Mir Hassan bin Abdul Rahman and Another v Attorney-General

• Judge: Tan Lee Meng J
• Judgment Date: 05 September 2008
• Neutral Citation: [2008] SGHC 147
• Citation: [2008] SGHC 147
• Defendant Counsel: Soh Tze Bian (Attorney-General's Chambers),Ng Poh Wah in person,Shaikh Mahfutz bin Ahmad Mattar in person,N Sreenivasan, Valerie Ang (Messrs Straits Law Practice LLC), Siva Krishnasamy (Messrs Tan Lee & Partners)
• Published date: 05 September 2008
• Plaintiff Counsel: Michael Hwang SC, Fong Lee Cheng (Michael Hwang), Phang Sin Kat, Susan Wong (Messrs Phang & Co)
• Date: 05 September 2008
• Docket Number: Originating Summons No 941 of 2008 (Summons No 3135 of 2008)
• Court: High Court (Singapore)
• Subject Matter: Strata titles,Collective sales,Duty of Strata Title Board to act expeditiously,Section 92(9) Building Maintenance and Strata Management Act 2004 (Act 47 of 2004),Regulation 20 Building Maintenance and Strata Management (Strata Titles Boards) Regulations 2005 (S 195/2005),Discretion of Strata Title Board to fix hearing dates,Judicial review,Administrative Law,Whether Strata Title Board had to make final order or determination within six months from date constituted,Whether Strata Title Board and its Registrar had exercised discretion illegally and/or irrationally in Wednesbury sense by fixing hearing on date beyond its mandate and was exercise in futility,Strata Title Board fixing hearing on date after its mandate expired and after contractual deadline for obtaining Board's approval for collective sale in sale and purchase agreement,Land

5 September 2008

Tan Lee Meng J:

1 The applicants, the authorized representatives of the sale committee of Tampines Court, applied for judicial review of the decision of the Strata Title Board (“STB”) to resume the hearing of their application (“STB No 2 of 2008”) for approval of the en bloc sale of Tampines Court on 7 August 2008. I quashed the STB’s decision and ordered the STB to resume the said hearing on Monday, 21 July 2008. The reasons for my decision are stated below.

Background

2 Tampines Court is a privatized HUDC estate comprising 560 housing units. The residents appointed a sale committee for the purpose of a collective sale agreement dated 5 May 2006. According to the sale committee, subsidiary proprietors holding 82.14% of the share values of Tampines Court had signed the collective sale agreement and committed themselves to the en bloc sale.

3 On 25 March 2007, the sale committee and Orchard Mall Pte Ltd (“the purchaser”) concluded a sale and purchase agreement (“the S & PA”) for the collective sale and purchase of Tampines Court for the sum of $395 million plus a sum of $10 million to cater for subsidiary proprietors whose share of the sale proceeds from the en bloc sale is insufficient to pay off the encumbrances on their properties. Under the S & PA, the STB’s approval of the en bloc sale must be obtained by 25 July 2008 “unless the parties hereto mutually agree in writing to extend the time for the obtaining of the STB order.”

4 The sale committee could have applied for the STB’s approval of the en bloc sale much earlier but it wanted to do so only after the decision of the STB in the Gillman Heights case, which also involved the en bloc sale of a privatized HUDC estate. According to the sale committee, two important issues in the Gillman Heights case, which was heard by the STB in the latter half of 2007, were relevant to its application to the STB for approval of the en bloc sale. The first issue concerned the application of s 84A of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) ) (“LTSA”) to a privatized HUDC estate. The second issue concerned the minimum percentage of share values required to approve the en bloc sale of a privatized HUDC estate before it can be sold. The STB delivered its decision in the Gillman Heights case on 21 December 2007 and on 7 January 2008, the sale committee applied for the STB’s approval of the en bloc sale of Tampines Court.

5 On 1 February 2008, the STB was constituted to hear STB No 2 of 2008. The parties were invited to resolve their differences through mediation. However, the first mediation hearing on 29 February 2008, the second mediation hearing on 10 April 2008 and the third mediation hearing on 10 June 2008 did not result in an agreement between those who wanted to sell their housing units and those who did not.

6 Following the failure of the mediation efforts, the hearing of STB No 2 of 2008 was fixed for 16 to 18 June 2008. The hearing was not completed by 18 June 2008. According to the sale committee, only one of its witnesses had not been cross-examined and he had filed a very short affidavit. The STB decided that the hearing would resume on 7 August 2008.

7 At this juncture, two points must be noted. First, the STB is required by s 92(9) of the Building Maintenance and Strata Management Act 2004 (Act No 47 of 2004) (“the Act”) to make a final order or determination with respect to the application for the en bloc sale by 1 August 2008 unless that date has been extended by the Minister. Secondly, as the contractual deadline in the S & PA for the obtaining of the STB’s approval of the en bloc sale is 25 July 2008, a hearing on 7 August 2008 would be academic unless the purchaser agreed to extend the deadline.

8 The Deputy President of the STB asked the applicants’ solicitors, Phang & Co, to seek an extension of the deadline from the purchaser. He also gave instructions that the Minister’s consent be sought for an extension of the 1 August 2008 deadline for the STB to make known its decision on STB No 2 of 2008. To date, no ministerial approval for the extension desired by the STB has been obtained.

9 On 26 June 2008, Phang & Co wrote to the purchaser to extend the deadline on 25 July 2008 for obtaining the STB’s approval for the en bloc sale. On 27 June 2008, the purchaser replied that it was not minded to extend the said deadline.

10 In view of the purchaser’s stand, the applicants applied on 30 June 2008 for the hearing date to be brought forward. On 11 July 2008, the STB’s Registrar dismissed the sale committee’s application.

11 On 14 July 2008, the applicants filed an Originating Summons for leave to apply for judicial review. Leave was granted on 16 July 2008.

The hearing of the application for judicial review

12 As the STB and its Registrar have a discretion to fix hearing dates, the issue before the court was whether the STB and its Registrar had exercised their discretion illegally and/or irrationally in the Wednesbury sense when deciding that the hearing of STB No 2 of 2008 would resume on 7 August 2008.

13 The applicants contended that the STB’s decision to resume the hearing of their application for approval of the en boc sale of Tampines Court on 7 August 2008 should be quashed for two reasons. First, the decision is illegal because the STB is required by law to complete the hearing of the application for approval of the en bloc sale by 1 August 2008. Secondly, bearing in mind that the STB had around six months to consider the application and the deadline for obtaining the STB’s approval of the en bloc sale is 25 July 2008, the decision to resume the hearing of the application on 7 August 2008 is unreasonable or irrational in the Wednesbury sense.

Illegality

14 One of the most traversed grounds for judicial review is illegality. In Council of Civil Service Unions and Ors v Minister for the Civil Service [1985] AC 374 (“the GCHQ case”), Lord Diplock explained at p 410 that a decision-maker must understand correctly the law that regulates his...