Liwen Holdings Pte Ltd v Ng Ker San and Another and Other Actions

• Jurisdiction: Singapore
• Judgment Date: 16 April 2001
• Date: 16 April 2001
• Docket Number: Originating Summons Nos 1628, 1629, 600154 of 2001
• Court: High Court (Singapore)

Liwen Holdings Pte Ltd

Plaintiff

and

Ng Ker San and another and other actions

Defendant

[2001] SGHC 74

Tay Yong Kwang JC

Originating Summons Nos 1628, 1629, 1925 of 2000 and 600154 of 2001

High Court

Land–Adverse possession–Whether disputed plot of land acquired through adverse possession by 1 March 1994–Effect of failure to lodge caveat before lapsing of caution–Whether interest of adverse possessor could be defeated by interest of bona fide purchaser under Land Titles Act (Cap 157, 1994 Rev Ed)

There were four related originating summonses concerning a plot of land, one part of which was assimilated by 1 Bedok Rise and the other by 3 Bedok Rise. The plaintiff in two summonses is a company (“the company”) which owns 7A Bedok Rise adjoining both 1 and 3 Bedok Rise. The company claimed against the owners of 1 and 3 Bedok Rise possession of the respective portion of the plot in issue together with an injunction to restrain them from remaining on the said plot, mesne profits and/or damages from the date of trespass until the delivery up of possession, interest and costs on an indemnity basis.

The next two originating summonses were the actions by the owners of 1 and 3 Bedok Rise respectively against the company for a declaration that they are the owners of the relevant portion of the plot of land in question by virtue of adverse possession. They also seek an order that the Singapore Land Registry be directed to rectify the entries in the registry to exclude the plot in question from the title of 7A Bedok Rise.

The company was the registered owner of the piece of land (“the land”) on which 7A Bedok Rise was located. The company purchased the property from another company Double L & T Pte Ltd (“L & T”) which in turn had acquired it from one Thulasi Velayutham. Pursuant to an indenture of conveyance dated 17 December 1993, Thulasi conveyed the land to L & T. L & T then applied for the parent lot to be registered under the Land Titles Act (“the LTA”). The company's case was that its title had been absolute from 17 December 1998 as no caveat was lodged before 17 December 1998 to assert any claim against the property.

The issues before the court were: (a) whether by 1 March 1994 (when acquisition of title by adverse possession was abolished), the owners of 1 and 3 Bedok Rise had acquired the disputed plot through adverse possession; (b) If so, whether such interest could be defeated by the company's interest as bona fide purchaser under the LTA and whether the title to the disputed plot had become an unqualified title on 17 December 1998.

Held:

(1) In light of documentary evidence which showed that the disputed plot was not included as part of 1 and 3 Bedok Rise, the assertions of the present owners and those of the previous owner of 3 Bedok Rise must be tested by cross-examination in court: at [23] and [24].

(2) As of 1 March 1994, there were three categories of adverse possession claims; first, for land held under the common law system if the adverse possessor did not have 12 years of adverse possession as of 1 March 1994, he would now not be able to make a claim. Where he had the requisite 12 years, he could rely on s 177 (3) Land Titles Act 1993 (Act 27 of 1993) to preserve his possessory title. Second, for registered land under the provisions of the repealed LTA, the adverse possessor could rely on ss 172 (7) and 172 (8) of the new LTA. Thirdly, for registered land held under the provisions of the new LTA, no adverse possession claims were now allowed unless s 172 (7) or 172 (8) of the new LTA applies. Here, s 177 (3) LTA would protect the existing rights of the owners of 1 and 3 Bedok Rise if adverse possession of the disputed plot had crystallised before 1 March 1994: at [33].

(3) Section 177 (3) would apply despite the owners' failure to lodge caveats before the lapsing of caution. Accordingly, the adverse possessors' rights were preserved and the company's rights had been extinguished: at [41].

Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR (R) 7; [1996] 2 SLR 726 (folld)

Chuan Hong Auto (Pte) Ltd v Shell Eastern Petroleum (Pte) Ltd [1996] 1 SLR (R) 39; [1996] 1 SLR 415 (refd)

Shell Eastern Petroleum (Pte) Ltd v Goh Chor Cheok [1999] 3 SLR (R) 236; [2000] 1 SLR 45 (refd)

Sum Keong Realty Pte Ltd v Syed Jafaralsadeg Alhadad [1996] 2 SLR (R) 356; [1996] 3 SLR 55 (folld)

Wong Kok Chin v Mah Ten Kui Joseph [1992] 1 SLR (R) 894; [1992] 2 SLR 161 (refd)

Land Titles Act (Cap 157, 1985 Rev Ed) ss 20 (2), 42

Land Titles Act 1993 (Act 27 of 1993) s 177 (3)

Land Titles Act (Cap 157, 1994 Rev Ed) ss 3 (1), 19, 20, 25, 27 (2), 45, 46 (1), 46 (3), 47 (1), 49 (2), 157 (1), 172 (7), 172 (8)

Sim Lin Piah (Toh Tan & Partners) for the plaintiff

Lee Mun Hooi and Liew Chen Chen (Lee Mun Hooi & Co) for the defendants.

Tay Yong Kwang JC

1 These are four related originating summonses heard together and they concern a plot of land, one part of which has been assimilated by 1 Bedok Rise and the other by 3 Bedok Rise. The plaintiff in OS 1628 and 1629 of 2000 is a company (“the company”) which owns 7A Bedok Rise which adjoins both 1 and 3 Bedok Rise. The company claims against the owners of 1 and 3 Bedok Rise possession of the respective portion of the plot in issue together with an injunction to restrain them from remaining on the said plot, mesne profits and/or damages from the date of trespass until the delivery up of possession, interest and costs on an indemnity basis.

2 Originating Summons 1925 of 2000 and OS 600154 of 2001 are the actions by the owners of 3 and 1 Bedok Rise respectively against the company for a declaration that they are the owners of the relevant portion of the plot of land in question by virtue of adverse possession. They also seek an order that the Singapore Land Registry be directed to rectify the entries in the registry to exclude the plot in question from the title of 7A Bedok Rise.

3 The portion of the plot occupied by 3 Bedok Rise is about 48.10 m with an estimated market value of $210,000 while the portion occupied by 1 Bedok Rise is about 80.16 m with an estimated market value of $345,000.

The company's case

4 The company is the registered owner of the piece of land described as Lot 8187W Mukim 27 Bedok (“the property”) of which 7A Bedok Rise is a part. The property's parent lot used to be known as Lot 235-25 Mukim 27 Bedok/Lot 98170L Mukim 27 Bedok.

5 The company purchased the property from another company known as Double L & T Pte Ltd which had in turn acquired it from one Thulasi Velayutham. Pursuant to an indenture of conveyance dated 17 December 1993, Thulasi conveyed the land known as Lot 235-25 Mukim 27 Bedok to Double L & T Pte Ltd. Thereafter, Double L & T Pte Ltd applied for the parent lot (comprising the property) to be registered under the Land Titles Act.

6 On 20 June 1994, Double L & T Pte Ltd obtained a qualified certificate of title of the parent lot which was subdivided into Lot 8187W (the property), Lot 8188V and Lot 8189P.

7 On 15 June 1996, the property was transferred from Double L & T Pte Ltd and registered in the name of the company. The company, which is a housing developer, then built houses on the property. The company intends to sell the house now known as 7A Bedok Rise together with its compound. The plot in dispute falls within the compound of 7A Bedok Rise but the respective portions thereof have been fenced up and assimilated by 1 and 3 Bedok Rise.

8 On 9 April 1996, the company's solicitors wrote to the owner of 1 Bedok Rise in the following terms:

Dear Sirs,

re: Lots 235-25 and 4236 Mukim 27 Bedok Close Singapore

We act for M/s Liwen Holdings Pte Ltd who are the purchasers of No. 16 Bedok Close, Singapore i.e. Lots No. 235-25 and 4236, Mukim 27, Singapore.

We are instructed that you have encroached onto the portion of our clients' aforesaid land, more particularly marked 'D' in the enclosed plan.

TAKE NOTICE that as our clients need the said land for their development they will require you to set back your fencing to its proper boundary within the next fourteen (14) days.

In any event, please let us have your written response within the next seven (7) days.

A similar letter was written to the owners of 3 Bedok Rise on the same day.

9 On 21 June 1996, the company's solicitors followed up with another letter to the respective owners which reads:

Dear Sir,

re: Lots 8187 (previously 235-25) Mukim 27 Bedok Close Singapore

We act for M/s Liwen Holdings Pte Ltd who are now the owners of the above property.

Despite our letter of 9th April 1996, you have not set back your fencing to its proper boundary.

TAKE NOTICE that if you refuse, neglect or otherwise fail to do so within the next SEVEN (7) days, we have instructions to commence proceedings against you without further reference in which event you shall be liable for costs and damages incurred.

10 On 15 July 1996, the company's solicitors wrote again to the owner of 1 Bedok Rise the following letter:

Dear Sir,

re: Lot 8187 (previously 235-25) Mukim 27 Bedok Close Singapore

We act for M/s Liwen Holdings Pte Ltd who are the owners of the above property.

We are instructed that you have encroached onto the portion of our clients' land, more particularly marked 'D' in the enclosed plan.

TAKE NOTICE that our clients require you to set back your fencing to its proper boundary within the next fourteen (14) days.

In any event, please let us have your written response within the next seven (7) days.

A similar letter did not appear to have been sent to 3 Bedok Rise.

11 Some four years later, on 9 October 2000, the company's solicitors wrote:

Ngo Ong Chung

(NRIC No. S2503404/Z)

and all other persons occupying

the plot of land belonging to

No. 7A Bedok Rise and adjoining

No. 1 Bedok Rise

Singapore 469574

Dear Sir/Madam

NOTICE TO CEASE AND DESIST TRESPASS OF...