Professional Documents
Culture Documents
N i c h o l a s
T o n g
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P r o p e r t y
L a w
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2 0 1 2
Nicks
Property
Law
Exam
Notes
2012
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TENANCY
AND
PAID
DEPOSITS
...............................
20
Table
of
Contents
ASSIGNMENT
.........................................................
20
SUB-LEASE
.............................................................
22
FIXTURES
&
CHATTELS
..........................................
4
MISCELLANEOUS
....................................................
23
CONTRACT
(RIGHT
OF
3P)
ACT
...............................
23
FIXTURE
VS
CHATTELS
..............................................
4
PRIOR
BREACH
(TO
ASSIGNMENT)
.........................
23
(1)
DEGREE
OF
ANNEXATION
...................................
4
REMEDIES
..............................................................
24
(2)
OBJECT
OF
ANNEXATION
....................................
4
1.
L'S
COVENANTS
+
T'S
REMEDIES
........................
24
EXPRESS
COVENANTS
.........................................
24
CO-OWNERSHIP
...................................................
5
IMPLIED
COVENANTS
.........................................
24
DETERMINE:
JT
OR
TIC?
............................................
5
TENANT'S
REMEDIES
IN
CASE
OF
L'S
BREACH
....
24
INITIAL
TRANSFER/CONVEYANCE
............................
5
2.
T'S
COVENANTS
+
L'S
REMEDIES
........................
24
EXPRESS
COVENANTS
.........................................
24
NON-LEGAL
OWNERS
CLAIM
..................................
5
LANDLORD'S
REMEDIES
.....................................
25
FACTORS
::
EQUITY'S
INTERVENTION
......................
5
S6:
DETERMINATION
OF
LEASE
..............................
27
PRESUMPTIONS
....................................................
5
UNEQUAL
CONTRIBUTIONS
..................................
6
MATRIMONIAL
CONTEXT
.....................................
6
LICENCES
............................................................
28
PARTNERSHIP
ASSETS
/
BUSINESS
CONTEXT
........
7
NATURE
OF
LICENCES
.............................................
28
JOINT
MORTGAGEE
..............................................
7
1.
BARE
LICENCES
...................................................
28
RENT
OBLIGATIONS?
................................................
7
2.
LICENCES
COUPLED
WITH
A
GRANT
...................
28
CONVERT:
JT
TIC
..................................................
7
3.
CONTRACTUAL
LICENCE**
.................................
28
1.
LAW:
UNILATERAL
DECLARATION
........................
7
REVOCABILITY
....................................................
28
2.
EQUITY:
SEVERANCE
............................................
7
IMPACT
ON
THIRD
PARTIES
................................
29
1.
OPERATING
UPON
HIS
OWN
SHARE
.................
7
ASSIGNABILITY
....................................................
30
2.
MUTUAL
CONDUCT
..........................................
8
4.
LICENCE
COUPLED
WITH
EQUITY
.......................
30
3.
MUTUAL
AGREEMENT
......................................
8
TERMINATION
OF
JT/TIC
..........................................
9
1.
VOLUNTARY
SALE
.................................................
9
PROPRIETARY
ESTOPPEL
.....................................
31
2.
PARTITION
............................................................
9
GENERAL
................................................................
31
SALE
IN
LIEU
OF
PARTITION
..................................
9
S1:
RAISING
PE
.......................................................
31
REPRESENTATION
...................................................
31
LEASES
...............................................................
10
RELIANCE
................................................................
31
2-PARTY
APPROACH
...............................................
10
DETRIMENT
............................................................
32
FIXED
TERM
LEASE
.................................................
10
S2:
SATISFACTION
OF
EQUITY
................................
32
1.
EXCLUSIVE
POSSESSION
.....................................
10
S3:
IMPACT
ON
3P
.................................................
33
2.
CERTAINTY
OF
TERM
..........................................
11
S4:
TRANSFERABILITY
.............................................
34
3.
RENT
...................................................................
11
RENT
HAS
TO
BE
CERTAIN
..................................
11
MORTGAGES
......................................................
37
PERIODIC
LEASE
.....................................................
12
CREATION
(LTA)
.....................................................
37
VOID
AND
EXPIRED
LEASES
....................................
12
LEGAL
MORTGAGE
/
LTA
........................................
37
VOID
...................................................................
12
EQUITABLE
MORTGAGE
/
LTA
................................
37
EXPIRED
..............................................................
12
TERMINATION
........................................................
12
MTGOR
(M)S
RIGHTS
............................................
38
EQUITABLE
LEASE
...................................................
14
EQUITY
OF
REDEMPTION
.......................................
38
GENERAL
............................................................
38
WALSH
V
LONSDALE
..............................................
14
POSTPONE
DATE
OF
REDEMPTION
....................
38
SECTION
6(D)
.........................................................
14
OPTION
TO
PURCHASE
.......................................
38
PART
PERFORMANCE
.............................................
14
COLLATERAL
ADVANTAGE
..................................
38
CREATION
OF
A
LEASES
..........................................
15
TERM
THAT
DESTROYS
EQUITY
OF
REDEMPTION
LEASES
<7
YEARS
....................................................
15
............................................................................
38
LEASES
>7
YEARS
....................................................
15
UNDUE
INFLUENCE
............................................
38
LICENCE
VS
LEASE
...................................................
16
CONTRACTUAL
RULES
........................................
39
ANALYTICAL
FRAMEWORK
.....................................
17
WHAT
CAN
M
DO
WITH
HIS
EQUITY
OF
PRIVITY
OF
CONTRACT
...........................................
19
REDEMPTION
.........................................................
42
COVENANTS:
T&C
LAND
.........................................
19
1.
ASSIGNMENT
..................................................
42
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2.
LEASE
(S23,
CLPA)
...........................................
42
APPLY
S160
COURT'S
POWER
TO
RECTIFY
.............
56
3.
MORTGAGE
.....................................................
42
VOLUNTEERS
S46(3)
...............................................
56
ACTION
FOR
REDEMPTION
/
LTA
...........................
42
IN
PERSONAM
EXCEPTIONS
...................................
57
S19
COMPEL
TRANSFER
OF
DEBT/PROPERTY
TO
ASSURANCE
FUND
.................................................
58
3P
........................................................................
42
S20
M
HAS
POWER
TO
INSPECT
TITLE
DEEDS
..
42
S21
RESTRICTION
ON
CONS.
OF
MORTGAGES
.
42
CAVEATS
............................................................
59
S22
3
MONTHS
NOTICE
RULE
..........................
43
FUNCTION
..............................................................
59
S30(1)
APPLY
FOR
COURT
SALE
OF
MGED.
1.
STATUTORY
INJUNCTION
...................................
59
PROPERTY
...........................................................
43
2.
NOTICE
...............................................................
59
MTGEE
(X)S
RIGHTS
...............................................
44
3.
PRIORITIES
(S49)
.................................................
59
RIGHT
TO
FORECLOSE
............................................
44
CAVEAT
VS
REGISTRATION
.....................................
59
RIGHTS
INDEPENDENT
OF
MS
DEF
........................
44
PROCEDURAL
ASPECTS
..........................................
59
1.
RIGHT
TO
POSSESSION
...................................
44
2.
RIGHT
TO
INSURE
PROPERTY
..........................
45
1.
LODGING
A
CAVEAT
(S116,117)
.........................
59
3.
RIGHT
TO
TRANSFER
AND
DEAL
.....................
45
2.
FORM
OF
THE
CAVEAT
(S115(1))
........................
59
RIGHTS
UPON
MS
DEFAULT
..................................
46
AMOUNT
OF
DETAILS
REQUIRED
.......................
59
1.
RIGHT
TO
APPOINT
RECEIVER
.........................
47
3.
TERMS
OF
A
CAVEAT
(S115(2))
...........................
60
2.
EXERCISE
EXTRA-JUDICIAL
POWER
OF
SALE
...
47
4.
EFFECTS
OF
LODGING
A
CAVEAT
........................
60
S1
(PRE-SALE):
.....................................................
47
IMMEDIATE
IMPACT
...........................................
60
MS
DUTY
WHEN
EXERCISING
POWER
OF
SALE
.
47
CHALLENGING
THE
CAVEAT
...............................
60
S2
(SALE):
............................................................
48
5.
LIFESPAN
OF
CAVEAT
.........................................
60
DUTY
OF
M
IN
SALE
OF
PROPERTY
.....................
48
LAPSE
(S121,122)
................................................
60
S3
POST-SALE
......................................................
50
WITHDRAWAL
(S126)
.........................................
61
DUTIES
OF
M
REGARDING
PROCEEDS
OF
SALE
..
50
ISSUE
1:
"INTEREST
IN
LAND"
.................................
62
MORTGAGEES
OTHER
RIGHTS
..............................
50
RESCISSION
OF
CONTRACT
.....................................
62
ACTION
ON
THE
DEBT
.........................................
50
REPAYMENT
OF
DEPOSIT
.......................................
62
APPLY
FOR
JUDICIAL
SALE
...................................
50
R/P
OR
MORTGAGOR'S
RIGHTS
..............................
62
EQUITABLE
MORTGAGE/CHARGEE
.........................
51
OPTION
TO
PURCHASE
...........................................
63
PRIORITY
OF
MORTGAGES
.....................................
51
RIGHT
OF
PRE-EMPTION
........................................
63
MORTGAGEES
V.
REGISTERED
WRIT
OF
SEIZURE
MATRIMONIAL
ASSETS
...........................................
63
AND
SALE
...............................................................
51
ISSUE
2:
WRONGFUL
CAVEAT
.................................
64
TACKING
.................................................................
51
ELEMENTS
OF
WRONGFUL
CAVEAT
.......................
64
WRONGFULLY
WIDE
AND
NARROW
............
64
VEXATIOUSLY
..................................................
64
LAND
TITLES
ACT
................................................
52
WITHOUT
REASONABLE
CAUSE
......................
64
START:
INDEFEASIBILITY
.........................................
52
DAMAGES
...............................................................
64
OVERRIDING
INTERESTS
46(1)
................................
52
FORESEEABILITY
.................................................
64
S159
REGISTRAR'S
POWER
TO
RECTIFY
.................
52
CAUSATION
........................................................
65
S160
COURT'S
POWER
TO
RECTIFY
........................
52
DUTY
TO
MITIGATE
............................................
65
EXCEPTIONS
46(2)
..................................................
53
LTA
ESSAYS
.............................................................
66
46(2)(A)
FRAUD
OR
FORGERY
.............................
53
FRAUD
................................................................
66
1.
WHAT
IS
FRAUD?
NOTICE?
.............................
53
CONSTRUCTIVE
TRUST
.......................................
66
2.
SUBSEQUENT
REPUDIATION
...........................
53
2-PARTY
VITIATING
FACTORS
.............................
67
3.
WILFUL
BLINDNESS
.........................................
53
INCHOATE
EQUITY
..............................................
68
3A.
UNDUE
INFLUENCE
WILFUL
BLINDNESS
..
54
HOW
DOES
THE
ETRIDGE
SITUATION
FIT
INTO
THE
4.
WHOSE
FRAUD?
..............................................
54
TORRENS
SYSTEM
...............................................
68
EVALUATION
.......................................................
54
IN
PERSONAM
....................................................
69
46(2)(B)
CONTRACTUAL
RIGHTS
.........................
55
OTHER
SOLUTIONS
.............................................
70
VIATING
FACTORS
...............................................
55
CRTPA
AND
S46(2)(B)
.........................................
55
WHAT
IF
PARTIES
WANT
TO
RESCIND
THE
CONTRACT?
........................................................
55
46(2)(C)
TRUST
OBLIGATIONS
.............................
55
46(2)(D)
LAND
ACQUIRED
FROM
LEGAL
DISABILITY
...............................................................................
56
46(2)(E)
ULTRA
VIRES
..........................................
56
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FIXTURE
VS
CHATTELS
Ommeren
Terminal
(S)
Pte
Ltd).
Conversely,
even
if
an
object
is
affixed
to
the
ground,
thus
prima
facie
a
fixture,
it
can
still
be
found
to
be
a
chattel
if
the
affixing
was
meant
to
increase
____
can
only
get
back
the
objects
if
they
are
part
of
the
land.
the
convenience
of
the
use
of
the
object
(Hellawell
v
An
object
falls
under
one
of
the
three
broad
categories:
a
Eastwood).
In
determining
the
objective
purpose,
the
law
chattel,
a
fixture,
or
part
and
parcel
of
the
land
itself
must
also
take
into
account
cultural
exceptions,
if
any
(Kish
v.
(Elitestone
Ltd
v.
Morris
&
Anor),
with
the
last
two
being
part
Som).
of
the
land
itself.
Indeed,
fixtures
are
part
of
the
land
as
worded
in
s.
6
of
CLPA,
such
that
the
fixtures
are
to
be
passed
The
test
also
applies
to
objects
that
are
not
within
the
physical
on
together
with
the
land
during
the
conveyance.
Therefore
boundaries
of
the
land
but
still
intended
to
be
an
integral
part
the
issue
in
this
case
is
whether
the
objects
are
chattels
or
of
the
land,
such
as
a
floating
dry
dock
(Pan-United
Marine
Ltd
fixtures.
v
Chief
Assessor).
When
a
tenant
installs
an
object
on
the
land
(commonly
known
as
tenant
fixtures),
if
it
was
not
intended
To
differentiate
between
a
fixture
and
a
chattel,
the
court
has
to
benefit
the
landlord,
it
does
not
belong
to
the
landlord
until
devised
2
tests:
(1)
Degree
of
annexation,
and
(2)
Object
of
the
lease
expires
and
the
fixture
is
still
not
removed
(BP
Annexation
(Elitestone
Ltd
v.
Morris
&
Anor;
Holland
v.
Refinery
Singapore
Pte
Ltd
v
Amazon
Group
Ltd;
Riduan
Bin
Hodgson)
with
the
latter
test
being
of
first
importance
Yusof
v
Khng
Thian
Huat
(No
2)).
Even
if
there
is
retention
of
(Hamp
v.
Bygrave,
affirmed
locally
in
Chief
Assessor
&
title
clause
on
the
fixture,
the
fixture
still
belongs
to
the
land
Comptroller
of
Property
Tax
v
Van
Ommeren
Terminal
(S)
Pte
as
proprietary
rights
triumph
over
contractual
rights
Ltd).
(Gebrueder
Buehler
AG
v
Chi
Man
Kwong
Peter).
**Apply
facts
to
see
the
purpose
of
placing
the
object
was
to
(1)
DEGREE
OF
ANNEXATION
enhance
the
object
or
the
realty?
Under
the
first
test
of
degree
of
annexation,
an
object
is
prima
facie
a
fixture
if
it
cannot
be
removed
at
all
save
by
destruction
of
itself
or
damage
to
the
land
(Elitestone
Ltd
v.
Morris
&
Anor;
Holland
v.
Hodgson).
If
the
object
is
affixed
or
secured
to
the
land,
it
is
prima
facie
a
fixture
and
the
burden
of
proof
fall
on
the
person
arguing
otherwise
(Holland
v.
Hodgson).
Conversely,
if
the
object
is
resting
on
its
own
weight,
it
is
prima
facie
a
chattel
and
the
burden
of
proof
on
the
person
who
argues
that
it
is
a
fixture.
**Apply
facts
to
see
if
its
resting
on
own
weight
or
affixed,
and
consequently
who
has
the
burden
of
proof
(2)
OBJECT
OF
ANNEXATION
However,
the
first
test
merely
affects
the
burden
of
proof,
and
one
need
to
go
on
to
the
second
test
to
determine
whether
the
object
is
really
indeed
a
fixture
or
chattel.
Object
of
annexation
looks
at
the
objective
intention
of
the
parties
not
the
subjective
intention
of
the
party
who
put
the
object
there
and
ask
whether
the
object
was
to
improve
value
of
the
land
or
was
it
simply
fixed
for
easier
enjoyment
of
the
object
(Hamp
v.
Bygrave;
Hellawell
v
Eastwood)?
Therefore,
an
object
that
is
resting
on
its
own
weight,
and
thus
prima
facie
a
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Co-ownership
presumed
to
have
intended
to
retain
the
beneficial
ownership.
The
burden
of
proving
that
a
gift
was
intended,
is
on
the
recipient
of
the
transfer.
DETERMINE:
JT
OR
TIC?
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If
presumption
of
advancement
operates,
couple
is
presumed
as
JT
in
equity
as
well
(Lau
Siew
Kim).
In
Diaz
v.
Diaz,
the
instrument
of
severance
was
served
but
If
wife
made
no
contributions
at
all,
she
held
deemed
not
registered,
and
the
court
held
that
between
the
join-
to
hold
the
property
entirely
on
trust
for
husband
tenants
the
severance
is
effective
in
equity
but
third
parties
(Lau
Siew
Kim).
are
entitled
to
treat
the
joint
tenancy
as
subsisting.
The
rationale
of
allowing
severance
between
the
joint-tenants
is
to
give
effect
to
legislative
intention
to
facilitate
severance
by
PARTNERSHIP
ASSETS
/
BUSINESS
CONTEXT
one
co-owner
without
consent
of
the
other.
However,
this
rationale
is
overridden
by
parliaments
insertion
of
s.
53(8),
When
parties
purchase
land
in
joint
names
as
part
of
a
which
dispense
the
need
for
production
of
document
title,
partnership
property,
they
are
presumed
to
be
TIC
even
if
which
indicates
that
registration
is
still
important
(as
noted
by
there
is
equal
contributions
(Malayan
Credit
Ltd
v
Jack
Chia).
Barry
Crown
in
his
article).
Thus,
Diaz
v.
Diaz
is
likely
not
to
be
This
is
because
the
rule
of
survivorship
has
no
place
in
a
followed
in
Singapore.
Thus,
instrument
of
severance
need
to
business
context.
Thus,
this
applies
to
joint
undertakings
with
be
registered
or
else
there
will
be
no
severance
at
all.
a
view
to
profit
as
well,
notwithstanding
the
lack
of
formal
partnership
agreement.
2.
EQUITY:
SEVERANCE
JOINT
MORTGAGEE
Held
in
Williams
v
Hensman
(1861)
that
there
are
three
heads
for
severing
a
JT
in
equity:
When
two
or
more
people
lend
money
on
the
security
for
a
1. "Operating
upon
his
own
share"
mortgage,
regardless
of
position
at
law
and
regardless
of
2. Mutual
agreement
contribution
(equal/unequal),
equity
will
presume
that
they
3. Mutual
conduct
hold
as
TIC.
The
touchstone
for
determining
effective
severance
is
final
and
irrevocable
intention.
RENT
OBLIGATIONS?
1.
OPERATING
UPON
HIS
OWN
SHARE
Regardless
of
JT
or
TIC,
there
is
unity
of
possession.
Making
of
will
[
X
]
If
A
stays
alone,
B
approves
A
doesn't
have
to
pay
rent
o Doesn't
work;
rule
of
survivorship
trumps
If
A
evicts
B
A
must
pay
rent
(Dennis
v
McDonald)
Litigation
If
A
rents
out
property/makes
profit
must
disgorge
(s73A,
o If
suit
is
about
the
JT,
then
severance
occurs
CLPA)
(Harris
v
Goddard)
o Order
of
court
=
serverance,
even
if
not
CONVERT:
JT
TIC
perfected
(Sivakolunthu)
Sale
[]
o Refers
to
sale
of
interest
and
not
the
entire
1.
LAW:
UNILATERAL
DECLARATION
land:
P
steps
into
shoes
of
ex-JT
s53(5),
LTA;
s66A(3),
CLPA
o C
sells
to
P
(A+B)
=
JT
|
P
=
TIC
Procedure
involves
1)
filling
up
instrument
or
deed,
2)
serving
o C
sells
to
B
on
all
other
JTs,
and
3)
lodging
with
Registrar
(for
LTA)
(A+B)
=
JT
|
B
=
TIC
o Can
apply
Walsh
v
Lonsdale
+
s6(d),
CLA
The
effect
is
severance
at
law.
This
approach
differs
from
UK,
Alienation
by
mortgage/lease
where
servance
is
in
equity
only
because
of
UK
Law
of
o Mortgage
is
valid
severance
[ ]
(First
Property
Act
1925.
Singapore
provides
for
severance
at
law.
National
Securities)
o Lease
unclear
(partial
alienation)
modern
authority
is
TIC
during
lease;
if
lease
ends
Issue:
what
if
instrument
filled
but
not
registered?
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7
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71
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before
JT
dies
=
JT
again
(Wright
v
Gibbons
An
oral
agreement,
though
not
enforceable
and
later
AUS
position)
abandoned,
can
still
be
accepted
as
evidence
of
course
of
No
Singapore
case
on
this
dealing
to
show
parties
intention
(Burgess
v
Rawnsley).
o Policy
reasons
(Barry
Crown)
A
registered
mortgage
is
a
public
Lord
Denning
and
Sir
John
Pennycuick
(Browne
LJ
silent
on
transaction
no
risk
of
1
JT
this)
held
that
it
was
possible
for
negotiations
not
effecting
a
severance
behind
back
culminating
in
an
agreement
to
be
evidence
of
a
common
of
co-owner
intention
to
sever.
However,
both
disagreed
as
to
whether
An
equitable
mortgage,
however,
the
facts
in
Burgess
amounted
to
such
intention.
While
Lord
may
never
be
found
out
and
if
the
Denning
was
in
the
positive,
Sir
John
Pennycuick
felt
that
one
co-owner
that
is
not
the
mortgagor
cannot
ascribe
to
join-tenants
an
intention
to
sever
merely
dies,
the
lessee
will
succeed
to
the
because
one
offers
to
sell
and
the
other
counter-offers.
entire
estate
by
virtue
of
the
Therefore,
the
threshold
is
high
and
the
course
of
dealing
or
doctrine
of
survivorship.
Manifestly
actions
must
evince
the
unequivocal
common
intention
of
unfair
when
JT
had
in
fact
been
parties
to
sever,
even
if
intention
was
not
subsequently
acted
severed
in
equity
upon.
Leases
are
also
problematic
if
lease
was
only
granted
by
1
co- **Facts,
is
the
common
intention
unequivocal
based
from
owner
without
joint
consent
of
the
actions?
others,
lessee
must
share
exclusive
possession
with
rest
of
the
co-
owners
who
di
not
consent
and
3.
MUTUAL
AGREEMENT
who
also
have
the
right
to
elase
property
out
to
3P
An
oral
agreement,
though
not
specifically
enforceable,
would
Quare:
whether
4
unities
can
be
re- amount
to
a
mutual
agreement
to
severe.
The
significance
is
enjoyed
afterwards
not
the
binding
effect
of
the
agreement
but
the
indication
of
Gifts
the
common
intention
to
severe
(Burgess
v
Rawnsley).
o If
deeded
[]
o If
not,
see
if
Re
Rose
doctrine
applies
***Comparison
to
facts:
Agreement
was
indeed
to
sell
the
Did
everything
in
his
power
but
shares
and
at
750,
merely
left
documentation.
Compared
to
transfer
not
registered
due
to
fault
question
(see
how/discuss
later),
intention
to
sell
was
not
of
3P
=
effective
severance
even
present.
Bankruptcy
o Automatically
vests
in
the
trustee
in
Agreement
can
be
express
or
implied
and
be
a
valid
bankruptcy
(Bankruptcy
Act)
agreement,
but
need
not
be
specific
1. Sale
from
one
JT
to
another:
contract
need
not
be
specifically
enforceable
2.
MUTUAL
CONDUCT
2. Sale
to
3P:
mere
agreement
to
sell
won't
lead
to
severance,
but
intention
to
split
the
proceeds
of
sale
Lack
of
agreement
but
unambiguous
intention
to
does
sever
through
a
course
of
dealing
3. For
negotiations,
severance
would
occur
only
if
the
Mutual
wills
[]
(Burgess
v
Rawnsley)
JTS
intend
to
sever
regardless
of
the
outcome
of
the
Negotiation
negotiation
o Uncertain.
Mere
offer
to
buy/sell
insufficient
standard
has
to
be
the
same
as
mutual
Mutuality:
all
JTs
must
agree
agreement
Mutuality:
ALL
JT
must
be
involved
in
the
course
of
dealing
(Tan
Chew
Hoe
Neo
v
Chee
Swee
Cheng)
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TERMINATION
OF
JT/TIC
1.
VOLUNTARY
SALE
Combined
sale
of
property,
either
voluntarily
or
by
court
order,
will
end
the
co-ownership
agreement.
JT
have
to
act
collectively
for
sale
to
be
effective
2.
PARTITION
Partition
destroys
the
unity
of
possession
and
parties
thus
become
sole
owners
of
his
part.
This
can
be
done
voluntary
or
by
court
order
(s18(2),
SCJA
+
First
Schedule,
1st
paragraph).
This
interest
is
divided
physically
as
well
as
conceptually
and
a
land
surveyor
has
to
be
called.
Not
always
easy.
SALE
IN
LIEU
OF
PARTITION
However,
in
some
situations,
court
may
order
for
a
sale
in
lieu
of
partition
(SCJA,
First
Sch,
para
2
court
has
power
to
order
partition
or
sale
in
lieu
of
partition)
Khoo
Seoke
Haing
v
Cheah
Khay
Pin
partition
decree
[]
Before
partition
decree
carried
out,
one
of
the
co-
owners
died.
Court
held
that
partition
decree
operates
as
a
severance
of
a
joint
tenancy
the
moment
it
was
created
Abu
Bakar
v
Jawahir
impractical
partitioning
[]
Partitioning
of
small
house
not
practicable.
Court
held
sale
in
lieu
of
partition
works
to
sever
as
well
and
that
better
remedy
was
for
one
to
buyout
the
other
parties'
shares
or
have
a
sale
in
lieu
of
partition
and
split
the
money
Abdul
Razak
Valibhoy
partition
breached
planning
rules
[]
Dicta:
must
consider
financial
prejudice
to
co-owners
Chiam
Heng
Luan
acrimonious
r/s
+
property
in
disrepair
[]
Co-owners
granted
some
sort
of
interest
to
a
subset
of
their
numbers
to
run
the
hotel.
Majority
of
co-
owners
want
to
sell
but
2
resisted
Court
ordered
a
sale
and
reasoned
that
not
selling
will
only
exacerbate
friction
and
that
property
was
in
bad
physical
condition
so
this
would
be
a
commercially
sound
decision.
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71
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Leases
3) L
can
command
T
to
leave
the
house
at
specific
periods
of
each
day
=
no
exclusive
possession
o But
quite
difficult
to
convince
Ct
to
take
this
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71
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In
certain
situations,
exclusive
possession
may
not
lead
to
the
a
contractual
licence,
with
the
practical
effect
of
agreement
amounting
to
a
lease.
These
exceptions,
as
behaving
like
a
lease
between
parties
inter
se.
identified
by
Lord
Templeman
in
Street,
include
1)
service
2. Furthermore,
all
the
judges
in
the
case
were
critical
occupancy
of
Norris
v
Checksfield,
in
which
the
right
to
occupy
of
the
rule
that
a
tenancy
has
to
be
for
a
certain
was
given
to
an
employee
for
the
better
performance
of
his
period,
and
particularly
the
way
in
which
that
rule
duties,
and
2)
where
occupation
is
given
as
an
act
of
applies
to
periodic
tenancies.
They
recommended
generosity,
friendship
or
charity
as
such
as
in
Gray
v
Taylor,
in
that
this
rule
be
looked
at
again
by
Parliament,
after
which
occupation
of
an
almshouse
did
not
indicate
the
consultation
on
the
issue
by
the
Law
Commission.
existence
of
a
lease.
3. Applying
this
to
Lace
v
Chantler,
it
would
allow
the
agreement
to
be
enforceable
4. If
this
case
were
to
be
held
in
Singapore,
a. Under
s87(2)(b),
LTA,
there
is
a
specific
2.
CERTAINTY
OF
TERM
requirement
that
the
maximum
duration
is
With
regards
to
the
term,
a
lease
must
have
a
certainty
in
certain
before
a
lease
can
be
registered
duration
and
it
cannot
be
open-ended;
the
termination
point
b. This
is
arguably
just
a
codified
provision
of
of
the
lease
must
be
fixed
from
the
very
commencement
of
the
common
law
requirement
of
certainty
of
the
lease,
ab
initio
(Lace
v.
Chantler).
This
principle
was
briefly
duration
(Prudential),
hence
the
Mexfield
doubted
when
the
court
in
Ashburn
Anstalt
v.
Arnold
held
that
contractual
circumvention
of
the
certainty
of
even
if
the
term
is
not
clearly
demarcated,
as
long
parties
term
requirement
would
still
be
viable
know
when
the
arrangement
will
come
to
an
end
there
is
no
Hence
in
practice,
just
put
lease
for
99
years
or
[whatever
uncertainty.
However,
Ashburn
was
overruled
in
Prudential
indeterminate
condition],
whichever
is
shorter.
Assurance
Co
Ltd
v.
London
Residuary
Body
where
the
court
affirmed
Lace
v.
Chantler
that
any
lease
or
tenancy
MUST
state
a
maximum
duration
that
is
ascertainable
at
the
date
of
commencement.
This
principle
was
then
affirmed
locally
in
3.
RENT
Chiam
Heng
Luan
v
Chiam
Heng
Hsien.
Despite
Lord
Templemans
ruling
in
Street
v.
Mountford,
it
was
held
in
Ashburn
Anstalt
v
Arnold
that
it
was
not
necessary
**
Discuss
Mexfield
v
Berrisford
circumvention
of
certainty
for
a
payment
of
rent
to
create
a
valid
lease
at
common
law.
requirement
Whilst
Ashburn
was
accepted
by
Scott
LJ
in
Prudential
Assurance
Co
Ltd
v.
London
Residuary
and
Dillon
LJ
in
Is
this
factor
of
certainty
of
duration
required?
Canadian
Imperial
Bank,
this
view
was
restricted
to
only
fixed
term
leases
and
not
periodic
tenancy
as
it
is
difficult
for
the
Mexfield
v
Berrisford
(2012
Supreme
Court
of
UK)
latter
to
arise
without
a
reservation
of
rent.
[60]
If
the
agreement
does
not
create
a
tenancy
for
technical
reasons,
namely
because
it
purports
to
Nonetheless
it
is
submitted
that
a
rent
is
important
as
create
an
uncertain
term,
it
is
hard
to
see
why,
as
a
consideration
to
sustain
the
contractual
bargain,
therefore
matter
of
principle,
it
should
not
be
capable
of
most
leases
would
have
rent,
if
not
an
alternative
form
of
taking
effect
as
a
contract,
enforceable
as
between
consideration
(Tan
Sook
Yee).
the
parties
personally,
albeit
not
capable
of
binding
their
respective
successors,
as
no
interest
in
land
or
RENT
HAS
TO
BE
CERTAIN
other
proprietary
interest
would
subsist.
It
is
a
common
misconception
that
rent
has
to
be
in
monetary
form.
It
can
be
in
goods,
services,
or
payable
in
kind.
The
only
**
Apply
to
say
that
the
certainty
of
term
req.
is
in
question
clear
requirement
is
that
the
amount
of
rent
must
be
capable
1. The
Supreme
Court
in
Mexfield
v
Berrisford
held
in
of
being
rendered
certain.
Thus,
in
Bostock
v
Bryant
(1990),
dicta
that
even
if
a
tenancy
could
not
be
created
for
the
obligation
to
pay
fluctuating
utility
bills
could
not
be
want
of
certainty
of
duration,
the
arrangement
could
regarded
as
rent,
being
an
uncertain
sum.
still
take
effect
as
a
contract,
enforceable
as
between
the
parties
personally,
albeit
not
capable
of
binding
their
successors
because
no
interest
in
land
would
subsist.
In
other
words,
it
would
take
effect
as
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It
is
terminated
only
when
either
of
the
parties
give
the
appropriate
notice
to
quit
(Prudential
Assurance,
Mellows
v.
Low).
The
duration
of
a
period
is
to
be
inferred
from
the
period
of
each
payment
(Adler
v.
Blackman),
therefore
if
rent
is
paid
on
a
weekly
basis
it
is
likely
to
be
a
weekly
tenancy
and
so
on.
In
the
absence
of
a
provision
for
the
termination
of
the
periodic
tenancy,
the
appropriate
period
for
notice
to
quit
must
correspond
with
the
length
of
a
period:
if
it
is
a
monthly
tenancy,
the
period
is
1
periodic
month,
and
if
it
is
a
yearly
tenancy
the
periodic
is
6
months
(Ko
Teck
Kin
v
Watkinson).
However,
the
notice
must
be
given
at
the
start
of
a
new
th
period
(Ko
Teck
Kin),
i.e.
if
tenancy
starts
on
20 ,
notice
must
th
be
given
on
20 ,
and
there
cannot
be
an
overlap
of
the
periods.
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CREATION
OF
A
LEASES
LEASES
<7
YEARS
If
<
7
years,
then
common
law
intention,
possession
but
no
need
formalities.
S86,
87
does
not
apply
to
leases
below
7
years:
s87(5)
Leases
under
7
years
form
an
overriding
interest
even
if
they
do
not
appear
on
the
face
of
the
register
LEASES
>7
YEARS
If
>
7
years,
then,
s.
53(1),
CLPA
and
s.
46(1)(f),
86,
87,
LTA.
S.
53(1),
CLPA:
o A
conveyance
of
an
estate
or
interest
in
land
other
than
for
a
lease
for
a
period
not
exceeding
7
years
at
rack
rent
shall
be
void
at
law
unless
it
is
by
deed
in
the
English
language.
S.
46(1)(f),
86,
87,
LTA:
o Further
requirements
for
registered
land
under
the
Land
Registry:
Have
fixed
maximum
term
(cannot
be
determinable
by
the
happening
of
an
event)
Must
purport
to
confer
on
the
leesee
exclusive
possession
of
land.
o S.
87,
LTA:
Must
be
in
the
prescribed
form
and
registered.
o S.
46(1)(f),
LTA:
Will
bind
parties
even
without
registration
or
notification.
Failure
to
complete
the
formalities
will
void
the
lease
at
law,
but
if
the
tenant
tenders
rent
which
is
subsequently
accepted
by
the
landlord,
a
legal
periodic
tenancy
is
created.
An
equitable
lease
>
implied
legal
periodic
tenancy
because
s.
4(13),
CLA
says
that
equity
prevails.
Furthermore,
there
could
be
a
lease
in
equity
when
there
is
an
agreement
to
grant
a
lease.
Note:
Must
satisfy
s.
6(d),
CLA
or
doctrine
of
part
performance.
See
above
('Equitable
leases')
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LICENCE
VS
LEASE
Exclusive
possession
is
not
What
is
the
significance
of
distinguishing
license
from
lease?
conclusive
of
a
lease
LEASE
LICENSE
A
may
have
exclusive
possession,
but
CONCEPTUALLY
A
proprietary
estate
A
purely
personal
permission
to
occupy
rd
he
may
be
a:
COMMON
LAW
- Interest
capable
of
- Not
capable
of
assignment
to
3
P
rd - Fee
simple
owner
RIGHTS
rd
assignment
to
3
P
- Incapable
of
binding
a
3
P
transferee
of
land
- Adverse
possessor
-
rd
Capable
of
binding
a
3
- Not
subj
to
Ls
remedy
of
distress
- Mtgee
in
possession
P
transferee
of
land
- Cannot
seek
relief
against
forfeiture
- Beneficiary
under
a
- Subj
to
Ls
remedy
of
charitable
trust
distress
- Can
seek
relief
against
forfeiture
- Can
create
a
sublease
TRESPASS/
- Can
sue
in
an
action
for
- No
such
right
NUISANCE
nuisance
or
trespass
- (A
rare
case
whr
licensee
has
a
right
tt
lessee
does
- Can
recover
land
from
not
is
when
licensee
sues
licensor
for
negligence
in
trespassers
safeguarding
the
formers
belongings.
A
tenant
on
the
other
hand
is
deemed
to
have
excl
possession
and
is
responsible
for
the
defence
of
his
own
land)
This
problem
concerns
the
distinction
between
a
lease
and
a
licence.
A
lease
is
tradiationally
a
proprietary
right,
whereas
a
licence
is
a
mere
personal
arrangement
between
two
parties
(Ashburn
Anstalt).
The
practical
difference
this
makes
in
this
problem
is
clear.
If
the
arrangements
entered
into
by
(name
of
landlord)
with
his
respective
occupiers
amount
to
leases,
then
they
have
the
ability
to
bind
(name
of)
the
purchaser
when
he
acquires
the
title.
If,
however,
the
arrangements
are
properly
to
be
regarded
as
liences,
then,
in
principle,
they
cannot
bind
Edward
and
the
occupiers
will
have
to
vacate
the
premises.
Overall
Territorial
control
This
carries
the
idea
that
the
tenant
has
some
form
of
overall
control
and
dominion
over
the
land.
The
test
for
determining
whether
an
occupier
is
a
tenant
or
a
licensee
depended
on
the
nature
and
quality
of
the
occupancy,
whether
it
was
intended
that
the
occupier
should
have
a
stake
in
the
room
(dicta
of
Lord
Denning
in
Marchant
v
Charters,
affirmed
by
Lord
Templeman
in
Street
v.
Mountford).
Other
factors
such
as
exclusive
possession,
duration
of
stay,
labels
which
the
parties
put
on
the
agreement
might
influence
the
decision
but
none
of
which
were
conclusive
(Lord
Denning
in
Marchant
v
Charters).
Whilst
granting
of
exclusive
possession
is
prima
facie
an
intention
to
create
a
tenancy,
if
major
covenants
of
the
agreement
indicated
that
the
landlord
retained
control
and
supervision,
the
agreement
is
not
a
lease
(Re
Tan
Tye).
In
Re
Tan
Lye,
though
the
occupier
was
purportedly
given
possession
of
the
running
of
an
amusement
park,
it
was
held
that
the
tenant
did
not
have
exclusive
control
as
he
was
subject
to
micro-management
by
the
landlord.
The
landlord
could
control
employment
and
had
a
say
in
the
running
and
operations
of
the
land.
There
was
even
a
clause
which
purported
to
transfer
the
estate
back
to
the
landlord
upon
the
tenants
death.
There
is
no
control
or
dominion
by
the
tenant
and
he
cannot
be
said
to
have
exclusive
control
of
the
land.
The
retention
of
keys
by
the
landlord
is
inconclusive
to
the
determination
of
control
and
the
court
must
ascertain
the
purpose
of
the
retention
(Aslan
v.
Murphy).
If
retention
was
for
a
legitimate
emergency
purpose,
it
does
not
affect
tenants
exclusive
possession,
but
if
retention
is
to
interfere
with
the
tenants
territorial
control
or
for
occasional
access
for
reasons
of
his
own
convenience,
then
tenant
has
no
more
exclusive
possession
(Aslan
v.
Murphy).
Exclusive
occupation
=/=
Exclusive
possession
(control
stake
in
the
land)
However,
exclusive
possession
is
not
synonymous
with
exclusive
occupation
(Street
v.
Mounfort).
An
occupier
who
is
granted
exclusive
occupation
of
the
room
does
not
mean
he
has
exclusive
possession
if
the
circumstances
objectively
showed
that
he
had
no
stake
or
control
in
the
room
(Abbeyfield
v
Woods).
To
differentiate
a
lodger
(with
exclusive
occupation)
and
a
tenant
-
Page
16
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
(with
exclusive
possession),
one
must
see
if
the
landlord
provides
attendance
or
services
which
require
the
landlord
to
exercise
unrestricted
access
to
and
use
of
the
premises.
If
so,
the
occupier
is
a
lodger
(Street
v.
Mounfort).
Labels,
contracting
away
legal
status,
misleading
terms
Courts
will
intervene
to
give
effect
to
true
relationship
that
was
created
between
the
parties
The
relationship
of
the
parties
is
determined
by
law
and
not
the
label
that
parties
put
on
themselves.
The
actual
terminology
the
parties
come
up
with
is
not
conclusive
as
they
might
misdescribe
their
relationship,
whether
deliberately
or
accidentally.
Even
if
a
contract
used
the
term
license
it
can
still
be
found
to
be
a
lease
if
when
one
looks
at
the
inner
reality
of
the
relationship
the
parties
had,
it
would
be
found
that
the
substance
of
the
contract
was
actually
a
lease
(Goh
Gin
Chye
v
Peck
Teck
Kian
Realty
Pte
Ltd).
Parties
also
cannot
contract
away
their
true
legal
status.
Even
if
the
agreement
expressly
states
that
the
occupier
is
not
a
tenant
but
a
mere
licensee,
it
will
still
be
held
as
a
lease
if
all
the
3
requirements
(of
exclusive
possession,
for
a
term
and
rent)
of
a
lease
are
fulfilled
one
cannot,
by
autonomous
misdescription
of
the
relationship,
change
the
nature
of
the
relationship
itself
(Street
v.
Mountfort;
Antoniades
v
Villiers).
Any
misleading,
unrealistic
and
cynical
terms
that
were
not
intended
to
be
taken
seriously
by
the
parties
will
be
treated
as
sham
clauses
which
the
court
will
then
strip
away
from
the
document
(Antoniades
v
Villiers;
Aslan
v
Murphy).
The
bottom
line
is,
Courts
will
always
intervene
and
look
into
the
inner
reality
of
the
parties
relationship
substance
over
form
when
determining
whether
or
not
a
lease
or
license
has
been
created.
ANALYTICAL
FRAMEWORK
STAGE
1:
Where
there
is
privity
of
contract
&
estate
(original
parties)
Rule
1:
Where
there
is
privity
of
contract
then
ALL
covenants
are
enforceable
(whether
personal
or
T&C).
Covenants
will
also
bind
the
original
tenant
even
after
the
assignment
of
lease:
Corp
of
London
v
Fell
(expiration
of
contractual
liability
but
still
has
privity
of
estate)
STAGE
2:
Where
there
is
privity
of
estate
(any
assignment/conveyance
excluding
subletting*)
Rule
2:
Where
there
is
privity
of
estate
but
no
privity
of
contract,
only
covenants
which
touches
and
concerns
the
land
are
enforceable
on
3P.
In
law
privity
of
estate:
In
equity
exceptions:
All
covenants
will
bind,
where
it
is
touching
and
All
covenants
will
bind,
where
it
is
touching
and
concerning
the
land:
concerning
the
land:
s.
10/11,
CLPA
+
s.
86(2),
s.
10/11,
CLPA
+
s.
86(2),
read
with
s.
2
of
CLPA
(which
includes
LTA;
Spencers
case
agreement
for
a
lease,
i.e.
equitable
lease.
But
this
is
in
Part
I,
whereas
LTA
only
imports
part
III);
Boyer
v
Warby
rd
STAGE
3:
Where
there
is
no
privity
of
estate
or
contract
(3
parties:
surety
or
sub-lesees)
RULE
3:
Where
there
is
neither
privity
of
contract
nor
privity
of
estate,
as
a
general
rule,
covenants
are
unenforceable.
However,
2
exceptions
(Tulk
v.
Moxhay):
Exception
1
(benefits):
If
covenant
touch
and
concern
land
with
notice,
benefits
can
still
run
in
law
and
in
equity:
Kumar
v.
Dunning;
P
&
A
Swift
Investments
v
CESG
(benefit
of
surety
covenant
runs)
Exception
2
(burden):
Burden
of
restrictive
covenants
binds
in
equity
where
there
is
notice.
o In
a
case
of
a
registered
lease/sale/transfer,
it
is
usually
available
in
the
land-register.
Hence
it
is
likely
that
the
court
will
deem
that
there
was
constructive
notice
if
he
fails
to
check
o In
a
case
of
an
unregistered
lease,
the
common
law
position
is
that
the
underlessee
has
the
right
to
check
the
head-lease.
Hence,
it
is
also
possible
that
the
court
will
deem
the
presence
of
constructive
notice
if
he
fails
to
check:
Patman
v
Harland.
o Rationale?
Court
will
not
allow
the
underlessee
(or
the
underlessor)
to
avoid
the
covenants
merely
for
failure
to
check
-
Page
17
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
RIGHTS
AND
LIABILITIES
OF
PARTIES
POSITION
IN
LAW
ORIGINAL
PARTIES
LEASE
REVERSION
L1
and
T1
T1
assigns
the
lease
to
T2
L1
assigns
the
reversion
to
L2
Privity
of
contract
/
estate
T&C
Privity
of
estate
-
T&C
covenants
bind
Privity
of
estate
T&C
covenants
bind
However,
the
covenants
does
not
bind
covenants
bind
Can
include
personal
covenants
subleases
(no
privity
of
estate)
Only
rights
to
sue
only
for
T1
liable
for
covenant
for
duration
But
restrictive
covenants
will
bind
subleases
future
breaches
passes
of
lease,
even
if
assigns
it
to
T2
since
it
runs
with
the
land
and
not
the
estate
over
to
L2.
who
breached
it
(provided
the
(Tulk
v.
Moxhay).
Forfeiture
provisions
lease
provides
T1
and
his
Forfeiture
provisions
apply
apply
successors
in
title
Spencers
case
S
10
(benefit)
and
11
L1
can
choose
to
sue
either
T1
or
(burden)
of
CLPA
T2
or
both.
When
L1
assigns
reversion
to
L2,
all
rights
to
sue
on
covenants
touching
and
concerning
land
passes
to
L2
POSITION
IN
EQUITY
T&C
covenants
bind.
Problem
area
T&C
might
not
bind!
s
10/11
LTA
T&C
covenants
No
difference
whether
legal
or
Since
assignments
of
contractual
rights
are
bind.
equitable
lease
since
they
have
privity
limited
to
benefits
and
not
burdens,
only
T2
can
No
difference
whether
legal
of
contract.
sue
L1
but
not
vice
versa
(in
a
case
of
assignment
or
equitable
lease,
since
s10
of
lease)
and
11
provides
that
lease
is
2
possibilities:
defined
under
s2
as
an
Implied
contract
between
L1
and
T2
when
T2
agreement
for
a
lease
entered
into
possession
whereby
the
lessee
has
No
distinction
between
legal
and
equitable
become
entitled
to
have
his
leases
should
be
recognised
for
these
lease
granted),
i.e.
an
purposes
(Boyer
v
Warby)
equitable
lease.
-
Page
18
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
-
Page
21
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
-
Page
22
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
MISCELLANEOUS
CONTRACT
(RIGHT
OF
3P)
ACT
**
Did
tenant/landlord
covenant
to
make
assignees
uphold
covenants?
What
if
there
are
covenants
which
are
not
touching
and
concerning
land?
1. Use
CRPTA
2. Provided
T1
makes
T2
promise
to
uphold
covenants
in
head
lease,
then
L1
may
claim
that
the
contract
purports
to
benefit
L1.
3. Same
logic
for
the
contract
between
L1
and
L2.
4. Sometimes,
contract
between
T1
and
L1
contains
promise
that
they
will
make
their
successors
in
line
promise
to
uphold
the
covenants
in
their
subsequent
contracts.
-
Page
23
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
-
Page
25
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
1. Any
covenant
cast
as
a
condition
that
directly
exercise.
If
right
is
implied
by
LTA,
L
entitles
L
to
forfeit
must
wait
for
T
to
be
in
arrears
for
30
days.
2. Breach
of
covenant
to
pay
rent
only
3. Continuing
breach
of
ANY
covenant
for
30
Relief
against
forfeiture**
days**
o S18(2),
CLPA:
Simply
apply
to
court
for
relief;
at
court's
discretion,
but
court
generally
Breach
of
ANY
other
covenant
quite
lenient
o Regardless
of
whether
right
is
expressly
o IF
L
has
actually
exercised
right
of
re-entry,
reserved
or
provided
by
way
of
s93(1),
L
he
still
can
get
relief
(Billson
v
Residential
must
comply
with
s18,
CLPA
in
exercising
his
Hillgate)
right
of
forfeiture
o But
if
court
order
for
forfeiture
has
been
Notice
+
demand
for
remedy
(if
given,
then
no
more
relief
against
forfeiture
breach
is
capable
of
remedy)
(s18A)
within
reasonable
time
o As
for
breach
of
covenant
to
pay
rent,
s
o Fight
is
always
over
whether
breach
is
one
18(A)
CLPA
:
capable
of
remedy
Reasonable
time
pay
up
Traditional
position:
Most
positive
Ct
order
given
still
got
4
covenants
are
capable
of
additional
weeks.
remedying
while
negative
After
that,
barred
from
all
relief.
covenants
are
not
As
one
can
tell,
forfeiture
is
an
extreme
remedy
thus
Not
all
negative
covenants
are
ipso
court
grants
T
multiple
defences
against
this
oucome.
facto
incapable
of
remedy
but
breach
of
covenant
by
using
premise
as
brothel
for
immoral
Repudiation
of
lease
purpose
caused
such
defame
as
to
devalue
premise
(Rugby
School
v
Rule:
Contractual
remedies
are
technically
available
Tannahill)
o Tan
Soo
Leng
David
(1998)
Covenant
not
to
assign/sublet
Always
discuss
dicta
that
short-
almost
never
remediable
(Scala
term
leases
more
contractual
while
House
v
Forbes)
+
requirement
of
long-term
leases
look
more
like
notice
not
even
necessary
(s18(8))
estates
and
less
contractual
Modern
approach:
test
for
May
suggest
that
this
remedy
only
forfeiture
shifting
from
confined
to
short-term
leases
remediability
of
breach
to
Duty
to
mitigate
(SG)
remediability
of
damage
caused
by
o Progressive
Mailing
House
(1985)
breach
i.e.
whether
remedy
is
HELD:
Court
said
to
look
at
the
practically
able
to
compensate
L
duration
of
lease
term.
(Expert
Clothing
v
Hillgate)
If
the
lease
term
is
longer
and
Appears
that
cessation
is
involves
a
lump
sum
purchase
sufficient
to
remedy
price,
it
is
more
proprietary
in
breach
nature
and
less
likely
that
Akici:
even
once-and-for- contractual
doctrines
like
all
breaches
may
be
frustration,
repudiation
and
remediable
mitigation
will
apply
(Reichman
v
Beveridge).
Breach
of
covenant
to
pay
rent
If
lease
term
is
short
and
where
o However,
for
breach
of
covenant
to
pay
rent
rent
is
the
primary
consideration,
(regardless
whether
right
to
forfeiture
arises
then
more
applicability
for
the
under
contract
or
LTA),
L
does
not
need
to
contractual
doctrines.
serve
notice
(s.
18(9))
Differs
from
forfeiture
o If
right
to
forfeiture
for
arrears
is
express
(eg.
o Available
to
both
L
and
T
can
forfeit
if
in
arrears
for
a
day),
L
can
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o No
need
to
serve
s18
notice
(but
per
Oral
agreement
to
surrender
ordinary
contract
law,
must
still
elect
to
followed
by
a
confirmatory
letter
terminate)
and
the
handing
over
of
the
keys.
Differs
from
surrender
HELD:
Valid
surrender
by
operation
o T
does
not
need
to
get
L's
acceptance
of
the
of
law.
Implied
surrender
requires
termination
an
action
that
is
inconsistent
with
o Another
advantage
is
that
prospective
the
leasehold
relationship
(hence
damages
after
termination
are
recoverable
operation
of
law
based
on
the
as
well
intention
and
acts
of
the
parties).
o Song
Kim
Puah
v.
Lim
Hoe
Chye
(1954)
Similar
to
forfeiture,
one's
right
to
termination
can
be
waived
There
was
an
oral
agreement
of
surrender,
but
after
the
agreement,
tenant
remained
on
the
premises
S6:
DETERMINATION
OF
LEASE
and
continued
to
pay
rent.
HELD:
No
surrender.
Acts
Effluxion
of
time
automatic
subsequent
to
the
agreement
were
o But
for
registered
land,
s.92
LTA
requires
not
inconsistent
with
the
notification
in
register
to
confirm
that
lease
continuance
of
the
tenancy.
has
ended.
Merger
( s67,
L TA)
Notice
to
quit
must
be
expressly
reserved
o Tenant
buying
up
landlord's
reversion
o Periodic
tenancy
is
indefinite
and
requires
o Converse
of
surrender
notice
Holding
over
o Period
of
notice
depends
on
length
of
o With
consent
of
L
can
become
new
periodic
tenancy
periodic
tenancy
Surrender
o Without
consent
of
L
s.28(4)
Civil
Law
o Surrender
of
head
lease
may
affect
Act
penalizes
the
T
by
subjecting
him
to
sublessees
paying
double
rent
or
value.
o Both
parties
must
consent
Frustration
Unilateral
abandonment
by
T
=/=
o General:
No
frustration
of
a
lease
even
if
surrender
premises
are
destroyed;
lease
is
an
estate
in
Can
be
express
or
implied
time
that
cannot
be
destroyed
(National
o L
not
obliged
to
accept
surrender
and
most
Carriers
v
Panalpina)
will
demand
a
monetary
compensation
Repudation
o S.
91,
LTA:
Express
surrender.
o Contractual
doctrine
of
repudiation
applies
Surrender
at
law
requires
a
deed
in
in
Singapore
but
not
all
types
of
leases.
the
English
language
(s.
53(1),
o Repudiation
applies
to
leases
in
Singapore
in
CLPA).
appropriate
cases.
It
is
more
appropriate
for
Surrender
at
equity
valid
even
cases
where
the
element
of
a
purchase
of
an
without
a
deed.
interest
in
land
is
not
significant
or
non-
Needs
evidence
in
writing
existent.
(s.
6A(d),
CLA).
o Where
repudiation
applies,
the
other
party
If
not,
needs
oral
must
mitigate
his
losses.
agreement
(evidence
by
a
o See
above
for
Tan
Soo
Leng;
Progressive
written
memorandum
is
Mailing
House
this
correct?),
followed
by
sufficient
part
performance.
o Fong
Holding
Pte
Ltd
v.
Computer
Library
(S)
Ltd
(1992)
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damages
are
the
only
remedy
for
revocation.
In
a
proper
case,
the
court
would
grant
specific
performance
of
a
contractual
licence
Rule
#1:
A
contractual
licence
in
itself
does
not
confer
an
even
where
it
had
been
repudiated
before
interest
in
land
and
thus
does
not
bind
3P.
the
licensee
had
entered
into
possession.
o There
is
no
difference
between
(i)
when
the
King
v
David
Allen
&
Sons
(UKHL1916)
licence
is
revoked
prior
to
possession;
and
o Agreement
in
writing
between
P
licensee
and
D
(ii)
when
the
licence
is
revoked
after
part
licensor
in
July
licensor
agreed
give
permission
to
performance,
i.e.
at
the
time
of
the
affix
posters
and
advertisements
on
walls
of
picture
revocation
the
licensee
was
in
possession
of
house;
not
to
permit
other
person
to
affix
any
the
premises.
Where
there
is
wrongful
advertisement;
take
proceedings
against
any
person
revocation,
the
court
will
grant
equitable
doing
so
D
subsequently
agreed
to
assign
to
trustee
relief.
for
picture
house
coy
all
his
interest,
but
when
coy
was
incorproated,
the
lease
contained
no
reference
Singapore:
to
agreement
of
July
Tan
Hin
Leong
v
Lee
Teck
Im
(SGCA2001)
o issue:
whether
the
contractual
licence
between
the
Case
facts:
HC
held
that
the
mum
did
have
a
contractual
parties
binds
the
3P
coy
held,
it
was
a
contractual
licence
as
opposed
to
a
bare
licence
and
on
the
terms
of
the
licence,
hence
no
effect
against
3P
agreement
did
contract
she
could
remain
living
in
the
house
for
her
life
not
create
an
interest
in
land
but
merely
created
a
affirmed
by
CA
personal
obligation;
licensor
liable
for
damages
Where
the
contract
states
that
the
licence
is
for
a
definite
duration,
courts
will
enforce
the
terms
of
the
contract
so
that
the
licence
is
irrevocable
for
the
Rule
#2:
Constructive
trust
analysis
stated
period;
Where
contract
does
not
expressly
provide
for
a
Historic
position
definite
term,
courts
will
seek
to
construe
the
In
Binions
v
Evans,
Lord
Denning
held
that
a
contractual
contract
so
as
to
imply
terms
for
the
termination
licence
can
give
rise
to
an
equitable
interest
which
binds
from
the
contract
itself
as
well
as
from
circumstances
third-party
purchaser
who
1)
takes
with
notice
the
contractual
of
the
case
licence
and
2)
pays
a
reduced
price
for
property.
Reconciled
with
CAs
holding
in
Neo
Hock
Pheng,
where
court
held
that
contractual
licence
was
General
rule
terminable
at
will,
with
the
principle
that
where
the
This
has
been
rejected
by
the
HL
in
Ashburn
Anstalt
where
the
contractual
licence
has
been
construed
to
be
court
upheld
the
general
principle
that
a
mere
contractual
perpetual,
it
would
presumably
be
void
for
licence
to
occupy
land
was
not
binding
on
purchaser
even
uncertainty
so
licence
becomes
a
bare
licence
and
though
he
had
notice
of
licence.
hence
terminable
at
will
o Criticism:
This
would
go
against
apparent
Exception
intention
of
parties
However,
the
court
also
provided
the
exception
that
a
constructive
trust
would
be
imposed
where
the
conscience
of
the
3P
had
been
so
affected
that
it
would
be
inequitable
to
IMPACT
ON
THIRD
PARTIES
allow
him
to
deny
the
claimant
an
interest.
Constructive
trust
appropriate
when
The
most
effective
manner
in
which
a
licensee
can
bind
a
third
rd
o The
3
party
had
notice
of
the
licence
and
party
successor
in
title
is
to
enter
into
a
novation
agreement
paid
a
lower
price
for
the
land,
OR
with
the
licensor
and
3P.
Although
the
sucessor
in
title
to
the
rd
o The
3
party
expressly
undertook
to
honour
licensor's
land
may
not
be
bound
by
the
contractual
licence,
a
the
contract
or
give
assurance
to
this
effect
3P
who
enters
the
premises
without
the
consent
of
the
(where
the
obligation
of
conscience
has
licensee
may
be
sued
for
trespass.
been
acknowledged
i.e.
in
writing,
in
respect
Evaluation:
where
the
rights
of
the
licensee
are
of
the
relevant
contractual
entitlement)
OR
protected
by
the
courts
against
some
3P,
does
the
o The
contractual
licence
is
not
enforceable
licence
not
resemble
a
property
interest?
rd
against
the
licensor
in
such
cases,
the
3
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partys
agreement
to
take
subject
to
the
words
or
conduct
in
his
mistaken
belief,
causing
the
occupier
rights
of
the
licensee
appears
not
as
an
to
expend
money
on
the
land
or
otherwise
suffering
a
attempt
to
immune
the
licensor
against
detriment.
contractual
liability,
but
rather
as
an
entirely
Inchoate:
Where
the
equity
remains
inchoate,
it
is
rd
willing
assumption
of
a
new
conscientious
unlikely
that
it
binds
the
3
parties
since
even
obligation
towards
the
licensee.
defined
contractual
rights
does
not.
Crystallised:
However,
once
it
is
crystallised,
then
the
The
decision
effectively
shifts
the
focus
from
the
state
of
the
issue
of
binding
effect
on
third
parties
is
resolved.
interest
(proprietary)
to
the
state
of
mind
(inequity)
The
licence
may
have
a
conveyance,
perpetual
(Ashburn).
licence,
easement
or
monetary
compensation.
Rule
#3:
Contract
(Rights
of
Third
Parties)
Act
Right
of
third
party
to
enforce
contractual
term
2.
(1)
Subject
to
the
provisions
of
this
Act,
a
person
who
is
not
a
party
to
a
contract
(referred
to
in
this
Act
as
a
third
party)
may,
in
his
own
right,
enforce
a
term
of
the
contract
if
(a)
the
contract
expressly
provides
that
he
may;
or
(b)
subject
to
subsection
(2),
the
term
purports
to
confer
a
benefit
on
him.
...
(3)
The
third
party
shall
be
expressly
identified
in
the
contract
by
name,
as
a
member
of
a
class
or
as
answering
a
particular
description
but
need
not
be
in
existence
when
the
contract
is
entered
into.
(4)
This
section
shall
not
confer
a
right
on
a
third
party
to
enforce
a
term
of
a
contract
otherwise
than
subject
to
and
in
accordance
with
any
other
relevant
terms
of
the
contract.
ASSIGNABILITY
The
rules
regarding
assignability
rest
entirely
on
contract.
The
benefits
of
a
contract
may
be
assigned,
but
the
burdens
may
not.
4.
LICENCE
COUPLED
WITH
EQUITY
A
licence
to
occupy
land
belonging
to
another
which
is
not
based
on
contract,
and
even
if
not
coupled
with
a
grant
of
an
interest
may
give
the
licensee
rights
beyond
a
bare
licence
because
of
the
circumstances
surrounding
the
giving
of
the
lease.
An
example
would
be
where
the
owner
of
the
land
permitted
the
occupier
to
occupy
the
land
and
either
(1)
acquiescing
the
occupiers
mistaken
belief
that
he
has
the
rights
to
the
land
or
will
be
conferred
rights
to
the
land,
or
(2)
encouraging
him
by
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Proprietary
Estoppel
Knowledge
of
precise
nature
of
detriment
immaterial,
as
long
as
risk
of
representee
acting
in
reliance:
Crabb
v
Arun
GENERAL
Also,
the
representation
can
be
express,
implied
or
acquiescence.
As
long
as
the
party
encouraged
or
acquiesced
Proprietary
estoppel
operates
as
the
creation
of
rights
arising
the
representees
action
it
is
sufficient
(Pascoe
v.
Turner).
from
the
action
of
equity
on
an
individuals
conscience;
it
is
Agents
of
the
fee
simple
owner,
such
as
the
family,
could
give
both
a
sword
and
a
shield.
the
representation
as
well
(Greasley
v.
Cooke).
Sometimes,
a
right
is
created
which
binds
and
benefits
However
if
parties
are
commercial
parties
negotiating
at
arms
successors
in
title
at
common
law;
but
more
frequently,
length,
court
will
not
consider
a
pre-contractual
arrangement
however,
the
operation
is
equitable
i.e.
equity
arising
out
of
as
sufficient
to
form
proprietary
estoppel
because
commercial
acquiescence,
in
which
case
the
revocation
can
be
restrained
contracts
are
expected
to
be
certain
(A-G
of
Hong
Kong
v.
by
injunction.
Humphreys
Estate).
Essentially,
proprietary
estoppel
provides
the
restraint
upon
**Are
parties
commercial
parties?
the
exercise
of
the
strict
legal
entitlements
in
circumstances
of
inequity.
Testamentary
promises
are
inherently
revocable.
But
courts
have
been
willing
to
hold
such
promises
as
valid
if
they
are
consistent
and
unambiguous
intimations
of
testamentary
S1:
RAISING
PE
intent,
coupled
with
substantial
acts
of
reliance
that
make
clear
that
the
assurance
is
more
than
a
mere
statement
of
To
raise
proprietary
estoppel,
3
elements
must
be
present.
present
(revocable
intention)
but
is
tantamount
to
a
promise
There
must
have
been
a
clear
representation
made
by
the
(Giller
v
Holt).
party
who
is
to
be
estopped,
the
claimant
must
have
relied
on
the
representation,
and
there
must
be
a
detriment
(unconscionable
disadvantage)
suffered
by
the
claimants.
RELIANCE
All
these
elements
must
lead
to
answering
the
overarching
Next
is
the
issue
of
whether
the
representee
relied
on
the
enquiry
of
whether
it
is
unconscionable
for
the
representor
to
representation.
Reliance
includes
more
than
just
monetary
insist
on
his
strict
legal
rights
(Hong
Leong
Singapore
Finance,
expenditure
but
also
acts
that
would
result
in
a
change
of
affirmed
in
Chiam
Heng
Luan).
position
for
the
representee,
such
as
performing
services
and
taking
care
of
the
representor,
(Jennings
v
Rice
and
Greasley
v.
Cooke).
REPRESENTATION
If
the
representation
is
calculated
to
influence
a
reasonable
With
regard
to
representation,
while
it
need
not
be
precise,
it
average
person,
there
is
a
rebuttable
presumption
of
reliance
cannot
be
vague
or
unspecific
(Lissimore
v.
Downing).
The
(Coombes
v
Smith)
and
the
burden
is
on
the
representor
to
focus
is
on
the
inevitability
of
the
entitlement
not
its
nature
or
prove
there
was
no
reliance
(Greasely
v.
Cooke).
quantum.
Whether
the
representation
is
sufficiently
clear
depends
on
the
context
and
whether
the
parties
intended
it
Reliance
can
also
be
inferred
if
the
representee
is
acting
in
a
to
be
taken
seriously
(Thorner
v.
Major).
way
prejudicial
to
herself
after
assurances
by
the
representor
(Jennings
v.
Rice).
**Is
it
clear
and
specific
here?
Encouraged
&
acquiesced
-
sufficient:
Pascoe
v
Turner
But
there
will
be
no
reliance
if
the
representee
acted,
though
By
family:
calculated
to
influence
-
sufficient:
Greasley
seemingly
in
accordance
with
the
representation,
was
merely
v
Cooke
for
her
own
wanting
to
have
a
change
of
lifestyle
(Coombes
v.
Can
be
property
or
entire
estate;
but
not
vague
or
Smith).
unspecific:
Lissimore
Sufficient
clarity,
depends
on
context:
Thorner
v
**So
who
has
the
burden
of
proof?
Is
there
reliance
here?
Major
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o the
changes
in
the
defendants
assets
and
circumstances.
DETRIMENT
If
the
representee
has
been
benefitting
from
the
Next,
there
must
be
detriment
suffered
by
the
representee
in
representation
for
quite
a
while,
the
court
could
find
that
the
reliance
of
the
representation.
The
detriment
must
be
distinct
inchoate
equity
has
been
extinguished
(Sledmore
v
Dalby;
and
substantial
(Sledmore
v
Dalby),
one
which
must
shock
the
Chiam
Heng
Luan)
and
the
court
may
give
no
further
reward.
conscience
of
the
court
(Cobbe
v.
Yeoman)
as
granting
of
Sometimes,
equity
can
even
be
satisfied
by
reasonable
proprietary
estoppels
is
a
drastic
measure
giving
a
person
monetary
compensation
if
this
was
fair
in
the
circumstances
proprietary
interest
even
though
he
gave
no
consideration
(Khew
Ah
Bah
-
$15,000
tenancy
coupled
with
equity
>
and
did
not
comply
with
the
required
formalities.
licence
coupled
with
equity).
Extinguishment
of
equity:
**Is
detriment
unconscionable
enough?
Has
the
inchoate
o Sledmore
v
Dalby
(rent-free
over
18
years)
equity
been
extinguished?
o Chiam
Heng
Luan
(low
rent
over
50
years)
Detriment
can
be
quantified
if
it
consists
of
solely
expenses
but
when
it
includes
the
burden
of
care
for
S2:
SATISFACTION
OF
EQUITY
an
old
person
and
having
to
be
subservient
to
her
wishes
and
moods,
it
is
very
difficult
to
quantify
in
Short
of
an
actual
promise,
if
he,
by
his
words
or
conduct,
so
money
terms.
Further,
there
may
be
some
behaves
as
to
lead
another
to
believe
that
he
will
not
insist
on
countervailing
benefits
(i.e.
free
bed
and
board).
In
his
strict
legal
rights
-
knowing
or
intending
that
the
other
will
such
cases
the
court
has
to
exercise
a
wide
act
on
that
belief
-
and
he
does
so
act,
that
again
will
raise
judgemental
discretion.
(Jennings
v
Rice)
equity
in
favour
of
the
other;
and
it
is
for
a
court
of
equity
to
say
in
what
way
the
equity
may
be
satisfied
Expectation
loss
-
Crabb
v
Arun
DC
The
courts
tend
to
grant
expectation
interest
in
(i)
bargain
cases,
where
there
is
a
mutual
understanding
in
reasonably
Once
the
requirements
of
proprietary
estoppel
are
satisfied,
clear
terms
and
(ii)
where
there
is
substantial
detriment
courts
will
then
find
the
representee
to
have
an
inchoate
suffered
by
the
representee.
E.g
working
on
farm
without
pay
equity
which
will
be
satisfied
by
the
court.
While
courts
have
a
for
30
years
(Thorner
v
Major),
devoted
best
years
of
life
to
wide
discretion
for
relief,
courts
will
adopt
a
minimalist
representor
(Gilette
v
Holt)
Note
that
most
likely
wont
grant
if
approach
and
do
what
is
necessary
to
do
justice
to
achieve
a
inequitable
to
promisor
(force
him
to
leave
his
only
home
etc)
just
and
conscionable
result
but
nothing
disproportionate
or
the
need
for
a
clean
breack
(Gillette
v
Holt).
(Crabb
v
Arun)
i.e.
minimum
equity.
There
must
be
an
element
of
proportionality
between
the
expectation,
Reliance
loss
detriment
and
reliance
of
the
claimant
(Jennings
v.
Rice
In
contrast,
the
courts
will
most
likely
grant
reliance
interest
adopted
locally
in
Hong
Leong
Finance).
where
(i)
the
expectation
is
out
of
proportion
to
the
detriment
and
where
(ii)
loss
is
readily
calcuable
in
money
terms.
For
**
What
remedy
will
be
proportionate
here?
example,
monetary
compensation
was
sufficient
in
Jennings
Relevant
considerations
include
(Jennings
v
Rice):
considering
the
representee
had
provided
service
for
4
years
o the
uncertainty
of
the
claimants
(relatively
a
shorter
time
period).
Further,
it
seem
that
our
expectations,
courts
have
adopted
the
reliance
losses
approach
in
Hong
o their
extravagance
when
compared
Leong
Finance
and
LS
Investment.
proportionately
with
the
detriment
he
has
suffered,
It
is
submitted
that
this
is
the
right
approach
as
the
o the
difficulty
in
quantifying
in
financial
terms
proprietary
estoppel
is
rooted
in
equity
(Crabb
v.
Arun)
and
its
the
detriment
suffered,
fundamental
purpose
was
to
prevent
detriment
and
the
o any
misconduct
on
the
part
of
the
claimant,
award
of
compensatory
damages
based
on
reliance
losses
o the
conduct
of
the
defendant,
would
serve
as
the
minimum
equity
required
to
reverse
or
o the
appropriateness
of
the
remedy
given
the
neutralize
the
detriment
suffered
(Commonwealth
of
breakdown
of
the
relationship,
and
Australia).
Furthermore,
reliance
measure
will
solve
the
conundrum
with
contract
since
contractual
relief
seem
a
lot
more
stringent
than
the
requirements
of
proprietary
-
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32
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71
-
-
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-
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2 0 1 2
estoppels
and
still
does
not
grant
full
expectation
relief
(Gardner
in
The
remedial
discretion
in
proprietary
estoppel)
S3:
IMPACT
ON
3P
**
What
remedy
will
be
proportionate
here?
Compare
money
There
is
a
debate
as
to
whether
proprietary
estoppels
bind
and
time
spent.
third
party
purchasers.
As
explained
in
Smith,
How
Proprietary
is
Proprietary
Estoppel?,
this
is
because
Should
there
be
remedial
flexibility?
proprietary
estoppels
results
in
an
inchoate
equity,
and
thus
There
is
contention
on
whether
the
court
should
exercise
in
principle
it
is
incorrect
for
purchaser
to
be
bound
where
remedial
fliexiblity.
On
one
hand,
it
is
argued
that
remedial
there
is
no
identifiable
equitable
right
yet.
Neither
does
it
flexibility
allows
the
court
to
be
able
to
grant
remedies
that
seem
feasible
to
argue
that
a
remedy,
once
given,
has
a
are
proportionate
and
fair
in
individual
case.
On
the
other
retrospective
effect
to
bind
third
parties.
The
problem
is
even
hand,
it
has
been
critisized
to
be
generationg
deplorable
more
acute
when
the
court
merely
orders
a
personal
remedy.
uncertainty
as
it
is
inconsistent
and
generate
wildly
disparate
In
addition
there
is
a
tension
with
contractual
license.
Ashburn
results.
Hence,
there
is
a
need
to
formulate
a
clear
objective
Anstalt
v.
Arnold
was
clear
that
contractual
licenses
simpliciter
for
proprietary
estoppel.
In
other
words,
the
court
should
does
not
bind
third
party
purchasers.
If
the
requirements
of
decide
whether
PE
is
used
to
enforce
the
expectations
of
the
contracts
are
generally
more
demanding
than
for
estoppels,
parties
or
to
prevent
detriment
by
awarding
compensatory
one
would
expect
that
the
estoppels
license
has
a
weaker
case
damages.
for
proprietary
status.
Expectation
interest
should
be
respected
because
estoppel
operates
to
preclude
the
departure
from
Nonetheless
there
are
cases
which
have
held
that
proprietary
assumed
state
of
affairs
and
some
lesser
form
of
estoppels
bind
third
parties,
especially
if
the
third
party
is
a
relief
should
only
be
awarded
if
an
expectation-based
volunteer
or
a
trustee
who
will
then
step
into
the
shoes
of
the
relief
in
inequitably
harsh
(Deane
J,
Verwayens
case)
representor
and
be
bound
by
the
proprietary
estoppels
too
Reliance
interest
should
be
the
objective
because
(Inward
v.
Baker;
Re
Sharpe).
It
will
also
be
binding
on
third
proprietary
estoppel
is
rooted
in
equity
(Crabbe
v
parties
who
have
actual
notice
of
the
agreement
between
the
Arun)
and
its
fundamental
purpose
was
to
prevent
representee
and
representor
(ER
Ives
Investment
v.
High).
detriment
and
the
award
of
compensatory
damanges
based
on
realiance
loss
would
serve
the
minimum
While
Singapores
position
is
currently
unclear,
it
is
likely
that
euiqtry
require
to
neutralize
detriment
suffered
Singapore
will
recognize
that
proprietary
estoppel
is
a
(Commonwealth
of
Australia).
Furthermore,
reliance
sufficient
proprietary
right
enough
to
bind
third
parties.
This
is
measure
will
solve
the
conundrum
with
contracts
because
if
we
look
at
s.
95(2),
LTA,
a
license
that
relates
to
since
contractual
relied
is
a
lot
more
stringent
tehn
enjoyment
or
use
of
the
land
which
is
binding
on
the
licensor
the
requirement
of
PE
but
still
does
not
grant
full
can
constitute
an
interest
in
the
land
and
this
interest
is
expectation
relief.
caveatable
under
s.115.
Thus,
it
would
appear
that
proprietary
estoppel
is
allowed
to
bind
third
parties.
It
is
submitted
that
the
court
should
be
able
to
exercise
remedial
discretion
and
it
is
not
necessary
to
choose
a
clear
objective
Both
reliance
and
expecttaion
loss
have
apart
to
play
depending
on
circumstances,
and
flexibility
is
impt
to
achieve
justice
in
individual
cases
An
overly
rigid
approach
may
hamper
the
ability
of
the
court
to
achieve
equity-
and
ultimately
PE
is
rooted
in
equity
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-
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L a w
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2 0 1 2
CASE
REPRESENTATION,
DETRIMENT
RELIANCE
SATISFACTION
OF
ENCOURAGEMENT
OR
(must
flow
from
EQUITY
ACQUIESCENCE
deserted
repn!)
PHYSCIAL
IMPROVEMENT
TO
LAND
CASES
Encourage
or
acquiesce
interests
in
land
(traditional
cases)
Crabb
v
Arun
Neighbours:
right
of
access
at
Sold
part
of
land.
Sold
land
in
reliance
of
Grant
of
right
of
(1976)
point
B
and
right
of
way
Gates
at
B
removed,
representation.
access
at
B
and
right
along
road.
and
fenced,
landlocked.
of
way
along
road.
Erecting
gates
and
fences
at
No
payment
B.
landlocked
for
long
period.
Taylor
Tenant
and
landlord:
Expended
large
sum
of
Expended
money
in
Renewal
of
option
Fashion
encouraged
belief
in
money
on
premises
reliance
of
granted.
Vindication
(1982)
entitlement
to
renew
option.
(lifts,
and
take
lease
of
encouragement.
Quid
Pro
Quo
adjourning
premises
)
ER
Ives
Neighbours:
acquiesced
to
Burden
of
1
ft
Reliance
on
expectation
Mutual
benefit
and
Investment
right
of
way
foundation
which
of
right
of
way
burden.
(1967)
encroached
on
land.
Right
of
way
granted
Expended
money
in
building
garage
only
accessible
by
right
of
way
Kew
Ah
Bah
Tenant
and
landlord:
rented
Built
attap
house
Built
on
land
not
Reasonable
(1971)
land
and
built
attap
house
on
belonging
to
him
in
compensation
of
it.
reliance
of
expectation
$15,000
and
vacate
in
Policy?
to
stay
as
long
as
rent
is
3
months
Renewal
of
paid
land
use
Commercial
Context
parties
expected
to
enter
into
contract
Hong
Leong
v
Developer
to
contractor:
Resumed
and
Significant
factor
that
Pay
difference
in
value
UOB
Complete
construction
for
continued
work
influenced
decision
to
of
property
and
work
Vindication
(2007)
one
floor
of
development
resume
and
complete
done
conveyance
of
Quid
Pro
Quo
work
property
LS
Owner
to
subsequent
buyer:
Expended
$543K
on
Expended
on
reliance
Reimbursement
of
all
Investment
v
MUIS
was
aware
of
sale
and
redevelopment
of
land
on
acquiescence
expenditure
for
MUIS
knew
of
likely
redevelopment
works
(1998)
redevelopment;
but
stood
by
and
allowed
for
works
to
carry
on
Chiam
Heng
Landlord
to
hotel
tenant:
Paid
property
tax
and
-
Extinguished
over
50
Luan
stay
on
the
premises
for
so
maintained
property
years
of
low
rent
(2007)
long
as
it
operated
a
hotel
business;
encouraged
by
[Ct
found
detriment
Policy?
actions
of
owners
was
part
of
the
deal]
uncertainty
[Ct
found
no
representation]
in
Cobbe
v
Landlord
to
developer:
Expended
sum
for
No
reliance
N.A.
commercial
Yeoman
Oral
agreement
in
principle
planning
permission
knowledge
that
context
(2008)
Cobbe
to
apply
for
planning
[Ct
found
sum
agreement
was
not
permission.
Upon
grant,
land
expended
knowing
that
enforceable
will
be
sold
&
profits
shared
agreement
was
not
[Ct:
no
specific
interest
in
enforceable]
land,
subject
to
negotiation]
AG
v
Landlord
to
developer:
Acted
in
detriment
No
reliance
N.A.
Humphrey
s
Commercial
context;
parties
[Ct
found
it
was
not
knowledge
of
right
to
Estate
entered
into
agreement
in
unconscionable]
resile
(1987)
principle
subject
to
contract
-
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35
of
71
-
-
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T o n g
-
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L a w
-
2 0 1 2
PERSONAL
ASSISTANCE
CASES
Oral
Testamentary
Promises
-
parties
NOT
expected
to
enter
into
contract
Thorner
v
Contextual:
between
2
men
Substantial
work
on
farm
Worked
in
reliance
of
Granted
inheritance
of
Vindication
Major
who
communicated
obliquely
for
30
years
without
pay
assurance
that
he
agricultural
assets
(and
Quid
Pro
Quo
(2009)
but
understood
each
other.
would
inherit
not
whole
estate
Suggestions
to
settle
his
minimum
equity
to
do
estate
duties
and
the
rest
will
justice)
be
his.
Inward
v
Father
to
son:
why
not
out
Built
bungalow
based
on
Expended
effort
and
Trustee
bound
by
sons
Baker
the
bungalow
on
my
land
and
own
labour
and
expense.
money
in
reliance
of
equity
to
stay.
(1965)
make
the
bungalow
a
little
Trustee
sued
for
representation
Allowed
to
stay
as
long
as
bigger
possession.
he
desires.
Gillett
v
Old
man
to
schoolboy
(25
Devoted
best
years
of
his
Relied
on
assurances
Transfer
of
freehold
for
Holt
yrs):
Repeated
assurances
life
working
for
him,
as
he
was
a
man
of
family
home,
$100,000
to
(2001)
that
he
would
succeed
to
his
showed
loyalty
and
his
words
keep
out
of
family
farming
business
and
inherit
devotion
to
his
business,
business
property
including
the
house.
social
life
and
personal
wishes
Jennings
v
Widow
to
bricklayer:
need
Slept
on
her
sofa
every
One
reason
for
Awarded
$200,000
as
Rice
not
be
worried
not
being
paid
night,
looked
after
her
acceding
to
Rs
reasonable
compensation
(2003)
for
errands;
he
would
be
prescriptions,
dress
her,
demands
belief
of
for
services
alright
and
she
would
see
toilet,
meals
and
gardening
benefit
from
her
Reliance
QPQ
to
it;
this
will
all
be
yours
death
unclear;
one
day
disproportionate
Domestic
Context
-
parties
NOT
expected
to
enter
into
contract
Pascoe
v
BF
to
GF:
the
house
and
Expended
money
on
Expended
effort
and
Grant
of
fee
simple
(if
Turner
everything
in
it
was
yours;
repairs,
improvements
and
money
in
reliance
of
licence,
cannot
register
Vindication
(1979)
encouraged
&
acquiesced
to
redecorations
and
furniture
representation
and
might
be
ousted
by
Quid
Pro
Quo
improvement
equitys
darling;
cannot
take
loan
for
future
improvements)
Goh
Swee
Mother
to
son:
transfer
50%
Withheld
from
enforcing
Withheld
on
reliance
Granted
half
share
of
the
Fang
share
to
mother
and
when
legal
right
to
$20,000
for
16
of
promise
to
share
sale
proceeds
(1994)
she
sold
property
he
would
years;
assisted
in
procuring
proceeds
receive
half
share
contractor
for
renovations;
paid
part
of
the
costs
Greasley
v
Family
to
maid:
various
Did
house
chores
without
Presumption
of
Allowed
to
stay
on
in
the
Cooke
representations,
led
her
to
payment;
looked
after
reliance
house
(1980)
believe
she
can
stay
rent
free
mentally
ill
daughter
for
as
long
as
she
like
Re
Sharpe
Nephew
to
aunt:
acquiesced
Expended
$12K
for
Reliance
on
Entitled
to
stay
till
(1980)
and
encouraged
to
spend
in
property,
and
$2K
for
expectation
to
look
repayment
of
contribution
order
to
stay
with
him
and
fittings,
paid
debts
to
after
her
wife
prevent
bankrupt
Sledmore
Mr
S
to
D:
wanted
to
give
the
Carried
out
substantial
Relied
on
assurance
Extinguished
over
18
years
v
Dalby
house
to
D,
encouraged
and
work
of
improvements
on
and
stayed
rent
free
of
rent-free
stay
(1996)
acquiesced
the
house
after
daughters
[Ct
found
Mrs
S
vulnerable
improvements
death
and
in
pressing
need
for
house,
D
was
employed
and
stayed
elsewhere]
Lissimore
BF
to
live-in
GF:
"I
bet
you
No
detriment:
Gave
up
job,
No
reliance
she
N.A.
v
never
thought
all
of
this
turned
down
job
offer,
moved
in
for
the
Downing
would
be
yours
in
a
million
bought
car
with
previous
exciting
opportunity
(2003)
years,
Lady
of
the
Manor;
divorce
settlement
sum,
and
not
for
the
that
he
always
looked
after
devoted
time
to
maintain
representation
his
GF
and
improve
estate.
[Ct
found
insufficient
[Ct
found
she
hated
her
job
assurance
not
related
to
anyway]
any
specific
property]
Coombes
Cohabitees
(married
to
other
No
detriment:
giving
birth;
Presumption
of
N.A.
(but
on
terms:
v
Smith
people):
would
always
leaving
husband,
looking
reliance
provide
until
child
reaches
(1996)
provide
for
her
and
have
a
after
house
and
child,
17)
roof
over
her
head
improving
house
and
not
looking
for
job
Reliance
QPQ
unclear;
disproportionate
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persuaded
the
mortgagor
to
sign
(such
as
co-mortgagor,
INQUIRY
IS
ON
WHETHER
THE
IMPEDIMENTS
ARE
VALID
husband,
lover,
etc).
This
will
occur
if
the
person
exercising
First,
establish
if
it
is
a
clog
(degree
of
impediment
the
undue
influence
can
be
said
to
be
the
agent
of
the
important)
mortgagee
(rare)
or
if
the
mortgagee
has
notice
of
the
undue
o Postpone
date
of
redemption
influence
(Etridge).
o Collateral
agreement
o Option
to
purchase
mortgaged
property
A
mortgage
tainted
by
actual
undue
influence
is,
without
Second,
say
that
in
modern
times
if
term
not
more,
unable
to
enforce
the
mortgage,
whereas
in
cases
of
unconscionable,
courts
wont
intervene
presumed
undue
influence
(in
which
undue
influence
arises
by
o Examples
of
unconscionable?
Making
right
presumption
because
of
relationship
between
parties),
the
of
redemption
illusory
(postpone
date
of
mortgagee
will
not
be
prevented
from
enforcing
the
mortgage
redemption
forver)
unless
the
mortgagae
was
to
the
manifest
disadvantage
of
o Courts
willing
to
re-characterise
collateral
the
claimant
(Etridge).
agreements
as
separate
collateral
bargain
that
is
not
in
mortgage
o Everything
else
seems
to
be
acceptable
if
CONTRACTUAL
RULES
there
is
no
unconscionable
conduct
Third,
o ne
restrictive,
unreasonable
clause
alone
may
It
is
also
clear
that
mortgages,
being
contracts,
are
subject
to
be
acceptable
but
if
there
are
more
than
one,
courts
normal
contractual
rules
governing
credit
relationships
and
may
look
at
them
collectively
and
find
for
oppression,
related
matters.
thus
invaliding
the
terms
Rule
#1:
No
clogs
on
equity
of
redemption
Courts
lean
against
the
placing
of
clogs
or
any
impendiments
on
the
right
of
redemption
(Samuel
v
Jarrah
Timber;
Fairclough).
Such
impedimentary
terms
take
the
form
of
being
[1]
part
of
the
security
or
[2]
stipulations
that
gives
the
mortgagee
additional
(collateral)
advantage.
Rationale
of
the
doctrine
is
to
preserve
the
nature
of
the
security
transaction
once
a
mortgage
always
a
mortgage.
o Hence,
there
should
be
no
clogs
preventing
the
mortgagor
from
exercising
his
right
of
redemption.
Examples
include
grant
of
an
option
to
purchase
mortgaged
property,
postponement
of
the
date
of
redemption
and
collateral
advantages.
Analogies/Distinctions:
Samuel
v.
Jarrah
Timber
(1904)
grant
of
an
option
to
purchase
mortgaged
property
[
X
]
o Stocks
put
up
as
security
for
a
loan,
and
term
allows
the
mortgagee
to
buy
up
the
stocks.
Mortgagor
argued
that
the
term
was
invalid
because
it
discharges
the
equity
of
redemption
(mortgagor
cant
get
back
the
stocks
even
after
repaying
the
loan).
o HELD:
Terms
invalid.
Contract
can
never,
for
any
event
or
condition,
discharge
the
equity
of
redemption
or
else
the
transfer
of
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title
will
be
a
sale
and
not
a
security
Citicorp
Investment
Bank
v.
Wee
Ah
Kee
(1997)
interest.
grant
of
option
to
purchase
/
collateral
adv
[]
Fairclough
v.
Swan
Brewery
(1912)
postponement
o Mortgage
of
stocks
with
agreement
to
of
date
of
redemption
[
X
]
purchase
30%
of
the
stocks
ok
o Leasehold
property
of
7.5
years
mortgaged
o HELD:
In
modern
times,
the
law
on
clogs
is
as
security
for
a
loan.
Term
of
mortgage
was
of
increasingly
less
relevance
in
the
light
of
that
mortgagor
can
only
pay
back
the
loan
the
innovation
of
financial
methods.
When
when
the
least
was
near
expiry
(6
weeks
parties
are
businessmen
capable
of
before
the
end).
protecting
their
own
interest
(especially
o HELD:
Term
invalid,
mortgagor
allowed
to
with
the
benefit
of
a
solicitors
advice),
the
redeem
earlier.
Contractual
postponement
doctrine
of
clogs
on
the
equity
of
rendered
the
equity
of
redemption
illusory
redemption
will
arguably
have
little
or
no
or
valueless
and
court
will
not
allow
the
application.
Courts
in
such
instance
would
unconscionable
term
to
impede
the
right
of
be
most
chary
and
slow
in
applying
the
redemption.
For
all
practical
purposes,
doctrine
to
interfere
with
the
freedom
of
mortgage
was
irredeemable.
contact.
Traditionally,
collateral
advantage
bargained
for
by
o HELD:
If
the
collateral
advantage
is
a
term
in
the
mortgagee
were
rigorously
and
automatically
the
mortgage
agreement,
then
it
would
be
struck
out.
invalidated
because
once
a
mortgage,
always
a
mortgage.
But
if
term
was
a
subject
of
an
independent
bargain,
which
Rule
#2:
Modern
test
is
unconscionability
was
incidental
and
connected
to
the
However,
in
modern
times,
courts
are
willing
to
recognise
mortgage
agreement
but
forming
part
of
a
commercial
realities
(such
as
the
fact
that
parties
are
larger
transaction,
then
it
would
be
valid.
businessmen
capable
of
protecting
their
own
interest,
o Terms
valid,
but
bank
lost
appeal
on
especially
with
benefit
of
solicitors
advice)
and
thus
adopt
a
different
point
more
relaxed
approach.
Test
of
whether
terms
are
valid
is
Knightsbridge
Estates
Ltd
v.
Byrne
(1939)
not
one
of
unreasonableness
but
rather
one
of
postponement
of
date
of
redemption
[]
unconscionability
(Kreglinger,
affirmed
locally
in
Citicorp).
o Postponed
by
40
years
still
ok
(unreasonable
Classic
paradigm
of
unconscionable
bargain:
where
but
not
unconscionable)
advantage
has
been
taken
of
a
young,
inexperienced
o HELD:
Term
valid.
Although
the
term
was
or
ignorant
person
to
introduce
a
term
which
no
held
to
be
unreasonable,
the
test
is
not
sensible
well-advised
person
would
have
accepted
unreasonableness.
Courts
will
only
(Multiservice
Boobinding)
interaction
with
intervene
if
[1]
the
essential
requirements
of
doctrine
of
unconscionability
the
mortgage
was
not
observed,
[2]
when
Parties
should
be
allowed
to
structure
their
loans
as
there
is
oppression
and
unconscionability
or
they
wish,
but
they
cannot
extinguish
the
right
of
[3]
when
term
renders
right
of
redemption
equity
to
redeem.
This
is
because
the
parties
illusory.
intended
for
it
to
be
a
security
once
a
mortgage,
Kreglinger
(1914)
collateral
adv
[ ]
unless
always
a
mortgage
clog/unconscionable/repugnant
Since
the
basis
of
clogs
doctrine
is
to
ensure
fairness
o Collateral
adv
of
purchasing
sheepskins
from
and
prevent
unconscionability,
the
fact
that
mortgagor
for
5
years
ok
commercial
parties
have
freedom
to
contract
and
o HELD:
Term
valid.
There
is
no
rule
in
equity
proper
legal
advice
would
effectively
remove
the
that
precludes
a
mortgagee
from
basis
for
the
clogs
doctrine
in
such
situations.
stipulating
any
collateral
advantage.
Court
The
courts
have
reduced
the
effect
of
the
clogs
will
only
invalidate
terms
if
they
are
[1]
doctrine
by
means
of
(i)
severance,
(ii)
contractual
unfair
or
unconscionable,
[2]
a
clog
on
the
principles
like
restraint
of
trade
and
unconscionability
equity
of
redemption
and
[3]
inconsistent
and
(iii)
unconscionability
of
collateral
mortgages.
with/repugnant
to
the
contractual
or
equitable
right
to
redeem.
Analogies/Distinction:
Multiservice
Bookbinding
Ltd
v.
Marden
(1979)
index-linking
clause
for
loan
[]
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o Index-linking
clause
for
loan
to
be
repaid
in
substance
a
single
and
undivided
contract
or
two
distinct
Swiss
currency
valid
even
though
mortgagor
contracts
(Kreglinger).
ends
up
paying
more
Application:
how
to
ascertain
intentions?
o HELD:
Term
valid.
There
is
no
objection
to
Kreglinger
the
principle
of
index-linking
on
mortgage
o Valid
collateral
bargain:
R
was
businessman
commitment.
Court
approved
of
the
test
in
looking
for
funds,
A
was
investment
bank
Kreglinger
v.
New
Patagonia.
Even
if
the
looking
for
potentially
profitable
joint
term
was
unreasonable,
court
will
only
ventures
invalidate
it
if
it
were
[1]
oppressive
or
o Option
formed
part
of
condition
precedent
unconscionable,
[2]
imposed
in
a
morally
to
any
advance
of
loan
reprehensible
manner
or
[3]
procured
by
unfair
means.
o It
is
not
a
test
of
reasonableness!
Rule
#3:
Restraint
of
Trade
+
Mortgage
situations:
test
of
Fiscal
Consultants
v.
Asia
Commercial
Finance
(1981)
unreasonableness
term
to
impose
full
interest
of
mortgage
upon
breach
[]
The
existence
of
a
mortgage
does
not
exclude
the
doctrine
of
o Mortgage
agreement
was
that
the
right
of
the
restraint
of
trade
(Esso
v
Harpers
Garage).
Thus
a
clause
redemption
can
only
be
exercised
after
15
in
a
mortgage
deed
which
is
regarded
as
one
in
restraint
of
months,
but
should
the
mortgagor
wish
to
trade
must
not
be
unreasonable
in
its
restraint.
If
it
is,
then
redeem
after
12
months,
he
should
give
3
the
tie,
as
well
as
the
clause
postponing
the
exercise
of
the
months
notice.
Mortgagor
sought
to
redeem
contractual
right
to
redeem
for
the
same
period,
will
also
be
within
12
months
breaching
mortgage
term
void.
and
mortgagee
insisted
on
being
paid
the
Esso
v.
Harpers
Garage
(1966)
full
15
months
interest.
o Mortgagor
entered
into
2
clauses:
[1]
tying
o HELD:
Term
valid.
Court
approved
of
the
test
clause
solus
agreement
requiring
the
in
Kreglinger
v.
New
Patagonia.
The
mortgagor
to
sell
only
the
mortgagees
imposition
of
the
full
interest
was
neither
brand
of
petrol
and
[2]
redemption
clause
harsh
nor
unconscionable.
It
merely
postponing
the
date
of
redemption
for
21
represented
what
would
have
been
if
the
years.
mortgage
ran
its
full
course.
Furthermore,
o If
the
purpose
and
nature
of
the
restraint
of
the
2
parties
had
equal
bargaining
power
trade
clauses
are
found
not
to
be
ancillary
and
were
free
to
contract.
to
the
lending
of
money
upon
security,
but
some
quite
independent
purpose,
they
may
Application:
and
should
be
independently
scrutinised
Touchstone
=
unconscionability.
Some
key
facts
that
o Harman
LJ,
after
detailed
examination
of
the
should
put
you
on
notice
terms
of
the
mortgage
decided
that
the
Is
party
a
commercial
party?
mortgage
was
intended
to
bolster
up
the
o VS
young,
inexperienced,
ignorant
solus
agreement
Were
there
solicitors
or
was
legal
advice
given?
Solus
agreement
first
in
July
5,
1962
Was
deal
a
commercial
agreement
conducted
at
Last
for
21
years,
but
can
arms
length?
still
repay
at
an
earlier
date
at
higher
interest
rate
Mortgage
next
in
October
6,
1962
Rule
#2A:
Test
of
severance
and
collateral
agreements
Irredeemable
for
21
years
o HELD:
Existence
of
the
mortgage
does
not
Whether
option
formed
a
term
in
the
loan
(i.e.
clog
on
exclude
the
doctrine
of
the
restraint
of
equity
of
redemption)
or
a
collateral
advantage
depends
on
trade.
Solus
agreement
per
se
is
okay,
but
the
intention
of
the
parties
at
the
time
the
loan
was
granted
along
with
21
years,
it
is
unreasonable
long
(Kreglinger,
affirmed
in
Citicorp).
The
question
is
not
whether
to
protect
the
mortgagees
interest.
Hence,
the
two
contracts
were
made
at
the
same
moment
and
the
individual
clauses
may
be
valid
per
se,
evidenced
by
the
same
instrument,
but
whether
they
were
in
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but
the
cumulative
effects
of
both
make
it
A
lease
for
2
years,
with
an
option
for
add
2
years
does
not
invalid.
flout
the
3
year
rule
(Bank
of
China
v.
Lee
Kee
Poh)
**
Can
the
tie
which
is
bad
be
severed?
Whether
the
invalid
clause
was
the
whole
or
main
3.
MORTGAGE
consideration
for
the
agreement
moving
from
the
plaintiff,
and,
if
it
was,
the
whole
agreement
would
The
equity
of
redemption
may
be
mortgaged.
In
effect
this
be
void
(Alec
Lobb
Ltd
v
Total
Oil)
creates
a
mortgage-on-a-mortgage.
o Bennett
v
Bennett:
invalid
promise
constituted
the
main
consideration,
thus
Technically
no
limit
to
how
many
mortgages
can
be
created;
whole
agreement
voided
usually
depends
on
the
market
value
of
that
equity
of
o Goodinson
v
Goodinson:
ample
redemption.
consideration
to
support
the
agreement,
apart
from
the
void
covenant,
so
other
covenants
in
the
agreement
could
be
enforced
ACTION
FOR
REDEMPTION
/
LTA
MORTGAGORS
OTHER
RIGHTS:
Rule
#3A:
Penalty
clause
for
early
redemption
will
be
struck
1.
Ending
of
mortgage
down
Right
to
discharge
s
77
LTA
Right
to
compel
transfer
of
debt
and
s
19
CLPA
rd
If
the
default
interest
rate
was
way
out
of
proportion
with
the
property
to
3
party
greatest
loss
that
could
conceiveably
be
followed
from
the
Restriction
on
consolidation
of
mortgages
s
21
CLPA
breach,
it
might
be
struck
down
as
a
penalty
(Hong
Leong
v
2.
Procedural
rights:
Tan
18%
interest
from
5.5%).
Power
to
inspect
title
deeds
s
20
CLPA
Right
to
3
months
notice
after
contractual
s
22
CLPA
On
the
other
hand,
it
will
not
be
struck
down
if
1)
there
was
due
date
equal
bargaining
power
between
parties
and
2)
it
was
a
3.
Lease
or
sale
reasonable
pre-estimate
of
cost
to
the
lender.
Right
to
lease
s
23
CLPA
Right
to
judicial
sale
s
30
CLPA
WHAT
CAN
M
DO
WITH
HIS
EQUITY
CLPA
applies
to
mortgages
and
charges
under
LTA
(s69(1)
LTA)
OF
REDEMPTION
S19
COMPEL
TRANSFER
OF
DEBT/PROPERTY
TO
3P
1.
ASSIGNMENT
When
M
is
entitled
to
redeem,
M
can
compel
X
to
Assignment
=
sell
equity
of
redemption
to
3P
rd
transfer
the
prop
to
the
name
of
a
3
P
that
M
chooses,
instead
of
X
re-conveying
prop
back
to
M.
M
may
assign
his
interest
in
effect
someone
else
steps
into
Does
NOT
apply
if
X
is
in
possession.
the
shoe
of
M.
But
M
still
bound
by
the
covenants
of
Policy:
convenience
+
avoid
stamp
duty
mortgage
due
to
Privity
of
contract;
hence
M
usually
will
seek
an
indemnity
from
3P
S20
M
HAS
POWER
TO
INSPECT
TITLE
DEEDS
2.
LEASE
(S23,
CLPA)
During
mortgage,
X
will
hold
on
to
title
deeds.
M
may
at
any
time
demand
to
inspect
the
deeds
If
M
is
in
possession,
he
is
allowed
to
lease
the
prop,
provided
provided
M
pays
for
any
cost
incurred.
lease
does
not
exceed
3
yrs.
S21
RESTRICTION
ON
CONS.
OF
MORTGAGES
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42
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
because
rent
collected
would
be
less
than
Consolidation
=
M
grants
mortgage
of
2
plots
of
land
the
amount
of
interest
owed
per
period
M
to
the
same
L
M
wants
to
redeem
plot
X,
L
wishes
would
then
be
subject
to
open-ended
to
compel
M
to
redeem
Y
as
well.
liability
Law
does
not
allow
M
to
consolidate,
BUT
parties
ECA
found
for
M
and
ordered
sale.
can
contract
out
of
this
in
their
mortgage
agreement
(which
they
often
do).
S22
3
MONTHS
NOTICE
RULE
Mortgages
will
state
the
date
on
which
prop
is
entitled
to
be
redeemed.
If
M
does
not
redeem
on
that
date
but
does
so
after
the
date,
he
must
serve
3
months
notice
on
the
X.
Notice
=/=
approval;
X
cannot
reject
Ms
right
to
redeem.
Parties
can
contract
out
of
this.
Policy:
give
X
time
to
seek
new
investment.
S30(1)
APPLY
FOR
COURT
SALE
OF
MGED.
PROPERTY
ONLY
IF
UNUSUAL
CIRCUMSTANCES
JUSTIFY
Once
prop
falls
to
be
redeemed,
M
can
either
redeem
privately
or
sue
in
a
redemption
action
o Under
the
statute,
M
can
petition
for
sale
the
moment
he/she
is
entitled
to
redeem
(ie.
date
of
redemption
is
over),
even
if
M
has
no
means
to
redeem
(because
M
cannot
raise
the
debt
sum).
Advantage
of
court
action
is
that
M
can
petition
court
to
order
sale
in
lieu
of
redemption.
Proceeds
will
go
toward
paying
off
X
and
rest
will
go
to
M.
Palk
v
Mortgage
Services
Funding
PLC
[ECA]
M
was
entitled
to
redeem
but
could
not
because
he
did
not
have
the
$
-
X
did
not
want
to
sell
because
property
market
was
depressed
M
sought
judicial
sale
even
though
proceeds
would
be
insufficient
to
pay
off
X
ECA
held
that
court
has
unfettered
discretion
to
order
sale
but
it
will
be
exercised
judiciously
wrt
the
circumstances
**UNUSUAL
CIRCUMSTANCES
o No
evidence
that
property
market
would
improve
and
even
if
it
improved,
still
not
enough
to
repay
the
loan
o Ls
suggestion
to
wait
and
rent
out
the
property
in
the
interim
was
not
feasible
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43
of
71
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-
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T o n g
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L a w
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2 0 1 2
o S.
76(1)(b),
LTA:
Mortgagee
can
apply
for
MTGEE
(X)S
RIGHTS
foreclosure
as
though
he
held
the
legal
estate.
As
provided
in
s
69(1)
LTA,
the
rights
set
out
in
Part
IV
of
the
o S.
76(1),
LTA:
The
right
to
foreclosure
applies
CLPA
also
apply
to
mortgages
registered
under
the
LTA
unless
it
is
repugnant
to
the
context.
o S.
76(4),
LTA:
Has
the
same
effect
as
the
Note:
all
remedies
are
cumulative
(except
foreclosure).
common
law
foreclosure.
Therefore,
if
there
is
any
shortfall,
the
mortgagee
can
sue
on
a
Even
after
mortgagee
has
foreclosed
the
property,
personal
covenant
to
recover.
the
foreclosure
can
be
reopened
to
allow
mortgagor
to
redeem.
Rights
independent
of
default
Note:
s.
30(2),
CLPA
protects
the
mortgagor
by
allowing
for
a
judicial
sale
of
the
property
in
lieu
of
1.
Rights
to
demand
payment
foreclosure.
Right
to
3
months
notice
of
s
22(1)
CLPA
payment
after
contract
date
This
is
the
most
severe
remedy
and
is
not
favoured
by
equity,
2.
Rights
to
lease,
insure
and
receivership
hence
mortgagees
generally
avoid
it
becaurt
courts
will
not
Power
to
lease
by
mortgagee
in
s
23(2)
CLPA
easily
allow
M
to
be
foreclosed:
possession
(i) Foreclose
must
be
by
action
in
court
Power
to
insure
against
ss
24(1)(b)
&
28
CLPA*
(ii) Ct
will
give
M
6
mths
to
pay
up
bef
making
mortgaged
property
against
fire
foreclosure
absolute
Power
to
appoint
receiver
ss
24(1)(c)
&
29
CLPA*
(iii) If
M
cannot
pay,
he
can
ask
for
extension
and
Ct
is
3.
Rights
to
sell
or
repossess;
tacking
quite
easily
persuaded
to
grant
this
extension
Right
to
judicial
sale
(court
order
s
30
CLPA*
notwithstanding
objections)
Right
to
consolidate
(if
expressly
s
69(1)
LTA
stipulated)
RIGHTS
INDEPENDENT
OF
MS
DEF
Right
to
proceeds
of
sale
s
74
LTA
Right
to
enter
into
possession
s
75(1)
&
(2)
LTA;
1.
RIGHT
TO
POSSESSION
(after
1
months
notice)
Rimmon
Watch,
Matterhorn
Source
of
the
right:
Right
to
tack
further
advances
s
80
LTA
Legal
mortgage
bec.
L
has
title
to
property
Remedies
on
default
Registered
mortgage
s.
75
LTA
Right
to
power
of
sale
(once
legal
ss
24(1)(a)
&
25
CLPA;
Equitable
mortgage
no
inherent
right
but
can
apply
date
passes;
or
instalment
due)
Payne
v
Cardiff*
to
court
Right
to
foreclose
(court
order)
s
76
LTA
Right
to
sue
on
personal
covenant
Based
on
contractual
X
generally
avoids
possession
1
principles
Xs
right
to
possession
is
independent
of
Ms
default
and
can
be
exercised
any
time.
In
general,
Xs
avoid
possession
because.
equity
imposes
very
onerous
duties
upon
an
L
in
RIGHT
TO
FORECLOSE
possession.
At
common
law,
the
right
of
foreclosure
is
inherent.
He
has
a
duty
to:
Every
X
has
it
because
he
has
title
to
the
estate,
o If
he
does
not
exercise
sale,
he
has
to
rent
regardless
of
whether
it
is
legal
or
equitable.
It
is
the
out
property
in
the
interim
most
drastic
remedy,
not
usually
resorted
to.
o In
renting
out,
he
has
to
obtain
rent
tt
a
The
effect
is
that
the
mortgagors
equity
of
person
acting
reasonably
diligent
wouldve
redemption
is
eroded
and
the
property
is
free
to
the
gotten.
mortgagee.
Under
the
LTA,
the
right
to
foreclosure
is
(not
inherent)
granted
by:
1
But
note
that
for
right
to
possession
under
s.75
LTA,
the
right
is
only
exercisable
when
M
defaults
on
payment.
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Page
44
of
71
-
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N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
As
a
matter
of
practice,
X
does
not
enter
into
Quare:
whether
parties
can
totally
exclude
this
possession
except
as
a
prelude
to
exercising
the
right,
when
words
used
is
vary
or
extend
power
of
sale
on
default.
Procedure
to
exercise
possession
3.
RIGHT
TO
TRANSFER
AND
DEAL
If
right
is
exercised
pursuant
to
s.
75
LTA,
M
must
be
given
one-month
notice
X
can
transfer
his
interest
to
A
and
A
will
be
the
new
If
M
has
rented
property
out,
X
will
serve
notice
to
mortgagee.
tenant
(T),
directing
T
to
pay
rental
to
X
instead
of
Unless
otherwise
stated,
X
can
do
so
without
Ms
M.
consent.
X
is
obliged
to
use
rental
to
discharge
interest
due
A
will
take
land
subject
to
equity
of
redemption
and
and
surplus
must
be
returned
to
M.
any
other
equities
to
which
he
has
notice.
Equitable
mortgagee
No
inherent
right
of
possession
but
may
apply
to
court
to
enter
into
possession.
In
such
cases,
if
X
is
exercising
his
right
to
possession
in
accordance
with
the
terms
of
the
mortgage,
courts
have
no
right
to
refuse
unless
there
is
a
reasonable
prospect
of
M
paying
off
in
full
(as
held
by
SGCA:
Hong
Leong
Finance
v.
Tan
Gin
Huay)
SGCA
did
something
quite
strange
in
this
case:
they
entered
judgment
in
favour
of
X,
but
stayed
the
possession
order
provided
M
continued
to
pay
the
monthly
instalments.
This
discretion
was
simply
a
courts
discretion
to
allow
stay
of
execution
probably
because
Dfs
were
old
ladies
in
this
case.
2.
RIGHT
TO
INSURE
PROPERTY
Applicability
s.24(1)(b)
CLPA
(a) Mortgages
by
deed
i. Legal
2
ii. Equitable
(b) Registered
mortgages
Extent
of
right
X
has
right
to
procure
insurance
against
loss
by
fire
only
Premiums
shall
be
a
charge
on
mortgaged
property
and
will
add
to
the
mortgage
debt
Maximum
amount
insured
(if
not
stated
in
mortgage)
will
not
exceed
2/3
of
amount
need
to
restore
property
in
case
of
total
destruction
Parties,
however,
have
freedom
to
vary
or
extend
this
right
in
the
mortgage
agreement
2
Refers
to
a
formal
equitable
mortgage
ie.
M
initially
only
had
an
equitable
interest.
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45
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
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2 0 1 2
must
be
sold
with
vacant
possession.
In
practice,
therefore,
RIGHTS
UPON
MS
DEFAULT
before
sale,
a
mortgagee
may
wish
to
exercise
its
right
of
1)
Express
covenant
to
repay
sum
owed
possession.
Indeed,
taking
possession
of
the
mortgaged
property
can
also
be
used
as
a
method
of
security
for
recovery
The
first
and
most
straightforward
of
the
mortgagees
of
any
outstanding
interest
on
the
loan,
as
where
a
mortgagee
remedies
against
a
defaulting
mortgagor
arises
because
the
in
possession
sub-lets
or
runs
the
business
over
which
the
mortgage
is
a
contract
of
loan
between
the
parties.
The
mortgage
exists.
mortgagee
has
an
action
on
the
express
covenant
given
by
the
mortgagor
for
repayment
of
the
sum
due
on
a
certain
date
However,
there
is
a
positive
disincentive
for
a
mortgagee
to
plus
interest.
As
soon
as
this
date
has
passed,
the
mortgagee
take
possession,
as
a
mortgagee
in
possession
will
be
called
may
sue
for
the
sum
owed
and
is
normally
entitled
to
a
strictly
to
account
for
any
income
generated
by
its
possession
payment
order
for
the
full
amount.
This
may
be
of
little
(White
v
City
of
London
Brewery).
Mortgagee
will
be
taken
to
practical
use
if
the
mortgagor
has
no
funds
other
than
those
have
received
both
actual
income
and
potential
income
tied
up
in
the
secured
property,
but
it
is
often
an
adjunct
to
hence,
it
may
find
itself
owing
money
to
mortgagor.
This
is
possession
proceedings
against
them.
It
may
however
lead
to
why
most
commercial
mortgagees
desist
from
seeking
the
mortgagor
becoming
bankrupt
and
this,
in
turn,
can
elad
possession.
to
a
sale
of
the
property
at
the
equest
of
the
trustee
in
bankruptcy
(Alliance
&
Leicester
v
Slayford).
This
is
a
useful
Stay
of
execution
weapon
of
last
resort
if
the
mortgagee
is
unable
to
secure
a
In
residential
context
possession
is
still
an
option
for
the
sale
in
their
own
right
(because
of
a
Boland-type
???
mortgagee,
often
as
a
prelude
to
sale.
However,
the
overriding
interest).
mortgagor
is
protected
from
a
overzealous
mortgagor
by
the
court,
which
has
the
discretion
to
allow
for
a
stay
of
execution
(as
it
did
in
Hong
Leong
Finance
v
Tan
Gin
Huay
2)
Power
of
sale
two
old
ladies).
Most
mortgages
will
contain
an
express
power
of
sale,
although
by
virtue
of
s24
of
CLPA,
this
right
is
implied
to
all
4)
Power
to
appoint
receiver
get
interest/manage
assets
mortgages
created
by
deed
as
well
as
registered
mortgages.
This
power
arises
as
soon
as
the
legal
(contractual)
date
for
This
may
be
used
to
recover
interests
owed
rather
than
end
redemption
has
passed
or,
in
the
case
of
instalment
the
mortgage.
Mortgagees
right
to
appoint
a
receiver
is
often
mortgages,
when
one
instalment
is
in
arrears
(Twentieth
expressly
included
in
a
mortgage
but
such
a
power
is
also
Century
Banking
v
Wilkinson).
implied
into
mortgages
created
by
deed
and
mortgages
that
are
registered
by
virtue
of
s24,
CLPA.
However,
under
s25
of
CLPA,
this
power
only
becomes
exercisable
when
either
Greater
advantage
of
the
appointment
of
a
receiver
as
(a) notice
requiring
payment
of
the
mortgage
opposed
to
mortgagee
taking
possession
is
that
the
receiver
is
money
has
been
served
and
the
mortgagor
is
3
deemed
to
be
the
agent
of
the
mortgagor
(Chatsworth
months
in
arrears
since
notice,
Properties),
hence
mortgagee
would
not
be
found
to
be
(b) interest
under
the
mortgage
is
1
month
in
negligent.
arrears
and
unpaid,
or
(c) the
mortgagor
has
breached
some
covenant
in
the
mortgage.
5)
Foreclosure
Since
a
sale
of
mortgaged
property
is
calamitous
for
the
The
remedy
of
foreclosure,
if
successful,
will
extinguish
the
mortgagor,
the
mortgagee
is
subject
to
various
rules
regarding
equity
of
redemption
and
cause
the
trasnfer
of
the
property
the
pre-sale,
sale,
and
proceeds
of
the
mortgaged
property.
to
the
mortgagee,
entirely
free
of
any
rights
of
the
mortgagor.
In
lieu
of
the
powerful
nature
of
foreclosure,
court
has
power
3)
Right
of
possession
under
s30(2),
CLPA
to
order
sale
in
lieu
of
foreclosure
(and
in
exceptional
circumstances
like
Palk
v
Mortgage
Services
Usually,
mortgagee
will
wish
to
sell
the
property
in
order
to
Funding).
realise
its
security,
and
to
do
this
effectively,
the
property
-
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46
of
71
-
-
N i c h o l a s
T o n g
-
P r o p e r t y
L a w
-
2 0 1 2
1.
RIGHT
TO
APPOINT
RECEIVER
2.
EXERCISE
EXTRA-JUDICIAL
POWER
OF
SALE
Applicability
ss.24(1)(c),
29
CLPA
Applicability
ss.24(1)(a),
29
CLPA
Same
as
in
right
to
insure
property
Same
as
in
right
to
insure
property
How
it
is
used
This
is
a
statutory
power
of
sale
available
to
all
X
can
appoint
a
receiver
(R)
to
manage
the
mortgagees
and
charges
where
the
mortgage
is
by
mortgaged
assets
in
the
best
possible
way
to
secure
deed.
repayment.
S.
24,
CLPA:
Right
to
sale
arises
when
the
mortgage
Advantage
of
this
over
exercising
power
of
sale
is
money
is
due,
subject
to
s.
25,
CLPA:
that
receiver
is
agent
of
M
and
hence
X
would
not
be
o For
non-payment
of
mortgage
money,
right
found
to
be
negligent.
to
sell
arises
when
after
a
notice
is
served
After
selling
property,
R
will
pay
for
his
own
but
the
mortgagor
defaulted
in
making
the
commission,
then
the
Xs
debt
and
if
there
is
any
payment
for
3
months.
surplus,
to
M.
For
non-payment
of
interest,
the
interests
is
in
arrears
and
unpaid
for
1
month
(NO
NOTICE
Appointment
of
Receiver
REQUIRED)
X
can
appoint
whoever
he
wishes
as
receiver
and
the
If
there
is
a
breach
of
some
other
provisions
of
the
decision
cannot
be
challenged
unless
it
was
done
in
mortgage
other
than
the
payment
of
interest
or
bad
faith.
mortgage
money.
Downsview
Nominees
v.
First
City
Corp
LTD
S.
24(2),
CLPA:
Exercise
of
the
right
to
sale
can
be
o HELD
that
duty
of
a
Receiver
to
obtain
fair
varied
or
extended
by
express
provisions.
value
was
based
on
equity
and
NOT
tort.
o Probably
cannot
exclude
o If
it
were
otherwise,
then
a
R
will
be
caught
Failure
of
the
mortgagee
to
comply
with
the
between
a
rock
and
hard
place
he
may
be
procedures
as
laid
out
in
s.
24,
25,
CLPA
will
result
in
negligent
if
he
sold
property
too
early
or
too
damages
for
the
mortgagor
under
s.
26(2),
CLPA.
late
There
will
always
be
expert
witnesses
ready
to
testify
with
the
benefit
of
hindsight
R
also
dependent
on
Co.
for
info
thus,
S1
(PRE-SALE):
duty
is
merely
that
of
good
faith.
MS
DUTY
WHEN
EXERCISING
POWER
OF
SALE
The
exercise
of
the
mortgagees
right
to
sell
is
within
his
own
discretion
and
he
is
not
answerable
to
the
mortgagor
as
to
when
he
wants
to
exercise
his
right.
China
&
South
Sea
Bank
Ltd
v.
Tan
Soon
Gin
(1990)
o When
power
of
sale
arose,
shares
fetched
a
decent
price
but
mortgagee
did
not
sell.
By
the
time
mortgagee
decided
to
sell,
shares
were
nearly
valueless.
o HELD:
Bank
not
liable
for
surety.
Mortgagee
owed
no
duty
to
surety
when
exercising
his
power
of
sale.
He
can
decide
in
his
own
interest
when
and
whether
to
sell
even
if
the
prices
fell
(unless
he
was
responsible
for
the
decline,
then
cannot).
Teo
Siew
Har
v.
OCBC
(1999)
o Mortgagor
unable
to
sell
property
and
approached
the
bank
to
exercise
its
power
of
sale.
Bank
did
not
reply
and
demanded
payments
for
the
sum
owed.
-
Page
47
of
71
-
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-
2 0 1 2
o HELD:
Bank
can
claim.
Mortgagee
can
Generally,
M
and
Ls
interest
shd
be
aligned
both
decide
when
and
whether
to
exercise
the
want
the
highest
possible
value
on
prop.
But
in
some
power
of
sale
even
if
price
dropped
and
cases,
X
may
actually
be
the
party
buying
the
prop
there
were
sums
owing
(as
long
as
the
and
hence
there
is
an
interest
to
dispose
the
decline
not
his
fault).
property
cheaply.
Hong
Leong
Finance
Ltd
v.
Tan
Gin
Huay
(1999)
Tse
Kwong
Lam
v
Wong
Chit
Sen
[83,
PC]
X
sold
o Mortgagee
sought
to
possess
property
after
property
by
public
auction
sole
bidder
was
wife
of
the
mortgagor
defaulted
and
also
claimed
X,
bidding
on
behalf
of
Co.
owned
by
X
conflict
of
interests
for
late
payment.
Mortgagor
interest
PC
HELD
that
it
was
permissible
but
burden
sought
to
prevent
mortgagee
from
was
on
X
to
show
it
was
done
in
good
faith
possessing.
o Xs
advertisement
had
insufficient
o HELD:
Allowed
possession
but
court
information
+
wife
knew
the
reserve
price
ordered
the
adjournment
of
the
possession
of
bid
good
faith
not
found.
to
give
the
mortgagor
a
chance
to
pay
it
off
Kian
Choon
Investments
(Pte)
Ltd
v
Societe
Generale
if
there
is
a
reasonable
prospect
of
this
[90,
SGHC]
X
sought
private
buyer
for
sale
X
had
occurring,
hence,
effectively
giving
the
agreement
with
prospective
buyer
that
X
will
be
nd
mortgagors
a
2
chance
to
pay
up
allowed
to
repurchase
several
floors
at
a
fixed
price
instalments
due
and
owing.
HELD
that
X
had
not
proven
good
faith
although
price
was
above
market
valuation,
there
was
clear
It
is
only
in
exceptional
cases
such
as
in
Palk
v.
Mortgage
conflict
and
the
haste
in
which
X
went
into
the
Services
Funding,
where
mortgagor
was
suffering
from
a
transaction
(without
waiting
to
see
if
there
could
be
financial
haemorrhage
that
he
could
apply
to
the
Court
a
higher
price
fetched)
does
not
discharge
the
burden
under
s.
30(2),
CLPA
for
an
order
of
a
judicial
sale
(Tan
Sook
of
proving
good
faith
X
lost
(note
this
was
not
a
Yee).
proper
trial
but
application
for
interlocutory
Palk
has
a
resonance
in
Hong
Leong
Finance
v.
Tan
injunction
to
stay
the
transaction).
Gin
Huay
where
the
Court
of
Appeal
stayed
the
Beckkett
Pte
Ltd
v
Deutsche
Bank
AG
execution
of
its
order
for
possession,
a
gentle
o Example
1
conflict:
An
example
would
be
reminder
of
the
courts
equitable
jurisdiction
to
give
a
sale
involving
a
conflict
of
interest
on
the
relief.
part
of
the
mortgagee,
ie,
where
the
mortgagee
has
sold
the
property
to
his
nominee
or
to
any
family
relation
or
any
S2
(SALE):
company
in
which
he
has
an
interest
or
DUTY
OF
M
IN
SALE
OF
PROPERTY
where
the
sale
is
effected
for
the
purpose
of
preventing
the
mortgagor
from
redeeming
Mortgagee
has
a
duty
to
1)
act
in
good
faith
and
2)
to
take
the
security.
rd
reasonable
steps
to
obtain
true
market
value
(Cuckmere
o Example
2
3
party:
Where
the
purchaser
Brick;
accepted
by
CA
in
Hon
Seen
Ghee
v
DBS)
is
an
independent
third
party,
the
mortgagor
must
prove
that
the
purchaser
is
If
mortgagee
breached
the
duty
of
good
faith,
mtgor
can
set
not
a
bona
fide
purchaser
or
that
the
aside
transaction.
If
mtgee
breached
duty
to
obtain
true
purchaser
has
notice
of
bad
faith
or
market
value,
mtgor
can
only
sue
for
damages
(Beckkett
Pte
impropriety
on
the
part
of
the
mortgagee.
In
Ltd
v
Deutsche
Bank
AG).
such
a
case,
the
court
may
set
aside
the
sale
Note
that
s
26(2),
CLPA
seems
to
suggest
that
mtgor
in
order
to
allow
the
mortgagor
to
redeem
can
only
sue
for
damages
no
matter
what.
the
security.
o Example
3
undervalue:
A
completed
sale
1.
Duty
to
act
in
good
faith
by
a
mortgagee
is
not
liable
to
be
set
aside
merely
because
it
has
taken
place
at
an
Subjective
criterion
of
good
faith:
The
lack
of
good
faith
undervalue,
as
undervalue
is
NOT,
by
itself,
requires
some
dishonesty
or
improper
motive,
some
element
evidence
of
bad
faith
or
impropriety
of
bad
faith
to
be
established.
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48
of
71
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2.
Duty
to
obtain
true
market
value
Some
case
law
argues
that
there
is
no
need
to
get
valuation
(Good
Property
v.
Societe
Generale).
Objective
duty
to
take
reasonable
steps
to
obtain
the
best
But
practically,
if
the
mortgagee
gets
a
reputable
price
reasonably
obtainable.
The
duty
is
not
to
get
the
best
valuation
report,
it
will
be
hard
for
the
mortgagor
to
price
or
true
market
value,
but
best
price
available
at
the
argue
(Ng
Mui
Mui
v.
Indian
Overseas
Bank,
Beckkett
date
of
the
sale.
Pte
Ltd
v.
Deutsche
Bank).
Cuckmere
Brick
[
X
]
But
usually
if
the
market
is
bad,
mortgagee
wont
o Failed
to
adequately
advertise
planning
want
to
get
a
valuation
report.
permission
information
which
has
Ng
Eng
Ghee
v.
Mamata
Kapildev
Dave
(2009)
significant
impact
on
price
of
property
o HELD:
For
en
bloc
sale,
valuation
report
is
Lee
Nyet
Khiong
[
X
]
mandatory.
o Sole
advertisement
did
not
disclose
information
apart
from
location
+
Rationale
for
the
duty
is
because
the
mortgagor
is
vitally
o Advert
made
only
2
weeks
before
closing
of
affected
by
the
result
of
the
sale
but
has
no
role
in
the
tender
process,
and
also
because
the
mortgagee
is
not
an
absolute
Kian
Choon
Investments
v
Societe
Generale
[
X
]
owner
selling
his
own
property.
o Mtgee
sold
property
but
did
not
wait
to
check
results
of
the
sale
of
a
nearby
This
duty,
as
developed
in
Cuckmere
v.
Mutual
Finance
building
even
though
he
knew
sale
was
highlights
Wee
Meng
Sengs
academic
article
that
the
court
is
occurring
and
would
reflect
true
market
adopting
a
more
recent
alternative
approach
in
imposing
a
value
duty
on
the
mortgagee.
st
o Doesnt
this
conflict
with
1
duty
(pre-sale)
Classical
approach:
that
mtgee
can
sell
anytime
you
want?
Neither
mortgagee
nor
receiver
owes
any
general
Only
for
en-blocs
do
you
have
to
wait
for
duty
of
care
to
the
mortgagor.
The
only
duty
of
care
sale
of
nearby
buildings.
Tang
argues
that
it
owed
is
on
a
sale,
in
addition
to
the
mortgagees
duty
could
be
because
valuation
of
this
to
exercise
due
diligence
when
it
is
in
possession
particular
building
was
difficult
hence
has
this
lack
of
accountability
has
caused
widespread
duty
to
wait
discontent.
How
Seen
Ghee
v
The
Development
Bank
of
SG
[
X
]
Recent
alternative
approach:
o Bank
breached
duties
as
mtgee
in
exercise
Acknowledging
the
mortgagees
superior
rights
and
of
its
power
of
sale
when
it
refused
to
simultaneously
protect
the
mortgagors
interests.
sanction
a
sale
at
reduced
price
of
$725,000
[1]
Provided
that
the
mortgagee/receiver
acts
in
unless
an
agreement
was
reached
regarding
good
faith,
the
mortgagee
is
entitled
and
the
receiver
payment
of
shortfall
Hows
interests
is
bound
to
subordinate
any
conflicting
interests
of
sacrificed
without
discernable
gain
to
bank
the
mortgagor
to
what
the
mortgagee/receiver
Beckkett
Pte
Ltd
v
Deutsche
Bank
AG
[
X
]
genuinely
perceives
to
be
the
mortgagees
interests
o Sold
pledged
security
w/o
any
in
securing
payment.
advertisement
or
publicity
[2]
Where
there
is
no
conflict
between
the
interests
o Because
the
shares
to
be
sold
were
unusual
of
the
mortgagee
and
the
mortgagor
(both
wants
to
assets
that
could
not
be
easily
priced
except
settle
the
mortgage
at
the
best
price
etc),
the
by
experts
familiar
with
them,
a
valuation
mortgagee/receiver
is
not
entitled
to
override
or
by
such
experts
were
essential
to
ascertain
ignore
the
interests
of
the
mortgagor
and
come
proper
price
under
a
duty
to
exercise
reasonable
care.
o Although
one
valuation
was
obtained
by
The
resurgence
of
the
classical
approach
and
its
bias
DSM,
it
was
not
obtained
for
the
purpose
towards
the
mortgagee
has
re-emphasised
that
the
of
negotiating
price
with
Bank
but
rather
for
law
has
gone
far
beyond
what
is
necessary
to
protect
justifying
the
sale
price
of
US$46m
in
an
the
mortgagees
legitimate
interests
as
a
secured
application
to
obtain
approval
from
creditor
that
harm
is
caused
to
the
interests
of
the
Indonesian
courts,
thus
was
of
no
probative
mortgagors
gratuitously.
value
Valuation
report
will
be
prudent.
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49
of
71
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S3
POST-SALE
MORTGAGEES
OTHER
RIGHTS
DUTIES
OF
M
REGARDING
PROCEEDS
OF
SALE
ACTION
ON
THE
DEBT
Although
mortgagee
is
not
a
trustee
when
exercising
the
power
of
sale,
he
is
a
trustee
for
the
mortgagor
in
regard
to
X
has
cumulative
remedies
hence
even
after
X
has
the
proceeds
of
the
sale
principle
is
reproduced
at
both
foreclosed
or
sold
the
property,
he
can
sue
for
an
common
law
and
in
the
LTA.
action
on
the
debt
But
if
he
does
so
after
foreclosure,
the
action
on
debt
After
paying
the
expenses
of
the
sale
and
then
himself
for
would
reopen
the
foreclosure
and
court
may
stay
the
sums
due
and
owing
to
him,
he
is
obliged
to
see
that
the
foreclosure
if
M
is
able
to
repay
the
debt.
surplus
is
given
to
the
encumbrancer
ranking
next
after
him.
If
X
is
unable
to
restore
the
property
to
M,
his
action
S.
26(3),
CLPA:
Money
received
by
mortgagee
shall
on
the
debt
will
fail.
be
held
on
trust
to
be
applied
S.
74,
LTA:
After
discharge,
money
shall
be
held
on
trust
to
be
applied
o Mortgagee
is
liable
to
account
for
the
APPLY
FOR
JUDICIAL
SALE
categories
of
people
in
s.
74,
LTA
and
s.
26(3),
CLPA
(caveated
interest
sufficient
to
Available
when:
there
is
an
action
in
Ct
(X
suing
for
come
under
person
who
appears
to
be
foreclosure
or
M
suing
for
redemption)
entitled).
Petition
court
to
order
sale.
Request
may
be
made
by
o Order
of
distribution:
mortgagee,
mortgagor
or
anyone
interested
in
Costs
and
expenses
for
sale
mortgage
$.
Discharge
of
mortgage
Court
will
not
lightly
order
a
sale
against
Xs
wishes
Other
mortgages
in
order
of
priority
if
a
substantial
part
of
the
$
is
outstanding.
Person
entitled
to
mortgage
Only
exception
was
the
Palk
case.
property
Pf
in
Chip
Thye
had
to
become
owner
in
equity
under
contract
of
sale
which
was
1)
specifically
enforceable
and
2)
unconditional
Chip
Thye
v.
Development
Bank
of
Singapore
(1994)
o Chip
entered
to
purchase
agreement
with
mortgagor
but
a
dispute
arose.
The
mortgagee,
Bank
then
exercised
its
powers
of
sale
but
Chip
had
asked
the
mortgagee
not
to
pay
the
money
out
to
the
mortgagor
to
await
the
outcome
of
the
litigation.
Mortgagee
did
not
heed
the
warning
and
paid
it
out
to
the
mortgagor.
o HELD:
Bank
breached
its
duty.
Chips
purchasing
interest
allowed
him
to
lodge
a
caveat
and
hence
mortgagee
had
to
account
for
this
interest
and
pay
the
money
to
him
instead
of
to
the
mortgagor.
In
paying
the
sum,
bank
breached
s.
74,
LTA.
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50
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2 0 1 2
PRIORITY
OF
MORTGAGES
For
registered
land,
general
rule
is
that
priority
is
according
to
date
of
registration.
But
note
two
special
circumstances:
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53
of
71
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blindness
akin
to
fraud
as
there
was
no
dishonesty,
moral
4.
WHOSE
FRAUD?
turpitude,
want
of
probity,
or
intent
on
the
part
of
registered
proprietor
to
disregard
the
third
partys
rights.
Fraud
must
be
brought
home
to
the
registered
proprietor
or
his
agent
(s46(2),
LTA).
Further,
title
of
the
registered
**
Did
he
know
enough
to
arouse
suspicions
of
fraud?
Such
proprietor
cannot
be
defeated
by
fraud
of
his
predecessor;
that
there
is
dishonesty?
he
himself
must
also
be
"tainted"
by
the
fraud
(s157,
LTA).
**
Note:
In
mortgage
cases,
usually
only
1
set
of
lawyers
3A.
UNDUE
INFLUENCE
WILFUL
BLINDNESS
acting
for
both
parties
will
be
used
to
save
costs.
If
lawyer
is
the
one
perpetuating
the
fraud,
it
will
be
attributed
to
the
**
If
factual
matrix
brings
up
undue
influence
type
of
cases
bank.
(e.g.
3-parties
bank
situation),
can
use
the
following
to
discuss
UOF
v
Yew
Siew
Kien
solicitor's
forgery
o Solicitor
kept
Ds
Certificate
of
Title,
forged
THE
LAW
Ds
signature
and
used
it
to
mortgage
the
At
present,
the
only
case
law
relevant
to
the
factual
land
to
UOF.
Solicitor
then
misappropriated
matrix
is
the
case
of
Sivakolunthu.
There,
however,
the
proceeds.
UOF
then
sought
to
enforce
the
courts
appear
to
consider
undue
influence
as
the
mortgage.
part
of
the
inquiry
towards
establishing
wilful
o HELD:
Yes
fraud,
D
not
bound.
Solicitor
acted
blindness
amounting
to
fraud
under
s46(2)(a)
and
for
UOF
and
was
his
agent.
Hence,
the
fraud
held
that
P's
solicitor's
failure
to
take
any
action
to
was
brought
home
and
the
commission
of
eliminate
risk
of
undue
influence
did
not
amount
to
the
fraud
defeats
the
UOFs
title.
wilful
blindness
or
fraud
UOF
v
Victor
Sakayamary
solicitor's
forgery
This
would
appear
to
affirm
the
obiter
in
Bebe
where
o Ds
were
beneficiaries
of
an
estate
and
were
the
court
consider
that
in
personam
exceptions
do
tricked
into
signing
a
mortgage
agreement
not
exist
in
Singapore
and
rationalised
past
cases
by
the
solicitors
clerk.
UOF
tried
to
enforce
which
have
held
so
as
falling
under
the
46(2)
the
mortgage.
exceptions
o HELD:
Yes
fraud,
D
not
bound.
UOF
had
committed
fraud
because
the
solicitors
were
THE
APPLICATION
his
agent
and
the
fraud
tainted
UOF
as
well.
Following
Siva's
rule
that
the
failure
to
take
any
This
aspect
of
the
judgment
is
action
to
eliminate
the
risk
of
undue
influence
did
uncontroversial.
not
amount
to
wilful
blindness
or
fraud
for
the
purposes
of
s
46(2)(a)
LTA,
applying
it
to
this
case,
the
bank's
failure
to
eliminate
the
risk
of
undue
EVALUATION
influence
by,
for
example,
asking
Orked
to
seek
independent
advice,
would
not
be
wilful
blindness
Criticisms
on
Bebe
limit
fraud,
expand
trust:
amounting
to
fraud.
Thus,
bank
would
retain
Crown,
Back
to
Basics:
Indefeasibility
of
Title
under
the
indefeasibility
of
title.
Torrens
System:
It
is
submitted
that
immediate
indefeasibility
o If
there
was
moral
turpitude
or
dishonesty,
is
the
general
rule
and
since
fraud
lies
with
the
exception,
it
then
fraud.
does
not
have
to
be
constricted
to
the
general
principle
of
If
there
is
fraud,
the
bank
maanager
is
considered
the
immediate
indefeasibility
such
that
it
only
applies
at
or
before
agent
of
the
bank
as
the
registered
proprietor
and
registration.
thus
the
fraud
is
brought
home
to
the
bank.
It
is
submitted
that
Bebes
position
on
fraud
having
to
exist
Barry
Crown's
analysis:
vitiating
factors
=
equitable
fraud
before
and
at
the
time
the
contract
is
entered
into
or
at
the
It
is
possible
to
interpret
these
vitiating
factors,
which
involves
time
of
registration
of
the
instrument
is
correct.
However,
it
is
some
form
of
dishonesty
or
moral
turpitude
to
induce/compel
wrong
to
say
that
Betsy
is
on
all
fours
with
Loke
Yew
and
can
parties
into
contracting
in
order
to
gain
some
benefit
from
the
be
re-interpreted
as
fraud.
Loke
Yew
should
come
under
fraud
contractual
arrangement.
This
would
reduce
the
backdoor
to
exception
since
PSR
had
no
intent
to
recognise
Loke
Yews
in
personam
claims.
interest
from
the
start
(unlike
in
Betsy).
Betsy
can
be
properly
explained
if
the
court
adopts
and
expands
the
obiter
dicta
in
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Loo
Chay
Sit
to
allow
for
constructive
trusts
under
s46(2)(c)
Seems
at
odd
with
s.
46(2)(b),
LTA
because
the
provision
says
exception.
This
would
effectively
restrict
the
fraud
exception
to
enforce.
to
actual
fraud
at
time
of
registration,
while
expanding
the
trust
exception
to
allow
constructive
trust,
which
Betsy
will
But,
dicta
in
UOB
v.
Bebe
characterised
Oh
Hiam
as
falling
come
under.
within
s46(2)(b)
by
rationalising
that
parties
were
seeking
"to
enforce"
their
contractual
right
of
vitiation
even
though
what
they
actually
did
intend
was
to
void
the
contract
for
common
mistake
46(2)(b)
CONTRACTUAL
RIGHTS
Seems
to
be
distorting
legal
mechanisms
to
justify
a
S.
46(2)(b),
LTA
allows
a
claim
of
contractual
right
against
the
result
based
on
fairness
registered
proprietor.
Tang:
why
not
just
acknowledge
the
role
of
in
personam
actions
in
LTA?
UOB
v.
Bebe
(2006)
HELD:
Dicta
by
the
CJ
Chan
stated
that
s.
46(2)(b)
would
capture
most,
if
not
all
of
the
in
personam/personal
equity
actions
through
the
46(2)(c)
TRUST
OBLIGATIONS
breach
of
a
contractual
term
by
the
registered
S.
46(2)(c),
LTA
allows
the
beneficiary
of
a
trust
to
enforce
proprietor.
rights
against
the
trustee
registered
proprietor.
Court
rationalised
that
Oh
Hiam
woud
fall
under
s.
46(2)(b)
because
it
would
be
one
party
enforcing
his
In
Loo
Chay
Sit
(2009),
the
Court
of
Appeal
suggested
in
obiter
contractual
rights
against
the
registered
proprietor
dicta
that
resulting
trust
can
be
recognised
under
s46(2)(c)
to
correct
a
common
mistake.
LTA,
in
contrary
to
Bebes
obiter
dicta
that
the
trust
exception
Court
also
rationalised
Mercantile
v.
Gosper
and
is
limited
to
expressed
trust.
reasoned
that
the
mortgagee
had
breached
an
implied
term
of
the
security
agreement
that
it
would
It
is
submitted
that
Loo
Chay
Sit's
suggestion
of
allowing
for
not
misuse
the
Certificate
of
Title
in
its
custody.
resulting
trust
to
fall
under
the
s46(2)(c)
exception
is
the
Court
further
rationalised
that
there
could
also
be
an
better
position
to
take,
and
that
it
should
be
expanded
to
indirect
claim
by
a
party
not
privy
to
the
contract,
allow
for
constructive
trusts
as
well.
such
as
in
Betsy,
Bahr
v.
Nicolay
and
Loke
Yew
through
qualification
under
the
CR3PA
(see
below)
By
allowing
constructive
trust
under
s46(2)(c)
serves
to
reduce
personal
equities.
It
does
not
defeat
the
policy
objectives
of
the
LTA
to
reduce
uncertainty
and
to
give
finality
in
land
VIATING
FACTORS
dealings
(Bebe),
because
it
is
possible
to
adopt
a
principled
approach
towards
the
imposition
of
constructive
trust.
A
Vitiating
factors
i.e.
duress,
undue
influence
can
be
brought
in
distinction
can
be
drawn
between
notice
of
a
wrongdoing
under
s
46(2)(b)
as
per
Bebes
rationalization
of
Oh
Hiam,
a
which
vitiates
the
transfer
of
property
like
undue
influence
case
on
common
mistake.
or
duress
from
a
notice
of
a
unregistered
interest.
Allowing
people
to
turn
a
blind
eye
when
they
have
knowledge
of
such
wrongdoing
would
encourage
irresponsible
behaviour
by
purchasers
and
mortgagees
(esp.
institutional
lenders).
CRTPA
AND
S46(2)(B)
By
narrowing
fraud
and
expanding
trust
to
include
In
tripartite
situations
where
legal
owner
sells
property
to
constructive
trust,
it
is
possible
to
include
these
personam
purchaser
at
a
lower
price
and/or
with
the
assurance
that
claims
under
the
exception.
third
party
(leasee/beneficiary)'s
interest
will
be
taken
care
of,
can
perhaps
use
the
argument
that
CRTPA
applies
since
Academic
opinion
contract
was
for
the
benefit
of
third
party.
And
because
Tang
Hang
Wu,
Beyond
the
Torrens
Mirror
CRTPA
applies,
beneficiary
could
sue
under
s46(2)(b)
UOB
v.
Bebes
approach
is
too
narrow
limits
the
exception
to
indefeasibility.
laws
capacity
to
fashion
appropriate
remedial
responses.
It
cannot
deal
with
many
situations
(e.g.
bribe
in
the
WHAT
IF
PARTIES
WANT
TO
RESCIND
THE
CONTRACT?
AG
HK
v.
Reid
(1994)
where
it
was
held
that
the
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prosecutor
held
the
land
on
trust
for
the
HK
approved
by
the
court
or
otherwise
proved
to
the
satisfaction
government
even
after
the
land
is
registered.
Using
of
the
Registrar
to
be
within
the
persons
capacity.
UOB
v.
Bebes
construction,
land
will
remain
in
the
UOB
v
Bebe
(2006)
hands
of
the
wrong
doer).
o HELD:
A
purchaser
who
gets
his
title
from
a
o Squeezing
in
personam
exceptions
into
s.
person
with
legal
disability
(e.g.
in
UOF
Ltd
v.
46(2),
LTA
will
strain
the
statutory
provision.
Victor
Sakayamary
&
Ors,
where
mortgage
of
the
estate
of
the
deceased
person
fails
to
satisfy
s.
35(2),
CLPA
(had
not
obtained
court
sanction
for
the
sale
of
property)
will
be
46(2)(D)
LAND
ACQUIRED
FROM
deemed
to
know
of
the
legal
disability
and
LEGAL
DISABILITY
cannot
disclaim
knowledge
(ignorance
of
the
S.
46(2)(d),
LTA:
1)
Infant
or
2)
persons
suffering
from
legal
law
is
no
excuse).
disability
can
recover
proprietary
interests
from
the
registered
proprietor
3)
if
he
knew
of
such
legal
disability
at
the
time
of
the
dealing.
46(2)(e)
ULTRA
VIRES
Possibly
expand
definiton
of
legal
disability
to
include
doctrine
S.
46(2)(e),
LTA:
Statutory
recognition
of
the
right
to
recover
of
undue
influence
or
factors
affecting
the
aggrieved
partys
land
from
a
registered
proprietor
if
land
was
acquired
through
ability
to
make
legal
decisions.
Under
actual
undue
influence
unlawful
exercise
of
statutory
power.
extension
of
Sakayamary
case
s
35(2)
of
the
CLPA
has
the
effect
of
imposing
a
legal
disability
APPLY
S160
COURT'S
POWER
TO
on
an
administrator
six
years
after
the
death
of
the
deceased
with
respect
to
the
property
of
the
estate.
RECTIFY
The
administrator
is
under
a
legal
disability
in
terms
See
above
of
s
46(2)(d)
of
the
LTA
because
he
has
no
power
to
dispose
of
the
property
of
the
estate
without
the
sanction
of
the
court.
Furthermore,
because
the
legal
VOLUNTEERS
S46(3)
disability
of
the
administrator
arises
by
operation
of
law,
a
purchaser
who
gets
his
title
from
such
an
S.
46(3),
LTA:
Only
a
proprietor
who
is
a
purchaser
can
avail
administrator
may
not
be
permitted
to
disclaim
himself
to
the
section
and
claim
a
better
title
than
was
held
by
knowledge
of
the
existence
of
his
legal
disability,
as
his
immediate
predecessors.
ignorance
of
the
law
is
not
an
excuse.
Reinforced
by
ss.
154(1)(d),
157,
LTA.
S.
39,
LTA:
Furthermore,
Registrar
will
not
register
the
instrument
executed
by
a
person
under
disability
unless
it
is
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IN
PERSONAM
EXCEPTIONS
Pre-
Frazer
v
Walker
Oh
Hiam
(1980)
Gosper
(1991)
Goh
Swee
Fang
Betsy
Lim
(2002)
Bebe
(1967)
Parties
contracted
Mrs
G
mortgage
(1994)
Ho
trsf
land
to
Lim
for
Mrs
F
forged
and
for
sale
of
rubber
land
to
MM
Parties
were
joint
building
of
hses.
Lim
mortgage
property.
land
but
agmt
(registered).
Mr
G,
tenants
son
trsf
mortgaged
land
(for
her
She
defaulted
and
included
vendors
w/o
K
of
Mrs
G,
property
to
cos
benefit).
Mortgee
mortgee
sold
hse.
Neither
parties
forged
and
mother
on
had
K
of
Ho-Lim
agmt
property
to
W,
who
intended
for
sale
of
increased
loan
promise
of
sales
and
agreed
to
be
bound
had
no
K
of
the
hse.
Land
was
amount.
MM
proceeds.
Mother
by
Hos
equitable
forgery.
W
sued.
registered.
enforced
against
sold
land
at
interest
but
later
Obiter:
indefeasibility
Held:
common
Mrs
G.
undervalue.
repudiated.
does
not
prevent
mistake
Torrens
Held:
MM
assisted
Held:
purchaser
Held:
Lim
liable
for
claim
in
personam,
in
not
deprive
in
in
Mr
Gs
forgery
by
knew
breach
of
trust
&
law
or
equity
personam
claim
in
producing
arrangement
and
contract.
Mortgee
not
equity
on
grounds
of
Certificate
of
Title
paid
mkt
value
liable
for
fraud
no
conscience.
personal
equity
bound
by
fraud,
personal
Rectification
arose
in
favour
of
constructive
trust.
dishonesty
or
moral
allowed
Mrs
G.
turpitude;
but
personam
Criticised:
MM
claim
constructive
under
no
obligation
trust.
to
Mrs
G
[?]
Bebes
obiter:
can
be
reinterpreted
as
fraud
[?]
Post- Bebe
(2006)
[X]
Sivalolunthu
(2008)
Loo
Chay
Sit
(2009)
Bebe
Bebe
mortgage
[X]
[X]
property
to
UOB
for
Df
obtained
land
by
LCS
alleged
to
have
daughters
biz.
Bebes
defrauding
other
paid
for
house
held
lawyer
witnessed
Dfs.
Df
mortgaged
by
LCL
on
resulting
signing
and
delivered
land
to
Pf.
trust.
original
CT.
UOBs
Held:
failure
to
Held:
on
evidence,
clerk
knew
OCT
eliminate
risk
of
failed
to
establish
cancelled.
undue
influence
not
resulting
trust.
Held:
fail
to
inquire
wilful
blindness
or
Obiter:
resulting
not
wilful
blindness
fraud.
Discrepancies
trust
recognised
akin
to
fraud
no
not
dishonest
or
under
46(2)(c).
dishonesty,
moral
fraud.
No
personal
turpitude
or
want
of
equity
for
undue
probity
or
intent
to
influence.
disregard
Bebes
rights.
At
most
clerk
was
negligent.
It
has
been
said
that
the
principle
of
indefeasibility
does
not
**
Find
an
analogous
case
in
personal
equity
and
say
client
preclude
the
right
to
bring
against
a
registered
proprietor
a
may
succeed
(see
above)
claim
in
personam,
founded
in
law
or
in
equity
(Lord
Wilberforce
in
Frazer
v
Walker).
This
position
has
been
However,
it
is
important
to
note
that
our
courts,
in
UOB
v.
supported
by
a
litany
of
cases
such
as
the
majority
in
Bahr
v
Bebe,
cautioned
against
the
undue
reliance
on
the
concept
of
Nicolay
which
characterized
the
fraud
as
constructive
trust,
unconscionability
to
erode
the
principle
of
indefeasibility
which
was
followed
locally
in
Betsey.
Indeed,
in
the
present
under
the
LTA.
The
court
held
that
while
the
LTA
might
not
be
case...
exhaustive
of
all
claims
that
could
be
made
against
a
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registered
proprietor
(per
Baalman),
having
regard
to
the
Further,
no
compensation
for
any
loss
occasioned
by
policy
objectives
of
the
LTA
to
reduce
uncertainty
and
to
give
a
breach
of
trust
in
a
trust
situation
(s.
151(5)).
finality
in
land
dealings,
our
courts
had
to
be
slow
to
engraft
onto
the
LTA
personal
equities
that
were
not
referable
directly
UOB
v
Bebe
or
indirectly
to
the
exceptions
in
s
46(2)
of
the
LTA.
The
court
Court
hinted
that
Mdm
Bebe
had
a
claim
against
the
even
went
further
to
show
how
the
litany
of
cases,
which
Registrar
in
the
assurance
fund.
allowed
personal
equity,
falls
within
the
exceptions
in
s.
46(2).
Chan
CJ:
o if
Registrar
has
no
defence
to
any
such
Furthermore,
a
strict
approach
to
the
encroachment
of
claim,
he
will
do
what
is
right
by
the
personal
equities
under
the
LTA
might
not
necessarily
be
respondent
and
required
of
him
by
law.
unfair
to
persons
holding
unregistered
interests
in
registered
Both
requirements
met:
land
as
such
persons
were
free
to
protect
their
interests
by
o Registrar
registered
UOBs
mtgage
despite
it
lodging
caveats
against
the
registered
title.
Therefore,
while
being
based
on
a
cancelled
COT
implied
exception
to
indefeasibility
is
technically
possible
it
o Mdm
Bebes
claim
barred
for
indefeasibility.
should
exhibit
at
least
the
same
degree
of
moral
turpitude
as
fraud
and
be
referable
to
the
express
provisions.
For
example,
our
present
case
could
arguably
fall
under...
**Resolve
present
case
into
the
s46
exceptions,
and
say
therefore
unlikely
to
succeed
in
in
personam
exception.
ASSURANCE
FUND
Rationale
A
concomitant,
though
perhaps
not
a
necessary
one
to
the
principle
of
indefeasibility
of
title
is
that
the
State
should
compensate
a
person
who
has
been
deprived
of
his
interest
in
land
through
the
operation
of
the
system.
Requirement
S.
151(1)
LTA:
Registrar
to
set
aside
a
proportion
of
fees
collected
for
the
Assurance
Fund.
Claimant
must
prove
that
he
has
been
deprived
of
his
land,
or
sustained
loss
or
damage
through
any
omission,
mistake,
or
misfeasance
of
the
Registrar,
or
any
member
of
his
staff,
whether
in
bringing
the
land
under
the
LTA
or
in
registering
any
instrument.
Claimant
also
then
barred
from
recovering
his
interest
under
the
provisions
of
the
Act
in
other
ways.
Contributory
negligence
Court
can
take
into
account
contributory
negligence
on
the
part
of
the
Pf
(s.
155(2)).
In
Bebe,
if
claim
was
made
against
Assurance
Fund,
issue
of
contributory
negligence.
may
arise
because
Mdm
Bebe
left
her
COT
arnd
for
daughter
to
misappropriate.
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ISSUE
1:
"INTEREST
IN
LAND"
To
establish
that
purchaser
has
equitable
lien
(UMBC
v
Goodhope
Realty):
Where
a
purchaser
has
1)
paid
the
contractually
S115(1)
any
person
claiming
an
interest
in
land
agreed
purchase
price
of
the
property
to
be
purchased
and
the
2)
contract
goes
off
through
no
Lodging
a
caveat
of
itself
does
not
confer
an
interest.
The
fault
of
the
purchaser,
he
has
an
equitable
lien
on
caveator
must
have
a
pre-existing
interest
of
land.
However,
the
property:
Rose
v
Watson
,
Whitbread
v
Watt
the
caveator
need
not
prove
his
interest
at
the
point
of
The
purchaser
has
a
clear
right
to
a
lien
upon
the
lodgement.
Neither
does
the
Registrar
have
a
duty
to
vendor's
interest
for
the
money
expended
by
him
on
investigate
or
probe.
Hence
the
big
qn
in
every
case
is
the
property.
There
is
an
implied
contract
in
every
whether
As
interest
is
or
is
not
an
interest
in
land.
case
between
vendor
and
purchaser
that
the
purchaser
shall
have
a
lien
on
the
property
to
the
Most
tricky
when
dealing
with
contracts
for
sale
and
purchase
extent
of
the
purchase
money
he
has
paid,
and
here
of
land.
Because
it
is
done
in
stages,
it
can
be
blur
whether
X
there
is
an
express
stipulation
that
the
money
has
or
has
not
an
equitable
interest
in
the
land.
The
traditional
expended
shall
be
repaid:
Middleton
v
Magnay.
test
is
whether
there
is
a
specifically
enforceable
contract.
But
the
basis
for
the
declaration
of
the
lien
for
the
sum
was
the
expenditure
thereof
on
the
premises;
if
the
amount
was
expended
or
paid
for
other
purposes
RESCISSION
OF
CONTRACT
unconnected
with
improvement
of
the
premises
no
lien
could
possibly
arise.
Where
a
claimant
has
rescinded
the
contract
through
his
actions,
and
it
is
clear
that
he
is
no
longer
claiming
specific
Application
(UMBC
v
Good
Hope
Realty)
performance,
he
would
no
longer
be
said
to
have
any
interest
The
payment
of
the
security
deposit
was
entirely
in
the
land
capable
of
being
registered
(Virginia
Developments
different
from
that
of
a
payment
of
purchase
money
v
Behem
Investment).
by
a
purchaser
for
the
land
agreed
to
be
purchased.
No
part
of
the
security
deposit
had
been
paid
by
the
Application
tenant
for
or
in
respect
of
any
part
of
the
building.
First,
find
proof
of
intention
that
he
is
no
longer
Even
if
any
equitable
lien
could
arise,
it
arose
at
the
interested
in
contract
time
when
the
security
deposit
was
paid
to
the
first
o "By
its
notice
of
rescission,
demand
for
defendant
(owner).
An
equitable
interest
was
not
repayment
of
purchase
money,
pleadings
registrable
under
the
LTA.
While
a
caveat
may
be
and
case
made
at
the
hearing,
has
been
one
lodged
to
protect
the
interest,
no
caveat
was
lodged
of
denial
of
the
continuing
existence
of
the
by
the
plaintiffs
(tenants)
at
that
time
or
contract
on
which
it
purported
to
found
its
subsequently
prior
to
the
registration
of
the
caveat"
=
no
more
specific
performance
mortgage
in
favour
of
the
second
defendants
Second,
if
such
proof
is
found,
other
party
can
sue
for
(mortgagee)
wrongful
caveat
o In
Behem
Investment,
it
was
held
that
Behems
caveat
should
be
removed,
and
the
Behem
should
pay
Virginia
R/P
OR
MORTGAGOR'S
RIGHTS
compensation
for
any
loss
or
damage
on
A
proprietor
is
entitled
to
lodge
a
caveat
against
his
own
account
of
its
wrongful
retention
of
the
land
(Societe
Generale
v
Good
Property
Land
Development
caveat
in
the
Registry
of
Land
Titles.
Pte
Ltd;
Barry
v
Heider
(HCA)).
A
registered
proprietor
is
entitled
to
lodge
a
caveat
against
his
REPAYMENT
OF
DEPOSIT
own
land.
Even
if
he
is
a
mortgagor,
he
still
has
an
equity
of
redemption
which
entitles
him
to
lodge
a
caveat
to
prevent
Equitable
lien
is
a
caveatable
interest
(as
opposed
to
right
to
that
equity
from
being
improperly
destroyed
by
any
act
of
security
deposit
which
is
a
personal
right
(Hua
Chiao)
and
is
the
mortgagee.
thus
not
caveatable).
Application
(SG
v
Good
Property)
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In
the
present
case,
the
plaintiffs
were
the
lawful
Application
assignees
of
the
defendants
right,
title
and
interest
Novel
Ho
(SGHC2006)
in
the
property,
subject
to
the
defendants
equity
of
o Caveat
not
removed.
An
option
to
purchase
redemption.
The
defendants
no
longer
had
an
land
is
caveatable
and
there
is
little
unfettered
right
to
deal
with
the
property
except
in
difference
between
option
and
right
of
first
accordance
with
the
terms
of
the
security
or
to
refusal.
Even
if
the
right
of
first
refusal
is
not,
redeem
the
mortgage.
Upon
any
default
by
the
at
first
blush,
clearly
specifically
enforceable,
defendants,
the
plaintiffs
as
mortgagees
would
have
an
injunction
can
be
sought
and
then
a
a
superior
right
to
that
of
the
defendants
as
caveat
can
be
lodged
under
s.
115(3)(b),
LTA.
mortgagor
to
deal
with
the
property.
Ong
Chay
Tong
(SGCA2009)
The
defendants
were
in
default.
They
lodged
their
o HELD:
Caveat
removed.
Court
approved
of
caveat
with
a
view
to
preventing
the
plaintiff
from
Ho
Seek
Yeung
Novel
v.
J
&
V
Development,
exercising
their
power
of
sale
which
they
alleged
and
held
that
a
right
of
first
refusal
is
a
had
not
arisen
in
spite
of
the
default.
In
these
caveatable
interest
under
s.
115,
LTA.
circumstances,
the
defendant
must
satisfy
the
court
However,
on
the
facts,
P
gave
up
its
right
to
that
the
power
of
sale
has
not
arisen
and
that
repurchase
the
property
and
no
longer
had
therefore
they
were
justified
in
lodging
their
caveat.
a
caveatable
interest
when
he
caveated
The
defendants
have
not
established
a
valid
ground
later
for
lodging
or
maintaining
a
caveat
against
the
plaintiffs
though
they
may
have
an
interest
in
the
property
for
the
purpose
of
lodging
a
caveat.
Therefore,
the
caveat
ought
to
be
removed.
MATRIMONIAL
ASSETS
A
wife
technically
does
not
have
an
interest
over
the
husbands
property.
The
division
is
pursuant
to
a
statutory
power
conferred
on
the
courts.
Until
this
power
is
exercised,
it
OPTION
TO
PURCHASE
is
inaccurate
to
say
that
the
spouse
has
interest
in
the
A
person
who
has
an
option
to
purchase
the
land
is
said
to
property
held
by
the
other
spouse
(inchoate
expectation
of
have
an
equitable
interest
in
land
and
may
lodge
a
caveat
wife
not
caveatable)
(Lim
Kaling).
(Eng
Bee
Properties
v
Lee
Foong
Tatt;
Ong
Chay
Tong).
This
is
based
on
the
availability
of
specific
performance
of
the
However,
a
caveat
is
maintainable
if
she
option
contract
that
leads
to
the
contract
for
sale
and
Contributed
to
the
purchase
price
(resulting
trust)
purchase.
Satisfied
the
elements
of
common
intention
constructive
(constructive
trust)
Application
Obtained
an
injunction
or
decree
nisi
for
the
In
Lee
Foong
Tatt,
option
to
purchase
lapsed
and
property:
s115(3)(b)
criticisms:
this
requirement
of
was
not
exercised,
and
that
Lee's
allegations
that
Eng
injunction
before
caveat
requires
more
procedures
Bee
delayed
his
option
to
purchase
by
requesting
for
(multiplicity
of
proceedings)
bribes
were
unfounded,
hence
no
equitable
interest;
caveat
cannot
be
lodged.
Criticisms:
A
wife
should
be
allowed
to
lodge
a
caveat
per
se,
even
if
there
was
no
equitable
interest
or
injunction.
She
would
be
liable
for
wrongful
lodgement
if
it
was
vexatious.
Otherwise,
RIGHT
OF
PRE-EMPTION
detriment
to
wife
if
husband
dissipates
matrimonial
assets.
Right
of
first
refusal
is
a
caveatable
interest
(decision
approved
by
SGCA
in
Ong
Chay
Tong).
Unlike
an
option
to
Chai
Mei
Leng
v
Cheng
William
(No
2)
[1998]
SGHC
purchase
(where
the
party
can
sue
for
SP),
the
party
with
right
381
-
decree
nisi
(quashed)
pending
distribution
of
of
first
refusal
cannot
enforce
performance
if
the
grantee
does
matrimonial
assets
is
NOT
a
caveatable
interest
not
want
to
sell.
However,
it
seems
that
the
court
recognised
Lim
Kaling
v
Hangchi
Valerie
[2003]
2
SLR
377
1.
the
right
of
first
refusal
as
a
caveatable
interest
on
the
basis
inchoate
expectation
of
spouse
who
had
made
no
that
the
right
can
be
enforced
by
injunction
(cf
s115(3)
where
contribution
to
purchase
price
of
property
is
not
a
an
injunction
is
expressly
caveatable).
caveatable
interest
|
2.
best
course
of
action
for
wife
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is
to
institute
proceedings
under
s132
of
WC
for
grant
our
courts
yet,
it
is
submitted
that
our
courts
are
likely
to
of
injunctive
relief
adopt
this
new
approach.
Eu
Yee
Kai
Alexander
Junior
(alias
Eu
Sandy)
v
Hanson
Ingrid
Christina
[2004]
SGHC
214
decere
nisi
**lodged
without
legal
right
and
with
intention
to
infringe
pending
division
of
matrimonial
assets
is
a
caveatable
rights
of
caveatees?
interest
How
to
reconcile
Eu
Sandy
with
Lim
Kaling
and
Chai
Mei
VEXATIOUSLY
Leng?
Policy
argument?
That
Eu
Sandy
would
stretch
the
principle
of
certainty
under
the
Torrens
system
too
far?
For
the
element
of
vexatiously,
it
is
defined
as
instituted
without
sufficient
grounds
for
the
purpose
of
causing
trouble
or
annoyance
to
the
defendant
and
not
intended
to
lead
to
a
ISSUE
2:
WRONGFUL
CAVEAT
serious
result.
Under
s.
128(1),
caveatees
(earlier
caveators)
can
seek
**
Was
it
intended
to
cause
trouble
or
annoyance?
compensation
for
pecuniary
loss
as
a
result
of
wrongful
lodgement
of
caveats.
There
are
3
elements
to
this,
that
the
caveat
is
lodged
(1)
wrongfully,
(2)
vexatiously
or
(3)
without
WITHOUT
REASONABLE
CAUSE
reasonable
cause.
These
3
elements
are
to
be
read
disjunctively
(Tan
Soo
Leng
David
v.
Wee
Satku,
followed
in
For
the
element
of
without
reasonable
cause,
it
is
an
Eng
Bee
Properties).
objective
test
of
whether
the
caveator
has
an
honest
belief
based
on
reasonable
grounds
that
he
had
such
as
interest
in
the
land
(Ho
Soo
Fong
v.
Standard
Chartered
Bank).
Lack
of
honest
belief
can
be
determined
from
the
caveators
sources
ELEMENTS
OF
WRONGFUL
CAVEAT
of
information
and
whether
he
consulted
a
solicitor.
WRONGFULLY
WIDE
AND
NARROW
**
Did
he
have
an
honest
belief
on
reasonable
grounds?
For
the
element
of
wrongfully
there
are
two
interpretations
The
wide
interpretation
is
that
wrongfully
means
without
legal
right
(Tan
Soo
Leng
David
followed
in
Eng
Bee
DAMAGES
Properties).
After
establishing
either
one
of
the
elements,
we
now
turn
to
the
issue
of
damages.
Damages
are
awarded
to
put
the
However,
Tan
Sook
Yee
criticised
that
this
wide
approach
claimant
in
the
same
position
as
if
the
caveat
have
not
been
prevents
people
with
an
honest
belief
from
lodging
a
caveat.
lodged
(Mooka
Pillai
v.
Kushvinder
Chopra).
For
a
claim
to
Furthermore,
s.115,
LTA,
explicitly
provides
the
ability
for
succeed,
3
elements
needs
to
be
satisfied:
(1)
reasonable
anyone
with
a
claim
in
land
to
lodge
a
caveat,
and
hence
it
foreseeablility,
(2)
causation,
(3)
duty
to
mitigate
losses
(Hoo
must
have
anticipated
that
the
claims
may
or
may
not
be
Soo
Fong
v.
Standard
Chartered
Bank).
substantiated
later.
It
is
thus
unfair
to
make
the
caveator
pay
compensation.
FORESEEABILITY
Tan
Sook
Yee
then
suggests
that
wrongfully
should
include
the
element
of
intention
as
was
included
in
other
Torrens
Whether
the
loss
was
reasonably
foreseeable
does
not
legislations.
Indeed,
this
is
the
narrow
interpretation
that
was
require
the
caveator
to
have
actual
knowledge
of
the
financial
also
mentioned
in
obiter
dicta
by
CJ
Chan
in
Ho
Soo
Fong
v.
condition
of
the
claimant
constructive
knowledge
(ought
to
Standard
Chartered
Bank
that
wrongfully
means
having
no
have
known
that
lossess
would
have
resulted
from
the
legal
right
and
with
the
deliberate
intention
to
infringe
the
wrongful
act)
is
sufficient.
The
test
is
whether
a
reasonable
rights
of
other
caveatees.
CJ
Chan
went
on
to
say
that
the
caveator
with
the
requisite
knowledge
would
have
reasonably
wide
construction
would
otherwise
render
the
other
words
in
foreseen
the
loss.
the
section
otiose.
Hence,
whilst
the
narrow
interpretation
is
merely
in
obiter
and
has
not
been
authoritatively
adopted
by
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64
of
71
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2 0 1 2
**Whether
caveator
should
have
foreseen
the
loss
suffered
by
caveatee.
CAUSATION
Under
causation,
the
trial
judge
in
Ho
Soo
Fong
held
that
impecunoisity
of
the
claimant
is
not
attributable
to
the
caveat
(the
Liesbosh
principle).
However,
on
appeal,
CJ
Chan
rejected
the
Liesbosch
principle
and
says
that
a
tortfeasor
must
take
his
victim
as
he
finds
him,
and
in
some
cases
the
tortfeasor
caused
the
claimants
impecuniosity.
CJ
Chan
also
noted
that
the
House
of
Lords
in
Lagden
v
OConnor
had
also
declined
to
follow
Liesbosch.
**Whether
caveator
caused
the
damage.
DUTY
TO
MITIGATE
A
caveatee
has
a
duty
to
mitigate
the
losses
he
suffered
under
s.
128(1)
(Ho
Soo
Fong).
It
often
includes
the
caveatee
timely
challenging
the
caveat
under
s.
127
(Mooka
Pillai),
however
this
is
not
absolute
and
it
depends
on
what
is
reasonable
in
the
circumstances
(Ho
Soo
Fong).
**Did
cavatee
mitigate
his
losses?
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65
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71
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2 0 1 2
LTA
ESSAYS
Criticisms
on
Bebe
limit
fraud,
expand
trust:
Crown,
Back
to
Basics:
Indefeasibility
of
Title
under
the
FRAUD
Torrens
System:
It
is
submitted
that
immediate
indefeasibility
is
the
general
rule
and
since
fraud
lies
with
the
exception,
it
There
is
the
outstanding
issue
of
the
problem
via-a-vis
Torrens
does
not
have
to
be
constricted
to
the
general
principle
of
land
and
the
constructive
trust
posed
by
a
certain
factual
immediate
indefeasibility
such
that
it
only
applies
at
or
before
pattern
which
always
recurs
in
land
law
cases
(Bahr,
Ho
Kon
registration.
Kim
v
Lim
Gek
Kim
Betsy).
The
recurring
factual
pattern
can
be
summarised
as
follows:
Y
has
rights
in
land
beloniging
to
R1;
Ri
It
is
submitted
that
Bebes
position
on
fraud
having
to
exist
transfers
the
land
to
R2;
R2
knows
of
Ys
rights
and
buys
the
before
and
at
the
time
the
contract
is
entered
into
or
at
the
land
at
a
lower
value,
and
in
some
cases,
expressly
agrees
to
time
of
registration
of
the
instrument
is
correct.
However,
it
is
honour
Ys
rights.
wrong
to
say
that
Betsy
is
on
all
fours
with
Loke
Yew
and
can
be
re-interpreted
as
fraud.
Loke
Yew
should
come
under
fraud
Singapores
position
exception
since
PSR
had
no
intent
to
recognise
Loke
Yews
Following
Bebe,
the
Singapore
courts
would
most
likely
interest
from
the
start
(unlike
in
Betsy).
Betsy
can
be
properly
characterise
this
as
fraud
under
s
46(1)
of
the
LTA.
explained
if
the
court
adopts
and
expands
the
obiter
dicta
in
Loo
Chay
Sit
to
allow
for
constructive
trusts
under
s46(2)(c)
It
is
submitted
that
Bebes
position
on
fraud
having
to
exist
exception.
This
would
effectively
restrict
the
fraud
exception
before
and
at
the
time
the
contract
is
entered
into
or
at
the
to
actual
fraud
at
time
of
registration,
while
expanding
the
time
of
registration
of
the
instrument
is
correct.
However,
it
is
trust
exception
to
allow
constructive
trust,
which
Betsy
will
wrong
to
say
that
Betsy
is
on
all
fours
with
Loke
Yew
and
can
come
under.
be
re-interpreted
as
fraud.
Loke
Yew
should
come
under
fraud
exception
since
PSR
had
no
intent
to
recognise
Loke
Yews
interest
from
the
start
(unlike
in
Betsy).
On
othe
other
hand,
CONSTRUCTIVE
TRUST
the
facts
in
Betsy
is
distinguished
as
it
deals
with
subsequent
repudiation
of
a
contract.
Constructive
trusts
should
be
allowed
as
an
exception
to
the
indefeasible
title
under
s46
LTA.
Although
the
SGCA
in
Bebe
It
is
suggested
that
Betsy
can
be
properly
explained
if
the
noted
that
the
language
of
the
subsection
suggests
that
it
only
court
adopts
and
expands
the
obiter
dicta
in
Loo
Chay
Sit
to
applies
to
express
trusts
and
not
constructive
trusts,
there
are
allow
for
constructive
trusts
under
s46(2)(c)
exception.
This
valid
reasons
allow
constructive
trust
as
an
exception.
would
effectively
restrict
the
fraud
exception
to
actual
fraud
at
time
of
registration,
while
expanding
the
trust
exception
to
First,
the
SGCA
with
a
differently-constituted
bench
in
Loo
allow
constructive
trust,
which
Betsy
will
come
under.
Chay
Sit
v
Estate
of
Loo
Chay
Loo
suggested
in
obiter
dicta
that
resulting
trust
can
be
recognised
under
s46(2)(c)
LTA,
in
Pre-
Bebe:
contrary
to
Bebes
obiter
dicta.
This
suggests
that
constructive
Assets
v
Mere
Roihi
and
Waimiha
Sawmilling
took
the
position
trust
should
fall
within
s46(2)(c)
LTA
as
well.
that
fraud
under
the
Torrens
system
means
actual
fraud,
dishonesty
of
some
sort,
not
what
is
called
constructive
or
Second,
it
serves
to
reduce
personal
equities.
Most
cases
can
equitable
fraud.
be
resolved
relying
on
the
constructive
trust
approach.
It
does
Loke
Yew
seems
to
recognise
that
there
was
fraud
because
not
defeat
the
policy
objectives
of
the
LTA
to
reduce
PSR
had
no
intent
to
recognise
Loke
Yews
interest
from
the
uncertainty
and
to
give
finality
in
land
dealings
(Bebe),
start.
The
problem
was
most
clearly
displayed
in
Bahr
v
because
it
is
possible
to
adopt
a
principled
approach
towards
Nicolay,
where
the
court
was
split
on
whether
it
constitutes
to
the
imposition
of
constructive
trust.
Torrens
fraud
where
there
was
a
subsequent
repudiation
of
Crown,
Back
to
Basics:
Indefeasibility
of
Title
under
promise
or
only
includes
initial
fraud
at
the
time
of
the
Torrens
System:
the
decision
in
Bebe
can
be
contracting.
criticised
on
2
points:
(1)
the
language
does
not
expressly
indicate
express
trust
and
(2)
allowing
Bebe:
constructive
trusts
reduces
risks
of
backdoor
The
SGCA
in
Bebe
noted
that
the
LTA
system
is
based
on
approach
to
rely
on
personal
equities.
immediate
indefeasibility
and
therefore,
the
fraud
must
exist
Tang,
Beyond
The
Torrens
Mirror:
A
Framework
Of
before
and
at
the
time
the
contract
is
entered
into
or
at
the
The
In
Personam
Exception
To
Indefeasibility:
A
time
of
registration
of
the
instrument.
-
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66
of
71
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2 0 1 2
constructive
trust
claim
arising
from
the
wrongful
2-PARTY
VITIATING
FACTORS
conduct
of
the
registered
proprietor
falls
within
the
in
personam
claim
but
it
must
be
something
more
Equitable
fraud?
than
merely
becoming
the
new
registered
proprietor
Crown:
These
vitiating
factors
should
fall
under
equitable
with
notice
of
a
prior
unregistered
interest.
Since
fraud
and
thus
s46(2)(a)
LTA:
indefeasibility
of
title
does
not
grant
immunity
to
the
Baalman:
Fraud
is
not
defined
by
the
Ordinance,
for
registered
proprietor
for
its
wrongdoings,
the
the
reason
that
it
would
be
no
more
practicable
to
constructive
trusts
(as
follows)
should
be
within
the
attempt
a
definition
now
than
it
has
been
at
any
in
personam
exception
where
the
person
acquires
other
period
in
the
history
of
the
Torrens
System
property
in
breach
of
fiduciary
duty,
proprietary
The
general
meaning
has
been
left
at
large,
to
be
estoppel
stemming
from
the
conduct
of
the
determined
by
the
Court
in
the
particular
registered
proprietor
(Goh
Swee
Fang),
a
specifically
circumstances
of
each
case.
(quoted
with
approval
enforceable
contract
to
dispose
of
land
but
reneges
in
Bebe).
Hence,
the
definition
of
fraud
remains
open
on
the
agreement
(Bahr
v
Nicolay,
Betsy
Lim,
to
interpretation.
Narayanasamy,
Betsy
Lim),
common
intention
Waimiha:
fraud
may
be
established
by
a
deliberate
constructive
trusts,
and
purchase
of
property
with
and
dishonest
trick
causing
an
interest
not
to
be
bribe
monies.
registered
and
thus
fraudulently
keeping
the
register
clear.
It
is
not,
however,
necessary
or
wise
to
give
Third,
a
distinction
can
be
drawn
between
notice
of
a
abstract
illustrations
of
what
may
constitute
fraud
in
wrongdoing
which
vitiates
the
transfer
of
property
like
undue
hypothetical
conditions,
for
each
case
must
depend
influence
or
duress
from
a
notice
of
a
unregistered
interest.
upon
its
own
circumstances.
Allowing
people
to
turn
a
blind
eye
when
they
have
Bahr
v
Nicolay:
These
comments
[in
Waimiha]
did
knowledge
of
such
wrongdoing
would
encourage
irresponsible
not
mean
all
species
of
equitable
fraud
stand
outside
behaviour
by
purchasers
and
mortgagees
(esp.
institutional
the
statutory
concept
of
fraud
...
it
must
be
a
certain
lenders).
species
of
equitable
fraud
where
there
were
Low,
"The
Nature
of
Torrens
Indefeasibility:
dishonesty
Understanding
the
Limits
of
Personal
Equities'":
Grgic
v
Australian
&
NZ
Banking
Group
(affirmed
in
where
constructive
trust
arises
out
of
conduct
on
the
Bebe):
those
specific
of
equitable
fraud
which
are
part
of
the
registered
proprietor,
which
is
something
regarded
as
within
the
concept
of
fraud
are
those
more
than
mere
registration
with
notice
of
a
prior
in
which
there
has
been
an
element
of
dishonesty
or
unregistered
interest,
it
would
not
undermine
the
moral
turpitude
on
the
part
of
the
registered
principle
of
indefeasibility.
The
problem
lies
with
the
proprietor
of
the
subject
interest
or
on
the
part
of
his
confusion
of
notice
of
the
unregistered
interest
with
or
its
agent.
the
notice
of
the
wrongdoing
which
gives
rise
to
the
Bebes
case:
The
hallmark
of
fraud
is
dishonesty
or
legal
liability.
No
reason
why
a
cause
of
action
based
moral
turpitude,
which
usually
stems
from
greed,
on
notice
of
something
other
than
prior
title
should
and
greed
simply
means
taking
something
of
value
be
prohibited
under
the
Torrens
system.
which
does
not
belong
to
you.
Since
the
dicta
in
Loo
Chay
Sit
can
be
read
as
indicating
that
It
is
possible
to
interpret
these
vitiating
factors,
which
involves
constructive
trust
may
fall
under
s46(2)(c),
it
would
not
render
some
form
of
dishonesty
or
moral
turpitude
to
induce/compel
statutory
exceptions
superfluous
or
increase
uncertainty
in
parties
into
contracting
in
order
to
gain
some
benefit
from
the
terms
of
introducing
personal
equities.
It
would
ultimately
be
contractual
arrangement.
This
would
reduce
the
backdoor
to
an
issue
of
statutory
interpretation
to
determine
if
the
in
personam
claims.
particular
case
falls
within
s46(2)(c),
which
allows
the
court
to
control
the
ambit
of
the
constructive
trust
exception.
-
can
be
under
s
46(2)(b)
as
well
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67
of
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2 0 1 2
INCHOATE
EQUITY
Policy
reasons
The
policy
reasons
for
recognising
tripartite
undue
influence
Inchoate
equity
should
be
allowed
as
an
exception
under
are
eludicated
as
follow:
s46(2)
LTA
for
two
reasons:
Academic
Tang
Hang
Wu
had
argued
that
bank
should
act
as
a
First,
s46
LTA
provides
that
the
registered
proprietor
only
gatekeeper
to
prevent
undue
influence
or
unconscionable
hold
land
free
from
all
prior
titles
and
not
indefeasibility
conduct
being
perpetrated
on
the
wife
by
the
husband.
This
is
from
personal
claims.
Therefore,
damages
for
satisfying
the
because
the
banks
are
in
a
better
position
to
shoulder
the
equity
should
not
be
prevented
under
s46(2).
burden
to
make
further
inquiries.
Banks
could
simply
factor
this
risk
and
spread
it
by
slightly
increasing
its
charges
and
Second,
court
should
be
allowed
to
impose
a
constructive
interest
rates.
Therefore,
Immediate
indefeasibility
acts
as
a
trust
(as
a
way
to
satisfy
the
inchoate
equity)
and
thus
falling
moral
hazard,
removes
incentives
for
bank
to
put
in
place
safe
under
the
exception
of
s46(2)(c),
supported
by
Loo
Chay
Sits
guard
prcudues
even
tough
they
are
best
placed
to
do
case.
something
about.
This
would
not
be
desirable
because
there
is
disproprtionate
loss
to
individuals
who
risk
losing
their
whole
life
savings.
HOW
DOES
THE
ETRIDGE
SITUATION
FIT
INTO
THE
TORRENS
SYSTEM
There
is
hence
a
conflict
of
policy-
the
policy
of
respecting
ones
indefeasibility
of
title
and
the
policy
behind
Etridge.
It
is
This
provides
a
quare
in
the
law
because-in
unregistered
land,
argued
that
undue
influence
should
not
be
construed
as
being
the
banks
failure
to
advise
a
wife
would
likely
mean
that
the
incompatible
with
Torrens
system
because
the
social
utility
of
bank
cannot
take
title.
However,
in
registered
land,
bank
the
doctrine
the
protection
of
vulnerable
people
in
familial
prima
facie
has
indefeasible
title.
situations
far
outweighs
the
principle
of
indefeasibility
of
title.
The
current
position
in
Singapore
[As
illustrated
in
this
case]
The
failure
to
make
further
inquiry
[However,
this
has
been
criticised
on
two
grounds.
would
not
be
characterised
by
the
court
as
fraud,
given
that
it
is
probably
due
to
negligence.
Firstly,
the
policy
reason
elucidated
by
Tang
has
been
critized
as
it
is
unclear
why
banks
should
act
as
gatekeepers
for
cases
This
is
the
position
in
Singapore.
The
CA
in
Bebe
drew
a
of
undue
influence,
where
they
are
clearly
not
gatekeepers
in
distinction
between
negligence
and
fraud,
where
the
latter
cases
of
identity
fraud
(Barry
Crown).
In
both
cases,
the
bank
does
not
fall
under
the
definition
of
Torrens
fraud.
In
fact,
is
at
at
the
better
position
to
bear
the
loss.
In
addition,
it
is
not
Yung
CJ
made
the
observation
that
actions
against
banks
for
provided
by
the
LTA
that
the
courts
would
have
discretion
to
fraud
would
be
unlikely
to
succeed
because
in
ordinary
defeat
the
indefeasibility
of
title.
banking
transactions,
there
is
no
reason
for
the
bank
to
act
Possible
reform:
Perhaps
a
more
coherent
way
of
dealing
dishonestly
or
to
seek
to
defraud
the
customers.
This
is
with
Etridge
cases
is
through
statutory
amendment,
should
similarly
applicable
to
solicitors
and
unless
there
is
evidence
legislation
agrees
with
the
policy
concerns,
as
what
it
was
that
the
solicitor
has
received
payment
well
beyond
their
done
in
Queensland.
normal
professional
fees,
it
would
be
difficult
to
impute
fraudulent
intention
in
any
act
or
omission.
Secondly,
it
has
been
said
that
cases
like
Etridge
does
not
involve
Torrens
system
and
indefeasibility
of
title
(Kevin
Low)
This
was
adopted
in
Sivalonthunku
where
fraud
was
not
not
It
has
been
argued
that
the
outcome
in
Sivakolunthu
is
correct
found
eventhough
the
facts
suggests
that
there
is
undue
since
in
such
3-party
undue
influence
cases,
the
only
influence
and
the
solicitors
should
have
known
the
risk
due
to
transaction
that
is
impugned
is
the
mortgage
transaction
the
spousal
relationship.
itself.
The
borrower
is
alleged
to
have
exercised
undue
influence
over
the
surety
in
the
mortgage
transaction
and
the
Therefore,
as
the
law
stands
in
Singapore,
the
Etridge
mortgagee
is
alleged
to
have
notice
of
the
undue
influence
in
situation
will
not
fall
under
s
46(2)(a).
Indeed,
it
would
be
a
the
same
transaction.
In
this
case,
the
undue
influence
did
not
strain
to
characterise
the
failure
to
make
further
inquiries
as
occur
in
the
disputed
transaction
but
rather,
the
transaction
falling
in
the
ambit
of
Torrens
Fraud.
prior
to
that.
As
such,
the
personam
claim
should
not
be
against
the
mortgagee
since
the
mortgagee
is
not
a
party
to
the
first
transaction.
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However,
it
is
submitted
that
this
reasoning
is
unsound.
This
uncertainty
and
to
give
finality
in
land
dealings,
our
courts
had
reasoning
is
based
on
Lows
theory]
to
be
slow
to
engraft
onto
the
LTA
personal
equities
that
were
not
referable
directly
or
indirectly
to
the
exceptions
in
s
46(2)
Other
solutions?
of
the
LTA.
The
court
even
went
further
to
show
how
the
Given
the
policy
factors,
the
courts
would
most
likely
allow
for
litany
of
cases,
which
allowed
personal
equity,
falls
within
the
the
exception
and
they
could
do
this
by:
exceptions
in
s.
46(2).
Furthermore,
a
strict
approach
to
the
S
46(2)(b)?
encroachment
of
personal
equities
under
the
LTA
might
not
Vitiating
factors,
such
as
tripartite
undue
influence
can
necessarily
be
unfair
to
persons
holding
unregistered
interests
arguably
fall
under
s
46(2)(b),
especially
in
light
of
the
CAs
in
registered
land
as
such
persons
were
free
to
protect
their
interpretation
of
Oh
Hiam.
The
CA
in
bebe
held
that
Oh
hiam
interests
by
lodging
caveats
against
the
registered
title.
was
a
case
where
one
party
enforcing
his
contractual
rights
This
stance
is
similarly
held
by
academic
Barry
Crown.
against
ther
registered
proprietor
to
correct
a
common
mistake
under
s
46(2)(b)
of
the
LTA.
Criticisms:
To
suggest
that
because
the
Singapore
Torrens
system
is
statutorily
codified
and
thus
in
personam
exceptions
However,
it
should
be
noted
that
Oh
Hiam
is
a
case
where
the
have
a
smaller
role
to
play
is
flawed
for
3
reasons:
(1)
This
parties
where
trying
to
vitiate
the
contract,
instead
of
would
lead
to
strained
meaning
of
fraud
and
other
statutory
enforcing
it.
Therefore,
the
courts
interpretation
in
Bebe
exceptions
to
indefeasibility.
(2)
Bebe
did
not
totally
reject
the
seems
to
open
the
door
for
other
vitiating
factors
to
fall
under
concept
of
in
personam
but
merely
slow
to
engraft
and
(3)
s
46(2)(b)
statutory
language
of
LTA
does
not
point
to
the
absence
of
a
general
in
personam
exception
in
Singapore.
This
approach
could
be
critisized
as
it
distorts
the
plain
Narrow
view
restricts
development
in
terms
of
remedies
(i.e.
meaning
of
the
statute.
By
shoe-horning
novel
situations
into
imposing
constructive
trust
not
possible
as
it
is
a
remedy
of
a
the
statute,
this
might
have
the
unintended
effecr
of
casting
claim
in
breach
of
confidence)
and
it
expands
and
strains
ambiguiaty
and
causing
undertainty.
construction
of
the
concept
of
Torrens
fraud
and
other
statutory
exceptions
of
indefeasibility.
In
personam
exceptions?
Alternatively,
it
could
be
argued
that
tripartite
undue
Wide
view
as
per
Kevin
Low:
in
personam
actions
do
not
influence
cases
should
be
recognised
as
a
special
class
of
cases
contradict
indefeasibility
of
title
that
can
be
engrafted
onto
the
LTA,
as
per
suggested
by
Tang
It
is
argued
that
here
is
no
contradiction
between
the
concept
Hang
Wu.
of
indefeasibility
and
allowing
certain
claims
to
be
brought
against
the
registered
proprietor.
The
in
personam
claims
are
Broader
question:
Should
in
personam
be
accepted
in
not
really
an
exception
to
the
principle
of
indefeasibility
and
Singapore?
indefeasibility
operates
on
a
different
plane
than
...
[the
in
Contrast
narrow
and
broad
view.
+
evaluation.
personam
exception]
because
the
former
is
intended
to
prevent
adverse
claims
on
the
basis
of
prior
title
and
no
more
Possible
reforms
whereas
the
latter
allows
only
claims
independent
of
prior
-
Amending
the
legislation,
as
what
Queensland
did
title.
As
such,
the
two
do
not
contradict
each
other
but
are
-
Assurance
fund
independent,
complementary
rule.
Lows
theory:
Where
a
claim
is
based
on
prior
title,
it
falls
foul
of
the
principle
of
indefeasibility
and
cannot
be
brought
against
the
registered
IN
PERSONAM
proprietor.
If
a
claim
is
not
based
on
prior
title,
then
it
falls
outside
the
indefeasibility
principle
and
within
the
scope
of
in
Narrow
view:
In
personam
claims
should
be
viewed
personam
claim.
restrictively
because
it
has
the
possibility
of
undermining
the
Criticisms:
(1)
This
view
is
excessively
wide,
destabilises
concept
of
indefeasibility
Torrens
system
(2)
It
renders
exceptions
under
s46(2)
In
UOB
v.
Bebe,
our
Court
of
Appeal
cautioned
against
the
superfluous,
(3)
It
is
contrary
to
legislative
intent
-
unlike
other
undue
reliance
on
the
concept
of
unconscionability
to
erode
jurisdictions
without
statutory
exceptions,
Baalman
intended
the
principle
of
indefeasibility
under
the
LTA.
The
court
held
to
reduce
uncertainty
by
providing
for
s46(2)(b)
and
(c).
that
while
the
LTA
might
not
be
exhaustive
of
all
claims
that
The
complication
of
the
view
arises
because
both
common
could
be
made
against
a
registered
proprietor
(per
Baalman),
law
and
equity
has
sought
to
protect
property
rights
directly
having
regard
to
the
policy
objectives
of
the
LTA
to
reduce
(i.e.
declaration
of
right)
and
indirectly
(i.e.
tort
of
trespass)
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therefore,
it
is
not
easy
to
identify
the
nature
of
claim
to
theft.
Cases
like
Grgic
v
Australian
and
New
Zealand
Banking
determine
if
it
may
be
brought
as
an
in
personam
exception
Group,
Russon
v
Bendigo
Bank,
Bebe
illustrates
the
vulnerability
of
purchasers.
These
cases
drew
a
distinction
Public
policy
approach
as
per
Tang
Hang
Wu
between
negligence
and
fraud,
with
the
effect
even
gross
A
third
view
adopts
a
public
policy
approach
and
propose
that
negligence
on
the
part
of
the
mortgagee
will
not
affect
the
the
court
should
look
at
each
claim
individually.
The
courts
indefeasibility
of
title.
This
seems
to
be
a
system
that
favours
would
have
to
balance
between
the
need
to
repsect
the
fraud.
In
such
cases,
banks
and
financial
institutions
are
in
a
prinicple
of
indefeasibility
and
where
other
public
polciy
better
position
to
bear
the
burden
than
indivisuals.
Banks
considerations
are
more
important
(Tang
Hang
Wu).
could
factor
this
risk
and
spread
the
risk
by
increasing
its
Criticisms:
(1)
no
power
under
statute
to
set
aside
charges.
As
such,
immediate
indefeasibility
acts
as
a
moral
indefeasible
title
besides
exception
under
s46(2);
and
(2)
a
hazard,
and
removes
incentives
for
bank
to
put
in
places
case-by-case
analysis
of
the
policy
decision
would
increase
safeguards,
despite
them
being
in
the
best
place
to
do
so.
litigation
and
social
costs.
This
suggestion
would
destabilise
the
Torrens
system.
Perhaps
it
would
be
better
to
shift
to
deferred
indefeasibility,
rather
than
use
the
concept
of
in
personam
exception
(which
Evaluation
is
a
messy
ares
of
the
law)
It
is
submitted
that
as
long
as
there
is
a
recognisable
cause
of
action
[such
as
the
cases
like
Etridge],
in
personam
action
Critisicm
does
not
necessarily
fall
afoul
with
the
principles
of
It
is
argued
however,
that
the
connection
between
immediate
indefeasibility.
By
recognising
clear
causes
of
action
indefeasibility
and
land
fraud
is
too
simplistic.
Perhaps
a
(supported
by
policy),
the
courts
would
not
face
the
risk
of
better
way
is
to
impose
a
more
rigorous
conveyancing
going
down
the
path
of
Merchantile.
practice
by
the
major
players
such
as
Land
Office,
In
fact,
by
attempting
to
shoe
horn
novel
situations
into
the
conveyancing
lawyers,
banks
and
Law
Society.
It
is
proposed
statute,
the
court
runs
the
risk
of
distroting
the
plain
that
the
more
effective
way
to
solve
the
problem
is
to
menaning
of
the
statute,
and
this
has
the
unintended
effect
of
implement
sound
conveyancing
practice
(Tang
Hang
Wu)
casting
ambiguity
on
the
statute.
In
addition,
by
adoption
a
blanket
switch
to
deferred
It
is
acknowledged
however
that
this
is
an
instance
of
all
indefeasibility
imperils
all
registered
title,
since
anyones
title
roads
lead
to
Rome
and
whether
one
is
a
proponent
of
in
might
be
challenged
at
any
time
on
the
ground
that
it
was
personam
action
or
whether
one
supports
the
strict
based
on
a
defective
instrument,
until
they
transfer
it
to
the
interpretation
of
s
46,
these
are
different
approaches
which
next
purchaser.
Therefore,
it
imposes
a
burden
of
inquiry
on
would
lead
to
the
same
result.
all
purchasers,
which
increases
the
cost
of
all
conveyancing
transactions
and
defeats
the
fundamental
purpose
of
the
Torrens
system
(that
is
to
reduce
uncertainty
and
costs
for
OTHER
SOLUTIONS
conveyance)
Further,
s46(1)
LTA
provides
for
immediate
indefeasibility
by
Possible
application:
the
words
whether
or
not
he
dealt
with
a
proprietor.
Underlying
problem
of
the
all-or-nothing
approach-
Therefore,
this
approach
is
not
possible
without
legislative
landowner
is
liable
to
lose
his
land
(one
of
the
largest
intervention.
investment
in
lifetime)
due
to
the
operation
of
the
system.
Extending
this
point,
the
curren
Torrens
system
seems
to
Assurance
fund
as
a
solution?-
a
more
relaxed
scheme?
encourage
litigation.
This
is
because
landowner
who
lost
his
According
to
Ruoff,
the
insurance
principle
is
one
of
the
3
key
land
would
likely
argue
all
possible
ways
to
retrieve
his
land.
principles
underpinning
all
Torrens
systems.
The
current
This
undermines
the
efficacy
of
the
Torrens
system,
which
is
assurance
fund
in
Singapore
under
s155
read
with
151
LTA
is
intended
to
reduce
uncertainty
and
to
give
finality
in
land
limited
to
parties
deprived
of
land
or
sustains
loss
or
damage
dealings
due
to
Registrars
omission,
mistake
or
misfeasance.
Deferred
indefeasibility
as
a
solution?
To
deal
with
identity
[In
Malaysia,
there
is
no
assurance
fund
albeit
it
does
adopt
a
fraud
cases
deferred
infeasibility
approach
which
mitigates
the
rigours
of
Per
Barry
Crown:
The
move
to
immediate
indefeasibility
the
lack
of
insurance.
seems
dangerous
in
view
the
increase
incidence
of
property
In
Australia,
the
difficulty
in
claiming
from
the
assurance
funds
(i.e.
having
to
first
sue
the
wrongdoer
and
failed),
led
to
the
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development
of
a
comprehensive
privately-funded
title
insurance
scheme.]
In
the
UK,
the
statute
provides
for
an
indemnity
fund
which
adopts
a
relaxed
attitude
towards
compensation,
automatically
making
compensation
to
parties
who
lose
their
land
as
a
result
of
the
operation
of
the
system.
The
UK
system
also
shows
preference
for
protecting
the
property
rights
of
the
registered
proprietor
who
is
in
possession.
Where
2
parties
are
in
dispute,
the
party
in
occupation
will
usually
keep
the
land
while
the
other
party
will
get
monetary
compensation.
This
reduces
litigation
since
it
prevents
the
occurrence
of
forcible
eviction.
Hence,
adopting
a
more
relaxed
compensation
scheme,
it
would
provide
a
more
satisfactory
solution
where
it
involves
two
inoocent
parties
(such
as
identity
fraud
cases
and
Etridge
cases).
In
such
cases,
the
bank
would
be
satisfied
with
monetary
compensation
for
the
loan
provided,
while
the
owner
gets
to
keep
his
property.
Some
difficulties
in
this
approach
would
be
(1)
the
need
to
increase
fees
in
order
to
support
Assurance
fund
and
(2)
since
private
title
insurance
companies
are
businesses
and
no
private
title
insurance
currently
operate
in
SG,
it
is
unlikely
for
them
to
enter
into
small
market
like
SG
(and
the
lack
of
awareness
of
the
risks
of
losing
their
title).
However,
it
is
submitted
that
it
is
better
for
all
users
of
the
Torrens
system
to
share
the
costs
in
assurance
of
title
rather
than
have
the
defrauded
individuals
bear
the
burden
by
themselves.
Further,
given
that
the
assurance
funds
have
been
accumulated
over
the
years,
it
should
have
consolidated
quite
a
decent
buffer
for
claims
which
reduces
the
need
for
a
sudden
spike
in
registration
prices.
Moreover,
land
transactions
are
not
frequent
and
most
people
would
only
encounter
them
once
or
twice,
which
makes
a
slightly
higher
administrative
cost
(as
lifetime
title
insurance)
reasonable.
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