Low Heng Leon Andy v Low Kian Beng Lawrence (administrator of the estate of Tan Ah Kng, deceased) [2017] SGHC 200

The Plaintiff has appealed against my decision. I now give the grounds of my decision.

Background

The factual matrix of the main suit (“the Suit”) is set out in my judgment in respect of an earlier Registrar’s Appeal: see Low Heng Leon Andy v Low Kian Beng Lawrence (administrator of the estate of Tan Ah Kng, deceased) [2013] 3 SLR 710 at [2]–[6]. The key facts for these grounds of decision are as follows.

The key facts

The Plaintiff is a 33-year-old Singaporean male. He is a cousin of Low Kian Beng Lawrence, who was the administrator of the Estate (“the Administrator”). After the latter applied for and was discharged as the Administrator, the Plaintiff obtained an order for the beneficiaries of the Estate to appoint a representative to defend the Suit on the Estate’s behalf. However, no such representative was appointed. The Plaintiff then obtained interlocutory judgment against the Estate with damages to be assessed.

The present dispute centres on a flat located at Block 306 Hougang Avenue 5, #02-355 Singapore 530306 (“the Flat”). The Flat was jointly owned by the Deceased and her daughter, Low Eng Cheng (“the Aunt”). Upon the Aunt’s death, the Deceased became the sole owner of the Flat. The Plaintiff had been living in the Flat since he was born. In 2005, the Deceased and the Aunt, who had hitherto been residing elsewhere, returned to the Flat. In 2006, the Plaintiff’s brother, who had remained in the Flat with the Plaintiff after the rest of their family left the premises in 2003, moved out. Thereafter, the Plaintiff, the Deceased and the Aunt occupied the Flat. On 7 September 2007, the Aunt passed away. On 28 November 2008, the Deceased passed away. Pursuant to the Intestate Succession Act (Cap 146, 1985 Rev Ed), the beneficiaries of the Estate were the surviving children of the Deceased. The Plaintiff was therefore not a beneficiary of the Estate.

In early January 2009, the Administrator gave notice to the Plaintiff to vacate the Flat after he informed the Plaintiff that he had been granted Letters of Administration and that the Estate was the legal and beneficial owner of the assets of the Deceased, which included the Flat. The Administrator subsequently commenced an action for immediate possession of the Flat. On or about 24 July 2009, the parties entered into a consent order, under which the Administrator would abandon all claims against the Plaintiff arising from the Plaintiff’s occupation of the Flat if the Plaintiff delivered vacant possession of the Flat. Accordingly, the Plaintiff moved out of the Flat in or around the same month. The Plaintiff filed the Suit on 9 February 2010.

The Plaintiff’s claim

The Plaintiff’s claim against the Estate was in proprietary estoppel. His case was that the Deceased had promised him that, upon her death, the Flat would not be sold and that the Plaintiff could stay in the Flat for as long as he wished. In other words, the Defendant had promised him a licence to occupy the Flat. The Plaintiff had relied on these statements to his detriment, in that he had spent monies for and on behalf of the Deceased (including household and medical expenses) and had taken care of her. In the affidavit of evidence-in-chief which he filed for the assessment of damages, the Plaintiff further elaborated on the detriment which he had suffered in relying on the Deceased’s promises as follows:

(a) He had forgone regular full-time employment to care for the Deceased and to cater to her request for him to spend more time with her at home.

(b) The Deceased had contracted tuberculosis (“TB”) and, being her caregiver, the Plaintiff had to “endure the mental anguish of not knowing whether [he] had been infected with TB” and sacrifice his social life.

Thus, the Plaintiff averred that an equity had arisen. His pleaded claim was for the monies which he had expended in taking care of the Deceased, and equitable damages, or more accurately equitable compensation, for the loss of opportunity to reside in the Flat. However, the Plaintiff clarified, both at the hearing below and before me, that he was only seeking equitable compensation to satisfy the equity which had arisen. He was making no claim to the Flat which in any event was not possible because he was ineligible under s 51 of the Housing and Development Act (Cap 129, 2004 Rev Ed).

The decision below

The AR awarded the Plaintiff damages of $84,000. He reached this sum by multiplying a base sum of $1,000 for rent (“the multiplicand”) by 84 months (“the multiplier”), viz, seven years. His reasons were as follows:

(a) First, in respect of the multiplicand, the AR noted that the Plaintiff was presently paying rental of $1,800 (including $500 for the hire of furniture, fittings and fixtures and $300 for the monthly service and conservancy charges). The AR considered that the base sum should exclude service and conservancy charges, because the licence which the Plaintiff had pleaded was the right to stay in the Flat. The AR also noted that no evidence had been adduced regarding the value of the furniture in the Flat when it was sold. He did not incorporate a sum to reflect the cost of hiring furniture into the base sum.

(b) Secondly, in respect of the multiplier, the AR considered that an award for seven years would satisfy the equity which had arisen. The AR noted that, on the Plaintiff’s own evidence, he had only cared for the Deceased and the Aunt for three years. The AR did not accept the Plaintiff’s contention that he should be awarded rent for 168 months, viz, 14 years, on the basis that he was likely to obtain a Housing and Development Board (“HDB”) flat under the singles scheme around the time that he turns 39 years old.

Additionally, the AR considered the following factors:

(a) the Flat was sold for $385,000 (according to the Plaintiff);

(b) the Plaintiff, the Deceased and the Aunt were family; and

(c) the Plaintiff had benefited by staying in the Flat at the material time and using the utilities for which he had (allegedly) paid.

The plaintiff’s arguments

Before me, the Plaintiff did not dispute the AR’s approach of identifying a base sum and multiplying that sum for a time period. Rather, he submitted that the base sum and time period which the AR had identified were too low and too short respectively for the following reasons:

(a) First, in terms of the multiplicand, the Plaintiff argued that it should be at least $1,500 to reflect the value of a furnished flat, as the Flat had been furnished and the Deceased had promised the Plaintiff its contents. Further, during oral submissions before me, the Plaintiff tendered a newspaper clipping (“the Clipping”). This stated that the median rent of a five-room HDB flat in Hougang (the Flat was a five-room flat in Hougang) in the fourth quarter of 2014 was $2,400. The Plaintiff emphasised that, while the rent which he had paid since leaving the Flat was less than $2,400, this was only because he had entered into tenancies for smaller flats. Initially, he had rented a three-room flat from 7 September 2014 to 6 September 2016 for a monthly rent of $2,000 ($1,000 for the premises; $500 for furniture, fittings and fixtures; and $500 for monthly service and conservancy charges). From 7 September 2016, he had rented a four-room flat for a monthly rent of $1,800 (see [10(a)] above).

(b) Secondly, in terms of the multiplier, the Plaintiff maintained that a quantum between 10 and 14 years should have been applied, on the basis that he would likely have to incur rental expenses until he was about 39 years old.

The Plaintiff also argued that the AR had erred in principle in accounting for the fact that the Plaintiff had enjoyed rent-free accommodation while living with the Deceased, on the authority of Southwell v Blackburn [2014] EWCA Civ 1347 (“Southwell”).

My decision

It is settled law that, in an appeal to a judge in chambers against an assistant registrar’s decision on an assessment of damages, the judge exercises confirmatory rather than appellate jurisdiction. The judge may decide the matter afresh, albeit that due weight should be given to the decision below: see Tan Boon Heng v Lau Pang Cheng David [2013] 4 SLR 718 at [16] and [46(a)].

The law

In Lim Chin San Contractors Pte Ltd v Shiok Kim Seng (trading as IKO Precision Toolings) and another appeal [2013] 2 SLR 279 (“Lim Chin San”), the Court of Appeal (“the CA”) set out the governing principles for assessing equitable compensation, in relation to a claim in proprietary estoppel, at [42] as follows:

Further, the CA identified, at [31], two broad approaches to the exercise of assessing the equitable compensation payable to the plaintiff:

(a) First, the reliance-based approach which “looks to what the plaintiff’s position would have been had the defendant not made the relevant representations or had the plaintiff not acted upon them”.

(b) Secondly, the expectation-based approach which “looks to what the plaintiff’s position would have been had the defendant actually acted in accordance with the representations”.

In Jennings v Rice [2003] 1 P & CR 100 (“Jennings”), which was cited by the CA in Lim Chin San (at [38]), Robert Walker LJ (as he then was) made the following observations which are pertinent to this case at [50]–[51]:

I gleaned the following principles from these authorities:

(a) Where the plaintiff has formed an expectation, based on a mutual understanding with the benefactor, of coming into the latter’s home, it may be appropriate to adopt the expectation-based approach.

(b) However, the expectation-based approach does not require the court to give complete or direct effect to the relevant expectation. A fundamental consideration is proportionality between the expectation, the detriment and the remedy. The aim is to award the remedy which does the minimum necessary to satisfy the equity which has arisen.

Application of the law

In respect of the multiplicand, it was clear from the AR’s reasoning that he did not incorporate a sum for furniture, fittings and fixtures into the base sum (see [10(a)] above). I accepted the Plaintiff’s argument that the AR had erred in this regard. On the Plaintiff’s pleaded case, for which he had obtained judgment, the Deceased had told the Plaintiff that she would be leaving everything in the Flat to him upon her death. Thus, the Plaintiff’s expectation was of living in a furnished flat. In that light, applying the expectation-based approach, the AR should have assigned a value to furnishings and incorporated it into the base sum. In my judgment, such an approach was necessary, even though there was no evidence as to the value of the furniture in the Flat when it was sold (see [10(a)] above), because it was plain that the Flat had been furnished.

In terms of the quantum of the multiplicand, however, I did not give much weight to the rental sum stated in the Clipping for two reasons:

(a) The Clipping stated the median rent for flats in a very specific time period, the fourth quarter of 2014.

(b) The Plaintiff was content to submit that the multiplicand should be $1,500 per month, reflecting rent of $1,000 and $500 for the furniture, fixtures and fitting, in view of the $500 charged for furnishings in the two tenancies which he had entered into (see [10(a)] and [13(a)] above). The Plaintiff did not contend, and quite correctly in my view, that a sum reflecting monthly service and conservancy charges should be incorporated into the base sum.

I therefore identified the base sum as $1,500.

In respect of the multiplier, I did not accept the Plaintiff’s submission that the figure should be selected by reference to when the Plaintiff was likely to obtain a HDB flat under the singles scheme. In my judgment, applying a multiplicand of 10–14 years, as the Plaintiff suggested (see [13(b)] above), would have led to a remedy which was disproportionate to the detriment which the Plaintiff had suffered, a point to which I return below. The AR had taken the view, in the light of the fact that the Plaintiff had cared for his grandmother for about three years, that the appropriate multiplier was seven years. I agreed with the AR in selecting a multiplier of seven years, viz, 84 months. Thus, applying the multiplier to the multiplicand, I arrived at a final sum of $126,000.

However, on the facts of this case, I considered that this final sum needed to be moderated in view of the strength of the equity and the nature of the detriment.

The strength of the equity

First, in terms of the strength of the equity, a relevant factor is the extent to which the equity has been (partly) satisfied: see Lim Chin San at [42(e)] and [55(a)]. I agreed with the AR that the fact that the Plaintiff had been staying in the Flat at the material time, rent-free, was a benefit which I should account for. This is because the Plaintiff acquired the benefit of rent-free accommodation as a result of his conduct of living in the Flat to take care of the Deceased, viz, the conduct by which he satisfied the reliance element of his claim in proprietary estoppel. It is settled law that a benefit which a plaintiff acquires, due to the conduct by which he or she satisfies the reliance element of a proprietary estoppel claim, must be accounted for in selecting the appropriate remedy: see Ben McFarlane, The Law of Proprietary Estoppel (Oxford University Press, 2014) at paras 4.113–4.120 and 4.125. The following authorities establish this proposition:

(a) In Jennings, Walker LJ noted, in a passage quoted at [18] above, that the court should account for “countervailing benefits (such as free bed and board)” in fashioning the appropriate remedy.

(b) In Campbell v Griffin and others [2001] EWCA Civ 990 (“Campbell”), the plaintiff had lived as a lodger with two persons, who later passed away, since 1978. He had taken devoted care of them for at least three years, from 1990 (at the latest) until January 1994, in reliance on their promises that he would have a home for life as a lodger. The plaintiff stopped paying rent in mid-1992 and became the sole occupant of the home in January 1994. In deciding the remedy, Walker LJ accounted for the fact that, at the time of the appeal, the plaintiff had not paid rent for nearly ten years, and had been the sole occupant of a large house since January 1994: see Campbell at [32].

(c) In Powell and another v Benney [2007] EWCA Civ 1283, the plaintiffs had enjoyed rent-free use of the deceased’s property. The trial judge accounted for this benefit in determining the appropriate remedy for their claim in proprietary estoppel. On appeal, the plaintiffs’ counsel submitted that the judge had erred in doing so. Sir Peter Gibson, delivering the Court of Appeal’s judgment, stoutly rejected this proposition at [30] by opining that “it would offend common sense to leave out of account a benefit received in connection with a detriment … for the purpose of proprietary estoppel”.

The Plaintiff cited Southwell as authority for the contrary proposition (see [14] above). In Southwell, the respondent had been living in a rented house in which she had invested about £15,000. Upon meeting the appellant, and on the basis of an expectation that she would have a home for life, she gave up her home and spent about £5,000 on a new home with the appellant. Thereafter, their relationship broke down and the respondent sued the appellant in, inter alia, proprietary estoppel. The Plaintiff relied on the following passages, at [16] and [18], to submit that the AR had erred in accounting for the benefit of his having lived in the Flat rent-free:

With the greatest of respect, I found this reasoning hard to understand and difficult to square with the authorities summarised at [26] above. I struggled to see how the benefit of rent-free accommodation was not a direct result of the respondent’s reliance on the appellant’s promise, since it was precisely her reliance on that promise that had led her to set up a home with the appellant. Furthermore, it seemed that rent-free housing had only been “inherent and intrinsic” in her decision to rely on the promise because she had contemplated it to be a direct result of such reliance. In my view, the result in Southwell can best be justified in the light of the following passages in that case which suggest a different way of rationalising the decision:

These passages suggest that Southwell is best understood not as establishing a rule that rent-free accommodation should be excluded from the determination of the appropriate remedy in a proprietary estoppel claim, but on the basis that, on the facts of that case, there was no need to further reduce the remedy in the light of the rent-free accommodation which the respondent had received, because this was already “set off” against the benefits, tangible and intangible, which the respondent had conferred on the appellant.

I therefore considered that the fact that the Plaintiff had been staying in the Flat at the material time, rent-free, was a benefit which I should account for in determining the appropriate remedy. I agreed with the AR that, since the Plaintiff had been enjoying rent-free accommodation while he took care of the Deceased, the strength of the equity here was accordingly weakened.

The nature of the detriment

Moreover, the final sum awarded to the Plaintiff had to be moderated to ensure that the remedy was proportionate to the detriment.

First, while the Plaintiff submitted during the hearing that he had spent $80,000 on expenses for his grandmother, I noted that his pleaded case in the statement of claim was that he had spent a far lower total sum, $18,350.50.

Secondly, the evidence that he had expended this lower sum was not of the highest quality. In the statement of claim, the Plaintiff provided a table relating to his expenditure for and on behalf of the deceased. The table had three columns. One column described the expenses, eg, “Rental and utility”; another stated the period within which receipts were available to evidence the expenditure; and a final column indicated the approximate total expenditure in respect of each category of expenses. However, some of the approximate total sums were hard to square with the amounts evidenced by the receipts. For example, the Plaintiff adduced receipts indicating that he had spent $274 on ambulance transport for the Deceased’s hospital visits. But he averred that he had spent a total of $1,000, viz, close to four times the evidenced amount, on such transport. I also noted that the adduced receipts were dated from July to October 2008, viz, in the lead-up to the Deceased’s death on 28 November 2008 (see [6] above).

Thirdly, while I accepted that, apart from spending money for and on the Deceased’s behalf, the Plaintiff had also spent time and effort caring for the Deceased, it was the Plaintiff’s own pleaded case that a domestic helper had been hired to look after the Deceased. While the Plaintiff’s evidence was that the domestic helper had not been the best provider of care to the Deceased, the point remained that he had not shouldered the responsibility of caring for the Deceased alone.

Conclusion

For all the above reasons, and having carefully considered the Plaintiff’s expectation and the detriment, both financial and non-financial, I considered that the equity would be satisfied by compensation in the sum of $100,000.

Conclusion

The Plaintiff subsequently applied for an extension of time to file his Notice of Appeal. The delay was very short (one working day), and was attributable to an oversight by counsel. I considered that the appeal was not utterly hopeless, and that the Estate, which had not participated in the proceedings, would not be prejudiced by an extension of time. Hence, I allowed the Plaintiff’s application.