Management Corporation Strata Title Plan No 2504 v Hyundai Engineering & Construction Co Ltd and Another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 11 May 2007
• Neutral Citation: [2007] SGHC 63
• Docket Number: Originating Summons No 1643 of 2006
• Date: 11 May 2007
• Published date: 15 May 2007
• Year: 2007
• Plaintiff Counsel: Leo Cheng Suan (Infinitus Law Corporation)
• Citation: [2007] SGHC 63
• Defendant Counsel: Alagappan s/o Arunasalam (A Alagappan & Co),Vinodh S Coomaraswamy SC and Kenneth Choo (Shook Lin & Bok)
• Court: High Court (Singapore)
• Subject Matter: Rectification of windows,Whether windows forming common property under pre-amendment Land Titles (Strata) Act,Land,Whether duty of management corporation to maintain windows,Windows not common property under post-amendment Land Titles (Strata) Act,Strata titles,Sections 2(1), 2(9)(a), 29(1) Building Maintenance and Strata Management Act 2004 (No 47 of 2004), ss 3, 48(1)(b) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Common property

11 May 2007 Judgment reserved.

Kan Ting Chiu J

1 This matter came before the courts because the parties which have come to a settlement in an existing action, cannot agree on one issue. However, instead of proceeding with the action on the unresolved issue, the action was discontinued, and fresh proceedings were instituted to obtain the court’s declaration on the outstanding issue.

2 The matter arose from a condominium development known as the “Thomson 800 Condominium” (“the development”). The original action was Suit No 1203 of 2003 (“the suit”) which was filed on 10 December 2003. In the suit, the plaintiff was the management corporation (also referred to as “the MCST”) of the condominium formed under the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“LT(S)A”). The management corporation is also the plaintiff in the present proceedings. The present defendants are the second and third defendants in the suit where they were sued as the main contractors and the suppliers and installers of the windows of the development.

3 The original action was settled on 1 June 2006 with the execution of a settlement agreement. The unresolved issue related to some windows in the development specifically, and whether the defendants were liable to rectify defects in them. The settlement agreement provided in cll 12.6 and 12.7 that:

12.6 For the purpose of this Agreement, all windows of a lot at the external elevations in the Project being either louvers, casement windows, sliding windows or windows with any movable part will not be treated, unless the MCST in proceedings commenced in accordance with and pursuant to paragraphs 12.7 to 12.10 below obtains a Court declaration to establish that such windows, under the law applicable to the MCST’s claim in the Suit, are part of the common property or that it is or was the duty of the MCST to maintain the affected windows under that law (“the Windows Declaration”).

12.7 Notwithstanding Clause 10.2 above, the MCST may, within 3 months from the date of this Agreement, commence separate legal proceedings (“the Windows Application”) to apply to the High Court of the Republic of Singapore to seek the Windows Declaration, and the parties shall abide by that decision without further appeal to the Court of Appeal.

The reason for clause 12.6

4 The parties could not agree on the rectification of the windows referred to because the inclusion of windows as common property changed between the time the action was instituted and the time it was settled.

5 When the suit was filed (before the amendment of s 3 of the LT(S)A), common property was defined in the LT(S)A to include:

(c) unless otherwise described specifically as comprised in any lot in a strata title plan and shown as capable of being comprised in such lot, includes -

(i) foundations, columns, beams, supports, walls, roofs, lobbies, corridors, stairs, stairways, fire escapes, entrances and exits of the building and windows installed in the external walls of the building;

…

[emphasis added]

and s 48(1)(b) of the LT(S)A provides:

(1) A management corporation shall, for the purposes of the subdivided building concerned —

(b) properly maintain and keep it in a state of good and serviceable repair —

(i) the common property; and

(ii) any property vested in the management corporation;

6 Section 48 was repealed by the Building Maintenance and Strata Management Act (No 47 of 2004) (“the BMSMA”) which came into force on 1 April 2005. Section 48 of the LT(S)A was replaced by s 29(1) of the BMSMA which spelt out the duties of the management corporation in respect to common property:

(1) Except as otherwise provided in subsection (3), it shall be the duty of a management corporation —

(a) to control, manage and administer the common property for the benefit of all the subsidiary proprietors constituting the management corporation;

(b) to properly maintain and keep in a state of good and serviceable repair (including, where reasonably necessary, renew or replace the whole or part thereof) —

(i) the common property;

(ii) any fixture or fitting (including any pipe, pole, wire, cable or duct) comprised in the common property or within any wall, floor or ceiling the centre of which forms a boundary of a lot, not being a fixture or fitting (including any pipe, pole, wire, cable or duct) that is used for the servicing or enjoyment of any lot exclusively;

(iii) any fixture or fitting (including any pipe, pole, wire, cable or duct) which is comprised within a lot and which is intended to be used for the servicing or enjoyment of the common property;

(iv) each door, window and other permanent cover over openings in walls where a side of the door, window or cover is part of the common property; and

(v) any movable property vested in the management corporation;

7 The BMSMA also amended some provisions in the LT(S)A. The most significant amendment affecting the suit was the deletion of the definition of common property, and its replacement by a new definition:

“common property”, subject to subsection (2), means —

(a) in relation to any land and building comprised or to be comprised in a strata title plan, such part of the land and building —

(i) not comprised in any lot or proposed lot in that strata title plan; and

(ii) used or capable of being used or enjoyed by occupiers of 2 or more lots or proposed lots;

[emphasis added]

8 Section 2(1) of the BMSMA uses the same words in the definition of common property, and goes further to state in s 2(9)(a):

(a) all windows of a lot, proposed lot or non-strata lot that are located on any exterior wall of the lot, proposed lot or (as the case may be) non-strata lot, being either louvres, casement windows, sliding windows or windows with any movable part, shall be part of the lot, proposed lot or (as the case may be) non-strata lot and not common property;

[emphasis added]

9 It is to be noted that cl 12.6 of the settlement agreement repeats the words in italics. I will adopt counsel’s description of these windows as “the affected windows”.

10 The affected windows, being defined in cl 12.6 as “windows of a lot” do not come under the definition of common property under the LT(S)A after 1 April 2005 which excludes any part of a building comprised in any lot.

The relevant questions

11 The issue before me can be dealt with by examining the following questions:

(i) Are the affected...