Lee Tat Development Pte Ltd v MCST Plan No 301

• Jurisdiction: Singapore
• Judgment Date: 01 December 2008
• Date: 01 December 2008
• Docket Number: Civil Appeal No 20 of 2007
• Court: Court of Appeal (Singapore)

Lee Tat Development Pte Ltd

Plaintiff

and

Management Corporation Strata Title Plan No 301

Defendant

[2008] SGCA 47

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 20 of 2007

Court of Appeal

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 Right of Way - effectively amounted to a ruling that Lee Tat could not raise the Main Issue as only the then owner of the Servient Tenement had the requisitelocus standi to raise that issue. The Court of Appeal agreed with the High Court that 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 the Residents; apart from that, Lee Tat was not entitled to bar the Residents from using the Right of Way for the purposes of Lot 561 as that was a matter between the Residents and the then owner of the Servient Tenement. The decisions of the courts in the Second Action did not constitute a ruling on the merits of the Main Issue because the Main Issue could only be decided between the MC and the then owner of the Servient Tenement, and the latter was not a party to the Second Action: at [32 (f)] and [32 (g)].

(5) Collin and Lee Tat did not participate in the First Action and the Second Action respectively as servient owners (ie, the owners of a servient tenement), and, thus, any decision made in those actions could not have affected Lee Tat's rights as a servient owner after it acquired title to the Servient Tenement in 1997. Moreover, the Main Issue was not decided in both the First Action and the Second Action. Accordingly, Lee Tat could not have been estopped from litigating in the Fourth Action any issue affecting its interests in the Right of Way as the owner of the Servient Tenement, including the Main Issue (as framed in the form of the issue raised in the Fourth Action). Of the four requirements necessary to establish an estoppel in respect of the issue raised in the Fourth Action, only one was satisfied by the decision in the Second Action - namely that the judgment on the issue in question be made by a court of competent jurisdiction: at [43 (f)] and [55].

(6) In Arnold v National Westminster Bank Plc [1991] 2 AC 93 (“Arnold”), the House of Lords recognised an exception to the doctrine of res judicata, that is, where the court itself had made such an egregious mistake that grave injustice to one or more parties concerned would result if the court's erroneous decision were to form the basis of an estoppel against the aggrieved party or parties (“the Arnold exception”). The Singapore courts should likewise recognise this exception. However, it would be difficult to establish that any judicial error by itself would qualify as “special circumstances” that...