Sim Lian (Newton) Pte Ltd v Gan Beng Cheng Raynes and Another

• Jurisdiction: Singapore
• Judge: Paul Tan AR
• Judgment Date: 25 May 2007
• Neutral Citation: [2007] SGHC 84
• Court: High Court (Singapore)
• Year: 2007
• Published date: 04 June 2007
• Plaintiff Counsel: Francis Goh (Central Chambers)
• Defendant Counsel: Gan Beng Cheng Raynes and Ching Siew Yin in person
• Citation: [2007] SGHC 84

25 May 2007 Judgment Reserved

Assistant Registrar Mr Paul Tan:

1 The proverbial question, “Who is my neighbour?” finds an awkward answer in the case of respondents Mr Gan Beng Cheng Raynes and his wife, Mdm Ching Siew Yin, who have found that all their neighbours have moved out of 22 Surrey Road, Singapore 307755, a condominium development otherwise known as Lincolnsvale, pursuant to an en-bloc sale to the applicant. The respondents further allege that at least a few of their neighbours who formed the sale committee did not follow due process in the collective sale of Lincolnsvale. As a result, they now turn to this court seeking that it fulfils its familiar role as Protector of the rights of minorities; to stand as a bulwark between what they claim continue to be their indefeasible and yet-undefeated proprietary rights in unit number #01-02, Lincolnsvale, and the applicant’s bulldozers.

2 As to the cardinal principle, if not constitutional imperative, that the courts must within the framework of the rule of law hold in balance the rights and interests of minorities and majorities, there can be no doubt. While this is most commonly illustrated in the context of criminal law, where for example, Choo Han Teck JC (as he then was) astutely observed in Public Prosecutor v Quek Loo Ming [2002] SGHC 171 at [3] that “the court stands between the accused and the lynch mob, not in place of it”, this anthem plays with equal force in other spheres of the law as well.

3 Whether or not it is accurate to portray the present case as simply an archetypal battle between Good and Evil is another story all together; and it is to this issue that I now turn my attention.

The background to OS 618 of 2007

4 The applicant in this case is Sim Lian (Newton) Pte Ltd (“Sim Lian”), a property developer who purchased Lincolnsvale. The respondents are, as stated above, subsidiary proprietors of unit #01-02 in Lincolnsvale.

5 Sometime prior to November 2005, the idea to put Lincolnsvale up for an en-bloc sale was hatched; and pursuant to that plan, a sale and purchase agreement dated 25 November 2005 (“the S&P Agreement”) was eventually signed between Sim Lian and the subsidiary proprietors of the lots representing not less than 80% of the share values in Lincolnsvale (hereinafter referred to as “the Vendors”).

6 Subsequently, the Strata Titles Board (“the STB”) confirmed the sale of Lincolnsvale on 22 June 2006 (“the first STB Order”) pursuant to s 84A of the Land Titles (Strata) Act (Cap 159, 1999 Rev Ed) (“the LTSA”). In this Order, it was recorded, inter alia, that:

(a) No objection to the sale of Lincolnsvale had been filed with the STB; and

(b) The STB was satisfied that the sale was in good faith taking into account the sale price, the method of distributing the sales proceeds, and the relationship of Sim Lian to any of the subsidiary proprietors;

7 Accordingly, it was ordered, inter alia, that:

(a) All the units in Lincolnsvale be sold collectively to Sim Lian in accordance with the S&P Agreement;

(b) All the subsidiary proprietors of Lincolnsvale be bound by all the terms of the S&P Agreement as if they were parties to it; and

(c) All the subsidiary proprietors of Lincolnsvale execute, sign, deliver and perfect all the necessary instruments to convey Lincolnsvale to Sim Lian.

8 Because the respondents did not obey the first STB Order, an application was brought under s 84C of the LTSA to appoint one Mr Wong Kok Seng and one Mr Tan Tze Suan to jointly deal with all matters in connection with the sale of the respondents’ unit, including the redemption of mortgages and charges, the execution of the transfer, the receipt of moneys, the settlement of encumbrances of the unit, applying for a replacement or subsidiary certificate of title, giving valid receipts thereof and paying the remaining moneys into court under s 62 of the Trustees Act (Cap 337, 2005 Rev Ed). The STB so ordered on 30 September 2006 (“the second STB Order”).

9 Consequently, the instruments necessary to effect the conveyance of the respondents’ unit were signed on behalf of the respondents by Mr Wong and Mr Tan. This included the instrument of transfer, which was dated 10 October 2006 and registered on 25 October 2006.

10 According to cl 17(1) of the terms and conditions of the Vendors’ tender dated 22 November 2005 (“the Tender”), which formed part of the S&P Agreement, all units in Lincolnsvale were to be sold with vacant possession; and that vacant possession was to be delivered not more than six months from the date of completion, which in the respondent’s case was 10 October 2006. Six months from 10 October 2006, the respondents had not delivered vacant possession of their unit and a letter of demand was issued and sent to the respondents’ unit on 13 April 2006 by registered and normal post requesting that the respondents move out by 18 April 2006. The respondents did not do so, and another letter dated 19 April 2007 and delivered by hand and/or post advised the respondents to deliver vacant possession immediately and that construction work was going to start in Lincolnsvale. Two further reminders were sent on 20 and 21 April 2007. It appears that the respondents finally replied to these letters on 22 and 23 April 2007, seeking proof of the STB Orders.

11 Sim Lian’s solicitors then took out the present application on 23 April 2007 to force the eviction of the respondents. This was served personally on the respondents, who accepted service at their unit in Lincolnsvale on 24 April 2007.

12 In the evening before the hearing before me, the respondents handed the key to their unit in Lincolnsvale under protest to the night watchman, one Mr Ganesan Rajakumaran. The handing over of the key was accompanied by a letter dated 6 May 2007, which read:

As far as the notification went, I am able to declare to any Court that I have not received a single cent over the enforced and purported sale of my subsidiary property although I am forced to vacate from it. It was only through my own diligence that I realised, but too belatedly, that some money has gone into my CPF account. If this payment to the transaction [sic], it will still be partial and huge shortfall remains.

That I am now leaving a door key to my property to your end’s watchman [sic] is done strictly and solely under severe duress and intimidation for I do not wish myself and wife to go bankrupt, guaranteed, given the project delays your end was hovering over my head and, the lack of confidence of a sympathetic court [sic].

13 Because of this letter, Sim Lian was not satisfied that the respondents’ handing over of the key to their unit to Mr Rajakumaran constituted an unqualified delivery of vacant possession. As such, Sim Lian instructed its solicitors to persist in its application in OS 618 of 2007.

14 On 7 May 2007, I heard argument for approximately two hours. Sim Lian was represented by Mr Francis Goh; while the respondents appeared in person. I should point out that the respondents had not entered appearance formally as required under O 12 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) and that according to O 13 r 4, Sim Lian would ordinarily have been entitled to judgment in default of appearance. However, given that the respondents had appeared personally and were prepared to proceed, and since any judgment obtained in default of appearance could be set aside subsequently pursuant to O 13 r 8, I allowed the respondents to present their case in the interests of both fairness and expedience.

Issues raised by the parties

Sim Lian’s case

15 Sim Lian’s position is relatively straightforward: due process having been followed, it is contractually entitled to the delivery of vacant possession of all the units in Lincolnsvale. Accordingly, the court should allow its application under O 81 of the Rules and order that the respondents hand over possession of their unit immediately.

16 Specifically, it was argued by Mr Goh that Sim Lian may rely on the face of the first STB Order confirming the legitimacy of its purchase of Lincolnsvale; and the second STB Order, which appointed Mr Tan and Mr Wong to execute the conveyance of the respondents’ unit to Sim Lian when the respondents refused to do so. Once Mr Tan and Mr Wong had effected the transfer on 10 October 2006, time started running for the respondents to deliver vacant possession.

17 Mr Goh also suggested that the true objection of the respondents, as evidenced in their letter dated 6 May 2007 (see [12] above), appears to be that they have not received their share of the sale proceeds. In this regard, Mr Goh noted that the respondents have received some of the moneys. The balance has been paid into court, although 5% of the sale proceeds continue to be withheld by the Vendors’ solicitors, and will be released only after vacant possession is delivered as provided for in cl 17(1) of the Tender. Furthermore, since it is the Vendors’ solicitors who are in charge of disbursing the sale proceeds, any failure on their part to release the respondents’ share of the sale proceeds do not concern Sim Lian.

18 At the conclusion of the hearing, I directed Mr Goh to submit (and serve on the respondents) further arguments and authorities on whether, assuming that the collective sale process was irregular or defective, Sim Lian would still be entitled to judgment.

19 Mr Goh’s submission was that Sim Lian, being the registered owner of Lincolnsvale, holds an indefeasible title free from all unregistered encumbrances, liens, estates and interests. This is sufficient to find that the respondents are trespassers and that they must turn in vacant possession of their unit to Sim Lian. It was also contended that there is no place for equity to intervene in the present context, primarily because the respondents knew of the ongoing collective sale but wilfully chose not to participate or even register their protests in accordance with the...