Lo Pui Sang and Others v Mamata Kapildev Dave and Others (Horizon Partners Pte Ltd, intervener) and Other Appeals

JurisdictionSingapore
JudgeChoo Han Teck J
Judgment Date17 July 2008
Neutral Citation[2008] SGHC 116
Docket NumberOriginating Summonses Nos 5, 10 and 11 of 2008
Date17 July 2008
Published date17 July 2008
Year2008
Plaintiff CounselSecond applicant in person in OS 5/2008
Citation[2008] SGHC 116
Defendant CounselC R Rajah SC, Anand Karthigesu, Burton Chen and Lalitha Rajah (Tan, Rajah & Cheah),First and fifth applicants in person in OS 11/2008,K Shanmugam SC, Ang Cheng Hock, Corina Song, William Ong and Sybil Rocha (Allen & Gledhill LLP),K S Rajah SC, Harry Elias SC, Philip Fong, Justin Chia and Evangeline Poh (Harry Elias Partnership)
CourtHigh Court (Singapore)
Subject MatterAppeal to High Court against Strata Titles Board's approval of en bloc sale,Constitutional Law,Land,Sections 84A(1), 84A(9) and 84B(1)(b) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Whether transaction made in good faith,Strata titles,Collective sales,Only one method of distribution of sales proceeds considered,Higher offer not accepted by sales committee,Whether Board acting functus officio when delivered grounds of decision after giving oral decision,Whether Board breached rules of natural justice,Equality before the law,Personal liberty,Fundamental liberties,Sections 84A(1) and 84B(1)(b) of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed),Whether ss 84A(1) and 84B(1)(b) Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) violated Arts 9(1) and 12(1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint),En bloc sale of condominium

17 July 2008

Judgment reserved.

Choo Han Teck J:

1 The three applications under Originating Summons (“OS”) Nos 5, 10 and 11 of 2008 were appeals against the decision of the Strata Titles Board (“STB”), approving the sale of a condominium under Strata Title Plan No 993, known as the Horizon Towers, a 99-year leasehold condominium which has about 70 more years left on the lease. The appeals were brought by the minority subsidiary proprietors (“the appellants”). The majority subsidiary proprietors (referred to as the consenting subsidiary proprietors (“the CSPs”)) had signed a collective sale agreement (“the CSA”) on 11 May 2006. On 22 January 2007, the CSPs granted Horizon Partners Pte Ltd (“HPPL”) an option to purchase Horizon Towers en bloc with a reserve price of $500m. HPPL signed the option on 12 February 2007, thus converting the option into the sale and purchase agreement (“SPA”). Having achieved an 80% majority as required by law, the CSPs applied to the STB on 13 April 2007 for its approval of the sale of Horizon Towers en bloc to the purchasers, HPPL. The appellants did not sign the CSA and the SPA. The STB delivered its decision orally on 7 December 2007, approving the sale. Its grounds of decision (STB No 43 of 2007) (“GD”) were issued on 21 January 2008. In the interim, the appellants filed these three OS, praying for the decision of the STB to be set aside. HPPL was granted leave to address this court as interveners in respect of all three applications. I will revert to other details of this case at the appropriate junctures of this judgment.

2 Mr KS Rajah SC (“Mr Rajah”) and Mr Harry Elias SC (“Mr Elias”) appeared on behalf of the minority in OS No 10 of 2008. The minority in OS No 5 and 11 of 2008 were unrepresented by counsel. Mr Rudy Darmawan (“Mr Darmawan”) and Ms Jasmine Tan Kim Lian (“Ms Jasmine Tan”) filed written submissions and addressed the court personally (as minority owners acting in person) in OS No 11 of 2008 and Mr Quek Keng Seng appeared in person in OS No 5 of 2008. Mr K Shanmugam SC appeared on behalf of the interveners, and Mr Chelva Rajah SC (“Mr Chelva Rajah”) appeared on behalf of the CSPs.

3 The main submissions on behalf of the appellants were made by Mr Rajah and Mr Elias. Mr Rajah submitted that ss 84A(1) and 84B(1)(b) of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“LTSA”) were unconstitutional and that the orders of the STB made pursuant to these sections infringed Art 9(1) and Art 12(1) of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”). He further submitted that the STB refused to let the appellants make a full submission on the constitutional points. Counsel also submitted that the STB had no jurisdiction to exercise judicial powers, and further, that it did so in breach of the rules of natural justice. Finally, Mr Rajah submitted that the STB was acting functus officio when it delivered its GD in January 2008 since it had discharged its duties and functions when it delivered its oral decision on 7 December 2007.

4 Mr Elias submitted that the STB failed to consider the issue of bad faith on the part of the Sales Committee (“SC”) in the way the SC handled the alternative offer of $510m from a company known as Vineyard Holdings (HK) Ltd (“Vineyard”) for the purchase of the Horizon Towers. Secondly, Mr Elias submitted that the SC also failed to act in good faith in its choice of the method of distribution of the sale proceeds. Mr Darmawan and Miss Jasmine Tan, who were the appellants in OS No 11 of 2008, presented their own submissions, expanding on, and supporting the submissions made by counsel. I will consider the points in their submissions that were not covered in the submissions of counsel after I have dealt with the latter.

5 I shall consider first the constitutional law arguments of Mr Rajah. Mr Chelva Rajah is correct in reminding the court that s 98 of the Building Maintenance and Strata Management Act 2004 (Act 47 of 2004) (“BMSMA”) provides that there can be no appeal to the High Court against an order of the STB “except on a point of law”. He also correctly pointed out that there are only four grounds in which the STB may refuse to approve an application for a collective sale, namely (see ss 84A(7) and 84A(9) of LTSA):

(a) where a subsidiary proprietor who objects to the sale will suffer financial loss;

(b) where such a subsidiary proprietor is unable to redeem his mortgage or charge on his property;

(c) where the transaction was not made in good faith; and

(d) where the CSP agreement would require a subsidiary proprietor who had not agreed in writing to the sale to be a party to an arrangement for the development of the lots and the common property in the strata title plan.

Mr Chelva Rajah further submitted that (a), (b), and (d) were not relevant in the present appeals. It seems to me that the clear and specific provision in s 98 and the scheme of the LTSA do not empower the STB to decide on constitutional issues such as those raised by Mr Rajah before me, and in that regard, it seems that the STB cannot be faulted for not dealing with them. If ss 84A(1) and 84B(1) were unconstitutional, it must mean that the LTSA was ultra vires the Constitution so far as those sections were concerned, and the proper forum to determine if that were indeed so is the High Court. The constitutional law arguments of Mr Rajah do not just concern the correctness of the STB decision in the en bloc sale of the Horizon Towers. It affects every en bloc sale under the LTSA. Counsel is entitled to raise those arguments because the Constitution is the supreme law of the land. The relevant version of s 84A(1) of the LTSA that applies in the present case is the version prior to the amendments to the LTSA in 2007, and the applicable sub-section is s 84A(1)(b), which reads as follows:

84A. —(1) An application to a Board for an order for the sale of all the lots and common property in a strata title plan may be made by —

(b) the subsidiary proprietors of the lots with not less than 80% of the share values where 10 years or more have passed since the date of the issue of the latest Temporary Occupation Permit on completion of any building comprised in the strata title plan or, if no Temporary Occupation Permit was issued, the date of the issue of the latest Certificate of Statutory Completion for any building comprised in the strata title plan, whichever is the later,

who have agreed in writing to sell all the lots and common property in the strata title plan to a purchaser under a sale and purchase agreement which specifies the proposed method of distributing the sale proceeds to all the subsidiary proprietors (whether in cash or kind or both), subject to an order being made under subsection (6) or (7).

Section 84B(1)(b), the other relevant provision, provides that:

Where a Board has made an order under section 84 (6), (7) or (11) – the subsidiary proprietors of the lots shall sell the lots and common property in accordance with the sale and purchase agreement.

6 Mr Rajah’s arguments based on the breach of the appellants’ constitutional rights may be summarised as follows. Article 9(1) of the Constitution provides that no person shall be deprived of his life or personal liberty save in accordance with law. Counsel submitted that ss 84A(1) and 84B(1) have the effect of depriving the appellants of their personal liberty to contract. I do not think that the phrase “personal liberty” in Art 9 was a reference to a right of personal liberty to contract. It has always been understood to refer only to the personal liberty of the person against unlawful incarceration or detention. Counsel drew on decisions from the American Supreme Court in support of his arguments. Furthermore, it appears to me that if any fundamental right is violated here, it is not one’s personal liberty to contract, but one’s right to property (which is not a fundamental right entrenched in our Constitution (see [7] below)). In any event, I do not see how the decisions of the American Supreme Court cited by counsel can assist him given that the constitutional provisions of the United States are different from our constitutional provisions. Where the American Constitution declared, for example, by their 14th Amendment, that:

No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property or due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,

our Constitution specifically provides that there shall be no such deprivation of such liberties “save in accordance with law”. The difference is that in America, the State may not make any law depriving a person of his personal liberty “without due process of law”, but in Singapore, our Constitution, while prohibiting the deprivation of personal liberty, expressly permits such deprivation if the deprivation “was in accordance with law”. “In accordance with law” must mean law passed by Parliament. The LTSA provisions in question are clearly “law” within the meaning of the Constitution. The words “save in accordance with law” in Art 9(1) of our Constitution may incline liberally in favour of legislative power, but the clear words cannot be altered by the court. That is what constitutional supremacy means. If the Legislature and the Executive must follow what it says, so must the Court. Everyone obeys it.

7 The second constitutional challenge from Mr Rajah comes in the form of Art 12(1) which provides that “[a]ll persons are equal before the law and are entitled to the equal protection of the law”. Mr Rajah argued that ss 84A and 84B(1)(b) were in breach of Art 12(1) because Art 12(1) is presumed to lay down a prohibition against unreasonableness and arbitrariness. He submitted that the 80% rule discriminated against the appellants as the minority...

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12 cases
  • Tan Eng Hong v AG
    • Singapore
    • Court of Appeal (Singapore)
    • 21 August 2012
    ...(1) were not engaged by the very existence of s 377A in the statute books. As the High Court held in Lo Pui Sang v Mamata Kapildev Dave[2008] 4 SLR (R) 754 at [6], ‘personal liberty’ in Art 9 referred ‘only to the personal liberty of the person against unlawful incarceration or detention’: ......
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    • Court of Appeal (Singapore)
    • 2 April 2009
    ...sale. The present appeals are brought against the decision of the High Court judge (“the Judge”) (see Lo Pui Sang v Mamata Kapildev Dave [2008] 4 SLR 754 (“the Judgment”)) upholding the decision of the Horizon Board on 7 December 2007 (see Mamata Kapildev Dave v Lo Pui Sang/Kuah Kim Choo [2......
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    • High Court (Singapore)
    • 15 March 2011
    ...wide interpretations. For example, Choo Han Teck J in Lo Pui Sang v Mamata Kapildev Dav and Ors (Horizon Partners Pte Ltd intervener) [2008] 4 SLR(R) 754 at [6] (“Lo Pui Sang”) said: …I do not think that the phrase ‘personal liberty’ in Art 9 was a reference to a right of personal liberty t......
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8 books & journal articles
  • Administrative and Constitutional Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2008, December 2008
    • 1 December 2008
    ...Titles Board (‘STB’) which approved the en bloc sale of a condominium known as the Horizon Towers in Lo Pui Sang v Mamata Kapildev Dave[2008] 4 SLR 754. 1.83 The constitutionality of ss 84A(1) and 84B(1)(b) of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (‘LTSA’) was challenged by th......
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    • 1 December 2008
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  • Administrative and Constitutional Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2012, December 2012
    • 1 December 2012
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    • 1 December 2013
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