Garden Hub Pte Ltd v Attorney-General

• Jurisdiction: Singapore
• Judge: Jordan Tan AR
• Judgment Date: 31 January 2012
• Neutral Citation: [2012] SGHC 20
• Court: High Court (Singapore)
• Docket Number: Suit No 649 of 2011/H (Summons No 4939 of 2011/P and Summons No 4950 of 2011/L)
• Published date: 10 February 2012
• Year: 2012
• Hearing Date: 29 December 2011,15 December 2011,09 January 2012,11 January 2012
• Plaintiff Counsel: Looi Ming Ming and Radika Mariapan (Eldan Law LLP)
• Defendant Counsel: Jay Lee, John Lu and Teo Yu Chou (Attorney-General's Chambers)
• Subject Matter: Civil Procedure
• Citation: [2012] SGHC 20

Jordan Tan AR: Introduction

The defendant filed Summons No 4950 of 2011/L (“Sums 4950”) to strike out the plaintiff’s claim and Summons No 4939 of 2011/P (“Sums 4939”) for the court to determine, in the alternative, several questions of law which would dispose of the matter. I ordered the plaintiff’s statement of claim to be struck out in part and declined to answer the questions of law. I set out the reasons for my decision here.

The Background

The parties entered into a state tenancy agreement dated 26 February 2010 for the plaintiff to occupy 60 Jalan Penjara (Parcel B), Singapore 149375, State Land Lots 3536N(PT) MK 02 and 3432N(PT) MK 03 (“the premises”) for three years commencing 17 February 2010. The premises belonged to the state and the state tenancy agreement was entered into by the defendant pursuant to r 19 of the State Lands Rules (Cap 314, Rule 1). The State Lands Act (Cap 314, 1996 Rev Ed) is the parent legislation to those rules.

Under the state tenancy agreement, the plaintiff had to comply with the following pertinent clauses: Clause 5.1.4: “To use the said premises only as Plant Nursery, Orchid/Flower/Ornamental Plant Production and not to use the said premises for any other purpose without the prior written consent of the Landlord.” (emphasis in original) Clause 5.1.5: “To obtain the prior written approval from the Landlord for any intensified land use (e.g. placement of containers, erection of shelter etc.) of said premises.” Clause 7.2: “Not to assign, transfer, sublet, license or part with the actual or legal possession or use of the said premises or any part thereof except with the prior written consent of the Landlord.” Clause 7.3: “No permanent building or temporary structures shall be constructed/used or permitted to be constructed/used on the said premises except with the prior written consent of the Landlord.”

The defendant alleged that the plaintiff had breached these clauses and thus terminated the state tenancy agreement by way of a letter dated 8 September 2011 served by hand. Paragraph five of the letter stated as follows:

By reason of your breaches of the Tenancy Agreement, and pursuant to Rule 29(1) of the State Lands Rules, I hereby give you notice to terminate the tenancy on 22 September 2011. You are to:

(a) deliver possession of the Premises to me in good and tenantable repair and condition on 22 September 2011 and (b) remove all your movable property from the Premises by 22 September 2011.

[emphasis in original]

In the light of the defendant’s position as stated in this letter, the plaintiff filed this suit, Suit 649 of 2011/H (“Suit 649”) against the defendant seeking the following material reliefs: (1) Relief against forfeiture of the lease under the Tenancy Agreement pursuant to the inherent jurisdiction of these Honourable Courts on such terms as may be just and equitable; (2) Further and/or in the alternative, relief against forfeiture of the lease under the Tenancy Agreement pursuant to section 18 of the Conveyancing and Law of Property Act (Cap. 61), on such terms as may be just and equitable; (3) Further and/or in the alternative, a declaration that the Defendant’s purported notice of termination dated 8 September 2011 is invalid; (4) Further and/or in the alternative, a declaration that the Plaintiff’s use of the land falls within the allowable use contemplated under Clause 5.1.4 of the Tenancy Agreement; (5) Further and/or in the alternative, a declaration that the Tenancy Agreement ought to be rectified so as to embody the true agreement actually made between the Plaintiff and the Defendant and/or the true intentions at the time and that the said agreement should be treated as being so rectified...

Simply put, the plaintiff sought relief against forfeiture; and in the alternative, a declaration that the notice of termination was invalid; a declaration on the scope of the proper use of the land under cl 5.1.4; and a rectification of the tenancy agreement to reflect the true intentions of the parties.

In these applications, the defendant sought to strike out the plaintiff’s claim. In the alternative, it sought to have the following questions determined pursuant to O 14 r 12(1) of the Rules of Court (Cap 322, R5, 2006 Rev Ed): Whether the termination of the tenancy agreement was valid? Whether relief against forfeiture under s 18 of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (“CLPA”) is available to the plaintiff? Whether relief against forfeiture through the exercise of the inherent jurisdiction of the court is available to the plaintiff?

These questions are different from the questions as originally framed in Sums 4939 as the defendant had made an oral application, which I had allowed, to amend the contents of Sums 4939 to reflect these revised questions.

My Decision Pleadings and questions of law concerning relief against forfeiture and termination

I did not strike out that part of the plaintiff’s statement of claim pertaining to relief against forfeiture and the validity of the termination notice. I also declined to answer all three questions of law. I explain first my decision to refuse to answer the questions of law.

The questions of law posed were novel questions of considerable public importance and not suitable for summary disposal under O 14 r 12. With regard to O 14 r 12, Chong J in ANB v ANF [2011] 2 SLR 1 set out comprehensively the history of that provision. The learned judge observed (at [24] to [28]) that English jurisprudence was such that the English Court of Appeal had adopted two divergent approaches towards the O 14 summary judgment procedure. The first approach was to deny summary judgment as long as the defendant could raise a serious defence even if that defence was based on a point of law that could be decided at the interlocutory stage. The second approach showed a greater readiness to deal with complex issues of law in an O 14 application where that issue of law was dispositive of the dispute in question. The divergent approaches confused the lower courts and necessitated the introduction of O 14A of the English Rules of the Supreme Court to allow the court to answer any question of law. Order 14 r 12 of the Singapore Rules of Court is in pari materia with the English O 14A.

Chong J observed thus of the English O 14A (at [28]):

Order 14A mandated that where the court was of the opinion that the defendant had raised an arguable defence on a question of law, it could proceed to determine that issue of law in an interlocutory manner and grant summary judgment. [emphasis in original]

Chong J’s observation is a general pronouncement on the tenor of the English O 14A and thus O 14 r 12 of the Rules of Court which is the Singapore equivalent. Nonetheless, there are exceptional situations in which the court should refrain from answering a question of law under O 14 r 12. On this point, the Court of Appeal’s decision in Obegi Melissa and others v Vestwin Trading Pte Ltd and another [2008] 2 SLR(R) 540 (“Obegi Melissa”) is apposite. In that case, the Court of Appeal (V K Rajah JA delivering the grounds of decision of the court) made the following observations on O 14 r 12(1) applications: 40 ... We decided, without adjudicating conclusively on the merits of each side's case, that the matter should proceed to trial instead of being summarily determined. In Lim and Tan Securities Pte v Sunbird Pte Ltd [1991] 2 SLR(R) 776, Chan Sek Keong J (as he then was) held at [22] that "the novelty of the legal issues and also the uncertainty of the factual issues that ha[d] become apparent" warranted a full trial in that case. As this court pointed out in Tat Lee Securities Pte Ltd v Tsang Tsang Kwong [1999] 3 SLR(R) 692, the O 14 r 12 procedure is not appropriate where the law relating to the issues in dispute is unclear and more evidence is needed before those issues can be satisfactorily determined. The present suit similarly raised novel legal issues and required a full examination of all the relevant facts. It was thus unsuitable for determination under O 14 r 12. 41 To elaborate, the law on abandonment has not been settled in Singapore. There is no legislation, case law or authoritative academic view on title to or possession of items which have been disposed of as rubbish. In particular, there is no recent English jurisprudence on this area of the law, and comparative common law decisions provide little by way of consensus or guidance. The positions vary across different jurisdictions, with the courts in Australia, Canada and the US generally recognising, but applying differently, the concept of "divesting abandonment" - ie, the abandonment of both ownership as well as possession. 42 Rubbish disposal - the paradigmatic example of "divesting abandonment" - is a necessary and common occurrence in daily life. It is usually regarded as a mundane matter and is taken for granted until a case like the present suit arises. The disposal of rubbish may also raise, as demonstrated by the facts of this case, the issue of protecting the privacy of individuals and business entities. This is a matter of considerable public importance and should not be decided summarily. Furthermore, there are, in our view, several important findings of fact that need to be made before the respondents' claim against the appellants can be properly determined.

The Court of Appeal declined to summarily dispose of the matter under O 14 r 12 for two reasons. First, the nature of the legal issue in Obegi Melissa (the question of title to or possession of items which have been disposed of as rubbish) was novel and of considerable public importance and should not be decided summarily. Second, there were important findings of fact that needed to be made before the claim could be properly determined.

The defendant argued that Obegi Melissa was...