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276 Singapore Academy of Law Journal (2003) 4.10.2 Joining as a party 154 If it is clear that the husband and/or wife are seeking orders against the 3 rd party at the ancillary matters hearing, then the court should order that the 3 rd party be joined as a party to the ancillary matters proceedings, as orders may not be made against a non-party to the action. 103 155 The court must balance the following factors when deciding whether to order, of its own motion, that the 3 rd party be joined as a party to the proceedings when the 3 rd party himself, the husband, and the wife, have not applied for this to be done: Factors against joining the 3 rd proceedings party as a party to the 156 The same factor as set out in paragraph (d) of Section 4.10.1 above (i.e. the floodgates to 3 rd parties argument) would be applicable. Consequences of being a party to litigation 157 Once the 3 rd party is joined as a party to the proceedings, he would be vulnerable to costs and other orders being made against him. His credit rating may also be affected by being a party to litigation. Factors in favour of joining the 3 rd party as a party to the proceedings 158 The factors in favour of joining the 3 rd party as a party to the proceedings would be the same factors set out in paragraphs (a)-(c) of Section 4.10.1 above (i.e. the requirements of natural justice; avoiding the delay, expense and inconvenience of a separate trial; and avoiding the danger of conflicting decisions). 159 Paragraph (e) of Section 4.10.1 would, once again, be a neutral factor. Guiding principle in respect of joining 3 rd party (when orders against the 3 rd party are not being sought) 160 If the factors set out above are evenly balanced, the court should not order the 3 rd party to be joined as a party. This is on the basis that 103 In this regard, see Section 4.4.3-4.4.5 above.
15 SAcLJ Matrimonial Assets and the 3 rd Party 277 parties should not be compelled to litigate against persons whom they do not wish to engage in litigation with. In this regard, see the case of Tajjul Ariffin bin Mustafa v Heng Cheng Hong, 104 where the court stated: “(4) Generally, in common law and chancery matters, a plaintiff who considers that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone and he cannot be forced to pursue his remedy against other persons who he has no wish to sue. (See Per Wynn-Perry J in Dollfus Mieg et Compagnie SA v Bank of England.)… (6)… a defendant against whom no relief is sought by the plaintiff will generally not be added against the wishes of the latter. (See Hood-Bars v Frampton & Co.). …he [the plaintiff] should be allowed to proceed against the defendant of his choice…There may be cogent reasons for his not wanting to proceed against the intended second defendant; for example the intended second defendant, who is alleged by the defendant to have been wholly or partly at fault, may be a friend or next of kin of the plaintiff, or the joinder may result in unnecessary prolongation of the trial or in the plaintiff having to shoulder the burden of additional costs should he fail against both the defendants. There may, of course, be other reasons.” (per Edgar Joseph JR SCJ)” 4.10.3 Where 3 rd party/other parties apply for joinder 161 If the 3 rd party himself, after having been given due notice of the proceedings, applies to join the proceedings, or if either the husband and wife apply to join the 3 rd party to the proceedings, the test for whether to allow the appplication will be whether the 3 rd party’s proprietary or pecuniary rights would be affected by the court’s decision. (See the cases of Pegang Mining, Pelangi Airways, Chang Ching Chuen and Gurtner v Circuit, supra, discussed in Section 4.4.1(b) above). The factors discussed in paragraph 4.10.1(a)-(c) would also be relevant. 104 [1993] 2 MLJ 143
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