Tan Bin Yong Christopher v Ng Lay Mui (m.w.) and Other Cases [2003] SGDC 306

Factual Matrix

1 The parties in this case were married on 11 February 1996. The husband
filed a divorce petition on 9 May 2003, and the wife filed a divorce
petition on 28 May 2003. (Thus, the new Women’s Charter (Matrimonial
Proceedings) Rules (2003 Edition) (“the MPR”) would be applicable
to both divorce petitions.) The two divorce petitions were consolidated
pursuant to an order of court made on 1 July 2003. The wife has taken
out an application for discovery against the husband, by way of summons-in-chambers
number 651994 of 2003 (“the SIC”) filed on 28 October. The
husband has not agreed to furnish any of the items requested for in
the SIC. At the time of the filing and hearing of the SIC before me,
contested divorce proceedings were (and still are) pending. Affidavits
of evidence in chief had been filed by both sides, and tentative trial
dates for the contested divorce had been fixed in January 2004. Directions
had been given to both parties to file their affidavits of means and
assets on 2 September 2003. Both parties duly filed their respective
affidavits of means and assets on 17 September 2003 (each party’s
affidavit of assets and means to be known hereafter as “the husband’s
affidavit of means” and “the wife’s affidavit of means”
respectively).

2 I gather from the wife’s supporting affidavit to the SIC filed
on 28 October 2003 (“the wife’s SIC affidavit”) that
the purpose of the SIC is to obtain the discovery of documents and information
which would be relevant to the hearing of the ancillary matters in these
divorce proceedings.

The Relevant Rules

3 Although not expressly stated in the SIC, I assume that the SIC is
taken out under Rule 24 (Discovery) of the MPR, as well as Order 24
(Discovery and Inspection of Documents) Rule 5, and Order 26 (Interrogatories)
of the Rules of Court, as these are the rules applicable to discovery
and interrogatories in family matters. (In this regard, see paragraphs
3 and 4 of Tan Seok Neo Ann v. Ong Hoo Eng and Anor [2003]
SGDC 114.) I note that the principles applicable to the discovery
of documents are the same as those applicable to the granting of interrogatories.
(In this regard, see paragraph 7 of K and Another v P and Others [2003]
SGDC 84)

Orders Made

4 In the table below, I set out the items requested in the SIC, together
with the orders I have made in respect of the said items (“the
table”). In respect of the documents comprising items 2-10 of
the table under the column “Order made”, I have ordered
that the husband file an affidavit (“the Affidavit”) to
state whether the said documents are in his possession, custody or power.
If the said documents are in the husband’s possession, custody
or power, the husband is to furnish the same in the Affidavit. If the
said documents are not in the husband’s possession, custody or
power, the husband is to explain why in the Affidavit, and furnish any
supporting evidence in respect of his assertion that the said documents
are not in his possession, custody or power. In respect of the information
comprising items 11 and 12 of the table under the column “Order
made”, I have ordered that the husband should furnish the said
information in the Affidavit, to the best of his knowledge, information
and ability, together with supporting documentation (if any). If the
husband is not able to furnish the information as ordered, the husband
is to state the reasons why in the Affidavit, and to furnish supporting
documentation (if any) in this regard.

The Husband’s and Wife’s respective Affidavits of Means

6 The body of the husband’s affidavit of means consists of two paragraphs
and the affirmation. The two paragraphs contain no substantive information.
They essentially consist of the preamble to the affidavit and references
to two exhibits to the affidavit. Of the two exhibits, one is a list of
the husband’s immovable and movable assets, and the other is a list
of his sources of income. Both lists appear to have been created by the
husband himself, as opposed to a third party, such as an accountant. Not
a single supporting document has been exhibited in the affidavit. The
body of the wife’s affidavit of means, in contrast, consists of
20 pages of text. Pages 2-10 of the said affidavit deal with the wife’s
assets and means, the rest deal with her liabilities and expenses. She
has exhibited bank statements, insurance documents, documents relating
to the Prado car and her CPF statements. She has also exhibited her credit
card statements and receipts for herself and her children’s expenses.
The exhibits pertaining to the assets (i.e. the bank accounts, insurance,
the car documents and CPF monies) number about 144 pages.

Affidavit of Means and Assets Should Contain Supporting Documentation

7 The husband’s counsel had submitted that this discovery application
was both premature and ill-founded, firstly because there is no rule which
states that the affidavit of means and assets must contain any supporting
documentation whatsoever. Secondly, because the decree nisi had not been
granted yet, and it is too early to expect parties to file a full affidavit
of means and assets with supporting documentation. I disagree with both
these submissions. Under Rule 37 of the Matrimonial Proceedings Rules
(“Rule 37”), the respondent who enters an appearance to a
divorce petition in which maintenance or an order for the division of
matrimonial assets is claimed must file an affidavit setting out full
particulars of his or her property and income (“the affidavit of
means”) within 14 days of the time limited for entering an appearance.
The petitioner must then file an affidavit in reply within 14 days of
receiving the respondent’s affidavit. In this case, neither the
husband or the wife complied with Rule 37. An order was therefore made
by the deputy registrar at the pre-trial conference on 2 September 2003
for both parties to file and exchange their respective affidavit of means.
In my view, the affidavit of means which the deputy registrar ordered
both parties to file would be of the same nature as the affidavit of means
in Rule 37.

8 An affidavit of means and assets without any supporting documentation
is like having the answer to a mathematical problem without the proof.
The lack of supporting documentation means that none of the statements
in that affidavit of means can be verified, analysed, supported—or
believed. There is no purpose to filing such an affidavit. As evidence,
it would be little better than a letter written by that party or his solicitor.
For these reasons, I am of the view that Rule 37 does not refer to an
affidavit of means without supporting documentation. It must refer to
a full affidavit of means, with adequate supporting documentation. In
my view, it makes no difference as to which stage of proceedings the affidavit
of means is filed. Rule 37 envisions the affidavit of means to be filed
at a very early stage of proceedings indeed, even before all the pleadings
may have closed. I believe the purpose for this is to encourage early
negotiations and settlements on the ancillary issues of maintenance and
division of assets, by enabling each party to know and understand the
other’s financial position at an early stage. I recognise that in
practice, many divorcing parties agree not to file their respective affidavits
of means until the decree nisi has been granted. However, there is no
such agreement here, and in fact, there is a court order to the contrary.
In the circumstances, nothing less than a full affidavit of means with
adequate supporting documentation will suffice. The early stage at which
the affidavit of means is filed does not justify making a half-baked job
of it.

No Principle of Complete Mutuality of Discovery

9 The husband’s counsel had also objected to the SIC on the basis
that the time-frame requested for many of the items (i.e. from January
2001) spanned a longer time-frame than the time-frame of the documents
provided by the wife in her affidavit of means. In other words, the wife
cannot ask the husband for more than she herself has given, otherwise
she is not coming to court “with clean hands”. The husband’s
counsel also argued that the wife cannot ask for any information pertaining
to the husband’s affidavit of means if questions could be asked
about the wife’s own affidavit of means. In this regard, the husband’s
counsel submitted that many questions could be asked about the wife’s
affidavit of means, which did not reveal, inform or disclose all that
it should. In my view, the husband’s submissions in this regard
are irrelevant and incorrect. If the husband is of the view that the wife’s
affidavit of means is lacking in either information or documentation,
then he should, firstly, write to the wife’s lawyers to ask for
it. If there is no response, then he should take out the relevant application.
(For the avoidance of doubt, I express no view on the likelihood of success
of such an application by the husband.) The wife’s failure, if indeed
there is any, to make full and frank disclosure of the relevant documents
and information in her affidavit of means, does not excuse the husband
from making full and frank disclosure of the relevant documents and information
in his affidavit. This SIC is about the husband’s duty to make full
and frank disclosure in his affidavit of means—not the wife’s.
(See paragraph 29 of the Tan Seok Neo Ann case, supra)

10 In addition, it would be too rigid a rule to demand that parties provide
each other with exactly the same level of disclosure. Logically, the level
of disclosure which would be required of a successful businessman running
a few companies would be different from the level of disclosure required
of his spouse who has been a full time home-maker for many years. The
opportunities for the former to make, give away and hide away money, and
the occasions on which any of these things may have happened, would be
so much more numerous than for the latter. There would be many more financial
dealings and affairs to ascertain and investigate in his case. In this
case, the wife’s counsel had submitted that the disclosure furnished
by the wife was sufficient to support her case, particularly in the context
of the parties’ household arrangements where the wife was a housewife
and the husband controlled the household finances. I note, in this regard,
that the husband has claimed that he has been managing the finances of
both the wife and himself (see paragraph 30 of the husband’s affidavit
of evidence in chief filed on 18 November 2003 (“the husband’s
affidavit of evidence in chief”)).

11 I therefore do not accept the husband’s counsel’s argument
that the husband should only be ordered to provide the same level of disclosure
as the wife. What the husband must do is to provide disclosure which is
sufficient, having regard to his occupation, his financial activities,
his station in life, the financial arrangements of the household, and
all other relevant circumstances, to give the court and the other party
a fair picture of his assets and means. This principle would also be applicable
to the wife. Each party must provide disclosure which is appropriate to
their circumstances and which is sufficient to support their respective
cases. In this case, the respective levels of disclosure provided by the
husband and the wife have been fully set out in paragraph 6 above, and
I wish to make no further comment on the same, except to say that the
facts speak for themselves.

No Lateness in Discovery Application—In Any Event Lateness Not an
Automatic Bar

12 The husband had also raised an objection to the lateness of the discovery
application, claiming that the court had ordered all interlocutory applications
to be taken out by 23 September 2003 (see paragraph 4 of the husband’s
reply affidavit filed on 1 December 2003 (“the husband’s SIC
affidavit”). In my view, the court’s direction in this regard
referred to interlocutory applications relating to the contested divorce
proceedings—in order that the contested divorce proceedings could
proceed for hearing. This SIC is relevant to the ancillary matters—which
will not be dealt with until after the contested divorce proceedings are
over. Therefore the application is not late in relation to the ancillary
matters proceedings, and will not affect the progress of the contested
divorce proceedings. In my view, it cannot be objected to on the grounds
of lateness. In any event, lateness is not an automatic bar to a discovery
application, though it may be relevant for costs. (See paragraph 9 of
the Tan Seok Neo Ann case, supra)

Principles of Discovery

13 The test of what is relevant for discovery in family cases is very
wide, and reasonably extensive discovery would be expected in marriages
involving parties who have had a relatively high standard of living and
income. On the other hand, in making a decision to order discovery, the
court should strike a balance between the importance and relevance of
the documents and the hardship to the party seeking discovery which is
likely to be caused by non-production, against any prejudice likely to
be caused to the other party by ordering production of documents or the
provision of information. (See paragraphs 6-7 of Marcy Susan Kleinman
v. Raymond Mark Adelman [2003]
SGDC 253 and paragraphs 17-27 of Tan Seok Neo Ann, supra)
These are the principles which I have applied in deciding which documents
and which information requested for in the SIC to make orders in respect
of.

Efforts Must be Made to Locate Documents in a Party’s Possession,
Custody or Power

14 I have phrased my order for the husband to furnish the relevant documents
in the manner as set out in paragraph 4 above (i.e. to file an affidavit
to state whether the said documents are in his possession, custody or
power, if so, to furnish the same in the affidavit, and if not, to explain
why in the affidavit, and to furnish any supporting evidence in this regard)
to reflect the fact that firstly, the documents may not in fact be in
the husband’s possession, custody or power. And secondly, to reflect
the position that a bald statement such as “The audited accounts
of Tan Chwee Boon (Pte) Ltd and its subsidiaries are not available to
me.” (See paragraph 9 of the husband’s SIC affidavit) will
not suffice. It would be too easy for a party to state that the documents
requested by the other party are not in his possession, custody or power,
and thereby defeat or side-step the whole discovery mechanism.

15 Discovery would only be ordered in respect of documents of which there
is some evidence or some reason to believe would be in the party’s
possession, custody or power. If he does not have them, or if he is not
in a position to obtain them, then he should explain why, and his explanation
should, if possible, be supported by the relevant documentation. Thus,
for example, if a party claims that he is not able to provide bank account
statements of a particular bank account in a certain month, he should
provide the reason in an affidavit. If the reason is because the account
was closed by that time, for example, the party should then write to the
relevant bank requesting for confirmation of the date of closure of the
account. The letter from the bank to confirm the date of closure of the
account should be exhibited in the affidavit, or, if the bank does not
reply to his letter, then that party’s letter should be exhibited
in the affidavit, and the party should state in the affidavit that although
he had written to the bank for the confirmation on a certain date, the
bank had not replied by the time the affidavit was filed.

Efforts Must be Made to Obtain Information to the Best of a Party’s
Knowledge, Information and Ability

16 In my view, the same principles would apply to requests for information,
i.e. interrogatories. A party would only be ordered to provide information
if the court had some evidence or some reason to believe that he would
be able to provide the same. If he is not able to provide that information
as ordered, then he should explain why, with supporting documentation,
if possible. However, I must also recognise and provide for the fact that
he may indeed not be able to furnish that information, for perfectly valid
reasons. For this reason, I have phrased the order for the husband to
furnish certain information in this case in the manner set out in paragraph
4 above, i.e. that the husband should furnish the said information in
an affidavit, to the best of his knowledge, information and ability, together
with any supporting documentation, and if he is not able to furnish the
information as ordered, he is to state the reasons why and to furnish
any supporting documentation in this regard.

Time-frame for the Provision of Documents

17 In respect of items 2-6, and 7-9 of the table, I have ordered the relevant
documents to be provided for a time frame commencing in January 2001 and
ending in August 2003. My reasons for this are set out in this section.

18 Although the husband and wife disagree on the reasons for the breakdown
of the marriage, both parties seem to agree that the marriage was definitely
on the rocks in the year 2002:
“Our marriage problems started
almost from “day one”, but around the beginning of 2002, the
marriage began to deteriorate quite drastically.” (paragraph 20
of the husband’s affidavit of evidence in chief) (emphasis added)
“…The ugly state of our marriage got extremely bad from early
2002 onwards.” (paragraph 79 of the husband’s affidavit of
evidence in chief) (emphasis added)
“During this trip, I noticed
things changing.” (paragraph 36 of the wife’s affidavit of
evidence in chief filed on 14 November 2003 (“the wife’s affidavit
of evidence in chief”) referring to a family holiday in Kunming,
China, in March 2002)
“Things came to a head one Sunday morning
in May 2002.” (paragraph 37 of the wife’s affidavit of evidence
in chief, where she alleged that she discovered the husband was having
an improper association with a third party) (emphasis added)
“..my
whole world collapsed when I discovered that the Petitioner was cheating
on me…[paragraph 39 of the wife’s affidavit of evidence in
chief]…This marked the turning point in our relationship. Our relationship
went downhill from this time on…[paragraph 40 of the wife’s
affidavit of evidence in chief]…” (emphasis added)

19 When a marriage is breaking down, there will usually be a proportionate
decrease in the knowledge and involvement of each party about the other’s
finances and financial arrangements. I also recognise that particularly
in situations where divorce proceedings are contemplated, there will be
an incentive for both parties to manage their financial affairs in such
a manner that would make them opaque to the other party, and in extreme
cases, to dissipate and/or salt away the matrimonial assets which are
in their control. I note, of course, that no such allegation of dissipation
of assets has been made in this case by the wife against the husband—as
yet. But I am nonetheless of the view that it would be useful for the
court, as well as the wife, to have a picture of the husband’s financial
circumstances just before the marriage broke down, during the break down
of the marriage, and after the filing of divorce proceedings. In coming
to this view, I have taken into account the husband’s claims that
he was the one managing the finances of himself and the wife (see paragraph
30 of the husband’s affidavit of evidence in chief), his full-time
career as a project manager (see the divorce petition of the husband filed
on 9 May 2003) and his business and financial activities, such as being
a company director and renting out various propoerites. (See exhibit “P-2”
of the husband’s affidavit of means where he sets out his various
income-generating activities.) Moreover, the husband’s estimate
of his annual directors’ fees and income from the CDP is based on
an average of three years (see paragraphs 1(b) and 3(c) of exhibit “P-2”
of the husband’s affidavit of means). (I have given the benefit
of the doubt to the husband and assumed he means the years 2001, 2002
and 2003, and not any earlier year.) In this regard, it would be important
for the wife to be able to have the relevant documents from January 2001,
in order to verify the husband’s figures.

20 I have therefore used January 2001 as the “start date”
for the time-frame for all the items for which a time-frame had been specified
by the wife in her SIC. In this regard, I note that the wife had not specified
any time time-frame for item 2(A)(j) of the SIC, i.e. the audited accounts
for Tan Chwee Boon Pte Ltd and its subsidiaries. But the wife’s
counsel had clarified in the hearing before me that the time-frame of
the request was for the past 3 years. In respect of this audited accounts
item and the IRAS statements item (at paragraph 2(A)(d) of the SIC—the
time-frame requested for was “the last three years”), I have
made an order in respect of the relevant documents only for the years
ending 31 December 2001 and 31 December 2002. This is because the documents
for the year ending 31 December 2003 would not be available yet. I have
not made an order in respect of the relevant documents for the year ending
31 December 2000 as the wife’s counsel has not made any submissions
regarding why I should order the production of documents dating before
January 2001. I see no reason to do so at this moment, in the light of
my analysis of when the marriage broke down (as set out in the previous
paragraphs of this section) and the lack of any allegations of or any
evidence of dissipation of assets by the husband. The situation may well
change once some documentation is furnished by the husband and the wife
has had the opportunity to analyse the same. But for the purposes of this
SIC, I will not make any orders in respect of documents dating before
January 2001.

21 I have chosen August 2003 as the “end date” for the time-frame
which I have used for my orders in respect of the relevant documents.
This is because the affidavits of means of both parties were filed in
September 2003. Had the husband furnished full supporting documentation
to his affidavit of means, he would not have been able to obtain any documents
dating after August 2003. I also recognise that the affidavit of means
and this discovery application have come at a relatively early stage of
the divorce proceedings. The ancillary matters may not be heard until
quite some months later, and in any event, not before January 2004. The
updating of those documents which have been discovered would be better
dealt with nearer the ancillary matters hearing. It may not be necessary,
for example, to have documents from September 2003 until March 2003, if
the ancillary matters are heard in October 2004, and the court and/or
the parties are satisfied with documents dating from three to six months
preceding the hearing. I express no view, however, on the appropriate
time-frame for the updating of the relevant documents at this time—this
issue will be more appropriately dealt with by the court after the decree
nisi is granted and the parties can focus their attention on the ancillary
matters.

Duplication of Discovery Requests and Requests for Information

22 Before moving on to deal with the individual items of the SIC, I would
like to address the issue of duplication of discovery requests and requests
for information which had been raised by the husband’s counsel,
in relation to items 11 and 12 of the table. His point was that if certain
documents were already going to be furnished, for example, bank statements,
which would contain certain information (such as the sale price of the
Prado car), then it should not be necessary to separately furnish information
pertaining to the same subject matter (i.e. the sale price of the Prado
car). Extending this principle, if a certain category of documents has
been furnished which contains certain information, then it should not
be necessary to furnish another category of documents which would contain
the same information. For example, if bank statements are provided which
would reveal the husband’s income, then there would be no necessity
to furnish other documents pertaining to the husband’s salary, such
as his payslips.

23 I cannot accept this as a guiding principle for every case. If the
supporting documentation comes from a broad base, this would ensure that
the picture which emerges of a party’s financial circumstances,
resources, and dealings is accurate and trustworthy. That is to say, if
different categories of documents furnishing the same type of information
are provided, and they are shown to furnish the same information—i.e.
the documents do not contradict each other, but each category of documents
verifies the information contained in the other categories of documents—then
the picture painted by the documents will have a firm foundation. The
issue is that of the depth and integrity of information, as opposed to
its breadth and comprehensiveness. A broad base of supporting documentation
would enable the other party to verify and analyse the information provided
in one set of documents against another set of documents. Of course, the
court must strike a balance between trying to ensure that there is a broad
enough base of supporting documentation, and placing an unduly onerous
burden on the party discovering the information. Each case must depend
on its own facts. As an extreme example, a successful businessman who
runs many companies and actively plays the stock market would be expected
to provide discovery of many more categories of documents furnishing the
same type of information (for example, regarding his income) than a person
in full-time employment with one company as a cleaner, earning $1000 a
month. The former would be probably required to furnish audited accounts
of his companies, business books, payment vouchers, payslips, bank account
statements, investment account statements, CPF statements and so on. The
latter would probably only be required to furnish his payslips and his
CPF statements.

24 In this case, the husband is far from being a man of straw. He owns
several properties, he has club memberships, he has purchased vehicles,
he owns shares in both listed and unlisted companies, he has a number
of bank accounts with significant amounts of cash, and insurance policies.
From the husband’s own estimate, the worth of these assets appear
to be more then $9 million (the real properties alone are estimated to
be worth $6,978,000 and the movable assets are estimated to be worth $2,046,200.83).
He has several sources of income, and he has estimated his monthly income
at about $21,000 a month. (See exhibits “P-1” and “P-2”
of the husband’s affidavit of means) He has been managing the household
finances. (See paragraph 30 of the husband’s affidavit of evidence
in chief.) I am therefore of the view that the husband’s financial
circumstances, dealings and resources are complex and significant enough
to justify the furnishing of a relatively broad base of supporting documentation—this
would involve making orders in respect of different categories of documents
providing the same type of information.

25 I now deal with each of the items of the table in turn.

Singapore Island Country Club Membership (Item 1 of the Table)

26 The husband has stated in paragraph 8 of his SIC affidavit that he
does not presently have in his power or possession any documentary proof
that his Singapore Island Country Club membership is not transferable.
However, since he has stated in his affidavit of means that it is not
transferable, he must obviously have obtained this information from the
club itself. He should therefore obtain confirmation of this in writing
from the club. I have therefore ordered him to make an attempt to do so,
and to set out a record of his attempt in an affidavit. Simply stating
that he does not have the relevant documentary proof will not suffice.
He must make and demonstrate his efforts to obtain that documentary proof.
(See paragraphs 14-15 above, in this regard.)

Bank Account Statements (Item 2 of the Table)

27 I accept that the bank account statements are necessary to show the
husband’s income and the extent and value of the matrimonial assets.
For those accounts in the husband’s sole name, or which he holds
jointly with his sister, the husband should be in a position to obtain
the statements and ought to do so. I have made an order in respect of
the said bank statements accordingly. The time-frames I have chosen (i.e.
every alternate month from January 2001 to December 2002 and every single
month from January 2003 to August 2003) are intended to strike a balance
between ensuring full discovery, in order for the wife to be able to undertake
a meaningful analysis of the husband’s income and financial resources,
and avoiding discovery which would be overly costly and oppressive to
the husband. The reasons for the “start date” of January 2001
and the “end date” of August 2003 have been set out in paragraphs
17-21 above. I have made no order in respect of the bank account statements
for those bank accounts which are held by the wife jointly with the husband.
She would be in an equal position to apply to the relevant bank to obtain
these statements, and should do so herself. (In this regard, see paragraph
18 of the Kleinman case, supra)

CPF, IRAS and CDP statements (Items 3-5 of the Table)

28 I accept that the CPF, IRAS and CDP statements would all be necessary
to show the husband’s income and the extent and value of the matrimonial
assets. I have stated my reasons for the time-frames chosen in paragraphs
17-21 above. I have worded the order in relation to the CPF statements
to cover all the different types of CPF accounts which would be held by
the husband, in order that a full picture of all the husband’s CPF
resources may be obtained.
Tenancy Agreements (Item 6 of the Table)

29 No time-frame was specified in the SIC in respect of the tenancy agreements.
I have therefore ordered the latest tenancy agreements to be provided
in respect of all the properties. As the owner or co-owner of all the
properties, the husband would be in a position to obtain the tenancy agreements
in respect of the same. If he is not able to, he has to furnish an explanation
as to why, on affidavit. The husband’s counsel had submitted that
the wife would be in a position to obtain the tenancy agreements of those
properties for which she is a co-owner, namely 54B Draycott Park and 62A
Draycott Park and that therefore a discovery order in respect of these
agreements would not be necessary. I am unable to agree with this, as,
unlike for bank account statements, there is no obvious person or institution
that the wife can apply to for a copy of the said agreements aside from
the husband himself. Secondly, the husband has been the one managing the
household finances. (See paragraph 30 of his affidavit of evidence in
chief.) In his affidavit of means, he has stated with precision the months
where the tenancies for the two Draycott properties would expire, as well
as the amount of the monthly rentals, indicating that he has full knowledge
of the arrangements in respect of these properties (See paragraphs 2(c)
and (d) of exhibit “P-2” of the husband’s affidavit
of means). In the circumstances, it seems likely that he, rather than
the wife, would be in possession of the tenancy agreements.

Director’s Fees and Dividends, Husband’s Salary (Items 7-9
of the Table)

30 I accept that documentary evidence of the director’s fees and
dividends received by the husband, as well as the husband’s salary,
is necessary in order to verify the figures set out by the husband in
his affidavit of means regarding these items. I have worded my orders
in respect of these items in order to make clear what categories of documents
the husband should provide in relation to the said items, and also to
make clear that of the categories of documents which are specified in
my orders, only those categories of documents which are in fact relevant
to the issues of the husband’s director’s fees, dividends
and salary need to be provided. Thus, for example, if there are no director’s
resolutions for the relevant time-frame which mention the husband’s
director’s fees, dividends or salary, that no director’s resolutions
need be furnished by the husband. The reasons for the time-frame I have
chosen for the three items discussed in this paragraph have been set out
in paragraphs 17-21 above.

Audited Accounts (Item 10 of the Table)

31 The audited accounts of the private companies of which the husband
is a director and shareholder are clearly relevant to establish the husband’s
income and financial resources. I have therefore made discovery orders
in relation to the audited accounts of the company of which the husband
is a director and shareholder, namely Tan Chwee Boon Pte Ltd. The husband’s
counsel said it was not clear to him what the term “audited accounts”
in fact referred to. Although I am of the view that the term is in fact
perfectly clear and would be understood by anyone reading the SIC, I have,
nonetheless, for the benefit of the husband and his counsel, worded my
order to specify that the audited accounts required are those which are
prepared for submission to the Registry of Companies.

32 I have made no order in respect of the audited accounts of the subsidiaries
of Tan Chwee Boon Pte Ltd, as was requested in the SIC, because, firstly,
there is at present no evidence before me that there are any such subsidiaries
in existence. Secondly, there is no evidence that the husband is the director
and shareholder of any of these subsidiaries, if indeed they exist. The
wife should do a company search and/or a people’s profile search
to obtain the relevant evidence before making such an application. Thirdly,
I am of the view that the wife should peruse and analyse the audited accounts
of Tan Chwee Boon Pte Ltd first before requesting for the audited accounts
of the subsidiaries of Tan Chwee Boon Pte Ltd. The subsidiaries (if they
exist) would be separate entities from Tan Chwee Boon Pte Ltd. At present,
I see no reason why documents relating to the subsidiaries would be relevant
to the valuation of the husband’s shares in Tan Chwee Boon Pte Ltd,
or to an assessment of his director’s fees and dividends from the
said company, other than a speculation from the wife’s counsel,
unsupported by any evidence, that assets and monies belonging to Tan Chwee
Boon Pte Ltd may have been channelled to or through its subsidiaries.

33 The husband’s counsel had argued that the wife had not exhibited
any company search to show that the husband was indeed the director and
shareholder of Tan Chwee Boon Pte Ltd and that there is therefore no basis
for a discovery application in respect of the audited accounts of this
company. I am a bit puzzled by this argument, since exhibits “P-1”
and “P-2” the husband’s affidavit of means state that
the husband holds shares in Tan Chwee Boon Pte Ltd, earns director’s
fees and receives dividends from this company. I therefore disregard the
husband’s counsel’s submissions, in this respect.

34 I note that the husband has stated in paragraph 9 of his SIC affidavit
that the audited accounts of Tan Chwee Boon Pte Ltd and its subsidiaries
are not available to him. A bald statement like this will not suffice.
He has to explain why this is the case, and make efforts to obtain the
audited accounts of Tan Chwee Boon Pte Ltd, and explain what these efforts
have been, with supporting documentation, if possible. (In this regard,
see paragraphs 14-15 above.)

35 The husband’s counsel had also argued that the wife should obtain
the relevant audited accounts herself, from the Registry of Companies.
I am not in agreement with this view. The husband is a director and shareholder
of Tan Chwee Boon Pte Ltd, not the wife. The figures which the husband
has set out in his affidavit of means regarding his shares in this company,
and his director’s fees and dividends from this company, are figures
which the husband himself has come up with. It is his responsibility to
furnish supporting documentation, in this regard.

36 Finally, in respect of the time-frame which I have chosen for this
audited accounts item—my reasons for doing so have been set out
in paragraphs17-21 above.

“Cash at Bank” (Item 11
of the Table)

37 Item 14 of exhibit “P-1” of the husband’s affidavit
of means states that the husband has “Cash at bank” of $505,984.38.
This is a considerable sum. The wife has requested in the SIC that the
husband state which bank account this sum is deposited. This is a reasonable
request, and I have made an order in this regard. The husband’s
counsel had objected to this request on the grounds that there would be
a duplication between this and the provision of bank account statements,
i.e. the wife would be able to tell from looking at the bank account statements
which bank account would hold the sum of $505,984.38, and therefore the
husband should not be ordered to furnish this information. I am not in
agreement with this submission. (I am rather surprised, in fact, that
such a submission was in fact made, since the husband’s position
with respect to the bank account statements is that he does not wish to
furnish any of them to the wife.) Firstly, the husband should provide
clear information in his affidavit of means, rather than expecting the
wife to sift through the supporting documentation to work out the state
of his financial affairs. A term such as “Cash at bank” with
nothing to identify the relevant bank account does not qualify as clear
information. Secondly, in any event, this is a case where I am of the
view that it is justifiable to obtain the same type information from more
than one source or category of documents. (In this regard, see paragraphs
22-24 above.)

38 The husband had also objected to this “Cash at bank” request
on the grounds that the wife could not ask for information on the husband’s
affidavit of means if her own affidavit of means was brief and inadequate
and the husband himself had many questions about it. I have rejected this
“complete mutuality of discovery” type argument, and my reasons
for this are set out at paragraphs 9-11 above.

The Prado Car (Item 12 of the Table)

39 The wife had requested in paragraph 2(B)(b) of her SIC for information
regarding “To what use the proceeds from the sale of the Prado has
been put.” The basis of her application is that the Prado was a
family car and formed part of the matrimonial assets. The husband had
apparently sold the same without consulting her. The wife has no knowledge
of the exact date of the sale of the car (she only knows that it was removed
from the family home on or about 28 May 2003), the sale price, or any
other details regarding the sale. (See paragraph 29 of the wife’s
SIC affidavit and paragraph 21 of the wife’s affidavit of evidence
in chief.)

40 The husband’s counsel had objected to the application on two
grounds. The first objection is that the husband is the owner of the car,
and there is therefore no need to account to the wife for the sale proceeds
of the same.

41 I am not entirely able to accept the husband’s counsel’s
submission. The car was purchased in the year 2000 (see paragraph 70 of
the husband’s affidavit of evidence in chief), which is after the
date of the marriage. It is clearly a matrimonial asset (see Section 112(10)(b)
of the Women’s Charter which states that a matrimonial asset includes
“any other asset of any nature acquired during the marriage by one
party or both parties to the marriage.” If the car itself is no
longer in the possession of the husband, so that it cannot be valued,
for the purposes of ascertaining the pool of the matrimonial assets, then
he must let the wife know how much he sold it for, and how much he received
from the sale after taking into account any outstanding hire purchase
loan—these net sale proceeds will form part of the pool of matrimonial
assets. In order to allow the wife the opportunity to verify this information,
he should let her have any supporting documentation in this regard, and
he should also inform her of the date, mode of payment of the sale proceeds
to him, and which bank account (if any) the sale proceeds were paid into.
I have made an order for the husband to furnish this information accordingly.
(I have also worded the order to include the Prado car number so that
it may be identified more precisely, since the wife has bought herself
another Prado car (see paragraph 21 of her affidavit of means).) The information
which I have ordered the husband to furnish is, in my view, all the information
which is necessary to ascertain and verify the amount of the sale proceeds
of the car which have been received by the husband. And this, in turn,
is all the information which is necessary in order to include the value
of the car in the pool of the matrimonial assets. I do not think an “account”
of what the sale proceeds were used for is necessary. It does not matter
whether the husband has squandered all the proceeds, kept it all in a
bank account, or spent it investing in another asset. It is his choice
as to whether he would like to furnish an explanation of what he has done
with the sale proceeds. If no explanation is forthcoming, the court can
just proceed to divide the matrimonial assets on the basis that the husband
has received a certain sum of money from the sale of a matrimonial asset,
i.e. the Prado car, and that he has kept it all for himself.

42 The husband’s counsel’s second objection is that the provision
of an account of what happened to the Prado sale proceeds would overlap
with the information which the wife could glean herself from perusing
the husband’s bank statements. Once again, I am surprised that this
submission is being made in the light of the fact that the husband had
taken the position that he would not be willing to furnish any bank account
statements to the wife. In any event, as the wife’s counsel had
pointed out, if the wife is ignorant of the sale price and the date of
sale of the car, she would not be able to ascertain which transaction
in the bank account statements pertains to the car. The husband’s
counsel submitted that the wife should attempt to do so by perusing the
bank statements, and then make an application to court if her attempt
is not successful. I do not think this is a fair or practical suggestion.
The onus should not be on the wife to trawl through pages of bank account
statements, cluelessly seeking for and guessing at information which the
husband can and should provide, since he was the one who sold the car.
This information should be in the husband’s knowledge, or easily
obtainable by him. In any event, as stated earlier, this is a case where
I am of the view that it is justifiable to obtain the same type information
from more than one source or category of documents. (In this regard, see
paragraphs 22-24 above.)

The Husband’s Request for Documents

43 Before concluding, I note that the husband’s counsel had requested
during the hearing before me for orders that the wife make discovery of
or produce various documents. The substance of the husband’s request
for documents has been set out at pages 9-12 of his SIC affidavit (“the
husband’s request for documents”). I have declined to deal
with this request as no summons-in-chambers application has been taken
out by the husband’s counsel in this regard, which would be the
proper procedure to follow. Moreover, no reasonable notice period had
been given to the wife’s counsel of the husband’s request
for documents (the husband’s SIC affidavit was only filed on 1 December
2003, just a day before the SIC hearing before me). Neither did the husband’s
SIC affidavit address the issue of the relevance and necessity of each
category of documents requested by the husband. I also note that certain
items of the husband’s request for documents, namely the items set
out at paragraphs 12 (b), (c), and (d) of the husband’s SIC affidavit
(“the paragraph 12 items”), have already been dealt with by
me in a previous application, Summons-in-Chambers No. 651765 of 2003 (“the
previous SIC”), which was heard on 13 October 2003. The paragraph
12 items are therefore, in my view, res judicata.

44 The previous SIC was an application by the husband for discovery in
respect of the contested divorce proceedings, not the ancillary matters.
I had made certain orders in respect of this application. The husband
has failed to extract the relevant order of court todate. On the basis
that the order of court had not yet been extracted, the husband’s
counsel submitted that I could re-hear the matter in respect of the paragraph
12 items, and that the previous SIC could stand as the SIC for the purposes
of his present request for documents. I am not in agreement with this.
The husband cannot rely on his own failure to extract the relevant order
of court to avoid complying with the proper procedures now in seeking
discovery from the wife. The husband’s counsel also alleged that
I had given leave at the hearing of the previous SIC for the husband to
file an application to request for documents—and that this granting
of leave should obviate the need for an SIC to be filed for the husband’s
request for documents. I fail to see the logic of this submission. One
of the prayers in the previous SIC was for an order that both parties
file and exchange an affidavit verifying list of documents—in respect
of the contested divorce hearing. I had granted this prayer, in part,
and went on to state, very clearly, that if either party would like discovery
of specific documents under Order 24 Rule 5 of the Rules of Court and
Rule 24 of the Matrimonial Proceedings Rules, the appropriate application
should be taken out, and a supporting affidavit filed. In stating this,
I had meant to refer to discovery for the contested divorce proceedings
only. I had not addressed my mind to the subject of discovery for the
ancillary matters proceedings. In any event, what I envisioned was that
a proper summons-in-chambers application would be filed for any further
discovery requested by parties.

Conclusion

45 Having dealt with all the items of the SIC, I will now hear the parties
on the issues of the time-frame for the filing of the Affidavit, and on
costs.

Wife’s application for discovery allowed in part.