Raman Dhir v Management Corporation Strata Title Plan No 1374

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 23 January 2020
• Neutral Citation: [2020] SGHC 19
• Plaintiff Counsel: Carolyn Tan Beng Hui, Leong De Shun Kevin and Au Thye Chuen (Tan & Au LLP)
• Docket Number: Tribunal Appeal No 15 of 2019
• Date: 23 January 2020
• Hearing Date: 22 November 2019
• Subject Matter: Common property,Land,Strata titles
• Year: 2020
• Defendant Counsel: Hui Choon Wai and Leong Hern Wei (Wee Swee Teow LLP)
• Court: High Court (Singapore)
• Citation: [2020] SGHC 19
• Published date: 05 February 2020

Chan Seng Onn J: Introduction

This is an appeal against part of the decision of the Strata Titles Board (“STB”) to dismiss the application by an applicant in Strata Title Board No 8 of 2019 (the “STB Application”). The STB Application was brought by the appellant, Mr Raman Dhir (“Mr Dhir”), who is the subsidiary proprietor of a townhouse unit (the “Unit”) in a development known as The Balmoral, against the respondent, the management corporation of The Balmoral (“MCST”).

There are two main issues on appeal. The first issue on appeal is whether the STB had erred in finding that the reinforced concrete flat roof above the Unit (“RC flat roof”) and the awning over the entrance of the property (the “Skylight”) failed to satisfy the definition of common property under s 2(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”). The second issue on appeal is whether the STB had erred by failing to apply the statutory presumption required under s 101(8) of the BMSMA in coming to its decision on Mr Dhir’s claim.

The dispute

The Balmoral is a 31-year old development that comprises 81 residential units, including two blocks of 4-storey townhouses, which are stand-alone and adjoined to each other along certain parts of the side walls (the STB’s Grounds of Decision (“GD”) at [1]). Mr Dhir owns one of the stand-alone 4-storey townhouse units (ie, the Unit).

In Mr Dhir’s application to the STB in the proceedings below, he took the position that the water leakages within the Unit at various locations originated from common property. The various water leakages into his unit were from (i) the reinforced concrete flat roof above the Unit (ie, the RC flat roof); (ii) various fixed window panels in the property which ran from the 2nd to the 4th storeys of the property (“the Windows”); and (iii) the awning over the entrance of the property (ie, the Skylight) (GD at [6]). Termite damage resulted from the various leakages. Mr Dhir’s claimed that the RC flat roof, the Windows and the Skylight were common properties and hence, the MCST was responsible for their repairs and the damage caused by the water leakages originating from these areas (GD at [7]).

The MCST took the position that the RC flat roof, the Windows and the Skylight were not common properties (GD at [10]). The MCST also submitted that there was insufficient evidence to make out Mr Dhir’s case as there was no expert report on where the various water leakages originated from and the only report provided by M3 Multi Services Pte Ltd, a contractor, contained only its observation and recommendation for repairs (GD at [11]).

Decision below

The STB found, inter alia, that the RC flat roof and the Skylight were not common properties, as they did not satisfy the definition of common property under s 2(1) of the BMSMA and were for the “exclusive use of [Mr Dhir] and serve[d] only his unit” (GD at [34]). The STB found that the Windows were common properties under s 2(9) of the BMSMA.

The RC flat roof

In coming to its decision that the RC flat roof was not common property, the STB considered the following: The whole of the 4th storey of the Unit was in fact an open flat roof deck with balconies and flower boxes, delineated in black lines in the strata title plan (GD at [16]). The 4th storey was the roof of the entire townhouse unit and was part of the total strata area of the Unit (GD at [17]). The only access to the 4th storey from the 3rd storey was via an internal private staircase, and the area around the staircase landing was enclosed and covered by the RC flat roof with a usable space on it. The usable area was not part of the total strata area of the unit and the RC flat roof was delineated in red in the strata title plan (GD at [18]). Although the RC flat roof was delineated in red, and not black lines, the other features such as balconies, flower boxes, private internal staircases and wash areas within the Unit were also similarly delineated in red lines (GD at [27]). According to Ms Low, the MCST’s witness who is a practising registered surveyor, black lines indicated strata boundaries and red lines denoted building and other details (GD at [19]). Further, Ms Low testified that the enclosed red area covered by the RC flat roof was within the 4th storey strata boundary (GD at [20]). The RC flat roof was not a roof, but a feature within the strata boundary of the 4th floor and covered the small enclosed area beneath it (GD at [26]). The roof of the Unit was in fact, the whole of the 4th storey as it formed the top and covered the whole of the Unit (GD at [25]). The RC flat roof served only Mr Dhir’s townhouse unit and no other unit (GD at [26]). The usable space on the RC flat roof was used by Mr Dhir to install his air conditioner condensers, electrical boxes and cables (GD at [21]). It was for his exclusive use and the usable area on the RC flat roof was used by Mr Dhir to install items for his exclusive use and was accessible only from the 3rd storey within the Unit (GD at [26]).

The Skylight

In finding that the Skylight was not common property and was comprised in the strata title plan of the Unit, the STB considered the following: Ms Low testified that the Skylight was drawn outside the strata boundary of the 3rd storey in the strata title plan (GD at [22]). Ms Low inspected the site and saw that the Skylight did not reach anywhere near the 3rd storey. Ms Low confirmed that the Skylight was physically within the strata boundary of the 1st storey and served also as a cover for the main entrance concrete structure of the 1st storey (GD at [22]). STB accepted Ms Low’s evidence that the Skylight sat within the strata boundary of the 1st storey of the Unit and was situated between the 1st and 2nd level (GD at [29]). The Skylight was neither a roof nor a window and was simply a fixed feature that extended from within the Unit and covered the main entrance of the 1st storey (GD at [29]). The Skylight served only the Unit and was for Mr Dhir’s exclusive use (GD at [30]). This feature was also situated in Mr Dhir’s lot in the strata title plan (GD at [30]).

The Windows

The STB found that the fixed Windows were located on the exterior walls of the lot and fell within the definition of all other windows under s 2(9) of the BMSMA (GD at [31]). Therefore, the fixed Windows satisfied the common property definition.

Termite damage and water leakages

The STB also found that there was no evidence adduced to show termite damage to Mr Dhir’s property except for a quotation for treatment (GD at [32]). There was also no expert report tracing where the various leakages originated from (GD at [33]). Therefore, the STB was unable to make a finding, based on the evidence adduced, that various leakages in the Unit originated from the RC flat roof, the Skylight and the fixed Windows.

As such, the STB dismissed Mr Dhir’s claim for damages and disbursements, and awarded costs to the MCST.

Scope of Appeal

I start by dealing with the preliminary issue of the scope of the appeal, which parties dispute. Mr Dhir is appealing on two issues: First, STB committed errors on points of law by holding that the RC flat roof and the Skylight were not common properties (“Common Property Appeal”). Second, STB failed to consider and apply the statutory presumption and reversal of burden of proof in Mr Dhir’s favour under s 101(8) of the BMSMA and reversing the burden of proof in its decision on the causation of the water leakages (the “Statutory Presumption Appeal”). This Statutory Presumption Appeal fits squarely within the definition of an ex facie error of law that is appealable pursuant to s 98(1) of the BMSMA. As such, Mr Dhir submits that the court should correct STB’s errors of law, set aside STB’s decision and remit the matter to STB for rehearing and determination in accordance with the applicable correct legal principles (ie, direct the STB to apply the presumption under s 101(8) of the BMSMA).¹

The MCST does not dispute that the Common Property Appeal could be brought but objects to Mr Dhir’s Statutory Presumption Appeal, arguing that Mr Dhir is not entitled to appeal against STB’s decision other than on a point of law pursuant to s 98(1) of the BMSMA. The appeal should be “confined to a finding ... on whether the RC flat roof and [Skylight] are common propert[ies]” as “there is no appeal against the STB’s findings that [Mr Dhir] had failed to prove the damages for the various water leakages from the various locations”.² The MCST submits that Mr Dhir’s claim for damages was rejected on the basis that the evidence adduced by Mr Dhir did not show that the various leakages originated from the various areas, and such a finding was made independently of the finding of whether the RC flat roof or the Skylight were common properties.³ STB’s findings of fact cannot be disturbed and appealed from, regardless of whether Mr Dhir opines that there are manifest errors of fact.

Section 98(1) of the BMSMA states the following:

Appeal to High Court on question 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. (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.

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[emphasis added]

The Court of Appeal held in Ng Eng Ghee & Ors v Mamata Kapildev Dave & Ors (Horizon Partners Pte Ltd, intervener) & another appeal [2009] 3 SLR(R) 109 (“Ng Eng Ghee”) at [90] that ex facie errors of law would in turn raise points of law subject to appeal under s 98(1) of the BMSMA, citing Halsbury’s Laws of England vol 1(1) (Buttersworths, 4th Ed Reissue, 1989); Dynamic Investments Pte Ltd v Lee Chee Kian Silas [2008] 1...