Neil Simon Abbott v Tan Meow Hia

• Jurisdiction: Singapore
• Judge: Lee Li Choon
• Judgment Date: 09 June 2017
• Neutral Citation: [2017] SGMC 37
• Court: Magistrates' Court (Singapore)
• Hearing Date: 24 February 2017,24 March 2017,16 May 2017
• Docket Number: Magistrate’s Court Suit No. 10782 of 2016
• Plaintiff Counsel: Andrew J Hanam (M/s Andrew LLC)
• Defendant Counsel: Jonathan Muk (M/s Drew & Napier LLC)
• Subject Matter: Tenancy agreement - clauses in letter of intent - breach of conditions of contract - breach of covenant of quiet enjoyment - wrongful termination of contract
• Published date: 23 September 2017

District Judge Lee Li Choon: Background

The Plaintiff is the former tenant and the Defendant is the former landlord in a tenancy agreement that was signed on 23 March 2016 for the rental of a residential apartment at 30 Parbury Avenue, #01-05 Parbury Hill Condominium, Singapore 467299 (“the premises”) for a 2 year period to run from 18 March 2016 to 17 March 2018 at a monthly rent of $3,200, with a move-in date of 23 March 2016. Less than 2 months into the tenancy, the Plaintiff gave written notice to terminate on 12 May 2016 and the handover took place on 21 May 2016. The Plaintiff’s claim is for the sum of $6,400 which is the security deposit that the Plaintiff claims he is entitled to under the terms of the Agreement due to breach of express conditions in the tenancy agreement by the Defendant and for breach of the covenant of quiet enjoyment. In response, the Defendant through her daughter, Wendy Tan Woon Li (“Wendy”) who obtained a court order appointing her a Deputy over the affairs of the Defendant, counterclaims the sum of $70,400 being the rental for the remaining 22 months i.e. from 18 May 2016 to 17 March 2018 for wrongful termination of the tenancy. It is to be noted that Wendy was also the housing agent for the Defendant and the one who communicated with the Plaintiff throughout the tenancy.

At the heart of the dispute was whether there was a breach of conditions of the contract and whether there was a breach of the covenant of quiet enjoyment by the Defendant which the Plaintiff claims, entitles him to terminate the tenancy and to be refunded the security deposit.

The Plaintiff alleged that the following are in breach of the conditions of the tenancy agreement: The gas heater was not serviced or repaired as the pilot light does not stay lit and the water was not heated; Air con unit in dining area was not fixed and remained with cover off and stored in 3rd bedroom; Floor not polished and had a sticky residue and was patchy; Front door lock fix not done properly; Shower holder was broken in master bathroom. A hair clip and cloth was being used to hold the shower head; Master bedroom frame has missing slats resulting in an uneven level and which damaged the Plaintiff’s new mattress; Second hand sofa was not cleaned; Condo not cleaned; grime dirt on cooker hood extractor fan. Dust layer in all appliances; and Paint touch up not done especially hall way.

According to the Plaintiff, these alleged breaches fall under the obligations undertaken by the Defendant and these are found specifically in the Letter of Intent (“LOI”), in particular, clause 13(a) to (k), which the Plaintiff says is part of the contract between the parties. The Plaintiff further contends that the Defendant had undertaken to carry out the necessary repairs and maintenance works, including those specifically laid down in clause 13(a) to (k) of the LOI by 15 April 2016 and that these obligations undertaken by the Defendant constitute conditions of the contract and the breach thereof, entitles him to discharge the contract and to claim for damages arising therefrom.

Issues To Be Determined

In respect of the claim, the burden of proof is on the Plaintiff to prove that the Defendant was in breach of the contract and that the termination by the Plaintiff was lawful. The Defendant’s counterclaim is on the basis that by terminating the tenancy before the end of the tenancy period, the Plaintiff is the one that is in breach of the contract and the Defendant is entitled to damages amounting to the full sum of rental for the remaining period of the tenancy.

The issues arising for the Court’s determination are as follows: Whether the tenancy agreement incorporates the terms and conditions contained in the LOI and/or the inventory list (“IL”) and the handwritten notes therein? If so, what are the terms of the agreement? Whether there was an agreement that the Defendant would fulfil those terms by 15 April 2016? Whether there is a breach of any of the terms of the contract? Whether the breach of those terms entitles the Plaintiff to terminate the contract? This last question will rest on my finding as to whether the relevant terms of the contract that are shown to have been breached (if at all) are either conditions or such other terms where the breach in question will “give rise to an event which will deprive the Plaintiff of substantially the whole benefit which it was intended that he should obtain under the contract” or whether they are merely warranties. In the event that I hold that the terms breached are conditions of the contract or that the breach gives rise to an event which will deprive the Plaintiff of substantially the whole benefit which it was intended that he should obtain under the contract, the Plaintiff would be entitled to terminate the tenancy pre-maturely. It will then not be necessary for me to consider the Defendant’s counterclaim. In the event that my finding is that those terms that are breached are merely warranties, the Plaintiff’s early termination of the tenancy would be in breach of the contract and the Defendant would be entitled to damages arising from the Plaintiff’s early termination. In that scenario, the question I will have to determine is, what damages should be awarded to the Defendant? Whether the Defendant has, by the acts of her agent, Wendy, breached the covenant of quiet enjoyment that would entitle the Plaintiff to terminate the tenancy pre-maturely?

The Court’s Findings On: Whether the tenancy agreement incorporates the “terms and conditions” contained in the LOI and/or the IL and the handwritten notes therein? If so, what are the terms of the agreement?

I will first have to consider whether the following constituents form part of the tenancy agreement: The Letter of Intent (“LOI”) that was signed on 21 March 2016 The main Tenancy Agreement (“TA”) that was signed on 23 March 2016 The Inventory List (“IL”) that was signed on the same day as the Tenancy Agreement It is not disputed that the main TA constitutes the tenancy agreement. The dispute is over whether (i) and (iii) above are also part of the tenancy agreement.

The Defendant says the contract between the parties is merely the terms as stipulated in the TA whereas the Plaintiff’s position is that the LOI and the IL are also part of the contract between the parties. On this issue, it is clear that the court must ascertain what the parties’ intentions are and to determine that, the court must consider all the relevant facts and circumstances.

From the evidence, it is clear to me that the parties had intended the LOI to be part of the Agreement. First, on the last page of the TA¹, there was an “Addendum” inserted in handwriting. The handwritten “Addendum” contains items numbered 1 to 4. It is not disputed that the handwriting for items 1 to 3 is that of the Plaintiff. The handwriting for item 4 is that of the Defendant’s agent or and key witness, Wendy. Item 4 says, “see LOI” (it not being disputed that “LOI” refers to the Letter of Intent). There is also Wendy’s signature next to the said words, “see LOI”. I am also satisfied that the Plaintiff has shown through his evidence that the handwritten “Addendum” was inserted before the Defendant signed the LOI. The said insertion at item 4 of the handwritten “Addendum”, “see LOI” by the Defendant shows clearly that the parties had intended for all the terms incorporated in the LOI, in particular, the list of items in clause 13(a) to (k) in the LOI to be part of the agreement as well.

Second, it is not disputed that the list of items in clause 13(a) to (k) in the LOI outlined the obligations to be carried out by the Defendant. In fact, the Defendant’s key witness, Wendy has testified in her own affidavit that she went about carrying out the obligations as contained in the items in clause 13(a) to (k) in the LOI. Thus, I find that the parties had intended for the terms in the LOI to form part of the tenancy agreement. In the LOI, the following items in clause 13(a) to (k) are listed under “Clients Requirements”: a. King size bed frame b. Queen size bed frame and mattress c. 4 seater sofa set d. Polishing of marble flooring e. Paint touch up various as required f. Air con service all units g. Condo general cleaning h. Remove junk as required i. Cooker hob be replaced and $200 contributed by Tenant j. Aircon of 3rd Junior master be fixed k. Carpet under dining table be removed (I have highlighted in bold the items I will be examining in great detail as to whether there had been a breach of)

Third, in the IL, under “Additional Remarks”, these terms were inserted in handwriting: a. Marble flooring be polished and shine restored to condition during moving b. See LOI addendum c. Kitchen Socket Shock – Blew Fuse d. Gas Heater Safety Check and Service e. Fix Electric Socket in Kitchen Blown Fuse (emphasis mine) The reference in item (b), “b. See LOI addendum” clearly shows that the LOI is intended by both parties to form part of the terms of the agreement. The IL is also an essential document showing the agreement between the parties as it is not disputed the premises is rented on a fully furnished basis and the IL captures the inventory of the furniture, fittings and fixtures the tenancy comes with.

As can be seen from the evidence, both the TA (via the “Addendum”) and the IL clearly contain a reference to the LOI. This shows that the LOI forms part of the agreement between the parties. As the IL was signed as part of the main TA, it is also clear that the parties’ intention is for the IL to be part of the overall agreement as well.

The Defendant’s position that clause 9 of the LOI which states “the execution of the Tenancy Agreement is subject to contract” means that the obligations contained in the LOI is not binding on the Defendant is misconceived. The fact that there...