Management Corporation Strata Title Plan No 367 v Lee Siew Yuen and another

• Jurisdiction: Singapore
• Judge: Tan Siong Thye J
• Judgment Date: 12 August 2014
• Neutral Citation: [2014] SGHC 161
• Court: High Court (Singapore)
• Hearing Date: 02 May 2014
• Docket Number: Tribunal Appeal No 17 of 2013
• Plaintiff Counsel: Josephine Choo and Emily Su (WongPartnership LLP)
• Defendant Counsel: Toh Kok Seng and Yik Shu Ying (Lee & Lee)
• Subject Matter: Land,Strata titles
• Published date: 15 August 2014

Tan Siong Thye J: Introduction

The appellant, Management Corporation Strata Title Plan No 367 (“the MCST”), is the management corporation of Highpoint Condominium (“the Development”) located at 30 Mount Elizabeth, Singapore. The Development is about 41 years old. It consists of 22 levels with 59 units.¹

The respondents are Madam Lee Siew Yuen and Mr Eng Chiet Shoong (“the Respondents”). They are subsidiary proprietors of unit #04-30 (“the Unit”) of the Development. The Unit is a single level apartment and is not a maisonette (ie, a unit that has two levels). The Respondents have been the subsidiary proprietors since 1993 and have tenanted the Unit from 1997 to 2012.²

Sometime in January 2012, the Respondents’ contractor discovered serious cracks in the structural beams above the ceilings of the master bedroom toilet and the kitchen of the Unit. These were referred to the MCST for its necessary action. It became apparent that a dispute arose as to who was responsible for the rectification and payment of these defects. The MCST referred this dispute to the Strata Titles Board (“STB”), seeking an order that the Respondents make good the defects of the beams inside the Unit. The STB held that the affected beams were not part of the common property of the Development as defined under s 2(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”). However, the STB found that the MCST was duty bound to rectify the said defects as the cracks in the beams in the Unit were “structural defects” within the meaning of s 30(5)(a) of the BMSMA. In coming to this decision, the STB was satisfied that the Respondents were not in breach of the duty imposed on them under s 63(a)(i) of the BMSMA. The MCST is dissatisfied with the decision of the STB. This action is an appeal by the MCST against the decision of the STB.

Appeal to the High Court on question of law

Under s 98(1) of the BMSMA there is no right of appeal against the decision of the STB except on a point of law:

98.—(1) No appeal shall lie to the High Court against an order made by a Board under this Part or the Land Titles (Strata) Act (Cap. 158) except on a point of law.

The Respondents and the MCST agree that the determination of this case involves matters that are of public interest as the outcome will have an impact on other units in the Development and other condominiums in Singapore. The decision will clarify the rights and obligations of management corporations and subsidiary proprietors in Singapore pertaining to the rectification of defective beams.

The facts Visual inspection of the Development

The MCST and the Respondents are largely in agreement as to the facts of the case. Sometime in December 2010, the MCST engaged WTS Consulting Engineers (“WTS”) to conduct a ten-yearly visual inspection as required under the Building Control Act (Cap 29, 1999 Rev Ed). The subject matters of the inspection were the common property and randomly selected units within the Development. The outcome of the inspection, as provided for in a structural report generated by WTS after the inspection, is as follows:³

CONCLUSION OF INSPECTION In conclusion, the structural condition of the buildings inspected was in relatively good condition with no major signs of defects or deterioration detected during the inspection.

However concrete ceiling spalling at the apartment toilets were noted some localized and some of them wide spread that require minor structural repair to prevent further deterioration of the ceiling slab.

No signs of major damages, distress, deformations were noticed during the course of the building inspection. The overall structural integrity and stability of the building was in order.

In response to WTS’ structural report, the MCST sent a circular to all subsidiary proprietors of the Development requesting that they check the ceilings of their respective units for spalling concrete and to rectify the defects in their units, if any.⁴ The Respondents allege that they did not receive this circular.⁵

Discovery of cracks in the beams of the Unit

About a year later, sometime in January 2012, the Respondents complained to the MCST that there were cracks in the concrete beams in the Unit. The MCST then engaged WTS to inspect the Unit and the unit below. The inspection was conducted on 9 February 2012. WTS then produced a report the following day, which stated:⁶

The reinforcement steel bars including links and bottom bars of the RC beams below the bathtub/shower closet were found seriously rusty causing spalling and detaching of concrete covers of the beams. The bottom steel bars of the floor slabs were also found rusty in most areas causing detachment of concrete covers of the slabs. Such defects had significantly reduced the load bearing capacities of the floor structures and adversely affected the safety of the occupants. Apparently the corrosion of the steel bars was a result of failure or lack of waterproofing to the bathroom floors.

An earlier description of the above defects and the need for repair was presented in our periodic building report dated 6 January 2011 and reiterated in BCA's subsequent letter accepting our report. Apparently, the defects have since deteriorated further to a state that requires repair to be taken urgently.

On 19 March 2012, the MCST sent an email with an attached letter to the Respondents that it would rectify the affected beam in the master bedroom.⁷ However, the MCST did nothing as it was unsure as to whether the rectification of the beams was something which fell within its obligations under the BMSMA.

The MCST then proceeded to inquire with the Building and Construction Authority (“BCA”) and the Singapore Land Authority (“SLA”) as to who was responsible for the rectification of the defects in the affected beams. On 23 March 2012, the MCST sent an email to the SLA asking whether “structural columns and beams inside the apartment are the MCST’s responsibility to maintain it, considering the building is over 30 years old”.⁸ The SLA replied on 5 April 2012 which states:

We have received BCA’s input on your query, and wish to inform that the MCST has a responsibility to maintain the beams and columns of the building in good and serviceable state.⁹

The MCST refers the dispute to the STB

Notwithstanding the SLA’s decision that the MCST is obliged to rectify the defects in the affected beams, the MCST referred the same issue to the STB for determination on 27 April 2012.¹⁰ The case was heard by the STB on 27 May 2013, 7 June 2013 and 4 July 2013.¹¹ The STB released its grounds of decision at the last hearing on 4 July 2013.¹²

In its grounds of decision, the STB found that the affected beams were not part of the “common property” of the Development as they were within the Unit.¹³ However, the STB found that the defects in the beams were structural defects under s 30(5)(a) of the BMSMA.¹⁴ The STB also found no evidence to suggest that the Respondents were in breach of their duty under s 63(a)(i) of the BMSMA.¹⁵ The STB therefore ordered the MCST to rectify the defective beams in the Unit. The MCST is dissatisfied with the decision of the STB and subsequently brought this appeal against it. The MCST is of the opinion that the defects in the affected beams are not structural defects which it is required to rectify under s 30(5) of the BMSMA. The Respondents are also dissatisfied with the decision to the extent that the STB found that the affected beams did not constitute common property under the BMSMA.

The appeal

It is clear from s 98(1) of the BMSMA that there is no appeal against the decision of the STB except on a point of law. Before I proceed to identify the points of the law that this court is asked to deal with, I would like to make some general observations. The MCST, in the course of the proceedings, has failed to appreciate the narrow purpose of this appeal. The MCST has criticised almost every aspect of the STB’s deliberations, including its findings of fact. It also alleged that the STB had misconducted the proceedings, regardless of whether or not it relates to a point of law. This is an abuse of the appeal process. Nonetheless, there remain certain points of law that I must deal with.

In my view, the points of law that this court is asked to decide are as follows: Are the defective beams part of the “common property” of the Development under the BMSMA which the MCST must repair? Are the defective beams “structural defects” under s 30(5) of the BMSMA which the MCST must repair?

Are the defective beams part of the “common property” of the Development under the BMSMA which the MCST must repair?

Under s 29(1)(b)(i) of the BMSMA, the MCST is required to maintain the common property of the Development:

Duties and powers of management corporation in respect of property 29.—(1) Except as otherwise provided in subsection (3), it shall be the duty of a 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 …

If the defective beams are part of the common property, then the MCST is required to rectify the defects found in the beams pursuant to s 29(1)(b)(i) of the BMSMA. The MCST submitted that the defective beams are within the Unit and thus are not part of the common property as defined under the BMSMA. The Respondents, on the other hand, argued that the affected beams fall within the definition of common property under the BMSMA. The STB ruled that the defective beams were not part of the common property of the Development.

The meaning of “common property” under the BMSMA

Section 2(1) of the BMSMA defines common property as follows: 2.—(1) In this Act, unless the context otherwise requires —

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"common property", subject to...