By an agreement in writing dated 19 January 1981 (hereinafter called 'the said agreement') made between the defendant as vendor and the plaintiffs as purchasers, the plaintiffs agreed to purchase and the defendant agreed to sell the property known as No 55 Oei Tiong Ham Park, Singapore (hereinafter called 'the said property') for the sum of $1,310,000 subject to existing tenancy.

It is not disputed that under the said contract a sum of $131,000 has been paid by way of deposit to the defendant as vendor.

It is also not disputed that the said property is residential property within the meaning of the Residential Property Act (Cap 274, 1985 Ed) ('the Act') and that both the plaintiffs (the purchasers herein), though permanent residents of Singapore, were foreign persons within the meaning of the Act and that any transfer of the said property to them, whether for consideration or by way of gift or otherwise, is prohibited by and would be null and void under s 3 of the Act and that, unless the purchasers had obtained the approval of the minister under s 25 of the Act, the purchasers would be committing an offence under s 36 of the Act.

On 28 April 1981, the Controller of Residential Property in response to the plaintiffs' application dated 2 February 1981 for approval to purchase the said property and in compliance with s 25(11) of the Act conveyed to the plaintiffs' solicitors by notice in writing bearing the same date that the minister had considered the plaintiffs' application and had disapproved it.

The plaintiffs have in fact demanded of the defendant the return of the said deposit, but the defendant has refused and refuses to return the said $131,000.

It is in these circumstances that the plaintiffs have commenced proceedings against the defendant and claim the return of the said sum of $131,000.

The plaintiffs contend that the said agreement has been frustrated by the failure to obtain the minister's approval and that the plaintiffs are accordingly entitled to recover the said deposit as money had and received for a consideration that has wholly failed.

In their amended statement of claim the plaintiffs plead that 'at the time and in consideration of the plaintiffs entering into the said agreement the defendant orally agreed by himself and by his said solicitor with the plaintiffs and warranted to them as an agreement collateral to the said agreement and with the intent that the plaintiffs should rely thereon that the sale and purchase should be subject to the grant of approval by the minister to the plaintiffs to purchase or acquire the said property'. They also plead that 'relying on the said oral agreement and the warranty the plaintiffs duly entered into the said agreement on 19 January 1981 as aforesaid'. Further and in the alternative', the plaintiffs say it, 'it was an implied term of the said agreement that if the minister's approval was not obtained the said deposit of $131,000 would be repaid to the plaintiffs and the said agreement would be null and void.'

The plaintiffs also contend that prior to 19 January 1981 the defendant and his solicitor Choo Kwun Kiat knew that both the plaintiffs were foreign persons within the meaning of the Act. The defendant denies this and maintains that it was not until after the minister had refused his approval for the purchase of the said property did he come to know that the plaintiffs were Indonesian nationals.

On this single issue evidence was led on both sides. I accept the evidence of the defendant and of his then solicitor Mr Choo Kwun Kiat, who acted for him in the sale and purchase, on this issue and find that the defendant came to know of the plaintiffs being Indonesian nationals only after the minister had disapproved of the said purchase on 28 April 1981. It follows from this that there could not have been any oral agreement that the sale and purchase of the said property should be subject to the grant of approval by the minister to the plaintiffs to purchase an