Management Corporation Strata Title Plan No 1786 v Huang Hsiang Shui

• Jurisdiction: Singapore
• Judge: Tan Boon Khai
• Judgment Date: 14 February 2006
• Neutral Citation: [2006] SGDC 20
• Court: District Court (Singapore)
• Year: 2006
• Published date: 07 February 2007
• Plaintiff Counsel: Melanie Ho/Jacelyn Chan (Harry Elias Partnership)
• Defendant Counsel: Christopher Anand Daniel/Tan Xeauwei (Allen & Gledhill)
• Citation: [2006] SGDC 20

14 February 2006 Judgment reserved.

District Judge Tan Boon Khai

Introduction

1 On more than one occasion in the courts of Singapore, management councils of various developments or condominium estates have commenced legal actions against their respective subsidiary proprietors for breaches under the by-laws pursuant to the Land Titles (Strata) Act (Cap 158, 1999 Revised Edition) (“the LTSA”), or under the Rules and Regulations of those individual developments or condominium estates (commonly referred to as the House Rules). Very often, the proceedings seek to compel the subsidiary proprietors of the respective developments or condominium estates to adhere to the by-laws and/or House Rules of those estates, by removing various unauthorised renovation works on their premises. The present trial before me is one such case.

2 In these proceedings, the Plaintiffs, the management corporation in charge of the management of the condominium estate known as Astrid Meadows, situated at 38 – 56, Coronation Road West, Singapore (“the Development”), claimed against the Defendant, the subsidiary proprietor of 52, Coronation Road West, #01-02, Astrid Meadows, Singapore 269265 (“the Premises”), for the removal of various unauthorised works on the Premises in contravention with the by-laws and/or House Rules of the Development, and thereafter for the reinstatement of the Premises to its original condition prior to the said works. I will elaborate in detail the unauthorised works later in this decision. Suffice to say at this moment, after considering parties’ evidence and respective arguments both in law and in fact during closing submissions, I allowed the Plaintiffs’ claim partially, and ordered that certain unauthorised works particularised by the Plaintiffs against the Defendant be removed. In that instance, I also ordered that the Premises in respect of those works be reinstated to their original condition. However, as I shall explain towards the end of this judgment, I ordered that parties bear their own costs in these proceedings. I now give written reasons for my decision.

3 Originally, as section 121 of the LTSA legislated, the Plaintiffs’ claim in these proceedings was commenced by way of Originating Summons in OS 605 of 2002/J (“the OS”), where a mandatory injunction was sought against the Defendant to remove the said unauthorised works. Consequently, pursuant to an Order of Court dated 18 October 2002, the OS was converted into a writ action. The remedy sought by the Plaintiffs against the Defendant however remained unchanged.

Application for site visit

4 Prior to the commencement of this trial proper, counsel for the Defendant applied for me as the presiding trial judge to visit the Premises and the Development pursuant to Order 35 rule 5 of the Rules of Court.

5 Briefly, Order 35 rule 5 allows a judge of any cause or matter to inspect any place or thing to which any question arises in the cause or matter. The decision to conduct such an inspection or visit of the place lays within the sole and unfettered discretion of the judge. Referring me to the case of Tito and Ors v Waddell and Ors [1975] 3 All ER 997, which held, inter alia, that an equivalent provision in England’s Rules of Court was construed to mean that the decision to inspect was a judicial discretion exercisable by the trial judge, counsel for the Defendant invited me to exercise my discretion and take the opportunity to conduct a visit to the Premises and a tour of the Development. He submitted that such a visit would be highly beneficial and relevant, as it would allow me an opportunity to have a panoramic and complete view of the Premises and the Development. Given that one of the Defendant’s main arguments in this case was that the various unauthorised works on the Premises complained of by the Plaintiffs did not affect the façade of the Development as a whole, and that the said unauthorised works made no significant difference to the general appearance of the Development (these arguments are elaborated below), counsel contended that such a visit would greatly assist me in arriving at a determination of the issues in dispute between parties.

6 Moreover, counsel pointed out that the Defendant had stated in his Affidavit of Evidence-in-Chief (“AEIC”) that other units in the Development had similar renovations akin to the unauthorised works. In that case, a visit to the Development would allow me the opportunity to view those units and compare the renovations of those units with those on the Premises.

7 Counsel for the Plaintiffs opposed the visit principally on the basis that the view of the Premises and the Development were well covered in numerous photographs annexed to the AEICs of the various witnesses at trial. Hence, the visit would serve little purpose.

8 I considered parties’ arguments, and granted the Defendant’s application. Given the issues in dispute between the parties (which I have set out in detail below), a visit to the Development would certainly aid me in determining those issues in these proceedings. In my view, a visit to the Premises and the Development would be greatly beneficial, as, depending on what I observe visually, I would be in a better position to determine the façade of the Premises and the Development and how, if at all, the unauthorised works alter that facade, or for that matter, how the Premises now compare (with the unauthorised works) to other renovated units in the Development which the Defendant claimed had similar renovations. At the same time, a visit to the Development would also greatly enhance the veracity of parties’ arguments in this case. Not only would I be able to observe visually in detail the extent of the unauthorised works of the Defendants as alleged by the Plaintiffs, I would also be able to see for myself the Defendant’s defence raised in his pleadings that the unauthorised works were but a common feature in the Development, and that other subsidiary proprietors in the Development also had similar works that the Plaintiffs had not objected to.

9 In my view, no doubt the photos contained in the AEICs of the witnesses of the Plaintiffs and the Defendant are comprehensive in setting out their respective cases, but they serve only as a flat two-dimensional view of the Premises and the Development. Ultimately, the photos do not give me any overall feel of the façade of the Development, nor do they allow me a pictorial comparison of the Premises with the Development as a whole. A visit however to the Development would be different. It would not only give me a better perspective of what the photos represent in actual fact, but would also allow me a comparison of the Premises vis-à-vis the other units in the Development. In my mind, the visit would certainly assist me considerably in the determination of the dispute between parties in this case.

10 I will set out the observations from my visit at the appropriate juncture later.

The parties in this dispute

11 Let me now give some background of the parties and the Development in this dispute before dealing with their respective claims. The Development is roughly 15 years old, having been developed sometime in the 1990s. Towards the end of the 1990s, the management council of the Development (“the council”) was constituted. By this, the council, made up of subsidiary proprietors of the Development, started managing the affairs of the Development on their own. In other words (and this was not disputed), from then onwards, the council became the main decision-making body of the Development, and became responsible for overseeing issues relating to the Development, as well as making decisions relating to the Development on behalf of all the subsidiary proprietors.

12 Subsidiary proprietors of the Development are elected to serve on the council on a voluntary basis at the Development’s Annual General Meeting (“AGM”). They then serve in their roles in the council for a period of a year or so, until the next AGM where a new council is constituted through the election of subsidiary proprietors to the council. By and large, this follows the procedure laid down in section 60 of the LTSA. It is not disputed between parties that at the Development’s AGM, significant matters relating to the Development are usually discussed, and certain decisions requiring the mandate of the subsidiary proprietors of the Development may be taken.

13 Insofar as the council’s instructions are to be carried out, or for matters involving the day-to-day running of the Development that do not usually require the council’s consideration, instructions or approval, this is administered by the Managing Agent (“MA”) of the Development. What this means is that a professional estate management company is hired to assist, or advise, the council in the management of the Development. Since the council’s inception, from what I understood from parties in the course of proceedings, there were at least two MAs hired to run and manage the Development. For what was relevant in this trial, Jones Lang LaSalle (“Jones Lang”) was the MA of the Development until sometime towards the end of February 2001, when the then council (i.e. otherwise known as the 6^th council, it being the 6^th time the council was elected by the subsidiary proprietors of the Development) hired Chan Kok Hong Property Consultants Pte Ltd (“CKHPC”) to replace Jones Lang.

14 For all intents and purposes, and all parties accepted this, the driving force behind the Plaintiffs was, and still is, the council, as the council has the ultimate say in major decisions relating to Development. The Plaintiffs are the legal entity responsible for carrying out the instructions of the council or, where appropriate, the MA. They are also the body corporate in law representing the council and the MA for matters involving the Development. In the course of this judgment, unless otherwise stated, there is no difference between the...