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254 Singapore Academy of Law Journal (2003) where third parties to whom notice has been given of the existence of the injunction become involved, it is only in a secondary capacity, i.e. aiding and abetting the breach of the injunction by the party to the action to whom that injunction is directed. Again, it has always been recognized that there is an inherent jurisdiction in the court to commit third parties who are not before it as parties ‘in the case of a contempt in the face of the court’. Apart from these rare exceptions, the distinction must be clearly drawn between those authorities which support, albeit as an interim measure only, ex parte orders against parties who have been joined in the action by the plaintiff, and those who are not parties before the court at all.” (per Purchas LJ at page 520) 84 In accordance with the principle set out in the cases cited above, none of the family cases cited in this article feature orders made directly against the 3 rd party, i.e. orders which require the 3 rd party to transfer property, pay sums of money, and so on, to any other party in the proceedings. The court simply does not, and should not, have the power to make orders directly against a non-party. However, in the cases of Peter Cunningham and Chee Bong Yeo, supra, the 3 rd parties were not given notice of the proceedings, but orders were nonetheless made which affected their interests directly. It is submitted, however, that the better view is that the court should not, and cannot, make orders directly affecting the 3 rd party’s interest, even if these orders are directed against the husband and/or the wife—as, in effect, these would operate in the same manner as orders directly against the 3 rd party. 85 Indeed, the Peter Cunningham case can be distinguished on the basis that the husband and wife in this case were the directors and shareholders of the companies ordered to be wound up. These companies were therefore the alter egoes of the parties to the proceedings. It was therefore not necessary to give them due notice of the proceedings, or to join them as parties to the same. In the Chee Bong Yeo case, there was another property registered in the husband’s name in addition to the property claimed by the 3 rd party, which was also held by the court to be a matrimonial asset, and which was ordered to be divided between the parties. It is thus possible that the court dealing with the ancillary matters was of the view that the wife’s share of the matrimonial assets could have been satisfied without the sale of the property claimed by the 3 rd party, and did not seriously contemplate that the property claimed by the 3 rd party might have to be sold in order for the judgment to be satisfied.
15 SAcLJ Matrimonial Assets and the 3 rd Party 255 4.4.4 Orders made against a non-party with notice 86 If due notice is given of the ancillary matters proceedings to the 3 rd party, and the 3 rd party does not apply to be joined as a party to the proceedings, ought this to suffice to enable the court to: (a) make orders directly against the 3 rd party, and/or (b) orders directed against the husband and/or wife but which directly affect the interest of the 3 rd party (collectively, “orders against the 3 rd party”) It is submitted that it should not suffice. 4.4.4.1 Need for clarity in status, rights and duties of the 3 rd party 87 The purpose of making the 3 rd party a party to the proceedings under Order 15 Rule 6 is to ensure that: (i) he is aware of the exact claims that are being made against him at each stage of the proceedings; (ii) he has the opportunity to assemble documents and instruct counsel as a party, rather than as a witness in the main dispute between the husband and wife; (iii) he is able to participate fully in each stage of the proceedings by attending hearings and making submissions in the matter; and (iv) he is served with all the relevant documents in the proceedings at each stage of the proceedings. 88 As a party, he will be entitled to request for, and to be served, the documents filed in court by the other parties, to take out discovery applications against the other parties, and to attend and make submissions at all hearings. Conversely, the other parties to the proceedings will be able to request to be served documents filed in court by the party, apply for discovery against him as a party, and so on. It is only when the 3 rd party is fully aware of the case against him, is updated on and has the opportunity to be fully involved at each stage of the proceedings, that it would be fair to make orders against the 3 rd party at the final hearing.
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