KUVERA PROPERTIES PTE. LTD. v FAR EAST OPUS PTE. LTD.

Facts

Kuvera Properties Pte Ltd bought a medical unit in a development launched by Far East Opus Pte Ltd, taking an option dated 15 March 2013 and signing the sale and purchase agreement on 18 April 2013. It alleged that the developer's sales agents had made representations about the medical units that induced the purchase. It received the keys in August 2016 and could not find a tenant until April 2021. At a meeting on 21 May 2018, owners raised concerns about whether the medical centre could function as one, and the developer allegedly made several promises, including to commission an expert report and to take steps on electricity supply and exhaust pipes. Resolutions to that end failed at the first and second AGMs. Kuvera engaged its own expert on 9 February 2022, and the report was dated 22 November 2022.

Kuvera sued on 16 May 2024 in HC/OC 366/2024, seeking rescission or damages under s 2 of the Misrepresentation Act 1967. The Assistant Registrar dismissed the developer's application to strike out the claim as time-barred and allowed Kuvera to amend its pleading to add a breach of contract claim and details about its search for an expert. The developer appealed both decisions in HC/RA 202/2024 and HC/RA 203/2024, heard by Lee Seiu Kin SJ.

Issues

1. Whether the proposed amendments disclosed a viable contract claim that was not time-barred
2. Whether the pleadings disclosed a claim in the tort of negligent misrepresentation
3. Whether s 29(1)(c) or s 24A(3)(b) of the Limitation Act 1959 extended time for the statutory misrepresentation claim
4. Whether damages in lieu of rescission under s 2(2) remain available once rescission is time-barred

Holding

The High Court allowed both appeals. It disallowed the breach of contract amendments, struck out the claim under s 2 of the Misrepresentation Act 1967 as time-barred together with the expert advice amendments, and reserved costs for further hearing.

Reasoning

Applying Gay Choon Ing v Loh Sze Ti Terence Peter and another appeal [2009] 2 SLR(R) 332, consideration requires a request. Kuvera pleaded only that it chose not to act and relied on the promises, not that the developer requested its forbearance, so no contract was disclosed. Further amendment was refused after repeated chances. In any case the breach occurred by the first AGM on 3 August 2018, more than six years before the amendment application, and the new claim did not arise from substantially the same facts as the original pleading.

No duty of care or breach was pleaded for negligent misrepresentation, and Kuvera had earlier disavowed that claim; its change of position was a belated attempt to escape the time bar.

A claim under s 2 is statutory but founded on contract, so s 6(1)(a) applied, and the cause of action accrued in August 2016. Section 29(1)(c) did not apply because, following English authority, mistake must be an essential ingredient of the claim, and the representor's belief is merely a defence. Section 24A covers actions for breach of a statutory duty: s 2(1) creates such a duty, but s 2(2) is parasitic on an existing right to rescind and does not. Rescission was time-barred, and following Salt v Stratstone, damages in lieu of rescission cannot be awarded where rescission is unavailable.

Under s 24A(3)(b), Kuvera had the requisite knowledge by the 21 May 2018 meeting, where every deficiency later listed in the expert report had been raised. Reasonable belief, not certainty, is enough, and in any event Kuvera did not take reasonable steps to obtain expert advice, waiting until 2020 with no adequate excuse. The claim filed in May 2024 was therefore out of time, and the developer's participation in mediation did not waive its limitation defence.

From the judgment