Cold Storage Singapore (1983) Pte Ltd v Management Corp of Chancery Court and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 05 August 1989
• Neutral Citation: [1989] SGHC 71
• Docket Number: Originating Summons No 348 of 1989
• Date: 05 August 1989
• Year: 1989
• Published date: 19 September 2003
• Plaintiff Counsel: K Shanmugam and Ong Chee Kuan (Drew & Napier)
• Citation: [1989] SGHC 71
• Defendant Counsel: Terry Ang (Terry Ang & Partners),Daniel Wee (Toh, Tan & Partners),Ong Bock Kee (Choo & Joethy)
• Court: High Court (Singapore)
• Subject Matter: Duty to manage housing estate,ss 2, 13(1) & 45 HUDC Housing Estates Act (Cap 131),Insufficient notice for special resolution,Lease of premises for supermarket,Landlord and Tenant,Whether resolution took effect as ordinary resolution,Derogation from grant,Agreements for leases,Special resolution defeated,Strata titles,Whether parking scheme within its powers,Whether scheme which affected business of tenant was a derogation from grant,Management corporation,Imposition of parking scheme by management corporation,Land

Cur Adv Vult

On 12 April 1989, the plaintiffs commenced this action against the defendants for the following reliefs:

(1) A declaration that the first defendant has no power under the HUDC Housing Estates Act (Cap 131) (the HUDC Act) to impose a levy on vehicles entering Chancery Court; alternatively, a declaration that the first defendant has acted unlawfully in imposing such a levy as such action amounts to private nuisance against the plaintiffs or, alternatively, unlawful interference with the plaintiffs` trade in that the first defendant`s members did not approve the imposition of such levy and/or the first defendant`s action caused the Housing and Development Board (the HDB) to breach its tenancy agreement dated 7 October 1985 with the plaintiffs (the HDB tenancy agreement).

(2) A declaration that the second to the thirteenth defendants as the management committee of the first defendant have no power under the HUDC Act either individually or collectively to impose the said levy; alternatively, a declaration that the said members of the management committee either individually or collectively have acted unlawfully in imposing the said levy as the action amounts to private nuisance against the plaintiffs and/or that the action is unlawful interference with the plaintiffs` trade in that the first defendant did not properly authorize the other defendants to impose the said levy and/or the said action caused the HDB to breach the HDB tenancy agreement.

(3) An injunction to restrain the first defendant and the other 12 defendants either individually or collectively as the management committee whether by itself or themselves or through their officers, servants and/or agents or otherwise howsoever from imposing any levy on vehicles and/or persons coming or entering Chancery Court and/or otherwise interfering or preventing or otherwise howsoever hindering any vehicles and/or persons coming or entering into Chancery Court for the purposes of visiting and/or shopping with the plaintiffs during the operational hours of the plaintiffs from 8.45am to 9.15pm every day from Monday to Sunday.

(4) An order that the defendants do pay the plaintiffs such damages as were caused by the imposition of the levy on vehicles entering Chancery Court.

(5) For such further or other reliefs as shall be just.

On the same day the writ was issued, the plaintiffs obtained an interim injunction against the defendants in terms of the permanent injunction sought in this action.

The relevant facts are as follows. Chancery Court is a housing estate which also has a number of shopping units within it. The estate was originally developed by the Housing and Urban Development Corp (HUDC) on land belonging to the HDB. The residential units were sold to about 150 purchasers on 99-year leases. The plaintiffs are a monthly tenant of the HDB of the commercial unit known as Block 36H Dunearn Road #01-44 Singapore 1130. Under the terms of the tenancy agreement, the plaintiffs covenanted to use the premises as a supermarket (the supermarket) and for no other purpose.

The HUDC Act was enacted in 1984 to establish bodies corporate comprising owners of flats in HUDC housing estates to take over the maintenance and management of these estates from the HDB. For this purpose, the first defendant was constituted as the body corporate comprising all the owners of the `flats` (which expression is defined in the HUDC Act to include the commercial units) in Chancery Court. The Act also provides for the annual election of a management committee by the members of the management corp to manage the estate. The second to the thirteenth defendants are the current members of the management committee.

Pursuant to s 45 of the HUDC Act, the HDB granted a lease of the common property (as defined in the HUDC Act) of Chancery Court to all the flat-owners as tenants in common in equal shares for a term of years concurrent with the unexpired terms of their leases.

The powers of the management corp are set out in s 13 of the HUDC Act, the relevant portion of which reads:

(1) A body corporate shall -

(a) control, manage and administer the common property for the benefit of the owners of flats in that estate;

(b) properly maintain and keep in a state of good and serviceable repair -

(i) the common property; and

(ii) any personal property vested in the body corporate;

On 19 April 1987, the first defendant held an extraordinary general meeting at which the members passed a resolution to introduce a pay parking scheme (the scheme) within Chancery Court. The scheme sought to achieve the following objects: (1) to regulate vehicular traffic flow; (2) to prevent unauthorized parking; (3) to reduce surface wear and tear of the roads. It is not necessary to describe the details of the scheme. In essence, it required all non-resident motorists to pay $1 if they wished to enter or park in the estate. It was further agreed that the scheme be reviewed by the management corporation three to six months after its implementation.

Following the passing of the resolution, the plaintiffs became concerned about the effect of the scheme on its business. They approached the management committee and made the following proposals:

(1) To pay 56% (estimated usage by the plaintiffs` customers) of the cost of resurfacing the roads/driveway as and when the works are carried out.

(2) To pay for the cost of barriers and car park booth amounting to $4,380.

(3) To provide an attendant at the plaintiffs` cost to man the car park booth near Block 36E between 6.30am to 9am, Monday to Saturday (identified as peak time when non-resident motorists enter the estate to take short cuts), to lower the barrier near Block 36A between 9am to 12pm on Sunday (identified as time when parking from the church overspills to the estate).

The management committee accepted the plaintiffs` proposals subject to ratification by the members. The proposals were tabled at the second annual general meeting of the management corp held on 31 October 1987. At this meeting, the outgoing management committee proposed that the scheme be deferred to enable a new scheme based on a survey of vehicular movements in Chancery Court be tested. The meeting agreed to the following line of action:

(a) The new management committee would negotiate with the plaintiffs for a three-month extension of the existing interim scheme with the additional feature providing for lowering of the barrier near Block 36A between 5pm and 7pm.

(b) Should the plaintiffs reject the proposal, the management committee would proceed with the new scheme stated above.

(c) The scheme would be deferred to test the effectiveness of the new measures.

The management committee accordingly negotiated with the plaintiffs as a result of which an agreement dated 1 April 1988 was signed between the plaintiffs and the first defendant. Under this agreement, the plaintiffs agreed, inter alia, to provide attendants at their cost to man the car park booth at certain specified tines, to pay 56% of the cost of resurfacing and maintenance of the roads within Chancery Court. The agreement was for a period of one year subject to termination by either party giving three months` notice in writing to the other party. On 28 October 1988, the first defendant held another extraordinary meeting to discuss, inter alia, the scheme. A resolution was moved to implement the scheme immediately. The chairman ruled that the resolution was a special resolution and it was put to the vote. The voting was 56 for the motion and 20 against it. As more than 10% of the members voted against the resolution, it was declared lost by the chairman.

The survey of vehicular movements within the estate was subsequently conducted by an independent body. The results of the four-day survey are summarized below:

Summary of vehicular movement into and out of Chancery Court

Total Shoppers` Through Others*

Traffic Cars Traffic

10 November 1988

Thursday

8.45am to 2.45pm 774 266 473 35

11 November 1988

Friday

2.46am to 8.45pm 846 380 365 101

12 November 1988

Saturday

8.45am to 8.45pm 2011 914 949 148

13 November 1988

Sunday

8.45am to 8.45pm 1566 897 517 152

Total number of

cars 5197 2457 2304 436

*This covers vehicles of residents and visitors of residents.

The results showed that the number of motorists using the roads in Chancery Court as a thoroughfare was almost the same as those who were shopping at the supermarket. It could therefore be said that the survey vindicated the need to regulate and limit the use of the roads within the estate, the maintenance of which is borne by the flat-owners.

Upon the termination of the said agreement on 31 March...