Lim Kaling v Hangchi Valerie [2003] 2 SLR 377

High Court — Originating Summons Nos 1096 and 1136 of 2002
S Rajendran J
7 October 2002, 28 April 2003

Land — Caveats — Effect — Wife lodging caveat on property bought prior to marriage pending division of matrimonial assets — Whether wife has ‘caveatable interest’

Randolph Khoo (Drew & Napier LLC) for the plaintiff/applicant
Loh Wai Mooi (Bih Li & Lee) for the defendant

The plaintiff and the defendant were husband and wife respectively. The husband, prior to his marriage had bought two properties in Singapore, namely an apartment and a house. The husband and wife were married on 27 June 2000. Both of them had been living in the US and returned to Singapore in late October 2001. Back in Singapore, both parties lived together for a few weeks in the apartment and in December 2001, the wife moved out of the apartment and lived separately.

In June 2002, the husband entered into a contract for sale for the apartment and completion was scheduled for 6 August 2002. On the day of completion, the husband realised that the wife had lodged a caveat against the apartment. The wife lodged a caveat on 5 August 2002, under s 115(1) of the Land Titles Act (Cap 157), claiming ‘an equitable interest’ in the matrimonial property under s 112 of the Women’s Charter (Cap 353).

The husband applied to have the caveat removed vide Originating Summons.

The main issue for the court was whether the power of a court to order a division of matrimonial assets under s 112 of the Women’s Charter was a power that constituted, in respect to the spouse who was not the owner of the property, a ‘caveatable interest’.

Held, allowing the plaintiff’s application and ordering the removal of the caveats:

On 7 August 2002, Lee Seiu Kin JC made interim orders in respect of the application enabling the sale to be completed with the proceeds of sale being held by stakeholders until the Originating Summons was dealt with.

In mid-September, the wife commenced an action for judicial separation against the husband alleging unreasonable behaviour. The wife could not apply to be divorced as they had been married for less than three years. The husband contested the petition.

In the meantime, the husband had also found out that the wife had lodged another caveat against the house as well. He immediately applied to have the caveat removed and both matters were brought before the court.

Under the Land Titles Act (‘LTA’), the caveator is not required to verify his interest in the land to the Registrar before the lodgment of the caveat. In Tan Soo Leng v Wee, Satku & Kumar [1993] 3 SLR 569, Selvam J pointed out that s 115(1) of the LTA pre-supposes that the caveator has a valid interest in the property which needs protection by caveat.

Upon an application by the caveatee under s 127(1) of the LTA for the removal of the caveat, the burden is on the caveator to satisfy the court that the caveat should not be removed. In the present case, the wife lodged a caveat as she believed that she had ‘an equitable interest’ in the property and that she needed to preserve the status quo pending the outcome of the matrimonial proceedings.

The ‘interest’ that the wife claimed in the apartment and the house when filing the caveat was based on the hope that ‘if’ the divorce or judicial separation proceedings are instituted and ‘if’ an order of dissolution or judicial separation was granted, the court ‘may’ order the division of the apartment and the house. Such an amorphous hope that a future event will occur cannot fall within the scope of the words ‘an interest in land recognised as such by law’, s 112(1) of the Women’s Charter.

Counsel for the husband, quoting the case of Chai Mei Ling v William Cheng OS208/1998, HC, unreported judgment, submitted that even the fact that a decree nisi had been granted would not, by itself, confer an interest in any property that could be said to be a caveatable interest. He submitted that even at that stage the wife would not have any vested interest in the property. In order for a caveatable interest to arise, an order for the actual division of the property was needed.

In Ioppolo v Ioppolo [1978] 5 Fam LR 27, a case that came before the full bench of the Supreme Court of Western Australia, the parties were divorced in 1977 and the wife proceeded to apply to the Family Court for orders of division of property and lodged a caveat against certain property of which her husband was the sole registered proprietor on the grounds that her application to the Family Court for division of the property was an interest in land within the meaning of s 137 of the Transfer of Land Act (WA). Section 137 of the Australian Act, like s 115 (1) of the LTA, enabled a person claiming any interest in land to lodge a caveat with the Land Titles Registry. The Supreme Court unanimously held that the wife’s claim for division was not an interest in the land within the meaning of s 137 of the Transfer of Land Act (WA) and therefore not a caveatable interest.

The same view was taken in the more recent case of Hayes v O’Sullivan [2001] 27 Fam LR 462. Therefore, it is clear that the Australian position is that the possibility that a court may, in matrimonial proceedings, order the division of property does not constitute a caveatable interest.

In the present case, the reason the wife filed the caveats was due to fear that the husband was going to deprive her of her rights to any property by disposing of it. In such a case, it would have been more appropriate for her to have instituted proceedings under s 132 of the Women’s Charter for the grant of injunctive relief. To obtain such a relief, the wife will have to satisfy the court that by reason of the husband’s conduct, her rights are in fact in jeopardy. If the wife had obtained an injunction under s 132 then she would have had a caveatable interest under s 115(3)(b) of the LTA, which provides that a person claiming an interest in land shall include a person who has obtained an injunction in respect of an estate or interest in land.

From the above, it is clear that the wife had no caveatable interest in respect of both the apartment and the house at the time she lodged the caveats. Accordingly, the two Originating Summonses are granted with costs and the Registrar is to hold an inquiry as to the damages incurred by the husband as a result of the caveats being lodged and order that the wife pay to the husband such damages (if any) that the Registrar may award.

Plaintiff’s application allowed. Caveats removed.

Vimala Chandrarajan