husband.<span class="FootnoteRef"><a href="#Ftn_36" id="Ftn_36_1"><sup>[note: 36]</sup></a></span> She did ask for more details in relation to the Loan Agreement<span class="FootnoteRef"><a href="#Ftn_37" id="Ftn_37_1"><sup>[note: 37]</sup></a></span> but the Husband had been less than forthright about the discrepancy, which gave her significant cause to doubt the veracity and authenticity of the Loan Agreement.<span class="FootnoteRef"><a href="#Ftn_38" id="Ftn_38_1"><sup>[note: 38]</sup></a></span></p> <p class="Judg-1"><a id="p1_29"></a>29 The Wife believes that the Loan Agreement was signed as an afterthought when divorce proceedings were commenced by her sometime in December 2022.<span class="FootnoteRef"><a href="#Ftn_39" id="Ftn_39_1"><sup>[note: 39]</sup></a></span> The fact that a loan agreement in respect of a sum of more than $1,100,000.00 can be lost is simply suspect. The Husband only claimed that the document was lost after he realised that he could not avoid a forensic testing of the document, despite raising concerns about the chain of custody.<span class="FootnoteRef"><a href="#Ftn_40" id="Ftn_40_1"><sup>[note: 40]</sup></a></span></p> <p class="Judg-1"><a id="p1_30"></a>30 The Wife says that the NP was clearly with reference to the original Loan Agreement, since there is no point in her solicitors inspecting a copy of a document, with the said copy already being exhibited in the Husband’s DAOM. It would make no sense at all for the Husband to provide inspection of a copy of the Loan Agreement, when the authenticity of the Loan Agreement is in dispute in the first place.<span class="FootnoteRef"><a href="#Ftn_41" id="Ftn_41_1"><sup>[note: 41]</sup></a></span> The Husband’s NI made a mockery of the process of inspection by offering for inspection a copy of the document.<span class="FootnoteRef"><a href="#Ftn_42" id="Ftn_42_1"><sup>[note: 42]</sup></a></span></p> <p class="Judg-Heading-1">The AR’s decision</p> <p class="Judg-1"><a id="p1_31"></a>31 In granting the Wife’s application via Registrar’s Notice dated 10 June 2024, the AR noted as follows:</p> <p class="Judg-Quote-1">It cannot be seriously disputed that the inspection of the purposed (<em>sic</em>) loan agreement is relevant and necessary, given the quantum of the alleged loan and the dispute over the authenticity of the agreement.</p> <p class="Judg-Quote-1">The Court is unable to accept, at this juncture, the Defendant's claim that the agreement is lost. The Defendant did not provide details on efforts made to locate the agreement; he has only made a bare assertion that it is lost. Further, it is curious that the Defendant claimed that the agreement was lost only after the Plaintiff stated her intention to send the agreement for forensic testing. The backdating of the agreement also appears odd. However, I emphasise that these views are expressed for the purpose of this application only. The Defendant is entitled to adduce further evidence to show that the agreement is lost, and the hearing judge is, of course, not bound by my views.</p> <p class="Judg-1"><a id="p1_32"></a>32 On 19 June 2024, the AR provided supplementary grounds, noting that the application raised the interesting question of the correct approach to adopt when a party who has been served a notice under rule 65 of the Family Justice Rules 2014 (“FJR”) claims that the document is lost.</p> <p class="Judg-1"><a id="p1_33"></a>33 The AR was of the view where a party has chosen to refer to a document in an affidavit, the other party is generally entitled to that document, and the Court should be strongly inclined to order production. It is not a pre-requisite for the making of the order that the respondent be in possession, custody or control of the document, although it can be a relevant factor. Where the document is not in the possession, custody or control of the respondent, the respondent must demonstrate reasonable efforts to obtain the documents.<span class="FootnoteRef"><a href="#Ftn_43" id="Ftn_43_1"><sup>[note: 43]</sup></a></span></p> <p class="Judg-1"><a id="p1_34"></a>34 The AR found that the Wife was <em>prima facie</em> entitled to inspect the Loan Agreement since the Husband had chosen to refer to it in his affidavit. The burden is on the Husband to prove “good cause” why the order cannot be made. The AR found that no “good cause” was shown because the Husband offered nothing more than a bare assertion that the Loan Agreement is lost.<span class="FootnoteRef"><a href="#Ftn_44" id="Ftn_44_1"><sup>[note: 44]</sup></a></span> The AR noted as follows:<span class="FootnoteRef"><a href="#Ftn_45" id="Ftn_45_1"><sup>[note: 45]</sup></a></span></p> <p class="Judg-Quote-1">He has not explained the steps he has taken to locate the agreement. He has not explained where and when it was last seen. He has not explained why he was at one point able to obtain a colour copy of the agreement. Thus, from the evidence, he has made at most “only the lamest of efforts” in obtaining the agreement.</p> <p class="Judg-1"><a id="p1_35"></a>35 The AR was of the view that if a bare assertion that a document is lost can amount to a full defence to an application under rule 66(1) of the FJR, that rule would lose much of its force.<span class="FootnoteRef"><a href="#Ftn_46" id="Ftn_46_1"><sup>[note: 46]</sup></a></span></p> <p class="Judg-Heading-1">Analysis</p> <p class="Judg-1"><a id="p1_36"></a>36 A judge hearing a Registrar’s Appeal exercises confirmatory jurisdiction, as opposed to appellate jurisdiction. Although I may accord appropriate weight to the AR’s decision, I am not bound by the manner in which he exercised his discretion. This is clear from <em>Lian Soon Construction Pte Ltd v Guan Qian Realty Pte Ltd</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[1999] 1 SLR(R) 1053.xml')">[1999] 1 SLR(R) 1053</a> at [38] where it was held that:</p> <p class="Judg-Quote-1">… A judge in chambers who hears an appeal from the Registrar is entitled to treat the matter as though it came before him for the first time. The judge in chambers in effect exercises confirmatory jurisdiction. The judge’s discretion is in no way fettered by the decision below …</p> <p class="Judg-1"><a id="p1_37"></a>37 I begin by setting out the applicable rules. Specifically, rule 65 of the FJR provides as follows:</p> <p class="Judg-Quote-1"> <b>Inspection of documents in respect of ancillary relief</b> </p> <p class="Judg-Quote-1">65.—(1) A party to an action or matter may at any time serve a notice, in the relevant Form, on any other party in whose pleadings or affidavits reference is made to any document, requiring the other party —</p> <p class="Judg-QuoteList-2">(a) to produce that document for the inspection of the party giving the notice; and</p> <p class="Judg-QuoteList-2">(b) to permit the party giving the notice to take copies of the document.</p> <p class="Judg-Quote-1">(2) The party on whom a notice is served under paragraph (1) must, within 7 days after service of the notice, serve on the party giving the notice a notice (called in this paragraph the second notice) in the relevant Form —</p> <p class="Judg-QuoteList-2">(a) stating a time within 7 days after the service of the second notice at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the second notice; and</p> <p class="Judg-QuoteList-2">(b) stating which (if any) of the documents he objects to produce and on what grounds.</p> <p class="Judg-1"><a id="p1_38"></a>38 Rule 66 of the FJR provides as follows:</p> <p class="Judg-Quote-1"> <b>Order for production of documents for inspection</b> </p> <p class="Judg-Quote-1">66.—(1) If a party who is served with a notice under rule 65(1) —</p> <p class="Judg-QuoteList-2">(a) fails to serve a notice under rule 65(2);</p> <p class="Judg-QuoteList-2">(b) objects to producing any document for inspection; or</p> <p class="Judg-QuoteList-2">(c) offers inspection at a time or place such that, in the opinion of the Court, it is unreasonable to offer inspection then or there (as the case may be),</p> <p class="Judg-Quote-1">then, subject to rule 73, the Court may, on the application of the party entitled to inspection, make an order for the production of the documents in question for inspection at such time and place, in such manner, and on such conditions, as it thinks fit.</p> <p class="Judg-Quote-1">(2) Without prejudice to paragraph (1), but subject to rule 73, the Court may, on the application of a party to an action or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party in respect of which discovery has been given under rule 63 or pursuant to any order made under this rule.</p> <p class="Judg-Quote-1">(3) On making an order under rule 63(1), the Court may, in lieu of making an order under rule 63(2), make such orders for the production of the relevant documents for inspection at such time and place, and in such manner, as it thinks fit.</p> <p class="Judg-Quote-1">(4) An application for an order under paragraph (2) must be supported by an affidavit —</p> <p class="Judg-QuoteList-2">(a) specifying or describing the documents of which inspection is sought; and</p> <p class="Judg-QuoteList-2">(b) stating the belief of the deponent that the documents are in the possession, custody or power of the other party and that discovery has been given of them under rule 63 or pursuant to any order made under that rule.</p> <p class="Judg-1"><a id="p1_39"></a>39 Finally, rule 73 of the FJR provides as follows:</p> <p class="Judg-Quote-1"> <b>Discovery, inspection and answers to interrogatories to be ordered only if necessary</b> </p> <p class="Judg-Quote-1">73. On the hearing of any application for an order under rule 63, 64, 66, 67, 68, 69, 70 or 71, the Court —</p> <p class="Judg-QuoteList-2">(a) may, if satisfied that discovery, inspection or answers to interrogatories are not necessary, or not necessary at that stage of the action or matter, dismiss or, as the case may be, adjourn the application; and</p> <p class="Judg-QuoteList-2">(b) must in any case refuse to make such an order, if and so far as the Court is of the opinion that the discovery, inspection or answers to interrogatories are not necessary either for disposing fairly of the cause or matter or for saving costs.</p> <p class="Judg-1"><a id="p1_40"></a>40 A summary of the above rules, insofar as they are relevant to the present application, is as follows:</p> <p class="Judg-2"><a id="p1_40-p2_1"></a>1) A party to an action may at any time serve a notice on any other party in whose affidavit reference is made to any document, to produce that document for inspection: see rule 65(1) FJR.</p> <p class="Judg-2"><a id="p1_40-p2_2"></a>2) If a party who is served with the notice fails to serve a notice under rule 65(2), the party <em>entitled to inspection</em> may make an application to the Court for an order for the production of the document for inspection: see rule 66(1)(a) FJR.</p> <p class="Judg-2"><a id="p1_40-p2_3"></a>3) An order for production will be made only if it is necessary: see rule 66(1) r/w rule 73 FJR.</p> <p class="Judg-1"><a id="p1_41"></a>41 The Husband contends that the AR erred in citing rule 66(1) as not requiring the respondent to have possession, custody or control of the relevant document.<span class="FootnoteRef"><a href="#Ftn_47" id="Ftn_47_1"><sup>[note: 47]</sup></a></span> The Husband submits that rule 66(1) is not to be read alone. As rules 63 to 77 apply to all matters involving ancillary or financial relief, the rules must be read in their entirety. <span class="FootnoteRef"><a href="#Ftn_48" id="Ftn_48_1"><sup>[note: 48]</sup></a></span></p> <p class="Judg-1"><a id="p1_42"></a>42 The Husband points out that rules 63(1)(a) and (b) specifically require the Court to first determine whether the document described in the application had been in the respondent’s possession, custody or power, and if it was in the respondent’s possession, custody or power, then to exhibit a copy of the document in the affidavit, and if not in the respondent’s possession, custody or power, to state when he parted with it and what has become of it.<span class="FootnoteRef"><a href="#Ftn_49" id="Ftn_49_1"><sup>[note: 49]</sup></a></span> The Husband contends that the AR erred under rule 63 in not making an order requiring the Husband to make an affidavit stating whether any document specified in the application satisfied rules 63(1)(a) and 63(1)(b)<span class="FootnoteRef"><a href="#Ftn_50" id="Ftn_50_1"><sup>[note: 50]</sup></a></span> and instead proceeded to grant an order-in-terms of the Wife’s application without considering the affidavit, which the Husband ought to have been ordered to file.<span class="FootnoteRef"><a href="#Ftn_51" id="Ftn_51_1"><sup>[note: 51]</sup></a></span> The Husband contends further that the AR erred in any event in not dismissing the Wife’s application since rule 63(2) only required the Court to order a party to exhibit a copy of the document.<span class="FootnoteRef"><a href="#Ftn_52" id="Ftn_52_1"><sup>[note: 52]</sup></a></span></p> <p class="Judg-1"><a id="p1_43"></a>43 Respectfully, I did not find the Husband’s arguments persuasive. It should be noted that the Wife’s application is not an application for discovery under rule 63(1). It is an application for production of document for inspection under rule 66(1). Rules 63(1) and 66(1) are distinct provisions dealing with different types of applications, each with its own requirements. It would be incorrect, as a matter of statutory interpretation, to conflate them by importing the requirements in rule 63(1) into rule 66(1).</p> <p class="Judg-1"><a id="p1_44"></a>44 It is clear from a plain reading of rule 66(1) read with rule 65 that there is no requirement for the respondent to have possession, custody or control of the document. All that is required is that the respondent has made reference to the document in an affidavit. Once that requirement is satisfied, the other party to the action is <em>entitled to inspection</em> of the document.</p> <p class="Judg-1"><a id="p1_45"></a>45 An application under rule 66(1) may be contrasted with an application under rule 66(2). Unlike rule 66(1), rule 66(4) specifically requires that an application for an order under rule 66(2) must be supported by an affidavit stating the belief of the deponent that the document is in the possession, custody or power of the other party and that discovery has been given to them under rule 63 or pursuant to any order made under that rule.</p> <p class="Judg-1"><a id="p1_46"></a>46 I note in this regard that a similar approach was adopted in <em>SK Shipping Co Ltd v IOF Pte Ltd</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2012] SGHCR 0014.xml')">[2012] SGHCR 14</a> (“<em>SK Shipping</em>”), which concerned an application by the defendant, pursuant to, <em>inter alia</em>, O 24 r 11 read with O 24 r 10 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), for the production and/or inspection of documents referred to in the Statement of Claim.</p> <p class="Judg-1"><a id="p1_47"></a>47 O 24 r 10, which is the equivalent of rule 65 of the FJR, provides for the inspection of documents referred to in pleadings and affidavits. It states:</p> <p class="Judg-Quote-1"> <b>Inspection of documents referred to in pleadings and affidavits (O. 24, r. 10)</b> </p> <p class="Judg-Quote-1">(1) Any party to a cause or matter shall be entitled at any time to serve a notice in Form 40 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof.</p> <p class="Judg-Quote-1">(2) The party on whom a notice is served under paragraph (1) must, within 4 days after service of the notice, serve on the party giving the notice a notice in Form 41 stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which (if any) of the documents he objects to produce and on what grounds.</p> <p class="Judg-1"><a id="p1_48"></a>48 O 24 r 11, which is the equivalent of rule 66 of the FJR, states as follows:</p> <p class="Judg-Quote-1"> <b>Order for production for inspection (O. 24, r. 11)</b> </p> <p class="Judg-Quote-1">(1) If a party who is required by Rule 9 to serve such a notice as is therein mentioned or who is served with a notice under Rule 10 (1) —</p> <p class="Judg-QuoteList-2">(a) fails to serve a notice under Rule 9 or, as the case may be, Rule 10 (2);</p> <p class="Judg-QuoteList-2">(b) objects to produce any document for inspection; or</p> <p class="Judg-QuoteList-2">(c) offers inspection at a time or place such that, in the opinion of the Court, it is unreasonable to offer inspection then or, as the case may be,</p> <p class="Judg-Quote-1">then, subject to Rule 13 (1), the Court may, on the application of the party entitled to inspection, make an order in Form 42 for the production of the documents in question for inspection at such time and place, and in such manner, as it thinks fit.</p> <p class="Judg-Quote-1">(2) Without prejudice to paragraph (1), but subject to Rule 13 (1), the Court may, on the application of any party to a cause or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party in respect of which discovery has been given under any Rule in this Order or in pursuance of any order made thereunder.</p> <p class="Judg-Quote-1">(3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession, custody or power of the other party and that discovery has been given of them under any Rule in this Order or in pursuance of any order made thereunder.</p> <p class="Judg-1"><a id="p1_49"></a>49 As observed by the learned Assistant Registrar Justin Yeo in <em>SK Shipping</em> (at [32]-[33]):</p> <p class="Judg-Quote-1">32 While no Singapore cases were cited to me on this point, the English case of <em>Rafidain Bank</em> is instructive. In <em>Rafidain Bank</em>, it was held that the omission of the requirement of “possession, custody or power” from the equivalent RSC provision was, as a matter of construction and common sense, a “deliberate” one (<em>Rafidain Bank</em> at 1610H). This is because the party who refers to the documents in his pleadings or affidavits does so <em>by choice</em>, and usually because these documents were either essential to his cause of action (or defence), or of significant probative value to him (<em>ibid</em>). These do not presuppose that the said documents would be in that party’s possession, custody or power (<em>ibid</em>).</p> <p class="Judg-Quote-1">33 The court in <em>Rafidain Bank</em> further emphasised that <b>there was no reason why the broad scope of O 24 rr 10 and 11(1) should be restricted such that an order may only be made pursuant thereto if the documents sought are in the possession, custody or power of the party to whom the order if made is directed (</b><b><em>ibid </em></b><b>at 1613E). This should be contrasted with O 24 r 11(2), which contains the “exceptional restriction” that the making of an order pursuant thereto is dependent on whether the documents sought to be inspected are in the possession, custody or power of the party to whom the order if made is directed (</b><b><em>ibid</em></b><b>).</b></p> <p class="Judg-Quote-1">[Emphasis in bold added]</p> <p class="Judg-1"><a id="p1_50"></a>50 In the present case, the Husband has made reference to the Loan Agreement in his DAOM. Pursuant to rule 66(1), the Wife is “entitled to inspection” of the Loan Agreement. In compliance with rule 65(1), the Wife served the NP on the Husband. It is clear from the chronology of events narrated above that the Husband was well aware that the NP was a request to produce the <em>original</em>, and not a <em>copy</em>, of the Loan Agreement for inspection, as a copy of the Loan Agreement had already been exhibited in his DAOM.</p> <p class="Judg-1"><a id="p1_51"></a>51 In purported compliance with rule 65(2), the Husband served on the Wife the NI giving notice that a <em>copy</em> of the Loan Agreement may be inspected. As the request by the Wife was for the production of the <em>original</em> Loan Agreement, there was a failure on the part of the Husband to comply with rule 65(2). It bears reiterating that rule 65(2) requires the party on whom a notice to produce a document is served to state whether he objects to the production of the document in question. Hence, the Husband is required to state whether he objects to the production of the <em>original</em> Loan Agreement, which is the document in question. By skirting the issue and giving notice that a <em>copy</em> of the Loan Agreement may be inspected when that was not the document in question, the Husband has failed to comply with rule 65(2). Consequently, the requirement in rule 66(1)(a) of the FJR for the Court to invoke its power to order production is satisfied.</p> <p class="Judg-1"><a id="p1_52"></a>52 The Husband has sought to argue that s 67(1)(c) of the Evidence Act 1893 contemplates the situation where the original of a document is lost, but a copy of the said document remains admissible as secondary evidence of its contents. This may explain why rules 62, 63, 65, 66 and 73 of the FJR do not require specifically that an original of the document be produced or inspected.<span class="FootnoteRef"><a href="#Ftn_53" id="Ftn_53_1"><sup>[note: 53]</sup></a></span></p> <p class="Judg-1"><a id="p1_53"></a>53 I did not find this persuasive as s 67(1)(c) is an evidential provision. There is nothing in s 67(1)(c) or the rules that limit the right of a party entitled to inspection to inspect only a copy of the original document. Indeed, it would make no sense for any such restriction to be imposed as this would defeat the purpose of the inspection.</p> <p class="Judg-1"><a id="p1_54"></a>54 The crux of the matter, as correctly identified by the AR, is the correct approach to be adopted when a party who has been served a notice under rule 65(1) of the FJR, claims that the document is lost.</p> <p class="Judg-1"><a id="p1_55"></a>55 The Husband asserts that a copy of the Loan Agreement was in his possession, custody and power but not the original of the said document.<span class="FootnoteRef"><a href="#Ftn_54" id="Ftn_54_1"><sup>[note: 54]</sup></a></span> As the original of the document was lost, there cannot be an order to produce the same, as that would put the Husband in a position of impossibility to comply with the order.<span class="FootnoteRef"><a href="#Ftn_55" id="Ftn_55_1"><sup>[note: 55]</sup></a></span></p> <p class="Judg-1"><a id="p1_56"></a>56 The issue as to whether the Court is powerless to make an order for production where a party asserts that it lacks possession, custody or power was considered in <em>SK Shipping</em> which observed (at [34]-[38]) as follows:</p> <p class="Judg-Quote-1">… given that the court has discretion <em>vis-à-vis</em> whether or not to grant an order for production under O 24 r 11(1), the absence of possession, custody or power may be a <em>factor</em> taken into consideration in the exercise of such discretion. <b>The absence of possession, custody or power will “sometimes amount to a good cause” not to order production of such documents, but not “invariably” so</b> (<em>Rafidain Bank</em> at 1611B). The court in <em>Rafidain Bank</em> gave, as an example, the case of a “technical” absence of possession, custody or power where there is evidence that the third party who had possession of the document would very likely make it available if only he was asked to do so. The court was of the view that in such a situation, there was no reason that the court should be powerless to make an order for production, despite the respondent’s lack of possession, custody or power.</p> <p class="Judg-Quote-1">…</p> <p class="Judg-Quote-1">… it should be emphasised that in <em>Rafidain Bank</em>, <b>the “technical” lack of possession, custody or power was cited as an </b><b><em>example </em></b><b>(and by no means an </b><b><em>exhaustive </em></b><b>one) in which courts will order production where a party asserts that it lacks possession, custody or power over the documents in question</b> …</p> <p class="Judg-Quote-1">It is clear from <em>Zida</em> that it is insufficient for the party refusing discovery to demonstrate <b>“only the lamest efforts</b>” in requesting the necessary documents from the relevant third party (<em>Zida</em> at [59]). Where the efforts to obtain the necessary documents are “undistinguished by zeal” (<em>Zida</em> at [55]), the fact that the relevant third party refuses to cooperate is <em>per se</em> insufficient for the party refusing discovery to <b>discharge its onus of showing “good cause”</b> (see <em>Zida</em> at [51]-[59]).</p> <p class="Judg-Quote-1">[Emphasis in bold added]</p> <p class="Judg-1"><a id="p1_57"></a>57 In summary, the following principles may be derived. The Court has a discretion whether or not to grant an order for production. The onus is on the party refusing production to show “good cause” why the Court should not order production. The absence of possession, custody or power may be a factor taken into consideration in the exercise of such discretion. It may sometimes amount to a “good cause” but not invariably so.</p> <p class="Judg-1"><a id="p1_58"></a>58 The Husband contends that he had affirmed an affidavit stating that the original Loan Agreement was lost, thereby putting himself at risk of perjury if he had lied about the loss of the document.<span class="FootnoteRef"><a href="#Ftn_56" id="Ftn_56_1"><sup>[note: 56]</sup></a></span> However, this begs the question whether the Husband’s affidavit ought to be treated as conclusive. As noted above, the AR did not accept the Husband’s claim that the original Loan Agreement was lost.</p> <p class="Judg-1"><a id="p1_59"></a>59 In the absence of any case authority directly on point, I find it helpful to derive guidance from an analogous situation in a discovery application. In <em>Lutfi Salim bin Talib v British and Malayan Trustees Ltd</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31221-SSP.xml')">[2024] SGHC 85</a>, the defendant appealed against the Assistant Registrar’s order that the defendant produce three categories of documents. One of the issues in the appeal related to the conclusive nature of the defendant’s statement on affidavit that it did not have any further documents in its possession and/or control with respect to two of the categories. Chua Lee Ming J held (at [32]-[33]) as follows:</p> <p class="Judg-Quote-1">32 Thus, there is authority that under the previous versions of the Rules of Court, an affidavit in respect of discovery of documents was not conclusive if there was a <em>reasonable suspicion</em> that further discoverable documents existed.</p> <p class="Judg-Quote-1">33 However, in my view, this “reasonable suspicion” test has no place under O 11 r 3 of the ROC 2021. For the purposes of deciding an application under O 11 r 3(1), a respondent’s opposing affidavit and any subsequent affidavits filed in response to a previous order under O 11 rr 3(1) or 3(2) of the ROC 2021 are conclusive and the court should not go behind the affidavits unless it is <em>plain and obvious</em> from the documents that have been produced, the respondent’s affidavits or pleadings, or some other objective evidence before the court, that the requested documents (a) must exist or have existed; (b) must be or have been in the respondent’s possession or control; or (c) are not protected from production.</p> <p class="Judg-1"><a id="p1_60"></a>60 Hence, an affidavit in respect of discovery of documents is not conclusive if there is a “reasonable suspicion” that further discoverable documents existed (under the previous versions of the Rules of Court) or it is “plain and obvious<em>”</em> from the respondent’s affidavits or some other objective evidence before the Court, that the requested documents must be or have been in the respondent’s possession or control (under ROC 2021).</p> <p class="Judg-1"><a id="p1_61"></a>61 In my view, as the rules of discovery in the FJR were derived from the previous version of the Rules of Court and the Women’s Charter (Matrimonial Proceedings) Rules (Cap 353, R4), the “reasonable suspicion” test would be the more appropriate test to be adopted for the purpose of the present application.</p> <p class="Judg-1"><a id="p1_62"></a>62 Having carefully considered the Husband’s Reply Affidavit and the objective evidence before the Court, I found that there is a reasonable suspicion that the original Loan Agreement existed.</p> <p class="Judg-1"><a id="p1_63"></a>63 Firstly, the Loan Agreement was allegedly signed by the Husband, his mother and the property agent in Singapore and the three of them were allegedly present at the same location. It would be odd if none of the parties present was able to recall the location where the agreement was signed. The Husband’s reply, in response to the Wife’s interrogatory as to where parties signed the document, that <em>he</em> is “unable recall the exact location where the agreement was signed”, gives cause for doubt whether he has been forthcoming. This is because the question by the Wife is not whether the Husband is able to recall, but “[w]here parties signed the document”. Even if the Husband is unable to recall as he has asserted, could he not have checked with his mother or the property agent who were present? The ambivalent reply by the Husband leaves open the question whether any attempt was made to check with the others and whether they too, could not recall.</p> <p class="Judg-1"><a id="p1_64"></a>64 Secondly, each of the alleged signatories dated the Loan Agreement as “27/2/2016”. However, the Husband has given evidence that the Loan Agreement was signed in July or August 2016, after he had returned from the United States. On the face of the document, the Loan Agreement is plainly misleading since it was not executed on 27 February 2016. This material discrepancy in the Loan Agreement, discovered as a result of the interrogatories administered by the Wife, highlights the need for evidence relating to the Loan Agreement to be scrutinised with care. However, the evidence provided by the Husband is sorely lacking in detail.</p> <p class="Judg-1"><a id="p1_65"></a>65 Thirdly, the fact that the Loan Agreement was allegedly executed six months after the loan had already been extended is a suspicious circumstance by itself that warrants a proper explanation. The lack of details provided by the Husband as to how the Loan Agreement came about not only fails to dispel the suspicion but reinforces it.</p> <p class="Judg-1"><a id="p1_66"></a>66 Fourthly, since the purpose of the Loan Agreement is ostensibly for the mother to rely on it for the return of the loan, it would have been obvious to ask whether the mother has the original copy. Notedly, the Husband has merely stated that he is unable to locate the original copy, without saying whether the original was kept by him or his mother, or whether he has checked with his mother, whom, it should be noted, was the one who drafted the agreement.</p> <p class="Judg-1"><a id="p1_67"></a>67 Lastly, it seems too convenient that the Husband only realised that the original document was lost after his solicitors were informed by the Wife’s solicitors that the Wife intended to obtain a forensic examination of the said document to determine the veracity of his claim regarding when the document was signed. While the Husband has explained that he only realised that the original copy of the Loan Agreement was lost after he attempted to look for it, the veracity of his explanation must be assessed against the above backdrop, the importance of the document, and the consequential degree of care one would ordinarily expect in the safekeeping of an important document.</p> <p class="Judg-1"><a id="p1_68"></a>68 On the totality of the evidence before me, I found that the AR was justified in rejecting the Husband’s claim that the agreement was lost. In my judgment, there is a reasonable suspicion that the Husband is withholding the original copy to avoid a forensic examination of the document. An order for production is clearly necessary given the relevance and significance of the Loan Agreement to the division of the matrimonial home. As the Husband has failed to discharge the burden of proving “good cause”, I was not persuaded to exercise my discretion in his favour not to order production.</p> <p class="Judg-1"><a id="p1_69"></a>69 Finally, I should state for completeness that the Husband has sought to argue in his request for further arguments that he had exhibited not a photocopy of the original hardcopy of the loan agreement, but a printed copy of the softcopy. The Husband says that he should not be obliged to produce the original hardcopy since he was referring in truth to the softcopy. The Husband contends that whether or not the softcopy is authentic will depend on the presumption in s 116A of the Evidence Act in relation to electronic records.</p> <p class="Judg-1"><a id="p1_70"></a>70 I did not find any merit in this fresh argument. Whether the Husband had exhibited a photocopy of the original hardcopy of the Loan Agreement or a printed copy of a softcopy does not affect the entitlement of the Wife to request for inspection of the original document. The onus is on the Husband to prove that he does not have the original document and has made reasonable efforts to produce the original document, which he has failed to show.</p> <p class="Judg-1"><a id="p1_71"></a>71 For the above reasons, I affirmed the AR’s decision and dismissed the appeal.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [5].</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Husband’s Affidavit of Assets and Means (DAOM) at [19(b)] at p 15.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Husband’s Affidavit of Assets and Means (DAOM) at p 148.</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [9].</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [7].</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [10].</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at p 17.</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at p 17.</p><p class="Footnote"><sup><a href="#Ftn_9_1" id="Ftn_9">[note: 9]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at and p 30.</p><p class="Footnote"><sup><a href="#Ftn_10_1" id="Ftn_10">[note: 10]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [13].</p><p class="Footnote"><sup><a href="#Ftn_11_1" id="Ftn_11">[note: 11]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [14].</p><p class="Footnote"><sup><a href="#Ftn_12_1" id="Ftn_12">[note: 12]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at p 34.</p><p class="Footnote"><sup><a href="#Ftn_13_1" id="Ftn_13">[note: 13]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [12] and p 35.</p><p class="Footnote"><sup><a href="#Ftn_14_1" id="Ftn_14">[note: 14]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [15] and p 36.</p><p class="Footnote"><sup><a href="#Ftn_15_1" id="Ftn_15">[note: 15]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [16].</p><p class="Footnote"><sup><a href="#Ftn_16_1" id="Ftn_16">[note: 16]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at p 37.</p><p class="Footnote"><sup><a href="#Ftn_17_1" id="Ftn_17">[note: 17]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [17] and p 42.</p><p class="Footnote"><sup><a href="#Ftn_18_1" id="Ftn_18">[note: 18]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [18] and p 43.</p><p class="Footnote"><sup><a href="#Ftn_19_1" id="Ftn_19">[note: 19]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [20].</p><p class="Footnote"><sup><a href="#Ftn_20_1" id="Ftn_20">[note: 20]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [21].</p><p class="Footnote"><sup><a href="#Ftn_21_1" id="Ftn_21">[note: 21]</a></sup>Wife’s Supporting Affidavit dated 5 April 2024 (P1) at [22].</p><p class="Footnote"><sup><a href="#Ftn_22_1" id="Ftn_22">[note: 22]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [22].</p><p class="Footnote"><sup><a href="#Ftn_23_1" id="Ftn_23">[note: 23]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [7].</p><p class="Footnote"><sup><a href="#Ftn_24_1" id="Ftn_24">[note: 24]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [8].</p><p class="Footnote"><sup><a href="#Ftn_25_1" id="Ftn_25">[note: 25]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [10].</p><p class="Footnote"><sup><a href="#Ftn_26_1" id="Ftn_26">[note: 26]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [11].</p><p class="Footnote"><sup><a href="#Ftn_27_1" id="Ftn_27">[note: 27]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [13].</p><p class="Footnote"><sup><a href="#Ftn_28_1" id="Ftn_28">[note: 28]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [14].</p><p class="Footnote"><sup><a href="#Ftn_29_1" id="Ftn_29">[note: 29]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [15].</p><p class="Footnote"><sup><a href="#Ftn_30_1" id="Ftn_30">[note: 30]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [19].</p><p class="Footnote"><sup><a href="#Ftn_31_1" id="Ftn_31">[note: 31]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [19].</p><p class="Footnote"><sup><a href="#Ftn_32_1" id="Ftn_32">[note: 32]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [20].</p><p class="Footnote"><sup><a href="#Ftn_33_1" id="Ftn_33">[note: 33]</a></sup>Husband’s Reply Affidavit dated 22 April 2024 (D1) at [24]-[26].</p><p class="Footnote"><sup><a href="#Ftn_34_1" id="Ftn_34">[note: 34]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [26].</p><p class="Footnote"><sup><a href="#Ftn_35_1" id="Ftn_35">[note: 35]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [6].</p><p class="Footnote"><sup><a href="#Ftn_36_1" id="Ftn_36">[note: 36]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [9].</p><p class="Footnote"><sup><a href="#Ftn_37_1" id="Ftn_37">[note: 37]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [8].</p><p class="Footnote"><sup><a href="#Ftn_38_1" id="Ftn_38">[note: 38]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [9].</p><p class="Footnote"><sup><a href="#Ftn_39_1" id="Ftn_39">[note: 39]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [16].</p><p class="Footnote"><sup><a href="#Ftn_40_1" id="Ftn_40">[note: 40]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [17].</p><p class="Footnote"><sup><a href="#Ftn_41_1" id="Ftn_41">[note: 41]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [10].</p><p class="Footnote"><sup><a href="#Ftn_42_1" id="Ftn_42">[note: 42]</a></sup>Wife’s Reply Affidavit dated 6 May 2024 (P2) at [11].</p><p class="Footnote"><sup><a href="#Ftn_43_1" id="Ftn_43">[note: 43]</a></sup>AR supplementary grounds via RN dated 19 June 2024 at [8].</p><p class="Footnote"><sup><a href="#Ftn_44_1" id="Ftn_44">[note: 44]</a></sup>AR supplementary grounds via RN dated 19 June 2024 at [10].</p><p class="Footnote"><sup><a href="#Ftn_45_1" id="Ftn_45">[note: 45]</a></sup>AR supplementary grounds via RN dated 19 June 2024 at [9].</p><p class="Footnote"><sup><a href="#Ftn_46_1" id="Ftn_46">[note: 46]</a></sup>AR supplementary grounds via RN dated 19 June 2024 at [10].</p><p class="Footnote"><sup><a href="#Ftn_47_1" id="Ftn_47">[note: 47]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [19].</p><p class="Footnote"><sup><a href="#Ftn_48_1" id="Ftn_48">[note: 48]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [18].</p><p class="Footnote"><sup><a href="#Ftn_49_1" id="Ftn_49">[note: 49]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [20].</p><p class="Footnote"><sup><a href="#Ftn_50_1" id="Ftn_50">[note: 50]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [21].</p><p class="Footnote"><sup><a href="#Ftn_51_1" id="Ftn_51">[note: 51]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [22].</p><p class="Footnote"><sup><a href="#Ftn_52_1" id="Ftn_52">[note: 52]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [22].</p><p class="Footnote"><sup><a href="#Ftn_53_1" id="Ftn_53">[note: 53]</a></sup>Appellant’s (Defendant’s) Written Submission dated 16 July 2024 at [40]-[44].</p><p class="Footnote"><sup><a href="#Ftn_54_1" id="Ftn_54">[note: 54]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [28].</p><p class="Footnote"><sup><a href="#Ftn_55_1" id="Ftn_55">[note: 55]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [48].</p><p class="Footnote"><sup><a href="#Ftn_56_1" id="Ftn_56">[note: 56]</a></sup>Appellant’s (Defendant’s) Written Submissions dated 16 July 2024 at [43].</p></div></content></root>	1813

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