View Article - Singapore Academy of Law

More documents

Recommendations

Info

260 Singapore Academy of Law Journal (2003) not. After all, he chose not to participate in the proceedings. He was never at risk of having orders made against him. It seems inequitable that he should benefit from an order made in his favour if he never bore any risk or burden in the litigation in which that order was made. If he would like to enforce the order made in his favour, therefore, either the husband or the wife will have to take steps to enforce the order, and not the 3 rd party. Alternatively, the 3 rd party could commence a separate civil suit in the ordinary civil court to try and obtain the same result as the order made in his favour in the ancillary matters proceedings. 77 The evidence given in the ancillary matters court may be used in the cross-examination of the witnesses in the civil suit, if they give evidence in the civil suit which is contrary to the evidence they had given in the ancillary matters court. 4.5 Right to appeal 104 If findings and orders are made against the 3 rd party, the 3 rd party may wish to appeal against them. The husband or wife may also wish to appeal against the court’s decision, in this regard. 4.5.1 Of a party 105 A party to the proceedings clearly has the right to appeal against any judgment which he feels is not in his favour. For example, in the English case of Perez-Adamson v Perez-Rivas (Barclays Bank plc, third party), 78 the divorcing wife applied for a property adjustment order under section 24 of the Matrimonial Causes Act 1973, as well as for an order to set aside the third party bank’s legal charge over the matrimonial home. It was the third party bank which appealed against the order of the High Court setting aside the bank’s legal charge over the matrimonial property, and ordering that the sale proceeds of the matrimonial home be transferred to the wife. 106 It should be noted, however, that a party who allows judgment to be made against him by default of appearance has no right of appeal without leave. A wilful failure to participate in the proceedings and acquiescing to the order would provide grounds for refusal of leave. (In 77 As to whether the other party would be estopped from denying the 3 rd claim—see Section 4.6. 78 [1987] 3 All ER 20 party’s
15 SAcLJ Matrimonial Assets and the 3 rd Party 261 this regard, see the case of Fairview Schools Bhd v Indrani a/p Rajaratnam & Ors (No 1) 79 ) 4.5.2 Of a non-party without notice 107 A non-party who was not given due notice of the proceedings may apply to have the original order set aside, and to have a re-trial of the matter. This is what happened in the case of Kalsi, supra, where it was held that the 3 rd parties (the husband’s brothers) should have been joined as parties to the wife’s application to, inter alia, restrict the said brothers from exercising their rights of occupation in the matrimonial home. The court hearing the application had made a restraining order against the brothers. One of the brothers appealed from the order granted as an intervener, pursuant to leave granted to him both to intervene and to appeal out of time. The court allowed the appeal and ordered the wife’s application to be remitted to the English High Court for rehearing, thus giving the wife the opportunity properly to formulate the nature of her claim for relief against the 3 rd parties, and to join them as defendants. 108 The non-party without notice can therefore apply to intervene in order to appeal against the order made against him, and have the matter remitted for a re-trial. Leave will be granted to him to do this as a matter of course. In this regard, it should be noted that an application to be joined as a party under Order 15 Rule 6 may be made after judgment if it is intended to apply to set the same aside. 80 4.5.3 Of a non-party with notice 109 Will a non-party who was given due notice of the proceedings but did not apply to join them as a party have the same right to appeal 110 The court in In re Securities Insurance Company 81 had stated, in relation to a scheme of arrangement approved by the court, that a person who, without being a party, was either bound by the order made by the court or was aggrieved by it or was prejudicially affected by it, could not appeal against it without leave. 82 The court went on to add, however, that 79 80 81 82 [1998] 1 MLJ 99 See paragraph 15/6/17 at page 199, Singapore Civil Procedure 2003. [1894] 2 Ch D 410 In this case, a judge had made an order sanctioning a scheme of arrangement in a voluntary winding-up of a company. An appeal was filed by persons whose interests as creditors were affected by the scheme, but who had not opposed the scheme at the meeting of creditors, nor appeared before the judge when his sanction was applied for, nor obtained leave to appeal. The appeal was dismissed.
Page 1 and 2: 15 SAcLJ Matrimonial Assets and the
Page 41: 15 SAcLJ Matrimonial Assets and the
Page 87: 15 SAcLJ Matrimonial Assets and the

View Article - Singapore Academy of Law

Create successful ePaper yourself

Delete template?

Save as template?