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258 Singapore Academy of Law Journal (2003) 96 It is further submitted that the “floodgates to 3 rd parties” argument” 72 will not make a difference in this regard, unlike in the case where mere findings (without orders) are made against the 3 rd party. This is because when mere findings are made against the 3 rd party, but no orders are made against him, the 3 rd party can continue his life as normal. He is not required to do anything, and nothing will be done to him or to his property or money. However, when orders are made against him, he must obey them, or go through the trouble of setting them aside. The consequences to the 3 rd party in terms of time and costs in doing this are potentially very serious. The balance is therefore in favour of protecting the 3 rd party’s rights, in this regard. 4.4.5 Orders should not be made against non-party with or without notice 97 In the light of the foregoing, it is submitted that orders against the 3 rd party should not be made if the 3 rd party is a non-party, whether with or without notice. If such orders are indeed made, the 3 rd party should be able to apply to set aside such orders and his application would be granted as a matter of course. 98 Note: There is a regime under Order 15 Rule 13A (Notice of action to non-parties) of the Rules of Court to ensure that non-parties in relation to certain types of proceedings (i.e. estate and trust cases 73 ), who will or may be affected by the judgment of the court, will have the opportunity to participate in the suit. The rule provides a procedure for, inter alia, such persons to be notified, for them to become a party to the action by entering an appearance, and to be bound by any judgment given in the proceedings if they do not enter appearance. It is submitted, however, that this rule is not applicable to 3 rd party issues. 74 The mere fact that such a regime exists in respect of certain types of proceedings indicates that for all other proceedings, a non-party is not bound by any orders made against him. 72 73 74 party. The court may award costs against a non-party in circumstances where the non-party had initiated the action in the name of the plaintiff. See The Karting Club of Singapore v David Mak & Ors (Wee Soon Kim Anthony, Intervener) [1992] 2 SLR 483. Set out in Section 4.3.2 above See Order 15 Rule 13A(6). In this regard, see the discussion on Order 15 Rule 13A in Section 4.8.
15 SAcLJ Matrimonial Assets and the 3 rd Party 259 4.4.6 Orders in favour of the 3 rd party 99 The parties to the proceedings can apply to the court for whatever orders they wish, including orders in favour of the 3 rd party. However, if the 3 rd party is not a party to the proceedings, it is submitted that he has no locus standi to appear before the court and to ask for any order to be made in his favour. If he would like to ask for such an order, he should join the proceedings as a party. 100 However, as the 3 rd party is benefited, rather than prejudiced, by an order in his favour, the reasons for the principle that he should be made a party to the proceedings before an order may be made against him are not applicable. Furthermore, if the 3 rd party issues are dealt with at the same time as the main ancillary matters issues, all parties would be saved the time and costs of future litigation in the matter. This is especially important in cases where the 3 rd party is closely connected to either or both the husband and wife by blood and emotional ties, and little purpose would be served in drawing them into the litigation unnecessarily. The “floodgates to 3 rd parties argument” is therefore applicable to this situation. 101 The courts appeared to have acted in accordance with this rationale, and made orders in favour of the 3 rd party even though he was not a party to the proceedings. Such orders in favour of the 3 rd party have been directed against either or both the husband and wife. For example, in Ng Kim Seng, supra, the Court of Appeal ordered the wife to repay her father a loan he had advanced the husband and wife to redeem the mortgage for the matrimonial flat. In Lee Sew-Iam Richard, supra, the High Court ordered, inter alia, that the husband and wife sell the matrimonial flat, and repay the husband’s mother her loan from the sale proceeds. 102 It is submitted that this is the correct approach, for the following reasons: (a) the 3 rd party benefits from the order, (b) the ancillary matters proceedings are not unnecessarily protracted by the inclusion of an additional party, and (c) the 3 rd party issue is dealt with. 75 103 However, it is doubtful whether a non-party can enforce orders made in his favour. 76 It is submitted that the better view is that he may 75 76 Though this will not necessarily guarantee that no future litigation in the matter will take place—see Section 4.6. A party can obviously enforce any orders made in the proceedings against any other party to the proceedings.
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