Do Kwon appealing against dismissal of $18.4m claim over aborted purchase of Ardmore penthouse

In the current case, Justice Jeyaretnam found that the two sums which Kwon wanted returned to him were part of the payment made for the option to purchase granted by the vendor, and the vendor was thus entitled to retain the money.

The payments were “fully earned” by the vendor’s keeping the property off the market during the option period, he said.

The judge also allowed the vendor’s counterclaim against Kwon for additional rent amounting to $40,000.

Kwon had offered $38.8 million for the property through his estate agent on Dec 11, 2021.

The next day, the vendor, a company named Covenson, indicated its agreement.

On Dec 15, the Government announced an increase in the additional buyers’ stamp duty (ABSD) for foreigners from 20 per cent to 30 per cent of a property’s purchase price.

In the light of this new measure, Kwon asked for either a longer option exercise period of 18 months as he was in the process of applying for permanent residency, or a lower offer price to account for the increase in ABSD.

The option period for private property is usually 14 days, but the duration is negotiable.

Covenson agreed to a longer option period of 18 months in exchange for further payments being made during that period.

The option to purchase was granted on Dec 23, 2021, after Kwon paid the option fee of $388,000.

Kwon then made two further payments: a sum of $1.6 million on Jan 6, 2022, and a sum of $16.8 million on Feb 28 that year.

A tenancy agreement was also signed between Covenson and Kwon.

While it was not common for such penthouse units to be rented out, Covenson stated that exceptions could be made for buyers like Mr Kwon “who expressed significant commitment to purchasing the unit” and sought to rent the unit in the short term pending their purchase of the property.

On top of the monthly rent of $40,000, a lump sum rental of $640,000 was paid.

On Feb 28, 2022, the property was handed over to Kwon.

Renovations were carried out and he lived there with his family from June to August 2022.

On May 17, 2023, Kwon’s wife exercised the option on his behalf.

Two weeks later, on May 31, Kwon’s lawyer at the time told the vendor’s lawyer that he had “come to a settled decision not to proceed with the purchase”.

On June 22, 2023, the sale and purchase contract was terminated and the tenancy came to an end.

The property was handed back to Covenson on July 25, 2023.

It has since been sold to a new buyer for $34.5 million. The option period for the deal was one month.

Kwon, who was represented by Mr Colin Seow, contended that the two sums were advance part payments for the purchase, and thus the forfeiture was invalid.

On the other hand, Convenson, which was represented by Mr Aaron Lee, contended that the sums were paid as part of the consideration for the grant of the option.

The vendor counterclaimed against Kwon for reinstatement costs, additional rent for holding the property for a month after the tenancy expired, and damages for failing to complete the deal.

Justice Jeyaretnam noted that Kwon had asked for a longer option period in the hope of changing his immigration status during that time to avoid incurring the increased ABSD.

This required Covenson to keep the property off the market for a longer period, taking on the risk that property prices might decline.

“It is natural that the longer the option period (and hence the longer the period during which the grantor takes this risk of falling prices), the higher the option fee that is needed to compensate for the period of risk,” said the judge.

Citing a previous case, he added that sums paid before the exercise of an option would typically be part of the option fee, and not part payment towards the purchase.