Hillwood Development Pte Ltd v Mariam binte Amir and Another

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 26 April 1999
• Neutral Citation: [1999] SGHC 106
• Published date: 06 March 2013
• Court: High Court (Singapore)
• Plaintiff Counsel: Liaw Jin Poh with Wee Hsiang Ling (William Lai & Alan Wong)
• Defendant Counsel: Lim Seng Siew with K Manickam (S K Kumar & Associates)

Judgment:

1. This matter came before me as an appeal from the decision of the assistant registrar to strike out the defendants’ defence and counterclaim and to enter judgment for the plaintiffs. This decision was made pursuant to an application by the plaintiffs for the striking out of substantial portions of the defence and counterclaim on the basis that they were irrelevant and/or tending to prejudice or embarrass or delay the fair trial of the action or otherwise an abuse of the process of the court. The plaintiffs also contended that the counterclaim disclosed no reasonable cause of action.

2. The action was started as an originating summons but subsequently the plaintiffs were ordered to convert it into a writ action. As a consequence both parties filed their pleadings.

Statement of claim

3. The statement of claim was filed on 4 June 1998. The facts of the plaintiffs’ case as contained in the statement of claim and affidavits filed in the proceedings were that in 1969, a company called Sri Jaya (Sendirian) Berhad (‘Sri Jaya’) had been the owner of the land known as Lot 4906, Mukim 24, Singapore (‘the land’). In that year, Sri Jaya obtained a loan from United Malayan Banking Berhad (‘UMBC’) to finance the construction of two apartment blocks on the land. The loan was secured by an indenture of mortgage of the land which was executed on 13 October 1969 and subsequently duly registered in the Registry of Deeds. Clause 5(q) of the indenture of mortgage provided that the statutory power of leasing conveyed Sri Jaya by the Conveyancing and Law of Property Act was not exercisable by Sri Jaya without the previous consent in writing of UMBC.

4. Sri Jaya duly constructed two units of apartment blocks (‘the premises’) on the land. The second block was known as Block B, Paya Lebar Close, Singapore (‘Block B’). One of the apartments in that block known as Block B Unit 6 Paya Lebar Close, Singapore (‘Unit 6’) was subsequently occupied by one Amir Bin Mohd Noor, the father of the defendants (‘Amir’).

5. Sri Jaya defaulted on repayments due under the mortgage and UMBC commenced action in High Court Suit no. 5904 of 1983 against, inter alia, Sri Jaya, claiming, inter alia, for a declaration that it was entitled to sell the land and the premises. On 2 October 1991, Sri Jaya consented to judgment and an order was made that UMBC was entitled to sell the land and premises freed from any interest claimed by Sri Jaya.

6. Paragraph 6 of the statement of claim stated that Amir had occupied Unit 6 without the consent or licence of UMBC and refused to deliver up possession of Unit 6 to UMBC despite a letter of demand to this effect dated 18 May 1993. It should be noted that Amir had in fact died in October 1987 and letters of administration to his estate were granted to the second defendant on 20 September 1988. Subsequently, on 24 August 1994, both the defendants lodged a caveat against Unit 6.

7. On 30 September 1994, UMBC sold the land and premises (including Unit 6) to Win Supreme Investment (S) Pte Ltd (‘Win Supreme’). Win Supreme subsequently carried on negotiations with the occupiers of various units of Block B with the aim of obtaining vacant possession of those units. These negotiations were not successful as regards all the occupiers. The defendants did not enter any agreement with Win Supreme. Neither did one Madam Joharah Bte Abdul Wahab (‘Madam Joharah’) who occupied the flat known as Block B Unit 2, Paya Lebar Close, Singapore (‘Unit 2’).

8. By originating summons no. 1176 of 1994, Win Supreme commenced proceedings against Madam Joharah to recover possession of Unit 2. Madam Joharah claimed an interest in Unit 2 on the basis that her father one Wahab bin Sheikh Daud (‘Wahab’) had entered into an agreement in Malay with the Singapore National Housing Co-operative Society Ltd (‘the Society’) to lease and purchase Unit 2. The Society had, some time in the early 1970s, entered into a lease agreement with Sri Jaya whereunder the Society had agreed to lease the whole of Block B for a term of 199 years from 2 January 1975 at a consideration of S$420,000 or $28,000 for each flat. Neither the lease agreement or the purchase agreement between the Society and Wahab were registered with the Registry of Deeds.

9. The originating summons against Madam Joharah was subsequently converted into an action began by writ and the action was tried in September 1996 before Chao Hick Tin J. On 6 November 1996, judgment and costs were given in favour of Win Supreme and a declaration made that it held Unit 2 freed from the rights and interest of Madam Joharah, the occupier. Madam Joharah’s appeal to the Court of Appeal was dismissed on 8 July 1997.

10. In the meantime, the plaintiffs agreed to purchase the land and premises from Win Supreme. The same were conveyed to them by an indenture of conveyance dated 13 March 1995. The plaintiffs pleaded that in the premises they, as purchaser from Win Supreme which was the purchaser from UMBC, took the land freed of any estate, interest or right of the first and second defendants. They claimed the following main reliefs:

(1) a declaration that they held the said land and premises known as Block 6 Unit 6 Paya Lebar Close, Singapore more particularly described as Lot 4906 (formerly known as Lots 2860 and 2990) of Mukim 24, Singapore, freed from all estate, interest and right of the first defendant and the second defendant and all persons claiming under either or the both of them;

(2) the first and second defendants do remove and/or withdraw their caveat registered as CV 071315/D;

(3) the plaintiffs do recover possession of the apartment known as Block B, Unit 6 Paya Lebar Close, Singapore; and

(4) the first and second defendants do pay damages to the plaintiffs for unlawful occupation of the said apartment.

Defence and counterclaim

11. In their defence and counterclaim filed on 22 June 1998, the defendants admitted many of the facts set out in the statement of claim though they averred that they were not aware of the particulars of the claim which UMBC had against Sri Jaya or of any matter relating to UMBC entering judgment against Sri Jaya.

12. The defendants denied that Amir had occupied Unit 6 without the consent of UMBC. They contended that UMBC was at all material times aware and/ or ought to have known of the occupation of Unit 6 by the defendants’ late father and his family. Further, when Win Supreme bought the land and premises, it was aware of the occupation of the various apartment units at Block B and had agreed to pay compensation of $350,000 to the occupiers of each of the units at Block B in return for vacant possession of such units.

13. The defendants went on in para 7 to aver that the plaintiffs at the time of their purchase were aware or ought to have been aware of the offers of compensation by Win Supreme. They contended that after the outcome of Madam Joharah’s case the plaintiffs had changed the nature of the offer to a without prejudice one and had changed the quantum to $100,000.

14. The defendants did not admit that the plaintiffs as purchaser from Win Supreme which was the purchaser from UMBC had taken the land freed of any estate, interest or right of the defendants. They contended that at all times UMBC, then Win Supreme, and finally the plaintiffs, were under an obligation to discharge the rights and interest of the estate of Amir in Unit 6.

15. Paragraph 12 of the defence and counterclaim set out the basis of the defendants’ counterclaim. The defendants recited the following facts:

(i) By an agreement for lease made between Sri Jaya and the Society dated 22 March 1976, the Society had leased the land from Sri Jaya. Subsequently, Amir had entered into a sale and purchase agreement dated 1 December 1974 with the Society for the lease of Unit 6 for a consideration of $28,000. A deposit of $6,000 was paid on or before the signing of the agreement and it was an express term of the agreement that upon payment of the balance sum of $22,000 by way of instalments of $4,000 per month, Amir would be the owner of Unit 6. Amir completed the instalment payments some time around 1981.

(ii) Amir died in October 1987. Two weeks later, the second defendant and her husband asked the Society to make the first and second defendants members of the Society in order to effect the change of ownership of Unit 6 from Amir’s name to the defendants’ names. The Society refused and offered to buy back the unit. This offer was rejected by the second defendant.

(iii) Some time in 1989, an officer of UMBC informed the second defendant and her husband and the other tenants of Block B that they were required to pay UMBC the sum of $70,000 each and that upon each and every tenant paying the said sum, title deeds for their respective units would be given to the occupants of Block B. The defendants and the other occupants of Block B refused to make such payment.

(iv) A letter dated 5 August 1993 was written by the Society’s solicitors to Amir which stated that UMBC had taken legal action to recover possession of the land; that the Society was engaged in negotiations with UMBC with regard to the recovery; and that the Society wanted to represent Amir in the negotiations and for that purpose asked him to sign an authority in its favour.

(v) In May and June 1995, UMBC’s solicitors had written to Amir stating that he was occupying Unit 6 without the knowledge and/or approval of UMBC.

(vi) In June or July 1994, the second defendant’s husband was informed by an agent of Win Supreme that the latter was purchasing the land and premises and that it was making an open offer to pay each tenant of Block B compensation in the sum of $350,000 in exchange for a transfer of such tenant’s rights and interest to Win Supreme. The...