1 By this originating summons the plaintiffs claim against the defendants the following reliefs:

2 The facts are these. By an agreement dated 22 October 1983, between the plaintiffs and the defendants (the agreement) the defendants agreed to sell to the plaintiffs the property described in prayer (a) of the originating summons (the said property) for $4,897,670.

3 The said property was sold subject to the terms and conditions contained in the agreement and to The (Revised) Singapore Conditions of Sale.

4 By cl 13(1) of the agreement completion was to take place 14 days after the receipt by the purchaser of the notice to complete from the vendor and by cl 13(2) such notice to complete shall be given by the vendor on or before 31 December 1988.

5 No notice to complete was in fact given on or before 31 December 1988. However, the defendants subsequently issued through their solicitors a notice to complete dated March 1989. Accompanying the notice was a statement of completion account which stated (inter alia):

6 By their letter dated 4 March 1989, to the defendants` solicitors, the plaintiffs` solicitors (a) disagreed with the completion account and contended that `by cl 11 of The (Revised) Singapore Conditions of Sale your clients are not entitled to compensation for the increase in floor area` and (b) contended that the defendants were liable for liquidated damages amounting to $64,669.37 for late completion in accordance with cl 13(2) of the agreement. They asked for a revised completion account immediately, failing which the plaintiffs would hold the defendants responsible for liquidated damages in failing to give a correct completion account.

7 By letter dated 23 March 1989 to the plaintiffs` solicitors, the defendants` solicitors stated that as the increase in floor area represented 3.278% of the original area, they required the full payment of the sum of $160,547.10 reflected in the completion account to be paid on completion.

8 Thereafter, further correspondence passed between the parties. Neither party gave way. The defendants insisted that the plaintiffs pay in full for the increase in floor area and complete the purchase and the plaintiffs insisted that the defendants furnish a revised completion account. Completion did not take place.

9 Upon the petition of Societe Generale, a creditor, an order for winding up the defendant company was made on 28 July 1989 and liquidators were appointed. On 25 October 1989, the plaintiffs filed the present originating summons.

10 On 7 November 1989, the defendants` solicitors wrote a `without prejudice` letter to the plaintiffs` solicitors offering several terms of completion. On 16 November 1989, the plaintiffs` solicitors wrote to the defendants` solicitors in response to their letter of 7 November 1989, stating that the plaintiffs were prepared to complete on the terms specified in the letter of 7 November 1989.

11 Subsequently, on 26 December 1989, the sale and purchase of the said property was completed, without payment of the additional sum of $160,547.10, pursuant to an agreement between the parties that such completion be subject to any adjustments to the final balance of purchase money payable to the defendants, after the determination by the court on the following claims of the defendants against the plaintiffs:

12 As a result of the agreement between the parties, the defendants have paid to the plaintiffs the $64,669.37 liquidated damages claimed by the plaintiffs in prayer (b) of the originating summons. The plaintiffs are now claiming against the defendants damages for late completion under condition 7 of The (Revised) Singapore Conditions of Sale (prayer (c)).

13 The defendants are not pursuing their claim against the plaintiffs for the increase in floor area of 180.39 sq ft valued at $160,547.10 but they counterclaim against the plaintiffs for interest for late completion for the period 17 March 1989, to date of completion, 26 December 1989, in accordance with condition 7 of The (Revised) Singapore Conditions of Sale.

14 Condition 7 of The (Revised) Singapore Conditions of Sale provides:

15 Under the second part of condition 7 a purchaser is entitled to compensation for the vendor`s delay to complete, if such delay is `contumacious`.

16 There is no legal definition of the word `contumacious`. The Shorter Oxford Dictionary defines `contumacious` as `exhibiting contumacy; stubbornly perverse, insubordinate, rebellious` and `contumacy` as `perverse and obstinate resistance of authority`. Longman Dictionary of the English Language (1984) defines it as `stubbornly disobedient; rebellious`.

17 The counterclaim of the defendants against the plaintiffs for interest for late completion is based on the first part of condition 7, which requires the purchaser (plaintiffs) to pay interest if completion is delayed from any cause other than the wilful default on the part of the vendor (defendants).

18 In my view there should not be any difference in meaning between `contumacious` and `wilful default` in condition 7.

19 The submission of the plaintiffs is that the delay in completion of the sale was caused by the defendants and that the defendants` delay was contumacious/a wilful default and they are entitled to damages to be assessed. The defendants submit that they were not in wilful default and the plaintiffs have to pay them interest for late completion.

20 The purchaser will be relieved from payment of interest under the first part of condition 7 only if he can prove (a) that the vendor has been in default; (b) that such default was wilful and (c) that the wilful default was the direct cause of the delay in completion.

21 What meaning the authorities have placed on `wilful default` is summarized in Emmet on Titles (19th Ed) para 7.026:

22 An honest mistake or oversight on the part of a vendor is not wilful default by him. An example of such a mistake is a misstatement of the title to part of the property by neglect to look at the deeds ( Re Mayor of London and Tubbs` Contract [1984] 2 Ch 524). Where, however, the vendor persists in a mistake when it is called to his attention his default will be regarded as wilful ( Bennett v Stone [1903] 1 Ch 509), although this may not be the case where the question at issue was a difficult one so that the vendor`s action could not be regarded as clearly mistaken.

23 Examples of wilful default are: the omission to deliver an abstract until after the time fixed for completion ( Wallis v Sarel (1852) 5 De G & Sm 429); the failure of the vendor to obtain the concurrence of necessary parties ( Re Earl of Strafford and Maples [1896] 1 Ch 235).

24 In the case of Re Bayley-Worthington and Cohen`s Contract [1909] 1 Ch 648, the condition was that the purchaser should not be called on to pay interest if the delay was not caused by his neglect or default. The purchaser had made an objection going to the root of title but the House of Lords ultimately decided that the objection was not well founded. It was held by Parker J that the delay resulting from these proceedings was caused by the default of the purchaser.

25 I have to consider, first, whether the delay in the completion of the sale was attributable to the default of the defendants; and secondly, whether the default, if any, has been wilful.

26 The defendants, under cl 13(2) of the agreement, had to serve the notice to complete on or before 31 December 1988. This the defendants failed to do. The plaintiffs could treat the agreement as repudiated and recover the sum paid on account of the purchase money with interest thereon. Alternatively, the plaintiffs could take a conveyance when the defendants were ready and able to convey and recover damages from the defendants` breach of the agreement in delaying completion.

27 The plaintiffs allowed the date for completion to go by and on 3 March 1989, the defendants served the notice to complete. The completion was to be within 14 days of the receipt of the notice. Accompanying the notice was a statement of completion account which included the sum of $160,547.10 for increase in floor area of 180.39sq ft.

28 It is clear that the defendants by failing to give the notice to complete by 31 December 1988, was liable for liquidated damages under cl 13(2) of the agreement.

29 The conduct and attitude of the parties can be gathered from the events that followed after the defendants had given the notice to complete on 3 March 1989.

30 The plaintiffs straightaway on 4 March 1989, objected to the defendants` claim for the sum of $160,547.10, pointing out that under condition 11 of The (Revised) Singapore Conditions of Sale, the defendants were not entitled to compensation for the increase in floor area and contended that the defendants were liable for liquidated damages amounting to $64,669.37 for late completion under cl 13(2) of the agreement. The plaintiffs asked for a revised completion account immediately, failing which the plaintiffs would hold the defendants responsible for further liquidated damages in failing to give a correct completion account.

31 On 17 March 1989, the defendants wrote to the plaintiffs regarding the plaintiffs` claim for liquidated damages under cl 13(2) of the agreement. The plaintiffs were informed that the defendants had applied to the Controller of Housing for extension of time to give the notice to complete, and were awaiting the outcome of the application; that pending the outcome of the application and provided that the plaintiffs complete the purchase on 17 March 1989, the plaintiffs could deduct the amount of liquidated damages computed by the defendants as $63,642.87 from the completion account which said sum be held by the plaintiffs` solicitors as stakeholders pending the controller`s decision.

32 On 18 March 1989, the plaintiffs replied accusing the defendants of insincerity as the date line of 17 March 1989 was not capable of being complied with by the plaintiffs and that the defendants had not addressed themselves to the plaintiffs` objection to the defendants` claim for compensation for increase in floor area. The plaintiffs asked for a revised completion account.

33 On 23 March 1989, the defendants informed the plaintiffs that as the increase in floor area represented 3.278% of the original area they required the full payment of the $160,547.10 reflected in the completion account to be paid in completion.

34 On 25 March 1989, the plaintiffs replied that the increase in floor area was not of such a substantial or vital nature as to entitle the defendants to claim compensation under condition 11 of The (Revised) Singapore Conditions of Sale. The plaintiffs again asked for a revised completion account.

35 On 29 March 1989, the plaintiffs asked the defendants for the revised completion account `as soon as possible`.

36 On 30 March 1989, the defendants informed the plaintiffs that they were unable to agree with the plaintiffs` view as to the increase in floor area and required the full sum of $160,547.10 to be paid.

37 On 10 May 1989, the defendants informed the plaintiffs that the defendants had executed the lease in respect of the said property and asked the plaintiffs when they intended to complete the matter.

38 On 1 June 1989, the defendants wrote and referred to their notice to complete of 3 March 1989, and reminded the plaintiffs that up to date the plaintiffs had failed to complete the purchase and gave notice that unless the plaintiffs completed the purchase within seven days thereof, the defendants would be compelled to commence proceedings and that interest for late completion was chargeable against the plaintiffs.

39 On 28 July 1989, an order for winding up the defendant company was made on a creditor`s petition.

40 On 4 August 1989, the plaintiffs wrote to the defendants reiterating their view that the increase in floor area of 3.27% was not substantial within the ambit of condition 11 of The (Revised) Singapore Conditions of Sale and expressed the view that the defendants were obliged to complete the sale at the contract price. The plaintiffs also informed the defendants that they were prepared and had always been prepared to complete the sale upon payment of the balance purchase money less liquidated damages for late completion; that as agreed the amount deducted for liquidated damages would be held by the plaintiffs` solicitors as stakeholders pending the outcome of the defendants` application to the Controller of Housing for extension of time; that if the plaintiffs` offer to complete was not accepted by the defendants within the next seven days, the plaintiffs would apply to court for an order that the defendants complete at the contract price.

41 It appears from the correspondence that passed between the parties that it was the defendants who were insisting on the plaintiffs completing while the plaintiffs were insisting on the defendants submitting a revised completion account.

42 Under cl 13(1) of the agreement, the sale and purchase of the said property was to have taken place at the office of the defendants` solicitors Messrs Lee & Lee 14 days after the receipt by the defendants of the notice to complete, ie on 17 March 1989.

43 Clause 13(1) does not specifically provide that the notice to complete should be accompanied by a completion account. The stand taken by the plaintiffs` solicitors was that a completion account was fundamental in conveyancing proceedings and that the plaintiffs were entitled to one as a matter of right as purchasers.

44 The function of a completion account is as stated by Chan Sek Keong JC (as he then was) in Toh Teck Sun v Mandarin Gardens Pte Ltd [1988] 2 MLJ 276 . It is to inform the purchaser of the amount due from him on completion. It fulfils no other function. As Chan Sek Keong JC said, there is no fundamental principle that when the vendor fails to give a completion account to a purchaser, the purchaser is under no obligation to complete on the date fixed for completion.

45 In this case, the plaintiffs were given a completion account. The plaintiffs disputed the defendants` claim for the increase in floor area. The disputed sum was known to the plaintiffs. The plaintiffs` claim for liquidated damages under cl 13(2) of the agreement was also known to the plaintiffs as it was computed by the defendants and the plaintiffs did not dispute the figure.

46 The plaintiffs could not say that they could not complete because they did not know what was payable on completion. As regards their claim for liquidated damages, the defendants had told them they could deduct the amount from the completion account. As regards the defendants` claim for increase in floor area, the plaintiffs could pay the amount claimed by the defendants to their own or the defendants` solicitors to be held as stakeholders on an interest bearing account to abide by the decision of the court, and tender to the defendants the remainder of the purchase money. Alternatively, the plaintiffs could, if they felt it prudent to do so, under condition 8 of The (Revised) Singapore Conditions of Sale, deposit the remainder of the purchase money in a bank of good repute upon a deposit account bearing interest in their name or their solicitors` and give written notice thereof to the defendants.

47 Instead of tendering the remainder of the purchase money to the defendants or taking action under condition 8, the plaintiffs issued an ultimatum on 4 August 1989, to the defendants to complete, notwithstanding that the defendants have been wound up and the fact that they had not tendered the remainder of the purchase money.

48 The plaintiffs were able to comply with cl 13(1) of the agreement. The defendants have shown they were ready and able to complete. In my view, the absence of a revised completion account was not a sufficient reason for not completing the sale.

49 If the plaintiffs had tendered the remainder of the purchase money or deposited it in a bank under condition 8 and the defendants had refused to complete, the defendants would have been responsible for the delay.

50 I find that the delay in completion was attributable solely to the default of the plaintiffs. They must, therefore, pay to the defendants interest at 8% on the remainder of the purchase money for the period 17 March 1989, to the date of actual completion, 26 December 1989.

51 The plaintiffs, therefore, fail in their claim against the defendants for damages and they will have to pay to the defendants the costs of these proceedings.

52 Plaintiffs` claim dismissed; defendants` counterclaim allowed .