Case Update

Re Hong Huat Development Co (Pte) Ltd 
[2001] 1 SLR 55

High Court - Companies' Winding Up No 204 of 1999
Choo Han Teck JC
23, 27 October 2000

Costs - Petition to wind up company on basis of unsatisfied judgment debt - Judgment reversed in part on appeal - Petition withdrawn - Whether petitioner should bear costs

Sharon Tay Mui Leng (Donaldson & Burkinshaw) for the petitioner.
Lawrence Teh (Rodyk & Davidson) for the respondent.

The petitioner and respondent were parties to an arbitration resulting in an arbitral award in favour of the petitioner and costs of the arbitration. The respondent having paid only part of the award of damages, the petitioner sought to wind up the respondent on the ground that it was unable to pay its debts. Meanwhile, the respondent obtained a stay of execution pending an application for leave to appeal against the decision of the arbitrator. The respondent obtained leave to appeal and ultimately prevailed in reducing the quantum of unsatisfied judgment debt from $615,133.42 including costs to $59,195.51. Shortly there- after, the respondent paid the outstanding sum of $59,195.51 to the petitioner and the petitioner obtained leave to withdraw the winding up petition, with only the issue of costs outstanding. The respondent argued that costs ought to be awarded against the petitioner since the petition, having been withdrawn, was unfounded.

Held, awarding partial costs to the petitioner:
The applicable principle was that the petitioner was entitled to present a winding up petition on a judgment debt even when there was a pending appeal, though there should be a stay of the petition until the appeal was heard, during which interim the respondent should provide security for the debt. However, should the petitioner fail to successfully defend the appeal, the petition would be dismissed with costs to the petitioner up to the date of the stay. Accordingly, the respondent was to pay costs up to the date of the stay, with each party to bear its own costs thereafter.

Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd
(t/a Apollo Hotel Singapore)
[2001] 1 SLR 159

High Court - District Court Appeal No 34 of 1999
Lee Seiu Kin JC
14 February, 11 April 2000

Employment contract - Termination - Whether termination with notice or termination with cause - Whether right of termination with notice removed by Retirement Age Act
(Cap 274A)

Andrew J Hanam (Edmond Pereira & Partners) for the appellant.
Kee Lay Lian and Allen Choong (Rajah & Tann) for the respondents.

The appellant was employed by the respondents, who operated a hotel, on 13 September 1973 and remained in their employment for 25 years in various capacities, including as a bell-hop and finally as a driver. The respondents dismissed the appellant by way of a letter dated 31 August 1998, stating that the appellant's services were not longer required and gave him one month's salary in lieu of notice in accordance with the employment contract. By a letter dated 2 September 1998, the respondents assigned the office assistant to perform the additional duties of a driver with effect from 1 September 1998.

The appellant commenced an action against the respondents, alleging that he was terminated because of redundancy and claimed retrenchment benefits as provided for under the employment contract. In the alternative, he claimed damages for wrongful dismissal in breach of s 14 of the Employment Act (Cap 91). He also claimed amounts in respect of certain expenses. The respondents averred that the termination was not a dismissal under s 14 of the Employment Act and that they were entitled to dismiss the appellant with one month's pay in lieu of notice pursuant to ss 10 and 11 of the Employment Act. They pleaded that the appellant's employment was terminated because of his bad working attitude and difficult behaviour. The district judge dismissed all the appellant's claims. The appellant appealed.

Held, allowing the appeal in part:
On the evidence, the employers had purported to make a termination with a notice pursuant to ss 10 and 11 of the Employment Act. It was not a dismissal with cause pursuant to s 14 of the Employment Act.

There was a general right to effect a termination with notice. The only question here was whether the ground for termination was wholly or mainly because of redundancy. If an employee was dismissed in circumstances where a redundancy resulted and that employee was entitled to redundancy payments were he retrenched on account of redundancy, there was a presumption that the dismissal was on that ground. The onus then shifted to the employer to show that it was not solely or mainly due to redundancy. The judge below erred when he held that the burden of proof rested on the employee.

The employers had not rebutted the presumption that the termination was wholly or mainly due to redundancy. The dismissal took place during a time of severe economic difficulty for the hotel industry and the employers were engaged in severe cost cutting measures. The evidence showed that the position of office assistant was enlarged to include that of the driver one day after the termination and no additional person was engaged. The employee's long service would have entitled him to a substantial sum as redundancy payment and provided the motive for the employers to dismiss him with notice.

Per curiam
The Retirement Age Act (Cap 274A) does not operate to remove the right of termination with notice under s 10 of the Employment Act. The Minister's speech at the Second Reading of the Retirement Act Bill stressed that it did not affect the employers' right to terminate employees' service on the grounds of poor performance or ill-health, or to dismiss employees on the ground of misconduct. There is also no express provision in the Retirement Age Act relating to s 10 of the Employment Act.

Jaspal Singh v Melville Marie-Anne
[2000] 4 SLR 639

High Court - Divorce Petition No 865 of 1997
Kan Ting Chiu J
26 August, 29 September 2000

Divorce - Division of assets - Principles to be considered in division of matrimonial assets - Percentage apportionment ordered by court

Imran H Khwaja (Tan Rajah & Cheah) for the petitioner/respondent.
Ramalingam Kasi and B Uthayancharan (Raj Kumar & Rama) for the respondent/appellant.

The parties were divorced in December 1997. Matters became contentious over the division of matrimonial assets. The principal assets were two houses at 1 Rosewood Avenue, Thornton ('the Thornton property') and at 13 Balmoral Crescent ('the Balmoral Crescent property') and a plot of land at 36, Gwandalan Close, Seaham ('the Seaham property'). Other matrimonial assets included club memberships, shares in listed companies and moneys in the parties' Central Provident Fund ('CPF') accounts.

The district judge awarded the respondent 35% of the Balmoral Crescent property and 20% of the other matrimonial assets. On this basis, the following orders were made: (i) that the respondent retain the Thornton property and bear the outstanding mortgage thereon; (ii) that the respondent transfer her share of the Balmoral Crescent property to the petitioner and that the petitioner refund to the respondent all moneys withdrawn from the respondent's CPF account and applied to the purchase of the Balmoral Crescent property, together with accrued interest; (iii) that the Seaham property be sold and the proceeds divided within 85% to the petitioner and 15% to the respondent; and (iv) each party was to retain his respective CPF contributions.

The respondent appealed: (1) that the respondent be entitled to equal division or alternatively, to a fair and equitable distribution of all the assets acquired jointly or by either party to the marriage during the course of their marriage; and (2) the respondent be entitled to an equal division or alternatively, to a fair and equitable distribution of the matrimonial assets of the club memberships and shares in the public listed companies, upon which the district judge failed to make an order.

Held, allowing the appeal:
In the division of matrimonial assets, it would be practical and desirable to have a global apportionment of all the assets in most cases. Where circumstances require, an asset could be apportioned specifically, the overriding consideration being to come to a just and equitable result. The circumstances here did not require a separate apportionment of the Balmoral Crescent property, so the apportionment was dealt with on a global basis.

When working out the total value of matrimonial assets, the district judge erred when he added up the values of all the assets and then deducted from that the petitioner's personal overdraft liabilities. Since these debts were not secured by matrimonial assets, they should not be deducted. They should instead be considered as debts under s 112(2)(b) and s 114(1)(b) of the Women's Charter (Cap 353).

The district judge should have (i) identified the assets which were matrimonial assets in accordance with s 120(10); (ii) ascertained as far as possible their values that may be realised and available for division; (iii) taken into account all relevant circumstances including the matters under s 112(2) and then (iv) decided on the apportionment. Using this method, the total value of the matrimonial assets was assessed at $805,082, to be shared 65:35 between the petitioner and the respondent.

The parties were allowed to work out the division of assets between themselves as long as each party obtained his share. To avoid displacing parties from their homes when dividing matrimonial assets, a court could allow the retention of homes within the framework of the overall division. Therefore, the petitioner could retain the Balmoral Crescent property and the respondent the Thornton property, each to be adjusted against the agreed values.

Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd
(t/a Apollo Hotel Singapore)
[2001] 1 SLR 159

High Court - District Court Appeal No 34 of 1999
Lee Seiu Kin JC
14 February, 11 April 2000

Employment - Termination with notice - Whether termination solely or mainly because of redundancy - When presumption that dismissal on ground of redundancy arose - Burden of proof

See CONTRACT.