Wong Chee Siong and another v Tan Boon Hwa and another

JurisdictionSingapore
JudgeDenise Wong AR
Judgment Date05 August 2010
Neutral Citation[2010] SGHC 222
CourtHigh Court (Singapore)
Docket NumberSuit No 99 of 2010 (Summons No 1828 of 2010)
Published date12 August 2010
Year2010
Hearing Date27 May 2010,22 July 2010,06 July 2010
Plaintiff CounselLim Tiang Yao (Asia Law Corporation)
Defendant CounselGan Kam Yuin (Bih Li & Lee)
Subject MatterCivil Procedure,Contract,Equity
Citation[2010] SGHC 222
Denise Wong AR: Introduction

This is an application for summary judgment pursuant to O 14 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”).

Background facts

The defendants in this action, Tan Boon Hwa (“Tan”) and Norieta B Galuga (“Norieta”) (collectively, “the Vendors”), are the owners of a Housing Development Board (“HDB”) flat known as Block 195 Kim Keat Avenue #11-342 Singapore 310195 (“the Property”). The Vendors granted the plaintiffs, Wong Chee Siong and Koo Chooi Ling (collectively, “the Purchasers”), an option to purchase the Property for the price of $402,000 (“the Option”). In consideration of the Option, the Purchasers paid the Vendors an option fee of $1,000 (“the Option Fee”). The Option was dated 29 June 2009 and it was to be exercised by the Purchasers on or before 13 July 2009. The Option was in the standard form for the sale and purchase of HDB flats.

On or about 9 July 2009, the Purchasers exercised the Option by paying the Vendors a sum of $2,000 and signing the acceptance form that was enclosed with the Option. According to clause 5.2 of the Option, the Option and the acceptance form signed by the Purchasers formed a binding contract for the sale and purchase of the Property. The signing was witnessed by one Chin Hwa Huat of C&H Realty Pte Ltd. A valid and binding agreement had therefore been made between the Vendors and the Purchasers for the sale and purchase of the Property. This fact was not in dispute between the parties. For convenience, the agreement between the parties for the sale and purchase of the Property will be referred to as “the Agreement”.

On or about 13 October 2009, the parties attended the first appointment with the HDB. The completion date for the sale was initially fixed at 26 November 2009. The sale was not completed as the Vendors failed to settle arrears in the sum of $42,685.67 owing to the HDB for upgrading costs and late payment charges. On or about 7 January 2010, the Vendors informed the Purchasers that they were unable to proceed with the sale as they could not settle the arrears due to their financial situation. They offered to compensate the Purchasers instead. The Purchasers rejected this offer and demanded that the sale be completed. The sale, however, was never completed.

On 10 February 2010, the Purchasers filed the present action to seek an order for specific performance of the Agreement, with all the necessary accounts and inquiries, or, in the alternative, damages for breach of the Agreement. The application before me was filed by the Purchasers for summary judgment under O 14 of the Rules for the above-mentioned remedies.

The main submissions of the parties

The Purchasers seek specific performance of the Vendors’ obligations under the Agreement on the grounds that the Property has an intrinsic value which cannot be compensated by the usual remedy of damages. They aver that none of the usual reasons for denying specific performance, such as the general reluctance of the court to grant specific performance involving contracts for employment or personal service, are applicable. Further, although the Purchasers acknowledge that specific performance may be denied where severe hardship would be caused to the Vendors, they rely on para 27-031 of Chitty on Contracts (H G Beale gen ed) (Sweet & Maxwell 2008) (“Chitty on Contracts”) which states that “... “mere pecuniary difficulties” would “afford no excuse””. The Purchasers thus seek specific performance with the necessary inquiries into the exact sums due and owing to the HDB and other Government agencies. During the hearing before me, counsel for the Purchasers, Mr Lim Tiang Yao, made it clear that the primary remedy that the Purchasers are seeking is specific performance, rather than damages.

The Vendors argued that there exist, in this action, triable issues that render the action unsuitable for summary judgment. Four main supporting arguments were proffered in this regard: First, the bargain reached between the Vendors and the Purchasers was unequal and unfair. In this connection, the Vendors stated on affidavit that they would be forced to give up their home and would not have the financial resources to find another home as the sale of the Property would leave them out of pocket. It was pointed out that the Purchasers, on the other hand, were seeking a convenient home near the school in which they wished to enrol their child. The Purchasers should have tried to mitigate their loss by sourcing for alternative accommodation. Second, the court could decide not to order specific performance if such a remedy would involve great hardship to one of the parties, even in the absence of impropriety on the part of the party seeking the remedy. A fortiori, specific performance should not be ordered where it would cause prejudice to third parties. In this regard, the Vendors raised the fact that they are living with elderly parents and have a school-going son, and that these people would be adversely affected if their home were to be taken away from them. Third, the Purchasers did not come to court with clean hands, as they do not reside at the address stated in the writ of summons filed on 10 February 2010 for the present action. In fact, the Purchasers did not state any address at all when filing their affidavits in this action. The court was urged to infer from this that the Purchasers were deliberately concealing the fact that they are resident out of jurisdiction, and to penalise the Purchasers for breaching the requirements prescribed by O 6 r 2(1)(e) of the Rules. Fourth, the Vendors relied on the equitable maxim which states that equity does nothing in vain to urge the court not to make an order that is impossible to perform. The Vendors referred to a letter from the HDB dated 11 March 2010 which confirmed that unless a sum in excess of $40,000 was paid in cash by the Vendors, and arrears to other agencies were cleared, the sale and purchase would not be approved. The Vendors further stated that any order made by this court could not be enforced against the HDB. A related argument made by the Vendors was that this court could not make an order for specific performance to compel the Vendors to pay a sum of money. Any order compelling the conveyance of the Property would be futile as the HDB would still refuse to grant approval for the transaction.

Relevant Terms of Contract

It may be useful to first set out the relevant terms of the contract.

Clause 9.3 of the Option states:

The Flat is sold subject to –

the Housing and Development Act (Cap. 129) and any rules and regulations made under the Act; the terms and conditions of resale and purchase of an HDB resale flat as prescribed by HDB from time to time; the terms and condition of this Option;

Clause 13.5 of the Option states:

The Seller agrees to take such steps as the Buyer may reasonably request to help the Buyer obtain the HDB’s approval for the purchase of the Flat.

Clause 15.1 of the Option states:

If the HDB’s approval for the sale or purchase of the Flat is not obtained, is refused or is revoked before the Completion Date and it is not due to the Seller’s or Buyer’s default in complying with the HDB’s terms of resale or requirements – the sale and purchase will be cancelled; this Option will be rescinded and become null and void and of no further effect ; the Seller will immediately, without demand, refund to the Buyer the Option Fee, Option Exercise Fee and any other monies paid by the Buyer to the Seller, without any interest or deduction; each party will bear his own costs in the matter; and neither party will have any other claim against the other.

Clause 15.2 of the Option states:

If the HDB’s approval for the sale and purchase of the Flat is withheld, refused, revoked or not obtained before the Completion Date and it is due to the Seller’s or Buyer’s default in complying with the HDB’s terms of resale or requirements, the other party will be entitled to enforce the terms of this Option for specific performance, damages and/or any other remedy.

The terms and conditions of a sale/purchase of a HDB resale flat as prescribed by the HDB (“the HDB Terms”) are, as would be apparent, incorporated into the Agreement via clause 9.3(b) of the Option (see [9] above). Clause 3.3 of the HDB Terms (as printed from the HDB website) states:

HDB’s approval for resale is granted subject to:- The seller paying all outstanding taxes/charges, e.g. Property Tax, Service/Conservancy charges up to the effective date of resale; and The seller paying an ex-tenancy, arrears/debts and administrative charges owing by him to HDB with respect to the resale flat or any of HDB’s properties.

Clause 12.1 of the HDB Terms states:

If any person listed in the Application Form has any outstanding debts due and owing to HDB, such person shall be required to settle such debts and pay an administrative charge to be determined at HDB’s discretion before the application can be considered.

The HDB’s position

The position that the HDB has taken in respect of the sale of the Property is contained in the letter dated 11 March 2010, which was mentioned earlier at [7(d)] above, addressed to the Vendors. The relevant paragraphs are as follows:

We refer to the resale of your flat in which the first appointment was on 13/10/2009.

We are unable to grant approval for the resale as you owe HDB the sum of $42,685.67 being arrears for upgrading costs and late payment charges. To date, you have not settled the charges since the first appointment. For approval to be granted for the resale, the said charges are to be paid in accordance with the terms and conditions of resale.

...

The Vendors then received a second letter from the HDB dated 23 June 2010, which stated that...

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2 cases
  • EC Investment Holding Pte Ltd v Ridout Residence Pte Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 28 September 2011
    ...SLR (R) 858; [1993] 1 SLR 1041 (refd) Vishva Apurva, The [1992] 1 SLR (R) 912; [1992] 2 SLR 175 (folld) Wong Chee Siong v Tan Boon Hw a [2010] SGHC 222 (refd) Wroth v Tyler [1974] Ch 30 (refd) Bankruptcy Act (Cap 20, 2009 Rev Ed) s 45 Moneylenders Act 2008 (Act 31 of 2008) Rules of Court (C......
  • E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and others and another appeal
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    • Court of Appeal (Singapore)
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