Anita Carolyn Francis

[2022] MLRHU 1939 v. Veeramohan Dorairaja pg 1

ANITA CAROLYN FRANCIS

v.
VEERAMOHAN DORAIRAJA

High Court Malaya, Shah Alam

S M Komathy Suppiah J
[Divorce Petition No: BA-33-280-04/2018]
21 September 2022

Case(s) referred to:

Ansah v. Ansah [1977] Fam 138 (refd)
Harris v. Harris [2001] Fam 502 (refd)
Hong Kwi Seong v. Ganad Media Sdn Bhd [2013] 3 MLRA 631; [2013] 2 MLJ
251; [2012] 8 CLJ 667; [2012] 6 AMR 221 (refd)
Hong Leong Bank Bhd v. Phung Tze Thiam John Phung [2008] 1 MLRA 538;
[2008] 2 MLJ 785; [2008] 4 CLJ 742 (refd)
Lee Lay Ling v. Goh Kim Nam (Cheah Pei Ching, Co Respondent) [2013]
MLRHU 1350; [2014] 8 MLJ 805 (refd)
Leow Wei Pin v. Meyappa Chettiar [1959] 1 MLRH 486; [1959] 1 MLJ 265 (refd)
Messrs Hisham, Sobri & Kadir v. Kedah Utara Development Sdn Bhd & Anor
[1988] 1 MLRH 471; [1988] 2 MLJ 239; [1988] 2 CLJ (Rep) 5 (refd)
Mok Kah Hung v. Zheng Zhuan Yao [2016] 3 SLR 1 (refd)
PJ Holdings Inc v. Ariel Singapore Pte Ltd [2009] 3 SLR(R) 582 (refd)

Legislation referred to:

Debtors Act 1957, s 4
Rules Of Court 2012, O 45 r 5(1)(a), O 48 r 1(2), O 52 r 3(2)

Counsel:
For the petitioner: R Hanita Ramachandran; M/s Neeko

[Order accordingly.]

JUDGMENT

S M Komathy Suppiah J:

The Application

[1] The marriage between the petitioner wife and respondent husband was
dissolved by mutual consent on 21 June 2019. The parties also entered into a
consent order in respect of ancillary matters arising out of the divorce, which
was subsequently varied on 26 February 2021. I will for convenience refer to
them as "the husband" and "the wife."

[2] Pursuant to the consent and variation order, the husband was required,
among others, to:
 Anita Carolyn Francis
pg 2 v. Veeramohan Dorairaja [2022] MLRHU 1939

a. Pay child maintenance of RM1,000.00 per month

b. Pay the arrears of child maintenance in the sum of RM14,000.00

within one week from the sale of the matrimonial home; and

c. To settle the car loan for vehicle bearing registration no WUY 4697
and any traffic summons within seven (7) days from the date of Order.

[3] The husband defaulted and this prompted the wife on 7 April 2022 to file
the present application for leave to commence committal proceedings against
him on account of his failure or refusal to pay:

a. child maintenance from January 2020. The amount of default stated

in the application is RM45,900.00;

b. child maintenance arrears notwithstanding the sale of the

matrimonial home; and

c. the car loan.

[4] I granted leave in respect of the breaches complained of in (b) and (c) but
declined leave for (a). Dissatisfied with my refusal to grant leave for the
husband's breach of the order to pay monthly child maintenance, the wife has
filed an appeal. I now give my reasons.

[5] First, an order for payment of monthly child maintenance is a monetary

judgment. The question of whether a monetary judgment is within the purview
of the law contempt has given rise to two conflicting Court of Appeal
judgments. In Hong Leong Bank Bhd v. Phung Tze Thiam John Phung [2008] 1
MLRA 538; [2008] 2 MLJ 785; [2008] 4 CLJ 742, it was held that
disobedience of the payment obligation under a monetary judgment is not
within the purview of the law contempt. But, in Hong Kwi Seong v. Ganad
Media Sdn Bhd [2013] 3 MLRA 631; [2013] 2 MLJ 251; [2012] 8 CLJ 667;
[2012] 6 AMR 221, a different corum expressed a divergent view. It was ruled
that contempt proceedings could be taken for disobedience of payment
obligations under monetary judgments.

[6] In the next case of Lee Lay Ling v. Goh Kim Nam (Cheah Pei Ching, co
respondent) [2013] MLRHU 1350; [2014] 8 MLJ 805, the High Court when
faced with the conflicting Court of Appeal judgments preferred to follow the
approach taken in Hong Leong Bank Bhd that monetary judgments are not
susceptible to enforcement by way of committal proceedings. His Lordship
Nantha Balan JC (as he then was) explained:

"I will now give reasons for preferring the Hong Leong Bank's case.
They are as follows.

First, if monetary judgments, whether they are to be paid in a lump

sum or at different intervals by way of instalments payment, are to be
 Anita Carolyn Francis
[2022] MLRHU 1939 v. Veeramohan Dorairaja pg 3

enforced by way of committal proceedings then the effect would be

that all judgments for the payment of money (regardless of whether
they are made in matrimonial or other proceedings) may, without any
exception, be enforced by committal proceedings. That would mean
that every judgment debtor who fails to make payment under an order
of court would be liable to committal proceedings quite apart from the
prospect of being adjudicated a bankrupt or having to face execution
proceedings by way of a writ of seizure and sale, garnishee or charging
order. If that is the intent of the Rules of Court 2012 then it must be
clearly and unequivocally stipulated as such.

This brings me to O 45 of the Rules of Court 2012 which governs the

process of execution for monetary judgments. Whilst the focus of both
the Hong Leong Bank's case and the Ganad Media's case was O 45 r 5,
it is my view that whilst the conclusion and reasoning in the Hong
Leong Bank's case is correct, there is yet another aspect that needs to
be considered. It has to do O 45 r 1 of the Rules of Court 2012 which
makes it patently clear as to the mode of enforcement of a monetary
judgment Hence, in my view, O 45 r 1 has stipulated very clearly how
monetary judgments are to be enforced. It is equally clear that
committal is not a mode of enforcement for a monetary judgment,
unless it is a monetary judgment which falls within O 45 r 5.....

So, a mere obligation to pay under a judgment per se is not an

obligation which falls within O 45 r 5. Hence, committal proceedings
in respect of a monetary judgment is only reserved for an order where
O 45 r 5 applies, meaning that the payment obligation must be such
that it amounts to the doing of an act. The mere obligation to pay does
not (and following the Hong Leong's case) cannot amount to the doing
of an act. Obviously, it requires something more than that...."

[7] The Singapore Court of Appeal in Mok Kah Hung v. Zheng Zhuan Yao
[2016] 3 SLR 1 had the opportunity to consider and analyse the decisions in
Hong Leong Bank Bhd, Hong Kwi Seong and Lee Lay Ling. The Court had this
to say:

"Therefore, we respectfully disagree with Hong Leong Bank's

interpretation of and reliance on the earlier English decisions of Re
Oddy and Iberian Trust as having laid down a strict rule that a
monetary judgment is not a judgment requiring the performance of an
act and therefore incapable of enforcement by way of committal
proceedings.

Secondly, we agree with the observation in Hong Kwi Seong ([72]

supra) that in ascertaining whether an order of court falls within the
scope of an order for the recovery of money or an order for the
payment of money, the specific terms of the order are of primary
importance. As we have emphasised above, the identity of the obligor
is crucial in determining whether a judgment or order may be enforced
by way of committal proceedings. An order must unambiguously
 Anita Carolyn Francis
pg 4 v. Veeramohan Dorairaja [2022] MLRHU 1939

direct what is to be done if a party is to be punished for failing to

comply with the order, as was observed by Luxmoore J in Iberian
Trust.

Thirdly, we are of the view that the holding in Lee Lay Ling ([70] supra
) that monetary judgments can only be enforced by way of execution
and not committal proceedings is, with respect, far too broad and
cannot be sustained in light of the foregoing analysis. In any event, its
reliance on the earlier decision of Hong Leong Bank ([72] supra) was
also doubtful in light of our views that the general principle laid down
in that case was based on a different interpretation of the English
decisions."

[8] Having examined the available cases on the subject, and the written
submission of the wife, I preferred the view expressed in Hong Leong Bank
Bhd and Lee Lay Ling. In the premises, I found that the maintenance order in
the present case requiring the husband to pay child maintenance every month
was a monetary judgment that did not come within the scope of O 45 r 5(1)(a)
of the Rules of Court 2012 ("ROC") and as such was incapable of enforcement
by committal proceedings.

[9] Even if I were wrong, and the law permits the maintenance order to be
enforced by way of committal proceedings, there was another reason why
leave was refused. In family or matrimonial proceedings different
considerations must apply from those elsewhere in the civil law to minimise
conflict and aggravating the bitterness between the warring spouses who in
some cases must continue to co-operate with each other to co-parent the
children in the marriage. The need to depart from the principles that govern
execution of judgments and orders in civil and commercial proceedings has
been recognised in a number of English cases. The English Courts have taken
the position that in family cases the creditor must pursue other modes of
execution before commencing committal proceedings to enforce arrears of
maintenance. Committal orders for non payment of maintenance orders in
family cases should be remedies of very last resort to minimise discontent in
the post divorce family. See Ansah v. Ansah [1977] Fam 138, 144.

[10] In Harris v. Harris [2001] Fam 502, Munby J explained why committal
orders are remedies of last resort when dealing with matrimonial matters:

"I should add that flexibility in pursuit of this goal is, as it seems to
me, particularly important in the context of family law.

Typically, as in the present case, committals in the Family Division

arise out of matrimonial or similar disputes and in circumstances
where, whatever may have happened in the past, there is a pressing
need to maintain and foster the relationship between the contemnor
and his family-in a case such as this the vital relationship between the
contemnor and his daughters with whom he ought to be having
contact. Committal tends almost inevitably to damage or at the very
least to hinder that process. As Ormrod LJ said in Ansah v. Ansah
 Anita Carolyn Francis
[2022] MLRHU 1939 v. Veeramohan Dorairaja pg 5

[1977] Fam 138, 144:

"Committal orders are remedies of last resort; in family cases

they should be the very last resort. They are likely to damage
complainant spouses almost as much as offending spouses, for
example, by alienating the children. Such orders should be
made very reluctantly and only when every other effort to
bring the situation under control has failed or is almost certain
to fail."

[11] I think it is desirable to follow the approach in English cases because of

the unique nature of family cases. Reverting to the present case, there was no
indication in the wife's O 52 statement or affidavit in support if she had
pursued other enforcement proceedings before commencing the present
committal proceedings, and if she has not, the reasons for the same. In the
absence of this evidence, I did not think leave ought to be granted to
commence committal proceedings.

[12] That brings me to the third ground for refusing leave. As noted earlier,
committal is a mode of enforcement only in respect of a monetary judgment
that comes within the scope of O 45 r 5(1)(a) ROC, the material part of which
reads:

where a person required by a judgment or order to do an act within a

time specified in the judgment or order refuses or neglects to do it
within that that time or, as the case may be, within that time as
extended or abridged under O 3 r 5:..."

[13] In PJ Holdings Inc v. Ariel Singapore Pte Ltd [2009] 3 SLR(R) 582, Choo
Han Teck J had occasion to consider the Singapore equivalent provision of our
section O 45 r 5(1)(a) ROC (in pari materia with our provision). He pointed out
that the key words there are 'refuse' and 'neglect. He went to observe:

"What happens then to an impecunious judgment debtor, as the

defendant in the present case depicts itself as? In my view, under such
circumstances, committal proceedings should still not issue. My
reasons are as follows. Order 45 r 5(1)(a) applies only when 'a person
required by a judgment or order to do an act within a time specified in
the judgment or order refuses or neglects to do it'... The key words
here are 'refuse' and 'neglect'. In Re Quintin Dick [1926] Ch 992,
Romer J held that the term 'refuse or neglect' was not equivalent to
'fail or omit', and that the former implied a conscious act of volition
whereas the latter did not. In Ng Tai Tuan v. Chng Gim Huat Pte Ltd
[1990] 2 SLR(R) 231, Chao Hick Tin JC (as he then was) expressed
the view that the word 'neglect' necessarily implies some element of
fault. He cited the case of In re London and Paris Banking Corporation
[1874] LR 19 Eq 444 where Sir G Jessel MR said, at 446:

... the word "neglected" is not necessarily equivalent to the

word "omitted". Negligence is a term which is well known in
 Anita Carolyn Francis
pg 6 v. Veeramohan Dorairaja [2022] MLRHU 1939

law. Negligence in paying a debt on demand, as I understand,

is omitting to pay without reasonable excuse. Mere omission
by itself does not amount to negligence...

The word 'refuse' has also been similarly defined. In DP Vijandran v.

Majlis Peguam [1995] 2 MLRH 1; [1995] 2 MLJ 391; [1995] 2 CLJ
815; [1996] 1 AMR 129, the court noted that '[t]he ordinary meaning
of the word refuse is to decline to give', and that 'failure is not
synonymous with refusal'. Similar sentiments were also expressed by
the tribunal in Lowson v. Percy Main & District Social Club & Institute
Ltd [1979] ICR 568. I agree with the foregoing cases. In the premises,
this means that an impecunious debtor would be outside of the scope
of O 45 r 5 as such a person cannot be said to have 'refused or
neglected' to obey an order directing them to make payment. The
combined effect of the fact that an impecunious debtor is outside the
scope of committal proceedings and the principle that such
proceedings are remedies of the last resort would mean that in the vast
majority of cases, committal proceedings would not apply to an order
or judgment for the payment of monies. In most instances, a person
would ordinarily be regarded as impecunious if he is unable to satisfy
the judgment debt upon the conclusion of the various execution
proceedings. The logical ending point in such cases should be a
winding-up order or a bankruptcy order, as the case may be."

[14] The law applicable to committal proceedings is settled law. An

application for leave to commence committal proceedings can be granted only
where the applicant meets the requirements under O 52 r 3(2) ROC. The
application must be supported by a statement setting out:

a. the name and description of the applicant;

b. the name, description and address of the person sought to be

committed; and

c. the grounds on which his committal is sought; and

a supporting affidavit verifying the facts relied on in the statement.

[15] It is instructive in this regard to refer to the case of Messrs Hisham, Sobri &
Kadir v. Kedah Utara Development Sdn Bhd & Anor [1988] 1 MLRH 471;
[1988] 2 MLJ 239; [1988] 2 CLJ (Rep) 5, where Edgar Joseph Jr J held that an
order for committal can only be made if the act of contempt is wilful. He
explained:

"There is authority for the view that an order for committal or the
issue of a writ of sequestration is only appropriate where the contempt
is wilful. (See Fairclough & Sons v. Manchester Ship Canal Co) Indeed,
the former Rules of the Supreme Court in England imposed such a
requirement specifically. However, the present O 45 r 5 in England,
 Anita Carolyn Francis
[2022] MLRHU 1939 v. Veeramohan Dorairaja pg 7

which is in pari materia with the identically numbered rule in our

Rules of the High Court, omits the word 'wilful'. Nevertheless, the
word 'wilful' must be taken to be silently implied and so the position
remains unchanged despite the omission (see Heaton's Transport v.
TGWU Ship Canal Co) ....

Now, it is well-settled law that contempt of court is an offence of a

criminal character since the liberty of the alleged contemnor is at
stake. That being so, it is fundamental that a man ought not to be
penalised unless he has both a fair opportunity to comply with the law
and the capacity to do so. Any other approach would not only be
morally objectionable but also should have no place in a legal system
based on ideas of fair play and justice."

[16] The application for leave to institute committal proceedings is made ex

parte to a judge. The court must review the application, statement and the
supporting affidavit to ensure that a prima facie case of contempt has been
established. The creditor must show the terms of the order which the debtor
has defaulted, the particulars of the default, and the factual basis for alleging
that the debtor has or has had the means to pay, and has wilfully refused and
neglected to pay. If the aforementioned documents do not satisfy the
requirements set out in O 52 r 3(2), the application will be dismissed by the
court.

[17] Thus, it was incumbent on the wife here as the creditor to establish that
the husband was in default in complying with the order for payment of
maintenance, was able to satisfy the order for payment at the time of default,
and that he had wilfully failed to do so. The wife's O 52 statement and
affidavit in support established that the husband had defaulted in complying
with the maintenance order. But, there was nothing in the statement nor
affidavit vis-a-vis the husband's ability or to make the payments ordered and
that he had wilfully failed to do so. All that the wife had averred in her
statement and affidavit was that husband "telah gagal dan/ atau cuai
mematuhi perintah."

[18] It was true that the default took place shortly after the consent order.
There was a lapse of 6 months between the date of the order and the date of
default. It is probable that during this period, the financial position of the
husband may have changed. As such, I did not think it was open to wife to
take the position that the husband should have applied for a variation if his
financial position had taken a turn for the worse since he consented to the
maintenance order, to establish a prima facie case of means. Additionally, the
fact that the maintenance order was a consent order cannot also per se be
evidence for discharging the onus of the wife in this application.

[19] There is no gainsaying that the means of a judgment debtor is solely

within his or her knowledge. In most cases it may thus be necessary for the
judgment creditor to apply for a judgment debtor summons for examination to
satisfy a prima facie case of means under O 48 ROC or s 4 of the Debtors Act
1957 Act before embarking on a committal application. On the hearing of a
 Anita Carolyn Francis
pg 8 v. Veeramohan Dorairaja [2022] MLRHU 1939

judgment debtor summons, the judgment debtor is to be examined respecting

his ability to pay the judgment sum and for discovery of property applicable to
such payment. The purpose of the examination would be to gather
information which would not be otherwise available to the judgment creditor.
See Leow Wei Pin v. Meyappa Chettiar [1959] 1 MLRH 486; [1959] 1 MLJ
265.

[20] Order 48 r 1 (2) ROC provides:

"Where a person has obtained a judgment or order for the payment of

money by some other person (who is referred to as the judgment
debtor in this Order), the court may, on an application made ex parte
by a notice of application order the judgment debtor to attend before
the registrar and be orally examined on the questions:

a. is whether any and, if so, what debt are owing to the

judgment debtor; and

b. whether the judgment debtor has any and, if so what other

property or means of satisfying the judgment or order.

[21] Section 4 of the Debtor Act provides:

(1) Where the judgment of a court is for the recovery or payment of

money whether by instalments or otherwise the party entitled to
enforce it (hereinafter called the judgment creditor) may, subject to
and in accordance with any rules of court, summon the judgment
debtor,.... to be orally examined before the court respecting the
judgment debtor's ability to pay or satisfy the judgment debt, and for
the discovery of property applicable to such payment and to the
disposal that the judgment debtor has made of such property.

(2) The judgment debtor,.... shall, when called upon, produce all
books, papers or documents in his possession or power relating to such
property.

(3) The judgment creditor may subpoena as a witness any person

whom he considers likely to be able to supply information respecting
the judgment debtor's ability to pay the judgment debt or respecting his
property.

(4) Whether the judgment debtor, or...appears or not the judgment

creditor and other witnesses may be examined on oath respecting the
matters aforesaid.

(5) If the judgment debtor, or, having been duly served does not
appear, the court may:

(a) order him to be arrested and brought before the court to be

examined; or
 Anita Carolyn Francis
[2022] MLRHU 1939 v. Veeramohan Dorairaja pg 9

(b) make an order against the judgment debtor ex-parte.

(6) Upon such examination or non-appearance as aforesaid the court

may order the judgment debtor to pay the judgment debt either:

(a) in one sum whether forthwith or within such period as the

court may fix; or

(b) by such instalments payable at such times as the court may

fix.

(7) If the judgment debtor makes default in payment according to any

such order, a notice in the form prescribed by rules of court may be
issued, on the request of the judgment creditor, calling upon the
judgment debtor to attend before the court at a time therein stated and
show cause why he should not be committed to prison for such
default.

(8) Any such notice shall be personally served upon the judgment
debtor; and if, on the day so named, or on any subsequent day to
which the matter may be adjourned, no sufficient cause is shown by
the judgment debtor, the court may commit him to the civil prison for
a term which may extend to six weeks or until earlier payment of any
instalment or instalments or other sum due.

(9) A debtor shall not be committed to prison under this section unless
it appears that, since the date of the order directing payment, whether
forthwith, or within a specified period or by instalments, he has had
sufficient means to comply with the order.

[22] In conclusion, I accept that debtors in matrimonial proceedings should

not be permitted to avoid their responsibilities to pay child and spousal
maintenance in the absence of compelling reasons. All orders of court must be
respected. It seems to be that the wife in this case would have been more
successful if she had invoked the jurisdiction of the Debtors Act to recover the
arrears due under the maintenance order.