MCST Plan No 3602 v MacFadden, Declan Pearse

• Jurisdiction: Singapore
• Judge: Andre Maniam J
• Judgment Date: 22 November 2021
• Court: High Court (Singapore)
• Docket Number: Tribunal Appeal No 11 of 2021

Management Corporation Strata Title Plan No 3602

and

MacFadden, Declan Pearse

[2021] SGHC 260

Andre Maniam J

Tribunal Appeal No 11 of 2021

General Division of the High Court

Land — Strata titles — Common property — Management corporation not maintaining common property it did not know existed — Whether duty to maintain common property gave rise to strict liability — Section 29(1)(b) Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed)

Land — Strata titles — Strata Titles Board — Strata Titles Board awarding damages for breach of statutory duty to maintain common property — Whether Strata Titles Board had power to award damages — Section 101(3) Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed)

Held, allowing the appeal:

(1) Whether an STB could order damages for breach of statutory duty. Section 101(3) of the BMSMA (which conferred on an STB the power to order damages) specifically excluded “order[s] made with respect to the exercise or performance of, or the failure to exercise or perform, a power, duty or function conferred or imposed by this Act or the by-laws”. That corresponded to s 101(1)(c) of the BMSMA. An order with respect to a breach of the MCST's duty under s 29(1)(b) of the BMSMA to maintain common property was an order under s 101(1)(c) and fell within the exception to s 101(3) of the BMSMA. It followed that an STB had no power to order damages for breach of statutory duty. Section 101 of the BMSMA did not give an STB the power to award damages for breach of statutory duty. Instead, s 88 of the BMSMA gave that power to the court. Under s 88 of the BMSMA, an SP could apply to the court to recover damages from the MCST, in the event of any breaches of the provisions in Pt V of the BMSMA (which included s 29(1)(b) of the BMSMA). The court could make such order as the court thinks fit, which could include ordering the MCST to pay damages. Whether damages would be ordered, would depend on the circumstances of each case: at [11], [14] and [19].

(2) The nature of an MCST's duty to maintain common property. The duty to maintain common property did not create strict liability: it mattered whether the MCST acted reasonably or not. In relation to its duty to maintain common property, the MCST was merely the agent for the SPs, and the MCST was not an insurer. The MCST should act with reasonable care, but it should not be strictly liable. The mere fact that the leaking pipe was common property did not, without more, render the MCST liable. If the MCST had acted reasonably in the discharge of its duty to maintain common property, it had not breached its statutory duty: at [38] to [40] and [44].

(3) If a pipe that was common property leaked, the MCST would be liable for loss caused by the leakage only if: (a) it had breached its duty to maintain common property under s 29(1)(b) of the BMSMA; or (b) it was liable on some other cause of action, such as negligence: at [43].

(4) In the present case, the MCST did not know, and could not reasonably have known, of the concealed pipe. When the leak occurred, it ascertained the source of the leak, and repaired the pipe. The MSCT therefore acted reasonably and did not breach s 29(1)(b) of the BMSMA: at [42].

Case(s) referred to

Chng Wei Meng v PP [2002] 2 SLR(R) 566; [2002] 4 SLR 595 (refd)

John Campbell Law Corp v Strata Plan 1350 [2001] BCSC 1342 (folld)

Keller Piano Co (Pte) Ltd v MCST Plan No 1298 DC/S 3109/1989 (27 August 1993) (refd)

Keller Piano Co (Pte) Ltd v MCST Plan No 1298 [1994] 3 SLR(R) 965; [1995] 1 SLR 355, CA (refd)

Loh Ngai Seng v The MCST Plan No 0581 [2019] SGMC 34 (refd)

MCST Plan No 1298 v Keller Piano Co (Pte) Ltd [1994] 1 SLR(R) 615; [1994] 2 SLR 78 (refd)

MCST Plan No 586 v Menezes Ignatius Augustine [1992] 1 SLR(R) 201; [1992] 1 SLR 807 (refd)

Ridis v Strata Plan 10308 [2005] NSWCA 246 (folld)

Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 (not folld)

Strata Plan 50276, The Owners v Thoo [2013] NSWCA 270 (folld)

Facts

Water from a concealed rainwater downpipe in the Waterfall Gardens condominium leaked into the unit of the respondent subsidiary proprietor (“SP”). The pipe was common property, and it was encased in a wall. The SP brought a claim before a Strata Titles Board (“STB”) and sought damages from the management corporation (“MCST”) for water damage and consequential losses.

The STB held that it did not matter that the MCST could not have known of the existence of the pipe. If the MCST did not maintain the pipe (even if it did not know the pipe existed), it breached its duty under s 29(1)(b) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”). In essence, the position under s 29(1)(b) of the BMSMA was one of strict liability. The STB therefore found that the MCST had breached its statutory duty to maintain the pipe and keep it in good repair, and as such, held it liable to pay damages for the leak from the pipe. The MCST appealed against the STB's decision.

Legislation referred to

Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) ss 29(1)(b), 88(1), 88(2), 101(1)(c), 101(3) (consd); ss 29, 29(1)(a), 88, 101, 101(1)–101(3), 101(1)(a)

Land Titles (Strata) Act (Cap 158, 1985 Rev Ed) ss 31(1), 45(1), 45(2)

Condominium Act, RSBC 1996, c 64 (Can) ss 34(1)(d), 116(d)

Strata Schemes Management Act 1996 (NSW) ss 62, 62(1), 62(2)

Hong Heng Leong and Noh bin Abd Hamid (Just Law LLC) for the applicant;

Phone Ko Canaan and Lim Kian Leng Malcolm (Tan & Lim) for the respondent.

22 November 2021

Andre Maniam J:

Introduction

1 If a pipe that is common property leaks, is the management corporation (“MCST”) liable for loss caused by the leakage?

2 An MCST has a duty to properly maintain common property and keep it in a state of good and serviceable repair (s 29(1)(b), Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”)). But does that make an MCST strictly liable for any loss caused by the condition of common property, even if it is not at fault? Or is that duty not breached if the MCST has acted reasonably?

3 In the present case, water from a concealed rainwater downpipe in the Waterfall Gardens condominium leaked into the unit of the respondent subsidiary proprietor (“SP”). The pipe was common property, and it was encased in a wall. The SP brought a claim before a Strata Titles Board (“STB”) seeking damages from the MCST for water damage and consequential losses.

4 The pipe was concealed: it was not visible to a person on the ground looking at the building. It was also not shown in the as-built drawings. In the circumstances, the STB held that there was no inordinate delay on the part of the MCST in establishing the cause of the leak and in repairing the pipe.

5 The STB, however, held that it mattered not that the MCST could not have known of the existence of the pipe –...