Rosemawati bte Rafdi v Buang bin Ani and others

• Jurisdiction: Singapore
• Judge: Audrey Lim JC
• Judgment Date: 10 October 2016
• Neutral Citation: [2016] SGHC 223
• Docket Number: Suit No 858 of 2012 (Summonses Nos 4955 of 2015 and 2169 of 2016)
• Date: 10 October 2016
• Published date: 14 October 2016
• Plaintiff Counsel: Lee Ming Hui (WNLEX LLC)
• Defendant Counsel: Rajan Nair (Rajan Nair & Partners),Kishan Pratap (Ho Wong Law Practice LLC)
• Court: High Court (Singapore)
• Hearing Date: 09 September 2016,17 August 2016
• Subject Matter: Amendments,Civil Procedure,Judgments

Audrey Lim JC: Introduction

Summons No 4955 of 2015 (“SUM 4955”) and Summons No 2169 (“SUM 2169”) were, in essence, an application by the plaintiff to vary a consent judgment entered into by the parties on 19 April 2013 (“the Consent Judgment”) in respect of the main suit, Suit 858 of 2012 (“the Suit”). I dismissed the application after hearing the parties. Dissatisfied with my decision, the plaintiff has appealed. I now provide my detailed grounds of decision beginning with an outline of the Suit based on the pleadings and affidavits filed.

Background

The Suit concerned the sale and purchase of a Housing and Development Board flat (“the Flat”). The defendants are the joint owners of the Flat. They obtained possession of the Flat from the Housing and Development Board (“HDB”) on or about 1 August 1999. The first and second defendants are husband and wife, respectively, and the third defendant is their daughter.

The statement of claim

According to the plaintiff, sometime in July 2000, the first and second defendants agreed to sell the Flat to the plaintiff for $300,000, at a date to be fixed in the future. It was also agreed that in the meantime, the plaintiff and her family would move into the Flat around January 2001. The first and second defendants further agreed not to sell the Flat to anyone else for 13 years. Pending the transfer of the Flat to the plaintiff, the plaintiff would be responsible for all housing loan instalments and would make some payments of the purchase price of the Flat to the first and/or second defendants. Any payments made by the plaintiff to the first and/or second defendants or towards the housing loan instalments would be deducted from the purchase price to be paid when the Flat was transferred. The agreement was partly oral and partly in writing, and included an agreement signed by the first defendant and a blank Option to Purchase signed in escrow by the first and second defendants.

Sometime in January 2001, the plaintiff moved into the Flat with her family. The plaintiff also made various part payments to the first and second defendants. In addition, she bore various expenses in relation to the Flat, including paying for the housing loan instalments for approximately 12 years from 2000 to 2012, and made substantial improvements and renovations to the Flat. According to the plaintiff, all these payments amounted to $238,352.60.

However, the first and second defendants did not effect the sale of the Flat to the Plaintiff and instead demanded in 2012 that the plaintiff vacate the Flat. The plaintiff subsequently discovered that the third defendant was also a joint owner of the Flat. The plaintiff thus sued the defendants, essentially for specific performance of the agreement or, alternatively, in the event that the Flat was not or could not be transferred, for the return of the sum of $238,352.60.

The defence

The defendants stated that they occupied the Flat soon after they took possession of it but the third defendant moved out upon her marriage in February 2000. The first and second defendants continued to stay in the Flat until around July 2000. As they could not afford the monthly housing loan instalments, they allowed the plaintiff and her mother (“Mdm Rukaiah”) to occupy the Flat as the plaintiff and Mdm Rukaiah had offered to pay for the monthly instalments and all outgoings of the Flat. Subsequently, Mdm Rukaiah offered to purchase the Flat for $288,000, in the plaintiff’s name. The first defendant accepted this offer in the mistaken belief that the defendants had purchased the Flat for that sum. While the first defendant signed an agreement that was in English, he claimed that he could not read and understand it.

The second defendant claimed that she left all matters concerning the Flat to the first defendant, whilst the third defendant did not concern herself with the Flat after she moved out. Accordingly, the second defendant denied entering into any agreement to sell the Flat. The first and second defendants also denied signing an Option to Purchase. Even if they did sign such a document, they claimed that they did not understand what they were signing. The defendants further stated that the plaintiff at all times knew that the third defendant was a joint owner of the Flat.

In a nutshell, the defendants denied that there was a valid or binding agreement for the sale and purchase of the Flat. In any event, such an agreement contravened the Housing and Development Act (Cap 129, 2004 Rev Ed) (“HDB Act”). Even if the plaintiff were entitled to the sum of $238,352.60 or any other sum, such sum should be set off by the benefit that the plaintiff and her family members obtained by possessing and occupying the Flat.

The Consent Judgment and subsequent events

On 19 April 2013, the parties reached a settlement in respect of the Suit and recorded the Consent Judgment before an Assistant Registrar as follows: 1. [The Flat] shall be transferred to the plaintiff upon full refund, with accrued interest, of all CPF monies utilised by the defendants towards the purchase of the Property. 2. The plaintiff shall bear the outstanding mortgage loan and any other arrears, penalties, interests or outstanding payments due to HDB and/or Town Council. The plaintiff shall also bear the costs and expenses of the transfer. 3. The above transfer shall be completed within 6 months of the date of the Order of Court herein, failing which [the Flat] shall be sold in the open market within 4 months thereafter and the net proceeds of sale, after redemption of the outstanding mortgage loan and other arrears, penalties, interests or outstanding payments due to HDB and/or Town Council, shall be paid to the plaintiff. The plaintiff shall bear the costs and expenses of the sale and shall have sole conduct of the sale. 4. Upon the transfer or sale of [the Flat], the 1st defendant shall pay the sum of S$40,000.00 to the plaintiff in monthly instalments of S$500.00 per month commencing on 01stJanuary 2014 and on the 1st day of each successive month until the full outstanding sum is paid. In default of payment of any of the aforesaid instalments, the 1st defendant shall be immediately liable for the sum outstanding. 5. The above shall be in full and final settlement of all claims between the parties. 6. Each party shall bear their own costs.

Pursuant to the Consent Judgment, the plaintiff’s solicitors applied on 11 October 2013 to the HDB for the Flat to be transferred to the plaintiff. On 27 November 2013, the HDB stated that under the prevailing policy the transfer of an HDB flat referred to a change of ownership between family members and without monetary consideration. The plaintiff then submitted an option, dated 14 February 2014, to purchase the Flat for $240,000. After various correspondences between the HDB and the parties’ solicitors, on 3 March 2015, the HDB rejected the application for the sale and purchase of the Flat as the defendants had not fulfilled the minimum occupation period (“MOP”) of five years. Although the defendants had occupied the Flat in 1999, they vacated it in 2000 when the plaintiff moved into the Flat and continued to reside there until 2015. According to the plaintiff, she vacated the Flat on 12 August 2015. The HDB also demanded that the first and second defendants resume occupation of the Flat and the third defendant effect a transfer of her interest in the Flat to the first and second defendants as she was then an authorised occupier of her husband’s flat. It appeared from the first and second defendants’ letter to the HDB that they resumed occupation of the Flat on 24 August 2015.

SUM 4955 and SUM 2169

On 9 October 2015, the plaintiff filed SUM 4955 to set aside the Consent Judgment and to have it replaced with new orders. For ease, I reproduce the orders sought by the plaintiff: (1) That the Judgment (JUD 187/2013) dated 19 April 2013 be set aside and for the following orders to be made: (a) [The Flat] shall be transferred to the plaintiff upon full refund, with accrued interest, of all CPF monies utilised by the defendants towards the purchase of the Property. (b) The plaintiff shall bear the outstanding mortgage loan and any other arrears, penalties, interests or outstanding payments due to HDB and/or Town Council. The plaintiff shall also bear the costs and expenses of the transfer. (c) The above transfer shall be completed within 6 months of the completion of [the Flat’s] Minimum Occupation Period, failing which [the Flat] shall be sold in the open market within 4 months thereafter and the net proceeds of sale, after redemption of the outstanding mortgage loan and other arrears, penalties, interests or outstanding payments due to HDB and/or Town Council, shall be paid to the plaintiff. The plaintiff shall bear the costs and expenses of the sale and shall have sole conduct of the sale. The defendants shall not sell or transfer [the Flat] to any other parties except as set out in this order. (d) Upon the transfer or sale of [the Flat], the 1st defendant shall pay the sum of S$40,000.00 to the plaintiff in monthly instalments of S$500.00 per month commencing on 01st January 2020 and on the 1st day of each successive month until the full outstanding sum is paid. In default of payment of any of the aforesaid instalments, the 1st defendant shall be immediately liable for the sum outstanding. (e) The terms of this order of court shall be made known to and be binding on the respective successors, assigns, licensees, affiliates of the defendants including any person or relative who inherits and/or purchases [the Flat]. This order of court shall enure to the benefit of the successors in title, assigns, licensees, sub-licensees of the plaintiff. (f) That parties shall have liberty to apply. (g) Each party shall bear their own costs.

[emphasis added]

The added emphasis denotes the parts...