Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301

• Judge: Goh Joon Seng J
• Judgment Date: 23 September 1992
• Neutral Citation: [1992] SGCA 61
• Citation: [1992] SGCA 61
• Defendant Counsel: Ong Chee Kwan (Drew & Napier)
• Published date: 19 September 2003
• Plaintiff Counsel: Jimmy Yap (Donaldson & Burkinshaw)
• Date: 23 September 1992
• Docket Number: Civil Appeal No 131 of 1990
• Court: Court of Appeal (Singapore)
• Subject Matter: Land,Easements,Whether excessive user of servient tenement resulted,Disturbance,Obstructions erected over servient tenement by another dominant tenement holder,Whether amalgamation of dominant tenement with adjoining lot extingushes right of way,Right of way vested by grant over servient tenement

Cur Adv Vult

The defendants, Lee Tat Development Pte Ltd, are the owners of two pieces of adjoining land known as Lots 111-32 and 111-33 of Town Sub-division 21. The plaintiffs are the management corporation of Grange Heights which is a condominium development on Lot 687 of Town Sub-division 21. Lot 687 is an amalgamation of Lot 111-34 and an adjoining Lot 561 of Town Sub-division 21.

Adjoining Lots 111-32, 111-33 and what was formerly Lot 111-34 is Lot 111-31. Lot 111-31 is a long, narrow but irregular strip of land containing an area of 9,274sq ft, 280ft long, 60ft at its widest point and 21ft at its narrowest. Over this lot is the right of way vested by grant in the owners of Lots 111-30, 111-32, 111-33 and 111-34. Lots 111-30, 111-31, 111-32, 111-33 and 111-34 were formerly parts of a larger piece of land owned by a company, Mutual Trading Ltd. In 1919, Mutual Trading Ltd, then in voluntary liquidation, sold and conveyed Lots 111-30, 111-32, 111-33 and 111-34 and granted a right of way over the Reserve for Road to the purchasers of the four lots in the following terms:

And together with full and free right and liberty for the purchaser his executors administrators and assigns being the owner or owners for the time being of the land hereby conveyed or any part thereof and their tenants and servants and all other persons authorized by him or them in common with others having a similar right from time to time and at all times hereafter at his and their will and pleasure to pass and repass with or without animals and vehicles, in along and over the Reserve for Road coloured yellow in the said plan.

The Reserve for Road is Lot 111-31 which is the servient tenement, and the adjoining lots, Lots 111-32 and 111-33, owned by the defendants, and Lot 111-34 (now part of Lot 687 on which Grange Heights condominium stands) are the dominant tenements.

Presumably, Mutual Trading Ltd, the owners of the servient tenement, has since been dissolved.

The Grange Heights condominium (`Grange Heights`) was completed in or about 1976. It comprises three high-rise blocks with a total of 120 apartments and common facilities like a swimming pool, changing rooms and a tennis court. The three high-rise blocks and the swimming pool are constructed on what was formerly Lot 561. The tennis court and changing rooms are in what was formerly Lot 111-34.

Since its completion, the residents of Grange Heights have been using Lot 111-31 for gaining access to and from Grange Road.

On or about 25 April 1989, the defendants caused to be erected an iron gate at the Grange Road end of Lot 111-31 and a fence across the Grange Heights end thereof, thus closing the right of way and preventing or interfering with the use by the residents of Grange Heights of Lot 111-31 for access to and from Grange Road.

On 27 April 1989 the plaintiffs commenced proceedings in Originating Summons No 404 of 1989 praying for, inter alia, the following reliefs:

(i) an injunction to restrain the defendants from interfering with or preventing or hindering or otherwise howsoever obstructing their right of way over Lot 111-31 and, in particular, from erecting or re-erecting any fence and/or gate across the said lot;

(ii) an order that the defendants do pay the plaintiffs damages for interfering with, preventing, hindering or howsoever obstructing the said right of way of the plaintiffs.

On 28 April 1989 the plaintiffs obtained, after an `opposed ex parte hearing` before Punch Coomaraswamy J, inter alia, the following orders:

(i) that the defendants remove the fence erected at the Grange Heights end of Lot 111-31 and the swinging limbs of the gate at the Grange Road end of Lot 111-31 within 72 hours of the service of the order;

(ii) that the defendants be restrained from interfering with or preventing or hindering or otherwise howsoever obstructing the right of way of the plaintiffs over Lot 111-31 and from erecting or re-erecting any fence and/or gate across the said lot until after the hearing of a motion returnable on 21 July 1989 or until further order.

Although the order of court of 28 April 1989 was served on the defendants` solicitors on 2 May 1989 and on the directors of the defendants on 15 May 1989, the defendants failed to comply with the same, thus compelling the plaintiffs to file committal proceedings.

On 16 May 1989 the defendants filed an application in summons-in-chambers entered No 2815 of 1989 to set aside or vary the interim orders of 28 April 1989.

The defendants` application came up for hearing on 19 July 1989 before Punch Coomaraswamy J who ordered it to be heard together with the hearing of the substantive originating summons.

In due course, the defendants` application and the plaintiffs` substantive originsummons came up for hearing before Punch Coomaraswamy J [see [1991] 1 MLJ 8 ]. The main contentions of the defendants before the learned trial judge were:

(i) the amalgamation of Lot 111-34 with Lot 561 into Lot 687 extinguished the plaintiffs` right of way over Lot 111-31; and

(ii) as all the apartments in Grange Heights stand on Lot 561, the residents therefore are not using Lot 111-31 as a right of way for the dominant tenement which is Lot 111-34 but for Lot...