Toh Tiong Huat v PM Gunasaykaran (personal representative of the estate of Mayandi s/o Sinnathevar, deceased) and Another

• Judge: Lai Siu Chiu J
• Judgment Date: 31 October 1995
• Neutral Citation: [1995] SGHC 253
• Citation: [1995] SGHC 253
• Defendant Counsel: Ramesh Appoo and Y Jumabhoy (S Narayanan & Pnrs)
• Published date: 19 September 2003
• Plaintiff Counsel: Michael Khoo and Josephine Low (Michael Khoo & BB Ong)
• Date: 31 October 1995
• Docket Number: Originating Summons No 694 of 1994
• Court: High Court (Singapore)
• Subject Matter: Sale and purchase of property,Remedies,Whether specific performance available,Laches,Whether damages could be given in lieu,Damages in lieu of specific performance,First Schedule Supreme Court of Judicature Act (Cap 322),Assessment of damages,Damages,Specific performance,Contract,Delay in seeking remedy for breach

The application

Cur Adv Vult

The first defendant is the executor of the estate of Mayandi s/o Sinnathevar (the deceased). The second defendant is the deceased`s wife. In these proceedings, the plaintiff applied for the following orders against them:

(1) the first defendant specifically perform the first defendant`s obligations under the option dated 19 July 1986 and the agreement of 18 July 1988 to sell to the plaintiff the property known as lot no 55 mukim 20 together with the house erected thereon and known as 38 Lorong Tanggam Singapore (also referred to during the proceedings as 38 Jalan Tanggam) within 14 days from the date of the order to be made hereon;

(2) the first and second defendants deliver up to the plaintiff`s solicitors the title deeds of the said property forthwith on their usual undertaking;

(3) the Register of the Supreme Court be empowered to sign all necessary documents including all conveyance, assignment or assurance as may be necessary to vest the legal title of the property in the plaintiff upon the plaintiff paying the balance of the purchase price and other money, if any, due under the agreement pursuant to s 14(1) of the Supreme Court of Judicature Act;

(4) upon payment by the plaintiff to the second defendant all moneys due under the said option of 19 July 1986 and agreement of 18 July 1988 amounting to half the nett proceeds of sale and the balance to the first defendant, such payment shall be a complete discharge of all liability, if at all, by the plaintiff to the first and second defendants;

(5) any other or further directions which this court deems just;

(6) Costs;

(7) any other or further relief which this court deems just.

The facts

According to the affidavits (3) filed by the plaintiff, the deceased granted to the plaintiff on 19 July 1986 an option (the option) to purchase the property known as lot no 55 mukim 20 together with the house erected thereon and known as 38 Lorong Tanggam, Singapore (the property). The purchase price was $290,000 of which $10,000 was paid for the option which was exercisable before 12 noon of 2 August 1986. The sale was stated to be subject to the plaintiff obtaining in-principle planning approval. The option was exercised on 1 August 1986, and the plaintiff paid to the deceased`s solicitor $19,000, being the balance 10% of the purchase price stated to be the deposit.

By an order of court dated 10 October 1986 made in OS 868/86 between the second defendant and the deceased, the High Court ordered that:

(1) the second defendant was entitled to a half share of the matrimonial property known as 38 Lorong Tanggam;

(2) the sale under the option dated 19 July 1986 may proceed and on completion half of the nett proceeds were to be paid to the second defendant upon her giving up possession of the property;

(3) the second defendant was to hand over the title deeds to the solicitors for the plaintiff on the usual undertaking.

In-principle planning approval was obtained by the plaintiff on 2 February 1987. On 23 February 1987, the plaintiff`s then solicitors (T & L), wrote to the deceased`s then solicitors enclosing a copy of the letter from the Development and Building Control Division (BCD) granting in-principle planning permission and requesting completion within 14 days.

Despite repeated requests, the deceased failed or refused to complete the sale of the property and the second defendant refused to deliver the title deeds to the property. On 18 August 1987, the plaintiff`s architects obtained an extension of six months in which to submit plans to the BCD; however, the deceased refused to sign the plans. The result was that BCD issued a notice of refusal of written permission on 13 February 1988. Meanwhile, on 4 December 1987 the plaintiff had commenced action against the deceased in S 3132/87 (the action).

There then followed an exchange of correspondence marked `without prejudice` between T & L and H & Co, who was acting for the deceased and the second defendant. On 11 May 1988, H & Co wrote to T & L as follows:

Our clients` proposals are as follows:

(1) Your client to deposit 50% of the purchase price of the above property to us. Out of the 50% deposited with us, a sum of $50,000 will be released to Mdm Ramaswami and the balance thereof will be held by us as stakeholders.

(2) Vacant possession and completion to take place within six (6) months from the date your client deposited the 50% of the purchase price to us.

(3) Your client to withdraw S 3132/87 with each party to pay its own costs.

On 24 May 1988, H & Co followed up with another letter to T & L. After claiming that the order of court in OS 868/86 was a supervening event and that a fresh agreement with both the deceased and the second defendant might be required, H & Co proposed:

In order to solve this problem may we suggest that you advise your client to pay our client Mdm Ramaswami d/o Sambuvalle a sum of $50,000 immediately and thereafter we shall proceed to complete the matter and vacant possession will be given to you on the date of completion in exchange for the balance of the purchase price.

T & L replied to H & Co on 18 June 1988 in the following terms:

Our client is agreeable to pay your client, Mdm Ramaswami the $50,000 in advance.

But before our client confirms this by open letter, could you please let us know when your client can deliver vacant possession and complete the matter.

Our client proposes that the matter be completed within three (3) months from the date he pays the $50,000 and thereafter, if your client has problem with alternative accommodation, he will allow her to stay there for another three (3) months.

On 18 July 1988, H & Co wrote back to T & L:

We thank you for your letter dated 18 June 1988 upon which we have obtained our clients` instructions.

Our clients are agreeable to the contents of your letter. However, please inform your clients that completion will take place as mentioned in the last paragraph of your said letter and Mdm Ramaswami will deliver vacant possession of the above premises on 31 March 1989.

In the aforesaid, kindly let us have your cheque for $50,000 in our favour together with a copy of your notice of discontinuance. Thereafter, we shall forward the title deeds to you on the usual undertaking.

The deceased passed away on 20 July 1988. On 2 August 1988, H & Co wrote to T & L informing them of this and stating, `Hence, the above matter will be kept in abeyance until grant of letters of administration of his estate has been extracted.` On 5 August 1988, T & L returned to him the plaintiff`s cheque for $50,000.

Between 2 November 1989 and 24 February 1992, T & L wrote four (4) reminders to H & Co - there was no response at all from H & Co even though they acted for the estate of the deceased. Sometime in February 1992, T & L was orally informed by H & Co that they had no further instructions in the matter when in fact, probate had been granted on 13 January 1989 and was extracted by the first defendant on 17 January 1990.

T & L then wrote a letter addressed to ` the personal representatives of the estate of ` the deceased on 20 April 1992. A reply was received on 25 April 1992, asking for time to look into the matter. T & L made a search at the Supreme Court registry in June 1992 and only then discovered that probate had been extracted on 17 January 1990 and that the first defendant was the executor.

On 2 June 1992, the first defendant`s solicitors, A & Co, wrote to T & L, stating that the option was bad as planning permission had been refused and that the first defendant had refused to sell the property to the plaintiff. T & L thereafter applied to court to amend the writ in the action by substituting the first defendant for the deceased and adding the second defendant as a party. On 11 May 1993 the second defendant successfully obtained an order setting aside the amendment adding her name as a party. Thereafter, no further steps were taken by T & L in the action. The amended writ was never served on the first defendant and it was allowed to lapse on 29 December 1993.

The plaintiff then appointed his present solicitors who wrote to the second defendant on 1 February 1994 forwarding a cheque for $50,000. A separate letter was also sent to the first defendant informing him of the payment and seeking completion within three months. The second defendant returned the plaintiff`s cheque on 7 February, intimating that she was not selling the property. A notice to complete was served on the first defendant on 24 May 1994. No completion took place and the above originating summons was issued on 20 July 1994 seeking specific performance of the 18 July 1988 contract.

In his affidavit filed to oppose the application, the first defendant stated he received T & L`s letter of 25 April 1992; as he knew nothing of the matter, he asked for time to look into the matter and consulted A & Co, who informed T & L that the option was bad. A & Co wrote twice to T & L, on 26 June 1992 and 31 August...