Cheng-Wong Mei Ling Theresa v Oei Hong Leong

• Judge: Chao Hick Tin JA
• Judgment Date: 31 March 2006
• Neutral Citation: [2006] SGCA 12
• Citation: [2006] SGCA 12
• Defendant Counsel: Loo Ngan Chor (Lee & Lee)
• Published date: 03 April 2006
• Plaintiff Counsel: C R Rajah SC, Anand Karthigesu and Moiz Haider Sithawalla (Tan Rajah & Cheah)
• Date: 31 March 2006
• Docket Number: Notice of Motion No 118 of Civil Appeal No 113 of 2005
• Court: Court of Appeal (Singapore)
• Subject Matter: Land,Civil Procedure,Whether appellant having locus standi to seek declaration,Evidence relating to new point not raised by parties at trial but considered by judge in grounds of decision,Locus standi,Easements,Whether appellant having equitable interest in land under sale and purchase agreement,Rights of way,No easement of way registered against certificate of title of adjoining property,Whether implied easement of way existing,Appellant seeking declaration as to future rights as registered proprietor of land pursuant to sale and purchase agreement,Parties,Only access to property through land belonging to adjoining property,Appeals,Adducing fresh evidence,Whether court should allow fresh evidence to be adduced,Sections 99(1), 99(1A) Land Titles Act (Cap 157, 2004 Rev Ed)

31 March 2006

Kan Ting Chiu J (delivering the judgment of the court):

Background

1 A bungalow that was constructed more than 40 years ago was faced with the prospect of having its only access to the public road removed. When it was developed, access was provided through a short driveway over the land of the adjoining bungalow. These two bungalows were parts of a development on an undivided lot of land. After the subdivision, the bungalows stood on their own separate plots. Subsequently, when certificates of title were issued in respect of the plots on which the two bungalows stood, no express right of way was created. A dispute arose over whether there is an implied easement of way.

2 The first plot with the bungalow is No 48 Dalvey Road (“No 48”). The adjoining plot and bungalow is No 48A Dalvey Road (“No 48A”). There were other bungalows developed on other plots that were created out of the parent lot, but this case is only concerned with the two plots.

3 The parent lot was Lot 45 Town Subdivision No XXV (“Lot 45”). It was owned by Singapore Tobacco Company (Private) Ltd (“Singapore Tobacco”). On 14 July 1970, Singapore Tobacco obtained approval to subdivide Lot 45 into 13 plots. Plots 1 to 8 were expressly described to contain an existing house each, and the subdivision plan showed that No 48 stood on Plot 6 and No 48A stood on adjoining Plot 7, with the word “Access” written on the northerly part of Plot 6 where it abutted Plot 7.

4 On 18 November 1971, Lot 45 was brought under the Land Titles Act (Cap 276, 1970 Rev Ed). Plot 6 became Lot 473 and Plot 7 became Lot 472, and certificates of title, dated 30 December 1971, were issued for Lot 473 and Lot 472.

5 An error made in the demarcation of Lot 472 left a part of Plot 7 out of Lot 472. This was rectified with the creation of a new Lot 1122 in place of Lot 472, and the issuance of a new certificate of title on 13 March 1987. None of the certificates of title issued refer to any right of way for No 48 over No 48A.

6 The ownership of No 48/Lot 473 and No 48A/Lot 1122 changed hands as follows:

(a) No 48/Lot 473 was transferred by Singapore Tobacco to William Goei and Tan May Lee on 10 November 1975, who in turn transferred it to Thye Hong Manufacturing Pte Ltd (“Thye Hong”) on 21 March 1980;

(b) No 48A/Lot 1122 was transferred by Singapore Tobacco to Oei Hong Leong (“the defendant”) on 5 September 1990.

The application

7 On 20 April 2005, Thye Hong entered into an agreement to sell No 48 to the plaintiff, Theresa Cheng-Wong Mei Ling. As there was no express right of way for No 48 over No 48A, cl 8 of the agreement provided that:

The sale and purchase herein is subject to the Purchaser obtaining a declaration from the High Court in Singapore (hereinafter called “the declaration”) that the Property (comprised in Lot 473 TS 25) enjoys an implied easement of way in accordance with the provisions of Section 99(1) of the Land Titles Act, Cap 157 over the property known as 48A Dalvey Road (comprised in Lot 472 TS 25) for the purpose of access to and from Dalvey Road as shown on the plan annexed hereto….

In the event that the declaration is not obtained within six (6) months from the date of this Agreement, this Agreement shall be deemed null and void and the Vendor shall after the return of the title deeds and the withdrawal of all caveats filed by the Purchaser and all persons claiming under him, refund to the Purchaser the Deposit free of interest and neither party shall have any claim or demand against the other for costs damages compensation or otherwise.

8 Easements of way are implied under ss 99(1) and 99(1A) of the current Land Titles Act (Cap 157, 2004 Rev Ed) (“the Act”) which provide that:

99.—(1) Where the competent authority has approved the development and subdivision of any land comprised in an estate before or after 1^st arch 1994 and the subdivision plan has been submitted to the competent authority, there shall be implied, in respect of each lot of the estate which is used or intended to be used as a separate tenement, in favour of the registered proprietor of the lot and as appurtenant thereto, all the easements referred to in subsection 1A).

(1A) The easements which shall be implied under subsection (1) are all such easements of way and drainage, for party wall purposes and for the supply of water, gas, electricity, sewerage and telephone and other services to the lot on, over or under the lands appropriated or set apart for those purposes respectively on the subdivision plan submitted to the competent authority relating to the estate, as may be necessary for the reasonable enjoyment of the lot and of any building or part of a building at any time thereon.

9 After entering into the agreement, the plaintiff took out an originating summons against the defendant to seek:

A declaration that the property known as Lot No. 73 Town Sub-Division No. XV together with the building thereon known as 48 Dalvey Road (“48 Dalvey Road”) enjoys an implied easement of way in accordance with the provisions of Section 99(1) of the Land Titles Act, Cap 157 over the property known as Lot No. 472 (now forming part of Lot No. 1122) Town Sub-Division No. XXV together with the building thereon known as 48A Dalvey Road (“48A Dalvey Road”) for the purpose of access to and from Dalvey Road as shown on the plan annexed hereto.

10 In support of the application, the plaintiff made an affidavit in which she deposed that:

(a) the driveway through No 48A was the only means of access from No 48 to Dalvey Road;

(b) she was informed by Thye Hong that in December 2004 the defendant had erected an electronic security barrier along the common driveway of No 48 and No 48A leading to Dalvey Road and that there was unobstructed access before the barrier was erected; and

(c) Thye Hong had written to the defendant on 16 December 2004 for a remote control device to operate the barrier to give access to No 48, but the defendant did not respond to the request.

11 In the affidavit, the plaintiff gave a history of No 48 and No 48A from the subdivision in 14 July 1970 through to the issuance of the separate titles for the two properties and the rectified title for No 48A on 13 March 1987. It is to be noted that in her affidavit she did not refer to any approvals for the development of the two bungalows in No 48 and No 48A.

The decision below

12 The plaintiff’s application came on for hearing before a judge. Although the defendant opposed the plaintiff’s application, no affidavit was filed in opposition to it. After hearing counsel and reserving judgment, the judge dismissed the application (see Cheng-Wong Mei Ling Theresa v Oei Hong Leong [2006] 1 SLR 145).

13 In her grounds of decision , the judge dealt with the defendant’s counsel’s preliminary objection that the plaintiff did not have locus standi to seek the declaration because she had not completed the purchase of the property, and that only a registered proprietor had the right to do that:

14 She rejected that objection and held at [11]:

If there was a valid contract, the plaintiff would have an equitable interest in the property and the vendor would hold the property as constructive trustee: see Tan Sook Yee, Principles of Singapore Land Law (Butterworths Asia, 2nd Ed, 2001) at p 355. In my view, the Sale and Purchase Agreement was a valid contract even though it was made subject to certain conditions. I would characterise cl 8 of the Sale and Purchase Agreement as a condition subsequent.

While we agree that the plaintiff had an equitable interest in the property under the agreement, we did not come to our conclusion that the agreement was a valid agreement solely because cl 8 was not a condition precedent which had to be fulfilled before a contract can come into being, but was a condition subsequent.

15 It is apposite to refer to Prof Tan Sook Yee’s explanation at pp 355–356 that:

It is generally accepted that the purchaser, under a valid contract for sale, has the equitable interest in the land while the vendor is the constructive trustee. The locus classicus is Lysaght v Edwards [(1876) 2 Ch D 499]. The basis of the imposition of the constructive trust in this situation is that the parties are entitled to the remedy of specific performance. There is, however, some difference of views as to when the equitable interest passes to the purchaser or when the constructive trust arises. There is a view that it arises as soon as the contract is entered into, while another view is that it arises only when the contract is binding and then it is related back to the time when the contract was entered into.

While there may be doubt in other jurisdictions, in Singapore the view of the courts is clearly that the equitable ownership passes when the contract is enforceable and binding. [emphasis added]

citing the decisions of the Court of Appeal in Lee Christina v Lee Eunice [1993] 3 SLR 8 and British Malayan Trustees Ltd v Sindo Realty Pte Ltd [1999] 1 SLR 623.

16 In Lysaght v Edwards, Jessel MR had explained at 506–507:

[T]he moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase-money, a charge or lien on the estate for the security of that purchase-money, and a right to retain possession of the estate until the purchase-money is paid, in the absence of express contract as to the time of delivering possession. In other words, the position of the vendor is something between what has been called a naked or bare trustee, or a mere trustee.

…

Now, what is the meaning of the term “valid contract?” “Valid contract” means in every case a contract sufficient in form and in substance, so that there is no ground whatever for setting it aside as between the vendor and purchaser—a contract binding on both parties.

17 The same proposition (and more) was stated without reference to Lysaght...