Kok Chong Weng and Others v Wiener Robert Lorenz and Others (Ankerite Pte Ltd, intervener)
| Judge | Chan Sek Keong CJ |
| Judgment Date | 09 February 2009 |
| Neutral Citation | [2009] SGCA 7 |
| Subject Matter | Collective sales,Whether s 84A(1) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) applied to privatised HUDC estates,Determining age of strata development under s 84A(1) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Principles relating to interpreting statute to rectify drafting flaw,Section 84A(1) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Statutory Interpretation,Purposive approach,Land,Construction of statute,Strata titles |
| Citation | [2009] SGCA 7 |
| Court | Court of Three Judges (Singapore) |
| Published date | 11 February 2009 |
| Defendant Counsel | Andre Yeap SC, Dawn Tan, Dominic Chan, Danny Ong and Tang Hui Jing (Rajah & Tann LLP),Quek Mong Hua, Julian Tay and Alma Yong (Lee & Lee) |
| Year | 2009 |
| Plaintiff Counsel | Michael Hwang SC and Fong Lee Cheng (Michael Hwang), Tan Seng Chew Richard and Diana Xie (Tan Chin Hoe & Co) |
| 9 February 2009 |
Judgment reserved. |
1 This is an appeal by ten minority subsidiary proprietors (“the Appellants”) against the decision of Choo Han Teck J (“the Judge”) in Originating Summonses Nos 86, 88, 95 and 192 of 2008 (see Chang Mei Wah Selena v Wiener Robert Lorenz
Background facts
2 The salient facts are as follows. GH was formerly a Housing and Urban Development Corporation (“HUDC”) estate consisting of four blocks of 20-storey flats and six blocks of four-storey maisonettes (comprising altogether 607 residential units and one shop unit). With the exception of one block that was completed in October 1984, GH was ready for occupation in December 1984. Prior to its privatisation in 1995, GH was subject to the HUDC Housing Estates Act (Cap 131, 1985 Rev Ed) (“the HUDC Act”) which restricts, inter alia, the rights of the owners of HUDC flats to sell them without the consent of the HUDC.
3 HUDC developments or estates, unlike private developments, have usually been exempted from the requirements of the Building Control Act 1973 (Act 59 of 1973) (“the 1973 BCA”) and thus any such development may not have been issued with a temporary occupation licence (“TOL”) or a certificate of fitness (“COF”). The 1973 BCA was subsequently replaced with the Building Control Act (Cap 29, 1985 Rev Ed) (“the 1985 BCA”). The 1985 BCA was in turn amended in 1990 by the Building Control Act 1989 (Act 9 of 1989) which substituted the TOL and COF with the temporary occupation permit (“TOP”) and the certificate of statutory completion (“CSC”) respectively. GH, which was completed in 1984, was exempted from the requirements of the Building Control Act 1973 under the Building Control (Exemption) Order 1984 (S 329/84). No TOL or COF was issued upon the completion of GH or when the flat owners were allowed into occupation in 1984.
4 In 1995, Parliament added ss 126A and 126B to the Land Titles (Strata) Act (Cap 158, 1988 Rev Ed) (“the 1988 LTSA”) via the Land Titles (Strata) (Amendment) Act 1995 (Act 27 of 1995) (“the 1995 Amendments”) to allow HUDC estates to be privatised. Upon privatisation, a HUDC estate would cease to be subject to the HUDC Act, and the body corporate constituted under that Act would continue as a management corporation under the 1988 LTSA, and subsequently the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“the LTSA”) (see s 126B(1) of the LTSA). Effectively, a privatised HUDC estate would acquire all the legal attributes and benefits of a private strata title development with a management corporation under the LTSA. As explained by the Minister for National Development Mr Lim Hng Kiang in his second reading speech to the Land Titles (Strata) (Amendment) Bill (Bill 22 of 1995) (Singapore Parliamentary Debates, Official Report (7 July 1995) vol 64 at cols 1389–1390):
The primary objective of the Bill is to amend the Land Titles (Strata) Act to provide the legal framework to enable the conversion of the leases of flats in designated HUDC estates to strata titles.
This conversion will allow HUDC residents to enjoy the status and advantages of private property owners. It is part of the Government’s asset enhancement programme. It will also serve to meet the rising aspirations of Singaporeans for private housing.
Upon privatisation, the HUDC owners will have ownership of their respective strata units and own, as tenants-in-common, the common property such as car parks, open landscaped areas and common parts within the buildings.
This will enable them collectively to upgrade their estates to a standard comparable to private residential estates. The residents will be able to enjoy the status and privileges of private residential owners without having to uproot themselves and move elsewhere.
At the same time, the privatised estates will no longer come under HDB [Housing and Development Board] rules and regulations. They will be like any other private property, subject only to the Residential Property Act.
[emphasis added]
5 On 24 May 1995, the Government announced that GH would be designated for privatisation on 11 August 1995. In or around 1996, the privatisation of GH was completed and, in November 1996, GH was issued with a strata title plan under the 1988 LTSA. As part of the privatisation exercise, building works were done to the common property in the development. The works involved the building of ramps, railings, boundary fencing, fire engine hard-standing areas and fire engine access, and the installation of fire-rated doors. However, it was not until 23 October 2002 that a CSC was issued in respect of those works (“the 2002 CSC”). The description of the “building(s)/building works” in the 2002 CSC referred to “4 BLOCKS OF 20-STOREY FLATS AND 6 BLOCKS OF 4-STOREY MAISONETTES ON LOT(S) 01478C MK01 AT GILLMAN HEIGHTS”.
6 Sometime in February 2001, the subsidiary proprietors of GH contributed about $3m to construct a clubhouse, swimming pool and children’s playground. A TOP was issued on 27 November 2002 (“the 2002 TOP”) for “ADDITIONS AND ALTERATIONS OF A NEW SINGLE-STOREY CLUBHOUSE WITH SWIMMING POOL TO THE EXISTING CONDOMINIUM AT BLOCK 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H, 1J & 1K GILLMAN HEIGHTS”.
7 In 1999, Parliament amended the 1988 LTSA via the Land Titles (Strata) (Amendment) Act 1999 (Act 21 of 1999) (“the 1999 Amendments”) to allow owners of strata developments to take advantage of enhanced plot ratios to realise their full development potential. Parliament enacted Pt VA of the LTSA to facilitate the collective sale of such developments. Part VA contained, inter alia, s 84A(1) which allowed the collective sale of strata developments by majority consent, as opposed to unanimous consent which was extremely difficult to achieve in the case of many freehold and 999-year leasehold strata developments. Section 84A(1) prescribed the percentage majority consent at 90% or 80% (“the 90% consent requirement” or the “80% consent requirement”) for strata developments which were less than ten years old or more than ten years old, as the case might be, as measured by reference to the date of issue of the latest TOP or CSC, as the case might be.
8 Section 84A(1) then read as follows:
84A.—(1) An application to a Board [Strata Titles 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 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).
9 In 2007, following public feedback on the operation of the collective sale scheme, Parliament again amended the LTSA by enacting the Land Titles (Strata) (Amendment) Act 2007 (Act 46 of 2007) (“the 2007 Amendments”). Section 84A(1) was one of the sections that was amended by the 2007 Amendments. The amendments to s 84A(1) are shown in italics in the section reproduced below:
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 not less than 90% of the total area of all the lots (excluding the area of any accessory lot) as shown in the subsidiary strata certificates of title where less than 10 years have passed since the date of the issue of the latest Temporary Occupation Permit on completion of any building (not being any common property)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 (not being any common property) 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 and not less than 80% of the total area of all the lots (excluding the area of any accessory lot) as shown in the subsidiary strata certificates of titlewhere 10 years or more have passed since the date of the issue of the latest Temporary Occupation Permit on completion of any building (not being any common property) 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 (not being any common property) comprised in the strata...
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