fc_judgments_version: 84

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_id _item _version _commit tags date court case-number title citation url counsel timestamp coram html _item_full_hash
84 66 2 1796                 2024-08-27T16:00:00Z[GMT]   <root><head><title>WYZ v WZA</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WYZ <em>v</em> WZA </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/32014-SSP.xml')">[2024] SGFC 68</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 3632 of 2023 (Summons No 3790 of 2023 &amp; Summons No 56 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"> Kenneth Yap </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"> Choy Chee Yean (Trenchant Law LLC) for the plaintiff; Koh Zhen Yang and Tan Siew Kim (Sterling 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"> WYZ — WZA </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Conflict of Laws </span> – <span style="font-style:italic"> Natural forum </span> – <span style="font-style:italic"> Whether Singapore natural forum for resolution of divorce proceedings between parties</span></p> <p class="txt-body"><span style="font-style:italic">Conflict of Laws </span> – <span style="font-style:italic"> Restraint of foreign proceedings </span> – <span style="font-style:italic"> Whether anti-suit injunction restraining husband from continuing with Malaysian divorce proceedings should be allowed</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"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Kenneth Yap:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1       The Defendant Husband in this case sought a stay of Singapore proceedings in SUM 3790/2023 on the ground of <em>forum non conveniens</em>, in favour of Malaysian proceedings commenced by himself. In response, the Plaintiff Wife filed an anti-suit injunction in SUM 56/2024 to injunct the Husband’s divorce proceedings in Malaysia. I held that while Singapore was the more appropriate forum for the divorce proceedings, the threshold to injunct the Malaysian proceedings had not been crossed. I therefore dismissed both applications. The Husband now appeals against my refusal to grant his stay in SUM 3790/2023. For completeness, and due to the common context between both applications, I provide my reasons for both decisions.</p> <p class="Judg-Heading-1">Background</p> <p class="Judg-1"><a id="p1_2"></a>2       Both parties are Malaysian citizens. The Husband and Wife were aged 55 years and 41 years at the time of these proceedings. The couple married in Sarawak, Malaysia in 2001, and resided together in Malaysia for the next three years. They moved to Australia in 2004 to 2008, where three children were born to the marriage, a daughter aged 19 years (“A”), and a pair of male and female twins aged 17 years (“I” and “V” respectively). After the birth of the twins, the family moved back to Malaysia in 2008, and then to Singapore within that same year for the sake of the children’s education. In April 2011, the Husband left the family in Singapore and returned to Malaysia by himself to pursue his business interests. He has been based in Malaysia ever since. The Wife is currently employed in Singapore and holds an employment pass. All three children remain Malaysian citizens, although the eldest child (A) obtained Singapore citizenship in September 2022, and the female twin (V) obtained permanent residency in Singapore in February 2021. It is not disputed that the parties’ extended family resides in Malaysia and frequent family trips are taken back home to Malaysia. However, the family as a whole and the children in particular have never resided in Malaysia for any meaningful period of time since 2008.</p> <p class="Judg-1"><a id="p1_3"></a>3       The Wife commenced these divorce proceedings on 1 August 2023. The Husband has not taken any step in these divorce proceedings since being served on 16 October 2023, save to enter appearance under protest and indicate his intention to stay the action on grounds of <em>forum non conveniens</em>. At a case conference on 16 November 2023, the Husband was directed to file his application for a stay by 7 December 2023. The Husband then commenced divorce proceedings in Malaysian on 7 December 2023, and shortly after, filed his application for a stay of the Singapore proceedings in SUM 3790/2023 on 12 December 2023. The Malaysian divorce proceedings were subsequently served on the Wife on 26 January 2024.</p> <p class="Judg-1"><a id="p1_4"></a>4       At the time of this hearing, apart from filing for an anti-suit injunction, the Wife had also applied in Malaysia to set aside the order of service out of jurisdiction obtained by the Husband. She had also sought a stay of the Malaysian proceedings on the basis that it was not a proper forum for the dispute.</p> <p class="Judg-1"><a id="p1_5"></a>5       The matter came before me for hearing on 19 April 2024. As the Father had not had access to the children and the Wife had not received maintenance since proceedings commenced, I asked parties to consider an adjournment for three sessions of private mediation, which could also afford the Father access to the children over a meal on the days that each mediation session would be held. The Father in addition volunteered to pay $15,000 directly to the children for maintenance when he saw them for access. As parties were agreeable to this proposal, I gave the necessary directions and adjourned the matter for further hearing on 3 June 2024.</p> <p class="Judg-1"><a id="p1_6"></a>6       Unfortunately, the mediation did not bear fruit, although the Father did manage to have one session of access with the children to celebrate their birthdays. I accordingly heard the remainder of parties’ submissions on 3 June 2024, and issued my decision on both applications with brief grounds by way of Registry Notice on 11 June 2024.</p> <p class="Judg-Heading-1">Application for Stay on the Ground of <em>Forum Non Conveniens</em></p> <p class="Judg-1"><a id="p1_7"></a>7       The law relating to a stay on the ground of <em>forum non conveniens</em> is well documented. The test laid down in <em>Spiliada Maritime Corporation v Cansulex Ltd</em> <a class="pagecontent" href="javascript:viewPageContent('/English/68440-E-M.xml')">[1987] AC 460</a> (“<em>Spiliada</em>”) has been affirmed in numerous local cases, including by our Court of Appeal in <em>CIMB Bank v Dresdner Kleinwort Ltd</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2008] 4 SLR(R) 0543.xml')">[2008] 4 SLR(R) 543</a> at [25] and [26]. The two-stage test is as follows:</p> <p class="Judg-2"><a id="p1_7-p2_a"></a>(a)     A stay will only be granted where the court is satisfied that there is some other available and more appropriate forum for the trial of the action. The burden is on the defendant to show that there is another available forum which is clearly or distinctly more appropriate than Singapore. The factors which the court will take into consideration include not only factors affecting convenience or expense (such as the availability of witnesses) but also other factors such as the law governing the transaction and the places where the parties respectively reside or carry on business. If the court concludes at this stage that there is no other available forum which is clearly more appropriate, it will ordinarily refuse a stay.</p> <p class="Judg-2"><a id="p1_7-p2_b"></a>(b)     If there is some other available forum which <em>prima facie</em> is clearly more appropriate for the trial of the action, the court will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless be refused. The legal burden is on the plaintiff to establish the existence of such special circumstances.</p> <p class="Judg-Heading-2">Whether Malaysia is the more appropriate forum </p> <p class="Judg-Heading-3">The Nationality and Habitual Residency of the Parties</p> <p class="Judg-1"><a id="p1_8"></a>8       Both parties were born in Malaysia and have Malaysian citizenship. Neither party is a Singapore citizen or Permanent Resident. The Husband has been domiciled in Malaysia upon his return in 2011<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span>, while the Wife and the children have been domiciled in Singapore for 16 years, since 2008. The eldest child (A) has Singapore citizenship<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span>, while the female twin (V) has permanent residency<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span>, although all three children have not given up their Malaysian citizenship. It is undisputed that the Wife and children visit Malaysia regularly to spend time with their relatives<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_9"></a>9       At the outset, I would point out that nationality alone is not the determinative factor in the choice of forum. The focus should instead be on the domicile or habitual residence of the parties. This was highlighted by the High Court in <em>BDA v BDB</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2013] 1 SLR 0607.xml')">[2013] 1 SLR 607</a>, at [29]:</p> <p class="Judg-2"><a id=""></a>While not entirely discounting nationality as a connecting factor, nationality per se is of limited significance. In an increasingly globalised world, multiple nationalities are becoming the norm. Residency and/or domicile are better indicators of then strength of a party’s connection to a particular forum.</p> <p class="Judg-1"><a id="p1_10"></a>10     Counsel for the Husband sought to rely on <em>S. v S.</em> <a class="pagecontent" href="javascript:viewPageContent('/English/19633-E-M.xml')">[1997] 1 WLR 1200</a>, a decision of the Family Division of the High Court of England, to justify a stay in favour of the preceding place of domicile of the parties (i.e. Malaysia). In the case of <em>S. v S.</em>, the husband sought a stay of proceedings in the United Kingdom in favour of New York. While both parties were not citizens of either jurisdiction, they had originally resided in New York for a significant period of time prior to the marriage, and had thereafter lived in the United Kingdom for 13 years during the marriage. In particular, the husband had resided in New York for over 20 years and ran his “enormous financial empire” primarily from that location<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span>. Counsel for the Husband therefore sought to draw a parallel between <em>S. v S.</em> and the present case, as the English High Court in <em>S. v S.</em> had agreed to stay English proceedings in favour of New York, which was the domicile of both parties <em>prior</em> to their marriage.</p> <p class="Judg-1"><a id="p1_11"></a>11     There was however a clear distinguishing factor in the case of <em>S. v S.</em>, as the parties had executed a pre-nuptial agreement in New York, which provided that the applicable law and forum for any financial dispute should be that of the state of New York. The primacy of this factor over that of the domicile of the parties was clear from the final comments Wilson J’s decision, at page 1215:</p> <p class="Judg-Quote-1">In the end I have been persuaded that New York is clearly more appropriate than England as a forum for the proceedings for divorce and for the determination of financial issues between the parties. In reaching that conclusion I have borne very much in mind the wife’s primary residence in England; nor, however, have I forgotten her close past links with New York. I have obviously paid considerable regard to the husband’s primary residence, established over many years, in New York. <u>But the provisions of the prenuptial agreement, both the substantive financial provisions and in particular the provisions as to forum, have weighted heavily with me</u>. Even if, which I doubt, this agreement were to be of very limited significance in any substantive analysis by this court of the wife’s financial claims pursuant to section 25 of the Matrimonial Causes Act 1973, it in no way follows that it must be of very limited significance in the despatch of the current application. Fairness requires otherwise. I am also satisfied, for the reasons already given, that substantial justice will be done in New York. Accordingly, the balance of fairness is such that it is appropriate for the proceedings there to be disposed of before further steps are taken in the proceedings here. This conclusion yields me a discretion which I propose to exercise by granting a stay. [Emphasis added]</p> <p class="Judg-1"><a id="p1_12"></a>12     Accordingly, I did not agree that the preceding domicile or place of origin of the parties should be the determinative factor as far as the <em>Spiliada</em> test was concerned. In the present case, the focus should be on the <em>present</em> domicile of the parties and the children. Out of 22 years of marriage, the parties have only spent three years in Malaysia as a married couple (from 2001-2004). The Wife has a stronger and more substantial connection to Singapore, having resided here for 16 out of the 23 years of marriage, while the Husband has resided in Malaysia for about 16 years for the duration of the marriage (2001-2004, and 2011-present). The children have also stayed in Singapore for most of their lives. They were born in Australia, and moved to Singapore when they were 3 years and 1 year old respectively. They have been educated here, with their entire social circle found in Singapore<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span>. They also have family and cousins in Singapore<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span>. As earlier noted, the eldest child (A) has taken up concurrent Singapore nationality, while the female twin (V) is a permanent resident.</p> <p class="Judg-1"><a id="p1_13"></a>13     The Husband further takes the position that parties remain connected to Malaysia and the intention is for the entire family to eventually return to Malaysia after the children complete their education in Singapore, with a view to them taking over the family business<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span>. I would point out though that the Husband had in the Malaysian court papers asked for the children to stay in Singapore with the Wife after the resolution of the divorce<span class="FootnoteRef"><a href="#Ftn_9" id="Ftn_9_1"><sup>[note: 9]</sup></a></span>, and there does not appear to be any agreement from the Wife or the children to his long-term plan to return to Malaysia. I also note that the Wife has unsuccessfully applied for permanent residency in Singapore seven times, and her sister and family are also permanent residents and reside in Singapore<span class="FootnoteRef"><a href="#Ftn_10" id="Ftn_10_1"><sup>[note: 10]</sup></a></span>. I did not think it evident at all that the Wife’s future intentions lay with Malaysia, and in any case, I would not place any significant weight on this point given its speculative nature.</p> <p class="Judg-1"><a id="p1_14"></a>14     With regard to residency, there appears therefore to be an even split in terms of the habitual residency of the Husband and Wife in favour of Malaysia and Singapore respectively, while the residency of the children indisputably lies with Singapore. Whether this latter factor should be given determinative weight in the choice of forum depends on whether child issues will come to the fore in these proceedings. I now turn to this issue.</p> <p class="Judg-Heading-3">The Child Issues in the Divorce</p> <p class="Judg-1"><a id="p1_15"></a>15     In applying the <em>Spiliada</em> test to divorce proceedings, the key question for determination by the court is which jurisdiction is better placed to decide on the issues concerning the welfare of the children (per <em>TDX v TDY</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/17919-SSP.xml')">[2015] 4 SLR 982</a> at [15]). This view was earlier established in <em>Re A</em> (an infant) <a class="pagecontent" href="javascript:viewPageContent('/Judgment/4206-M.xml')">[2002] SGHC 60</a>, where Lai Kew Chai J held at [4] that the evaluation of the best interests of the child would require a consideration of which forum could best appreciate their cultural background, value systems, social norms and other societal circumstances in their upbringing:</p> <p class="Judg-Quote-1">In the context of the guardianship of a child, and the related issues of custody, care and control, it seemed to me that we had to take into account a host of factors and determine which forum would more effectively evaluate the best interests of the child, in terms of a tribunal’s understanding of and affinity to the cultural background, value systems, social norms and other societal circumstances relevant to the best way in which the child is to be brought up.</p> <p class="Judg-1"><a id="p1_16"></a>16     His Honour went on to hold, at [16], that:</p> <p class="Judg-Quote-1">In the context of these proceedings involving the custody of a child, an important consideration must be the child’s cultural connections with and affinity for the cultural and societal environment which the forum serves. This is self-evident: a child’s best interest is best determined by the forum which is best equipped to determine what is best for the child in all material respects ranging from its health care, education, moral and spiritual and other relevant needs.</p> <p class="Judg-1"><a id="p1_17"></a>17     Indeed, where custody, care and control are disputed in the divorce, a key factor on which forum is more appropriate is where the children had been raised. In <em>ALJ v ALK</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2010] SGHC 0255.xml')">[2010] SGHC 255</a>, the fact that the children of the marriage were raised in Singapore was a key factor rejecting the application to stay Singapore proceedings in favour of California (at [20], [21]). Similarly, in <em>TAR v TAS</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/17691-SSP.xml')">[2015] SGFC 23</a>, the court placed significant weight on the fact that the child of the marriage had lived and been educated in Singapore for the majority of her years. The court then rejected the application to stay Singapore proceedings in favour of the Nigerian courts, where the child had never resided (at [24],[25]).</p> <p class="Judg-1"><a id="p1_18"></a>18     In response, Counsel for the Husband contends that the issues in this divorce pertain mainly to financial matters, and that issues in relation to the children are not likely to be disputed. While I would like to share counsel’s optimism, I note that the Father is asking for care and control of the children in the Malaysian proceedings<span class="FootnoteRef"><a href="#Ftn_11" id="Ftn_11_1"><sup>[note: 11]</sup></a></span>, while the Wife is requesting for care and control in the Singapore proceedings (the Father had not filed pleadings in the Singapore proceedings at the time of this hearing, but in his recently filed Defence and Counterclaim on 11 July 2024, he now requests for <em>joint</em> custody, care and control, which still differs from the Wife’s position). I also note that the parties have not been able to agree on access in recent months. This does not augur well for agreement on child issues.</p> <p class="Judg-1"><a id="p1_19"></a>19     In addition, the Husband had stopped paying maintenance since November 2023<span class="FootnoteRef"><a href="#Ftn_12" id="Ftn_12_1"><sup>[note: 12]</sup></a></span>, and it appears that the quantum of child maintenance is likely to be disputed. In this regard, it cannot be assumed that evidence in relation to the children’s welfare, education and upkeep will not be necessary. Nor can it be ruled out that therapeutic and/or forensic interventions may be needed to protect the children’s best interests. I therefore consider that the potential need to litigate on children issues points strongly towards Singapore as the more appropriate and natural forum for the divorce proceedings.</p> <p class="Judg-1"><a id="p1_20"></a>20     In the present case, there is also the additional consideration that two of the children have special medical needs requiring long term medical care. Specifically, the eldest child (A) is diagnosed as being autistic and also suffers from Hereditary Angioedema<span class="FootnoteRef"><a href="#Ftn_13" id="Ftn_13_1"><sup>[note: 13]</sup></a></span>, while the male twin (I) suffers from dyslexia<span class="FootnoteRef"><a href="#Ftn_14" id="Ftn_14_1"><sup>[note: 14]</sup></a></span>. As both children will continue to receive treatment and therapy in Singapore, the cost and nature of which is likely to feature in considerations relating to maintenance, this once more points towards Singapore as the more natural and appropriate forum for resolution of child-related issues.</p> <p class="Judg-Heading-3">The Location of Matrimonial Assets</p> <p class="Judg-1"><a id="p1_21"></a>21     The third factor the Husband submits for consideration is the fact that there are substantial assets in the matrimonial pool located in Malaysia, which would be better dealt with by the Malaysian courts. He points out that the matrimonial assets there include shares in the Husband’s Malaysian Company, as well as two properties in the state of Johor<span class="FootnoteRef"><a href="#Ftn_15" id="Ftn_15_1"><sup>[note: 15]</sup></a></span>. He is also a director of ten other companies incorporated in Malaysia<span class="FootnoteRef"><a href="#Ftn_16" id="Ftn_16_1"><sup>[note: 16]</sup></a></span>, the records of which are held in Malaysia and in the Malay language, with the requisite witnesses in Malaysia. Counsel for the Husband seeks to rely on the case of <em>Eng Liat Kiang v Eng Bak Hern</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[1995] 2 SLR(R) 0851.xml')">[1995] 2 SLR(R) 851</a>, where it was held at [34] by the Court of Appeal that:</p> <p class="Judg-Quote-1">Although the nationality and place of residence of the parties are relevant, they are not the only factors to be taken into account in deciding whether Singapore is the appropriate forum. The jurisdiction of the court is not based on nationality and residence of the parties alone. Great weight should also be attached to the location of the subject matters in dispute and the undesirability of a Singapore court in deciding issues involving ownership of land in Malaysia. In addition, there may be complexities involved in the enforcement of the trust in Malaysia, should we declare there to be one. In any event, the respondent would be carrying on with the proceedings in Malaysia in relation to the Malaysian lands even if we refuse to grant a stay of proceedings in Singapore and there would inevitably be some duplication of proceedings.</p> <p class="Judg-1"><a id="p1_22"></a>22     While the existence of Malaysian assets is a factor in favour of granting a stay, it should be remembered that there are three properties in the Wife’s name in Singapore, for which the Malaysian Court would be similarly ill-equipped to make findings of fact or to enforce orders. There also exist assets in Australia, the British Virgin Islands, Hong Kong, China, Papua New Guinea and Switzerland<span class="FootnoteRef"><a href="#Ftn_17" id="Ftn_17_1"><sup>[note: 17]</sup></a></span>, for which both the Singapore and Malaysian courts are equally well placed to deal with their division. Accordingly, I did not think that either court had a special advantage as far as financial assets are concerned.</p> <p class="Judg-Heading-3">The Existence of Parallel Proceedings</p> <p class="Judg-1"><a id="p1_23"></a>23     Finally, the Husband submits that greater weight should be placed in favour of Malaysia under the common law doctrine of <em>lis alibi pendens</em>, i.e. the fact that he has filed parallel divorce proceedings in Malaysia. I note in this regard that the Court of Appeal in <em>Virsagi Management v Welltech Construction Pte Ltd</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2013] SGCA 0050.xml')">[2013] SGCA 50</a>, at [39] had clarified that this doctrine should be considered in light of the general principles applicable to the <em>Spiliada</em> test. In essence, the court should consider the degree to which respective proceedings had advanced, the degree of overlap of issues and parties, whether the litigation called for complex facts which require highly specialised expert evidence and the risk of conflicting judgments arising from conflicting proceedings. The Court of Appeal stressed at [40] that “the existence of parallel proceedings is never wholly dispositive of the issue of the natural forum as a matter of course, but is only a factor to be considered in the application of the <em>Spiliada</em> principles.” It was further noted by then-Judicial Commissioner Debbie Ong in <em>TDX v TDY</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/17919-SSP.xml')">[2015] 4 SLR 982</a> at [57] that “the weight to be given to parallel proceedings would depend on the circumstances”.</p> <p class="Judg-1"><a id="p1_24"></a>24     As divorce applications in Singapore and Malaysia are in their infancy, I did not think that the doctrine of <em>lis alibi pendens</em> was a significant factor in the present case. Indeed, both applications had not advanced beyond the pleadings stage at the time of this hearing. The risk of duplicitous outcomes or wasted proceedings is remote at this point, and can be avoided should sensible minds prevail.</p> <p class="Judg-1"><a id="p1_25"></a>25     Moreover, I do note that any issue arising from the duplicity of proceedings appears to have been self-inflicted, as it was the Husband who chose to commence divorce proceedings in Malaysia nearly two months <em>after</em> the Singapore proceedings had been served on him. In <em>AQN v AQO</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/16883-SSP.xml')">[2015] SGHC 19</a>, Choo J noted at [11] in regard to the husband’s appeal against an anti-suit injunction restraining him from continuing with New York proceedings, that “it does not lie in the mouth of the husband to rely on the rule against duplicitous proceedings having commenced the action in New York himself.” In this regard, the Wife further contends that there does not appear to be a justifiable rationale for the Husband to continue with the Malaysian proceedings, given that she had on 5 January 2024 provided him a written undertaking that she would consent to judgment in the Malaysian Courts on terms identical to the terms of the final judgment in the Singapore proceedings, if the Husband agreed to suspend the Malaysian proceedings until after the conclusion of the Singapore proceedings. While I will address this issue more fully in the anti-suit injunction below, it would suffice to say for the purposes of the stay application that the infancy of the foreign proceedings and the fact that they are within the control of the applicant undermine his argument that it should be the Singapore courts that should desist to avoid a duplicity of outcomes.</p> <p class="Judg-1"><a id="p1_26"></a>26     Having considered the above factors in totality, I placed greater weight on the domicile of the Wife and children, and the need to protect the best interests of the children, as reasons to conclude under the first stage of the <em>Spiliada</em> test that Singapore was the more natural and appropriate forum for the resolution of the divorce proceedings.</p> <p class="Judg-Heading-2">Whether there are circumstances which would have required a stay to be refused.</p> <p class="Judg-1"><a id="p1_27"></a>27     As there was no finding of another more appropriate forum, it was not necessary to address the second stage of the <em>Spiliada</em> test. However, I would observe for completeness that <em>had</em> the factors justified a stay in favour of Malaysian proceedings, there did not seem to me to be any special circumstances that would have militated against such a stay. I note that the Wife is fluent in the Malay language, is presently able to instruct Malaysian counsel, and appears to have the resources to contest divorce proceedings in Malaysia. Accordingly, had the Husband passed the first stage of the <em>Spiliada</em> test before me, he would not have fallen short at its second stage.</p> <p class="Judg-Heading-1">Application for Anti-Suit Injunction</p> <p class="Judg-1"><a id="p1_28"></a>28     For completeness, I also set out the reasons for my dismissal of the Wife’s anti-suit injunction in FC/SUM 56/2024. Although the Wife has not appealed against my order, the issues discussed in these part of the proceedings may provide further context to the application for the stay.</p> <p class="Judg-1"><a id="p1_29"></a>29     The legal principles relevant to an anti-suit injunction are set out in the landmark decision of the Privy Council in <em>Société Nationale Industrielle Aerospatiale v Lee Kui Jak</em> <a class="pagecontent" href="javascript:viewPageContent('/English/68454-E-M.xml')">[1987] AC 871</a> (“Aerospatiale”) at page 892, as well as the Court of Appeal’s decision in <em>VEW v VEV</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/27372-SSP.xml')">[2022] SGCA 34</a>:</p> <p class="Judg-2"><a id="p1_29-p2_a"></a>(a)     The jurisdiction is to be exercised when the “ends of justice” require it.</p> <p class="Judg-2"><a id="p1_29-p2_b"></a>(b)     Where the court decides to grant an anti-suit injunction, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed.</p> <p class="Judg-2"><a id="p1_29-p2_c"></a>(c)     An injunction will only be issued to restrain a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy.</p> <p class="Judg-2"><a id="p1_29-p2_d"></a>(d)     Since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with caution.</p> <p class="Judg-1"><a id="p1_30"></a>30     Whether the ends of justice justify the grant of an anti-suit injunction depends on the presence of several elements, which were spelt out by Choo Han Teck J in <em>AQN v AQO</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/16883-SSP.xml')">[2015] SGHC 19</a> (“<em>AQN</em>”) at [44], having taking reference from <em>John Reginald Stott Kirkham v Trane US Inc</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2009] 4 SLR(R) 0428.xml')">[2009] 4 SLR(R) 428</a>:</p> <p class="Judg-2"><a id="p1_30-p2_a"></a>(a)     whether the defendant is amenable to the jurisdiction of the Singapore court;</p> <p class="Judg-2"><a id="p1_30-p2_b"></a>(b)     whether Singapore is the natural forum for resolution of the dispute between the parties;</p> <p class="Judg-2"><a id="p1_30-p2_c"></a>(c)     whether the foreign proceedings are <em>prima facie</em> vexatious or oppressive (or otherwise unconscionable);</p> <p class="Judg-2"><a id="p1_30-p2_d"></a>(d)     whether the grant of an anti-suit injunction would cause the defendant any injustice; and</p> <p class="Judg-2"><a id="p1_30-p2_e"></a>(e)     whether the institution of the foreign proceedings is in breach of any agreement between the parties.</p> <p class="Judg-1"><a id="p1_31"></a>31     It is not disputed that the Husband is amenable to the jurisdiction of this court (factor (a)), and my decision above on <em>forum non conveniens</em> finds that Singapore is the natural forum for this divorce (which resolves factor (b)). There is also no issue of any agreement between the parties on choice of jurisdiction (factor (e)). The crux of this application therefore lies with two of the above factors: the question of whether foreign proceedings would be vexatious or oppressive (factor (c)), and whether the grant of the injunction would cause the Husband any injustice (factor (d)). I shall deal with each in turn.</p> <p class="Judg-Heading-2">Whether Malaysian proceedings are vexatious or oppressive</p> <p class="Judg-1"><a id="p1_32"></a>32     I turn first to the issue of vexation or oppression. In <em>VEW v VEV</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/27372-SSP.xml')">[2022] SGCA 34</a>, the Court of Appeal highlighted the factors to be considered in deciding whether the threshold for vexation or oppression had been met, at [44]:</p> <p class="Judg-Quote-1">Whether there has been vexatious conduct involves an assessment and evaluation of a number of factors. The list of factors is not closed. The <u>inherent weakness of a claim</u> sought to be pursued in the foreign proceedings when taken together with other factors may be a relevant factor in considering whether the foreign proceedings are vexatious (see <em>VKC</em> at [19]). Factual findings which have supported findings of vexation or oppression include where the foreign proceedings were instituted in <u>bad faith or for no good reason</u>, are <u>bound to fail</u>, will <u>cause extreme inconvenience</u> (see the decision of this court in <em>John Reginald Stott Kirkham and others v Trane US Inc and others</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2009] 4 SLR(R) 0428.xml')">[2009] 4 SLR(R) 428</a> (“<em>Kirkham</em>”) at [47]), <u>amount to an unlawful attack on the plaintiff’s legal rights</u> (see the High Court decision of <em>Evergreen International SA v Volkswagen Group Singapore Pte Ltd</em> and others <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2004] 2 SLR(R) 0457.xml')">[2004] 2 SLR(R) 457</a> at [46]–[64]), or are <u>duplicative of Singapore proceedings</u> (see <em>PT Sandipala</em> at [112]–[129]). In so far as this last category is concerned, however, there is no presumption that a multiplicity of proceedings is vexatious or oppressive <em>per se</em> – something additional is required to make the duplication vexatious. For example, the greater the positive and voluntary involvement of the injunction respondent in the local proceedings, and the longer the local suit has been allowed to proceed before the commencement of the parallel foreign proceedings, the stronger the case for an injunction (see <em>PT Sandipala</em> at [137] as well as Thomas Raphael, <em>The Anti-Suit Injunction</em> (Oxford University Press, 2nd Ed, 2019) (“<em>The Anti-Suit Injunction</em>”) at paras 19.43–19.44). [<b>Emphasis added</b>]</p> <p class="Judg-1"><a id="p1_33"></a>33     In the present case, there is no indication that the case is bound to fail on the merits. The parties and their children are Malaysian citizens, and the Husband is domiciled in Malaysia. He is fully within his rights to file for divorce in Malaysia.</p> <p class="Judg-1"><a id="p1_34"></a>34     The principal contention by Counsel for the Wife is that the Malaysian proceedings were instituted in bad faith, given its timing and particular circumstances. In the present case, the Husband had initially filed for judicial separation on 31 October 2023, which he withdrew and substituted with a petition for divorce on 7 December 2023<span class="FootnoteRef"><a href="#Ftn_18" id="Ftn_18_1"><sup>[note: 18]</sup></a></span>. The Wife suggests that this change of position was not <em>bona fide</em> and was undertaken simply to bolster an application to stay the Singapore proceedings, given that the Malaysian proceedings were filed on the same day as the deadline for the filing of the stay application. The Wife also argues that the Husband’s ground of adultery in the Malaysian proceedings cannot be a serious one. She points out that it was filed more than five months after he was aware of the alleged facts of adultery on 27 June 2023<span class="FootnoteRef"><a href="#Ftn_19" id="Ftn_19_1"><sup>[note: 19]</sup></a></span>, and is inconsistent with an offer he made on 29 June 2023, just two days after learning about the alleged adultery, to register a new company in the Wife’s name.</p> <p class="Judg-1"><a id="p1_35"></a>35     With regard to the timing of the filings, Counsel for the Wife refers to <em>Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/23402-SSP.xml')">[2019] SGCA 42</a> (“<em>Lakshmi</em>”) for support. The foreign proceeding in this case was filed almost three years after the respondent had the right to proceed, and some 20 months after the Singapore proceeding had been filed (see [89]-[90]). In addition, the foreign proceeding was commenced just one day after the respondent had received news that the Singapore suit would be proceeding (at [92]). The Court of Appeal saw this as evidence of bad faith on the part of the respondent (at [93]). Counsel’s view is that the present case is synonymous with the facts of <em>Lakshmi</em>, and should likewise merit an injunction.</p> <p class="Judg-1"><a id="p1_36"></a>36     I was however not persuaded that the timing and circumstances of the Husband’s filing were sufficient to raise a finding of bad faith. Divorce is a personal matter, and parties may choose to file for their own reasons and at the timing of their choice, sometimes long after the fact. The Wife’s own divorce application on the basis of unreasonable behaviour relies on facts that go back to the couple’s teenage years. Indeed, in this case, the Husband was served with the Wife’s divorce papers on 16 October 2023<span class="FootnoteRef"><a href="#Ftn_20" id="Ftn_20_1"><sup>[note: 20]</sup></a></span>, and shortly after proceeded to file for judicial separation on 31 October 2023 (i.e. still choosing to preserve the marriage). He explained that he had thereafter reached out to the Wife, but she had declined further communication and displayed no intention of engaging in discussions relating to the marriage<span class="FootnoteRef"><a href="#Ftn_21" id="Ftn_21_1"><sup>[note: 21]</sup></a></span>. According to the Husband, he only filed the Malaysian divorce petition on 7 December 2023 when he perceived that the Wife was determined to proceed with the divorce<span class="FootnoteRef"><a href="#Ftn_22" id="Ftn_22_1"><sup>[note: 22]</sup></a></span>. I found this to be a reasonable account for his change in position, and did not perceive that the timing and circumstances of the Husband’s filing necessarily speaks to bad faith on his part.</p> <p class="Judg-1"><a id="p1_37"></a>37     Counsel for the Wife also points out that there was no legitimate reason to commence duplicative divorce proceedings in Malaysia, when the Husband could simply have filed a counterclaim in the Singapore proceedings. While the Husband had explained that he had done so because the children were Malaysian citizens, Counsel for the Wife pointed out that he was already aware that the eldest child had been offered Singaporean citizenship and it was a “matter of time” she would accept<span class="FootnoteRef"><a href="#Ftn_23" id="Ftn_23_1"><sup>[note: 23]</sup></a></span>. Counsel also made reference to <em>Trisuryo Garuda Nusa Pte Ltd v SKP Pradiksi (North) Sdn Bhd and another and another appeal</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/21016-SSP.xml')">[2017] 2 SLR 814</a> at [67], pointing out that the Court of Appeal in that case had rejected the relevance of foreign proceedings which were filed after the Singapore actions and which were no more than the converse of what the other party was seeking in Singapore.</p> <p class="Judg-1"><a id="p1_38"></a>38     This does not <em>ipso facto</em> mean that all duplicitous proceedings deserve to be injuncted. I note that the Court of Appeal said in <em>VEW v VEV</em> (at [44]) that “there is no presumption that a multiplicity of proceedings is vexatious or oppressive <em>per se</em>”. Unlike in <em>Lakshmi</em>, where there were no strong connecting factors to the foreign proceedings filed in the British Virgin Islands, the Husband is domiciled in Malaysia with business interests there. It would be legitimate for him to exercise his preference to litigate in the legal system with which he is familiar. His decision to file fresh proceedings in Malaysia rather than challenge the Singapore proceedings by way of counterclaim cannot on its own be regarded as vexatious or oppressive.</p> <p class="Judg-1"><a id="p1_39"></a>39     Finally, the Wife seeks to prove bad faith on the basis that the Malaysian proceedings are intended to cause extreme inconvenience to her. She couples this argument with the fact that the Husband had ceased paying maintenance from 1 November 2023, which she claims was intended to starve her of financial resources and prevent her from proceeding with the divorce. The Wife points to the asymmetry of resources between the parties, claiming that the Father is wealthy while she is unemployed and cash-poor.</p> <p class="Judg-1"><a id="p1_40"></a>40     In support of this contention, Counsel for the Wife sought to rely on the following observation by Choo Han Teck J in <em>AQN</em> at [27]:</p> <p class="Judg-Quote-1">In the present case, I find that the foreign proceedings are vexatious and oppressive, and an anti-suit injunction should be granted to meet the ends of justice. The wife has not been receiving maintenance from the husband. Her financial resources are strained, having to deal with the numerous applications filed by her husband both locally and in New York. The husband, who is wealthy on the other hand, has the resources to litigate.</p> <p class="Judg-1"><a id="p1_41"></a>41     I was not persuaded by this argument. It is not disputed that apart from the matrimonial home (in which she resides rent-free), the Wife has two other properties in Singapore on which she can rely for passive income. While there has been a threat of legal proceedings to prevent the Wife from doing so, it is not disputed that she can exercise rights as a legal owner of the properties. Further, it is also open to the Wife to file for interim maintenance in Singapore if she was under financial pressure. The pending application for a stay would not have prevented her from doing so. The fact that she has not done so is telling, and undermines her attempt to demonstrate that she has been financially oppressed by the multiplicity of proceedings.</p> <p class="Judg-1"><a id="p1_42"></a>42     In this vein, I would point out that the fact that multiple proceedings require the expense of time and money does not of itself render the situation vexatious or oppressive. This was the observation of the court in <em>VEW v VEV</em> at [101]:</p> <p class="Judg-Quote-1">First, the respondent’s counsel submits that there would be “time, effort and expense” incurred in the English proceedings. While that is true, this does not in itself show that the appellant’s conduct is vexatious or oppressive, or that the appellant is using the Part III proceedings to exert improper pressure on the respondent...</p> <p class="Judg-1"><a id="p1_43"></a>43     I would also take care to point out that the factual matrix in the present case differs quite significantly from <em>AQN v AQO</em>, where the anti-suit injunction was granted on the basis that the New York proceedings had left the wife financially strained. In that case, proceedings in both Singapore and New York had commenced for about four years before the anti-suit injunction was heard. The New York proceedings had gone through multiple hearings at the Supreme Court of New York from 2011 to 2013, the decision of which was under appeal to the Appellate Division of the Supreme Court of New York. Considerable time and expense that had thus been incurred due to a multiplicity of proceedings for four years in <em>AQN v AQO</em>. This is not the case on the present facts. Given the proximity of the jurisdictions and the parties’ resources at hand, and the fact that proceedings are in their infancy in both jurisdictions, it cannot be said that the multiplicity of proceedings would prejudice the wife’s ability to advance her case in either jurisdiction.</p> <p class="Judg-Heading-2">Whether the grant of an anti-suit injunction would cause the Defendant any injustice</p> <p class="Judg-1"><a id="p1_44"></a>44     I turn next to the question of whether the grant of an injunction would be unjust to the Husband (factor (d)). The Husband submits that he would suffer a juridical advantage if the divorce and ancillary matters were heard in Singapore, as he would lose the chance to have all ancillary matters heard together with the divorce petition in Malaysia. He claims that the Malaysian process would be more expedited and efficient than the extended legal process in Singapore, which bifurcates the interim judgment for divorce from the hearing on ancillary matters.</p> <p class="Judg-1"><a id="p1_45"></a>45     I find it difficult to agree with this submission because there is no affidavit evidence on the steps required in Malaysian divorce proceedings, nor is there any proof that one legal system is in any way more expeditious or efficient than the other.</p> <p class="Judg-1"><a id="p1_46"></a>46     I did consider that in terms of enforcement, the Husband may face practical difficulty enforcing an order given by the Singapore court in his favour. However, I note the Wife has given an undertaking that any order made by a court in Singapore would be mirrored by consent in Malaysia<span class="FootnoteRef"><a href="#Ftn_24" id="Ftn_24_1"><sup>[note: 24]</sup></a></span>. Accordingly, did not find that any juridical disadvantage accrues to the Husband in this regard.</p> <p class="Judg-Heading-2">Whether the ends of justice justify the grant of an anti-suit injunction against the Husband </p> <p class="Judg-1"><a id="p1_47"></a>47     The starting point in an anti-suit injunction is quite different from that of a stay on the basis of <em>forum non conveniens</em>. In deciding whether to apply the invasive step of granting an <em>in personam</em> injunction against one party from proceeding in a foreign jurisdiction, the court must exercise great caution that the ends of justice do indeed merit such a serious imposition on the prerogative of a person to vindicate his or her legal rights in the manner and place as deemed fit. It is also a matter of comity between courts of competent jurisdiction that this draconian remedy should be exercised only when it is patently clear to all that the interest of justice requires one court to essentially deny the other of its right to exercise its jurisdiction. In the present case, while a multiplicity of proceedings is clearly undesirable, it is for the Wife to persuade the Malaysian court to grant a stay on the basis that Singapore is the more natural and appropriate forum for the resolution of divorce proceedings. I do not find the factors tipped so far in the Wife’s favour that the Husband should be injuncted from proceeding further in the Malaysian courts.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_48"></a>48     Having considered the reasons provided above, the following directions were made:</p> <p class="Judg-2"><a id="p1_48-p2_a"></a>(a)     The Husband’s application for a stay on the grounds of <em>forum non conveniens</em> in SUM 3790/2023 was dismissed;</p> <p class="Judg-2"><a id="p1_48-p2_b"></a>(b)     The Wife’s application for an anti-suit injunction in relation to the Husband’s Malaysian proceedings in SUM 56/2024 was dismissed; and</p> <p class="Judg-2"><a id="p1_48-p2_c"></a>(c)     As parties have each prevailed in one application and failed in the other, no order was given as to costs.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Defendant’s Affidavit dated 12 December 2023, at [27] and [40].</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Plaintiff Affidavit dated 5 January 2024, at [49].</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Plaintiff Affidavit dated 5 January 2024, at [59].</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Plaintiff Affidavit dated 5 January 2024, at [75] and [76].</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup><em>S. v S.</em> <a class="pagecontent" href="javascript:viewPageContent('/English/19633-E-M.xml')">[1997] 1 WLR 1200</a>, at page 1204.</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>Plaintiff Affidavit dated 5 January 2024, at [68].</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>Plaintiff Affidavit dated 5 January 2024, at [101].</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>Defendant’s Affidavit dated 12 December 2023, at [47] and [49].</p><p class="Footnote"><sup><a href="#Ftn_9_1" id="Ftn_9">[note: 9]</a></sup>Plaintiff Affidavit dated 5 January 2024, at [70] and page 147.</p><p class="Footnote"><sup><a href="#Ftn_10_1" id="Ftn_10">[note: 10]</a></sup>Plaintiff Affidavit dated 5 January 2024, at page 202-203.</p><p class="Footnote"><sup><a href="#Ftn_11_1" id="Ftn_11">[note: 11]</a></sup>Plaintiff’s Bundle of Documents, Volume 1, at page 121.</p><p class="Footnote"><sup><a href="#Ftn_12_1" id="Ftn_12">[note: 12]</a></sup>Plaintiff’s 3rd Affidavit dated 7 March 2024, at [16].</p><p class="Footnote"><sup><a href="#Ftn_13_1" id="Ftn_13">[note: 13]</a></sup>Plaintiff’s Affidavit dated 5 January 2024, at [55] and [56].</p><p class="Footnote"><sup><a href="#Ftn_14_1" id="Ftn_14">[note: 14]</a></sup>Plaintiff’s 3rd Affidavit dated 7 March 2024, at [39].</p><p class="Footnote"><sup><a href="#Ftn_15_1" id="Ftn_15">[note: 15]</a></sup>Plaintiff’s Affidavit dated 5 January 2024, at [99], at [99].</p><p class="Footnote"><sup><a href="#Ftn_16_1" id="Ftn_16">[note: 16]</a></sup>Plaintiff’s Affidavit dated 5 January 2024, at pages 130-131.</p><p class="Footnote"><sup><a href="#Ftn_17_1" id="Ftn_17">[note: 17]</a></sup>Plaintiff Affidavit dated 5 January 2024, at [108].</p><p class="Footnote"><sup><a href="#Ftn_18_1" id="Ftn_18">[note: 18]</a></sup>Defendant’s Affidavit dated 12 December 2023, at page 74.</p><p class="Footnote"><sup><a href="#Ftn_19_1" id="Ftn_19">[note: 19]</a></sup>Defendant’s Affidavit dated 12 December 2023, at page 61.</p><p class="Footnote"><sup><a href="#Ftn_20_1" id="Ftn_20">[note: 20]</a></sup>Defendant’s Affidavit dated 12 December 2023, at [11].</p><p class="Footnote"><sup><a href="#Ftn_21_1" id="Ftn_21">[note: 21]</a></sup>Defendant’s Reply Affidavit dated 15 February 2024, at [19].</p><p class="Footnote"><sup><a href="#Ftn_22_1" id="Ftn_22">[note: 22]</a></sup>Defendant’s Reply Affidavit dated 15 February 2024, at [19].</p><p class="Footnote"><sup><a href="#Ftn_23_1" id="Ftn_23">[note: 23]</a></sup>See 1PBOD, at page 429.</p><p class="Footnote"><sup><a href="#Ftn_24_1" id="Ftn_24">[note: 24]</a></sup>Plaintiff’s 2nd Affidavit dated 5 January 2024, at [5].</p></div></content></root> aadb1dd0ef082ab455b03138d5404ecd05f12011

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