Management Corporation Strata Title Plan No 4123 v Pa Guo An

• Jurisdiction: Singapore
• Judge: Andre Maniam JC
• Judgment Date: 06 October 2020
• Neutral Citation: [2020] SGHC 213
• Court: High Court (Singapore)
• Docket Number: District Court Originating Summons No 173 of 2019 (Registrar’s Appeal No 8 of 2020) and Summons No 2529 of 2020
• Year: 2020
• Published date: 08 October 2020
• Hearing Date: 16 June 2020,04 September 2020
• Plaintiff Counsel: Leo Cheng Suan and Denise Tay (Infinitus Law Corporation)
• Defendant Counsel: The defendant in person.
• Subject Matter: Land,Strata titles,Condominium,Management corporation
• Citation: [2020] SGHC 213

Andre Maniam JC: Introduction

The management corporation strata title (“MCST”) of a development sued a subsidiary proprietor (“SP”) over improvements to the SP’s unit/lot. There have been several such cases, involving different MCSTs and SPs.

The improvement was a new sliding glass door (the “Glass Door”) enclosing part of a patio area. I found that the Glass Door affected the appearance of the development within s 37(3) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (the “BMSMA”). I thus ordered the SP to seek the MCST’s authorisation as required under s 37(3) of the BMSMA, at an upcoming meeting with the MCST on 18 September 2020; if the SP failed to obtain authorisation, he was to remove the Glass Door.

The SP purchased his unit (the “Unit”) in the Eight Courtyards condominium (the “Development”) in or around 2018–2019; a search on the Unit shows that he was registered as its owner on 17 May 2019, and the “last contract date” is stated as 23 October 2018.¹

The Unit was on the ground floor, with a patio area that had been approved as a private enclosed space (“PES”) by the Urban Redevelopment Authority (“URA”).

The Unit came with an original sliding glass door at the boundary between the indoor area and the PES. The PES extended some 3.1m away from the indoor area: the first 1.2m of this was covered by the upstairs balcony, and the remaining 1.9m was uncovered.

The SP decided to extend the indoor area, by installing the Glass Door at the boundary between the covered and uncovered parts of the PES, ie, below where the upstairs balcony ended. He thus enclosed part of the PES that was already covered in the first place, but not what was uncovered by the upstairs balcony. The Glass Door was of the same design as the original glass door, but 1.2m further out. The following floor plan illustrates the PES before and after the installation of the Glass Door:

Procedural history

The MCST took issue with the installation of the Glass Door, on the following grounds: the SP had not sought and obtained the MCST’s prior approval (contrary to some “House Rules”); the installation of the Glass Door affected the appearance of the building, per s 37(3) of the BMSMA; and the MCST had not authorised this under s 37(4) of the BMSMA; the installation of the Glass Door increased or was likely to increase the floor area of the land and building comprised in the strata title plan, ie, the Development, per s 37(1) of the BMSMA; and this had not been authorised by a 90% resolution of the MCST under s 37(2) of the BMSMA; and the SP had installed the Glass Door without having obtained planning permission from the URA.

The MCST’s case evolved over time, and I have listed the above grounds in the same sequence as they were progressively advanced. At the outset, the focus was on the “House Rules” and the appearance of the Development; the SP was even informed by the MCST’s managing agent that the issue was not about an increase in floor area.² By the time the merits were heard at first instance, however, the increase in floor area had been put into issue (see [2] of The Management Corporation Strata Title Plan No 4123 v Pa Guo An [2020] SGDC 82 – the grounds of decision (“GD”) of the learned District Judge (“DJ”)). Finally, the issue of planning permission from the URA was only raised on appeal, in conjunction with an application for leave to adduce further evidence in the form of correspondence with the URA (see [2]–[4] of the GD for the issues that were raised at first instance).

The MCST and the SP had corresponded in July and August 2019, and a demand letter was issued by the MCST’s solicitors on 13 August 2019. On 15 October 2019, the MCST filed this Originating Summons (“OS”) seeking a mandatory injunction to compel the SP to remove the Glass Door. The MCST also sought damages and/or an indemnity against any claims whatsoever by any authority, development charges and/or losses owing to the installation of the Glass Door; and costs. The OS was dismissed at first instance, and the matter came before me on appeal.

Application to adduce further evidence

At the first hearing before me, the MCST sought an adjournment to file an application for leave to adduce further evidence. The SP objected but I allowed the adjournment, albeit with costs against the MCST.

The MCST proceeded to file an application for leave to adduce, as additional evidence, the MCST’s solicitors’ correspondence with the URA after the first instance decision had been rendered. That correspondence was exhibited to the supporting affidavit filed by a director of the MCST’s managing agent.³

In that affidavit, the MCST reiterated that the installation of the Glass Door had affected the external facade of the Development, and had increased or was likely to increase the Gross Floor Area (“GFA”) of the Development.

The correspondence with the URA started with the MCST’s solicitors’ letter of 2 April 2020. That was the day the DJ’s GD was issued, following his decision, with oral grounds, on 6 March 2020. It is unfortunate that the URA was not informed that a court decision on the matter had been rendered nearly a month prior. Instead, the MCST’s solicitors simply repeated the MCST’s unsuccessful allegations that the installation of the Glass Door had been done in breach of the “House Rules”, and that the installation also contravened the BMSMA because: it increased or was likely to increase the GFA of the Development, in contravention of s 37(1) of the BMSMA; and it affected the appearance of the Development, under s 37(3) of the BMSMA.

The MCST’s solicitors further asserted that the installation ran counter to the design and purpose of a PES, and that it was not in accordance with the guidelines in the Circular URA/PB/2018/07-DCG dated 17 October 2018 (the “2018/2019 Circular”). The URA was requested to confirm the matters asserted by the MCST’s solicitors.

After a holding response from the URA on 20 April 2020, the MCST’s solicitors replied the same day to convey that the MCST had not authorised the renovation but the SP had ignored the MCST and proceeded without obtaining consent as required under s 37 of the BMSMA. They also stated that the installation would increase the covered built-up area, which would thereby impact GFA/planning permission. They asked if the SP had applied to the URA for permission.

The URA replied substantively on 26 May 2020 to say:

…

Based on our records, the subject unit has a private enclosed space (PES) located next to the living room. As stated in the guidelines, PES is approved as a semi-outdoor space and not allowed to be enclosed. The enclosure of the PES at the subject unit with sliding glass doors is not approved. Consent from the MCST via a 90% resolution is required for enclosure of PES. The MCST may follow up with the appropriate actions under the BMSMA to deal with the owner’s request. We will not accept a planning application without the MCST’s consent.

[emphasis added]

The SP resisted the MCST’s application to adduce further evidence. He argued that the additional evidence was not relevant, it was readily available to the MCST earlier, it was not apparently credible, and it would cause him great prejudice if admitted. He pointed out that the URA’s response was at odds with what the court had decided at first instance; but the URA was not told about the court’s decision, and instead the MCST’s solicitors simply repeated their unsuccessful contentions as if there had been no court decision against the MCST.

There was force in the SP’s contentions, but I decided to allow the MCST to adduce the correspondence with the URA as further evidence.

In a case like the present, Woo Bih Li J had held in ACU v ACR [2011] 1 SLR 1235 that the court had a discretion to admit fresh evidence on appeal, and in so doing was entitled though not obliged to take reference from the principles in Ladd v Marshall [1954] 1 WLR 1489. This is in line with the Court of Appeal’s guidance in Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341 at [56]–[58]. I adopted the same approach, particularly as the proceedings before the DJ did not bear the characteristics of a full trial.

I agreed with the SP that the further evidence could and should have been obtained earlier, in time for the first instance decision. However, the correspondence was with the URA (the planning authority) about the SP’s Unit. That pointed to it being credible and relevant, although there were issues of hearsay, as well as whether the URA’s views were ultimately correct, as I will elaborate below.

Issues and findings

I address the following issues, in sequence: Had the Glass Door affected the appearance of the Development under s 37(3) of the BMSMA? Had the Glass Door increased the floor area of the Development under s 37(1) of the BMSMA? Were the “House Rules” by-laws, and what is the effect of the SP breaching them? Could the MCST sue the SP for failing to obtain planning permission for the installation of the Glass Door?

Had the Glass Door affected the appearance of the Development under s 37(3) of the BMSMA?

In the present case, if the installation of the Glass Door “affects the appearance” of the Development under s 37(3) of the BMSMA, the MCST’s authorisation was required.

Sections 37(3) and 37(4) of the BMSMA provide as follows: (3) Except pursuant to an authority granted under subsection (4) by the management corporation or permitted under section 37A, no subsidiary proprietor of a lot that is comprised in a strata title plan shall effect any other improvement in or upon his lot for his benefit which affects the appearance of any building comprised in the strata title plan. (4) A management corporation may, at the request of a subsidiary proprietor of any lot comprised in its strata title plan and upon...