Asirham Investment Pte Ltd v JSI Shipping (S) Pte Ltd

CourtHigh Court (Singapore)
JudgeChoo Han Teck J
Plaintiff CounselDaniel Koh and Chen Xinping (Rajah & Tann)
Subject MatterLandlord and Tenant,Whether lease agreement subject to implied condition precedent,Agreements for leases,Whether unspecified commencement date fatal to validity,Whether demand for return of deposit and threat to commence legal proceedings for failure to return deposit amounting to breach,Breach,Whether absence of floor plan fatal to validity,Material terms,Whether failure to fulfil alleged condition precedent amounting to breach,Contract,Whether tenancy agreement valid and enforceable
Published date08 October 2007
Defendant CounselTan Yeow Hiang (Kelvin Chia Partnership)
Docket NumberSuit No 522 of 2006
Date04 October 2007

4 October 2007

Judgment reserved.

Choo Han Teck J:

1 The plaintiff, Asirham Investment Pte Ltd, is a company set up by First Tradegate Co Pte Ltd (“FTG”) and Maxz Universal Group (“MDG”), specifically for the purpose of entering into an agreement with the defendant, JSI Shipping (S) Pte Ltd, and carrying out a project under the agreement (“the Project”). FTG is involved in the business of procuring and leasing commercial premises to companies. The defendant is engaged in the business of inter alia warehousing, distribution, and provision of freight forwarding services.

2 The facts leading up to the commencement of this action may be recounted briefly in chronological order. In early 2003, Ho Yew Peng (“Michael Ho”), a working director of FTG, initiated discussions with Leong Yew Cheong (“Zac”), who was then the defendant’s General Manager, regarding procurement of new premises for the defendant’s operations. The negotiations culminated in a letter of offer dated 1 November 2004 (“the 1st Letter of Offer”), wherein FTG offered to construct a build-to-lease facility (“the Facility”) for the defendant. The 1st Letter of Offer was marked “subject to contract” and signed and accepted by Zac on behalf of the defendant on 30 November 2004.

3 Further discussions ensued and on 29 March 2005, a second letter of offer (“the 2nd Letter of Offer”) was issued by FTG. The 2nd Letter of Offer was similarly marked “subject to contract” and set out the various specifications for the Facility. The defendant was also required, upon the signing of the 2nd Letter of Offer, to pay a one-month holding deposit of $112,000. The 2nd Letter of Offer was accepted and signed by Zac on behalf of the defendant and the sum of $112,000 was paid accordingly.

4 On 20 July 2005, the plaintiff was incorporated as a joint venture vehicle to carry out the Project. The joint venture partners were FTG and MDG. Ng Siew Hoon (“Ruth Ng”) from FTG and Seeto Keong (“Seeto”) from MDG were registered as the plaintiff’s directors.

5 On 18 September 2005, the plaintiff and defendant entered into a tenancy agreement (“the Tenancy Agreement”). Clauses 1 and 1.1 of the Tenancy Agreement stated as follows:

1. The Landlord agrees to let and the Tenant agrees to take the premises situated at and known as Changi International Logistic Park North, Plot 3, Singapore for the floor area as edged in red on the attached floor plan of 100,000 Sq Ft (hereinafter called “the premises”). TO HOLD unto the Tenant for the lease term of Seven (7) years from *July, 2006 to June 2013 at a monthly rental of Singapore Dollars One Hundred & Forty Thousand Only (S$140,000.00) with the Goods & Services Tax of Singapore Dollars Seven Thousand Only (S$7,000.00) making a total of Singapore Dollars One Hundred and Forty Seven Thousand Only (S$147,000.00) per month inclusive of maintenance charges for the premises payable in advance on the 1st day of each calendar month. Any future increase of Goods and Services Tax shall by borne by the Tenant.

1.1 The Landlord agrees to give rental free period from July 2006 to August 2006 to the Tenant for renovation and fittings up works.

[emphasis in original]

It will be seen from the above clauses that the following terms of the tenancy are stipulated:

(a) Location — premises situated at Changi International Logistic Park North, Plot 3, Singapore;

(b) Floor area leased — 100,000 Sq Ft, floor area etched in red on the “attached floor plan”;

(c) Term of lease — July 2006 to June 2013; and

(d) Rental — monthly rental of $147,000 (inclusive of Goods and Services Tax) payable in advance on the 1st of every calendar month. The tenant is to enjoy a rent free period from July 2006 to August 2006.

The Tenancy Agreement was a detailed document setting out the covenants of both the landlord and the tenant intended by them to be comprehensive. It was signed by Ruth Ng on behalf of the plaintiff as landlord and Zac on behalf of the defendant as tenant. It should be noted that while the Tenancy Agreement referred to an “attached floor plan”, the evidence given at the trial by Michael Ho was that there was in fact no floor plan appended to the original Tenancy Agreement.

6 The land on which the Facility was to be built was owned by Jurong Town Corporation (“JTC”) and it was not disputed that JTC’s approval was required for the proposed development. On 6 October 2005, JTC informed the plaintiff by letter that it was unable to approve the plaintiff’s application as the plaintiff had not demonstrated “sound financial capabilities” to undertake the...

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4 cases
  • Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 7 Abril 2014
    ...Lim & Thrumurgan) for the defendant Asburn Anstalt v Arnold [1989] Ch 1 (refd) Asirham Investment Pte Ltd v JSI Shipping (S) Pte Ltd [2008] 1 SLR (R) 117; [2008] 1 SLR 117 (folld) Associated Development Pte Ltd v Loong Sie Kiong Gerald [2009] 4 SLR (R) 389; [2009] 4 SLR 389 (folld) Batshita......
  • Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 7 Abril 2014
    ...for this proposition, the plaintiff cited the decision of Choo Han Teck J in Asirham Investment Pte Ltd v JSI Shipping Pte Ltd [2008] 1 SLR(R) 117. That case certainly is authority for that proposition. Klerk-Elias Liza v K T Chan Clinic Pte Ltd [1993] 1 SLR(R) 609 at [51] is also binding C......
  • Rotol Projects Pte Ltd v CCM Industrial Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 15 Abril 2014
    ...Pte Ltd v Schenker Singapore (Pte) Ltd [2005] 2 SLR(R) 651 (at [95]–[101]) and Asirham Investment Pte Ltd v JSI Shipping (S) Pte Ltd [2008] 1 SLR(R) 117 (at [16]), the High Court considered the possibility of implying condition precedents, although in both cases, it was eventually held that......
  • Achievers Paragon Sdn Bhd v Martego Sdn Bhd, 10-12-2010
    • Malaysia
    • High Court (Malaysia)
    • 10 Diciembre 2010
    ...stipulation “Subject to Contract” which according to the persuasive authority of Asirham Investment Pte Ltd v. JSI Shipping (S) Pte Ltd [2008] 1 SLR 117 20 at paragraph 10 p.121, the High Court of Singapore stated “It is clear that where an agreement is stipulated as being “subject contract......

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