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

JurisdictionSingapore
JudgeLai Siu Chiu J
Judgment Date31 March 1998
Neutral Citation[1998] SGHC 92
Date31 March 1998
Subject MatterWhether covenant void for uncertainty,Whether equitable interest in land to be reconveyed,Credit and Security,Whether mortgage over wrong piece of land,Courts and Jurisdiction,Contractual terms,Covenant to reconvey part of property after obtaining separate statutory grant,Contract,Whether specific performance of covenant available,Mortgage of real property,Assignment of interest in sale and purchase agreement pursuant to mortgage,Whether uncertainty can be removed by electing to claim smaller defined plot,Remedies,Sale and purchase of property,Re-partitioning affecting subject matter of sale,Whether real contest of legal rights between plaintiff and defendant,Land,Sale and purchase of land,Declaratory,Whether covenant conditional on subdivision approval -Whether equitable doctrine of laches applicable,Declaration of equitable interest over property,Claim for specific performance of covenant nine years later,Court judgments,Specific performance,Whether contract sufficiently certain at commencement of action,Specific location or configuration of plot to be reconveyed unclear,Covenant to reconvey part of property
Docket NumberSuit No 196 of 1981 and Originating Summons Nos 995 of 1987 and 540 of 1993
Published date19 September 2003
Defendant CounselChua Lee Ming and Audrey Thng (Lee & Lee),Animah bte A Gani (Deputy Official Receiver)
CourtHigh Court (Singapore)
Plaintiff CounselAlvin Yeo, Joy Tan and Paul Sandosham (Wong Partnership),Harry Elias, Mirza Namazie, TM Tan and Stanley Tan (Mallal & Namazie)
Judgment:

LAI SIU CHIU J

This case involved competing claims to an interest in a piece of land known as Lot 1734 of Mukim 20. On 20 March 1998, after hearing final submissions from all parties concerned, I dismissed the claims of the common plaintiffs in Suit No 196/81 and OS 540/93 and awarded judgment to the plaintiffs in OS No 995/87 as well as to the defendants on their counterclaims in OS 540/93. As counsel for the plaintiffs in Suit No 196/81 and in OS 540/93 have appealed against my decision in CA 74/98, I now give the grounds for my judgment.

2. The facts

British and Malayan Trustees Ltd (BMT) are the trustees of the will and codicils of Tan Tye deceased (the testator), who owned Lots 89-9, 89-10 and 89-11 of Mukim 20 (the three Lots). The testator died on 22 July 1898 and was buried on part of Lot 89-11. There are presently two graves containing the remains of the testator on what is now known as Lot 1734, which was subdivided from Lot 89-11.

3.By an agreement dated 10 April 1971 (the 1971 agreement) made between BMT and one Ho Yeow Koon (Ho), BMT agreed to sell the three Lots to Ho. Clause 17 of the 1971 agreement provides:

Near the south east boundary of Lot 89-11 there are situated the original grave of the said Tan Tye deceased, a new grave in which he is reburied and the hut the caretaker of the grave 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 [BMT] and [BMT] shall purchase the same at the price of $1.343 per square foot (the four acre plot). [BMT] shall pay the costs of survey of the said approximately four acres of land and the preparation of plans in respect thereof. After the completion of the sale of the said three lots to [Ho], he 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 other things necessary for the early issue by the State of a separate grant in respect of the said approximate four acres of land pursuant to s 11 of the State Land Act (Cap 244). Immediately after such grant has been issued by the State [Ho] shall convey and do all other things necessary to assure the said approximately four acres of land to [BMT] and [BMT] shall on such conveyance pay the price thereon computed at the rate of $1.343 per square foot.

4.The 1971 agreement was approved by an order of court made on 12 April 1971 in OS 30/64 in which the court sanctioned the sale by BMT to convey the land in the manner proposed. The order was registered in the Registry of Deeds in Vol 1848 No 57 on 27 April 1971.

5.Subsequently, Ho agreed to sell the three Lots to Sindo Realty Pte Ltd (Sindo). Consequently, an indenture of conveyance dated 19 October 1971 (the indenture) was entered into between BMT, Ho and Sindo, providing for the conveyance to Sindo of the land sold to Ho. The indenture made specific references to the terms and conditions in the 1971 agreement and to the order of 12 April 1971. In particular, cl 3 of the indenture provides:

(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 $1.343 per square foot. [BMT] shall bear the costs of survey of the four acre plot and the preparation of plans in respect thereof.

6.Initially, the solicitors for Sindo suggested a proviso that if the subdivision was not approved after one year, BMT must release Sindo from these covenants. BMT felt that the contingency was unlikely. Should it arise, they would apply to the court for directions after consulting the beneficiaries. As a result, cl 3(e) of the draft covenants embodying the proviso was deleted. Completion took place on 19 October 1971. The indenture and the covenants thereto were registered at the Registry of Deeds in Vol 1891 No 129 on 21 October 1971 by Sindo.

7.On 9 May 1972, Sindo`s solicitors wrote to BMT`s solicitors asking for a rough sketch plan of the area which Sindo was required to reconvey to BMT. This was supplied in early June 1972. On 28 August 1972, Sindo wrote to tell their solicitors that they had forwarded the plans to their architects to apply for subdivision of the four acres to be resold to BMT. However, they were advised that they could only do so after subdivision of the residential portion of Lot 89-9 on sale to Tong Ah Realty was approved. Sindo`s solicitors forwarded the letter to BMT`s solicitors the next day.

8.In March 1973, having not heard further from Sindo, the solicitors for BMT wrote to Sindo`s solicitors to enquire about the outcome of the sub-division of the residential portion and the reconveyance of the four acres. Sindo replied to BMT directly on 6 May 1975 making the representation that they were applying to the Planning Department for approval to divide the land and forwarding the sketch plan of the area which they were required to reconvey. The plan was forwarded to the beneficiaries of the testator`s estate through their solicitors and was rejected for not containing any measurement, area or any means of ascertaining from the same where the property was situated. In May 1975, the solicitors for BMT wrote to Sindo requesting for a copy of the subdivision plan which they were submitting for approval under s 9(3) of the Planning Act (Cap 279, 1970 Ed).

9.On 17 May 1975, a site plan was sent by Sindo to the solicitors of BMT. The area to be reconveyed was said to have been marked out and to be approximately four acres. The location of the graves within the plot was also said to have been indicated. The plan was however rejected by BMT as the beneficiaries pointed out through their solicitors that the plan received did not show measurements of the boundaries nor the area of the lot. The sites of the two graves were also not shown. In addition, the plan received departed from the earlier plan.

10.In June 1975, the beneficiaries through their solicitors requested for a certified survey plan indicating the position of the graves and the boundaries of the proposed four acre plot as well as specifying the area and measurements. They further requested for the corners of the plot to be marked on the site and pointed out that the plot should not include any proposed road. The letter was forwarded to Sindo by BMT`s solicitors and the plan sent on 17 May 1975 was returned.

11.Sindo did not respond until in or about October 1976. Apparently a fresh plan by a licensed surveyor was furnished satisfying the beneficiaries` requests. However, the graves though marked were not within the plot; the plan was thus rejected. In December 1976, the beneficiaries` solicitors wrote to BMT`s solicitors expressing the beneficiaries` acceptance that part of the old grave site would be affected by road widening and their willingness to consider a smaller plot of land provided the plot contained the new grave.

12.A meeting was then set up after some difficulties on 2 February 1977. At the meeting, it emerged that there were three huts on the land and it was unclear which of the three occupiers was the proper caretaker. The beneficiaries were unable to say which, if any, of them was the caretaker but was certain that one of the huts No 674-C was not on the land before the sale. It was at that time only a chicken shed. They could not identify the registered caretaker, having never seen him and were only concerned that there was a caretaker for the grave and that he had a place to stay near the grave. A caretaker`s hut therefore had to be included in the four acre plot.

13.Following this, Sindo offered a fresh plan in December 1977 but being more vague and inexact than the previous plans, it was rejected outright. A further plan was produced in January 1978. This plan was acceptable to the beneficiaries who requested that a minimum clearance of 5m from the edge of the caretaker`s hut be provided on the south western boundary. Alternatively, Sindo was to demolish the affected hut and rebuild new quarters of similar standards and quality within the proposed new site to their satisfaction. By this time, all the huts had been demolished except for the hut nearest to the new grave - No 674-C. Accordingly, Phua Bok Hwee, the occupier was assumed to be the caretaker. When BMT`s solicitors expressed the view that they could not insist on these requirements, the beneficiaries` solicitors asserted, in a letter dated 8 March 1978, that the estate was entitled to approximately four acres of land surrounding the two graves and the caretaker`s hut under cl 17 of the 1971 agreement.

14.A meeting was held on 10 March 1978 involving BMT and Sindo. Sindo agreed to submit fresh plans such that the caretaker`s hut would be 15 feet away from the boundary of the delineated land. Fresh plans were received in March 1978. The plans were...

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