476 SAL Annual Review (2010) 11 SAL Ann Rev

19. LAND LAW

TEO Keang Sood

LLM (Malaya), LLM (Harvard); Advocate and Solicitor (Malaya);
Professor, Faculty of Law, National University of Singapore.

Introduction

19.1 Cases decided in the period under review dealt with a host of
issues. The decisions further clarified the law on matters pertaining to,
inter alia, the exceptions to indefeasibility of title/interests and the
power of the High Court to sever a joint tenancy under the Supreme
Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). The position
of joint tenants in a collective sale was also considered.

Indefeasibility of title

Exceptions to indefeasibility

19.2 In Loo Chay Sit v Estate of Loo Chay Loo, deceased [2010]
1 SLR 286 (“Loo Chay Sit”), the appellant claimed to have paid for the
property in question which was registered in the name of Loo Chay Loo.
The latter passed away a month or so after the appellant filed a suit
against him. The appellant claimed that Loo Chay Loo and, after his
death, the respondent held the property on a resulting trust for him.
The High Court found in favour of the respondent and the appellant
appealed.

19.3 The Court of Appeal held that the respondent enjoyed the
presumption of indefeasibility of title under s 46 of the Land Titles Act
(Cap 157, 2004 Rev Ed) (“LTA”) given that Loo Chay Loo was the
registered proprietor of the property. To rebut this presumption, the
appellant had to prove that he had paid for the property so as to rely on
the doctrine of resulting trust as an exception to indefeasibility. As the
Court of Appeal explained (Loo Chay Sit at [14] and [15]):
On the part of the appellant, in order to impugn Loo Chay Loo’s title
so as to fend off the counterclaim, the appellant has to prove the
exceptional circumstances in the LTA, as a result of which the
presumption of indefeasibility of title is displaced. In so far as the
appellant relies on the doctrine of resulting trusts as one such
exception, he has to prove that he had paid for the property so as to
establish a resulting trust in his favour …
(2010) 11 SAL Ann Rev Land Law 477

… At the expense of repetition, it is of the first importance to

emphasise that if the appellant can prove, on a balance of
probabilities, that he had in fact paid for the Property, then the appeal
must succeed …

19.4 In the circumstances, the appellant failed to discharge the

burden placed on him and the appeal was dismissed.

19.5 It is interesting to note that the doctrine of resulting trust, as

seen from the judgment above, is now recognised as an exception to
indefeasibility, presumably in the statutory provision of s 46(2)(c) of the
LTA. This has certainly further clarified the scope of this provision. The
earlier Court of Appeal case of United Overseas Bank Ltd v Bebe bte
Mohammad [2006] 4 SLR(R) 884 (“Bebe”), in its quest for certainty of
title so as to ensure consistency with the policy of the LTA, appeared to
have restricted the scope of s 46(2)(c) to express trust in its review and
reconsideration of the Court of Appeal decision in Ho Kon Kim v Lim
Gek Kim Betsy [2001] 4 SLR 340 which applied the personal equity
giving rise to a constructive trust and which Bebe disapproved of. Given
that this is the position, it is unlikely that the recognition of resulting
trust as a statutory exception to indefeasibility will rekindle the debate
as to whether s 46(2)(c) should similarly have room for the recognition
of constructive trust as an exception, although this cannot be ruled out
completely as Bebe made it clear (Bebe at [91]) that Singapore courts
should be slow to engraft onto the LTA personal equities that do not
come within the exceptions in s 46(2), not that their application is
wholly unacceptable in appropriate cases.

19.6 In Tay Jui Chuan v Koh Joo Ann [2010] 4 SLR 1069, Tay
transferred a strata unit (the property) to Koh as a gift. The latter had
worked for Tay, his uncle, for 28 years. The transfer was registered. Later,
Tay had a falling out with Koh and asked for the return of the property.
A caveat was lodged against the property by A Pte Ltd, a company
controlled by Tay, on the ground that Koh held the property on trust for
Tay and that the legal title to the property was to be transferred by Koh
upon demand. Koh commenced legal proceedings seeking, inter alia, the
removal of the caveat and a declaration that he is the beneficial owner of
the property. Upon dismissal of his claim by the High Court, Koh
appealed.

19.7 The Court of Appeal held that the High Court’s finding that
Koh was holding the property on trust for Tay was contrary to the
evidence before the court. Koh’s uncontradicted evidence was that Tay
had told him that the property was a gift to him, the property was later
registered in his name and that until A Pte Ltd lodged the caveat against
the property, no one had claimed a beneficial title to the property or
478 SAL Annual Review (2010) 11 SAL Ann Rev

that it was not a gift to him. On the pleadings, Tay had never claimed a
trust in his favour.

19.8 The High Court was also wrong in approaching the case on the
basis that Koh had the burden to prove that the property was not a gift
to him. The Court of Appeal was of the view that Koh had no burden to
prove that he is the beneficial owner. As he is the registered owner of the
property, he has a good title against the whole world until it is proved
otherwise. Koh has indefeasible title to the property by virtue of s 46(1)
of the LTA (above, para 19.3), subject only to overriding interests
referred to therein and the claims set out in s 46(2) thereof. As Tay and
A Pte Ltd were not able to make a coherent claim to the property, the
appeal of Koh was allowed.

Leases

19.9 In Pontiac Land Pte Ltd v P-Zone Services Pte Ltd

[2010] 4 SLR 111 (“Pontiac Land”), issues pertaining to the validity of
the leases entered into and their binding effect on the defendant were
considered by the High Court.

19.10 The plaintiff sold to X Co its interest in car park levels 1 to 7

(“the property”) as well as two units in a shopping mall which it had
co-developed. At the same time, the plaintiff also wanted to retain its
interest in a 300 sq ft space at level 5 of the car park (the premises) for
the remainder of the leasehold of the land occupied by the shopping
mall, which amounted to some 75 years. To achieve this, 11 consecutive
tenancy agreements, ten of which were for a duration of seven years less
one day, and the 11th for a duration of five years, were executed in
favour of the plaintiff. These agreements were separated by a break of
one day. Under the agreements, the plaintiff would pay an annual rent
of $1.00 for the premises, which was payable in advance on the first day
of each year. X Co later sold the property to Y Co subject to the tenancy
agreements. Y Co, in turn, sold the property to the defendant, subject to
all existing tenancies although there was no specific mention of the said
tenancy agreements and/or the plaintiff in the sale and purchase
agreement. One Liew was a director and majority shareholder of both
Y Co and the defendant. When the plaintiff sought to tender payment of
rent to Y Co for the entire 75 years, the latter stated that the plaintiff had
breached the tenancy agreements by failing to pay rent in advance and
gave written notice that the tenancy agreements were terminated. The
plaintiff similarly tendered payment of rent to the defendant upon being
informed that the latter had purchased the property from Y Co. The
defendant rejected the payment of rent on the basis that it had no
knowledge of the plaintiff ’s interest and had therefore purchased the
property free of encumbrances. The plaintiff commenced proceedings
(2010) 11 SAL Ann Rev Land Law 479

against the defendant for, inter alia, a declaration that the tenancy
agreements were binding on the latter. The defendant counterclaimed
for, inter alia, a declaration that the tenancy agreements were illegal and
void at law and an alternative declaration that they were lawfully
terminated pursuant to an earlier termination letter.

19.11 On the evidence, the High Court held that no termination letter
had been served on the plaintiff. Further, the defendant had notice of
the tenancy agreements when it purchased the property from Y Co. This
was because Liew was a director and majority shareholder of both Y Co
and the defendant and was involved in the management of Y Co. The
sale and purchase agreement between Y Co and the defendant was
signed by Liew on behalf of the defendant and Liew’s stepson on behalf
of Y Co. This showed they were both in charge of both companies.

19.12 The High Court rejected the defendant’s contention that the
tenancy agreements were illegal and void, being contrary to public
policy, as they contravened s 53(1) of the Conveyancing and Law of
Property Act (Cap 61, 1994 Rev Ed) (“CLPA”) and s 12(3) of the
Planning Act (Cap 232, 1998 Rev Ed). The High Court explained thus
(Pontiac Land at [14]–[15]):
In so far as s 53(1) of the CLPA is concerned, I am unable to agree
with the defendant’s submission, which essentially flowed from the
characterisation of the 11 TAs as ‘de facto and de jure’ a 75-year lease.
In my view, such characterisation is misleading. It might be possible to
say that the 11 TAs amount to a ‘de facto lease’ for 75 years, but this is
merely a label; they are what they are, viz, 11 tenancies separated by a
one-day gap between the expiry of one TA and the commencement of
the next. There is no provision of law that prohibits this. As for the
label, ‘de jure lease’, it is not clear what the defendant meant by it. This
is because it is anything but a 75-year lease at law (which is what
‘de jure lease’ must mean) as s 53(1) of the CLPA provides that
‘[a] conveyance of any estate or interest in land other than a lease for a
period not exceeding 7 years at a rack rent shall be void at law unless it
is by deed in the English language’. Therefore any argument that the
11 TAs amount to a lease at law for 75 years would be countered by the
fact that there is no deed executed and in any event, any such lease, not
being in compliance with s 53(1) of the CLPA, would be rendered void
by that provision.
As for s 12(3) of the Planning Act, it provides that ‘[n]o person shall
without subdivision permission subdivide any land’. It was not
disputed that there was no subdivision permission relevant to the
matter. The question is whether there had been any subdivision of
land in respect of the TAs. The definition of ‘subdivide’ is found in
s 2(2) of the Planning Act (as it stood in March 1998 when the 11 TAs
were executed) …
…
480 SAL Annual Review (2010) 11 SAL Ann Rev

As each of the 11 TAs concerned a tenancy of less than seven years,

the proviso in s 2(2) of the Planning Act 1990 Rev Ed operates to
deem that each of the TAs was not a disposal within the meaning of
the definition. This means that they fall outside the definition of
‘subdivide’ and the execution of the TAs did not result in any
subdivision of land under s 12(3) of the Planning Act.

19.13 As to the nature of the said tenancy agreements, the High Court
explained further as follows (Pontiac Land at [18]):
The question really is: what is the nature of the 11 TAs? To understand
this, one should firstly consider a single tenancy agreement. There is
nothing to prevent a landlord from granting a tenancy that
commences from a future date. Indeed this is done in most tenancy
agreements as there is usually an interval between the date of
execution of the tenancy agreement and the date of its
commencement. That interval may be in terms of days or weeks, or
even months. There is no reason why it cannot be in terms of years or,
as in the present case, decades. Next, consider two tenancy agreements
to the same person. There is nothing in the way of a grant of a first
tenancy for three years commencing upon execution, and at the same
time the grant of a second three-year tenancy commencing four years
from the same date. In effect there is one-year break between the
expiry of the first tenancy and the commencement of the second. If, in
principle, there is nothing wrong with such an arrangement, then
there can be nothing wrong with granting two tenancies separated by
a one-day break between the expiry of the first and commencement of
the second. Once that is accepted, it is difficult to see how it is not
possible, in the absence of any written law prohibiting it, to grant the
11 TAs, the first ten each for a term of seven years less one day and the
11th for five years, each commencing a day after the expiry of the
previous one.

19.14 In the result, the claim of the plaintiff was allowed and the
counterclaim of the defendant dismissed.

19.15 In Ong Beng Chong v Goh Kim Thong [2010] SGHC 195 (“Ong
Beng Chong”), a dispute concerning the recovery of a house without a
land title by the landowner was considered. The plaintiff was the
registered proprietor of the land. The defendant and his wife had
purchased a house built on the land from the then ground tenants of the
land. The defendant recognised that the plaintiff was the owner of the
land on which the defendant’s house sat. The plaintiff served a notice to
quit on the defendant and subsequently determined the defendant’s
ground tenancy and required him to deliver up vacant possession of the
house. The defendant refused the offer of compensation of $225,000
from the plaintiff and demanded instead $1.8m to $2m before he would
vacate the house. As the plaintiff considered the sum demanded to be
unreasonable, the plaintiff commenced proceedings requiring the
defendant to deliver up vacant possession and pay the outstanding
(2010) 11 SAL Ann Rev Land Law 481

monthly ground rent. The defendant argued that he had not been in
arrears in paying the ground rent and contended that so long as he paid
the ground rent of $7 per month, he was entitled to squat on the land
until the 999 years lease runs out in the year 2883.

19.16 Having regard to Khew Ah Bah v Hong Ah Mye [1971–1973]

SLR(R) 107 and Lee Suat Hong v Teo Lye [1987] SLR(R) 70, the High
Court found no evidence of representations of any kind made by the
plaintiff or his predecessors in title to the previous owners of the house
or the defendant that the owner of the house would be entitled to stay
permanently on the premises. As such, no expectation had been created
that the defendant was permitted to stay permanently at the premises.
Accordingly, the defendant had to vacate the house and surrender the
premises and was not allowed to continue to pay the ground rent and
stay till the expiry of the 999 years lease: Ong Beng Chong at [8].

19.17 The High Court further elaborated as follows (Ong Beng Chong
at [9]):
However, as the original owner of the house was permitted by the then
landowner to erect a house on part of the land which led the original
house owner to expend money in building the house on the land, the
authorities are clear that an equity in favour of the house owner (and
his successors in title) has been created which must be satisfied before
the landowner (or his successors in title) can recover possession. As
this case is similar to the facts in Lee Suat Hong v Teo Lye … the
equity would be amply satisfied by the plaintiff paying reasonable
compensation to the defendant for the replacement cost of the house
adjusted for depreciation to take account of the present age and
condition of the house. [It was not] reasonable that the compensation
be based on the cost of building a new house of a similar size without
allowing for any depreciation.

19.18 As the defendant had continued to refuse the plaintiff ’s offer of

compensation of $225,000, the High Court considered what would be a
reasonable compensation for the house on an objective basis having
regard to the two professional valuation reports obtained by the parties.
In the result, the defendant was awarded the higher valuation of $74,000
which represented a fair and reasonable compensation for the
replacement cost of the house in its present condition.

Easements

19.19 The circumstances in which an easement was considered to

have been abandoned or extinguished arose for consideration in Lian
Kok Hong v Lee Choi Kheong [2010] 3 SLR 378 (“Lian Kok Hong”).
482 SAL Annual Review (2010) 11 SAL Ann Rev

19.20 The appellant and the respondents owned 72 Belmont Road

and 70 Belmont Road respectively. Originally, both properties were part
and parcel of the same land until the common owner subdivided it and
sold 70 Belmont Road to the respondents’ predecessor in title and
granted the owner of 70 Belmont Road a right of way over part of the
land now owned by the appellant (plot B). The ownership of both 70
and 72 Belmont Road had changed hands many times. One of the
previous owners of 72 Belmont Road had, on or before August 1973,
constructed a fence along the common boundary of the two houses and
fenced off plot A which was part of 70 Belmont Road. The fence became
a party wall separating the two properties and deprived the then owner
of 70 Belmont Road of its right of way over plot B.

19.21 The appellant had subsequently commenced proceedings for an

injunction to restrain the respondents from building a gate at the
entrance of an access road on plot A where it met Belmont Road. The
respondents counterclaimed for a right of way over plot B. The
appellant’s action was dismissed by the High Court which allowed the
respondents’ counterclaim. The appellant appealed.

19.22 The Court of Appeal held (Lian Kok Hong at [12]) that, except
in the case of a right of way of necessity, there is, in principle, no reason
why one dominant owner may not abandon his right of way over the
relevant servient tenement, if he is still able to access the main road
without the use of the right of way over the servient tenement. On the
facts of the instant case, there was no evidence that the easements over
plots A and B were created to be mutually co-existing, such that one
could not be abandoned without abandoning the other.

19.23 As to whether the easement of right of way over plot B had been
abandoned, the Court of Appeal was of the view that at common law,
rights under an easement are perpetual and, therefore, the court will not
lightly infer that the dominant owner would give it up for no
consideration. Hence, mere non-user by itself, without more, however
long, cannot amount to abandonment. In the instant case, however, it
was not so much the actual non-user that was crucial but the long
acquiescence by the successive owners of 70 Belmont Road to the right
of way over plot B being fenced off. Such conduct amounted to
acquiescence to the right of way being rendered unusable and would
amount to a conscious act of abandonment. In the result, the easement
of right of way over plot B was no longer subsisting within the meaning
of s 46(1)(c)(ii) of the LTA (above, para 19.3) as it had been abandoned.
(2010) 11 SAL Ann Rev Land Law 483

Co-ownership

Power of court to sever joint tenancy

19.24 The power of the High Court to effect severance of a joint

tenancy was considered in Neo Hui Ling v Ang Ah Sew [2010] SGHC 328
(“Neo Hui Ling”). The plaintiff and her mother (the defendant) were
joint tenants of the three-storey landed property in question. The
plaintiff had paid for the property and had included the defendant as a
joint tenant so that the latter would have a roof over her head if the
plaintiff should unexpectedly pass away. Later, their relationship
deteriorated during the time that the parties resided at the property. The
plaintiff applied for the property to be sold.

19.25 The High Court held that it is trite law that a property that is
jointly owned cannot ordinarily be sold or otherwise transferred
without the consent of both joint tenants. However, under s 18(2) read
with para 2 of the First Schedule to the SCJA (above, para 19.1), the
High Court has the power to sever a joint tenancy and order its sale if it
appears “necessary and expedient” to do so, and to make all the
necessary consequential orders.

19.26 In allowing the application, the High Court took into

consideration the following (Neo Hui Ling at [8]–[9]):
[I]t was clear that the relationship between the parties had drastically
deteriorated. Both parties filed lengthy affidavits detailing the history
of their relationship and particularising their recent conflicts … with
differing accounts on various issues. It was not necessary or indeed
appropriate for me to decide on the truth of those conflicting
accounts. It was sufficient that those accounts clearly showed that the
relationship had broken down such that it was impossible to expect
the parties to act jointly in deciding what to do with the Property.
Further, the plaintiff had taken out a housing loan of $1.35m to
purchase the Property for which the monthly mortgage instalments
approximated $10,000. The plaintiff deposed that she could not
continue servicing the mortgage instalments especially as she had to
bear the expenses of a separate household. The defendant did not
challenge this. I accepted this as a further reason why it was necessary
that the Property be sold – if the bank foreclosed on the mortgage, all
parties would have to vacate the property in any case.

19.27 The High Court noted that there would not be undue hardship
to the defendant in finding alternative accommodation. The plaintiff ’s
elder sister had agreed to allow the defendant to stay with her in the
event the property was sold. The plaintiff had also offered to provide
rented accommodation for the defendant if she so wished. As for the
plaintiff ’s two younger twin sisters living with her in the property, the
484 SAL Annual Review (2010) 11 SAL Ann Rev

High Court noted that they were 35 years’ old, working and should be
financially independent. They should make their own arrangements for
alternative accommodation. There was no obligation on the plaintiff to
find accommodation for them.

19.28 Instead of ordering that the entire net proceeds of the sale be
paid to the plaintiff, the High Court directed that 50% thereof be held
by the plaintiff ’s solicitors as stakeholders, pending further orders from
the court with regard to determination of the parties’ equitable interest
in the property.

19.29 In Wong Kim Wan v Leong Ong Meng Jerome Matthew [2010]
SGHC 318, the High Court similarly exercised its powers under s 18(2)
of the SCJA (above, para 19.1) read with para 2 of Schedule 1 to order
the sale of the property in question. The plaintiff and defendants had
purchased the property with the plaintiff having a half-share thereof
while each of the defendants had a quarter-share of the property. The
High Court noted that the property had not been economically
exploited for the benefit of all its owners for many years due to the bitter
and unnecessary fight between its owners. In view of the acrimony
between the parties and the positions adopted by the parties in the past,
they will continue to face a stalemate if they did not get their act
together by having one party buy the other party’s share at an agreed
price or by having the property sold to a buyer approved by both parties.
It was necessary and expedient that an order be made for the property
to be sold in the open market and that neither party should have sole
conduct of the sale.

Caveatable interests

19.30 The issue whether unsecured creditors, on a winding up of a

company, obtain any beneficial interest in the company’s property,
including its encumbered assets, was considered in Power Knight Pte Ltd v
Natural Fuel Pte Ltd [2010] 3 SLR 82 (“Power Knight”). If no interest in
land arises, then any caveat lodged in favour of the unsecured creditors
cannot be sustained.

19.31 In the instant case, a dispute arose between the debenture-

holder of a company which granted a fixed charge in favour of the
former over all of the latter’s interests in real property and the
unsecured creditors of the company upon the subsequent winding up of
the company. Caveats were lodged by the liquidators for and on behalf
of the unsecured creditors, as well as by the company claiming an
interest in the property as trustee of the interests in the land for the
benefit of the unsecured creditors of the company under a statutory
(2010) 11 SAL Ann Rev Land Law 485

trust arising as a result of the winding-up application and/or winding-

up order. The debenture-holder applied for the caveats to be removed.

19.32 On the evidence, the High Court regarded the debenture-

holder’s security interest as an equitable mortgage given that the parties
intended that the debenture-holder should have all the remedies
available to a mortgagee: Power Knight at [24]. The High Court
emphasised that, on the authorities of Re Regent’s Canal Ironworks Co;
Ex parte Grissell (1875) 3 Ch D 411 at 427; Re David Lloyd & Co (1877)
6 Ch D 339 at 344–345; Re Pyle Works (No 1) (1890) LR 44 Ch D 534
at 577–578 and Buchler v Talbot [2004] 2 AC 298 at [51], only a
company’s unencumbered or free assets are available, upon liquidation,
for distribution among its unsecured creditors. Consequently, even if, as
the liquidators contend, a statutory trust arose on the winding up of the
company for the benefit of the unsecured creditors, the subject matter
of such a trust could not include the property which was already validly
encumbered by the debenture-holder’s fixed charge and therefore
unavailable to the unsecured creditors: see Buchler v Talbot [2004]
2 AC 298 at [28] and Roberts Petroleum Ltd v Bernard Kenny Ltd [1983]
2 AC 192 at 208.

19.33 The High Court distinguished Ng Wei Teck Michael v Oversea-

Chinese Banking Corp Ltd [1998] 1 SLR(R) 778 which did not support
the contention that an unsecured creditor, in and by virtue of a winding
up, has a beneficial interest in property subject to a registered charge. As
the unsecured creditors of the company had no interest in the property
which was validly charged to the debenture-holder, it followed that they
did not have any interest in land for the purposes of lodging a caveat
under s 115 of the LTA (above, para 19.3). In the result, the caveats
lodged by the liquidators and the company were removed.

Conveyancing

Applicability of doctrine of part performance in Singapore

19.34 That the doctrine of part performance applies in Singapore was

decided by the Court of Appeal in Joseph Mathew v Singh Chiranjeev
[2010] 1 SLR 338. This case was discussed in (2009) 10 SAL Ann Rev 385
at 393–395, paras 19.27–19.30.

Option to purchase and conditions of sale

19.35 In Cheong Lay Yong v Muthukumaran s/o Varthan [2010]

3 SLR 16 (“Cheong Lay Yong”), the plaintiff was granted an option to
purchase an apartment from the defendants. The plaintiff gave a cheque
as payment for the option. Upon discovering an electrical transformer
486 SAL Annual Review (2010) 11 SAL Ann Rev

near the property, the plaintiff countermanded the cheque. The plaintiff
alleged that she informed the property agent and the first defendant of
her change of mind. It was also alleged by the plaintiff that the first
defendant persuaded her to go through with the purchase. The
defendants denied these allegations. Subsequently, the plaintiff decided
to proceed with the transaction and handed a second cheque to the
defendants’ solicitors who did not know of the countermanded cheque.
The defendants’ solicitors, knowing that the defendants were trying to
sell the property, accepted the second cheque. The plaintiff exercised the
option in due course. The defendants refused to complete the sale on
the ground that the option had automatically lapsed when the plaintiff
countermanded the first cheque. Further, the solicitors were not
authorised to accept the second cheque or the deposit upon the option
being exercised by the plaintiff. The plaintiff sued for specific
performance, interest and an account for rent under the Law Society
Conditions of Sale 1999. The solicitors and property agent were added
as third parties by the defendants in the action.

19.36 The High Court found for the plaintiff as follows (Cheong Lay
Yong at [36]):
It is clear …, having heard and considered the evidence, that the
1st Defendant knew that the 1st Cheque had been dishonoured on
30 May 2007, the 1st Defendant did not repudiate the Option but
instead told the Plaintiff that they would discuss it further when he
returned from holiday, the 1st Defendant instructed the Agent
nonetheless to try and persuade the Plaintiff to go through with the
sale, the Agent did so, the Plaintiff changed her mind and pursuant to
her instructions, the Agent brought the Plaintiff to Krishna, the
Defendants, with full knowledge of the facts, and having been advised
of their rights upon their return from holiday, decided to go ahead
with the sale of the Apartment nonetheless and the 1st Defendant
instructed Krishna to proceed with the sale and ask for an extension of
the completion date and release of the 4% of the purchase price from
the stakeholding obligation. The Defendants only changed their minds
when the Plaintiff did not accede to their requests. I also find that
there are two reasons why the Defendants changed their minds. The
first is because the Plaintiff refused to postpone completion and to
agree to early release of the 4% Option fee. Secondly, because the
prices of properties, including the Apartment, had risen …

19.37 In granting specific performance in favour of the plaintiff and

dismissing the defendants’ claim against the third parties, the High
Court explained thus (Cheong Lay Yong at [42]–[44]):
The Defendants therefore fail at a number of levels, any one of which
is fatal to their defence. First, when the Plaintiff repudiated the option
stage of the contract by countermanding payment of the cheque with
the intention of backing out of the purchase of the Apartment, which
repudiation was communicated to the Defendants, the Defendants
(2010) 11 SAL Ann Rev Land Law 487

were put to election, to accept the repudiation and terminate the

contract or to affirm the contract, having in either case, the right to
damages. The 1st Defendant clearly elected to keep the option stage of
the contract alive by what he said to the Plaintiff as well as his
instructions to the Agent before he went on holiday. Secondly, even if
we put this to one side, when he returned from his holiday, with full
knowledge of the facts, he instructed Krishna to proceed with the sale,
he even affirmed the contract by asking for a variation of terms,
viz, postponing the completion and seeking a release of the option
exercise monies from the stakeholder obligation, both through his
lawyers to the Plaintiff ’s lawyers as well as personally to the Plaintiff.
The Defendants submitted that Krishna was negligent and acted
without mandate in accepting the 2nd Cheque on 8 June 2007 whereas
the Option, dated 29 May 2007, expressly provided that the option
monies were paid to the 2nd Defendant. This submission does not
arise in view of my findings of fact. In the event I am wrong, there are
at least three answers to this. First, the Option itself provides that the
vendor’s solicitors are appointed ‘… as the vendor’s agent for the
collection of the purchase price or any part thereof and all money
payable under this option’. Secondly, even after the 1st Defendant
knew of the tender of the 2nd Cheque and the exercise of the Option
on 11 June 2007, the 1st Defendant affirmed the contract by
instructing Krishna to proceed and to ask for a variation of terms.
This would amount to waiver with full knowledge of the facts and
circumstances. Thirdly, this would also amount to ratification of
Krishna’s acts in accepting the 2nd Cheque and the exercise of the
Option.
As for the Agent, she acted within the scope of her authority and the
instructions given to her by the Defendants. The Defendants have not
even begun to discharge the heavy burden of proof in their allegations
of false representations, knowing assistance to the Plaintiff to make
representations fraudulently or making it carelessly not caring
whether they were true or false. She did not induce or mislead Krishna
in view of my findings of fact, especially the 1st Defendant’s
instructions on 30 May 2007 to try and persuade the Plaintiff to go
through with the purchase. If I am wrong, and she was under a duty to
inform Krishna that there was a 1st Cheque that was dishonoured,
then I find that the Defendants waived this oversight in proceeding
with the sale nonetheless and by doing so, ratified any acts done by the
Agent.

19.38 The plaintiff was awarded interest under condition 8.2 of the
Law Society Conditions of Sale as the sale was not completed as
contracted and the delay in completion was due solely to the default of
the defendants as vendors. The High Court also awarded the plaintiff
damages and an account of rent given that the defendants became
qualified trustees of the property once the plaintiff had exercised the
option, and were therefore accountable to the plaintiff for any rental
profits from the time the sale ought to have been completed. As the
488 SAL Annual Review (2010) 11 SAL Ann Rev

defendants had manufactured evidence and deliberately and cynically

breached their contract with the plaintiff for monetary gain, they should
not be allowed to profit from their wrongdoing (Cheong Lay Yong
at [56], [58] and [59]).

Recovery of deposit under null and void contract

19.39 In Aqua Art Pte Ltd v Goodman Development (S) Pte Ltd [2010]
4 SLR 86 (“Aqua Art”), the plaintiff had entered into an agreement with
the defendant for the purchase of residential properties. The plaintiff
signed the option to purchase. The option was subsequently declared by
the court to be null and void pursuant to s 3 of the Residential Property
Act (Cap 274, 2009 Rev Ed). In the present proceedings, the plaintiff
sued the defendant for the return of the deposit paid by it to the latter
on the ground of misrepresentation by the defendant.

19.40 In holding that the plaintiff ’s claim on misrepresentation failed,

the High Court found (Aqua Art at [6]) that the plaintiff had
professionals in law and property, the experience and business acumen
of its director, and above all, time to verify the one point that seemed
most important to it – the zoning of the shophouses. The plaintiff knew
what the zoning was when the balance of the deposit was paid.

19.41 In rejecting the plaintiff ’s claim that, since the contract was
declared null and void by the court, the deposit must be returned as a
matter of natural consequence of a void contract, the High Court
explained (Aqua Art at [7] and [8]) as follows:
… In this case, the contract was not merely void on some innocuous
ground, but void by reason of a breach of a statutory provision.
Pursuant to s 3 of the Act, the defendant as vendor was prohibited
from transferring residential property to a foreigner, and the plaintiff
as a foreigner was prohibited from purchasing residential property.
Section 36 of the Act provides a general punishment of a fine up to
$5,000 or a term of imprisonment up to three years or both. I do not
think that it has been established as a matter of law that a purchaser in
a contract rendered void by s 3 would never be able to recover money
paid over by him to the vendor. However, given the serious nature of a
breach under s 3, the party seeking the court’s assistance in recovering
money paid under such a contract must at least be able to show that
he had a strong case that it would only be fair and just that he recovers
his money. In this case, I find as a fact that [the plaintiff ’s director]
knew that he was unable to buy residential property and that he
probably knew that the shophouses were residential property, and, in
any event, the evidence indicated clearly that it would not be safe for
him to pay over the money without verification or contractual
protection …
(2010) 11 SAL Ann Rev Land Law 489

[I]t it seems to me that equity and law are against granting relief to the
plaintiff …

19.42 In respect of the option fee paid, as it was the price paid for the
option (separate from the contract for sale), the High Court held that
the defendant was entitled to it.

Jurisdiction of court to adjudicate on disputes of title to foreign land

19.43 In Ng Teck Sim Colin v Hat Holdings Pte Ltd [2010] 4 SLR 840
(“Ng Teck Sim”), the plaintiffs had purchased a property in Thailand
from D Co Ltd. A licence to construct (construction permit) a villa on
the property was issued to S, an architect. The construction permit
named S as the owner of the villa and it was purportedly assigned to the
plaintiffs. The property was later sold to H Pte Ltd, the first defendant.
The sale and purchase agreement provided for the sale price of the
property at US$1.85m (with US$1m being in respect of the land and
US$850,000 being in respect of the villa and the fixtures attached
thereto). The agreement also provided for the title to be free from
encumbrances and that H Pte Ltd would not object on the ground of
any documents not in the plaintiffs’ possession. The transfer of the land
to H Pte Ltd was successfully effected. However, the transfer of the villa
from S to H Pte Ltd did not materialise as S was concerned about his
income tax liability. The plaintiffs then provided S with a letter of
guarantee. It was agreed that 50% of the villa purchase price would be
paid upfront and the remaining final payment would be paid after the
expiry of the 30-day notice period that was required to transfer the villa.
The registration of the sale of the villa to H Pte Ltd was subsequently
completed but no final payment was made by the latter, although a
lesser sum was later tendered but rejected by the plaintiffs. The plaintiffs
initiated proceedings to claim the amount representing the final
payment on the ground that H Pte Ltd was in breach of its obligation to
make the payment. H Pte Ltd argued, inter alia, that the plaintiffs were
in breach of their obligation to provide good, proper and perfect legal
title to the villa given that S’s title was defective as he was not the proper
holder of the permit in respect of the villa. At the end of the trial, H Pte
Ltd elected to claim solely for specific performance of the sale and
purchase of the villa, and for damages arising from the plaintiffs’ failure
to procure or transfer title to the villa to them.

19.44 The High Court held that it is trite law that the court does not
have the jurisdiction to entertain proceedings involving determination
of title to foreign land (“the Mocambique principle”: see Companhia de
Mocambique v British South Africa Co [1892] 2 QB 358). As the High
Court further explained (Ng Teck Sim at [37]–[38]):
…The present case goes further as the dispute to title possibly involves
issues relating to Thai custom and tradition of the community given
490 SAL Annual Review (2010) 11 SAL Ann Rev

the expert witnesses’ evidence that under Thai law, there is no official
document to prove one’s title to a building, unlike the case of one’s
title to land. Furthermore, an estoppel could arise as between the
parties in Thailand subsequently, if this issue is finally decided by the
Singapore courts. In these circumstances, I do not think that it is wise
or expedient for this court to adjudicate on the issues of title that were
raised by the parties.
… To conclude, both the [plaintiffs’] claims and [H Pte Ltd’s]
counterclaim involve the integral question of title that the court needs
to resolve, and as such the claims are non-justiciable.

19.45 Further, the parties could not consent to the court adjudicating
on such disputes of title: Ng Teck Sim at [38].

19.46 However, given the special circumstances of the case, the High
Court did not dismiss the action but ordered a stay instead for the
parties to sort out the fundamental issues relating to title, such that the
Mocambique principle was not offended and only the contractual issues
remained alive before the court. In this regard, the parties were to do the
needful without any unnecessary delay. Once a ruling from the Thai
courts was obtained, the High Court would be placed in a position to
determine the contractual rights or obligations of each party. In the
result, the contractual issues between the plaintiffs and the first
defendant were reserved pending the outcome of the stay order.

Strata title

Meaning of “title”

19.47 In Cheok Doris v Commissioner of Stamp Duties [2010]

4 SLR 397 (“Cheok Doris”), the purchasers, namely, the appellant and
her husband, had alleged that the vendor’s agent had represented to
them that the property they were purchasing had a “net lettable area” of
2
1,045m . This was the same as the total strata area of the property stated
in the subsidiary strata certificates of title. The purchasers, however,
2
discovered that the total strata area included 230m of void space which
effectively reduced the market value of the property by 14%. The sale
and purchase agreement was rescinded by the mutual agreement of the
parties before the transaction was completed.

19.48 Upon being assessed by the respondent for ad valorem stamp

duty at the contract price, the purchasers served a notice of objection,
2
contending that, given that the net lettable area was less than 1,045m ,
the vendor was unable to give a good title to the area sold to them
pursuant to s 22(6)(a) of the Stamp Duties Act (Cap 312, 2006 Rev Ed)
(“SDA”). This provision provided for the refund of stamp duty where
(2010) 11 SAL Ann Rev Land Law 491

the contract or agreement is later rescinded or annulled on the ground

that the vendor is unable to prove his title to the property. The
respondent, having rejected the objection, stated a case to the High
Court at the request of the purchasers as an appeal by the latter. The
appeal was dismissed by the High Court and the appellant appealed.

19.49 The Court of Appeal opined that the word “title” in s 22(6)(a)
of the SDA refers to a good title or a good marketable title, one which
shows the whole of the legal and equitable interest in the land sold and
which can be proved according to the law. The Court of Appeal noted
(Cheok Doris at [22]) that:
In the present case, the Property is registered land and comprises eight
strata titled units registered in the name of the Vendor. The sale of the
Property included the common property which is also registered land
comprised in a certificate of title which is registered in the name of the
Vendor. There can be no doubt that, at all material times, the Vendor
was able to prove his title to the Property under the LTA, and therefore
should be able to prove his title in the terms of s 22(6)(a) of the SDA …

19.50 The Court of Appeal rejected the appellant’s argument that the
deficiency in the lettable area of the property was relevant to the
question of whether the vendor had a good title to the property. As a
matter of language, logic and common sense, the total area of the strata
units must be the same as the lettable area. Given that the subsidiary
strata certificates of title show the total area of the eight strata units as
2
1,045m , it was impossible to argue that the vendor was not able to give
a good title to what is really a conclusive area under the law.

19.51 In the opinion of the Court of Appeal, the ambit of s 22(6)(a)

of the SDA is too narrow to give relief to many genuine non-speculative
property transactions which have been, or may be, annulled or aborted
for bona fide or legitimate reasons by the parties concerned. In the
result, the appellant would not be entitled to any refund of stamp duty
even where the agreement has been annulled or rescinded on any
ground other than a lack of good title.

Collective sale

19.52 The question whether all co-owners in a joint tenancy or

tenancy in common have to act together to either support or oppose a
proposed collective sale was considered in Goh Teh Lee v Lim Li Pheng
Maria [2010] 3 SLR 364 (“Goh Teh Lee”).

19.53 The appellant was a co-owner of one of the units in a

development which was approved for collective sale by the Strata Titles
Board. The Board and the High Court (discussed in (2009) 10 SAL Ann
Rev 385 at 409–412, paras 19.64–19.73) had rejected the appellant’s
492 SAL Annual Review (2010) 11 SAL Ann Rev

objection to the collective sale. At the time of the hearings before the
Board and the High Court, the appellant was involved in divorce
proceedings with his then-wife, the other co-owner of the said unit, who
had agreed to the collective sale. The appellant subsequently appealed
against the decision of the High Court. The Court of Appeal proceeded
first to deal with the issue of the locus standi of the appellant to lodge
appeals before it and the High Court and his objections before the
Board. This in turn depended on whether the appellant and his ex-wife
had to act together in supporting or opposing the proposed collective
sale.

19.54 As to the nature of the two types of co-ownership in Singapore,

namely, joint tenancy and tenancy in common, the Court of Appeal
explained as follows (Goh Teh Lee at [11] and [13]):
Joint tenancy is that form of co-ownership where each of the
co-owners is entitled to the whole of the interest which is the subject
of co-ownership. In a joint-tenancy, each joint tenant holds the whole
jointly and nothing severally: quilibet totum tenet et nihil tenet; scilicet,
totum in communi, et nihil separatism per se [each holds the entirety
and yet holds nothing; that is, the entirety in common, and nothing
separately by itself]. Joint tenants have rights inter se, but against the
world they are seen as one single owner. Thus, no one joint tenant
holds any specific or distinct share of the co-owned interest himself.
Rather, the interest of each joint tenant is identical and lies in the
whole and every part of the land, and none of that land is held by one
joint tenant to the exclusion of the rest …
…
Tenancy in common, by contrast, is the form of co-ownership in
which co-owners own specific, but undivided shares in the land …
Hence, the main difference lies in the fact that unlike joint tenants,
tenants in common hold distinct ‘shares’ in a single piece of land,
albeit land which has not yet been divided physically among the
co-owners. Whilst the tenancy in common continues, each tenant in
common has a separate and distinct interest of his own in the land
held in common. This interest can be assigned either to a third party
or to the other co-owner(s). However, each tenant in common does
not own any specific part of the land over another part. Instead, his
interest in that piece of land attaches to any part of the land.

19.55 Given that the definition of “subsidiary proprietor” in s 3 of the

Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) requires the person to
be proprietor of the entire estate; a single tenant in common will not
qualify as such since he would not be the owner of the entire interest but
merely an owner of a distinct portion of the estate. In the case of a joint
tenancy, since the interest of each joint tenant is the same in extent,
nature and duration, each and every joint tenant must act together in
any dealings with the whole legal estate before such dealings may
effectively bind the entire estate given that the whole estate does not
(2010) 11 SAL Ann Rev Land Law 493

reside in the single joint tenant or in some of them. For this principle of
law, the Court of Appeal cited Leek and Moorlands Building Society v
Clark [1952] 2 QB 788; Malhotra v Choudhury [1980] Ch 52; and Mookka
Pillai Rajagopal v Khushvinder Singh Chopra [1996] 3 SLR(R) 210, among
others.

19.56 The Court of Appeal distinguished the position of mortgagees

or chargees with an interest in the unit who are allowed to object to a
collective sale on the ground that they are permitted to do so by the
relevant provisions in the Land Titles (Strata) Act: Goh Teh Lee (above,
para 19.52) at [27].

19.57 It was also made clear by the Court of Appeal that in a joint
tenancy, where one co-owner had objected but the other co-owner had
agreed to the collective sale, the unit cannot be regarded to have either
objected or agreed to the sale. This is to respect the rights of both
co-owners. In the result, as the ex-wife of the appellant had not similarly
opposed the collective sale, the appellant’s appeal was dismissed as he
was found to have no locus standi to commence or sustain the
proceedings before the courts or the Board.