Reshty v Syed Ahmed Al-Junied and Others

• Jurisdiction: Singapore
• Judgment Date: 06 April 1966
• Date: 06 April 1966
• Docket Number: Civil Appeal No 113 of 1964,Civil Appeal No 111 of 1964
• Court: Federal Court (Singapore)

Reshty

Plaintiff

and

Syed Ahmed Al-Junied and others

Defendant

[1966] SGFC 5

Thomson LP

,

Wee Chong Jin CJ

and

Tan Ah Tah FJ

Civil Appeal No 111 of 1964

Federal Court

Landlord and Tenant–Recovery of possession–Rent-controlled premises–Tenant receiving from subtenants more than 110% of rent which tenant paid landlords–Whether landlords entitled to recovery of possession of land–Sections 2 and 15 (1) (g) Control of Rent Ordinance (Cap 242, 1955 Rev Ed)–Landlord and Tenant–Termination of leases–Rent-controlled premises–Claim for mesne profits–Acceptance of rent after expiry of notice to quit–Whether acceptance of rent amounted to waiver of right to treat tenant as trespasser–Landlord and Tenant–Termination of leases–Rent-controlled premises–Claim for mesne profits–Whether tenant holding over after determination of tenancy but prior to order of possession a statutory tenant or a trespasser–Section 27 (a) Control of Rent Ordinance (Cap 242, 1955 Rev Ed)

The landlords leased certain lands to the tenant. It was not disputed that the lands fell within the definition of “premises” in s 2 of the Control of Rent Ordinance (Cap 242, 1955 Rev Ed) (“the Ordinance”). The landlords and the tenant also agreed to increases in rents above the standard rent, without any prior sanction of the Rent Conciliation Board, contrary to s 3 of the Ordinance. The tenant sublet the lands, and received rents in excess of 110% of the rent the tenant paid to the landlords. The landlords claimed for the recovery of possession of the lands from the tenant and for mesne profits. The landlords contended that s 15 (1) (g) of the Ordinance enabled them to recover possession of controlled premises as the tenant had been receiving from the subtenants more than 110% of the rent which the tenant paid to the landlords. The landlords accepted rents tendered after the expiry of the notice to quit. The trial judge ordered the recovery of possession. He held that on the expiry of the notice to quit, the tenant became a trespasser. The landlords were entitled to recover as mesne profits the damages they had suffered through being out of possession of the land from the date of the expiry of the notice to quit up to the date of the judgment.

The tenant appealed against the trial judge's decision. In respect of the landlords' claim for the recovery of possession, the tenant argued that “premises” in s 15 (1) (g) should be given a more limited definition than in s 2 of the Ordinance. “Premises” applied to the subletting of a building by the tenant, of which a part is retained by the tenant for his own use. It did not apply to the subletting of small portions of vacant lands on which temporary structures were erected. Also, the landlords were not entitled to rely on s 15 (1) (g)as there was contravention of s 3 of the Ordinance. As for the claim for mesne profits, the tenant argued that the landlords' qualified acceptance of rents after the expiry of the notice to quit amounted to waiver of their right to treat the tenant as a trespasser. Further, it was contended that the tenant did not become a trespasser until an order of court granting immediate possession to the landlords was made because s 27 (a) of the Ordinance enabled a tenant on the expiry of a notice to quit to hold over as a statutory tenant or as someone who was not a trespasser until a court had decided against him in an action for possession.

Held, allowing the appeal in part:

(1) The mischief the Legislature intended to prevent by s 15 (1) (g)of the Ordinance was to withdraw the protection given by the Ordinance to all tenants of controlled premises from those tenants who under cover of this protection, by subletting the whole or parts of the premises, made a profit at the expense of the landlord. It did not matter whether the “premises” was a building or land on which a building or buildings have been erected. So long as it could be proved that a tenant of “premises” as defined by s 2 of the Ordinance received rents from subtenants in excess of the amount permitted by s 15 (1) (g), an order for recovery of possession could be made: at [8].

(2) The increases in rent in contravention of s 3 of the Ordinance were freely negotiated. The landlords were entitled to rely on s 15 (1) (g)of the Ordinance: at [9].

(3) The question of quo animo the rent was accepted was relevant in relation to such acceptance after the expiry of notice. The landlords by their qualified acceptance of the rent after the expiry of the notice to quit never intended to create a fresh tenancy or to waive their right of suing the tenant as a trespasser on the land. No question of waiver arose on the qualified acceptance of rent: at [13].

(4) Until the trial judge made an order for possession against the tenant, the latter was not a trespasser. The definition of a statutory tenant under s 27 (a) of the Ordinance should be construed to include a tenant who held over until a court subsequently decided that the landlord was entitled to an order for possession under one of the grounds specified in s 15 (1) of the Ordinance. Accordingly, the order for recovery of mesne profits against the tenant would be set aside: at [21], [22] and [24].

Cruise v Terrel [1922] 1 KB 664 (refd)

Ida Fernandez v M Murugiah [1950] MLJ 83 (folld)

K S Mohamed Ismail v Choo Pin [1954] MLJ 183 (not folld)

Matthews v Smallwood [1910] 1 Ch 777 (refd)

Ramasamy Pillai v Meyappa Chettiar [1955] MLJ 105 (folld)

Remon v City of London Real Property Co [1921] KB 54 (refd)

Segal Securities Ltd v Thoseby [1963] 1 QB 887 (refd)

Tan Khio Soei v Ban Hin Lee Bank Ltd [1964] MLJ 71 (folld)

Control of Rent Ordinance (Cap 242, 1955 Rev Ed) ss 2, 15 (1), 15 (1) (g), 27 (a) (consd)

Increase of Rent and Mortgage Interest (Restriction) Act 1920 (c 17) (UK) s 15 (1)

J Grimberg (Drew & Napier) for the appellant

C L Duff (Donaldson & Burkinshaw) for the respondents.

Wee Chong Jin CJ

(delivering the judgment of the court):

1 This appeal arises out of a claim by the respondents, as trustees under the will of Syed Ahmed bin Abdulrahman Alsagoff, deceased, for the recovery of possession of certain lands comprising an area of some 550 acres on which were erected with the assent of the respondents over 2,000 temporary buildings by persons to whom small portions of the land were sublet as vacant land by the appellant. There was also a claim for mesne profits.

2 Both...