Pang Kau Chai @ Pang Hon Wah and another v Runway 80 Pte Ltd

• Jurisdiction: Singapore
• Judge: Teo Jing Lu
• Judgment Date: 08 July 2022
• Neutral Citation: [2022] SGDC 152
• Citation: [2022] SGDC 152
• Court: District Court (Singapore)
• Published date: 19 July 2022
• Docket Number: District Court Suit No 2638 of 2021 (Summons No 539 of 2022)
• Plaintiff Counsel: Mr Steven Lam and Ms Fiona Oon (Templars Law LLC)
• Defendant Counsel: Mr Andy Yeo and Ms Zerlina Yee (Eldan Law LLP)
• Subject Matter: Civil Procedure,Pleadings,Striking out,Landlord and Tenant,Breach of Tenancy Agreement,Whether Breach Entitling to Right of Forfeiture,Waiver of Right of Forfeiture,Whether Acceptance of Rent Amounts to Waiver of Right of Forfeiture
• Hearing Date: 24 May 2022,01 June 2022

Deputy Registrar Teo Jing Lu: Introduction

The present case arose from an application by the Defendant (tenant) to strike out the entirety of the Statement of Claim filed by the Plaintiffs (landlords). At the hearing before me, the Defendant raised a host of issues with regards to the Plaintiffs’ claims. One of the key issues raised was whether the Plaintiffs have, by their continued acceptance of a monthly sum from the Defendant, waived their right of forfeiture. I considered that the question could not be answered for now as it raises triable issues. The other issues raised by the Defendant regarding the Plaintiffs’ claims also merely served to bolster the conclusion that the claims should be allowed to proceed to trial. Having heard parties, I declined to strike out the Statement of Claim and dismissed the Defendant’s application. The Defendant has since filed an appeal,¹ and I now set out the full grounds of my decision.

Background facts

The 1st Plaintiff (Mr Pang Kau Chai) and 2nd Plaintiff (Mdm Lau Han Sum) were at all material times the owners and landlords of the premises at 163 Upper Paya Lebar Road (“the Premises”). By a tenancy agreement in writing dated 1 December 2019 (“the Tenancy Agreement”), the Plaintiffs agreed to let to the Defendant (Runway 80 Pte Ltd) the Premises for an initial period of two years commencing from 1 December 2019 to 30 November 2021, at a monthly rent of S$5,800. At the material times, the Defendant’s representatives dealt solely with the 1st Plaintiff. The only representative of the Defendant who has filed affidavits in the present striking out application is one Ms Jolene Yew (“Ms Yew”).

During the period of the Tenancy Agreement, the Plaintiffs alleged that there were various breaches by the Defendant. This led the Plaintiffs to send a Letter of Demand & Notice of Termination dated 20 September 2021 (“Notice of Termination”) to the Defendant sometime on or about 22 September 2021. The allegations of breaches as stated in the Notice of Termination may be briefly summarised as follows: In breach of Clause 1.2 of the Tenancy Agreement, that there is an amount of S$1,600 due and payable to the Plaintiffs (being the outstanding rental due and payable, in respect of the wrongful deduction by the Defendant for the months of May 2021 and June 2021); In breach of Clause 2.8(a) of the Tenancy Agreement, that the Defendant has made multiple alterations and additions to the Premises without first having obtained the Plaintiffs’ consent; and In breach of Clause 2.30 of the Tenancy Agreement, that the Defendant has failed to take out various insurance policies during the period from 1 December 2020 to 6 July 2021.

By way of the Notice of Termination, the Plaintiffs sought to exercise their right to terminate the Tenancy Agreement and to re-enter and re-possess the Premises in accordance with Clause 4.1 of the Tenancy Agreement. The pertinent portions of the Notice of Termination read:

Notice of Termination

5. In view of the above wrongful deductions and/or breaches, TAKE NOTICE that our Clients exercise herein its right to terminate the Tenancy Agreement in accordance with Clause 4.1 therein. Accordingly, the Tenancy Agreement shall be terminated forthwith, and our Clients shall exercise their right to re-enter and re-possess the Premises. 6. TAKE FURTHER NOTICE that our Client’s representative will be attending at the Premises on 1st October 2021. Upon such re-entry, the Tenancy Agreement shall forthwith and absolutely cease, and should you fail to remove any goods or things from the said Premises by 1st October 2021, you shall be liable for holding over under Section 28(4) of the Civil Law Act (Cap 43).

Clause 4.1 of the Tenancy Agreement provides for the Plaintiffs’ right of entry and determination of the tenancy. For reference, Clause 4.1 of the Tenancy Agreement reads as follows:

4.1 Right of Entry & Determination of Tenancy

If the rent or service charge hereby reserved shall not be paid for seven (7) days after the due date (whether formally demanded or not) or if there shall be any breach of the conditions, covenants or stipulations on the part of the Tenant herein contained, or in the event of liquidation/bankruptcy, distress or other proceedings against the Tenant then it shall be lawful for the Landlord to re-enter upon the said premises or any part thereof and thereupon this tenancy shall absolutely determine but without prejudice to any right of action of the Landlord for damage or otherwise in respect of any such breach or any antecedent breach and all legal costs incurred by the Landlord shall be payable on a full indemnity basis by the Tenant.

Following the Notice of Termination dated 20 September 2021, the Defendant (through their previous set of solicitors) exchanged several correspondences with the Plaintiffs’ solicitors to try to resolve the matter. On 5 November 2021, a “without prejudice” meeting was held between the Plaintiffs and the Defendant but parties did not come to any agreement or settlement. On 8 November 2021, the Defendant made a payment of S$13,200 to the Plaintiffs’ solicitors’ firm account, comprising two months’ rent for October and November 2021 plus S$1,600 for the wrongful deduction for the rental in May 2021 and June 2021. Thereafter, a few more exchanges followed but there was still no resolution between parties. The Plaintiffs commenced the present suit against the Defendant on 17 December 2021.

Meanwhile, a monthly sum of S$5,800 continues to be paid by the Defendant to the Plaintiffs’ solicitors’ firm account. As at the time when the striking out application was heard on 24 May 2022, the Defendant continues to occupy the Premises.

Plaintiffs’ claims in the Statement of Claim

The Plaintiffs allege in their Statement of Claim (“SOC”) that there were various breaches of the Tenancy Agreement by the Defendant during the term of the tenancy. The particulars of the breaches in question, as well as the evidence adduced by parties in support of each alleged breach, will be explored in greater detail below when the Defendant’s striking out arguments in respect of each alleged breach are examined. For now, the breaches may be broadly categorised as follows: Non-payment of rent, which includes: Failure to pay the full rent due from May 2021 to June 2021; Wrongful deduction or wrongful withholding of a sum of S$1,600 ($800 per month); Constant late payments of monthly rental from December 2019 to September 2021; Failure to pay late payment interests; Failure to maintain public liability insurance policy; and Failure to seek landlord’s consent on amendment & alterations.

The Plaintiffs’ position is that to date, the Defendant has failed, refused, and/or neglected to delivery up possession of the Premises to the Plaintiffs and wilfully held over the Premises. As such, pursuant to s 28(4) of the Civil Law Act, the Defendant is liable to pay to the Plaintiffs double rent at the rate of S$11,600 for the period from 1October 2021 until delivery of possession of the Premises. The Plaintiffs’ claim against the Defendant for the following: Possession of the said Premises; Late payment interests which is deemed as rent; Double rent at the rate of $11,600 per month from October 2021 until delivery up possession of the Premises, or alternatively for damages to be assessed; Alternatively, double rent at the rate of $11,600 per month from December 2021 until delivery up possession of the Premises, or alternatively for damages to be assessed.

For completeness, the Plaintiffs’ SOC also contain other claims such as those relating to the reinstatement of Premises. However, they did not affect my decision in any way given that the Defendant did not raise any striking out arguments in respect of these claims. We now turn to the arguments which the Defendant did raise in respect of the alleged breaches and the Plaintiffs’ right of forfeiture.

Defendant’s striking out arguments

The Defendant applied to strike out the entirety of the Plaintiff’s SOC on the premise that the SOC discloses no reasonable cause of action against the Defendant, is frivolous or vexatious for being legally unsustainable, and/or is otherwise an abuse of the process of the court.² For ease of addressing the Defendant’s arguments in relation to each of the alleged breaches, I adopted the brief descriptions of the breaches as set out in the Defendant’s written submissions:³ That the Defendant had alleged failed, refused and/or neglected to pay the full rent due for May 2021 to June 2021 (“Failure to Pay Full Rent Issue”); That the Defendant allegedly wrongfully deducted and withheld the sum of S$1,600 for the months of May 2021 and June 2021 (i.e. S$800 per month) (“Wrongful Deduction/Withholding Issue”); That for the period of December 2019 to September 2021, the Defendant constantly failed to pay the monthly rental of S$5,800 on the first day of every month (“Late Payment Issue”); That the Defendant allegedly failed to maintain public liability insurance policy (“Public Liability Insurance Issue”); and That the Defendant allegedly failed to obtain the Plaintiffs’ written consent prior to making any alterations and/or additions to the Premises (“Renovation Issue”).

Apart from the submissions made in relation to each alleged breach, the Defendant also argued that the purported Notice of Termination was invalid for failing to comply with the requirements set out in s 18(1) of the Conveyancing and Law of Property Act (“CLPA”), which is reproduced below for reference: 18.—(1) A right of re-entry or forfeiture under any provision or stipulation in a lease, for a breach of any covenant or condition in a lease, shall not be enforceable, by action or otherwise, unless the lessor serves on the lessee a notice specifying the particular breach complained of and, if the breach is capable...