Chitra A/P Danapalan v Augustine Charles A/L Retnasingam, 15-10-2015

• Judge: Y.A. TUAN LEE SWEE SENG
• Judgment Date: 15 October 2015
• Court: High Court (Malaysia)
• Appellant: CHITRA A/P DANAPALAN
• Record Number: S8-33-1449-03
• Respondent: AUGUSTINE CHARLES A/L RETNASINGAM

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY OF MALAYSIA

(FAMILY COURT)

DIVORCE PETITION NO.: S8-33-1449-03

BETWEEN

CHITRA A/P DANAPALAN …. PETITIONER

(NO K/P: 631117-10-6652)

AND

AUGUSTINE CHARLES A/L RETNASINGAM …. RESPONDENT

(NO.K/P 570106-08-6047)

THE JUDGMENT OF

YA TUAN LEE SWEE SENG

This has been a protracted divorce proceeding, lasting 12 years, and I am sure with it, the searing pain that comes with the long drawn battle in the courts. It started with the petitioner wife filing the divorce petition on 10 December 2003. It just ended, or maybe not quite if parties are appealing, with the disposal of the wife's application for maintenance to be assessed and the husband's application to cease maintenance altogether as he had retired from employment on 5 January 2013 upon reaching the compulsory retirement age of 56 as a senior manager of a RISDA subsidiary. There were also 2 other related applications filed by each one of them and they were also disposed of together.

The High Court that heard the divorce petition had granted on 23 June 2004 the dissolution of the marriage and also ordered the respondent husband to pay the wife monthly maintenance of 25% of his gross income and the wife's application for division of the matrimonial assets were dismissed. The High Court also dismissed the wife's claim of custody to the 3 children and the learned Judge had given custody of the 3 children to the husband. The children were then 17, 15 and 11. The reported judgment is Chitra a/p Danapalan v Augustine Charles a/l Retnasingam [2006] 4 MLJ 497.

The petitioner wife appealed to the Court of Appeal and the Court of Appeal on 7 July 2010 varied the maintenance order to 15% of the husband's net income and further ordered the Bidara Apartment to be transferred by the husband to the wife subject to encumbrance. The husband being dissatisfied with the order, filed for leave to the Federal Court to appeal against the order of the Court of Appeal. The Federal Court dismissed the leave application on 20 October 2010.

Prayers

On 26 September 2011 the wife filed an application in Enclosure 187 and obtained leave for maintenance to be assessed and for the husband to disclose relevant documents showing his sources of income. The husband appealed against the said order and the Court of Appeal dismissed his appeal on 16 November 2012. There was an earlier similar application by the wife in Enclosure 182 which was struck out on technicality, the wife having proceeded on a wrong mode of application. See the reported judgment in Chitra a/p Danapalan v Augustine Charles a/l Retnasingam [2012] 9 MLJ 170.

On 3 December 2012 the wife filed an application in Enclosure 188 for ancillary reliefs for the maintenance of the wife to be fixed at RM4,500.00 per month or such other sum as may be assessed by the Court representing 15% of the husband's net income and for the Bidara Apartment to be transferred to her. This was followed by the husband's application in Enclosure 205 filed on 18 April 2013 to cease payment of any maintenance payable to the wife because of a material change in circumstance in him having retired from employment with a subsidiary of RISDA in January 2013. This was followed subsequently by the husband amending the application to include the wife having started her own business venture in tour agency as an additional material change in circumstance.

There were also 2 other applications filed; in Enclosure 225 filed by the wife and in Enclosure 245 filed by the husband. They have to do with the delay in the transfer of the Bidara Apartment from the husband to the wife and each is now blaming the other for the delay and the consequences that ensued. The husband had taken out additional financing on the said Apartment and naturally the wife would not want to be saddled with the liability arising out of further encumbrance.

The petitioner wife had prayed in Enclosure 225 for an order that the respondent husband do pay back to Citibank the amount that he had refinanced together with interests and late payment charges that had accrued on the Bidara Apartment after the Court of Appeal order of 7 July 2010. She had also prayed that the husband do pay her from the date of the Court of Appeal order to September 2013, the monthly rental of RM2,500.00 collected from the letting out of the said Apartment amounting to RM97,500.00 and continuing until the effective transfer of the Apartment from the husband to her.

On the other hand, the husband had prayed in Enclosure 245 that the wife do pay to him certain reimbursements for loan repayments and outgoings with respect to Bidara Apartment and for appreciation in value of the said Apartment arising apparently from the fact that with the delay in transfer of the Apartment, the Apartment had appreciated in value and the delay was sustained through fresh borrowings of the husband from the same Bank i.e. Citibank!

Principles

Enclosures 225 and 245

By consent and for good reason, parties had agreed that Enclosure 225 should be heard together with Enclosure 245. The prayers sought by the wife in Enclosure 225 are inextricably linked with the prayers sought by the husband in Enclosure 245.

It may be recalled here that the Court of Appeal had in July 2010 ordered that the Bidara Apartment be transferred by the husband to the wife, subject to the encumbrance to Citibank. The husband instead of doing everything necessary to transfer the said Apartment to her proceeded in March 2011 to further encumber the said Apartment with an additional financing of RM165,500.00 that he had taken out from Citibank. The wife, when she realized it, was livid to see the least lamenting that it was yet another attempt by the husband to leave her languishing. No notice was given to her that he had wanted to subject the Apartment to further financing for a personal loan to him.

She could not comprehend how the husband could have the audacity to arrange for an additional facility for himself, with the security from the Apartment that the Court of Appeal had ordered to be transferred to her as part of the division of matrimonial assets in the aftermath of a bitter divorce. Had he asked for her permission, she would have flatly and firmly objected! Knowing that would have been understandably the reasonable reaction from her, enamoured through the pain of a protracted battle in the courts, he decided to secretly do it behind her back.

The husband had to rationalize his move. He justified it on ground of necessity and good intention. It was necessary as he said the wife had not taken any steps to redeem the said Apartment and to take an alternative financing from Citibank or another bank. Meanwhile he would have to continue servicing the existing loan when she was supposed to have the Apartment and to pay whatever is the instalments for the outstanding loan, seeing that she is to take the Apartment subject to encumbrance. If indeed that was the problem that had come to plague him, he would surely through his solicitors, have written to the wife to put her on notice. If paying the loan instalments was burdensome, it must not be forgotten that he continued collecting the rental for the Apartment. It must also be highlighted that he had the other alternative, which is to get the existing loan restructured to pay over a longer period instead of getting an additional loan for himself. If he thinks he had a moral obligation to prevent a default so that the Apartment would not be foreclosed with the wife losing everything, then the nobility of his desire would certainly have led him up the path of restructuring the loan to allow a longer repayment period rather than taking additional financing and stretching further the repayment period.

All said, had the husband wanted to follow the order of the Court of Appeal, he could very easily have written through his solicitors, that he had written to Citibank for the redemption statement and the amount outstanding could be furnished to the wife. The wife could be put on notice that if she does not redeem the Apartment, then the husband's obligation to service the then outstanding loan would stop. His solicitors could also prepare the necessary transfer documents duly executed by him to show that he had done everything necessary to comply with the Court of Appeal order. All that the wife would have to do would be to arrange for financing from the same bank or from another bank so that a simultaneous discharge of charge of the husband's loan, transfer of the Apartment from him to her and a fresh charge by the wife in favour of the bank could be created.

That was not done by the husband and looking back it suited what he needed to do. He was in dire need of a personal loan. The only convenient security he could furnish the bank was this Apartment that the wife had not taken over the transfer and possession of. He said his action was completely altruistic; it was to help support the three children whose custody has been given to him. As is often said, the road that leads to destruction is often paved with good intentions. If indeed the husband wanted to do that for the welfare of the children, he must do it in compliance with the Court of Appeal order by either varying it or at least getting the consent of the wife to delay taking the transfer of the Apartment and to indemnify her against all losses in the event that he was unable to service the additional financing. It goes without saying that if he should default in servicing the additional loan, all lumbered in the charge to the bank, then the Apartment might go under the hammer in the event of the bank foreclosing. The wife would...