The Management Corporation Strata Title Plan No 4110 v Chan Alan

• Jurisdiction: Singapore
• Judge: Wong Peck
• Judgment Date: 22 June 2022
• Neutral Citation: [2022] SGDC 140
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 1800 of 2019, District Court Appeal No 19 of 2022
• Published date: 02 July 2022
• Year: 2022
• Hearing Date: 12 August 2021,13 August 2021,07 February 2022,08 February 2022,09 February 2022,25 April 2022,18 May 2022
• Plaintiff Counsel: Lai Swee Fung (UniLegal LLC)
• Defendant Counsel: Daryl Ong Hock Chye (LawCraft LLC)
• Subject Matter: LAND,strata titles,contributions payable,defects
• Citation: [2022] SGDC 140

District Judge Wong Peck: Introduction

The plaintiff, the Management Corporation Strata Title Plan No. 4110 (“MCST”), is the MCST for a cluster housing development (“the development”) located at Jalan Lim Tai See, Singapore. The plaintiff commenced this suit against the defendant, a subsidiary proprietor who resides in one unit of the development with his family. The plaintiff sued the defendant for allegedly outstanding maintenance and sinking fund arrears plus costs and interest. The defendant counterclaimed against the plaintiff for mainly breach of duties in relation to the Lightning Protection System (“LPS”) located in the defendant’s unit in the development including other related losses stemming from such a breach.

At the end of the trial, I dismissed the plaintiff’s claim and partially allowed the defendant’s counterclaim against the plaintiff. Being dissatisfied, the plaintiff has since filed an appeal against my decision. I shall now provide the grounds of my decision.

Facts The parties

In this suit, the MCST’s claims were detailed in the Statement of Account dated 31 July 2018 annexed to the Statement of Claim filed on 13 August 2018 and marked as “A”. The defendant was clearly unhappy with the LPS located in his unit in the development as he took the position that the LPS was not installed properly, and it was therefore unsafe for him and his family to reside in the unit.

In the defendant’s counterclaim, it was pleaded that he was claiming against the plaintiff mainly for breach of duties for the LPS located within his unit. As a result, the defendant was counterclaiming for loss of rental income ( as he was intending to rent out another property pending moving into his subject unit in the development) in the sum of $44,574.19, loss of enjoyment of the subject unit (to be quantified), costs of repair of his garden for $1,500, breach of warranty in carrying out the plaintiff’s statutory duty (to be quantified), inspection fee by Hong Kiat Construction Pte Ltd for $50 and expert’s inspection fees as pleaded for $1,070.

The parties’ cases The plaintiff’s version

According to the plaintiff, the Temporary Occupation Licence (“TOP”) was obtained on 3 December 2013 and all 39 units were then handed over to the owners for their occupation. The Certificate of Statutory Completion (“CSC”) was issued on 30 May 2014. The defendant was not the first owner when the development first obtained TOP. He had bought the unit from the first owner on or about 19 December 2016.

The plaintiff’s case was that all 39 owners did not raise any complaints about a defective LPS between the TOP date of 3 December 2013 until the defendant first raised this issue to the plaintiff on or around 20 March 2017. According to the plaintiff, the defendant only raised this issue when he was sued for the outstanding contributions of maintenance and sinking fund. The LPS located in the defendant’s unit was in his private lot for which only the defendant and his family owners had access to. Further, the development had obtained TOP and CSC which meant that the LPS of the development would have complied with the necessary requirements.

In summary, the plaintiff’s case as pleaded in the Statement of Claim was straightforward in that the plaintiff was merely claiming the outstanding maintenance and sinking fund contributions due as at 31 July 2018 amounting to the sum of $4,623.48 plus interest and costs. It was undisputed that the Writ of Summons was issued on 13 August 2018 and served on the defendant on 5 September 2018.

As for the counterclaim, the plaintiff denied liability and also denied that it owed any duty to the defendant with regard to the LPS. After the defendant’s first complaint to the managing agent on 20 March 2017 about an unsafe feature in his garden such as an exposed rod, Hong San was engaged to try to fix this unsafe feature of the LPS.

As the defendant remained unsatisfied, he engaged his own LPS expert who rendered a report to the defendant on 13 September 2018. On 22 January 2019, Mr Lau Gek Sing (“Felix”), a Professional Engineer and Qualified Person who had worked on the construction of the development, conducted a site inspection together with one Akbar Khan, an employee of the managing agent. On 30 January 2019, Felix reported that the LPS installation was in order when it was first handed over years ago and that work had been done that affected the LPS installation at the defendant’s unit. On 21 February 2020, Skypro Pte Ltd (“Skypro”), which was an LPS expert, was engaged by the plaintiff to test the LPS of the whole development. Skypro’s report was then exhibited.¹

The defendant’s version

According to the defendant, when he bought the unit on 19 December 2016 from the previous owner, he had the intention of occupying the unit together with his family members as their family residence. His family members include his wife, their 3 young children and the defendant’s parents.

Prior to buying the unit, the defendant and his family owned and resided at another property at Sin Min Walk (“Sin Min Walk property”). The intention was to move into the unit and rent out the Sin Min Walk property.

The defendant denied liability for the sum of $4,623.48 and for any interest and legal costs. As for the counterclaim, the defendant pleaded that the plaintiff had breached their common law and/or statutory duty under section 29(1)(b) of the Building and Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”) to properly maintain and keep in a state of good and serviceable repair (including, where reasonably necessary, renew or replace the whole or part therefore) any fixture or fitting (including any pipe, pole, wire, cable or duct) which is comprised within a lot and which is intended to be used for the servicing or enjoyment of the common property. As the LPS was common property, the LPS fell within the purview of the plaintiff’s responsibilities.

The defendant listed his concerns with the LPS in [20] of his AEIC² as: the exposed rod of the LPS (“ unsafe feature”) located his garden; the missing link boxes outside his unit as well as 3 other units in the development; the unsafe earth pit located in the basement pedestrian path outside his unit; and significant degradation of the development’s LPS.

Due to his concerns, the defendant refrained from moving into the unit until the unsafe feature was rectified. On 20 March 2017, the defendant emailed the managing agent about his concern. On 13 April 2017, the managing agent responded stating that both the developer and the main contractor were disclaiming liability as the Defect Liability Period (“DLP”) had expired. However, the defendant took the position that the MCST had continuing obligation to rectify the unsafe feature of the LPS. There was an attempted rectification made by the plaintiff’s contractor on 19 October 2017 which consisted of cutting a length of the exposed rod and covering the exposed area.

According to the defendant, his expert Mr Ho See Fong (Professional Engineer) (“Mr Ho”) of M/s HY M&E Consultancy Services Pte Ltd confirmed that the LPS purportedly rectified by the plaintiff on 19 October 2017 remained unsafe. Mr Ho furnished a report³ which concluded that the Aluminium Down Conductor of the unit seemed to be disconnected from the Roof Air Terminations and the Aluminium Down Conductor could be corroded. Consequently, his recommendation was that the Down Conductor should be repaired as soon as possible.

Due to the defendant’s concerns about the LPS, he delayed moving into the unit. Therefore, for the period of 19 December 2016 until 15 April 2018, he lost rental income from the Sin Min Walk property. The rental amount which the Sin Min Walk property could fetch was $2,800 per month as evidenced by the tenancy agreement dated 23 March 2018⁴ which was in the name of the defendant’s wife. This amounted to $44,574.19.

The defendant and his family finally moved into the unit in late June 2017 as according to the defendant, the plaintiff’s then Chairman, Mr Arjun had assured him in April 2017 that the plaintiff would follow up on his concerns⁵. The defendant was also claiming for loss of enjoyment of the unit for the period of 19 December 2016 to 30 June 2018 as they were unable to use the garden due to the unsafe feature. There was also the additional claim for continuing loss of enjoyment of property due to the defective LPS as he and his family suffered anguish, mental distress and worry having risk of fire hanging over their heads and interfering with their quiet enjoyment of the unit.

After the repair works were purportedly carried out by the plaintiff’s contractor on 19 October 2017, the defendant had to incur an expense of $1,500 to reinstate his garden⁶. The defendant was also claiming the sum of $50 being the inspection fee paid by him to Hong Kiat Construction Pte Ltd, being the plaintiff’s contractor. The final claim was for the expert’s fee of $1,070 paid to HY M&E Consultancy Services Pte Ltd⁷.

Issues to be determined

The issues before the court were as follows:

Issue 1- Was the defendant liable for maintenance fee and sinking fund contributions and interest in the sum of $4,623.48 as per the Statement of Account marked as “A” in the Statement of Claim as at the date of filing of Writ on 13 August 2018?

Issue 2- Was the defendant’s claim for LPS valid in that it was not working well?

Issue 3- Should the defendant succeed in his counterclaim, what would be the quantum of...