Kau Nia Enterprise (Pte) Ltd v Teck Wah Corp (Pte) Ltd

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 24 July 1981
• Neutral Citation: [1981] SGHC 14
• Date: 24 July 1981
• Subject Matter: Option not exercised in mode prescribed,Waiver of terms,Land,Binding contract,Contract,Option to purchase,Remedies,Sale of land,Acceptance of altered mode,Specific performance
• Docket Number: Suit No 1332 of 1981
• Published date: 19 September 2003
• Defendant Counsel: Tan Geok Ser (Chung & Co)
• Court: High Court (Singapore)
• Plaintiff Counsel: Ng Liang Pho (Ng Liang Poh & Co)

This is an appeal by the defendants from an order of the learned registrar made on 12 May 1981 in which specific performance was ordered under the provision of RSC O 81, r 3 and in which the purchase price for the property was abated by $144,000.

After hearing the appeal, I dismissed it with costs and ordered that completion of the sale and purchase shall take place not later than 21 July 1981. But I set aside the registrar`s order of abatement in the sum of $144,000 and, in lieu thereof, I ordered that an inquiry on the amount of the abatement shall be conducted by the registrar after the encroachments on the property were cleared by the plaintiffs and if the encroachments were not cleared by the defendant on completion of the sale and purchase.

I also refused the defendants` application for a stay of execution. It had no merits. The matter of completion has been delayed long enough. The plaintiffs also had to commence the development of the eight-storey factory to avert the second lapsing of the written planning permission which was issued by the competent authority and re-validated up to 18 October 1982.

Order 81, r 3 of the Rules of Supreme Court provides:

Unless on the hearing of an application under r 1 either the court dismisses the application or the defendant satisfies the court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the court may give judgment for the plaintiff in the action.

Although a court is given the discretion to order specific performance, it must be borne in mind that the proceedings are summary in nature with the consequence that once the order is made it is final, subject to the usual appeals, and the matter does not go formally to trial. The scope of O 81 r 1 is such that it usually involves substantial rights of parties which may have arisen under agreements (whether in writing or not) for dealings in `any property` or in respect of the rescission of such agreements. In that context, r 1 also covers the forfeiture or return of any deposit made under those agreements.

Seeing the summary nature of the proceedings and the subject matter within the scope of O 81, it seems to me that an order should be made only if the learned Registrar thinks it is a plain case and ought not therefore be tried: see Bigg v Boyd [1971] 1 WLR 913) per Russell LJ at 915 B, C. If it is a matter involving the construction of documents, in which a trial including oral evidence (if any) will not take the matter any further, it seems to me that the Registrar is in as good a position as a trial judge and ought to decide what is in his judgment the true construction. He is able in those circumstances to decide if there is a concluded contract, the essential terms thereof, whether these are evidenced in writing to comply with the Statute of Frauds and whether specific performance ought to be ordered.

In my view, the learned registrar was right in ordering specific performance. The defendants did not, and indeed, on the facts could not show how the decision was erroneous.

The defendants were the owners of the property known as Lot 441-2 of Mukim XXIV, Singapore (the property). The property has an area of 1067.1 square metres. It was also known as No 90, Lorong 23, Sims Avenue, Singapore. It was slightly encroached upon along the northern and southern boundaries of the property. The property was rectangular in shape. The encroachments did not stand in the way of the erection of the proposed factory on the property.

By an option in...