fc_judgments_version: 78
This data as json
| _id | _item | _version | _commit | tags | date | court | case-number | title | citation | url | counsel | timestamp | coram | html | _item_full_hash |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 78 | 67 | 1 | 1792 | [
"Family Law \u2013 Procedure \u2013 Discovery",
"Family Law \u2013 Procedure \u2013 Discovery \u2013 Disclosure of company \u2013 documents",
"Family Law \u2013 Procedure \u2013 Interrogatories",
"Family Law \u2013 Procedure \u2013 Costs"
] |
2024-08-19 | Family Court | Divorce No 877 of 2023 (Summons No 1978 and 1979 of 2024) | XBI v XBJ | [2024] SGFC 66 | 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%2F32013-SSP.xml | [
"Ivan Cheong, Shaun Ho, Imogen Harvey (Withers KhattarWong LLP) for the plaintiff",
"the defendant in-person and unrepresented."
] |
2024-08-23T16:00:00Z[GMT] | Soh Kian Peng | <root><head><title>XBI v XBJ</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> XBI <em>v</em> XBJ </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/32013-SSP.xml')">[2024] SGFC 66</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 877 of 2023 (Summons No 1978 and 1979 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">19 August 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"> Ivan Cheong, Shaun Ho, Imogen Harvey (Withers KhattarWong LLP) for the plaintiff; the defendant in-person and unrepresented. </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"> XBI — XBJ </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">Disclosure of company</span> – <span style="font-style:italic">documents</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">Interrogatories</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">Costs</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">19 August 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-1"><a id="p1_1"></a>1 The Husband and the Wife are British citizens. They were married on 8 December 2007 in the United Kingdom. They had four children.</p> <p class="Judg-1"><a id="p1_2"></a>2 On 1 August 2019, the entire family relocated to Singapore. They have lived here since. That they have lived here for a period of three years immediately preceding the filing of the divorce provides the basis for the Family Court having jurisdiction over their divorce.</p> <p class="Judg-1"><a id="p1_3"></a>3 The Statement of Particulars (“SOP”) sets out, in detail, how the Husband had behaved in such a manner such that the Wife could not reasonably be expected to live with him. Specifically, it is disclosed that the Husband was not only financially irresponsible in that he racked up enormous debts, but that he had also been cruel and unkind towards the Wife. It appears, from the SOP, that the Husband’s behaviour was, in part, fuelled by the suspicion that the Wife had been having an affair.</p> <p class="Judg-1"><a id="p1_4"></a>4 The Wife filed for divorce on 28 February 2023. Interim judgment was granted on 18 May 2023. Parties embarked on the road towards the hearing of the ancillary matters.</p> <p class="Judg-1"><a id="p1_5"></a>5 It is against this backdrop that the Wife took out her application for discovery and interrogatories in SUM 1979/2024 (“SUM 1979”) and SUM 1978/2024 (“SUM 1978”) respectively.</p> <p class="Judg-1"><a id="p1_6"></a>6 By the time the matter had come up for hearing, counsel for the Wife had whittled down the items they were seeking in discovery and interrogatories. In the end, the Wife only pursued five items in respect of discovery. The Husband, having discharged his lawyers, was unrepresented at the hearing. I heard both SUM 1978 and 1979 on 12 August 2024 and reserved judgment.</p> <p class="Judg-1"><a id="p1_7"></a>7 This is my decision.</p> <p class="Judg-1"><a id="p1_8"></a>8 I shall deal with Items 1 and 2 given that they both related to the Husband’s bank account statements. These were the requests as had been framed in Items 1 and 2:</p> <p class="Judg-2"><a id="p1_8-p2_a"></a>(a) <b>Item 1:</b> the Husband’s consolidated bank statements for his accounts with DBS and POSB for May 2021 to February 2023 and June 2023 to December 2023.</p> <p class="Judg-2"><a id="p1_8-p2_b"></a>(b) <b>Item 2:</b> the Husband’s bank statements for his Wise Account – for May 2021 to December 2022, July 2023 to December 2023 and April 2024.</p> <p class="Judg-1"><a id="p1_9"></a>9 As counsel for the Wife, Ms Imogen Harvey (“Ms Harvey”) had argued at the hearing, the salient issue in respect of Items 1 and 2 was that the Wife required these statements to determine the pool of matrimonial assets. This was because the Husband had been financially irresponsible, and in addition, there was a dearth of documentation evidencing his income and expenses. In addition, Ms Harvey explained that the statements were also needed to ascertain whether the Husband had been dissipating matrimonial assets.</p> <p class="Judg-1"><a id="p1_10"></a>10 Ms Harvey also referred to the decision in <em>VTQ v VTR</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/26432-SSP.xml')">[2021] SGFC 85</a> where the court had, at [26(d)] and [27], affirmed the principle laid down by the court in <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> that it is useful for the court as well as the party seeking discovery to have a “picture of the other party’s financial circumstances just before the marriage broke down, during the break down of the marriage, and after the filing of divorce proceedings”.</p> <p class="Judg-1"><a id="p1_11"></a>11 In response, the Husband disputed that he had been financially irresponsible. He said that he did not understand why there was a need for him to disclose bank statements going back to 2021. The Husband also expressed frustration that money was being spent on lawyers to litigate the divorce when that money could be better spent on the children.</p> <p class="Judg-1"><a id="p1_12"></a>12 In deciding whether to order discovery, I bear in mind the twin principles of relevance and necessity – that the documents sought must be both relevant and necessary to the disposal of the ancillary matter. The point of the discovery process, after all, is to ensure that the judge hearing the ancillary matter has all the evidence placed before them.</p> <p class="Judg-1"><a id="p1_13"></a>13 I allow the Wife’s request in respect of Items 1 and 2. I agree with the point that Ms Harvey had made – that it is useful for the court as well as the Wife, to have an insight into the Husband’s financial situation in the months leading up to and after the filing of the divorce. This is especially since the SOP discloses that the Husband’s behaviour towards the Wife had begun to deteriorate on or around January 2022, marking the beginning of the end of the parties’ relationship.<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span> The bank statements sought would also provide a clearer picture as to the Husband’s financial situation, especially in the months leading up to the divorce.</p> <p class="Judg-1"><a id="p1_14"></a>14 I turn now to Item 3. This was a request for the bank statements of a company, XL. Although the Husband had stated in his Affidavit of Assets and Means (“AOM”) that XL was a partnership, this does not appear to be the case.<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span> The Wife had, in her supporting affidavit for SUM 1979, disclosed a printout from a search done on the UK register of companies which showed that XL was a private limited company that had been incorporated on 12 October 2011.<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span> The same printout also discloses that the Husband is one of two directors of XL, and that he owns more than 25% but not more than 50% of the shares.</p> <p class="Judg-1"><a id="p1_15"></a>15 Following from this, it is the principles relating to the disclosure of company documents that had been laid down 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> (“<em>ACW</em>”) (at [20] citing <em>B v B (Matrimonial Proceedings: Discovery</em> [1978] Fam 181 at 193 – 194), which are applicable in the present case:</p> <p class="Judg-Quote-1">20 More directly, a helpful summary of the relevant principles relating to discovery of documents belonging to a company of which the husband was a director and shareholder can be found in <em>B v B</em> at 193–194:</p> <p class="Judg-QuoteList-2">(a) The documents of a company are in the legal possession of the company. If they are or have been in the actual physical possession of a director who is a party to litigation they must be disclosed by that director, if relevant to the litigation, even though he holds them as servant or agent of the company in his capacity as an officer of the company.</p> <p class="Judg-QuoteList-2">(b) If the director who is a party to the litigation does not have physical possession of the documents, the question of fact of whether the documents are within the power of the director arises. “Power” in this context means “the enforceable right to inspect or obtain possession or control of the document” in the personal capacity of the director. This is in contradistinction to the right to inspect vested in a director in his capacity as a director. Without the consent of the company, the director has no right to inspect the documents. Much will depend on the share structure of the company.</p> <p class="Judg-QuoteList-2">(c) If the company is the alter ego of such a director so that he has unfettered control of the company’s affairs, he must disclose and produce all relevant documents in the possession of the company. Where the company is not the alter ego of a director, the factors to be considered are:</p> <p class="Judg-QuoteList-3">(i) the extent of the shareholding of the husband;</p> <p class="Judg-QuoteList-3">(ii) whether it amounts to control of the company;</p> <p class="Judg-QuoteList-3">(iii) whether the minority shareholders are adverse to him;</p> <p class="Judg-QuoteList-3">(iv) how the board of directors is constituted; and</p> <p class="Judg-QuoteList-3">(v) whether there is any objection by the board to disclosure of any of the documents sought.</p> <p class="Judg-QuoteList-2">(d) A very wide range of issues are relevant in proceedings relating to ancillary matters. The court has to assess what the husband is shown to have, but also what could reasonably be made available to him. In many cases, audited accounts of companies of which the husband is a shareholder will be sufficient, together with full disclosure of all the husband’s personal financial records. But there are cases when the court will go behind company accounts and order discovery of company books and documents. It is not usual, however, for the court to take this course unless there is evidence before it from accountants or other experts that the published accounts of the company cannot be relied upon.</p> <p class="Judg-QuoteList-2">(e) Where relevant documents in the possession of a company are disclosed by a director as being in his custody or power, the court has a discretion whether or not to order production of them. In exercising the discretion, the court will have regard to all the circumstances and balance the relevance and importance of the documents and the hardship likely to be caused to the wife by non-production against any prejudice to the husband and third parties likely to be caused by production.</p> <p class="Judg-QuoteList-2">(f) It has not hitherto been the practice of the court to order production of company documents to which the board of directors objects on affidavit, provided that the court is satisfied that the objection is not contrived for the purpose of frustrating the powers of the court. The court will not in the exercise of its discretion order parties to do that which they have no power to do. The court will not order production unless it is satisfied that production is necessary either for disposing fairly of the issues between the parties or for saving costs.</p> <p class="Judg-QuoteList-2">(g) Where the wife cannot obtain documents on discovery, she may be able to apply for leave to issue a subpoena against the secretary or other officers of the company to produce relevant documents.</p> <p class="Judg-1"><a id="p1_16"></a>16 The principles in <em>ACW</em> formed the foundation of Ms Harvey’s argument. She argued that the statements which the Wife sought were in the Husband’s control – this is because the Husband had disclosed some documents belonging to XL. As to the relevance and necessity of this documents, Ms Harvey highlighted the possibility that the Husband was using XL’s bank account as though it were his own. These documents would therefore demonstrate whether the Husband had been dissipating matrimonial assets, and were also relevant to ascertaining the true extent of the Husband’s financial means.</p> <p class="Judg-1"><a id="p1_17"></a>17 In response, the Husband said that he was willing to provide XL’s certified accounts which would give the Wife a picture as to XL’s financial transactions. Those certified accounts, however, would only be available at the end of February.</p> <p class="Judg-1"><a id="p1_18"></a>18 I allow the Wife’s request in respect of Item 3. I agree with Ms Harvey’s arguments on the relevance and necessity of these documents. I also find that these documents are either within the Husband’s physical possession or power to obtain (see <em>ACW</em> at [20(a)] and [20(b)]). After all, the Husband had disclosed a copy of XL’s unaudited financial statement for the year ended 31 October 2022 in his XL.<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span> This suggests that he may have other company documents, including its bank statements, in his physical possession. Even if he does not, that he was able to disclose XL’s unaudited financial statement and offer to disclose its certified accounts certainly suggests that he can obtain and produce the documents that the Wife seeks.</p> <p class="Judg-1"><a id="p1_19"></a>19 I come now to Item 4. This was a request for the Husband to produce documents evidencing the model and registration year for his vehicle. As Ms Harvey explained – the Wife needed these documents to verify the Husband’s assertion that this vehicle was worth £1500.</p> <p class="Judg-1"><a id="p1_20"></a>20 The Husband’s response was that the Wife could have easily obtained the model and registration number of his vehicle from the documents that he had already disclosed.</p> <p class="Judg-1"><a id="p1_21"></a>21 I disallow the Wife’s request in respect of Item 4. If the Husband claims that vehicle is worth a certain amount, he accordingly bears the onus of proving the same.</p> <p class="Judg-1"><a id="p1_22"></a>22 I turn now to Item 5. This was a request for the financial statements of XL for the financial year ending 2023. Ms Harvey highlighted that the Husband had no objections to producing these statements but he had also said that they were not ready. The Wife was thus seeking an order that the Husband disclose these statements once they had been prepared.</p> <p class="Judg-1"><a id="p1_23"></a>23 Ms Harvey also pointed out that there was no overlap between the Wife’s request in Item 5 and Item 3. This was because the financial statements were needed to value the Husband’s shares in XL, whereas the bank statements were needed to determine if the Husband was indeed using XL as his “piggy-bank”.</p> <p class="Judg-1"><a id="p1_24"></a>24 I allow the Wife’s request in Item 5. The financial statements of XL are certainly relevant to valuing the Husband’s shares in the company. For completeness, I would note that the court’s power to order discovery also extends to documents that will come into existence at some point in the future: <em>WZF v WZG</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31712-SSP.xml')">[2024] SGFC 46</a> at [20] citing <em>G v G (Financial Provision: Discovery)</em> [1992] 1 FLR 40.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_25"></a>25 It is therefore ordered that:</p> <p class="Judg-2"><a id="p1_25-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:</p> <p class="Judg-3"><a id="p1_25-p2_a-p3_i"></a>(i) S/N 3(a) – 3(c) (see Item 1 above at [8(a)]);</p> <p class="Judg-3"><a id="p1_25-p2_a-p3_ii"></a>(ii) S/N 3(d) (see Item 2 above at [8(b)]);</p> <p class="Judg-3"><a id="p1_25-p2_a-p3_iii"></a>(iii) S/N 3(e) (see Item 3 above at [14]);</p> <p class="Judg-3"><a id="p1_25-p2_a-p3_iv"></a>(iv) S/N 2 (see Item 5 above at [22])</p> <p class="Judg-2"><a id=""></a>of the Annex to SUM 1979, 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_25-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_26"></a>26 Apart from the above orders, I also direct that the Husband file his affidavit complying with the orders that I have made for discovery by 16 September 2024.</p> <p class="Judg-1"><a id="p1_27"></a>27 As to the costs of SUM 1978 and 1979, Ms Harvey argued that the Husband should pay the Wife costs fixed at $5000. Disbursements came in at $370. She argued that a robust costs order should be made to take into account the multiple delays occasioned by the actions of the Husband.</p> <p class="Judg-1"><a id="p1_28"></a>28 In response, the Husband said that there should no order as to costs.</p> <p class="Judg-1"><a id="p1_29"></a>29 The starting point is that the successful party is entitled to costs, though the court can depart from that starting position if the circumstances of the case warrant it: <em>WXE v WXF</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31618-SSP.xml')">[2024] SGFC 40</a> citing Rule 852 and Rule 854 of the Family Justice Rules 2014.</p> <p class="Judg-1"><a id="p1_30"></a>30 The Wife had substantially succeeded in her application for discovery. She is therefore entitled to costs. I order the Husband to pay the Wife costs fixed at $2750 (all-in). This sum is to be paid by 16 September 2024. In arriving at this decision, I take into account the fact that the Wife did not ultimately proceed with her application for interrogatories, that the matter was not particularly complex, the length of the affidavits that had been filed as well as the work done by the Wife’s counsel in filing written submissions. This quantum of costs also accounts for the Husband’s dilatory conduct, specifically, that he was habitually late in meeting court deadlines despite having been represented by counsel.<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span> Finally, I would add that based on the facts before me, I did not think that the relationship between the parties was so acrimonious as to warrant making no order as to costs (see <em>JBB v JBA</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/18024-SSP.xml')">[2015] 5 SLR 153</a>).</p> <p class="Judg-1"><a id="p1_31"></a>31 The time limited for filing an appeal shall begin to run from the date of this judgment.</p> <p class="Judg-1"><a id="p1_32"></a>32 Finally, it remains for me to commend Ms Harvey for her excellent advocacy at the hearing.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>SOP at para 2b(i).</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Husband’s AOM at para 15.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Wife’s Supporting Affidavit for SUM 1979 at pp 45 – 46.</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Husband’s AOM at Tab 2.</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup>The Notice of Intention to Act in Person, In Place of Solicitor was only filed on 18 July 2024 – this was after the final case conference where SUM 1978 and 1979 were fixed for hearing before me.</p></div></content></root> | c096c79e2b1659d27adbbd22ccfe6b6f5332f549 |
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