Ong Boon Hwee v Cheah Ng Soo and another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 12 March 2019
• Neutral Citation: [2019] SGHC 65
• Court: High Court (Singapore)
• Docket Number: Suit No 770 of 2016 (Registrar’s Appeal No 339 of 2018)
• Year: 2019
• Published date: 16 March 2019
• Hearing Date: 01 February 2019,22 January 2019
• Plaintiff Counsel: Lim Yee Ming and Alvan Quek (Kelvin Chia Partnership)
• Defendant Counsel: Christopher James De Souza, Lee Junting Basil and Amanda Ong (Lee & Lee)
• Subject Matter: Civil Procedure,Judgment and orders,Enforcement,Writs of seizure and sale,Joint tenancy
• Citation: [2019] SGHC 65

Chan Seng Onn J: Introduction

In recent times, there have been several conflicting High Court (“HC”) decisions dealing with the question of whether a joint tenant’s interest in immovable property is exigible to a Writ of Seizure and Sale (“WSS”). While the court in Malayan Banking Bhd v Focal Finance Ltd [1998] 3 SLR(R) 1008 (“Malayan Banking”) and Chan Lung Kien v Chan Shwe Ching [2017] SGHC 136 (“Chan Lung Kien”) decided in the negative, two other HC decisions, namely, Chan Shwe Ching v Leong Lai Yee [2015] 5 SLR 295 (“Leong Lai Yee”) and Peter Low LLC v Higgins, Danial Patrick [2018] 4 SLR 1003 (“Peter Low”) took a contrary position.

In this judgment, I detail my reasons for finding that a joint tenant’s interest in land is exigible to a WSS.

Facts

On 8 March 2018, Cheah Ng Soo and Phoey Kaw Moi (collectively “the Plaintiffs”) entered into a consent judgment (“the Judgment”) with Chan Shwe Ching (“the Defendant”), whereby the Defendant was to pay (i) S$255,000.00 and interest thereon to Cheah Ng Soo, and (ii) S$115,000.00 and interest thereon to Phoey Kaw Moi.¹

To enforce the Judgment, the Plaintiffs sought a WSS in respect of 32 Chwee Chian Road Singapore (“the Property”), which was subject to a joint tenancy between the Defendant and her husband, Ong Boon Hwee (“the Appellant”).

On 14 June 2018, the Plaintiffs obtained an order to attach the Defendant’s interest in the Property in satisfaction of the Judgment (“the Order”).² Faced with this, the Appellant, who was not a judgment debtor, filed an application (Summons 4783 of 2018) to set aside the Order.³

On 6 December 2018, following the decision in Peter Low and the reasons therein, the Assistant Registrar dismissed the Appellant’s application. The Appellant appealed.

The decision in Malayan Banking

Before detailing the parties’ arguments, it is helpful to summarise the decisions. In this regard, Malayan Banking appears to be the first local case which dealt squarely with the issue at hand (Peter Low at [64]).

In Malayan Banking, Tay Yong Kwang JC (as he then was) (“Tay JC”) held that a WSS against immovable property could not be used to enforce a judgment against a debtor who was one of two or more joint tenants of that property (Malayan Banking at [24]). Tay JC reasoned that the interest of the judgment debtor attachable under a WSS must surely be a distinct and identifiable one, and since a joint tenant holds no distinct and identifiable share in land while the joint tenancy subsists, a WSS cannot attach to the interest of a joint tenant unless it concomitantly severs the joint tenancy (Malayan Banking at [15]).

Tay JC did not think that a WSS concomitantly severs a joint tenancy. While he acknowledged the Court of Appeal’s (“CA”) observation in Sivakolunthu Kumarasamy v Shanmugam Nagaiah and another [1987] SLR(R) 702 (“Sivakolunthu”) at [39] that “[i]n principle, there is no reason why a court order may not have such an effect [of severing a joint tenancy]”, Tay JC observed that a WSS against land does not necessarily result in its sale. Indeed, even after a WSS over land is granted, the sale may be postponed or subsequently withdrawn (Malayan Banking at [17]; see Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”) O 47 rr 5(c) and 9).

Accordingly, he viewed that “it would be creating a fine mess to hold that a WSS when registered severs a joint tenancy” since the WSS may not be given full effect. In such instances, it would then be unclear whether the joint tenants revert back to being joint tenants (Malayan Banking at [18]). Tay JC also observed that his holding accorded with the legal position in Canada that the delivery of a writ of execution does not by itself amount to severance (Malayan Banking at [19]–[20]).

The decisions in Leong Lai Yee and Chan Lung Kien

The holding in Malayan Banking remained undisputed locally for almost 20 years, until 2015 when Edmund Leow JC (“Leow JC”) held in Leong Lai Yee that a joint tenant’s interest in property was exigible to a WSS.

In coming to his decision, Leow JC observed that severance of a joint tenancy into undivided shares was not a prerequisite for a WSS to be issued against a joint tenant’s interest in land, because while a joint tenant “does not have an undivided share of the land for as long as the joint tenancy subsists, the joint tenant has an interest in land which is identifiable and capable of being determined”. Hence, when the property is sold, the joint tenant will be entitled to his share of the property (Leong Lai Yee at [11]–[12]). Leow JC also compared the WSS to a receivership (at [14]):

[T]he challenge of having to particularise the exact interest that the judgment creditor is entitled to similarly arises in the appointment of a receiver, which was the alternative method of enforcing a judgment debt suggested in Malayan Banking… [However,] even if a receiver were to be appointed, the receiver cannot receive more rent and profit than what the joint tenant is entitled to, and hence his exact “share” of the joint tenancy has to be determined. It is difficult to see why the situation involving a WSS of a joint tenant’s interest in the property should be any different.

Leow JC’s proposition, as Chua Lee Ming J (“Chua J”) observed shortly after in Chan Lung Kien at [31], was that “although a joint tenant does not have an undivided share, his interest can be seized under a WSS because it will be converted into an undivided share when the joint tenancy is subsequently severed” [emphasis in original] (“Leow JC’s proposition”). Leow JC found further support for his conclusion from how other Commonwealth jurisdictions have proceeded on the assumption that a joint tenant’s interest is exigible to a writ of execution over land (Leong Lai Yee at [15]–[16]).

However, Chua J disagreed with Leow JC’s proposition because it focused “not on what is being seized when the WSS is issued but on what can be seized subsequently upon severance of the joint tenancy” (Chan Lung Kien at [32]). This presupposes that until the joint tenancy is severed, there is nothing for the WSS to latch onto. In Chua J’s view, before the court makes an order for a WSS, it must be satisfied that there is an interest under the WSS that is capable of being seized. It cannot be an answer to say that upon a subsequent severance (eg, through a sale of the property), the joint tenant’s interest will be converted into that of a tenant in common which is capable of being seized under a WSS (Chan Lung Kien at [33]).

Therefore, Chua J considered the decision in Malayan Banking to be good law in Singapore, and held that a WSS cannot attach to a joint tenant’s interest in immovable property (Chan Lung Kien at [42]).

A natural corollary of his decision was that, like Tay JC, Chua J held that a WSS order does not concomitantly sever the joint tenancy (Chan Lung Kien at [29]), such that the WSS has something to latch onto. If this view is adopted, a joint tenant’s interest in immovable property would not be exigible to a WSS.

The decision in Peter Low

In Peter Low, Pang Khang Chau JC (“Pang JC”) embarked on a comprehensive review of the history of the WSS in Singapore and the position in other Commonwealth jurisdictions before deciding that a WSS can be enforced against a joint tenant’s interest in land.

The salient points of the Peter Low decision are as follows: In England, money judgments could be executed against the interest of a joint tenant in land since at least the 17th century through writs of elegit (Peter Low at [17]–[20]). Writs of elegit were replaced by the WSS in Singapore through the Straits Settlement Civil Procedure Ordinance 1878 (Ordinance No 5 of 1878) (“CPO 1878”). In subsequent legislation that replaced the CPO 1878, the interest of a joint tenant in land was never expressly excluded from the reach of the WSS. Indeed, the draftsman of the Land Titles Ordinance 1956 (Ordinance No 21 of 1956) (“LTO”) that eventually became the current Land Titles Act (Cap 157, 2004 Rev Ed) (“LTA”), noted in his Commentary (John Baalman, The Singapore Torrens System – Being a Commentary on the Land Titles Ordinance, 1956 of the State of Singapore (The Government of the State of Singapore, 1961) (“Baalman’s Commentary”) at p 218) that the LTO was not intended to render inapplicable Australian decisions which held that a joint tenant’s interest could be taken under a writ. Australian jurisprudence was persuasive given that the LTA was derived from the Australian Torrens system (Peter Low at [22]–[35]). In every jurisdiction surveyed by Pang JC (which included England, Australia, Hong Kong, Canada, Ireland, New Zealand, and a number of Caribbean jurisdictions), a joint tenant’s interest in land could be taken in execution of money judgments (Peter Low at [37]–[55]). Most importantly, in response to the decisions in Malayan Banking and Chan Lung Kien that disallowed the attachment of a WSS on a joint tenant’s interest as a joint tenant holds “no distinct and identifiable interest in land”, Pang JC noted at [77] of his judgment, after surveying Australian authorities, that

[T]he court is not compelled to focus only on one aspect [of a joint tenancy] (that a joint tenant holds the whole with the other joint tenant but nothing by himself) to the exclusion of the other equally valid aspect (that a joint tenant has a real ownership interest which is capable of immediate alienation without the consent of the other joint tenants). Once both aspects of joint tenancy are given weight to: (a) it will no longer appear incompatible with the nature of the joint tenancy to hold that a joint tenant’s interest in land is exigible to a WSS; and (b) the seizure of a joint tenant’s interest in land by WSS will also need not be seen as a seizure of the other joint tenant’s interest – while a WSS would prevent the debtor-joint tenant from dealing with his interest, with the...