Hemlata Pathela (trading as Coco Properties) v Suresh Partabrai and Another

• Judge: Choo Han Teck JC
• Judgment Date: 05 July 2000
• Neutral Citation: [2000] SGHC 126
• Citation: [2000] SGHC 126
• Defendant Counsel: Madan Assomull (Assomull & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: Eric Low (Khattar Wong & Partners)
• Date: 05 July 2000
• Docket Number: MC Suit No 14038 of 1999 (Registrar's Appeal No 300345 of 1999; RAS 600013 of
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Contract,Originating processes,s 9(2) Auctioneer's Licenses Act (Cap 16),Unlicensed agent brokering sale of property,Whether proper procedure was to apply for trial of preliminary issue,Illegality and public policy,Whether agent able to enforce agreement and recover commission through process of court,Contract for brokerage commission,Defendants applying to strike out claim,Staututory illegality

: The plaintiff is the sole proprietor of a business registered as Coco Properties. She averred that she carried on the business of a real estate agent. She brokered a sale of the defendants` property at 1 Amber Road for $2.7m. The contract for sale was concluded between the defendants and the purchaser on 20 August 1998 and the sale was completed on 21 October 1998.

The plaintiff by this action sued the defendants for her commission of $27,000 (being one per cent (1%) of the purchase price) agreed between the defendants and herself.

The defendants applied to strike out the plaintiff`s claim on the ground that it discloses no reasonable cause of action, is frivolous, vexatious or otherwise an abuse of the process of the court. The defendants` case was that the plaintiff had no licence under the Auctioneer`s Licences Act (Cap 16) to carry on her business as a housing agent and was, therefore, in breach of s 9(2) of the Act. Accordingly, the contract between them and the plaintiff was illegal and cannot be enforced.

The writ was struck out by the deputy registrar of the Subordinate Courts. The plaintiff appealed to the district judge in chambers. The learned District Judge Mr Khoo Oon Soo dismissed the appeal and the plaintiff thus appealed before me against the decision of the learned District Judge. In the course of argument it became obvious to me that the proper procedure was to apply for a trial of a preliminary issue. The facts and circumstances here do not merit a striking out on the ground that the writ discloses no reasonable cause of action (as the defect is not apparent on the pleadings) or that it was frivolous or vexatious (in which case different considerations apply).However, having come thus far, and since my decision on the arguments as presented achieves the same result, it would be inappropriate and futile to correct that procedural mistake now.

The issue before me is purely one of law. On the facts as I had set out above, was the plaintiff entitled to recover the commission through the process of court? Mr Eric Low for the plaintiff argued very forcefully that a distinction ought to be drawn between a contract which is prohibited by statute and one in which is not prohibited whether expressly or by implication. He submitted that the failure to obtain a licence may be an offence under the Act and renders the plaintiff liable to be fined for it, but there is nothing in the Act which expressly or impliedly suggests that a contract made with an unlicensed housing agent is illegal and cannot be enforced by him.

Mr Low conceded that he will be hard put to argue that an unlicensed doctor should be permitted to sue for his fees; likewise, an unlicensed architect or lawyer. He distinguished such cases on the basis that the consequences of those unlicensed persons may result in serious harm. In this case, he argued, no harm ensues from the failure of the housing agent who does not obtain a licence to carry on his business as such. Mr Low may have overlooked the case of Gremaire v Valon 2 Camp 143; 170 ER 1110 cited in Cope v Rowlands (1836) 2 M & W 149; 150 ER 707 which Mr Assomull referred to at the hearing. It is not a point of any significance in my view, but it should be made for the record. In Gremaire Lord Ellenborough held that a surgeon was entitled to sue for his fees even though he was not licensed. Parke B in Cope v Rowlands doubted the correctness of the decision of Lord Ellenborough, and reminded the parties before him that that case was affirmed on appeal on a different ground, namely, that there was no evidence that the surgeon was not licensed.

Mr Assomull submitted that the licensing requirement was not a purely revenue provision....