Goh Kim Heong and Others v AT & J Co Pte Ltd

• Court: High Court (Singapore)
• Judge: Kan Ting Chiu J
• Judgment Date: 15 September 2001
• Neutral Citation: [2001] SGHC 269
• Citation: [2001] SGHC 269
• Defendant Counsel: Ng Siew Hoong and Lim Shack Keong (Peter Moe & Partners)
• Plaintiff Counsel: Peter Wong, Li Ping and Jennifer Leng (William Lai & Alan Wong)
• Published date: 19 September 2003
• Docket Number: Originating Summons No 600751 of
• Date: 15 September 2001
• Subject Matter: Leave to appeal to Court of Appeal,Land,Civil Procedure,s 34(2)(a) Supreme Court of Judicature Act (Cap 322, 1999 Ed),Receipt of rents by purchaser after functional completion,Amount payable to vendor on legal completion,Payment of balance of purchase price as per vendor's completion account on functional completion,Functional completion following death of one of purchasers pending letters of administration,Servicing of mortgage by purchasers on behalf of vendor after functional completion,Value of claim below statutory threshold,Whether dispute involves important question of law for determination by Court of Appeal,Appeals,Completion,Whether right of appeal absolute,Entitlement of vendor to further sums on legal completion,Conveyance

: This action arose out of a sale of a property known as No 61 Ubi Avenue 2, [num ]04-18, Automobile Megamart, Singapore (`the property`). The defendant company was the vendor. It issued an option dated 19 November 1999 to Fuu Khee Tong [commat] Foo Khee Tong, Goh Sewi Tong, Woo Koh Wan and Goh Keng Hock trading in partnership as Goh & Goh Motor Enterprise to purchase the property at a price of $890,000. The option was duly accepted and exercised on 2 December 1999 with the payment of 10% of the purchase price.

The vendor had not completed its purchase of the property with the developer, and the certificate of title to the property was not issued. In view of this the parties agreed pursuant to cl 10 of the option that:

The sale and purchase shall be by way of a Deed of Assignment of the Vendor`s rights title and interests in the property. The Vendor shall endeavor to procure a fresh Agreement for Sale and Purchase to be made between the Developer and the Purchaser, provided that all the Developer`s administrative fee and legal costs for the fresh Agreement for Sale and Purchase shall be borne by the Purchaser who shall return the fresh Agreement for Sale and Purchase duly executed at least ten (10) working days prior to completion.

Under the terms of the option, completion between the vendor and the purchasers was to take place on 10 February 2000.

Although the certificate of title was not issued, the unit was ready for occupation and was tenanted out, and the sale was subject to the existing tenancy.

The transaction did not proceed in accordance to the terms of the option. The progress was disrupted by the death of Fuu Khee Tong [commat] Foo Khee Tong (`the deceased`) on 9 January 2000.

The deceased`s death held up the completion of the sale because the developers required the grant of letters of administration to his estate to be produced before they would enter into a fresh sale and purchase agreement with the purchasers. The letters could not be produced by 10 February 2000, and were not extracted till 29 November 2000. The first and second plaintiffs are the administrators of the estate.

The vendor and the purchasers entered into negotiations to alleviate the effects of the delay. The purchasers` solicitors, William Lai & Alan Wong informed Peter Moe & Partners, solicitors for the vendor that:

(O)ur clients propose the following pending issuance of the Grant of Letters of Administration:-
(a)	(1)	our clients make payment of the cash portion of the sale proceeds ("cash proceeds") to your clients derived as per the formula:-
		90% of the sale price less (the unpaid progress payments and outstanding redemption amount of your clients` mortgagee for the property)
		(which redemption statement has to be furnished to us);
	(2)	interest is not to be charged pending completion which should take place within about a month from 10 February 2000 ...
...
(c)		property tax, maintenance fees and interest on overdraft facilities of your clients will be borne by our clients until the date of payment of the amount in (b)(2) provided the while of the rental proceeds is paid to our clients.

They replied:

Our clients instruct as follows:-
1.	They are agreeable to the arrangement stated in your letter of 18 February 2000.
2.	They will not charge interest if completion takes place not later than 9 March 2000. If your clients are unable to complete on 9 March 2000, our clients will charge interest from 11 February 2000 to the actual date of completion.

and followed that with another letter that:

The rental payment of $8,000.00 excluding GST is to be paid to your clients with effect from 1 March 2000 if your clients pay the balance of the purchase price less the unpaid purchase price (8%) and the outstanding redemption amount to be paid to the existing Mortgagees, on 29 February 2000.

On 29 February, the vendor`s solicitors sent a completion account to the purchasers` solicitors:

Sale Price	$890,000.00
Less:
(a)	10% deposit paid	$89,000.00
(b)	Balance 8% of the Purchase price due to developers	$59,200.00
(c)	Redemption amount owing to Bank of China
Add:
3% GST on the 10% deposit	$2,670.00
3% GST on the balance sale price of $741,800.00
Amount payable on 29 February 2000

$370,495.64 $518,695.64 $22,254.00 $396,228.36 adding

We require the following on 29 February 2000:-

...

5. your confirmation that your clients will:-

(a) settle the monthly instalment due and payable to our clients` mortgagees promptly;

(b) pay all property tax and maintenance fee as from 1 March 2000;

(c) perform and observe all the terms of the Tenancy Agreement dated 23 September 1999 and shall indemnify our clients for any breach thereof.

I will refer to this form of completion by payment and delivery of possession as the functional completion, and the form of completion contemplated by cl 10 of the option as the legal completion.

Pursuant to the agreement reached, $371,304.36 was paid by the purchasers to the vendor on 8 March 2000. When they tendered the payment the purchasers` solicitors wrote to the vendor`s solicitors to place on record that:

(Y)our clients are agreeable to accept a sum of S$371,304.36 towards part payment of the purchase price (as per your letter dated 29th February 2000 but not including GST at 3% on 10% deposit which has already been paid by our clients and not including GST at 3% on the balance sale price of S$741,800.00).

...

(T)he following ... has been agreed:-

1 you may release the balance 10% deposit of the sale price to your clients;

2 our clients will pay the property tax and maintenance charges with effect from 1st March 2000, which you have informed us today that the bills have not been issued or received by you;

3 our clients will pay the monthly instalment of S$6,954.71 to your clients directly before the 28th of every month as you have informed us that your clients` payment of the monthly instalment is by monthly giro deduction on the 28th of every month;

4 you will forward to us the rental sum of S$8,000.00 which your clients have collected for the month of March 2000 within 3 days from the date hereof and our clients will collect the rental of S$8,000.00 for future months from your clients directly every month.

Nothing eventful took place thereafter while the parties waited for the letters of administration. When the letters were extracted the parties proceeded with the legal completion.

At this stage, a disagreement arose over the amount to be paid to the vendor on the legal completion. The vendor`s solicitors issued another completion account dated 29 January 2001:

Sale Price		$890,000.00
Less:
10% deposit paid	$89,000.00
8% purchase price yet to be paid to the developers (based on $740,000.00)	$59,200.00
Amount paid to us on 8 March 2000	$371,304.36
Rental Deposit
Add:
3% GST on the balance sale price of $741,800.00

$16,000.00 $535,504.36 $22,254.00 $376,749.64 The purchasers` solicitors pointed out that:

(Y)our completion account is not correct. Kindly note that as agreed, our clients have been servicing the monthly instalment payments on your clients` behalf to pay down the Term Loan. As at 29th February 2000, as per your completion account, the redemption amount to Bank of China then was $370,495.64. When we complete, our clients will only have to pay the outstanding balance of the Term Loan

...