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250 Singapore Academy of Law Journal (2003) 75 In the case of Ong Cheng Leng v Tan Sau Poo, 55 for example, the Court of Appeal reversed findings made by the High Court that it was the husband and not the 3 rd party who paid for two properties (at Emerald Hill and Wan Tho) and for two cars which were all solely registered in the 3 rd party’s name. The Court of Appeal did not state, however, that the High Court should not have dealt with this issue without the 3 rd party being joined as a party or called as a witness for the ancillary matters hearing. In Lam Siew Lan, supra, the court held that shares registered in the 3 rd party’s name still belonged to the husband. This was not varied on appeal. A similar decision was made in Lau Loon Seng, supra. In Yow Mee Lan, supra, it was held that the monies in two Malaysian bank accounts in the names of the respondent husband and his business partner belonged solely to the husband. In none of these cases does it appear that the respective 3 rd parties gave evidence in the proceedings, or were even given due notice of them. 76 It is submitted that this approach is a sensible one. This is because the court would not wish to open the floodgates to 3 rd parties joining or giving evidence in the family court proceedings. This would almost inevitably make matters more acrimonious, costly and protracted, because the 3 rd parties would normally be well known to either or both the husband and wife, and would usually be aligned to one of them. (“the floodgates to 3 rd parties argument”) This is why the court should usually leave it to the husband and wife to decide what evidence, and from whom, they wish to obtain this evidence to support their respective cases. The court should therefore be slow to insist that a particular 3 rd party give evidence in the proceedings before making findings in respect of the 3 rd party issue, even if these findings are against the 3 rd party. (The question of whether such findings will operate as issue estoppels against the 3 rd party, however, in any future litigation regarding the same issues, is dealt with in Section 4.6.) 77 But note: if the court intends to make orders against the 3 rd party, i.e. orders which will directly affect the 3 rd party’s pecuniary or proprietary interests, the 3 rd party should be given due notice of the proceedings and joined as a party to the proceedings (see Section 4.4. below). If the findings to be made against the 3 rd party are required in order for such orders against the 3 rd party to be made, it follows that the 3 rd party would have to be given due notice of the proceedings and joined as a party to the proceedings before such findings are made. This is because there would be no point in the court making such findings 55 [1993] 3 SLR 137
15 SAcLJ Matrimonial Assets and the 3 rd Party 251 against the 3 rd party if the court could not go on to grant the orders sought against the 3 rd party (i.e. because the 3 rd party had not been given due notice of the proceedings and/or been joined as a party to the proceedings). 4.4 Making and enforcing orders for or against the 3rd party 4.4.1 Types of Orders 78 Three types of orders can be made in relation to the 3 rd party: (a) orders directly against the 3 rd party, for example, ordering the 3 rd party to transfer an asset in his name, or to pay a sum of money to the husband or wife (b) orders which are directed against the husband and/or wife, but which directly affect the 3 rd party’s interest 79 See, for example, the case of Lim Gwek Quee (m.w.) v Peter William Cunningham 56 , where the Family Court ordered one of the parties to take steps to wind up the family companies (the 3 rd parties) rather than making any orders against the 3 rd parties themselves 57 . This order was not varied on appeal. Also see the case of Chee Bong Yeo v Teo Soon Hoe and Anor 58 . The plaintiff in this case (the 3 rd party) had applied for the setting aside of an order made in the ancillary matters proceedings which was to the effect that a property registered in the husband’s name (which the 3 rd party claimed belonged to her) was a matrimonial asset, and the right, title and interest in the property, or the proceeds of sale thereof, was to be divided between the husband and wife in the ratio of 60:40. 80 It is suggested that the test laid down in Pegang Mining Co Ltd v Choon Sam & Ors, 59 which was followed in Pelangi Airways Sdn Bhd v Mayban Trustees Bhd 60 be adopted when considering whether an order made by (or sought from) the court falls into this category of orders, that 56 57 58 59 60 unreported, Divorce Petition 2399 of 1999 Though in this case, the court would, in any event, not have been able to make a winding up order against any of the companies as no winding up proceedings had been commenced at the time of the ancillary matters hearing. Moreover, the winding up proceedings would have to be commenced and heard in the High Court. unreported, OS No. 239 of 1996 [1969] 2 MLJ 52 [2001] 2 MLJ 237
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