Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd and another

• Court: Court of Appeal (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 04 July 2016
• Neutral Citation: [2016] SGCA 40
• Citation: [2016] SGCA 40
• Defendant Counsel: Thio Shen Yi, SC, Melvin Chan Kah Keen, Koong Len Sheng and Tan Tho Eng (TSMP Law Corporation),Ravi Chelliah, Sally Kiang and Edmund Chain (Chelliah & Kiang LLC)
• Published date: 12 July 2016
• Plaintiff Counsel: Ang Cheng Hock, SC, Ramesh Kumar and Benjamin Koh (Allen & Gledhill LLP) (instructed),Samuel Seow and Jolene Lim (Samuel Seow Law Corporation)
• Hearing Date: 06 May 2016
• Docket Number: Civil Appeal No 37 of 2016
• Date: 04 July 2016
• Subject Matter: Architects, Engineers and Surveyors,Building and Construction Law,Delegation of Duties,Statutory Obligations

Chao Hick Tin JA (delivering the grounds of decision of the court):

For large construction projects, many players with different specialisations are often involved. In the case of a condominium project, besides the developer, there will be professionals like the architects who design the project and the main contractor who undertakes to build the project in accordance with the approved plans. Various sub-contractors who carry out specific areas of work relating to the project (eg, piling, electrical, plumbing etc) are also often involved. Under the Building Control Act (Cap 29, 1999 Rev Ed) (“BCA”), the developer is required to appoint a builder, who is the main contractor, “to carry out [the] building works” (s 8(1)(c)) and an architect “to prepare the plans of the building works in accordance with the Act” (unless an architect has been appointed by the builder) (s 8(1)(a)).

In the normal course of events, unless the developer wishes to retain the residential units in the condominium as an investment (for example, by leasing the units out and collecting rent), he will place the units on the market for sale to potential home buyers. Every buyer who purchases a unit from the developer will enter into a contract of sale and purchase with the developer. Upon completion of the development, each buyer of a unit becomes a subsidiary proprietor. All the subsidiary proprietors of a development will eventually form the management corporation of that condominium development (or, to be precise, the strata title plan) (s 10A of the Land Titles (Strata) Act (Cap 158, 2009 Rev Ed)). The management corporation may “sue and be sued in respect of any matter affecting the common property” (s 24(2)(b) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”)).

The central issue in the present appeal was whether, and to what extent, the management corporation had recourse in tort against the builder and the architect for building defects in the common property of the condominium development where the defects were not caused by the negligence of the builder and/or architect, but by the negligence of their sub-contractors. The key contention advanced by the appellant was that the builder and the architect were subject to a non-delegable duty in tort to ensure that the building and design (respectively) of the condominium was carried out without negligence on the part of any of their sub-contractors. Effectively what the appellant here sought to assert was that the builder and architect could be held liable in tort for any negligence of their independent sub-contractors.

At the conclusion of the hearing, we were not satisfied that the builder and the architect owed such a duty in law and hence dismissed the appeal. We now set out the detailed grounds for our decision.

Background facts

The appellant, Management Corporation Strata Title Plan No 3322 (“the MCST”), was the management corporation of The Seaview condominium (“The Seaview”). The Seaview was completed in 2008 with six 22-storey residential blocks of apartments, comprising 546 residential units. The respondents were Tiong Aik Construction Pte Ltd, the builder of The Seaview (“the Main Contractor”), and RSP Architects Planners & Engineers (Pte) Ltd, the architect of The Seaview (“the Architect”).

In Suit No 563 of 2011 (“S 563/2011”), the MCST brought proceedings against four defendants in respect of defects in the common areas of the condominium, namely, the developer, the Main Contractor, the Architect and one of the Architect’s sub-contractors. The MCST cited only the Main Contractor and the Architect as the respondents to this appeal, leaving out the developer and the Architect’s sub-contractor. In other words, the MCST had decided not to pursue the appeal against the latter two defendants. The claims made by MCST in the action against the Main Contractor and the Architect were as follows: Against the Main Contractor – (a) in tort for failing to carry out the construction works in a good and workmanlike manner and/or in accordance with approved plans, specifications and industry standards; and (b) for breach of warranties which were issued jointly and severally by the Main Contractor and their sub-contractors to the developer and subsequently assigned to the MCST.¹ Against the Architect – in tort for failing to employ reasonable care and skill in the design of the development and/or supervision of the works for The Seaview.²

On 28 January 2015, the four defendants wrote to the MCST proposing that certain preliminary issues be tried and determined prior to the main trial of the action. The MCST replied on 4 February 2015, objecting to a separate trial of the proposed preliminary issues and took the position that those issues should be decided together with the rest of the issues in the action as they were inextricably bound.

The issue was considered by the trial judge (“the Judge”) on 30 March 2015 at a Judge Pre-Trial Conference, and the Judge directed that the following issues should be tried and determined as preliminary issues in S 563/2011:³ whether the Main Contractor and the Architect are independent contractors of the developer; whether the various domestic and nominated sub-contractors are independent contractors of the Main Contractor; whether Squire Mech Private Limited and Sitetectonix Pte Ltd (ie, the sub-contractors) are independent contractors of the Architect; whether there has been any lack of proper care in the selection and appointment of independent contractors; whether the Main Contractor and the Architect have statutory non-delegable duties under the BCA, and if so, how do these duties affect the application of their independent contractor defence; whether the Architect has any non-delegable duties under the common law as a construction professional; who, in light of the above, is responsible for the alleged defects with respect to the “Fibre Optic Cable”, “Poolside Landscaping”, and “Foul Smell” issues (referring to specific building defects in The Seaview, which will be explained in more detail at [12] below); and whether a civil remedy is available to the MCST for alleged breaches of the BMSMA by the developer.

The MCST did not appeal against the Judge’s decision to have a separate trial for the determination of the above preliminary issues. Accordingly, the trial of the preliminary issues proceeded and was heard over ten days between 3 July 2015 and 29 January 2016.⁴ The present appeal arose from the Judge’s decision on the preliminary issues, which is reported as MCST Plan No 3322 v Mer Vue Developments Pte Ltd and ors [2016] 2 SLR 793 (“the Judgment”).

The decision below

The Judge considered the nature of the relationship between the parties in the context of possible vicarious liability, and concluded as follows: The Main Contractor and the Architect were independent contractors of the developer (the Judgment at [69] and [70]). The nine nominated sub-contractors and twelve domestic sub-contractors were independent contractors of the Main Contractor (the Judgment at [86]). Squire Mech Private Limited and Sitetectonix Pte Ltd were independent contractors of the Architect (the Judgment at [90] and [91]). In addition, the Judge found that proper care had been exercised by the Main Contractor and the Architect in their appointment of the independent contractors (the Judgment at [93]).

The Judge also considered the question of non-delegable duties which arose under both statute and the common law (the Judgment at [27]). The Judge recognised that in law, if a non-delegable duty were breached, an employer could be held liable for the negligence of its independent contractors (the Judgment at [16]). On the facts, the Judge held: A new common law category of non-delegable duties for construction professionals should not be created (the Judgment at [26]). Instead, construction professionals were only under a common law duty not to unreasonably delegate any of its professional responsibilities (the Judgment at [56]–[57]). It followed that the only common law non-delegable duties which the Main Contractor and the Architect were subject to were those which were well-established in common law (the Judgment at [17], [21], [22] and [26]). The Architect and the Main Contractor were subject to statutory non-delegable duties under ss 9 and 11 of the BCA respectively, but these duties were limited to those stated in the BCA, which concern only building safety, construction in accordance with the relevant approved plans, compliance with building regulations and provisions of the BCA, and compliance with the terms and conditions imposed by the Commissioner of Building Control (the Judgment at [42] and [47]).

Several specific defects were also considered by the Judge (ie, the “Fibre Optic Cable”, “Poolside Landscaping”, and “Foul Smell” issues). He found as follows: The Fibre Optic Cable issue concerned alleged incomplete and/or inconsistent fibre optic cabling. The fibre optic cable was installed by Singtel and any negligence relating to the installation of the cables would not lie with how the defendants had performed their contracted work, save for the Main Contractor’s possible lack of care over its control over the construction site (the Judgment at [101]). The Poolside Landscaping issue concerned the alleged negligent design of the trees and plants around the pool which led to the nuisance of small leaves falling into the pool. This was designed by Sitetectonix Pte Ltd, who would prima facie be liable for its own negligence. The Architect would not be vicariously liable for Sitetectonix Pte Ltd’s negligence in this regard, if any (the Judgment at [102]–[103]). Further, there was no evidence that the developer had condoned Sitetectonix Pte Ltd’s alleged negligent acts (the Judgment at [108]). The Foul Smell issue concerned bad odours in the...