Ng Swee Lang and Another v Sassoon Samuel Bernard and Others

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 09 November 2007
• Neutral Citation: [2007] SGHC 190
• Docket Number: Originating Summons No 1089 of 2007
• Date: 09 November 2007
• Published date: 24 January 2008
• Year: 2007
• Plaintiff Counsel: Michael Hwang SC and Yeo Chuan Tat (Michael Hwang), Yip Shee Yin and Kenny Khoo (Ascentsia Law Corporation)
• Citation: [2007] SGHC 190
• Defendant Counsel: Leong Yung Chang (Veritas Law Corporation),Christopher Yong and Joshua Chai (Legal21 LLC)
• Court: High Court (Singapore)
• Subject Matter: Appeal to High Court from Board's decision,Land,Whether collective sales agreement and sale and purchase agreement valid,Strata titles,Section 84A Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Whether Board erring in law in granting collective sale order,Strata titles board

9 November 2007 Judgment reserved.

Andrew Ang J:

1 This is an appeal against the whole of the order of the Strata Titles Board (“the Board”) dated 26 June 2007 in STB No 6 of 2007, pursuant to an application under s 84A of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“the Act”) in respect of the development known as Phoenix Court (Strata Title Plan No 287) comprised in Land Lot No 559X TS 21 (“the Development”).

2 The plaintiffs seek the following orders in these proceedings:

(a) that the order of the Board under s 84A of the Act in respect of the Development on 26 June 2007 in STB No 6 of 2007 be set aside;

(b) that the application for a collective sale order in respect of the Development be dismissed;

(c) that the costs of this appeal and the proceedings before the Board below be paid by the defendants to the plaintiffs; and

(d) such further or other relief as the court deems fit.

3 The plaintiffs are joint subsidiary proprietors of unit No #07-70 in the Development.

4 The defendants claim to be the authorised representatives on behalf of subsidiary proprietors representing some 97.92% of the total share value in the Development (“the Majority”) in the application for the collective sale of the Development.

5 The Development is a 13-storey residential development located at 70 St Thomas Walk on a freehold site. It comprises three penthouses on the 13th storey and 44 apartments units on the lower floors.

6 The Majority, comprising the owners of 46 out of the 47 apartments and penthouses, entered into a Collective Sale Agreement (“the CSA”) dated 16 April 2006. The plaintiffs did not agree to the collective sale and did not sign the CSA.

7 A Sale Committee (“SC”) was appointed pursuant to the CSA to act on behalf of the Majority who signed up to the CSA. On 27 October 2006, the SC, on behalf of the Majority, entered into a Sale & Purchase Agreement (“S&P Agreement”) with Bukit Panjang Plaza Pte Ltd (“the Purchaser”) for the sale of the Development. The S&P Agreement was conditioned to terminate if a collective sale order was not obtained from the Board within six months after the date of the S&P Agreement, ie, by 26 April 2007.

8 On 17 January 2007, the defendants, on behalf of the Majority, applied to the Board for a collective sale order. The plaintiffs objected to the application.

9 On 25 April 2007, the SC, on behalf of the Majority, entered into a Supplemental Agreement with the Purchaser, extending to 27 June 2007 the time the Majority had to obtain a collective sale order.

10 The hearing of the plaintiffs’ application to the Board took place from 21 to 22 June 2007. The Board made an order for the collective sale of the Development on 26 June 2007.

11 Being dissatisfied with the order of the Board, the plaintiffs brought this appeal.

12 The plaintiffs’ grounds of objections to the en bloc sale are as follow:

(a) The Board erred in law in granting the collective sale order as, contrary to s 84A(1)(b) of the Act, there was no valid collective sales agreement between the subsidiary proprietors comprising not less than 80% of the share values of the Development.

(b) The Board erred in law in granting the collective sale order as, contrary to s 84A(1)(b) of the Act, there was no valid sale and purchase agreement between the subsidiary proprietors and an intended purchaser.

(c) The Board erred in law in granting the collective sale order on the application of the defendants who were not persons appointed by the subsidiary proprietors as their authorised representatives in connection with the application before the Board, contrary to s 84A(2) of the Act.

(d) The Board erred in law in granting the collective sale order although, contrary to para 1(e) of The Schedule and s 84A(3) of the Act, notice of the application for a collective sale order was not accompanied by a valid valuation report.

(e) The Board erred in law in granting the collective sale order when, contrary to s 84A(1) of the Act, there was no sale and purchase agreement which specified the proposed method of distributing the sale proceeds to all the subsidiary proprietors (whether in cash or in kind, or both).

(f) The Board erred in law in granting the collective sale order when the transaction was not in good faith, having regard to the sale price, contrary to s 84A(9)(a)(i) of the Act.

(g) The Board erred in law in granting the collective sale order when the transaction was not in good faith, having regard to the method of distribution of sale proceeds, contrary to s 84A(9)(a)(ii) of the Act.

13 The principal questions arising in this appeal are:

(a) Whether the grounds of appeal raise points of law;

(b) Whether there was a failure to comply with any statutory requirement in connection with the en bloc sale or the application for the Board’s order; and

(c) If so, what is the consequence of such non-compliance.

14 Before considering the individual grounds of appeal, it is necessary to deal in general terms with the following:

(a) The distinction between a point of law and one of fact; and

(b) What is the consequence of non-compliance with a statutory requirement.

Point of law

15 Relying upon s 98(1) of the Building Maintenance and Strata Management Act 2004 (Act 47 of 2004) (“BMSMA”), the defendants raised the preliminary objection that the plaintiffs were not entitled to appeal against the Board’s decision other than on a point of law. Section 98 provides as follows:

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.

(2) Where an appeal is made to the High Court, the Court may confirm, vary or set aside the order or remit the order to the Board for reconsideration together with such directions as the Court thinks fit.

(3) The filing of a notice of appeal shall not operate as a stay of execution of an order or suspend the effect of an order unless the Board or the High Court, as the case may be, otherwise orders and any stay or suspension of an order may be subject to such conditions as the Board or High Court thinks fit.

16 As to what constitutes “a point of law”, Mr Christopher Yong, counsel for the defendants, pointed to the Court of Appeal decision in Northern Elevator Manufacturing Sdn Bhd v United Engineers (S) Pte Ltd (No 2) [2004] 2 SLR 494 (“Northern Elevator”) where the Court of Appeal cited with approval the following statement by GP Selvam JC in Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [2000] 1 SLR 749 (“Ahong Construction”) at [7]:

A question of law means a point of law in controversy which has to be resolved after opposing views and arguments have been considered. It is [a] matter of substance the determination of which will decide the rights between the parties. The point of law must substantially affect the rights of one or more of the parties to the arbitration. If the point of law is settled and not something novel and it is contended that the arbitrator made an error in the application of the law there lies no appeal against that error for there is no question of law which calls for an opinion of the court.

The Court of Appeal then continued at [19]:

To our mind, a “question of law” must necessarily be a finding of law which the parties dispute, that requires the guidance of the court to resolve. When an arbitrator does not apply a principle of law correctly, that failure is a mere “error of law” (but more explicitly, an erroneous application of law) which does not entitle an aggrieved party to appeal.

17 The defendants also relied on Yeo Loo Keng v Tan Yee Lee Kevin [2007] 3 SLR 455 which was also an appeal against the order of a Strata Titles Board. In that appeal, the High Court was presented with an argument that the Board made an error of law when it accepted a valuation report which was not in compliance with the Valuation Standards and Guidelines issued by the Singapore Institute of Surveyors and Valuers. The court ruled that this issue did not involve any question of law.

18 Mr Michael Hwang SC, counsel for the plaintiffs, referred to MC Strata Title No 958 v Tay Soo Seng [1993] 1 SLR 870 (“Tay Soo Seng”) where GP Selvam JC considered the then s 108(1) of the Land Titles (Strata) Act (Cap 158, 1988 Rev Ed) which read as follows:

No appeal shall lie to the High Court against an order made by a Board except on a point of law.

Selvam JC had quoted, with approval, the following statement in Halsbury’s Laws of England, vol 1(1) (Butterworths, 4th Ed Reissue, 1989), para 70:

Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons, and misdirecting oneself as to the burden of proof.

19 Tay Soo Seng and the above quoted statement in Halsbury’s were cited to Woo Bih Li J in Koh Gek Hwa v Yang Hwai Ming [2003] 4 SLR 316 (“Koh Gek Hwa”), which was also an appeal from an order of a Strata Titles Board. Also cited was the following passage[note: 1] from Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 where Lord Radcliffe said at 35 and 36:

My Lords, I must apologise for taking so much time to repeat what I believe to be settled law. But it seemed to be desirable to say this much, having regard to what appears in the judgments in the courts below as to a possible divergence of principle between the English and Scottish courts. I think that the true position of the court in all these cases can be shortly stated. If a party to a hearing before commissioners...