Tan Soo Leng David v Wee, Satku & Kumar Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 22 February 1994
• Neutral Citation: [1994] SGCA 26
• Citation: [1994] SGCA 26
• Docket Number: Civil Appeal No 25 of 1993
• Year: 1994
• Plaintiff Counsel: Roger Vincent Gyles QC, KS Chung and Michael Moey (Harry Elias & Pnrs)
• Date: 24 August 1994
• Defendant Counsel: Chua Lee Meng (Lee & Lee),Michael Hwang and Maria Ho (Allen & Gledhill)
• Court: Court of Appeal (Singapore)
• Published date: 19 September 2003

Cur Adv Vult

This appeal is solely against the striking out of the appellant`s statement of claim and the consequent dismissal of the appellant`s action against both respondents.

The appellant is an ophthalmic surgeon who has been in specialist private practice since 1976. On 2 July 1992 he secured an option in writing (the option) to purchase the leasehold estate in unit 11-11, Mount Elizabeth Centre, Singapore (the property) from the first respondents for $10,000, which was duly paid. The option was stated to be open for acceptance until 4pm, 15 July 1992; it would be exercised by the appellant signing the duplicate copy attached to the option and the payment of $111,200, being 10% of the sale price less the option fee. The date fixed for completion by the option was 20 September 1992. The first respondents themselves had purchased the property from the second respondents which purchase was evidenced by an agreement in writing dated 24 January 1992 (the principal agreement).

It is not in dispute that the second respondents had not, by 2 July 1992, conveyed the property to the first respondents. The property was still in the process of being developed by the second respondents and the principal agreement provided for the payment of the purchase price in stages as the development progressed. Clause 15 of the principal agreement provided that the sale and purchase of the property shall be completed 14 days after the receipt by the purchaser or his solicitors of the notice to complete which shall be given by the second respondents on or before 14 January 1993 or the expiry of three years from the date of issue of the temporary occupation permit, whichever is the earlier. The notice to complete was to be accompanied by the certificate of the architect that the approval of the competent authority for the sub-division of the building had been obtained. Clause 15 also provided that, on completion, the second respondents were to make and execute an assurance of the building unit, that is to say of the property, and unless the Registrar of Titles had directed that the land on which the property was erected shall be dealt with under the Registration of Deeds Act (Cap 269, 1989 Ed), 1988, the second respondents were to deliver to the purchaser the duplicate subsidiary strata certificate of title for the property.

The principal agreement further provided by cl 26 as follows:

(1) The purchaser shall at the request of the vendor enter into the restrictive covenants specified in the third schedule hereto restricting the use of the building unit and prohibiting nuisance and pollution of any kind or in any form.

(2) On completion of the sale and purchase of the building unit as in cl 15 hereinbefore provided, the purchaser shall execute an instrument of restriction containing such restrictive or other covenants and cause the same to be registered in the Registry of Title, Singapore.

The provision of the third schedule relevant to this appeal is para (f) thereof which reads as follows:

(f) ) The purchaser shall use the building unit(s) solely for his medical practice and shall not let or sublet, sell or assign or transfer (otherwise than by way of security) the same without the prior written consent of the vendor which consent shall not be unreasonably withheld if the intended letting or sub-letting, sale or assignment or transfer is to a medical practitioner (which expression shall include a body corporate) engaged in the practice of specialist medicine.

It is pertinent to note that as at 2 July 1992, or indeed when the appellant exercised the option on 15 July 1992, the first respondents had not entered into the restrictive covenants specified in the third schedule of the principal agreement. Be that so, it was the intention of the second respondents that the restrictive covenants should:

run with and be binding upon the building unit(s) sold into the hands of whomsoever the same may come, and shall enure for the benefit of the whole or any part or parts of the lands comprised in The Mount Elizabeth Project and so that such covenants and conditions shall so far as practicable be enforceable by the vendor [the second respondents] or the owners, occupiers for the time being of the land comprised in The Mount Elizabeth Project or any part or parts thereof ....

In order to complement cl 26 of the principal agreement and the third schedule thereof, the option provided by cll 4 and 6 read as follows:

Clause 4

The property is sold subject to the covenants and conditions set forth in the agreement for sale dated 24 January 1992 (hereinafter called the `principal agreement`) executed between the developers Mount Elizabeth Hospital Ltd (hereinafter called the `developers`) and us, and to all quit and other rents (if any) and to all incidents of tenure, party wall rights, rights of way and other rights and easements (if any) and to any other restrictive or other covenants or conditions (if any) affecting the property and you shall be deemed to have full knowledge and notice thereof. Subject to the foregoing, the property shall be sold free from encumbrances. [Emphasis added.]

Clause 6

The sale shall also be subject to the consent of the developers, which said consent to the sale is required under the terms of the principal agreement. In the event such consent is refused or not received by the completion date (as defined in cl 7 below), the sale and purchase herein shall be deemed rescinded forthwith whereupon all moneys paid hereunder shall be refunded to you free of interest and subject thereto the sale and purchase herein shall be cancelled and of no effect and neither party shall have any claim or demand against the other for damages, costs, compensation or otherwise.

As stated earlier, the completion date fixed by cl 7 was 20 September 1992.

As it happened the first respondents` solicitors wrote to the second respondents` solicitors for their consent to sell the property to the appellant on 1 July 1992 vide cl 6 of the option. The granting of the option had been delayed by one day. The solicitors for the second respondents replied to the first respondents` solicitors on 14 July 1992. They said:

We regret to inform you that our client is withholding its consent under cl (f) of the third schedule.

Despite this and being informed on 14 July itself that the option fee of $10,000 would be returned, the appellant exercised the option and his solicitors forwarded the acceptance copy of the option duly signed by the appellant, together with a cashier`s order for the balance 10% of the deposit in the sum of $111,200 to the first respondents` solicitors on 15 July 1992. On the same day, the solicitors for the first respondents returned the cashier`s order to the appellant`s solicitors stating that `the contract is no longer effective`, and that the option fee will be returned shortly. There, then, was an exchange of correspondence between the solicitors of all three parties but this came to nothing as each held to their respective positions taken. The result was that the appellant commenced proceedings on 11 September 1992 against both...