Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd

• Judge: Choo Han Teck J
• Judgment Date: 20 October 2009
• Neutral Citation: [2009] SGHC 234
• Published date: 23 October 2009
• Plaintiff Counsel: Sundaresh Menon SC, Edwin Lee Peng Khoon and Looi Ming Ming (Rajah & Tann LLP)
• Year: 2009
• Citation: [2009] SGHC 234
• Subject Matter: Civil Procedure
• Defendant Counsel: Tan Cheng Han SC and Ernest Balasubramaniam (Arfat Selvam Alliance LLC)
• Court: High Court (Singapore)

20 October 2009 Judgment reserved.

Choo Han Teck J:

1 The plaintiff and the defendant have waged a 30-years war over a small strip of land known as Lot 111-31 (“the servient tenement”) over which the plaintiff’s predecessor in title (Hong Leong Holdings Ltd) as well as the defendant’s predecessor in title (Collin Development Pte Ltd) had a common right of way. The plaintiff is the management corporation of the property known as Grange Heights which was built on the land now consolidated as Lot 687 but previously registered separately as Lots 111-30 and 111-34. The right of way was recognised by the court in the first action more than 30 years ago when Collin Development Pte Ltd sued Hong Leong Holdings Ltd to restrain it from using the easement during the construction of Grange Heights. The judgments by FA Chua J at first instance, and on appeal, by Wee Chong Jin CJ, Kulasekaram, and Choor Singh JJ were reported in [1975-1977] SLR 457 and [1975-1977] SLR 202 respectively. In the second action [1990] SLR 1193 the plaintiff (by this time the construction of Grange Heights had been completed) obtained an order for a permanent injunction against the defendant. The order was part of the judgment handed down by Coomaraswamy J where he held:

Plainly, the plaintiffs’ right of way is derived from or based on the right of way given to them as owners of lot 111-34. The number 111-34 is no longer the lot number for that parcel of land; that number has been extinguished and the parcel of land has become and is a part of a larger parcel of land known as lot 687. However, the land is still there and the right of way which runs with the land remains intact. The amalgamation of lots 111-34 and 561 into one lot known as lot 687 is only for the purposes of survey and issue of documents of title. It does not destroy or extinguish the right of way which runs with the land and enure to the benefit of the owners for the time being of the land. Accordingly, in my judgment, the plaintiffs as owners of the land, formerly known as lot 111-34 but now a part of lot 687, still have the right of way over the servient tenement, and the defendants in erecting the gate and the fence have interfered with the plaintiffs’ right of way. [p1195]

The defendant’s appeal was dismissed by Yong Pung How CJ, LP Thean and Goh Joon Seng JJ forming the coram in the Court of Appeal whose judgment was reported in [1992] 2 SLR 865. 1n 1997, however, the defendant acquired the servient tenement, and in 2004, the parties were back in court. This time, counsel for the defendant, Mr Tan Cheng Han SC argued that “as the right of way was originally granted to lot 111-34, the right of way did not extend to lot 561”. This argument was rejected by Woo Bih Li J (“Woo J”), after considering, in his usual meticulous way, the history of the previous litigation, the issues in those actions as well as what the courts there held. Woo J noted that one of the defendant’s directors had been fined for contempt of court for failing to comply with the injunction order in Coomaraswamy J’s judgment. Woo J further noted that the same director, Mdm Ching Mun Fong, had given “an undertaking to the court that [the defendant] would strictly and unconditionally abide by the said order and would not make or publish any statement to the effect that the residents of Grange Heights have no right of way over the servient tenement” (reported in [2004] 4 SLR 828, at 839 at [47]). The defendant appealed against Woo J’s decision and in 2005 the Court of Appeal dismissed the appeal by a majority consisting of Yong Pung How CJ and Belinda Ang Saw Ean J (Chao Hick Tin JA dissenting). I shall refer to this judgment, reported in [2005] 3 SLR 157, as the “2005 judgment” and the court as the “2005 court” for convenience. Before the 2005 court Mr Tan Cheng Han SC argued that the rule in Harris v Flower and Sons (1904) 91 LT 816 still prevailed thus, the previous courts were wrong to allow an extension of the dominant tenement beyond the original grant, and after lot 111-34 had merged with lot 561. Ang J delivering the majority decision held at [25] that:

The real point is that for the purposes of this appeal, the correctness of the judgments relied on for issue estoppel is completely irrelevant: see Spencer Bower, Turner and Handley on The Doctrine of Res Judicata (Butterworths, 3rd Ed, 1996) at para 15. Moreover it was not argued and indeed no “special circumstances exception” exists, in the present appeal such as to prevent the operation of issue estoppel: see Arnold v National Westminster Bank Plc [14] supra at 109 per Lord Keith of Kinkel (at p167)

Chao JA was of the view that there was no issue estoppel concerning the previous action before Coomaraswamy J. It is not necessary to refer to Chao JA’s reasons here because the relevant point was that the decision of Woo J was upheld by the majority — a point that becomes clearer when the narrative of the history leading to the present application is complete. The plaintiff and defendant were back before Woo J in 2007. It seemed that the defendant had let the servient tenement lapse into disrepair after having acquired the land. The plaintiff thus applied to Woo J for an order granting leave for it to repair the servient tenement at its own expense. The application succeeded and in the last paragraph of his judgment reported in [2007] 2 SLR 554, 567 at [50] Woo J rejected Mdm Ching Mun Fong’s assertion that had the defendant known that a road could have been built on the servient tenement it would not have purchased it:

I found this to be an unmeritorious assertion. Lee Tat was aware of the various court decisions in the First Action/1974 [Chua J’s judgment] and the Second Action/1989 [Coomaraswamy J’s judgment] before it purchased lot 111-31 on 17 January 1997.

The defendant appealed once again to the Court of Appeal, this time to reverse Woo J’s decision granting the plaintiff the right to repair the servient tenement. An unanimous decision of Chan Sek Keong CJ, Andrew Phang Boon Leong, and V K Rajah JJA allowed the defendant’s appeal and further held that the residents of Grange Heights would no longer have the right of way to gain access to and egress from lot 561 and vice versa. The judgment of Chan CJ was handed down on 1 December 2008 on behalf of the Court of Appeal was reported in [2009] 1 SLR 875). I shall refer to the judgment of this court as “the 2008 judgment” and the court as the “2008 court” for convenience.

2 The present application before me began with the plaintiff’s application in Summons No 3446 of 2009 dated 29 June 2009 to the Court of Appeal praying for an order to reconstitute the Court of Appeal to set aside the 2008 judgment. The plaintiff’s unusual application was based on the argument that the 2008 court was wrong to overturn the ruling that the residents of Grange Heights did not have the right of way over the servient tenement. The plaintiff was, however, directed by the Registrar of the Supreme Court to file an application to the High Court first to determine the preliminary question of whether the Court of Appeal can be reconstituted to hear an application to set aside its own judgment. The plaintiff duly filed Originating Summons No 875 of 2009 on 3 August 2009, which was the summons before me. In this summons, the plaintiff sought a “declaration that pursuant to s 29A of the Supreme Court of Judicature Act (Cap 322)...