1 The plaintiff, Chiap Seng Productions Pte Ltd, is in the business of supplying and installing scaffolding and seats for spectator events, such as the Formula 1 (“F1”) night race held in Singapore. ¹ The defendant, Newspaper Seng Logistics Pte Ltd, is in the business of newspaper recycling and manufacturing. ² It was formerly known as Hup Eng Wooden Cases Co Pte Ltd (“Hup Eng”). ³

2 The dispute arises out of a Service Agreement signed between the plaintiff and the defendant on 1 November 2019 (“the Service Agreement”). Under the Service Agreement, the plaintiff and the defendant agreed that the plaintiff would store its assets (“the Assets”) at 33 Defu Lane 6, Defu Industrial Park A, Singapore 539381 (“the Premises”) for a monthly fee payable to the defendant. The defendant was at the material time occupying the Premises. It had leased the Premises from the main landlord, JTC Corporation (“JTC”). ⁴

3 On 24 September 2020, after the plaintiff was in arrears of its monthly fees, the defendant seized all of the Assets which were stored within the Premises. Although the plaintiff’s business was adversely affected by the restrictions imposed due to the COVID-19 pandemic, it was prepared to pay the arrears if the defendant had informed the plaintiff of the correct Statements of Accounts (“SOAs”). On 5 October 2020, the defendant sold the Assets for scrap at a price of $42,800 (inclusive of Goods and Services Tax (“GST”)) to Yew Huat Scaffolding & Construction Pte Ltd (“Yew Huat”). ⁵

4 The plaintiff claims against the defendant for damages arising out of the defendant’s intentional disposal of the Assets which were stored at the Premises. ⁶ The plaintiff claims for restitution, payment and/or recovery of the monies for which the Assets were sold. ⁷ The plaintiff also claims against the defendant for theft and/or criminal misappropriation. This was on the grounds that the defendant knew and had actual knowledge that the plaintiff did not consent to the sale of the Assets. ⁸ Based on the above, the plaintiff seeks, inter alia, the following: ⁹

5 The defendant counterclaims against the plaintiff for the sum of $6,750, this being the balance of the outstanding arrears due from the plaintiff after taking into account the sale proceeds of the Assets. ¹⁰

6  The defendant wanted to sublet part of its premises to a tenant. It engaged a real estate agent from ERA Realty Network Pte Ltd to seek for a tenant. On 23 October 2019, the defendant accepted the Letter of Intent (“LOI”) from the plaintiff. In the LOI, the defendant agreed to lease 10,400 square feet of the Premises to the plaintiff to store the Assets comprising scaffolding for multi-tiered seating galleries and for the F1 night race. The LOI indicated that the rental was for a period of 24 months at $10,400 per month, and also indicated that the plaintiff was to pay two months of security deposit, ie, $20,800. ¹¹ Subsequently, the plaintiff and the defendant executed and entered into the Service Agreement on 1 November 2019. The main terms of the Service Agreement are as follows: ¹²

(a) The plaintiff was allowed to use a portion of the Premises measuring about 10,400 square feet (“the Service Area”) for a period of 12 months from 1 November 2019 to 31 October 2020. The duration of the lease in the Service Agreement was changed from 24 months as stated in the LOI to 12 months.

(b) The monthly service fee was $10,400 per month plus GST (“the Service Fee”).

(c) The use of the Premises was for storage.

(d) Should JTC, the main landlord of the Premises, disallow the Service Agreement or the use of the Service Area by the plaintiff for storage, the Service Agreement shall be deemed terminated and the plaintiff is to vacate the Premises within the time set out by JTC.

7 Following the signing of the Service Agreement, the plaintiff moved the Assets comprising scaffolding for multi-tiered seating galleries and for the F1 night race to the Service Area. The other occupier of the Premises was the defendant. ¹³

8 On 3 April 2020, the Singapore Government announced the “Circuit Breaker” measures, which lasted from 7 April 2020 to 1 June 2020. ¹⁴ Large audience events were prohibited during this period. This resulted in a significant fall in the plaintiff’s income. ¹⁵ The COVID-19 (Temporary Measures) Act 2020 (Act 14 of 2020) (“the COVID-19 Act”) was passed during this period to support businesses like the plaintiff, which were adversely affected by the COVID-19 pandemic and the “Circuit Breaker” measures.

9 On 1 December 2019, the defendant issued an invoice for $10,400 to the plaintiff for the use of the Service Area. ¹⁶ On 26 December 2019, Mr Lau Poh Seng (“Mr Lau”) purchased a 49% share in the defendant and became the defendant’s managing director. ¹⁷

10 In January 2020, before the COVID-19 pandemic, the parties agreed to reduce the Service Area to 9,000 square feet. ¹⁸ Correspondingly, the Service Fee was also reduced to $9,000 per month with effect from 1 January 2020. ¹⁹ However, this reduction was only reflected in the invoices issued by the defendant from June 2020 onwards. The invoices issued by the defendant to the plaintiff from January 2020 to May 2020 are as follows:

11 On 6 February 2020, the defendant sent a letter to the plaintiff demanding payment of the Service Fees for January and February 2020 amounting to $22,256 including GST (“the 1st LOD”). ²⁵ The 1st LOD was received by the plaintiff at its office. ²⁶

12 On 13 February 2020, the plaintiff paid $10,400 to the defendant according to the invoices issued by the defendant for January and February 2020. ²⁷

13 The defendant issued the following SOAs to the plaintiff from April to June 2020:

(a) On 30 April 2020, the defendant issued its SOA as at 30 April 2020 in the sum of $54,912. ²⁸

(b) On 9 June 2020, the defendant issued its SOA stating that the outstanding amount owed by the plaintiff was $57,150. ²⁹

14 On 1 June 2020, the defendant issued two credit notes of $1,400 and $5,992 to offset the overcharged amount from January 2020 to May 2020 (“the Credit Notes”). ³⁰

15 On 29 June 2020, the defendant’s solicitors sent a letter of demand to the plaintiff for arrears in rental from December 2019 to June 2020 amounting to $57,150 (“the 2nd LOD”). ³¹ The 2nd LOD was also faxed to xxxx3492. ³²

16 The defendant issued the following invoices to the plaintiff from July 2020 to September 2020:

17 The plaintiff paid the following amounts to the defendant from July 2020 to August 2020:

(a) On 15 July 2020, the plaintiff paid the defendant two months of the Service Fees totalling $18,000 plus GST. ³⁶

(b) On 19 August 2020, the plaintiff paid the defendant one month of the Service Fee amounting to $9,000 plus GST. ³⁷

18 On 31 August 2020, CHBC Integrated Builders Pte Ltd (“CHBC”), a representative of JTC, issued a letter addressed to the defendant informing the defendant that its subletting of the Premises to the plaintiff was not authorised and that there were unapproved structures present on the Premises (“the CHBC Letter”). ³⁸

19 On 9 September 2020, the defendant’s solicitors sent the plaintiff a letter of demand for $37,120 in arrears as at June 2020 (“the 3rd LOD”). ³⁹ The 3rd LOD was faxed to xxxx3492. ⁴⁰ In the 3rd LOD, the defendant’s solicitors also mentioned that JTC had found that the defendant’s lease of the Premises to the plaintiff was unapproved and requested that the plaintiff vacate the Premises by 14 September 2020. ⁴¹ On 15 September 2020, the defendant’s solicitors sent the plaintiff a reminder copy of the 3rd LOD. ⁴²

20 On 18 September 2020, the defendant’s solicitors sent the plaintiff a letter of demand for the sum of $37,120 in arrears (“the 4th LOD”). In the 4th LOD, the defendant’s solicitors also mentioned that JTC had found that the defendant’s lease of the Premises to the plaintiff was unapproved and that JTC requested that the plaintiff vacate the Premises by 22 September 2020. ⁴³

21 On 24 September 2020, the Assets began to be transported out of the Premises. ⁴⁴ This was observed by Ms Isabel Tan (“Ms Tay”), the plaintiff’s accounts executive, who had gone down to the Premises attempting to make payment with a cheque for $20,000. ⁴⁵ Ms Tay spoke to a man in pink, whom Mr Lau identified in Court as “Patrick”, one of the defendant’s managers (“Mr Patrick”). ⁴⁶ However, before the trial, Mr Lau, had in his answer to the plaintiff’s interrogatories, denied knowing “the man in pink ” to whom Ms Tay had referred to. ⁴⁷ Mr Patrick was supervising the removal of the Assets. He told Ms Tay that based on the 4th LOD, the defendant had the right to sell the Assets as they had not been removed by 22 September 2020. ⁴⁸

22 On 25 September 2020, the defendant’s solicitors sent the plaintiff a letter informing the plaintiff that the defendant had removed the Assets from the Premises and sold them. ⁴⁹

23 From 25 September 2020 to 30 September 2020, the plaintiff sent numerous e-mails to the defendant containing, inter alia, the plaintiff’s creditor statement and a letter informing the defendant that it had unlawfully trespassed against the plaintiff’s property. ⁵⁰ On 29 September 2020, the plaintiff also arranged for its employees to retrieve the remainder of the Assets from the Premises, but Mr Patrick refused to allow them to do so. ⁵¹ On 30 September 2020, the plaintiff’s employees witnessed a transport company removing the remainder of the Assets from the Service Area. ⁵²

24 On 30 September 2020, the defendant issued its SOA as at 30 September 2020 showing: ⁵³

25 It is undisputed that the defendant failed to do the following when it removed the Assets and sold them for scrap:

(a) The defendant did not obtain any Court order for the disposal of the Assets. ⁵⁴

(b) The defendant did not carry out an inventory of the Assets before disposing of them. ⁵⁵

(c) The defendant did not carry out any valuation of the Assets before disposing of them. ⁵⁶

26 On 18 February 2021, the Inland Revenue Authority of Singapore (“IRAS”) issued a letter to the defendant with the title “NOTICE OF CASH GRANT AND RENTAL WAIVER (RENTAL RELIEF FRAMEWORK)”, informing the defendant that it would be issued a cash grant amounting to $5,760 (“the Notice of Cash Grant”). The Notice of Cash Grant named the plaintiff as a subtenant eligible for a two-month rental waiver. ⁵⁷

27 The plaintiff submits that the Service Agreement is a tenancy agreement, or at the very least a license agreement. ⁵⁸ The plaintiff relies on IRAS’ direction for the plaintiff to pay stamp duty on the Service Agreement. This direction was given following the plaintiff’s application under the COVID-19 Act for a waiver of two months’ rental. ⁵⁹ On 30 October 2020, the plaintiff was also informed by the Registrar of Assessors that its application for rental waiver fell within Part 2A of the COVID-19 Act. Part 2A of the COVID-19 Act prohibits landlords, ie the defendant, from taking enforcement actions described in s 19G(2) of the COVID-19 Act against the prescribed tenant-occupier (“PTO”), ie, the plaintiff. ⁶⁰

28 Further and/or in the alternative, the plaintiff submits that the Service Agreement being a tenancy agreement is governed by the Distress Act (Cap 84, 2013 Rev Ed) (“Distress Act”). This is because IRAS considers the Service Agreement to be a tenancy agreement. ⁶¹ The defendant, therefore, breached the Distress Act by: ⁶²

29 The plaintiff maintains that it did not install the illegal structures. However, before the trial started, the defendant alleged that the plaintiff had erected the “illegal structures” highlighted by CHBC when the latter inspected the Premises. ⁶³

30 The plaintiff claims that the 2nd LOD, the 3rd LOD and the 4th LOD issued by the defendant were defective on the following grounds:

(a) The plaintiff did not receive or have sight of the 2nd LOD dated 29 June 2020. The plaintiff also denies that the amount outstanding as at 29 June 2020 was $57,150 as alleged in the 2nd LOD. ⁶⁴

(b) The amount claimed by the defendant in the 3rd LOD dated 9 September 2020 is $37,676. ⁶⁵ This is erroneous. The plaintiff submits that the correct amount following the reduction in the Service Area and Service Fees should be $36,350. ⁶⁶ The 3rd LOD also demanded vacant possession by 14 September 2020. However, the plaintiff only received the 3rd LOD on 15 September 2020 when the plaintiff’s staff were allowed to return to the office to work in accordance with the COVID-19 restriction measures imposed by the Government. ⁶⁷ The defendant’s counsel wrongly faxed the 3rd LOD to xxxx3492 when the plaintiff’s correct fax number was and is xxxx2991. ⁶⁸

(c) The 4th LOD dated 18 September 2020 was not sent to the plaintiff’s active managing director, Mr Heng Lee Kiang (“Mr Heng”). ⁶⁹ The 4th LOD was addressed to Mr Heng but the address stated therein was one Mr Heng Nge Guan’s registered address. ⁷⁰ Mr Heng Nge Guan was the plaintiff’s other registered director. He was, however, not active in the running and management of the plaintiff. ⁷¹ Thus, the plaintiff was unaware that it had to vacate the Premises before 22 September 2020 as it only had sight of the 4th LOD on 24 September 2020, ie, past the deadline of 22 September 2020. ⁷²

31 The plaintiff further argues that the defendant fabricated “an artificial situation and artificial excuse” to dispose of the Assets with no regard to the interests of the plaintiff. The plaintiff also argues that the defendant “was disingenuous in sending letters of demand which the [d]efendant knew or ought to have known would most probably be missed”. ⁷³ The defendant was also uncontactable or refused to accept payment of outstanding rental arrears when the plaintiff attempted to do so. ⁷⁴

32 Finally, the plaintiff submits that the defendant had unilaterally sold off the Assets without authority. ⁷⁵ The defendant also failed to itemise the Assets such that the plaintiff had no information to ascertain if the price at which the Assets were sold ($40,000) was a fair price. ⁷⁶ The plaintiff claims that as at 30 September 2020, the Assets were worth $3,153,118.64. ⁷⁷

33 Alternatively, the plaintiff submits that, in late June to early July 2020, the defendant’s manager, Mr Alex Ang (“Mr Ang”), called Mr Heng and requested a payment of only two months of rental fees. This payment was made by the plaintiff soon thereafter. ⁷⁸ Given that the Circuit Breaker measures were in force at the time, the plaintiff was under the impression that the payment of two months of rental fees was sufficient for the defendant not to enforce any rights or penalties against the plaintiff. ⁷⁹ Accordingly, the defendant represented that the payment of two months of rental fees was satisfactory and/or the defendant is estopped from acting against the plaintiff and the Assets. ⁸⁰

34 The defendant submits that the Service Agreement was a mere contract for the provision of services and was not a lease or licence for the use of the Service Area. First, the defendant argues that it did not have proprietary or ownership rights in the Premises. Therefore, the defendant could not have granted a lease or licence to the plaintiff to use the Service Area. ⁸¹ Second, the defendant avers that the parties had fully intended to enter into a mere agreement for services and not a tenancy agreement and/or licence agreement for the use of the Premises. ⁸² The defendant argues, among others, that the Service Agreement is not a lease agreement as the plaintiff did not have exclusive possession of the Premises. ⁸³ For example, the defendant had a right to conduct random inspections of the Premises without giving notice and the plaintiff was forbidden from displaying any signboards and notices under any circumstances. ⁸⁴

35 The defendant avers that the Service Agreement does not fall within the ambit of the Distress Act or Part 2A of the COVID-19 Act. ⁸⁵ The defendant also argues that the plaintiff’s conduct removes it from seeking protection under s 19G of the COVID-19 Act. Section 19G of the COVID-19 Act stipulates that the moratorium only applies in relation to “non-payment of rent”. However, the defendant’s termination of the Service Agreement was not only due to the plaintiff’s non-payment of the Service Fees, but also due to the installation of illegal structures found on the Premises as stated in the CHBC Letter. ⁸⁶

36 The defendant further submits that it was contractually entitled to dispose of the Assets due to the plaintiff’s repudiation of the Service Agreement under Clause 3(cc) of the Service Agreement. ⁸⁷ The defendant argues that the plaintiff breached the Service Agreement as follows: ⁸⁸

37 Finally, the defendant avers that the plaintiff may not rely on estoppel to establish its claim as (a) the plaintiff has not properly pleaded its case on estoppel; and (b) in any event, there was no actionable representation made. ⁸⁹

38 The main issues are as follows:

(a) Was the Service Agreement, in substance, a tenancy agreement between the plaintiff and the defendant?

(b) If the Service Agreement was a tenancy agreement, was the plaintiff protected under the COVID-19 Act from enforcement actions taken by the defendant as its landlord?

(c) If the Service Agreement was a tenancy agreement, was the defendant’s intentional disposal of the Assets in breach of the Distress Act?

(d) If the defendant’s intentional disposal of the Assets was wrongful either under the COVID-19 Act or the Distress Act, what is the appropriate remedy to be awarded to the plaintiff?

(e) Regarding the defendant’s counterclaim, is the defendant entitled to the sum of $6,750 being the balance outstanding arrears due from the plaintiff?

39 I shall confine my findings to the issues pertaining to liability as the parties have agreed to bifurcate and defer the issues relating to quantum of damages after the Court has ascertained the issues on liability.

40 The LOI is an important document as it is the first instrument agreed between the parties and it discloses their intention and purpose in entering into a legal relationship. The LOI clearly shows that the parties intended to enter into a landlord-tenant relationship. First, the LOI expressly refers to the plaintiff as the “Tenant” and the defendant as the Landlord. Mr Keh Eng Hong (“Mr Keh”), the majority shareholder of the defendant, ⁹⁰ signed the LOI as the defendant’s representative. He affixed the defendant’s then-named Hup Eng’s company stamp beside his signature under the “Signature of Landlord” field on the second page of the LOI. ⁹¹ The LOI makes no mention of any “Service Fee”. Instead, it refers to payment of a “Monthly Rental”. ⁹² Numerous other references to a landlord-tenant relationship are also present: ⁹³

(a) Clause 1 of the LOI provides that the “lease shall be for a term of 24 months”.

(b) Clause 8 of the LOI confers a “rent-free fitting-out period” to the “Tenant”, ie the plaintiff.

(c) Clause 10 of the LOI expressly refers to a “Tenancy Agreement” and provides that the “cost of stamping [the tenancy agreement is] to be borne by the Tenant”.

41 It is patently clear from the language of the LOI that the LOI was intended by the parties to reflect a landlord-tenant relationship. The defendant’s attempt to suggest that the LOI did not create a landlord-tenant relationship is completely misconceived. Further, the fact that the LOI is specified to be “Subject To Contract” ⁹⁴ does not change the inference that the parties had intended to create a landlord-tenant relationship.

42 The Service Agreement may not have explicitly referred to the parties as landlord and tenant unlike in the LOI. But the substance of the Service Agreement reflects that of a tenancy agreement. The defendant argues that if the plaintiff intended for the Service Agreement to be a tenancy agreement, it was always open to the plaintiff to insist that it be reworded to follow the LOI. ⁹⁵ However, when the Service Agreement was signed, the plaintiff thought the Service Agreement was, in substance, a tenancy agreement as expressed in the LOI which was a template completed and filled in by the defendant’s real estate agent. The Service Agreement was also prepared by the defendant. The plaintiff was unaware of the sinister motive of the defendant in calling it a Service Agreement to avoid seeking approval from JTC to sublet the Service Area to the plaintiff.

43 The focus of an analysis in identifying the nature of an agreement is one of substance and not form. From a reading of the Service Agreement, it is, in substance, a tenancy agreement. There are tell-tale signs that the Service Agreement was a tenancy agreement. This is most clear from the manner in which the Service Agreement describes the subject matter in question, as well as the nature of the obligations. For instance, the Service Area was referred to as the “rental premises” (see para 3(d)), “Demised Premises” (see para 3(l)), “DEMISED SERVICE AREA” (see para 3(n)), with no unauthorised subletting (see para 3(t)). Further, the plaintiff’s responsibilities in paragraphs 3(l), (m), (o), (q)–(s) and (aa) and the defendant’s duties in paragraphs 4(a) and (b) suggest that the Service Agreement was in substance a tenancy agreement.

44 Further, it looks like the only service provided by the defendant in the Service Agreement was to allow the plaintiff to use the Service Area for the storage of the Assets. The physical arrangement at the Premises pursuant to the Service Agreement also echoes this finding. I shall deal with the specific clauses of the Service Agreement and the physical arrangement at [98]–[107] below. Even taking the defendant’s case, ie that this was a service agreement, I do not see the defendant providing any form of service other than an area for storage. Indeed, the counsel for the plaintiff points out in his oral closing submissions that the only purported “service” that the defendant offered was to provide a space for the plaintiff to store the Assets, and no other forms of benefits were conferred. ⁹⁶ As I informed the counsel for the defendant (Ms Lim) in her oral closing submissions that it would be to overstretch and do violence to the common-sensical understanding of a “service agreement” if the Court were to accept the defendant’s position: ⁹⁷

45  Be that as it may, the evidence and the witness’ testimony adduced at trial support my finding that the Service Agreement was, in substance, a tenancy agreement.

46 The starting point is to note that the plaintiff would not know whether the Premises was leased to them legally or otherwise. This is because the plaintiff was given the impression that the defendant was the landlord in the LOI. The defendant was described categorically as the landlord in the LOI and Mr Keh, in his personal capacity, was not a party in the LOI. The cover page of the Service Agreement refers to the defendant and the plaintiff as parties to the Service Agreement. Similarly, Mr Keh was not a party to the Service Agreement. Mr Keh signed the Service Agreement on behalf of the then-named defendant, Hup Eng. This is consistent with Ms Tay’s answers given in court during her cross-examination. Specifically, Ms Tay was questioned by counsel for the defendant (Ms Lim) on why she inserted Mr Keh’s name as the landlord of the Premises instead of the defendant’s when she submitted the plaintiff’s application for rental relief to the Ministry of Law. In response, she said that Mr Keh represented the defendant in signing the Service Agreement: ⁹⁸

Therefore, from the plaintiff’s perspective, it is clear that the plaintiff viewed the defendant as its landlord and Mr Keh as the defendant’s representative.

47 Further, Mr Lau had given inconsistent evidence during cross-examination by counsel for the plaintiff (Mr Loh) as to whether the Service Agreement was a tenancy agreement. Initially, Mr Lau admitted that the plaintiff was paying “rental” and stated multiple times that the Service Fees and rental fees were one and the same: ⁹⁹

48 However, he later changed his evidence that the Service Agreement was not a tenancy agreement: ¹⁰⁰

49 From the above exchanges, it is clear that Mr Lau vacillated repeatedly in his evidence on the central issue of this Suit: were the parties in a landlord-tenant relationship? Mr Lau accepted that the Service Agreement and a tenancy agreement were one and the same where it suited him, ie, as the defendant would get paid either way. However, Mr Lau adamantly denied that the Service Agreement and a tenancy agreement were the same where it would disadvantage the defendant, ie, where it would mean the defendant was in breach of its main lease agreement with its landlord, JTC. Mr Lau’s inconsistent evidence on this central and critical issue was plainly unsatisfactory.

50 It can be inferred from the evidence that Mr Lau accepted that there was a tenancy agreement. Although the contract was termed as the Service Agreement, in reality, it was in fact a tenancy agreement. The defendant thought that by calling it a Service Agreement instead of a tenancy agreement, it could overcome JTC’s prohibition against subletting the Premises without approval from JTC. However, it is clear from the language of the LOI that the plaintiff and the defendant were tenant and landlord respectively. The characterisation of the agreement as a Service Agreement was simply to conceal from JTC that the defendant was subletting to the plaintiff without JTC’s approval. I shall elaborate on this below.

51 The defendant argues that it was not JTC’s tenant of the Premises ¹⁰¹ and, therefore, had no authority to grant a lease or licence to the plaintiff for the plaintiff’s use of the Service Area. ¹⁰² Accordingly, the Service Agreement is not a lease agreement. ¹⁰³ The defendant’s case is three-fold.

52 First, the defendant avers that the joint tenants of the Premises were Mr Keh and his wife, Mdm Tan Chwee Gnoh (“Mdm Tan”). ¹⁰⁴ Mr Keh and Mdm Tan are also reflected as joint tenants of the Premises in the Singapore Titles Automated Registration System (“STARS”). ¹⁰⁵ The title search on the Premises, which the defendant relies on, reads as follows: ¹⁰⁶

53 On the face of the title search on the Premises, it states that Mr Keh and Mdm Tan held the Premises as joint tenants and were the registered proprietors of the Premises. Counsel for the defendant emphasised in her closing submissions that this status, ie, that Mr Keh and Mdm Tan were the registered proprietors of the Premises, has remained unchanged since 2001 to date.

54 The defendant, thus, argues that, according to s 164(3) of the Land Titles Act 1993 (2020 Rev Ed) (“LTA”), the STARS title search constitutes prima facie evidence that, as between 27 June 2001 and 23 May 2022, it was Mr Keh and Mdm Tan, and not the defendant, who were the registered proprietors of the Premises. ¹⁰⁷

55 Therefore, since November 2019, the plaintiff must have known that the defendant was not the landlord of the Premises and that accordingly, the defendant could not grant a tenancy or licence for the Premises. ¹⁰⁸ The defendant also argues that the plaintiff was aware that Mr Keh was the true owner of the Premises and not the defendant, as the plaintiff had stated the landlord of the Premises to be “Keh Eng Hong” when it submitted its rental details form to the Ministry of Law for rental relief. ¹⁰⁹

56 Second, the defendant argues that since the STARS title search shows Mr Keh and Mdm Tan to be the registered proprietors of the Premises, it follows that there could not have been an assignment of a valid leasehold interest to the defendant. Accordingly, the defendant would not have been able to grant a lease or licence to the plaintiff. ¹¹⁰

57 In support of its case that the assignment of the leasehold for the Premises was invalid, the defendant, during the trial, introduced email correspondence between the defendant’s solicitors and JTC, along with other signed documents between the defendant and JTC. These documents are as follows:

58 The defendant refers to the STARS title search and submits that Mr Keh and Mdm Tan were listed as the Premises’ joint tenants (see [53] above). The defendant contrasts this to the documentary evidence, which shows that Mr Keh and Keh Woon Ping were the ones who executed the assignment to the defendant. ¹¹⁵ Keh Woon Ping was not a registered proprietor of the Premises as shown in the STARS title search. Accordingly, the defendant argues that the purported assignment by Mr Keh and Keh Woon Ping to the defendant is “ineffective and legally impossible to pass any proprietary rights to the defendant”. ¹¹⁶

59 Finally, and following from the argument that there was no proper assignment of any proprietary rights in the Premises to the defendant, the defendant argues that the agreement between the parties can only be a mere contract for the provision of storage services on the Premises, and not a lease or licence for the use of the Premises. In support of this proposition, the defendant refers the Court to Vinodh Coomaraswamy J’s observations in the High Court decision of Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd [2014] 2 SLR 1342 (“Ritzland”) at [63] which states as follows:

60 According to the defendant, the proposition laid down by Coomaraswamy J in Ritzland is that there is a difference between a mere contract conferring only personal rights that may appear to be in the character of a lease or licence, and an actual lease or licence that was granted by the proper owner of the land which may confer proprietary rights. ¹¹⁷ Indeed, counsel for the defendant emphasised, in her oral closing submissions, the distinction which Coomaraswamy J drew in Ritzland between a contractual right and a proprietary right. ¹¹⁸ This distinction, in her submissions, means that if the defendant was not the actual owner of the Premises, it could not have granted any leasehold interest to the plaintiff. ¹¹⁹ It also follows that the defendant could also not have permitted the plaintiff to use the Premises under a licence. She says, however, that this would not preclude the parties’ contractual rights under the tenancy agreement from being recognised and enforced. ¹²⁰

61 The plaintiff submits that the documentary evidence shows that the defendant was, at all times, a tenant of JTC. ¹²¹ In particular, counsel for the plaintiff clarified in his closing remarks that the STARS title search is irrelevant. This is because the lease as indicated on the STARS title search was for 30 years, and since the lease was recorded to have commenced on 1 December 1978, it would have expired on 1 December 2008. Further, the defendant had renewed the lease agreement with JTC. ¹²² The plaintiff further argues that, if indeed the defendant is not a tenant of JTC in respect of the premises, then JTC would not have offered the defendant an extension of the lease from 1 December 2018 to 30 November 2023. ¹²³ The fact that the defendant continued to pay rent to JTC amounting to around $16,000, in the plaintiff’s submission, strengthens the view that the defendant was a tenant of JTC. ¹²⁴ Finally, counsel for the plaintiff stressed in his oral closing submissions that the defendant has admitted, in its first set of unamended pleadings, that JTC was the landlord and it was the lessee. ¹²⁵

62 Counsel for the plaintiff also made the point in his oral closing submissions that there was an evidential gap between December 2008 when the initial lease recorded on the STARS title search ended and December 2018 when JTC offered the defendant an extension of the lease. He submits that if the defendant seeks to maintain its position that Mr Keh and Mdm Tan remained JTC’s tenants in respect of the Premises, the onus is on them to adduce documentary evidence stating as such. In the absence of this, counsel for the plaintiff submits that the defendant’s position should not be accepted. ¹²⁶

63 Accordingly, the plaintiff submits that the defendant continues to maintain a proprietary interest in respect of the Premises, out of which it could carve a sublease to be granted to the plaintiff. In so far as the decision of Ritzland is concerned, I understood counsel for the plaintiff as making the submission that Coomaraswamy J’s observations which I have stated at [59] above, are obiter in nature. This is because Ritzland concerned an application for summary judgment and the simple issue was whether the defendant in that case had showed that it had raised a triable issue, such that unconditional leave ought to be granted to the defendant in that case to proceed to trial. ¹²⁷

64 The arguments raised above by the defendant, in so far as they rely entirely on the STARS title search to show that Mr Keh and Mdm Tan were the lessees of the Premises vis-a-vis JTC in 2019, are completely misconceived. This last-minute defence is decisively rebutted by the contemporaneous evidence. It is clear on the face of the evidence that the defendant was indeed JTC’s tenant of the Premises. Accordingly, the defendant possessed a proprietary right in respect of the Premises which it could carve out or sublease to the plaintiff. Thus, the defendant cannot rely on Ritzland to argue that there was no lease or licence as it lacked the ability to grant a lease or licence.

65 At the outset, I reproduce s 164(3) of the LTA, which reads as follows:

66 I note that while s 164(3) of the LTA states that such Land Titles Registry searches constitute “prima facie proof of all matters contained in or entered on any instrument” [emphasis added], that is all it is – prima facie proof. Nothing in s 164(3) of the LTA states that the information contained in such instruments is final, conclusive or irrebuttable. I accept that the matters contained in such Land Titles Registry searches may be rebutted if the evidence available before the Court shows otherwise. Therefore, even though the STARS title searches may constitute prima facie proof that legal interest in the Premises vested in Mr Keh and Mdm Tan, this may be rebutted by the evidence available before the Court. The objective contemporaneous evidence and the in-court testimony of the defendant’s sole witness, Mr Lau, contradicts the information as stated in the land titles searches on the Premises shown in STARS, ie, that Mr Keh and Mdm Tan were the registered lease proprietors of the Premises.

67 The land titles searches on the Premises as shown in STARS state that the lease duration of the Premises granted by JTC to Mr Keh and Mdm Tan is for a period of 30 years. The lease commenced on 1 December 1978 and thus would have expired on 1 December 2008. Hence, it is erroneous and misleading for the defendant to submit that this STARS title search on the Premises indicates that Mr Keh and Mdm Tan were still the lessees (vis-à-vis JTC) of the Premises in 2019 when the plaintiff and the defendant entered into the Service Agreement. Unfortunately, the defendant fails to raise this important point in its written submissions – that the STARS title search is silent as to whether Mr Keh and Mdm Tan were still the lessees of JTC in 2019.

68 The defendant’s reliance on the 30-year lease which expired in 2008 is therefore completely irrelevant to this case. There is clearly an evidentiary gap in the STARS title search as to the lease status of the Premises with JTC between 2 December 2008 and 2019. In fact, the other objective contemporaneous evidence clearly indicates that JTC had leased the Premises to the defendant in 2019.

69 First, the main lease with JTC as attached to the STARS title search defined Hup Eng Wooden Cases Company as the lessee. ¹²⁸ It is not disputed that Hup Eng Wooden Cases Company was the previous lessee of the Premises before the assignment of the lease to the defendant. In any event, this put to rest the defendant’s claim that Mr Keh and Mdm Tan were joint tenants and that Hup Eng Wooden Cases Company, and hence the defendant, had no legal interest in the Premises to sublet. On the contrary, the evidence shows that Hup Eng Wooden Cases Company, as the lessee of the Premises, had sufficient proprietary interest in the Premises. When Hup Eng Wooden Cases Company assigned the lease to the defendant ¹²⁹ under its previous name, Hup Eng Wooden Cases Company’s proprietary interest in the Premises would likewise have been assigned to the defendant. Second, the defendant admitted that it leased the Premises to the plaintiff. The defendant’s previous solicitors informed the plaintiff in the 3rd LOD and the 4th LOD that “the lease of the Premises to to [sic] [the plaintiff] is without approval” [emphasis added]. ¹³⁰ Third, in the Notice of Cash Grant, IRAS stated “the property owner” of the Premises to be the defendant and the defendant’s subtenant as the plaintiff. ¹³¹ These went uncorrected and unchallenged by the defendant. ¹³² I shall elaborate further on the Notice of Cash Grant at [93]–[97] below. Fourth, the defendant’s company stamp, which bore its then-name Hup Eng, is affixed next to Mr Keh’s signature in the LOI. ¹³³ This shows that Mr Keh signed and entered into the LOI on behalf of the defendant. During the trial, counsel for the defendant also accepted that Mr Keh had entered into the Service Agreement “in the capacity of the defendant”. ¹³⁴ Fifth, the CHBC Letter is addressed to the “Managing Director” of the defendant and refers to the Terms of Agreement of Lease signed between the defendant and JTC. ¹³⁵ The CHBC letter was not addressed to Mr Keh and Mdm Tan. Hence, JTC leased the Premises to the defendant and not Mr Keh and Mdm Tan. Mr Lau does not dispute this. ¹³⁶

70 In fact, during cross-examination by counsel for the plaintiff (Mr Loh), Mr Lau confirmed that the defendant is the tenant of the Premises as it had leased the Premises from JTC: ¹³⁷

71 Mr Lau then changed his evidence and averred that Mr Keh was the tenant or “owner” in his words and had allowed the defendant to use the Premises: ¹³⁸

72 However, when questioned further, Mr Lau admitted that the defendant had “illegally sublet” the Premises to the plaintiff: ¹³⁹

73 In my view, Mr Lau’s responses in cross-examination are germane. First, Mr Lau confirms that the defendant is the tenant, vis-a-vis JTC, of the Premises. Second, and more pertinently, Mr Lau’s Freudian slip discloses the defendant’s true knowledge that it was not allowed to sublet without the approval of JTC. Implicit in this is the admission that the defendant is a lessee of the Premises with respect to JTC. If this were otherwise, and if indeed the defendant does not have a valid lease, Mr Lau would not have acknowledged that the subletting of the Premises to the plaintiff without JTC’s approval was illegal. This showed that Mr Lau understood that the substance of the plaintiff’s and the defendant’s relationship was one of a landlord and tenant. It follows, therefore, that the defendant must have a valid proprietary interest. His inconsistent and feeble attempts to refute this were futile.

74 From the above, it is clear that the defendant had rented the Premises from JTC and, therefore, had a proprietary interest when it sublet a portion of the Premises to the plaintiff. Indeed, even in her oral closing submissions, the counsel for the defendant was unable to refer to any objective or reliable documentary evidence to show that the leasehold interest remained with Mr Keh and Mdm Tan in 2019. Yet the defendant urges the Court to draw the inference that Mr Keh and Mdm Tan were the lessees of the Premises in 2019 and not the defendant. The evidence is totally against the drawing of this inference. ¹⁴⁰

75 I now refer to the defendant’s argument on the invalidity of the assignment of the leasehold interest to the defendant. I emphasise that the defendant’s argument on the invalidity of the assignment is premised entirely on the leasehold interest remaining with Mr Keh and Mdm Tan, such that the Assignment Acceptance which was executed by Mr Keh and Keh Woon Ping would be defective as only Mr Keh and Mdm Tan could have executed the assignment.

76 I shall begin by reiterating, as I held above at [65], that the STARS title search only constitutes prima facie proof as to title. Given that the defendant had rented the Premises from JTC and in the absence of any evidence that the leasehold interest remained with Mr Keh and Mdm Tan after 2008, the assignment was not defective. On the contrary, my finding that the assignment was valid is fortified for the following reasons.

77 First, JTC had, in a letter dated 4 December 2018, offered to extend the lease of the Premises from 1 December 2018 to 30 November 2023 to Hup Eng Wooden Cases Company, prior to the assignment to the defendant in January 2019. ¹⁴¹ The defendant, Hup Eng Wooden Cases Company and JTC subsequently discussed, and eventually secured an assignment of the leasehold interest to the defendant as evidenced by the Assignment Acceptance. ¹⁴² This showed that the offer for the extension of the lease for the Premises was accepted. Indeed, Hup Eng Wooden Cases Company must have had extended its lease with JTC, before JTC would agree to the assignment. Second, the Assignment Acceptance specifically states that Mr Keh and Keh Woon Ping executed the Assignment Acceptance in their capacity as directors, “[f]or and on behalf of” the defendant as the assignee, and in their capacity as partners for Hup Eng Wooden Cases Company as the assignor. ¹⁴³ Further, it is crucial to note that JTC had in fact agreed to the assignment of the lease. ¹⁴⁴ This would not have been the case if the leasehold interest which JTC has granted was defective. Third, the fact that the CHBC Letter is addressed to the “Managing Director” of the defendant and refers to the Terms of Agreement of Lease signed between the defendant and JTC supports the view that there was a proper assignment of the leasehold interest to the defendant. Finally, the fact remains that the defendant paid JTC a rent of $16,000 per month for the lease of the Premises for the year of 2020, as Mr Lau confirmed in cross-examination. ¹⁴⁵ This would not have been the case, if the defendant genuinely believed that it did not have any proprietary interest. Indeed, counsel for the defendant could not offer any satisfactory response when queried on this point. ¹⁴⁶

78 The evidence, therefore, shows that there was a valid assignment of the leasehold interest of the Premises to the defendant. I cannot accept the defendant’s suggestion that the Court should infer that there was a defective proprietary right arising from the allegedly defective assignment.

79 Finally, I do not accept that the High Court’s decision in Ritzland supports the defendant’s case. In that case, the plaintiff had leased a plot of land from the head lessor for a period of three years, with an expectation that it would be able to renew the master lease for two more consecutive terms of three years each. The plaintiff duly renewed the master lease for two subsequent terms for a total of nine years. The second master lease that the plaintiff executed was for the term of January 2011 to January 2014. During the tenure of the second master lease, on February 2012, the plaintiff and the defendant entered into a sublease for the premises for a duration of 1 April 2012 to 31 March 2015. Crucially, this sublease extended beyond the tenure of the plaintiff’s second master lease. The plaintiff brought a summary judgment action against the defendant for unpaid arrears. In resisting the plaintiff’s summary judgment action, the defendant raised several possible defences, one of which was that the sublease was “bad in law” as the plaintiff “did not have a leasehold title to [the premises] out of which it could carve the sublease granted to the defendant [over the premises]” (Ritzland at [59]).

80 Coomaraswamy J dismissed part of the summary judgment application on the basis that the defendant was able to show the existence of triable issues owing to some of the defences raised (Ritzland at [8]). However, in so far as the defendant’s defence was that the plaintiff did not have a valid leasehold out of which it could carve the sublease to the defendant, Coomaraswamy J rejected this defence. The master lease was not defective, nor did it impose any restriction on the duration for which a sublease could be granted (Ritzland at [60]–[61]).

81 Similarly in the present case, given that the defendant had a valid proprietary interest out of which it could carve a sublease for the plaintiff, I do not think that the defendant has a lack of sufficient title. Accordingly, Coomaraswamy J’s observations at [63] of Ritzland would not apply to the present case.

82 In any event, I observe that it may be possible for the facts of the present case to accommodate a tenancy by estoppel. In Ritzland, Coomaraswamy J, rendered the following observations on the doctrine of tenancy by estoppel at [67] and [68] as such:

83 Coomaraswamy J also observed that the common law doctrine of tenancy by estoppel is consistent with s 118(1) of the Evidence Act 1893 (2020 Rev Ed) (“EA”), and that both operate in tandem (at [65] and [89]):

84 Applying s 118(1) of the EA, Coomaraswamy J found that the defendant in Ritzland was precluded from denying the plaintiff’s title to the demised premises (at [90]–[91]).

85 In the present case, given my findings above in relation to (a) the manner in which the defendant had given the plaintiff the impression that the defendant had the requisite leasehold interest (at [43]–[46] above); and (b) the circumstances surrounding the assignment of the leasehold interest to the defendant (at [67]–[77] above), it is likely that the defence of tenancy by estoppel may be made out. However, counsel for the defendant had argued that this was not pleaded by the plaintiff. ¹⁴⁷ Accordingly, I say no more on this point.

86 Lastly, I should also point out that the first time the defendant raised this point, ie, that it is not the tenant of the Premises vis-à-vis JTC and had no authority to lease out the Premises, was at the start of the trial. The defendant did not raise this point in its pleadings filed before trial, or at any other time since the Suit was commenced in late 2020. Counsel for the defendant sought to argue that this point was raised in response to the plaintiff’s late amendments to its Statement of Claim on the eve of the trial. ¹⁴⁸ However, this claim is patently incongruous with the substance of the defence and the defendant’s admissions in the latest version of its Defence (Amendment No. 4). I shall now elaborate. The defendant’s argument that it is not the tenant of the Premises in the first place would go to the heart of its defence against the plaintiff’s claim for wrongful disposal of the Assets. If this was indeed the true state of affairs, the defendant would have raised it at the first opportunity and not during the trial itself. Further, the defendant admits to the following:

(a) In the latest version of its Defence (Amendment No. 4), the defendant admits to being “the [p]laintiff’s direct landlord of the Premises”. ¹⁴⁹

(b) In the defendant’s Opening Statement, the defendant admitted that it “was at the material time the tenant of the Premises and the master landlord of the tenant was Jurong Town Council [sic]”. ¹⁵⁰

(c) In the 2nd Agreed Statement of Facts, the parties acknowledge that the LOI described the defendant and the plaintiff as landlord and tenant respectively. ¹⁵¹

87 It was also not put to Mr Heng when he took the stand whether he was aware the defendant did not have a legal interest in the Premises and/or that the defendant had no authority to lease out the Premises. ¹⁵²

88 If the defendant now claims that it did not have the proprietary interest to sublet the Service Area to the plaintiff, why did it represent to the plaintiff and its own ERA housing agent that it had the proprietary interest in 2019 to sublet the Service Area? Furthermore, the defendant signed the LOI and the Service Agreement, which was in reality a tenancy agreement, with the plaintiff.

89 In these circumstances, the defendant’s attempt to deny that it was the landlord of the Premises (vis-à-vis the plaintiff) and the tenant of the Premises (vis-à-vis JTC) is factually unsustainable. On the contrary, I find that for all intents and purposes, the defendant conveyed to the plaintiff that it had the authority to lease a portion of the Premises to the plaintiff on payment of a monthly rental.

90 The defendant’s argument that the Service Agreement was not a tenancy agreement is decisively rebutted by IRAS’s determination that the Service Agreement was a tenancy agreement.

91 First, on 2 October 2020, the plaintiff applied for a determination by the Registrar of Assessors that it was entitled to a waiver of two months’ rental fees under the COVID-19 Act. Ms Tay, the plaintiff’s employee in charge of the accounts, made the application to IRAS and she submitted the LOI as a supporting document. IRAS requested the plaintiff to submit the Service Agreement for its consideration. The Service Agreement was accordingly sent to IRAS. On 1 December 2020, IRAS sent an email to the plaintiff. In that email IRAS considered the Service Agreement to be a tenancy agreement and required it to be stamped. ¹⁵³ The relevant portions of the email read as follows: ¹⁵⁴

92 The plaintiff, however, had stamped the LOI which indicated the tenancy was for 24 months. Thus, the plaintiff paid the stamp duty and penalty on the basis that it was for a lease for two years. The total payment came to $1,996. ¹⁵⁵ Subsequently, the plaintiff realised that it had overpaid the stamp duty as the rental term was only for a period of 12 months as reflected in the Service Agreement. ¹⁵⁶ Ms Tay testified that on 8 April 2021, the plaintiff forwarded the Service Agreement to IRAS and received a refund of one year’s stamp duty fees. ¹⁵⁷ The email from IRAS at [91] clearly shows that IRAS accepted the Service Agreement to be a valid tenancy agreement.

93 Second, on 18 February 2021, IRAS sent the Notice of Cash Grant to the defendant. The Notice of Cash Grant confirmed that: ¹⁵⁸

94 Annex 1 of the Notice of Cash Grant explicitly named the plaintiff as the “Eligible Tenants/Sub-Tenants for Rental Waiver of Up to 2 months”. ¹⁵⁹ The defendant accepted the Notice of Cash Grant and did not write to IRAS to correct this or to reject the cash grant. ¹⁶⁰ That being the case, the defendant cannot now claim the Notice of Cash Grant identifying the plaintiff as an eligible tenant/subtenant to be erroneous. ¹⁶¹ That the Notice of Cash Grant expressly identifies the plaintiff as an eligible tenant/subtenant for rental waiver also decisively negates Mr Lau’s claim that the cash grant was meant as a rebate for the rental payable from the defendant to JTC. ¹⁶² And crucially, the defendant’s acceptance of the Notice of Cash Grant also cuts against its claim that the Service Agreement was merely a contract for services.

95 It is clear from the above that the Government authorities considered that the Service Agreement was a tenancy agreement and that accordingly, the plaintiff was protected under the COVID-19 Act. The defendant has not provided cogent reasons to raise doubts as to the findings of these authorities. In fact, Mr Lau testified that he accepted the findings of the authorities that the Service Agreement was a tenancy agreement. The COVID-19 Act was enacted to help entities like the plaintiff who had suffered significantly due to the restrictive measures implemented by the Government, which were aimed at protecting the people of Singapore from the contagious and deadly coronavirus. Indeed, this was confirmed by the Minister for Law Mr K Shanmugam in his Speech when he introduced the COVID-19 Act for debate in Parliament (see Singapore Parliamentary Debates, Official Report (7 April 2020) vol 94 at col 130):

96 When Mr Lau was asked during cross-examination whether he thought the Government authorities could have made a mistake in disbursing money to the defendant, he denied the possibility. However, when put on a spot, he claimed that the authorities were incorrect in naming the plaintiff as the defendant’s subtenant: ¹⁶³

97 Mr Lau’s attempt to cast aspersions on the accuracy of IRAS’ determination speaks volumes. If the defendant did not view the plaintiff as its subtenant at the time of the Notice of Cash Grant on 18 February 2021, the logical reaction would have been to write to IRAS to clarify the error. This was not done. The evidence clearly weighs in favour of a finding that there was a tenancy agreement. The defendant’s feeble attempt to deny this is implausible.

98 In NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd and another [2018] 2 SLR 588, the Court of Appeal held at [33] that “the two distinctive features of exclusive possession are (i) the exclusory power of the occupier, and (ii) the occupier’s immunity from supervisory control” (citing Tan Sook Yee, Tang Hang Wu & Kelvin F K Low, Tan Sook Yee’s Principles of Singapore Land Law (LexisNexis, 3rd Ed, 2009) at para 17.38).

99 The defendant maintains that there was no tenancy agreement as the plaintiff did not have exclusive possession of the Service Area due to, inter alia, certain clauses in the Service Agreement, namely: ¹⁶⁴

(a) Clause 3(h) conferred on the defendant a right to conduct random checks of the Premises to ensure that the plaintiff was not using illegally hired workers on the Premises. Clause 3(h) also conferred on the defendant an entitlement to terminate the Service Agreement with immediate effect if such illegally hired workers were found on the Premises. The defendant argues that, according to Re Tan Tye, deceased; Tan Lian Chye v British & Malayan Trustees Ltd [1965–1967] SLR(R) 226 (“Re Tan Tye”), the inclusion of such a clause in the Service Agreement means that the Service Agreement “clearly did not grant exclusive possession to the [p]laintiff and the Service Agreement cannot be deemed to be a tenancy”. ¹⁶⁵

(b) Clause 3(i) prohibited the plaintiff from making structural or other alterations or additions to the Premises without the prior consent of the defendant.

(c) Clause 3(k) forbade the plaintiff from allowing any person to reside or sleep on the Premises.

(d) Clause 3(o) forbade the plaintiff from displaying any signboards, notices, etc, under any circumstances.

100 In my view, the presence of these clauses does not necessarily mean that the agreement was not a tenancy agreement. Rather, such clauses could also be inserted into a tenancy agreement. I do not agree with the defendant that Re Tan Tye stands for the proposition that the inclusion of a clause like Clause 3(h) in the contract necessarily means that the parties intended there to be no exclusive possession and thus it was not a tenancy agreement. The Federal Court in Re Tan Tye observed at [14] that it is “established law that the relationship between the parties is determined by the law and not by the label which parties to a contract choose to put on it.” The ultimate question is one of substance, ie, what was the substance of the parties’ relationship as intended when they signed the Service Agreement?

101 The only “service” provided by the defendant in the Service Agreement was the permission to use a space of 10,400 square feet which was subsequently reduced to 9,000 square feet for the storage of the plaintiff’s Assets. This agreement between the parties granting the plaintiff an exclusive use of the said space means that the agreement is, in substance, a tenancy agreement. In fact, Mr Lau testified that when he became the managing director in December 2019, he knew that the Service Agreement was in reality a tenancy agreement and he raised this issue with Mr Keh, the other director and majority shareholder. Mr Lau was concerned as he knew that JTC would not permit subletting of the Premises. Mr Keh assured him that it was alright as it was not called a tenancy agreement but a Service Agreement. Hence, from the very beginning the term “Service Agreement” was used to mask what was really a tenancy agreement. That was why when JTC, through CHBC, ¹⁶⁶ accused the defendant of subletting to the plaintiff, Mr Lau did not write to JTC to explain that it was not subletting and that the Service Agreement was not a tenancy agreement. In fact, Mr Lau accepted the finding of JTC that the plaintiff was its subtenant without question. I reproduce the relevant portion of the transcript where Mr Lau testified as described: ¹⁶⁷

102 The evidence that surfaced during the trial showed that, for all intents and purposes, the plaintiff was granted exclusive possession over the Service Area. During cross-examination on 25 May 2022, Mr Lau stated multiple times that the Service Area was separated from the rest of the Premises by a gate or fence which could be locked by the plaintiff. The plaintiff could also separately enter or leave the Premises as they wished: ¹⁶⁸

103 On 26 May 2022, Mr Lau backtracked on his position and claimed that the Service Area was not separated from the rest of the Premises by a fence: ¹⁶⁹

104 Evidently, Mr Lau vacillated significantly in his evidence on whether the Service Area was separated by a fence. He unequivocally confirmed in court twice on 25 May 2022 that the Service Area was separated from the rest of the Premises by a locked gate and a fence. On 26 May 2022, however, Mr Lau changed his evidence and alleged that there was no fence. Be that as it may, although Mr Lau changed his evidence that there was no fence, he said that the plaintiff’s use of the 9,000 square feet compound was demarcated and the plaintiff was to keep within that compound for his exclusive use. Mr Lau also admitted that he could not enter the Service Area: ¹⁷⁰

105 The plaintiff’s Service Area was further enclosed with a separate gate which would be locked by the plaintiff. This clearly shows that the plaintiff had exclusive use of the rented compound and further, that it had exclusory power and immunity from supervisory control from the defendant.

106 The defendant attempted to camouflage the lease agreement as a “Service Agreement” and included the clauses at [99] above to mask the true nature of the Service Agreement which was a tenancy agreement. This was deliberately done by the defendant with the hope of circumventing the prohibition against subletting the Premises in its main lease with JTC and to avoid being detected by JTC for subletting the Premises without approval. Essentially, the defendant was trying to have its cake and eat it too. Mr Lau admitted as such when questioned: ¹⁷¹

107 Having regard to the totality of the evidence, I, therefore, find that the plaintiff had exclusive possession of the Service Area. Accordingly, the avalanche of evidence leads to a finding that there was a lease agreement between the plaintiff and the defendant, notwithstanding that it was called a Service Agreement.

108 Calling a spade a spade, the substance of the Service Agreement is that of a lease. The physical arrangement at the Premises, with the Service Area being separated from the rest of the Premises by a locked gate and a defined demarcation of the Service Area, clearly shows that the plaintiff had exclusive possession of the Service Area. This supports my finding that the LOI and the Service Agreement were clearly intended to create a landlord-tenant relation as between the plaintiff and the defendant. The defendant had called the Service Agreement a “Service Agreement” instead of a tenancy agreement to (a) evade its rights and obligations as a landlord to the plaintiff as its tenant; and (b) mask its breach of the terms of its lease agreement with JTC, which prohibited it from subletting the Premises without approval. The defence seeks, impermissibly, to elevate form over substance. On the contrary, the nature of the clauses located within the Service Agreement further supports my finding that that agreement is a lease.

109 I also do not accept the defendant’s argument that there was no valid leasehold interest out of which the defendant could grant the plaintiff a sublease over the Premises. Given that the STARS title search which the defendant seeks to rely on is outdated, it is irrelevant in ascertaining the nature of the leasehold interest over the Premises in 2019. On the contrary, the evidence before the Court points clearly to the conclusion that there was a valid leasehold which was assigned to the defendant, and that the assignment was valid.

110 Having found that the Service Agreement was a tenancy agreement, I shall turn to consider whether the defendant’s disposal of the Assets was wrongful under the COVID-19 Act and the Distress Act.

111 I shall first consider the defendant’s argument that it was contractually entitled to dispose of the Assets. The defendant argues that the plaintiff had repudiated the Service Agreement as it did not make the outstanding monthly payments to the defendant and did not take steps to vacate the premises by 22 September 2020. ¹⁷² Accordingly, the defendant was entitled to dispose of the Assets pursuant to Clause 3(cc) of the Service Agreement, which reads as follows: ¹⁷³

112 In RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd and another appeal [2007] 4 SLR(R) 413 (“RDC Concrete”) at [113], the Court of Appeal laid down the framework setting out the situations that entitle an innocent party to terminate a contract at common law (“the RDC framework”). The RDC framework is as follows:

113 The defendant claims that the plaintiff’s failure to pay the Service Fee falls within Situations 3(a) and/or 3(b) of the RDC framework. Situation 3(a) of the RDC framework applies where the “[p]arty in breach has breached a condition of the contract (as opposed to a warranty)” (RDC Concrete at [113]) [emphasis in original]. Situation 3(b) of the RDC framework applies where the consequences of the breach “will deprive the innocent party of substantially the whole benefit which it was intended that the innocent party should obtain from the contract” (RDC Concrete at [113]) [emphasis in original]. According to the defendant, “[t]he payment of the Service Fee was the sole consideration” that the defendant was receiving from the plaintiff. The defendant’s ability to receive regular payments was therefore “the most fundamental term in the contract”. ¹⁷⁴ The plaintiff, in failing to pay the defendant, committed a “serious” breach that would be captured under either Situation 3(a) or Situation 3(b) of the RDC framework. ¹⁷⁵

114 The defendant’s submission that the plaintiff breached the Service Agreement by failing to pay the Service Fees is flawed. During the course of the trial, it became abundantly clear that the plaintiff intended to pay and attempted to pay the defendant. This was even though the defendant’s invoices were erroneous and the defendant’s SOAs were inaccurate. However, the defendant refused to accept payment from September 2020. The defendant’s refusal to accept payments from the plaintiff and its determination to evict the plaintiff are largely attributed to the defendant’s receipt of the CHBC letter dated 31 August 2020 which highlighted, inter alia, the unapproved subletting to the plaintiff.

115 On 23 September 2020, Ms Tay sent a WhatsApp message to Mr Ang, one of the defendant’s managers, conveying the plaintiff’s intention to make payment of the rental arrears. ¹⁷⁶ Mr Ang did not reply. On 24 September 2020, Ms Tay wrote an email to Mr Ang asking for an SOA. ¹⁷⁷ She also brought a cheque for $20,000 to the Premises on 24 September 2020 to pay the defendant. ¹⁷⁸ However, Mr Patrick, who was one of the defendant’s managers, refused to accept the cheque. ¹⁷⁹ Subsequently, Ms Tay wrote a second cheque for $37,676 as she was under the impression that the defendant wanted full payment. ¹⁸⁰ Ms Tay then called Ms Lim, the defendant’s solicitor, intending to pay the outstanding amount with both cheques. Ms Lim responded that she would revert to Ms Tay. However, Ms Lim did not. ¹⁸¹ Subsequently, Ms Tay also sent a WhatsApp message to Mr Ang informing him that the defendant’s solicitor had instructed her to contact him. However, she again received no response from Mr Ang. ¹⁸²

116 This being the case, the defendant cannot now argue that the plaintiff’s failure to pay the Service Fees amounts to a “serious” breach of the terms of the Service Agreement falling either within Situation 3(a) or Situation 3(b) of the RDC framework. The fact remains that the plaintiff was at all times willing and able to perform its contractual obligation by making payment of the Service Fees. The plaintiff’s failure to make payment can thus only be attributed to the defendant’s refusal to accept payment. I, therefore, find that the defendant has no contractual right to dispose of the Assets. I shall now consider the defendant’s reasons for refusing to accept payment at [118] below.

117 I should note at this juncture that Mr Lau gave materially inconsistent evidence on why Mr Ang was not called to testify on behalf of the defendant. In Mr Lau’s affidavit of evidence-in-chief, Mr Lau stated that Mr Ang “had left my employment and I am not able to contact [Mr Ang and another employee, Patrick Siah,] at all”. ¹⁸³ This turned out to be false as Mr Lau admitted in court that he had Mr Ang’s contact number saved in his mobile phone and could “call him now”. ¹⁸⁴ Mr Lau then explained that Mr Ang was not called as a witness as he had told the defendant’s solicitors that he did not want to be contacted. ¹⁸⁵ This is inadmissible hearsay evidence.

118 On the issue of payment of the arrears in September 2020, Mr Lau raised a whole host of reasons why the defendant refused to accept payment from the plaintiff. The defendant was happy to accept payment of the rental arrears by way of cheques in July and August 2020. However, Mr Lau averred during his cross-examination that he would have only accepted payment in the form of cash or cashier’s orders in September 2020. ¹⁸⁶ This unreasonable demand was, however, not mentioned in any correspondence to the plaintiff and was also not communicated to the plaintiff at all. Mr Lau could not give any good reason as to why this was so when the plaintiff had all along been making payments by way of cheques: ¹⁸⁷

119 When questioned further, Mr Lau affirmed that the plaintiff’s cheques were never dishonoured. ¹⁸⁸ Considering that the plaintiff’s cheques were never dishonoured, I find it difficult to believe that Mr Lau adamantly required the plaintiff to pay in cash or cashier’s orders. Furthermore, why was the plaintiff not informed of this new mode of payment in cash or cashier’s orders? In these circumstances, it appears that Mr Lau’s claim that he would only accept cash or cashier’s orders from the plaintiff in September 2020 is an afterthought.

120 The plaintiff was not able to make full payment to the defendant as the latter’s invoices from January to June 2020 were incorrect. The rental was not $10,400 per month as it had been mutually reduced by the parties to $9,000 starting January 2020 (at [10] above). ¹⁸⁹ Furthermore, the two months’ deposit of $20,800 based on $10,400 per month for a duration of two years, which was paid by the plaintiff when the LOI was signed, should have been reduced to one month’s deposit of $9,000. This is because the two-year lease was reduced to a year. The defendant also did not seek to regularise the accounts even when Ms Tay brought it to the attention of the defendant’s housing agent, Kim, in January 2020. ¹⁹⁰ This was not done until June 2020 when the defendant attempted to regularise the monthly fee through the issuance of credit notes.

121 Further, when the defendant asked the plaintiff to pay two months’ fees in June and July 2020, the plaintiff obliged and paid the defendant on 15 July 2020. This was despite the plaintiff facing financial difficulty because of the COVID-19 pandemic. ¹⁹¹ In August 2020 when the defendant asked the plaintiff to pay a further one-month fee, the plaintiff again obliged, and payment was made on 19 August 2020. ¹⁹² The plaintiff’s conduct clearly indicated that it was willing to settle the outstanding monthly arrears.

122 In September 2020, the plaintiff continued wanting to settle the monthly arrears with the defendant. The defendant, however, was not interested to entertain the plaintiff. By this time, the defendant was more interested to evict the plaintiff. This was because of JTC’s discovery of the unapproved subletting to the plaintiff. Thus, the defendant was afraid of the consequences that JTC could impose if the plaintiff continued to remain in the Premises. The plaintiff was contractually entitled to remain in the Premises as the tenancy agreement had not expired then.

123 I should also mention that there were issues relating to the receipt of the defendant’s 3rd LOD and the 4th LOD by the plaintiff. The 3rd LOD dated 9 September 2020 was wrongly faxed by the defendant to xxxx3492 when the plaintiff’s correct fax number was xxxx2991. In the 3rd LOD, the defendant demanded that the plaintiff pay $37,676 which the plaintiff alleged was erroneous as the correct amount should have been $36,350. ¹⁹³ The 3rd LOD also demanded vacant possession by 14 September 2020. However, the plaintiff only received the 3rd LOD on 15 September 2020 when the plaintiff’s staff were allowed to return to the office to work in accordance with the COVID-19 restriction measures which were imposed by the Government. ¹⁹⁴ Thus, it was not the fault of the plaintiff that it did not receive the 3rd LOD timely.

124 The 4th LOD dated 18 September 2020 was also sent to the wrong address. Although the 4th LOD was addressed to Mr Heng Lee Kiang, the plaintiff’s managing director, it was sent to Mr Heng Nge Guan’s registered address. ¹⁹⁵ Mr Heng Nge Guan was the plaintiff’s other registered director who was not active in the running and management of the plaintiff. ¹⁹⁶ As a result, the 4th LOD did not reach the plaintiff. Thus, the plaintiff was unaware that it had to vacate the Premises before 22 September 2020 as it only had sight of the 4th LOD on 24 September 2020, ie, past the deadline of 22 September 2020. ¹⁹⁷ The plaintiff also cannot be faulted for not attending timely to the 4th LOD when it was the defendant who had sent the 4th LOD to the wrong address.

125 Hence, the defendant’s failure to issue the correct SOA and the errors surrounding the issuance of LODs with an ultimatum to vacate the Premises by certain deadlines cannot be held against the plaintiff as a failure to pay the arrears promptly.

126 Apart from refusing to accept payment from the plaintiff who was prepared to pay the outstanding monthly arrears, the defendant also took no steps to mitigate its losses. The defendant failed to conduct proper and adequate due diligence to ascertain the fair market value of the Assets. Instead, the defendant sold the Assets for scrap. The defendant also failed to value the Assets before the sale, ¹⁹⁸ nor did it advertise the sale or auction the Assets. ¹⁹⁹ It is no coincidence that the defendant sold the Assets for $40,000, which is close to the amount of outstanding rental arrears ($46,750).

127 Evidently, the defendant’s sole interest was to evict the plaintiff as quickly as possible and to sell the Assets at a sum which would enable the defendant to quickly recoup what Mr Lau believed he was owed by the plaintiff.

128 It is strange that the defendant considered the plaintiff as an enemy and their disputes as a war. During cross-examination, Mr Lau openly admitted that he saw the plaintiff as “the enemy”: ²⁰⁰

129 This explains the defendant’s hostile disposition in September 2020. The defendant’s unresponsiveness to the plaintiff who wanted to pay the monthly arrears (at [115] above) and the unreasonable demands that payment of the monthly arrears had to be either in cash or cashier’s order (at [118] above) can be attributed to an intention to evict the plaintiff. Indeed, it is evident that, by September 2020, the defendant had already made up its mind to evict the plaintiff from the Premises and ultimately did so in an unacceptably abrupt and high-handed manner through capitalising on the plaintiff’s alleged failure to pay the monthly rental and arrears. The non-payment of the monthly arrears by the plaintiff was thus an excellent opportunity or excuse for the defendant to evict the plaintiff.

130 The defendant, by its own unreasonable behaviour, refused to accept the plaintiff’s payment of the arrears in September 2020. This can be contrasted to the situation before the defendant received the CBHC letter dated 31 August 2020 in which JTC threatened to take action against the defendant for the illegal structures and the unapproved subletting to the plaintiff. Before 31 August 2020, the defendant had received and accepted payments of the arrears in July and August 2020 from the plaintiff. The reality is that the defendant refused to accept payment of the arrears from the plaintiff who wanted to pay despite not knowing the correct SOAs from the defendant. This being the case, and in the absence of any reasonable explanation at the defendant’s end, the defendant cannot now claim that the plaintiff’s failure to pay the defendant amounted to a repudiatory breach of the Service Agreement.

131 Having regard to the above, I find that the defendant had no contractual entitlement to dispose of the Assets under Clause 3(cc) of the Service Agreement (see [111] above).

132 In any case, the COVID-19 Act prohibits the defendant from taking enforcement actions against the plaintiff on the ground of the plaintiff’s non-payment of rent. I turn to consider the plaintiff’s rights as a PTO under the COVID-19 Act.

133 Since the Service Agreement is a tenancy agreement, it undoubtedly qualifies as a “lease agreement” protected by Part 2A of the COVID-19 Act. Section 19B(1) in Part 2A of the COVID-19 Act defines a lease agreement as follows:

134 The relevant portions of s 19G of the COVID-19 Act read as follows:

135 Section 19G of the COVID-19 Act imposes a moratorium on all enforcement actions for rental arrears taken by landlords against PTOs. The moratorium under s 19G of the COVID-19 Act against landlords’ enforcement actions requires no notice. Thus, there was no requirement for the plaintiff to notify the defendant that it is protected from enforcement actions under s 19G of the COVID-19 Act. Section 9(1) of the COVID-19 Act only requires notification where the party intends to seek relief under s 5, 5A or 7 of the COVID-19 Act:

136 The moratorium under s 19G of the COVID-19 Act remained in force until IRAS issued the notice of cash grant or, if no such notice was issued, until 31 December 2020. ²⁰¹ The Notice of Cash Grant was only issued on 18 February 2021. The moratorium was thus in force when the defendant entered the Premises and took away the Assets from 24 to 30 September 2020. Therefore, the defendant’s seizure and disposal of the Assets are in clear breach of s 19G of the COVID-19 Act. The defendant, by selling the Assets as scrap in order to recover the rental arrears, did the very thing the COVID-19 Act prohibited.

137 The Notice of Cash Grant provides that up to two months of the plaintiff’s rent must be waived in accordance with the COVID-19 Act. ²⁰² Thus, it is clear that the plaintiff was deemed to be a PTO within the meaning of the COVID-19 Act. The defendant’s attempt to argue otherwise is unsustainable. ²⁰³

138 The defendant disputes the applicability of s 19G of the COVID-19 Act. Section 19G(1) of the COVID-19 Act confines its applicability to where there was “non-payment of rent under the lease agreement between the applicable landlord and tenant” [emphasis added]. The defendant relies on Clause 5(c) of the Service Agreement to argue that it was entitled to terminate the Service Agreement on grounds unrelated to the non-payment of the Service Fees, namely JTC’s alleged “refusal to approve the Service Agreement”. ²⁰⁴ Clause 5(c) of the Service Agreement reads as follows:

Accordingly, the defendant submits that s 19G of the COVID-19 Act is inapplicable.

139 This argument fails as Clause 5(c) of the Service Agreement was not engaged on the facts. The condition precedent in Clause 5(c) is that JTC must disallow the Service Agreement or the use of the Service Area by the plaintiff. It is clear from the wording of the CHBC Letter that JTC did not go so far as to disallow the Service Agreement or the use of the Service Area by the plaintiff. JTC merely required that the defendant regularise its unapproved actions and seek the necessary approvals. This is clear from the CHBC Letter: ²⁰⁵

140 When JTC discovered that the defendant had sublet the Service Area to the plaintiff without prior approval, the defendant was not directed by JTC to evict the plaintiff within two months without any other alternative or option open to the defendant. JTC gave the defendant an alternative to evicting the plaintiff, ie, to submit an application to JTC to allow the plaintiff to continue as a tenant. Should JTC’s approval be given, the defendant would then have to pay liquidated damages to JTC for the unapproved subletting period. The defendant was not prepared to pay liquidated damages to JTC for its wrongful act of subletting to the plaintiff without seeking JTC’s prior approval. Thus, the defendant had to evict the plaintiff from the Premises as otherwise JTC would take punitive action against the defendant.

141 Thus, the CHBC Letter did not disallow the “[S]ervice [A]greement and/or the use of the [S]ervice [A]rea” by the plaintiff as specified by Clause 5(c) of the Service Agreement. This is not a case where JTC discovered the unauthorised subletting of the Premises by the defendant and directed the defendant to evict the plaintiff within two months of JTC’s letter. Rather, the defendant voluntarily terminated the Service Agreement as it did not wish to pay JTC the stipulated liquidated damages for the period of unauthorised subletting. The defendant knew that it was not permitted to sublet the Premises without approval from JTC but, nevertheless, went ahead to sublet the Service Area to the plaintiff. The latter was unaware of the unauthorised subletting by the defendant. In this situation, JTC was not even given the opportunity to consider the Service Agreement. It, therefore, cannot be said that JTC had “disallowed” the plaintiff’s use of the Service Area. At best, the defendant may, in accordance with the CHBC Letter, argue that any disallowance on JTC’s part would be after 30 October 2020. But even this does not help the defendant’s case. I, therefore, find that Clause 5(c) was not engaged and the defendant was not entitled to terminate the Service Agreement on this basis.

142 The defendant also cannot argue that it terminated the Service Agreement because the plaintiff had erected the illegal structures on the Premises. In both the 3rd LOD and the 4th LOD, the defendant’s solicitors stated as follows: ²⁰⁶

143 However, Mr Lau conceded in court that the illegal structures mentioned in the CHBC Letter were not within the Storage Area and had “nothing to do with” the plaintiff: ²⁰⁷

144 I, therefore, find that Clause 5(c) of the Service Agreement was not engaged on the facts. The defendant’s hurried and haphazard termination of the Service Agreement following the CHBC Letter, and its subsequent and sudden disposal of the Assets, was a drastic, unreasonable and high-handed act. The defendant did not have any right, whether in contract or in law, to terminate the Service Agreement and dispose of the Assets.

145 Mr Lau’s evidence on his knowledge of the CHBC Letter was also contradictory. The CHBC Letter was addressed to the managing director of the defendant and was dated 31 August 2020, by which time Mr Lau had been the defendant’s managing director for around eight months. Yet, Mr Lau denied that he had sight of the CHBC Letter and claimed that he had not seen the CHBC Letter before the trial: ²⁰⁸

146 Mr Lau eventually showed that he was aware of the contents of the CHBC Letter when he explained why the defendant was in a hurry to sell off the Assets: ²⁰⁹

147 It can be inferred that the defendant, upon receipt of the CHBC Letter, jumped to the conclusion that it would have to evict the plaintiff from the Premises or face enforcement action by JTC. Mr Lau admitted that he was aware since December 2019 that the defendant was prohibited from subletting the Premises without JTC’s approval. ²¹⁰ The plaintiff was also in arrears for seven months before the CHBC Letter dated 31 August 2020, ie, from as early as February 2020. ²¹¹ Yet, it was only after the receipt of the CHBC Letter that the defendant sprang into action to evict the plaintiff. Following the receipt of the CHBC Letter, the defendant was put on notice that JTC was aware that it had sublet the Premises to the plaintiff without JTC’s approval and was desperate to fix the situation. Thus, in a hurried bid to save its own skin, the defendant acted without a single thought for the plaintiff’s interests. The defendant then capitalised on the plaintiff’s failure to pay rent to evict the plaintiff from the Premises and to then sell the Assets to Yew Huat.

148 The evidence also suggests that the sale of the Assets to Yew Huat was done in an extremely rushed manner. Mr Lau testified that the defendant reached an agreement to sell the Assets to Yew Huat “between 15 and 20 September” 2020. ²¹² This means that the defendant had already agreed to sell the Assets for scrap to Yew Huat even before 22 September 2020, which was the deadline given to the plaintiff to vacate the Premises in the 4th LOD. ²¹³ The plaintiff avers that Yew Huat is its competitor. ²¹⁴ According to Mr Lau, Yew Huat “had always known that [the Assets] actually belonged or belongs to Chiap Seng”. ²¹⁵ Mr Lau also testified that he showed Yew Huat the letters of demand sent from its solicitors to the plaintiff. ²¹⁶ In these circumstances, it can be inferred that the defendant had approached Yew Huat knowing that Yew Huat was likely to buy the Assets. This would allow the defendant to quickly dispose of the Assets and remedy its illegal subletting.

149 It is, therefore, no coincidence that (a) the disposal and sale of the Assets came less than a month after the CHBC Letter dated 31 August 2020; and (b) the Assets were sold for $40,000, almost the same amount of rental arrears owed by the plaintiff to the defendant at that time. The defendant’s conduct is plainly unacceptable and inconsistent with the spirit of the COVID-19 Act, which was specifically enacted to protect tenants who were badly affected by the COVID-19 pandemic from enforcement actions by their landlords. Indeed, the plaintiff’s business came to a standstill as a result of the Government’s COVID-19 restrictive measures. In these circumstances, it is clear that the defendant took such drastic action against the plaintiff in order to save its own skin and stave off enforcement action by JTC. The defendant’s seizure and disposal of the Assets were extremely high-handed.

150 As I have found that the Service Agreement is a tenancy agreement, the Distress Act is applicable to this case. It is undisputed that the defendant did not comply with the Distress Act as it did not consider the Service Agreement to be a tenancy agreement. Thus, the defendant committed multiple breaches of the Distress Act in its imperious and abrupt disposal of the Assets.

151 First, the Distress Act requires that the defendant apply for a writ of distress. This the defendant had failed to do. The defendant thus acted contrary to the relevant sections of the Distress Act, which read as follows:

152 Second, the defendant’s seizure of the Assets comprising scaffolding for multi-tiered seating galleries and for the F1 night race were the plaintiff’s main tools of trade. Thus, the defendant’s seizure of the Assets was in breach of s 8(d) of the Distress Act. Section 8(d) of the Distress Act reads as follows:

153 Having regard to the above, I find that the defendant’s actions of seizing and disposing of the Assets without a writ of distress were in breach of the Distress Act.

154 Given that I have already found the defendant’s intentional disposal of the Assets to be wrongful under the COVID-19 Act and the Distress Act, it is not necessary for me to deal with the plaintiff’s claim that the defendant was estopped from disposing of the Assets. I also note that much of the plaintiff’s estoppel claim rests on the representations made by Mr Ang, who in any event was not called as a witness. ²¹⁷

155 In summary, I make the following findings:

(a) The defendant had no contractual entitlement to dispose of the Assets as it had, by its own accord, refused to accept the payment of the arrears from the willing plaintiff.

(b) The defendant’s disposal of the Assets was in breach of s 19G of the COVID-19 Act.

(c) The defendant’s disposal of the Assets without obtaining a writ of distress was in breach of the Distress Act.

156 I, therefore, find that the defendant was not entitled to dispose of the Assets, and is liable for damages payable to the plaintiff. I shall not consider the extent of damages due to the plaintiff as parties agreed to bifurcation.

157 According to the plaintiff, the defendant held the Assets on trust for the plaintiff when the defendant took possession of the Assets. ²¹⁸ The defendant therefore owed a duty to act in the plaintiff’s best interests, ²¹⁹ which encompasses, inter alia, not disposing of the Assets or, if the defendant was entitled to dispose of the Assets, to sell them at fair market value. ²²⁰

158 It is not necessary to deal with the issues of whether the defendant held the Assets on trust for the plaintiff and acted in breach of trust as I have found above that the defendant was not entitled to dispose of the Assets and is liable for damages payable to the plaintiff.

159 I find that the defendant is not entitled to its counterclaim for the sum of $6,750 as it had failed to mitigate its losses.

160 Mr Lau’s evidence on how he sold the Assets suggests that he did not conduct due diligence to secure the best prices for the plaintiff’s Assets. Mr Lau claimed that he verbally invited two or three buyers to inspect the Assets before selling them. ²²¹ The defendant failed to call the purported potential buyers to testify before the Court. Mr Lau initially claimed that the potential buyers said “they [had] to weigh the scrap metal”. ²²² However, this was not done by the potential buyers. Mr Lau averred that as the potential buyers were in the scrap metal business, they would “be able to tell the weight of the assets based on the area the assets occupied. They will know that it’s scaffolding, racks and it is hollow”. ²²³ Mr Lau also claimed that it was the defendant who then weighed the Assets using a weighing scale on the Premises and showed the prospective buyers the weight of the Assets. ²²⁴ No objective evidence was produced to support any of Mr Lau’s claims as the above was all allegedly done verbally. ²²⁵

161 In these circumstances, Mr Lau’s claim that he negotiated the price with other buyers before eventually selling the Assets to Yew Huat is suspect. As I noted at [148] above, the objective circumstances indicate that the defendant sold the Assets in a hurried and rushed manner. This being the case, it was unlikely that the defendant had taken steps to mitigate the losses that form the subject of its counterclaim. If the defendant had, to the contrary, taken the time to ascertain the fair market value of the Assets, it may have been able to recover all or even an amount in excess of the plaintiff’s rental arrears.

162 I, therefore, find that the defendant failed to mitigate its losses and dismiss the defendant’s counterclaim.

163 The plaintiff called three witnesses: Mr Heng, Ms Tay and Mr Ponnusamy Anbarasan, one of the plaintiff’s truck drivers. Their evidence was largely consistent and contained no serious discrepancies.

164 The defendant’s sole witness was Mr Lau. Mr Lau’s evidence was contradictory, confusing and unreliable. I have pointed out multiple occasions when Mr Lau vacillated in his evidence on critical issues (at [47]–[49], [145]–[146] and [160]–[161] above). Further, the defendant’s counsel argues that Mr Lau’s opinions on the nature of the Service Agreement must be treated with caution because he was not involved in the negotiations leading up to the execution of the Service Agreement. Thus, Mr Lau would not have known the parties’ true intentions. ²²⁶ I find the submission on this point to be a non-starter. Throughout the cross-examination, Mr Lau has displayed a clear awareness and understanding of the nature of the Service Agreement as evident from his answers to the numerous questions put by the plaintiff’s counsel.

165 I also find that Mr Lau has a stubborn streak, which explains the defendant’s uncompromising and high-handed conduct. For example, Mr Lau was asked about the 1st LOD dated 6 February 2020 which demanded payment of the January and February 2020 fees amounting to $22,256. Since this letter was issued after the parties mutually agreed to reduce the monthly fee to $9,000 from $10,400, the sum of $22,256 for January and February 2020 is incorrect. That the 1st LOD listed an incorrect sum of arrears is also undisputed by both parties as the defendant later issued the Credit Notes on 1 June 2020 to refund the overpaid amount to the plaintiff. However, Mr Lau adamantly denied that the sum of $22,256 stated in the 1st LOD was incorrect and vehemently defended the accuracy of the figure. ²²⁷ It was only after the Court mentioned the Credit Notes did Mr Lau reluctantly admit, albeit implicitly, that the sum of $22,256 was incorrect and that was why he “added a [credit note]”. ²²⁸

166 The plaintiff asked for, inter alia, a declaration that the sale of the Assets to Yew Huat is null and void. ²²⁹ However, this Court is unable to grant this remedy as (a) Yew Huat is not a party to these proceedings; and (b) Yew Huat appears to be a bona fide third party purchaser for value without notice of the plaintiff’s interest as claimed in these proceedings. The declaration will affect the right of Yew Huat to the Assets for which it had paid $40,000 to the defendant. The plaintiff should have included Yew Huat as a party to these proceedings so that Yew Huat was given an opportunity to defend itself.

167 To successfully establish that Yew Huat is a bona fide third party purchaser for value without notice (“the purchaser”), the following elements must be present: (a) the purchaser acted in good faith; (b) the purchaser had paid valuable consideration; (c) the purchaser obtained the legal interest in the property; and (d) the purchaser had no notice of the plaintiff’s equitable interest in the property: Snell’s Equity (John McGhee, Steven Elliott, ed) (Sweet & Maxwell, 34th Ed, 2020) at paras 4-017–4-027.

168 Mr Lau testified that he told Yew Huat the plaintiff was in arrears and showed Yew Huat the letters of demand sent from the defendant’s solicitors to the plaintiff. ²³⁰ This gave Yew Huat the impression that the defendant had the legal right to seize and sell the Assets as the plaintiff was in arrears. Accordingly, Yew Huat had no notice of the plaintiff’s interest in the Assets. Thus, it appears that Yew Huat might have acted in good faith when it purchased the Assets and furnished consideration of $40,000 to obtain the Assets. The Court’s hands are, therefore, tied and it cannot make a declaration that the sale of the Assets to Yew Huat is null and void.

169 For the above reasons, I allow the plaintiff’s claim against the defendant for its intentional disposal of the Assets. I grant all of the plaintiff’s prayers as pleaded in the SOC, ²³¹ save for: (a) a declaration that the sale of the Assets to Yew Huat is null and void; and (b) an order for the plaintiff and the defendant to recover the Assets from Yew Huat.

170 I also dismiss the defendant’s counterclaim for the balance outstanding arrears. However, I make the following findings:

(a) There was a tenancy agreement between the plaintiff and the defendant. The language of the LOI plainly shows that the parties intended to create a landlord-tenant relationship. The Service Agreement was, in substance, a tenancy agreement. IRAS also considered the Service Agreement to be a tenancy agreement. Further, the plaintiff had exclusive possession of the Service Area. The name “Service Agreement” was an attempt by the defendant to circumvent JTC’s prohibition against subletting the Premises. In fact, JTC, through the CHBC letter, concluded that the plaintiff was the defendant’s subtenant and the defendant did not dispute JTC’s finding. Finally, the assignment of the leasehold to the defendant was valid.

(b) The defendant had no contractual entitlement to dispose of the Assets. The plaintiff made attempts to make payment of the arrears in September 2020 but the defendant unreasonably refused to accept the plaintiff’s payment. The defendant’s intentional, unreasonable and high-handed disposal of the Assets was in breach of the COVID-19 Act and the Distress Act.

(c) The defendant’s counterclaim fails as the defendant did not mitigate its losses. The defendant did not make attempts to ascertain the fair market value of the Assets. Its sole concern was to sell the Assets as quickly as possible in order to evict the plaintiff as its tenant so as to avert punitive actions from JTC.

171 The defendant should have lived up to its responsibilities as landlord of the plaintiff and engaged in discussions with the plaintiff who acted at all times as an amiable and willing tenant. Disappointingly, the defendant refused to engage the plaintiff in September 2020 and was instead determined to evict the plaintiff from the Premises so that JTC would not take action against the defendant for unapproved subletting.

172 The defendant is to pay costs to the plaintiff for the main suit and the defendant’s counterclaim, to be agreed or taxed.