Joseph Mathew and Another v Singh Chiranjeev and Another

Andrew Phang Boon Leong JA (delivering grounds of decision of the court):

[1] The present appeal raises, in a relatively straightforward factual matrix, a number of general (albeit significant) issues - in particular, issues relating to a contract to grant an option for the purchase of real property as well as issues concerning the statutory formalities that have to be satisfied before such a contract is legally enforceable (assuming that such a contract exists in the first instance).

[2] Turning to the relevant factual matrix, the first appellant, Joseph Mathew, is married to the second appellant, Mercy Joseph (collectively, “the appellants”). The appellants are the joint owners of a property known as 26 Upper Serangoon View, #04-32, Rio Vista, Singapore 534206 (“the Property”). The first respondent, Singh Chiranjeev, is married to the second respondent, Gulati Jasmine Kaur (collectively, “the respondents”). The respondents were the intending purchasers of the Property. The negotiations between the appellants and respondents for the sale of the Property were conducted orally as well as via e-mails through Helene Ong Geok Tin (“Helene”), a property agent working as an associate of Dennis Wee Properties Pte Ltd (“Dennis Wee Properties”).

[4] Returning to the salient facts for the purposes of the present appeal, on 6 May 2007, Helene showed the Property to the respondents. Helene asked the first respondent for a cheque for $5,000, being 1% of $500,000 as a deposit. She told the first respondent that she would inform the first appellant of his offer and if the first appellant agreed to his offer to purchase the Property at $500,000, she would give the cheque to the first appellant. The first appellant refused to accept the offer and this was communicated to the respondents on 7 May 2007. Between 7 May 2007 and 10 May 2007, the first respondent negotiated the selling price of the Property with Helene over the telephone. On 11 May 2007, the respondents viewed the Property for the second time and they made a renewed offer of $506,000 for the Property. Helene collected a cheque for $5,060 (1% of the offered purchase price of the Property) from the respondents dated 6 May 2007 and returned them their earlier cheque for $5,000. The parties did not dispute that the cheque for $5,060 was advance payment in consideration for the grant of the option. Helene wrote the following words on the back of the cheque for $5,060:

[5] We now proceed to set out the important e-mail correspondence between the parties; in this regard, there are four key e-mails. The first key e-mail is dated 12 May 2007 from Helene to the first appellant which was sent after Helene had shown the respondents the Property for the second time on 11 May 2007 (“the First E-mail”). It read as follows:

[6] The second key e-mail is Helene’s e-mail to the first appellant on the same day dated 12 May 2007, which referred to a telephone conversation she had with the first appellant after she sent the First E-mail. It reads as follows:

[7] The third key e-mail is the first appellant’s e-mail on 13 May 2007 to Helene in response to her earlier e-mails (“the Third E-mail”), and it reads as follows:

[8] The fourth key e-mail is Helene’s reply to the first appellant on the same day in the following manner (“the Fourth E-mail”):

[9] Helene contacted the first respondent on 14 May 2007 and told him that the first appellant had agreed to accept his offer of $506,000. On the same day, she sent the Option to Purchase to the first appellant in India by courier. She deposited the first respondent’s cheque into the first appellant’s POSB account on 16 May 2007.

[10] On 18 May 2007, Helene sent three e-mails to the first appellant. The first e-mail, which was sent to the first appellant and copied to the first respondent, was to confirm that the first appellant had received the Option to Purchase and she recorded that the first appellant would be confirming the sale as soon as he could. The next e-mail sent on the same day from Helene to the first appellant after a telephone call from him reads as follows:

[11] The third e-mail on that same day reads as follows:

[12] Helene’s evidence is that, on 18 May 2007, the first respondent was unhappy that the first appellant had remained silent and had not given his confirmation on the sale. She therefore sent an e-mail dated 19 May 2007 to the first appellant, informing him that the first respondent was “not very happy of what is going on – holding on his purchase and no confirmation”; she added that “[The first respondent] is not happy and he feels that you have accepted his offer thus he paid the 1% Option fee deposit. So what other consideration. But I told [the first respondent] it is not the price issue as price offered has been accepted by you.” On the same day, Helene sent the first appellant another e-mail to inform him that she needed “an answer fast” and wrote further that “[the first respondent’s] check is already bank in and cleared. and [sic] this is your instruction. I did not foresee that you will call me back for not signing the OPTION and accepting the deal in a way, due to reasons you told me. Or else I would not bank the check for you”. We should note, parenthetically, that the first respondent’s concern at this particular point in time was unnecessary in the light of the legal position (which is set out below at [19]-[22]), although it presumably had a bearing on his concern in relation to his (and the second respondent’s) financial arrangements (see also the next paragraph).

[13] On 20 May 2007, Helene wrote an e-mail to the first respondent and copied the same to the first appellant, stating that the first appellant would be meeting with his directors by 22 May 2007 or at the latest by 23 May 2003 regarding his company reorganisation, at which time he would be able to give the first respondent a confirmed answer regarding his sale of the Property. The first respondent replied in an e-mail to Helene and the first appellant on 22 May 2007 stating:

[14] This was followed up by Helene’s e-mail to the first appellant and copied to the first respondent on the same day asking him to let her have his confirmation soon because the first respondent required the Option to Purchase to confirm his purchase before the bank could act further. The first appellant replied to Helene and the first respondent on the same day informing them that he was cancelling his plan to sell the apartment. He added as follows: “Understand that Ms. Helene has already deposited the advance cheque to my account. Therefore, the same cheque amount ($5060) will be handed over to Helene during my visit to Singapore on 26th May 07.” On 23 May 2007, Helene sent an e-mail to the first respondent (copied to the first appellant) “to confirm that [the first appellant had] to shelf the plan of selling his apt” and that the first appellant “[would] return [the first respondent’s] deposit (1%) in cheque when he [arrived] in Singapore on 26th May [2007]”.

[15] On 26 May 2007, the first appellant and first respondent met at the Property by the swimming pool along with Helene. The first appellant said that he had to cancel his plan to sell the Property because he might have to come back to Singapore in the near future. The first respondent stated that if the first appellant was sure of coming back to Singapore, he was prepared to let the deal go, but if that was not the case then he should proceed to complete the sale of the Property. At the same meeting and from then onwards, the first respondent refused to accept a cheque for $5,060 from the first appellant (via Helene).

[16] On 31 May 2007, the first respondent wrote an e-mail to the first appellant to inform him that he would be proceeding with legal action if the first appellant did not agree by 4 June 2007 to complete the deal. The first appellant replied to the first respondent and Helene on 5 June 2007 reaffirming his position by reference to their discussion on 25 May 2007. The dispute between the appellants and respondents proceeded to trial with the hearing taking place from 23 to 24 June 2008. The trial judge (“the Judge”) held, in Singh Chiranjeev v Joseph Mathew [2008] SGHC 222 (“the Judgment”), in favour of the respondents; in particular, he ordered that:

(a) the appellants jointly sign and grant the Option to Purchase for the respondents to purchase the Property for the price of $506,000;

(b) the appellants pay damages in the sum of $15,510.05 to the respondents;

(c) if the appellants should refuse or neglect to sign the Option, the Registrar of the Supreme Court shall have the power to sign and grant the Option to the respondents on behalf of the appellants;

(d) upon the respondents exercising the Option to Purchase the property, the appellants are to pay the said sum of $15,510.05 to the respondents;

(e) the appellants are to pay the respondents their costs and disbursements, with such costs and disbursements to be agreed or taxed; and

(f) the appellants are to pay Helene and Dennis Wee Properties their costs and disbursements, with such costs and disbursements to be agreed or taxed.

[17] We dismissed the appeal against the Judge’s decision and now give the detailed grounds for our decision.

[18] There were three main issues before this court:

(a) Whether there was a binding contract between the appellants and the respondents for the grant of an option for the sale of the Property.

(b) If there was a binding contract between the appellants and the respondents, whether the requirements in s 6(d) of the Civil Law Act (Cap 43, 1988 Rev Ed) (“s 6(d)”) were satisfied.

(c) If the requirements in s 6(d) were not satisfied, whether the contract between the appellants and the respondents was nevertheless enforceable on the ground of part performance.

Was there a binding contract between the appellants and respondents for the grant of an option for the sale of the Property?

[19] One of the key issues before this court was whether the parties had entered into a valid contract for the grant of an option by the appellants to the respondents for the sale of the Property (see above at [18] as well as the Judgment at [29]). An agreement to grant an option can be enforced if all the essential terms have been agreed upon and the requirement that the terms be evidenced in writing has been satisfied (we will consider the relevant statutory requirements in the next part of this judgment). In this regard, the relevant e-mail correspondence (centring on the four key e-mails) is of the first importance. This has, in fact, been set out above (at [5]-[8]). However, counsel for the appellants, Mr Leslie Netto, argued that the appellants’ understanding was that they were only to be bound upon signing the Option to Purchase. If the appellants were arguing that their signatures on the Option to Purchase were necessary as a condition precedent to a binding agreement arising between them and the respondents for the grant of an option, it is clear (in particular, from the Third E-mail (reproduced above at [7]), and discussed in the next paragraph) that this was not the case. Indeed, the need to courier the Option to Purchase to the appellants for their signature was merely a necessary part of the process of giving effect to a binding agreement (to grant an option) that had already been entered into between the appellants and the respondents. Let us elaborate on the reasons why we found that a binding agreement to grant an option had indeed been entered into between the appellants and the respondents.

[20] There is clear evidence, based on the e-mail correspondence between Helene and the first appellant, that the parties had indeed entered into a valid contract for the grant of an option for the sale of the Property. In particular, the Third E-mail (reproduced above at [7]) from the first appellant to Helene (as his and the second appellant’s agent) is especially instructive (having regard to the fact that there had been a clear offer by the respondents to the appellants (through Helene as their agent) to purchase the Property for $506,000). Contrary to what the appellants had argued before this court, this represented the end-point (and not the initial stage or trigger-point) of the contractual process. We pause to note that although the second appellant did not communicate her acceptance of the offer to the respondents directly, the first appellant was acting as her agent as implied from the second appellant’s conduct. The second appellant in her Affidavit of Evidence-in-Chief admitted that she left it to the first appellant to handle the matter of finding a buyer. She even reminded the first appellant to check thoroughly before sending any mail to Helene. What she did not give the first appellant authority to do was to sign the option on her behalf. However, as already mentioned, the issue in this appeal is whether there was a binding contract to grant an option for the sale of the Property.

Returning to the issue as to whether or not there was a binding contract to grant an option for the sale of the Property, in the Third E-mail, the first appellant stated that he was “taking a decision to proceed to sell the property at this price of S$506K”. The first appellant was also aware of all the other terms relating to the option to be granted which were in fact contained in the First E-mail (reproduced above at [5]). In this particular e-mail (viz, the Third E-mail), he instructed Helene to deposit the 1% cheque from the respondents into his bank account (Helene duly noted, inter alia, this instruction in the Fourth E-mail and deposited this cheque into the first appellant’s bank account accordingly).

[21] In the circumstances, there had not only been the fulfilment of the requisite legal elements of offer and acceptance but there had also clearly been sufficient consideration furnished by the respondents to the appellants as well in so far as the promise by the latter to grant an option to purchase the Property was concerned (and, on the current status and possible future of the doctrine of consideration, see generally the decision of this court in Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR 332). In this regard, we agree with the Judge’s conclusion that the contract to grant an option for the sale for the Property was binding between the parties when (at the latest) the 1% cheque had been deposited into the first appellant’s bank account simply because the requirements for the formation of a valid contract (offer and acceptance as well as consideration) would have been fulfilled at this particular point in time. Needless to say, the final requirement relating to the formation of a valid and binding contract, viz, an intention to create legal relations, was also present at this particular point in time.

[22] The legal result, in our view, was clear: The first appellant and the second appellant (on whose behalf, as the Judge (correctly, in our view) found, the first appellant had been acting (see the Judgment at [25] and above at [20])) had entered into a legally valid as well as binding contract with the respondents to the effect that an option would be granted to the latter to purchase the Property. The terms of the option to be granted were clear as well as unambiguous, and the (subsequent) signing of the option was a mere formality. Not surprisingly, therefore, the Judge in fact ordered the appellants to grant an option to the respondents to purchase the Property for the stated price of $506,000 (and that, if the appellants refused to do so, the Registrar should have the power to sign and grant the option to the respondents on the appellants’ behalf (see above at [16] as well as the Judgment at [42])). We understand, in fact, that completion of the sale and purchase of the Property was (at the time of the hearing before this court) imminent. Nevertheless, this was not an end to the matter. In order to be enforceable by the respondents, the contract had to comply with the statutory formalities pursuant to s 6(d), which reads as follows:

[23] Before we turn to consider this particular issue, it should be noted that s 6(d) is applicable in the present appeal because an option creates in favour of the option holder an equitable interest in the land (see the decision of this court in Ong Chay Tong & Sons (Pte) Ltd v Ong Hoo Eng [2009] 1 SLR 305 at [75]; the Singapore High Court decisions of Eng Bee Properties Pte Ltd v Lee Foong Fatt [1993] 3 SLR 837 at [26] and Ho Seek Yueng Novel v J & V Development Pte Ltd [2006] 2 SLR 742 at [52]; as well as Martin Dray and Adam Rosenthal, Barnsley’s Land Options (Sweet & Maxwell, 4th Ed, 2005) at pp 51-53).

[24] Section 6(d) is, of course, an important and well-known one, having its genesis in s 4 of the UK Statute of Frauds 1677 (Cap 3) (“the 1677 UK Act”) which was later re-enacted (in the UK) in substantially the same form in s 40 of the UK Law of Property Act 1925 (Cap 20) (“the 1925 UK Act”) (and for the legal position in Singapore prior to the introduction of s 6(d) (during which time, in essence, s 4 of the 1677 UK Act applied), see Cheshire, Fifoot and Furmston’s Law of Contract (2nd Singapore and Malaysian Ed, Butterworths Asia, 1998 at p 356)). It should be noted that the current legal regime in the UK context is (with effect from 27 September 1989) no longer the same and (unlike the Singapore position) is governed by the UK Law of Property (Miscellaneous Provisions) Act 1989 (Cap 34) (“the 1989 UK Act”), in which, inter alia, contracts for the sale of land or other disposition of an interest in land must themselves be in writing (see s 2 of the 1989 UK Act).

[25] As can be seen, s 6(d) (reproduced above at [22]) comprises a number of requirements.

[26] In so far as the specific contents of a sufficient note or memorandum within the meaning of s 6(d) are concerned, the following observations by Prof Furmston in Cheshire, Fifoot and Furmston’s Law of Contract (Oxford University Press, 15th Ed, 2007) (“Cheshire, Fifoot and Furmston”) at p 271 are apposite:

Reference may also be made to Kevin Gray and Susan Francis Gray, Elements of Land Law (Oxford University Press, 5th Ed, 2009) (“Gray and Gray”) at para 8.1.26 as well as G H Treitel, The Law of Contract (Sweet & Maxwell, 7th Ed, 1987) (“Treitel”) at p 140 (it should be noted that later editions of this last-mentioned work consider only the 1989 UK Act (as to which, see above at [24])). It should be noted that Prof Treitel also observes, as follows (see Treitel at pp 141-142):

[27] Section 6(d) can also be satisfied by a joinder of several documents. As Prof Furmston observes (Cheshire, Fifoot and Furmston ([26] supra) at p 274):

Reference may also be made to Treitel ([26] supra) at pp 142-143; in particular, the learned author observes as follows (at p 142):

[28] Next, and more specifically, there is the important requirement in s 6(d) that the note or memorandum be “in writing”.

[29] Yet another requirement in s 6(d) is that the note or memorandum must be “signed”. In this regard, the observations by Prof Furmston, once again, are apposite (see Cheshire, Fifoot and Furmston ([26] supra) at p 273):

Reference may also be made to Treitel ([26] supra) at p 141 as well as to the following observations by Prof Pettit (see P H Pettit, “Farewell Section 40” [1989] Conv 431 at 439 (“Pettit”)):

[30] A relevant (and important) decision in the local context with regard to, inter alia, both these last-mentioned requirements (viz, relating to writing and signature (and which was therefore, not surprisingly, relied upon by the Judge in the court below)) is the Singapore High Court decision of SM Integrated Transware Pte Ltd v Schenker Singapore (Pte) Ltd [2005] 2 SLR 651 (“SM Integrated”). This case endorsed the general principles noted above in respect of both the basic requirements in relation to the specific contents of a sufficient note or memorandum within the meaning of s 6(d) (see above at [26]) as well as the joinder of documents (see above at [27]) (see generally SM Integrated at [72] and [73], respectively). In addition, one of the issues which arose in this case was whether because the Electronic Transactions Act (Cap 88, 1999 Rev Ed) (“ETA”) did not apply to the contract concerned (pursuant to the exclusion under s 4(1)(d) of the ETA), the e-mail correspondence concerned could not be considered to be “in writing” for the purposes of s 6(d); and (by the same token) whether (as another issue) such correspondence could not constitute a sufficient “signature” for the purposes of the same provision if the proposition just mentioned holds good. If, of course, the ETA was applicable, there would have been no problems fulfilling the requirements under s 6(d) inasmuch as the ETA enables electronic records and signatures to satisfy the legal requirements for both writing and signature.

[31] Judith Prakash J held, in SM Integrated ([30] supra), that e-mail correspondence could indeed be considered to be “in writing” and could also satisfy the requirements for a “signature” for the purposes of section 6(d); in particular, the learned judge observed thus (at [76]):

[32] Indeed, in addition to the views expressed in the preceding paragraph, it is imperative to have recourse to first principles – in particular, the purpose for which s 4 of the ETA was enacted (see also generally s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed), which embodies, of course, the purposive approach which now governs the interpretation of statutes in the Singapore context (see, further, the Singapore High Court decision of PP v Low Kok Heng [2007] 4 SLR 183)). The purpose of s 4 of the ETA is in fact referred to in the views expressed in the consultation paper entitled Joint IDA-AGC Review of Electronic Transactions Act Stage II: Exclusions Under Section 4 of the ETA (Consultation Paper) (LRRD No 2/2004), which views were cited in SM Integrated (and which are to be found in the preceding paragraph). The following views expressed by the Minister for Trade and Industry, Mr Lee Yock Suan, during the Second Reading of the Electronic Transactions Bill should also be noted (see Singapore Parliamentary Debates, Official Report (29 June 1998) vol 69 at col 254):

[33] As a passing observation, however, it might be argued that the provisions of the ETA are not exhaustive in the first instance and that there was perhaps no pressing reason, therefore, for the exceptions contained in s 4 of the ETA to be enacted in the first place. For example, s 6 of the ETA states that “[f]or the avoidance of doubt, it is declared that information shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic record” [emphasis added]. Section 11 of the ETA states as follows:

[34] Further, s 12 of the ETA reads as follows:

[35] It will be seen that the provisions just cited are by no means exhaustive and are intended to ensure that electronic records do not become “legal obstacles” to the validity and effectiveness vis-à-vis the formation of contracts or actions associated therewith.

[36] More pertinently, in the context of the present case, s 7 of the ETA (“s 7”) states as follows:

[37] Whilst s 7 of the ETA does suggest that an electronic record (which falls within the purview of the ETA) would have otherwise satisfied the requirements under s 6(d), there is nothing in that particular provision which suggests that if s 7 of the ETA is not applicable (in this instance because of the exception contained in s 4 of the ETA), an electronic record is thereby irrelevant in so far as the satisfaction of the requirements under s 6(d) is concerned. Indeed, there is nothing in s 7 of the ETA to suggest that the requirements under s 6(d) could not be satisfied by other means (whether electronic or otherwise). All that s 7 of the ETA states is that, if the ETA is applicable (which, however, is not the case here), then an electronic record would satisfy, inter alia, the requirements under s 6(d) “if the information contained therein is accessible so as to be usable for subsequent reference”. All this merely buttresses the conclusion which we have already arrived at to the effect that electronic records in general and the e-mails in this case in particular are relevant, notwithstanding the fact that Parts II and IV of the ETA are not applicable to contracts such as those involved in the present appeal.

[38] Indeed, the recognition of electronic records (including e-mails) as satisfying the requirement of writing under s 6(d) is, in our view, entirely consistent with the purpose underlying that particular provision itself. The (general) purpose of s 6(d) itself, as already noted earlier (at [24]), can be traced back to its English antecedents originating in s 4 of the 1677 UK Act. In this regard, it is important to note that s 4 of the 1677 UK Act was enacted (as its preamble states) “[f]or Prevention of many fraudulent Practices, which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury; …”. Indeed, after referring to this preamble, Lord Simon of Glaisdale, in the House of Lords decision of Steadman v Steadman [1976] AC 536 (“Steadman”), observed thus (at 558):

As Prakash J aptly put it in SM Integrated ([30] supra at [80]):

We also agree with the following observations of the learned judge (at [85]):

[39] Prakash J also endorsed the more flexible approach adopted above as to what constitutes a sufficient “signature” within the meaning of s 6(d) (see [31] above). After considering a couple of US decisions (viz, Shattuck v Klotzbach 14 Mass L Rep 360 (2001) and Cloud Corporation v Hasbro, Inc 314 F (3d) 289 (2002)), the learned judge expressed the following views with regard to the approach to be adopted in the context of e-mails (see SM Integrated ([30] supra at [91]-[93])):

[40] We agree with the reasoning set out in the preceding paragraph, especially bearing in mind the fact that the requirement of a signature under s 6(d) is a flexible one provided that it is clear that the document (or documents) concerned emanated from the person (or persons) “signing” them.

[41] It was clear, in our view, that all the requirements under s 6(d) were in fact satisfied in the present case.

[42] In so far as the specific contents of the note or memorandum were concerned, the parties, the price and the description of the subject matter (viz, the Property) were all clearly stated. In this last-mentioned regard, we agree with the Judge that “the Property was fully identified in [Helene’s] writing on the back of the 1% check” (see the Judgment at [34]).

[43] That the relevant e-mails could be viewed together (as the Judge did) by way of a joinder of several documents is also clear.

[44] Further, the e-mails noted at [5]-[8] above clearly satisfied the requirement that the note or memorandum be “in writing” within the meaning of s 6(d).

[45] Finally, the requirement of a signature under s 6(d) had also been satisfied on the facts of the present case; that this was so was, in fact, clear on the face of the relevant e-mails themselves.

[46] This was, in fact, a very straightforward case inasmuch as all the requirements under s 6(d) were clearly satisfied on the facts.

[47] The Judge also held that, even if s 6(d) had not been satisfied, the doctrine of part performance (“part performance”) would nevertheless apply in the respondents’ favour (see the Judgment at [39]-[40]).

[48] Part performance is, of course, an exception to the requirements under s 6(d). It is equitable in origin and was intended to prevent, inter alia, this very statutory provision from itself being utilised as an engine of fraud (and see, eg, Steadman ([38] supra) at 558 as well as the oft cited observations of Farwell J in the English High Court decision of Broughton v Snook [1938] 1 Ch 505 at 513). Indeed, Lord Hoffmann, in the House of Lords decision of Actionstrength Ltd (t/a Vital Resources) v International Glass Engineering IN.GL.EN SpA [2003] 2 AC 541 (“Actionstrength”), observed (at [22]) that part performance was introduced “[v]ery soon after” the 1677 UK Act.

[49] Part performance has, in fact, been assumed to apply in the local context (see, eg, the Singapore High Court decision of Midlink Development Pte Ltd v The Stansfield Group Pte Ltd [2004] 4 SLR 258 at [66]-[67]). However, the precise reasons why the doctrine is applicable in the local context have never been canvassed in detail, despite the fact that one writer has argued that the doctrine has been abolished in the light of s 6(d) (see Barry C Crown, “Cutting the Apron Strings: The Localisation of Singapore’s Land and Trust Law” [1995] SJLS 75 at 77-81 (“Crown”) (a view that was reiterated recently by the same author in “Back to Basics: Indefeasibility of Title under the Torrens System” [2007] SJLS 117 at 125); and cf Tan Sook Yee, Principles of Singapore Land Law (Butterworths Asia, 2nd Ed, 2001) at p 321). Briefly put, the learned author argued that, by re-enacting s 4 of the 1677 UK Act as s 6(d) without expressly preserving part performance, the legislature had intended to abolish it. In this regard, when s 4 of the 1677 UK Act was re-enacted as s 40 of the 1925 UK Act, a provision expressly preserving part performance was included in s 40(2) of the 1925 UK Act, which read as follows:

[50] Before proceeding to consider the learned author’s argument, a preliminary observation is in order: Admittedly, the mere factual presence of local decisions considering and/or applying part performance does not constitute, ipso facto, a normative justification for the doctrine itself. However, the presence of such decisions also cannot be ignored as it would not be unreasonable to presume that the courts must have accepted that there was a legal basis for the recognition of the doctrine of part performance in the Singapore context - a basis which we will endeavour to articulate expressly in the present judgment.

[51] Part performance has, in fact, been subject to criticism – in the main, that it generates uncertainty. This is due, in no small measure, to the House of Lords decision in Steadman ([38] supra), which led to a relaxation of the doctrine (see also Gray and Gray ([26] supra) at para 8.1.40). However (and turning to the argument by Crown (above at [49])), the key issue, in our view, is whether or not part performance (otherwise part of Singapore law pursuant to the general reception of English law and (now) s 3(1) of the Application of English Law Act (Cap 7A, 1994 Rev Ed) (“the AELA”)) is consistent with s 6(d). It is clear that s 6(d) did not expressly abolish part performance. Could it be argued that part performance was abolished because it had not (as Crown argues (above at [49])) been expressly preserved by a local equivalent of s 40(2) of the 1925 UK Act? There are several possibilities. One is that there was an omission on the part of the draftsperson. The other is that there was a conscious decision on the part of the draftsperson not to include a local equivalent of s 40(2) of the 1925 UK Act. Even if we assume that the latter is correct, we need to inquire what was, in fact, the purpose behind the enactment of s 40(2) of the 1925 UK Act in the context of the legal position then existing in the UK itself.

[52] The legal position in the UK as at 1925 (and prior to the enactment of s 40 of the 1925 UK Act) encompassed the presence of both s 4 of the 1677 UK Act (which the 1925 UK Act repealed and re-enacted as s 40 of the same) and part performance. Leaving aside s 40(2) of the 1925 UK Act for the moment, could it be argued that part performance was inconsistent with s 4 of the 1677 UK Act? This is an important question because if there was no inconsistency, then s 40(2) of the 1925 UK Act should not be construed as having been enacted in order to legitimise what was originally unlawful. It has, in fact, been observed that part performance was “expressly preserved” by s 40(2) of the 1925 UK Act (see, eg, Actionstrength ([48] supra) at [3] as well as the Hong Kong Privy Council decision of Wu Koon Tai v Wu Yau Loi [1997] AC 179 at 187 and 188 (where only the word “preserves” is used)). This observation is consistent with the assumption that part performance was not viewed as being inconsistent with s 4 of the 1677 UK Act. This view must surely be correct. Part performance was developed as a judicial exception to s 4 of the 1677 UK Act (see also I C F Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (Sweet & Maxwell, 7th Ed, 2007) (“Spry”) at p 254 as well as Pettit ([29] supra) at 441 (where it was observed that “[a]lthough the Court of Chancery was bound by statute, it nevertheless regarded itself as having the power to intervene where the strict application of the statute would actually operate to promote fraud rather than to prevent it”); but cf Crown ([49] supra) at 77-78).

[53] As a point of general principle, exceptions in the law are, in fact, common and furnish the requisite flexibility which ensures that the rule concerned is not ossified, hence leading to injustice. Put simply, exceptions are not, ex hypothesi, contradictions of the rule concerned. However, it is admitted that there is the danger that an exception could possibly “swallow up” (and thereby replace) the rule concerned. Although, as we have seen, part performance does engender some measure of uncertainty, there is no evidence that it contradicts s 4 of the 1677 UK Act. Neither could part performance be said to have “swallowed up” or replaced s 4 of the 1677 UK Act. Indeed, both the situations just mentioned would be legally unacceptable; if there is an inconsistency between a judicial rule and a statutory provision, the latter must prevail. Although it has been argued (see Crown ([49] supra at 77-78) that the courts had ignored the clear provisions of s 4 of the 1677 UK Act in developing the doctrine of part performance, the real issue centres on what the legal position was (in so far as the UK legislature was concerned) at the time s 40 of the 1925 UK Act was enacted.

[54] In our view, the legal position at the time s 40 of the 1925 UK Act was enacted was that part performance was an established part of the legal landscape and was an exception to s 4 of the 1677 UK Act (and not in derogation of it in any way). Indeed, even Lord Blackburn (who was clearly not enamoured of the doctrine) had nevertheless to admit (in the House of Lords decision of Maddison v Alderson (1883) LR 8 App Cas 467 at 489), as follows:

We also note that there is nothing in the language of s 40(2) of the 1925 UK Act (reproduced above at [49]) which suggests otherwise, viz, that part performance was considered to be unlawful. On the contrary, the language of this provision suggests the precise opposite, viz, that part performance was - and continued to be - part of the legal landscape.

[55] In our view, s 40(2) of the 1925 UK Act was merely declaratory in nature inasmuch as it clarified by way of a declaration that part performance continued to be part of the law (in tandem with s 40 of the 1925 UK Act).

[56] Such an approach is, in fact, consistent with the views of Lord Simon in Steadman ([38] supra) at 558 to the effect that part performance and its underlying rationale had “received statutory recognition … in section 40(2) of the [UK] Law of Property Act 1925” [emphasis added]. This particular terminology is, with respect, even more appropriate than the phrase “expressly preserved” (see above at [52]) as it accurately reflects the legal state of play at the time the 1925 UK Act in general and s 40 thereof in particular were promulgated. Looked at in this light, s 40(2) of the 1925 UK Act was neutral in nature: It neither added anything to nor subtracted anything from the existing law and was, at best, enacted ex abundanti cautela.

[57] In the circumstances, the omission of a local equivalent of s 40(2) of the 1925 UK Act is, in our view, neutral at best. It certainly did not, in our view, signal an intention on the part of the local legislature to abolish part performance. Indeed, such an intention was manifested by the UK legislature (albeit in a completely different context) only with the promulgation of the 1989 UK Act when (as noted above at [24]), contracts for the sale of land or the disposition of an interest in land had to be in writing, and not (unlike s 4 of the 1677 UK Act, s 40 of the 1925 UK Act as well as the present Singapore position) merely evidenced by writing. More specifically, s 2(8) of the 1989 UK Act stated that “[s]ection 40 of the [UK] Law of Property Act 1925 (which is superseded by this section) shall cease to have effect”. That meant, of course, that s 40(2) of the 1925 UK Act was abolished and, with that, part performance. Furthermore, and from a substantive perspective, since contracts for the sale of land or other disposition of an interest in land had to be in writing (pursuant to s 2 of the 1989 UK Act), it was conceptually as well as logically inconsistent for part performance to exist (let alone continue); as was aptly put in a leading textbook (see Spry ([52] supra) at p 260 (see also p 250)):

Yet another leading textbook has also observed (in a similar vein) thus (see Gray and Gray ([26] supra) at para 8.132):

And Prof Pettit has also observed as follows (see Pettit ([29] supra) at 441):

[58] It is true that s 40(2) of the 1925 UK Act has, in fact, been reproduced in other Commonwealth legislation (see Crown ([49] supra) at 78-79). If, however, as we have already pointed out above, this particular provision was at best neutral in nature and was enacted ex abundanti cautela, then it could, in fact, be argued that the draftsperson of s 6(d) was very perceptive in not “blindly” including a saving provision that added nothing to the existing legal position. Such an approach is, of course, wholly consistent not only with sound legislative drafting but also the development of an autochthonous Singapore legal system (see generally in this latter regard the Singapore High Court decisions of CHS CPO GmbH (in bankruptcy) v Vikas Goel [2005] 3 SLR 202 at [87] and Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005] 4 SLR 604 at [27]-[28]).

[59] Although, as already explained above, the argument centring on s 40(2) of the 1925 UK Act is wholly without merit, we would, in fact, go further and observe that the very premise upon which this particular argument is based is, with respect, flawed. In particular, this argument assumes that the Singapore Parliament based s 6(d) wholly on s 40 of the 1925 UK Act – in terms of not only the language of the latter provision but also (and more importantly) in terms of its substance and purpose at the time the 1925 UK Act was promulgated (viz, 1925). A closer examination of the relevant parliamentary background reveals, however, that this was not the case, at least in so far as the latter aspect (of substance and purpose as at 1925) was concerned. Let us elaborate.

[60] Section 6(d) was, in fact, originally introduced by s 7 read with the Second Schedule of the AELA. In the Explanatory Statement to the Application of English Law Bill (Bill 26 of 1993) (“the Bill”), it was stated as follows:

And, during the Second Reading of the Bill (which was later enacted as the AELA), the Minister for Law, Prof S Jayakumar, observed thus (see Singapore Parliamentary Debates, Official Report (12 October 1993) at cols 609-610):

More importantly, Prof Jayakumar also observed as follows (id at col 612):

[61] It is clear, therefore, that s 6(d) was merely a re-enactment, in modern language, of s 4 of the 1677 UK Act. Section 40 of the 1925 UK Act was relevant only in furnishing the modern language for s 6(d) – and nothing else besides. In other words, and as is clearly evident from the legislative background set out in the preceding paragraph, the substance and purpose of s 40 of the 1925 UK Act (including that relating to subsection (2) thereof) was wholly irrelevant in so far as the enactment of s 6(d) was concerned. In so far as s 6(d) was concerned, the focus was, instead, on s 4 of the 1677 UK Act, ie, on what the position was in 1677 (which was, of course, prior to 1826 in general and prior to 1925 in particular). This also explains why s 6(d) refers to both s 4 of the 1677 UK Act and s 40 of the 1925 UK Act in its marginal note (and, significantly in our view, by the notation “Cf.”). Put simply, the very (indeed, entire) premise upon which the argument centring on s 40(2) of the 1925 UK Act is based is, with respect, flawed inasmuch as it assumes that the Singapore Parliament based s 6(d) wholly on s 40 of the 1925 UK Act with respect to both its language as well as its substance and purpose. In the circumstances, the doctrine of part performance, which (as we have seen) was developed after the 1677 UK Act, was — and continued to be — part of Singapore law by virtue of the general reception of English law and, subsequently, via s 3(1) of the AELA.

[62] Turning to another (albeit less important) issue, it should be noted that it has been argued that the abolition of part performance ought not to be lamented because there are, inter alia, alternative doctrines that can take its place (see Crown ([49] supra) at 81). However, it is significant that another author has perceptively pointed out that it is by no means clear that an adequate replacement for part performance has been developed (see Gerwyn Ll H Griffiths, “Part Performance – Still Trying to Replace the Irreplaceable?” [2002] Conv 216). In any event, the argument with regard to possible alternatives to part performance does not detract from the fact that part performance has not been abolished by s 6(d).

[63] For the reasons given above, it is our view that part performance continues to be part of Singapore law. We turn now to consider the Judge’s views as to why there was part performance in the present case. He, in fact, found as follows (see the Judgment at [39]-[40]):

[64] Although it used to be the case that the payment of money could never amount to part performance, this is no longer the case. However, the converse does not necessarily follow inasmuch as the payment of money per se will not automatically result in a finding of part performance as such payment might be equivocal in nature. Much will depend on the surrounding circumstances (see eg Spry ([52] supra) at p 274). In the circumstances, we agree with the reasoning of the Judge as set out in the preceding paragraph (the doctrine of part performance having been satisfied in this case by the payment of money which was effected by way of a cheque and having regard to the circumstances of the case itself). In any event, this does not – having regard to the reasons given above - impact on the decision we arrived at inasmuch as it constitutes an additional reason for our decision. Indeed, the application of part performance also constituted (as is evident from the preceding paragraph) an extra string to the legal bow in the court below.