Singapore, October 24th 2013, Thursday, 10pm
After hearing further arguments from counsel for both parties
respectively in Chambers when hearing resumed at 10am on Thursday
24th October 2013 , Judicial Commissioner Tan Siong Thye stood the
matter down further to 5pm to deliver his verdict on the
Defendant’s application to adduce a counterclaim against the
Plaintiffs. Upon hearing resuming in Chambers at 5pm, Judicial
Commissioner Tan Siong Thye invited further submissions from
parties before delivering his verdict allowing the Defendant’s
application to adduce a counterclaim and to vacate the trial which
had been fixed for 8 days.
The Plaintiffs’ counsel had strenuously opposed the application
on Wednesday 23rd October 2013 and Thursday 24th October, arguing
that allowing the counterclaim to be adduced at such a late stage
ie upon the onset of trial was highly unusual and would almost
certainly derail trial and occasion severe prejudice to the
Plaintiffs who were individual litigants without deep pockets. Such
prejudice could not be compensated by any award of costs to the
Plaintiffs who had waited more than 18 months and gone through
several rounds of interlocutory hearings before the matter had
reached trial. He argued that a more equitable option was for the
developer to bring separate proceedings against the couple which
would also enable the couple to add ERA as a
co-defendant to the fresh proceedings.
The Plaintiffs also argued that if the Defendant’s application
was allowed, the Plaintiffs would need at least 14 days to prepare
and to file their Defence to the Counterclaim. The Plaintiffs’
proposed Defence to the Counterclaim, as explained in documents
filed by the Plaintiffs in Court was that their combined income
being shown as 370/- less, was due to the developer having
reflected the income shown on the couple’s payslips instead of
relying on their IRAS Notices of Assessment.
The developer also did not seek any evidence of salary other than
payslips. The developer did so in spite of the couple having
printed out their CPF online statements at
the showflat itself, and handing over the same to the developer,
which CPF statements had shown that the
couple was deriving incomes from multiple sources. The developer
had continued to rely on payslips despite some of the couple’s
income not being borne out by payslips. According to the
Plaintiffs, the developer had even provided computer and online
access at the showflat to enable buyers to access and print their
CPF statements disclosing their sources of
income to the developer before being guided by the developer as to
how to prepare and submit applications for purchase. The Plaintiffs
say any blame for the income not being reflected on the application
despite such detailed disclosure being made to the Developer should
lie on the Developer and or its agent ERA and
Gary Ng. The couple also argue that ERA
should be added in as a co-Defendant to any intended counterclaim
by the Defendant. The Developer responded with a statement from
their estate agent Gary Ng stating that Gary Ng had received the
CPF statement from the Plaintiffs albeit as
an agent for ANZ Bank to assist the
Plaintiffs in securing loans to finance the purchase. In the
circumstances of the case, the Plaintiffs would be relying on the
doctrine of equitable relief against forfeiture as a Defence which
made the counterclaim untenable.
The Judicial Commissioner awarded costs of the application fixed
at $2,000 to the Plaintiffs and costs thrown away by the vacating
of trial to be agreed or taxed, and paid by the Developer to the
Plaintiffs. He also directed the Plaintiffs to file their Amended
Defence within 5 days, the Defendant to file their Amended Reply
within 5 days and for Supplement Affidavits of Evidence in Chief to
be filed within 5 days thereafter.
The Plaintiffs have brought the action in the High Court against
developer CDL for fraudulently concealing the
existence of a 20 sqm void space, on the developer’s Sales
Brochure, the Project online Web-site, the Option to Purchase, the
Unit Layout Plan and 1 of 2 Side letters accompanying the Option to
Purchase. The developer’s misrepresentations of the unit’s area
came to light more than 2 months later, when the developer’s Sale
& Purchase Agreement (“SPA”) were sent to the buyers along with
a Compact Disk (“CD”) on 24th November 11. The CD had contained
numerous documents, some pages of which had disclosed the existence
of the 20 sqm void space. The couple then raised the matter to the
developers who then stalled for time. The Plaintiffs are seeking
refund of the unrefunded portion of the Option fees of $14,012.50,
wasted expenses of about $8,968 which they had incurred to the bank
for cancelling the loan, abortive legal fees of $1,551.82 paid to
their lawyers, lost interest on their CPF
funds of $317.37, lost Interest on the option monies of $1,129.51,
$490 being the cost of valuation reports on 2 overseas properties,
damages of $15,000 for inconvenience suffered by the Plaintiffs and
damages for their loss of opportunity to buy an alternative
condominium.
The void space had a value of over $135,000 and had affected
some 12% of the total size of the EC penthouse. Although the buyers
in this case had not sought any government grant, it is understood
that the government grant for an EC can range up to $30,000 per
unit.
Amongst the 10 witnesses who are expected to take the stand in
the course of the 8-day trial to testify for the Plaintiff’s case
are senior officials from the BCA, URA and
the HDB. The hearing is before Judicial
Commissioner Tan Siong Thye.
The Plaintiffs are represented by Vijay Kumar Rai of Arbiters
Inc. Law Corporation while the Defendants are represented by Senior
Counsel Ang Cheng Hock of Messrs Allen & Gledhill.