District Judge Liu Zeming:
This is a seemingly straight-forward application for an order for vacant possession and double rent. It is undisputed that the Defendant-tenant defaulted in payment of rent, the lease reserved to the Claimant-landlord a right to forfeit in such event and the Claimant purports to have exercised this right. The main contention between the parties was whether the Claimant waived his right to forfeit by accepting monies from the Defendant after the purported termination of the lease.
However, there is a more fundamental issue: has the Claimant properly exercised his right to forfeit the lease? The Claimant appears to be under the impression that because he has a contractual right to forfeit, he could exercise it in any manner he wished. This is not correct. There are common law rules governing how the right to forfeit must be exercised. These common law rules may be archaic or inconvenient (or both), but they must be complied with.
Parties were given the opportunity to address this and a number of other issues at the hearing before me. Having heard them, I dismiss this Originating Application. These are my reasons.
Background Facts
The following facts are not in dispute between the parties. The Claimant is the owner of 33 Miltonia Close, #XXX Skies Miltonia, Singapore 768064 (the “Premises”). By way of a tenancy agreement dated 4 January 2022 (the “Tenancy Agreement”), the Claimant agreed to lease the Premises to the Defendant for 12 months commencing 4 January 2022 (ending on 3 January 2023), with a monthly rent of $3,000 (the “Monthly Rent”). Specifically: Clause 1 of the Tenancy Agreement states that the Monthly Rent is payable “in advance without deduction whatsoever” on the 4th day of each month. Clause 4(a) of the Tenancy Agreement reserved to the Claimant the right of re-entry “[i]f the rent…shall not be paid for seven (7) days after its due date” (the “Termination Clause”). The Defendant paid the Monthly Rent for January, February and March 2022, albeit late. The Monthly Rent for the period from 4 April 2022 to 3 May 2022 (the “April Rent”) was due on 4 April 2022 but the Defendant did not make payment on 4 April 2022. By 13 April 2022, the April Rent was still outstanding. On 13 April 2022, the Claimant’s lawyer issued a written notice to the Defendant (the “Purported Termination Notice”) by which the Claimant purportedly exercised his right to terminate the Tenancy Agreement under the Termination Clause. The Purported Termination Notice states that the Defendant was to move out of the Premises by 28 April 2022 (the “Move Out Date”). On 25 April 2022, the Defendant’s cousin, one Dharma Eng (“Dharma”), proposed (on behalf of the Defendant) to pay to the Claimant the sum of $6,300 on condition that the termination of the Tenancy Agreement be rescinded (the “Proposal”). This sum of $6,300 comprises the Monthly Rent for the period 4 April 2022 to 3 June 2022 (i.e. $3,000 x 2) and the Claimant’s legal fees of $300. The Proposal was communicated to the Claimant’s property agent, one Serene Ting (“Serene”) on 25 April 2022. Serene informed Dharma that she would “talk to landlord hopefully [the landlord] accept your proposal”. On 26 April 2022, Serene sent Dharma the Claimant’s bank account details. Dharma then paid $3,300 on 27 April 2022 and another $3,000 on 28 April 2022. On 29 April 2022, the Claimant’s lawyer issued a second letter to the Defendant (the “29 April Letter”) stating that the Claimant “has not rescinded the termination of the Tenancy Agreement” but agreed to extend the Move Out Date to 28 May 2022, with the option to further extend the Move Out Date to 28 June 2022 by payment of another $3,000 on or before 28 May 2022. The pertinent parts of the 29 April Letter are reproduced below:
While our client has not rescinded the termination of the Tenancy Agreement, our client grants you an extension of time to move out of the Premises to 28 May 2022. Our client will also waive the right to claim double rent but only if you move out by 28 May 2022.
Our client will grant you the right to extend the move out date to 28 June 2022 on condition that the sum of $3,000 is paid directly to our client on or before 28 May 2022.
The 29 April Letter was forwarded by Serene to Dharma on the same day (i.e. on 29 April 2022) with the WhatsApp message “Hi Dylan [referring to Dharma], landlord had extended the lease till 28 May, a registered letter from lawyer had sent to Brendon [referring to the Defendant], pls follow up with him”. There was no reply from Dharma to this message.
On 18 May 2022, Serene sent another WhatsApp message to Dharma stating: “Morning Dylan [referring to Dharma], remember to make payment before 28/5 to extend the stay to 28 June”. There was no response from Dharma until two days later on 20 May 2022, when Dharma asked Serene “have you texted brendon [referring to the Defendant] this also?”. Serene confirmed that she did not and Dharma replied that he will “forward to [the Defendant] and keep [Serene] updated”.
There was no update from Dharma to Serene and on 25 May 2022 Serene sent Dharma another “reminder to make payment before 28 May to extend the stay to 28 June”. There was no reply from Dharma to this.
On 27 May 2022, Serene sent yet another message to Dharma, indicating that “if [the Defendant] got no intention to extend the stay till 28/6 landlord will go n take over the unit on 29 May 11am [sic]”. Dharma replied to this message to say that he will get back to Serene.
On 29 May 2022, Serene informed Dharma that she made a mistake and that the Claimant intended to do a “handover inspection” on 29 May 2022, and not to “take over” the Premises as indicated in Serene’s message of 27 May 2022. There was no response from Dharma until the morning of 31 May 2022 when Dharma said he will give Serene a call later that day.
On 31 May 2022, the Claimant’s lawyer issued another letter to the Defendant (the “31 May Letter”). In the 31 May Letter, the Claimant repeated that the Termination Notice was “not rescinded” but the Move Out Date was extended to 28 May 2022. Since the Defendant did not pay a further sum of $3,000 to extend the Move Out Date to 28 June 2022, the Claimant purported to “exercise his right under the Termination Clause to terminate the tenancy”, and requests that the Defendant “move out of the Premises immediately”. The Defendant did not respond to the 31 May Letter.
As at 9 September 2022 when this Originating Application was heard, the Defendant has not moved out of the Premises. Neither has he made any further payment to the Claimant.
Much of the factual background leading up to this application was documented and (perhaps therefore) not disputed. There is however a factual issue in dispute. This pertained to whether the Claimant agreed to the Proposal.
The Defendant’s position is that on 25 April 2022, Serene called Dharma and orally confirmed to Dharma that the Claimant agreed to the Proposal (i.e. to rescind the Purported Termination Notice). It was on this basis that Dharma subsequently made the payment of $6,300 on 27 and 28 April 2022. On the Claimant’s part, he denies ever having given such consent or having communicated such consent to Serene.
For reasons which I will explain, this factual dispute is ultimately immaterial to my decision.
Clarifications on Orders Sought by the Claimant
The Claimant initially sought the following orders in this Originating Application: an order for possession of the Premises; double rent of $6,000 per month from 2 June 2022 to the date vacant possession is delivered; contractual interest at 10% p.a. “on the rent unpaid”; costs; and “an assessment of damages on the sums due from the Defendant to the Claimant”.
At the hearing before me on 9 September 2022, I sought clarification from the Claimant’s counsel (“Mr Hanam”) on the Claimant’s claim for contractual interest and an order for “an assessment of damages”. In particular, I asked Mr Hanam to clarify: in respect of the claim for 10% contractual interest, what is the amount of “rent unpaid” on which interest is to accrue, and over what period of time; and in respect of the claim for an order for “an assessment of damages”, whether it is appropriate for such an order to be given on an originating application and if so, what are the breaches in respect of which damages are to be assessed?
On the first question, Mr Hanam initially submitted that the 10% contractual interest is to be calculated on the amount of $3,000 for the period starting from 28 May 2022 to the date of the filing of this Originating Application (i.e. 16 June 2022). Given this submission, I sought Mr Hanam’s confirmation that it is the Claimant’s position that as at 28 May 2022, there was “rent unpaid” of $3,000. I consider this a necessary and logical corollary to the position taken by Mr Hanam.
Upon the further confirmation being sought, Mr Hanam indicated to me that the Claimant would withdraw the claim for 10% contractual interest in this Originating Application. Accordingly, I need not consider this issue.
On the second question, Mr Hanam initially stated that the damages to be assessed were “rent and double rent and that is outstanding until payment or possession”. An assessment of these damages is necessary because the Claimant does not know when payment would be made and/or when vacant possession would be delivered.
I do not understand this explanation since the Claimant sought a separate order for payment of double rent in the sum of $6,000 per month from 2 June 2022 to the date vacant possession is delivered. The claim for double rent is clearly quantifiable (even though the aggregate may not yet be known) and I could not see what needed to be “assessed”.
Mr Hanam then clarified that at the time of filing of the...
