Cove Development Pte Ltd v Ideal Accommodation (Singapore) Pte Ltd

Nathaniel Khng AR:

[1] This is an application by Cove Development Pte Ltd (“the Plaintiff”) for judgment against Ideal Accommodation (Singapore) Pte Ltd (“the Defendant”) on admission of facts pursuant to O 27 r 3 of the Rules of Court (Cap 322, R 5, 1996 Rev Ed) (“the Rules”) for possession of 171 residential units at the development known as “Grangeford” (located at 25 Leonie Hill Road) (“the Premises”). The prayers, as set out in the application, are as follows:

[2] The dispute between the Plaintiff and the Defendant originated from the discovery by the Urban Redevelopment Authority (“the URA”) of illegal additions/alterations to the Premises. By way of two tenancy agreements (dated 30 December 2008 and 27 February 2009 respectively) (“the Tenancy Agreements”), the Plaintiff had leased the Premises to the Defendant. After entering into the Tenancy Agreements, the Defendant proceeded to sub-divide 141 of the residential units in the Premises into 600 sub-units and thereafter leased these units out to sub-tenants (“the Sub-Tenants”).

[3] On 29 April 2009, the URA served an enforcement notice (“the Enforcement Notice”) notifying both the Plaintiff and the Defendant that the additions/alterations carried out by the Defendant in the Premises was in breach of planning control as it had done the works without the requisite planning authorisation. The Enforcement Notice described the works that had been done as follows:

[4] The Enforcement Notice gave both parties the deadline of 30 May 2009 to, firstly, demolish the unauthorised partitions in question, and, secondly, discontinue and cease the unauthorised use of each of the altered units as two separate units and/or as multiple living quarters. Failing this, the parties would have committed an offence under the Planning Act (Cap 232, 1998 Rev Ed) and would be liable on prosecution and conviction to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both a fine and imprisonment. Both parties appealed to the Ministry of National Development (“the MND”) against the directions in the Enforcement Notice. The Defendant’s appeal was rejected in a letter dated 27 May 2009 and it was given the extended deadline of 3 June 2009 to comply with the directions in the Enforcement Notice. The Plaintiff’s appeal was likewise rejected in a letter dated 27 May 2009 and it was given the deadline of 27 July 2009 to comply with the directions in the Enforcement Notice.

[5] Subsequently, on 25 May 2009, the Plaintiff filed the present action, ie, Suit No 446 of 2009, against the Defendant for, inter alia, possession of the Premises, rental in arrears and double rent. In its Statement of Claim, the Plaintiff asserted that the Defendants had failed to make the requisite payments of rent and other moneys as stipulated in the Tenancy Agreements, and that accordingly, the Plaintiff was entitled to forfeit the Tenancy Agreements. In reply, the Defendant stated, in its Defence and Counterclaim, that, inter alia, the Tenancy Agreements was void by reason of a common mistake and that it was discharged from performance of the Tenancy Agreements by reason of frustration.

[6] On 29 May 2009, the Defendant wrote to inform the MND that it was impossible to comply with the directions in the Enforcement Notice by 3 June 2009 as it had “yet to notify [the Sub-Tenants] and properly relocate them”, and appealed for more time to comply with the directions. On 3 June 2009, the MND rejected the Defendant’s appeal. On the same day, ie, 3 June 2009, the Plaintiff served the Defendant with a Notice of Forfeiture and Termination. On 5 June 2009, the Plaintiff recovered possession of unit #01-04 of the Premises, which had been used by the Defendant as its office.

[7] To date, the Plaintiff has only re-entered and recovered possession of 14 other units of the Premises. According to the Plaintiff, it has not been able to effect peaceful re-entry of the units that are currently still being occupied by certain Sub-Tenants (collectively referred to as “the remaining Sub-Tenants”) due to the resistance of the latter, and without possession of the whole of the Premises, it (ie, the Plaintiff) would not be able to comply with the directions in the Enforcement Notice and would be liable for sanctions.

[8] In the circumstances, the Plaintiff decided to file the present application for judgment for possession of the Premises.

[9] Under O 27 r 3 of the Rules, where there are admissions of fact, the court may, at its discretion, give judgment or make such orders as a party would be entitled to. The rule, in full, states as follows:

[10] The rule providing for judgment on admissions “applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed” (Ellis v Allen [1914] 1 Ch 904 at 909 per Sargant J). The judgment or order made under the rule would be considered to be interlocutory in nature (Technistudy Ltd v Kelland [1976] 1 WLR 1042 at 1045). The admission of fact may be expressed or implied (Re Chung Wong Kit [1999] 1 HKC 684 at 686). The admission must be an admission of fact, with which the court need not make further findings of fact, and must not be an admission of law, or even one of mixed fact and law. Neither can the matter turn on a question of law or mixed fact and law. As stated in Shunmugam Jayakumar v Jeyaretnam JB [1997] 2 SLR 172 (“Shunmugam Jayakumar”) by G P Selvam J (at [35]):

And in Affin Bank Bhd v Successcom Enterprise Sdn Bhd [2009] 1 MLJ 36 (“Affin Bank Bhd”), Zulkefli JCA similarly stated (at 51):

[11] Questions of mixed fact and law have been described as questions that involve a combination of issues of fact and law (Butterworths Concise Australian Legal Dictionary (Peter Butt gen ed) (3rd Ed, LexisNexis Butterworths, 2004) (“Butterworths Concise Australian Legal Dictionary”) at p 284). The definition of an issue or question of law, in particular, has been the subject of much debate. In the recent case of Ng Eng Ghee v Mamata Kapildev Dave [2009] SGCA 14 (“Horizon Towers”), V K Rajah JA, who delivered the judgment of the Court of Appeal, observed that the definition of the phrase “question of law” varies in different contexts, and “may be wider or narrower depending on the underlying policy considerations” (at [99]). Locally, questions of law have been expressly defined in some cases as being a reference to undecided or uncertain areas of the law that have to be adjudicated upon. In Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [2000] 1 SLR 749 (“Ahong Construction”), G P Selvam JC stated (at [7]):

This passage was cited with approval by the Court of Appeal in Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd (No 2) [2004] 2 SLR 494 (“Northern Elevator”). In Northern Elevator, Choo Han Teck J, who delivered the judgment of the Court of Appeal, concluded (at [19]):

[12] The approach in Ahong Construction and Northern Elevator was adopted in the context of s 28(2) of the Arbitration Act (Cap 10, 1985 Rev Ed), a provision which allowed for an appeal to the court “on any question of law arising out of an award made on an arbitration agreement”. Rajah JA observed that this approach, which he termed as the “narrower approach”, was appropriate in that context in view of the legitimate expectations of parties to an arbitration as regards finality (Horizon Towers at [100]). If the approach in Ahong Construction and Northern Elevator were to be taken as the narrower approach, one example of a wider approach would be an approach which accepts that the application of incontrovertible law to fact is also a question of law. Such an approach appears to be espoused in the definition for the phrase “question of law” which is found in Butterworths Concise Australian Legal Dictionary. This reads (id at p 359):

[14] In terms of principles, one final point should be made. Even if the requisite admissions of fact are present, the power to grant judgment under O 27 r 3 of the Rules is discretionary. Such discretion will be exercised judiciously depending on the circumstances of the case. As observed by Kekewich J in In re Wright [1895] 2 Ch 747, the obtaining of a judgment or order under the rule for judgment on admissions of fact “[is] not a matter of right, but [is] a matter for the exercise of a judicial discretion, regard being had to all the circumstances of the case” (at 750).

[15] There appears to be a dearth of local cases on applications for judgment or orders pursuant to O 27 r 3. Two cases, however, exist which bear note. The first case would be Shunmugam Jayakumar ([10] supra). The dispute in that case concerned a publication by a political group which the plaintiffs felt had defamed them. The plaintiffs applied for summary judgment under O 14, and, in the alternative, judgment under O 27 r 3. At first instance, interlocutory judgment under O 27 r 3 was granted. Selvam J, however, allowed the appeal against the O 27 r 3 judgment. The reasons he gave are as follows (id at [36]–[37]):

[17] Counsel for the Plaintiff, Mr Ling Tien Wah, submitted that the Defendant had implicitly admitted that it was not entitled to possession of the property. Counsel for the Defendant, Mr Chia Ho Choon, in response, submitted that the application for judgment under O 27 r 3 was fundamentally wrong, as the Defendant had not made any admission that the Plaintiff was entitled to possession. Mr Chia further submitted that the Plaintiff’s case for possession should be against the remaining Sub-Tenants, and not the Defendant, as the Defendant is presently not in possession of the Premises. This appeared to be the thrust of Mr Chia’s case. In my view, however, this submission is misconceived (for the reasons set out at [18]–[20] below). Crucially, based on the pleadings and submissions before me, the parties were ad idem on the fact that the Tenancy Agreements were no longer in force.

[18] Based on this admission of fact that the Tenancy Agreements were no longer in force, the Plaintiff would clearly be entitled to possession as against the Defendant. No further finding of fact or admission of fact would be necessary. As Mr Ling submitted, at common law, the obligation of tenants to deliver possession of the demised premises to the landlord at the end of a tenancy is clear. This principle has been established and upheld in cases such as Henderson v Squire (1869) LR 4 QB 170. It can be traced back to Harding v Crethorn (1793) 1 Esp 57; 170 ER 278, where Lord Kenyon stated (at 57; 279):

[19] Pre-1826 English case law, of course, applies locally unless being superseded by local statutes or being contrary to local statutes or customs (Tan Sook Yee, Principles of Singapore Land Law (Butterworths Asia, 2nd Ed, 2009) at p 4). Thus, Lye Lin Heng, Landlord and Tenant (Butterworths, 1990) states (at pp 277–278):

Likewise, Halsbury’s Laws of Singapore vol 14(2) (Butterworths Asia, 2005 Reissue) states (at para 170.1113):

[20] If a tenant is obligated to restore possession to the landlord at the end of a lease, whether or not the Defendant is presently in possession of the Premises is irrelevant. As the Defendant had an obligation to deliver vacant possession of the Premises to the Plaintiff upon the ending of the Tenancy Agreements, it follows that its admission that the Tenancy Agreements had ended allows for judgment for possession under O 27 r 3 to be entered against it. In contrast to Shunmugam Jayakumar ([10] supra), there were no questions of law or mixed law and fact, as the relevant law is well established (see [11]–[13] above). And in contrast to Ow Chor Seng ([16] supra), even if the Defendant were to be successful in defending itself against the Plaintiff’s claim, it would still have to deliver possession, as it (ie, the Defendant) was not disputing that the Tenancy Agreements had come to an end.

[21] For completeness, some of the aspersions on the Plaintiff’s right to possession as against the Defendant that were cast by Mr Tang Yong, the Defendant’s managing director, in his affidavit dated 10 July 2009, will be considered. In that affidavit, Mr Tang had claimed that the Plaintiff had, in a letter dated 12 June 2009 at para 9, acknowledged that it had already re-entered and re-possessed the Premises. This observation, however, is clearly untenable as the letter simply states that the Plaintiff “will now take steps to repossess [the Premises]” and para 9 merely makes the qualification that any action taken by the Plaintiff to repossess the Premises would be “without prejudice whatsoever to [the Plaintiff’s] claim” in the action against the Defendant.

[22] Mr Tang, in his affidavit, also touched on the Plaintiff’s attempts to placate the Sub-Tenants by allowing them to stay at the Premises up to 30 June 2009. However, it would be bizarre if the Plaintiff’s attempts at achieving an amicable settlement of the impasse were to be construed as having an adverse effect on its right to possession as against the Defendant. Based on what was adduced, there was nothing to indicate that the Plaintiff was waiving its right to vacant possession as against the Defendant even if its endeavours were to fail. No plausible issue of a waiver is apparent, and there was little, if not any, attempt by Mr Chia to submit that there was. Parenthetically, I would also observe that there is case law, viz, Cheer City Properties Ltd v Lung Tin International Ltd [1998] 4 HKC 182, which indicates that the Plaintiff’s efforts to obtain the cooperation of the Sub-Tenants should not affect its right to possession as against the Defendant (at 188).

[23] Mr Chia submitted that there would be prejudice to the Defendant if an order for possession were to be granted, due to the bad publicity that the Defendant had received concerning the plight of the Sub-Tenants. As Mr Ling submitted, however, any prejudice in this respect would be ameliorated somewhat by the prayer in the application that any orders made are to be without prejudice to, inter alia, the parties’ respective positions (see [1] above). Mr Chia also submitted that there would be prejudice as the Defendant would not be able to recover its fittings and furnishings. The prejudice, if any, in this respect, however, is not irreparable as the Defendant could have recourse to the law for any illegal removal or destruction of its fittings and furnishings by the Plaintiff. In contrast, the prejudice that may be suffered by the Plaintiff if judgment for possession is not given (viz, conviction and sentence for an offence under the Planning Act) is irreparable.

[24] Having regard to the all of the circumstances, I am satisfied that my discretion should be exercised in favour of the Plaintiff. In so deciding, I am conscious of the predicament of the remaining Sub-Tenants. If judgment for possession were to be granted, the remaining Sub-Tenants would necessarily be affected; but there would still be some room for them to challenge the Plaintiff’s entitlement to possession. In order to obtain leave to issue a Writ of Possession, the Plaintiff will have to show that each of the remaining Sub-Tenants has received sufficient notice of the proceedings as would be necessary for him or her to apply to the court for relief. In this regard, it would be apposite to set out O 45 r 3 of the Rules in full: