Protax Co-operative Society Ltd v Toh Teng Seng: Trespass, Forfeiture, and Landlord's Right of Re-entry
Protax Co-operative Society Ltd, the plaintiff, sued Toh Teng Seng and Sng Soon Heng, the defendants, in the High Court of Singapore, alleging trespass. The defendants had re-entered premises subleased to the plaintiff due to the head lessee's failure to pay rent. The court, presided over by Judicial Commissioner Chan Seng Onn, dismissed the plaintiff's claim, holding that the defendants' re-entry was lawful and did not constitute trespass. The court found that the head lease had been lawfully forfeited for non-payment of rent, and the defendants had not waived their right to re-entry.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Plaintiffs' claim dismissed with costs.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The High Court held that the defendants did not commit trespass by re-entering the premises due to the head lessee's failure to pay rent. The court dismissed the plaintiff's claim.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Protax Co-operative Society Ltd | Plaintiff | Corporation | Claim Dismissed | Lost | Andrew Ee |
| Toh Teng Seng | Defendant | Individual | Judgment for Defendant | Won | Harbajan Singh |
| Sng Soon Heng | Defendant | Individual | Judgment for Defendant | Won | Harbajan Singh |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chan Seng Onn | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Andrew Ee | Andrew Ee & Co |
| Harbajan Singh | Daisy Yeo & Co |
4. Facts
- Plaintiffs subleased premises from head lessee.
- Defendants purchased the premises subject to existing head leases.
- Head lessee defaulted on rent payments.
- Defendants served a writ of possession on the head lessee.
- Defendants re-entered the premises and changed the locks.
- Head lessee obtained relief against forfeiture.
- Plaintiffs claimed trespass and damages.
5. Formal Citations
- Protax Co-operative Society Ltd v Toh Teng Seng and Another, Suit 640/2000, [2001] SGHC 84
6. Timeline
| Date | Event |
|---|---|
| Head lease for the 1st storey units was granted for a period of 7 years. | |
| Head lease for the 2nd storey unit was granted for a period of 6 years and 5 months. | |
| Head lease for the 2nd storey unit was dated. | |
| Plaintiffs took over a sublease by a deed of assignment. | |
| Defendants purchased the premises. | |
| Defendants sent a letter of demand for payment of outstanding November 1999 rent. | |
| Defendants filed a writ of summons (DC Suit No 5500 of 1999). | |
| Head lessee banked $10,800 directly into the defendants' bank account. | |
| Defendants' solicitors sent a letter stating that the $10,800 received had been applied towards payment of arrears. | |
| Head lessee deposited a further sum of $2000 directly into the defendants' bank account. | |
| Defendants' solicitors effected substituted service of the writ on the head lessee. | |
| Head lessee filed and served a defence in DC Suit No 5500 of 1999, admitting the rental arrears. | |
| Defendants solicitors sent a letter to Rodyk & Davidson, the solicitors for the prospective tenants. | |
| Head lessee deposited $10,800 into the defendants joint DBS account. | |
| Defendants made clear to the head lessee that they were compelled to issue proceedings to recover possession of the premises. | |
| Head lessee deposited a further sum of $21,600 and $2,000. | |
| Defendants solicitors made clear in their letter to the head lessees solicitors that subsequent payments received after the date of issue of the writ would be regarded as payment towards arrears of rent and/or damages. | |
| Defendants entered the premises and informed the occupiers to vacate within 24 hours. | |
| Defendants exercised their right to re-possess the premises and locked up the premises. | |
| Secretary of the plaintiffs wrote a letter to protest the re-entry. | |
| Head lessees solicitors also filed an amended defence. | |
| New tenancy agreement with Mdm Fariday and Mr Amin Awall was signed. | |
| URA's reply showed that the temporary permission for use of the said two units as an eating house had in fact lapsed on 18 January 1993. | |
| Defendants applied to the URA for change of use to an eating house. | |
| URA replied refusing permission under Section 14 (4) of the Planning Act. | |
| Court granted the head lessee relief from forfeiture. | |
| Defendants' appeal was dismissed. | |
| Defendants forwarded the keys to the head lessees solicitors. | |
| Second attempt to obtain permission from URA was rejected. | |
| Plaintiffs surrendered their foodshop licence to the Ministry of Environment. | |
| Decision Date |
7. Legal Issues
- Trespass
- Outcome: The court held that the defendants did not commit trespass as their re-entry was lawful.
- Category: Substantive
- Sub-Issues:
- Unlawful re-entry
- Waiver of right to re-entry
- Forfeiture of Lease
- Outcome: The court held that the head lease was lawfully forfeited for non-payment of rent.
- Category: Substantive
- Sub-Issues:
- Non-payment of rent
- Waiver of forfeiture
- Relief against forfeiture
- Right of Re-entry
- Outcome: The court held that the defendants validly exercised their right of re-entry.
- Category: Substantive
- Sub-Issues:
- Peaceable re-entry
- Constructive re-entry
- Waiver of right to re-enter
8. Remedies Sought
- Loss of rental income
- Loss of profit
- Loss or removal of chattels
- Punitive or aggravated damages
9. Cause of Actions
- Trespass
10. Practice Areas
- Commercial Litigation
- Property Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Matthews v Smallwood | N/A | Yes | (1910) 1 Ch 777 | England | Cited for the principle that waiver is a matter of law and not of the parties' intention. |
| Hong Cheok Lam v Ong Sing Mai and 4 others | Civil District Court | Yes | (1951) 17 MLJ 34 | Singapore | Cited for the principle that acceptance of rent after knowledge of a breach amounts to a waiver of the right of re-entry. |
| Station Hotel Co v Malayan Railway Administration | Court of Appeal | Yes | [1993] 3 SLR 403 | Singapore | Cited for the principle that English principles on waiver of forfeiture apply in Singapore for contractual tenancies of non-rent controlled premises. |
| Low Bee Hoe (w) v Morsalim Chin | Civil District Court | Yes | (1947) MLJ 3 | Singapore | Cited for the principle that actual receipt of rent prior or subsequent to the forfeiture, which rent accrued due before the cause of forfeiture, will not amount to a waiver. |
| Price v Worwood | N/A | Yes | (1859) 4 H & N 512 | England | Cited for the principle that a receipt of rent to operate as a waiver of forfeiture must be a receipt of rent which was become due after the forfeiture was incurred. |
| Penton v Barnett | Court of Appeal | Yes | [1898] 1 QB 376 | England | Cited for the principle that the obligation to pay rent on the due date each month throughout the entire duration of the lease is a continuing obligation. |
| Doe. Dem. Ambler v Boodbridge | N/A | Yes | (1829) 9 B&C 377 | England | Cited for the principle that the use of rooms in a manner prohibited by the lease was a continuing breach. |
| Doe v Jones | N/A | Yes | (1850) 5 Exch 498 | England | Cited for the principle that the receipt of rent is a waiver of all forfeitures, which are, so to speak, single and complete, and are not in the nature of continuing forfeitures. |
| Downie v Turner | Court of Appeal | No | [1951] All ER 416 | England | Cited to contrast with continuing breaches, noting that subletting in breach of covenant is not a continuing breach. |
| Farimani v Gates | Court of Appeal | Yes | [1984] 2 EGLR 66 | England | Cited for the explanation of the difference between a recurring breach and a single breach. |
| Grimwood v Moss | N/A | Yes | (1871) L.R. 7 C.P. 360 | England | Cited for the principle that the landlords distress for rent after the date of service of proceedings for possession was not conduct amounting to a waiver. |
| Civil Service Co-operative Society v Mc Grigors Trustee | N/A | Yes | [1923] 2 Ch 347 | England | Cited for the principle that a demand for, payment and acceptance of, rent by the plaintiff landlords as a waiver since action brought of the causes of forfeiture is not a waiver. |
| Dendy v Nicholl | N/A | No | [1893] 2 Ch. 271 | England | Cited in relation to the issue of waiver of right of re-entry. |
| Segal Securities, Ltd. v Thoseby | N/A | Yes | [1963] 1 All E.R. 500 | England | Cited for the principle that a demand or acceptance of rent due before a breach of covenant does not per se constitute a waiver. |
| Blades v Higgs | N/A | Yes | (1861) 10 CBNS 713 | England | Cited for the principle that the owner of land entitled to the possession may enter thereon and use force sufficient to remove a wrong-doer therefrom. |
| Richards v De Freitas | N/A | Yes | (1974) 29 P & CR 1 | England | Cited for the principle that there is no locus poenitentiae between the issue and service of the writ entitling a lessee to tender the rent and avoid forfeiture. |
| Canas Property Co Ltd v K L Television Services Ltd | Court of Appeal | Yes | [1970] 2 All ER 795 (C.A.) | England | Cited for the principle that the landlord must not only issue, but also serve the writ of possession on the tenant, if he wants to effect forfeiture for breach of a covenant in a lease by way of a notional physical re-entry. |
| Hussein v Mehlman | N/A | Yes | [1992] 2 EGLR 87 | England | Cited for the view that the doctrine of repudiation applied to tenancies. |
| Chartered Trust plc v Davies | N/A | Yes | [1997] 2 EGLR 83 | England | Cited for the view that the doctrine of repudiation applied to tenancies. |
| Nyehead Developments Ltd v RH Fibreboard Containers Ltd | N/A | Yes | [1999] 2 EG 139 | England | Cited for the view that the doctrine of repudiation applied to tenancies. |
| Billson v Residential Apartments Ltd. | House of Lords | Yes | [1992] 2 W.L.R. 15 (H.L.) | England | Cited for the principle that in order to exercise his option to determine the lease the landlord must either re-enter the premises in conformity with the proviso or must issue and serve a writ claiming possession. |
| Pierson v Harvey | N/A | No | (1885) 1 T.L.R. 430 | England | Cited in relation to the issue of waiver of forfeiture. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Conveyancing and Law of Property Act (Cap. 61) | Singapore |
| Planning Act (Cap.232) | Singapore |
| Environment Public Health Act (Cap 95) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Re-entry
- Forfeiture
- Waiver
- Trespass
- Head lease
- Sublease
- Relief against forfeiture
- Writ of possession
- Rental arrears
15.2 Keywords
- trespass
- forfeiture
- re-entry
- lease
- rent
- Singapore
16. Subjects
- Property Law
- Landlord and Tenant
- Civil Litigation
17. Areas of Law
- Landlord and Tenant Law
- Property Law
- Trespass
- Forfeiture
- Civil Procedure