MCST Plan No 3556 v Orion-One Development Pte Ltd
Jurisdiction | Singapore |
Judge | Vinodh Coomaraswamy J |
Judgment Date | 27 March 2019 |
Neutral Citation | [2019] SGHC 70 |
Published date | 21 November 2019 |
Date | 27 March 2019 |
Year | 2019 |
Hearing Date | 19 October 2016,21 October 2016,17 October 2016,22 May 2017,31 July 2017,24 October 2016,30 March 2017,20 October 2016,06 March 2018,27 March 2017,29 March 2017,18 October 2016,23 May 2017,28 March 2017,29 March 2018 |
Plaintiff Counsel | Edmond Pereira, Goh Chui Ling and Lim Chee San (instructed) (Edmond Pereira Law Corporation) |
Citation | [2019] SGHC 70 |
Defendant Counsel | Josephine Choo, Wilbur Lim, Jeffrey Koh and Valerie Quay (WongPartnership LLP),Christopher Chuah, Lydia Yahaya and Alyssa Tan (WongPartnership LLP) |
Court | High Court (Singapore) |
Docket Number | Suit No 652 of 2014 |
This dispute concerns a development known as Northstar @ AMK (the “Building”).1 The management corporation of the Building brings this action against both the developer of the Building and the main contractor in respect of a number of alleged defects. The claim against the developer is brought on behalf of the subsidiary proprietors of strata title lots in the Building2 and alleges various breaches by the developer of the sale and purchase agreements (“SPAs”) between the developer and the subsidiary proprietors. The claim against the main contractor is a claim in tort which the management corporation brings in its own capacity. The management corporation also pursues a claim in contract against the main contractor based on alleged breaches of various warranties given by the main contractor to the developer and later assigned to the management corporation.
The background The Building and its constructionThe Building is a nine-storey commercial building.3 It comprises a total of 654 light industrial units and offices.
Management Corporation Strata Title Plan No. 3556 (the “MCST”) is the management corporation of the Building and the plaintiff in this action.4
Orion-One Development Pte Ltd (“Orion-One”) is the developer of the Building and is the first defendant in this action. It has been in members’ voluntary liquidation since May 2014.5
Sanchoon Builders Pte Ltd (“Sanchoon”) was Orion-One’s main contractor in the construction of the Building6 and is the second defendant in this action. Sanchoon in turn engaged various sub-contractors.7
Sanchoon and its sub-contractors jointly provided several warranties to Orion-One (the “Warranties”). The Warranties covered various aspects of the Building, such as its cladding, waterproofing and roof.8 Orion-One purports to have assigned the Warranties to the MCST by a deed of assignment dated 22 November 2013 (the “Deed”).9 As I explain later (see [87]–[89] below), the effect of the Deed is disputed.
The Temporary Occupation Permit for the Building was issued in July 2009. The Certificate of Statutory Completion was issued in December 2009.10 Orion-One handed over management of the Building to the MCST in November 2010.11
Discovery of the defectsIn or around February 2012, the chairman of the MCST, Mr David Ong, began to notice defects in the Building. These defects included cracks in the walls, water seepage, and water ponding.12 Mr David Ong instructed the MCST’s managing agent to compile a list of defects.13 This list of defects was then sent to Orion-One.14 A joint inspection of the Building was conducted in October 2012.15
Following the joint inspection, Sanchoon carried out works to rectify the defects.16 The MCST and certain subsidiary proprietors remained dissatisfied even after the rectification. The MCST passed a special resolution in January 2014 authorising litigation against Orion-One.17 The MCST commenced this action in June 2014.
Issues to be determined The issues to be decided in this action are:
The MCST’s claim against Orion-One is a contractual claim founded on the SPAs between Orion-One and those subsidiary proprietors of the Building who are participating in this action.18 The MCST represents these subsidiary proprietors in a claim against Orion-One as permitted under s 85(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (the “BMSMA”).
The effect of s 85(1) is purely procedural. It does not confer upon a management corporation any cause of action in its own right. All that s 85(1) does is to facilitate an action by a large number of subsidiary proprietors in a development by allowing the management corporation to sue on their behalf, thereby avoiding having to name all of the participating subsidiary proprietors as parties to the action. The substantive parties to an action brought by a management corporation in reliance on s 85(1) remain at all times the individual subsidiary proprietors who have authorised the management corporation to act on their behalf. A management corporation which relies on s 85(1) is therefore required to identify the specific subsidiary proprietors whom it claims to represent in the action by naming them individually in an annex to its statement of claim:
The MCST has duly identified the specific subsidiary proprietors whom it claims to represent in this action in an annex to its statement of claim. I shall refer to that group of subsidiary proprietors as the “participating subsidiary proprietors”. The MCST has attempted to prove its authority to represent the participating subsidiary proprietors by adducing letters of authorisation (“LOAs”) signed by each of them. The MCST closed its case at trial without calling any of the participating subsidiary proprietors, other than Mr David Ong, to give evidence.
Orion-One took the following objections to the LOAs:
Orion-One also took issue with the standing of certain participating subsidiary proprietors to bring an action in contract against Orion-One for the following reasons:25
As I have mentioned, the MCST included the LOAs in the agreed bundle, but closed its case at trial without calling any of the subsidiary proprietors who executed the LOAs to prove the LOAs and give evidence. Orion-One consistently took the point, both before and after the MCST closed its case at trial, that the LOAs were inadmissible hearsay.26 In response, the MCST applied in the course of the closing submissions:27 (i) for permission to reopen its case and to file affidavits of evidence in chief from the participating subsidiary proprietors exhibiting their respective LOAs; and (ii) to dispense with cross-examination of the participating subsidiary proprietors.
At the hearing of the MCST’s application, I accepted Orion-One’s argument that the LOAs were inadmissible hearsay. I nevertheless granted the MCST leave to reopen its case and to file affidavits of evidence from the participating subsidiary proprietors exhibiting their respective LOAs.28 I now set out the reasons for my decision.
In the discussion which follows, I leave aside the LOAs executed by Mr David Ong. He filed an affidavit of evidence in chief and testified at trial, before the MCST closed its case. He therefore gave direct evidence of the contents of his LOAs within the meaning of s 62(1) of the EA. His LOAs are not inadmissible hearsay.
The LOAs were indeed hearsay
In response to Orion-One’s hearsay objection, the MCST argued that the LOAs were not hearsay because:
I did not accept any of the MCST’s arguments on this point.
First, it is true that evidence which is adduced to prove that an out-of-court statement was made (and not to prove the truth of the contents of that statement) is not within the hearsay rule:
Second, the LOAs did not fall under s 32(1)(
To continue reading
Request your trial-
Esben Finance Ltd v Wong Hou-Lianq Neil
...on behalf of itself and all subsidiary proprietors of Northstar @ AMK) v Orion-One Development Pte Ltd (in liquidation) and another [2020] 3 SLR 373, Bumi ([80(a)] supra) and Re K & R Fabrications (QLD) Pty Ltd (in liq) (1980) 32 ALR 183) are distinguishable and of no assistance; and there ......
-
Orion-One Development Pte Ltd (in liquidation) v Management Corporation Strata Title Plan No 3556 (suing on behalf of itself and all subsidiary proprietors of Northstar @ AMK) and another appeal
...on behalf of itself and all subsidiary proprietors of Northstar @ AMK) v Orion-One Development Pte Ltd (in liquidation) and another [2019] SGHC 70 (“the Judgment”). The parties’ In its appeal, Orion-One submits: The Judge ought not to have allowed the MCST to reopen its case after concludin......
-
The Management Corporation Strata Title Plan No 4110 v Chan Alan
...LPS was common property was also in line with prevailing case law authorities. In MCST 3556 v Orion-One Development Pte Ltd and another [2020] 3 SLR 373, the High Court regarded lightning conductor strips as falling within the definition of “common property” and found that these strips were......