Poh Choon Kia and another v Lim Hoe Heng and another

JurisdictionSingapore
JudgeTay Yong Kwang J
Judgment Date26 April 2012
Neutral Citation[2012] SGHC 88
Docket NumberOriginating Summons No 767 of 2011
Date26 April 2012
Published date07 May 2012
Year2012
Plaintiff CounselA. Thamilselvan (Subra TT Law LLC)
Citation[2012] SGHC 88
Defendant CounselNirmal Singh (S K Kumar Law Practice LLP),Jimmy Yap (Jimmy Yap & Co)
CourtHigh Court (Singapore)
Subject Matterwrongful lodgment,damages,specific performance,caveats,Land,Contract,remedies
Tay Yong Kwang J: Introduction

This dispute concerns the sale of a Housing Development Board (“HDB”) maisonette at Block 121 Potong Pasir Avenue 1 #11-273 Singapore 350121 (“the flat”) by the first defendant to the plaintiffs. The second defendant, a Chinese national, is the wife of the first defendant. In this originating summons, the plaintiffs seek an order for specific performance of the option to purchase against the first defendant. The plaintiffs also seek late completion interest and damages and other consequential orders. In respect of the second defendant, the plaintiffs seek an order for her to withdraw her caveat lodged against the flat within five days of the order by the court.

At the first hearing on 24 November 2011, the defendants were separately represented by solicitors. However, the solicitor for the second defendant was not able to obtain instructions from the second defendant who was not in Singapore. After hearing arguments by the parties that day, I granted the orders sought by the plaintiffs and directed that the sale be completed within three months from the date of the order. I awarded late completion interest but did not award any damages to the plaintiffs as they were unable to prove that they had suffered such. I ordered the second defendant to withdraw her caveat within two weeks from the date of the order and made certain consequential orders as between the first and the second defendants as they were in the midst of their matrimonial dispute. I also ordered costs of $7,000 (which included disbursements) against the defendants for this originating summons and the plaintiffs’ application for leave to commence legal proceedings against the first defendant because of his bankruptcy.

At the first defendant’s request, I heard further arguments on 6 February 2012 on the issue of the late completion interest. The second defendant’s newly instructed solicitors (M/s Goh JP & Wong) were unable to attend this further hearing but agreed to abide by whatever order the court made. The first defendant was not able to persuade me to change my decision on the issue canvassed. As the plaintiffs’ solicitors were willing to waive costs for the further arguments, no order on costs was made.

On 2 March 2012, the first defendant filed an appeal against my decision relating to the issues of the late completion interest and the costs of the proceedings.

The facts

The second plaintiff, a divorcee, filed two affidavits. Both plaintiffs are housing agents. They had planned to get married on 13 November 2011 and therefore started looking for a matrimonial home sometime in December 2010.

In January 2011, they went to view the flat. The first defendant is the registered sole owner of the flat while the second defendant was the registered occupier. After negotiation with the first defendant, a purchase price of $645,000 was agreed. Subsequently, they found out about the first defendant’s bankruptcy and wondered whether they could purchase the flat from him.

On 14 January 2011, the plaintiffs and the first defendant went to the HDB branch office in Toa Payoh. There, a HDB officer told them that the first defendant was in arrears on the loan owing to the HDB and that he had to sell the flat in the open market or surrender it to the HDB. The officer also told the plaintiffs that they were eligible to purchase the flat. The first defendant then said he could get the second defendant’s consent to sell the flat.

An option to purchase the flat was given by the first defendant on 15 January 2011. The plaintiffs proceeded to obtain a bank loan to purchase the flat. On 21 January 2011, they exercised the option. The relevant clauses of the option are as follows: In this Option –

...

“Completion Date” means the date on which completion of the sale and purchase of the Flat is to take place in accordance with Clause 12;

...

The Seller sells to the Buyer, free from all encumbrances, the remaining leasehold interest in the Flat at the Purchase Price.

The Flat is sold subject to – the Housing and Development Act (Cap 129) and any rules and regulations made under the Act; the terms and conditions of resale and purchase of an HDB resale flat as prescribed by the HDB from time to time; the policies of the HDB in force from time to time; the terms and conditions of this Option; the conditions in the Law Society Conditions which- apply to a sale by private contract; and are not varied by or inconsistent with the terms and conditions in this Option; and

...

The Seller and Buyer will within 30 calendar days from the date of exercise of this Option, jointly apply to the HDB for its approval for the sale and purchase of the Flat. Completion Date Unless extended by the HDB, the Completion Date will be within 8 weeks from the date of the HDB’s first appointment with the Seller and Buyer for the sale and purchase of the Flat.

...

The Seller must carry out such acts and sign such documents as the HDB or the Buyer’s solicitor may direct to discharge any existing mortgage, charge, third party caveat or other encumbrance with respect to the Flat on or before completion.

The Seller agrees to take such steps as the Buyer may reasonably request to help the Buyer obtain the HDB’s approval for the purchase of the Flat.

...

Non-approval of sale and purchase If the HDB’s approval for the sale and purchase of the Flat is not obtained, is refused or is revoked before the Completion Date and it is not due to the Seller’s or Buyer’s default in complying with the HDB’s terms of resale or requirements – the sale and purchase will be cancelled; this Option will be rescinded and become null and void and of no further effect; the Seller will immediately, without demand, refund to the Buyer the Option Fee, Option Exercise Fee and any other monies paid by the Buyer to the Seller, without any interest or deduction; each party will bear his own costs in the matter; and neither party will have any other claim against the other. If the HDB’s approval for the sale and purchase of the Flat is withheld, refused, revoked or not obtained before the Completion Date and it is due to the Seller’s or Buyer’s default in complying with the HDB’s terms of resale or requirements, the other party will be entitled to enforce the terms of this Option for specific performance, damages and/or any other remedy.

The Flat is sold with vacant possession on completion.

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On the Completion Date, the Seller must give to the Buyer – vacant possession of the Flat; and the keys to the Flat.

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Completion of the sale and purchase of the Flat will take place on the Completion Date in accordance with this Clause. If the HDB so requires, the sale and purchase of the Flat will be completed at its office and at such time fixed by the HDB.

The relevant conditions from the Law Society’s Conditions of Sale 1999 (“LSCS”), referred to in Clause 9.3(e) of the option above, are as follows: Interest Payable by Vendor If – the sale is not completed on or before the date fixed for completion; and the delay in completion is due solely to the default of the Vendor,

he must pay interest (as liquidated damages) commencing on the day following the date fixed for completion up to and including the day of actual completion. Interest will be calculated on the purchase price at 10% per annum.

No Interest Payable

No interest (as liquidated damages) will be payable if the delay in completion is due to some cause other than the default of the Vendor or the Purchaser or to the default of both the Vendor and the Purchaser.

Notice to Complete This Condition applies in every case except where the Special Conditions provide that time is to be of the essence of the contract concerning the date fixed for completion. A notice to complete means a notice in writing requiring completion of the contract in accordance with this Condition. If the sale is not completed on the date fixed for completion, either party may give to the other party a notice to complete. The notice to complete may be given on the date fixed for completion or at any time after that date, unless the contract has already been rescinded or become void. Upon service of an effective notice, parties must complete the transaction within 21 days after the day of service of the notice (excluding the day of service) and time will be of the essence of the contract.

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No interest (as liquidated damages) will be payable if the delay in completion is due to some cause other than the default of the Vendor or the Purchaser or to the default of both the Vendor and the Purchaser.

If the Vendor does not comply with the terms of an effective notice served by the Purchaser under this Condition, then the Purchaser may elect either –

to enforce against the Vendor such rights and remedies as may be available to the Purchaser in law or in equity without any other notice under the contract; or to give a written notice to the Vendor to repay immediately to the Purchaser any deposit and any money paid on account of the purchase price. This is without prejudice to the Purchaser’s rights to damages.

Subsequently, the HDB fixed the first appointment for the sale and purchase of the flat on 25 February 2011. That day, the HDB scheduled the completion to take place on 8 April 2011. A letter from the HDB dated 25 Feb 2011 was sent after the meeting stating the...

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2 cases
  • Lim Hoe Heng v Poh Choon Kia
    • Singapore
    • Court of Appeal (Singapore)
    • 18 October 2012
    ...and costs. The Judge's grounds of decision 19 On 26 April 2012, the Judge issued his grounds of decision in Poh Choon Kia v Lim Hoe Heng [2012] 3 SLR 268 (‘the GD’). The Judge found that the date for completion of the sale was 8 April 2011, as stated in the February Letter. In his view, thi......
  • Lim Hoe Heng v Poh Choon Kia and another
    • Singapore
    • Court of Appeal (Singapore)
    • 18 October 2012
    ...Grounds of Decision On 26 April 2012, the Judge issued his grounds of decision in Poh Choon Kia and another v Lim Hoe Heng and another [2012] 3 SLR 268 (“the GD”). The Judge found that the date for completion of the sale was 8 April 2011, as stated in the February Letter. In his view, this ......
1 books & journal articles
  • Land Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 December 2012
    ...even if they were entitled to make the claim as beneficiaries of the Estate on behalf of the Estate. 20.53 Poh Choon Kia v Lim Hoe Heng[2012] 3 SLR 268 was concerned with the legality of a caveat lodged by the second defendant, among others. The plaintiffs had exercised an option to purchas......

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