VUG v VUF

Facts

The husband, who ran an automobile business, and the wife married on 8 June 2013 and have two daughters. After divorce proceedings, ancillary orders made on 14 May 2021 were varied on appeal by the High Court, which reduced the sum due to the wife from $422,000 to $86,000. The wife obtained leave to appeal further to the Appellate Division, but the parties then settled by a consent order dated 6 December 2022, and she withdrew her appeal on 12 December 2022. Under the consent order she was to receive $78,957.83 in cash rather than into her CPF account.

The husband's counsel had made his client's agreement conditional on the husband not being liable for any CPF refund the wife had to make, and had added a clause to the draft to that effect. The wife's solicitors at the Legal Aid Bureau sent the CPF Board the earlier draft without that clause, then sent the husband's counsel the Board's favourable reply together with his own amended draft. On 3 February 2023 the CPF Board told the husband that on any sale of the matrimonial property he would have to refund CPF money withdrawn by both spouses. He applied to vary the consent order; the District Judge dismissed the application, and he appealed in District Court Appeal No 79 of 2023.

Issues

1. Whether the husband had been misled into the consent order so that it did not reflect what he agreed to.
2. Whether the consent order should be varied to match the husband's understanding of the bargain.
3. What order the appellate court should make if neither keeping nor varying the consent order was fair.

Holding

The High Court (Family Division) dismissed the husband's appeal but ordered that the disputed consent order be set aside under r 831 of the Family Justice Rules 2014, leaving the parties free to negotiate afresh, with no order as to costs.

Reasoning

The court found that the husband and his counsel had been misled through no fault of their own. It was material that the amended draft was never shown to the CPF Board, and there was no reason why the outdated draft his counsel had objected to was sent instead. Although the Bureau did not act for the husband, fairness required it to send the latest draft, and it was not reasonable for it to treat the added clause as irrelevant, since the husband's counsel had made the condition plain in a letter of 6 September 2022. The court also rejected the argument that the husband suffered no real prejudice: like the wife, he wanted cash rather than CPF funds.

Varying the order to the husband's version was equally unfair. It would offend the principle of consent, because the wife had agreed only to the existing terms and had withdrawn her appeal on that basis; she could not be bound to a materially different order.

With no true consent to any version, the court used its wide power under r 831(3) and (4) to make the order that ought to have been made, citing WGE v WGF [2023] SGHCF 26, and set the consent order aside.

From the judgment