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270 Singapore Academy of Law Journal (2003) order is directed will often be the party whom the 3 rd party is aligned to. (In Ng Kim Seng, supra, for example, the wife was ordered to repay her own father the loan that he gave the husband and wife to purchase the matrimonial home.) In the light of the relationship between the 3 rd party and the original party the 3 rd party is aligned to, it is unlikely that the 3 rd party would take legal steps to enforce the order, and that there would be any future litigation in this regard. 136 Alternatively, the order may be drafted in such a manner that in practice the husband and/or wife will have no choice but to comply with it. For example, in the case of Lee Sew-Iam Richard, supra, the matrimonial home was ordered to be sold, and the net proceeds divided between the parties only after the husband’s mother’s loan was repaid to her. The solicitors handling the conveyance of a property subject to this type of order would ensure that the 3 rd party would be repaid on the day of completion of the sale of the property. 137 If there are findings made by the ancillary matters court in favour of or against the 3 rd party, but no orders are made for or against the 3 rd party, then the 3 rd party is not practically affected by the ancillary matters proceedings. It is the husband and/or the wife who would appeal against any orders directed against him/her, and not the 3 rd party. In the light of the relationship between the 3 rd party and the original party the 3 rd party is aligned to, as well as considerations of time and expense, it is submitted that future litigation over issues which have already been dealt with by the ancillary matters court is, in practice, unlikely. 138 In addition, there is the consideration for the original parties and the 3 rd party that, even though they are not bound by issue estoppel regarding the 3 rd party issues, the chances of the ordinary civil court making findings which are different from the court hearing the ancillary matters proceedings may not be high, particularly if the 3 rd party has given evidence in the ancillary matters proceedings. 4.8 Order 15 Rule 13A 139 Order 15 Rule 13A states: “(1) At any stage in an action to which this Rule applies, the Court may, on the application of any party or of its own motion, direct that notice of the action be served on any person who is not a party thereto but who will or may be affected by any judgment given therein.
15 SAcLJ Matrimonial Assets and the 3 rd Party 271 … A person may, within 8 days of service on him of a notice under this Rule, enter an appearance and shall thereupon become a party to the action, but in default of such appearance and subject to paragraph (5) he shall be bound by any judgment given in the action as if he were a party thereto. If at any time after service of such notice on any person the writ or originating summons is amended so as substantially to alter the relief claimed, the Court may direct that the judgment shall not bind such person unless a summons is issued and served upon him under this Rule. This Rule applies to any action relating to— (a) (b) the estate of a deceased person; or property subject to a trust.” (emphasis added) “The rule augments the policy of the existing rules to ensure that all persons who might be affected in estate and trust cases are given the appropriate notice.” (See Singapore Court Practice 2003, Jeffrey Pinsler, at page 374, paragraph 15/13A/1) (emphasis added) 140 Order 15 Rule 13A(6) states that the rule applies to any action relating to the estate of a deceased person, or to any property subject to a trust. If the 3 rd party issue concerns a property which is alleged by the husband or wife to be held on trust for or by the 3 rd party, would the ancillary matters proceedings—or at least the 3 rd party issue—then fall under Order 15 Rule 13A 101 141 It is submitted that the plain reading of Order 15 Rule 13A(6) indicates that the rule was intended only to apply to “pure” estate or trust cases, where the main action is substantially about the estate or trust property issue, and not to an ancillary matters hearing, where the trust issue involving the 3 rd party is just a sub-issue of the issue of the division of matrimonial assets between the husband and wife, which may itself be 101 No explanation of the scope of the term “action relating to property subject to a trust” may be found in the relevant sections of Singapore Civil Procedure 2003 (see p 227) and Singapore Court Practice 2003, Jeffrey Pinsler (see page 374).
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