Cheng-Wong Mei Ling Theresa v Oei Hong Leong

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 14 October 2005
• Neutral Citation: [2005] SGHC 194
• Date: 14 October 2005
• Subject Matter: Court judgments,No easement of way registered against certificate of title of adjoining property,Whether court having power to grant declaration as to plaintiff's future rights as registered proprietor of land where such rights conditional upon plaintiff's successful application for declaration,Courts and Jurisdiction,Vehicular access to property obstructed by security barrier on land belonging to adjoining property,Land,Easements,Rights of way,Sections 99(1), 99(1A) Land Titles Act (Cap 157, 2004 Rev Ed),Declaratory,Whether implied easement of way existing
• Docket Number: Originating Summons No 644 of 2005
• Published date: 17 October 2005
• Defendant Counsel: Loo Ngan Chor (Lee and Lee)
• Court: High Court (Singapore)
• Plaintiff Counsel: C R Rajah SC, Anand Karthigesu and Moiz Sithawalla (Tan Rajah and Cheah)

1 By a sale and purchase agreement dated 20 April 2005 (“the Sale and Purchase Agreement”), Thye Hong Manufacturing Pte Ltd (“Thye Hong”), as registered proprietor, sold a property with an address at 48 Dalvey Road, Singapore (“No 48”), to the plaintiff, Theresa Cheng-Wong Mei Ling, a gynaecologist. The land, including the building thereon, is comprised in Certificate of Title Vol 96 Folio 98 (“the Certificate of Title”). The property was expressed to be sold subject, inter alia, to rights of way and other rights and easements (if any) affecting the property and endorsed on the Certificate of Title. As no easement of way was registered on the Certificate of Title that the property has appurtenant to it a right of way over the adjoining property, the sale was expressed to be subject to the purchaser obtaining a declaration in the terms asked for in Originating Summons No 644 of 2005. The application reads:

A declaration that the property known as Lot No. 473 Town Sub-Division No. XXV 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.

2 The defendant, Oei Hong Leong, is the registered proprietor of 48A Dalvey Road (“No 48A”) which adjoins No 48. Vehicular traffic to Nos 48 and 48A from Dalvey Road and vice versa has to pass over the spur of land forming part of No 48A (“the crossover”). In December 2004, a security barrier was erected by the defendant across the crossover leading to both properties. The barrier obstructed passage to and from No 48. The barrier was from time to time raised either by the security guard or the defendant’s domestic helper whenever the guard was off duty. A request made to the defendant by the company secretary of Thye Hong for a remote control device (to be supplied at Thye Hong’s expense) to alleviate the inconvenience of summoning assistance for the barrier to be raised was met with silence.

3 Mr Chelva Rajah SC, assisted by Mr Anand Karthigesu and Mr Moiz Sithawalla, represents the plaintiff. Mr Loo Ngan Chor represents the defendant.

4 A registered proprietor holds his land absolutely free from all encumbrances, liens, estates, or interests whatsoever other than those registered or notified on the certificate of title, save in the cases expressly mentioned: see s 46(1) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the Act”). It was common ground that no easement of way was registered on the defendant’s title that it was subject to an easement of way in favour of the registered proprietor of No 48 and, on the title of No 48, that the ownership of this property had appurtenant to it a right of way over No 48A. Mr Rajah confirmed that the plaintiff’s claim was entirely based on s 99(1) of the Act, which is an exception in s 46(1)(ii), namely, “any statutory easement implied under sections 98, 99, 101, 102 and 104”.

History of the site

5 The facts were not in dispute. Mr Loo explained that it was for that reason that no affidavit was filed on behalf of the defendant to resist the application. Much of the information in the decision is distilled from the plaintiff’s Affidavit of 20 May 2005 and the documents accompanying her Affidavit, as well as the documents exhibited in the Affidavit of Anand Karthigesu of 25 July 2005.

6 Prior to 14 July 1970, both Nos 48 and 48A formed part of Lot 45 Town Subdivision No XXV (“Lot 45”) which was then owned by Singapore Tobacco Company (Private) Ltd (“Singapore Tobacco”). The plaintiff here relied solely on a plan dated 22 March 1969 together with a copy of the competent authority’s written permission for amalgamation and subdivision of four lots of land dated 14 July 1970 approving the plan (“the Subdivision Plan”). The Subdivision Plan depicted the amalgamation and subdivision of Lots 44-5, 45, 46-6 and 53 Town Subdivision No XXV into 13 plots. Plot 6 is now Lot 473 (No 48) and Plot 7 became Lot 472 (now forming part of Lot 1122) (No 48A). According to an exhibit marked “AK-2”, the Subdivision Plan was not coloured. As the land comprised within Lots 472 and 473 were in the common ownership of Singapore Tobacco, Mr Rajah accepted that there could not have been, at that point in time, “any subsisting easement” allowing access to Lot 473 from Lot 472. Lot 45 was brought under the Land Titles Act (Cap 276, 1970 Rev Ed) and a certificate of title was issued on 18 November 1971.

7 On 28 November 1971, Singapore Tobacco applied for new certificates of title to be issued for the 13 plots. New certificates of title were duly issued. For Lot 473, there was Certificate of Title Vol 96 Folio 98 dated 30 December 1971. For Lot 472, there was Certificate of Title Vol 96 Folio 97 dated 30 December 1971.

8 Singapore Tobacco later sold No 48 and the property was registered in the name of William Goei and Tan May Lee on 10 November 1975. The latter sold the property to Thye Hong who became the registered proprietor on 21 March 1980.

9 As for No 48A, there was an amalgamation of Lot 702 Town Subdivision No XXV with Lot 472 and they became Lot 1122 and a new certificate was issued. This was Certificate of Title Vol 306 Folio 165 dated 13 March 1987. Some three years later, Singapore Tobacco sold No 48A to the defendant who became its registered proprietor on 5 September 1990.

Preliminary objections

10 The defendant questioned the plaintiff’s locus standi to seek the declaration here. The court was asked to grant a declaration based on hypothetical rights. The plaintiff had not yet acquired the property and only a registered proprietor was eligible to seek a declaration for an implied easement of way under s 99 of the Act. The common easements implied under s 99 exist in favour of a registered proprietor and not a purchaser of No 48. The present sale was nowhere near completion. The purchaser had only paid $10,000 under the contract for the property with a high price tag of $11.9m whereas the common experience of most people in the landed property market was a deposit of 10% of the purchase price, which was the norm. There was no evidence as to the status of the transaction in the sense that there had been satisfactory compliance with the other various conditions of sale. To that end, a declaration in the terms sought would place the court in an invidious position for it would be entertaining a question which was moot or in abstraction. The rights of such a purchaser were, at best, hypothetical, rather than future, rights. Mr Loo cited Bruce v The Commonwealth Trade Marks Label Association (1907) 4 CLR 1569, where the High Court of Australia refused to entertain the question as it was not empowered to make a declaration on a moot question or an abstract proposition.

11 Counsel for both sides had referred to the contract as a conditional contract. The important consideration was whether or not there was a valid contract. 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, 2^nd 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. Clause 8 provided that in the event the declaration was not obtained within six months from the date of the agreement, the agreement would then be deemed null and void. In the event, the deposit was to be refunded to the plaintiff who was obliged to return the title deeds to the property and withdraw all caveats filed on her behalf. Under the agreement, the plaintiff was fully responsible for the legal fees and expenses associated with obtaining a determination of the declaration sought. Whilst there may not be an up-to-date status report on the transaction, the fact of the matter is that the plaintiff had filed this Originating Summons and proceeded with the hearing of the Originating Summons. These were clear and strong indications of the plaintiff’s genuine intention to complete the sale if her application succeeded, there being no other reason not to complete. The subject matter of the Originating Summons concerned an expensive piece of real estate with a potential problem on access to and from the property. I was of the view that the plaintiff with an equitable interest in the property had a real interest in raising the issue in dispute. I was not persuaded by Mr Loo’s arguments that the application was premature. In this case, there was no dispute of facts. I was also mindful that the declaration sought in the Originating Summons would serve as a convenient procedure to determine essentially a question of construction of s 99 of the Act. The plaintiff was seeking a declaration as to her future rights as a registered proprietor which was conditional upon her succeeding before this court. This court has the power to grant a declaration of the nature sought even though it was based on a future right which were conditional upon the happening of an event: see Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435 at 501 which was reproduced, and his lordship’s approach approved, in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2005] SGCA 47 at [15] and [25]. I therefore saw no reason to refuse, in the exercise of discretion, to entertain the application. In any case, the application was made in accordance with cl 8 of the Sale and Purchase Agreement and hence it had the consent of the registered proprietor, Thye Hong.

Statutory easements

12 Mr Rajah...