Chan Lung Kien v Chan Shwe Ching

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA,Tay Yong Kwang JA,Steven Chong JA
• Judgment Date: 15 May 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 141 of 2017
• Date: 15 May 2018

Chan Lung Kien

and

Chan Shwe Ching

[2018] SGCA 24

Sundaresh Menon CJ, Andrew Phang Boon Leong JA, Judith Prakash JA, Tay Yong Kwang JA and Steven Chong JA

Civil Appeal No 141 of 2017

Court of Appeal

Civil Procedure — Judgments and orders — Enforcement — Writs of seizure and sale — Creditor seeking execution against debtor's interest in registered land — Whether joint tenancy in registered land severed prior to writ of seizure and sale

Land — Interest in land — Joint tenancy — Severance of joint tenancy of registered land — Joint tenant unilaterally declaring intention to sever joint tenancy — Joint tenancy using instrument of declaration without proper service and registration — Whether joint tenancy severed at common law — Whether joint tenancy severed pursuant to statute — Sections 53(5) and 53(6) Land Titles Act (Cap 157, 2004 Rev Ed)

Held, dismissing the appeal:

(1) Under the common law, a unilateral declaration of severance by one joint tenant could not sever a joint tenancy, no matter how clear and unequivocal the declaration was. Sivakolunthu Kumarasamy v Shanmugam Nagaiah[1987] SLR(R) 702 established the law in Singapore on modes of severance at common law, and there was no reason to depart from it. More importantly, on the basis that the case correctly expressed the law, Parliament had taken legislative action in order to provide a statutory mode of severance by unilateral declaration: at [17], [41] and [42].

(2) Under ss 53(5) and 53(6) of the LTA, a joint tenant who was desirous of severing his joint tenancy in registered land using the statutory mode hadto take three steps: (a) execute an instrument of declaration in the approved form; (b) serve this instrument personally or by registered post on every other joint tenant; and (c) register the instrument on the Land-register. Sections 53(5) and 53(6) had to be looked at as a whole and as providing for a single mode of severance which was made up of three steps: at [48] and [65].

(3) The case of Diaz Priscillia v Diaz Angela[1997] 3 SLR(R) 759 (“Diaz”) held that a severance as between the joint tenants themselves would occur on completion of the first two steps in s 53(5) of the LTA without the third step of registration in s 53(6). Based on the plain reading of ss 53(5) and 53(6) now adopted by this court, the holding in Diaz could not be supported. DiazENR purported to lay down a principle which was at odds with commonly accepted concepts of land law and gave a strained interpretation to ss 53(5) and 53(6) of the LTA by viewing each of them as a separate mode of severance with an independent legal effect: at [49] and [62] to [65].

(4) Since the instrument of declaration executed by the debtor's husband in the form approved pursuant to s 53(5) was not registered, it was not effective at all under the LTA to sever the joint tenancy with the debtor. In any case, the debtor's husband did not even completely comply with s 53(5) because the instrument was not served by the modes of service specified by s 53(5). Accordingly, the appeal was dismissed: at [66] and [67].

Case(s) referred to

Burgess v Rawnsley [1975] Ch 429; [1975] 3 All ER 142 (refd)

Diaz Priscillia v Diaz Angela [1997] 3 SLR(R) 759; [1998] 1 SLR 361 (overd)

Draper's Conveyance, Re [1969] 1 Ch 486 (refd)

Harris v Goddard [1983] 1 WLR 1203 (refd)

Hawkesley v May [1956] 1 QB 304 (refd)

Jack Chia-MPH Ltd v Malayan Credit Ltd [1983–1984] SLR(R) 420; [1984–1985] SLR 127 (refd)

Malayan Banking Bhd v Focal Finance Ltd [1998] 3 SLR(R) 1008; [1999] 3 SLR 229 (refd)

Ng Kim Chwee v Chua Chiew Hai [1998] 2 SLR(R) 111; [1998] 3 SLR 140 (refd)

Nielson-Jones v Fedden [1975] Ch 222; [1974] 3 WLR 583 (refd)

Partejche v Powlet (1740) 4 West T Hard 788 (refd)

Shanmugam Nagaiah v Sivakolunthu Kumarasamy [1985–1986] SLR(R) 408; [1984–1985] SLR 791 (refd)

Sivakolunthu Kumarasamy v Shanmugam Nagaiah [1987] SLR(R) 702; [1987] SLR 182 (folld)

Tan Chew Hoe Neo v Chee Swee Cheng (1929) 1 MLJ 643 (refd)

Wilks, Re [1891] 3 Ch 59 (refd)

Williams v Hensman (1861) 70 ER 862 (refd)

Facts

In separate actions, the appellant and the respondent each obtained judgments against one Mdm Leong Lai Yee (“the debtor”) in June 2015. They each sought to enforce their judgments.

The debtor and her husband owned 9 Jalan Tanah Rata (“the Property”) as joint tenants. On 10 July 2015, the respondent obtained an order for the debtor's interest in the Property to be attached and taken in execution under a writ of seizure and sale (“WSS”) to satisfy her judgment. This WSS was registered with the Singapore Land Authority on 24 July 2015.

On 9 July 2015, the debtor's husband executed an instrument of declaration in the form approved pursuant to s 53(5) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“LTA”) whereby he declared that he wished to sever the joint tenancy and hold the Property as a tenant in common with the other registered proprietor in the share proportionate to the number of joint tenants. Subsequently, on 4 August 2015, the debtor's husband advertised a “Severance Notice” in The Straits Times, addressed to the debtor and giving her notice that he intended to sever the joint tenancy and hold the Property as a tenant in common with her.

On 16 September 2015, the appellant obtained an order for the debtor's interest in the Property to be attached and taken in execution under a WSS to satisfy his judgment. This WSS was registered with the Singapore Land Authority on 12 November 2015.

Thereafter, the bank which held a mortgage over the Property procured a mortgagee's sale. The sale was completed on 19 April 2016. On 21 April 2016, the debtor was made a bankrupt.

In September 2016, the appellant applied to the High Court for a declaration that the respondent's WSS was void and/or unenforceable. The High Court held that a joint tenant's interest could not be attached and taken in execution under a WSS. Further, the Severance Notice did not sever the joint tenancy prior to the appellant's WSS. Therefore, both the appellant's and the respondent's WSS orders were ineffective in attaching the debtor's interest in the Property. Accordingly, the debtor's share of the balance sale proceeds had to be paid to her trustee in bankruptcy.

The appellant appealed against the High Court's holding that his WSS was ineffective because the joint tenancy in the Property had not been severed by the acts of the debtor's husband. Neither party appealed against the High Court's holding that prior to severance, a joint tenant's interest in jointly held property could not be attached.

Legislation referred to

Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) ss 66A(3), 66A(4)

Land Titles Act (Cap 157, 2004 Rev Ed) ss 53(5), 53(6) (consd); ss 28, 45(1), 53(8), 60A(2), 60A(4), 115(3), 132

Law of Property Act 1925 (c 20) (UK) s 36(2)

Chan Wai Kit Darren Dominic and Daniel Ng (Characterist LLC) for the appellant;

Respondent in person (absent).

15 May 2018

Judgment reserved.

Judith Prakash JA (delivering the judgment of the court):

Introduction

1 The questions that we have to address in this appeal are first, whether a co-owner of registered land who holds his interest as a joint tenant with the other co-owner(s) can, outside of the statutorily provided procedure, unilaterally sever that joint tenancy by a declaration of intention to sever; and second, how the mode of severance provided for by ss 53(5) and 35(6) of the Land Titles Act (Cap 157, 2004 Rev Ed) (the “LTA”) is to be applied or implemented.

Background

2 The facts leading up to this appeal are straightforward and not in dispute. The appeal pertains to the land and premises known as 9 Jalan Tanah Rata, Singapore (“the Property”). The Property is registered land under the LTA and the Land-register, at all material times in 2015, showed that the owners of the Property, as joint tenants, were one Mdm Leong Lai Yee and her husband, Mr Lim Eng Soon. In early 2015, two separate actions were commenced in the High Court against Mdm Leong. The first was commenced by Ms Chan Shwe Chiang in April 2015 and the other was commenced in May 2015 by Mr Chan Lung Kien. Mr Chan Lung Kien and Ms Chan Shwe Chiang are, respectively, the appellant and respondent in the present appeal and to avoid confusion we will henceforth refer to them as such.

3 In May 2015, reports appeared in the local press suggesting that Mdm Leong was suspected of defrauding a number of people through a scheme involving investment in real property and that promises made by her to repay the investors had not been kept. The report mentioned that Mdm Leong could not be found or contacted. There was speculation that she had gone abroad.

4 In June 2015, the appellant and the respondent succeeded in their respective claims against Mdm Leong. The respondent obtained a summary judgment against her for approximately $1.4m plus interest and costs while the appellant entered judgment against her in default of appearance for in excess of $8.4m plus interest and costs. Thereafter, both sought to enforce their respective judgments. The respondent was the first to take action. On 10 July 2015, the respondent obtained an order for Mdm Leong's interest in the Property to be attached and taken in execution under a writ of seizure and sale to satisfy her judgment. The writ of seizure and sale was registered with the Singapore Land Authority on 24 July 2015 pursuant to s 132 of the LTA.

5 As the parties subsequently became aware, in the meantime Mr Lim, the co-owner of the Property, had taken steps in an attempt to sever the joint tenancy over the Property. On 9 July 2015, Mr Lim appeared before a notary public in Melbourne and executed an instrument of declaration in the form approved pursuant to s 53(5) of the LTA whereby he declared that he wished to sever the joint tenancy and hold the Property as a tenant in common with the...