Pedac Holdings (S) Pte Ltd v First Noodle Shop Pte Ltd

• Jurisdiction: Singapore
• Judge: Yong Pung How J
• Judgment Date: 28 February 1990
• Neutral Citation: [1990] SGHC 11
• Docket Number: Suit No 1235 of 1989
• Date: 28 February 1990
• Published date: 19 September 2003
• Year: 1990
• Plaintiff Counsel: Harish Kumar (Chor Pee & Co)
• Citation: [1990] SGHC 11
• Defendant Counsel: P Suppiah (P Suppiah & Co)
• Court: High Court (Singapore)
• Subject Matter: Rent fixed and variable depending on sales of tenant above minimum amount,s 94(c) Evidence Act (Cap 97),Parol evidence rule,ss 91 & 92 Evidence Act 1950 [Mal],Whether minimum rent included maintenance charges,Whether extrinsic evidence showed separate oral agreement that minimum rent included maintenance charges,Rent and service charges,ss 93 & 94 Evidence Act (Cap 97),Whether extrinsic evidence showed separate oral agreement,Landlord and Tenant,Exceptions,Evidence

Cur Adv Vult

This was an appeal by the defendants to a judge-in-chambers under O 56 against the decision of a registrar ordering in favour of the plaintiffs possession and delivery up of premises, and payment of arrears of rent, mesne profits, maintenance charges, interest thereon and costs.

The plaintiffs are the owners of the premises known as 150 South Bridge Road #07-01, Fook Hai Building, Singapore 0105 (the premises). By a lease in writing dated 28 February 1988, the premises were let to the defendants for the business of a restaurant for a term of three years from I June 1988 or from the date of commencement of the defendant`s business, whichever was earlier. The rent was made up of two elements: a fixed minimum rent of $4,000 per month, and a percentage rent which was the amount by which 10% of the defendants` monthly gross sales exceeded the fixed minimum rent payable for the month. The fixed minimum rent was payable in advance on or before the first day of every month, and the percentage rent was payable after computation within 10 days of the expiration of each month. There was the usual proviso for forfeiture should any rent or part thereof remain unpaid for 14 days whether formally demanded or not.

In addition to the rent, the defendants covenanted under the lease to pay the maintenance charges for the premises levied by the management corporation of the building, which were later fixed at $6,000 per month; also to pay interest on any arrears of rent at 10% pa from the due dates to the date of payment or recovery, with such interest to be treated as arrears of rent.

The defendants having defaulted on various payments under the lease, the plaintiffs issued a writ on 28 June 1989, and followed this with a summons under O 14 r 3 claiming possession of the premises; payment of arrears of rent which as at 30 April 1989 had amounted to $103,844.43; arrears of rent for May and June 1989 and interest thereon; mesne profits from 1 July 1989; balance of maintenance charges as at 31 May 1989 amounting to $2,000 and arrears of maintenance charges from 1 June 1989 together with interest thereon. The plaintiffs` case rested simply on the written lease dated 28 February 1988. The defendants were in arrears with their payments of the rent under cl 1(1) for more than 14 days, and also the maintenance charges under cl 3(36). Consequently it was lawful for the plaintiffs as the landlord to re-enter upon the premises under cl 5(1) and to determine the tenancy.

At the first hearing of the summons before the registrar on 14 August 1989, however, the defendants were given unconditional leave to defend the action. The registrar was apparently influenced by the tortuous averments in a lengthy affidavit filed by the defendants only on 12 August 1989. Briefly, these alleged in essence that the lease did not correctly represent the terms agreed between the parties, because, in the negotiations before the execution of the lease, other collateral terms had been agreed to. In particular, the fixed minimum rent was not $4,000 per month, but was $10,000 because it included the maintenance charge of $6,000 per month. The implication of this was that it would only be over this higher threshold that the percentage rent would be calculated.

On the following day, 15 August 1989, the plaintiffs sought leave to present further arguments before the registrar`s order was perfected. At the further hearing on 8 September 1989, the plaintiffs drew attention to the provisions of ss 93 and 94 of the Evidence Act (Cap 97) which had not been considered at the earlier hearing. If they had been considered, the plaintiffs contended that the evidence of other collateral terms which the defendants sought to introduce to vary the terms of the lease would not have been admissible, and that would have led to a different order by the registrar. In the result, having reconsidered the evidence in the light of these sections of the Evidence Act (Cap 97), the registrar found that there were no triable issues, nor was there any reason why there should be a trial, and he gave judgment for the plaintiffs. Against this decision the defendants appealed to a judge- in-chambers under O 56.

Before me at the hearing of the appeal on 30 January 1990, the defendants` case was based on the three affidavits filed by the defendants` managing director, Cheng Lip Kwong, on 12 August 1989, 7 September 1989 and 25 September 1989. The averments set out the background events which preceded the execution of the lease; they also included a veritable litany of business woes, from the malfunction of the cooking equipment and the flooding of the toilets, to the problems with their Hong Kong chefs and their intentions to counterclaim in broad figures of $250,000 for improvements, $60,000 for loss of staff, and another $552,000 for financial losses which they had incurred for the 12-month period from July 1988 to June 1989 at $46,000 per month.

The real issue which could be extracted from the three affidavits, however, was set out in para 21 of the first affidavit of 12 August 1989 filed by the defendants` managing director, Cheng Lip Kwong:

The crux of the issue is as follows. The plaintiffs say that

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