Yeo Yoke Mui v Kong Hoo (Private) Ltd and Another

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 08 February 2001
• Neutral Citation: [2001] SGHC 28
• Published date: 14 March 2013
• Court: High Court (Singapore)
• Plaintiff Counsel: Salehah Johari (Salehah & Co)
• Defendant Counsel: Suhaimi Lazim with David Kong (Shook Lin & Bok)

JUDGMENT:

Cur Adv Vult

1. This registrars appeal arises out of an assessment of the damages that the plaintiff, Ms Yeo, has to pay the first defendant, Kong Hoo (Private) Ltd (KHPL), resulting from the repudiation by Ms Yeo of her contract to purchase the house and premises at 93 Cashew Terrace, Singapore (the property) from KHPL. The issue is whether such damages should be assessed as at the date of the breach or the date of the trial.

Background

2. On 11 March 1997, KHPL granted Ms Yeo an option to purchase the property at the price of $1,960,000. Under the terms of the option, completion of the sale and purchase was scheduled for 13 June 1997. On 2 May 1997, Ms Yeo exercised the option. Three weeks later, she became aware that the property was subject to road reserves that would affect her ability to extend the house and, on 30 May 1997, she purported to rescind the sale and purchase on that ground.

3. KHPL did not accept the rescission of the sale and purchase agreement. On 17 June 1997, four days after the scheduled completion date, KHPL served a notice on Ms Yeo requiring her to complete the purchase of the property within 21 days thereafter. Ms Yeo ignored this notice. Instead, she commenced this action against, inter alia, KHPL, seeking a declaration that she was entitled to rescind the sale and purchase agreement and the return of the ten percent deposit which she had paid KHPL. KHPL denied that there was such a rescission and put in a counterclaim for specific performance of the agreement or, alternatively, damages.

4. In late July 1997, some time after the counterclaim had been filed, KHPL instructed a property agent to market and sell the property. Advertisements for the sale of the property appeared in the newspapers between August and October 1997. Enquiries were made and the property was shown to a few prospective purchasers but no sale contract materialised.

5. The trial took place in August 1998. During the course of the trial, KHPL abandoned their claim for specific performance and elected to pursue their claim for damages instead. In November 1998, the trial judge dismissed Ms Yeos claim against KHPL, gave judgment in favour of KHPL on the counterclaim and ordered that there be an assessment of the damages to be paid to KHPL. It should also be noted that there was a second defendant in the case, the solicitor, Mr Ng, who had originally advised Ms Yeo on the purchase. At first instance Ms Yeo was not successful in her claim against the solicitor but she succeeded on appeal. The practical result was that any damages ordered to be paid by Ms Yeo to KHPL would actually be borne by Mr Ng.

The assessment

6. The main legal issue canvassed during the assessment was whether the date at which the damages sustained by KHPL should be assessed was the date of the breach of contract ie 13 June 1997 when Ms Yeo failed to complete the purchase or whether it was the date at which KHPL elected to pursue their remedy in damages instead of insisting on specific performance ie August 1998. The Assistant Registrar held that by instructing the property agent to market and sell the property in July 1997, KHPL had clearly elected to accept Ms Yeos repudiation of the agreement and indicated their intention not to pursue the remedy of specific performance. She concluded that it was therefore appropriate to assess damages as at the date of the breach.

7. On the evidence before her, the Assistant Registrar found that the value of the property as at 30 June 1997 had been $1.8 million. The difference between that value and the contract price of $1.96 million was $160,000 and the Assistant Registrar awarded KHPL that sum as damages for breach of contract. In addition, she held that they were entitled to the estimated costs of a resale on 13 June 1997 and awarded them the sum of $25,000 under this head. She further held that the total amount of damages awarded to KHPL of $185,000 should be set off against the deposit of $196,000 which had been received by KHPL pursuant to the terms of the option. Since the deposit exceeded the damages, she concluded that KHPL had only recovered nominal damages. As a result, an order for costs was made against KHPL.

8. KHPL has appealed against the above findings and orders.

The law

9. The law relating to an award of damages in lieu of an order for specific performance of a contract for the sale and purchase of land has been canvassed fairly frequently before the courts of Singapore. The most recent reported decision, and one that contains an excellent analysis of the legal position, is that of Ho Kian Siang v Ong Cheng Hoo [2000] 4 SLR 376. There, Lee Seiu Kin JC, considered the leading authority of Johnson v Agnew [1980] AC 367, as well as the following local cases: Indian Overseas Bank v Cheng Lai Geok [1992] 2 SLR 38, Meng Leong Development v Jip Hong Trading Co [1984-1985] SLR 27 and Tay Joo Sing v Ku Yu Sang [1994] 3 SLR 719.

10. Having set out the five propositions of law put forward by Lord Wilberforce in Johnson v Agnew, Lee JC noted:

From these propositions it can be seen that, in respect of contracts capable of specific...