Koh Gek Hwa v Yang Hwai Ming and Another

JurisdictionSingapore
JudgeWoo Bih Li J
Judgment Date23 September 2003
Neutral Citation[2003] SGHC 216
Docket NumberOriginating Motion No 17 of 2003
Date23 September 2003
Published date16 October 2003
Year2003
Plaintiff CounselSiva Murugaiyan and Parveen Kaur Nagpal (Sant Singh Partnership)
Citation[2003] SGHC 216
Defendant CounselLow Chai Chong and Suchitra Ragupathy (Rodyk & Davidson)
CourtHigh Court (Singapore)
Subject MatterCollective sales,Whether Board in error of law,Strata titles board,Relationship of purchaser to proprietor,Land,Whether sale made in good faith,Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) s 84D(7)(a),Appeal to High Court on Board's decision,Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) ss 84D, 108(1),Strata titles

1 In this application, Ms Koh Gek Hwa is appealing against the decision of the Strata Titles Board (“the Board”) on an application made by Yang Hwai Ming and Long Sok Goon Nancy on behalf of the rest of the owners of units in a development known as Dragon Court. I will refer to all the other owners, except Ms Koh, as “the Majority”.

2 The application sought an order from the Board that the units in Dragon Court be sold collectively to Limau Heights Development Pte Ltd (“Limau”) and other consequential orders. Ms Koh objected to the application. After receiving evidence and submissions, the Board made the orders sought by the Majority. Its Grounds of Decision is dated 20 June 2003.

3 After hearing submissions, I dismissed Ms Koh’s appeal. I now set out my reasons.

Background

4 Dragon Court is an old development of more than ten years. There is no Management Corporation. Its facilities are maintained by those owners who care to maintain it. It is a small residential development at Holland Road of about 3,318.4 square metres. The plot of land is almost triangular in shape and has a frontage of about 115 metres to Holland Road. The development comprises a block of three storey walk-up apartments with six units and a block of four story walk-up apartments with eight units. Accordingly, there are 14 units in Dragon Court. In 1995, Philando Pte Ltd (“Philando”) purchased nine units at a price of $1.12 million per unit. The other five units remained owned by different owners.

5 The first attempt to sell Dragon Court collectively by tender was made by property consultants DTZ Debenham Tie Leung (SEA) Pte Ltd (“DTZ”). This was on or about 5 September 2000. DTZ had sent mailers to about 150 developers and placed a total of six advertisements in the press. The tender closed on 3 October 2000 but no bid was received.

6 On 14 May 2002, DTZ wrote to all owners calling for a meeting on 23 May 2002 to discuss a fresh round of collective sale. After the meeting, DTZ sent another letter dated 17 June 2002 to all the owners to inform them of the outcome of the meeting. The letter stated that the owners present at the meeting were agreeable to a fresh round of collective sale and the reserve price was $12.81 million reflecting $915,000 per unit.

7 What had happened was that the meeting had actually agreed to proceed with a lower reserve price of $12.74 million recommended by DTZ. However, after the meeting, Philando suggested that the reserve price be increased to $12.81 million. Hence DTZ’s letter of 17 June 2002 stated the higher reserve price.

8 By September 2002, the owners having more than 80% of the shares in Dragon Court had signed a Collective Sale Agreement under which the sale proceeds would be apportioned equally for each unit having regard to the same size and share value of each unit. On 8 October 2002, Rodyk & Davidson wrote to Ms Koh and one Ms Oh Kim Bee Katherine to inform them of this development and to invite them to join in the collective sale. On 10 October 2002, DTZ launched the sale by tender and marketed it for four weeks. Again six advertisements were placed in the press and mailers were sent this time to about 180 developers. Nine parties collected the tender documents. Five parties visited the site.

9 The tender closed on 6 November 2002 at 4pm. Only one bid was received. This was submitted by Limau for $12.9 million ie slightly higher than the reserve price of $12.81 million.

10 On 5 December 2002, Rodyk & Davidson accepted this bid and requested Limau to furnish a statutory declaration on its relationship with Philando.

11 By a letter dated 18 December 2002, DTZ wrote to Ms Koh and Ms Katherine Oh informing them of the intended sale to Limau at $12.9 million and that the pre-requisite number of owners had signed the Collective Sale Agreement. The letter also stated that those who had signed would apply to the Board for an order to sell Dragon Court under the Land Titles (Strata) Act (Cap 158) (“the Act”). Subsequently, on 28 January 2003, Ms Katherine Oh also signed the Collective Sale Agreement thereby leaving Ms Koh as the only owner who had not done so.

12 Also on 28 January 2003, an Extra-Ordinary General Meeting of Dragon Court was convened to discuss the collective sale.

13 On 13 February 2003, the Majority made the application to the Board which I have mentioned.

14 On 5 March 2003, Ms Koh filed an objection on the following grounds:

(a) She would suffer a financial loss

(b) The transaction was not made in good faith in view of the following:

(i) The sale price

(ii) The method of distributing the proceeds of sale

(iii) The relationship between Limau and Philando.

15 As I have mentioned, the Board made the orders sought by the Majority after receiving evidence and submissions. This was after mediation by the Board had failed. Among the witnesses were two valuers. One was Tan Keng Chiam from Jones Lang LaSalle Property Consultants Pte Ltd for the Majority. The other was Lim Soo Chin from Vigers International Property Consultants (Singapore) Pte Ltd for Ms Koh.

The law

16 The relevant statutory provisions were s 84D(1), (2)(b), (3), (5)(a), (6) and (7)(a) of the Act which state:

84D (1) This section shall apply where there are subsisting leases of flats in a development registered under the Registration of Deeds Act (Cap.269) or the Land Titles Act (Cap.157) and the proprietors of the flats own the land comprised in the development.

(2) An application to a Board for an order for the sale of all the flats and the land in a development to which this section applies may be made by -

(a) ….

(b) the proprietors of the flats who own not less than 80% share of the land 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 development 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 development, whichever is the later,

who have agreed in writing to sell all the flats and the land in the development to a purchaser under a sale and purchase agreement which specifies the proposed method of distributing the sale proceeds to all the proprietors of the flats (whether in cash or kind or both), subject to an order being made under subsection (4) or (5).

(3) A proprietor of any flat in the development who has not agreed in writing to the sale referred to in subsection (2) and any mortgage, chargee or other person (other than a lessee) with an estate or interest in the flat and whose interest is notified on the land-register for that flat may each file an objection with a Board stating the grounds for the objection within 21 days of the date of the notice served pursuant to the Fourth Schedule or such further period as the Board may allow.

(4) ….

(5) Where one or more objections have been filed under subsection (3), the Board shall, subject to subsection (7), after mediation, if any, approve the application made under subsection (2) and order that the flats and the land in the development be sold unless, having regard to the objections, the Board is satisfied that -

(a) any objector, being a proprietor, will incur a financial loss; or

(b) ….

(6) For the purposes of subsection (5)(a), a proprietor -

(a) shall be taken to have incurred a financial loss if the proceeds of sale for his flat, after any deduction allowed by the Board, are less than the price he paid for his flat;

(b) shall not be taken to have incurred a financial loss by reason only that his net gain from the sale of his flat will be less than the other proprietors.

(7) The Board shall not approve an application made under subsection (2) if the Board is satisfied that -

(a) the transaction is not in good faith after taking into account only the following factors:

(i) the sale price for the flats and the land in the development;

(ii) the method of distributing the proceeds of sale; and

(iii) the relationship of the purchaser to any of the proprietors; or

(b) ….

17 Under s 108(1) of the Act:

No appeal shall lie to the High Court against an order made by a Board except on a point of law.

18 Mr Siva Murugaiyan, Counsel for Ms Koh, relied on MC Strata Title No 958 v Tay Soo Seng [1993] 1 SLR 870, where Selvam JC said, at p 875:

The following statement in 1(1) Halsbury’s Laws of England (4th Ed, Reissue) para 70 gives a useful guidance on what constitute errors of law:

Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons; and misdirecting oneself as to the burden of proof.

19 Mr Low Chai Chong, Counsel for the Majority, did not dispute this summary. However, he relied on Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 where Lord Radcliffe said at p 35 and 36:

My Lords, I must apologise for taking so much time to repeat what I believe to be settled law. But it seemed to be desirable to say this much, having regard to what appears in the judgments in the courts below as to a possible divergence of principle between the English and Scottish courts. I think that the true position of the court in all these cases can be shortly stated. If a party to a hearing before commissioners expresses dissatisfaction with their determination as being erroneous in point of law, it is for them to state a case and in the body of it to set out the facts that they have...

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7 cases
  • Ng Swee Lang and Another v Sassoon Samuel Bernard and Others
    • Singapore
    • High Court (Singapore)
    • 9 November 2007
    ...burden of proof. 19 Tay Soo Seng and the above quoted statement in Halsbury’s were cited to Woo Bih Li J in Koh Gek Hwa v Yang Hwai Ming [2003] 4 SLR 316 (“Koh Gek Hwa”), which was also an appeal from an order of a Strata Titles Board. Also cited was the following passage[note: 1] from Edwa......
  • Karuppiah Ravichandran v GDS Engineering Pte Ltd and Another
    • Singapore
    • High Court (Singapore)
    • 19 May 2009
    ...and on appeals from statutory bodies, namely, MC Strata Title No 958 v Tay Soo Seng [1993] 1 SLR 870 and Koh Gek Hwa v Yang Hwai Ming [2003] 4 SLR 316. He also quoted a passage from Halsbury’s Laws of England Vol 1(1) (Butterworths, 4th Ed Reissue 1989) (“Halsbury”) para Errors of law inclu......
  • Liu Chee Ming and Others v Loo-Lim Shirley
    • Singapore
    • High Court (Singapore)
    • 8 January 2008
    ...added] 15 The statements in Halsbury’s and in Edwards v Bairstow and Tay Soo Seng were cited to me in Koh Gek Hwa v Yang Hwai Ming [2003] 4 SLR 316 by the appellants there without objection by the respondents. Therefore, I did not decide whether the statements or a narrower meaning of a poi......
  • Liu Chee Ming and Others v Loo-Lim Shirley
    • Singapore
    • High Court (Singapore)
    • 8 January 2008
    ...added] 15 The statements in Halsbury’s and in Edwards v Bairstow and Tay Soo Seng were cited to me in Koh Gek Hwa v Yang Hwai Ming [2003] 4 SLR 316 by the appellants there without objection by the respondents. Therefore, I did not decide whether the statements or a narrower meaning of a poi......
  • Request a trial to view additional results
2 books & journal articles
  • A MAN’S HOME IS [NOT] HIS CASTLE —EN BLOC COLLECTIVE SALES IN SINGAPORE
    • Singapore
    • Singapore Academy of Law Journal No. 2008, December 2008
    • 1 December 2008
    ...1 (“Dragon Court”) at [84]. Application to the High Court for judicial review was dismissed by Woo Bih Li J: Koh Gek Hwa v Yang Hwai Ming[2003] 4 SLR 316. 56 The Straits Times (7 January 2000). 57 Act 21 of 1999. 58 Ling Ah Tie v Tham Kai Shui [2000] SGSTB 1. 59 The Straits Times (1 Decembe......
  • Land Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2003, December 2003
    • 1 December 2003
    ...the sale price for the development and the relationship of the purchaser to any of the unit owners. 17.17 In Koh Gek Hwa v Yang Hwai Ming[2003] 4 SLR 316, the applicant had appealed to the High Court against the Strata Title Board”s decision to permit the collective sale of a strata develop......

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