Ng Kim Chwee (executor and trustee of the estate of Ng Ham Chau, deceased) v Chua Chiew Hai and Others

• Jurisdiction: Singapore
• Judgment Date: 23 April 1998
• Date: 23 April 1998
• Docket Number: Originating Summons No 808 of 1997
• Court: High Court (Singapore)

Ng Kim Chwee (executor and trustee of the estate of Ng Ham Chau, deceased)

Plaintiff

and

Chua Chiew Hai and others

Defendant

[1998] SGHC 133

Christopher Lau JC

Originating Summons No 808 of 1997

High Court

Land–Interest in land–Joint tenancy–Severance of joint tenancy of unregistered land–Purported severance of joint tenancy by using an instrument of declaration when land was not registered under Land Titles Act (Cap 157, 1994 Rev Ed)–Validity and effectiveness of instrument of declaration–Tort–Negligence–Sale of HDB flat by surviving joint tenant when joint tenancy had purportedly been severed–Whether HDB negligent in permitting sale of the flat to third parties

The plaintiff, who was the representative of the estate of the deceased Mdm Ng, took out an application for the following orders: (a) that the third defendant, HDB, was negligent in permitting the sale of the flat (of which she was joint tenant with her husband) by her husband as its sole beneficial owner; and (b) that HDB pay half the flat's sale proceeds to the estate. During her lifetime, Mdm Ng and her husband were joint tenants of a HDB flat. The plaintiff argued that joint tenancy in the flat had already been severed through an instrument of declaration.

The issues were: (a) whether Mdm Ng complied with the statutory form of severance required by the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (“CLPA”); (b) whether HDB as a third party was entitled to treat the joint tenancy as subsisting and conduct any dealings that it might have had in relation to the flat on that basis; (c) whether there could have been a severance of a joint tenancy before the issue of the lease by HDB and before the land was brought under the provisions of the Land Titles Act (Cap 157, 1994 Rev Ed) (“LTA”), by an instrument of declaration to sever a joint tenancy of registered land; and (d) having regard to all the circumstances of this case, whether HDB had been negligent in approving the sale of the flat by Mdm Ng's husband to the second defendant.

Held, dismissing the plaintiff's application:

(1) At the time Madam Ng made the instrument of declaration, the land was not registered land under the LTA. Madam Ng and her husband thus only had an equitable interest under the agreement to lease. In dealing with unregistered land under the CLPA, only a deed and service of the deed could effect severance. The instrument of declaration made thus had no validity: at [9] and [10].

(2) Until the proper form of severance was used, HDB was entitled to treat the joint tenancy as subsisting and conduct any dealings that they might have had in relation to the flat on that basis. The evidence showed that Mdm Ng's former solicitors realised the problem of the effectiveness of the purported severance as far back as 1994 and that in January 1995 HDB had highlighted this problem to these solicitors. They were thus put on notice. Yet nothing was done by these solicitors to address the difficulty and to correct it. The HDB was thus not negligent in such circumstances: at [10] to [12].

Diaz Priscillia v Diaz Angela [1997] 3 SLR (R) 759; [1998] 1 SLR 361 (folld)

Fry, deceased, In re; Chase National Executors and Trustees Corporation v Fry [1946] Ch 312 (folld)

Rose, In re; Rose v Inland Revenue Commissioners [1952] Ch 499 (folld)

Sivakolunthu Kumarasamy v Shanmugam Nagaiah [1987] SLR (R) 702; [1987] SLR 182 (folld)

Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) s 66A (3), 66A (4)

Land Titles Act (Cap 157, 1994 Rev Ed) s 53

Jan Tan (Jan Tan & Chan) for the plaintiff

First defendant absent

Kenneth Au Yong (Ramdas & Wong) for the second defendant

Michael Khoo and Karen Yoong (Michael Khoo & Partners) for the third defendant.

Christopher Lau JC

1 In this action an application had been made by the plaintiff as the representative of the estate of Madam Ng Ham Chau (“Madam Ng”) for orders:

(a) that the third defendants, the Housing and Development Board (HDB), had been negligent in permitting the sale, following Madam Ng's death, by Madam Ng's husband of a HDB flat at Block 821, Jurong West Street 81, #09-488, Singapore (“the flat”) as its sole beneficial owner...