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266 Singapore Academy of Law Journal (2003) 120 The case of Seah Peng Koon, 96 for example, would seem to indicate that he should. In this case, the Court of Appeal held that the applicant in this case could have intervened in earlier proceedings in 1981 (“the 1981 proceedings”), but chose not to do so. 10 years later, he started proceedings involving the same issue dealt with in the 1981 proceedings. The court held that he was estopped from challenging the decision made in the 1981 proceedings, stating that the principle in the probate division is that where a will is in question, a party who has knowledge of the proceedings and has a right to intervene, and does not intervene, is prima facie bound by the result of the proceedings. 4.6.3.1 Non-party with notice should not be bound by issue estoppel 121 It is submitted, however, that the better view is that the nonparty with notice should not be so bound, for the following reasons: (a) Need for certainty regarding what constitutes a “fair and full opportunity” to contest the case 122 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 equitable for him to be prevented from re-litigating the same issues which were dealt with in the proceedings. What, however, constitutes a “fair and full opportunity” to contest the issue It is submitted that (as in the case where orders are made against the 3 rd party) not only would the husband and wife have to give the 3 rd party due notice of the proceedings, but they should also treat him as they would any other party to the proceedings at each subsequent stage of the proceedings. 123 The kind of uncertainties which can arise in this regard are illustrated by the case of Chee Bong Yeo. The plaintiff in the case of Chee Bong Yeo started proceedings in the High Court to declare that a certain property (St. Patrick’s Road) was held on trust for her by the first defendant (who was the husband in the ancillary matters proceedings), although the court dealing with the ancillary matters had decided that the husband was in fact the beneficial owner of the said property. The plaintiff claimed to have been ignorant of the fact that she might be in danger of losing her property as a result of the ancillary matters proceedings, and that she was not kept informed of the progress of the 96 [1993] 2 SLR 353
15 SAcLJ Matrimonial Assets and the 3 rd Party 267 divorce hearing or the hearing of the ancillary matters. She was only told that she might have to give evidence in the ancillary matters proceedings. However, she contradicted herself several times in court, admitting that she had been told about the divorce, and even admitting at one stage that she had been told that the St. Patrick’s Road property might be involved in the ancillary matters proceedings. The court observed that her evidence in this regard was “somewhat confused” 97 . (Her application was eventually dismissed, but not on the grounds of issue estoppel.) 124 It is submitted that in order to prevent such uncertainties arising as to the extent to which the 3 rd party has been given a “full and fair opportunity” to contest the case, the most appropriate course of action to take is to apply to join him as a party. Once this is done, the 3 rd party’s status vis-à-vis the court and the other parties would be completely clear, as would the rights and duties of all the other parties in relation to the 3 rd party, and vice versa. The 3 rd party ought to then be estopped from relitigating the same issues dealt with in the proceedings to which he is a party. Conversely, if this has not been done, the 3 rd party should not be estopped from relitigating these issues, no matter what documents have in fact been served on him, and the extent to which he may already have participated in the proceedings (for example, by attending ancillary matters pre-trial conferences, filing witness affidavits, and so on). (b) Order 15 Rule 13A 98 125 The same arguments as set out in Section 4.4.5 above are applicable to issue estoppel, i.e. the fact that a specific provision (in the form of Order 15 Rule 13A of the Rules of Court) has been created for certain specific proceedings (i.e. estate and trust cases) to ensure that non-parties with notice of the proceedings will be bound by any judgment given in default of their appearance, implies that the non-party in all other cases should not be so bound, whether with or without notice. 126 The case of Seah Peng Koon, supra, can probably be explained on the basis that it was a probate case, and Order 15 Rule 13A (which is only applicable for estate and trust cases) was not enacted at the time that the 1981 proceedings were instituted, nor at the time where the Court of 97 98 per Judith Prakash J, Chee Bong Yeo, supra at para 20. See Section 4.8 below for a discussion on the applicability of the Order 15 Rule 13A regime to 3 rd party issues.
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