Cove Development Pte Ltd v Ideal Accommodation (Singapore) Pte Ltd

• Jurisdiction: Singapore
• Judge: Nathaniel Khng AR
• Judgment Date: 16 July 2009
• Neutral Citation: [2009] SGHC 167
• Court: High Court (Singapore)
• Published date: 19 January 2010
• Citation: [2009] SGHC 167
• Plaintiff Counsel: Ling Tien Wah, Joseph Lee, and Tang Jin Sheng (Rodyk & Davidson LLP)
• Defendant Counsel: Chia Ho Choon, Lin Shuling Joycelyn, and Kishan Pillay (KhattarWong LLP)
• Subject Matter: Civil Procedure,Judgment on Admission,Landlord and Tenant,Recovery of possession
• Year: 2009

16 July 2009 Judgment reserved.

Nathaniel Khng AR:

Introduction

1 This is an application by Cove Development Pte Ltd (“the Plaintiff”) for judgment against Ideal Accommodation (Singapore) Pte Ltd (“the Defendant”) on admission of facts pursuant to O 27 r 3 of the Rules of Court (Cap 322, R 5, 1996 Rev Ed) (“the Rules”) for possession of 171 residential units at the development known as “Grangeford” (located at 25 Leonie Hill Road) (“the Premises”). The prayers, as set out in the application, are as follows:

1. That possession of the [Premises] be forthwith given to the [Plaintiff].

2. That this Order be made without prejudice to the parties’ respective positions and the other reliefs claimed by the parties in the pleadings.

3. The [Defendant] pay the [Plaintiff] the costs of this application.

4. Further or other relief as this Honourable Court deems fit.

The factual matrix

2 The dispute between the Plaintiff and the Defendant originated from the discovery by the Urban Redevelopment Authority (“the URA”) of illegal additions/alterations to the Premises. By way of two tenancy agreements (dated 30 December 2008 and 27 February 2009 respectively) (“the Tenancy Agreements”), the Plaintiff had leased the Premises to the Defendant. After entering into the Tenancy Agreements, the Defendant proceeded to sub-divide 141 of the residential units in the Premises into 600 sub-units and thereafter leased these units out to sub-tenants (“the Sub-Tenants”).

3 On 29 April 2009, the URA served an enforcement notice (“the Enforcement Notice”) notifying both the Plaintiff and the Defendant that the additions/alterations carried out by the Defendant in the Premises was in breach of planning control as it had done the works without the requisite planning authorisation. The Enforcement Notice described the works that had been done as follows:

(i) [A]dditions and alterations were carried out to physically partition and convert each of the residential units from a single unit to two separate units, thereby materially changing the use of each of the residential units from that approved as a single dwelling to the use as two separate units; and

(ii) additions and alterations were carried out to physically convert the bigger of the aforesaid two separate units (“the affected premises”) created from each of the residential units to multiple living quarters, thereby materially changing the use of the affected premises from that approved for residential use to a non-residential use as multiple living quarters.

4 The Enforcement Notice gave both parties the deadline of 30 May 2009 to, firstly, demolish the unauthorised partitions in question, and, secondly, discontinue and cease the unauthorised use of each of the altered units as two separate units and/or as multiple living quarters. Failing this, the parties would have committed an offence under the Planning Act (Cap 232, 1998 Rev Ed) and would be liable on prosecution and conviction to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both a fine and imprisonment. Both parties appealed to the Ministry of National Development (“the MND”) against the directions in the Enforcement Notice. The Defendant’s appeal was rejected in a letter dated 27 May 2009 and it was given the extended deadline of 3 June 2009 to comply with the directions in the Enforcement Notice. The Plaintiff’s appeal was likewise rejected in a letter dated 27 May 2009 and it was given the deadline of 27 July 2009 to comply with the directions in the Enforcement Notice.

5 Subsequently, on 25 May 2009, the Plaintiff filed the present action, ie, Suit No 446 of 2009, against the Defendant for, inter alia, possession of the Premises, rental in arrears and double rent. In its Statement of Claim, the Plaintiff asserted that the Defendants had failed to make the requisite payments of rent and other moneys as stipulated in the Tenancy Agreements, and that accordingly, the Plaintiff was entitled to forfeit the Tenancy Agreements. In reply, the Defendant stated, in its Defence and Counterclaim, that, inter alia, the Tenancy Agreements was void by reason of a common mistake and that it was discharged from performance of the Tenancy Agreements by reason of frustration.

6 On 29 May 2009, the Defendant wrote to inform the MND that it was impossible to comply with the directions in the Enforcement Notice by 3 June 2009 as it had “yet to notify [the Sub-Tenants] and properly relocate them”, and appealed for more time to comply with the directions. On 3 June 2009, the MND rejected the Defendant’s appeal. On the same day, ie, 3 June 2009, the Plaintiff served the Defendant with a Notice of Forfeiture and Termination. On 5 June 2009, the Plaintiff recovered possession of unit #01-04 of the Premises, which had been used by the Defendant as its office.

7 To date, the Plaintiff has only re-entered and recovered possession of 14 other units of the Premises. According to the Plaintiff, it has not been able to effect peaceful re-entry of the units that are currently still being occupied by certain Sub-Tenants (collectively referred to as “the remaining Sub-Tenants”) due to the resistance of the latter, and without possession of the whole of the Premises, it (ie, the Plaintiff) would not be able to comply with the directions in the Enforcement Notice and would be liable for sanctions.

8 In the circumstances, the Plaintiff decided to file the present application for judgment for possession of the Premises.

Order 27 r 3 of the Rules

9 Under O 27 r 3 of the Rules, where there are admissions of fact, the court may, at its discretion, give judgment or make such orders as a party would be entitled to. The rule, in full, states as follows:

Judgment on admission of facts (O.27, r.3)

Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just. An application for an order under this Rule may be made by summons.

10 The rule providing for judgment on admissions “applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed” (Ellis v Allen [1914] 1 Ch 904 at 909 per Sargant J). The judgment or order made under the rule would be considered to be interlocutory in nature (Technistudy Ltd v Kelland [1976] 1 WLR 1042 at 1045). The admission of fact may be expressed or implied (Re Chung Wong Kit [1999] 1 HKC 684 at 686). The admission must be an admission of fact, with which the court need not make further findings of fact, and must not be an admission of law, or even one of mixed fact and law. Neither can the matter turn on a question of law or mixed fact and law. As stated in Shunmugam Jayakumar v Jeyaretnam JB [1997] 2 SLR 172 (“Shunmugam Jayakumar”) by G P Selvam J (at [35]):

It is important to note that the discretionary power of the court to give a judgment under [O 27 r 3] can be exercised only where a defendant has made admissions of fact. It means that the defendant must have made such admissions that it is unnecessary for the Court to make findings of fact — it having been admitted by the defendant they are no longer in issue. If the matter involves question [sic] of law, admissions of fact alone cannot decide the matter. The rule therefore excludes admissions of non-factual matters — such as comments, opinions and admissions of law or mixed facts and law.

And in Affin Bank Bhd v Successcom Enterprise Sdn Bhd [2009] 1 MLJ 36 (“Affin Bank Bhd”), Zulkefli JCA similarly stated (at 51):

If liability turns on a question of law or mixed fact and law, judgment cannot be obtained (see the case of Perwira Habib Bank (M) Bhd v Hj Abdullah Hj Sulaiman & Anor [1985] CLJ 639 (Rep); [1985] 2 CLJ 489). As such, if a plaintiff cannot show that all the components of his cause of action have been admitted, the plaintiff is not entitled to judgment under O 27 r 3 of the RHC [ie, the equivalent of O 27 r 3 of the Rules].

11 Questions of mixed fact and law have been described as questions that involve a combination of issues of fact and law (Butterworths Concise Australian Legal Dictionary (Peter Butt gen ed) (3rd Ed, LexisNexis Butterworths, 2004) (“Butterworths Concise Australian Legal Dictionary”) at p 284). The definition of an issue or question of law, in particular, has been the subject of much debate. In the recent case of Ng Eng Ghee v Mamata Kapildev Dave [2009] SGCA 14 (“Horizon Towers”), V K Rajah JA, who delivered the judgment of the Court of Appeal, observed that the definition of the phrase “question of law” varies in different contexts, and “may be wider or narrower depending on the underlying policy considerations” (at [99]). Locally, questions of law have been expressly defined in some cases as being a reference to undecided or uncertain areas of the law that have to be adjudicated upon. In Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [2000] 1 SLR 749 (“Ahong Construction”), G P Selvam JC stated (at [7]):

A question of law means a point of law in controversy which has to be resolved after opposing views and arguments have been considered. It is a matter of substance the determination of which...