Chang Yu-Ling v Dominic Lim Kian Gam

• Jurisdiction: Singapore
• Judge: Dorothy F M Ling
• Judgment Date: 06 May 2020
• Neutral Citation: [2020] SGDC 117
• Court: District Court (Singapore)
• Hearing Date: 15 August 2019,27 June 2019,15 October 2019,26 June 2019
• Docket Number: Suit No 1825 of 2018
• Plaintiff Counsel: Jimmy Yim SC and Grace Morgan (Drew & Napier LLC)
• Defendant Counsel: Jason Chan SC, Evangeline Oh and Kiron Cheong (Allen & Gledhill LLP)
• Subject Matter: Tort,Trespass,Goods,Landlord & Tenant,Recovery of possession,Breach of covenant,Common law requirement for non-payment of rent,Waiver by election,Civil Procedure,Pleadings
• Published date: 16 July 2020

District Judge Dorothy F M Ling: Introduction

This is the plaintiff’s claim against the defendant for damages for, amongst other things, trespassing and for items of her belongings which went missing during her term of tenancy at the defendant’s property. Her alternative claim is in negligence; that the defendant owed her a duty of care to ensure that her belongings did not go missing.

The defendant counterclaims for, amongst other items, unpaid rent and interest.

As I considered the facts to be pertinent in this case, I have taken care to set them out in some detail.

Facts¹ The Tenancy Agreement

The defendant is the owner of an apartment unit at 38 St Thomas Walk (“the Unit”). On or about 15 September 2016, the plaintiff and the defendant entered into a 2-year tenancy agreement (“Tenancy Agreement”) for the plaintiff to lease the Unit from the defendant from 17 October 2016 at a monthly rent of S$3,500.

By the terms of the Tenancy Agreement,² save for “[t]he first payment of rent [which was] “payable on the signing of th[e] Agreement”, ³ the plaintiff was to pay the rent of the subsequent months “monthly in advance without deduction whatsoever on the 17th day of each month”.⁴

Also pursuant to the Tenancy Agreement, the plaintiff paid the defendant a deposit of S$5,000 “as security against the breach of any term or condition of th[e] Agreement”.⁵ It was also provided in the Tenancy Agreement that the “deposit shall not be utilised as set-off for any rent due and payable during the currency of th[e] Agreement”.⁶

Late rent payments

From the second month of the tenancy, however, it is not disputed that the plaintiff did not observe the due date for payment of the rent:⁷ the rent due and payable on 17 Nov 2016 was paid on 2 Dec 2016; the rent due and payable on 17 Dec 2016 was paid on 3 Jan 2017; the rent due and payable on 17 Jan 2016 was paid on 20 Jan 2017; the rent due and payable on 17 Feb 2016 was paid on 2 Mar 2017; and so, it went on in that fashion.

Short rent payments

It even came to a point when the rent was not just late. It was also short. Both the plaintiff and the defendant then became unsure for which month or months the incomplete payments were for. However, with the tabulation of the rental payments⁸ for purposes of the trial (information in the table not disputed by the plaintiff), the rental payments could be appropriated as follows: S$3,500 due and payable on 17 May 2017 was satisfied by – S$1,500 paid on 5 June 2017; S$1,500 paid on 6 June 2017; and S$ 500 paid on 5 July 2017; S$3,500 due and payable on 17 June 2017 was satisfied by – S$3,000 paid on 2 August 2017; and S$ 500 from the S$2,000 paid on 31 August 2017; S$3,500 due and payable on 17 July 2017 was satisfied by – S$1,500, being the balance from the S$2,000 paid on 31 August 2017; S$1,000 paid on 4 September 2017; and S$1,000 from the S$2,000 paid on 5 September 2017; S$3,5000 due and payable on 17 August 2017 was satisfied by – S$1,000, being the balance from the S$2,000 paid on 5 September 2017; and S$2,500 from the S$3,500 paid on 29 September 2017; and so, this pattern continued.

Notices of demand (28 August 2017) and repossession (2 October 2017)

In his affidavit, the defendant deposed that he made demands of the plaintiff for the outstanding rents. On 28 August 2017, the defendant issued the plaintiff a “Notice of Demand”⁹ (“28 August Demand Notice”). The 28 August Demand Notice referred to the plaintiff’s “failure to pay rent due to the Landlord on 17 July 2017 and 17 August 2017, totalling S$7,000.”¹⁰ It also mentioned the interest that is due on the late payments provided for in clause 4(b) of the Tenancy Agreement.

The 28 August Demand Notice also required the plaintiff to ‘rectify the breach’ (my paraphrase) within the next four days. It is noted that on 31 August 2017, the plaintiff paid the defendant S$2,000. However, the Court further noted that this S$2,000 still did not satisfy the rents which were earlier due on 17 July 2017 and 17 August 2017. Demands for rent payment therefore continued, including on 17 September 2017 and 1 October 2017.¹¹

On 2 October 2017, the defendant issued the plaintiff what he had referred to in his affidavit¹² as a “Notice of Repossession”¹³ (“2 October Repossession Notice”). In this 2 October Repossession Notice, the defendant referred to the plaintiff’s “failure to pay rent due to the Landlord on 17 July 2017 and 17 August 2017, totalling S$7,000.”¹⁴

The defendant also engaged his own locksmith to change the lock of the Unit “to keep Yu-Ling out of the Unit”.¹⁵ However, 2 days later on 4 October 2017, the defendant learnt that the plaintiff had “engaged her own locksmith (without [the defendant’s] permission or knowledge) [and] unlock[ed] the Unit in order to continue occupying the Unit.”¹⁶ From thence, as the defendant had not made available the key to the new lock to the plaintiff, it was not disputed that the plaintiff “continued to occupy the Unit with the main door unlocked.”¹⁷

Subletting without “written consent”

Despite what happened on 2 October 2017, the plaintiff continued to be late in paying her rent, and the defendant continued to make demands for the rent. In mid-December 2017, the defendant also discovered that the plaintiff had sublet a room in the Unit without his “written consent”¹⁸ as was required under clause 2(t) of the Tenancy Agreement.

On 29 December 2017, the defendant issued another “Notice of Repossession” ¹⁹ to the plaintiff (“29 December Repossession Notice”). In this 29 December Repossession Notice, the defendant made reference to the plaintiff’s late payment of rent and her subletting of a room in the Unit without the defendant’s consent. The plaintiff was given notice to “evict from [the Unit]… by 1 January 2018… or on a later date as agreeable by the Landlord, subject to the Landlord’s consent in his sole discretion.”²⁰

The plaintiff did not move out of the Unit on 1 January 2018. On 2 January 2018, she made a payment of S$3,000 to the defendant. Again, this was not enough to clear her outstanding rent. Angry text messages continued to be exchanged between the parties.

The 26 January 2018 Meeting and after

On 26 January 2018, “at around 1.30pm…”,²¹ the parties met to discuss the situation (“26 January Meeting”). Following from the meeting, according to the plaintiff, “Dominic and I agreed…”²² and the plaintiff went on to enumerate what they both allegedly agreed:²³ (a) My lease of the Unit would end on 25 February 2018. (b) Before the end of my lease on 25 February 2018, I would be entitled to my full rights as tenant of the Unit, including my right to quiet enjoyment of the Unit. (c) Before the end of my lease on 25 February 2018, I would try my best to pay the outstanding rent for January 2018 to Dominic as soon as possible. However, I made it clear to Dominic – and Dominic agreed – that my moving out date of 25 February 2018 was not conditional upon my immediate payment of the outstanding rent.

The plaintiff further deposed in her affidavit²⁴ that at the 26 January Meeting, she also reminded the defendant about the S$5,000 deposit that she had paid him pursuant to the Tenancy Agreement. She was of the view that that would be sufficient to cover the 17 January 2018 rent.

Contrary to the plaintiff’s version of the story regarding the outstanding rent with the moving out date, it was the defendant’s position that the plaintiff “could stay in the Unit until 25 February 2018 provided that she made immediate payment of S$3,500”²⁵ (emphasis in original).

It was also not disputed that after the 26 January Meeting, the defendant sent the plaintiff the following WhatsApp messages:²⁶

26/01/2018, 14:08 - dominiclimkg: Yuling, this is to confirm moving out on 25 Feb and handling [sic] back to me the unit. Thanks.

26/01/2018, 14:13 - dominclimkg: We have the discussion earlier and thanks for confirming the date. Please also settle the overdue rental for amount of S$3.5k immediately. Thanks.

26/01/2018, 14:36 - dominiclimkg: Just to put on record that the 25 Feb date is your proposed date and will be the agreed date by both parties.

After the discussion of the 26 January Meeting, the rent continued to remain outstanding. On 29 January 2018, the defendant asked for an update on the arrears of rent.²⁷ On 30 January 2018, when the defendant still did not receive any rent, he sent a WhatsApp message to the plaintiff, timestamped 6.43pm saying, “I WILL LOCK UP THIS UNIT FROM TOM [(tomorrow)] ONWARDS !” [Uppercase in original.]

The locking up of the Unit – 4 February 2018

On 3 February 2018, the defendant learnt that the plaintiff was overseas.²⁸ The plaintiff had in fact travelled to Malaysia on Friday, 2 February 2018.²⁹ According to the plaintiff,³⁰ she was overseas in Kuala Lumpur to renew her employment pass and “was planning to stay [there] only for the weekend and return to Singapore thereafter”. That evening, at about 10.17pm, the defendant sent the plaintiff a WhatsApp message which reads: “I AM NOW GIVING YOU THE NOTICE OF REPOSSION [sic]”.³¹ (Uppercase in original.) There were a few text message exchanges and at 12.04am of 4 February 2018, the defendant messaged the plaintiff, “I HAVE TAKEN BACK THE UNIT. …”³² [Uppercase again in original.] The plaintiff was still overseas then.

In the evening of 4 February 2018, the parties made arrangement for the defendant to pick the plaintiff up that evening from the airport and to return to the Unit together. However, despite the defendant being at the airport from about 10.30pm to 11.30pm, he did not get to meet the plaintiff. It turned out that the plaintiff was denied entry into Singapore via tourist visa and had to return to Kuala Lumpur to wait for her employment pass to be renewed.³³

The S$2,000 to be paid by 8 February 2018

The issue of the plaintiff occupying the Unit...