EA Apartments Pte Ltd v Tan Bek and others

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng JC
• Judgment Date: 01 December 2016
• Neutral Citation: [2016] SGHC 268
• Plaintiff Counsel: Udeh Kumar s/o Setharaju, Krishna Morthy S V and Dhanwant Singh (S K Kumar Law Practice LLP)
• Date: 01 December 2016
• Docket Number: Suit No 67 of 2016 (Registrar’s Appeal No 153 of 2016; Summons No 2465 of 2016)
• Hearing Date: 15 June 2016,15 August 2016,09 May 2016,06 June 2016
• Subject Matter: Fraud and deceit,Misrepresentation,Tort,Amendment,Striking out,Civil procedure,Pleadings
• Year: 2016
• Defendant Counsel: Lee Chay Pin Victor (Chambers Law LLP)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 268
• Published date: 14 December 2016

Hoo Sheau Peng JC: Introduction

This action concerned claims connected to a tenancy agreement entered into by the plaintiff, EA Apartments Pte Ltd, to lease certain premises for its use. The plaintiff’s case, however, was obscured by extremely poor pleading. In the statement of claim (“the SOC”), as far as I could tell, the plaintiff alleged that there was misrepresentation by concealment of information on the suitability of the premises for use as a dormitory (“the misrepresentation claim”); that there was breach of the tenancy agreement (“the contract claim”); and that there was breach of the duty of care owed to the plaintiff by the lawyer and the law firm in the preparation of the tenancy agreement (“the breach of duty claim”).

In due course, I shall deal with the specific problems with the SOC. For now, it suffices to say that the defendants succeeded in their application before the learned Assistant Registrar (“the AR”) to strike it out, on the ground that it did not disclose any reasonable cause of action under O 18 r 19(1)(a) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”).

The plaintiff took out Registrar’s Appeal No 153 of 2016 to appeal against the AR’s decision, and thereafter, took out Summons No 2465 of 2016 to substantially amend the SOC, annexing a proposed draft (“the draft amended SOC”). In it, the plaintiff completely revised the misrepresentation claim (“the new misrepresentation claim”), abandoned the contract claim and sought to shore up the breach of duty claim.

Having considered the parties’ submissions, I disallowed the amendment application, as I concluded, inter alia, that the draft amended SOC still disclosed no reasonable cause of action. I affirmed the AR’s decision. At the plaintiff’s request, I heard further arguments. What I heard did not change my decision. The plaintiff has appealed against my decision to dismiss the appeal, and I set out my reasons.

The parties

The plaintiff is a company engaged in real estate activities.

The first defendant, Tan Bek, and the second defendant, Lew Chen Chen, are the owners of the premises in question – being two properties at Nos 8 and 10 Lorong 25 Geylang Singapore. The first defendant is the second defendant’s mother. For convenience, I shall refer to them as “Mdm Tan” and “Ms Lew” respectively.

The third defendant, Lew Kay Tiong, apparently managed the premises on behalf of Mdm Tan and Ms Lew. The fourth defendant, Lew Keh Lam, is Mdm Tan’s husband and Ms Lew’s father. I shall refer to the third and fourth defendants as LKT and Mr Lew respectively.

The fifth defendant, Chambers Law LLP (“Chambers Law”) is the law firm of which Ms Lew, a solicitor by profession, is a managing partner.

The Statement of Claim

The SOC was a brief three-page document comprising 12 paragraphs. The first three paragraphs introduced the defendants. In the remaining paragraphs, the plaintiff made the following allegations: Around early June 2015, Mr Lew had negotiated with the plaintiff regarding the plaintiff “leas[ing] the premises from the owners for a period of two years as a dormitory on an ‘as is, where is’ basis” (see para 4); During the negotiations, Mr Lew and Ms Lew had “knowingly concealed” from the plaintiff the fact that Ms Lew had been served with two Notices of Fire Safety Offences (the “Fire Safety Notices”) by the Singapore Civil Defence Force (see para 5); The Fire Safety Notices showed that the premises had been converted to a dormitory without official approval, that illegal partitions had been constructed, that this had caused the fire safety measures to be inadequate, and that Ms Lew had been directed to alleviate the non-compliance within 14 days from the date of the Fire Safety Notices (see para 6); The defendants had “by the aforesaid suppression of information, and/or misrepresentation … induced the Plaintiffs to enter into a tenancy agreement with the Plaintiffs on 18 June 2015 on a ‘as is , where is’ and passed off the premises as fit for dormitory use” (see para 7); Mdm Tan and Ms Lew had subsequently breached the tenancy agreement by exercising the right to re-entry “on the same grounds as” the Fire Safety Notices (see para 8); The defendants had materially misrepresented to the plaintiff and had suppressed information relating to the Premises, and the plaintiff was “enticed to execute the [t]enancy [a]greement” (see para 9); Ms Lew and Chambers Law, as the solicitors who drew up the tenancy agreement, had “acted in a position of conflict and neglected to exercise reasonable skill, diligence and care” in discharging their duties to the plaintiff (see paras 10 and 11).

On the basis of the above allegations, in para 12, the plaintiff claimed to have suffered loss and damages, and sought the following reliefs: Reinstatement of the tenancy agreement under ss 18 and/or 18A of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (“the CLPA”), with the defendants to regularise the infringements and apply for official approval for the premises to be used as a dormitory; or Alternatively, return of the deposit paid under the tenancy agreement and damages to be assessed.

The other pleadings

In the Defence, the defendants denied all the plaintiff’s allegations, including the concealment of the Fire Safety Notices, and stated that Ms Lew acted solely for Mdm Tan who entered into the tenancy agreement in its preparation. More importantly for present purposes, at para 13 of the Defence, certain terms of the tenancy agreement (which the plaintiff did not dispute in its Reply to the Defence, and which formed part of the relevant context for assessing the SOC), stated that the plaintiff was, among other things, required: 2.10 To use or permit to be used the Premises for approved purposes only. … 2.11 To obtain all necessary permit, license and approval from the relevant authorities for the Tenant’s usage of the Premises. 2.13 To obtain all necessary approval, permit or consent from the relevant authorities, as may be required under the rules, regulations and/or laws of Singapore, and comply with all requirements set out by the authorities for the Premises.

…

[emphasis in original]

In addition, pursuant to a request by the defendants, the plaintiff had provided Further and Better Particulars of the SOC (“FBP”), including these two relevant particulars: 3. Under [7] of the SOC

…

(a) Please state exactly the alleged misrepresentation made to the Plaintiffs and/or their representative(s)

Answer

The words to the effect that “everything is in order and proper and have confidence that EA Apartments Pte Ltd will do a better job of taking over and administer the premises [sic]

(b) Please state the full name(s) of the person(s) who allegedly made the alleged misrepresentation

Answer

[Mr Lew]

7. Under [11] of the SOC

…

(a) Please state precisely the exact time, date[,] place and … how [Ms Lew and Chambers Law] came to under [sic] the ‘works’ on behalf of the [plaintiff] and whether it was orally made or … given in writing.

Answer

[Mr Lew] orally informed that the Plaintiffs’ [Mr Lew] and Zhou Fengxing that his daughter, who is a lawyer, will prepare the Tenancy Agreement for their benefit and she will call to discuss when preparing the Tenancy Agreement on 3 June 2015 ...

While I found the phrase “[Mr Lew] orally informed that the Plaintiffs’ [Mr Lew] and Zhou Fengxing” less than clear, I surmised that the plaintiff meant to say that Mr Lew had made the representation to Zhou Fengxing, who appeared to be one of the plaintiff’s representatives.

The draft amended Statement of Claim

For ease of comparison with the contents of the SOC and the particulars in the FBP, I now turn to the draft amended SOC. This proposed deleting the entire contents of the SOC, and introducing 28 new paragraphs in substitution. The main proposed changes were as follows: LKT, the third defendant, would be removed as a party; The contract claim would be completely dropped; The new misrepresentation claim would be introduced, premised on completely new allegations. Plaintiff’s counsel admitted in his submissions before me that this claim was founded on “a new cause of action”. In para 7 of the draft amended SOC, it was stated that Mr Lew represented to the plaintiff that Ms Lew and Mdm Tan “agreed to let the premises to the Plaintiff for it to operate a dormitory”. In para 20(b), it was stated that the representation to the plaintiff through Mr Lew was that “it can operate the premises as [a] dormitory”. In para 22(b), it was stated that Mr Lew was allowed to “orally and by conduct represent to the Plaintiff that it was allowed to operate the premises as a dormitory by introducing the Plaintiff to the hair salon operator and the occupants of the dormitory”. The draft amended SOC also proposed fresh particulars to support this new cause of action. The misrepresentation claim founded on concealment or suppression of information would be virtually removed, with some of those matters recast as supporting facts. The breach of duty claim would remain, with the additional allegations that the plaintiff had retained Ms Lew and Chambers Law and had paid for the costs of the work done by them. In terms of relief sought, the prayer for reinstatement of the tenancy agreement would be dropped. Instead, the plaintiff sought damages to be assessed for being “deprived of the bargain” (see para 26). Such damages were to include the “rental income [the plaintiff] was earning and would have continued to earn for the duration of the tenancy agreement” (see para 27).

The appeal The plaintiff’s arguments

Before me, the plaintiff set out in its written submissions a number of factual propositions which it said could be “gleaned/inferred from the Statement of Claim and the proposed amendments” [emphasis...