Low Heng Leon Andy v Low Kian Beng Lawrence (administrator of the estate of Tan Ah Kng, deceased)

• Jurisdiction: Singapore
• Judge: Chan Wei Sern Paul AR
• Judgment Date: 05 August 2011
• Neutral Citation: [2011] SGHC 184
• Court: High Court (Singapore)
• Docket Number: Suit No 252 of 2011 (Summons No 8074 of 2010)
• Year: 2011
• Published date: 08 August 2011
• Hearing Date: 06 July 2011,15 June 2011,14 July 2011
• Plaintiff Counsel: Gopinath S/O Pillai (Eldan Law LLP)
• Defendant Counsel: Tan Tian Luh (Chancery law Corporation)
• Subject Matter: Civil Procedure,Equity
• Citation: [2011] SGHC 184

Chan Wei Sern Paul AR: Introduction

In the present application to strike out the Plaintiff’s statement of claim, or part thereof, two separate issues of law were presented for the court’s determination. First, what is the nature and effect of consent orders and did a prior consent order entered into between the parties preclude the Plaintiff’s action in the present suit? Secondly, did the effect of section 51(10) of the Housing and Development Act (Cap 129, 2004 Rev Ed) (“HDA”) extend so far as to preclude the bringing of a proprietary estoppel claim involving a Housing and Development Board (“HDB”) flat? Although these issues appear novel at first sight, the answers were, in truth, not far to find once the principles already espoused in the relevant areas of law were properly considered. To this task I now turn my attention. The background to the application

the factual background

The Plaintiff and the Defendant are cousins. Their dispute arose following the demise of their common grandmother, Tan Ah Kng (“the Deceased”), and revolved around a flat situated at Block 306, Hougang Avenue 5, #02-355 Singapore 530306 (the “Flat”) that she left behind. This was a flat sold by the HDB and which was subject to the provisions of the HDA. While the Defendant did not necessarily agree with everything stated in the Plaintiff’s statement of claim and his subsequent affidavit, it was only necessary, for the purposes of the present application, to consider the Plaintiff’s version of the facts.

A note, before we continue, about the pleadings. I am not given to be particularly particular about particulars. However, it would not be inaccurate to describe the statement of claim filed by the Plaintiff as inadequately bare. In it, he set out the relationship between the main protagonists, the gist of the main facts as well as the breakdown for his claim of S$18,350.50. Unfortunately, much of the relevant, and indeed crucial, facts were not properly pleaded. While brevity in pleadings is a virtue that should be encouraged, the austerity of the Plaintiff’s statement of claim in this case meant that it was impossible to discern what the legal basis for his claim was. Indeed, it almost appeared that the Plaintiff himself was unclear as to his legal claim, merely that he had disparate grievances that required airing. It was not until the Plaintiff filed a subsequent affidavit, for the purposes of this application, that much of his case could be understood. It is mostly on the basis of the subsequent affidavit that most of the following facts are recounted.

Insofar as I was able to discern, the Flat was purchased around 1983. At the time of the purchase, the Deceased was the sole owner of the Flat but at some unknown subsequent point in time, one of her daughters, Low Eng Cheng (“the Aunt”), was added as an owner such that the Flat was owed in joint tenancy between the two of them. Be that as it may, it was the Plaintiff and his immediate family who had use of the Flat as their family home for many years. This certainly was the case from the time the Plaintiff was born (in 1984) until 2003. In that latter year, for reasons undisclosed, most of the Plaintiff’s family moved out of the Flat, save for one of the Plaintiff’s brother and the Plaintiff himself. About two years later, in 2005, the Deceased and the Aunt also made the Flat their residence. The year after, the Plaintiff’s brother moved out. This, of course, left the Deceased, the Aunt and the Plaintiff as the remaining occupants of the Flat.

The Plaintiff averred that almost immediately after his brother had left the Flat, the Plaintiff had to look after both the Deceased and the Aunt as they were in poor physical health. The Aunt was diagnosed with ovarian cancer while the Deceased, towards the end of her life, contracted tuberculosis. The responsibility for caring for the infirm fell to the Plaintiff who, I am told, fulfilled his familial obligations selflessly. Despite the Plaintiff’s efforts, both the Aunt and the Deceased eventually succumbed to their illnesses and passed away in 2007 and 2008, respectively. Both of them died intestate.

On 28 April 2009, the Defendant was granted letters of administration in respect of the Deceased’s estate. The only asset which had to be distributed was the Flat (which the Deceased owned wholly following the earlier death of the Aunt). Pursuant to the Intestate Succession Act (Cap 146, 1985 Rev Ed), the beneficiaries of the estate were the five surviving children of the Deceased; the Plaintiff was therefore not a beneficiary of the estate. The Defendant then took the view that the Plaintiff was, whilst the Deceased was alive, a free lodger and, now, an illegal occupier of the Flat. Accordingly, in what he regarded was his lawful duty as the administrator of the Deceased’s estate, the Defendant endeavoured to remove the Plaintiff from the Flat. In succession, the Defendant orally informed the Plaintiff to vacate the Flat, called a locksmith to pick the lock of the Flat and instructed solicitors to issue a letter of demand to the Plaintiff.

the legal background

Finally, given the Plaintiff’s lack of response to his entreaties, the Defendant commenced Originating Summons No. 213 of 2009 (the “Order 81 Application”). In that application, the Defendant sued, pursuant to Order 81 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”), for immediate possession of the Flat as well as costs for the legal proceedings. Thereafter, but prior to the hearing of the Order 81 Application, attempts at an amicable settlement were made, the details of which would turn out to be significant for the present application.

The olive branch was first extended by the Defendant even though he was also the one who commenced the Order 81 Application. On 13 July 2009, his counsel wrote to the Plaintiff’s counsel in the following terms: 2. The [Defendant] offers to settle this OS [the Order 81 Application] as follows: a. That the [Plaintiff] does agree to vacate the HDB flat in question within a date no later than 31 July 2009; b. In return, the [Defendant] will not ask for the costs of the OS and the Plaintiff will agree to abandon the claims arising from trespass and unlawful occupation; c. This agreement to be recorded in a consent order within on or before 24 July 2009.

To that offer counsel for the Plaintiff responded on 17 July 2009 in a somewhat equivocal fashion: 2. We write to confirm that our client will accept the offer as set out in your Fax, without prejudice to any claims that he may have against the estate, particularly in respect of any moneys expended and/or ownership.

In the following fax, on 21 July 2009, counsel for the Defendant set out the Defendant’s view that the Plaintiff had made a counteroffer: 1. We refer to your fax dated 17 July 2009 accepting our client’s offer to settle this OS. Technically, the fax contains a counter offer in paragraph 2 after the first comma. That portion is not part of any settlement which the [Defendant] agrees to and will have to be left to be resolved under the general law, if applicable. 2. We enclose the draft Order for your reference. This document will also be served on you by EFS. 3. We will attend before the District Judge on Friday to record the settlement before extracting the Order. Please let us know if you wish for us to mention on your behalf. Significantly, the terms of the draft order enclosed with the foregoing fax were similar to those of the consent order eventually entered into: see [12], below. The terms, in short, were that the Plaintiff vacates the Flat and the Defendant abandons any claim for trespass and unlawful occupation as well as costs.

This chain of correspondence finally concluded with counsel for the Plaintiff writing to the Defendant’s counsel on 22 July 2009 in the following manner: 1. We refer to your fax of 21 July 2009, received by us at 9.00pm (the “Fax”). 2. We acknowledge the contents of the Fax. Rather than making a counter-offer, we were merely reiterating that the acceptance of your client’s offer was not be deemed an abandonment of any claims that he may have against the Estate. 3. We enclose herewith the amended draft consent order, duly approved by us for your necessary action. As the amendments are extensive, we have redrafted and approved the same. We trust you will have no objections to this. The draft was essentially amended for organisation and to comply with the standard form for Orders of Court. The substantive terms of the order remained unaltered.

Indeed, the form and substance of the amended draft prepared by the Plaintiff’s counsel reflected the actual one eventually entered into before Deputy Registrar Julian Chin on 24 July 2009. The learned Deputy Registrar recorded the terms as follows: i. the [Defendant] be given immediate possession of the [Flat]; ii. the [Plaintiff] shall deliver vacant possession of the Flat to the [Defendant] by 31 July 2009; iii. provided the [Plaintiff] vacates the Flat by 31 July 2009, the estate of Tan Ah Kng (“the Estate”) shall agree to abandon any claims by the Estate against the [Plaintiff] arising from the [Plaintiff’s] occupation of the Flat in respect of trespass and unlawful occupation; and iv. that there be no order as to costs. Thereafter, the Flat was duly delivered to the Defendant, sold and the proceeds thereof distributed.

Subsequently, the Plaintiff commenced the present suit to recover, as I have mentioned, a total of S$18,350.50 or, alternatively, damages to be assessed. According to the statement of claim, the claim was for “the monies expended in taking care of [the Deceased] during her lifetime” and that “[t]he Plaintiff’s claim against the Defendant arose when the Deceased passed away and the Defendant gave notice to the Plaintiff to evict out of the flat…” The claim of S$18,350.50 was obtained by...