Read the full judgment text of FCMC 2978/2005 on BabelCite. This Family Court judgment was delivered on 4 July 2013 before Deputy District Judge G. Own.
Matrimonial Causes – Ancillary Relief – Enforcement of Judgment – Sale of Matrimonial Property – Stay of Completion of Auction – Irregularities in Auction Process – Stay of Execution – Injunction – Costs – District Court. The Respondent filed a Summons seeking a stay of completion of a sale by public auction conducted on 5 June 2013 in respect of the Canton Road property. This property had been adjudged to be sold by way of public auction following the trial of ancillary relief in 2011. The Court of Appeal had previously varied the ratio of sharing of matrimonial assets from 70:30 to 60:40 but expressly stated that all other orders and directions on implementation including the conduct and process of sale granted by this Court should remain unchanged. The Respondent argued that there was a prima facie irregularity in the process of the auction as it was not conducted reasonably and to the best interest of the beneficiaries. Specifically, the Respondent contended that the downward adjustment of the upset auction price from 3.90 million to 2.84 million was done without considering the then current market value and deprived interested bidders from participation. The Petitioner submitted that the sale was carried out by the Petitioner as directed by the Court Judgment and the Court of Appeal. The Court held that the mode of sale by way of auction itself posed no irregularity as it was directed by the Court Judgment. The Court found that the downward adjustment of the initial upset auction price was not uncommon in auction sales and the Respondent had made his own decision not to register for bidding at the initial price. The Court noted that the Privy Council case of Tse Kwong Lam v. Wong Chit Sen & others [1983] 3 All E.R. 54 concerning mortgagee sale did not fit the facts of the present case as the power of sale derived from the Court Judgment. The Court further held that the Respondent had not demonstrated by evidence what reliefs he was entitled to or would be seeking for had he been successful in obtaining a stay. The Court found that any stay of completion would lead the Respondent to nowhere but would only unjustifiably further delay the Petitioner from receiving the fruits of the Judgment. The Court dismissed the Respondent’s Summons and ordered the Respondent to pay the costs of and occasioned by the Summons, to be taxed if not agreed. The Court also considered whether the application was akin to a stay of execution or an injunction and found no basis for granting such equitable remedies as the Respondent had not passed the requisite threshold of showing damages would not be sufficient compensation. The Court considered the procedural grounds submitted by Counsel that the present application being akin to a stay of execution application or an injunction application. With due respect to Counsel, the Court did not agree. Given the fact the challenge focused upon irregularities allegedly to have occurred during the process of auction, there is no issue of the mode of auction itself which is the actual execution to be stayed. As to the aspect of an injunction, it falls well apart since there is no basis for this Court to exercise its discretion to grant such equitable remedies. There is also no question of any balance of convenience where a stay of completion ought to be granted.
Legal issues: Irregularities in auction process · Nature of application (Stay vs Injunction)
Outcome: Respondent’s Summons dismissed
Cites 1 case