Chan Sze Ying v Management Corporation Strata Title Plan No 2948 (Lee Chuen T'ng, intervener)

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 24 December 2020
• Neutral Citation: [2020] SGCA 123
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 82 of 2020 and Summons No 112 of 2020
• Year: 2020
• Published date: 30 December 2020
• Hearing Date: 18 November 2020
• Plaintiff Counsel: Lee Sien Liang Joseph and Muk Chen Yeen Jonathan (LVM Law Chambers LLC)
• Defendant Counsel: Chew Kei-Jin and Tan Silin Stephanie (Chen Silin) (Ascendant Legal LLC),Wah Hsien-Wen Terence and Mok Zi Cong (Dentons Rodyk & Davidson LLP)
• Subject Matter: Land,Strata titles,Meetings
• Citation: [2020] SGCA 123

Tay Yong Kwang JA (delivering the grounds of decision of the court): Introduction

This appeal concerns the existence and the exercise of the power of the chairperson of an annual general meeting (“AGM”) of a condominium’s management corporation to adjourn the AGM. The condominium in question here is The Caribbean at Keppel Bay (“the condominium”) located at Keppel Bay Drive.

On 3 August 2019, the condominium’s Management Corporation Strata Title Plan No 2948 (“the Respondent”) held its 13th AGM. The intervener, Ms Lee Chuen T’ng (“the Intervener”), was the chairperson of the incumbent 12th Management Council (“12th MC”). By virtue of that position, she chaired the 13th AGM during which elections for the 13th Management Council (“13th MC”) took place. The AGM was held in the Keppel Hall of the Keppel Club which was located near the condominium. The AGM was scheduled to start at 2pm and end at 7pm and the premises were therefore booked for those hours. However, the AGM overran its scheduled timing and it was not until 8.45pm that the counting of the votes cast in the elections for the 13th MC was completed.

The 13th MC was to have 11 council members. The voting result was that ten candidates were elected (Mdm Chan Sze Ying (“the Appellant”) being one of them) but there was a tie in the votes for the 11th and final position between the Intervener and another candidate, Dr New Eak Chan @ Neo Eak Chan (“Dr Neo”), both of whom were standing for re-election. After the results were announced, the Intervener adjourned the AGM without having a run-off election to break the tie and without calling for a motion to adjourn, which would have been the proper procedure. The adjourned AGM was reconvened on 19 October 2019, at which time Dr Neo withdrew as a candidate and the Intervener was declared to be elected to the 13th MC accordingly.

In HC/OS 1203/2019 (“the OS”), the Appellant applied for the following declarations: the AGM was adjourned illegally and/or improperly by reason of the Respondent’s failure to pass an adjournment motion and the AGM was concluded on 3 August 2019 accordingly; and the ten individuals named in the schedule annexed to the OS were the members of the 13th MC upon the conclusion of the AGM and the members of the 12th MC had vacated their offices pursuant to s 54(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“the Act”).

The High Court (“the Judge”) dismissed the OS in a reserved judgment in Chan Sze Ying v Management Corporation Strata Title Plan No 2948 (Lee Chuen T’ng, intervener) [2020] SGHC 88 (“the Judgment”). The Appellant appealed and also applied for leave to adduce fresh evidence in CA/SUM 112/2020 (“SUM 112/2020”).

In the course of the appeal hearing before us, after hearing our views, the Appellant decided to withdraw SUM 112/2020. We granted the Appellant leave to do so. In respect of the substantive appeal, we were of the view that the Intervener, as the chairperson, could exercise a residual common law power to adjourn the AGM and that she did so lawfully in the circumstances. We therefore dismissed the appeal. We now give the detailed reasons for our decision.

Background facts The parties

The Appellant and her husband are subsidiary proprietors in the condominium. The Respondent is the management corporation of the condominium. At the material time, its managing agent was Savills Property Management Pte Ltd (“Savills”). Mr Chan Kok Hong (“Mr Chan”) was Savills’ representative in the condominium. In these proceedings, the Respondent maintained a neutral position both in the High Court and on appeal, leaving the issues in the OS to be argued between the Appellant and the Intervener.

The Intervener is also a subsidiary proprietor in the condominium. As the chairperson of the incumbent 12th MC, she chaired the AGM on 3 August 2019.

Before the AGM

On 30 June 2019, Savills, on behalf of the Respondent, informed the subsidiary proprietors of the condominium by way of letter that the 13th AGM would be held on Saturday, 3 August 2019 at 2pm, at the Keppel Hall in the Keppel Club. The notice and the agenda of the AGM were enclosed in that letter. The Keppel Hall was booked until 7pm that day. This was later than the usual ending time of 6pm for AGMs because of the number of items on the agenda for this AGM.¹ The booking was until 7pm only as it was the managing agent’s and the Intervener’s experience that none of the previous AGMs had gone beyond 7.35pm and that an extension for one or two hours could be requested from the Keppel Club if necessary.²

The year leading up to the AGM on 3 August 2019 was a difficult one for the 12th MC and the Respondent. Issues that arose at the 12th AGM in 2018 continued to cause problems throughout the ensuing year. In addition, various subsidiary proprietors had made complaints of “verbal abuse, legal harassment and … even … of physical abuse”.³ This atmosphere of conflict set the tone for the 13th AGM.

The AGM

On 3 August 2019, the AGM was convened at the Keppel Hall. The Intervener chaired the proceedings and was assisted by Mr Chan. The AGM was scheduled to begin at 2pm but was called to order only at 2.30pm when the requisite quorum was obtained.⁴ Mr Chan announced that the AGM was scheduled to conclude by 7pm as the premises had to be vacated by that time.⁵ As the AGM continued, however, the proceedings slowed down despite efforts to keep the AGM on track, as various issues were raised and argued, ranging from personal grievances to criticisms of the 12th MC.

The AGM eventually reached the items on the agenda concerning the 13th MC, the incoming management council (“MC”). Motion 10.1 was for the AGM to “determine the number of council members for the 13th Management Council”,⁶ as s 53(1) of the Act provided. Two options, 11 and 13 members, were put to a poll.⁷ Voting on motion 10.1 was concluded at around 6pm.⁸ Subsequently, the names of the candidates standing for election to the 13th MC were shown. Following a number of discussions relating to term limits⁹ and voter secrecy,¹⁰ the candidates were invited to introduce themselves.¹¹ These discussions were prompted by the attendees of the AGM and were unexpected and unplanned for by the Intervener and by Savills.

In the course of the introductions, an unidentified speaker raised a point of order to clarify what would happen if the AGM could not be concluded by 7pm that day:¹²

UNIDENTIFIED SPEAKER:	Chairlady, small question if I may? A point of order. Like, we are not going to make 7 o’clock. So will there be another meeting if we don’t finish it?
CHAIRMAN:	I think we should just hear everybody out and at least get this done.
UNIDENTIFIED SPEAKER:	I agree.
CHAIRMAN:	Okay.
UNIDENTIFIED SPEAKER:	But I need to leave and I am here for the next item. Are we going to –
CHAIRMAN:	Yes. Well, I think give everybody chance to –
UNIDENTIFIED SPEAKER:	That is not the question.
…
UNIDENTIFIED SPEAKER:	The question, we are not going to finish before 7, are we?
CHAIRMAN:	We are not. We will just finish this resolution and then we will make a decision after that, okay?
UNIDENTIFIED SPEAKER:	Okay.
MR CHAN KOK HONG:	Excuse me, sir, if we don’t make it by 7 pm, we are going to have to adjourn this meeting and it will be held next month, and we will send out a notice to you.
CHAIRMAN:	Okay, but I think we all are here for a purpose, so let’s try and finish this resolution, okay?

After a few more introductions from the candidates, Mr Chan announced that the AGM had obtained an extension of one hour from the Keppel Club (ie, to 8pm) and stated his hope that they would be able to complete the elections and the counting of the votes.¹³ After the introductions were completed, voting commenced. As the result of motion 10.1 had not yet been determined, it was not known whether the 13th MC would consist of 11 or 13 members and the attendees of the AGM were told to vote for 13 candidates.¹⁴

Once again, an unidentified speaker raised a concern about what would happen if the motion could not be resolved in time. The Intervener stated that “if we can’t finish then we will adjourn the meeting”.¹⁵ Mr Chan clarified that they would “finish counting [the votes], declare the results and adjourn the meeting”.¹⁶ They would then announce the date and time of the next meeting as well as send out a fresh circular with that information. Mr Chan then said, “So if you have to go, please cast your votes now, and then if you don’t want to wait for the results, it’s okay.”¹⁷ This was the second time that Mr Chan mentioned the intention to adjourn the meeting and the first time that he stated expressly that the meeting would be adjourned after the announcement of the results of the elections.

While the AGM attendees waited for the votes to be counted, Mr Chan announced the results of the various motions that were voted on earlier. For motion 10.1, he declared that the AGM had decided to have 11 members in the 13th MC.¹⁸ To save time, the AGM also proceeded to pass resolutions for motions 10.3 and 10.4 which concerned the powers of the 13th MC.¹⁹

At this point, a subsidiary proprietor asked whether they would vote on other resolutions after the results were announced. Mr Chan clarified, “No. We’re waiting for the results for the election of council members, and then I’ll announce that the meeting will be adjourned.”²⁰ This was the third time that it was mentioned that the AGM would be adjourned and the second time that it was stated expressly that the adjournment would be after the results of the elections were announced.

The votes were counted by around 8.45pm.²¹ Before announcing the results of the...