Swee Hong Investment Pte Ltd v Swee Hong Exim Pte Ltd and Another (Kiaw Aik Hang Land Pte Ltd and Another, Third Parties)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 19 August 1994
• Neutral Citation: [1994] SGCA 104
• Date: 29 July 1994
• Docket Number: Civil Appeals Nos 6 and 8 of 1993
• Published date: 19 September 2003
• Year: 1994
• Plaintiff Counsel: G Raman (G Raman & Pnrs)
• Citation: [1994] SGCA 104
• Defendant Counsel: Alban Kang and Anthony Soh (Arthur Loke & Pnrs)
• Court: Court of Appeal (Singapore)
• Subject Matter: Words and Phrases,ss 5 & 7 Government Proceedings Act (Cap 121),Replies to legal requisitions from purchaser of real property,Parties,Tort by public official,Whether the act was done in the exercise of public duties and excepted from liability,s 7(2) Government Proceedings Act (Cap 121),Civil Procedure,Government proceedings,"Includes"

Cur Adv Vult

These two appeals have arisen out of a sale and sub-sale of two lots of industrial land in June 1984 from Kiaw Aik Hang Land Pte Ltd (Kiaw Aik Hang) to Swee Hong Exim Pte Ltd (Swee Hong Exim) and then, in September of the same year, from Swee Hong Exim to Swee Hong Investment Pte Ltd (Swee Hong Investment).

The facts are fully set out in the learned judge`s judgment dated 16 December 1992 and we would only refer to those which are relevant to the appeals before us.

In the action, Swee Hong Investment claimed against Swee Hong Exim, its associated or affiliated company, for breach of contract, and against the Attorney General for damages for breach of statutory duty under the Planning Act (Cap 232) and/or negligence in the performance of such duty on the part of the Development & Building Control Division (DBCD) of the Public Works Department, Ministry of National Development. Swee Hong Exim claimed in third party proceedings against Kiaw Aik Hang for breach of contract and against the Attorney General for breach of statutory duty and/or negligence in similar terms to the claim of Swee Hong Investment against the Attorney General. The Attorney General was named as a nominal defendant in both sets of proceedings in accordance with s 19 of the Government Proceedings Act (Cap 121). That section provides that, in actions against government departments which have not been authorized to act on their own behalf, the Attorney General should be named as the defendant.

The claim against the Attorney General arose from an admitted error in replies which the DBCD provided to Swee Hong Exim`s solicitors on 5 July 1984 on the standard form of legal requisitions in respect of the lands contracted to be sold. The DBCD had stated that there was an amended planning permission of a part 7/part 8-storey flatted factory building and that the master plan plot ratio was 2.49. The sale of the lands was therefore with the benefit of the planning permission.

However, on 13 March 1985, months after the sale and purchase of the lands had been completed, the DBCD explained that the plot ratio which they had stated in the requisitions was not correct because no development charge had been paid and no formal alteration to the master plan had been made. The real plot ratio, according to the DBCD, should have been 0.44.

Under s 32 of the Planning Act, a development charge is payable for any planning permission to develop land in excess of the plot ratio prescribed in the master plan for the area. The result was that, if Swee Hong Investment were to proceed with the development in accordance with the planning permission already granted, they would have to pay a development charge. The DBCD later informed them that the development charge payable was $6.8m. In the event, presumably to avoid paying such a hefty sum, a fresh planning application was submitted for a development with a plot ratio of only 0.42, within the limit of the master plan.

The acts and omissions in respect of which it was contended that the government should be held liable were, firstly, the failure to determine the development charge and securing its payment at the time of granting the planning permission, and, secondly, the furnishing of the erroneous information in the legal requisitions.

The originating summons was ordered to be carried on as a writ action, with exchange of pleadings. At the conclusion of the trial, the learned judge found that Kiaw Aik Hang had not been in breach of contract. The appeal by Exim against this decision was withdrawn before us. Swee Hong Investment and Swee Hong Exim being associated companies, they were, as the learned judge had said, really on the same side. Before us, the only contest was between them and the Attorney General over the claims against the DBCD.

The learned judge, who received very little assistance on the point, held that the Attorney General was afforded a complete defence by s 7 of the Government Proceedings Act (Cap 121). He dismissed the claim against him without considering the merits of the allegations of negligence and breach of statutory duty. The two appeals are entirely upon this issue. The learned judge explained his decision as follows:

In granting the written permission under s 9(1) on 17 September 1982, the competent authority was undoubtedly exercising the public duty of the government ... In respect of the replies to the legal requisitions, they were made pursuant to r 7(5) of the Planning (Development) Rules 1981. The officer concerned who provided the replies to the requisitions was again exercising the public duty of the government ...

The present case is ... a clear case for the application of s 7(1) of the Government Proceedings Act. In my judgment, this section provides a complete defence to the claims of the plaintiff and the first defendant against the second defendant.

The relevant sections of the Government Proceedings Act (Cap 121) read as follows:

4 Subject to the provisions of this Act and of any written law, any claim against the Government which -

(a) > is founded on the use or occupation or the right to the use or occupation of State land;

(b) > arises out of the revenue laws;

(c) > arises out of any contract made by the authority of the Government which would, if such claim had arisen between private persons, afford ground for civil proceedings; or

(d) > is a claim (other than a claim in tort) for damages or compensation not included in paragraphs (a), (b) and (c) which might lawfully be enforced by civil proceedings as between private persons,

shall be enforceable by proceedings against the Government for that purpose in accordance with the provisions of this Act.

(5) Subject to the provisions of this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government.

(6) (1)No proceedings shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer, unless proceedings for damages in respect of such act, neglect or default would have lain against such officer personally ...

(7) (1)Notwithstanding any other provisions of this Act to the contrary, no proceedings, other than proceedings for breach of contract, shall lie against the Government on account of anything done or omitted to be done or refused to be done by the Government or any public officer in the exercise of the public duties of the Government.

7 (2)For the purposes of subsection (1), `exercise of public duties` includes -

(a) > the construction, maintenance, diversion and abandonment of railways, roads or bridges;

(b) > the construction, maintenance, and abandonment of schools, hospitals or other public buildings;

(c) > the construction, maintenance, and abandonment of drainage, flood prevention and reclamation works; and

(d) > the maintenance, diversion and abandonment of the channels of rivers and waterways.

7 > (3)Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties.

Contentions of counsel

Counsel for the appellants submitted as follows. Referring to s 7, he submitted that a distinction should be drawn between the exercise of a duty and the exercise of a power. He submitted that, in the performance of a duty, there is no discretion, whereas in the exercise of a power, there is a discretion, the discretion lying in the choice of the manner of exercising the power. And where there is a discretion, there should be accountability. Referring to the provisions of the Planning Act, he said that the matters complained of against the DBCD were acts or omissions in the exercise of a discretion. The government was accountable and the case fell outside the ambit of s 7.

In his written submission submitted before the hearing, counsel for the appellants had put the matter slightly differently. He referred to the distinction sought to be drawn in A-G v Pang Ah Yew (to which we shall refer later in this judgment) between acts in performance of duties imposed by the legislature and acts done under the direction of the executive. `Public duties` must be interpreted as equivalent to duties imposed by the legislature, rather than as duties performed in obedience to the executive. In the instant case, the matters complained of arose from the performance of duties entrusted to the officers by the executive. Hence, the government should be held liable.

The senior state counsel, relying on s 7, submitted that when planning officers give a written permission and furnish replies to legal requisitions, they do so in the exercise of public duties within the meaning of s 7. He said that not every act done by the planning authority would be in the exercise of a public duty. Thus, if a planning officer gives information which he is not obliged to give, s 7 would not apply. State counsel further submitted that the use of the introductory words in s 7 (`Notwithstanding any other provisions of this Act to the contrary`) suggests that it is s 7 that takes precedence over s 5, since s 5 is prefaced by the words `Subject to the provisions of this Act.`

Learned...