Sit Kwong Lam v MCST Plan No 2645

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Judith Prakash JA,Steven Chong JA
• Judgment Date: 05 March 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 28 of 2017
• Date: 05 March 2018

Sit Kwong Lam

and

Management Corporation Strata Title Plan No 2645

[2018] SGCA 14

Sundaresh Menon CJ, Judith Prakash JA and Steven Chong JA

Civil Appeal No 28 of 2017

Court of Appeal

Land — Strata titles — Common property — Subsidiary proprietor made unauthorised installations on areas outside his unit in strata development — Whether two limbs of sub-s (a) of definition of common property should be read conjunctively or disjunctively — Whether third category of property that was neither common nor private existed — Whether second limb of sub-s (a) of definition should be read as directing exclusive use inquiry — Section 2(1) Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed)

Land — Strata titles — Common property — Timber decking installed on flat roof outside unit — Air-conditioning ventilation unit installed on external wall of unit — Whether exception in by-law 5(3)(c) of by-laws prescribed by regulation applied — Second Schedule to Building Maintenance (Strata Management) Regulations 2005 (S 192/2005)

Held, dismissing the appeal:

(1) The fact that an area had been demarcated as common property on the strata title plan established that it was, at least on a presumptive basis, part of the common property of the development. It would be for the party contending otherwise to prove that the strata title plan was in error, and that the area in question was in fact not part of the common property because it could not properly fall within the Definition: at [39].

(2) Having regard to the text and structure of the Definition, it was clear that the two limbs of sub-s (a) should be read conjunctively and not disjunctively. Nothing in the relevant extraneous materials suggested that there was any legislative purpose behind the Definition that pointed away from its plain and clear meaning: at [46] and [47].

(3) The BMSMA did not envisage a third category of property in strata developments which constituted neither common nor private property. The acceptance of such a category of property would blur the lines of ownership in strata developments. This could result in disharmony and ran contrary to Parliament's stated intention, in enacting the BMSMA and its predecessor statutes, to ensure that strata developments would be properly managed and maintained: at [53] and [54].

(4) The Exclusive Use Inquiry could not be sustained. In statutory interpretation, the ordinary meaning of the text of a provision read in its context should be given primacy, even though statutory provisions were to be read purposively. Courts should be even slower to depart from the ordinary meaning of the text of statutory definitions. A proper construction of the second limb of sub-s (a) of the Definition did not necessarily lead to the creation of a third category of property: at [49], [55] and [59].

(5) The second limb of sub-s (a) of the Definition had to be interpreted broadly. The words “use” and “enjoy” should be read in accordance with their ordinary dictionary meanings. Based on their plain meanings, the word “enjoy” had a wider ambit than the word “use”. Any area or installation that could affect the appearance of a building in a strata development, or that was part and parcel of the fabric of the building, could, by its mere presence, be “enjoyed” by some or even all of the subsidiary proprietors. There was also no need for the area or installation to be physically accessible by the subsidiary proprietors in order to be “enjoyed” by them: at [60] and [61].

(6) The second limb of sub-s (a) of the Definition would be satisfied so long as the area or installation was “capable” of being used or enjoyed by the occupiers of two or more lots. It need not at any particular point in time be used or enjoyed by such occupiers: at [62].

(7) Any area or installation in respect of which the management corporation had assumed a duty to control, manage, administer or maintain would presumptively be taken to have satisfied the second limb of sub-s (a) of the Definition, unless it was shown that the management corporation ought not to have assumed such a duty: at [63].

(8) The ledges on which Work 1 had been constructed were part of the common property. They were part and parcel of the fabric of the building and served as shelters or sunshades to the unit(s) below them. It did not matter that they were not physically accessible by any subsidiary proprietor. It was not disputed that the ledges were not comprised in any lot in the strata title plan: at [66].

(9) The flat roof and the wall on which Works 2 and 3 had been respectively installed were part and parcel of the fabric of the building and contributed to its appearance. Their removal could even affect the structural integrity of the building. It was not disputed that the respondent had assumed responsibility for their maintenance. They were part of the common property: at [67].

(10) Since the Works had been installed by the appellant on common property without the prior authorisation of the respondent, such installations were in breach of the relevant by-laws unless they fell within one of the exceptions: at [71].

(11) Reading the exception in by-law 5(3)(c) of the Prescribed By-Laws consistently with the other exceptions in by-laws 5(3)(a) and 5(3)(b), it had to be limited to the situation where a subsidiary proprietor erected a structure or device on common property in order to prevent harm to children while they were within his lot. This made good sense because by-law 5(3)(c) should not be construed as granting a free license for individual subsidiary proprietors to reconstruct common property whenever they considered that any children might suffer some harm or danger unless something were done. That was properly the responsibility of the management corporation: at [74] and [75].

(12) On the facts, Work 2 was not a structure or device to prevent harm to the appellant's children while they were within the Unit as it was purportedly installed to prevent common property outside the Unit from becoming slippery when wet. As for Work 3, the STB did not make any error of law in its interpretation of by-law 5(3)(c) and hence its finding of fact that Work 3 did not come within the exception was binding and not subject to challenge. In any case, there was insufficient evidence of a direct correlation between the installation of the air-conditioning ventilation unit and the prevention of harm to the appellant's children within the Unit: at [76] and [80].

Case(s) referred to

Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803; [1995] 2 SLR 201 (folld)

Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2017] 3 SLR 267 (folld)

Kori Construction (S) Pte Ltd v Nam Hong Construction & Engineering Pte Ltd [2015] 2 SLR 616 (refd)

PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 131 ALR 377 (folld)

Tan Cheng Bock v AG [2017] 2 SLR 850 (refd)

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

Wu Chiu Lin v MCST Plan No 2874 [2018] SGHC 43 (refd)

Facts

The appellant was a subsidiary proprietor of a penthouse unit (“the Unit”) in a condominium development (“the Development”). The respondent was the management corporation of the Development.

In August 2013, the respondent discovered that the appellant had installed timber decking on two ledges that bordered segments of the Unit's external facades (“Work 1”). The respondent advised the appellant to seek the necessary approval for Work 1 at the next Annual General Meeting (“AGM”), but the appellant did not initially pursue this course.

In May 2014, the respondent discovered that the appellant had covered the entirety of a flat roof outside the Unit with similar timber decking (“Work 2”). Further, the appellant had installed an air-conditioning ventilation unit on an external wall enclosing the Unit (“Work 3”). The respondent requested that the appellant remove or demolish “all unauthorised works”, but there was no resolution and Works 1, 2 and 3 (collectively, “the Works”) remained in place.

In April 2015, the appellant tabled motions at an AGM seeking the exclusive use and enjoyment of, and/or special privileges in respect of, the areas where the Works had been carried out (“the Areas”). However, he failed to secure the requisite number of votes on any of the motions.

It was undisputed that the Areas were demarcated as common property on the strata title plan.

The appellant applied to the Strata Titles Board (“STB”) seeking, amongst other things, a declaration that he had not breached any of the by-laws of the Development in having executed the Works. The STB dismissed the application and the appellant appealed.

Before the High Court, the appellant argued that the Areas were not “common property” within the definition of the term in s 2(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”) (“the Definition”). Further, he submitted that Works 2 and 3 fell within the exception set out in by-law 5(3)(c) of the by-laws prescribed in the Second Schedule to the Building Maintenance (Strata Management) Regulations 2005 (S 192/2005) (“the Prescribed By-Laws”) such that the respondent's prior approval was not necessary.

The High Court judge (“the Judge”) dismissed the appeal. Amongst other things, the Judge held that the correct way to construe the second limb of sub-s (a) of the Definition was to ask whether the area in question was for the exclusive use of the occupiers of the unit in question, in which case it would not be common property, instead of whether the area was for the use of the occupiers of two or more lots, in which case it would be common property (“the Exclusive Use Inquiry”).

Before the Court of Appeal, the issues were (a) whether the two limbs in sub-s (a) of the Definition should be read conjunctive or disjunctively, (b) whether the second limb of sub-s (a) of the Definition should be read as...