Chang Mei Wah Selena and Others v Wiener Robert Lorenz and Others and Other Matters

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 25 June 2008
• Neutral Citation: [2008] SGHC 97
• Docket Number: Originating Summonses Nos 86, 88, 95 and 192 of 2008
• Date: 25 June 2008
• Published date: 26 June 2008
• Year: 2008
• Plaintiff Counsel: N Sreenivasan and Valerie Ang (Straits Law Practice LLC),David Lim Hong Kan (Lim & Bangras),Michael Hwang SC, Yeo Chuan Tat, Fong Lee Cheng (Michael Hwang) (instructed) and Richard Tan Seng Chew, Diana Xie (Tan Chin Hoe & Co),Denis Tan (Toh Tan LLP)
• Citation: [2008] SGHC 97
• Defendant Counsel: Quek Mong Hua and Julian Tay Wei Loong (Lee & Lee),Andre Yeap SC, Dawn Tan Ly-Ru, Danny Ong and Dominic Chan (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Subject Matter: Land,Construction of statute,Whether transaction made in good faith,Whether s 84A(1) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) applied to privatised ex-HUDC estate,Sections 84A(1)(a) and 84A(1)(b) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Subsidiary proprietor held shares in purchaser company,Whether Board breached rules of natural justice,Collective sales,Purposive approach,Appeal to High Court against Strata Titles Board's approval of en bloc sale of privatised ex-HUDC estate,Statutory Interpretation,Effect of privatisation of HUDC estates,Strata titles,Whether s 84A(1)(a) or s 84A(1)(b) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) applied,Property hike after sale,Meaning of TOP and CSC in ss 84A(1)(a) and 84A(1)(b) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Whether collective sale agreement still valid at time of application to Board,Significance of reference to temporary occupation permit ("TOP") and certificate of statutory completion ("CSC") in ss 84A(1)(a) and 84A(1)(b) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed)

25 June 2008 Judgment reserved.

Choo Han Teck J:

1 On 21 December 2007, the Strata Titles Board (“the Board”) approved the collective sale of Gillman Heights Condominium (“the Development”) to Ankerite Pte Ltd (“the Purchaser”) at the price of $548m. The plaintiffs (“the appellants”) were the minority subsidiary proprietors of the Development who objected to the collective sale and filed the present appeals (Originating Summons (“OS”) Nos 86, 88 and 95 of 2008) against the decision of the Board (STB No 53 of 2007). The defendants named in OS Nos 86, 88 and 95 (“the respondents”) were members of the Sales Committee of the Development who had filed the application to the Board (“the Application”) for a collective sale order on behalf of the consenting subsidiary proprietors (“CSPs”). A separate application (OS No 192 of 2008) was also taken up by four sets of CSPs, who had signed the Collective Sale Agreement (“CSA”) but not the Supplemental Collective Sale Agreement (“SCSA”) (which sought to extend the validity of the CSA), for, inter alia, a declaration that the CSA was not validly extended and that the Board had no jurisdiction to approve the collective sale, given that there was no valid CSA at the time of the Application. The Purchaser was granted leave to intervene in the four OS (“the appeals”).

2 At the hearing of the appeals, the appellants (represented by different sets of counsel) as well as the applicants in OS No 192 took a collective stance and adopted each other’s arguments. Their combined arguments and grounds of appeal can be found in the written submissions of Mr Michael Hwang SC, counsel for the appellants in OS No 95, and the grounds are as follows:

(a) The Board erred in law in granting the collective sale order, as s 84A(1) of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“the LTSA”) did not apply to the Development since it is an ex-HUDC Estate;

(b) Even if s 84A(1) of the LTSA applied to the Development, the Board erred in law in allowing the collective sale order, as the respondents had not obtained the agreement of subsidiary proprietors (“SPs”) having no less than 90% of the share values required under s 84A(1)(a) of the LTSA;

(c) Even if the applicable section was s 84A(1)(b) of the LTSA and not s 84A(1)(a) of the LTSA, the Board erred in law in granting the collective sale order as the respondents had not obtained the agreement of SPs having no less than 80% of the share values;

(d) The Board erred in law in granting the collective sale order when there was no valid CSA at the time of the application for collective sale by the respondents;

(e) The Board erred in law in granting the collective sale order when the application by the respondents did not comply with paras 1(b) and 4(b)(iii) of the Schedule of the LTSA;

(f) The Board erred in law in granting the collective sale order when the transaction was not in good faith, having regard to the sale price, contrary to s 84A(9)(a)(i) of the LTSA;

(g) Alternatively, new facts had arisen after the Board’s decision concerning the relationship of the majority (National University of Singapore (“NUS”)) with the Purchaser which the respondents had not disclosed to the Board. The Board was thus unable to make a fully informed judgment as to whether the transaction was in good faith in accordance with s 84A(9)(a)(iii) of the LTSA; and

(h) The Board had committed a breach of natural justice by not removing Mr Michael Ng (“Mr Ng”) from the Board, as Mr Ng had failed to declare that his company, Savills (Singapore), was working with solicitors for the respondents on various en-bloc sale projects.

There is considerable overlap in the grounds above.

3 The first issue before me concerned the question whether s 84A(1) applied to privatised HUDC estates. The relevant version of s 84A(1) of the LTSA was the version prior to the amendments to the LTSA in 2007 (“the relevant s 84A(1)”), which states as follows:

84A. —(1) An application to a Board for an order for the sale of all the lots and common property in a strata title plan may be made by —

(a) the subsidiary proprietors of the lots with not less than 90% of the share values and where less than 10 years have passed since the date of the issue of the latest Temporary Occupation Permit on completion of any building comprised in the strata title plan or, if no Temporary Occupation Permit was issued, the date of the issue of the latest Certificate of Statutory Completion for any building comprised in the strata title plan, whichever is the later; or

(b) the subsidiary proprietors of the lots with not less than 80% of the share values where 10 years or more have passed since the date of the issue of the latest Temporary Occupation Permit on completion of any building comprised in the strata title plan or, if no Temporary Occupation Permit was issued, the date of the issue of the latest Certificate of Statutory Completion for any building comprised in the strata title plan, whichever is the later,

who have agreed in writing to sell all the lots and common property in the strata title plan to a purchaser under a sale and purchase agreement which specifies the proposed method of distributing the sale proceeds to all the subsidiary proprietors (whether in cash or kind or both), subject to an order being made under subsection (6) or (7).

4 The appellants submitted that s 84A(1) uses the time from the date of the latest Temporary Occupation Permit (“TOP”) or if no TOP was issued, the date of the latest Certificate of Statutory Completion (“CSC”) for the purposes of calculating majority consent in a collective sale. Privatised HUDC estates (such as the Development), however, do not have TOPs or CSCs as HUDC estates are exempted from the requirements of the Building Control Act (Cap 29, 1999 Rev Ed). In the case of the Development, it was exempted from the operation of s 5 of the Building Control Act 1973 and the regulations under the Building Control (Order) 1984 and should have a Certificate of Fitness instead, although it appears that the Development does not have this certificate either. The appellants argued that Parliament must be presumed to have known of the exemption of TOPs and CSCs for HUDC estates when it enacted s 84A(1) in 1999 and it must have been Parliament’s intention not to have en-bloc sale legislation apply to privatised HUDC estates. The appellants argued further that the draftsman of the LTSA has adopted an “inclusive approach” in drafting Part VA of the LTSA (concerning collective sales) in that specific sections (ie, ss 84A to 84G) were provided to apply to different and specific types of estates. The appellants further submitted that this view was strengthened by the 2007 amendments to the LTSA. The new ss 126A(6A) and 126A(6B) now specifically provide that in respect of privatised HUDC estates, any reference to the date of the issue of the CSC in the application of ss 84A(1)(a) or 84A(1)(b) shall be read as a reference to the date of completion of the construction of the last building (not being any common property) in the strata title plan:

(6A) Subject to subsection (6B), in the application of section 84A(1)(a) or (b) to any designated land, any reference therein to the date of the issue of the latest Certificate of Statutory Completion for any building (not being any common property) comprised in the strata title plan shall be read as a reference to the date of completion of the construction of the last building (not being any common property) comprised in the strata title plan as certified by the relevant authority.

(6B) In the application of section 84A(1)(a) or (b) to any designated land specified in the First Schedule to the HUDC Housing Estates Act (Cap. 131), any reference therein to the date of the issue of the latest Certificate of Statutory Completion for any building (not being any common property) comprised in the strata title plan shall be read as a reference to the date of the issue of the Certificate of Fitness for any building (not being any common property) comprised in the strata title plan.

5 According to the appellants, the enactment of ss 126A(6A) and 126A(6B) showed that privatised HUDC estates were deliberately excluded when s 84A(1) was enacted in 1999, and the recent enactment of these two sub-sections was to change the existing law. This change in law, counsel submitted, was in line with the recent practice of the government to allow the topping up of leases for leasehold estates (especially privatised HUDC estates, given that such estates have only a maximum 99-year lease) and to include privatised HUDC estates in the en-bloc pool due to increased demand for land. The appellants further submitted that even if Parliament had not intentionally excluded privatised HUDC estates from en-bloc sales in 1999, but had done so due to an oversight, this was, nevertheless, not an omission which could be corrected by the courts.

6 Counsel for the respondents and the Purchaser submitted that pursuant to s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed), a purposive interpretation should be taken of s 84A(1) of the LTSA, and such a purposive interpretation would serve the true purpose and spirit of the legislation. Mr Andre Yeap SC (“Mr Yeap”), counsel for the Purchaser, pointed out that the Board and the High Court had on a previous occasion made orders for the collective sale of one privatised HUDC estate, namely in the estate known as Waterfront View. In the case of Waterfront View, an argument was made, briefly, by the appellants there that Parliament could not have intended a privatised HUDC estate to be subjected to a collective sale. That argument was dismissed by Belinda Ang Saw Ean J (Yeo Loo Keng and Another v Tan Yew Lee Kevin and Others [2007] 3 SLR 455 (“Yeo Loo Keng”) at [38]):

Mr Leong had contended that Parliament could not have intended for HUDC properties to be involved in, and the corresponding CPF housing scheme...