Singh Chiranjeev and Another v Joseph Mathew and Others

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 28 November 2008
• Neutral Citation: [2008] SGHC 222
• Docket Number: Suit No 521 of 2007
• Date: 28 November 2008
• Published date: 02 December 2008
• Year: 2008
• Plaintiff Counsel: Boo Moh Cheh (Kurup & Boo)
• Citation: [2008] SGHC 222
• Defendant Counsel: Foo Say Tun and Brian Campos (Wee Tay & Lim),Leslie Netto (Netto & Magin LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether binding contract in existence,Contract,Formalities,Whether agent authorised to deposit cheque into seller's bank account,Whether seller bound upon accepting deposit to grant option to purchase,Whether contract part-performed,Whether writing requirement under s 6(d) Civil Law Act (Cap 43, 1999 Rev Ed) fulfilled,Formation

28 November 2008 Judgment reserved.

Andrew Ang J:

Introduction

1 The plaintiffs (Singh Chiranjeev and Gulati Jasmine Kaur) are the intending buyers of a property known as 26 Upper Serangoon View, #04-32, Rio Vista, Singapore 534206 (“the Property”). The first and second defendants (Joseph Mathew and Mercy Joseph) are the joint owners of the Property. The third defendant (Helene Ong Geok Tin) was the property agent involved in the sale and purchase of the Property and was working as an associate of the fourth defendant (Dennis Wee Properties Pte Ltd). The plaintiffs originally brought this action against only the first and second defendants for specific performance and damages in respect of an agreement for the sale and purchase of the Property made on 14 May 2007. However, the first and second defendants alleged in their defence that the property agent had no authority to conclude any agreement to sell the Property; the plaintiffs therefore joined the third and fourth defendants in this suit. The plaintiffs’ claim against the third and fourth defendants, for damages due to negligent misrepresentation, is in the alternative to their claim against the first and second defendants, and no submissions were made on this alternative claim after evidence was led.

Facts

2 The plaintiffs first viewed the Property with the third defendant on 6 May 2007 and again on 11 May 2007. On both occasions, the first plaintiff informed the third defendant, orally, that the plaintiffs had been renting another unit at the Rio Vista as their residence and intended to buy and reside in the Property. On 6 May 2007, the first plaintiff handed a cheque for $5,000 to the third defendant, and the third defendant told him that she would ask the first defendant if he was prepared to accept the plaintiffs’ offer to purchase the Property for $500,000. The first and second defendants rejected this offer and the cheque was returned to the plaintiffs. At the second viewing on 11 May 2007, the first plaintiff orally offered, through the third defendant, to buy the Property for $506,000 and issued a second cheque for $5,060 in respect of a sale price of $506,000 (“the 1% cheque”), which the third defendant had told him was acceptable.

3 On 14 May 2007, the third defendant told the first plaintiff that the first defendant had agreed to his offer of $506,000 and faxed him a draft of the Option to Purchase (“the Option”).

4 The third defendant deposited the 1% cheque into the first defendant’s bank account on 16 May 2007 and the first plaintiff’s account was correspondingly debited on 17 May 2007. On 18 May 2007, the third defendant sent the first defendant an e-mail (1AB.82), informing him as follows:

I am informing you as per your instruction regarding the 1% cheque to be deposited to your account (given by you). I have done it already.

The first plaintiff testified that on 18 May 2007 he called the third defendant to ask for the documents because he needed them to obtain a bank loan, and she told him that they would be signed and sent back immediately. At that time, the first plaintiff was not aware that the 1% cheque had already been deposited.

5 On 20 May 2007, the third defendant called the first plaintiff and informed him that there were “some unfortunate unexpected developments”, and that he would receive confirmation two or three days later. The first plaintiff, not knowing that the 1% cheque had already been deposited, was under the impression that this confirmation would be conclusive “and then they would deposit the cheque post that”. On 22 May 2007, the first defendant sent an e-mail (1AB.98) to the first plaintiff and the third defendant:

Dear Mr. Singh/Ms. Helene,

As conveyed through Ms. Helene, it is extremely difficult situation for me to make a decision now due to organizational changes in our company (expecting in two weeks time, my Director’s visit also rescheduled, refer separate mail to Helene) and I may need to come back to Singapore within 6 months time (that is still not confirmed). Further property price in Singapore is going up which makes me also difficult to buy another property for the same price.

It is also unfair to ask you to wait another two more weeks. As such, I am canceling [sic] my plan to sell the apartment.

Understand that Ms. Helene has already deposited the advance cheque to my account. Therefore, the same cheque amount (S$5060) will be handed over to Helene during my visit to Singapore on 26^th May 07.

Thanks for your understanding and sorry for the inconvenience caused if any.

6 On 23 May 2007, the third defendant sent the first plaintiff an e-mail informing him that the first defendant would return the “deposit (1%) in cheque” when he arrived in Singapore on 26 May 2007. The first plaintiff testified that when he checked his bank statement on 24 May 2007 he saw that his account had indeed been debited on 17 May 2007.

7 On 26 May 2007, the first plaintiff met the first defendant at the Rio Vista condominium by the swimming pool; the third defendant was also present. The first defendant said that he had to cancel his plan to sell the Property because he might have to come back to Singapore in the near future. The first plaintiff responded that if the first defendant was sure of coming back to Singapore, he was prepared to let the deal go, but if that was not the case then he should proceed to complete the sale of the Property. The plaintiffs refused to accept a cheque for $5,060 from the first defendant (via the third defendant). On 19 June 2007, the first defendant sent another e-mail (1AB.147) to the third defendant:

Dear Helene,

Further to my previous emails, pls ensure to inform the buyer that I am not selling the property.

As you are clear, I have neither given the exclusive agency for you nor signed the option/Agreement for sale. By mistake, you have deposited the cheque to my account before signing the agreement, I do understand that.

I will give time to the buyer to withdraw the amount until 25 June 07 failing which I will proceed with legal action follow up based on several grounds.

The present suit

8 The plaintiffs commenced this suit on 17 August 2007 and lodged a caveat against the property in February 2008. The first and second defendants are currently residing in India, the first defendant’s contract having been renewed for two years from June 2007.

9 The plaintiffs relied on four material e-mails, all with the subject “Rio Vista”, to show that there was a binding agreement to sell the Property, and specifically that the third defendant was instructed by the first defendant to deposit the 1% cheque into his bank account: first, on 12 May 2007, the third defendant wrote to the first defendant (“the first e-mail”) (1AB.58–59):

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 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 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 …

10 Second, the third defendant wrote another e-mail (“the second e-mail”) (1AB.184) to the first defendant on 12 May 2007 referring to a telephone conversation they had after the first e-mail was sent:

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

11 The first defendant replied the same day as follows (“the third e-mail”) (1AB.183–184):

Dear Helene,

Understand that at this growing market, the...