Lee Sook Cheng v Ng Meng Hai (BA-33-356-07/2021)

This is an application by the respondent (“husband”) to rescind a term relating to maintenance payments agreed to between him and the petitioner (“wife”) in a court order recorded in matrimonial proceedings. The application is made under section 83 of the Law Reform Marriage and Divorce Act 1976. Background Facts 2. The husband and wife were married for more than 30 years.

In 2018, the husband after reaching the age of 55 fully withdrew his EPF savings in the sum of RM1,026,419.48 and deposited it into his HSBC savings account. Subsequently, he transferred a portion of the monies amounting to RM715,000.00 to the wife.

About 3 years later, in April 2021, there was an exchange of correspondence between the parties solicitors to negotiate the terms and conditions for an amicable separation. The parties reached an agreement and consequently in July 2021, the wife filed a petition for judicial separation.

At the material time, the husband was 59 years of age and a director and a 30% shareholder in a company called Vogue Point Sdn Bhd.

The parties recorded the terms of their agreement in a court order on 28 October 2021. The order dealt with the husband’s maintenance obligations and the division of matrimonial assets. In respect of maintenance, the husband was directed as follows: “Responden suami harus secara berterusan membayar jumlah sebanyak RM8,000.00 yang merupakan jumlah nafkah tersebut pada hari pertama setiap bulan (1st day of each month) melainkan jumlah nafkah tersebut diubah (varied) dengan Perintah Mahkamah dan/atau sekiranya responden suami meninggal dunia sebelum pempetisyen isteri.”

At the material time, the husband was 59 years of age and a director and a 30% shareholder in a company called Vogue Point Sdn Bhd.

Some 10 months later, on 29 July 2022, the husband made the present application to rescind his maintenance obligation under the court order. It is supported by three affidavits. The wife filed two affidavits to oppose it.

The parties are unable to agree whether the court order recorded on 28 October 2021 is a consent order or otherwise. Husband’s submission 10. The husband argues that the court order is not a consent order. In his written submission he explains his position as follows: “We humbly bring My Lady’s attention to the nature and character of the correspondences that took place between the solicitors prior to filling of the judicial separation petition. The issues discussed and agreed were in relation to (i) both parties agreeing to file the judicial separation petition; (ii) the terms of the petition mainly in respect of matters of petitioner wife maintenance of RM8,000.00 monthly, children of the marriage, the selling of the matrimonial property upon departure of their youngest from home and (iii) other items like, petitioner wife stakes no claim to respondent husband’s EPF savings, waiver of claims against each other assets and properties and costs of the petition. It was on this agreed premise that the judicial separation petition was to be filed and accordingly to obtain an orders as prayed. It is submitted here that a consent order was not the intention that was agreed upon by the respondent husband.”

The husband next contends that he is seeking to rescind the term in the court order as there has been a material change in the circumstances as he had to retire on the 4 August 2022 when he attained the age of 60. He says that this is the mandatory retirement age for directors in Vogue Points Sdn Bhd and that he does not wish to seek any further employment as he wants to enjoy his retirement. He submits that without a fixed income he lacks the financial capacity to continue to pay monthly maintenance of RM8,000.00 a month to his wife.

Additionally, the husband contends that the wife would not be placed in any financial difficulty if she does not receive any future maintenance payments as she already has RM715,000.00 of his EPF monies and is due to receive her 50% share from the proceeds of sale of the matrimonial home. Wife’s submissions 13. On the contrary, the wife contends that it is a consent order as the petition was filed and the court order recorded only after the parties had reached an agreement on all the terms. She says the correspondence between the parties when negotiating an amicable judicial separation demonstrates this.

She next contends that the consent order was recorded on the mutual understanding that there would be no variation effected to the maintenance order on the ground of any reduction in the husband’s monthly salary or his retirement. She points out that the husband had through his solicitor’s letter dated 22 February 2021 proposed that his obligation to pay monthly maintenance be separated into pre-retirement period and post-retirement period but this was flatly rejected by her solicitors letter dated 28 April 2021 as follows: “(b) the said monthly maintenance sum shall not be varied in the event your client (RH) faces salary reduction at any instance, as it is well within your client’s knowledge that your client is not wholly dependable on his monthly salary but also on other investments that he has made in Malaysia and Singapore. Hence, it is our client’s averment that your client is able to pay the said monthly maintenance sum in any event, including but not limited to any monthly salary reduction.”

The wife further contends that the consent order was only recorded after the husband had replied through his solicitor’s letter dated 6 May 2021 “our client is in principle agreeable to paragraph (b) of your letter”. She argues that it is thus not open to the husband to seek a variation premised on his retirement.

The wife lastly contends that the application must be dismissed as there has been no full and frank disclosure of the husband’s income and assets as required by rule 63(1) of the Divorce and Matrimonial Proceedings Rules 1980. Whether maintenance order should be rescinded 17. I begin with the issue of whether the court order recorded on 28 October 2021 is a consent order. It is true that the order as drawn up does not expressly state it is a consent order.

An examination of the exchanges of correspondence between the parties leading up to the recording of the court order shows that there was an impasse between them as to whether the maintenance of RM8,000.00 proposed by the husband could be varied subsequently in view of his imminent retirement and consequent reduction in his monthly salary. The wife was adamant that variation could not be sought on this ground.

It is fundamental to note that the husband had via his solicitor’s letter dated 6 May 2021 (at [15]) stated that he was agreeable to the wife’s conditions provided that she would not make any further claims claim on his EPF savings and shall not make a claim against his other assets and properties accrued during the marriage. It will be helpful if the letter is reproduced in its entirety: “We refer to the above matters and to your letter dated 28.04.2021

We have instructions to reply that our client is in principal agreeable to paragraphs (a), (b) and (k) of your letter. Except for paragraphs (c) to (j) of your letter, our client denies any submission of acceptance to the statement stated therein. Nevertheless, our client maintains his position that he does not wish to stake any claim in the said sum.

We therefore summarize the following matters which are agreed: Judicial separation a. Parties to file a joint judicial separation pursuant to section 64 of the law reform (Marriage and Divorce Act 1976) on grund that the marriage had been irretrievable broken down due to irreconcilable differences. Maintenance b. Our client to pay the monthly maintenance RM7,000.00 and an additional RM1,000.00 for rental/housing allowing totalling RM8,000.00 (hereinafter referred to as “the said monthly maintenance sum”) and such sum is to be paid by the 1st day of each calendar month into the bank account designated by your client. c. the said monthly maintenance sum shall be paid to your client until the said monthly maintenance sum is varied by a court order and/or in the event our client pre-deceased your client. Children of the marriage e. our client shall within the first month of the youngest child of the marriage (Ng Shu Li, Sara) leaving the matrimonial property take the necessary steps to engage a real estate & property agent for the purposes of placing the matrimonial property into the market for sale and the proceeds from the successful sale of the matrimonial property shall be divided equally between both parties after deduction of expenses such as but not limited to agent’s fee, legal fee, stamp duties and other statutory fees payable. f. parties further agrees that in the event of the parties does not execute the necessary documents in respects of the sale of the matrimonial property such as party shall be solely responsible for all penalty, costs, late interests and etc. Other terms & conditions g. your client will not claim any further sums from our clients’ EPF savings. h. parties agree to waive claim against each other to all other assets and properties accrued during the marriage. i. each party to bear their respective costs for the purpose of filing this judicial separation.

All other terms agreed shall accordingly be reflected in the draft petition unless expressly stated otherwise. Kindly take your clients instructions accordingly and forward to us the said draft petition for our perusal.

In the meantime, our client reserves is right to make any further changes if deemed necessary.”

It is evident from the husband’s letter that he was agreeable to the wife’s conditions (at [15 and19]). It was only after he had expressed his acceptance of the wife’s conditions, the parties proceeded to record the court order. It was clearly intended to be a consent order.

Section 83 of the Law Reform Marriage and Divorce Act provides that the court may at any time and from time to time, vary or rescind any subsisting order for maintenance where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

The question then arises, whether there has been a material change in the circumstances. The circumstances in question here must be thus those prevailing at the time the consent order was entered into. The onus is on the husband to show, as the party seeking to rescind the maintenance order, the material changes relating to those circumstances.

The husband says there has been a material change in his financial circumstances by reason of his retirement. He seems to suggest that he only agreed to pay maintenance of RM8,000.00 per month as at the time of the consent order he was still working. It is critical to note that at the time the parties were negotiating the consent order the husband already knew of the retirement age in the company and his wife’s position that no variation could be sought on the basis of his retirement. As such the husband could not have been relying or depending on any post retirement income from the company to meet his maintenance obligations to his wife. It was under these circumstances that he agreed to record the consent order.

In the circumstances, his retirement cannot constitute a material change in the circumstances that warrants his maintenance obligation under the court order to be rescinded.

There is another reason why this application must fail. The husband’s application is premised on his loss of income due to the company’s policy on mandatory retirement. If indeed this is the company policy, it does not explain how the current-serving director, Lionel Koh Peng continues to serve in the company despite turning 60 in February 2022. The husband has not proffered any explanation for this. This leads me to conclude that the application is made to frustrate the consent order.

For the reasons given, the application is dismissed. Dated: 28 June 2023 (S.M KOMATHY SUPPIAH) Judge High Court of Malaya Shah Alam Date of Decision : 28 June 2023 Solicitors: For the Petitioner: Kuwaljit Kaur a/p Ms. Sodhi, [Messrs Peters Chambers] For the Defendant: Farrandy Iskandar bin Norshahid, [Messrs