Peter Low LLC v Higgins, Danial Patrick

• Jurisdiction: Singapore
• Judge: Pang Khang Chau JC
• Judgment Date: 16 March 2018
• Neutral Citation: [2018] SGHC 59
• Plaintiff Counsel: Tang Hang Wu (TSMP Law Corporation) (instructed), Mannar Rajkumar (Peter Low & Choo LLC)
• Date: 16 March 2018
• Docket Number: Suit No 194 of 2017 (Registrar’s Appeal No 327 of 2017)
• Hearing Date: 04 December 2017,05 February 2018
• Subject Matter: Civil procedure,Writs of seizure and sale,Judgments and orders,Enforcement,Joint tenancy
• Year: 2018
• Defendant Counsel: Quek Ling Yi (Dentons Rodyk & Davidson LLP) as amicus curiae.,Defendant/respondent unrepresented and absent
• Court: High Court (Singapore)
• Citation: [2018] SGHC 59
• Published date: 18 September 2018

Pang Khang Chau JC: Introduction

Registrar’s Appeal No 327 of 2017 is the Plaintiff’s appeal against Peter Low LLC v Higgins, Danial Patrick [2017] SGHCR 18, in which the learned assistant registrar (“the AR”) dismissed High Court Summons No 4476 of 2017 (“SUM 4476/2017”) and declined to attach the Defendant’s interest as a joint tenant in an immovable property (“the Property”) in the execution of a judgment debt.

In arriving the decision below, the AR considered himself bound by 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”) to hold that a joint tenant’s interest in immovable property is not exigible to a writ of seizure and sale (“WSS”). This was despite the decision in Chan Shwe Ching v Leong Lai Yee [2015] 5 SLR 295 (“Chan Shwe Ching”) which took a contrary position. The AR reasoned that since Chan Shwe Ching and Chan Lung Kien concerned the same WSS, Chan Shwe Ching ceased to have precedential force once the ex parte order granted in Chan Shwe Ching was set aside inter partes in Chan Lung Kien.

Before me, the Plaintiff submitted that I am not bound by any of these authorities, and urged me to grant its application for a WSS against the Defendant’s interest as a joint tenant in the Property. The Plaintiff instructed Dr Tang Hang Wu, one of the co-authors of Tan, Tang and Low, Tan Sook Yee’s Principles of Singapore Law Land (LexisNexis, 3rd ed, 2009) (“Principles of Singapore Land Law”). Given the complexity of the issue and the Defendant’s failure to enter an appearance in these proceedings, I decided to appoint a young amicus curiae to assist the court. I am grateful to Ms Quek Ling Yi for agreeing to take up this appointment. I also invited the mortgagee of the Property, Malayan Banking Bhd, to make submissions, but they decided not to participate in these proceedings.

For reasons which I will elaborate on, I agree with Dr Tang that a joint tenant’s interest in immovable property is exigible to a WSS under the statutory framework applicable in Singapore. Consequently, the appeal is allowed.

Background facts

The Defendant is an Irish citizen while his wife is a Singapore citizen. The Property is a residential unit in a condominium development in Singapore, held by the Defendant and his wife as joint tenants. The Property is held subject to a charge by the Central Provident Fund Board, and a mortgage by Malayan Banking Bhd. The Defendant’s wife is not a party to these proceedings.

The Plaintiff was the law firm representing the Defendant in two High Court suits (“the Suits”), vide, HC/S 244 of 2013 (“Suit 244”) and HC/S 733 of 2014 (“Suit 733”). Judgment in the Suits was rendered on 26 September 2016 and reported as Higgins, Danial Patrick v Mulacek, Philippe Emanuel and others and another suit [2016] 5 SLR 848 (“the Suit 733 Judgment”). On 24 October 2016, the Plaintiff ceased acting as the Defendant’s solicitors in the Suits. On 2 March 2017, the Plaintiff commenced the present proceedings against the Defendant for unpaid legal fees. On 9 June 2017, the Plaintiff obtained judgment in default of appearance against the Defendant for $394,254.14 plus interest and costs (“the Judgment Sum”).

In the meantime, the plaintiff in Suit 733 (“the Suit 733 Plaintiff”), upon discovering that the Defendant (who was the defendant in Suit 733) and his wife were attempting to sell the Property, applied for and obtained an order attaching the Defendant’s interest in the Property to satisfy the Suit 733 Judgment. The order was registered with the Registry of Titles pursuant to O 47 r 4(1)(a) Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) on 19 April 2017. On the same day, the Suit 733 Plaintiff filed a WSS in respect of the Defendant’s interest in the Property pursuant to O 47 r 4(1)(e)(i). The foregoing took place during the period between 10 July 2015, when the High Court in Chan Shwe Ching held that a joint tenant’s interest in land was exigible to a WSS, and 10 July 2017, when a different Judge of the High Court held to the contrary in Chan Lung Kien.

When the sheriff served the WSS at the Property on 4 May 2017 pursuant to O 47 r 4(1)(e)(iii) of the ROC, the Property was found to be tenanted and neither the Defendant nor his wife was residing there. In letters written by the Defendant and his wife to the sheriff in June 2017, they claimed that they were both residing in Ireland. To date, the WSS obtained by the Suit 733 Plaintiff against the Defendant’s interest in the Property remains in force and no attempt has been made by the Defendant or his wife to set it aside.

On 27 September 2017, the Plaintiff applied for an order attaching the Defendant’s interest in the Property to satisfy the Judgment Sum. This application was dismissed by the AR on 8 November 2017. The Plaintiff appealed.

The issue to be determined

The sole issue to be determined in this appeal is whether a judgment for the payment of money can be enforced by way of a WSS against the judgment debtor’s interest in immovable property which is held under a joint tenancy. I will examine this issue by first setting out a historical overview of the processes by which money judgments have been enforced against immovable property, followed by a survey of the positions in other Commonwealth jurisdictions, and then turning to consider what the legal position in Singapore is and ought to be.

For present purposes, the terms “immovable property” and “land” are used interchangeably as nothing turns on the distinction.

Historical overview Execution of money judgment against land in medieval England

In England, prior to the enactment of the Statute of Westminster II (13 Edward 1, c 24) (UK) (“Statute of Westminster II”) in 1285, execution of a money judgment could be levied against the land of a judgment debtor only through the writ of levari facias. This writ allowed the sheriff to receive the rents and profits derived from the judgment debtor’s land until the judgment debt was satisfied, but it did not allow the sheriff to seize possession of the land. (See William Blackstone, Commentaries on the Laws of England, Vol 3 (A Strahan, 15th Ed, 1809) (“Blackstone’s Commentaries (Vol 3)”) at p 417).

In 1285, the Statute of Westminster II created the writ of elegit, under which a judgment creditor could take possession of half of the judgment debtor’s freehold land. Thereupon, the judgment creditor became a tenant by elegit of the land taken until judgment debt was paid off from the rents and profits derived from the relevant half of the land. The writ of elegit, however, did not allow the judgment creditor to sell the land to satisfy the judgment debt. (See Blackstone’s Commentaries (Vol 3) at pp 418–419; William Holdsworth, A History of English Law, Vol 3 (Methuen & Co Ltd; Sweet and Maxwell, 5th Ed, 1942) (“A History of English Law (Vol 3)”) at p 131).

Until this aspect of the law was changed in the mid-19th century, execution by writ of elegit was available against all freehold land belonging to the judgment debtor as at the date of the judgment, even if the land had been sold by the judgment debtor after judgment. Thus, a money judgment, once issued, became a general lien or charge on the land of the judgment debtor. (See Blackstone’s Commentaries (Vol 3) at p 418; A History of English Law (Vol 3) at p 132; William Holdsworth, A History of English Law, Vol 15 (Methuen & Co Ltd; Sweet and Maxwell, 5th Ed, 1942) Vol 15 (1965) at p 114.)

English law allowed execution by writ of elegit against interest of joint tenant

In 1607, Sir Edward Coke, who was then the Chief Justice of Common Pleas, published the sixth part of his law reports, viz, the Coke’s Reports, in which was collected Lord Abergavenny’s case (1607) 6 Co Rep 78b; 77 ER 373 (“Lord Abergavenny’s case”). This case concerned the execution of a writ of elegit on the interest of a joint tenant in land. The land in question was held by two sisters Margaret Pool and Frances Pool as joint tenants for life. Judgment was obtained by the plaintiff against Margaret in 1592. On 24 May 1595, Margaret released all her estate and right in the said land to Frances. As a result, Margaret ceased to be a joint tenant and Frances became the sole tenant for life of the land. On 27 June 1595, the plaintiff sought execution of the judgment by a writ of elegit. It was held that:

When judgment is given against Margaret one of the joint-tenants for life, in an action of debt, and afterwards she releases to her joint-tenant before execution, although Frances to whom the release is made between them, is now in by the lessor, and not by the said Margaret, yet as to the plaintiff who has judgment in the action of debt (by which the moiety of Margaret was charged to his execution) she by her own act shall not defeat the plaintiff of his execution, but as to him the estate of Margaret hath continuance in law, although in truth Frances for the release made, had but an estate for her own life: but if Margaret had died before execution, the survivor should hold it discharged of any execution to be sued against her.

[original emphasis in italics; emphasis added in bold italics]

Lord Abergavenny’s case stood for the following propositions: A judgment gave rise to a lien or charge over a debtor-joint tenant’s interest in land (see the phrase “by which the moiety of Margaret was charged to the execution” in the judgment), in the same way that it would over any debtor-landowner’s interest in land (see [14] above for the reason for this lien or charge). Just as this lien or charge could not be defeated by a debtor-landowner selling his land (see [14] above), it also could not be defeated by a debtor-joint tenant releasing his interest in the land to the other joint tenant. Therefore, even after such release, the judgment creditor would be entitled to proceed with...