Chua Suzen v Eng Lai Leong (BA-33-451-06/2018)

His monthly income from Prominent Heights Sdn Bhd has 1 been reduced from RM10,000 to RM7,000. He also receives 2 a monthly rental of RM4,819.00 from a property owned by him 3 in Klang. When added up his total earnings come up to 4 RM11,819.00 per month. 5 6

(ii) This money had to be used to maintain and support the 3 7 children who are under his custody and care. 8 9

(iii) The sum of RM11,819.00 is not sufficient to cover their tertiary 10 education, medical, dental and optical fees incurred as well as 11 other incidental living expenses, let alone for his own 12 expenses. 13 14

(iv) The education fees for the two younger Children will increase 15 as they embark on their degree courses. 16 17

RH is suffering from severe nerve pain and difficulty in 18 movement and this may affect his ability to earn a living in 19 future. 20 21

(vi) The PW is more than capable of maintaining herself as she is 22 employed and owns 2 immovable properties. 23 24 [20] In opposing this application the PW strongly denied the RH’s 25 allegations and argued that the grounds for the application is devoid of 26 merits as there is no material change in circumstances that would 27 necessitate a reduction of maintenance for her. Briefly, the averments of 28 the PW are as follows: 29

Consent Order was obtained in the presence of both parties 1 and counsels and in the absence of fraud, it can only be varied 2 with the consent of the parties. Since no such allegation of 3 fraud was made the Consent Order is a good and proper 4 order; 5 6

(ii) The RH is well aware of his obligations and the consequences 7 of any breach of the terms of the Consent Order. At all times, 8 he should have known of his financial commitments before 9 agreeing to enter into the Consent Order; 10 11

(iii) His alleged reduction in monthly income is untrue, irrelevant 12 and self-induced in order to avoid having to make payments 13 to the PW; 14 15

(iv) His averments of poor financial standing is unsubstantiated by 16 any evidence; 17 18

the purported pay-cut he received had occurred some time 19 back in January 2021, 2 years prior to the filing of the instant 20 application; 21 22

(vi) the documentary evidence shows significant increases of 23 salary, bonuses and allowances given to the companies 24 directors; 25 26

(vii) it is a tactic to deprive the PW of her right to maintenance, a 27 term agreed and consented to by the RH himself in the 28 Consent Order; 29

(viii) it is a malicious attempt to delay and prejudice the PW’s rights 1 in the Bankruptcy Proceedings that is pending; and 2 3

(ix) the RH has indulged in his own personal whims and fancies 4 by purchasing an expensive BMW while at the same time 5 claiming that he is unable to comply with the terms of the 6 Consent Order. 7 8 Analysis and Findings of the Court 9 [21] The main issue for the consideration of this Court would be whether 10 there has been material change in circumstances to justify a reduction in 11 monthly spousal maintenance from RM5000 to RM500. 12 13 [22] In considering any application for variation pertaining to spousal 14 maintenance, the relevant provision of the law is found in Section 83 of 15 the Law Reform (Marriage & Divorce) Act, 1976. This provision reads as 16 follows: 17 18

“Power for court to vary orders for maintenance 19 The court may at any time and from time to time vary, or rescind, 20 any subsisting order for maintenance, whether secured or unsecured, 21 on the application of the person in whose favour or of the person against 22 whom the order was made, or, in respect of secured maintenance, of 23 the legal personal representatives of the latter, where it is satisfied that 24 the order was based on any misrepresentation or mistake of fact or 25 where there has been any material change in the circumstances.” 26 27 [23] The term ‘material change’ referred to in the section above means 28 not just any change but a significant change. 29 [24] In Sivajothi K Suppiah v Kunathasan Chelliah [2006] 5 CLJ 318, 1 the Learned Judge hearing the application explained ‘material change’ in 2 this way: 3 4 “The meaning of the section is plain and very clear. It is apparent that 5 under s.96 in so far as it relates to the case at hand, there must be a 6 material change in the circumstances in order for the court to vary or 7 rescind any order for maintenance. The section says any ‘material 8 change’ and not simply ‘change’. There is no ambiguity 9 whatsoever. It means a change in an essential part. In considering 10 whether there has been any ‘material change’ within the meaning 11 of this section regard must be had to all the relevant 12 circumstances, including in the context of the present case, the 13 judgement of Faiza Tamby Chik J. On a proper construction, the 14 requirement in this section does impose a legal obligation on the 15 defendant to prove on the balance of probability that there had 16 been a material change in the circumstances as at 24 August 2001. 17 There is no requirement at all for the plaintiff to disprove anything.” 18 19 [25] In Lim Hong Bee v Mah Teck Oon [2010] 8 CLJ 473 the Court 20 referred with approval to Sivajothi’s case and reiterated that “the change 21 in question must be material and not just any change. It signifies a change 22 in a crucial and vital part. In determining whether there has been a material 23 change within the meaning of this section, all relevant circumstances must 24 be considered”. 25 26 [26] Hence in order to determine the existence of material change, the 27 proper approach for the Court to take is to consider the period between 28 the time the Consent Order was obtained and the filing of the instant 29 application and see what changes financial or otherwise has taken place 30 since those dates (see Gisela Gertrud Abe v Tan Wee Kiat [1986] CLJ 31 (Rep) 133.) 32 Whether the RH has proven material changes in circumstances 1 [27] Undoubtedly the burden to prove whether there has been a material 2 change in circumstances is on the party who is moving the court to vary 3 or amend the original consent order relating to the variation that is prayed 4 for in the Notice of Application. In this instant application the RH has the 5 legal burden to prove on a balance of probabilities that there has been a 6 material change to his health and financial status that would make it 7 impossible for him to abide by the terms of the Consent Order dated 8 23.9.2019. 9 10 [28] Here the Court will have to consider the time frame in particular from 11 23.9.2019 to 25.1.2024 i.e. when this application was filed. It is necessary 12 to note that the RH had defaulted in payment of spousal maintenance and 13 breached other terms of the Consent Order almost soon as the ink began 14 to dry on the Consent Order and the decree for judicial separation was 15 granted. The Consent Order was entered into on 23.9.2019. The next 16 month, in October 2019 the RH failed and neglected to comply with 17 payment of spousal maintenance and the first instalment of RM70,000 to 18 the PW’s solicitors to be paid on or before 7.10.2019. His continued 19 refusal to pay compelled the PW to commence a bankruptcy proceedings 20 against him. In response the RH filed Enclosures 80 and 88 dated 21 4.2.2020 and 19.5.2020 respectively to vary the Consent Order. Both 22 these applications were dismissed by the Learned Judge on 12.8.2020. 23 The bankruptcy proceeding was withdrawn after the RH paid the full sum 24 that was owing. 25 26 [29] 4 months later, in December of the same year the RH again failed 27 and defaulted in payment of the maintenance to the PW and the PW was 28 once again forced to apply to this Court for leave to commence committal 29 proceedings against the RH. Leave was granted on 24.9.2021 and the 30 application for an order for committal was set down for hearing. Eventually 1 on 25.7.2022 the RH paid the outstanding maintenance amounting to 2 RM35,000 to purge his contempt. 3 4 [30] The pattern of default continued. The RH again failed to pay spousal 5 maintenance to the PW and continues to default until to date. On October 6 2023 the PW commenced a second bankruptcy to recover the outstanding 7 maintenance sum from September 2021 to October 2023. This has 8 resulted in the RH filing the instant application in encl 143 to reduce the 9 PW’s monthly maintenance from RM5000 to RM500 commencing 10 retrospectively from January 2023. 11 12 [31] The chronology narrated above evokes the finding that the RH has 13 repeatedly defaulted in complying with the terms of the Consent Order 14 which he himself had agreed to. This Court cannot help but agree with the 15 PW’s counsel that the RH has repeatedly and continuously acted in 16 contempt of the terms of the Consent Order. The RH needs to be 17 reminded of the clear warning given in the case of Wee Choo Keong v 18 MBF Holdings Bhd & Anor Appeal [1993] 3 CLJ 210 where the Federal 19 Court in a passage at p 212 and 213 held as follows: 20 21 “It is established law that a person against whom an order of Court has 22 been issued is duty bound to obey that order until it is set aside. It is not 23 open for him to decide for himself whether the order was wrongly issued 24 and therefore does not require obedience. His duty is one of obedience 25 until such time as the order may be set aside or varied. Any person who 26 fails to obey an order of Court runs the risk of being held in contempt 27 with all its attendant consequences. 28 It has not been seriously disputed and indeed we find that it is also 29 an established general rule of law that a party in contempt cannot 30 be heard further in the same proceedings for his own benefit 31 unless and until he has purged his contempt. The question which we 1 have to determine in these appeals is the ambit of that general rule. 2 … 3 In this regard, we are mindful of the competing public interest in a litigant 4 having a right to be heard. Although the right to eb heard is a 5 fundamental right vested in all litigants, that right however cannot be 6 taken as an absolute right. Where the litigant shows himself to have 7 little or no regard to an order issued against him, then he has to an 8 extent, forfeited his right to be heard or at least postponed that 9 right until he has suitably purged his contempt.” 10 11 [32] In the present case, the RH has acted and continues to act in 12 contempt of the Consent Order by failing and/or refusing to pay the 13 outstanding maintenance to the PW. He has not paid maintenance for a 14 period of 30 months commencing from September 2021 with the total 15 outstanding accumulated to the sum of RM150,000 at the time the 16 application was heard. 17 18 [33] Having taken into consideration the chronological events 19 surrounding this case it is the finding of this Court that the RH has 20 demonstrated a recalcitrant attitude throughout since executing the 21 Consent Order and this Court agreed with the learned counsel for the 22 PW’s contention that the RH should not be given the benefit of being heard 23 for his application to vary the terms until he has complied with his 24 obligations to pay the outstanding maintenance. 25 26 [34] In the interest of justice and in the event this Court is found to have 27 erred in that finding, this Court will move on to address the other issues 28 raised. 29 30 [35] This Court is inclined to agree with the PW’s observation that the 1 only reason the RH agreed to record the Consent Order was in order to 2 avoid a higher sum of monthly maintenance and the possibility of having 3 to share half of all the matrimonial assets with the PW had the case 4 proceeded to trial. In doing so he had more to gain in terms of the 5 matrimonial assets which the PW had agreed to forgo by agreeing to 6 accept a lesser sum of RM1,500,000 and a monthly maintenance of 7 RM5000. 8 9 [36] A careful examination of the chronological events gives rise to the 10 conclusion that the attitude of defaulting in payments were almost 11 instantaneous after the Consent Order was agreed by both parties. Only 12 after the PW had to go to the trouble of commencing bankruptcy and 13 committal proceeding did the RH pay up but then the cycle of default 14 would repeat itself with the same reasons and excuses. It is pertinent to 15 note that the RH’s application to vary the maintenance order had once 16 before been refused by the same Family Court in 2020 with similar 17 grounds. In the face of this second attempt, it is the respectful view of this 18 Court that the RH was contemptuous and was intent on defying the 19 Consent Order. 20 21 [37] In the circumstances of this case, bearing in mind that the RH 22 voluntarily and willingly entered into the Consent Order after having had 23 legal advice it is the considered opinion of this court that the said consent 24 order is binding and should not be disturbed. As a successful 25 entrepreneur, the RH cannot be said to be unaware of his obligations and 26 consequences of any breach of the terms of the Consent Order. Bearing 27 in mind the breach occurred so soon after the Consent Order was 28 recorded this Court is of the view that the RH must have known or ought 29 to have known of his financial capabilities to perform his obligations under 30 the Consent Order. I hold the view that the RH cannot be allowed to seek 1 to reopen the terms of the Consent Order at his whims and fancies. 2 3 [38] Guidance and support can be drawn from the High case of Lau Hui 4 Sing v Wong Chuo Yong [2008] 9 CLJ 232 where the Learned Judge 5 held that:- 6 7 “As a general rule, consent orders cannot be set aside varied or 8 discharged. Though, there are statutory exceptions to this rule in 9 matrimonial matters, it is incumbent on the court as a matter of public 10 policy to ensure that the issues were not re-litigated again and again and 11 in this case within less than two years after the consented divorce 12 petition was allowed. This is in line with the concept of ‘clean break’ 13 principles advocated in a number of cases (see Minton v Minton [1979] 14 1 All ER 79. 15 …. 16 As a general rule, consent order even in a divorce matter must be rarely 17 disturbed unless there are exceptional circumstances…” 18 19 [39] The matter before this Court is made more acute due to the fact that 20 the RH defaulted and breached the terms of the Consent Order especially 21 when it was so soon after it was executed. As admitted by the RH himself, 22 the terms of the Consent Order were read out in open court in the 23 presence of the parties and counsels and it was acknowledged that they 24 understood and voluntarily agreed to the same. 25 26 The RH’s Financial Standing 27 [40] One of the reasons cited by the RH in his Affidavit in Support to 28 support his claim of a material change was because his monthly income 29 from his companies have been reduced since 2021. The RH alleges that 30 he no longer receives any monthly income from Prominent Engineering 31 Sdn Bhd while Prominent Heights Sdn Bhd had reduced his monthly 1 income from RM10,000 to RM7000. Hence the RH’s main monthly income 2 which previously was more than RM10,000 had been significantly reduced 3 to only RM7000 with effect from 2021 until todate. 4 5 [41] Upon careful examination and after conducting a close scrutiny of 6 the financial statements enclosed and attached to the affidavits filed by 7 the RH, this Court took note that the RH is still the director in charge of 8 financial management of Prominent Heights and Prominent Power 9 Engineering Sdn Bhd, the same companies the RH alleged had reduced 10 his monthly income. It was further noted that he is also still the director in 11 charge of financial management of two other related companies i.e. 12 Mammoth Crane and Mammoth Lifts (M) Sdn Bhd. As the person in 13 charge of the financial management logic and reason dictates that the RH 14 has the power and the authority to manage the financial administration of 15 all these companies. This Court therefore finds that the RH’s purported 16 pay cut or reduction in income is not bona fide and a misleading statement 17 in all probability to avoid having to comply with making payments as per 18 the terms of the Consent Order. The PW’s contention that the reduction 19 in income is deliberate and self induced holds water as this purported pay 20 cut could not have coincidentally occurred in January 2021 which is two 21 years before the filing of the instant application. 22 23 [42] If at all it was true that the RH’s financial position was severely 24 affected by the reduction in income making him unable to pay the monthly 25 maintenance of RM5000 then surely common sense would have seen him 26 applying to vary the Consent Order in the year 2021 itself. This is more so 27 especially when the PW had commenced a committal proceeding against 28 him in August 2021 for the outstanding maintenance from February 2021 29 to August 2021. 30 [43] It is evident from the chronological events that the RH had not made 1 any application to vary the terms of the maintenance in the Consent Order 2 despite his claim that the reduction in income occurred in January 2021 3 and the PW’s committal proceeding against him was filed in August 2021. 4 It will be noted that the application in Encl 143 to vary Para (i) of the 5 Consent Order was only filed on 5.1.2023, which is after the Bankruptcy 6 Notice for the 2nd Bankruptcy Proceeding was served on him. Viewed in 7 its proper perspective, it is abundantly clear that there has been an 8 unprecedented inordinate delay in filing this application and no reasonable 9 explanation has been provided for this. 10 11 [44] The most probable conclusion to be drawn from the inordinate delay 12 in filing this application would have to be that the RH’s financial status was 13 never affected as he alleged. He merely never had the intention to comply 14 with the Consent Order and the only reason he made payments was 15 because he had no choice but to pay up the outstanding maintenance was 16 due to the imminent bankruptcy proceeding against him and because he 17 had to purge his contempt under Encl 116. This court cannot discount the 18 conclusion that this was a slick maneuver to avoid and/or delay the 19 bankruptcy proceeding and to deprive the PW of the monthly maintenance 20 which was a term agreed and consented to by the RH himself in the 21 Consent Order. 22 23 [45] To compound matters it is pertinent to note that while the RH bears 24 the responsibility for maintenance and all the expenses incurred by the 3 25 Children, those expenses are usually paid by credit card, which are settled 26 by the company. The children’s tuition expenses are also paid for by the 27 company. Therefore, the RH’s averments that he personally incurred 28 RM11,767.50 for his and the children’s living and other expenses as 29 shown in the table he provided at page 5 of his written submissions dated 1 1.3.2024 (Encl 150) are inaccurate and untrue. 2 3 [46] Having read through and examined the various statutory financial 4 reports of the companies exhibited by the RH, the allegations of the 5 companies’ poor financial performance and the RH’s consequent lack of 6 income from the companies do not appear to add up. 7 8 [47] The statutory financial statements for 2021 and 2022 of Prominent 9 Heights Sdn Bhd do not support the RH’s averments. Firstly it is evident 10 from the financial statement records that the total sum owing by the 11 company to director have significantly reduced form RM329,237 (in 2021) 12 to RM56,004 (in 2022). Elementary logic dictates that it is very likely that 13 monies had been returned to its directors and that the money received by 14 the RH from Prominent Heights Sdn Bhd is not solely based on salary or 15 director’s remuneration only. Secondly, the RH’s explanation that the 16 return of sums owing to director by Prominent Heights Sdn Bhd was given 17 to the other director Ooi Lee Wei instead of him is unsurprisingly 18 unsubstantiated by any supporting documentary evidence whatsoever. 19 20 [48] It is further noted that expenses allocated for entertainment has 21 increased from RM93,300 in year 2021 to an exponential amount of 22 RM119,467 in the next year, 2022. 23 24 [49] Turning to the company Prominent Engineering Sdn Bhd, the 25 statutory financial statement for 2022 (Schedule 1) in Exh ELL-3 shows 26 that the salary expenses incurred by the company had significantly 27 increased from RM10,043 as at 30.4.2021 to RM70,903 as at 30.4.2022. 28 29 [50] As for Mammoth Crane, based on the statutory financial statement 1 for 2022 (Schedule 2) in Exhibit ELL-6, shows that the expenses for 2 salary, bonus and allowance had recorded an exponential increase from 3 RM50,860 as at 30.9.2021 to RM140,057 as at 30.9.2022 and the 4 overtime expenses had increased form RM4,126 to RM36,552 in the 5 space of one year. 6 7 [51] The RH has not provided any supporting documentary evidence to 8 substantiate his excuse that the increases were due to their operations 9 having been affected by the MCO. The failure to do so strongly suggests 10 that the RH is not facing any financial constraints as alleged. The MCO 11 that allegedly affected the group of companies under the management of 12 the RH did not seem to affect the financial flow between the related 13 companies. All the statutory financial statements of these 4 companies 14 showed various transactions transitioning between them. The obvious link 15 here is the RH who is a common director and shareholder in all these 16 companies. Such suspicious transactions would arouse questions 17 especially when it is seen that the amount owing to related parties by 18 Mammoth Crane had increased form RM1,817,352 to RM2,396,279 in a 19 matter of one year from September 2021 to September 2022. 20 21 [52] In any event merely by exhibiting the financial performance of the 22 companies named by the RH in the exhibits attached to his affidavit in 23 support are somewhat irrelevant. This was the conclusion of the previous 24 Learned Judge in coming to her decision for Encls 80 and 88 (see Chua 25 Suzen (P) v Eng Lai Leong [2020] 1 LNS 1794 where her Ladyship 26 Hayatul Akmal Abdul Aziz J held as follows: 27 28 “In deciding his financial position, RH had elected to argue on the 29 purported financial difficulties of companies that he owns and/or 30 manages when these companies are neither part of nor parties to this 1 proceeding. RH seem to have lost sight of a company’s basic tenet 2 according to the Company’s Act 1965 or Companies Act 2016. A 3 corporate body upon statutory registration attains a legal status separate 4 from its members and directors. It has a distinct legal personality and 5 identity of its own. Assets and liabilities of companies are the companies 6 and not that of the directors or shareholders. This court is not concerned 7 with RH’s companies’ financial health, but for this proceeding. It’s the 8 financial position of the RH that matters as he is a party to this 9 proceeding…” 10 11 [53] This Court has no reason to disagree with the position taken by Her 12 Ladyship above. As rightly pointed out the financial health of the 13 companies that the RH owns and/or manages is immaterial in this 14 proceeding and does not directly reflect the financial standing of the RH. 15 Hence the RH’s assertion that he is unable to afford spousal maintenance 16 is not credible. 17 18 [54] It transpired that at the material time when the RH claimed that he 19 did not have the means to provide RM5000 to the PW as her monthly 20 maintenance and was in default of the payment of RM1.5 million to the 21 PW, he could manage to purchase a BMW car. It has not been disputed 22 that the purchase was made at around the same time after Encls 80 and 23 88 were dismissed by the High Court on 12.8.2020. Therefore, the RH’s 24 excuse that the MCO had adversely affected the group of companies that 25 he was managing could not be the truth. Even if the RH were to claim that 26 the BMW was ‘only RM430,00’, that in the considered opinion of this Court 27 was not a small sum to pay for a car. Furthermore, there is no evidence 28 forthcoming to proof that the car did indeed cost ‘only RM430,000.’ 29 30 [55] Furthermore, it is significant to bear in mind that pursuant to the 1 Consent Order, the RH has retained ownership of 3 pieces of land in 2 Mukim Kapar, Klang as well as an office unit in Centro Klang and a semi- 3 detached double storey house in Shah Alam, Selangor. Although the RH 4 has alleged that all these properties have been charged to UOB Bank, he 5 has not provided any documentary evidence to show all the 5 properties 6 have been charged to any bank. Over and above that, this Court finds that 7 the RH has provided no evidence to substantiate his averment that he is 8 receiving rental of RM4,819.00 only from the property located in Shah 9 Alam. 10 11 Full and frank disclosure? 12 [56] It has not escaped this Court’s attention that the RH has not been 13 altogether candid or forthcoming about his personal financial status. Save 14 and except for the salary slips form the companies which he was in control 15 of its finances, and the tax filing form for year 2022, the RH has not 16 voluntarily provided any evidence to disclose his personal financial status. 17 He has not provided his personal bank account, credit card statements 18 and his other assets in any of his affidavits to reflect the alleged 19 deterioration in his personal financial position. As the applicant seeking 20 the court’s intervention to vary an order the RH is mandated to make a full 21 disclosure of property and income details as is required by Rule 63 of the 22 Divorce and Matrimonial Proceedings Rules (DMPR) 1980 which sets out 23 as follows: 24 25 “63. Evidence on application for variation order 26

An application for a variation order shall be supported by an affidavit 27 by the application setting out full particulars of his property and 28 income and grounds on which the application is made.” 29 [57] The RH’s application for variation is flawed for non-compliance of 1 the above provision of the law which expressly requires him to set out full 2 particulars of his property and income. 3 4 [58] Reference is made to the case of Lau Hui Sing where the court held 5 at p. 235 as follows:- 6 7 “…Further, in making this application, the ex-husband had only sated 8 his income but has not disclosed his assets which are a material 9 consideration when dealing with such an application. In fact, I will go to 10 the extent of saying that when an application to disturb a consent 11 order is made and thereby to re-open old wounds, and if the ex- 12 husband does not disclose material evidence and circumstances 13 for making the application, the court must not take it lightly, if it is 14 seen to be oppressive against the respondent. It is an abuse of 15 process of court, serious enough to warrant a contempt proceeding 16 against the ex-husband, on the court’s own motion, to instill discipline 17 after an order for dissolution has been granted and duly accepted, and 18 when the ex-husband attempts, to undermine the dignity of the court and 19 court proceedings.” 20 … 21

(iii) I find the ex-husband has not disclosed his assets, movable and 22 immovable and this material non-disclosure warrants the court to 23 dismiss the application in limine.

(iv) After reading the affidavits and the previous consent order, I take the 25 view that the ex-husband’s application is not only oppressive 26 against the ex-wife, but is an abuse of process and warrants the 27 court to initiate contempt proceeding on its own motion as such 28 non-disclosure of assets as well as the application without 29 justifiable reasons attempts to undermine the dignity of the court 30 and court proceedings.”. 31 32 [59] Since the RH has not sufficiently disclosed full particulars of his 1 financial standing, this application has scant hopes of success. 2 Nevertheless, regardless of the non-disclosures, in the interest of 3 completeness this Court will address the other issues raised in this 4 variation application, that is whether there was material change in 5 circumstances. 6 7 [60] The RH has advanced the reason that he is unable to pay the PW 8 spousal maintenance as he is currently paying for expenses for himself 9 and the 3 children of the marriage with whom he was given custody of. 10 The RH cannot use this reason to exempt himself from fulfilling his 11 financial obligation to the PW. He has to deal fairly in prioritizing his 12 responsibilities. 13 14 [61] The RH has provided the breakdown of his monthly expenses in 15 tabulated form which is reproduced below for ease of reference: 16 17 No. Type of monthly expenses

Amount Education fees for Sean

RM1,870.83 Education fees for Clive

RM355.00 Medical insurances’ premium for the Respondent and his three children

RM1,276.67 Living expenses for the Respondent and his children (RM8/meal x 3 meals x 30 days x 4 pax)

RM2,880.00 Transport expenses for the Respondent, Sean and Clive

RM700.00 Living house installment RM4,685.00 TOTAL RM11,767.50 18 [62] In my assessment the RH has failed to substantiate most of his list 1 of financial commitments with any credible evidence. The expenses 2 presented are arbitrary made more complicated by the lack of credible 3 documentation such as receipts and invoices to substantiate the amount 4 said to have been spent. Apart from receipts shown for the payment of 5 RM22,460.00 dated 8.8.2023 (ELL-9, Encl 146) for the 2nd Child’s course 6 fees in Asia Pacific University Sdn Bhd and (ELL-10, Encl 146) tuition fees 7 of about RM355 per month for the 3rd Child the rest of the expenses have 8 not been credibly proven or explained. It is noted that the sum of 9 RM22,460.00 is not a recurring monthly sum due. It was a one off payment 10 for the 2nd son’s one year course. Given this context the RH’s assertions 11 that he was unable to afford to pay the wife’s maintenance is untenable 12 and lacked credibility. 13 14 [63] Regardless of the above, the RH should not find excuses to extract 15 himself from his agreement to pay the PW the agreed maintenance sum. 16 As father to the 3 children the RH is under the legal obligation to maintain 17 his Children as provided in section 92 of the Law Reform Act, 1976. He 18 had willingly agreed pursuant to Paragraph (k) of the Consent Order dated 19 23.10.2019 that he would bear all expenses, education, medical, optical 20 and dental costs of the 3 children until they complete their tertiary 21 education. Using the reason that the Children’s expenses have increased 22 over the years cannot be a reason to vary the order as he would have 23 taken into account and considered all of the expenses before agreeing for 24 the Consent Order to be recorded. As a reasonable businessman holding 25 the authoritative position of director and shareholder of numerous 26 successful companies the RH was in a position to assess and gauge his 27 financial situation for the time when he agreed to enter into the Consent 28 Order and the future expenses that are reasonably foreseeable. It is not 29 unforeseeable that the Children will grow up and their expenses would 30 increase. But his legal duty to his former spouse cannot be neglected as 1 well. The RH owes a duty to both the PW and the Children and neither 2 can be compromised on the fulfilment of one for the other. It is unfair and 3 inequitable to pick and choose who he is willing to maintain and who he is 4 not. Given this context the RH’s assertion that he has to pay for the 5 Children’s expenses is an afterthought and without merits. 6 7 [64] It has been pertinently pointed out by the PW that despite the RH’s 8 agreement to bear all expenses in relation to the Children, he had 9 instructed the eldest child to apply for the education loan from PTPTN for 10 her diploma education. The PW has alleged that the eldest child had been 11 forced to leave the matrimonial home sometime in May 2023 as a result 12 of being chased out and physically abused. This complaint is credibly 13 supported by a Medical Report from Hospital Shah Alam whereby the 14 Child was diagnosed with multiple abrasion wounds and bruises over her 15 face, upper and lower limbs. The PW now has the additional burden of 16 paying for the eldest child’s living and education expenses, while the RH 17 has not been paying maintenance to her nor for the eldest child. 18 19 [65] I have taken note of the fact that the proposed variation by the RH 20 is for a ruthless 90% reduction of the PW’s maintenance form RM5000 21 per month to RM500 and to rub salt into the wound, to commence 22 retrospectively from January 2023. The RH has argued that the PW is 23 working and does not have to rely on the monthly maintenance to sustain 24 herself. However, the RH has failed to realize that it was his failure to pay 25 maintenance to the PW that left her with no other choice but to work to 26 sustain herself. Hence the fact that the PW is working should not be used 27 as an excuse for the RH to be discharged form his duty to pay the 28 defaulted maintenance and the ongoing maintenance as agreed at the 29 time the Consent Order was agreed. In any event the consent to pay 30 RM5000 to the PW was entered into with full knowledge that the wife was 1 working. The quantum of RM5000 was the sum agreed taking into 2 consideration the hard work, loyal service and contribution the PW gave 3 to the companies as well as to their family. The duration of 16 years of 4 their marriage was also a significant contributing factor. It remains 5 undisputed that it was the PW who assumed the primary responsibility of 6 caring for the family and attending to their needs. 7 8 [66] The response to that loyalty and dedication was to callously remove 9 her as company director of Prominent Heights Sdn Bhd and Prominent 10 Engineering Sdn Bhd. This Court finds resonance with the PW’s lament 11 that it cannot be right to now accept the RH’s proposal for a drastic 90% 12 reduction to the monthly maintenance leaving her with only RM500 per 13 month as this is oppressive and unequitable to the PW. It is especially 14 made more jarring that the RH is seeking for the reduction to commence 15 retrospectively from January 2023 which includes the maintenance which 16 he has already defaulted. This Court must ensure that the RH should not 17 be allowed to disregard the Consent Order and be allowed to enjoy the 18 benefit of his default. To allow such a relief would amount to giving the RH 19 an unequitable discount retrospectively on the outstanding maintenance 20 from January 2023 to date, which the PW was supposed to have been 21 entitled to and received but for the RH’s default in payment. 22 23 [67] A close perusal of the chronology of events pertaining to this case 24 shows that the RH has habitually demonstrated the same tendency in 25 making no effort to pay the outstanding maintenance until prodded to do 26 so through contempt and/or bankruptcy proceedings. This is but a reactive 27 measure prompted by the filing of the bankruptcy proceedings rather than 28 a genuine proactive effort to address his financial obligations. Should the 29 RH succeed in this application it would mean that the total outstanding 30 maintenance owing by the RH would be reduced from RM130,000 to 1 RM85,000 only. It would also effectively penalize the PW who through no 2 fault of her own cannot continue or commence bankruptcy proceedings to 3 retrieve the sum of maintenance that are rightfully hers. 4 5 [68] The RH had given his covenant at the time he agreed to enter into 6 the Consent Order dated 23.9.2019 that he would pay the sum of RM5000 7 per month to the PW. This Court is of the view that the RH’s averment that 8 he had “tried his best” to comply with the Consent Order is untrue and a 9 bare allegation. It is not sufficient for him to turn around now to say that 10 he “tried his best.” That phrase was never an agreed term of the Consent 11 Order. Instead the Court found evidence that the RH has been obdurate 12 in his refusal to carry out his part of the bargain. The RH had not shown 13 any proof that he had tried his best to comply with Paragraph 1 of the 14 Consent Order. 15 16 The Health of the RH 17 [69] The RH’s averment regarding his health was to my mind not a factor 18 I would consider as a material change in circumstances to justify a 19 reduction in his monthly spousal maintenance obligation to the PW. The 20 Medical Report dated 27.12.2023 states that the RH is suffering from neck 21 pain and radiculopathy a medical term for “pinched nerves”. MRI scan 22 report showed C6/7 disc herniation with nerve compression. The RH 23 claims that this medical condition may affect his ability to work. This 24 assertion is however not supported by the said medical report, nor has the 25 RH produced any other document to support that contention. There is an 26 absence of any supporting medical opinion to verify his assertions of a 27 causal link between his health and future inability to continue working. 28 Without such evidence this Court finds that his health condition is not a 29 sufficient justification to amount to a change in circumstances that is 1 material. 2 3 Conclusion 4 [70] Having given due regard to the submissions of parties and after 5 careful scrutiny of all the evidence presented, this Court is satisfied and 6 finds that the RH has failed to prove on a balance of probabilities that 7 there had been a material change in circumstances which would warrant 8 a variation of the Consent Order dated 23.9.2019. 9 10 [71] This application is therefore dismissed with costs. 11 12 Dated 6 February 2025. 13 14 15 16 (JULIE LACK) 17 Judge 18 High Court of Malaya 19 Shah Alam, Selangor Darul Ehsan 20 21 22 23 24 25 26 27 28 29 30 Counsel 1 For the Petitioner : 2 Goh Loh Boon with Wong Yee Fung 3 (MESSRS. W H KAN) 4 5 For the Respondent : 6 Low Eu Thuan with Ang Jinn Fenn 7 (MESSRS. CHEONG WAI MENG & VAN BUERIE) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30