Toh Tian Sze v Han Kim Wah

Lee Seiu Kin J:

[1] The plaintiff and the defendant are the registered proprietors of Lot No 443 V of Mukim 20 (“the Property”) as tenants in common in equal shares. In this originating summons the plaintiff applied for an order to partition the Property, and alternatively for an order that the Property be sold in the open market and the sale proceeds distributed in equal shares.

[2] The Property is a residential plot of land with an area of about 745 square metres located at Lorong Tanggam. It is physically divided into two parts roughly equal in area by a wall running approximately in the middle. In each divided half is a detached house. The plaintiff has possession of the house which is assigned the address No 45 Lorong Tanggam and the defendant has possession of the house which is assigned No 49 Lorong Tanggam. The events leading to the present application for partition may be summarised as follows:

[3] The plaintiff is a businessman who had previously redeveloped another property in the same area. He had purchased the previous owner’s interest in the Property for investment purposes. The plaintiff claimed that the defendant had initially agreed to redevelop the land into a pair of semi-detached houses. However they could not agree on its exact terms and are now unlikely to agree on a particular mode of partitioning the Property. That is the reason he is making the present application as he is otherwise unable to develop the Property.

[4] The defendant denied that there was any agreement to jointly redevelop the Property, and argued that there was no reason to compel her to sell her property simply for the convenience of the plaintiff.

[5] It was not disputed that the parties signed and entered into a “Partition Agreement” dated 15 May 2000 (“the 2000 Agreement”). The relevant clauses of the 2000 Agreement provide as follows:

[6] A draft supplemental agreement was drawn up to replace clause 8 above (at [5]) with the following:

However this supplemental agreement was not signed by the parties.

[7] Under the 2000 Agreement the parties had agreed to subdivide the Property by obtaining separate CTs, with each party retaining his or her original detached unit. This is corroborated by the parties’ application to the URA for subdivision, which was for subdivision into two separate legal lots and not redevelopment. In the event, URA did not approve the subdivision and the 2000 Agreement could not be carried out. The 2000 Agreement makes no mention of joint redevelopment and although there are contemporaneous documents that suggest that the parties considered joint redevelopment as a real possibility – such as the engagement of an architect to submit plans to URA for approval – there is no evidence of an agreement being reached to jointly redevelop the Property.

[8] There was therefore an agreement to partition the Property on particular terms, performance of which is impossible due to URA’s refusal to grant planning permission. In this application, the plaintiff asked this court to order partition on different terms, alternatively to exercise its discretion to order a sale in lieu of partition.

[9] The Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) provides, in s 18(2) read with para 2 of the First Schedule thereto, that the High Court shall have:

[10] The background to this provision was traced by S Rajendran J (“Rajendran J”) in Abu Bakar v Jawahir and Others [1993] 1 SLR(R) 865 (“Abu Bakar”). He said at [7]-[17]:

[11] The plaintiff in Abu Bakar sought an order for partition of a single storey house that the first and third defendants and their families were residing in. The plaintiff, first defendant and third defendants were each owners of a one-third share of the property. In view of the impracticality of partitioning the small piece of land, Rajendran J ordered it to be sold and the proceeds distributed to the co-owners in accordance with their shares.

[12] The defendant objects to partition or sale. However in view of the right of the plaintiff for an order for partition, the only issue I have to consider is whether I should order partition or, if it appears necessary or expedient to do so, to order sale of the Property. Nevertheless, a consideration of the defendant’s situation does not disclose much merit to her objections. The defendant is an elderly lady who had resided at No 49 Lorong Tanggam for several decades until she moved out in 2006. From 2009, that part of the Property was tenanted; however she did not provide any information on the amount of rent she obtains, other than stating in her affidavit that it gives her “some spending money”. The context of this dispute is thus not “a case of a wife being evicted from her matrimonial home or an elderly person who may be put to great disadvantage if asked to leave his home” (per Judith Prakash J (“Prakash J”) in Chiam Heng Luan and others v Chiam Heng Hsien and others [2007] 4 SLR(R) 305 at [97] (“Chiam Heng Luan”)). There is really no substantial prejudice to the defendant if the Property were partitioned or sold as she has not lived there since 2006 and is only deriving rent from a rather decrepit house on the land. In her affidavit she said that she intended to pass it to her children. An order for partition or sale, by removal of the encumbrance of having a tenant in common to contend with on any decision pertaining to the Property, would enable her to realise its full economic potential during her lifetime and eventually, to pass it on to her children. In Chiam Heng Luan, Prakash J noted at [97] that the disputed property “was not in a good state of repair and it was a valuable asset that was not being properly exploited for the economic benefit of all the owners”.

[13] I turn now to consider whether I should order a sale in lieu of partition. The Property has been valued at $4,500,000. The two houses on it are about half a century old. The land is too small for two detached houses and the only possibility is to build two semi-detached houses. Partitioning would therefore require the parties to cooperate. They have tried to do so, but have reached an impasse resulting in the plaintiff turning to the court for assistance. It is not likely that having taken the matter to court, they would fare any better at cooperation. There is really no practical diminution in the value of the land to the defendant if a sale were ordered as she does not have any plan of her own to redevelop the Property. Its value to her would be the market value of the land. I can safely presume that the sale will be conducted in such a manner that she will get the full market price for it. Even if she were to take the view that land in Singapore is a good investment at the present time, it would not be difficult for her to use her share of the sale proceeds to invest in another property in order to stay invested in this investment class.