fc_judgments_version: 57

This data as json

_id _item _version _commit tags date court case-number title citation url counsel timestamp coram html _item_full_hash
57 49 1 1771 
[
    "Family Law \u2013 Procedure \u2013 Discovery",
    "Family Law \u2013 Procedure \u2013 Discovery \u2013 Documents showing the value of assets under a trust fund",
    "Family Law \u2013 Procedure \u2013 Discovery \u2013 Documents not yet in existence"
]
 2024-07-05 Family Court Divorce No 1420 of 2023 (Summons No 1269 of 2024) WZF v WZG [2024] SGFC 46 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%2F31712-SSP.xml 
[
    "Stephanie Looi Min Yi (Constellation Law Chambers LLC) for the plaintiff",
    "Jasmine Yan (Kishan Law Chambers LLC) for the defendant"
]
 2024-07-12T16:00:00Z[GMT] Soh Kian Peng <root><head><title>WZF v WZG</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WZF <em>v</em> WZG </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31712-SSP.xml')">[2024] SGFC 46</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 1420 of 2023 (Summons No 1269 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">05 July 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"> Stephanie Looi Min Yi (Constellation Law Chambers LLC) for the plaintiff; Jasmine Yan (Kishan Law Chambers 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"> WZF — WZG </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Discovery</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Discovery</span> – <span style="font-style:italic">Documents showing the value of assets under a trust fund</span></p> <p class="txt-body"><span style="font-style:italic">Family Law</span> – <span style="font-style:italic">Procedure</span> – <span style="font-style:italic">Discovery</span> – <span style="font-style:italic">Documents not yet in existence</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">5 July 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       Parties were married on the 26<sup>th</sup> of June 2015 in Perth. Almost three years later, they welcomed their son into the family. Beneath the surface, however, cracks were forming in their relationship. The details of how the relationship between Husband and Wife had broken down are set out in the Statement of Particulars (“SOP”). They tell the tale of how the Husband had behaved in such an unreasonable way that the Wife could not be expected to live with him. That was the ground of divorce which the Wife relied on when she eventually filed for divorce on 27 March 2023. Interim judgment was subsequently granted on the 29<sup>th</sup> of November 2023. Parties then proceeded to exchange their voluntary requests for both discovery and interrogatories. Dissatisfied with the Husband’s response, the Wife took out SUM 1269 of 2024 (“SUM 1269”) seeking discovery in respect of 15 categories of documents.</p> <p class="Judg-1"><a id="p1_2"></a>2       I heard oral arguments from parties on 24 June 2024. This is my decision.</p> <p class="Judg-Heading-1">Decision in respect of SUM 1269</p> <p class="Judg-1"><a id="p1_3"></a>3       The twin principles of relevance and necessity govern when discovery should be ordered: <em>WYX v WYY</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31691-SSP.xml')">[2024] SGFC 45</a> at [5] citing <em>WWS v WWT</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31488-SSP.xml')">[2024] SGFC 24</a> at [21] – [25] citing <em>UJN v UJO</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/21836-SSP.xml')">[2018] SGFC 47</a> at [9]; <em>Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/25533-M.xml')">[2003] SGDC 306</a>; <em>VTQ v VTR</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/26432-SSP.xml')">[2021] SGFC 85</a>. These principles are not in dispute in the present case.</p> <p class="Judg-1"><a id="p1_4"></a>4       Item 1 was a request for the statements of the Husband’s bank account with the Commonwealth Bank of Australia (ending - XXX) from January 2022 to November 2022.</p> <p class="Judg-1"><a id="p1_5"></a>5       Counsel for the Wife, Ms Looi, explained during the hearing, that the Husband had only disclosed the statements from June to November 2022 after SUM 1269 had been taken out. Ms Looi had also explained that the statements sought were for the period shortly before the breakdown of the marriage.<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_6"></a>6       The only response which Ms Yan had was that the Husband did not have the documents which were asked for.</p> <p class="Judg-1"><a id="p1_7"></a>7       There can be no quarrel as to the relevance, or the necessity of the documents that the Wife seeks. It is indeed useful for the court, as well as the Wife, to have a picture of the Husband’s financial affairs in the period leading up to, and shortly after the breakdown of the marriage: <em>Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and other cases</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/25533-M.xml')">[2003] SGDC 306</a> (“<em>Tan Bin Yong Christopher</em>”) at [19]. I will therefore allow the request in respect of Item 1. The Husband is to disclose these documents. If he cannot produce them, he must state his reasons, and provide the relevant supporting documents.</p> <p class="Judg-1"><a id="p1_8"></a>8       I turn now to address Items 2, 3, 4, 5, 7, and 8. These were statements of the Husband’s other bank accounts from January 2022 to the present date. Ms Looi explained that the Wife took the view that there had been no full and frank disclosure by the Husband in respect of these accounts. That was because in the Husband’s Notice in Response (“NIR”) to the Wife’s request for voluntary discovery, he had stated that there were no such accounts. However, in response to SUM 1269, the Husband had stated that these accounts had been closed. The Wife takes the position that if these accounts had indeed been closed, then the Husband should provide documentary evidence of the account closure.</p> <p class="Judg-1"><a id="p1_9"></a>9       In response, Ms Yan said that in respect of Items 2 and 5, the bank accounts were not in existence. As for Items 3, 4, 7 and 8, the Husband had called the bank but was still unable to get the documents.</p> <p class="Judg-1"><a id="p1_10"></a>10     The Wife’s request in respect of Items 2, 3, 4, 5, 7, and 8 is allowed. If the Husband does not have these documents, he must provide an explanation together with any relevant supporting documents. He cannot sidestep his obligation to provide disclosure with the mere assertion that these documents do not exist: <em>WWS v WWT</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31488-SSP.xml')">[2024] SGFC 24</a> at [75]. Finally, I add that there can be no quarrel as to the relevance and necessity of these documents – they would shed light on the Husband’s financial affairs in the period leading up to the filing of the divorce, and the period after the divorce had been filed.</p> <p class="Judg-1"><a id="p1_11"></a>11     As for Items 6 and 9, these too were requests for statements of the Husband’s bank accounts for the period January 2022 to January 2023, and January 2022 to February 2023 respectively. Ms Looi argued that while the Husband claimed that he had requested for the documents, he had yet to produce them, and there was no visibility as to when these documents would be produced. The Wife therefore had to seek disclosure of those documents.</p> <p class="Judg-1"><a id="p1_12"></a>12     In response, Ms Yan explained that the Husband had called the bank to ask for the account statements, but he had been told that more time would be needed before the statements could be sent to him.</p> <p class="Judg-1"><a id="p1_13"></a>13     The Wife’s request in respect of Items 6 and 9 is allowed. Parties did not dispute the relevance, or necessity of these documents to the ancillary matters hearing. The real dispute was when the Husband could produce these documents. As I have explained above (at [7]), if the Husband cannot produce these documents, he must provide an explanation together with any relevant supporting documents.</p> <p class="Judg-1"><a id="p1_14"></a>14     I come now to Items 10 and 11. These were requests for the Husband’s income tax statements in Singapore and Australia. Ms Looi argued that these documents were relevant and necessary because the Husband had only stated that he was earning $7500 per month, but he had not produced any documents evidencing his income. These documents were relevant and necessary to the hearing of the ancillary matters because child maintenance was a live issue.</p> <p class="Judg-1"><a id="p1_15"></a>15     Ms Yan stated that the Husband had not filed any income tax since 2020. He had, however, instructed his auditors to help prepare and file his income tax returns in Australia, but his auditors had told him that some time would be required before that could be done.</p> <p class="Judg-1"><a id="p1_16"></a>16     The Wife’s request in respect of Items 10 and 11 are allowed. The Husband’s income tax statements are indeed relevant and necessary for determining the Husband’s income. Although both Ms Yan and Ms Looi had crossed swords on whether the Husband had not filed any income tax statements for a long time, this was not a material consideration in deciding whether discovery should be ordered. The point is, and Ms Looi had alluded to this in her oral arguments, that if the Husband indeed had not filed any tax returns, there would be some evidence from the tax authorities to that effect. The Husband must therefore disclose his income tax statements. If he cannot produce them, he must explain why, and provide documentary evidence from the tax authorities in support.</p> <p class="Judg-1"><a id="p1_17"></a>17     I turn now to the Wife’s request in Item 12. The documents which the Wife sought were in respect of the Australian and Singapore corporate entities of the [A] Group of Companies (the “Companies”). She wanted the audited financial statements or unaudited profit and loss statements of the Husband’s companies for the period 2020 to date.</p> <p class="Judg-1"><a id="p1_18"></a>18     Ms Looi argued that the Husband should be able to produce these documents because he was the sole director and shareholder of the Companies. Ms Yan did not dispute this point. She explained that the Husband’s instructions were that he did not have the audited statements that the Wife had asked for, and that he was currently waiting for the auditors to prepare the statements. In any event, as Ms Yan argued, the period of disclosure should only be from 2022 to the present date.</p> <p class="Judg-1"><a id="p1_19"></a>19     The applicable principles relating to the disclosure of company documents in discovery are set out in the High Court decision of <em>ACW v ACX</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2014] SGHC 0053.xml')">[2014] SGHC 53</a> (at [20] citing <em>B v B (Matrimonial Proceedings: Discovery)</em> [1978] Fam 181 at 193 – 194) (see also <em>WWS v WWT</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31488-SSP.xml')">[2024] SGFC 24</a> at [41] – [44]; <em>WYA v WYB</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31611-SSP.xml')">[2024] SGFC 37</a> at [23] – [26]). Given that the Husband is indeed the sole shareholder and director of the Companies,<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span> I am satisfied that the documents sought are either within his possession, or within his power to obtain.</p> <p class="Judg-1"><a id="p1_20"></a>20     Insofar as Ms Yan had stated that the Husband was still waiting for the statements to be prepared, this was not a bar to ordering discovery. I note that the court in <em>VTQ v VTR</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/26432-SSP.xml')">[2021] SGFC 85</a> had stated, at [64], that a “prerequisite to the court’s power to order discovery is that there must be some evidence that the document requested is or has at any time been in the respondent’s possession, custody or power. The standard of proof is that of a <em>prima facie</em> case”. I would go one step further and add that the court can order discovery if there is <em>prima facie</em> evidence that the documents sought will come into existence at some point in the future. This point was illustrated in <em>G v G (Financial Provision: Discovery)</em> [1992] 1 FLR 40. In that case, the husband had recently joined a firm of solicitors and the partnership deed, which the wife sought disclosure of, had yet to be drawn up. Bracewell J ruled (at p 42) that that the court’s power to order discovery was not merely limited to documents that were already in existence.</p> <p class="Judg-1"><a id="p1_21"></a>21     As for the period of disclosure, I could not agree with Ms Yan that the period of disclosure should only be from 2022 till the present date. It was, in my judgment, necessary to order a wider period of disclosure given that it had been stated, in the SOP, that the Wife had no clear picture of the Husband’s “financial ability” despite their years of marriage.<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_22"></a>22     For the above reasons, I allow the Wife’s request in respect of Item 12.</p> <p class="Judg-1"><a id="p1_23"></a>23     I come now to Item 13. The Wife was seeking documents relating to the [B] Family Trust account and documents stating the value of the trust account. Ms Looi argued that I should order disclosure because pursuant to cl 6.3 of the trust deed, the Husband could, as the sole beneficiary of the trust, obtain a valuation of the assets held by the trust. While Ms Looi acknowledged that the trust deed was governed by Australian law, she made the point that there was no need to refer to Australian law to establish the proposition that a beneficiary of a trust is entitled to ask the trustee for an account. That was because cl 6.3 had very clearly set this out:</p> <p class="Judg-Quote-1"> <b>6.3 Accounts, Records, Information and Documents</b> </p> <p class="Judg-Quote-1">(a)    The Trustee will keep complete and accurate records of all receipts and expenditures on account of the Trust Fund</p> <p class="Judg-Quote-1">(b)    Promptly after the close of each Accounting Period, the Trustee will prepare a written accounting report (prepared in accordance with the accounting practices and standards generally accepted in Australia) for that Accounting Period consisting of a:</p> <p class="Judg-QuoteList-2">(1)    Statement of income and expenditure; and</p> <p class="Judg-QuoteList-2">(2)    List of assets and liabilities at the close of that Accounting Period.</p> <p class="Judg-Quote-1">Without prejudice to any right of the Trustee to refuse disclosure of any document, the Trustee will not be bound to disclose to any person:</p> <p class="Judg-QuoteList-2">(1)    A document disclosing:</p> <p class="Judg-QuoteList-3">(A)    the deliberations of the Trustee as to the manner in which the Trustee should exercise a power vested in, or discretion conferred on, the Trustee by this Deed; or</p> <p class="Judg-QuoteList-3">(B)    the reasons for a particular exercise of or failure or refusal to exercise, a power or discretion by the Trustee, or the material upon which those reasons were or might have been based; or</p> <p class="Judg-QuoteList-2">(2)    Any other document relating to the exercise or proposed exercise of a power or discretion conferred by the Trustee (not being legal advice obtained by the Trustee as an expense of the Trust Fund).</p> <p class="Judg-1"><a id="p1_24"></a>24     In response, Ms Yan stated that the Husband’s position was that he had disclosed the trust deed and that there were no other documents in his possession. Insofar as the Husband could, pursuant to the trust deed, request for the documents, some time would be needed for those documents to be prepared.</p> <p class="Judg-1"><a id="p1_25"></a>25     I allow the Wife’s request in respect of Item 13. Documents disclosing the value of the assets held on trust were certainly relevant and necessary to the determination of the ancillary matters, specifically, the determination of the matrimonial pool of assets. For completeness, I note that cl 6.3 did not expressly state that the Husband could, as the sole beneficiary, ask for documents disclosing the value of assets held on trust for him. All that cl 6.3 stated was that the Trustee would prepare written accounting reports. There was <em>prima facie</em> evidence that the documents which the Wife was seeking did exist. Given that the Husband did not dispute that he <em>could</em> obtain these documents, I did not see the need to interrogate whether the Husband had, pursuant to Australian law, the power to ask for those documents as the sole beneficiary of the trust.</p> <p class="Judg-1"><a id="p1_26"></a>26     I turn now to the penultimate item on the list: Item 14. This was a request for the Husband to disclose documents evidencing the current surrender value of an endowment fund which the Husband had taken out for the child.</p> <p class="Judg-1"><a id="p1_27"></a>27     The real dispute in relation to Item 14 was when the Husband could disclose the documents sought. Ms Looi explained that the Wife wanted clarity as to when the Husband could provide the documents. Ms Yan, on the other hand, pointed to an email sent by the Husband, showing that he had put in a request for the documents, but was currently awaiting a response.<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span></p> <p class="Judg-1"><a id="p1_28"></a>28     There was no dispute between parties as to the relevance or necessity of the documents sought. Rather, the quarrel was as to when these documents could be produced.</p> <p class="Judg-1"><a id="p1_29"></a>29     I therefore allow the Wife’s request in respect of Item 14. If the Husband cannot produce these documents, he must provide an explanation in his compliance affidavit, together with any supporting documents.</p> <p class="Judg-1"><a id="p1_30"></a>30     I come now to Item 15. This was a request for the Husband to disclose the Husband’s superannuation account in Australia. Ms Looi argued that because these documents could be easily obtained online, it was difficult to accept the Husband’s explanations as to the delays in obtaining those documents. The Wife thus took the view that the Husband was attempting to evade her request for those documents.</p> <p class="Judg-1"><a id="p1_31"></a>31     Ms Yan stated that the Husband’s instructions were that he was currently waiting for his advisor to provide him with the necessary documents.</p> <p class="Judg-1"><a id="p1_32"></a>32     The Wife’s request in respect of Item 15 is allowed. There can be no dispute as to the relevance and necessity of these documents to the hearing of the ancillary matters.</p> <p class="Judg-Heading-1">Orders Made </p> <p class="Judg-1"><a id="p1_33"></a>33     I therefore order that:</p> <p class="Judg-2"><a id="p1_33-p2_a"></a>(a)     The Husband shall state on affidavit, pursuant to Rule 63 of the Family Justice Rules 2014, in respect of the following documents as set out in Items 1 – 15 of the Schedule annexed to SUM 1269, whether the same is in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.</p> <p class="Judg-2"><a id="p1_33-p2_b"></a>(b)     The Husband shall exhibit, in the affidavit, a copy of each of the documents that are in his possession, custody or power. If any of the documents are not in his custody, power or possession, he is to state the reasons why, together with supporting documentation for his explanation (if any).</p> <p class="Judg-1"><a id="p1_34"></a>34     The Husband’s compliance affidavit is to be filed and served by 7 August 2024.</p> <p class="Judg-1"><a id="p1_35"></a>35     As for costs of SUM 1269, Ms Looi argued that the Husband should pay costs to the Wife, fixed at $2500 (all in). In response, Ms Yan argued that it was the Wife who should have to pay costs to the Husband, though she made no argument as to the quantum of costs payable.</p> <p class="Judg-1"><a id="p1_36"></a>36     I fix costs at $2400 (all in), to be paid by the Husband to the Wife within 14 days of this judgment. In doing so, I take into account the fact that the Wife has obtained orders for discovery in respect of all the items which she had prayed for in SUM 1269, as well as the fact that the matter was not particularly complex.</p> <p class="Judg-1"><a id="p1_37"></a>37     Finally, it remains for me to thank Ms Looi and Ms Yan 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>Wife’s Written Submissions at para 9.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Wife’s Supporting Affidavit for SUM 1269 at p 35 and pp 40 – 41.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Statement of Particulars at para 1(o).</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Husband’s Reply Affidavit to SUM 1269 at pp 20 – 21.</p></div></content></root> 2ead00ff44f729ffcafae879a8169304510e3783

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