Singapore Law Gazette (December 2014)

Official Publication of The Law Society of Singapore | December 2014

ACTUAL VIEW FROM UNIT

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While every reasonable care has been taken in preparing this marketing collateral, neither this marketing collateral nor any of its contents shall constitute part of an offer or contract, and neither the Developer nor its agents are warranting the accuracy of any information contained therein nor will the Developer or any of its agents be held responsible for any inaccuracies or omissions. All statements and information are believed to be correct but are not to be regarded as or relied upon as statements or representation of facts. All information and specifications are current at the time of going to the press and are subject to such changes as may be required or approved by the Developer. All plans are not to scale unless expressly stated and are subject to any amendments which are required or approved by the relevant authorities. Renderings and illustrations are artists impressions only and photographs are only dcor suggestions and cannot be regarded as representation of facts. All areas and other measurements are approximate only and subject to final survey. The Sale and Purchase agreement embodies all the terms and conditions between the Developer and the purchaser and supersedes and cancels in all respects all or any representations, warranties, promises, inducements or statements of intention, whether written or oral made by the Developer and/or its agents which are not embodied in the Sale and Purchase Agreement.

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Appointed Agent

Continued on page 4

Th ank Youa sense of ownership in a member of the Societys work. At the very least, it eliminates a sense of detachment from what the Society aims to be doing. We also organised bi-monthly lunches with practitioners at the State Courts Bar Room so that we could interact more and have more opportunities to hear the issues that concern or terrify members. I am glad we took these steps. Communication builds trust. I have learnt that making time to hear out issues and suggestions for solutions is an important fi rst step to putting things right.

I have often wondered why our State Court practitioners do not get a hearing break in the way the High Court practitioners enjoy a breather from Court hearings during the June and December Court vacations each year. We felt that we should try to get something for our State Court practitioners and I am grateful to Presiding Judge, See Kee Oon JC, for agreeing to a one week pilot on 17 November 2014 during which no hearing would be fi xed. A number of practitioners appreciated this initiative and I am delighted that this has helped. From what I have heard, the plusses do outweigh any downside risks.

Promoting our members well-being and welfare has always been one of our important objectives. Sometimes it takes only a little effort. One incident reminded me of this. On a particularly hazy morning on 21 June 2013, the PSI score soared well past 400 into unhealthy levels. A concerned member Mr Yeh Siang Hui, sent me an e-mail suggesting that Council should do something to safeguard the health and well-being of lawyers and their staff. I was just in the vicinity of the Supreme Court when I received his message and was growing increasingly concerned with the thickness of the haze blanketing the city. The suggestion was a timely one. Immediately I was on the phone with Ambika Rajendram of the Law Society, dictating a note to be broadcast to all members urgently, requesting them to extend accommodation to one another or by extending deadlines where possible so that members and their support staff would not be unduly exposed to the hazardous haze conditions. I am told many members responded positively to the request. Quite a number called to personally thank me for the initiative, prompting me to issue a note of appreciation (July 2013 Singapore Law Gazette) to point

How time fl ies! It seemed only a short while ago when I took offi ce as President and observed at my 2013 Opening of Legal Year speech that the profession had grown by leaps and bounds to reach 4,000 (local lawyers) for the fi rst time in 2012, growing by 915 between the years 2007 and 2012, a 27 per cent jump over those six years. Up till then, that growth rate was unprecedented. Since then, it has gathered even more pace. At last count at end November 2014, the total number of local Practising Certifi cate holders stood a whisker away from 5,000. In absolute numbers, we took just two years to add another 1,000 lawyers to the profession when it took six to add the last 1,000 between 2007 and 2012.

The increase in numbers is apparently not good news to all. It has caused some concern amongst new lawyers of a possible glut in the profession. Feedback was also received from members of diffi culties encountered by some graduates in securing training contracts. Council discussed this and approved changes that will allow senior and experienced practitioners to take up to four trainees each (up from the current two) and for a practice trainee to be able to satisfy his training obligation at up to three law practices (up from the current two as well). The situation continues to be monitored by Council but as stated in my 2014 Mass Call speech, I am confi dent that Singapores and the regions vibrant economy, together with the big developments in the legal landscape, namely the recent launch of the SIMC in November 2014 and the imminent launch of the SICC, continue to hold out exciting prospects for practitioners here. The new lawyer, to my mind, has less to fear from the portends of an overcrowded legal market than the risks to personal happiness and contentment from an overcrowded life.

These little steps we took were an example of what my colleagues and I tried to do in Council to make a difference for members. It got me reminiscing about some of the things we did and tried to do for members during our time in offi ce.

Changes for Members

From the outset, we encouraged more members to join our Committees. Direct involvement in Committee work infuses

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01Presidents

Message

Singapore Law Gazette December 2014

Thank You 01Presidents Message M

Annual Dinner and Dance 2014 07A New Look for Our Old Home 16

NewsN

A Tale of Two Real Estate Agents (Lessons in Structuring an Offer to Purchase) 21 The Implied Term of Mutual Trust and Confi dence 30Jail Term as New Benchmark Sentence for Careless Driving Causing Death 34 PP v Hue An Li: A Case Commentary

FeaturesF

Pro Bono Publico The Law Society of Singapore and YLBHI Workshop 42on Advocacy Knowledge and Skills for Legal Aid Lawyers in Indonesia The Young Lawyer A Lyrical Love Affair The Bsendorfer 225 46

ColumnsC

Alter Ego Wishes of Change 49Food Shabu Shabu at Shima 51Bookshelf Costs in International Arbitration, 53by Colin Y.C. Ong and Michael Patrick OReilly

LifestyleL

Notices Professional Moves 54Information on Wills 55N 56Appointments

A

Contents

Th e Singapore Law Gazette

An Offi cial Publication of Th e Law Society of Singapore

Th e Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

Th e Council of Th e Law Society of SingaporePresident Mr Lok Vi Ming, SCVice Presidents Mr Th io Shen Yi, SC Mr Kelvin WongTreasurer Mr Gregory Vijayendran

Mr Lim Seng Siew, Ms Kuah Boon Th eng, Ms Rachel Eng, Mr Adrian Tan, Mr Steven Lam, Ms Sunita Sonya Parhar,

Ms Lisa Sam, Mr Anand Nalachandran, Mr Lee Terk Yang,Ms Usha Ranee Chandradas, Mr Chiam Tao Koon,Mr See Chern Yang, Mr Yeo Chuan Tat, Mr Paul Tan,Mr Josephus Tan, Ms Simran Kaur Toor, Mr Grismond Tien

Editorial BoardMs Malathi Das, Mr Prakash Pillai, Mr Chua Sui Tong, Mr Gregory Vijayendran, Ms Alicia Zhuang, Mr Benjamin Teo, Mr Cameron Ford, Ms Celeste Ang, Ms Crystal Ma, Ms Debby Lim, Ms Lye Huixian, Mr M Lukshumayeh, Mr Marcus Yip, Mr Rajan Chettiar, Ms Supreeta Suman, Mr Vincent Leow

Th e Law Society SecretariatChief Executive Offi cer Ms Tan Su-YinCommunications & Membership Interests Mr Shawn TohCompliance Mr Kenneth GohConduct Ms Ambika Rajendram, Mr K GopalanContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Cliff ord HangInformation Technology Mr Michael HoPro Bono Services Mr Tanguy Lim, Ms Babara Seet, Mr Choy Weng LeongPublications Ms Sharmaine LauRepresentation & Law Reform Ms Delphine Loo Tan,Mr K Gopalan

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out that it was Mr Yeh who had suggested this move and to thank members for their accommodation to fellow members and their staff.

Well-being and welfare at work also means having a comfortable and healthy work place. Many present (and former) Council members, Committee members, volunteers and visitors to the Law Societys premises have often commented on how crowded our South Bridge Road offi ce is. Our staff members appear to have perfected the art of safely navigating the crowded passageways without injuring a colleague or stepping on each others belongings. Council felt we should do better for our staff. After discussions and consultations within Council and with members, we fi nally decided to shelve any plans to acquire new premises in the near future due to the current uncertain economic and property market conditions, opting to renovate the existing premises instead. Photos of the newly (and in my view, nicely) renovated premises are found in this issue. We now have more rooms (six compared to the previous three) and an open air timber decked roof top with unobstructed views of the iconic Marina Bay Sands complex on one side and the amazing backdrop of skyscrapers rising dramatically from the banks of the Singapore River on the other.

These new facilities can be booked by members for business meetings or for personal purposes. The premises were purchased and renovated with members contributions. It is right that, as far as we can, we should allow as much of the premises to be used by the many members, as often as possible.

We also refreshed the State Courts Bar Room rather simply with new furniture, new air conditioners and a fresh coat of paint. We didnt do much because we werent quite sure how much longer the present premises were going to be available for our use, pending the completion of the State Courts Complex. The modest scale of the improvements were brought home to me after one of my guests (a non-member attending a talk/meeting there) whom I proudly invited to survey the improvements turned to me and said, But it looks as if nothing much has changed. That was no doubt an accurate and astute observation, but our members are impressed and appreciative not for the scale (or lack of it) of the renovations, but for trouble we took to refresh the Bar Room. The generous compliments continued even after I apologised at the launch of the renovated Bar Room for the choke affecting the toilet plumbing! I pulled Shawn Toh from the Secretariat aside and told him we did right by trying to make a difference there.

Initiatives for Members

We also tried to help members by supporting CPD for members as best as we could. In 2014, we introduced subsidies for attendance at some of our CPD events, particularly those events with elements of practice management and legal skills, starting with our excellent Litigation Conference and Workshop in April 2014. The response to the Conference was overwhelming; testament no doubt to the quality of the programme and the trainers we got on board. From feedback, we also realised that, unsurprisingly, the subsidies helped a great deal. Thus encouraged, we will work to increase the number of subsidised CPD events to benefi t more members from small practices in 2015 and in this regard, I am grateful for the support from Lockton, our PI brokers, for the use of funds from the Education Fund, for this purpose.

And talking about the compulsory PI scheme, the Council realises that this is, for some especially in the smaller practices, a substantial cost each year. Here is the good news. Council has been able to secure a massive 12.5 per cent premium reduction under the compulsory PI scheme for next year with further discounts for 2016, depending on our claims record. Whatever happens, there will be no increase in premiums for the next two years. There will be fantastic cost savings for all!

I also believe that more members can benefi t from opportunities from emerging markets regionally and in Asia. In October 2014, I joined SMS Indranee Rajah on a trip to Myanmar with a group of local practitioners. The response from these members to the trip was extremely positive. Another trip to Myanmar is now organised for March 2015 to follow-up on contacts made and relationships established there. In November 2014, I signed an MOU between the Society and the Guangxi Lawyers Association, followed by another MOU with the Shenzhen Lawyers Association. In late December, I will sign an agreement of friendship and co-operation with the Korean Bar Association. Friendly bar associations amongst others in Taipei, Tokyo, Hong Kong are also keen to continue to explore further collaboration and co-operation with us. We will be organising more study as well as marketing trips for our members at least to visit our friends in these jurisdictions. I believe these friendship and co-operation agreements and the trips we organise for members are useful. They allow our members to see, appreciate and consider the potential risks and benefi ts of regional work. Such work need not be the province of mid-sized and larger practices only. I know of enough lawyers in small practices doing remarkably well serving regional

Continued from page 1

04Presidents Message


clients to know that such success stories can be told of many more of our practitioners, and we should facilitate that.

At the Opening of the Legal Year 2014, I also mentioned that the Society will review contingency fees in the areas of access to justice and international arbitration and mediation matters. The Society completed its Report in July 2014. This was circulated to members, and discussed by numerous committees and at a town hall discussion with members on 20 November 2014. I am happy to note that most members, though not all, welcome changes to at least these two categories of access to justice and international dispute resolution matters. The changes signal an intent on the part of the Society to move in step with practice changes in jurisdictions elsewhere. It also signals that members are well aware of the changes taking place, and that they are prepared to embrace the changes if necessary.

I wish I can be forgiven for this uncharacteristically long message and hasten to clarify that the above is raised only to give members an idea of the simple things we tried to do to make a difference and to honour my colleagues in the Council, our volunteers on the various Committees and the staff within the Secretariat who all served with such a generous spirit. Did we succeed in everything we undertook? I do not think so. But we tried our best. There were hits and there were misses. Some members have asked me which projects or moments have stood out for me in the last two years. I can think of two. The fi rst is our involvement in pro bono.

Pro Bono

On pro bono, we have had a tremendously busy but fulfi lling year. Lim Tanguy and his pro bono team worked their guts out. We thrashed and then fl eshed out the guidelines and the structure for enhanced CLAS (Criminal Legal Aid Scheme); we increased the reach of the Community Legal Clinics (CLCs) and signed an agreement with the Mayors of all districts in Singapore to extend the CLCs to all districts in Singapore; and in September 2014 we launched the Justice for All Project as the professions contribution to the SG50 celebrations. This Project will include the CLCs and enhanced CLAS and much more. The idea is to signal the professions commitment to the cause of pro bono and to bring this message, not just to the ears of members of the public, but also the hearts of our members. We hope by this Project to raise the awareness of pro bono and stir the spirit of generosity within the profession as much as we can.

One of the highlight events of the Justice for All Project is Just Walk taking place on 10 January 2015. Details of this event were fi rst announced in the press in September 2014

together with headlines screaming that the Society aimed to raise $2m for pro bono work. We appealed to members for funds and to take part in the Walk. Members responded with a resounding yes! I am pleased to report that as at the time of this message, we have received pledges and commitments amounting to over $900,000, putting more than $1.8m into the pro bono kitty with the dollar for dollar matching offered by the Government through the Care and Share Scheme. Over 1,000 lawyers, Judges, prosecutors, in-house counsel, professors and law students have signed up to walk on 10 January 2015. It will be a rare coming together by all stakeholders of the profession in track shoes and athletic gear - for the community.

The support from members is not only generous but broad based as well. They come from those well connected to the pro bono cause, and those not so. Mrs Arfat Selvam, a past President of the Law Society, Chairperson of our Pro Bono Committee and a pillar for pro bono support of the Law Society, together with her husband contributed $50,000 to the event. One of my long-time partners at Rodyk & Davidson, Mrs Lee Ai Ming, a relative newbie to the Societys pro bono initiatives, rallied to the cause when I spoke to her about it. She raised $30,000 through her clients. Last I heard, she is still banging on tables and kicking doors for more.

Response to the event has been refl ective of the way the profession has warmed up to and supported most of Councils initiatives. Such support encourages us because it helps to know that the work of Council is not often undertaken alone. I have found out that our work is sometimes acknowledged, frequently appreciated, and almost always well supported.

Bench & Bar Games Victory at Last in 2013

And the second special project or moment for me? It has to go back to May 2013, when we seized on our home advantage and secured the Judges Cup at the 2013 edition of the Bench & Bar Games. It was quite a feeling having the Cup back after seven long losing years! But what made it even more special was the camaraderie and friendship which bound together all who took part in the Games. I recorded in my message in the June 2013 edition of the Singapore Law Gazette this observation:

What made an indelible impression on me was the sight I beheld as I surveyed the ballroom just as our CJ was handed the Judges Cup; all across the ballroom, Judges, convenors, captains and players from both sides shared tables, goodwill and laughter. And as CJ lifted the Cup, everyone cheered. High fi ves and hugs were exchanged.

05Presidents

Message


I could remember that incredible scene as if it happened only yesterday evening. For a moment then, we all celebrated the triumph of sports and we celebrated our unity; no distinction between big fi rms or small fi rms, no distinction between dispute or transactional lawyers, no distinction between old or young lawyers. We celebrated the fact that we are all lawyers trying to outdo other lawyers, not in the Courts or boardrooms, but in sports. And the fun we all had in doing so was celebrated as much as the result!

My Gratitude

I leave offi ce at the end of this year after two years as President following my decision not to seek re-election. They were two wonderful, immensely satisfying and fulfi lling years! I must say from the outset that I owe so much to the Secretariat team led by Tan Su-Yin. I am aware and am appreciative of the fact that every Director and staff member gave their all and worked as best as they could for the Society and our members. Much of their hard work is unseen, something many of us in Council and in the general membership have taken for granted. It has also been a pleasure writing these messages and I thank Sharmaine Lau and her team for their patience and excellent editorial support.

I record my deepest appreciation too to my fellow Council members, all of whom have served faithfully, many sacrifi cially, at the expense of their own precious time and convenience. I thank them for keeping faith with me and for their support.

Finally, I thank you all, the members for your support, your kind words of encouragement and from time to time, your expressions of appreciation. It has been an honour and privilege to be your President. I have not been materially enriched by the offi ce you have entrusted to me, but I have been immensely enriched by the precious friendships and wonderful memories associated with it.

I now ask that you extend to my good friend and successor Thio Shen Yi, his excellent Vice-Presidents Kelvin Wong and Gregory Vijayendran, and his team the same faith, support and friendship you extended to me and to my team the last two years.

A blessed 2015 to all!

Lok Vi Ming, Senior Counsel President The Law Society of Singapore

Th e Singapore Law Gazette Awards 2015Qualifying Period: July 2014 to June 2015In 2013, the Publications Committee of the Law Society inaugurated the Singapore Law Gazette (the Law Gazette) Awards for best feature articles.

The qualifying period for the 2015 awards is from July 2014 to June 2015 (for articles published in the Features section of the Law Gazette during this period). If you are interested in contributing an article on substantive law or a case commentary for the Features section, please write to the Publications Director, Sharmaine Lau, at [email protected].

Articles received between now till 10 May 2015 will be considered for publication in the qualifying period for the awards. However, notice should be given to the Publications Director of your interest to submit an article by no later than 15 March 2015.

Two awards may be awarded, subject to the decision of the judges and the Publications Committee: Best Feature Article and Best Feature Article by a Young Lawyer*. Articles jointly written by two or more writers will also qualify.

All qualifying articles will be judged based on the following criteria:

1. Depth of analysis, display of thought leadership and whether cited in a judgment;

2. Depth of research; and

3. Writing style.

We welcome article contributions from members of the legal profession, including practising lawyers, law academics, in-house counsel and those in the legal service. Apart from the opportunity to share your views on an area of law of interest to you, you might stand a chance to win the coveted award. If you are interested in contributing an article, write in today!

* "Best Feature Article by a Young Lawyer" is a person 35 years of age or below at the time of submission of the article.

06Presidents Message


Annual Dinner and Dance 2014

The Law Society of Singapore held its annual Dinner and Dance at Marriott Hotel on Friday, 14 November 2014.

Approximately 500 guests attended the dinner, including the Attorney-General, Judges and Judicial Commissioners of the Supreme Court as well as other distinguished guests.

The emcee for the night was our own member, Mr Adrian Tan.

At the Dinner, the C C Tan Award 2014 was conferred on Dr Gopalan Raman and the Pro Bono Ambassador Award 2014/2015 was conferred on Mr Suresh Damodara.

Other award recipients for 2014 included the following:

Volunteer of the Year Award: Large-sized law practice: Rodyk & Davidson LLP Medium-sized law practice: Anthony Law CorporationSmall-sized law practice: S T Chelvan & Company Sole-practitioner law practice: Lisa Sam & Company

Contributor of the Year Award:TSMP Law Corporation

Plaque of Appreciation: Mr Chan Leng Sun, SC, Ms Mimi Oh Kim Heoh, Mr Peter Keith Fernando and Mr Tham Lijing

Friend of the Law Society: Mr Patrick Nathan, Singapore Institute of Legal Education

Law Gazette Awards:Prof Low Kee Yang, Mr Choo Zheng Xi and Mr Fong Wei Li

Fund-raising activities to raise funds for the Pro Bono Services Offi ces upcoming initiatives namely Justice for All and Just Walk, included a silent ballot at the Dinner as well as sales of charity tables.

The Law Society would like to thank the following fi rms who purchased the Silver tables:

1. Ashurst LLP

2. Baker & McKenzie.Wong & Leow

3. Harry Elias Partnership LLP

4. Sidley Austin LLP

The Law Society would also like to thank sponsor Yamaha Music (Asia) Private Limited, our offi cial media partner The Peak Magazine and our emcee Mr Adrian Tan.

07News


Dinner and Dance

Citation for C C Tan Award 2014

It is my privilege to read the citation of the C C Tan award 2014.

For members of the profession who have had the privilege of knowing Mr Tan Chye Cheng, or C C Tan as he is fondly remembered by the Bar, they would say that he had throughout his long professional life embodied and exemplifi ed the virtues of the legal profession honesty, fair play, gentlemanliness and personal integrity.

The Council of the Law Society inaugurated the C C Tan award in 2003 in his memory and presents this award annually to a member of the Bar who exemplifi es these qualities.

I am pleased to announce that this years recipient of the C C Tan Award is Dr Gopalan Raman.

Dr. Raman completed his LL.B. in 1966 and qualifi ed as Barrister-at-Law in 1968 at Lincolns Inn. Clearly committed to lifelong learning, he obtained a Ph.D from the University of London in December 2003. He began practice in Singapore in 1969, has persevered in practice for 45 years, and is currently a Senior Consultant with KhattarWong LLP. Dr. Raman was also a Council Member of the Law Society of Singapore in 2004 and was elected Vice-President in 2005.Known for his forthrightness and candor, he has no qualms in articulating his views, regardless of the identity of the

other party. He does so however with grace, reason and respect, all in the best traditions of a senior advocate. He has a reputation of a senior lawyer possessed of magnanimity and integrity, who also happens to be the leading authority on Probate, Wills and Trusts in Singapore. I remember that during my years serving as CPD Chair, we could always count on Dr Raman, Mr Reliable, to share his knowledge by helming extensive seminars and workshops on probate for the benefi t of our members.

Dr Raman has chosen to specialize in probate practice, an area which some consider as less sexy or glamorous. Upon being asked in an interview why he found probate practice so fulfi lling, he said, with his typical clarity and empathy, that his cases offered a revelation on what motivates certain people - Greed, vindictiveness in challenging what is not challengeable and a callous indifference to the feelings of benefi ciaries inter se constitute the regular fare in probate work. (If I may be permitted a digression from this citation, Dr Raman, you seem to have a fascination with the less salubrious aspects of the human condition!)

Piercing beyond his reputation as an expert on probate law, his gentlemanly demeanour makes him eminently approachable. I also have irrefutable hearsay evidence that he does not hesitate to render assistance when requested, particularly to younger members of the Bar. A member of this Council once remarked that in his fi rst year of practice, he was assigned to defend a hopeless summary judgment application, and after he lost the hearing, opposing counsel Dr Raman took pains to speak to him to commend and compliment the effort. That encouraged a defeated newbie and made a lasting impression on him. It is Dr Ramans spirit of generosity which has motivated and continues to motivate those around him.

Ladies and Gentlemen, Dr Raman personifi es a role model for younger lawyers to aspire to (and I hope to include myself amongst them), and exemplifi es the values celebrated by the CC Tan Award.

For his personal integrity, honesty and contributions to the legal fraternity in Singapore, the Council is pleased to present Dr Gopalan Raman .with the 2014 C C Tan Award.

It is my privilege to welcome Dr Raman on stage to receive the Award, and to invite the President of the Law Society to present it on our behalf.

This citation was read by Vice-President Mr Thio Shen Yi, SC.

Vice-President Mr Thio Shen Yi, SC, reading the citation

08News


Dinner and Dance

Acceptance Speech by Dr Gopalan Raman

The Honourable Attorney-General, Judges and Judicial Commissioners, President of the Law Society, Ladies and Gentlemen.

I am privileged to be the recipient of this years C C Tan Award. It is indeed a challenging task to live up to the ideals of Mr Tan. I say challenging because in todays material world where everyone is focusing on the bottom line, it is diffi cult to balance ideals with reality.

But balance we must. To-days event is a call for pro bono work and volunteering for civic work that the society is embarked on. Despite our affl uence and belonging to the First World and a GDP anyone would be envious of, we have the disadvantaged in our society.

There is now a group of dedicated lawyers who have unstintingly given their time and labour to improve the lot of the underprivileged. These dedicated volunteers deserve our appreciation and gratitude.

There has also been a sea change in the Societys relations with the government. The government is forthcoming in extending a helping hand. The spirit of co-operation is manifest. Our bond with the Academy of Law is strong. There is a collegiate spirit between the two professional bodies although Singapore has the distinction of having two professional bodies representing the same profession.

Older members of the Bar saw something ominous when the idea of the Academy was initially mooted. It came at a time when there was ferment in the profession which led to the government amending the Legal Profession Act.

Strictures were placed on what the Society can do. Imagine a provision that the Society can only deal with legislation referred to it and that we could not comment on any law unless invited to do so. With the passing of time the anxieties we had of a takeover of the Law Societys functions by the Academy were laid to rest.

But we now have another worry. This is the proposed amendments to the Legal Profession Act under which all professional matters of both local and foreign lawyers will be brought under the aegis of the Ministry of Law. A Director of Legal Services will oversee professional matters including disciplinary actions.

I am a passionate believer in the autonomy of the Law Society. An independent Bar is a pre-requisite for an independent Judiciary. In fact we once had an AG, Dr Ahmad Ibrahim, Singapores 1st AG, who was against the nomination by the Law Minister of unelected council members. He was vetoed. Dr Ahmad Ibrahim was a lawyer worthy of that name. He brings to mind what Albert Einstein once said:

Great spirits have often encountered violent opposition from weak minds.

We do not want our fate to be in the hands of some unseen functionary who may owe loyalty to his appointor and not to the profession especially in todays legal environment where business considerations may trump professional ideals.

We have bold spirits in our midst especially among the younger members of the Bar who nurture ideals to serve society. Some have been disillusioned and chose to quit the profession and pursue careers which do not clash with their ideals. Let me send this appeal to them and to everyone else,

The future of the profession is in your hands. Rally round and realize your ideals.

It is my earnest hope that we would one day be able to translate into reality, more effectively, the objectives set out in the Professional Conduct Rules:

To maintain the Rule of Law andThe independence and integrity of the profession.

Thank you.

Dr Gopalan Raman receiving the CC Tan Award from President Mr Lok Vi Ming, SC

09News


Dinner and Dance

Emcee for the evening, Mr Adrian TanPresident Mr Lok Vi Ming, SC, giving a speech at the dinner

Mr Suresh Damodara receiving the Pro Bono Ambassador award from

President Mr Lok Vi Ming, SC

Award winners and guests (L to R): Tham Lijing, Choo Zheng Xi, Fong Wei Li, Thio Shen Yi, SC, Melvin Chan, Patrick Nathan, Lok Vi Ming, SC, Kelvin Wong, Prof Low Kee Yang, Dr Gopalan Raman, Peter Fernando, M Lukshumayeh


10News

Dinner and Dance


12News

Dinner and Dance

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14Professional Services

Invitationfor Contribution of Articles

The Singapore Law Gazette (SLGHUVMJPHSW\ISPJH[PVUVM[OL3H^:VJPL[ `HPTZ[VIL HU LK\JH[PVUHS YLZV\YJL MVY IV[OWYHJ[PZPUN SH^`LYZ HUK PUOV\ZL JV\UZLSH MVY\TMVYKLIH[LHUKH\ZLM\S YLMLYLUJLVMOPNOX\HSP[`JVTTPZZPVULKHY[PJSLZJV]LYPUNHSSSLNHSZWLJPHS[PLZ

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;OL:3.PZ[OLWYLTPLYSLNHSQV\YUHSMVYHSSSH^`LYZHUKV[OLYYLSH[LKWYVMLZZPVUHSZWYHJ[PZPUN PU :PUNHWVYL 6\Y HY[PJSLZ HYL YLHK I` YLHKLYZ PUJS\KPUNWYHJ[P[PVULYZ[OLQ\KPJPHY `[OLSLNHSZLY]PJL[OLHJHKLTPHSPIYHYPLZV]LYZLHZIHYHZZVJPH[PVUZHUKHZPNUPJHU[U\TILYVMPUOV\ZLJV\UZLSPU:PUNHWVYL

We look forward to hearing from you!

Please e-mail all enquiries, suggestions and submissions to

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Professional Services15

A New Look for Our Old Home

Over three months from 1 August to 31 October 2014, the Law Societys Secretariat headquarters at 39 South Bridge Road underwent extensive renovations. The offi ce, a four-storey shophouse, was purchased in 1998 and initially housed only about 20 staff. Over the years, as the Secretariat strength grew to 65 staff to support the Societys growing membership and increased activities, space increasingly became a challenge.

Council, after considering several options including the purchase or rental of larger premises, eventually concluded that it would be most cost effective to renovate the existing premises to provide for a more effi cient utilisation of space which could yield bigger conference and meeting rooms, two additional meeting rooms and an almost doubling of work stations.

After three months during which the Secretariat staff relocated to a serviced offi ce, the renovations were completed and we moved back on 1 November 2014. A simple launch of the renovated premises was held on 18 November 2014 with past Presidents, Council members and staff witnessing the ribbon cutting ceremony presided by President Mr Lok Vi Ming, SC. Thereafter, an open house was held for the rest of the day where all members were invited to drop in.

Said Mr Lok, There are many people I need to thank for the renewed and refreshed premises. Firstly the members, for empowering our decision to renovate the premises with many among us providing good counsel to us on this decision; the Secretariat for putting up with the inconvenience of moving out, operating from temporary premises and then moving back again, all within three months. Last but not least, I must thank Mr Kenneth Liang of Ban Soon Heng Engineering Pte Ltd; they did a marvellous job completing the entire job within a very tight time frame and accommodated changes and additions as best as they could; and to Mr Melvin Tan and Ms Karen Wong of Laud Architects, who, together with Mr Christopher Chong of Pod Design Studio, conceptualised, developed and executed the design concept with great creativity and effi ciency. Laud were runners up in the design concept for the State Courts Complex and were in high demand when we approached them to consider our renovation job. They gallantly responded to our invitation to conceptualise a design for our premises that will be nice and yield more rooms within the budget of $800,000. We were also running on a very tight time frame, but Laud took everything in stride; they succeeded in giving us more rooms, a modern and classy entrance foyer and the arty and rather expensive looking aged look of the walls which complement the shop-house structure of the premises perfectly.

The reception area looking modern and sleek

President Mr Lok Vi Ming, SC, cutting the ribbon at the launch ceremony

Conceptualising the Design Views from Our Architect, Interior Designer and Main Contractor

It was indeed a privilege to be chosen to undertake the design and renovation works for the existing Law Society premises at South Bridge Road.

Since the premises serve not only the members of the law fraternity but also the public, we sought to design a space that would be warm yet professional, exuding a sense of understated elegance.

The ground fl oor now houses a large welcome foyer where guests and members are received.

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Law Society Office Renovations

This space comprises a waiting area as well as the main reception, which was designed as a monolithic travertine block, carved out to house the signage and lighting features. This is contrasted with the simple black backdrop, made interesting by the choice of a rough-fi nish steel plate and exposed joints.

The theme of the timber laminate ceilings is carried consistently through the lift lobbies on all fl oors.

On the second storey, this ceiling feature houses a cove light that signifi es the entrance to the main conference room.

Inside the conference room, an operable wall was added, allowing a cosy corner to be created whilst maintaining a still sizeable meeting area that can house 20 persons. When the operable wall is tucked away, the conference room can easily take up to 35-40 persons for larger meetings.

The wall fi nish on the 1st and 2nd storeys are primarily made of plaster and paint, imprinted by hand, with timber strips, to create a rustic yet elegant pattern. This rough fi nish is pleasantly offset by the timber laminates used for the doors and cabinets alike. Similarly, a textured carpet was chosen to complement the walls, whilst ensuring low maintenance with its varied design.

The 3rd and 4th storeys house the main workstations of the staff, with a marked increase in the number of workstations accommodated. The separating panels of the workstations were designed to be low so that the overall space feels bright and airy.

The walls were clad with wall paper that allows a softer touch and feel to the otherwise utilitarian space.

Externally, the paint colour choices were matched to the corporate colours of the Law Society logo.

As no alterations were allowed to the facade due to conservation guidelines, the grid pattern was retained and fi nished in simple white paint, with only restricted portions highlighted with the grey and maroon tones.

Design Architect: LAUD Architects Pte LtdInterior Designer: POD Design StudioMain Contractor: Ban Soon Heng Engineering Pte Ltd

What Our Presidents Have to Say

Council has achieved much with such limited space and, Im sure limited funds, but the result is wonderful!Mr Chelva Rajah, SCPast President (1990-1992)

Im delighted to learn of the enhanced use of space to accommodate more support staff, and especially that members can also use the meeting rooms. Wow.Mr Peter Cuthbert LowPast President (1993-1994)

I have always advocated that it is preferable and important to own, and to maintain and upgrade ones home so as to spark a constant fl ow of positive energy and enthusiasm in our legal profession.

The renovated premises of the Law Society of Singapore (LSS) will, I am sure create an exciting buzz and renewed energy for the organisation and its stakeholders. More importantly, it is a reminder of the progress an important institution like the LSS has made.

The timely renovated offi ce of the LSS is a marked improvement and I am very happy for the Management and Staff, who will no doubt work well in a more conducive work environment.

How the LSS has progressed since the 1960s and over the last fi ve decades of its existence! From a humble professional organisation originally operating with only two staff members in a small room on the ground fl oor of the Supreme Court licensed to LSS with the blessings and encouragement of the then and late Honourable Chief Justice Wee Chong Jin, to what it is today. The LSS Council had a challenging time then, in terms of membership support, space, staff and fi nances. How we have progressed and faced and overcome many challenges. It is the spirit of the Bar that is most essential and crucial, and hopefully todays generation will continue to lift the spirit of LSS to greater heights. And no doubt in the next few decades we will go on to greater and more ambitious goals!

The LSS in the 1980s slowly ventured and leased a small and humble unit at Colombo Court, next to the old Supreme Court building. With the leased premises being too small as we in LSS Council progressed, we then

17News



opened up our minds to being a little more ambitious to acquire our own LSS premises, and purchased the current premises at South Bridge Road in the late 1990s. When we have our own home the spirit and passion for the Bar intensifi es.

We have come a long way and the spirit, love and affection for the Bar by its members cannot be taken for granted. All of us members, senior and new entrants must play our part and the oneness as a united family and wanting to strengthen this very important democratic institution in Singapore must be the duty and responsibility of all LSS members and not just the Law Society Council Members and the sub-committee members.

A strong Law Society must always be part and parcel of the legal profession and the legal fraternity, forever.

And I hope with the more spacious and renovated premises the members would be encouraged to be much more proactive and ensure a more vibrant LSS.Mr Chandra Mohan K. NairPast President (1995-1997)

Im delighted to see the new look for the Societys premises. Visitors will get a good fi rst impression of the Society from the well-lit and bright foyer. I especially like how the Council meeting room has been re-done. This is where the real business of the Society is done,

over long hours of deliberation, and it is important that Council members have a good environment to work in.Mr Philip Jeyaretnam, SCPast President (2004-2007)

The renovated offi ce is bright and pleasant. Space use is maximised. It is very functional but with a touch of aesthetic in the interior decor.Dr Gopalan RamanPast Vice-President (2005)

I loved the spaciousness of the design, and the practical way in which the architects had made best use of the limited space available. I am sure that the secretariat will enjoy their work much more in this new environment, and our visitors will likewise be impressed with the warm and welcoming atmosphere of our new conference room.Mr Michael Hwang, SCPast President (2008-July 2010)

We are fortunate to be the benefi ciaries of the courage of earlier leaders like the late Palakrishnan who, together with then President of the Law Society, Chandra Mohan K. Nair, took the tough and not entirely popular decision to buy premises that the Law Society can own and use.Mr Lok Vi Ming, SCPresident (2013-2014)

Guests admiring the premises Presidents, present and past

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Th e Post-Renovation Look

Work stations on the 3rd level in orange tones

The cosy Relex Lounge

The main conference room aptly named Amicus

Work stations on the 4th level in cheery yellow tones

Another meeting room sized ideally for committee meetings

The open air timber decked roof top

19News



Launch Ceremony Cum Open House

(L to R): Mr Lok Vi Ming, SC, Mr Peter Cuthbert Low, Dr Gopalan Raman and Mr Philip Jeyaretnam, SC

(L to R): Mr C R Rajah, SC, Mr Wong Meng Meng, SC, Mr Michael Hwang, SC, Mr Lok Vi Ming, SC, Mr Thio Shen Yi, SC, Mr Peter

Cuthbert Low, Mr Chandra Mohan K Nair


20News


The Option to Purchase is frequently used to initiate the sale of a property. Less frequently and therefore less understood is the Offer to Purchase and the lack of familiarity with it led to a sale breaking down and to the court case which this article discusses and extracts lessons from.

A Tale of Two Real Estate Agents (Lessons in Structuring an Off er to Purchase)

In the High Court case of Chew Ai Hua, Sandra v Woo Kah Wai and another (Chesney Real Estate Pte Ltd, third party) [2013] SGHC 12, (on appeal sub nom Woo Kah Wai and another v Chew Ai Hua Sandra and another, [2014] SGCA 41), (Chew v Woo), the defendants/appellants (the Woos) received from the plaintiff/respondent (Sandra) a written offer to take an option to purchase from them to buy their apartment. They were pleased with the price and other terms Sandra offered and issued to her an option to purchase. But when Sandra sought to exercise the option, they rejected her on the ground that she had exceeded the deadline for exercising the option and forfeited to themselves the option fee she had paid.

Sandras real estate agent had prepared for her the offer (or the Offer to Purchase) and the Woos real estate agent had prepared for them the option (or the Option to Purchase). In the ensuing litigation, both the agents testifi ed before the High Court. After hearing them, the learned Judicial Commissioner, Lionel Yee JC, observed that there might be some real estate agents who do not fully appreciate how option periods should be calculated and said, It may well be that the proper interpretation needs to be given proper dissemination in the industry.

The comment of the learned Judicial Commissioner whose judgment in all aspects was upheld by the Court of Appeal was well made but as the case shows what needs to be given dissemination in the real estate agent industry is rather more than just the method of calculating option periods. There are other principles of contract law, besides, which the real estate industry, or for that matter anyone who has to craft an Offer to Purchase or Option to Purchase, may usefully note so as not to fall into the errors that occurred in Chew v Woo.

The fi rst and foremost of these principles is that an agreement, contractually binding on the seller, to grant an Option to Purchase to the buyer arises if the following conditions are met: (i) the offeror (buyer) makes the offer to pay for and take an option to purchase; (ii) the offeree (seller) accepts the offer; (iii) consideration is furnished in the form of the Option Fee proffered to and accepted by the offeree (seller); (iv) there is suffi cient certainty with regard to the terms of the proposed sale; and (v) the evidentiary requirements of s 6 (d) of the Civil Law Act (Cap 43) are satisfi ed. This principle was set by the Court of Appeal in Joseph Mathew and another v Singh Chiranjeev and another [2010] 1 SLR 338 (Joseph Mathew v Singh Chiranjeev).

A seller who accepts an Offer to Purchase may, therefore, be ensnared in a legal bind even before the seller gets round to issuing the Option to Purchase a case of being bound by a contract before a contract. This is contrary to the mistaken notion, all too common, that despite accepting the Offer to Purchase, the seller has no contractual obligation of any sort to the buyer who made the offer until the seller has actually issued the Option to Purchase.

In Joseph Mathew v Singh Chiranjeev, the appellants, a husband and wife (the sellers) put their property on the market. While they were in India, the husband exchanged e-mails with their real estate agent in Singapore who informed him that the respondents (the buyers) had made an offer to purchase their property at a certain price and on certain other terms. She also told him that the buyers were

21Feature


requesting for an Option to Purchase to be issued on the terms offered and they had placed with her a cheque for the Option Fee in exchange for the Option to Purchase. He confi rmed to her by e-mail his and his wifes agreement to sell at the price offered and instructed the agent to bank in the buyers cheque. These e-mails were copied to the buyers. The agent then prepared the Option to Purchase and couriered it to him and his wife for them to sign. But they changed their mind about selling and declined to sign the Option to Purchase. They offered to return the Option Fee to the buyers, who rejected the offer and sued.

The sellers argued that until they signed the Option to Purchase there was no binding contract of any kind between them and the buyers. The Court of Appeal dismissed the sellers argument and decided in favour of the buyers, laying down the rule which has been mentioned above. The Court held that all the ingredients from (i) to (v) were met and this gave rise to an agreement to grant the Option to Purchase which was a fully formed contract enforceable on its own terms, independently of the Option to Purchase which might or might not, as a matter of fact, follow. Delivering the judgment of the Court, Andrew Phang Boon Leong JA said at para 19, The need to courier the Option to Purchase to the appellants for their signature was merely a necessary part of the process of giving effect to a binding agreement (to grant an option) that had already been entered into between the appellants and the respondents (emphasis added).

Joseph Mathew v Singh Chiranjeev was followed in Chew v Woo.

The Woos engaged the real estate agent named Chesney Real Estate Pte Ltd (Chesney) to market the sale of their apartment. Chesney was run by a director named Ms Cindy Lim (Cindy). Sandra was prepared to buy the apartment at the price of $920,000 and her real estate agent Mr Adrian Thoo (Adrian) held preliminary discussions with Cindy who confi rmed to him that the Woos were agreeable to the price and asked him to get his client to make an offer to purchase.

What then followed was a frenzied burst of activity, astonishingly all in the space of a week, during which a sale was done and undone and the seeds of litigation were sown:

1. 10 February 2010. Adrian prepared the Offer to Purchase which Sandra signed with instructions to give it, together with her cheque for the Option Fee, to the Woos.

2. 11 February. At Chesneys offi ce Adrian delivered the Offer to Purchase and Sandras cheque to one Ms Masila binte Kamis (Masila) who was assisting Cindy in the matter. The Offer to Purchase stipulated

that the owner of the property was to issue an Option to Purchase and deliver it to the offeror within three days (ie 4pm 13 February 2010) failing which the Offer would lapse and the option money tendered was to be refunded immediately. This tight deadline set Masila scrambling to prepare the Option to Purchase on 11 February itself. She planned for her clients to sign the Option later that day and told Adrian to return to Chesneys offi ce the next day (12 February) to collect the signed Option to Purchase from her. In the evening of 11 February at Chesneys offi ce, Mr. Woo signed the Option to Purchase, which was dated 11 February, and took delivery of Sandras cheque which he promptly banked in.

3. 12 February. Adrian was at Chesneys offi ce to take delivery of the Option to Purchase. The Offer to Purchase had a condition which said that the Option Period was 3 days, which led Masila (wrongly and fatally as will be seen) to set the Option Period in the Option to Purchase to expire on 13 February, 4pm. When Adrian saw the date he asked Masila to have the Option Period extended. Cindy was not present then, but on being informed by Masila, Cindy spoke to the Woos.

4. 13 February (Saturday). This was the eve of Chinese New Years Day.

5. Around noon. The Woos told Cindy they were not agreeable to any change. According to Cindy, she then immediately telephoned Adrian and told him accordingly. But Adrian said she had told him, in that telephone conversation, that despite the Woos decision that the Option Period was not to be expressly amended, he could take it that the Woos had agreed to extend the deadline to three working days, which would expire on 19 February.

6. Late afternoon. By prior arrangement with Masila, Adrian met up with her at a bus stop in Toa Payoh and took the signed Option to Purchase from her.

7. 6 pm. Adrian handed the Option to Purchase to Sandra.

8. 14 February (Sunday). This was Chinese New Years Day.

9. 15 February (Monday). This was a Chinese New Year public holiday.

10. 16 February (Tuesday). This was also a Chinese New Year public holiday.

22Feature


11. 17 February (Wednesday). To exercise the Option to Purchase, Sandra was to sign and return it with a deposit to the Woos solicitors before the Option Period expired. Having been advised by Adrian that the Option Period was three working days, Sandras solicitors were at the Woos solicitors offi ce to deliver the signed Option to Purchase and the deposit but the offi ce was still closed to business.

12. 18 February (Thursday). Sandras solicitors were at the Woos solicitors offi ce again to exercise the Option. The offi ce was open but the Woos solicitors refused to accept delivery on the ground that the Option Period had already lapsed.

13. Both parties fought much of the case over the factual issue whether the Woos had at all times insisted that the expiry date of the Option was to be as stated on the face of the Option which was 4pm 13 February or whether they had relented and authorised Cindy to tell Adrian that he could take it that the expiry date was changed to three working days thereby effectively extending it to 19 February. But the Court led them back to the earlier stage when the Offer to Purchase was made and accepted.

The operative part of the Offer to Purchase read as follows:

We the undersigned hereby offer to purchase [the Property] at the purchase price of S$920,000/- subject to the following terms and conditions:

1. Option Period: 3 days

2. Completion Period: 12 weeks

3. The sale of [the Property] is subject to signing the Option to Purchase.

4. Within three (3) Days (i.e. by 4p.m. 13th February 2010), the Owner of [the Property] must either accept or reject this offer failing which this offer shall lapse. If rejected, the option money tendered herewith will be refunded to us within the time stipulated above without any interest thereon and thereafter neither party shall have any claim against each other. If accepted, the Owner shall deliver to the undersigned the Option duly signed by the Owner within the stipulated time above.

Enclosed herewith [cheque] for the amount of S$9,200/- made payable to Woo Kah Wai being Option Money for the purchase of [the Property].

Following Joseph Mathew v Singh Chiranjeev, the Court ruled that when the Woos accepted this Offer to Purchase, they bound themselves to an agreement with Sandra to grant her an Option to Purchase in conformity with the terms set out in her Offer to Purchase and that the remaining issue was whether the setting of the Option Period to end at 4pm on 13 February breached the agreement.

The Woos argued against this, submitting that the Offer to Purchase was in effect an offer to purchase the property subject to contract and they had accepted it on that basis. Therefore, there was no contract until they had actually signed and released the Option to Purchase and the only issue was whether Sandra had breached it in failing to exercise it within the Option Period.

To argue as the Woos did is to fail to understand that the Offer to Purchase which Adrian and other real estate agents regularly use is not an offer to buy the property but an offer to buy an option for the offeror to buy the property. (See the Court of Appeal, per Chao Hick Tin JA at Para 47). The true nature of the beast tends to be masked by the label Offer to Purchase.

23Feature


The learned Judicial Commissioner therefore rejected the Woos submission, and went on to fi nd that the Woos had breached the agreement. The Option to Purchase did not conform in one material aspect Masila informed Adrian to collect the signed Option from her on 12 February. The Offer to Purchase stipulated that the Option Period was to be 3 days. Yet the Option required Sandra to exercise the Option to Purchase by 4pm on 13 February. Since the Option was to be in Sandras hands on 12 February at the earliest, she would have only a day or so and not three days, if she had to exercise the Option by 4pm of the next day. This clearly did not conform to the stipulation in the Offer for three days. The learned Judicial Commissioner applied what he described as the general rule that in the absence of clear evidence that the parties have intended otherwise, the Option Period does not start on the date the Option to Purchase is signed but when it is delivered or at the very earliest when the prospective buyer or the agent for the prospective buyer is notifi ed that it is available for collection. The Woos did not comply with this rule and were, therefore, in breach of the agreement to grant the Option to Purchase.

From the foregoing, we can see that what ought to have been an occasion for mutual celebration by the Woos and Sandra they because they had managed to dispose of their apartment at the price they wanted and she because she had managed to acquire an apartment she liked at a price she was satisfi ed was a reasonable price to pay descended swiftly into a distressing and destructive game of forfeit for the lack of draftsmanship. What then, are the lessons we can learn from Chew v Woo to apply when drafting an Offer to Purchase? Some of them are as follows.

1. Get the names of the owners right The Offer to Purchase in Chew v Woo was addressed

to only Mr Woo when Mrs Woo was a joint owner. This mistake was perpetuated by Masila when she drafted the Option to Purchase. Since only Mr Woo was named as the issuer of the Option to Purchase, the learned Judicial Commissioner noted that in theory (at least) Sandra could have failed to enforce the Option against Mrs Woo in view of s 6 (d) of the Civil Law Act (Cap 43). Section 6(d) effectively provides that no action can be brought against a person on a promise or agreement under a contract for the sale or other disposition of immovable property (or any interest in such property) unless the promise or agreement or a note or memorandum of such promise or agreement is in writing and signed by the person or the persons authorised representative. Citing Joseph Mathew v Singh Chiranjeev, his Honour observed that an Option to Purchase creates in favour of the option holder an

equitable interest in the land the contract before him was of such a nature and, therefore, needed to comply with s 6 (d).

As it turned out, Adrian was saved an embarrassment because the fact that Mrs Woo was not named in the Option and did not sign it was not an issue in the case Mrs Woo had chosen not to plead it and as his honour pointed out, citing the authority of Midlink Development Pte Ltd v The Stansfi eld Group Pte Ltd [2004] 4 SLR (R) 258, s 6(d) must be expressly pleaded to be deployed in legal proceedings.

It has to be said, though, that the circumstances disclosed at the hearing show that Sandra might not necessarily have failed in her claim, or been without other remedies against Mrs Woo had the latter pleaded a defence based on s 6 (d). But certainly, if Mrs Woo had pleaded the defence, Sandra would have had an unnecessary additional hurdle to surmount as illustrated by Tay Joo Sing v Ku Yu Sang [1994] 3 SLR 719 and Mookka Pillai Rajagopal v Khusvinder Singh Chopra [1996] 3 SLR (R) 210, two of the several cases where the issue of missing signatories was vigorously litigated.

To avoid this potentially sticky problem of the missing co-owners signature, the drafter of the Offer to Purchase could, and should unfailingly, carry out an online title search, a facility provided by Singapore Land Authority for as little as $18 (at the time of writing), and obtain instantaneously, among other things, the owner or owners names.

2. Set reasonable and practical deadlines The Offer to Purchase required the Woos to issue the

Option to Purchase by 4pm 13 February 2010, which gave Chesney just a day or so to get out the Option to Purchase, have it signed by the Woos and delivered to Adrian. This diffi cult and stressful deadline apparently caused Chesney to be so confused as to wrongly set Sandra the same ridiculously short time span to exercise the Option to Purchase. To anyone who gave it half a thought, 13 February was a bad day to choose to do business on because it was a Saturday when most offi ces, including Government departments and law fi rms, would have closed their doors for the weekend and even more so because this particular Saturday was the eve of Chinese New Years Day, a day when those who would not customarily close for business on a Saturday would probably have done so to begin the festivities for the Chinese New Year.

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3. Be precise about dates The Offer to Purchase stated that the Option Period

was three days. The statement three days set the Court the task of having to decide from which date the countdown of the three days ought to start, and if the last day fell on a public holiday, what then?

The learned Judicial Commissioner rejected Sandras submission to read it as three working days. His honour construed it to read three calendar days which, in the circumstances of the case, meant that the last day fell on 15 February (which as we have seen was a public holiday) and asked would it be an implied term that the expiry date was extended to the fi rst working day? He did not feel compelled to decide the issue because he was deciding the case on another ground. However, the Court of Appeal (per Chao Hick Tin JA at para 86) observed that in such a case, the Woos would have been bound to ensure that their solicitors offi ce was open on 15 February for Sandra to exercise the Option to Purchase, notwithstanding that it was a public holiday.

This would have imposed on not only the Woos solicitors but also Sandras solicitors the inconvenience of having to open their offi ces when the rest of the community had taken the day off to enjoy the Chinese New Year public holidays. It seemed futile to set 4pm, Saturday as Sandras deadline to exercise the Option because if she really was minded to exercise the Option on or just before 4pm that day, the Woos would not have been able to cash in her cheque until the next working day. No reason was given and there seemed none for the parties to chase this quick fi re schedule without any regard for the interests of the solicitors and their staff. Probably insuffi cient or no thought was given to this matter by the agents involved.

The problem would have been avoided if Adrian had checked his calendar and stated a specifi c date which was a working day rather than state generally 3 days. If not a specifi c date, he could alternatively have written 3 working days and defi ned the term working day as a day that is not a public holiday or a Saturday. Expressly excluding Saturday is necessary to prevent unnecessary dispute since Saturday is not universally adopted as a public holiday. Careful drafters do this.

4. State the deposit payable on the exercising of the Option to Purchase

An essential feature that makes an Option to Purchase what it is, is that to exercise the Option to bring into existence a sale and purchase agreement, the Option

holder has to pay a deposit to the seller. Joseph Mathew v Singh Chiranjeev is an illustration of this. The sellers agent told the sellers that the buyers had asked for an Option to Purchase to be issued in the fi rst instance and that they had offered to buy the property at the price of $506,000 and on the following other terms:

1. Option Fee: One per cent.

2. Three weeks to exercise the Option to Purchase ie from [stated date] to [stated date].

3. Next 9% will be paid to your Lawyer by [stated date].

4. Completion date: 10 weeks after [stated date].

The Offer to Purchase in Chew v Woo whilst identifying the property and stating the offered price, the Option Fee, the Option Period and the completion date of the sale was silent on the payment of a deposit and its amount. This omission caused the Court of Appeal, on its own initiative, to ask whether the Offer to Purchase was suffi ciently certain in all its terms to be capable of being converted, on acceptance by the Woos, into a contractual agreement to grant an Option to Purchase.

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The Court said, For a valid contract for the grant of an OTP (ie Option to Purchase) to arise, the parties, the property, the purchase price as well as the amount payable upon the purchasers exercise of the OTP to be granted must be agreed on there is genuine doubt as to whether the OTP was suffi ciently complete to give rise, upon its acceptance, to a valid contract for the grant of an OTP without stipulating the sum that was payable upon the exercise of the OTP to be granted. Without such a stipulation in a contract for the grant of an OTP, there would be uncertainty as to what sum of money the vendor may require from the purchaser upon the latters exercise of the OTP(emphasis added).

The Option to Purchase issued by the Woos provided that on exercising the Option, Sandra was to pay a deposit equivalent to fi ve per cent of the sale price (inclusive of the Option Fee paid.) Although she had not said anything about the payment of a deposit in her Offer to Purchase, Sandra was completely happy to go along with that. On the Woos part, they, too, did not seek to make an issue of the fact that the Offer to Purchase had been silent on the amount of the deposit Sandra was willing to pay. The Court concluded from this that the parties, probably infl uenced by the industry norm, had at all times shared the same assumption that a fi ve per cent deposit (inclusive of the Option Fee) was payable. Given this common understanding (albeit unspoken) between the parties, there was never any question of any uncertainty. The Court, therefore, decided to let the issue rest.

But the Court went on to warn, We would, however, caution that our conclusion on this issue is tied to the specifi c facts of this case. If contracts for the grant of an OTP become more prevalent and if a similar dispute is argued more comprehensively before this court in a future case, there may be a different answer to the question of whether the absence of a term in a contract for the grant of an OTP (or a document setting out the terms of such a contract) stipulating the amount payable on the exercise of the OTP to be granted is fatal to the completeness of that contract.

5. Ask for longer rather than shorter Option Period The Offer to Purchase stated that the Option Period

was to be three days. In inviting the Owner to give his own client just three days to exercise the Option, Adrian was doing her a great disfavour. Adrian testifi ed that he meant three working days (which the Court did not accept.) But even then, the industry standard for an Option Period is two to three weeks and not

to take advantage of this was a missed opportunity. The decision to ask for only three days or even three working days when a longer period would probably have been agreed by the Owner was seemingly due to a lack of appreciation why a buyer might prefer to secure an Option to Purchase in the fi rst instance rather than entering straightaway into a bilateral sale and purchase agreement. The Option Period is time that can be fruitfully used by the buyer to make preliminary arrangements for fi nancing for the purchase, including getting the cash to pay for the deposit payable on the exercising of the Option to Purchase, and by the buyers solicitors to make important investigations on the property. If the buyer and the solicitors are satisfi ed with the results well before the expiry of the Option Period, the buyer may proceed to exercise the Option the buyer is not compelled to wait until the last day of the Option Period to exercise the Option. It therefore serves the buyer to have a longer Option Period rather than a shorter one.

6. Offeror - Prepare the Option to Purchase In most cases, the parties proceed immediately to settle

an Option to Purchase or even an outright bilateral sale agreement. In these cases, the seller drafts the Option to Purchase or the bilateral sale agreement for the buyers consideration. This is a convention, a sensible one based on practical reasons and convenience but nevertheless a convention at best, not an iron-clad rule, and there are occasionally instances where the buyer prepares the Option or the agreement for the sellers consideration.

In an Offer to Purchase situation, there is no such convention. On the contrary, in a situation similar to Chew v Woo, the buyer would be well advised to seize the initiative to prepare the Option to Purchase to accompany the Offer to Purchase. This is because in as much as the seller becomes contractually bound to issue an Option to Purchase to the buyer once the seller accepts the buyers Offer to Purchase without qualifi cation, equally the buyer is contractually bound to accept the Option as issued by the seller (so long as the Option conforms to the terms stated in the Offer) on pain of having the Option Fee forfeited otherwise.

Therefore, the buyer who leaves things half unsaid, impliedly yielding the right to the seller to decide on the rest of the terms of the sale, puts himself or herself at peril. To illustrate the potential problems this could cause, we return to Chew v Woo.

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a. In her Offer to Purchase, Sandra did not state the sum of the deposit she had in mind to pay on the exercise of the Option and left it to the Woos to decide. As it turned out, the Woos were restrained and required a deposit of only fi ve per cent of the sale price (including the Option Fee) and this suited Sandra. As the Court of Appeal observed, this concurrence might have had something to do with the industry norm.

But what if the Woos had required a 10 per cent deposit?

In Joseph Mathew v Singh Chiranjeev, where the negotiations took place in mid- 2007, the parties agreed to a 10 per cent deposit. So fi ve per cent for a deposit is by no means the one and only percentage that the industry sees. In fact, before 2005, 10 per cent was pretty much the norm because most buyers would have to pay at least 10 per cent of the sale price with their own cash. In July 2005, by a combination of rule-changes by the Monetary Authority of Singapore and the Central Provident Fund, a buyer of private residential property, if eligible, could take a 90 per cent loan and pay the remaining 10 per cent through a combination of at least fi ve per cent in cash and the remainder with CPF. Since, in theory, the buyer had to pay only fi ve per cent with the buyers own cash, the trend in the industry began to shift toward the taking of a fi ve per cent deposit. Though there are suggestions that the 10 per cent deposit could face extinction, it has not quite gone the way of the dodo yet and indeed could acquire a new lease of life whenever it is a rabid sellers market.

b. In not addressing the issue of the deposit, Sandra also left open the question whether the balance four per cent (which together with the Option Fee made up the deposit) was to be paid to the Woos or to the Woos solicitors to hold as stakeholders pending completion. The Woos were, therefore, at liberty to provide that the four per cent was to be paid directly to them. In the circumstances of the case the four per cent was not paid for the reasons we have seen earlier, but if Sandra had paid the deposit to the Woos (and not to their solicitors to hold as stakeholders), it would have meant that the Woos could have used the money as they liked subject to their refunding it if the sale was aborted or to their crediting Sandra with it if the sale was completed. There was no suggestion that in this hypothetical situation, if the sale was aborted the Woos would

not have been able to refund the money to Sandra. In fact, in the majority of cases the sellers would be able to discharge their liability to make the refund.

But speaking generally, it is conceivable that a seller could become insolvent even during the relatively short time between the date of the sale agreement and the completion date; if a stubborn seller is based outside Singapore, it may take costly court proceedings before the buyer can recover the money; if the property is mortgaged to the hilt, there would be no surplus to satisfy the buyers lien over the property for the deposit. In each of these sets of circumstances the buyer might not be able to recover the deposit quickly without incurring costs or worse, might not be able to recover the deposit at all.

It is always a concern for the buyers solicitor to see, for the fi rst time, the non-stakeholding provision when shown by the happy but unsuspecting client the signed Option to Purchase secured without the benefi t of the solicitors input. The buyers sol

Documents

Singapore Law Gazette (December 2014)