View Article - Singapore Academy of Law

More documents

Recommendations

Info

252 Singapore Academy of Law Journal (2003) is: will the intervener’s (i.e. the 3 rd party’s) right against or liabilities to any party to an action be directly affected by any order made in the action 61 Or to put it another way, would the order given “directly affect a third person in his legal rights or in his pocket” 62 One example of this would be a declaration that the sale of certain lands to a third party is null and void—see the case of Chang Ching Chuen & Ors v Aik Ming (M) Sdn Bhd (Pekan Nenas Industries Sdn Bhd, Intervener) 63 . In this case, certain lands were sold to the 3 rd party (i.e. Pekan Nenas Industries Sdn Bhd) by the defendants, but the registration of the transfer of the lands could not be effected as the first plaintiff applied for a declaration that the said sale was null and void, and obtained an interim injunction against the transfer until the dispute between the plaintiffs and the defendants was resolved. The court held that the 3 rd party was entitled to intervene in the matter on the basis that its interests vis-à-vis the sale of the lands would be affected by the declaration sought. This was because a significant amount of the purchase price for the lands had already been paid by the 3 rd party to the defendants, and the 3 rd party wanted to register the transfer of the lands. 81 Such orders directly affecting the 3 rd party’s interest must be distinguished from orders made for the division of the matrimonial assets which take into account certain findings in respect of the 3 rd party issue, but do not directly affect the 3 rd party’s interest. For example, in the case of Lau Loon Seng, supra, the High Court held that certain shares registered in the 3 rd parties’ names actually belonged to the husband. However, no order was made which necessitated the sale or transfer of these shares. The court merely ordered the husband to pay the wife the value of her division in the shares. A similar order was made in the case of Lam Siew Lan, supra. In these two cases, findings were made against the 3 rd party, but no orders which directly affected their interest. Of course, if it is the case that the asset registered in the 3 rd party’s name must be sold in order to satisfy the court order in respect of the division of the matrimonial assets (for example, because the husband would not have the funds to pay the wife her share in the asset unless it is sold), then it would appear that the order for division would operate, albeit indirectly, as an order directly affecting the 3 rd party’s interest. 61 62 63 See para (2) of the holdings in the Pelangi Airways case, supra. per Lord Denning MR in Gurtner v Circuit [1968] 1 All ER 328, at p 332 b-c [1995] 2 MLJ 43
15 SAcLJ Matrimonial Assets and the 3 rd Party 253 (c) orders in favour of the 3 rd party, for example, ordering the husband and/or wife to pay the 3 rd party a sum of money, or to transfer an asset in their names to the 3 rd party. 4.4.2 Orders made for or against a party 82 Where a party has intervened in the matter, 64 or been joined as a party to the proceedings on the court’s own motion, 65 the court is entitled to make any orders it sees fit in relation to that party. 66 Such orders are obviously enforceable by any of the parties to the proceedings. 4.4.3 Orders made against a non-party 83 The case of Razman bin Hashim v South East Asia Insurance Co. 67 held that it would be a breach of the principle of natural justice for an order to be made against a non-party. In this case, the Malaysian High Court had held that the driver of a motorcar and the deceased rider of a motorcycle who had collided with each other had both been responsible for injuries to the appellant (the pillion rider on the motorcycle) and apportioned their liability on a 50:50 basis. The motorcar driver was a party to the suit, but the motorcycle rider was not, nor was he called as a witness, since he had died as a result of the collision. On appeal, the court held that the order apportioning liability should not have been made. It was made in breach of natural justice, as the non-party had not been heard in the matter. Also see the case of Soh Lai Chan and Another v Kuah Peng Hock and Another 68 where the High Court held that it would be inappropriate to make any order prejudicial to a person who was not a party to the proceedings. (The plaintiff in this case had urged the court to declare that the transfer of certain shares to the non-party by the first defendant should be declared void.) In the English case of Kalsi v Kalsi 69 the court held that the court could not issue injunctions against persons who were not parties before the court, except in very exceptional circumstances: “It is only in extremely limited circumstances that persons or entities who are not parties before the court can be affected by orders of the court. Even in the case of a Mareva injunction, 64 As the husband’s aunt and mother did in Tebbutt, supra. 65 See TSB Private Bank International SA v Chabra and another [1992] 2 All ER 245 66 See the Holdings at paragraph (1), page 246 of TSB Private Bank International, supra. 67 [1995] 2 MLJ 469 68 [2003] SGHC 144 69 [1992] 1 FLR 511
Page 1 and 2: 15 SAcLJ Matrimonial Assets and the
Page 33: 15 SAcLJ Matrimonial Assets and the
Page 85 and 86:
15 SAcLJ Matrimonial Assets and the
Page 87:
15 SAcLJ Matrimonial Assets and the
show all

View Article - Singapore Academy of Law

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?