MP-Bilt Pte Ltd v Edy Yumianto

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 18 June 1999
• Neutral Citation: [1999] SGHC 158
• Date: 18 June 1999
• Subject Matter: Housing Developers Rules standard form sale and purchase contract,Construction of subsidiary legislation,Whether 'foundation works' in pre-1997 standard form contract refers to foundation work of entire project or building unit,Statutory Interpretation,Purchaser fails to make instalment payment,Frustration,Form E Housing Developers Rules,Construction of statute,Contract,Whether maker of legislation to be called upon to testify whenever meaning of legislation questioned,Purchaser alleging foundation work not completed as required,Whether contract frustrated as a consequence of purchaser's business in Indonesia suffering severe losses and purchaser unable pay instalments,'Foundation work',Words and Phrases,Whether question of interpretation of contract or of law can be dealt with in a summary way,Sale of land,cl 3(1)(b) Housing Developers Rules Form E
• Docket Number: Suit No 839 of 1998 (Registrar's
• Published date: 19 September 2003
• Defendant Counsel: Harry Elias SC and Chris Wong (Harry Elias Partnership)
• Court: High Court (Singapore)
• Plaintiff Counsel: Engelin Teh SC and Jill Tan (Engelin Teh & Young)

: The defendant signed a sale and purchase agreement dated 16 August 1996 to purchase a flat known as 9 Ardmore Park [num ]10-04 (`the flat`) from the plaintiffs at the price of $4,890,578. The payment of the purchase price was to be paid in instalments and the terms are set out in cl 3 of the agreement. It will be useful to set out cl 3(1) of the agreement. This clause reads as follows:

Subject to paragraph (4), the purchase price shall be paid by the Purchaser to the Vendor by instalments in the following manner:

(a) immediately upon the signing of this Agreement by the purchaser or within Eight (8) weeks from the date of the Option to Purchase, whichever is the later, a sum equal to 20% of the purchase price; such sum to include the booking fee (if any) paid;

(b) within 14 days after receipt by the Purchaser of the Vendor`s notice in writing that the foundation work has been completed a sum equal to 10% of the purchase price;

(c) within 14 days after receipt by the Purchaser of the Vendor`s notice in writing that the reinforced concrete framework of the building unit has been completed, a sum equal to 10% of the purchase price;

(d) within 14 days after receipt by the Purchaser of the Vendor`s notice in writing that the brick walls of the building unit have been completed, a sum equal to 5% of the purchase price;

(e) within 14 days after receipt by the Purchaser of the Vendor`s notice in writing that the ceiling of the building unit has been completed, a sum equal to 5% of the purchase price;

(f) within 14 days after receipt by the Purchaser of the Vendor`s notice in writing that the doors and window frames are in position, the electrical wiring (without fittings) and plumbing and internal plastering of the building unit have been completed, a sum equal to 5% of the purchase price;

(g) within 14 days after receipt by the Purchaser of the Vendor`s notice in writing that the Vendor`s architect has certified that the car park, roads and drains serving the housing project have been completed, a sum equal to 5% of the purchase price;

(h) within 14 days after receipt by the Purchaser of the Vendor`s notice to take possession and a photographic copy of the temporary occupation permit issued by the Building Authority certified as a true copy by the Vendor`s solicitors together with the certificate of the Vendor`s architect that the building unit and all roads, and drainage and sewerage works serving the housing project have been completed and that water, electricity and gas supplies have been duly connected to the building unit, a sum equal to 25% of the purchase price;

(i) on completion of the sale and purchase of the premises in accordance with cl 14, the balance of the 15% of the purchase price which shall be dealt with as follows:

(A) 2% of the purchase price shall be paid forthwith to the Vendor;

(B) the remaining 13% of the purchase price shall be paid to the Purchaser`s solicitors as stakeholders to be dealt with as follows:

(i) 8% of the purchase price shall be paid to the Vendor within 7 days of the receipt by the Purchaser or his solicitors of the certificate of statutory completion for occupation of the building issued by the Building Authority, or a photographic copy thereof duly certified as a true copy by the Vendor`s solicitors; and

(ii) 5% of the purchase price or any balance thereof (after any deduction has been made in accordance with cl 18 and for moneys owing to the Purchaser) shall be paid to the Vendor on the expiry of 12 months from the date of notice to take vacant possession to the Purchaser.

The defendant has paid the 20% required and due under cl 3(1)(a). On 8 September 1998 the plaintiffs gave notice to the defendant that the works described under cl 3(1)(b) have been completed and asked for payment of a further 10% as the next instalment. The defendant failed to pay and consequently the plaintiffs commenced this action to recover the sum of $489,057.80 being the 10% due under cl 3(1)(b), and interest thereon. The plaintiffs obtained summary judgment on this claim and the defendant now appeals before me.

Mr Harry Elias SC on behalf of the appellants presented two grounds of appeals. First, he submitted that the notice for payment dated 8 September 1998 did not constitute a good notice because it purported to certify that payment was due under cl 3(1)(b) of the agreement on the basis that `the foundation work` has been completed when it is not proved that this was so. Mr Elias takes this point because he argues that the term `foundation work` as it appears in cl 3(1)(b) must mean the foundation work of the entire housing project and not just the foundation work of the `building unit`, namely, the appellant`s flat. His submission on this ground is based on two points. First, the learned counsel submitted that cl 3(1)(b) is the only provision in the agreement that refers to work that is not specifically identified to the building unit. Secondly, he argues that the term `foundation work` in the standard form contract under the Housing Developers Rules was amended in 1997 to read `foundation work of the building unit`. Thus, Mr Elias argues, the intention must surely be to correct the previous position and that can only be that the term previously refers to the foundation work of the entire housing project.

Mr Elias then invited me to find that these two arguments raise sufficient triable issues for the matter to proceed to trial. I agree that at this stage of the proceedings, it is not the function of the court to make any findings of fact without the benefit of the full trial. However, if the issue is one of interpretation of a contractual document or law, the court can deal with it in a summary way. In so proceeding, the court need only satisfy itself that no oral evidence or any part of the pre-trial process such as interrogatory and discovery is necessary. In this regard, I think that the court should lean in favour of trial if there is any indication of such necessity.

In this case, Mr Elias sought to persuade me that the evidence of the Controller of Housing`s evidence is necessary because he has to explain why the standard form agreement was amended the way it did in 1997. I have no hesitation in agreeing with Ms Engelin Teh SC that the Controller of Housing`s evidence is not necessary. I accept that his evidence may be interesting and...