Lim Choo Suan Elizabeth and Others v Goh Kok Hwa Richard and Others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 12 May 2009
• Neutral Citation: [2009] SGHC 114
• Docket Number: Originating Summons No 664 of 2008
• Date: 12 May 2009
• Published date: 19 May 2009
• Year: 2009
• Plaintiff Counsel: David Liew (DSH Law Corporation)
• Citation: [2009] SGHC 114
• Defendant Counsel: Gan Hiang Chye, Edwin Lee, Hazel Tang and Deborah Ho (Rajah & Tann LLP)
• Court: High Court (Singapore)
• Subject Matter: Remarks made by President of Strata Titles Board during hearing,Whether sales price was obtained at arm's length,Failure to subpoena witness,Whether all subsidiary proprietors should be ordered to be bound by collective sale agreement,Land,Strata titles,Failure to affix copy of notice of application on conspicuous part of each building,Natural justice,Section 84A(3) and the Schedule para 1(f) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Excessive interruptions during hearing,Whether President of Strata Titles Board was biased or there was reasonable suspicion of bias or he had breached rules of natural justice,Whether valuation report flawed,Whether conflicting costs orders made,Failure to file Form 1A listed on Strata Titles Board website,Administrative Law,Whether transaction was in good faith,Collective sales,Whether collective sale agreement was signed by requisite majority in share value

12 May 2009

Woo Bih Li J:

Introduction

1 This was an appeal by the plaintiffs against the decision of a Strata Titles Board approving the collective sale of the development known as Rainbow Gardens under s 84A of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“LTSA”). Under s 98(1) of the Building Maintenance and Strata Management Act 2004 (“the BMSMA 2004”), no appeal shall lie to the High Court against such a decision except on a point of law. After hearing arguments, I dismissed the appeal. The plaintiffs have since appealed to the Court of Appeal.

2 I set out below the following definitions for easy reference:

Definitions
“Ang”	-	Ang Chin Peng, an SP of RG
“Application”	-	The application made on or about 3 August 2007 for a collective sale order of the RG
“Conditional SPs”	-	The SPs of three units in RG who had signed the CSA with a condition that their signatures would not be valid if the MSP was lower than $76.8 million
“CSA”	-	The collective sale agreement signed by the Majority
“Ecco”	-	Ecco Venture Pte Ltd
“Ee”	-	Daniel Ee of Savills (Singapore) Pte Ltd
“EOIs”	-	Expressions of interest
“ERA”	-	ERA Realty Network Pte Ltd
“First Capital”	-	First Capital Holdings Pte Ltd
“Gan”	-	Gan Hiang Chye, a partner with R&T
“GD”	-	Grounds of Decision of the RG Board
“Goh”	-	Goh Kok Hwa Richard, Chairman of the SC
“Koh”	-	Koh Hock Chuan, an SP of RG
“the Majority”	-	The SPs who signed the CSA
“the Minority”	-	Lim Choo Suan Elizabeth, Lim Poh Heng, Tan Peck Kheng and Koh
“MSP”	-	Minimum selling price
“the Notice”	-	Notice of the Application
“Poon”	-	Dr Poon Lee Kwee, an SP of RG
“Premier”	-	Premier Land Development Pte Ltd
“RG”	-	The development known as Rainbow Gardens
“RG Board”	-	The Strata Titles Board which heard the Application
“R&T”	-	Rajah & Tann
“SC”	-	The sale committee which were appointed under the CSA to be, inter alia, the agents of the Majority to negotiate and finalise the collective sale of RG
“Seah”	-	Steven Seah of Seah Ong & Partners
“See”	-	See Moi Kiang @ See Beng Kiang, a senior marketing director of ERA
“Sim Lian”	-	Sim Lian Land Pte Ltd
“Soh”	-	Soh Liang Liang, an SC member
“SPs”	-	Subsidiary proprietors of RG and “SP” is the singular
“SPA”	-	The Sale and Purchase Agreement with Premier dated 12 May 2007
“STB”	-	A Strata Titles Board
“Tan”	-	Dr Tan Kok Yang, an SP who had objected to the collective sale and also filed an appeal to the High Court but decided not to pursue it.

Background

3 RG is a condominium development with a land area of about 11,094.8 square metres. It comprises four walk-up blocks of four-storey height with a total of 64 maisonette units. It is located at the junction of Toh Tuck Road and Jalan Jurong Kechil.

4 On or about 3 August 2007, the Application was made for an order for the collective sale of RG under s 84A LTSA. The applicants were three members of the SC purportedly authorised by the Majority to make the Application.

5 On 15 August 2007, the Minority filed their objections to the Application. The defendants before me were the applicants before the RG Board and the plaintiffs before me were the defendants before the RG Board. I would add that at the time of the hearings before the RG Board, there were more SPs who objected to the collective sale but they did not pursue an appeal to the High Court. For example, Tan had appealed to the High Court but eventually decided not to pursue it.

6 The RG Board held two mediation sessions on 19 and 22 September 2007 without success. The Application was then fixed for hearing on 6 and 7 December 2007. Also, at the second mediation session, the Minority applied for and were allowed an extension of time to file further objections to the Application.

7 On 10 October 2007, the Majority filed an interlocutory application. According to the GD, this application was to object to the Minority’s further objections on the following grounds:

(a) The further objections submitted by the [Minority] are in contumelious delay of the statutory period provided for the submission of an objection under s 84A(4) of the LTSA;

(b) further objections are based on matters which could have been raised earlier;

(c) the further objections raise irrelevant matters with no reasonable prospect of success;

(d) the [Minority] cannot base any of their objections on the new laws and regulations which were not in effect at the material times of this application; and

(e) the allegations as contained in their further objections are frivolous, vexatious, irrelevant and inconsequential.

8 On 23 October 2007, the Minority filed an interlocutory application for the Application to be struck out. According to the GD, the main grounds were as follows:

“(a) The Applicants’ application for a collective sale order under s 84A of the LTSA did not fully comply with the statutory requirements of the Act and is therefore invalid; and

(b) the Applicants’ application for a collective sale order failed to comply with the requirements of the LTSA and the Building Maintenance and Strata Management (Strata Titles Board) Regulations (“BMSMR”).”

9 On 6 December 2007, the RG Board commenced hearing the two interlocutory applications simultaneously. The hearing lasted two days. Both parties were further asked to submit written submissions and the case was adjourned to 29 January 2008 for the RG Board to deliver its decision in respect of the two interlocutory applications. On 29 January 2008, the RG Board dismissed both interlocutory applications with costs.

10 Thereafter, the parties proceeded with the hearing of the Application over six days on 29 and 31 January 2008, 4 and 5 February 2008 and 17 and 18 March 2008. On 18 May 2008, the Board granted an order for the collective sale of RG.

11 As mentioned above, the Minority then appealed against the RG Board’s decision, raising various issues which I will come to.

12 The first two issues raised by the Minority before me were the two grounds they had taken in their interlocutory application before the RG Board.

13 I should mention that Edwin Lee (“Mr Lee”), counsel for the Majority, took the point that as the Minority’s appeal to the High Court was filed on 15 May 2008, the Minority could not rely on these two issues because the appeal was out of time as the RG Board’s decision on the Minority’s interlocutory application was given on 29 January 2008. Mr Lee submitted that the time to appeal against that decision was from the date of that decision and not from the date of the decision in the Application. David Liew (“Mr Liew”), counsel for the Minority, submitted that time ran from the date of the decision in the Application. Both sides referred to various parts of what the RG Board had said in respect of the time to appeal from their decision on the Minority’s interlocutory application. It appeared to me that there was some confusion in the proceedings below on this point and it was arguable that the RG Board had intimated that time to appeal from that decision had not yet begun to run and the Minority were led to believe that time did not run until the RG Board’s decision on the Application. In any event, in view of my decision on the substantive issues, it was unnecessary for me to decide whether the Minority were precluded from raising the first two issues before me.

First issue – failure to comply with s 84A(3) LTSA read with paragraph 1(f) of the schedule to the LTSA

14 The first issue was that the Majority had failed to comply with s 84A(3) LTSA read with paragraph 1(f) of the Schedule to the LTSA. S 84A(3) LTSA states:

No application may be made under subsection (1) by the subsidiary proprietors referred to in that subsection unless they have complied with the requirements specified in the Schedule and have provided an undertaking to pay the costs of the Board under subsection (5).

15 The Schedule to the LTSA provides:

REQUIREMENTS UNDER SECTION 84A, 84D OR 84E

1. Before making an application to a Board, the subsidiary proprietors referred to in section 84A(1) or the proprietors of flats referred to in section 84D(2) or 84E(3), as the case may be, shall —

…

(e) serve notice of the proposed application on all the subsidiary proprietors of all the lots and common property in the strata title plan concerned or on all proprietors of all flats in the development concerned, as the case may be, by registered post and by placing a copy of the proposed application under the main door of every lot or flat, together with a copy each of the following:

(i) the collective sale agreement referred to in sub-paragraph (a);

(ii) the sale and purchase agreement which is to be the subject of the application to the Board;

(iii) a statutory declaration made by the purchaser under the sale and purchase agreement on the nature of his relationship (if any) or, if the purchaser is a body corporate, the nature of the relationship of every one of its directors (if any), to any subsidiary proprietor of any lot comprised in that strata title plan or any proprietor of any flat in the development, as the case may be;

(iv) the minutes of the extraordinary general meeting or meeting referred to in sub-paragraph (c);

(v) the advertisement referred to in sub-paragraph (d);

(vi) a valuation report that is not more than 3 months old; and

(vii) a report by a valuer on the proposed method of distributing the proceeds of the sale due under the sale and purchase agreement; and

(f) affix a copy of the notice referred to in sub-paragraph (e) in the 4 official languages to a conspicuous part of each building comprised in the strata title plan or the development, as the case may be.

[emphasis added]

16 It was undisputed that the Notice (with the requisite documents) was served on the Minority by registered post and by placing a copy thereof...