Batshita International (Pte) Ltd v Lim Eng Hock Peter

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 05 November 1996
• Neutral Citation: [1996] SGCA 68
• Docket Number: Civil Appeal No 77 of 1996
• Date: 05 November 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: S Asogan (R Raman & Co)
• Citation: [1996] SGCA 68
• Defendant Counsel: Ling Tien Wah (Helen Yeo & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Covenants,Landlord and tenant,Arbitration,Admissibility of evidence,Claim for arrears of rent,Equitable set-off,Alleged breach of separate oral agreement to rectify defects constituting a condition precedent to tenant executing tenancy agreement -Whether dispute connected with tenancy agreement -Whether dispute referrable to arbitration,Evidence,Whether right of equitable set-off exists against accrued rent for unliquidated damages for breach of landlord's covenant to repair,Stay of court proceedings,s 94 Evidence Act (Cap 97),s 7 Arbitration Act (Cap 10),Whether simple expression 'without any deduction' sufficient to exclude equitable set-off,Oral agreement,Landlord and Tenant,Whether separate oral agreement constituting a condition precedent to the execution of the tenancy agreement admissible

This appeal arises from an order of the High Court referring to arbitration the dispute or disputes that had arisen in connection with the tenancy agreement of premises known as #16-03 Horizon Towers (West), 29 Leonie Hill, Singapore (the flat) dated 24 February 1995 pursuant to the arbitration agreement contained therein and s 7 of the Arbitration Act (Cap 10) and staying the subordinate court action begun by the appellants (the landlord) for arrears of rent of the flat and stamp duties on the tenancy agreement payable by the respondent (the tenant).

The judgment of the High Court is reported at [1996] 2 SLR 741. At the conclusion of the appeal we dismissed it and now give our reasons for doing so. They differ from the reasons given by the learned judicial commissioner in his judgment.

The landlord had resisted the tenant`s application to the High Court on two grounds. The first was that the tenant had taken a step in the proceedings after entering an appearance. The learned judicial commissioner found no merit in this contention and disallowed it. The landlord has not appealed against this part of the decision.

The second ground was that there was no dispute or difference between the landlord and the tenant in connection with the tenancy agreement. It was submitted to the learned judicial commissioner that the covenants in a tenancy agreement were independent of each other and even if there had been a breach of one of the landlord`s covenants (which there was not) it would not prevent the landlord from entering judgment for the arrears of rent which by cl 1 of the tenancy agreement was `payable monthly in advance and clear of all deductions on the first day of each calendar month`. In fact the tenant did not deny that he was in arrears for the last five months of the tenancy of the flat and if, as the tenant contended, the landlord was in breach of any of the landlord`s covenants, the appropriate remedy was for the tenant to counterclaim in the subordinate court action.

The tenant has put in on affidavit that he had been the tenant of the landlord`s predecessor in title of the flat, one Paviter Singh Bajaj (Paviter) from 1 February 1990, initially for a period of two years which on expiry had been extended annually until 31 January 1995. In November 1994 Paviter had inquired whether the tenant would be renewing the tenancy for another year. The tenant had informed Paviter that he would, only if Paviter rectified and repaired certain defects in the flat. The following was the list of defects:

(a) the water leakage to one of the toilets which was so severe that the wall adjacent to the hall to the left of the main door was permanently saturated with water. The water leakage, further, rendered the toilet unusable;

(b) the water leakage problems in the kitchen;

(c) the door to the kitchen toilet was severely rotting through;

(d) the moisture had stained the walls and there was evidence of mildew around the electric switches.

Paviter had agreed to have the above defects rectified and repaired.

Shortly after this agreement was reached with Paviter, the tenant learnt that Paviter had sold the flat, subject to the tenancy, to the landlord. He immediately contacted Paviter and told Paviter that he would not now be renewing the tenancy of the flat for a further year as the landlord was not a party to the agreement to rectify and repair the defects in the flat as agreed between him and Paviter.

The tenant, however, did not vacate the flat on 31 January 1995 but continued in occupation and paid the rent and other charges previously paid to Paviter to the landlord from 1 February 1995. The transfer of the flat from Paviter to the landlord was effected on 10 January 1995.

A tenancy agreement prepared by the landlord and dated 24 February 1995 sent to the tenant for execution was not executed by him until August 1995. It appears that the tenant refused to execute the tenancy agreement until he got a firm promise out of the landlord that his complaints regarding the water leakages in the flat would be rectified and repaired before he would execute the tenancy agreement. He states in his affidavit of 17 January 1996 that he got this promise only in July 1995 after the landlord had visited the flat. Relying...