Win Supreme Investment (S) Pte Ltd v Joharah bte Abdul Wahab (Sjarikat Bekerjasama Perumahan Kebangsaan Singapura, Third Party)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 06 November 1996
• Neutral Citation: [1996] SGHC 255
• Docket Number: Originating Summons No 1176 of
• Date: 06 November 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Cheong Yuen Hee and Peter Wong (William Lai & Alan Wong)
• Citation: [1996] SGHC 255
• Defendant Counsel: V Ramakrishnan (V Ramakrishnan & Co),Salehah Johari (Salehah & Co)
• Court: High Court (Singapore)
• Subject Matter: Agreement for lease not registered,Right of purchaser to possession against occupier,Discharge,Land,Agreement not by deed,Effect of agreement for lease in Malay,Agreement for lease without consent of mortgagee,Agreement in Malay,Conveyance,Occupier's rights under agreement for lease,s 53(1) Conveyancing and Law of Property Act (Cap 61, 1994 Ed),Equitable interest subject to legal interest of purchaser and mortgagee,s 4 Registration of Deeds Act (Cap 269, 1989 Ed),Contract,s 45(1) Land Titles Act (Cap 157, 1994 Ed),Applicability of frustration on agreement,Agreement for sale of property,Frustration,ss 6(2), 26(1), 30(2), 53(1) Conveyancing and Law of Property Act (Cap 61, 1994 Ed)

This action, which was first commenced by way of an originating summons, was subsequently converted to a writ pursuant to an order of court. The action concerns a flat known as No 2, Block B, Paya Lebar Close (hereinafter called the flat). The plaintiff seeks to remove a caveat lodged by the defendant against the flat.

Background

At all material times Lots 2860 and 2990 of Mukim 24 at Paya Lebar Close were owned by Sri Jaya (Sendirian) Berhad (Sri Jaya), a company incorporated in Singapore on 20 December 1968. On 13 October 1969 Sri Jaya mortgaged the two lots of land to United Malayan Banking Corporation (UMBC) for a loan of $1,430,000 for the specific purpose of developing the two lots. The mortgage was duly registered with the Registry of Deeds. Lot 2860 was subsequently sub-divided into Lots 3392, 3393 and 3394 and Lot 2990 was subdivided into Lots 4905 and 4906. Lots 3392, 3393, 3394 and 4905 were surrendered to the State leaving only Lot 4906 for development.

Under cl 5(q) of the indenture of mortgage it was specifically provided that the statutory power of leasing conferred on a mortgagor by the Conveyancing and Law of Property Ordinance would not be exercisable by the mortgagor without the previous consent in writing of UMBC. UMBC had never so consented to Sri Jaya granting any lease to any third party.

Two blocks of flats were erected by Sri Jaya on Lot 4906, which are known as Block A and Block B. The blocks were completed in 1974. Block B consists of 15 flats and one of them is the subject of this action. There is no evidence before me to show that the strata titles to the flats have been issued.

It appears that sometime in the early seventies, Sri Jaya agreed to lease the entire Block B to the Singapore National Housing Co-operative Society Ltd (the Society), a society registered under the Singapore Co-operative Societies Ordinance, now known as the Co-operative Societies Act, for a term of 199 years from 2 January 1975 at a consideration of $420,000, or $28,000 for each flat. No copy of the lease agreement is available. Though the lease agreement was lodged for registration with the Registry of Deeds, but for reasons which are not known, that registration was withdrawn on 3 December 1977. Only a copy of the draft lease agreement (unsigned) has been found: it bears no date but only the year 1975.

In the meantime on 1 December 1974 the defendant`s father, one Wahab bin Sheikh Daud (Wahab), entered into an agreement in Malay with the Society to lease and purchase the flat (the first agreement). In essence it provided that on expiry of six years and upon complying with the terms therein, the Society would transfer the flat to Wahab. Presumably the transfer would be in relation to the 199-year lease which the Society was to obtain from Sri Jaya. Wahab paid to the Society the sum of $28,000. No steps were taken to have the agreement registered with the Registry of Deeds or the Registry of Titles. Neither was any transfer of the 199-year lease effected in favour of Wahab.

In 1983 Sri Jaya defaulted in their repayment under the mortgage. On 29 November 1983, UMBC commenced Suit No 5904/83 against Sri Jaya and others and claimed, inter alia, for a declaration that they were entitled to sell the property. On 2 October 1991 a consent judgment was entered against Sri Jaya giving a right to UMBC to sell Lot 4906, with the two blocks of flats, free from any interest claimed by Sri Jaya. Sri Jaya was also required to deliver up possession of the property to UMBC.

In the meantime, Wahab died on 5 October 1984. It appears that no one took out letters of administration to his estate. However, the defendant and her mother, Chei bte Embi (Chei), continued to reside in the flat. On 9 November 1984, in response to an enquiry made by the defendant, the Society replied offering to transfer the ownership of the flat (presumably the 199-year lease) to the defendant and her mother, Chei, jointly on condition that she would pay an administrative fee of $1,400, being 5% of the purchase price paid by her father, Wahab. This administrative fee was duly paid by the defendant and the Society entered into a fresh lease and purchase agreement with Chei and the defendant (the second agreement) and the agreement was backdated to 1 December 1974. The second agreement was in identical terms with those of the first agreement and it was also in the Malay language. Like the first agreement, the second agreement was also not registered. The Society has not made any effort to transfer the 199-year lease of the flat to the defendant and her mother as the Society itself has not yet obtained any such title.

On 18 May 1993, UMBC demanded that the defendant deliver up possession of the flat. She refused. On 11 June 1993 UMBC instituted Suit No 1285/93 against the defendant claiming for possession of the flat. Defence was filed. However, that action has become dormant for the reason that UMBC had sold Lot 4906 (with Blocks A and B) to the plaintiff herein.

At the 22nd annual general meeting of the Society held on 29 August 1993, the question involving Block B was discussed. The minutes of the meeting recorded the following:

The Chairman also touched on the auditor`s report concerning Block B, Paya Lebar Close. He reported that, at that moment, (the Society), the Bank and residents of Block B were in the midst of discussion and he hoped that all the parties who were involved could adopt a give and take attitude for their benefit.

On 23 August 1994 the defendant lodged a caveat against the flat and claimed interest therein as a purchaser pursuant to:

(1) an agreement for lease dated 22nd day of March 1976 between (Sri Jaya) of the one part and (the Society) of the other part for the lease of the land above described.

(2) an agreement for sale and purchase dated 1st day of December 1974 made between (the society) and (the defendant) of the other part for the lease of the land above described.

At about the same time, UMBC in exercise of its rights as a mortgagee sold Lot 4906 together with Blocks A and B (hereinafter collectively referred to as `the whole property`) to Win Supreme Investment (S) Pte Ltd, the plaintiff in this action. The whole property was conveyed to Win Supreme on 30 September 1994 `freed and discharged from all rights or equity of redemption and from all claims and demands whatsoever under the said mortgage.`

There is evidence to show that the defendant`s father paid property tax in respect of the flat from 1975 till his death, and after that, the defendant has been paying that tax to date. Though the defendant`s family have been occupying the flat since 1975, they have not paid rent to any person. It seems to me clear that first Wahab, and then the defendant, have been occupying the flat pursuant to the two agreements with the Society and in turn, the Society obtained possession of Block B by virtue of the agreement with Sri Jaya.

The evidence is quite clear that before UMBC sold the whole property to Win Supreme, UMBC was aware that the defendant was occupying the subject flat; so did Win Supreme. Tan Kian Kee, the general manager of the plaintiff, told this court that before Win Supreme agreed to purchase the property, he had inspected both blocks and found occupants in both. Tan also said that the purchase was without vacant possession.

At the relevant time the shareholders of Sri Jaya were Syed Esa Almenoar, Salleh bin Mat and Abd Kadir bin Hj Manjoorshah. In 1993, Syed Esa Almenoar and Hj Salleh Mat were the chairman and treasurer respectively of the Society. There is no evidence whether in the mid-seventies both these two persons held the same positions in the Society.

The case for the plaintiff is that as the defendant has occupied the flat without the written consent or licence of UMBC, therefore, the plaintiff as a purchaser from UMBC, takes the whole property, including the flat, freed from any estate, interest or rights of the defendant.

On the other hand, the defendant says that the lease of Block B by Sri Jaya to the Society was with the consent or knowledge of UMBC; that the purchase money paid by the defendant`s father Wahab to the Society would have been remitted by the...