Hew Tze Yin and Another v Ming Teck Co Pte Ltd

• Jurisdiction: Singapore
• Judge: Karthigesu JC
• Judgment Date: 12 October 1990
• Neutral Citation: [1990] SGHC 74
• Docket Number: Originating Summons No 1149 of 1989
• Date: 12 October 1990
• Year: 1990
• Published date: 19 September 2003
• Plaintiff Counsel: Keh Kee Guan and Anthony Soh (Keh Kee Guan & Co)
• Citation: [1990] SGHC 74
• Defendant Counsel: Cheng Tim Pin and Lo Wai Ping (Yap & Yap)
• Court: High Court (Singapore)
• Subject Matter: Notice to complete given by vendor after agreed date in sale and purchase agreement,Conveyance,Protracted negotiation between parties,Whether vendor in breach by reason of failure to give valid notice to complete or shortfall in area of flat,Whether purchaser obliged to complete,Land,Shortfall in area of flat,Sale and purchase of flat not completed

Cur Adv Vult

The defendants were the developers of a condominium of flats for sale known as Braddell Park. By an agreement in writing dated 7 November 1980, the defendants agreed to sell to Wong Hon Yin and Luk Sam Mui one of the flats then being erected (the flat) for $308,660. The said Wong Hon Yin and Luk Sam Mui by a deed of assignment dated 4 May 1981 assigned the flat and all their rights title benefits and interest of and under their agreement with the defendants dated 7 November 1980 to the plaintiffs for $308,000. As their development was subject to the Housing Developers (Control and Licensing) Act (Cap 250, 1970 Ed) the defendants in accordance with r 17 of the Housing Developers Rules 1976 as amended in 1981 entered into a fresh agreement with the plaintiffs dated 11 September 1981 for the sale of the flat to them at the original price of $308,660 (the agreement).

The flat is described in identical terms in the respective schedules of the sale and purchase agreement dated 7 November 1980, the deed of assignment dated 4 May 1981 and the agreement as follows:

All that flat on the Ground Floor in the building project known as Braddell Park now being erected or erected ... estimated to contain a floor area of 125 sq m (1,342 sq ft) ... which said housing unit is provisionally known as Block 1, Type B, Ground Floor, Braddell Park, Singapore.

The agreement apart from being subject to the special conditions contained therein was also subject to the conditions of sale by public auction known as `The (Revised) Singapore Conditions of Sale` as far as the same are applicable to a sale by private treaty and are not varied by or inconsistent with the special conditions contained in the agreement (cl 1).

The provisions of the agreement which are relevant to the issues in this matter are the following:

Clause 1

The Vendor shall sell and the Purchaser shall purchase free from encumbrances all that estate in fee simple in part of the land comprising the flat described in the first schedule hereto ... to be comprised in a Subsidiary Strata Certificate of Title under the provisions of the Land Titles (Strata) Act (Cap 277) ...

The first schedule referred to in this clause has already been set out above.

Clause 3(1)(i)

The purchase price shall be paid by the Purchaser to the Vendor by the instalments and at the times following that is to say: on completion of the sale and purchase of the housing unit as provided in clause 14 hereof, the balance of thirty (30)% of the purchase price, twenty (20)% of which shall be paid forthwith to the Vendor and the remaining ten (10)% shall be paid to the Purchaser`s solicitors as stakeholders, five (5)% of which shall be paid to the Vendor within seven (7) days of the receipt by the purchaser or his solicitors of the Certificate of Fitness for Occupation issued by the Assistant Director in respect of the housing unit or a photographic copy thereof duly certified as a true copy by the Vendor`s solicitors and the remaining five (5)% or any balance thereof (after any deduction has been made in accordance with clause 18 hereof) to be paid to the Vendor on the expiry of six (6) months after the date of delivery of vacant possession to the Purchaser or the date of the issue of the Certificate of Fitness for Occupation, whichever is the earlier.

Clause 5(1)

If any of the instalments referred to in clause 3 hereof remains unpaid by the Purchaser at the expiration of the period of fourteen (14) days referred to in that clause, interest on any such unpaid instalment or instalments shall commence to run on the day after the expiration of such period and shall be payable by the Purchaser until

(a) such time as the unpaid instalment is paid; or

(b) the expiration of the notice to repudiate this Agreement given by the Vendor pursuant to para (3) hereof

whichever is the earlier.

Clause 5(2)

The interest payable under para (1) hereof shall be calculated from day to day at the rate of twelve (12)% pa.

Clause 5(3)

If any of such unpaid instalments and interest remains unpaid for any period in excess of forty (40) days after its due date the Vendor shall be entitled at its option on giving to the Purchaser or his solicitors not less than thirty (30) days` notice in writing to treat this Agreement as having been repudiated by the Purchaser and (unless in the meanwhile such unpaid instalment and interest shall have been paid) this Agreement shall at the expiration of the said notice (and in this respect time shall be of the es) be annulled and in such an event -

(a) the Vendor shall be entitled to deal with or otherwise dispose of the housing unit in such manner as the Vendor shall see fit as if this Agreement had not been entered into;

(b) the instalments previously paid by the Purchaser to the Vendor excluding any interest paid shall be dealt with and disposed of as follows:

(i) firstly, all interest calculated in accordance with para (1) hereof owing and unpaid shall be paid to the Vendor,

(ii) secondly, a sum equal to twenty-five (25)% of the balance thereof shall be paid and forfeited to the Vendor; and

(iii) lastly the residue thereof shall be refunded to the Purchaser;

(c) neither party hereto shall have any further claims against the other for costs, damages, compensation or otherwise hereunder; and

(d) each party thereto shall pay its own costs in the matter.

Clause 14(1)

The sale and purchase herein shall be completed at the office of the Vendor`s solicitors, Messrs Yap & Yap fourteen (14) days after the receipt by the Purchaser or his solicitors of the notice to complete of the Vendor or of its solicitors such notice to be accompanied by the certificate of the Vendor`s architect that the said approval of the Competent Authority for subdivision has been obtained. On completion, the Vendor shall make and execute to the Purchaser an assurance of the property sold such assurance to be prepared by and at the expense of the Purchaser.

Clause 14(2)

The said notice to complete shall be given by the Vendor on or before the 31 December 1986, or within any extension of time given by the Controller of Housing save that any extension of time given by the Controller of Housing shall not exceed six months from the date hereof. If the Vendor shall fail to give the said notice to complete on the date fixed for completion or before the expiration of any extension of time given by the Controller of Housing the Vendor shall pay to the Purchaser liquidated damages calculated from day to day commencing from the date hereof or any extended date when such notice to complete should have been given at the rate of nine (9)% pa on the sum equal to eighty (80)% of the purchase price, such interest may be deducted from any instalment due and payable to the Vendor.

Condition 11 of The (Revised) Singapore Conditions of Sale reads as follows:

The property is believed and shall be taken to be correctly described as to quantity and otherwise and is sold subject to all chief, quit, and other rents and outgoings and to all incidents of tenure, rights of way, and other rights and easements (if any) affecting the same and if any error, mis-statement, or omission (not of a serious or vital nature nor considerably affecting the value of the property) shall be discovered in the Particulars Special Conditions or Contract the same shall not annul the sale nor shall any compensation be allowed by or to either party in respect thereof.

Incidentally this condition is identical to condition 11 of the Singapore Law Society`s Conditions of Sale 1981.

By a notice in writing dated 7 August 1987 addressed to the plaintiffs` solicitors, the defendants` solicitors called on the plaintiffs to complete the purchase of No 62 Jalan Lateh, Braddell Park, as the flat was now known, by paying the sum of $61,732 which was the full balance of the purchase price outstanding, within 14 days of the receipt of the notice, failing which, it was said, interest at the rate of 12% was chargeable. The notice was received by the plaintiffs` solicitors on 8 August 1987. The notice also called for an additional payment of $1,179.71 being as to $759.71 government resurvey fee and as to $420 maintenance fee for July to September 1987. Enclosed with the notice were photocopies of the duplicate subsidiary strata certificate of title Volume 274 Folio 102, the defendants` architect`s certificate referred to in cl 14(1) of the agreement and the defendants` surveyor`s certificate.

Quite obviously this notice was intended to be the `notice to complete` referred to in cl 14(2) of the agreement which was required to be given to the plaintiffs or their solicitors on or before 31 December 1986 or within any extension of time given by the Controller of Housing which extension shall not in any case exceed six months.

The plaintiffs` solicitors` response to the defendants` solicitors` `notice to complete` was given on 13 August 1987. It was twofold. First, it was stated that since notice to complete was given after 31 December 1986 liquidated damages was payable vide cl 14(2) of the agreement for the period 1 January 1987 to 8 August 1987 on 80% of the purchase price at 9% pa. This was calculated at $13,394.99 which the plaintiffs` solicitors stated would be deducted from the balance of the balance price on completion. Secondly, the plaintiffs` solicitors pointed out that the area of the flat shown in the duplicate subsidiary strata certificate of title Vol 274 Folio 102 was 6 sq m or 4.8% less than the area of the flat as stated in the agreement. Accordingly, they claimed an abatement or deduction of $14,815.68 from the balance of the purchase price.

There then followed three letters from the defendants` solicitors to the plaintiffs` solicitors. The first dated 15 August 1987 that they were...