Lee Christina v Lee Eunice and another (executors of the estate of Lee Teck Soon)

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 03 August 1993
• Neutral Citation: [1993] SGCA 56
• Date: 03 August 1993
• Subject Matter: Contract,Particular causes of action,Limitation of Actions,Subsequent attempt by same party to sue for specific performance,Equity,Whether delay in completion a breach of contract,s 4 UK Statute of Frauds 1677,Express terms,Whether note to solicitor sufficient evidence,Whether note contained requisite terms of the contract,Evidence of contract of sale,Letter containing notice making time of the essence,Delay in completion of contract,Whether omission of date for completion fatal,Land,Whether contract terminated by purchaser in subsequent letter,Completion,Whether completion within reasonable time an implied term,Sale of land,Non-compliance within notice period,Rescission by party of contract for sale of property,Contractual terms,Whether claim in contract or trust,Specific performance,Whether claim time-barred,Whether notice period reasonable,Remedies,Specific performance granted only where just and equitable
• Docket Number: Civil Appeal No 25 of 1992
• Published date: 19 September 2003
• Defendant Counsel: Robert Walker QC, P Selvadurai and Lok Vi Meng (Rodyk & Davidson)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Robert Reid QC and Harry Wee (Braddell Brothers)

Cur Adv Vult

This appeal is from the decision of the learned judicial commissioner MPH Rubin who dismissed the claim by the appellant in the court below for specific performance of a contract for the sale and purchase of the property known as No 21 Fifth Avenue, Singapore (`the property`).

The facts giving rise to these proceedings are as follows. On or about 25 November 1972 the appellant`s mother Mrs Lily Lee nee Chan Teck Soon (`Mrs Lee`) orally agreed to sell to the appellant, who is also known as Christina Balsara, the property for $250,000. At that time the appellant was in occupation of the property as a tenant. Pursuant to the oral agreement, the appellant paid to her mother by way of a cheque the sum of $25,000 as a deposit.

On or about 24 July 1973 Mrs Lee sent a handwritten note to her lawyer Mr TW Ong of the law firm of Laycock & Ong. The note was signed but undated. So far as is material the note read:

To: TW Ong Esq.

Dear Sir

I shall be glad if you will act for me in the sale of my house No 21 Fifth Avenue, Bukit Timah Rd subject to existing tenancy to Mrs Christina Loke [the appellant] for the sum of $250,000 of which I have received a deposit of $25,000.

Yours faithfully

Sgd:

...

The appellant at this point of time was represented by the law firm of Braddell Brothers.

The title deeds relating to the property were then held by the Oversea-Chinese Banking Corporation Ltd (`OCBC`) as additional security for the overdraft facilities granted by OCBC to the firm of Lee & Fletcher. In respect of these facilities, Mrs Lee had executed a guarantee for $150,000. The appellant`s father, Mr Lee Chong Miow (`CM Lee`) was a partner of Lee & Fletcher. Accordingly Laycock & Ong acting for Mrs Lee wrote on 6 September 1973 to OCBC for the title deeds to enable them to proceed. Before the title deeds could be released, Mrs Lee passed away on 9 October 1973.

The executors of Mrs Lee`s estate were the respondents who are the eldest sister and brother-in-law respectively of the appellant. The second respondent is a partner in the law firm of Wee Swee Teow & Co, solicitors for the estate of Mrs Lee. He was also the solicitor in charge of this matter. The appellant`s other siblings are a brother, Martin, another elder sister, Regina, who is the wife of the second respondent, and a younger sister, Bernice. The appellant, who was twice married before, is now married to one Dadi Balsara. Because of this marriage the appellant is estranged from her siblings. The appellant then instructed Laycock & Ong (the same firm which had previously acted for Mrs Lee) to act for her in the purchase of the property in place of Braddell Brothers. Protracted and rather acrimonious correspondence thereafter ensued between Laycock & Ong and Wee Swee Teow & Co on the sale of the property with Laycock & Ong continually pressing for completion. On 23 August 1974 Laycock & Ong wrote to Wee Swee Teow & Co, the letter ending with the following:

Our client is most anxious that the sale of No 21 Fifth Avenue should be completed with the minimum delay and to request you to do all that you can to expedite matters. Please let us know what is now the position.

On 26 August 1974 Wee Swee Teow & Co replied:

...

You will appreciate that there can be no completion yet, until probate [of Mrs Lee`s will] has been extracted.

On 2 January 1975 Laycock & Ong wrote again:

...

We would like to draw your attention to the fact that our client had paid the sum of $25,000 to your client direct sometime ago but to date the completion of our client`s purchase of the above property had not taken place. Furthermore, our client has been made to pay a monthly rental of $440 in respect of the above premises. When our client agreed to pay the monthly rental of $440 to your client it was on the understanding that the completion of the sale and purchase herein would take place in a few months` time.

Our client would request your client to please expedite the extraction of the grant of probate and obtain the mortgagee`s consent to the proposed sale so that the sale could be completed as expeditiously as possible. ...

This provoked a sharp response from Wee Swee Teow & Co who replied on 7 January 1975 as follows:

... We believe you acted originally for Mrs Lee in the proposed sale of No 21 Fifth Avenue to your client and therefore would have instructions in regard to the terms of the proposed sale. It would appear that your client had been renting the premises from Mrs Lee for some time before your client decided to purchase the premises and therefore what is alleged in para 4 of your letter that your client agreed to pay the monthly rental of $440 on the undertaking (sic) that completion of the sale and purchase herein would take place in a few months` time is incorrect. Pending completion and subject to the mortgagees` claim and the proposed sale being also subject to tenancy, your client must pay the monthly rent until completion. If Mrs Lee had not died the proposed sale might have been completed depending of course on what sum the mortgagee Oversea-Chinese Banking Corporation Ltd would require before they will agree to release the property for the proposed sale.

As your client knows the estate is tied up with the estate of CM Lee deceased of which your client is co-administratrix. Mr CM Lee died in 1969 and letters of administration to his estate have not been extracted yet. In fact there are quite a few questions by the Commissioner of Estate Duties which have not been attended to by your client as such co-administratrix. Until the probate matters in the estate of CM Lee are completed we fear probate of the will of Mrs Lee cannot be extracted.

Then followed further exchange of acrimonious correspondence until 3 May 1976 when Laycock & Ong wrote to Wee Swee Teow & Co:

... We are further instructed to state that as the negotiation for the purchase of the property started about three years ago, our client is not prepared to await indefinitely for the completion of the sale and purchase herein and therefore our further instructions are to request for early completion.

Notice is hereby given for and on behalf of our client that your clients are required to complete the sale and purchase herein within ten days of the date hereof and that time is the essence of the contract and that in the event of failure to complete on the part of your clients within the said period our client shall be at liberty to treat the contract for the sale and purchase herein as null and void. ...

There was no reply from Wee Swee Teow & Co. According to the second respondent, he did not reply because of the conditions imposed by OCBC for the release of the property which were payment of $150,000 to the bank, written consent of the legal personal representatives of the estate of CM Lee and production of the grant of letters of administration to the estate of CM Lee. These conditions could not be met because estate duty payable on the estate of CM Lee could not be finalized.

Receiving no reply, Laycock & Ong on 14 June 1976 wrote to Wee Swee Teow & Co as follows:

We are instructed to refer to our letter to you of 3 May 1976.

As you have up to this date failed to give any reply thereto, our client considers that reasonable notice has been given herein and therefore instructs us to notify you that she has treated the sale herein as abortive and the contract thereof is deemed as null and void.

Our further instructions are to request for the refund of the sum of $25,000 forthwith, failing which interest shall be payable thereon at the rate of 8% pa until repayment has been made.

Again there was no reply from Wee Swee Teow & Co. Then on 27 May 1977, the appellant herself wrote to Wee Swee Teow & Co:

... Please note that the estate of Mrs CM Lee owes me $25,000 plus interest. I notice that this sum was not sent to the Commissioner of Estate Duties and therefore not computed in her estate duty which you sent to me on 9 February 1977.

Please therefore, correct the records at your end and see that this computation is included in the list and send a fresh copy to me which includes the amount of $25,000 plus interest thereon.

On 14 August 1979, Wee Swee Teow & Co wrote to the Commissioner of Estate Duties as follows:

... We also wish to inform you (we apologize for not bring up (sic) this matter earlier) that one of the beneficiaries, Mrs Christina Balsara who originally agreed to purchase house No 21 Fifth Avenue, Singapore for $250,000 and paid $25,000 (10% deposit) has decided not to purchase the said house and has asked for the refund of the said deposit of $25,000 which is therefore a debt from the estate to her and should be deducted from the assets of the estate.

Enclosed is a copy of her solicitors` letter dated 14 June 1976 which is self explanatory.

On 28 August 1979 Wee Swee Teow & Co followed up with a further letter to the Commissioner of Estate Duties which read:

We confirm the writer`s telephone conversation with Mr G Raman this morning.

Our clients requested you please amend your notice of assessment in view of the amended assessment dated 12 January 1979 issued in the estate of CM Lee deceased, your reference ED 71/1375.

Please also refer to our letter of the 14th August 1979 in which we state that one of the beneficiaries, Mrs Christina Balsara, who originally in the life time of the abovenamed Mrs Lee Teck Soon agreed to buy house No 21 Fifth Avenue for $250,000 later changed her mind and decided not to purchase the said house and demanded the refund of the 10% deposit amounting to $25,000 as per her solicitors` letter dated 14 June 1976.

On 5 September 1979 the Commissioner of Estate Duties replied to Wee Swee Teow & Co as follows:

Thank you for your letters dated 14 August 1979 and 28 August 1979 and the enclosure in the first letter [ie the letter of 14

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