Chiam Heng Luan and Others v Chiam Heng Hsien and Others

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 21 August 2007
• Neutral Citation: [2007] SGHC 132
• Date: 21 August 2007
• Subject Matter: Landlord and Tenant,Termination of leases,Validity of notices to quit,Whether owner estopped from terminating leases,Equity,Proprietary estoppel,Estoppel
• Docket Number: Originating Summons Nos 830 and 1918 of 2006
• Published date: 24 August 2007
• Defendant Counsel: Michael Moey (Moey & Yuen),Andre Maniam and Koh Swee Yen (Wong Partnership),Nandakumar Renganathan (KhattarWong),Prem K Gurbani and Stephanie Wong (Gurbani & Co)
• Court: High Court (Singapore)
• Plaintiff Counsel: Harpreet Singh Nehal SC and Chew Kiat Jinn (Drew & Napier LLC)

21 August 2007 Judgment reserved.

Judith Prakash J

Introduction

1 These cases concerned the future of the land and premises at No 145 Killiney Road (“the Property”) at which for many years the Mitre Hotel (a small but well-known hotel) (“the Hotel”) was operated. They were heard together as, basically, the reliefs asked for in both actions were the same and both involved exactly the same plaintiffs and exactly the same defendants.

2 In the first set of proceedings, OS 830 of 2006 (“OS 830”), the main reliefs asked for were as follows:

(a) a declaration that the lease of the first and second plaintiffs’ interest as tenants-in-common of a 40% share in the property at No. 145 Killiney Road (“the Property”) in favour of Mitre Hotel (Proprietors), the eighth defendant herein, has been validly terminated with effect from 31 March 2006 (at the latest) pursuant to a written Notice to Quit dated 7 November 2005;

(b) an order that the Property be sold with vacant possession;

(c) an order that the first and eighth defendants do deliver up possession of the Property to the plaintiffs within four weeks from the date of the order to be made herein for the purpose of enabling the sale of the property with vacant possession; and

(d) an order that paragraphs 4, 5, 6 and 10 of the order of the High Court in Originating Summons No. 582 of 1996 made on 21 August 1996 (and varied on 18 September 1996) (“the Order in OS 582/1996”) shall continue to apply in relation to the present sale of the Property.

3 In OS 1918 of 2006 (“OS 1918”) all the reliefs asked for were the same as in OS 830 with the exception of the first two prayers which asked for the following:

(a) in the event that the Court in OS 830 rules that the leases of the plaintiffs’ respective interests in the Property in favour of the sixth and seventh defendants (as executors of the Estate of Chiam Toh Say, deceased), alternatively the eighth defendant, have not been validly terminated pursuant to the plaintiffs’ notices to quit dated 7 November 2005 and 24 April 2006, a declaration that the said leases of the plaintiffs’ respective interests in the Property have been validly terminated pursuant to the plaintiffs’ further notice to quit dated 9 October 2006; and

(b) further or alternative, a declaration that the sixth and seventh defendants, alternatively the eighth defendant, has forfeited its lease in the Property on account of the following conduct:

(1) operating a hotel on the Property without a valid licence; and/or

(2) selling liquor on the Property without a valid liquor licence; and/or;

(3) operating a private car park on the Property without any proper regulatory/government approvals.

4 Although the proceedings were started by originating summons, there was considerable dispute of fact and it was not possible to decide the disputes on the basis of affidavit evidence alone. The matter was heard in open court and the deponents of all the affidavits were cross-examined. On 30 April 2007, I ordered that the Property was to be sold with vacant possession and that the first defendant was to give vacant possession of the Property to the solicitors handling the sale no later than four weeks before the scheduled completion date. I then made various consequential orders relating to the sale but reserved judgment on all other issues. This judgment therefore contains my reasons for the orders that I made and also deals with some of the other issues that were raised during the hearing.

The facts

5 The Property is a fairly substantial piece of land (having an area of approximately 36,429 sq ft) located in a prime area of Singapore. It contains a large double-storey building which was probably built before the second world-war although the exact date of construction is not known.

6 Prior to April 1948, a hotel called the “Windsor Hotel” was operated at the Property by the tenants of the then owners, Alkaff Realty Limited (“Alkaff Realty”). In April 1948, the Windsor Hotel was taken over by a partnership (“the original partnership”) comprising various members of the Chiam family and two family friends, John Dalton (“Dalton”) and RA Pranam (“Pranam”). The hotel was renamed “Mitre Hotel” and the same name was given to the firm. The original partnership paid Alkaff Realty a monthly rental of $600 in respect of the Property. This was the same rent as had been paid by the operators of the Windsor Hotel as the Property was subject to rent control.

7 One of the original partners was Chiam Heng Luan. He testified that a few months after the original partnership commenced business, at the suggestion of his cousin, Chiam Toh Kai, another partner, four of the partners agreed to purchase the Property from Alkaff Realty. The agreed price was $61,000 and the purchase was completed in August 1948. Chiam Heng Luan was a purchaser but, as he was a seaman, he decided to put his share of the Property in his wife’s name. The co-owners (who had purchased as tenants-in-common) were:

(a) Mdm Lim Wee Leng (wife of Chiam Heng Luan) – 4/10 undivided shares;

(b) Chiam Toh Kai – 3/10 undivided shares;

(c) Chiam Eng Aun – 2/10 undivided shares;

(d) Chiam Toh Moo – 1/10 undivided share.

8 None of the original co-owners is still alive. Their shares in the Property are now held by their estates or their successors and, in the case of Chiam Eng Aun, his interest has been disposed of to third parties. The current legal owners of the Property are as follows:

(a) the estate of Lim Wee Leng, deceased, represented by her executors, Chiam Heng Luan and Chiam Ai Thong, who are, respectively, the first and second plaintiffs herein (40% share);

(b) Nancy Ng Poh Chuan, third plaintiff (2% share acquired from the successor to Chiam Eng Aun);

(c) Teo Soo Swan, fourth plaintiff (1% share acquired from successor to Chiam Eng Aun);

(d) Teo Cheng Woon, fifth plaintiff (2% share acquired from the successor to Chiam Eng Aun);

(e) Chiam Heng Hsien, first defendant (10% share acquired from his father Chiam Toh Moo);

(f) Chiam Siew Juat, second defendant, Chiam Heng Lian, third defendant and Chiam Heng Thoon, fourth defendant, (each of whom is entitled to a 10% share in the Property by virtue of a deed of gift executed by their father Chiam Toh Kai);

(g) Ong Soon Yong, fifth defendant (5% share acquired from the successor to Chiam Eng Aun); and

(h) Chiam Heng Chow and Chiam Heng Tin, the sixth and seventh defendants respectively (who as executors of the estate of Chiam Toh Say, deceased, hold the 10% share that the deceased purchased from Chiam Eng Aun and held on trust for MHP).

9 The arrangement between the partners of the original partnership was formalised in a Partnership Deed dated 24 March 1949. Apart from Dalton and Pranam, all the partners were members of the Chiam clan. They were Chiam Heng Luan, Chiam Toh Kai, Chiam Eng Aun, Chiam Toh Moo, Chiam Wee Liang, Chiam Toh Say, Chiam Toh Lew and Chiam Toh Tong.

10 On 28 November 1951, the partners agreed to sell the original partnership business as at 30 November 1951 as a going concern to Chiam Toh Say for the sum of $260,000. This decision was subsequently documented in a deed of dissolution dated 26 February 1952 whereby, inter alia, the partners in the original partnership dissolved their partnership (as from 30 November 1951) and assigned to Chiam Toh Say absolutely, their respective shares, title and interest in the original partnership business including the tenancy of the Property and a one-tenth undivided share in the Property. From 1 December 1951 onwards, Chiam Heng Luan, Chiam Eng Aun, Chiam Wee Liang, Dalton and Pranam no longer had anything to do with the business. Chiam Toh Say, however, did not thereafter run the Hotel himself. Instead, the business was taken over immediately by a new partnership (“Mitre Hotel Proprietors”) (“MHP”) constituted between Chiam Toh Kai, Chiam Toh Moo, Chiam Toh Say, Chiam Toh Tong and Chiam Toh Lew. The partners of MHP formalised their relationship in a deed of partnership dated 28 February 1952 which stated that MHP should be deemed to have commenced on 1 December 1951 and would continue for a term of three years thereafter.

11 In the deed of dissolution it was stated that the one-tenth undivided share in the Property belonging to the original partnership was to be conveyed to Chiam Toh Say by Chiam Eng Aun who was holding the same in trust for the original partnership. Consequently, on 29 September 1952, Chiam Eng Aun conveyed to Chiam Toh Say one out of his two undivided tenth shares in the Property. Three weeks later, on 21 October 1952, Chiam Toh Say executed a deed wherein he declared that he held that share on trust for MHP and the partners thereof for the time being. In subsequent litigation (Chiam Toh Say v Mitre Hotel [1991] SGHC 132), it was held that Chiam Toh Say also held the tenancy of the Property on trust for MHP.

12 From inception of the tenancy right up to 2001, the Property was subject to the provisions of the rent control legislation and therefore the tenancy was a protected tenancy until rent control was abolished. The initial rent was $600 a month but, after a few years, it was increased to $660 a month. Presently, the rent remains at that level.

13 MHP ran the Hotel from the time of its formation until it lost its licence to operate a hotel at the end of 2002. MHP had also operated a bar on the premises of the Hotel but its liquor licence ended on 31 December 2003. The partnership did not terminate after three years but is still in existence today. MHP was made the eighth defendant to these proceedings as it continued to assert its right to remain on the Property as a tenant. It appeared from the evidence that very little business is now being carried out by MHP at the Property. Apparently, it only lets out some rooms for functions and short term stays and was at pains to emphasise that no domestic service is provided to the occupants of those...