MCST Plan No 367 v Lee Siew Yuen

• Jurisdiction: Singapore
• Judgment Date: 12 August 2014
• Date: 12 August 2014
• Docket Number: Tribunal Appeal No 17 of 2013
• Court: High Court (Singapore)

Management Corporation Strata Title Plan No 367

Plaintiff

and

Lee Siew Yuen and another

Defendant

[2014] SGHC 161

Tan Siong Thye J

Tribunal Appeal No 17 of 2013

High Court

Land—Strata titles—Common property—Whether structural beams located in ceiling of apartment constituted ‘common property’ under s 2 (1) Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) —Section 2 (1) Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed)

Land—Strata titles—Defects—Whether defects in structural beams located in ceiling of apartment constituted ‘structural defect’ under s 30 (5) (a) Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) —Whether respondents as subsidiary proprietors caused defects in structural defects in breach of s 63 (a) (i) Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) —Sections 30 (5) (a) and 63 (a) (i) Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed)

The appellant was the management corporation of Highpoint Condominium (‘the Development’) located at 30 Mount Elizabeth, Singapore. The respondents were the subsidiary proprietors of a single level apartment within the Development (‘the Unit’). 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. The respondents referred the matter to the appellant and a dispute arose as to who was responsible for the rectification of the defects and the payment for such rectification. The appellant referred the dispute to the Strata Titles Board (‘STB’).

The STB held that the MCST was responsible for the rectification of the defects in the structural beams and the payment for such rectification as the defects in the beams amounted to a ‘structural defect’ within the meaning of s 30 (5) (a) of the Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) (‘BMSMA’). The appellant appealed against the decision of the STB and the following issues arose for determination: (a) whether the structural beams constituted ‘common property’ of the Development under s 2 (1) of the BMSMA; (b) whether the defects in the beams constituted a ‘structural defect’ under s 30 (5) (a) of the BMSMA; and (c) whether the respondents caused the defects in the structural beams in breach of s 63 (a) (i) of the BMSMA.

Held, dismissing the appeal:

(1) The definition of common property under the BMSMA was identical to the definition of common property under s 3 (1) of the Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) (‘LTSA’). This definition of common property under the LTSA was only introduced via an amendment effected by the enactment of the BMSMA, which took effect on 1 April 2005. Prior to the amendment of the definition, common property was defined under s 3 of the previous edition of the LTSA as specifically including beams and supports. The adoption of a more general and simplified definition of ‘common property’ under the BMSMA and LTSA by Parliament was not meant to exclude from the definition of common property the specific structures, such as beams and supports, listed in the previous edition of the LTSA. Rather, it was meant to avoid having to rely on an exhaustive list of structures so as to accommodate future developments in technology and architecture. Furthermore, a more generic definition was needed so as to accommodate non-strata developments, which had different features as compared to strata developments: at [19] to [23] .

(2) For a structure to constitute common property, it could not be comprised in any lot in the strata title plan and it had to be used or capable of being used or enjoyed by occupiers of two or more non-strata lots. The first condition was satisfied in this case as the structural beams, which were located in between the Unit and the unit above, were part of a supporting infrastructure that ensured the structural integrity of the building. They were shared by two units and were not comprised in the Unit. The second condition was also satisfied, as the beams were erected to support the units above. The appellant had to therefore repair the defective beams in the Unit pursuant to its obligation to repair common property under s 29 (1) (b) (i) of the BMSMA: at [27] to [34] .

(3) The beams constituted part of the structure of the Development. They were ‘key structural elements’ as defined in s 2 (1) of the Building Control Act (Chapter 29) as they were essential for the support of the building and its overall structural stability. The defects in the beams, which had significantly affected the load bearing capacities of the beams, therefore constituted a ‘structural defect’ under s 30 (5) which the appellant had to repair: at [35] to [38] .

(4) Only acts and illegal omissions could give rise to breaches of s 63 (a) (i) of the BMSMA. Section 63 (a) (i) also mandated that the subsidiary proprietor ‘shall not ... permit anything to be done’ which caused structural defects. Considered in this context, an illegal omission had to be a conscious, deliberate or wilful omission with the knowledge that such omission would result in a structural defect. There was no evidence of an illegal omission on the part of the respondents. Although the respondents did not conduct any inspection or repairs on the beams as instructed by the appellant in a circular dated 23 March 2011, it was still the obligation of the appellant to repair the defects. There was thus no breach of s 63 (a) (i) of the BMSMA on the part of the respondents and the appellant could not avoid its obligation to repair the defects in the beams: at [39] to [45] .

(5) The engineers engaged by the appellant to inspect the affected beams and the respondents' expert had both called for urgent repairs to be carried out since 2012. Even though the safety of the occupants of the Development was at stake here, the appellant had taken a nonchalant attitude towards such a serious matter. A management corporation that was concerned for the safety of the occupants of the Development should have urgently rectified the structural defects before dealing with the legal issues to ascertain who was to bear the cost of the repairs. The defects were first discovered in January 2012 and such a deteriorating condition could not be allowed to continue given the serious consequences that might follow. The appellant was therefore ordered to repair the defects immediately: at [46] to [49] .

MCST Plan No 958 v Tay Soo Seng [1992] 3 SLR (R) 818; [1993] 1 SLR 870 (refd)

Tsui Sai Cheong v MCST Plan No 1186 (Loyang Valley) [1995] 3 SLR (R) 713; [1996] 1 SLR 603 (refd)

Building Control Act (Cap 29, 1999 Rev Ed) s 2 (1) (consd)

Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) ss 2 (1) , 2 (9) , 29 (1) (b) (i) , 30 (5) , 63 (a) (consd) ;ss 30 (5) (a) , 63 (a) (i) , 98 (1)

Interpretation Act (Cap 1, 2002 Rev Ed) ss 2 (1) (consd) ;ss 9 A (2) (b) (i) , 9 A (3)

Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) s 3

Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) ss 3 (1) , 3 (2)

Josephine Choo and Emily Su (Wong Partnership LLP) for the appellant

Toh Kok Seng and Yik Shu Ying (Lee & Lee) for the respondents.

Judgment reserved.

Tan Siong Thye J

Introduction

1 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.

2 The respondents are Mdm 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.

3 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 30 C, 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

4 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.

5 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

6...