Chia Choo Ling and another v Phua Chiew Pheng and another

JurisdictionSingapore
JudgeTan May Tee
Judgment Date30 June 2010
Neutral Citation[2010] SGDC 279
CourtDistrict Court (Singapore)
Hearing Date18 November 2009,19 November 2009,23 November 2009,07 October 2009
Docket NumberDC 3240 of 2007, District Court Appeal No. 25 of 2010
Plaintiff CounselDennis Loh (Chiu Cheong & Co)
Defendant CounselLew Meow Fah (Lew Meow Fah & Co)
Published date21 February 2011
District Judge Tan May Tee: Background

The subject matter of this action is a Housing and Development Board flat at Block 27 Lim Liak Street #04-38 Singapore 160027 (hereinafter “the Flat”) situated in the Tiong Bahru estate. The Plaintiffs are a married couple who wanted to buy the Flat. The Defendants are the owners, the 1st Defendant being the daughter of the 2nd Defendant. The Defendants granted an option to the Plaintiffs to purchase the Flat at the price of $350,000 (hereinafter “the Option”).

Neither party was represented by a property agent to transact the intended sale and purchase of the Flat. 2 days before the expiry of the Option, the Plaintiffs could not contact the 1st Defendant. In a state of panic, they consulted solicitors the next day. The solicitors attempted to exercise the Option by delivering a copy of the Option to the Flat and also sending it by post. This method of exercising the Option was not in accordance with the strict terms of the Option.

The Plaintiffs claim that the Option had nonetheless been exercised resulting in a valid contract for the sale and purchase of the Flat. The Defendants’ position was that the Option had not been exercised in accordance with its terms and accordingly, no contract was reached.

The trial was on the issue of liability only. At the conclusion of the proceedings, I decided in favour of the Defendants. The Plaintiffs’ claim was accordingly dismissed with costs. The Plaintiffs have now appealed to the High Court and I set out herein the reasons for my decision.

Pleadings

The material facts as pleaded in the Plaintiffs’ Statement of Claim are as follows: In consideration of the sum of $1,000 (“option fees”) paid by the Plaintiffs to the Defendants, the Defendants granted to the Plaintiffs an option to purchase dated the 7 June 2007 (“said option”) for the purchase by the Plaintiffs of the Defendants’ premises known as Block 27 Lim Liak Street #04-38 Singapore 160027 (“said premises”) at a price of $350,000.00. The said option was to be exercised by the Plaintiffs by signing on the said option and delivering the said option together with a cheque for $4,000.00 to the Defendant by 4.00 pm on the 22 June 2007 (“expiry date”). Among the terms set out in the said option is clause 11 (“clause 11”) which provides that the parties of the said option by the Plaintiff (sic.), parties are to jointly apply to the Housing and Development Board (“HDB”) within 30 days of the exercise of the said option for consent by HDB to the sale and purchase of the said premises. Prior to the expiry date namely on the 21 June 2007 the Plaintiffs made numerous fruitless attempts to contact the Defendants by way of telephone calls as well as by the short message service (“sms”) for the purpose of ascertaining their whereabouts so that the duly signed said option could be delivered to them (sic.) place of exercising the said option (sic.). The aforesaid attempts proved to be futile in that the Defendants refused and/or failed and/or neglected to respond and/or reply to the Plaintiffs’ telephone calls and/or sms. By reason of the matters aforesaid the Plaintiffs decided to appoint M/s LawHub LLC (“LawHub”) to exercise the said option on their behalf. LawHub’s representative eventually hand-delivered a copy of the said option together with a cheque for the sum of $4,000.00 (“ said cheque”) as well as LawHub’s covering letter (“covering letter”) to the said premises. The covering letter informed the Defendants among other things that the original copy of the said option (sic.) retained by the Plaintiffs for submission to the Housing and Development Board later on June 2007. The covering letter, the said option together with said cheque was received and acknowledged by a tenant at the said premises on the 21 June 2007 at 1545 hours. By reason of the matters aforesaid a legally binding agreement had been reached between the Plaintiffs and the Defendants for the sale of the said premises by the latter to the former. The Defendant is in breach of clause 11 of the agreement in that their solicitors M/s Eastern Law Corporation by its letter dated 2 July 2007 expressly intimated to the Plaintiffs that they would not be proceeding with the application to HDB for consent to the sale of the said premises even though the Plaintiff (sic.) is ready, able and willing to do so. By reason of the aforesaid breach the Plaintiff (sic.) has suffered loss and/or damages ...”

In essence, the Plaintiffs’ case was premised on the Option having been duly exercised by LawHub’s representative delivering a copy of the Option rather than the original together with a cheque and a covering letter to the Flat and which were received and acknowledged by a tenant at the premises on 21 June 2007. The exercise of the Option meant that the Defendants were bound to sell the Flat to them and the Defendants’ failure thereafter to apply to HDB amounted to a breach of the agreement to sell the Flat for which the Plaintiffs were entitled to damages.

The Defence, as amended, was a rather lengthy pleading running into a total of 32 paragraphs. In summary, while the Defendants admitted that they had granted the Option which was valid up to 4.00 pm of 22 June 2007, they pleaded firstly, that the manner by which the Option was to be exercised was not in accordance with Clause 5 of the Option. Clause 5 prescribed that a buyer must do the following to exercise the Option: sign the “Acceptance” in the Option, deliver the signed Option (original copy) to the seller, and pay the seller the Option Exercise Fee.

It was the Defendants’ contention that the Plaintiffs had failed to exercise the Option pursuant to the manner stated in Clause 5 of the Option as the Plaintiffs had failed to deliver the signed Option (original copy) and the payment of the Option Exercise Fee of $4,000.00 to the Defendants. This was in fact admitted by the Plaintiffs as LawHub had sent to the Defendants only a copy of the Option.

The Defendants denied the allegation that they had failed, refused or neglected to respond to the Plaintiffs’ telephone calls and messages. The 1st Defendant had been ill on 20 and 21 June 2007 but on 22 June 2007 she had contacted the 1st Plaintiff in the morning. He was however reluctant to speak with her on the purported exercise of the Option. The Defendants further denied that LawHub’s representative had hand-delivered the copy of the Option together with the cheque for $4,000.00 to the premises. What the Defendants received were copies of the letter dated 21 June 2007 from LawHub together with a photocopy of the signed Option and a photocopy of the cheque for $4,000.00 sent by ordinary post and Certificate of Posting to the Defendants’ premises.

As the Plaintiffs had failed to exercise the Option in the manner provided in the Option, there was no legally binding agreement between the parties for the purchase of the Flat. Pursuant to Clause 11 of the Option, a joint application for approval was to be made to HDB by both seller and buyer after the exercise of the Option. Accordingly, the Defendants were entitled to cancel the application made unilaterally by the Plaintiffs. The Defendants had no knowledge of the loss and damages alleged to have been suffered by the Plaintiffs and denied liability for the same.

The Defendants further relied on Clause 4 of the Option stipulating that upon its expiry, the Option became null and void. Also, pursuant to Clause 6 of the Option, the Defendants were entitled to retain the Option fee of $1,000.00 if the Plaintiffs did not exercise the Option in the manner stated in the Option and neither party would have any claim against the other.

The Defendants also pleaded, in the alternative, that the Option granted to the Plaintiffs was not in the prescribed form as required by section 49A (2) of the Housing and Development Act (Cap 129) which rendered it null and void under section 49A(3) in that: the parties had agreed on the Option expiry date being on a day which was not the 15th calendar day from the Option date as indicated in the standard form as the agreed date of 22 June 2007 was the 16th calendar day from the date the Option was granted on 7 June 2007; and the parties had also signed another form of option to purchase which amounted to a variation or amendment to the standard form without the authorisation of the Housing and Development Board. Accordingly, there could not be a valid contract between the parties.

The Plaintiffs’ Reply was unnecessarily prolix and repetitious and contained recitals of evidence. It pleaded inter alia that the Plaintiffs had fully complied with the terms of the Option save for Clause 5(b) . They cited particulars of the 1st Defendant’s conduct in not responding to their attempts to make contact with her as reason for non-compliance and to allege that compliance had been waived by her said conduct.

In the event there was no waiver of Clause 5(b), they pleaded in the alternative that Clause 5(b) was subject to an implied term that the Defendants “must make themselves available and remain contactable to enable the Plaintiffs to deliver the signed option (original) to them as well as the said cheque.”

The Plaintiffs further relied on a pleading of estoppel on account of the Defendants’ conduct which precluded the Defendants from insisting on a strict compliance with the terms of the Option in particular Clause 5(b).

They also denied that the 1st Defendant had been sick and averred that she only made contact with the 1st Plaintiff on 22 June 2007, the day after the date for the exercise of the Option .

With the joinder of issues at the filing of the Reply, I could not understand why there was a necessity for the parties to file a Rejoinder and Surrejoinder in this case. These subsequent pleadings , in my view, added nothing to...

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