Ling Kai Seng and Another v Outram Realty Pte Ltd

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 23 May 1991
• Neutral Citation: [1991] SGHC 71
• Docket Number: Originating Summons No 910 of 1988
• Date: 23 May 1991
• Published date: 19 September 2003
• Year: 1991
• Plaintiff Counsel: Aw Ee Tuan (Shook Lin & Bok)
• Citation: [1991] SGHC 71
• Defendant Counsel: Susan Tay (Ong Tay & Partners)
• Court: High Court (Singapore)
• Subject Matter: Purchaser completed the purchase,Limitation of Actions,When cause of action accrued,Whether purchaser had waived their right to compensation,Anticipatory breach of sale and purchase agreement,Claim for compensation for shortfall in area of unit,Anticipatory breach,Shortfall in area of shop unit,Discharge,Whether purchaser's claim time-barred,Whether purchaser had thereby waived their right to compensation,Conveyance,Land,Contract,When time begins to run,s 6 Limitation Act (Cap 163)

The defendants were at all material times the developers of the building known as Pearls Centre, at 100, Eu Tong Sen Street, Singapore.

On 26 September 1978, the plaintiffs entered into an agreement (the sale and purchase agreement) with the defendants for the purchase from the defendants of a shop unit No G31 on the ground floor of the said building then under construction at the price of $160,000.

Clause 1 of the sale and purchase agreement reads:

The vendor shall sell and the purchaser shall purchase free from encumbrances all the residue of the leasehold estate of a term of 99 years commencing from 15 October 1969 in part of the land comprising the shop described in the First Schedule hereto (hereinafter referred to as the housing/shop unit) to be comprised in a subsidiary strata certificate of title under the provisions of the Land Titles (Strata) Act (Cap 277) being one of the strata units in the building now being erected or erected by the vendor upon the land described in the First Schedule hereto and known as Pearls Centre (hereinafter known as the building project) subject to the following conditions of sale by public auction known as `The (Revised) Singapore Conditions of Sale` as far as the same are applicable to a sale by private treaty and are not varied by or inconsistent with the special conditions herein.

The sale and purchase agreement thus incorporates The (Revised) Singapore Conditions of Sale 1948, condition 11 of which reads:

The property is believed and shall be taken to be correctly described as to quantity and otherwise and is sold subject to all chief, quit and other rents and outgoings and to all incidents of tenure, rights of way, and other rights and easements (if any) affecting the same and if any error, misstatement or omission (not of a serious or vital nature nor considerably affecting the value of the property) shall be discovered in the particulars special conditions or contract the same shall not annul the sale nor shall any compensation be allowed by or to either party in respect thereof.

The shop unit is described in the First Schedule as follows:

All that shop on the ground floor of the building known as Pearls Centre now being erected or erected on part of the land in the District of ________ in the Republic of Singapore estimated to contain a floor area of approximately 458sq ft being part of the Government Resurvey Lot 178 of TS XXII forming part of the land comprised in Grant No/Lease No ________ which said shop unit is provisionally known as Shop No G31 (formerly known as G30) Ground Floor, Singapore.

On 11 February 1981, the defendants through their solicitors, served on the plaintiffs notice to complete the purchase forwarding therewith, inter alia, the duplicate subsidiary strata certificate of title. The floor area of the unit shown in the said duplicate subsidiary strata certificate of title is 35sq m that is 376sq ft. There is therefore a shortfall of 82sq ft or 17.9% in the actual floor area as against the area stated in the First Schedule to the sale and purchase agreement.

Completion by way of the handing over of the transfer took place on 26 October 1982. The transfer instrument being 1/26969C was registered on 11 February 1983.

The proceedings herein were filed on 14 September 1988 seeking damages for breach of the sale and purchase agreement amounting to $28,645.88 or alternatively damages to be assessed by the court and interest.

In Yeo Brothers Co (Pte) Ltd v Atlas Properties (Pte) Ltd [1988] 1 MLJ 150 , Justice Lai Kew Chai held that a shortfall in the floor area of a flat by 10.77% is a substantial misdescription under condition 11 of the Singapore Law Society Conditions of Sale 1981 which condition is identical to condition 11 of The (Revised) Singapore Conditions of Sale.

In Chong Ah Kwee & Anor v Viva Realty Pte Ltd [1990] 2 MLJ 389 , Justice Chan Sek Keong held that a shortfall of 16.47% in the floor area of a flat is both of a serious nature and that it considerably affects the value of the property under condition 11 thereby entitling the purchaser to compensation by way of proportionate abatement of the purchase price.

In the light of these decisions the defendants, at the hearing before me, chose to rely only on the defence of limitation and waiver.

I shall now deal with the issue of limitation.

By cl 1 of the sale and purchase agreement read with the First Schedule, the defendants agreed to sell to the plaintiffs the unit estimated to contain a floor area of approximately 458sq ft. The unit assigned on completion contains a floor area of only 376sq ft. This constituted a breach of the sale and purchase agreement by the defendants. The issue is: when did the...