AW CHEE PENG v AW CHEE LOO

Facts

Two brothers, each a one-third owner with their father of two family properties at 12 and 12A Jalan Gelenggang, disputed the rental income from them. In Aw Chee Peng v Aw Chee Loo [2022] 5 SLR 451, the High Court held the defendant liable under s 73A of the Conveyancing and Law of Property Act to account to the plaintiff for rental income received from 1 January 2021. This judgment, in Suit No 468 of 2021 (Taking of Accounts and Inquiries No 1 of 2023), is the Assistant Registrar's taking of that account for the period to 31 December 2022.

No 12 was let to a single tenant and the parties agreed the rent received. No 12A was let by the room to several tenants. In his accounting affidavit and answers to interrogatories, the defendant said there was no rental income from No 12A. The plaintiff traced the tenants and compelled them to testify under subpoena, and only in his affidavit of evidence-in-chief, filed two working days before the hearing, did the defendant disclose rent collected from No 12A. The defendant sought to set off various expenses on the properties and on the family home at Dedap Road, where the family lived.

Issues

1. Whether the rent received from No 12 should be reduced for a returned part of the security deposit.
2. How much rent was received from No 12A, and whether the defendant had to account for an unlet room.
3. Which expenses on the properties, including repairs supported only by copies of vouchers, could be set off.
4. Whether expenses on the Dedap Road home could be set off, and what costs order should be made.

Holding

The Assistant Registrar allowed the plaintiff's claim in part. The defendant was to account for $183,800.00 from No 12 and $37,560.00 from No 12A, less allowed expenses, leaving a net amount of $182,707.44, of which the plaintiff's one-third share was $60,902.48, with interest at 5.33% per annum. The set-off of $2,753.60 in income tax was conditional on proof of payment. The claim for rent on the unlet room could not be dealt with in these proceedings. The plaintiff was awarded costs on the standard basis totalling $83,012.81, plus $3,000.00 and $2,000 for two earlier applications, with liberty to apply.

Reasoning

For No 12, the defendant bore the burden of proving he returned $1,050.00 of the deposit, and an equivocal line in his table was not enough. For No 12A, his explanations for denying any rent over seven months, in sworn documents and correspondence, were rejected. The court noted evidence that the defendant's wife had brought the tenants a letter saying they were unwilling to testify. As the tenants did testify, a general adverse inference was unnecessary. On one tenant's start date the court accepted the defendant's account, relying partly on another tenant's evidence, and it rejected his deduction of internet fees for lack of proof. The account ordered was a common account of what was actually received, not one for wilful default, so rent that could have been earned on the unlet room was outside its scope.

Expenses necessarily incurred to earn the rent could be set off, whether or not the plaintiff was consulted. Property tax, legal fees and a corrected utilities figure of $10,625.79 were allowed. The court found the utilities cost was reflected in the rent, accepting tenants' evidence that the defendant justified rent increases by higher utility bills. The insurance premium was allowed at $963.00. The repair and maintenance claim of $67,142.93 failed. The plaintiff had served a notice of non-admission and challenged the vouchers and receipts, and the defendant never produced the originals as primary evidence under s 66 of the Evidence Act 1893, so they were not admitted. His unsupported oral evidence and an undocumented estimate for miscellaneous works did not discharge his burden.

The earlier judgment found the arrangement for using rent on the Dedap Road home had ended by 1 January 2021, so those expenses could not be set off. On costs, the defendant's offer to settle did not help him: payment depended on a sale of the properties he was separately seeking, and the award was more favourable anyway. The court found the defendant consciously concealed the No 12A rent, and fixed costs on the High Court guidelines rather than the Magistrate's Court scale, though on the standard basis.

From the judgment