Chew Ai Hua Sandra v Woo Kah Wai

Judgment Date28 June 2013
Date28 June 2013
Docket NumberSuit No 448 of 2011
CourtHigh Court (Singapore)
Chew Ai Hua Sandra
Woo Kah Wai and another (Chesney Real Estate Pte Ltd, third party)

Lionel Yee JC

Suit No 448 of 2011

High Court

Contract—Remedies—Specific performance—Breach of agreement to grant option—Property sold to third party—Delay in commencing action—Whether specific performance appropriate remedy

Damages—Measure of damages—Contract—Breach of agreement to grant option—Whether general measure of damages for breach of contract for sale of land should be awarded—Whether appropriate to change date as at which damages were assessed

Damages—Practice and procedure—No application to bifurcate trial of liability and damages—Whether assessment of damages should be ordered—Order 33 r 2 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The defendants (‘the Defendants’) engaged the third party (‘the Third Party’), a real estate agency, to assist in the sale of a property they jointly owned. On 11 February 2010, the plaintiff's agent, Adrian Thoo, presented a document described as an ‘Offer to Purchase’ (‘the Offer’) to the Third Party together with a cheque for the option money. On its terms, the Offer had to be accepted or rejected by 13 February 2010, 4.00 pm. If accepted, an option to purchase with an option period of three days would have to be issued by 13 February 2010, 4.00 pm.

An employee of the Third Party, Masila binte Kamis, prepared an option to purchase (‘Option’). This provided that it had to be exercised before 13 February 2010, 4.00 pm. The First Defendant signed the Option sometime after 5.00 pm on 11 February 2010 and deposited the cheque into his bank account that same evening.

Adrian collected the Option from the Third Party's office around 6.00 pm on 12 February 2010. However, he realised that it was due to expire at 4.00 pm the next day, which was a Saturday and also the eve of the Chinese New Year. He pointed this out to Masila, who arranged for him to speak with the director of the Third Party, Cindy Lim. Adrian claimed that Masila admitted that the deadline specified was not in accordance with the Offer and that Cindy informed him that the Option would be amended accordingly. The Third Party denied this but claimed that the Option remained with Masila so that Cindy could speak with the Defendants on the possibility of amending it.

Adrian claimed that Cindy informed him the following day that the Option would be returned to him unamended, but that the Defendants had agreed that it could be exercised within three working days from the date it was delivered to him. He believed that an extended deadline of Friday, 19 February 2010 was also referred to. In contrast, Cindy claimed that she had merely told Adrian that the Option would not be amended and asked him to collect it from Masila. The Option was eventually collected by Adrian after 5.22 pm on 13 February 2010.

The plaintiff (‘the Plaintiff’) attempted to exercise the Option on 17 February 2010, the first working day after the long weekend, but found the Defendants' solicitors' office closed. Another attempt was made to exercise it on 18 February 2010 but it was rejected by the Defendants' solicitors on the grounds that the deadline had expired.

The Plaintiff prayed for specific performance of the sale of the property, the issuance of an option capable of exercise within three working days or damages to be assessed. She also claimed for her expenditure on alternative accommodation and associated transaction costs.

Held, allowing the Plaintiff's claim:

(1) The Offer was capable of either acceptance or rejection. If it was accepted, an option would have to be issued by 13 February 2010, 4.00 pm. If rejected, the option money had to be returned by the same deadline. The Defendants accepted the Offer by their conduct in banking in the cheque for the option money and in retaining the option money beyond the stipulated deadline: at [20] and [21] .

(2) The Defendants were required to deliver to the Plaintiff an option to purchase that was open for exercise for three calendar days, with the option period commencing from the time it was delivered to the Plaintiff, or, at the very earliest, when it was made available for collection by the would-be purchaser or his agent and the purchaser or agent was informed of this fact: at [29] and [30] .

(3) Given that the Option was not available for collection until 12 February 2012, it had to provide for a deadline of 15 February 2010 at the earliest. The Option therefore did not comply with the terms of the Offer and the Defendants were in breach of their contractual obligations to the Plaintiff: at [33] and [51] .

(4) However, the Plaintiff was unable to prove, on a balance of probabilities, that the Third Party had represented to her or her agent that the option period would be extended beyond the stated deadline of 13 February 2010, 4.00 pm: at [46] .

(5) Specific performance of the sale of the property or the issuance of an option was an inappropriate remedy as the property had already been sold to a third party. The Plaintiff's delay of 16 months in commencing the action also rendered specific performance an inappropriate remedy: at [56] and [57] .

(6) The general rule was that damages were to be assessed as at the date of breach, and the general measure of damages for the breach of a contract for the sale of land was the difference between the market value of the property at the date of completion and the contract price. While the Plaintiff sought to have damages assessed as at the date of judgment and the court had the power to fix such other date as might be appropriate in the circumstances, it was not appropriate to depart from the general approach because of the Plaintiff's delay in commencing the present action: at [58] and [59] .

(7) Although there was only an agreement to grant an option rather than a concluded sale and purchase agreement, there was no evidence that the Plaintiff was not in a position to proceed to complete the purchase. Rather, the evidence suggested that there would have been no practical obstacle to the Plaintiff's exercise of the Option had it been in conformity with the terms of the Offer: at [58] .

(8) It was possible to deduce the market value of the property on the completion date, which would have been on or about 10 May 2010, from the evidence before the court. However, such a deduction would only be a rough estimate as it was not clear how reliable the evidence was and property prices might have been changing rapidly at the time: at [61] .

(9) Although no application to bifurcate the trial of liability and damages had been made, an assessment of damages was ordered. The Plaintiff's claim for damages to be assessed in lieu of and/or in addition to specific performance satisfied the requirement of fair warning and to award the Plaintiff only nominal damages would be an injustice. Any potential unfairness occasioned by giving the Plaintiff another opportunity to prove her loss would be addressed by narrowly circumscribing the assessment of damages to that of ascertaining the market price of the property as at the completion date: at [62] , [63] , [68] and [69] .

(10) The Plaintiff's claim for her expenditure on alternative accommodation and associated transaction costs was dismissed. She would have had to bear the cost or opportunity cost of capital had the transaction been completed, and she needed to prove losses over and above this for this head of claim to succeed: at [72] .

Coles and Ravenshear, Re an Arbitration between [1907] 1 KB 1 (refd)

Goh Lye Chin Raymond v Poon Soon Chin [2010] 4 SLR 1025 (distd)

Ho Kian Siang v Ong Cheng Hoo [2000] 2 SLR (R) 480; [2000] 4 SLR 376 (refd)

Johnson v Agnew [1980] AC 367 (folld)

Joseph Mathew v Singh Chiranjeev [2010] 1 SLR 338 (refd)

Lee Chee Wei v Tan Hor Peow Victor [2007] 3 SLR (R) 537; [2007] 3 SLR 537 (refd)

Lie Kie Siang v Han Ngum Juan Marcus [1991] 2 SLR (R) 511; [1992] 1 SLR 476 (refd)

Midlink Development Pte Ltd v The Stansfield Group Pte Ltd [2004] 4 SLR (R) 258; [2004] 4 SLR 258 (refd)

Min Hong Auto Supply Pte Ltd v Loh Chun Seng [1993] 1 SLR (R) 642; [1993] 3 SLR 498 (refd)

Nirumalan V Kanapathi Pillay v Teo Eng Chuan [2003] 3 SLR (R) 601; [2003] 3 SLR 601 (folld)

Spiro v Glencrown Properties Ltd [1991] Ch 537 (refd)

Suleman v Shahsavari [1988] 1 WLR 1181 (folld)

Tai Joon Lan v Yun Ai Chin [1993] 2 SLR (R) 596; [1993] 3 SLR 129 (distd)

Tay Joo Sing v Ku Yu Sang [1994] 1 SLR (R) 765; [1994] 3 SLR 719 (folld)

Civil Law Act (Cap 43, 1999 Rev Ed) s 6 (d)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 33 r 2

Christopher Anand Daniel (instructed) and Lim Cheng Hock Lawrence (Matthew Chiong Partnership) for the plaintiff

Edmund Jerome Kronenburg and Zhuang Baoling Alicia (Braddell Brothers LLP) for the defendants

Denis Tan (Toh Tan LLP) for the third party.

Judgment reserved.

Lionel Yee JC

Background facts

1 The defendants (‘the Defendants’), a married couple, were the joint owners of the property known as 8 Minbu Road, #13-03, Montebleu, Singapore 308162 (‘the Property’), a unit in a condominium which was under construction at the relevant time. In January 2010, the Defendants decided to sell the Property and engaged the services of the third party (‘the Third Party’), a real estate agency, to assist in the sale. Around 9 February 2010, the plaintiff (‘the Plaintiff’), who was looking to purchase residential property, was informed by her estate agent, one Adrian Thoo Jern Kang (‘Adrian’), that the Property was on sale. She made an offer, through Adrian, to buy the Property at a price of $920,000. Adrian conveyed this offer to a director of the Third Party, one Cindy Lim (‘Cindy’), who in turn conveyed it to the Defendants. The Defendants informed Cindy that they were agreeable to the price offered and this was in turn conveyed by Cindy to Adrian.

2 Adrian proceeded to prepare a...

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