The Management Corporation Strata Title Plan No. 651 v Iremit Singapore Pte Ltd, Heng Sye Kia, Tay Kuan Huat and Singh Sher Baljit
| Jurisdiction | Singapore |
| Judge | Chiah Kok Khun |
| Judgment Date | 10 November 2014 |
| Neutral Citation | [2014] SGDC 414 |
| Court | District Court (Singapore) |
| Hearing Date | 28 November 2013,07 July 2014,18 September 2013,25 February 2014,19 September 2013,20 September 2013,24 February 2014,29 November 2013,28 February 2014,27 November 2013,18 February 2014,26 November 2013,17 February 2014,20 February 2014,19 February 2014,21 February 2014 |
| Docket Number | District Court Suit No. 1117 of 2013/X |
| Plaintiff Counsel | Ng Yuen (M/s Malkin & Maxwell LLP) |
| Defendant Counsel | Tay Yong Seng (M/s Allen & Gledhill LLP),Muthu Kumaran (M/s Kumaran Law),Raymond Wong (M/s Wong Thomas & Leong) |
| Subject Matter | MCST,Nuisance,Breach of By-Laws,Fire Safety |
| Published date | 15 December 2014 |
Lucky Plaza is one of the older shopping malls in Orchard Road.1 It is often crowded, particularly in the weekends. Over the years, it has found popularity with the Filipino community in Singapore. Filipino expatriate workers would gather within its confines and in its vicinity in the weekends, in large numbers. There are several businesses in Lucky Plaza that cater to the needs of the Filipino community. Some of these attract large crowds. These crowds of expatriate workers would be seen along the corridors outside the units occupied by the businesses. The general crowding within Lucky Plaza in the weekends is evident.2 With the recent push to give compulsory weekly day-offs for domestic helpers, the turn-out in the weekends becomes ever larger. This forms the backdrop to the case. The case unfolds within the confines of Luck Plaza
Iremit Singapore Pte Ltd (“Iremit”) is a remittance agency. It is a Singapore registered company. Most, if not all its business relates to remittance to the Philippines. Iremit plies its trade at strata lots #03-69 and #03-70, on the third floor of Lucky Plaza. It is the first defendant. Lucky Plaza’s land title is subdivided. Iremit rented #03-69 from Heng Siaw Kiaw (“Heng”) and Tay Kuan Huat (“Tay”) (who are mother and son); they are the 2nd and 3rd defendants respectively. Iremit rented #03-70 from Singh Sher Baljit (“Singh”); he is the 4th defendant. Heng, Tay and Singh are the subsidiary proprietors of the respective units (collectively, “owners”).3
The management corporation (“MCST”) of Luck Plaza (strata title plan no. 651) is the Plaintiff.
The accumulated shop area of both #03-69 and #03-70 (“premises”) is 44 square metres. The common corridor outside the premises is 6 metres wide and 11 metres long (“the Common Corridor”). The Common Corridor belongs to all the subsidiary proprietors of Lucky Plaza but is under the control and management of the MCST.
Under the agreement to rent #03-69,4 Iremit was entitled to access the Common Corridor leading to and/or surrounding the premises. The agreement to rent #03-70 on the other hand, did not expressly entitle Iremit to access the Common Corridor. However, the right of way to access the Common Corridor was implied in the agreement.
The customer area in the premises is approximately 10 square metres and the remaining shop area was for the customer counters. There is evidence that in the weekends, Iremit would have estimates of 80 to 100 customers at any given time during the peak periods.5 There were 7 to 8 service counters to serve the customers. These customers would queue along the Common Corridor. Iremit had at various times from 2008 to 2010 placed queue poles to manage the customer queues. Photographs taken by the MCST of customers of Iremit queuing along the Common Corridor were produced in court.6
The MCST was unhappy with the number of Iremit customers queuing along the Common Corridor. Sometime in November 2009, the MCST demanded for Iremit to deal with the issue of their customers queuing in the Common Corridor and an agreement between the MCST and Iremit was made. In or about January 2010, April 2010 and May 2010, proposals were submitted by Iremit in regard to renovation works to be done on the premises. The proposals were not accepted by the MCST. The MCST commenced this action on 12 March 2010.
MCST’s case The MCST’s case has been put in different ways in their Statement of Claim, during the trial and in their submissions. Perhaps their case against the defendants can best be summed up as follows:7
In regard to the physical encroachment upon the Common Corridor by placing queue poles, the MCST relies on By-Law No. 3 of the Second Schedule of the Building Maintenance (Strata Management) Regulations 2005 (“BMSMA Regulations”) which states:
“A subsidiary proprietor or an occupier of a lot shall not obstruct the lawful use of the common property by any person, except on a temporary and non-recurring basis.” (“By-laws No. 3”)
Additionally, the MCST refers to By-Law No. 4 which was passed at the Extra-Ordinary General Meeting on 9 May 1989 that states:
“A subsidiary proprietor shall not display, conduct or demonstrate his trade or canvass for business nor in any way occupy or encroach upon any part of the common property without the prior written consent of the management corporation, who reserves the right in its absolute discretion to give, vary or withdraw such consent absolutely or conditionally at any time and from time to time.” (By-laws No. 4”)
The MCST says that no written consent has been given to Iremit to place the queue poles on the Common Corridor and this encroachment is not temporary and non-recurring. There is thus a breach of By-laws No. 3 and 4.
As regards the breach of the property rights of the MCST and subsidiary proprietors, the MCST refers to section 13 of the Land Titles (Strata) Act (“LTA”) and section 2 and 24 of the Building Maintenance and Strata Management Act (“BMSMA”). Section 13 of the LTA referred to common property being held by the subsidiary proprietors as tenants-in-common. Section 2 of the BMSMA included the MCST as an owner of common property by definition. Section 24 states that MCST may sue and be sued.
The MCST argues that albeit right of way of the Common Corridor was granted to the Iremit, it was limited by section 63 of the BMSMA, which states that:
“A subsidiary proprietor, mortgage in possession (whether by himself or any other person), lessee or occupier shall not –
… use or enjoy common property in such a manner or for such purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is a subsidiary proprietor or not) or by any other person entitled to the use and enjoyment of the common property; or use or enjoy common property in such manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is a subsidiary proprietor or not) or by any other person entitled to the use and enjoyment of that lot.”
The MCST’s case is therefore that the customers are entitled to use the Common Corridor to access the premises but Iremit has no right to use the Common Corridor as a queuing area. It contends that in doing so, Iremit has interfered unreasonably with the use or enjoyment of the Common Corridor by all the MCST “as well as neighbouring units and other shoppers of Lucky Plaza”.8 It is not entirely clear to me, although I have specifically requested clarification from counsel for the MCST, but it appears that by “breach of property rights of all subsidiary proprietors”, the MCST meant a breach of Section 63(c) of the BMSMA.9
As for the tort of nuisance, the MCST contends that the large crowd and queues are a source of annoyance to the MCST, neighbouring occupiers, and shopping patrons of Lucky Plaza, thereby constituting nuisance. The MCST also says that Iremit refused to curb the issue of the large crowd and abate the nuisance.
In respect of the matter of fire safety, the MCST relies on the Fire Safety Act, the Fire Safety (Building and Pipeline Fire Safety) Regulations, and the Fire Safety (Fire Safety Managers) Regulations which provided that the permissible occupant load for shops should be 5 square metres per person. The MCST produced calculations in order to show that Iremit exceeded the permissible occupancy load.
In addition, the MCST contends that the Common Corridor is an area that serves as a means of escape route in the event of an emergency. Iremit is causing a serious obstruction to the fire escape route with the overcrowding.
As regards the liability of the owners, the MCST relies on sections 32(6), (7), (10) and (11) of the BMSMA and assert that the By-Laws are a contractual duty binding on the owners. Additionally, the MCST cited By-Law No. 26 and the abovementioned By-Law No.3 to hold the owners liable for the alleged breach of primary obligation to the MCST. For convenience, By-Law No. 26 is set out as follows:
“A subsidiary proprietor shall ensure his lessees, occupiers, invitees, licensees, suppliers, contractors, servants and/or agents abide by all these by-laws and the rules and regulations of the management corporation and further he shall also be responsible and liable for any breach by any such persons of any of these by-laws and the rules and regulations of the management corporation. This clause is without prejudice to the remedies and rights of action, under any law or statute, of the management corporation against the person concerned or directly responsible for the breach.”
For clarity, I summarise the MCST’s case as follows:
The MCST claims against Iremit for benefit gained from using the Common Corridor. Four...
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