Chow Ching Ling Adelene v Chew Ping and Another

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 27 October 2009
• Neutral Citation: [2009] SGDC 395
• Court: District Court (Singapore)
• Year: 2009
• Citation: [2009] SGDC 395
• Plaintiff Counsel: Hassan Almenoar
• Defendant Counsel: Basil Ong
• Published date: 18 December 2009

27 October 2009

District Judge Loo Ngan Chor:

Introduction:

1. The plaintiff is the owner of XXX (XXX[note: i]) (“No. 11”). The plaintiff became the registered owner of No. 11 on 12^th November 2003.

2. The defendants own the property at YYY (YYY[note: ii]) (“No. 15”), which is adjacent to No. 11. The defendants became the registered owners of No. 15 on 4^th January 2005.

3. No. 11 and No. 15 are corner terrace houses. Each property has a piece of land on the side of the house. These sides of the two properties are adjoining. They are physically divided by a chain-link fence. It was common between the parties that they are jointly responsible for, and entitled to the use of, the chain-link fence.

4. The frontages of Nos. 11 and 15 are on Jalan Novena Selatan.

5. After the defendants became owners of No. 15, they caused substantial renovations to be made to No. 15. In particular, they extended the structure at the rear of the house, which involved piling works to support the enlarged structure. This extended structure at the rear of No. 15 was some distance removed from the chain-link fence. The defendants also elevated the rear ground (“the elevated rear ground”) of No. 15 so that the elevated rear ground of No. 15 became quite visibly above the level of the rear of No. 11. The elevated rear ground of No. 15 extended to that part of the chain-link fence that separated No. 15 from No. 11. In the course of the defendants’ renovations, portions of the chain-link fence were damaged such that that those portions became mis-shapen.

The mis-aligned fence and encroachments:

6. In the course of the renovations to No. 15, it was discovered that the chain-link fence was not correctly aligned to the proper boundary between the two properties. The parties accept that the proper boundary and the mis-alignment of the chain-link fence are correctly set out in the encroachment survey of How Huai Hoon Surveyors dated 15^th October 2005.[note: iii]

7. For the purpose of describing the mis-alignment, the proper boundary and the chain-link fence may be taken to be two intersecting straight lines running from the rear of the two properties to the front at Jalan Novena Selatan. Facing Jalan Novena Selatan, the chain-link fence starts at the back of the two properties to the right of the proper boundary, intersecting the proper boundary near the rear of the properties and ends at the front of the two properties to the left of the proper boundary. This being so, it is undisputed that:

(a) part of what is really the plaintiff’s land at the rear of the properties, at the rear of the intersecting lines, is on the defendants’ side of the chain-link fence;

(b) part of what is really the defendants’ land at the front of the properties, forward of the intersecting lines, is on the plaintiff’s side of the chain link fence.

At the rear of the two properties, a small part of the defendants’ elevated rear ground sits on the plaintiff’s land. At the front of the two properties, the front left pillar and part of the front metal grille fence on the plaintiff’s side of the chain-link fence, in fact sit on the defendants’ land. Alongside the chain-link fence, on the plaintiff’s side of the fence, runs a drain. It has transpired that a part of this drain, towards the front, runs on the defendants’ land, and a part of it, towards the rear, on the plaintiff’s land.

An earlier action in the High Court:

8. On 10^th February 2006, the plaintiff commenced action in Originating Summons No. 274/2006/W in the High Court. At an adjourned hearing of the originating summons on 31^st July 2006, the plaintiff’s lawyer obtained the leave of the High Court to discontinue the application. The defendants say[note: iv] that the plaintiff discontinued the originating summons because the parties had arrived at a settlement on terms of the defendants’ letter dated 10^th May 2006[note: v]. The plaintiff denies that there was any agreement before her High Court application was discontinued.[note: vi]

The dispute:

9. The parties agree that the chain-link fence should be re-aligned so as to sit squarely on the proper boundary[note: vii]. They agree on nothing else.

10. The plaintiff wants[note: viii], among other things:

(i) a new chain-link fence to be built, impliedly at the defendants’ costs;

(ii) the encroaching part of the elevated rear ground on the plaintiff’s land to be demolished and removed together with “all piling works, raft foundation, concrete and other building materials … beneath ground level at the defendants’ costs;

(iii) the encroaching part of the elevated rear ground to be reinstated to “its original state” at the defendants’ costs;

(iv) at the defendants’ costs, a professional engineer to certify, post-rectification, that the rectifications are “in accordance with normal building industry standards.”;

(v) the defendants to pay the plaintiff various expenses she incurred in respect of survey-related work.

The plaintiff states that she is prepared “to remove that small part (approximately 6 cm) of the plaintiff’s metal grille fence which presently encroaches onto the Defendants’ property at the front.”[note: ix] In this connection, I note, she does not mention the left front pillar.

11. The defendants want[note: x], among other things:

(i) specific performance of the agreement they say is embodied in their letter dated 10^th May 2006; alternatively,

(ii) (that part of) the drain now on the plaintiff’s side of the chain-link fence, which in fact sits on the defendants’ land, to be covered and filled up with concrete to “prevent any future drainage problems.”;

(iii) The left front pillar and that part of the front metal grille now on the plaintiff’s side of the chain-link fence to be removed;

(iv) The SCV cable and or other electrical cable that is under or along the drain to be removed and the ground to be reinstated;

(v) A “new weaved (covered) chain-link fence” be erected;

(vi) The plaintiff to bear all rectification costs and professional fees incurred by the defendants.

Whether a settlement agreement ended the High Court action:

12. I shall first consider if there was a settlement agreement, as the defendants maintain, based on the defendants’ letter dated 10^th May 2006[note: xi]. This letter was sent to the plaintiff’s then lawyers. Paragraphs 5 and 7, in the order in which the proposals were set out in that letter, stated that:

(i) The encroachment by the plaintiff at the front of the properties required “removal of the pillar and the drain” and “the costs of excavation or refilling any part of the property which presently rests on [the plaintiff’s] side of the fence will be borne by [the plaintiff]”. The defendants seemed to be prepared for their encroachments “at the back” of the properties be corrected when they said they would bear “the costs of excavation or refilling any part of the property which presently rests on our side of the fence”.

(ii) The rectification works were to be completed within three weeks “of the date of the Settlement Agreement to be signed by the parties.”

(iii) A “new fence” was to be built with “both parties to share the costs … equally.”

(iv) Each party was to bear his own surveyor’s costs.

The defendants requested for a response by 17^th May 2006

13. The plaintiff’s lawyer did not respond by 17^th May 2006. Neither was a settlement agreement ever signed. Nonetheless, the defendants’ case was that the plaintiff’s lawyer had told them before parties entered the chambers of Justice Woo Bih Li on 31^st July 2006 that the plaintiff had agreed to the terms of the defendants’ letter of 10^th May 2006. The defendants say that it was on that basis that the plaintiff discontinued her originating summons.

14. The plaintiff, in denying that there was any settlement agreement, said that she “was not involved in person with the said negotiations. This matter was handled by [her] then solicitors.” It appears to be her position that if her then lawyer (“Mr Pillai”) did signal any agreement to the defendants on 31^st July 2006, the lawyer acted without her authority.

15. On this point, parties canvassed the question whether Mr Pillai had the plaintiff’s authority to compromise the action. Naturally, the plaintiff argued against this proposition and the defendants argued for. No authorities were cited to me in the parties’ closing submissions. In the plaintiff’s reply[note: xii] to the defendants’ closing submissions, Mr Almenoar cited the Court of Appeal decision of Yeo Gek Lang v Wee Alice [1979] SGCA 2. Respectfully, Yeo Gek Lang has no application to the case before me. Yeo Gek Lang had to do with the authority of solicitors in the context of an offer made subject to contract to sell property where it was unsuccessfully argued, in the absence of a contract signed by the parties themselves, the purported contract was constituted by solicitors’ letters. Intuitively, were this issue free of authority, I should have thought that a party involved in litigation through counsel must be taken to hold out to the opposite litigant and his counsel that his lawyer has the necessary authority, not only to conduct the litigation but also to compromise it. Without such a deemed holding out, the conduct of litigation and its amicable cesser would be impossible. This is stated purely as an aside for the sake of fullness as it has no impact on my decision at [16] to [20] below, on the principal issue. I would refer counsel to pages 132 to 142 of Professor Tan Yock Lin’s book entitled The Law of Advocates and Solicitors in Singapore and West Malaysia (1991). At page 135 of the book, the following extract from Brightman LJ’s judgment in Waugh v HB Clifford & Sons Ltd [1982] 1 All ER 1095 may be found:

Suppose that a defamation action is on foot; that terms of compromise are discussed; and that the defendant's solicitor writes to the plaintiff's solicitor offering to compromise at a figure of £100,000, which the plaintiff desires to accept....