Development of Autochthonous SLS Flashcards
1
Q
Overview
A
- The difference between 2nd Charter and AELA was that while both had the same powers of modification, they were only exercised after the AELA, i.e. English law did not apply as readily after the AELA.
- E.g., Presumptions of Resulting Trust and Advancement - courts no longer apply English cases in an automatic manner.
- No. of local cases cited in SG courts increased after AELA, and number of foreign cases did drop.
- Prior to AELA (up to 1993): English law was applied as if it was SG law. Impeded development of an autochthonous SLS.
- Second period (1993 – 2000) after AELA: Fall in number of foreign cases cited by SG courts.
- Third period (2001 – 2013): Increase in number of foreign cases cited by SG courts.
- Done for comparative approach - Courts starting to look beyond our shores to develop our laws.
2
Q
Growth of Autochthonous SLS:
Growth of local jurisprudence e.g. in Trusts and Equity - UK Position
A
- Strength of the twin presumptions of resulting trust and advancement have weakened in the domestic context (see Stack v Dowden).
- UKSC endorsed imputation of intentions at the stage of quantification of interest for the purpose of a common intention constructive trust (see Jones v Kernott).
3
Q
Growth of Autochthonous SLS:
Growth of local jurisprudence e.g. in Trusts and Equity - SG Position
A
- Continued relevance of the twin presumptions of resulting trust and advancement recently affirmed in 3 CA cases (Low Gim Siah v Low Geork Khim, Lau Siew Kim, and Chan Yuen Lan)
- Low Gim Siah v Low Geork Khim: CA endorsed application of presumption of advancement in tradnl rs b/w father and child etc., (i.e. where only 1 party is under moral or equitable obligation to provide for the other).
Also confined modern UK cases, which indicated declining importance of presumption of advancement, to situations of joint contributions by married couples in acquiring matrimonial home or properties acquired using joint savings. - Explained that traditional cats of rs are unaffected by social change and obligations of fathers and Hs have not changed so radically in SG to justify not applying the presumption of advancement.
- Submitted that this is the right decision, since there are still many women who are financially dependent on Hs, and infants are inevitably dependent on their parents for provision in the SG context.
- Lau Siew Kim: In determining cats of rs for presumption of advancement, VK Rajah JA considered different developments in UK, AU, and CA, and expressed willingness to expand the cats to mother-child etc.
However, stopped short at cohabiting couples as there is presently no “legislative recognition and public consensus” on this kind of relationship.
4
Q
Growth of Autochthonous SLS:
Judicial Review - UK Position
A
Courts serve as a check on administrative power (red light approach.
5
Q
Growth of Autochthonous SLS:
Judicial Review - SG Position
A
- Courts aim to promote public interest by applying a more discriminating test of locus standi to balance the rights of the individual and the rights of the state in the implementation of sound policies in a lawful manner (green light approach).
- Chee Siok Chin v MHA, VK Rajah J considered that proportionality was a “continental European jurisprudential concept imported into English law by virtue of the UK’s treaty obligations” and has never been part of the common law or SG law.
6
Q
Growth of Autochthonous SLS:
Tort: Economic Loss - SG Position
A
- Land scarcity is a problem unique to SG and led the dev of tort law to cater to high housing costs, high building and popn density.
- SG courts have deferred from UK wrt recovery of pure econ loss in building defect cases by fashioning out a pragmatic exception with respect to pure economic loss incurred in building cases as a result of negligence during the construction of the building.
- RSP v Ocean Front: CA allowed award of pure econ loss in relation to property defects. Noted that land is scarce in SG and occupants ought to be given sufficient protection by the tort of negligence.
Arguably laid the groundwork for the recognition of a universal test for all types of losses in Spandeck v DSTA. - In rejecting the different tests to be applied to different types of damage, CA heralded a wholly different approach to economic loss of negligence in SG. Mirrors the “liberal” approach to recovery, as compared to the more restrictive approach in the UK.
7
Q
Growth of Autochthonous SLS:
Contract: Doctrine of Mistake - UK Position
A
- Previously based on 2 common law (Bell v Lever Brothers) and equity (Lord Denning’s judgment in Solle v Butcher) tests.
- Generated uncertainty, but were eventually resolved in Great Peace Shipping, where the UK CA rejected the test in Solle v Butcher as Lord Denning had conflated law with equity.
8
Q
Growth of Autochthonous SLS:
Contract: Doctrine of Mistake - SG Position
A
- CA took a different position in Chwee Kin Keong v Digilandmall.com.
a. CA considered both UK decisions, and recognised that following Solle v Butcher, there was established case law which held “an equitable jurisdiction to set aside a contract even though the mistake did not meet the strict criteria necessary in common law to establish that the contract was void for common mistake”.
b. CA recognised an equitable doctrine of mistake, presumably influenced by the need for equity to mitigate the rigours of common law.
3. Bearing in mind the need to do justice not only between immediate contracting parties but also innocent third parties, the CA was clear that a system which embraces both common law and equity principles would be better than having an exclusively common law principle.
9
Q
Non-reliance on Foreign Judgments
A
- Brought about conceptual neatness and coherence.
2. Achieves AELA aim of applying common law (with modifications) to suit local circumstances.
10
Q
Spread of SG Law
A
- Recognised the balancing test: SG cannot be insular and needs to be comparative. BUT, in certain areas such as commercial law, SG must be homogenous with other jurisdictions.
- Allows SG law to be different yet relevant - in an increasingly interconnected and comparative world where other jurisdictions are looking for alternative point of view.
