Lee Tat Development Pte Ltd v MCST Plan No 301

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date01 December 2008
Docket NumberCivil Appeal No 20 of 2007
Date01 December 2008

[2008] SGCA 47

Court of Appeal

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 20 of 2007

Lee Tat Development Pte Ltd
Plaintiff
and
Management Corporation Strata Title Plan No 301
Defendant

Ernest Yogarajah s/o Balasubramaniam (Arfat Selvam Alliance LLC) for the appellant

Edwin Lee and Looi Ming Ming (Rajah & Tann LLP) for the respondent.

Alvis v Harrison (1991) 62 P & CR 10 (refd)

Arnold v National Westminster Bank Plc [1991] 2 AC 93 (folld)

Atwood v Bovis Homes Ltd [2001] Ch 379 (folld)

Bracewell v Appleby [1975] Ch 408 (refd)

British Railways Board v Glass [1965] Ch 538 (distd)

Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853 (refd)

Ching Mun Fong v Liu Cho Chit [2000] 1 SLR (R) 53; [2000] 1 SLR 517 (refd)

Collin Development (Pte) Ltd v Hong Leong Holdings Ltd [1974-1976] SLR (R) 806; [1975-1977] SLR 202, CA (refd)

Collin Development (Pte) Ltd v Hong Leong Holdings Ltd [1974-1976] SLR (R) 618; [1975-1977] SLR 457, HC (refd)

Giles v County Building Constructors (Hertford) Ltd (1971) 22 P & CR 978 (refd)

Goh Nellie v Goh Lian Teck [2007] 1 SLR (R) 453; [2007] 1 SLR 453 (refd)

Gordon and Regan, Re (1985) 15 DLR (4th) 641 (refd)

Gordon and Regan, Re (1990) 66 DLR (4th) 384 (refd)

Graham v Philcox [1984] 1 QB 747 (distd)

Harris v Flower (1904) 74 LJ Ch 127 (folld)

Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 (refd)

Huckvale v Aegean Hotels (1989) 58 P & CR 163 (refd)

Hutton v Hamboro (1860) 2 F & F 218; 175 ER 1031 (refd)

Jelbert v Davis [1968] 1 WLR 589 (folld)

John Purdom v John A Robinson (1899) 30 SCR 64 (refd)

Lee Tat Development Pte Ltd v MCST Plan No 301 [1992] 3 SLR (R) 1; [1992] 2 SLR 865 (not folld)

Lee Tat Development Pte Ltd v MCST Plan No 301 [2004] 4 SLR (R) 828; [2004] 4 SLR 828, HC (overd)

Lee Tat Development Pte Ltd v MCST Plan No 301 [2005] 3 SLR (R) 157; [2005] 3 SLR 157, CA (not folld)

Malden Farms Ltd v Nicholson (1956) 3 DLR (2d) 236 (refd)

MCST Plan No 301 v Lee Tat Development Pte Ltd [1990] 2 SLR (R) 634; [1990] SLR 1193 (distd)

Miller v Tipling (1918) 43 DLR 469 (refd)

New Brunswick Railway Company v British and French Trust Corporation, Limited [1939] AC 1 (refd)

Peacock v Custins [2002] 1 WLR 1815 (refd)

Pettey v Parsons [1914] 2 Ch 653 (refd)

Republic of India v India Steamship Co Ltd [1993] AC 410 (refd)

Williams v James (1867) LR 2 CP 577 (refd)

Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (refd)

Land Titles (Strata) Act (Cap 158, 1988 Rev Ed)

Land Titles (Strata) Act (Cap 158, 1999 Rev Ed)ss 3, 13 (1),33 (1),33 (2) (b),33 (3)

Arbitration Act1979 (c 42) (UK) s 7

Law of Property Act1925 (c 20) (UK)s 62 (2)

Land–Easements–Extinguishment–Circumstances under which easement could be extinguished by operation of law–Right of way extinguished by operation of law due to permanent and irreversible change in character and nature of use of dominant tenement and drastic change in circumstances since date of grant–Land–Easements–Rights of way–Whether right of way granted in favour of lot A could be used to access lot B which had been amalgamated with lot A to develop condominium–Effect of acquisition of servient tenement by owner of dominant tenement on its rights vis-à-vis owner of another dominant tenement–Res Judicata–Issue estoppel–Whether issue that had never been decided on the merits could be the subject of an estoppel–Res Judicata–Issue estoppel–Whether res judicata should apply to erroneous decision that an issue had been decided in earlier proceedings when those proceedings had ruled on a different issue

In 1919, Mutual Trading Ltd (“Mutual”), then in liquidation, sold and conveyed Lots 111-30, 111-32, 111-33 and 111-34 of Town Sub-Division 21 (collectively, “the Dominant Tenements”), which were adjacent to Lot 111-31 (“the Servient Tenement”), to various purchasers and granted a right of way (“the Right of Way”) in favour of each of the Dominant Tenements over the Servient Tenement whose ownership Mutual retained at that time.

In 1970, Hong Leong Holdings Ltd (“HL”) - the predecessor in title of the respondent (“the MC”) - became the owner of Lot 111-34 and the land adjacent to it, Lot 561 of Town Sub-Division 21. Lot 561 was more than three times the size of Lot 111-34. HL amalgamated Lot 111-34 and Lot 561 into one lot to form Lot 687 in order to develop the Grange Heights condominium (“the Amalgamation”). (The former Lot 111-34 and the former Lot 561 will continue to be referred to as “Lot 111-34” and “Lot 561” respectively in this headnote.) Ownership of Lots 111-32 and 111-33 passed to Collin Development Pte Ltd (“Collin”) - as the appellant (“Lee Tat”) was formerly known - in 1973.

In a series of four court proceedings spanning a period of more than 30 years, the parties (and their respective predecessors in title) contested the issue of the entitlement of HL, and later, the residents of Grange Heights (“the Residents”), to use the Right of Way for the purposes of gaining access to Lot 561 from Grange Road and vice versa.The first two court actions (“the First Action” and “the Second Action” respectively) were commenced in 1974 and 1989 respectively. Lee Tat's main contention was that, as a matter of law, a right of way granted for the benefit of a dominant tenement (viz, Lot 111-34) could not be used to access a non-dominant tenement (viz,Lot 561) (“the Main Issue”). Lee Tat also argued in the Second Action that the MC's right of way over the Servient Tenement had been extinguished as a result of the Amalgamation (“the Amalgamation Issue”).

The courts in the first two court actions observed that Collin/Lee Tat, not being the owner of the Servient Tenement, could only prevent its enjoyment of the Right of Way from being substantially interfered with by HL/the Residents. The courts in the First Action held that there was no evidence that HL had substantially interfered with Collin's enjoyment of the Right of Way. In the Second Action, the courts held that the Right of Way had not been extinguished by the Amalgamation because Lee Tat had not complained, and there was no likelihood, of substantial interference by the Residents in the form of excessive user of the Right of Way.

In 1997, Lee Tat acquired the Servient Tenement from the Official Receiver. When the MC commenced the third set of court proceedings in 2004 (“the Present Action”) to seek a declaration that it had a right to repair and/or maintain the Right of Way, Lee Tat responded by filing the Fourth Action to seek, inter alia, a declaration that the easement granted in favour of Lot 111-34 could not be used to benefit Lot 561/687. Lee Tat claimed that it was entitled to raise the Main Issue (as framed in the form of the issue raised in the Fourth Action) because it was now suing in its capacity as the owner of the Servient Tenement. The MC, however, asserted that Lee Tat was estopped from re-litigating the issue raised in the Fourth Action as that issue had already been decided against Collin and Lee Tat in the First Action and the Second Action respectively.

By a majority, the Court of Appeal in the Fourth Action held that the Main Issue (as framed in the form of the issue raised in the Fourth Action) had been decided in the Second Action and, therefore, Lee Tat was estopped from raising it in the Fourth Action. Following this decision, the Judge in the Present Action granted the MC the order to repair and maintain the Right of Way. Lee Tat appealed against the Judge's decision.

Held, allowing the appeal:

(1) With regard to the Amalgamation Issue, both the High Court and the Court of Appeal in the Second Action held that the Amalgamation did not destroy or extinguish the Right of Way. In this court's opinion, the Amalgamation Issue did not have to be decided at all in the Second Action because neither the MC nor Lee Tat was in a position to question the existence of the easement vis-à-vis the other. The decision of the courts in the Second Action regarding the Amalgamation Issue was not intended to, and did not, bind the then owner of the Servient Tenement, who was not a party to the Second Action, but only bound Lee Tat as the owner of the dominant tenements, Lot 111-32 and Lot 111-33: at [32 (a)] and [32 (e)].

(2) Graham v Philcox [1984] 1 QB 747 did not support the principle stated by the Court of Appeal in the Second Action that “ [o]n amalgamation, so long as the user [of] the servient tenement [was] not excessive, the enlargement of the dominant tenement by such amalgamation [did] not affect the existence of the right of way” (see Lee Tat Development Pte Ltd v MCST Plan No 301 [1992] 3 SLR (R) 1 at [19]). Graham v Philcox was concerned with the alteration of a dominant tenement in rather unusual circumstances. In this court's view, a non-dominant tenement could not become, for the purposes of an easement created by a grant, part of the dominant tenement simply by amalgamation with the dominant tenement, especially where the non-dominant tenement was far larger than the dominant tenement: at [32 (c)] and [32 (d)].

(3) The courts in both the First Action and the Second Action did not find it necessary to determine the Main Issue for the purposes of determining the respective issues before them, which did not concern the point as to whether or not the Right of Way could be used for the benefit of Lot 561. The courts in the First Action and the Second Action effectively ruled that Collin (in the First Action) and Lee Tat (in the Second Action) were not competent to raise the Main Issue, which affected only the rights of the then owner of the Servient Tenement: at [45].

(4) The High Court's decision in the Second Action that Lee Tat, as the owner of a dominant tenement, was only entitled to prevent the MC from substantially interfering with its enjoyment of the Right of Way - but not to block the MC's access to and use of the...

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32 cases
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