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.