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

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 28 September 2004
• Neutral Citation: [2004] SGHC 220
• Docket Number: Originating Summons No 825 of 2004
• Date: 28 September 2004
• Published date: 28 September 2004
• Year: 2004
• Plaintiff Counsel: Tan Cheng Han SC (Tan Cheng Han), Ernest Balasubramaniam and Rajvant Kaur (ASG Law Corporation)
• Citation: [2004] SGHC 220
• Defendant Counsel: Edwin Lee and Looi Ming Ming (Rajah and Tann)
• Court: High Court (Singapore)
• Subject Matter: Issue estoppel,Res Judicata,Whether plaintiff estopped from raising issue in present case because issue forming subject matter of previous litigation

28 September 2004

Woo Bih Li J:

Introduction

1 I will adopt the formal facts as set out in the judgment of the Court of Appeal delivered by Goh Joon Seng J in Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301 [1992] 2 SLR 865 at 866 and 867, [1] to [7].

2 Lee Tat Development Pte Ltd (“Lee Tat”) is the owner of two pieces of adjoining land known as lots 111-32 and 111-33 of Town Sub-division 21. The defendant is the management corporation (“the MCST”) 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.

3 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 9,274 sq ft; it is 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 authorised 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.

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

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

6 The Grange Heights condominium 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.

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

Background to the present action

8 As can be seen, there has been previous litigation regarding the right of way over the servient tenement lot 111-31. Indeed, the first reported action commenced by Lee Tat in respect of the servient tenement was in 1974 (see Collin Development (Pte) Ltd v Hong Leong Holdings Ltd [1975–1977] SLR 457). This was Suit No 3667 of 1974 (“the First Action”). At that time, Lee Tat was known as Collin Development (Pte) Ltd (“Collin”). It filed an action against Hong Leong Holdings Ltd (“HLHL”) who was the developer of Grange Heights. The MCST is the body constituted after Grange Heights had been completed. Collin’s action was not successful. Subsequently, in 1989, the MCST commenced an action in Originating Summons No 404 of 1989 against Lee Tat (“the Second Action”) for an injunction to compel Lee Tat to remove an iron gate and a fence it had erected on the servient tenement. The MCST was successful in the Second Action. I will elaborate later on the First and the Second Actions.

9 Subsequent to the Second Action, Lee Tat acquired the servient tenement on 17 January 1997. Also, the MCST initiated committal proceedings in respect of breaches of the injunction which was granted in the Second Action. I shall elaborate later on the outcome of those proceedings.

10 On 4 June 2004, the MCST commenced Originating Summons No 706 of 2004 (“OS 706”) against Lee Tat seeking a declaration that the MCST was entitled to repair and/or maintain the right of way over the servient tenement.

11 On 26 June 2004, Lee Tat commenced Originating Summons No 825 of 2004 (“OS 825”) seeking various declarations.

12 It was agreed between the parties that I should hear OS 825 first in view of the declarations sought. In the course of arguments, the main argument raised by the MCST was that there was a cause of action estoppel or an issue estoppel against Lee Tat in view of the decisions in the First and Second Actions.

13 After hearing arguments, I decided that Lee Tat was estopped from claiming the main reliefs sought. OS 706 was adjourned for the parties to try and resolve the delineation and dimensions of the right of way and, failing such resolution, to obtain further evidence of such delineation and dimensions before the next hearing of OS 706. Lee Tat has appealed against my decision in OS 825.

14 I set out below the prayers sought by Lee Tat in OS 825 and I shall elaborate on the First and Second Actions.

Reliefs sought in OS 825

15 The main reliefs sought by Lee Tat in OS 825 were and I quote:

1. 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 part of Lot 687);

2. 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);

3. a declaration that the right of way over Lot 111-31 shall not be used as an access to Lot 687;

4. 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;

5. 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;

6. 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; …

The estoppel argument

16 As stated by Goh J in the Second Action, lot 111-34 has been amalgamated with an adjoining lot, ie lot 561 of Town Sub-division 21. The tennis court and changing rooms of the condominium stand on the former lot 111-34 and three high rise blocks of apartments and a swimming room stand on the former lot 561.

17 In OS 825, Lee Tat’s counsel, Mr Tan Cheng Han SC, argued that as the right of way was originally granted to the former lot 111-34, the right of way did not extend to the former lot 561. Therefore the right of way could not be used by the residents of Grange Heights to reach the former lot 111-34 and then to cross over to the former lot 561. This was the issue before me (“the Issue”).

18 Mr Tan relied on a number of cases such as Purdom v Robinson (1899) 30 SCR 64, a decision of the Supreme Court of Canada; Harris v Flower (1904) 91 LT 816 which was a decision of an English Court of Appeal; and more recent decisions of the English Court of Appeal in Peacock v Custins [2001] 2 All ER 827, Das v Linden Mews Ltd [2003] 2 P&CR 4; [2002] 2 EGLR 76 and Massey v Boulden [2003] 2 All ER 87, as well as a decision of Gabriel Moss QC in Macepark (Whittlebury) Ltd v Sargeant [2003] 1 WLR 2284. The classicus locus appeared to be Harris v Flower. All of these cases were persuasive authorities in favour of the proposition he was advocating. However, Mr Tan had to meet the argument about cause of action or issue estoppel.

19 Although Mr Tan had stressed in his written submission that Lee Tat was commencing OS 825 in a “completely different capacity” as owner of the servient tenement and not as owner of lots 111-32 and 111-33 which are some of the dominant tenements, he did not assert that if I were to find that there was a cause of action or issue estoppel against Lee Tat arising from the decisions in either one of both of the First and Second Actions, Lee Tat could nevertheless avoid the estoppel because Lee Tat was a party in these two actions only in its capacity as owner of two of the dominant tenements. Accordingly, Mr Tan sought to establish that the Issue had not been raised or, if raised, had not been decided in either the First or the Second Action. Mr Edwin Lee, counsel for the MCST, sought to establish that it had been raised and decided or that it should have been raised.

The First and Second Actions

20 It was therefore necessary for counsel for each party to submit in some detail about the First and Second Actions and, consequently, for me to go into some detail about these two actions.

21 As I have mentioned, Collin (as Lee Tat was previously known) had commenced the First Action in 1974 against HLHL. Collin did so as owner of the two dominant tenements, lots 111-32 and 111-33. HLHL was at that time in the course of building the three blocks of high rise flats and other amenities on the amalgamated lot 687 comprising lots 111-34 and 561.

22 According to the judgment of F A Chua J at first instance, Collin had complained, inter alia, that HLHL had permitted its contractor employed for the construction of Grange Heights to use the right of way for access into and egress from lot 561. Collin claimed:

(1) A declaration that the defendants Hong Leong Holdings Ltd as the owners of Lot 561 of TS XXI by their directors,...