Goh Gin Chye and Another v Peck Teck Kian Realty Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Punch Coomaraswamy J
• Judgment Date: 09 April 1987
• Neutral Citation: [1987] SGCA 9
• Date: 09 April 1987
• Subject Matter: Effect of agreements,Landlord and Tenant,Creation of tenancy,Whether agreements create tenancy or bare licence,Principles applied
• Docket Number: Civil Appeal No 65 of 1981,Civil Appeal No 74 of 1983
• Defendant Counsel: Gan Choo Beng (Chu Chan Gan & Ooi),P Balagopal (Chan Kam Foo & Associates)
• Court: Court of Appeal (Singapore)
• Published date: 19 September 2003
• Plaintiff Counsel: YR Jumabhoy and VKS Narayanan (VKS Naraganan)

(delivering the grounds of decision of the court): This appeal arose out of an action brought by the first respondents in the district court against the appellants and the second respondent for recovery of vacant possession of the ground floor of a two-storey shophouse, known as No 71, Kampong Bahru Road, Singapore. The first respondents are the owners of the premises, which are premises within the meaning of the Control of Rent Act (Cap 266). Their predecessors in title granted to one Tay Ping Kee, since deceased, a monthly tenancy of the said ground floor (the said premises) at a monthly rent of $40 per month initially and subsequently at $25 per month which was later raised to $26 per month. The appellants are the administrators of the estate of Tay Ping Kee deceased. The claim for possession of the said premises was founded on two grounds, namely:

(i) that the said Tay Ping Kee deceased sublet or parted with possession of the said premises to the second respondent in breach of a covenant not to assign, sublet or part with possession of the said premises or any part thereof without the prior consent of the owners; and

(ii) that the said Tay Ping Kee deceased received in respect of the subletting rent in excess of the aggregate of 110% of the recoverable rent paid for the said premises and that after the death of the said Tay Ping Kee, the appellants continued to collect rent in respect of the sub-tenancy in excess of the said limit.

Before the learned district judge, the dispute between the parties resolved into three issues: (i) whether there was a prohibition against subletting; (ii) whether there was a subletting; and (iii) whether the rent received from the second respondent was in excess of the aggregate of 110% of the recoverable rent paid for the said premises. The learned district judge found that the first respondents had not discharged the burden of proving that there was a prohibition against subletting, and accordingly, the first ground for recovery of vacant possession failed. On the second issue, the learned district judge found that there was a subletting of the said premises to the second respondent and rejected the appellants` plea that only a licence was granted to the second respondent. On the third issue, the learned district judge found that the rent received from the second respondent was in excess of the aggregate of 110% of the recoverable rent paid for the said premises. Accordingly, he held that the first respondents were entitled to recover as against the appellants vacant possession of the said premises, but he dismissed the claim against the second respondent.

Against the decision of the learned district judge, the appellants appealed to the High Court. The High Court affirmed the finding of the learned district judge that there was a subletting of the said premises to the second respondent in spite of the several successive agreements which were described as `licence agreements` and that the rent received from the second respondent was in excess of the aggregate of 110% of the recoverable rent paid for the said premises, and dismissed the appeal with costs. Against that decision this appeal was brought, and at the conclusion of the hearing of the appeal we dismissed it with costs.

The point canvassed before us was that the second respondent was a licensee, and not a sub-tenant, of the said premises and reliance was placed on a series of agreements made between the late Tay Ping Kee and the second respondent and the last agreement made between the second appellant, as the administrator of the estate of Tay Ping Kee deceased, and the second respondent. It was argued on behalf of the appellants that the learned judge in the High Court did not apply his mind to the question whether the agreements made created a licence or a tenancy of the said premises, that this question turned on the intention of the parties to be gathered not only from the evidence adduced but also from the agreements executed by them, and that if the learned judge had approached the question with this point in mind he would have found that the agreements created a licence. We rejected this argument.

There were altogether six agreements between the late Tay Ping Kee and the second respondent made successively in 1961, 1964, 1967, 1970, 1973 and 1975 and one agreement made in 1977 between the second appellant, as the administrator of the estate of Tay Ping Kee deceased, and the second respondent. The first two agreements made in 1961 and 1964 respectively were tenancy agreements, under which the late Tay Ping Kee agreed to sublet the said premises to the second respondent at the rent and on the terms and conditions therein respectively provided, and each tenancy agreement provided for a term of three years; the first agreement expired on 30 November 1964 and the second agreement on 30 November 1967. On the expiry of the second agreement, the third agreement dated 30 November 1967 was made, but this agreement was expressed to grant to the second respondent a licence to use the said premises for a term of three years, the second respondent paying to the late Tay Ping Kee a sum of $150 per month as licence fee. The other terms thereof were substantially similar to those found in a tenancy agreement but with necessary and consequential changes including changes in certain terminologies, such as `sub-tenant` to `licensee,` `rental` to `licence fee` and `sub-tenancy` to `licence`. In addition, it contained the following provision in cl 6:

(ii) That the Licensee shall in no way hold himself out as a Tenant or a sub-tenant of the Licensed Site but his status shall be that of a bare Licensee with the rights and liabilities of a bare Licensee in law save for the right of enjoyment conferred on the Licensee pursuant to cl (5) hereof.

Subsequent agreements made successively in 1970, 1973 and 1975 were also each expressed to give to the second respondent a licence to use the said premises. The 1970 agreement, was drafted in a more expanded form than the earlier agreement with a couple of clauses added thereto. But for some inexplicable reasons the two subsequent agreements were drafted in an abbreviated form; several provisions, which were present in the earlier agreements, were deleted, and in particular, the provision quoted above did not appear in either of these agreements. After the death of Tay Ping Kee, the second...