MCST Plan No 301 v Lee Tat Development Pte Ltd

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 10 November 2010
• Neutral Citation: [2010] SGCA 39
• Year: 2010
• Date: 10 November 2010
• Published date: 05 January 2011
• Hearing Date: 19 May 2010
• Plaintiff Counsel: Francis Xavier SC, Mohammed Reza, Looi Ming Ming, Paul Tan Beng Hwee and Jeremy Gan (Rajah & Tann LLP)
• Citation: [2010] SGCA 39
• Defendant Counsel: Tan Cheng Han SC (TSMP Law Corporation) and Ernest Balasubramaniam (Unilegal LLC)
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 148 of 2009

Chan Sek Keong CJ (delivering the judgment of the court): Introduction

This is an appeal by the appellant, the Management Corporation Strata Title Plan No 301 of Grange Heights (“the MC”), against the decision of the High Court judge (“the Judge”) in Originating Summons No 875 of 2009 (“the Present Action”) dismissing the MC’s application for a declaration that the Court of Appeal (“the CA”) has statutory and/or inherent jurisdiction to reopen and set aside an earlier decision which it made and reconstitute itself to rehear the matters dealt with in that decision (see Management Corporation Strata Title Plan No 301 v Lee Tat Development Pte Ltd [2010] 1 SLR 645 (“the First Instance Judgment”)).

The Present Action is yet another court proceeding between the MC and the respondent, Lee Tat Development Pte Ltd (“Lee Tat”), after more than 35 years of litigation between these parties and their respective predecessors in title. The parties’ dispute centres on whether the residents of and visitors to Grange Heights (collectively referred to hereafter as “the Residents”) are entitled to use a right of way over Lot 111-31 of Town Sub-Division 21 (“the Servient Land”) for access between Grange Road and the land upon which Grange Heights sits, viz, Lot 687 of Town Sub-Division 21 (“the Grange Heights site”), which is an amalgamation of Lot 111-34 of Town Sub-Division 21 (“Lot 111-34”) and Lot 561 of Town Sub-Division 21 (“Lot 561”). For ease of discussion, in this judgment, we shall continue to refer to Lot 111-34 and Lot 561 by their respective lot numbers even though they no longer exist as two separate and distinct lots.

The last decision in this marathon saga of litigation was the decision of this court (“the 2008 CA”) in Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2009] 1 SLR(R) 875 (“GH (No 8)”), where the court decided to re-examine the core dispute between the parties with regard to the said right of way over the Servient Land (“the Right of Way”) and determine the status of the easement in order to bring finality to the dispute once and for all. After a comprehensive and intensive examination of the factual matrices of and the legal issues decided in the previous proceedings, the 2008 CA concluded as follows (see GH (No 8) at sub-paras (e)–(f) of [111]): by reason of the principle established in Harris v Flower (1904) 74 LJ Ch 127 (“the Harris v Flower principle”), which entails that a right of way granted over a servient tenement for the benefit of a dominant tenement cannot be used for the benefit of a non-dominant tenement, the Residents could not use the Right of Way for access between Grange Road and Lot 561 as the grant of the Right of Way made in 1919 by the original owner of the Servient Land (“the 1919 Grant”) had covered (inter alia) Lot 111-34, but not Lot 561; and the Residents also could not use the Right of Way for access between Grange Road and Lot 111-34 (even though, as just mentioned, the 1919 Grant had extended to that lot) as the Right of Way had been extinguished by operation of law where that lot was concerned.

As events have turned out, the 2008 CA’s judgment has not in fact achieved the objective of bringing finality to the parties’ dispute over the Right of Way as the MC has once again commenced proceedings, this time, by applying in Summons No 3446 of 2009 (“SUM 3446/2009”) to set aside the 2008 CA’s judgment on the ground that it was reached in breach of natural justice. Specifically, the MC alleges that it was not heard on “the basis upon which [the 2008 CA] ultimately based its decision”.¹ The orders sought by the MC in SUM 3446/2009 are the following:² 1. The judgment in Civil Appeal No. 20 of 2007/G dated 1 December 2008 [ie, the judgment in GH (No 8)] be set aside. 2. The [CA] be reconstituted to-rehear and/or re-consider the matters arising in Civil Appeal No. 20 of 2007/G. 3. Such other orders or consequential relief that the [CA] may find necessary. The grounds of the MC’s application are set out in the affidavit of Mr Ivan Steinbock (“Mr Steinbock”), the chairman of the MC, filed on 29 June 2009 (“Mr Steinbock’s affidavit”).

Background to the Present Action

To explain how the filing of SUM 3446/2009 led to the Present Action, it is necessary for us to set out briefly the history of the litigation between the parties and their respective predecessors in title over the Right of Way (for the full background, see GH (No 8) at [2]–[67]).

The plots of land relevant to the Right of Way

The Servient Land, along with Lot 111-30 of Town Sub-Division 21, Lot 111-32 of Town Sub-Division 21 (“Lot 111-32”), Lot 111-33 of Town Sub-Division 21 (“Lot 111-33”) and Lot 111-34 (collectively, “the Dominant Lands”), originally belonged to a company called Mutual Trading Ltd (“MTL”). In 1919, when MTL was in liquidation, it sold the Dominant Lands to various parties whilst retaining ownership of the Servient Land. To provide access from the Dominant Lands to Grange Road and vice versa, MTL made the 1919 Grant conferring the benefit of the Right of Way on each of the purchasers of the Dominant Lands in the following terms:³

And together with full and free right and liberty for the Purchaser his executors administrators and assigns being the owner or owners for the time being of the land hereby conveyed or any part thereof and their tenants and servants and all other persons authorised by him or them in common with others having a similar right from time to time and at all times hereafter at his and their will and pleasure to pass and repass with or without animals and vehicles, in along and over the [Servient Land].

The MC’s predecessor in title, Hong Leong Holdings Ltd (“HLH”), became the owner of Lot 111-34 in 1970, and Collin Development Pte Ltd (“Collin”), which was subsequently renamed Lee Tat (ie, the respondent), became the owner of Lot 111-32 and Lot 111-33 in 1973. When HLH acquired Lot 111-34 in 1970, it also acquired the adjacent lot, Lot 561, which (with a land area of 9,631.6m2) was more than three times the size of Lot 111-34 (which had a land area of 3,066.1m2). Subsequently, HLH amalgamated the two lots to form the Grange Heights site in order to develop Grange Heights. Unlike Lot 111-34 (which has access to Grange Road), Lot 561 has no access to Grange Road, but it fronts two other public roads, namely, River Valley Grove (which leads to River Valley Road) and St Thomas Walk (which leads to River Valley Road as well as Killiney Road).

It would appear that when HLH bought Lot 561 to amalgamate it with Lot 111-34 for residential development, it decided that the development should have an address and a name associated with Grange Road rather than with either Killiney Road or River Valley Road. In the Present Action, the MC has candidly admitted that its principal objective in SUM 3446/2009 is to have the 2008 CA’s judgment set aside, with a view to restoring the status quo ante in respect of the Right of Way (ie, the status quo prior to the 2008 CA’s decision, with the Residents having the right to use the Right of Way for at least pedestrian traffic, if not for vehicular traffic as well, between Grange Road and the Grange Heights site). This is not so much to enable the Residents to actually use the Right of Way for pedestrian and/or vehicular traffic between Grange Road and the Grange Heights site, but, rather, to maintain the current address and/or the current name of Grange Heights. It appears that the MC’s concern is that if the Right of Way cannot in law be used for the benefit of the Grange Heights site, Grange Heights might not be able to retain its current address and/or its current name, and that would depreciate the market value of the residential units in Grange Heights by about 20%. To put this argument in its proper perspective, it is necessary to point out that when the Official Receiver put up the Servient Land for sale in late 1996, it invited both the MC and Lee Tat to tender for the land. The MC did not submit any bid, and Lee Tat eventually purchased the Servient Land from the Official Receiver on 27 January 1997 at the price of $3.02m.

The development of Grange Heights

When HLH drew up its plans to develop Grange Heights in 1970, it submitted a proposed layout plan which included a road over the Servient Land as a means of access between Grange Road and the development. That appears to have been an attempt by HLH to secure a permanent right to use the Right of Way to cross from Grange Road to Lot 111-34 and thence to Lot 561, and vice versa. The proposed layout plan was rejected by the planning authorities on the ground that HLH did not own the Servient Land. The layout plan that was eventually approved excluded the proposed road over the Servient Land from the development.

Grange Heights was completed in 1976. It comprises, inter alia, 120 residential apartments, a car park for 188 cars and a swimming pool, all situated on Lot 561, as well as two tennis courts and changing rooms, which are situated on Lot 111-34. As noted by the 2008 CA in GH (No 8) at [91], the Residents have been using St Thomas Walk for both vehicular and pedestrian traffic to and from the Grange Heights site ever since Grange Heights was completed. In contrast, during the same period, the Residents: did not use the Right of Way for vehicular traffic between Grange Road and the Grange Heights site in any meaningful way (although this is disputed by Mr Steinbock); and used the Right of Way for pedestrian traffic so infrequently that it fell into disrepair, which led the MC to commence proceedings in 2004 (via Originating Summons No 706 of 2004 (“OS 706/2004”)) for a declaration that it was entitled vis-à-vis Lee Tat to repair and/or maintain the Right of Way for pedestrian and/or vehicular use.

The first action

The first action in this long-running saga of litigation (“the First...