Leong Li Nar v Coudert Brothers and Another

• Jurisdiction: Singapore
• Judge: G P Selvam JC
• Judgment Date: 30 October 1991
• Neutral Citation: [1991] SGHC 159
• Court: High Court (Singapore)
• Year: 1991
• Published date: 11 June 2012
• Plaintiff Counsel: Manimaran
• Defendant Counsel: Tan Yeow Choo
• Citation: [1991] SGHC 159

Judgment:

In 1986 the Plaintiff, a Malaysian lady resident in Malaysia, let to the First Defendant a flat in Singapore. The Second Defendant as an employee of the First Defendant was the physical occupant of the flat. The letting was evidenced by a tenancy agreement in writing. It was for a period of two years expiring 22 August 1988. The rental was $4,500 per month. As required by the tenancy agreement the tenant paid a deposit of $9,000 (two months rent) as security against breach of the covenants to the Plaintiff at the commencement of the tenancy.

The Defendants' case was that the letting was extended for a further period of two years from 23 August 1988 to 22 August 1990 (the second letting). The tenant asserted that the agreement for the second letting was reduced to writing by way of a Supplement to the Tenancy Agreement even though it was not signed by the Plaintiff. The second letting asserted by the tenant included a term to the effect that the tenant must pay a deposit equal to two months' rent to the landlord on the signing of the agreement as security against breach of the covenants. It also included the following renewal clause :

"The Landlord shall on the written request of the Tenant made not less than 60 days before the expiration of the further term hereby created and if there shall not at the time of such request be any existing breach or non-observance of any of the covenants and conditions on the part of the Tenant herein contained at the expense of the Tenant grant to the Tenant a tenancy of the Premises for a second further term of 24 months from the expiration of the further term hereby created upon and subject to the same covenants, stipulations and provisos herein contained for a combined monthly rental payable equivalent to the market rate, provided that such rate shall not exceed S$6,000.00 per month, applicable to the Premises at the date one month before the commencement of such second further term".

Both the lettings were brought into being through the agency of Jonsen Housing Enterprise Co (the Agents) represented by Mr. Ricky Foo.

The Plaintiff denied the second letting and the option to renew for a further period of two years at $6,000 per month. Her stand was that there was a monthly tenancy. On that basis in March 1990 the Plaintiff purported to terminate the tenancy. The Defendant remonstrated with the Plaintiff and on 19 June 1990 served a notice to exercise the option of renewal under the renewal clause set out above.

The Plaintiff then took the alternative position that even if the second letting was in being the Defendants were not entitled to a renewal on the ground that they failed to deposit the required two months' deposit pursuant to the terms of the letting by adding the difference and for that reason were in breach of a condition precedent.

Admittedly the Defendants did not top up the two months' deposit required under the second letting. Their contention was that there was a waiver of the requirement to top up the deposit. According to the affidavit evidence of the Second Defendant he spoke to Mr. Ricky Foo on the question of the deposit and asked him "if the Plaintiff would agree that no further deposit (i.e. additional to that paid in 1986) be payable on the basis that a deposit is a payment for security for possible damages to the Premises, and the Plaintiff already had received a satisfactory amount to cover such prospective damage". He repeated the request by way of a reminder. Finally, again according to the Second Defendant, Mr. Ricky Foo told him that "he had spoken to the Plaintiff and he was authorised to tell us that she required no further deposit payment and we therefore need not pay it". The Plaintiff disputed this.

Thus the matters at issue, therefore, were :

(i) Whether there was a letting of 2 years for the period ending 22 August 1990 as claimed by the Defendants.

(ii) Whether there was a waiver of the requirement to top up the deposit amount.

On the first issue correspondence and conduct of the parties clearly proved such letting was concluded and continued and the landlord received the rent payable under the second letting. The conclusion of the second tenancy was evidenced by a fax from the Plaintiff to the agents (Mr. Ricky Foo) in the following words which were communicated to the Second Defendant :

"Please inform Mr. Hugh Gillett that the new tenancy monthly rental will be $5,300.00 and the additional deposit to be made payable to my name.

Other terms and conditions stated in the agreement remains unchanged."

This was a response to a draft supplement which the Defendants had sent to the agents stipulating that the rent would be...