Re Tan Tye (Deceased)

CourtFederal Court (Singapore)
Judgment Date22 March 1966
Docket NumberCivil Appeal No Y6 of 1965
Date22 March 1966
Re Tan Tye, deceased
Tan Lian Chye
British & Malayan Trustees Ltd

[1966] SGFC 4

Tan Ah Tah FJ


F A Chua J


A V Winslow J

Civil Appeal No Y6 of 1965

Federal Court

Land–Interest in land–Licences–Covenants affecting exclusive possession and termination of grant–Parties showed intention that agreement a licence–Profit obtained from land use–Whether exclusive possession granted–Whether licence or lease–Land–Interest in land–Profits à prendre–Licensee having right to charge and collect fees in respect of land and premises–Whether profit à prendre

In earlier proceedings, it had been held that the trustees of an estate had no power to grant a lease over property which was part of the estate, but could grant a licence subject to the approval of the Court. An agreement was entered between the trustees and a third party for the property. The trustees argued, and it was accepted at first instance, that this agreement was a licence.

The appellant, representing himself and the majority of the income beneficiaries, argued that the agreement constituted a lease, which should not be approved. Though the agreement referred to the parties as “licensor” and “licensee”, the appellant contended that the agreement was in fact a lease. Firstly, the licensee under the agreement had exclusive possession until the expiration of the agreement. Secondly, the licensee acquired an interest in land because he had a profit à prendre. Thirdly, the language of the licence showed that it was in substance and effect a lease.

Held, dismissing the appeal:

(1) The mere grant of exclusive possession did not necessarily convert the grantee into a tenant. While the fact of his being let into exclusive possession was prima facie evidence of an intention to create a tenancy, this could be negatived. Further, the relationship between the parties was determined by the law and not by the label which parties to a contract chose to put on it: at [13] and [14].

(2) The agreement contained covenants which showed that the licensee was never intended to have exclusive possession of the said land and premises, and also strongly indicated that the control and supervision of the land and premises remained in the trustees as licensor and no one else. Furthermore, cl 5 of the agreement which stated that the licence would determine on the death or bankruptcy of the licensee, clearly distinguished it from a lease as such a provision was not only inconsistent with but was repugnant to a lease or tenancy: at [16], [19] and [20].

(3) There was no profit à prendre conferred on the licensee. The right to collect fees did not fall within any of the known categories of profits à prendre as no right to take anything out of the said land was given. Moreover, no exclusive possession of the said land and premises was conferred: at [25] and [26].

(4) As the licensee had categorically affirmed that the agreement constituted a mere licence and not a tenancy in his favour, and had consented to the trustees' application for approval of the agreement by the court, this disclosed the clear intention of the parties. It would be wrong for the court to extract from the grantor an estate or interest in land in the teeth of such intention: at [28] and [29].

Clore v Theatrical Properties Ltd [1936] 3 All ER 483 (refd)

Cobb v Lane [1952] 1 All ER 1199; [1952] 1 TLR 1037 (folld)

Errington v Errington [1952] 1 KB 290 (folld)

Facchini v Bryson [1952] 1 TLR 1386 (folld)

Frank Warr and Co v London County Council [1904] 1 KB 713 (refd)

R v Morrish (1863) 32 LJMC 245 (folld)

Roads v Overseers of Trumpington (1870) LR 6 QB 63 (refd)

Smith v Lambeth Assessment Committee (1882) 10 QBD 327 (refd)

Phillip Hoalim Sr (Phillip Hoalim & Co) for the appellant

N A Mallal and Y R Jumabhoy (Mallal & Namazie) for the respondent.

A V Winslow J

(delivering the judgment of the court):

1 This is an appeal against the oral judgment of Buttrose J delivered on 7 October 1965 in which he held that an agreement dated 12 August 1965 between the respondents of the one part and one Goh Eng Wah of the other (“the agreement”) constituted a licence personal to the said Goh Eng Wah and did not create a lease for five years of the land and premises referred to therein.

2 The appellant is one of the beneficiaries of the estate of Tan Tye deceased and represents both himself and the majority of the income beneficiaries of the said estate of which the respondents are the present trustees in whom the said land and premises are vested. The latter form part of a larger terrain of apparent felicity known formerly as the Happy World and now as the Gay World Amusement Park. Five buildings in the park, including buildings housing the Happy Cabaret, Tai Thong Restaurant and a number of cinemas, have been excepted from the purview of the agreement and with these, therefore, I am not concerned.

3 It is common ground that, earlier in 1965, Buttrose J held that the trustees had no power to grant a lease of the Gay World Amusement Park and indicated that the trustees might...

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