Backdating agreements english law
At that time, this was the prevailing limit imposed by MAS Notice No 632 on the quantum of residential property loans for borrowers in the Respondents’ position.7 On 5 October 2012, the MAS issued an amendment to MAS Notice No 632 (“the 5 October Notice”), the effect of which was that the LTV ratio of the Respondents’ proposed loan from the Bank would have to be lowered from 80% to 60%.
It was not in dispute that the Respondents knew about the 5 October Notice around the time it was announced.8 On 10 October 2012, the Respondents made an oral offer to the Appellant to purchase the Property.
Even if there was an illegality in financing, this was too remote to render the Option unenforceable, given that there was nothing to prevent the Respondents from performing their contractual obligations lawfully by paying the purchase price in cash.
The Respondents also argued that their claim should be allowed as they did not need to rely on the backdating to establish their claim against the Appellant.23 The defence of illegality and public policy is not always a “meritorious” one when viewed from the perspective of the individual parties.
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.
No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
According to the Respondents, they had been advised by Ong to ask their property agent to check with the Appellant if she was willing to backdate the Option to 4 October 2012 so that they could obtain a loan for the purchase on the more favourable terms allowed prior to the 5 October Notice.
The Respondents’ position was that Ong had told them that “a lot of buyers” were backdating their purchases to dates prior to 5 October 2012 for that reason and that this was simply “common practice”.9 On 15 October 2012, the Respondents were offered a loan from the Bank at the LTV ratio of 80% and on 19 October 2012, they accepted the offer.
The Appellant also argued that the Respondents were not entitled to an order for specific performance because they had “unclean hands”.13 Conversely, the Respondents contended that the Option was valid and binding on the Appellant, since it was not illegal ) by voluntarily undertaking to perform the contract in full compliance with the 5 October Notice.14 The Judge held that the Option was valid and binding on the Appellant and granted the Respondents an order for specific performance of the Option.
The Judge considered that there was no statutory illegality since there was no express or implied legislative intention that the backdating of the Option would render it unenforceable.This notice was prescribed for the purpose of regulating residential property loans.