Liang and Sons Holdings (S) Pte Ltd v Chan Ah Beng

• Court: High Court (Singapore)
• Judge: Lai Siu Chiu J
• Judgment Date: 31 October 2011
• Neutral Citation: [2011] SGHC 236
• Citation: [2011] SGHC 236
• Docket Number: Originating Summons No 251 of 2011
• Hearing Date: 27 June 2011,24 May 2011,03 May 2011
• Plaintiff Counsel: Tan Hee Liang (Tan See Swan & Co)
• Defendant Counsel: Defendant in Person.
• Subject Matter: Contract,Breach,Remedies,Damages
• Published date: 01 November 2011

Lai Siu Chiu J:

Liang and Sons Holdings (S) Pte Ltd (“the plaintiff”) filed the above Originating Summons No 251 of 2011 (“the OS”) claiming inter alia the following reliefs against Chan Ah Beng (“the defendant”): (a) specific performance by the defendant of the option to purchase dated 26 July 2010 (“the Option”) for the sale and purchase of premises known as Apartment Block 201C, Tampines Street 21 #01-16, Singapore 523201 (“the Property”) within 14 days of the order of court; (b) the defendant be ordered to complete the sale of the Property to the plaintiff within 14 days upon receipt of the approval from the Housing and Development Board (“the HDB”) for the resale/transfer; (c) in the event the defendant failed or neglected or refused to convey the Property, the Registrar of the Supreme Court be appointed to sign the instrument of Transfer and all necessary conveyancing documents in place of the defendant; (d) the defendant to pay the plaintiff interest for late completion at 10% per annum pursuant to clause 8 of The Singapore Law Society’s Conditions of Sale 1999 (“the Conditions of Sale”) commencing from 18 November 2010 until the actual date of completion; (e) damages in consequence of the defendant’s wilful delay and/or default; and (f) costs.

After three hearings, I granted an order in terms of the plaintiff’s application. The defendant is dissatisfied with my decision and has filed a notice of appeal (in Civil Appeal No. 88 of 2011) against my following orders: to pay interest to the plaintiff for late completion at 10% per annum commencing from 18 November 2010; to pay damages to the plaintiff by an account of rental at $8,000 per month or $266.66 per day commencing from 18 November 2010 to the date of actual completion; and costs to the plaintiff fixed at $6,000 excluding reasonable disbursements which shall be reimbursed to the plaintiff by the defendant. I shall now set out the reasons for my decision.

I should point out that the facts set out hereunder were extracted from the three affidavits filed by the plaintiff’s director Chuang Mui Yau (“Chuang”) as the defendant did not file any affidavits. The defendant appointed solicitors Kertar & Co (“KC”) on 29 April 2011 (who had acted for him in separate subordinate courts proceedings (at [12]-[13] below) but chose to act in person on and after 17 June 2011 in these proceedings.

The facts

The defendantwas the owner of the (commercial) Property which he occupied and used for his business of selling market produce.

On 26 July 2010, the defendant granted the plaintiff the Option to buy the Property at $1.2m in exchange for an option fee of $12,000 paid by the plaintiff. Under cl 8 of the Option, completion of the sale and purchase would take place: (i) within fourteen (14) weeks from the date of exercise of the Option; or (ii) within fourteen (14) days upon receipt of the HDB’s approval or; (iii) in the event that provisional approval is granted by the HDB, within fourteen (14) days upon receipt of the HDB’s letter confirming that all unauthorised works in the Property has been rectified by the [defendant]; whichever date is later

Clause 6 of the Option stated:

The sale is subject to the [plaintiff] giving the [defendant] a tenancy term of one (1) year only for a monthly rental of $8,000.00 with effect from the date immediately after the contractual date of completion.

while cl 9 stated:

The [defendant] and the [plaintiff] shall use their best endeavours to obtain the HDB’s approval to the sale and purchase herein and the [defendant] shall proceed with the submission of the HDB application form to the HDB within fourteen (14) days from the date of exercise of the Option. The administration fee amounting to S$535.00 payable to the HDB shall be borne by the [defendant].

And cl 10 states: 10.1 The sale and purchase of the Property shall be subject to: (i) the written approval from the HDB and such terms and conditions as the HDB may impose from time to time at its absolute discretion; (ii) … 10.2 In the event that any of the aforesaid conditions are not fulfilled and/or breached, the [plaintiff] shall be at liberty to rescind and cancel this Agreement (but without any obligation on the [plaintiff’s] part to do so) by giving the [defendant’s] solicitors written notice in that behalf and upon such notice being given, this Agreement shall be declared null and void… 10.3 Without prejudice to any of the aforesaid conditions, in the event that the HDB does not grant written approval to the sale and purchase herein due to circumstances beyond the control of either parties and the parties herein having done all that is necessary for the HDB’s approval, the Agreement shall forthwith be treated as null and void and the Deposit paid herein shall forthwith be refunded to the [plaintiff] without any interest compensation or deduction whatsoever and neither party shall have any claim or demand against the other whether for costs damages compensation or otherwise.

The plaintiff duly exercised the Option on 12 August 2010 by paying the (balance) 4% of the deposit amounting to $48,000 to the defendant’s solicitors acting in the conveyance J S Yeh & Co (“JSY”). It was the plaintiff’s case (with which the defendant disagreed) that under cl 8(i) of the Option, completion was to take place on 18 November 2010, being fourteen weeks from the date of exercise of the Option.

The Option incorporated the Conditions of Sale which Condition 8 states: 8. Late Completion Interest 8.1 Interest Payable by Purchaser

If –

(a) …

(b) …

…

8.2 Interest Payable by Vendor 8.2.1 If – (a) the sale is not completed on or before the date fixed for completion; and (b) the delay in completion is due solely to the default of the Vendor,

he must pay interest (as liquidated damages) commencing on the day following the date fixed for completion up to and including the day of actual completion. Interest will be calculated on the purchase price of 10% per annum.

8.2.2 If the Vendor has delivered vacant possession of the property before the date of actual completion, then the interest payable to the Purchaser will be reduced by a sum equivalent to a rent calculated on the annual value of the property fixed under the Property Tax Act (Cap. 254). 8.3 No Interest Payable

No interest (as liquidated damages) will be payable if the delay in completion is due to some cause other than the default of the Vendor or the Purchaser or to the default of both the Vendor and the Purchaser.

Completion did not take place as scheduled as the plaintiff discovered that the defendant was in breach of the conditions of his lease with the HDB as which result, the HDB refused to approve the sale.

On 6 September 2010, the plaintiff’s solicitors submitted the application for resale/transfer of the Property to the HDB. The HDB inspected the Property on or about 15 September 2010 after which it wrote to both the plaintiff’s solicitors and JSY on 9 November 2010 to advise it had discovered the following irregularities during the inspection: there had been unauthorised renovation in relation to the installation of a cold room; brackets had been installed at the shop front; and there was excessive display/storage of merchandise at the common area at the shop front. The said letter pointed out that display of goods at the common area of the Property’s frontage required the approval of the Tampines Town Council (“the Town Council”). The HDB disclosed that the Town Council had a pending court case against the defendant. Under the HDB’s terms and conditions for resale/transfer of commercial properties, neither the transferor nor the transferee should have any outstanding judgments or court cases against them. As such, the HDB advised...