Loh

- vs -

Zaibun Sa

Judgment

MT Chang FJ

(delivering the judgment of the Court)

1. This appeal is from the refusal of the learned judge to order specific performance of an agreement to sell land and his decision to award damages instead.

2. The agreement was in writing made on 11 December 1973 and was made between the respondent and the first appellant. The recital described the respondent thus “... the vendor herself and as administratrix is the owner” of the lands agreed to be sold. The agreed price was $1100 per relong nett. A deposit of $5000 was agreed to be made on the signing of the agreement and the balance was to be paid within one month from the date of the agreement. Time was not made of the essence. The purchaser was to be entitled to vacant possession.

3. The word “herself” is curious. But from the fact that the purchaser was also said to be acting for herself and as purchaser, it is possibly tautologous and without any significant meaning.

4. This agreement (exh P1 which appears in pp 99–100 of the Record of Appeal) is the one sued on. But there appears to be another agreement, exh P2, appearing in pp 111–113 of the Record, which is identical with P1 except that it is undated and the price had increased to $1200 per relong. It was signed by the respondent but not by the purchaser.

5. The agreement P1 was executed not by the first appellant but by the second appellant on her behalf. A point was taken at the hearing that the agreement had not been executed by the purchaser and therefore there was no concluded agreement of sale between them. The learned judge found, with respect, quite correctly, that the second appellant was not merely a broker but an agent as well, even though not armed with a valid power of attorney. No point was, however, taken whether he should join in the action. Under s 183 Contracts Act, he as agent could not sue or be sued.

6. On the evidence, the learned trial judge found that the deposit of $5000 made by a crossed cheque was a valid tender, that the agreement had not been terminated and was valid and that at all times it was the respondent who had refused to carry out the sale. Against these findings, counsel for the respondent did got contend at the hearing of the appeal. The learned judge also came to the conclusion that the reason for the refusal of the respondent was the not uncommon one of asking at every stage for a higher price. Besides exh P2, there were several other letters from the respondent agreeing to sell if only the price would be increased. The conduct of the respondent could hardly be commended. It was not to the learned judge.

7. Now there was no difficulty in the way for the respondent to carry out the sale. Though an administratrix, she was empowered with a valid Order of Court, made on 27 March 1970, empowering her to sell as such administratrix the lands, inter alia, in question, at prices rather lower than what she had bargained for and obtained in this sale. She had done well for the estate and the other beneficiaries as well as for herself. But her desire to do better even if it was not merely for herself should not be considered, at least not by a court of law and equity, when it clashes with her solemn undertaking.

8. On the evidence therefore and the submissions made, the learned trial judge found against the respondent and in favour of the first appellant. But he also found on the evidence the existence of a separate oral agreement which was not incorporated into the written agreement for the payment of damages in the event of failure to complete by either party.

9. The learned judge held this evidence admissible under s 92(b) Evidence Act 1950 and made it the reason for refusing specific performance. He thought that the provision for an alternative remedy displaced the presumption under s 11(2) Specific Relief Act in favour of specific performance, especially as there was an alternative prayer for damages in the appellant’s action.

10. As to the existence of this separate oral agreement, he considered that the evidence of the respondent and her husband who had at all times acted for her, was substantiated by the second appellant. He had however noted that the versions were different.

11. According to the respondent and her husband, she had to refund the $5000 deposit and pay an additional $5000. The second appellant’s version was that the respondent had to refund the deposit and pay all the damages. The short answer to the learned judge’s finding therefore is that if there was no consensus there was no agreement. But there is, apart from the question of admissibility under s 92 Evidence Act, another objection to his finding, in which from the order to pay an additional $5700, he appeared to have accepted the evidence of the defence. He had all along the line clearly disbelieved the respondent and her witness, but now under a mistaken belief of substantiation, of which there was in fact none, he accepted her evidence. With respect, the inconsistency must bear on the validity of his finding.

12. Next, the learned judge thought this separate oral agreement for damages good or sufficient enough for him to exercise his discretion to award damages rather than to order specific performance. But it was not the stand taken by the respondent in her pleadings that she would pay damages. Section 18 of the Specific Relief Act provides for a prayer for compensation. Further, s 19 provides that though a sum be named in the contract as liquidated damages and the party in default is willing to pay the same, a contract may be enforced by an order for specific performance. No case has been cited to the effect, and we have not been able to advise ourselves of any, that an alternative prayer for damages, per se, absolves the party in breach from having to perform or the court from its duty to consider in the circumstances of the case before it decides whether it would order specific performance or not. As their Lordships of the Privy Council declared in Oxford v Provand (1868) LR 2 PC 135 at page 151,

    It is clear that the court may exercise a discretion in granting or withholding a decree for specific performance; and in the exercise of that discretion, the circumstances of the case, and the conduct of the parties and their respective interests under the contract, are to be remembered.

13. There is something more, a presumption in favour of specific performance of a contract to sell land, which is statutorily provided in s 11(2) Specific Relief Act which reads as follows:

    Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money.

14. The burden of rebutting this presumption lay on the respondent. Suffice it to say that the respondent had not in any way rebutted it. She had not even sought to rebut it. There existed therefore no grounds for the exercise by the learned judge of his discretion.

15. On the other hand, there was evidence that the first appellant owned the adjoining lands which were being mined for tin and that she needed the lands in question for the continuation of her mining operations. There is therefore here the element of public policy which operates in favour of an order for specific performance. In our view, the evidence was in favour of specific performance.

16. There was a cross-appeal which we allowed out of time. It was argued that the action was incompetent since the respondent who was sued in respect of a contract entered into by her as the administratrix was not shown either in the writ or the indorsement thereto or in the statement of claim to have been sued in her representative capacity. Though no objection was taken at any stage prior to the cross-appeal, it was however contended that it was not too late to object on this ground. But it was also argued on behalf of the respondent that it was too late for the appellant to object to the evidence of the separate oral agreement for damages at the hearing of the appeal. We have considered the appeal on the basis that this oral agreement was an issue and on the basis, but without deciding, that it was adducible and admissible in evidence and we have discussed the effect of it. We propose to give further consideration to the respondent’s point.

17. We agree that under Ord. 3 r 4 Rules of the Supreme Court the representative capacity of the respondent should have been shown in the endorsement on the writ. No case has however been cited to us and we ourselves are unable to find any to support the proposition that the omission made the action incompetent. Neither did Mr. Lim for the respondent contend that the writ was a nullity. If so, the defect is curable under Ord. 70 r 1, and having regard to the stage in the proceedings, we would give leave to amend to cure any irregularity there might be.

18. The appeal is allowed and the cross-appeal is dismissed both with costs. There will be an order that the respondent as administratrix specifically perform the agreement to sell by executing proper and valid transfers of the lands in question upon payment of the full purchase money and a further order that if she defaults, the Senior Assistant Registrar be empowered to execute the relevant documents on her behalf. The second appellant should be struck out from the action and we so order. He will however not be entitled to any costs.

Cases

Oxford v Provand [1868] 2 PC LR 135

Legislation

Specific Relief Act (Act 137): s.11(2)

Evidence Act, 1950: s.92

RSC 1957: Ord. 3 r 4, Ord. 70 r 1

Representation

S Jeya Palan for the appellants.

Lim Kean Chye for the respondent.