Toh Tian Sze v Han Kim Wah

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 23 May 2012
• Neutral Citation: [2012] SGHC 111
• Plaintiff Counsel: Bernard Sahagar s/o Tanggavelu (Lee Bon Leong & Co)
• Docket Number: Originating Summons No 905 of 2011
• Date: 23 May 2012
• Hearing Date: 31 January 2012
• Subject Matter: tenancy in common,Land,interest in land
• Year: 2012
• Citation: [2012] SGHC 111
• Defendant Counsel: Sim Bock Eng and Lee Ee Yang (WongPartnership LLP)
• Court: High Court (Singapore)
• Published date: 25 May 2012

Lee Seiu Kin J:

The plaintiff and the defendant are the registered proprietors of Lot No 443 V of Mukim 20 (“the Property”) as tenants in common in equal shares. In this originating summons the plaintiff applied for an order to partition the Property, and alternatively for an order that the Property be sold in the open market and the sale proceeds distributed in equal shares.

The Property is a residential plot of land with an area of about 745 square metres located at Lorong Tanggam. It is physically divided into two parts roughly equal in area by a wall running approximately in the middle. In each divided half is a detached house. The plaintiff has possession of the house which is assigned the address No 45 Lorong Tanggam and the defendant has possession of the house which is assigned No 49 Lorong Tanggam. The events leading to the present application for partition may be summarised as follows:

Date	Transaction
25 May 1959	The defendant and Foo Chee Toon purchased the Property from Singapore United Estates Ltd as tenants in common in equal shares.
21 September 1979	Foo Chee Toon sold his half share of the Property to Foo Yong Suan via an indenture of assignment.
14 August 1989	Foo Yong Suan sold his half share of the Property to the plaintiff via an indenture of assignment.
10 July 1992	An agreement to jointly build a pair of semi-detached houses on the Property was drafted by the plaintiff’s solicitors but not signed by either party.
10 Apr 1999	The parties signed a handwritten note to “jointly develop or to partition [the Property] into 2 lots vide a Deed of Partition”.
15 May 2000	The plaintiff and defendant entered into an agreement entitled “Partition Agreement”.
2000 – 2002	The parties sought approval for subdivision from the Urban Redevelopment Authority (“URA”) but the proposal was rejected on the ground that it would create two plots that are smaller than the minimum required plot size of 400 square metres for a detached house.
21 June 2002	The parties appointed The Architects Circle to submit design plans for a pair of semi-detached houses to URA for approval.
9 January 2003	A supplemental Partition Agreement was drafted but not signed.
November – December 2003	The Architects Circle submitted plans for redevelopment but the design was rejected by URA.
January to September 2011	The plaintiff and the defendant’s children/family friend discussed the sale of the plaintiff’s half share. No agreement on price has been reached to date.

The plaintiff is a businessman who had previously redeveloped another property in the same area. He had purchased the previous owner’s interest in the Property for investment purposes. The plaintiff claimed that the defendant had initially agreed to redevelop the land into a pair of semi-detached houses. However they could not agree on its exact terms and are now unlikely to agree on a particular mode of partitioning the Property. That is the reason he is making the present application as he is otherwise unable to develop the Property.

The defendant denied that there was any agreement to jointly redevelop the Property, and argued that there was no reason to compel her to sell her property simply for the convenience of the plaintiff.

It was not disputed that the parties signed and entered into a “Partition Agreement” dated 15 May 2000 (“the 2000 Agreement”). The relevant clauses of the 2000 Agreement provide as follows: 1. The parties hereto shall divide and take the Property in severalty in the manner hereinafter provided:- (a) [Defendant] shall take in severalty 49 Lorong Tanggam; and (b) [Plaintiff] shall take in severalty 45 Lorong Tanggam. 2. After the date hereof, the parties hereto shall make the necessary application to the competent authority for the subdivision of the Property with the intent that two (2) separate Certificates of Title (hereinafter called the “CTs”) may be issued for 49 Lorong Tanggam and 45 Lorong Tanggam and the parties hereto shall do all things necessary for and incidental to the obtaining of such subdivision approval and of the CTs.

...

8. The parties hereto further agree as follows:- (a) to retain the existing wall which separates 49 Lorong Tanggam and 45 Lorong Tanggam; (b) neither party may demolish the said wall Provided Always that if the [defendant] redevelops 49 Lorong Tanggam or if the [plaintiff] redevelops 45 Lorong Tanggam the party who first redevelops may demolish the said wall and rebuild a new wall only in accordance with clause 8 (c) below; (c) the said wall may be demolished and the new wall may be built only subject to the following conditions¹

…

A draft supplemental agreement was drawn up to replace clause 8 above (at [5]) with the following:

8 The parties hereto further agree to jointly develop the Property and obtain subdivision of the Property as follows:-

... (b) the parties shall co-operate fully with each other and The Architects Circle for the demolition of the Property and the subsequent construction of a pair of semi-detached houses on the same site; (c) the completed semi-detached houses shall each have an area of 260.62 square metres and a total area of 521.22 square metres; ... (f) all expenses, costs, disbursements or charges arising from or in connection with the demolition of the Property, the subsequent construction of the pair of semi-detached houses, the subdivision and the issue of the CTs, shall be borne by the parties equally.²

However this supplemental agreement was not signed by the parties.

Under the 2000 Agreement the parties had agreed to subdivide the Property by obtaining separate CTs, with each party retaining his or her original detached unit. This is corroborated by the parties’ application to the URA for subdivision, which was for subdivision into two separate legal lots and not redevelopment. In the event, URA did not approve the subdivision and the 2000 Agreement could not be carried out. The 2000 Agreement makes no mention of joint redevelopment and although there are contemporaneous documents that suggest...