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880 SINGAPORE LAW REPORTS (REISSUE) [1998] 1SLR(R)

Tan Soo Leng David

v
Lim Thian Chai Charles and another
[1998] SGHC 89

High Court District Court Appeal No 74 of 1995

Warren L H Khoo J
4 October 1996; 25 November 1997; 30 March 1998
Contract Remedies Damages Mitigation Whether tenant in default
entitled to criticise adequacy of mitigating steps taken by landlords Whether
landlords required to stem loss Whether landlords measures in seeking new tenant
reasonable
Landlord and Tenant Termination of leases Whether contractual doctrine of
repudiation and acceptance applicable

Facts
The appellant, David Tan (the tenant), agreed to lease a specialist clinic from
the respondents, Charles Lim and his wife (the landlords), for three years at a
monthly rent of $5000, with effect from 1 June 1992. On 1 July, the tenant
decided not to rent the premises. On 6 July, the landlordssolicitors disagreed
with the tenants unilateral termination of the tenancy. In May 1993, the
landlords succeeded in getting a new tenant at the same rent. The new tenancy
commenced on 1 July 1993.
The landlords claimed for arrears of rent and other charges under the tenancy
agreement for the period 1 July 1992 to 30 June 1993. The tenant argued: (a) that
having accepted his repudiation, the landlords were only entitled to damages
and not rent; and (b) they were under a duty to mitigate damages. Alternatively,
the tenant argued that they were entitled to rent for 23 days up to 23 July and
this should be set off against his three-month rent deposit.
The district judge held that:(a) the lease was terminated by surrender when a
new tenant was found who entered into a tenancy agreement on the same terms
as the original agreement; and (b) the landlords were entitled to claim rental
arrears from 1 July 1992 to 30 June 1993 and they were under no duty to
mitigate their loss. The tenant appealed.

Held, dismissing the appeal:

(1) The rule of mitigation of damages did not require the innocent party to do
more than was reasonably required to stem the loss. The party in default had no
right to be astute in criticising the adequacy of the mitigating steps taken by the
innocent party. The landlords were not asking any more than what they were
entitled to had the tenant performed the contract. The landlords measures in
seeking a new tenant were eminently reasonable: at [38] to [40].
(2) There was much to be said for the application, in appropriate cases, of the
contractual concept of repudiation and acceptance as a means, in addition to the
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[1998] 1SLR(R) Tan Soo Leng David v Lim Thian Chai Charles 881

traditional ones provided by the common law, of bringing a lease to an end. It

was particularly appropriate in the case of a lease in which the element of a
purchase of an interest in land was not significant or was non-existent. In such
cases, its application, together with the application of the rule about mitigation
of damages, was more straightforward and was more likely to lead to a fair and
equitable adjustment of the rights and obligations of the parties where the tenant
repudiated the tenancy, than was the application of any of the common law
remedies: at [28].

Case(s) referred to
Banco de Portugal v Waterlow and Sons, Limited [1932] AC 452 (folld)
Cricklewood Property and Investment Trust, Limited v Leightons Investment
Trust, Limited [1945] AC 221 (refd)
David Buchanan v Edward Byrnes (1906) 3 CLR 704 (refd)
Highway Properties Ltd v Kelly Douglas & Co Ltd [1972] 2 WWR 28 (refd)
Klerk-Elias Liza v K T Chan Clinic Pte Ltd [1993] 1 SLR(R) 609; [1993] 2 SLR 417
(distd)
National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 (refd)
Teh Wan Sang & Sons Sdn Bhd v See Teow Chuan [1984] 1 MLJ 130 (refd)
Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB
318 (refd)

Palakrishnan and Malathi Das (Palakrishnan & Partners) for the appellant;
Richard Ang (Ang J W & Partners) for the respondents.

30 March 1998
Warren L H Khoo J:
1 This is an appeal from the decision of the learned District Judge Emily
K Wilfred arising from a claim for arrears of rent by the landlords under a
tenancy agreement.
2 The tenancy agreement was in respect of a specialist clinic in the
Mount Elizabeth Centre. The premises were owned by Dr Lim and his wife,
the plaintiffs. The tenant, the defendant, was also a doctor. Both doctors are
specialists in their respective fields.
3 The tenancy agreement was entered into on 1 June 1992. It was for
three years starting on that date and ending 31 May 1995. The rent was
$5,000 a month, payable in advance at the beginning of every month.
However, within a short period of a month, the defendant changed his
mind about renting the premises. He had decided to buy another unit in the
centre.
4 On 1 July, he wrote a letter to Dr Lim indicating that he was going on
with the purchase and expressing the hope that the two of them, being old
friends, could come to an amicable settlement about the tenancy. Dr Lim
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and his wife, however, were not so minded. On 4 July, they replied through
their solicitors saying that they were holding the defendant liable for all loss
and damages resulting from any unilateral termination of the tenancy. On
6 July, the lawyers wrote again. It was a letter headed Without Prejudice.
They told the defendant that they did not agree to the defendants
termination of the tenancy unilaterally. However, on a without prejudice
basis, and merely to assist you, our clients will consider a new tenant to be
provided by you as your substitute, provided the new tenant is acceptable to
our clients and you pay our clients for all loss and damages suffered by our
clients.
5 On the other hand, the defendant, being committed to the purchase of
his own premises, did not take physical possession of the tenanted
premises.
6 On 23 July, the defendant phoned Mrs Lim. There is much conflict of
evidence as to what was said. According to the defendant, he told Mrs Lim
that he was terminating the tenancy; that he intended to advertise in the
Singapore Medical Association newsletter for prospective tenants.
According to him, Mrs Lim agreed to the proposal to advertise; she also
agreed to accept the return of one set of keys so as to facilitate the viewing
by prospective tenants. Later that day, the defendant sent the plaintiffs a fax,
the relevant parts of which read as follows:
As a gesture of goodwill and as spoken with [Mrs Lim] this morning, I
have offered to pay to advertise in SMA for new tenant.

7 The defendant in this fax requested the plaintiffs to confirm their

agreement to the text of the advertisement, which he set out. The fax
continued:
As I promised, I will return one set of keys to you or your staff to
facilitate viewing of the unit.

8 Mrs Lim disputes much of what the defendant says about the phone
conversation. She says that all that the defendant wanted to know was
whether he could use the plaintiffs address and phone number in the
advertisement; whether the plaintiffs would pay for the advertisement and
whether he could leave a set of keys with her to facilitate viewing of the
premises. She says she told him that it was his advertisement, he should pay
for it himself and he should not use her address and phone number. As for
the keys, she had to consult her lawyers.
9 Mrs Lim says that when she got the fax from the defendant after the
phone conversation, she was very annoyed at the tenor of the fax. She could
not understand why he should use words like goodwill offer to pay and
promise to return the keys. After consultation with the plaintiffs solicitor,
she told Dr Tan that she would not accept the return of the keys. She also
protested against what she saw as inaccuracies in the defendants fax.
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10 The learned district judge preferred Mrs Lims evidence as to what

happened on 23 July. Her Honour came to the view that the plaintiffs did
not accept the termination of the tenancy by reason of events that
occurred on that day. This is fortified by the fact that the plaintiffs
continued to demand rent afterwards.
11 What happened after that is that the defendant kept the keys to the
premises. The learned district judge found that the keys were not returned
until 23 May 1993. However, the plaintiffs themselves also took steps to try
to get tenants. I shall refer to these efforts later. It suffices to say at this
moment that it was not until May 1993 that they succeeded in getting a
tenant at the same rent as that under the tenancy with the defendant. The
new tenancy commenced on 1 July 1993.
12 The plaintiffs claimed the sum of $55,067.40, representing arrears of
rent and other charges under the tenancy agreement for the period 1 July
1992 to 30 June 1993. The defendant resisted the claim on the ground that
the plaintiffs had accepted the defendants repudiation of the tenancy
agreement, by reason of the events that occurred on 23 July; that having
accepted the repudiation, the plaintiffs were only entitled to damages,
rather than rent; that the plaintiffs were under a duty to mitigate damages,
but they failed to discharge it; alternatively, the plaintiffs were entitled at the
most to the rent for the period of 23 days up to 23 July, and this should be
set off against the three-month rent deposit in their hands.
13 As the starting point for these arguments, the plaintiffs raised the
question whether the ordinary contractual principles of repudiation and
acceptance applied to a tenancy or whether a tenancy could only be
determined by one of the ways recognised by common law, the relevant one
being surrender by operation of law. They raise the same question before
me.
14 For a start, it is necessary to say a few words about what is meant by
accepting a repudiation. There was a certain amount of confusion in the
course of the proceedings below. There were occasions when it seems to
have been assumed that it meant that the plaintiffs agreed to the
termination on the basis that the defendant was thereby released from any
liability except for the rent accruing up to the date of acceptance. This must
have been the assumption, for instance, in the defendants contention that
by reason of the plaintiffs acceptance of his termination on 23 July 1992, all
that the plaintiffs could claim was rent accruing up to that date. The
contention in effect equates acceptance of a repudiation with an agreement
to discharge the tenant from further liability under the tenancy.
15 This is not the sense in which the word is properly used in the context
of repudiation and acceptance. The acceptance by the innocent party of a
repudiation is not a consensual act. All that it means is that he accepts as a
fait accompli that the guilty party does not intend to perform the contract.
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He will not expect the other party to perform his part of the contract;
neither will he himself continue to perform his part of the contract. But the
guilty party has committed a breach, and the right of the innocent party to
damages is in no way affected.
16 Of course, it is possible for the parties to a contract to agree to
terminate it, either unconditionally or on terms. The agreement to
terminate may be reached by the offer to terminate from one party and the
acceptance of that offer by the other party. But acceptance in that sense is
entirely different from the acceptance of a repudiatory breach, which is the
subject under consideration.
17 To return to the question: does the principle of repudiation and
acceptance apply to tenancies? The issue emanates from the more
fundamental question concerning the nature of a lease. Is it essentially a
purchase of rights in real property, or is it no more than a bundle of
contractual rights and obligations? These questions have not in terms been
decided in Singapore, but they have been debated and decided in other
common law jurisdictions. They have sometimes been dealt with in
connection with the contractual doctrine of frustration. In Total Oil Great
Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318,
Lord Denning MR said in relation to the lease under consideration before
him:
The lease is a demise. It conveys an interest in land. It does not come to
an end like an ordinary contract on repudiation and acceptance. There
is no authority on this point, but there is one case which points the
way. It is Cricklewood Property and Investment Trust Ltd v Leighton
Investment Trust Ltd [1945] AC 221. Lord Russell and Lord Goddard
were both of opinion that frustration does not bring a lease to an end.
Nor, I think, does repudiation and acceptance.
18 The Cricklewood case, referred to by Lord Denning, did not deal with
the question of repudiation and acceptance. It dealt with the question of
frustration. The House of Lords in that case was evenly divided over the
question whether the doctrine of frustration was capable of applying to
leases of land. But, more recently, in National Carriers Ltd v Panalpina
(Northern) Ltd [1981] AC 675, a differently constituted House of Lords
rejected by a firm majority the view that, in principle, the doctrine could
never apply to leases. There was a near consensus that the doctrine was
capable of application notwithstanding that leases created interest in land.
On the facts in that case, however, it was found that the lease was not
frustrated. In the course of their speeches, several of their lordships referred
with approval to the following passage from Laskin Js judgment in the
Canadian Supreme Court case of Highway Properties Ltd v Kelly Douglas &
Co Ltd [1972] 2 WWR 28:
It is no longer sensible to pretend that a commercial lease, such as the
one before the court, is simply a conveyance and not a contract. It is
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equally untenable to persist in denying resort to the full armoury of

remedies ordinarily available to redress repudiation of covenants,
merely because the covenants may be associated with an estate in land.

19 In the Highway Properties case, the lease was for a term of 15 years. It
was of premises in a shopping centre which was being developed by the
landlord, the subject premises to be used for a grocery store and
supermarket. The lease provided for an annual rent payable monthly, and
an additional rent calculated according to a formula (apparently by
reference to the volume or profit of the tenants business). Clause 5(a)
provided that if the rent or any part of it was in arrears for 15 days, or if any
covenant by the tenant was not fulfilled and the breach continued for 15
days after notice to remedy, then the current months rent and three
months additional rental should immediately become due, and the
landlord might forthwith re-enter, and thereupon the demise should
absolutely determine, but without prejudice to any right of action in respect
of any antecedent breach of the tenants covenants.

20 Clause 9 required the tenant to carry on its business continuously and

to carry it on in such manner that the landlord may at all times receive the
maximum amount of income from the operation of such business in and
upon the demised premises. It required the tenant to install and maintain
first-class trade fixtures and furniture adequate and appropriate for the
business. The shopping centre consisted of 11 stores, including the
premises let to the tenant. Before buying the land on which the shopping
centre was to be built, the landlord had obtained the commitment of the
tenant to take up the premises for a supermarket, to be constructed
according to the tenants specifications. The tenant went into possession
through a subtenant (with the landlords consent). But only a few other
stores were let, and the venture did not prosper. The tenant purported to
repudiate the tenancy. In response, the landlord told the tenant that it
intended to take possession of the premises and to hold the tenant
responsible for any damages suffered as a result of the tenants breach and
repudiation. The landlord claimed damages not only for loss up to the date
of repudiation, but also for prospective loss occasioned by the tenants
failure to carry on its business, in breach of cl 9 of the lease.

21 In the trial court, and in the British Columbia Court of Appeal, it was
held that the repudiation of the lease by the tenant and the retaking of
possession by the landlord amounted to surrender, so that the lease ceased
to exist and that the landlord was entitled to damages only up to the date of
surrender. However, on appeal to the Supreme Court of Canada, Laskin J,
who delivered the judgment of the court, held that the contractual concept
of repudiation and acceptance applied to the lease, and that the full
remedies available in contract law were available, so that the landlord was
entitled not only to loss accruing to the date of termination, but also to
prospective loss for the remainder of the term, subject to the operation of
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the rule of mitigation of damages. His honour followed the Australian High
Court decision in David Buchanan v Edward Byrnes (1906) 3 CLR 704. He
held that cl 5(a) of the lease (set out above) did not preclude the claim for
prospective damages.

My view
22 It seems to me that the question whether a lease is a demise and
whether the rules of contract law apply to it is not susceptible of one simple
answer. Much depends on the nature of the lease in question. As Prof Lye
Lin Heng in her learned book Landlord and Tenant in the Singapore Law
Series (Butterworth 1990, at p 5) rightly points out, leasehold interests vary
widely in duration. She says:
A clear distinction can be drawn between persons who purchase
leasehold interests (such as purchasers of flats built by the Housing
Development Board, who are given 99-year leases) and those who lease
premises for various terms. In the former, the primary consideration is
a substantial lump-sum payment (the purchase price), with rent only
as a nominal sum to be paid periodically (usually annually). Concepts
of real property law (such as the passing of risk to the purchaser upon
the signing of the contract sale) should and must dominate, since its
essence is the purchase of real property. This is very different from the
typical landlord and tenant relationship where rent is the primary
consideration and the rights and obligations of the parties are usually
spelt out in considerable detail in the tenancy agreement or lease.
A strong case can be made out for viewing these cases separately as the
considerations are different; the former focuses on the purchase (albeit
of a leasehold estate), the latter focuses on the lease, its terms and
conditions.

23 Remedies founded uniformly on the premise that a lease is a demise

may, in the circumstances of a particular case, be cumbersome or artificial,
or inadequate. Take the present case. Faced with a tenant who repudiates a
three-year tenancy almost from its inception, there are three possible
remedies available on this premise. The first is for the landlord to hold the
tenant to the tenancy and to claim rent. But he cannot claim rent until it is
due, and it is due only at the beginning of each month of the tenancy term.
The landlord would have to take repeated proceedings to claim rent as and
when it is due, or wait out the term and take one set of proceedings. This is
a wasteful option for the individuals concerned and for society. It is not a
very attractive option. The second option is to forfeit the tenancy by
invoking the re-entry proviso. But that brings the lease to an end. The
proviso, as in this case, saves the landlords right in respect of rent accruing
up to the date of re-entry, but says nothing about rent reserved for the
remainder of the term. While the remedy may be adequate for the landlord,
and may even be unjust to a tenant who has purchased a long lease at a
premium (hence the intervention of equity in the form of relief against
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forfeiture), it would be quite inadequate for the landlord in a case such as

the present.
24 The third option is for the landlord to retake possession with a notice
to the tenant that he is doing so with a view to re-letting on the tenants
account. This is an extension of the remedy of surrender by operation of
law. However, surrender is a mode of determination of a lease based
essentially on consent and agreement between the landlord and tenant.
Such an extension seems to be artificial and departs from the essentially
consensual foundation of the remedy of surrender. When Laskin J in the
Highway Properties case ([18] supra) said that the application of the
ordinary contractual concept of repudiation and acceptance would cut
through artificial barriers to relief that have resulted from overextension of
the doctrine of surrender, he may have had this in mind. An inadequacy in
the surrender remedy is that it does not require the landlord to mitigate his
loss. See, eg the case the learned district judge relied on, Teh Wan Sang &
Sons Sdn Bhd v See Teow Chuan [1984] 1 MLJ 130.
25 The Teh Wan Sang case concerned a tenancy of three years at a
monthly rent. Sixteen months into the tenancy the tenant gave three
months notice that he would vacate the premises. The landlord refused to
accept the purported termination, stating that it was prepared, on a without
prejudice basis, to look for a new tenant, provided the tenant continue to
pay rent punctually. The tenant vacated and returned the keys. It was not
until 11 months later that the landlord was able to find a tenant.
26 In an action to recover rent, the question whether the landlord had
mitigated his loss was raised. It was held that the landlord as the innocent
party had a choice whether to accept the breach. As it had treated the
contract as still subsisting, it had not accepted the breach. It was held that
the duty to mitigate only arises when there is a breach of contract, and that
the breach occurred only when the landlord took in the new tenant.
27 I said earlier that the question whether the concept of repudiation and
acceptance applies in leases has not been dealt with in Singapore. However,
in Klerk-Elias Liza v K T Chan Clinic Pte Ltd [1993] 1 SLR(R) 609, the Court
of Appeal assumed that the concept, as well as the rule relating to
mitigation of damages, applied to the tenancy before it. The majority of the
Court of Appeal found that the parties had concluded a tenancy agreement
for three years with an option for two more, at a monthly rent. They found
that the tenant had repudiated the agreement and that the landlord had
accepted the repudiation. They also found that the landlord had not done
enough to mitigate his loss.
28 It seems to me there is much to be said for the application, in
appropriate cases, of the contractual concept of repudiation and acceptance
as a means, in addition to the traditional ones provided by the common law,
of bringing a lease to an end. It is particularly appropriate in the case of a
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lease in which the element of a purchase of an interest in land is not

significant or is non-existent. In such cases, its application, together with
the application of the rule about mitigation of damages, is more
straightforward and is more likely to lead to a fair and equitable adjustment
of the rights and obligations of the parties where the tenant repudiates the
tenancy, than is the application of any of the common law remedies I have
referred to.

The present case

29 In the present case, the plaintiffs, after receiving the letter of
1 July 1992, responded to it in the way I have indicated. There was much
argument whether and when the defendant indicated a firm intention to
terminate. It seems quite clear from the language of the plaintiffs letter in
reply that the plaintiffs regarded the defendants letter as indicating an
intention to terminate. It is just that the plaintiffs did not agree that the
defendant could be allowed to renege from the contract without liability
except for the rent accruing up to 23 July 1992.
30 The learned district judge found that the plaintiffs never accepted
the defendants termination of the tenancy, apparently using the word in
the sense of agreeing to a discharge of the tenancy contract.
31 The learned district judge held that a lease could only be terminated
in the traditional manner of the common law, relying on the dictum of Lord
Denning in the Total case cited above ([17] supra). She held that the lease
was terminated by surrender when a new tenant was found who entered
into a tenancy agreement on the same terms as those of the original
agreement. She relied on the Teh Wan Sang case ([24] supra) and held that
the plaintiffs were entitled to claim the arrears of rental from 1 July 1992 to
31 June 1993, and that the plaintiffs were not under any duty to mitigate
their loss.
32 The appellants case in gist is that the learned district judge should
have applied the doctrine of repudiation and acceptance and the rule of
mitigation of damages and that she should have found that the plaintiffs
had failed to mitigate their loss.
33 The plaintiffs did make efforts to get a new tenant. As the plaintiffs
did not approach the matter on the basis of acceptance of a repudiation in
the proper sense of the word acceptance, these efforts were not intended
by them as efforts in mitigation of damages. As they made clear in their
letters to the defendant, they were holding him to the tenancy agreement
and were making these efforts on the defendants account.
34 Since I take the view that the contractual remedies were available, and
since the learned district judge did not address, or did not find it necessary
to address, the question of mitigation, it is appropriate for me to do so.
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35 The Mount Elizabeth Medical Centre is largely a centre for medical

specialities. Only specialists are allowed to practice there. Potential tenants
will usually go to the property department to see if there are units available
for lease. Similarly, lessors go to them to tell them of units available. The
plaintiffs, who had been owners of the subject premises for the past 14 years
had always been able to get a tenant through Mrs Theresa Poh of the
department. This is what they did when the defendant told them he was not
going to take up the tenancy. In addition, the plaintiffs inserted
advertisements in the Singapore Medical Association Newsletter in its
September, October and December 1992 and February 1993 issues. It will
be recalled that the defendant himself had inserted one in July 1992. There
were one or two inquiries. As early as mid-July 1992, Dr Lee Chui Tho
showed an interest. But he found the unit too big and that he would have to
spend money on doing it up. So he decided to take a unit on the 16th floor
instead. Then in September 1992, Dr Vincent Lee showed up. He offered
$4,000 a month as rental. The plaintiffs, taking the view that they were
arranging for a new tenant on the defendants behalf and for his account,
sought the defendants agreement to let the premises at this reduced rent
and his agreement to pay the arrears of rent and the loss sustained by the
plaintiffs from the reduced rental up to the end of the term. However,
despite urgent and repeated reminders, the defendant did not give his
agreement. The defendant, no doubt, was entertaining the view that he was
not liable for any rent after 23 July 1992.

36 At that time, tenants were not easy to come by. A new wing of the
centre had been completed only in February 1992, with 64 units available
for sale. According to Mrs Poh, most doctors prefer to buy units rather than
rent them because they would not have problems with security of tenure. So
there were very few potential tenants about. In the event, as stated earlier, it
was not until May 1993 that a tenant, Dr Steven Ho, was found who took
the premises at the rental of $5,000 a month. The plaintiffs proceeded to
sign a tenancy agreement with him without getting the defendants
agreement to bear the loss.

37 The defendant criticises the adequacy of the plaintiffs efforts. He says

the plaintiffs did not act promptly enough. He says it was not enough for
them to just contact Mrs Poh and insert the advertisements. He says the
terms of the advertisements were not detailed enough. He says they should
have engaged professional real property agents. He refers to the Klerk-Elias
Liza case ([27] supra) in which the Court of Appeal found that it was not
enough for the landlord, who was also a doctor, to advertise only (as it
happened) in the Singapore Medical Association (SMA) Newsletter, and
that had he done more, eg by advertising in the general press and engaging a
real estate agent, he would have been able to get a substitute tenant earlier
than the nine and a half months that he in fact took.
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38 I need only make two observations. The rule of mitigation of damages

does not require the innocent party to do more than is reasonably required
to stem the loss. As it is the party in default who has brought about a
situation which calls for measures to mitigate loss, he is in no position to be
astute in criticising the adequacy of the mitigating steps taken by the
innocent party. As Lord MacMillan said in Banco de Portugal v Waterlow
and Sons, Limited [1932] AC 452 at 506, the measures which the innocent
party may be driven to adopt ought not to be weighed in nice scales at the
instance of the defendant whose breach of contract has occasioned the
difficulty.
39 The measures taken by the plaintiffs in the instant case were in my
view eminently reasonable. They went to Mrs Poh, who had been successful
in getting tenants in the past for them, not only for the premises in question
but also units elsewhere in the centre which they owned. Advertising was
not the only effective way of getting tenants in this medical centre. Dr Lee
Chui Tho, for instance, came to know of the availability of the subject
premises from a fellow doctor. On the other hand, advertisements in
September in the SMA Newsletter (as opposed to the mass media) would be
effective to reach doctors who were interested in a place here. Dr Vincent
Lee got to know about the subject premises from the September SMA
advertisement.
40 Unlike in the Klerk-Elias case ([27] supra), which concerned general
business premises, the unit in question could only be leased to doctors, and
specialist doctors at that. So it was perfectly sensible for the plaintiffs to
advertise in a newsletter for general circulation to doctors. But as I said, it
was not easy to find a tenant. When one was found, the defendant was not
willing to co-operate. It seems to me that the problem was not in the lack of
publicity. It probably lay with the defendant himself. He seems not to have
been able to come to terms with the fact that he had broken a contract
which he had entered into and that he had to bear the consequences of the
breach. He appears to have laboured under the illusion that he needed to
pay rent only up to 23 July 1992 when, he says, the plaintiffs accepted his
termination. Had he taken up Dr Vincent Lees offer, the damages would
have been about $22,000. The plaintiffs were not asking any more than
what they were entitled to had the defendant performed the contract. The
plaintiffs did get a tenant in the end at the same rent of $5,000 per month as
provided in the defendants tenancy, but it was not until quite a few months
later, and the damages had gone up to the amount the plaintiffs claim in
this suit.
41 What Lord MacMillan said in the Banco de Portugal case ([38] supra)
is worth bearing in mind when one considers the facts of this case. It seems
to me that not only did the defendant take a wholly-unreasonable view of
his position as the party in breach; he also took an unreasonable view as to
what the plaintiffs had to do to mitigate loss. It seems to me that what the
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[1998] 1SLR(R) Tan Soo Leng David v Lim Thian Chai Charles 891

plaintiffs in fact did was no less than what a plaintiff, acting on the
repudiation-acceptance view of the law, could reasonably have been
expected to do to mitigate loss.
42 I, therefore, dismissed the appeal with costs.

Headnoted by Yeo Hung Hee.