Loh Sook Cheng v Management Corporation Strata Title Plan No 508

• Jurisdiction: Singapore
• Judge: Sheik Umar Bin Mohamed Bagushair
• Judgment Date: 13 July 2020
• Neutral Citation: [2020] SGDC 159
• Court: District Court (Singapore)
• Docket Number: Originating Summons No 159 of 2019, HC/RAS 13/2020
• Year: 2020
• Published date: 28 July 2020
• Hearing Date: 01 November 2019,22 January 2020,26 May 2020,10 January 2020,18 February 2020
• Plaintiff Counsel: Toh Kok Seng and Christopher Khew Wei Luen (Lee & Lee)
• Defendant Counsel: Subir Singh Grewal and Kang Hui Lin, Jasmin (Aequitas Law LLP)
• Subject Matter: Land,Strata Titles,Common property,Whether the renovation works conferred on the subsidiary proprietor exclusive use and enjoyment or special privileges in respect of common property,Whether the MCST unreasonably refused to consent to the renovation works
• Citation: [2020] SGDC 159

District Judge Sheik Umar Bin Mohamed Bagushair:

The Plaintiff is the subsidiary proprietor of 59 Upper East Coast Road Singapore 455217 (“Property”). The Property is part of a mixed residential and commercial development (“Development”) at Upper East Coast Road managed by the Defendant. The Development is quite old – the Defendant was constituted in 1980. The Development is also small, consisting of four shop units and four residential units. The Property is a shop unit.

The Plaintiff commenced this OS against the Defendant seeking: to compel the Defendant to approve renovation works at the Property; disclosure of the Development’s by-laws, renovation guidelines and particulars of the Development’s licensed electrical worker (“LEW”); and damages to be assessed.

The Defendant sought a dismissal of the OS and counterclaimed for: the disclosure of documents in respect of certain rectification works done to the Property (which for convenience I will refer to as the “rectification works”); alternative to the disclosure order, the Plaintiff be compelled to appoint a professional engineer (“PE”) to determine the precise nature of the rectification works; and the Plaintiff to bear the cost of the Defendant appointing a PE to advise the Defendant on the rectification works.

Numerous affidavits were filed and several hearings were conducted. Written submissions and reply written submissions were exchanged. On 26 May 2020, I issued oral grounds, and granted the OS in part and dismissed all of the Defendant’s counterclaims. The orders I made are set out at [74]. The grounds of decision set out below broadly replicate my oral grounds.

Disclosure order against the Defendant

The Plaintiff is no longer pursuing the disclosure order in light of the Defendant’s admissions that it has not passed any additional by-laws and the only applicable by-laws are those prescribed by statute, that it does not have any renovation guidelines, and that it does not employ an LEW. I therefore grant no order on this prayer.

Order for approval of the Works

The OS originally sought approval of a wide range of works, including works inside the Property and in the common property. However, when it became clear that the Defendant did not regulate the works inside the Property, the Plaintiff narrowed the scope of the OS to the following works which involved the common property: The installation of two air-conditioning compressors outside the rear exterior wall of the Property as set out in the plan drawing marked “19412-MGT-AC01” annexed to the letter from PK Project Consultants dated 17 January 2020 (“Air-Conditioning Works”); An upgrade to the Property’s electrical supply to a capacity of 60A single-phase as set out in the letter from Lim Engineering Associates dated 14 January 2020, and subject to the conditions therein (“Electric Supply Upgrade Works”); Ancillary plumbing works for the installation of fire hose reels, in particular the connection of the fire hose reel inside the Property to the existing water meter outside the rear wall of the Property, and changing the piping size of the existing water meter, in compliance with SCDF and other regulatory requirements (“Plumbing Works”); (collectively, the “Works”).

The Plaintiff says that by unreasonably refusing to consent to the Works, the Defendant was in breach of Section 29(1) of the Building Maintenance and Strata Management Act (“BMSMA”), which provides that the Defendant is under a duty to control, manage and administer the common property for the benefit of all subsidiary proprietors. The Plaintiff argued that she is entitled to relief for the breaches of the BMSMA, pursuant to Section 88(3) of BMSMA.

The Defendant in response made two broad points. First, the Works had the effect of conferring on the Plaintiff exclusive use and enjoyment or special privileges in respect of common property, which required a valid resolution to be passed, pursuant to Section 33 of BMSMA. In essence, the Defendant was saying that it could not consent to the Works, even if it wanted to, without a valid resolution in place. Second, the Works may affect the external façade of the Development or the structural integrity of the building the Property is located in. Under Section 37(4) of BMSMA, such works required the Defendant’s authorisation but the Defendant could not presently authorise the Works as it did not have all the necessary information regarding the Works.

Preliminary issue on jurisdiction

Before proceeding to the merits, there was a preliminary issue that initially troubled me. This was whether I had the jurisdiction to make the orders being sought. This point was not raised by either party, but I thought it relevant given that the Plaintiff referred to Section 111 of BMSMA (amongst other provisions) as providing support for the Court to grant the reliefs sought. Under Section 111 of BMSMA, a subsidiary proprietor could apply to the Strata Titles Board (“STB”) for relief where the MCST had unreasonably refused to consent to his proposal to effect alterations to the common property or to the subsidiary proprietor’s lot. The question then becomes whether the Plaintiff’s request for relief should more appropriately be put before the STB.

However, on further reflection, it is clear to me that the Court’s jurisdiction has not been ousted. Section 123 of the BMSMA makes that fairly clear. Furthermore, as Chan Seng Onn J explained in Fu Loong Lithographer Pte Ltd and ors v Mok Wai Hoe and anor [2014] 1 SLR 218 at [24] to [26], in the absence of a provision expressly ousting the Court’s jurisdiction or granting STB exclusive jurisdiction over such disputes, the position will simply be that a plaintiff has two possible forums to choose from. In some situations, it may be preferable to seek relief from STB given the wider powers they possessed, as explained by District Judge Loo Ngan Chor in Tan Su We, Hazel v Management Corporation Strata Title Plan No 1645 [2014] SGDC 276 at [11]. But the bottom line is that I had the jurisdiction to make the orders sought.

Decision

I am unable to agree with the Defendant’s objections to the Works based on Sections 33 or 37(4) of BMSMA.

Section 37(4) of BMSMA

I will first consider the objection based on Section 37(4) of BMSMA. The difficulty I had with this objection is that Sections 37(3) and (4) of BMSMA were not intended to regulate improvements to common property but to a subsidiary proprietor’s lot: Sit Kwong Lam v Management Corporation Strata Title Plan No 2645 [2017] SGHC 57 at [138] (“Sit Kwong Lam (HC)”). However, the Works are being done to the common property. The Defendant’s objection based on Section 33 of BMSMA is also premised on the Works being done to the common property.

It appears that the Plaintiff had also proceeded on the assumption that Section 37(4) of BMSMA was applicable. This could initially be justified when the scope of the OS covered renovation works inside the Property and to the common property. However, once the scope of the OS was narrowed to the Works that involved only the common property, Section 37(4) no longer became applicable.

Hence, I must reject the Defendant’s objection to the Works based on Section 37(4) of BMSMA. The provision is simply not applicable since the Works involve the common property.

Section 33 of BMSMA

This leaves only the objection based on Section 33 of BMSMA. In my view, Section 33 of BMSMA does not prohibit the Defendant from approving the Works, for four reasons.

Some of the Works involve common property with implied easements in favour of the Plaintiff

First, I accept the Plaintiff’s argument that in so far as the Electric Supply Upgrade Works and Plumbing Works involves work to be done to existing power cables and water pipes running through the common property, those existing cables and pipes are subject to implied easements, as a result of Section 18 of the Land Titles (Strata) Act (“LTSA”). Section 20 of LTSA states that “[a]ll ancillary rights and obligations reasonably necessary to make easements effective shall be implied whenever easements are created or implied by and under this Act.” Since the Plaintiff has the benefit of implied easements, I consider that they are entitled to to effect works on the existing cables and pipes, even if they are located in the common property. It would be incongruous to hold (as the Defendant seeks to argue) that such works involve the exclusive use of common property that cannot be permitted unless the necessary resolution is procured under Section 33 of BMSMA.

The Works do not confer on the Plaintiff “exclusive use and enjoyment” or “special privileges in respect” of common property

Second, I consider that the Works in any event do not confer on the Plaintiff exclusive use and enjoyment or special privileges in respect of the common property that requires authorisation under Section 33 of BMSMA. Section 33 of BMSMA uses the phrase “exclusive use and enjoyment of…or special privileges in respect of... the whole or any part of the common property”. This suggests that a particular subsidiary proprietor must have use and enjoyment of the common property to the exclusion of other subsidiary proprietors. When I consider the scope and nature of the Works, I am unable to find that they involve the exclusive use and enjoyment of common property: The Air-Conditioning Works involve the installation of two compressors outside the rear exterior wall of the Property. They will be top-hung from the existing reinforced concrete ceiling, above the ground level. Whilst certain very limited areas of the common property may be covered or obscured by the compressors, it does not follow that other subsidiary proprietors are excluded from using or enjoying those areas. In this respect, I adopt the broad meaning of “use” and “enjoy” applied in Sit Kwong Lam v Management Corporation...