Fima Construction Pte Ltd v Neo & Neo Brothers Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 22 January 1991
• Neutral Citation: [1991] SGHC 13
• Docket Number: Suit No 807 of 1990
• Date: 22 January 1991
• Year: 1991
• Published date: 19 September 2003
• Plaintiff Counsel: Cheong Tuck Meng (Cheong & Cheong)
• Citation: [1991] SGHC 13
• Defendant Counsel: Harry Elias and Goh Yew Hock (Harry Elias & Partners),HK Koh (HK Koh & Teo)
• Court: High Court (Singapore)
• Subject Matter: Removal,Whether permanent injunction should be granted,Interest in land,Whether defendants should be made to pull down wall entirely or shave the wall to remove intrusion,Encroachment,Land,Fair result to be achieved

Cur Adv Vult

The factual background of these two appeals is as follows. Both the plaintiffs and the first defendants are property developers. The plaintiffs have developed a block of six terraced houses at Kovan Road, Singapore. The first defendants have developed the adjacent block of eight terraced houses. The said properties share a common boundary.

The second and third defendants are the purchasers of one of the terraced houses from the first defendants under an agreement for sale dated 5 October 1989. This house, No 73A Kovan Road, is erected immediately adjacent to one of the terraced houses of the plaintiffs (the affected house). The temporary occupation permit for No 73A Kovan Road was issued on 29 November 1989 and the certificate of fitness on 22 March 1990.

The first defendants first discovered in October 1989 that No 73A Kovan Road had encroached on the plaintiffs` land when the latter`s surveyors forwarded, on 12 October 1989, to the first defendants three copies of a survey plan showing an encroachment as follows: area of wall = 0.24 sq m, area of hoarding = 0.2 sq m.

On 24 October 1989, the plaintiffs wrote to the first defendants on the encroachment and warned of the `very grave repercussions to our present development. It affects both our plot sizes and our proposed alignments of the terrace block. Due to the state of our current works, our work schedule may also be affected.`

On 4 November 1989, the first defendants replied as follows:

We sincerely regret what has happened on site. On behalf of the developer, M/s Neo & Neo Brothers Pte ltd, we suggest to shift the timber fencing to the appropriate position. As for the brick wall, compensation could be discussed other than the option of removing plastering of the brick wall.

It would appear that the first defendant had offered compensation based on the market value of the encroached land, but the plaintiffs did not accept and demanded the exorbitant sum of $500,000. Whatever the amount that was demanded, there was no settlement. On 4 December 1989, the plaintiffs` architects complained to the Public Works Department, but on 14 December 1989, the Building Control Division replied that it was a private matter. On 27 December 1989, the plaintiffs` solicitors came into the picture and did what they were instructed to do, ie to demand the immediate removal of the encroachment and to commence legal proceedings if the demand was not met. Thereafter everything went downhill, resulting in the commencement of proceedings on 7 May 1990, in response to which the first defendants counterclaimed that the plaintiffs had, likewise, encroached on their land.

At the time the plaintiffs discovered the encroachment, they had not erected the house. They could then have come to court for a mandatory injunction to rectify what was then a 0.24 sq m of encroachment. They did not. Instead they proceeded to erect the affected house. When they erected the wall of the affected house adjacent to No 73A Kovan Road, they did not erect it against the wall of No 73A along their entire common boundary. They erected the wall in such a way as to leave a gap between the two walls. Counsel for the plaintiffs explained that his clients were advised to construct the wall that way so as not to trespass on the first defendants` land. I found this caution understandable, but I was unable to understand why the second wall should not touch the first wall as the first wall had already encroached on the plaintiffs` land! If this had been done, the legal problem before me might not have resulted or would have been resolved quite simply, as I shall explain.

Two further surveys of the encroachment were done. One was done on 12 July 1990 by an independent registered surveyor instructed by the plaintiffs. His survey showed two areas of encroachment along the boundary of 0.22 sq m and 0.47 sq m = 0.69 sq m. The other was done, surprisingly as this was a private dispute, by the Chief Surveyor pursuant to an order of court made on 3 August 1990. The Chief Surveyor`s survey confirmed the earlier survey and also that the plaintiffs had not encroached on the first defendants` land.

When this matter came before me for hearing on 21 November 1990, there were five applications to be disposed of, as follows:

(1) Notice of motion filed on 10 May 1990 by the plaintiffs, in effect to continue an interim injunction obtained ex parte on 10 May 1990 to restrain the defendants from further trespass and to pull down the intruding wall of No 73A, Kovan Road, Singapore 1954.

(2) Notice of motion filed on 27 July 1990 by the first defendants to discharge the interim injunction.

(3) Notice of motion filed on 28 July 1990 by the first defendants for an interlocutory injunction against the plaintiffs on the basis of the counterclaim.

(4) S/C No 3008/90 filed on 1 June 1990 by the plaintiffs for summary judgment against the defendants for damages and a permanent injunction.

(5) S/C No 4224/90 filed on 31 July 1990 by the first defendants for summary judgment against the plaintiffs on their counterclaim that the plaintiffs had encroached on their land.

Counsel for the first defendants and for the second and third defendants conceded that there was no encroachment by the plaintiffs and consented to the dismissal of S/C No 4224/90 and also the first defendants` notice of motion filed on 28 July 1990, with costs to be reserved. I made the orders accordingly.

Counsel for the first defendants also admitted that on the basis of the independent survey there was encroachment on the part of his client. He was prepared to consent to judgment on terms to be worked out by the court. However, on ascertaining from counsel for...