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268 Singapore Academy of Law Journal (2003) Appeal heard the applicant’s case. 99 It should also be noted that the Court of Appeal’s pronouncement regarding the principle that 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, was stated to be in respect of the probate division, and not any other type of case. Thus, it is submitted that the Court of Appeal was merely filling the gap which Order 15 Rule 13A now fills, and was not making a general pronouncement that a non-party with notice would be bound by issue estoppel. 4.6.3.2 Mutuality of estoppels 127 In The Doctrine of Res Judicata, supra, it is stated: “The principle is that res judicata estoppels in civil cases are mutual, and a party is only bound in favour of another if a contrary decision would have bound him.” 100 128 This means that if the 3 rd party (who is a non-party to the ancillary matters proceedings) is not bound by issue estoppel, then neither should the party to the ancillary matters proceedings (“the original party”) be bound, vis-à-vis the 3 rd party. 129 Thus, if the original party commences fresh proceedings against the 3 rd party on the same issues which were dealt with in the ancillary matters proceedings, then the 3 rd party may not raise the defence of issue estoppel against that party based on the judgment given in the ancillary matters proceedings. For example, the court may hold that half the beneficial interest in a property registered in the 3 rd party’s name actually belongs to the husband, and therefore order the husband to pay the wife the sum of $50,000 to represent her share of the husband’s share of that property. The husband may subsequently start proceedings against the 3 rd party claiming a beneficial interest in the whole of the property. The 3 rd party cannot raise an issue estoppel against the husband based on the judgment of the court in the ancillary matters proceedings to prevent the husband from laying a claim to the whole of the property, rather than half of it. 99 Order 15 Rule 13A was only introduced in 1997. Note Pinsler’s remarks on it being an “entirely new provision” (Singapore Court Practice 2003, para 15/13A/1, at p 374). 100 Supra note 91, at pp 110-111.
15 SAcLJ Matrimonial Assets and the 3 rd Party 269 130 Alternatively, if the 3 rd party commences fresh proceedings against the original party on the same issues which were dealt with in the ancillary matters proceedings, and the original party seeks to re-open all the issues, rather than to abide by the findings made in the ancillary matters proceedings, the 3 rd party may not raise issue estoppel as a defence against the original party based on the judgment given in the ancillary matters proceedings. For example, if the court finds that the 3 rd party has loaned the sum of $50,000 to the husband to purchase the matrimonial home, and orders this sum to be repaid to the 3 rd party by the husband, and the husband refuses to pay the 3 rd party, the 3 rd party may then start proceedings against the husband to recover this sum. The husband will not be estopped by the judgment of the court in the ancillary matters from disputing the existence as well as the size of the debt. 131 However, in both the scenarios set out above, any evidence tendered in the ancillary matters proceedings may also be tendered in the fresh proceedings in the ordinary civil court, and if there is any contradiction between the evidence given in the ancillary matters proceedings and the evidence given in the fresh proceedings, the appropriate adverse inferences may be drawn. 4.7 In practice—for cases where 3 rd party is a non-party with or without notice 132 In practice, however, it would seem that issues regarding the 3 rd party’s appeal rights and the question of issue estoppel seldom arise, notwithstanding that the 3 rd party is a non-party with or without notice of the ancillary matters proceedings. 133 It is submitted that this is because the 3 rd party would often be a friend or relative of either the husband or wife, and aligned to that party (“the original party the 3 rd party is aligned to”). 134 If an order against the 3 rd party (who is a non-party to the ancillary matters proceedings) is given, the original party that the 3 rd party is aligned to, will usually be the one to appeal against that order. Thus, the question of whether the 3 rd party has the right to appeal against that order would normally not arise, nor would there be any future litigation started by the 3 rd party in the ordinary civil court in the matter. 135 If an order in favour of the 3 rd party is given, the original party that the 3 rd party is NOT aligned to will appeal against the order, rather than start fresh proceedings in the matter. The party against whom that
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