Loo Kim Chwee v Luxury Green Development Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Lewis Tan
• Judgment Date: 07 February 2023
• Neutral Citation: [2023] SGDC 20
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 2195 of 2021 (Summons Nos 2612 of 2022 and 3131 of 2022)
• Hearing Date: 01 February 2023
• Citation: [2023] SGDC 20
• Year: 2023
• Plaintiff Counsel: Lam Kuet Keng Steven John and Kenrick Lam (Templars Law LLC)
• Defendant Counsel: Hannah Chua (Dentons Rodyk & Davidson LLP),and Tan Yiting Gina (Legal Solutions LLP)
• Subject Matter: Civil Procedure,Parties,Joint tenancy,Whether a joint tenant can commence a claim without joining the other joint tenant(s),Pleadings,Amendment,Whether amendment application is in substance an application for joinder,Whether cause of action that arises after the issuance of the writ can be introduced by amendment,Joinder,Whether a party can be joined after expiry of limitation period,Limitation of Actions,Particular causes of action,Contract,When cause of action in contract accrues,Tort,When cause of action in tort accrues
• Published date: 16 February 2023

Deputy Registrar Lewis Tan: Introduction

Before me are two closely related applications that arise from a seemingly innocuous mistake. The plaintiff initiated a claim against the developer and contractor of a development, seeking damages for defects in his property within the development. About a year after the action was initiated, the contractor applied to strike out the plaintiff’s claim, arguing that he had no locus standi to continue pursuing the claim as he had failed to join his wife, a joint tenant of the property, as a co-plaintiff. In a bid to cure the “defect”, the plaintiff applied to amend his pleadings to join his wife as a party. The defendants fervently resist the amendment, arguing that it would irremediably prejudice their accrued limitation defence.

Background facts

In 2011, Mr Loo Kim Chwee (“the Purchaser”) and his wife, Mdm Koh Siew Cheek (“Mdm Koh”) entered into a Sale and Purchase Agreement (“SPA”) to purchase a strata house within a development known as Thomson Grand (“the Development”) from Luxury Green Development Pte Ltd (“the Developer”).

The Development was issued its Temporary Occupation Permit (“TOP”) on 16 October 2015,¹ and the Purchaser received the Notice of Vacant Possession (“NVP”) in November 2015.²

Clause 17 of the SPA provided that within “12 months from the date the Purchaser receives the [NVP] in respect of the Unit”, the Purchaser had the right to notify the Developer of the defects in the Unit. Within one month of receiving a notice from the Purchaser of such defects, the Developer “must make good any such defect”, failing which the Purchaser would have the right to cause the rectification works to be carried out and to recover the cost of the rectification works from the Developer (“the Defects Liability Clause”).

The Purchaser took possession of his purchased property (“the Property”) around December 2015, and began to reside there in June 2016. According to him, he then discovered “a large number of defects, including several defects which were very serious in nature” (“the Alleged Defects”).³ As such, from July 2016, he began giving the Developer and Paul Y. – Lian Beng JV Pte Ltd (“the Contractor”), notice of the Alleged Defects.⁴ Both the Developer and Contractor dispute this version of events, and the Developer avers that any relevant defects were rectified.⁵

In any case, the Purchaser proceeded to engage a building surveyor to inspect the Property. The surveyor released his report in January 2018, wherein he identified 71 areas that required rectification and remedial works, which he estimated would cost S$91,250.⁶

Despite repeated discussions, parties reached an impasse.⁷ On 15 October 2021, being one day shy of six years after the TOP had been obtained, the Purchaser commenced the present action against the Developer and the Contractor. By this action, he is seeking damages against them for breaches of contract, statutory duty, and duty of care due to the Alleged Defects that remain unrectified.

Applications before the Court

On 16 September 2022, the Contractor took out Summons No 2612 of 2022 to strike out the claim (“the Striking Out Summons”) on the basis that the Purchaser, who holds the Property as a joint tenant with his wife, has “no locus standi to commence this action in his sole capacity”.⁸

About one month after the Striking Out Summons was taken out, and in apparent response to the objection raised therein, the Purchaser filed Summons No 3131 of 2022 to amend his Writ of Summons and Statement of Claim (Amendment No 1) to add Mdm Koh as a co-plaintiff, and to introduce an “additional claim in respect of latent defects” that he purportedly discovered around May 2022 (“the Amendment Summons”).⁹

Both the Developer and Contractor (collectively, “the Defendants”) resist this amendment, arguing that it amounts in substance to a joinder of a party, which cannot be allowed because the claims premised on the Alleged Defects are time-barred. As regards the amendment for the latent defects, it is submitted that this should also not be allowed because this claim only accrued after the commencement of the action, and so the Purchaser ought to commence a fresh action in respect of those defects.¹⁰

The issues arising from the two applications are as follows: First, whether the Purchaser has locus standi to commence the claim in his sole capacity as one of two joint tenants of the Property. If it is determined that he has standing, the Striking Out Summons must fail. Secondly, if the Purchaser lacks locus standi to sue in his own capacity, whether he should be allowed to join Mdm Koh as a co-plaintiff. This issue raises several sub-issues centred on whether the claims raised by the Purchaser are time-barred. Thirdly, regardless of whether the Purchaser’s present claims are time-barred, whether he should be permitted to introduce the additional claim in respect of the purported latent defects discovered in May 2022.

I consider the issues in turn.

Whether the Purchaser has locus standi

The issue that lies at the heart of the Striking Out Summons is whether the Purchaser, as one of two joint tenants of the Property, is capable of pursuing this action without joining the other joint tenant of the Property, Mdm Koh, as a co-plaintiff.

Nature of a joint tenancy

It is a well-established principle that “each joint tenant’s interest in the property is indistinguishable. Each joint tenant holds nothing by himself; he holds the whole estate with the other joint tenants” (Chan Lung Kien v Chan Shwe Ching [2018] 4 SLR 208 at [29]). As a consequence of the manner of their holding, joint tenants must act jointly to bind their estate (Goh Teh Lee v Lim Li Pheng Maria and others [2010] 3 SLR 364 (“Goh Teh Lee”) at [17]):

Since the interest of each joint tenant is the same in extent, nature and duration, a necessary consequence is that each and every joint tenant must partake in any dealings with the whole legal estate before such dealings may effectively bind the entire estate. An action by one joint tenant, or even by some joint tenants but short of all of them collectively, will not suffice to bind the estate, as the whole estate does not reside in the single joint tenant or the select few (as the case may be).

[emphasis added in bold]

“Arising from the requirement that joint tenants must act jointly before the estate may be bound by their actions is the rule that in cases involving actions as to the joint estate, one joint tenant may not sue or be sued without joining the others” [emphasis added] (Goh Teh Lee at [21]). This is echoed in Halsbury’s Laws of Singapore vol 14 (LexisNexis, 2023 Reissue) at para 170.0035:

In actions as to the joint estate one joint tenant may not sue or be sued without joining the others, and a judgment for possession against one joint tenant is not an effective judgment. One joint tenant may not part with the title deeds of the property without the consent of the other. Nor can one of several joint lessees surrender rights held jointly before the full period of the lease has run… [emphasis added]

Hence, in Lui Yuk Yin v Lam Chuen [2006] HKCU 359, the plaintiff wife who sought a declaration that she and her husband were beneficial joint tenants of a property was held to lack locus standi to bring the action as her husband was not a party to the action. In Goh Teh Lee, the appellant lacked locus standi to appeal against the Strata Titles Board’s decision to grant an order for the collective sale of a development because his ex-wife, a co-owner of his unit within the development, had agreed to the collective sale.

Action improperly commenced in the Purchaser’s sole name

Returning to the facts here, the Purchaser’s claim against the Defendants is for damages caused by the Alleged Defects in the Property that he jointly holds with Mdm Koh, who is at present not a party to the proceedings.

This is closely analogous to the case of Williams v British Gas Corporation [1981] 1 EGLR 165 (“Williams”), an authority that was followed by the Court of Appeal in Goh Teh Lee (at 366). In Williams, the claimant brought a claim against the defendant for the pollution of lakes which allegedly depreciated the value of his property. According to the claimant, the corporation was negligent, and he wished to claim against them under Part I of the Land Compensation Act 1973 (UK). The tribunal found that he lacked the locus standi to commence or maintain the claim against the defendant because, among others, he had failed to join his wife, the joint owner of the property, as a claimant (at 165):

[The claimant] said that his wife was not willing to be joined with him as claimant. He was not willing to join her as a respondent. …

…

It is clear law that, although as between themselves joint tenants (and, therefore, joint owners) have separate rights, as against everyone else they are in the position of a single owner. There is absolute unity between them and together they form one person. Apart from equitable remedies inter se, one of the joint tenants cannot commence any proceedings without the aid of the other or others.

…

The claim which [the claimant] seeks to put forward … is either a claim for compensation for injurious infection … or a claim for compensation for depreciation caused by use of public works… In either case he has, in our judgment, no locus standi to commence or maintain the proceedings unless his wife be joined with him as a claimant. …

[emphasis added in bold]

Faced with the weight of the authorities which make amply clear that a joint tenant like the Purchaser is incapable of seeking relief in respect of the Property without joining the other joint tenant(s), the Purchaser appears to accept, albeit belatedly, that it was improper for him to sue the Defendants in his sole name. In his affidavit for the Amendment Summons, he candidly admits that the...