Sinnathamby Rajespathy and Another v Lim Chong Seng and Another (Lim Raymond and Another, Third Parties)

• Jurisdiction: Singapore
• Judgment Date: 29 July 2002
• Date: 29 July 2002
• Docket Number: District Court Appeal No 6 of 2002
• Court: High Court (Singapore)

Sinnathamby Rajespathy and another

Plaintiff

and

Lim Chong Seng and another (Lim Raymond and another, third parties)

Defendant

[2002] SGHC 163

Choo Han Teck JC

District Court Appeal No 6 of 2002

High Court

Civil Procedure–Amendments–Application to amend writ to join third party as defendant–Application to amend claim to substitute new heads of claim–Applications made after trial–Whether amendments should be allowed–Evidence–Documentary evidence–Receipts–Signed receipt acknowledging receipt of money–Whether signor of receipt could contend that he did not in fact receive money–Landlord and Tenant–Agreements for leases–Lease agreement for Housing and Development Board flat with option to purchase–Whether agreement was in fact sale and purchase agreement–Whether agreement illegal and void–Section 49A Housing and Development Act (Cap 129, 1997 Rev Ed)

The respondents wished to sell their Housing and Development Board (“HDB”) flat, and engaged a housing agent (“Lim”) to sell it. The appellants approached Lim with the intention of buying the flat.

However, the respondents could not sell the flat because they had not occupied it for the minimum period as required under s 49A of the Housing and Development Board Act (Cap 129, 1997 Rev Ed) (“the Act”). Lim then drafted a “lease with option to purchase” agreement, where two rooms in the flat were to be rented coupled with an option to buy the flat, which was to be exercised when the respondents met the minimum occupation period (“the agreement”).

The parties signed the agreement before a lawyer, and the appellants paid $33,000, being the balance of the deposit, to the lawyer who then handed it to Lim. The respondents later signed a receipt, prepared by Lim, acknowledging receipt of the $33,000.

The appellants later sued the respondents for the return of the $33,000. The respondents claimed that Lim never gave the money to them.

In dismissing the suit, the trial judge (a) ruled that the agreement was illegal, and that respondents did not receive the $33,000; and (b) gave little regard to the receipt as it was signed before the respondents received the money. The appellants' attempt to amend the claim to that of money had and received and/or mistake of law was dismissed as they were not pleaded earlier. Their prayer for judgment against Lim, or leave to amend the writ to join him as a defendant was also dismissed. The appellants appealed.

Held, dismissing the appeal:

(1) An acknowledgment of receipt of money could not have the effect of treating as paid what had not been paid, although as a general rule, a person must be held to his signed receipt. The signor of the receipt could persuade the court that he did not in fact receive the money: at [8].

(2) The agreement was illegal and void because it breached s 49A (1) of the Act. It was an agreement to sell, notwithstanding that the option was only to be exercised after the respondents became legally entitled to sell the flat. Further, the parties regarded the transaction as a sale and purchase agreement, and not a tenancy agreement: at [9].

(3) The trial judge was right to refuse the amendment to the claim; in any event, the claim should have been made against either the lawyer or Lim. She was also right to refuse the amendment to the writ, as it was a major amendment that should have been made at the start of the trial: at [10].

Archbolds (Freightage), Ltd v S Spanglett, Ltd (Randall Third Party) [1961] 1 QB 374; [1961] 1 All ER 417 (refd)

Burt v Claude Cousins & Co Ltd [1971] 2 QB 426; [1971] 2 All ER 611 (refd)

Fook Gee Finance Co Ltd v Liu Cho Chit [1998] 1 SLR (R) 385; [1998] 2 SLR 121 (folld)

MFH Marine Pte Ltd v Asmoniah bin Mohamad [2000] 2 SLR (R) 532; [2000] 4 SLR 368 (folld)

Sorrell v Finch [1977] AC 728; [1976] 2 All ER 371 (distd)

Housing and Development Act (Cap 129, 1997 Rev Ed) s 49A (consd)

K Rajendran and Prasanna (Raj Prasanna & Partners) for the appellants/plaintiffs

Teo Eng Thye (KK Yap & Partners) for the respondents/defendants

Third parties absent.

Choo Han Teck JC

Main parties

1 This was an appeal arising from a District Court judgment dismissing the appellants' claim for restitution of $33,000 paid as part of a sum of $38,000 purported to be the deposit for the rental of two rooms of a Housing and Development Board (“HDB”) flat belonging to the respondents. The appellants are two sisters who wanted to purchase a flat in the Hougang area near the homes of their other siblings. The respondents are a husband and wife who worked as hawkers and were, at the material time, in urgent need of money. The respondents decided to place their flat on sale in order to raise funds...