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Adodo v Tan
Factual and Procedural Background
The appeal concerns a financial remedy order arising from the dissolution of a marriage between the parties, who resided initially in Singapore and later in England. The parties married in 2006, having met in Singapore, and separated in 2019 with proceedings issued in 2021. The assets included a matrimonial home in England, a Singapore apartment owned solely by the wife, a property in Malaysia, a small piece of land in Nigeria, the wife’s Central Provident Fund (CPF) account in Singapore, and the husband's pension in England.
The wife had purchased the Singapore apartment partly using funds borrowed from her CPF account, a mandatory savings scheme in Singapore. The husband initially accepted the wife’s evidence that the CPF funds, including any repayments on sale of the Singapore apartment, would not be accessible until she reached age 65. The District Judge accepted this evidence and treated the CPF funds as unavailable for the wife to raise capital to buy out the husband’s interest in the English property.
The husband appealed the District Judge’s final financial remedy order, arguing that the wife had failed to give full and frank disclosure and had given inaccurate evidence about the CPF account, which constituted a material misrepresentation and mistake requiring a rehearing. The appeal raised multiple grounds, with permission granted for Grounds 2 and 3 relating to the CPF issue, and limited or refused permission for others.
The appeal to the Judge below was dismissed, primarily on the basis that the husband’s new evidence about the CPF account was available but not presented at the original hearing. The husband then appealed to the court considering whether the new evidence should be admitted and the order set aside.
Legal Issues Presented
- Whether the wife’s failure to disclose the true nature and accessibility of funds in her CPF account amounted to a material misrepresentation or mistake justifying setting aside the financial remedy order.
- Whether new evidence relating to the CPF account should be admitted on appeal when it was not before the District Judge.
- The appropriate approach for the court in admitting new evidence and setting aside final financial remedy orders based on non-disclosure or mistake.
Arguments of the Parties
Appellant's Arguments
- The wife gave inaccurate evidence that the CPF funds, including repayments on sale of the Singapore apartment, would not be accessible until age 65, which was incorrect.
- New evidence, including documents from the CPF Board and statutory provisions, demonstrated that upon sale of the Singapore apartment, the wife would be entitled to an immediate substantial refund, approximately £325,000.
- This misrepresentation materially affected the District Judge’s assessment of the parties’ financial resources and the order made.
- The new evidence should be admitted on appeal despite not being before the District Judge, as it was necessary to understand the true financial position and was not within the husband’s reasonable diligence to obtain earlier.
- The financial remedy order should be set aside and the matter reheard on the correct basis.
Respondent's Arguments
- The wife disclosed all documents in her possession, including references to the automatic refund, and the husband had equal access to publicly available information.
- The husband accepted the wife’s evidence at the hearing and cannot now rely on new evidence that was available at that time but not presented.
- The alleged non-disclosure was not material because the parties agreed to make no claims against each other’s pensions, and the CPF funds were regarded as a pension by the wife.
- The new evidence should not be admitted on appeal as it constituted a new case and was not properly before the District Judge.
- The District Judge’s approach to the assets and borrowing capacity was correct and fair.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Zipvit Ltd v Revenue and Customs Commissioners [2018] 1 WLR 5729 | Guidance on admitting new evidence on appeal, emphasizing overriding objective and discretion beyond strict Ladd v Marshall criteria. | The court relied on Zipvit to support admitting new evidence that was not before the lower court when justice required it. |
| Jenkins v Livesey (formerly Jenkins) [1985] AC 424 | Duty of full and frank disclosure in financial remedy proceedings and setting aside orders based on material non-disclosure or mistake. | The court applied Livesey to assess whether the inaccurate evidence materially affected the order, justifying its setting aside. |
| Sharland v Sharland [2016] AC 872 | Clarification of routes and burden of proof for setting aside financial remedy orders on grounds of misrepresentation or mistake. | The court considered Sharland in deciding the appropriate route (appeal) and burden regarding materiality of non-disclosure. |
| Robinson v Robinson (Practice Note) [1982] 1 WLR 786 | Scope of power to set aside final orders includes cases of material non-disclosure beyond fraud or mistake. | Supported the principle that material non-disclosure can justify setting aside orders. |
| Gohil v Gohil [2015] AC 849 | Parties cannot exonerate each other from the duty of full and frank disclosure; flawed orders result where disclosure is incomplete. | Applied to reject argument that wife’s inaccurate evidence could be excused because the husband could have discovered true facts. |
| Ladd v Marshall [1954] 1 WLR 1489 | Traditional test for admitting new evidence on appeal: diligence, materiality, and credibility. | The court acknowledged the Ladd v Marshall criteria but emphasized discretion guided by the overriding objective. |
| Al Sadeq v Dechert LLP and others [2024] 3 All ER 575 | Summary of principles governing admission of new evidence on appeal and the court’s discretion. | Provided a contemporary framework for admitting new evidence in financial remedy appeals. |
| Transview Properties Ltd v City Site Properties Ltd [2009] EWCA Civ 1255 | Admission of new evidence on appeal usually leads to retrial or rehearing. | Supported the decision to remit the financial remedy proceedings for rehearing. |
| Gordon (Formerly Stefanou) v Stefanou [2011] 1 FLR 1 | Materiality threshold for overturning orders on grounds of non-disclosure. | Used to illustrate the requirement that non-disclosure must have materially affected the order. |
| KG v LG [2015] EWFC 64 | Restatement of principles that non-disclosure must be material to overturn consent orders. | Confirmed the materiality test applied by the court in this appeal. |
| J v B (Family Law Arbitration: Award) [2016] 1 WLR 3319 | Requirement that claimant must show true facts would have led to materially different order. | Reinforced the court’s approach to assessing materiality in the case at hand. |
Court's Reasoning and Analysis
The court analysed the appellant’s contention that the wife’s evidence about the CPF account was inaccurate and materially affected the financial remedy order. It accepted that the wife’s evidence was incorrect regarding the accessibility of funds in the CPF account upon sale of the Singapore apartment. The court emphasized the duty of full and frank disclosure in financial remedy proceedings as set out in statutory provisions and established case law, notably Livesey.
The court considered the new evidence the appellant sought to admit, including CPF Board statements and statutory provisions, showing that a substantial sum would be payable immediately to the wife, contrary to the wife’s evidence that no funds would be accessible until age 65. The court found that this evidence was not within the appellant’s reasonable diligence to obtain before the District Judge’s hearing and that admitting it was necessary in the interests of justice to understand the true financial position.
The court rejected the respondent’s argument that the appellant could not rely on new evidence available at the time of the original hearing and that the non-disclosure was not material because the parties had agreed not to make pension claims. The court held that the wife’s inaccurate evidence misrepresented her financial circumstances and that the District Judge’s order was substantially different from what would have been made had the true facts been known.
Applying the principles from Livesey and related authorities, the court concluded that the District Judge’s approach was fundamentally undermined by the accurate valuation of the CPF funds. The court also noted that the appellant was entitled to the appeal route given the factual issues involved.
Consequently, the court determined that the new evidence should have been admitted, the appeal allowed, the District Judge’s order set aside, and the financial remedy proceedings remitted for rehearing on the correct financial basis.
Holding and Implications
The court ALLOWED the appellant’s appeal on Grounds 2 and 3, set aside the District Judge’s financial remedy order, and ordered a rehearing of the financial remedy proceedings. Permission to appeal was refused for Grounds 4 and 6, which became academic due to the rehearing.
The direct effect of this decision is that the financial remedy must be reconsidered with full and accurate disclosure of the wife’s CPF account funds, reflecting the true financial position at the time of the original hearing. No new precedent was established beyond the application of established principles concerning disclosure, materiality, and admission of new evidence on appeal.
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