Botanica Pte Ltd v Management Corporation Strata Title Plan No 2040

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 08 May 2012
• Neutral Citation: [2012] SGHC 98
• Plaintiff Counsel: Quek Mong Hua and Nicholas Poa (Lee & Lee)
• Docket Number: Originating Summons No 1073 of 2011, Summons No 349 of 2012
• Date: 08 May 2012
• Hearing Date: 03 April 2012
• Subject Matter: easements,Land law,interference
• Year: 2012
• Citation: [2012] SGHC 98
• Defendant Counsel: William Ricquier and Adrian Aw (Incisive Law LLC) as Counsel and Arfat Selvam (Selvam LLC) as Instructing Solicitors
• Court: High Court (Singapore)
• Published date: 31 May 2012

Steven Chong J: Introduction

This case concerns an application for a declaration against injunctive relief with the ultimate objective of facilitating the realignment of an access road occasioned by a proposed redevelopment. This application is made on the authority of the decision of the Court of Appeal in Yickvi Realty Pte Ltd v Pacific Rover Pte Ltd [2009] 4 SLR(R) 951 (“Yickvi”). The defendant seeks to strike out the application on the basis that unlike the present case, Yickvi was concerned with an unregistered easement and that in the case of registered easements, the court has no power to permit such realignment under the Land Titles Act (Cap 157, 2004 Rev Ed) (“LTA”).

It is not disputed that no distinction was made in Yickvi between a registered and an unregistered easement. Neither was the point raised that the court lacks power under the LTA to modify registered easements. The key issue is whether the fact of registration of the easement in the present case would make the critical difference, as contended by the defendant, warranting its striking out or whether it is, in truth, a distinction without a difference.

Facts The Parties

The plaintiff, a company incorporated in Singapore and a wholly owned subsidiary of Wheelock Properties (Singapore) Limited (“Wheelock”), is the owner of Lot No 658X of Town Subdivision 25 (“the Servient Tenement”).

The defendant is the owner of Lot No 721C of Town Subdivision 25 (“the Dominant Tenement”), a plot of land adjoining the Servient Tenement.

Background

The existing easement (“the existing Easement”) was granted on 2 January 1986 by the plaintiff’s predecessor-in-title, Robin Development (Private) Limited, to the defendant’s predecessor-in-title, Fu Yun Siak. It was essentially an extended right of way (“the path”) running across and connecting four adjourning plots of land: Lot No 638 of Town Subdivision 25 (“Lot 638”), the Servient Tenement, the Dominant Tenement, and Lot No 640 of Town Subdivision 25 (“Lot 640”).¹ Access from the road to the path is through Lot 638.

Sometime in 1995, a condominium development (“the Heritage Apartments”) was built on the Dominant Tenement. As part of this development, an electrical sub-station was built on the Dominant Tenement at the boundary with the Servient Tenement in order to service the Heritage Apartments.²

In 2007, Lot 638 was redeveloped and the entrance to the existing Easement located at Lot 638 leading into the Servient Tenement from the road was closed. Nonetheless, the path continues to provide access only as between the Servient Tenement and Dominant Tenement.³

Pursuant to an en-bloc redevelopment, sometime on or around 28 August 2006, provisional planning approval was obtained by the plaintiff for redevelopment of a new condominium project (“the Ardmore Three”) on the Servient Tenement.⁴ The redevelopment would entail realigning the path to optimise the use of the land.

In 2011, the plaintiff sought to negotiate with the defendant with a view to reaching an agreement for the proposed realignment of the existing Easement, but to no avail.⁵

Procedural History

On 13 December 2011, the plaintiff filed an application for a court declaration that, inter alia, the proposed realignment can constitute no wrongful interference with the enjoyment of the existing Easement and no reasonable objection could be taken to the proposed realignment. Alternatively, the plaintiff sought a declaration that the defendant has no right to injunctive relief against the plaintiff on the plaintiff’s undertaking to reserve unto the defendant all rights under the existing Easement in the proposed realignment (“the Main Application”).

On 25 January 2012, the defendant filed a summons (“Summons No 349 of 2012”) to strike out the Main Application under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”), and/or for the court to determine under O 14 r 12 of the ROC that, as a matter of law, the plaintiff has no justifiable cause to apply to the court to realign the existing Easement (“the Striking Out Application”).

At the pre-trial conference on 28 February 2012, the Assistant Registrar (“AR”) decided that the Striking Out Application and the Main Application should be heard separately. The plaintiffs appealed against the decision of the AR (Registrar’s Appeal No 75 of 2012) and the matter came before me on 8 March 2012 (“the 8 March hearing”). During this hearing, the plaintiff disclosed a letter from SP PowerGrid Ltd (“SP Power”) stating that it does not have any objection to the proposed realignment of the existing Easement. Since the main user of the existing Easement was SP Power, for it to gain access to the electrical sub-station, this letter was clearly of some relevance. The defendant’s counsel at that hearing, Mr Adrian Aw, however, informed the court that the SP Power letter was not previously brought to their attention. He further informed the court that the existing Easement is not “indefeasible”, that is to say, the path may be realigned if the Yickvi principles are fulfilled. No distinction was made at this hearing between registered and unregistered easements. On the strength of the disclosure of the SP Power letter that was not before the AR as well as the defendant’s position that the existing Easement is not “indefeasible”, I ordered that the Striking Out Application and the Main Application be heard together.

Both applications came before me for hearing on 3 April 2012 (“the 3 April hearing”). I directed the parties to first address the court on the Striking Out Application. The principal argument raised by counsel for the defendant at this hearing, Mr William Ricquier, (“Mr Ricquier”) is that the court has no power under the LTA to modify registered easements. This was the first time such a distinction was drawn. I pause at this juncture to express some observations of the manner in which this argument was raised as it clearly took the plaintiff’s counsel, Mr Quek Mong Hua (“Mr Quek”), as well as the court, by surprise given what had transpired at the 8 March hearing. First, this was a complete reversal of the defendant’s position at the 8 March hearing when the defendant accepted that the existing Easement is not “indefeasible”. Second, both parties filed and exchanged skeletal submissions prior to the 3 April hearing. The only hint of such an argument was in the form of a solitary paragraph – almost an afterthought – at the end of the defendant’s skeletal submissions tendered just before the 3 April hearing, whereas the rest of the skeletal submissions sought to deal with Yickvi on its merits. Third, as this was a completely new point, the court did not have the benefit of the plaintiff’s submissions at the 3 April hearing, and this necessitated an adjournment for both parties to specifically address this issue. As our system of adjudication is adversarial in nature, it is crucial for the court to have the benefit of submissions from both parties in order to arrive at a properly considered decision. There is little to be gained by surprising the opponent with a fundamentally new point, particularly in this case where the defendant had earlier informed the court of a contrary position. Just to be clear, I am not suggesting that litigants are not entitled to raise new points of law at hearings. I am merely expressing a strong recommendation that counsel should inform the other party of new points of law prior to the hearing, especially if it involves a significant departure from an earlier position. This would assist the court in arriving at an informed decision after taking into account arguments from both parties and would also avoid unnecessary delays. The necessity to adhere to this best practice becomes even more compelling when the merits or lack thereof of the defendant’s principal argument is carefully scrutinised.

Principles governing striking out

Under O 18 rr 19(1)(a) to 19(1)(d) of the ROC, the court may strike out any pleading and dismiss the action on any of the grounds stated therein. In this case, the defendant’s application to strike out the plaintiff’s claim rested on the premise that it discloses no reasonable cause of action, is frivolous and vexatious and/or is an abuse of the process.

The principles governing the court’s power to strike out a claim summarily are well established. Such power will only be exercised in plain and obvious cases, and the courts will generally allow a plaintiff to proceed with the action unless his case is “wholly and clearly unarguable” (see Riduan bin Yusof v Khng Thian Huat and anor [2005] 2 SLR(R) 188 (“Riduan”) at [6], citing Tan Eng Khiam v Ultra Realty [1991] 1 SLR(R) 844 at [31]).

The question here is whether the plaintiff’s cause of action is “certain to fail” when only the allegations in the pleading are considered (see The “Osprey” [1999] 3 SLR(R) 1099 at [7]). In other words, the plaintiff’s cause of action must fail as a matter of law even without the need for the court to embark on a factual inquiry.

The Striking Out Application is principally premised on the defendant’s argument that, as a matter of law, the court does not have the power to modify registered easements under the LTA. This argument must be examined in the context of the Main Application which it seeks to strike out. In this regard, it is critical to bear in mind that the Main Application seeks a declaration, inter alia, that the proposed realignment can constitute no wrongful interference with the enjoyment of the existing Easement or, alternatively, that the defendant has no right to injunctive relief against the plaintiff (see [10] above). As such, the case would only be fit for striking out if I accept the defendant’s submission that a finding that the court lacks the power to modify registered (as opposed to unregistered) easements is fatal to the specific declaratory reliefs sought in the Main...