1 By a contract in writing evidenced by an offer dated 4 March 1992 made by the second and third defendants and acceptance dated 19 March 1992 by the first defendant the second and third defendants agreed to sell to the first defendant the property at 469 and 469A Geylang Road for $1m. By another contract in writing evidenced by an offer in substantially the same terms dated 23 September 1992 made by the first defendant and acceptance dated 7 October 1992 by the plaintiff the first defendant agreed to sell the same property to the plaintiff for the same price. Both contracts have not been completed and by this originating summons the plaintiff claims against the defendants an order:

2 And alternatively damages and other reliefs. I made an order for specific performance of both contracts and these are my grounds of judgment.

3 Clause 13 of the offer in each case provides:

4 In each case completion was to take place `twelve (12) weeks from the date of the issue of separate certificate of title to the property by the Registry of Titles.`

5 Rayney Wong & Co were the solicitors for the second and third defendants in their sale and for the first defendant in its purchase under the earlier contract and for the first defendant in its sale to the plaintiff under the later contract. They received this letter dated 21 April 1993 from the Registrar of Titles:

6 I hereby direct pursuant to s 16(2)(c) of the Land Titles Act that the abovementioned land be continued to be dealt with under the provisions of the Registration of Deeds Act.

7 Section 16 of the Land Titles Act then in force provided:

8 Lot 161-40 of mukim 24 comprises the property sold as well as 471 Geylang Road and it is not disputed that although permission to subdivide the land had been obtained the Registrar of Titles would not issue a separate certificate of title for the property sold and a conveyance or other assurance of the property sold could be registered under the Registration of Deeds Act. By letter dated 5 June 1993 Rayney Wong & Co gave notice to the plaintiff`s then solicitors `that the sale and purchase be aborted.` It is not altogether clear whether in giving the notice Rayney Wong & Co were acting for the second and third defendants as well as for the first defendant. The plaintiff disagreed with the notice and reserved its rights. By letter dated 25 August 1993 Rayney Wong & Co advised that they had appealed to the Registrar of Titles for reconsideration. They expressed the view that if the appeal was unsuccessful the contract would be null and void. They also advised that `Approval for subdivision has [been] granted by the competent authority.` By letter dated 31 August 1993 the plaintiff`s former solicitors disagreed and pointed out that cl 13 was for the benefit of the plaintiff only and by its present solicitors` letter of 25 October 1993 the plaintiff reserved its right to waive cl 13. In the event, the appeal was unsuccessful. In these proceedings, the first defendant now separately represented takes the position that if specific performance is ordered against it then it would ask for a similar order against the second and third defendants.

9 The plaintiff`s principal case and on which the orders were made is that the condition as to issue of a certificate of title in cl 13 is for the exclusive benefit of the plaintiff and can be waived. In an agreement for the sale of a business carried on in Ellistones under the name `Benjamin Outram & Co` contained these two terms:

10 The agreement was signed by one of the vendors for himself and as attorney for another under a power of attorney. The purchaser sued for specific performance. In the Court of Appeal Lindley LJ said at pp 375-376:

11 In a contract for sale of land was subject to the purchaser obtaining a mortgage on certain terms for part of the price. In the Privy Council Lord Templeman said at p 405:

12 See also where the contract for sale of land was subject to a condition as to obtaining extension of the written permission for a particular development. Goh Joon Seng J said at p 172:

13 Mr Ng submitted that upon failure of the condition as to issue of a certificate of title the contract was annulled automatically. I am unable to agree. That is not what cl 13 says. Under cl 13 the sale is subject to two conditions. First it is subject to approval of the vendors` application to the competent authority for subdivision. Secondly it is subject to issue of a separate certificate of title to the property. The two are distinct conditions. The contract becoming null and void is expressed to be a consequence of failure of the first condition. It is a consequence of `such approval to the vendors` application [being] not granted.` If the condition as to subdivision is not satisfied the defendants may not be able to convey the property on completion as the conveyance may not be registrable under the Registration of Deeds Act. The eventuality of failure of this condition is provided for. If this condition is satisfied then the sale can be completed either by a conveyance if the Registrar of Titles issues a certificate under s 16(2)(c) as he has done in this case or by a transfer if a certificate of title is issued. Clause 13 is silent as to the consequence of failure of the condition as to issue of a certificate of title. It may also be noted that cl 5 provides that on payment of the price at the time and place for completion the vendors are to `make and execute to the purchaser ... a proper assurance of the property.` These are words which are apt to describe the mode of completion where the condition fails and a certificate of title is not issued.

14 Mr Ng`s main submission is that cl 13 of the offer or more accurately the condition as to issue of a certificate of title is so inextricably mixed up with the other parts of the contract that it cannot be severed and so cannot be unilaterally waived by the plaintiff. He referred to where a contract for the sale to the plaintiffs of the southern part of a site owned by the defendants contained these clauses:

15 Brightman J said at p 154:

16 In the plan for redevelopment that was to be submitted was agreed with the vendors. It bears the reference CN/123/3A and was prepared by the purchaser`s architects Candlish & Kind. It showed the northern part (to be retained by the vendors) as `future site of showroom, existing workshops converted.` It was the intention of the vendors to use the retained land for the sale of motor vehicles as was well known to the purchaser. The contract which was subsequently signed also contained these clauses:

17 It cannot be doubted that cl 7 or the condition as to planning consent is not exclusively for the benefit of the purchaser. It is clear from cl 7 itself. The vendors are expressly given the right to determine the agreement in the event of planning consent not being received for a development approved by them. Clauses 10, 11, 14 and 15 make that even clearer. It was not open to the purchaser to waive the condition unilaterally. That was the ratio decidendi and I agree entirely with it. Brightman J went on to say that there was an additional difficulty in the purchaser`s case. The conveyance is to contain exceptions, reservations and covenants and these are related to such development. If the condition as to planning consent is waived unilaterally by the purchaser the conveyance cannot be settled and I think it is in this sense that elimination of cl 7 will `leave the date for completion in the air.`

18 In the purchaser entitled to specific performance `if a good title could be made` waived all objections to the title and agreed to accept such title as was in fact made and it was held that he was entitled to do so. If there had been a term that completion was to take place one month after a good title had been made I should be unable to see that the purchaser should by reason of that alone be unable to waive the objections to the title or why completion should not take place one month after he waived the objections and agreed to take such title as was in fact made.

19 I come now to cl 13 of the offer. The sale is subject to approval of the application for subdivision. That has been obtained. It is also subject to the issue of a separate certificate of title to the property. The Registrar of Titles has elected not to bring the land under the provisions of the Land Titles Act by issuing a certificate of title but has issued a certificate under s 16(2)(c) directing that the property continue to be dealt with under the provisions of the Registration of Deeds Act so that a conveyance may be registered. In a letter to Rayney Wong & Co dated 8 September 1993 he drew attention to a conveyance dated 25 May 1981 registered in the Registry of Deeds. A good title has not been deduced by the second and third defendants as vendors under the earlier contract and consequently by the first defendant as vendor under the later contract. A certificate of title would have conferred on the proprietors a paramount estate free from encumbrances, liens, estates and interests except those registered or notified on the land-register subject to the exceptions under s 38 of the Act then in force (now s 46 of the Land Titles Act) and on completion the whole of the estate of the defendants would have been transferred to the plaintiff. That is what the plaintiff would have been entitled to. On the face of the contract in each case the condition as to issue of a certificate of title in cl 13 is for the benefit of the purchaser and not the vendors or vendor. It is exclusively for the purchaser`s benefit. The plaintiff as purchaser under the later contract has waived this condition and agreed to complete the purchase (and in doing so accepting such title as has been deduced) by conveyance of the property. The defendants have not asserted that by executing a conveyance for registration under the Registration of Deeds Act they would be undertaking any covenants or obligations or any covenants or obligations more onerous than by executing a transfer under the Land Titles Act. It made no difference to them whether they signed a transfer or executed a conveyance or other assurance of the property on completion - and indeed the only way in which Mr Ng attempted to show that the condition in cl 13 was also for the benefit of the vendors was to suggest that `a separate certificate of title to the above property` in cl 13 meant a separate certificate of title to 469 and 469A Geylang Road which is the property described in the heading of the offer and which is the property sold as well as a separate certificate of title to 471 Geylang Road which is not mentioned anywhere in the offer and which is to be retained by the second and third defendants. This construction is clearly untenable. Apart from this he has not attempted to submit that on the face of the contract the condition is also for the benefit of the vendors.

20 Mr Ng`s main argument is that completion is to take place 12 weeks from the issue of the certificate of title and waiver would in the words of Brightman J in leave the date for completion in the air. I see no difficulty in that nor has any difficulty been demonstrated. There is nothing in the conveyance to be settled that is of substance rather than form by reason of the issue of a certificate of title being waived. Mr Davinder Singh submitted that is distinguished and I agree. The condition is not so inextricably mixed up with the provision for completion or with any other parts of the contract that it cannot be severed. It is severable. Completion was to take place 12 weeks from the issue of a certificate of title. The plaintiff waived the condition at the hearing. So completion ought to take place 12 weeks from the order to be made on this originating summons and I made an order for specific performance of both contracts for completion 12 weeks from the date of the order with costs to be paid by the first defendant and by the second and third defendants and I ordered the second and third defendants to pay the first defendant the costs to be paid to the plaintiff.

21  Plaintiff`s claim allowed.