Ong Kee Ming (trading as FL Development and Property Consultants) v Quek Yong Kang and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 20 February 1991
• Neutral Citation: [1991] SGHC 29
• Docket Number: DC Suit No 4386 of 1990
• Date: 20 February 1991
• Published date: 19 September 2003
• Year: 1991
• Plaintiff Counsel: April J Loh (Cheow Hin & Partners)
• Citation: [1991] SGHC 29
• Defendant Counsel: SJ Pillay (Emmanuel & Barker)
• Court: High Court (Singapore)
• Subject Matter: Agency contract,Whether plaintiff was effective cause of sale,Estate agent's commission due,Whether plaintiff entitled to be paid commission,Breach,Contract,Commission for sale of property,Estate agents,Agency

Cur Adv Vult

This is a claim by the plaintiff against the defendants for commission in connection with the sale of the defendants` property.

The facts are not disputed. Sometime in March or April 1990, the defendants, who were residents in Canada, authorized a relative, TKE, to place an advertisement for the sale of their property in The Straits Times . The advertisement came to the attention of the plaintiff who contacted TKE and offered to find a purchaser. TKE indicated to the plaintiff that if he could secure a purchaser for the property, a 1% commission would be paid on the purchase price upon completion of the sale. TKE`s offer was later confirmed by the first defendant.

The plaintiff contacted a few of his clients who expressed no interest in the property. He then placed two advertisements in The Straits Times , to the second of which a Mr & Mrs CCO (the CCOs) responded. He took the CCOs to inspect the property and they made an offer of $1.4m. As the first defendant, Q, was then in Singapore, the plaintiff discussed the offer with Q who wanted to and did meet the CCOs. Q instructed the plaintiff to negotiate for an additional $20,000. He did so successfully as the CCOs agreed to buy the property at $1.42m.

An option to purchase dated 18 April 1990 (the option), prepared by the solicitors for the defendants, was given to the CCOs upon payment of $15,000. The option contained an offer to sell at the agreed price and was open to acceptance by 10 May 1990. Completion was fixed for three months from the date of acceptance. Clause 9 of the option provided as follows:

I confirm that a commission of one percent (1%) of the sale price is payable to [the plaintiff] on completion of the sale.

About a week later, the plaintiff was informed by Mr CCO that the property was affected by a category 3 road line. He wanted a reduction in the price. The plaintiff contacted and tried to persuade Q to reduce the price but Q refused. At this point, the solicitors for the parties came into the picture. Later, in June 1990, the plaintiff was informed that the CCOs had decided to purchase the property at $1.38m.

What happened between April to June 1990 is set out in an affidavit of the solicitor for the defendants filed in these proceedings. On 4 May 1990, the solicitors for the plaintiff wrote to the defendants` solicitors for the return of the option fee of $15,000 on the ground of the unsatisfactory requisition. The defendants complied with the request on the advice of their solicitors. The option accordingly ceased to have effect.

On 8 May 1990, Q appointed another firm of real estate agents, PRE, to be the sole agent for the sale of the property. PRE advertised the property in The Straits Times on 10, 11, 14, 17 and 21 May 1990.

On 14 May 1990, the plaintiff informed Q that he had found another buyer. Q refused to deal with him as he had appointed PRE as his sole agent.

On 19 May 1990, Mr CCO telephoned Q in Canada and offered to buy the property at the reduced price of $1.3m. The parties agreed on the price of $1.38m on 23 May 1990. An agreement for sale dated 31 May 1990 was signed by them and the sale was completed on 8 August 1990.

The plaintiff`s claim for commission of 1% of the sale price of $1.38m is based on the principle that he was the effective cause of the sale to the CCOs. The defendants deny liability.

The deputy registrar gave unconditional leave to defend. He found that there were a number of triable issues which he did not identify. Counsel for the defendants had raised the following issues: (1) what was meant by a completed sale upon which the commission was payable; (2) whether the plaintiff was entitled to the commission after the first aborted sale; (3) whether the plaintiff was in breach of his duty in acting against the interest of the defendants [in trying to persuade the defendants to accept the CCOs` reduced offer, and later, to return the option fee to the CCOs]; (4) whether the appointment of the plaintiff as an agent was ter; (5) whether the plaintiff was entitled to the commission after the appointment of the new sole agent. The...