Chew Ai Hua, Sandra v Woo Kah Wai and another (Chesney Real Estate Pte Ltd, third party)
| Jurisdiction | Singapore |
| Judge | Lionel Yee JC |
| Judgment Date | 28 June 2013 |
| Neutral Citation | [2013] SGHC 120 |
| Citation | [2013] SGHC 120 |
| Court | High Court (Singapore) |
| Published date | 09 July 2013 |
| Docket Number | Suit No 448 of 2011/Q |
| Plaintiff Counsel | Christopher Anand Daniel (instructed) and Lim Cheng Hock Lawrence (Matthew Chiong Partnership) |
| Defendant Counsel | Edmund Jerome Kronenburg and Zhuang Baoling Alicia (Braddell Brothers LLP),Denis Tan (Toh Tan LLP) |
| Subject Matter | Contract,Formation,Contractual terms,Equity,Remedies,Specific performance,Land,Sale of land,Civil Procedure,Rules of Court |
| Hearing Date | 19 April 2013,05 April 2013,27 February 2013,19 February 2013,25 February 2013,28 February 2013,28 March 2013,21 February 2013,22 February 2013 |
The Defendants, a married couple, were the joint owners of the property known as No. 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, a real estate agency, to assist in the sale. Around 9 February 2010, 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.
Adrian proceeded to prepare a document described as an “Offer to Purchase” (“the Offer”). It was signed by the Plaintiff and dated 10 February 2010 and its relevant terms are as follows:
...
Enclosed herewith [cheque] for the amount of S$9,200/- ... made payable to WOO KAH WAI (The Owner) ... being Option money for the purchase of the above property.
The Offer was subsequently handed over by Adrian to Cindy’s Personal Assistant, one Masila binte Kamis (“Masila”), together with a cheque of $9,200 made payable to the First Defendant which was the option money for the purchase of the Property. Although Adrian thought he had submitted the Offer to the Third Party on 10 February 2010, both he and Masila acknowledged during cross-examination that this took place on 11 February 2010.1
Masila proceeded to prepare an Option to Purchase (“the Option”), the material terms of which were as follows:
IN CONSIDERATION OF the sum of Singapore Dollars Nine Thousand Two Hundred only (S $9,200.00) paid by the Purchaser this day as option money (“the Option money”) (the receipt whereof the Vendor hereby acknowledges), I the Vendor HEREBY GRANT you the Option to purchase the Property.
This Option may be accepted by the Purchaser signing at the portion of this Option To Purchase marked “ACCEPTANCE COPY” and delivering this Option To Purchase duly signed together with five percent (5%) of the sale price (“the Deposit”) less the Option money as deposit to TAN & PARTNERS (“the Vendor’s Solicitors”) who are authorized to receive the same
on or before the 13 th February 2010, 4.00 p.m. , and which shall be held by the Vendor’s Solicitors as stakeholders pending completion of the sale and purchase herein.
This Option shall expire on the above date and shall be null and void if not accepted in the manner aforesaid , in which event the Option money shall be forfeited by the Vendor absolutely and thereafter and neither party shall have any claims against the other and each party shall pay its own costs in respect of this contract. ...[emphasis added]
When the Option was ready, the Defendants were informed and the First Defendant went to the Third Party’s office sometime after 5.00 pm on 11 February 2010 to sign the Option.2 He also collected the cheque of $9,200 from Masila and deposited it into his bank account that same evening.
Adrian, however, did not collect the signed Option from the Third Party’s office until around 6.00 pm the following evening (Friday 12 February 2010). Adrian claimed that this was because he was only informed by Masila that the Option was ready for collection that afternoon.3 In contrast, Masila testified in her affidavit of evidence-in-chief that she told Adrian on the morning of 12 February to collect the Option.4 However, under cross-examination, she clarified that she had telephoned Adrian on the afternoon of the previous day (11 February) to inform him that the sellers were going to the Third Party’s office to sign the Option later that day,5 and he could collect the signed Option the following morning.6 She said that she was then told by Adrian that he could only collect the signed Option the following afternoon.7
When Adrian arrived at the Third Party’s office and saw the Option in the evening of 12 February 2010, he noticed that it was to expire at 4.00 pm the next day, which was a Saturday and also the eve of the Chinese New Year. When he pointed this out to Masila, she arranged for him to speak with Cindy. According to Adrian, when he told Masila that the option period should have been three working days, Masila admitted to him that the deadline specified was not in accordance with that set out in the Offer. In addition, Adrian also said that Cindy had informed him that they would have the Option amended accordingly.8 Masila denied that Adrian had made any mention of “three working days” or that she had made the alleged admission.9 Cindy claimed that it was Adrian instead who admitted that he had made a mistake in specifying three days as the option period and requested that it be changed to the industry norm of two weeks. She said that she then asked Adrian to leave the Option with Masila so that she could speak with the Defendants on the proposed amendment.10 On both accounts, the Option remained in the possession of the Third Party that evening.
Cindy telephoned the Second Defendant later that evening with regard to amending the Option to extend the option period beyond 4.00 pm the next day. Cindy claimed that the Second Defendant was agreeable to amending the option period to 14 days11, but had also said that she would have to speak with her husband, the First Defendant.12 The Second Defendant denied conveying to Cindy any agreement on her part to the extension of time.13 She claimed that all she told Cindy was that she and her husband needed to consider the request.14
A number of telephone conversations took place between Cindy and the Second Defendant and between Adrian and Cindy at around noon the next day, 13 February 2010 (Chinese New Year’s Eve). Three conflicting accounts of the conversations were given by the Plaintiff, the Defendants and the Third Party.
As regards the Plaintiff’s version, Adrian testified that Cindy informed him that while the Option would be handed to him unamended, the Defendants had nonetheless agreed that it could be exercised within three working days from the date it was delivered to him.15 Adrian believed that an extended deadline of Friday, 19 February 2010 was also referred to in the conversation.16
The Defendants’ version was that they informed Cindy that morning that they were not going to amend the Option. However, they offered to return the option money to the Plaintiff as a gesture of goodwill.17 Cindy subsequently called the Second Defendant to tell her that the Plaintiff did not want the cheque returned but they would instead try to beat the 4.00 pm deadline that day.18
The Third Party’s version hinged on Cindy’s account of her telephone conversations with the Second Defendant and with Adrian. She claimed that there was only one telephone call between herself and the Second Defendant that day and the Second Defendant had informed her that the Defendants were not going to amend the Option. Cindy then asked the Second Defendant if she had banked in the cheque. According to her, the Second Defendant had thought aloud about making out a cheque to return the option money. Cindy was, however, not told to make this offer to the Defendants. The Defendants told her that they would instead deal with the issue of the option money themselves.19 When she spoke with Adrian subsequently, she made no mention of the offer to return the option money.20 She said that when she told Adrian that the Option would not be amended, Adrian merely acknowledged this and said that the matter would be left to the lawyers to handle.21
Arrangements were then made for Masila to hand over the unamended Option to Adrian. According to Adrian, he collected the Option at around 3.00 pm that afternoon.22 According to Masila, it was not until after 5.22 pm that day,
Adrian then contacted the Plaintiff and handed her the Option sometime after 6.00 pm that evening. The next three days were not working days as Chinese New Year fell on Sunday, 14 February 2010, and the next two days were public holidays.
The Plaintiff and Adrian testified that they attended a meeting at the offices of the Plaintiff’s solicitors on the morning of 17 February 2010, the first working day after that long weekend.24 Adrian said that he informed the Plaintiff’s solicitor
The Plaintiff’s solicitors attempted to exercise the Option later that day but found the Defendants’ solicitors’ office closed. Another attempt was made to exercise the Option the following day, 18 February 2010, but it was rejected by the Defendants’ solicitors on...
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Chew Ai Hua Sandra v Woo Kah Wai
...Ai Hua Sandra Plaintiff and Woo Kah Wai and another (Chesney Real Estate Pte Ltd, third party) Defendant [2013] SGHC 120 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 a......