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2014 MarsdenLR 1375
COURT OF APPEAL PUTRAJAYA
PAULINE CHAI SIEW PHIN – Appellant
Versus
KHOO KAY PENG – Respondent
[Civil Appeal No: W-02(IM)-2764-12-2013]
The Malaysian court retains jurisdiction over divorce proceedings despite concurrent actions in England, necessitating a full trial to address complex jurisdictional and domicile disputes.
Headnote:(A) The Law Reform (Marriage and Divorce) Act 1976 - Sections 53 and 106(1) - The court addressed the jurisdiction of the Malaysian High Court and its authority to adjudicate divorce proceedings amidst concurrent proceedings in the English courts. The central issues revolved around the appropriateness of the Malaysian forum compared to the English forum, navigating through challenges of jurisdiction. The court applied the 'forum non conveniens' test as seen in established precedents, ultimately deciding that the Malaysian court was not a 'clearly inappropriate forum.' The findings underscored the significance of considering the parties' domicile and the need for a full trial to resolve jurisdiction and domicile disputes. The final determination resulted in the dismissal of the wife's application to stay Malaysian proceedings and the remittance of the husband's divorce petition for a comprehensive hearing. (Paras 11, 27, 38, 55)
Facts of the case:
An appeal concerning divorce proceedings initiated by the wife in England, with concurrent applications made by the husband in Malaysia, raising questions about jurisdiction and the suitability of the respective courts to handle the separation issues. The court observed past attempts at reconciliation and underlying disputes regarding domicile and the nature of the matrimonial home.
Findings of Court:
The court agreed that a full trial was essential to unpack the disputes regarding jurisdiction and domicile instead of resolving them through affidavits, as several factual disputes were intrinsic to the applications made.
Issues: The main questions pertained to the jurisdictional validity of the Malaysian court, the applicability of the divorce laws, and the determination of appropriate domicile for the parties.
Ratio Decidendi: The court elucidated that both jurisdictions hold authority; however, the Malaysian court was not rendered as a clearly inappropriate forum, establishing that maintaining the integrity of proceedings requires a complete trial where evidence could be thoroughly examined.
Result: Enclosure 6 appeal dismissed; the finding on jurisdiction and domicile set aside; enclosure 1 appeal allowed with a remittance for trial before a different judge.
| Table of Content |
|---|
| 1. introduction of divorce proceedings (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. stay application based on forum non conveniens (Para 10 , 11 , 12) |
| 3. finding of irretrievable breakdown of marriage (Para 13 , 14) |
| 4. historical background of the parties (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 5. tests for appropriate forum (Para 27 , 28 , 29 , 30 , 31) |
[1] The appellant (wife) instituted divorce proceedings between the parties by filing in the English High Court on 14 February 2013 and on 18 February 2013 the wife obtained an ex parte non-molestation and occupation against the husband allowing her sole occupation of Rossway House and preventing the husband from going 50 metres of Rossway House.
[2] The respondent (husband) was served with the English Petition on 18 February 2013 at 6pm. On 25 February 2013 the wife amended the petition and this was served on 27 February 2013. The husband lodged an acknowledgment of service to the petition on 27 February 2013 and contests jurisdiction of the English High Court. On the same day, the husband files encl 1 in the Malaysian High Court on the same day.
[3] Enclosure 1 is the husband's ex parte application for the following terms:
(i) That the husband be exempted from the requirement for reference to a conciliatory body under s 106(1) of The Law Reform (Marriage and Divorce) Act 1976 (LRA)
(ii) That the husband be at liberty to petition for a divorce under s 53 of the Act without first having to refer the matrimonial difficulty to a conciliatory body.
[4] The wife became aware of encl 1 when she was served an acknowledgment of service to the amended petition on 4 March 2013. However due to the inability to extract information of encl 1 and only after obtaining all the relevant information, the wife on 3 May 2013 filed in encl 6 which is an application for all the proceedings in encl 1 be stayed pending the hearing and disposal of Petition for Divorce Case No FD13D00747 by the High Court of Justice (Family Division) of England.
[5] The English High Court on 5 March 2013 directed that the issue of jurisdiction of the courts of England be tried on 8 July 2014 to 10 July 2014 in view of the husband's application to strike out the amended petition. However in view of the consent from both sides, the jurisdiction issue was then adjourned to be heard in October 2014.
[6] On 24 June 2013, the wife applied for leave to issue a second petition which the husband objected to. This application was part heard before Mr Justice Coleridge on 4 July 2013 and scheduled to resume on 30 April 2014.
[7] On 8 November 2013, the High Court of Kuala Lumpur heard both encls 1 and 6 together and on 11 December 2013 at 11 am the learned judge dismissed encl 6 and allowed encl 1 on terms therein. The husband at 12.27pm on the same day filed in a petition for divorce in the High Court of Malaya.
[8] The wife applied for stay of the learned judge's decision of 11 December 2013 and was rejected by the High Court on 22 January 2014 resulting to an appeal to this Court which we on 11 March 2014 dismissed the same on the ground that no special circumstances has been shown to us by the wife.
[9] Before us now is the appeal proper against the decision of the High Court on encls 6 and 1.
High Court Decision And Grounds
Enclosure 6
[10] To recap, the wife in this application sought to stay encl 1 which is the husband's attempt to start divorce proceedings in the High Court of Malaya so that the English proceedings for divorce which was filed earlier than encl 1 can be disposed off first. It is also the contention of the wife that encl 1 is an abuse of the process of Court aimed to undermine the proceedings in England.
[11] The learned judge in dealing with encl 1 applied what we call the ' forum non conveniens' test as expounded in Spiliada Maritime Corporation v. Cansulex Ltd [1987] 1 AC 460 and has been applied in Malaysia by the Supreme Court in American Express Bank Ltd v. Mohamad Toufic Al-Oz
