Backdating agreements english law
The Judge also found that the Option was not void and unenforceable for illegality at common law since the illegal manner in which the Respondents intended to procure financing was too remote from the contract and the Respondents did not need to rely on the backdating to found their claim against the Appellant.15 The key question in this appeal (as alluded to at the outset of this judgment) is whether the Respondents are entitled to enforce the Option despite the fact that it was backdated for the purposes of enabling the Respondents to obtain a larger credit facility than they were otherwise entitled to under the 5 October Notice.
Accordingly, the following issues need to be determined:(a) Whether the Option is void and unenforceable at for being contrary to public policy, in particular:(i) Whether the Option is void and unenforceable for being a contract to commit the tort of fraud or deceit; and(ii) Whether the Option is void and unenforceable for being a contract that was entered into with the object of committing an illegal act.(b) Whether the Option is expressly or impliedly prohibited under .16 We pause to note that, although the parties’ respective cases (and, indeed, the Judgment in the court below) considered the issue of statutory illegality first, for reasons which will be apparent in the following analysis, we think that it is more appropriate to commence with a consideration of the issue relating to illegality at common law – hence, the framing of the issues in the order set out in the preceding paragraph.17 We also pause to note that there were two other possible issues which were not taken up on appeal.
However, no resolution was reached.11 On 11 January 2013, the Respondents applied for: (a) a declaration that the Option is valid and binding on the Appellant; and (b) an order for specific performance by the Appellant of the Option or, in the alternative, damages., to obtain a loan at the LTV ratio of 80% in contravention of the 5 October Notice) rendered the Option void and unenforceable.
One related to the applicability of the doctrine of This particular issue was mentioned but was not (correctly, in our view) pursued by counsel for the Respondents, Prof Tang Hang Wu (“Prof Tang”) (if nothing else, because the facts did not, in our view, permit such a doctrine to be invoked in the first place).
The other issue related to the Judge’s findings on specific performance.
Indeed, in this appeal, we would need to consider the legal principles with regard to not only statutory illegality but also illegality at common law.4 Before proceeding to set out the applicable legal principles as well as applying them to the facts of the present appeal, it would be appropriate – by way of background – to first set out the relevant facts, the decision of the Judge, the relevant issues which arise in the present appeal, as well as a summary of the parties’ respective cases.5 The Appellant is the sole owner of 30 Jalan Angin Laut Singapore 489226 (“the Property”). In October 2012, the Appellant granted the Respondents an option to purchase the Property (“the Option”), which was backdated to 4 October 2012.6 Around mid-2012, the Respondents were interested in purchasing a landed property and approached their banker at United Overseas Bank (“the Bank”), Mr Leslie Ong (“Ong”), about the financing of such a purchase.
On 12 July 2012, the Bank granted the Respondents in-principle approval for a loan capped at the loan-to-value (“LTV”) ratio of 80%.
If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted.