Case Summaries

Singapore Air Charter Pte Ltd v Peter Low & Choo LLC and another [2020] SGCA 99

SUPREME COURT OF SINGAPORE

14 October 2020

Case summary

Singapore Air Charter Pte Ltd v Peter Low & Choo LLC and another [2020] SGCA 99
Civil Appeals No 163 of 2019

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Decision of the Court of Appeal (delivered Judge of Appeal Judith Prakash):

Outcome: The Court of Appeal dismisses the appeal.

Pertinent and significant points of the judgment

  • CoA holds that since it is only the registration of the Form 96 Order that effects seizure under O 47 r 4(1)(a) of the Rules of Court (Cap 322, R5, 2014 Rev Ed), it must be the Form 96 Order that has been designed to be the “writ of execution” referred to in s 132(1) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”): at [44].
  • CoA emphasises that under s 134(1) of the LTA, registration of a writ lapses at the expiration of one year from the date of registration, and the land thereupon ceases to be bound by the writ. Thus, the binding effect of the writ commences on the date of registration and ceases one year from that date. There must also be a lapse of at least one day between the cancellation of the first writ and the registration of the subsequent writ: at [46] and [49].
  • CoA also holds that the effect of ss 132(1), 132(2) and 37(5) of the LTA is to make writs of execution registered against the judgment debtor’s land rank in priority according to their respective dates of registration. This applies to the situation when the land is sold by a mortgagee. Only a judgment creditor whose writ is not only on the land-register but is also still valid at the point of sale by the mortgagee can claim entitlement to be the recipient of the residue of the sale proceeds: at [57], [59]–[61].

Background

1 The judgment debtor in question was Mr Danial Patrick Higgins (“the Debtor”). He co-owned an apartment unit in Pasir Ris (“the Property”) which was mortgaged to the second respondent, Malayan Banking Berhad (“the Bank”). On 26 September 2016, judgment was entered against the Debtor in the sum of US$340,500 in favour of the appellant, Singapore Air Charter Pte Ltd (“SAC”).

2 Two years later in March 2018, judgment for $394,254.13 against the Debtor was obtained by the first respondent, Peter Low & Choo LLC (“PLC”) on account of its legal fees when it represented the Debtor in the action taken by SAC against him. Because the Debtor did not settle the judgment debts, both his creditors took steps to enforce their respective judgments against the Property, using the execution procedures provided for by the Rules of Court (Cap 322, R5, 2014 Rev Ed) (“the Rules”). The Property was registered land falling under the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”).

3 On 23 March 2017, SAC applied for the interest of the Debtor in the Property to be attached to satisfy its judgment debt.On 29 March 2017, the High Court granted this order and SAC subsequently extracted an order of court in Form 96 (“the Form 96 Order”). On 19 April 2017, SAC lodged its Form 96 Order with the Registrar of Titles for registration in the land-register. It was registered the same day. On 19 April 2017 as well, SAC obtained the issuance of a writ of seizure and sale in Form 83 (“Form 83 Writ”) in respect of the Property. Pursuant to this form, the Sheriff attended at the Property on 4 May 2017 and affixed documents to it. Thereafter, SAC wrote to the Bank asking it to consent to the sale of the Property. By mid-August 2017, the Bank had indicated in writing that it would not consent to a sale by SAC as it was not the Bank’s practice to do so. In view of the Bank’s opposition, SAC could not proceed with a sale.

4 On 19 September 2017, on its application, SAC was granted an order (“First Extension Order”) that extended by six months the validity of the Form 96 Order it had obtained in March 2017. SAC applied to the Registrar of Titles for registration of the First Extension Order. This application was rejected. On 21 March 2018, SAC obtained a further order (“Second Extension Order”) extending the validity of its Form 96 Order for a further six months. It applied for registration of the Second Extension Order but the same was rejected by the Registrar of Titles on 30 July 2018.The Registrar of Titles noted that the registration of the Form 96 Order had first to be cancelled before SAC could have the Second Extension Order registered.

5 Apart from attempting to procure the extension of its Form 96 Order, on 5 April 2018, SAC applied for an extension of the Form 83 Writ it had obtained in April 2017.It was granted an order (“WSS Extension Order”) extending the Form 83 Writ for a further twelve months from 18 April 2018 to 17 April 2019. Shortly thereafter, SAC applied to register the WSS Extension Order, but it was only registered on 19 December 2018, which was six days after the Property had been sold.

6 On 16 March 2018, PLC was granted an order attaching the Debtor’s interest in the Property. This order was subsequently extracted in Form 96. The Form 96 Order was registered on the land-register on 11 April 2018. On 18 April 2018, PLC obtained a Form 83 Writ in respect of the Property. PLC made attempts to register its Form 83Writ on the land-register, but the instrument was rejected.

7 In the meantime, the Bank made efforts to sell the Property and a mortgagee sale was effected on 13 December 2018. The proceeds of sale were more than sufficient to satisfy the indebtedness due to the Bank and the question then arose as the whether the Debtor’s share of the surplus sales proceeds (“the surplus proceeds”) ought to be paid to SAC or PLC.

8 In January 2019, PLC took out an originating summons in the High Court seeking a declaration that it was entitled to the surplus proceeds on the basis that SAC’s Form 96 Order no longer bound the Property because its registration had lapsed in April 2018 pursuant to s134 of the LTA. The Judge decided that PLC was entitled to the surplus proceeds in priority over SAC. SAC appealed against the Judge’s decision.

The Court of Appeal’s decision

The correct form for registration

9 The Court of Appeal (“the Court”) held that Part XIII of the LTA was intended to provide the framework for the registration and implementation of two types of instruments in respect of registered land and that the writ of execution and the order referred to in s 132(1) of the LTA were two separate instruments. The Court was not persuaded that the narrow view (ie, that there was only one instrument described in s 132(1) by interpreting the opening lines of the section as stating that “writ of execution” meant “an order of court directing, appointing or empowering some person other than the proprietor to sell or otherwise deal with or disposed of registered land”) was the correct reading of s 132(1). While a writ was essentially an order and there was an overlap between a writ of execution and an order empowering someone to deal with the land, s 131 gave separate definitions for “order” and “writ” indicating that the two terms were used in a distinct fashion in Part XIII. The definition of “writ” tied that instrument to the process of levying execution over land while the definition of “order” did not limit the function of an order to any particular process: at [31][34] and [36].

10 The Court held that it was the Form 96 Order, and not the Form 83 Writ, that qualified for registration as a writ of execution referred to in s 132(1) of the LTA. The language of the Form 83 Writ itself made plain that the seizure was pursuant only to the Form 96 Order. The Court observed that the Form 96 Order must therefore always precede the issue of the Form 83 Writ. Since it was only the registration of the Form 96 Order that effected seizure under O 47 r 4(1)(a) of the Rules, it must be the Form 96 Order that had been designed to be the “writ of execution” referred to in s 132(1) of the LTA: [36], [43] and [44].

Effective duration of a registered writ of execution

11 The Court held that under s 132(1) of the LTA, the writ only bound or affected registered land when particulars of the writ had been entered in the land-register. Under s 134(1) of the LTA, the registration of a writ lapsed at the expiration of one year from the date of registration, and the land thereupon ceased to be bound by the writ. Thus, the binding effect of the writ commenced on the date of registration and ceased one year from that date: at [46].

12 The Court further observed that if the judgment creditor was not successful in effecting a Sheriff’s sale of the land within the one-year period, s 134(2) of the LTA indicated that a renewal of the writ or a subsequent writ issued on the same judgment may be registered against the land. However, this was not a completely straightforward process. Under s 132(6), once a writ had been registered, a subsequent writ shall not be registered until the first registration has been cancelled in accordance with the LTA. Further, under s 134(3), a judgment creditor was not permitted to use a succession of writs issued on the same judgment to bind land for an interrupted period exceeding one year. Therefore, there had to be a lapse of at least one day between the cancellation of the first writ and the registration of the subsequent writ. While it was not expressly stated in any section of Part XIII of the LTA, if the registration of a Form 96 Order was cancelled prior to its lapsing, the Sheriff’s power to execute registrable instruments pursuant to that writ would end on the date of cancellation: at [49] and [51].

Priorities of the parties’ claims

13 The Court held that the effect of ss 132(1), 132(2) and 37(5) of the LTA was to make writs of execution registered against the judgment debtor’s land rank in priority according to their respective dates of registration. This applied to the situation when the land was sold by a mortgagee. The recognition in United Overseas Bank Ltd v Chia Kin Tuck [2006] 3 SLR(R) 322 of the judgment creditor as the person entitled to receive the residue of the sale proceeds was correct and the judgment creditor had a claim to payment of the residue under s 74(1) of the LTA: at [57], [59] and [60].

14 The Court observed that since the right of the judgment creditor (or the effect on the estate of the judgment debtor of the writ the judgment creditor had procured) depended on the ability of the Sheriff to sell the land and pay over the proceeds, it logically followed that this right must have lapsed when the writ lapsed and the Sheriff’s right to deal with the land had been extinguished. Therefore, only a judgment creditor whose writ was not only on the land-register but was also still valid at the point of sale by the mortgagee could claim entitlement to be the recipient of the residue of the sale proceeds: [61].

Application of principles discussed

15 The Court held that it was correct for SAC and PLC to present Form 96 Orders for registration to the Registrar of Titles. SAC’s Form 96 Order lapsed on 18 April 2018. No further Form 96 Order was registered by SAC between 20 April 2018 (ie, one day after the lapse) and 13 December 2018 (ie, the date of the sale of the Property), or even thereafter. PLC’s Form 96 Order was registered on 11 April 2018. Accordingly, the period of its validity was up to 10 April 2019. The Property was sold on 13 December 2018 when PLC’s Form 96 Order was the only valid writ registered against the Property. Thus, only PLC appeared from the land-register (in accordance with s 74(1) of the LTA) to be a person entitled to give a receipt for the proceeds of sale. On 13 December 2018, SAC had no rights against the Property because its Form 96 Order was no longer valid. It therefore had no claim to the surplus proceeds: at [63].

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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