Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301 (No 2)

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 12 April 2005
• Neutral Citation: [2005] SGCA 22
• Docket Number: Civil Appeal No 89 of 2004
• Date: 12 April 2005
• Published date: 13 April 2005
• Year: 2005
• Plaintiff Counsel: Tan Cheng Han SC (instructed) and Ernest Balasubramaniam (ASG Law Corporation)
• Citation: [2005] SGCA 22
• Defendant Counsel: Edwin Lee and Looi Ming Ming (Rajah and Tann)
• Court: Court of Appeal (Singapore)
• Subject Matter: Issue estoppel,Res Judicata,Whether appellant estopped from raising issue in present action because issue forming subject matter of previous proceedings between identical parties,Requirements for establishing issue estoppel

12 April 2005

Belinda Ang Saw Ean J (delivering the judgment of the majority):

1 This is an appeal from a decision of Woo Bih Li J in which he dismissed Originating Summons No 825 of 2004 on the grounds that the claims there were barred by issue estoppel arising out of the judgment of Punch Coomaraswamy J in Management Corp of Grange Heights – Strata Title No 301 v Lee Tat Development Pte Ltd [1990] SLR 1193 and the judgment of Goh Joon Seng J delivered for the Court of Appeal in Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301 [1992] 2 SLR 865. The previous proceedings were commenced in 1989 and they are, for convenience, hereinafter referred to as “the 1989 proceedings”.

2 Agreeing with Woo J, we dismissed the appeal. In our judgment, issue estoppel arises because the precise issue in this appeal, which is whether the residents of Grange Heights have a right of way over Lot 111-31 to gain access to and from Grange Road, has been finally and conclusively determined on the merits by courts of competent jurisdiction in the 1989 proceedings.

3 The facts are set out in the judgment of Woo J reported in [2004] 4 SLR 828 and for present purposes they can be restated quite briefly. It is also convenient to refer to previous proceedings on the same topic to make the history and the point of this appeal intelligible.

4 The subject matter of the present appeal concerns the right of way over Lot 111-31 (the servient tenement) granted to the respective owners of Lots 111-32 and 111-33 and the former Lot 111-34. All lots are situated in the Orchard Road vicinity.

5 The appellant, Lee Tat Development Pte Ltd (“Lee Tat”), formerly known as Collin Development (Pte) Ltd, is the owner of dominant tenements Lots 111-32 and 111-33. In January 1997, the appellant purchased the servient tenement subject to easements and rights affecting it. The dominant tenement, Lot 111-34, was amalgamated with Lot 561 (which was sub-divided from Lot 122) to create a new Lot 687. Hong Leong Holdings Ltd (“Hong Leong”) was the developer of the condominium known as Grange Heights. Grange Heights was built on Lot 687. Standing on the former Lot 561 are three blocks of high-rise apartments comprising a total of 120 units, car parks, swimming pool and other facilities. The tennis courts and changing rooms stand on the former Lot 111-34. The respondent in this appeal is the Management Corporation of Grange Heights (“the MCST”). For ease of reference, appended to this judgment, as Appendix 1, is a sketch (not drawn to scale) depicting the dominant tenements in relation to the servient tenement and the former Lot 561.

6 There has been a history of clashes between the appellant and Hong Leong over the right of way in connection with the development of Grange Heights. On one occasion, the appellant tried without success to stymie the development carrying and using the address nos 15, 19 and 23 Grange Road. The relevant authorities rejected the appellant’s objections.

7 In the very first suit in 1976, Collin Development (Pte) Ltd v Hong Leong Holdings Ltd [1975–1977] SLR 457, Collin Development (Pte) Ltd (“Collin Development”), as owner of Lots 111-32 and 111-33, claimed for a declaration that Hong Leong, as owner of Lots 561 and 111-34, and its directors, officers, servants, workmen or agents and prospective or future residents of Grange Heights were not entitled to use Lot 111-31. The complaints then were that Hong Leong had, inter alia, permitted its contractors employed for the construction of Grange Heights to use the right of way for access to and egress from Lot 561. F A Chua J (as he then was) held that Collin Development had no cause of action, as it was unable to prove that Hong Leong and the prospective or future residents of Grange Heights had substantially interfered or would substantially interfere with Collin Development’s enjoyment of the right of way over Lot 111-31. Hong Leong’s counterclaim for a declaration that the company and its authorised persons were entitled to pass and repass Lot 111-31 was dismissed as Collin Development was not the owner of Lot 111-31. As an aside, Woo J did not agree with Chua J’s reasoning for the dismissal of the counterclaim. No analysis of this first case is required as there was no cross-appeal by the respondent on Woo J’s ruling that the judgment of Chua J, which was affirmed on appeal, did not give rise to any issue estoppel to bar the current proceedings from being re-litigated.

8 About 13 years later, a second suit (ie, the 1989 proceedings) was launched. Lee Tat erected an iron gate and fence on Lot 111-31 thus preventing the residents of Grange Heights from using Lot 111-31. This time, however, there was no complaint of excessive use of Lot 111-31 by the residents of Grange Heights. It was simply an issue of the respective parties’ rights over Lot 111-31. This is an important point to note and we will elaborate on it later. It was also not disputed that Lee Tat was aware that the residents of Grange Heights had been using Lot 111-31 since the completion of Grange Heights in 1976. Initially, the MCST obtained an interim injunction against Lee Tat for interfering with its right of way over Lot 111-31 and the latter applied for the interim injunction to be discharged.

9 The application to discharge the interim injunction and the MCST’s originating summons were heard together on 5 December 1990. Coomaraswamy J granted the MCST an injunction as sought in the originating summons. Lee Tat was also ordered to remove the iron gate and fence across Lot 111-31. The court held that although Lots 561 and 111-34 had been amalgamated into Lot 687, it was purely for purposes of survey and issue of documents of title. The easement over Lot 111-31 still ran with the land and enured to the benefit of the owner of Lot 111-34, now part of Lot 687. It was common ground that the MCST was the owner of Lot 111-34.

10 Lee Tat appealed and the Court of Appeal in upheld the first instance decision and reiterated that upon amalgamation of the plots of land, the dominant tenement did not cease to exist, nor was the right of way appurtenant thereto extinguished. So long as the user on the servient tenement was not excessive, the amalgamation did not affect the existence of the right of way. The Court of Appeal found that the residents of Grange Heights had, since 1976, only been using Lot 111-31 as a foot path and they were allowed to continue this activity. Lee Tat was not entitled to erect the gate and fence.

11 The current set of proceedings instituted on 26 June 2004 is the third time the parties have gone to court on account of the same easement. We need to only look at the multiple declarations and injunction sought by Lee Tat in Originating Summons No 825 of 2004 to see its motivation, which is to stop the residents of Grange Heights from using the easement. They are:

(a) a declaration that the grant of easement in favour of, inter alia, Lot 111-34 was not intended to be made appurtenant to Lot 122 (later Lot 561 and now Lot 687);

(b) a declaration that the amalgamation of Lot 111-34 with Lot 122 (later Lot 561) to form Lot 687 did not result in the conferment of any easement rights to Lot 561 and Lot 687, being land other than the dominant tenement (Lot 111-34).

(c) a declaration that the right of way over Lot 111-31 shall not be used as an access to Lot 687;=

(d) a permanent injunction to prohibit all the owners, residents, occupants and/or visitors of the apartments in the condominium known as Grange Heights from using any part of Lot 111-31 to access Grange Heights from Grange Road and vice versa absolutely and indefinitely;

(e) an order directing the Registrar of Titles and Deeds to expunge any and all entries, notices and registration of any easements or orders of court registered against Lot 111-31 in the Index to Land Books in the Registry of Deeds and Land Register comprised in Certificate of Title Vol 464 Folio 159;

(f) further and/or alternatively, a declaratory order that all the owners, residents, occupants and/or visitors of the apartments in the condominium known as Grange Heights are not entitled to use any part of Lot 111-31 to access Grange Heights from Grange Road absolutely and indefinitely.

12 Counsel for the appellant, Mr Tan Cheng Han SC, argues against issue estoppel. This is how Mr Tan has characterised the issue so that there is no issue estoppel. The easement is in respect of Lot 111-31 and on the principle enunciated in Harris v Flower and Sons (1904) 91 LT 816 (“Harris v Flower”), which principle is discussed in detail in Chao Hick Tin JA’s dissenting judgment at [52] to [62] below, the MCST cannot use the easement in respect of Lot 561. Such user beyond the geographical scope of the express grant is improper and amounts to trespass on the servient tenement. On this occasion, the appellant has sued as the owner of the servient tenement. The elements required for the present cause of action are different from the previous cause of action. In the 1989 proceedings, the appellant was the owner of the dominant tenements and its rights were limited. In an action for substantial interference with a dominant tenement’s right of way, the key question is whether the easement is being used in such a manner as to substantially interfere with the applicant’s legitimate user of the easement. Counsel has referred us to a number of cases where the Harris v Flower principle was followed. In particular, he relies on Re Gordon and Regan (1985) 15 DLR (4th) 641, a decision of the Ontario High Court, to underscore and drive home his point that the respondent would still offend the principle in Harris v Flower if the improper use of the servient tenement was minimal. This is because such user is outside the terms of the original grant and hence unauthorised.

13 What is relied on here by the MCST is a previous decision on a particular issue or issues....