Chan Kin Foo v City Developments Ltd

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 14 March 2013
• Neutral Citation: [2013] SGHC 61
• Docket Number: Suit No 586 of 2011(Registrar’s Appeal No 312 of 2012)
• Date: 14 March 2013
• Published date: 22 March 2013
• Plaintiff Counsel: Joseph Chen (Joseph Chen & Co)
• Hearing Date: 10 August 2012,08 January 2013,18 October 2012
• Defendant Counsel: Tham Wei Chern, Tan Kai Liang and Faith Boey (Allen & Gledhill LLP)
• Court: High Court (Singapore)
• Subject Matter: Striking Out,Discrimination,Constitutional Law,Pleadings,Civil Procedure

Andrew Ang J:

This was an appeal against the Assistant Registrar’s (“AR”) decision to strike out parts of the Appellant’s statement of claim pursuant to O 18 r 19(1) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“ROC”), on the ground that it disclosed no reasonable cause of action.

The Appellant, Chan Kin Foo (“Chan”), was the owner of a unit in Lock Cho Apartments (“the Property”) which was sold en bloc on 14 August 2006 (“the Collective Sale”). Chan was part of the minority who opposed the Collective Sale. He sued the Respondent, City Developments Ltd (“CDL”), the purchaser of the Property, on the ground that CDL’s purchase of the Property was in violation of Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) and Arts 1, 7 and 17 of the Universal Declaration of Human Rights (“UDHR”) as it discriminated against the rights of the minority to own property.

CDL applied to strike out the action, arguing that it disclosed no reasonable cause of action and was an abuse of process as Chan had elected not to raise his objections with the Strata Titles Board (“STB”) before the Collective Sale was approved on 14 August 2006. On appeal, CDL further averred that the claim was brought against the wrong party; the proper party was the Sale Committee which applied for the Collective Sale (“the Sale Committee”), and not CDL.

After hearing the parties, I dismissed the appeal and now give my reasons for the decision.

Factual background

Chan acquired strata title to 71C Jalan Raja Udang, Lock Cho Apartments, Singapore 329214, his unit in the Property (“the Unit”) on 20 March 1974. He lived in the Unit until it was put up for collective sale pursuant to an agreement for the collective sale of the Property dated 20 February 2006 (“the Collective Sale Agreement”).

CDL entered a bid for the Property and was awarded the tender for the Property sometime on or about 30 March 2006 (“the Tender Agreement”). The Tender Agreement and the Collective Sale Agreement were submitted to the STB, which made an order on 14 August 2006 approving and ordering the collective sale of the Property to CDL. The owners were notified of the collective sale on the same date.

On 12 September 2006, lawyers for the Sale Committee, Rodyk & Davidson LLP (“Rodyk”) wrote to Chan to inform him that the document for transfer of the Property to CDL (“the Transfer Document”) was ready for his signature. Sessions for signing of the Transfer Document took place on 19 and 20 September, but Chan did not attend either session. Rodyk wrote to Chan again on 21 September 2006 in an attempt to arrange for signing of the Transfer Document by 28 September 2006. This letter warned Chan that if he did not respond by 28 September 2006, it would be assumed that he was not willing to sign the Transfer Document and an application would be made to the STB pursuant to s 84C of the Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) (“the Act”) for an ancillary order to appoint a person to sign the Transfer Document on his behalf. The letter was delivered in triplicate (by registered post, by hand to Chan’s doorstep, and via the security guard working at the development who delivered it to Chan on 22 September 2006).

On 29 September 2006, after receiving no response from Chan, Rodyk sent a final reminder, again in triplicate, to Chan to sign the Transfer Document. Ms Young Poh Yoke (“Ms Young”), one of the three authorised representatives of the owners, deposed that she had hand-delivered this letter to Chan on 30 September 2006. A further attempt to have Chan sign the Transfer Document was made on 2 October 2006 via a note left at Chan’s door by Ms Young. In this note, Ms Young warned Chan that if she did not hear from him by 4 October 2006, the three authorised representatives would “proceed to apply to Strata Title Board without further reference to you any more”.¹ On 3 October 2006, Rodyk also published a notice in The Straits Times requesting Chan to contact them urgently “regarding the execution of the documents relating to property transaction”.² According to CDL, Chan did not respond to either reminder.

In any event, Chan did not sign the Transfer Document or get in touch with Ms Young and/or Rodyk. Accordingly, on 6 October 2006, the three authorised representatives applied to the STB under s 84C of the Act to appoint Ms Young for the purposes of, inter alia, the execution of the Transfer Document and the delivery of vacant possession. The Transfer Document was executed by Ms Young for and on behalf of the Plaintiff on 14 November 2006 and the collective sale was completed on the same day.

On 22 May 2007, a letter of demand for vacant possession of the Unit was issued by CDL’s solicitors at the material time, M/s Ramdas & Wong, and delivered by hand to Chan via the security guard. Chan refused to give vacant possession and instead made a police report on 25 June 2007 (“the Police Report”). Chan stated in this report that his signature for the Transfer Document had been forged and/or that “criminal intimidation” had been used in the transaction to wrongfully secure a transfer of the Unit to CDL without his consent.³ CDL applied for and obtained a writ of possession against Chan on 11 July 2007 and gained entry to the Unit on 20 July 2007. An inventory of the chattels in the Unit was taken before the bailiff sealed the gates of the Unit and changed its locks. On 2 August 2007, the police informed CDL of the Police Report and CDL made five attempts to have the police contact Chan in an effort to return the chattels to him.

The Property was demolished between August and December 2007. Prior to its demolition, on or about 26 and 27 July 2007, CDL re-entered the Unit for the removal and storage of the chattels contained within. On 20 September 2007, CDL also obtained a valuation of the chattels. When efforts to locate and contact Chan failed, some of the chattels were sold by auction on 20 October 2008.

Chan’s share of the proceeds from the sale of the Property, amounting to $840,981.37, was paid into court pursuant to an order of court dated 15 February 2007. The balance stakeholder moneys, an additional sum of $37,985.49, were paid into court pursuant to an order of court dated 1 November 2007. These sums were released to Chan’s solicitors, Joseph Chen & Co (“JCC”) on 22 March 2011, pursuant to JCC’s application for the same.

The Suit and hearing before the AR

Chan brought Suit No 586 of 2011 (“the Suit”) to recover damages for wrongful transfer of the Property in disregard of the minority owners’ interests, for an account of the chattels which were found in the Unit and sold, and a return of all remaining chattels which were found in the Unit.

CDL applied with Summons No 2443 of 2012 to strike out the action under O18 r 19(1) of the ROC and pursuant to the inherent jurisdiction of the court. CDL claimed that there was no legal basis for the claim that the sale of the Property was in violation of Art 12 of the Constitution as there was a valid and binding sale of the Property to CDL. CDL also claimed that the entire proceedings were an abuse of process as Chan had the opportunity to raise his objections with the STB but had chosen not to do so and was estopped from now bringing this claim.

The AR struck out Chan’s claim that CDL had wrongfully taken possession of the Property (“the Property Claim”) on the basis that it was “obviously unsustainable” and had not been specifically pleaded. The AR allowed the claim for an account of the chattels sold and a return of unsold chattels removed from the unit, save that he struck out those items which he deemed fixtures.

Chan appealed against the AR’s decision and in the hearings before me focussed exclusively on the Property Claim. A further ground of appeal was raised, viz, that the boundaries of the Property were uncertain and it was incapable of being sold to CDL. However, this argument was quickly put to bed when CDL’s lawyers produced a certified survey plan in a subsequent hearing which showed clearly that the boundaries were certain as at the date of the collective sale to CDL. This further ground of appeal hence became otiose. Because it was indicated to me during the hearings that Chan’s objection was to the striking out of the Property Claim and not to the striking out of certain parts of the list of chattels (“the chattels claim”), I will confine these grounds of decision to the Property Claim.

Issues

The law on striking out is clear; if a claim discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of court process, it ought to be struck out. However, the power of striking out is to be exercised only in plain and obvious cases and the threshold for striking out an action is very high: see Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin [1997] 3 SLR(R) 649.

The issues were as follows: whether or not the Property Claim disclosed no reasonable cause of action; whether the bringing of the Property Claim was an abuse of process; and whether the Property Claim was brought against the proper party and, if so, whether that was a ground for striking out the claim.

Whether the Property Claim disclosed no reasonable cause of action The constitutional claim

CDL argued that there was clearly no violation of Art 12 of the Constitution, which provided that “all persons are equal before the law and entitled to the equal protection of the law”. It should be noted at the outset that while Chan’s argument was that the Collective Sale was in violation of Art 12, his argument was essentially that all collective sales made under ss 84A to 84G of the Act violate Art 12 as there will be dissentient minorities whose “rights” may be affected.

The issue of whether collective sales...