Management Corporation Strata Title No 586 v Menezes

JurisdictionSingapore
CourtHigh Court (Singapore)
Docket NumberDistrict Court Appeal No 14 of
Date11 February 1992

[1992] SGHC 23

High Court

Goh Phai Cheng JC

District Court Appeal No 14 of 1991

Management Corporation Strata Title Plan No 586
Plaintiff
and
Menezes Ignatius Augustine
Defendant

Sng Kheng Huat (Low Yeap & Co) for the appellants

Narayanan Vijay Kumar (Vijay & Co) for the respondent.

Benmax v Austin Co Ltd [1955] AC 370; [1955] 1 All ER 326 (folld)

Butler (or Black) v Fife Coal Co Ltd [1912] AC 149 (refd)

Lonrho v Shell Petroleum Co Ltd (No 2) [1982] AC 173 (distd)

Trustees of Leong San Tong Khoo Kongsi (Penang) Registered v Poh Swee Siang [1987] 2 MLJ 611 (folld)

Evidence Act (Cap 97, 1990 Rev Ed) s 116 illustration (g) (consd)

Land Titles (Strata) Act (Cap 158, 1985 Rev Ed) s 31 (consd);ss 30, 35, 45, Second Schedule

Civil Procedure–Appeals–Findings of fact–Role of appellate court in reviewing trial court's findings of fact–No question of credibility of witness–Proper inference to be drawn from specific facts–Civil Procedure–Costs–Principles–Plaintiff only partially successful in claims–Entitlement to only partial costs–Evidence–Proof of evidence–Onus of proof–Failure to produce primary evidence or other evidence of damage–Presumption that evidence unfavourable–Adverse inference to be drawn–Section 116 illustration (g)Evidence Act (Cap 97, 1990 Rev Ed)–Land–Strata titles–Management corporation–Breach of statutory duties–Whether actionable by civil suit–Intention of Parliament–Scope and purpose of statute–Section 31 Land Titles (Strata) Act (Cap 158, 1985 Rev Ed)–Tort–Negligence–Breach of duty–Breach of statutory duty–Whether actionable by civil suit–Intention of Parliament–Scope and purpose of statute–Section 31 Land Titles (Strata) Act (Cap 158, 1985 Rev Ed)–Tort–Negligence–Damages–Award of original value of damaged items–Depreciation in value–Failure to take into account depreciation

The respondent was a subsidiary co-proprietor of a unit in Pasir Panjang Court, and the appellant was the management corporation (“MC”). The respondent sued the MC for negligence and/or breach of statutory duty under s 31 of the Land Titles (Strata) Act (Cap 158, 1985 Rev Ed) (“the Act”) for failing to keep the rubbish chutes at Pasir Panjang Court in good repair. The respondent alleged that rats had entered his flat through the rubbish chute and damaged his household items. The respondent also claimed damages for other alleged acts of negligence and/or mismanagement by the MC. The district judge gave judgment in favour of the respondent in the sum of $2,062 for the damage caused to the household items by the rats, but dismissed the rest of his claims against the MC. The district judge also awarded taxed costs to the respondent. The MC appealed against the district judge's decision. The appeal raised an important question of law, namely, whether a management corporation which was constituted under the Act could be sued by a subsidiary proprietor for damages for breach of its statutory duty.

Held, allowing the appeal and awarding the appellant costs here and below:

(1) The district judge erred in awarding full costs in favour of the respondent. Since he was only partially successful in his claims, he should only have been entitled to part of the costs in the court below: at [9].

(2) Breach of a statutory duty could give rise to liability in a civil action only when the plaintiff could establish that Parliament intended the breach of the relevant statutory duty to be actionable by the individual harmed by that breach. If a statute imposed a penalty for its breach but was silent regarding a civil remedy, one had to consider the scope and purpose of the statute and, in particular, for whose benefit it was intended: at [12] and [19].

(3) Having regard to the scope and purpose of the Act, and the nature of the statutory duties imposed by the Act on a management corporation, a breach of a statutory duty imposed by the Act on a management corporation did not give rise to any civil liability. By enacting a criminal penalty under s 45 (1) of the Act, and by setting out a specific remedy under s 45 (2), Parliament did not intend that a breach was to be actionable by an aggrieved subsidiary proprietor: at [19].

(4) Although a breach of a statutory duty under the Act did not give rise to any civil liability, it was expressly provided by s 35 of the Act that a breach of any of the by-laws set out in the Second Schedule to the Act did give rise to civil liability. Whether the respondent's cause of action was founded on the tort of negligence or a breach of the by-laws, he had to establish that the relevant breach caused the damage: at [20] to [21].

(5) An appellate court should not lightly differ from the trial judge's findings of fact. However, where the sole question was the proper inference to be drawn from specific facts, an appellate court was in as good a position to evaluate the evidence of the trial judge, and should form its own independent opinion though it should give weight to the trial judge's opinion: at [39] to [40].

(6) The district judge erred in drawing the inference that the rats entered the flat through the rubbish chutes. The opening to the chute in the respondent's flat had an iron lid which was always in a closed position. The respondent's flat was on the ground floor and the rats could have entered his flat through the windows or by other means: at [43].

(7) There was neither evidence of the damaged items nor evidence to link the rats in the rubbish chute to the damage. The respondent did not produce the damaged items or photographs of the damage caused. Even though he had confirmed the further and better particulars of the damage to be true in his evidence-in-chief, the confirmation did not have the same result as producing the damaged items before the court as primary evidence, or at least photographs which would show the damaged household items: at [44].

(8) Illustration (g) to s 116 of the Evidence Act (Cap 97, 1990 Rev Ed) provided that the court may presume that evidence which could be produced and was not produced would, if produced, be unfavourable to the person who withheld it. The district judge erred in not drawing an adverse inference from the respondent's failure to produce the damaged items or photographs of them: at [45].

(9) Even if the district judge's findings were correct, he erred in awarding the respondent the sum of $2,062 as damages. The sum represented the original value of the damaged items, but they were three years old by the time they were alleged to have been damaged. Their value would have depreciated, and the amount awarded should have been the depreciated value of the items at the time of the alleged damage: at [8].

Goh Phai Cheng JC

1 This is an appeal against the decision of the District Court which held that the defendants are liable to pay to the plaintiff the sum of $2,062 being the loss suffered by the plaintiff for the damage caused to the plaintiff's cooker, cooker hood, curtains and door mat (hereinafter referred to as “the household items”) by rats. The learned trial judge also awarded taxed costs to the plaintiff. Having heard submissions from the parties, I allowed the appeal and awarded the defendants costs here and in the court below, the same to be taxed if not agreed. The plaintiff has appealed and I now give my reasons.

2 The plaintiff is and was at all material times the subsidiary co-proprietor of the flat known as 27 Pasir Panjang Close which is also known as unit 27 in the housing development referred to as Pasir Panjang Court to which the Land Titles (Strata) Act (Cap 158) applies. The other subsidiary co-proprietor of the flat is his wife, Lily Wong. The defendants are the management corporation of Pasir Panjang Court.

3 This action was commenced on 26 January 1987 before the major amendments made to the Act by the Land Titles (Strata) (Amendment) Act 1987 came into force on 1 December 1987. Although the 1988 revised edition of Cap 158 is now the proper version of the Act, I shall, for the purposes of this appeal, refer to Cap 158 of the 1985 revised edition of the Singapore statutes because many of the provisions found in the 1988 edition were not in force at the time when the alleged breaches of duty by the defendants took place. In these grounds of decision, the references to the sections of the Act are therefore to those sections of the 1985 edition of Cap 158 (“the Act”) which were in force before the amendments effected by the 1987 legislation came into force.

The plaintiff's case

4 The plaintiff's case as pleaded in the statement of claim is as follows:

  1. 2 The plaintiff's claim is for loss and damage suffered as a result of the negligence and/or breach of statutory duty of the defendants, their servants or agents, persistently over a period of years between October 1982 to [sic] [26 January 1987] at the premises known as Pasir Panjang Court, Strata Title [Plan] No 586 at Pasir Panjang Close to which the Land Titles (Strata) Act [Cap 158] applies.

Particulars of negligence

  1. (1) Failing to keep the rubbish chutes [of Pasir Panjang Court] in repair causing rodents to breed thereat, thus causing the plaintiff's premises to be infested with rodents.

  2. (2) Failing to keep the common property of the Strata Title 586 [Pasir Panjang Court] in a good state of repair despite repeated reminders by the plaintiff thus causing the damage and wastage of Strata Title 586.

  3. (3) Failing to keep proper accounts of the funds of Management Corp Strata Title 586 thus causing the fund of the management corporation to be mismanaged.

  4. (4) Using the capital levy of $2,200 [per unit] levied pursuant to an emergency meeting held on 16 July 1983 for purposes it was not intended thus causing unnecessary damage and wastage to Strata Title 586.

  5. (5) Failing to conduct meetings of the management corporation properly.

  6. (6) Issuing minutes of meetings of the management corporation which are...

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