Joseph Mathew and Another v Singh Chiranjeev and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 29 October 2009
• Neutral Citation: [2009] SGCA 51
• Docket Number: Civil Appeal No 200 of 2008
• Date: 29 October 2009
• Published date: 02 November 2009
• Year: 2009
• Plaintiff Counsel: Leslie Netto (Netto & Magin LLC)
• Citation: [2009] SGCA 51
• Defendant Counsel: Boo Moh Cheh and Arthur Edwin Lim (Kurup & Boo)
• Court: Court of Appeal (Singapore)
• Subject Matter: Land,Electronic Transactions Act,Contract,Sale of land,Formation

29 October 2009

Andrew Phang Boon Leong JA (delivering grounds of decision of the court):

The factual background

1 The present appeal raises, in a relatively straightforward factual matrix, a number of general (albeit significant) issues − in particular, issues relating to a contract to grant an option for the purchase of real property as well as issues concerning the statutory formalities that have to be satisfied before such a contract is legally enforceable (assuming that such a contract exists in the first instance).

2 Turning to the relevant factual matrix, the first appellant, Joseph Mathew, is married to the second appellant, Mercy Joseph (collectively, “the appellants”). The appellants are the joint owners of a property known as 26 Upper Serangoon View, #04-32, Rio Vista, Singapore 534206 (“the Property”). The first respondent, Singh Chiranjeev, is married to the second respondent, Gulati Jasmine Kaur (collectively, “the respondents”). The respondents were the intending purchasers of the Property. The negotiations between the appellants and respondents for the sale of the Property were conducted orally as well as via e-mails through Helene Ong Geok Tin (“Helene”), a property agent working as an associate of Dennis Wee Properties Pte Ltd (“Dennis Wee Properties”).

3 It should be noted, at this juncture, that Helene as well as Dennis Wee Properties were, respectively, the third and fourth defendants in the court below. The respondents had originally brought the action only against the appellants for both specific performance as well as damages with regard to the sale and purchase of the Property. However, because the first and second appellants alleged in their defence that Helene had no authority to conclude any agreement to sell the Property, the respondents joined both Helene and Dennis Wee Properties as the third and fourth defendants, respectively, in the suit. The respondents’ claim against the third and fourth defendants was based on negligent misrepresentation and was also a claim that was alternative to that against the appellants. However, after evidence was led in the court below, no submissions were made vis-à-vis this alternative claim. We pause to observe that we find it odd that the respondents had not mounted its alternative claim against the third defendant for breach of warranty of authority either in addition to or as an alternative to the claim in negligent misrepresentation. In the circumstances, however, nothing turns on this. Indeed, we are concerned here only with the appeal by the appellants, although we will return briefly to the third and fourth defendants at the end of this judgment in relation to the issue of costs.

4 Returning to the salient facts for the purposes of the present appeal, on 6 May 2007, Helene showed the Property to the respondents. Helene asked the first respondent for a cheque for $5,000, being 1% of $500,000 as a deposit. She told the first respondent that she would inform the first appellant of his offer and if the first appellant agreed to his offer to purchase the Property at $500,000, she would give the cheque to the first appellant. The first appellant refused to accept the offer and this was communicated to the respondents on 7 May 2007. Between 7 May 2007 and 10 May 2007, the first respondent negotiated the selling price of the Property with Helene over the telephone. On 11 May 2007, the respondents viewed the Property for the second time and they made a renewed offer of $506,000 for the Property. Helene collected a cheque for $5,060 (1% of the offered purchase price of the Property) from the respondents dated 6 May 2007 and returned them their earlier cheque for $5,000. The parties did not dispute that the cheque for $5,060 was advance payment in consideration for the grant of the option. Helene wrote the following words on the back of the cheque for $5,060:

1% Deposit Sale of 26 Upper Serangoon View #04-32 RIO VISTA (S) 534206

5 We now proceed to set out the important e-mail correspondence between the parties; in this regard, there are four key e-mails. The first key e-mail is dated 12 May 2007 from Helene to the first appellant which was sent after Helene had shown the respondents the Property for the second time on 11 May 2007 (“the First E-mail”). It read as follows:^{[note: 1]}

Dear Mr Joseph

Buyer Mr & Mrs Chiranjeev Singh viewed the apt late this evening again. Similarly buyers also must have confidence that they did buy the right property and at a fair right price. I did my best to convince them about your asking price with the fact that they have been increasing their offer since last 5 days. I told them about your asking price and they finally offered 506K which you did mention that you will accept. I went back to collect the 1% deposit from them I.e. for the sale price of $506K.

Option To Purchase (OTP) will be prepared upon their agreement and also yours. It will be as follow [sic] and pls confirm.

* 1% deposit of $5060.00 received (Option money).

* 3 wks to exercise Option I.e. from 14/5 to 4/6/07. Next 9% will be paid to your Lawyer by 4/6/07.

* Completion date is 10 weeks after i.e. 13 August 2007.

Do you have a Solicitor (lawyer) you are using or I can recommend. I need to fill up in the Option. Pls provide me.

Buyers want to have vacant possession i.e. Tenant has to leave upon completion. Base [sic] on the dates as mentioned above, it will be just in time of 12 weeks notice for tenant to leave. Total is 13 weeks upon completion of sale.

So, pls write a note to Tenant immediately to give them the 12 weeks notice wef 14 May 2007 or latest by 21 May 2007 (date of notice). Pls do not delay cos that is your agreement with the Tenant. Completion date is sensitive.

Please address notice to Tenant Mr IKENNA IGWE. I can also plan this notice/letter for you but still need your signature.

I will courier the OPTION to you but need the address immediately. Will do it by Monday, no delay. Or you want to fly in Mon or Tues to settle all the signing. I can help you arrange a lawyer also. Pls advise.

As agreed and with the fact that I have put in my utmost effort to convince the Buyers to increase their offers. I am charging a 1% service fee of the sale price with GST.

Thank you.

You can call me to clarify and confirm all text as written herewith.

Regards

Helene …

6 The second key e-mail is Helene’s e-mail to the first appellant on the same day dated 12 May 2007, which referred to a telephone conversation she had with the first appellant after she sent the First E-mail. It reads as follows:^{[note: 2]}

Hi Mr Joseph

Follow up to my telephone call, I hope you are clear of my 1st email. So pls let me know all the info required, date as stated agreeable to coincide the 3 + 10 wks, lawyer’s address, contact No. and the lawyer’s name to fill into the OPTION.

The 1% deposit of S$5060.00 (cheque) is in your name. I will send it to you together with the OPTION via courier.

I can help you write the notice to Mr Igwe (Hart) re the notice of tenancy. But will courier together with all papers and you need to sign and return this fast. So the notice is 12 weeks as agreed in your tenancy with him.

Pls email address for my courier. This will take up 3 to 4 days if no delay on your side thus EXERCISE OPTION date will be affected if delay. I will do it early on Monday as I have to book the courier service. They will then pick it up by Noon.

Regards

Helene

7 The third key e-mail is the first appellant’s e-mail on 13 May 2007 to Helene in response to her earlier e-mails (“the Third E-mail”), and it reads as follows:^{[note: 3]}

Dear Helene,

Understand that at this growing market, the property price is going up including rental market. However I am taking a decision to proceed to sell the property at this price of S$506K which is reasonably OK as my minimum expectation was S$510K which we couldn’t achieve.

After deducting agent fee and lawyer fee at least I should get minimum of S$500K. I had taken loan of S$250K and also paying heavy interest for the last one year (not much gain), also very less rental of S$1500 which is also not attractive. As discussed through phone I can only agree for an agent fee of S$4000 + tax which is reasonable. Also I can give more business for you through various contacts. Pleas [sic] raise the invoice accordingly.

· You can also deposit the cheque to my account POSB-026-XXXXX-X

· Pls send me the draft letter for Mr. Igwe so that I can sign the letter with effect from 14 May 07.

· My address as follows

Joseph Mathew

Keppel FELS Offshore,

Unit No. 3, 8^th floor, Prism Tower A,

Mindspace, Malad West,

Mumbai – 400062

India.

· Also appreciate your follow up to find a suitable flat which can demand higher rental value (ex. Summerdale etc) or Any new EC coming up /any good deal.

Thanks for your understanding and support.

Best Regards

Joseph Mathew

[emphasis added; underlining in original]

8 The fourth key e-mail is Helene’s reply to the first appellant on the same day in the following manner (“the Fourth E-mail”):^{[note: 4]}

Hi Mr Joseph

Yes I agree with the growing market but different sector with different growing percentage. I do not need to refresh my explanation again. I think it is a genuine offer especially your unit with original condition – no renovation and other factors which I did mention).

Aiya – it’s always the poor hard working [sic] agent who has to bear and share the story and compensate by lossing [sic] their service fee. What can I say.

Okay $4000+GST. But other fee of courier, etc, I have to bill to you accordingly, thank you.

Okay will deposit your 1% Buyer’s deposit into your POSB account.

Will courier OPTION and any other papers to you on Monday. Would appreciate you sign immediately and courier back to me to my home address. My address :-

…

What about the lawyer. If you have your own lawyer just email back, I will fill it up.

Otherwise I will have a lawyer to help you out and they will contact you once...