Sea View Hotel Ltd v Mak Kok Weng

• Jurisdiction: Singapore
• Judge: Foo Tuat Yien
• Judgment Date: 10 December 2002
• Neutral Citation: [2002] SGDC 344
• Court: District Court (Singapore)
• Published date: 07 November 2003
• Year: 2002
• Plaintiff Counsel: Mr Sarjit Singh Gill SC and Mr Dylan Lee (Shook Lin & Bok)
• Defendant Counsel: Mr Ranjeet Singh (Koh Ong & Partners)
• Subject Matter: Landlord and Tenant,Whether the defendant (an occupier of former rent-controlled premises) was a solicitor and agent of the tenant for the purpose of service of the plaintiff landlord's notices to quit and if so, whether service of the notices on the defendant is proper service even though the tenant may not know of the notices,If there was proper service, what were the defendant's right, if any to remain on the property after the notice period had expired,What were the plaintiff's right to re-enter the property to regain possession on expiry of the notice period
• Citation: [2002] SGDC 344

1. This is an action brought by the plaintiffs, the owners of 41B Amber Road ( ‘the property’ ) for an order to recover possession of the property from the defendant on the ground that they are entitled to possession and the defendant is in possession without license or consent.

2. This action started as an Originating Summons. On 19.09.02, the learned Rubin J ordered inter alia that the earlier order of the Assistant Registrar of the Supreme Court that the plaintiffs be at liberty to convert this summons into a writ action remain and the affidavits filed by the parties to stand as pleadings. The case was subsequently transferred to the District Court for hearing.

Facts of the Case

3.1 The plaintiffs bought the property in 1990, when it was still a rent controlled property. Jacob Hay Aslan ( ‘Aslan’) was then a protected tenant under the Control of Rent Act (Cap 58). Aslan is now about 79 years old.

3.2 The defendant was an occupier of the property at the material times, beginning from 1986. The defendant is an advocate and solicitor practising with the law firm, Mak and Partners, a sole proprietorship. The defendant whether directly or through Ms Mak and Partners had been paying rent on behalf of ‘Aslan’ since November 1990.

3.3 In 1998, the plaintiffs commenced an action against Aslan in DC Suit no. 5062 of 1998 to restrain him from placing a large container on and encroaching onto the plaintiffs’ property at 41A Amber Road. The defendant represented Aslan. The action was abated when the container was removed.

3.4 On 01.04.01, the Control of Rent (Abolition of Control) Act [Act No 14 of 2001) came into effect and abolished rent control. Clause 6.2 provided that a rent controlled tenancy could be terminated by the landlord or the statutory tenant giving such notice as would be required by law to determine a monthly tenancy of the premises containing no express provision for determination of the same.

3.5 On 11.04.01, the plaintiffs issued to Aslan a one month notice to quit. On 12.07.01, the plaintiffs commenced an action in DC Suit No. 2730 of 2001/V against Aslan for rental arrears, mesne profits and possession of the property. The defendant entered appearance for and represented Aslan. At that time, there was no assertion by the defendant that he was an occupier of the property. At the hearing on the plaintiffs’ application for summary judgement, Aslan’s defence was that the notice to quit had not been served personally on him and that as the rental had been paid quarterly, the notice to quit should have been a quarterly instead of a one month notice. Aslan was given unconditional leave to defend the action. The plaintiffs say that rather than proceed to trial on the technical issue of whether a 3 months or one month notice was required, they chose to discontinue that action and issue fresh notices to quit.

3.6 On 03.01.02, 01.02.02 and 11.03.02, the plaintiffs served fresh Notices to Quit with all the Notices to expire on 30.06.02. The plaintiffs are relying on all 3 Notices to Quit. The Notices to Quit addressed to Aslan, And/or the Occupiers And/or the Persons in Possession were served on Aslan by posting the Notices on the front and back doors, the front and back windows, by insertion in the mail box of the property and by AR Registered Post and Certificate of Posting addressed to the property. A copy of each of the Notices were also sent to the defendant at his law firm, Mak and Partners. In addition, the Notices were also served on 2 other persons, Mak Kok Fye and Mak Kok Keen, the defendants’ 2 brothers.

3.7 On 14.02.02, the plaintiffs’solictiors sent 2 letters to Aslan addressed to the defendant’s law firm, Ms Mak and Partners, one to demand rent of $852 being the arrears from 01.06.01 to 31.01.02 and the other to demand interest of $67.37 payable on the arrears. On 22.02.02, the defendant, through Ms Mak and Partners, replied enclosing a cheque for $912.17 drawn on the law firm, stating that the quarterly rent of the premises was $316.80 as the apportioned monthly rental was $105.60 and not $106.50.

3.8 On 01.06.02, the plaintiffs’ solicitors again wrote to Aslan, addressed to Ms Mak and Partners, demanding payment of $422.40 being the arrears in rent from 01.02.02 to 30.05.02. This letter was acknowledged by Ms Mak and Partners as having been received on 03.06.02. On or about 07.06.02, the plaintiffs received a cashier’s order for the sum of $528. The cashier’s order was sent together with a copy of the plaintiff’s letter of 01.06.02, which bore the following 2 endorsements:

i) an endorsement on the top of the letter which read: ‘ Received By hand, 3 June 2002, 10.45 am’ and

ii) an endorsement at the bottom of the letter which read: ‘ Enclosed is cashier’s order No 989949 for $528.00 in payment of rent for February 2002 to June 2002.’

3.9 On 13.06.02, the plaintiffs’ solicitors wrote to Ms Mak and Partners enclosing the receipt for $528. Ms Mak and Partners acknowledged this receipt on 14.06.02. On 10.07.02, after the expiry of the Notices to Quit on 30.06.02, Ms Mak and Partners wrote to the plaintiffs’ solicitors to state that they had not heard from Aslan on whether he would like to engage Ms Mak and Partners to act for him and accept service of process and that he was expected to return to Singapore only early in 2003. Ms Mak and Partners also returned the receipt stating that they did not know why the receipt was sent to them. On 12.08.02, the plaintiffs solicitors resent the receipt to Ms Mak and Partners and stated that as they had not heard on when Aslan intended to deliver vacant possession of the property, the plaintiffs would take whatever action they deemed fit.

3.10 On 15.08.02, after filing a prior police report to record their intention to effect a re-entry of the property, the plaintiffs’ representatives entered the property at around 11am. No one was then around. The defendant subsequently turned up at the property and challenged the plaintiffs’ right to take possession, but later left. The plaintiffs removed and replaced the locks to the front door of the property, nailed the side door shut, put up fencing around the property and put up a Notice of Possession on the front door. The plaintiffs say that they posted a security guard round the clock to prevent unauthorised persons from trespassing. A notice was also sent on 15.08.02 to Ms Mak and Partners, who acknowledged receipt of the notice on 16.08.02.

3.11 Subsequently the defendant returned to occupy the property. He states that after making a police report, he returned to the property without using force to gain entry on the same day in the night at 9.30pm and remained there. On 18.08.02, the defendant called in a locksmith to change the front door lock and used a wire cutter to remove the barricade and the chain link fence. When the defendant emerged from the house on the property wielding a wire cutter, the security guard was caused to take fright and flee the property. The defendant denies that he had attempted to threaten or frighten the guard.

Issues

4. The issues are:

i) whether the defendant is a solicitor and agent of Aslan for the purpose of service of the Plaintiffs’ 3 Notices to Quit and if so, whether service of the Notices effected on the defendant is proper service even though Aslan may not know of the Notices;

ii) if there was proper service, the effect of the expiry of the Notice period on 30.06.02 on the defendant’s right, if any to remain on the property; and

iii) the plaintiffs’right to re-enter the property to regain possession on expiry of the notice period.

Was the defendant Aslan’s solicitor and agent for the purpose of service of the 3 Notices to Quit.

5. The 1^st Notice to Quit dated 03.01.02 was received by Ms Mak and Partners, when the defendant was still acting for Aslan in DC Suit No. 2730 of 2001, as the plaintiffs only discontinued that suit on 04.01.02. The documents produced by the plaintiffs show that the rent for the premises had been paid by the defendant through Ms Mak and Partners since November 1990. It would seem that whenever Aslan was in arrears of rental, the plaintiffs’ solicitors would ‘chase’ by writing to Ms Mak and Partners and the latter would send payment. It would also seem that the receipts were issued in the name of defendant or Ms Mak and Partners. Ms Mak and Partners continued to send payment for the rental in arrears after the 3 Notices to Quit were sent by the plaintiffs.

6. I have no doubt that the last payment of $528 for the rental from 01.02.02 to 30.06.02 was sent by Ms Mak and Partners in June 2002, although this was denied by the defendant. The cashier’s order for this amount was sent together with a copy of a...