TSM Development Pte Ltd v Leonard Stephanie Celine nee Pereira

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 01 March 2005
• Neutral Citation: [2005] SGHC 42
• Docket Number: Originating Summons No 925 of 2004
• Date: 01 March 2005
• Year: 2005
• Published date: 04 March 2005
• Plaintiff Counsel: Hee Theng Fong and Paul Tan (Hee Theng Fong and Co)
• Citation: [2005] SGHC 42
• Defendant Counsel: Gan Hiang Chye and Ang Keng Ling (Khattar Wong and Partners)
• Court: High Court (Singapore)
• Subject Matter: Whether defendant entitled to claim adverse possession of land,Land,Land brought under Land Titles Act in 1985,Defendant occupying land under common law system from 1971 to 1983,Section 42(3) Land Titles Act (Cap 157, 1985 Rev Ed),Sections 50, 172(7), 172(8) Land Titles Act (Cap 157, 1994 Rev Ed),Adverse possession by defendant of land under common law system,Whether defendant required to lodge caveat to protect interest,Adverse possession,Caveats

1 March 2005

Lai Siu Chiu J:

The facts

1 TSM Development Pte Ltd (“the plaintiff”) applied by the above originating summons (“the application”) against Stephanie Celine Leonard née Pereira (“the defendant”) for the following orders:

1. a declaration that the portion of land as indicated in the Topographical Survey referred to in the affidavit of TAN TIEN SENG … made in support of the [plaintiff’s] application filed on 16 July 2004 (“the [Plaintiff’s] Affidavit”) between:

a. legal boundary of 43 and 45 Cotswold Close (edged and indicated in red); and

b. the chain fence (edged and indicated in purple) and brick wall (edged and indicated in green), on 45 Cotswold Close.

(“the Land in Dispute”) is not subject to any adverse possession rights by the Defendant and all legal and beneficial rights title and interests are retained by the [plaintiff];

2. the Defendant returns possession of the Land in Dispute to the [plaintiff] and an injunction to restrain the Defendant, her servants, agents, contractors or otherwise howsoever whosoever from remaining, entering or using the Land in Dispute;

3. the Defendant do at her own expense and costs within a reasonable period and minimal disruption to 45 Cotswold Close:

a. remove the existing chain fence and brick wall on 45 Cotswold Close and to replace a new chain fence and brick wall along the legal boundary of 43 and 45 Cotswold Close indicated in the Topographical Survey referred to in the [Plaintiff’s] Affidavit;

b. repair and reinstate the garden landscaping works and the retaining and front brick wall around the Land in Dispute after installing the new chain fence and brick wall as reasonably possible to its original condition;

c. ensure that all drainages and rebuilding works pursuant to reinstating the Land in Dispute are in compliance with Building & Construction Authority’s and/or Land Transport Authority’s regulations and directions (if any) and all necessary consents for such works are obtained (paragraphs 3(a), 3(b) and 3(c) collectively referred to as “the Reinstatement Works”); and

d. if the Defendant fails to comply with any of the sub-clauses hereinabove, the [plaintiff is] entitled to engage a contractor to conduct the Reinstatement Works and the Defendant will indemnify the [plaintiff] in full, the costs and expense of the Reinstatement Works;

4. mesne profits and/or damages from the date of trespass until the delivery of possession;

5. interests;

6. costs on an indemnity basis; and

7. such other reliefs as this Honourable Court shall deem fit.

2 I dismissed the application and granted, inter alia, the defendant’s cross-application for a declaration that she and her predecessors-in-title had been in continuous adverse possession of the Land in Dispute as defined in the application (see [1] above) and that all rights, title and interest of the plaintiff or any person claiming under the plaintiff to that land had been extinguished by reason of the provisions of the Limitation Act (Cap 163, 1996 Rev Ed). The plaintiff has appealed against my decision (in Civil Appeal No 118 of 2004).

The affidavits

3 As stated earlier, the application was supported by an affidavit filed by the plaintiff’s director Tan Tien Seng (“Tan”) who described the plaintiff as a property acquisition and development company. The plaintiff had purchased 45 Cotswold Close (“No 45”) on 23 December 2002. The defendant’s property, 43 Cotswold Close (“No 43”), adjoins No 45.

4 Before proceeding further, it is necessary to set out the chain of titles of the parties to the two properties in question. I reproduce below from the defendant’s affidavit, the chart which shows how the plaintiff and the defendant derived their titles to No 45 and No 43 respectively. Both properties were originally part of a landed housing estate called Braddell Heights Estate developed by a company called Braddell Heights Estate Limited (“the developers”) in the 1950s.

BRADDELL HEIGHTS ESTATE LTD (DEVELOPER)
Housing Estate called "Braddell Heights Estate"
↓
__________________________________________________
↓	↓
No. 45 Cotswold Drive	No. 43 Cotswold Drive
↓	↓
1951 – Bhermul Atmaram Lalwani (son of Atmaram) Conveyance Vol. 1102 No. 43	1951 – Chang Hoi Phin Conveyance Vol. 1107 No. 152
↓	↓
1963 – Chua Chee Ming Conveyance Vol. 1489 No.164	↓
↓	↓
1968 – Chua Fond Nam, Helen Wan Moon Yeen &; Wang Yuen Ngian Conveyance Vol. 1871 No. 75	↓
↓	↓
1971 – Chee Hoe Hong (Private) Limited Conveyance Vol. 1871 No. 75	1971 – Edward George Leonard Conveyance Vol. 1845 No. 131
↓	↓
23.3.1985 – Conversion to Land Titles Act; system of registration	↓
↓	↓
2002 – TSM Development Pte Ltd	↓
	2003 – Mrs Leonard Stephanie Celine née; Pereira

5 I will first elaborate on the plaintiff’s title to No 45. In 1951, the developers sold the property to one Bhermul Atmaram Lalwani (“Lalwani”). In 1963, Lalwani sold the property to one Chua Chee Ming who sold it in 1968 to Chua Fond Nam and two others. In 1971, Chua Fond Nam and his co-owners sold the property to Chee Hoe Hong (Private) Limited (“the company”). On 23 March 1985, while the company was still the owner, the property was brought under the Land Titles Act by the Registrar of Titles (“the ROT”). Pursuant to the conversion exercise, a qualified certificate of title (Vol 277 Folio 182) was issued by the ROT.

6 In 1989, the company sold No 45 to Roy and Carol Eapen (“the Eapens”). The Eapens subsequently sold the property to the plaintiff and the Transfer to the latter was dated 23 December 2002. The caution on the certificate of title for No 45 was cancelled (at the request of the plaintiff’s solicitiors) on 23 December 2003.

7 As for the defendant’s property, No 43 was first sold to one Chang Hoi Phin in 1951. In 1971, Chang Hoi Phin sold No 43 to Edward George Leonard (“Leonard”), the defendant’s husband. The Indenture of Conveyance to Leonard was dated 3 April 1971. A qualified certificate of title was issued for No 43 on 8 May 1976. Leonard passed away on 8 April 2003 and title to No 43 devolved to the defendant as the sole beneficiary under his will. The Transfer to the defendant was registered on 3 December 2003. On the same day, the caution on the certificate of title was cancelled.

8 According to Tan’s affidavit, the plaintiff arranged for a boundary map to be made of No 45 in September 2003 by T H Lim Registered Surveyor (“the plaintiff’s surveyor”). The plaintiff’s surveyor carried out a topographical survey of No 45 which indicated that the existing chain fence and brick wall separating the property from No 43 was not erected on the legal boundary but on the compound of No 45. The encroached portion, viz the portion of land between: (a) the legal boundary of the two properties and (b) the chain fence and brick wall, is the Land in Dispute referred to in the application. The plaintiff’s surveyor filed a separate affidavit to confirm his survey findings.

9 Unaware of his demise, the plaintiff wrote to Leonard on 12 September 2003 to inform him of the unlawful encroachment and requested that he rectify the situation by setting the chain fence back to the legal boundary line. The plaintiff’s solicitors only discovered from a search conducted in the Registry of Titles, that No 43 had been transferred to the defendant on 3 December 2003 by a grant of probate.

10 Tan deposed that the plaintiff’s solicitors’ letter of 12 September 2003 received a reply dated 10 December 2003 from the defendant’s solicitors in which they claimed that the defendant and her predecessors-in-title had been in adverse possession of the Land in Dispute for the past 30 years.

11 On 14 January 2004, the plaintiff’s solicitors wrote to the defendant’s solicitors to reject her claim of adverse possession and requested for evidence in support thereof. No evidence was furnished by the defendant to support her claim that the chain fence had been in place “all these years”. Consequently, the plaintiff filed the application.

12 In her affidavit, the defendant deposed that when she and Leonard first viewed and inspected No 43 in 1971 (they were then already married), the present day chain fence was already in existence and divided the two properties. Immediately next to the chain fence on the side of No 45 were a few mature trees. No 45 slopes gently towards No 43. Next to the chain fence on the side of No 43 was a 3ft high brick wall that still stands today.

13 According to the defendant, over the years before his demise, her husband (and she) had used the plot of land next to the brick wall on the side of No 43 as a garden to plant trees, palms, flowering plants and other foliage. She exhibited photographs taken as far back as June 1972 and as recent as 2004 to support her claims. She asserted she (and her husband before his demise) had been in continuous occupation of No 43 and the Land in Dispute since 1971.

14 The defendant deposed that before the plaintiff became its owner, all previous occupants of No 45 had never claimed the Land in Dispute as part of No 45. None of those occupants had attempted to breach the chain fence to cross over to No 43. Had they done so, she and her husband would have treated them as trespassers.

15 The defendant disputed the findings in the topographical survey done by the plaintiff’s surveyor; the survey included, within the legal boundary of No 45, land that was more than the Land in Dispute. She had shown the topographical survey to a registered surveyor, Leong Kai Weng, who had carried out a survey on her behalf and which survey cured the shortcomings in the topographical survey. The survey showed the Land in Dispute to be very close to the front gate of No 43.

The submissions

16 Mr Hee, counsel for the plaintiff, relied on ss 50, 172(7) and 172(8) of the Land Titles Act (Cap 157, 1994 Rev Ed) (“the Act”) for his submissions. The Act has since been replaced by the Land Titles Act (Cap 157, 2004 Rev Ed)...