British Malayan Trustees Ltd v Sindo Realty Pte Ltd (in liquidation) and Others

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 11 January 1999
• Neutral Citation: [1999] SGCA 2
• Docket Number: Civil Appeal No 74 of 1998
• Date: 11 January 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Harry Elias SC (instructed) and Tan Teng Muan (Mallal & Namazie)
• Citation: [1999] SGCA 2
• Defendant Counsel: Yang Ing Loong and Audrey Thng (Lee & Lee),Tan Kiat Peng (Official Assignee),Alvin Yeo and Joy Tan (Wong Partnership)
• Court: Court of Appeal (Singapore)
• Subject Matter: Rules of construction,Whether difficulty in applying a particular term is a cause to avoid agreement,Contract,Sufficient that there be certainty in concept though not in application,Specific performance,Contractual terms,Validity of reconveyance e term in indenture,Convenant to reconvey land conditional upon approval for sub-division from Chief Planner,Condition not fulfilled,Condition to reconvey land not fulfulled,Whether specific performance of covenant to reconvey available,Remedies,Equity,Whether beneficial interest in land can arise if specific performance not available

Judgment:

KARTHIGESU JA

(delivering the judgment of the court): This appeal arises from a consolidated action involving three separate proceedings filed in the court below, namely, Suit No 196 of 1981, OS 995 of 1987 and OS 540 of 1993. The central issue concerns competing claims to a piece of land between the appellants on the one hand and the respondents on the other. During the hearing, the second and third respondents defended their claim jointly whilst the first respondents, who were represented by the Official Assignee, informed us that they were not defending the appeal.

2. Background facts

To understand the appeal fully, it is necessary to set out the background facts which led to this appeal. The subject matter of dispute is a piece of land known as lot 1734 Mukim 20 (`the property`), in the size of approximately 1.5 acres. There are presently two graves on the property, both belonging to one Tan Tye (`the testator`) and the hut of the alleged caretaker of the graves. The older of the two graves sits just within the property at its North-East corner whilst the newer grave which contains the remains of the testator situates squarely within the property. The caretaker`s hut straddles between the southern boundary of the property and the adjoining neighbouring piece of land, lot 1735 Mukim 20.

3.The testator passed away on 22 July 1898, leaving behind to the appellants herein, British Malayan Trustees (`BMT`), as his trustees three lots of land, lots 89-9, 89-10, and 89-11 of Mukim 20 (`the three lots`). These three lots were issued in his favour by Statutory Land Grant No 8208 on 4 December 1897. Upon his death, he was buried in part of lot 89-11 Mukim 20, which is within the boundaries of the property.

4. The 1971 agreement

By an agreement dated 10 April 1971 (`the 1971 agreement`), BMT sold the three lots to one Ho Yeow Koon (`Ho`). Ho had in as early as March 1971 expressed a keen interest in purchasing the three lots. There was no dispute that the 1971 agreement was validly and properly executed. By cl 17 of the agreement, Ho was to reconvey part of lot 89-11, an area of approximately four acres (`the four acre land`), back to BMT upon the carrying out of certain conditions on his part. The reason, as was obvious, was that the testator`s original and new graves and the hut of the caretaker stood within the boundaries of this four acre land and the family of the testator were reluctant to part with them notwithstanding that the remaining of the three lots were sold. At all times, Ho was fully appraised and had no objection to this reconveyance clause. It is pertinent to set out cl 17:

Near the South East boundary of the said lot 89-11 there are situate the original grave of [the testator], a new grave in which he is reburied and the hut in which the caretaker of the graves resides. It is agreed that approximately four acres of land surrounding the said graves and the caretaker`s house shall be resold and conveyed back to the vendors by the purchasers and the vendors shall purchase the same at the price of Dollar One and cents thirty-four point three ($1.343) per square foot. The vendors shall bear the costs of survey of the said approximately four acres of land and preparation of plans in respect thereof. After the completion of the sale of the said three lots to the purchaser, the purchaser shall surrender to the State the grant in respect of the said lot 89-11 and apply for the division of the said lot and shall do all other things necessary for the early issue by the State of a separate grant in respect of the said approximately four acres of land pursuant to s 11 of the State Lands Ordinance (Cap 244). Immediately after such grant has been issued by the State, the purchaser shall convey and do all other things necessary to assure the said approximately four acres of land to the vendors and the vendors shall on such conveyance pay the price thereof computed at the rate of Dollar One and cents thirty-four point four ($1.343) (sic) per square foot.

5.On 12 April 1971, pursuant to OS No 30 of 1964, the 1971 agreement was sanctioned by an order of court. On the 27th of that same month, the court order was registered in the Registry of Deeds in Volume 1848 No 57.

6. The indenture

Sometime later that year, Ho came to an agreement with Sindo Realty Pte Ltd (`Sindo`), the first respondents herein, to sell and transfer the three lots to them. By an indenture of conveyance dated 19 October 1971 (`the indenture`) made between BMT, Ho and Sindo, it was agreed that the three lots would be transferred to Sindo. The indenture provided for Ho to sell the three lots to Sindo at the same price as that which he paid and on the terms and conditions contained in the 1971 agreement. It referred to certain terms and conditions in the 1971 agreement as well as to the court order of 12 April 1971 sanctioning the said agreement in its entirety. In the indenture, Sindo was named as the sub-purchaser for the three lots with Ho as the original purchaser.

7.Clause 3 of the indenture reads:

(a) On completion of the conveyance and transfer of [the three lots], [Sindo] shall apply to the Planning Authority for approval under s 9(3) of the Planning Ordinance to divide Government Survey lot 89-11 of Mukim XX ... to enable [Sindo] to sell and convey to [BMT] in accordance with the terms of [the 1971 agreement], a part of Government Resurvey lot 89-11 of Mukim XX being approximately four (4) acres of land situate near the South East Boundary of the said lot 89-11 (hereinafter referred to as `the four acre plot`) whereon is situate the original grave of the testator and a hut in which the caretaker of the grave resides.

(b) As soon as the said approval under s 9(3) of the Planning Ordinance is obtained [Sindo] shall surrender to the Government the said Government Resurvey lot 89-11 of Mukim XX pursuant to s 11 of the State Lands Act and shall do all such other things necessary for the early issue by the Government of a separate Statutory Land Grant for the four acre plot.

(c) Immediately after the new Statutory Land Grant for the four acre plot is issued [Sindo] shall convey and do all other things necessary to assure the four acre plot to [BMT] and [BMT] shall on such conveyance pay to [Sindo] the price thereof computed at the rate of dollar one and cents thirty four point three ($1.34.3) per square foot. [BMT] shall bear the cost of survey of the four acre plot and the preparation of plans in respect thereof.

8.Clause 3 reproduced, to be performed by Sindo, Ho`s obligation to sub-divide lot 89-11 and to reconvey the four acre land containing the testator`s graves and the caretaker`s hut back to BMT in the same manner proposed in cl 17 (see [para ] 4 above). Initially, Sindo`s solicitors insisted that there be a proviso which provided that if approval for sub-division of lot 89-11 was not obtained within a year, then BMT must release Sindo from the obligations stated therein. However, BMT felt that such a proviso was unnecessary, and agreed that in the event of non-approval, an application to court would be made for directions after consultation with the beneficiaries of the testator (`the beneficiaries`). Consequently, completion took place on 19 October 1971 and the indenture with its covenants thereto were registered at the Registry of Deeds in Volume 1891 No 129 two days later by Sindo.

9.Between 1972 and 1981, Sindo attempted, with little success, to complete its obligations under cl 3 of the indenture. Amongst other matters, it asked BMT`s solicitors for a rough sketch of the four acre land which they were required to reconvey to BMT and sought to apply for sub-division of lot 89-11 to the relevant authorities. The events which transpired were these: by letters dated 9 May and 28 August 1972 addressed to BMT, a rough sketch plan of the proposed four acre land was asked for, and obtained by Sindo, and such plans were forwarded to Sindo`s architects for application for sub-division. Thereafter, BMT heard nothing from Sindo for the next three years, although the former did send a reminder sometime in May 1973. Sindo finally replied on 6 May 1975, and BMT was informed that the application for sub-division of lot 89-11 was pending. In addition, Sindo also attached a sketch plan of the four acre land for BMT`s approval. Sindo`s letter in this respect reads:

Under cl 3 of the indenture dated 19 October 1971 between your goodselves and our company, regarding the purchase and sale of the above mentioned property, we covenanted to sell four acres of land situate near the south eastern boundary of lot 89-11 on which the original grave of the testator was situated.

We are applying to the Planning Department for approval under s 9(3) of the Planning Ordinance to divide the said land to enable us to sell and convey to you. We forward herewith the sketch plan of the area which we are required to sell to you.

Please let us have your confirmation that the layout is acceptable to you. If we do not hear from you within seven days we shall assume that it is acceptable to you and proceed to submit the necessary plan for subdivision.

10.BMT forwarded this sketch plan to the beneficiaries but it was rejected for not containing any measurement, area or any means of ascertaining from the same where the four acre land was situated. That same month, BMT wrote to Sindo requesting for a copy of the sub-division plan which they were submitting for approval under s 9(3) of the Planning Act. Sindo did not reply.

11.On 17 May 1975, a fresh plan was sent by Sindo to BMT for the latter`s approval. Again, it was rejected when the beneficiaries pointed out that the plan received failed to show any measurements of the boundaries of the four acre land nor the area of the lot. The plan also had no markings of where the testator`s graves were situated, despite earlier indications by Sindo to the contrary. Similarly, a further plan...