The Management Corporation Strata Title Plan No. 3175 v K5 Metal Pte Ltd

• Jurisdiction: Singapore
• Judge: Ng Tee Tze Allen
• Judgment Date: 07 August 2023
• Neutral Citation: [2023] SGDC 156
• Court: District Court (Singapore)
• Docket Number: District Court Originating Summons No. 55 of 2018, Summons No 564 of 2023
• Hearing Date: 26 June 2023,07 July 2023
• Citation: [2023] SGDC 156
• Year: 2023
• Plaintiff Counsel: John Lim Kwang Meng and Ng Kai Ling (LIMN Law Corporation)
• Defendant Counsel: Luke Anton Netto and Aylwyn Seto Zi You (Netto & Magin LLC)
• Subject Matter: Civil Procedure,Appeal,Leave,Consent order,Whether an order is a contractual consent order,Jurisdiction,Whether court can set aside or vary contractual consent orders,Inherent powers,Setting aside of judgments and court orders,Whether judgment should be set aside to prevent injustice
• Published date: 01 September 2023

District Judge Ng Tee Tze Allen:

In DC/SUM 3252/2022 (“SUM 3252”) the defendant applied to set aside an order of court dated 22 June 2018 (the “Judgment”) or in the alternative for it to be varied. I dismissed SUM 3252 on 27 February 2023 as I found, amongst other things, that the Judgment was a contractual consent order and the defendant had failed to establish any vitiating factors.

Dissatisfied with my decision, the defendant filed DC/SUM 564/2023 (this “leave application”) for leave to appeal.

Having considered the parties’ submissions, I dismiss the defendant’s leave application. Due to the fresh issues that have arisen, and the length of the defendant’s submissions (comprising 96 pages), I set out my reasons in full below.

Facts The parties

The plaintiff is the management corporation of the strata development known as Enterprise Hub which is located at 48 Toh Guan East Singapore 608586.¹

The defendant is a company that buys and sells scrap metal. It is also the subsidiary proprietor of the strata lot at 48 Toh Guan Road East #01-132 Singapore 608586 (the “Lot”).² The defendant started conducting its business in Enterprise Hub in or around 2015.

Initially, the defendant conducted its business as a tenant of the Lot.³ The defendant had also rented a part of the common property which was located behind the Lot (“Area T”) as part of their business operations.⁴

In 2017, the defendant purchased the Lot.

The defendant started leaving objects on the common property

On the plaintiff’s case, the defendant’s encroachment started as early as 11 March 2017.⁵ According to the plaintiff, the defendant was not supposed to use Area T for storage under its lease. However, not only did it use Area T for storage, it also encroached onto the common property outside Area T. On the plaintiff’s case, it had tried to resolve matters amicably with the defendant over several meetings. However, the defendant persisted in its actions.⁶

This, the plaintiff said, led to it sending a letter to the defendant on or around 29 January 2018 to terminate the tenancy of Area T. The termination took effect on 1 February 2018.⁷

The defendant continued to leave objects in Area T after the lease was terminated. The defendant’s sole director, Mr Robin Kwa, explained that he had “intentionally left objects at the Common Property overnight”. Accordingly, this was “in the early stages” when he was “a little unhappy that the [p]laintiff had terminated the rental agreement for [Area T]”. Mr Kwa was of the view that the plaintiff was “restricting and obstructing the way [the defendant] conducted its business”.⁸

The Plaintiff started DC/OSS 55/2018 to stop the encroachment on common property

On 16 April 2018, the plaintiff commenced DC/OSS 55/2018 (“OSS 55”) for the following: A declaration that the defendant’s placement of objects on the areas of the common property of Enterprise Hub outside of the defendant’s Lot is in breach of Section 63(c) of the Building Maintenance and Strata Management Act (Cap. 30C) (“BMSMA”), the prescribed by-law 3(1) (“Statutory By-Law 3”) in the 2nd Schedule of the Building Maintenance (Strata Management) Regulations 2005 (“BMSMR”) and/or by-laws made by the Plaintiff on 31 October 2009 (collectively, the “Provisions”); An order that: the defendant shall remove the objects from the common property; and the defendant refrains, whether by itself or by its servants, employees and/or agents, from placing its property upon the common property.

I do not propose to narrate the full procedural history of OSS 55. Suffice to state, parties attended before the court twice. Once on 11 May 2018, and a second time on 22 June 2018. The plaintiff was represented by Aequitas Law LLP, whereas Mr Kwa attended for the defendant.

The notes of evidence for the second hearing of 22 June 2018 (the “main OSS 55 hearing”) show that the defendant had already started taking steps to comply with OSS 55 by removing its objects from the common property. However, its Mr Kwa informed that he did not have “enough time [prior to the hearing] to clear everything” and needed “three more days to clear everything”.

Plaintiff’s counsel is then recorded as explaining what the defendant needed to clear and going through the terms of OSS 55. Thereafter, the court asked Mr Kwa if he intended to contest OSS 55. Mr Kwa answered that he did not and asked how much costs were sought. Plaintiff’s counsel answered S$1,000 to which Mr Kwa responded “okay”.

The court then went through the terms with Mr Kwa, who responded by “confirm[ing] [his] agreement” and repeating that the defendant “can remove in three days”. The plaintiff did not take issue with this. Instead, it gave the defendant one week to comply whereupon the court recorded the following consent order: Court: By consent,

OIT (1)

OIT (2)(a) by 29 June 2018.

OIT (2)(b)

Costs fixed at S$1,000 (all-in) payable by the Defendant to the Plaintiff.

On 25 June 2018, the plaintiff extracted the Judgment on the following terms:

Upon the application of THE MANAGEMENT CORPORATION STRATA TITLE PLAN NO. 3175 (UEN No. T07MC3175K) the Plaintiff in this action coming on for hearing this day, and upon reading the affidavit of TEO YEW SING PETER filed on 16-April-2018 and upon hearing the Defendant in-person and counsel for the Plaintiff,

It is ordered that: 1. A declaration that the Defendant’s placement of objects on the areas of the common property (“Common Property”) of the development located at 48 Toh Guan Road East and known as “Enterprise Hub” (“Development”) outside of the Defendant’s strata lot located at 48 Toh Guan Road East #01-132 (“Lot”) is in breach of Section 63(c) of the Building Maintenance and Strata Management Act (Cap. 30C), the prescribed by-law 3(1) in the 2nd Schedule of the Building Maintenance (Strata Management) Regulations 2005 and/or by-laws made by the Plaintiff on 31 October 2009; 2. An order that: a. the Defendant shall remove the objects from the Common Property by 29 June 2018; and b. the Defendant refrains, whether by itself or by its servants, employees and/or agents, from placing its property upon the Common Property.

3. Costs fixed at S$1,000 (all-in) payable by the Defendant to the Plaintiff. The plaintiff’s applications to commit the defendant’s director, Mr Kwa

On the plaintiff’s case, the defendant persisted in placing its objects on the common property even after the Judgment was made. At the most, it would comply with the Judgment temporarily. This led to the plaintiff issuing solicitors’ letters, warnings, and notices to the defendant. When these failed, the plaintiff served the Judgment on Mr Kwa. It then sought leave to, and eventually made three committal applications against Mr Kwa personally.⁹

The first committal application, DC/SUM 1870/2019, was filed on 20 May 2019. On 23 August 2019, the plaintiff withdrew the first committal application.¹⁰

The second committal application, DC/SUM 653/2021, was filed on 15 February 2021. The plaintiff proceeded with the second committal application. On 26 March 2021, the court found Mr Kwa to be in contempt of court. He was sentenced to a fine of S$4,000, and in default four days’ imprisonment for breach of paragraph 2(b) of the Judgment.¹¹

The third committal application, DC/SUM 2990/2022, was filed on 29 September 2022. This committal application is pending.

The defendant’s application to set aside / vary the Judgment

On 17 October 2022 (i.e., about two and a half weeks after the plaintiff filed DC/SUM 2990/2022), the defendant filed SUM 3252 to set aside / vary the Judgment. Specifically, the defendant prayed for the following:

Let all parties concerned attend before the Court on the date and time to be assigned for a hearing of an application by the Defendant for the following order(s):

1. That the Order of Court dated 22 June 2018 made by the learned Magistrate Peter Lo in Chambers in DC/ORC 2085/2018 (“ORC 2085”) be set aside.​ 2. In the alternative to prayer 1, for prayer 2(b) of ORC 2085 to be varied as follows: -

“b. the Defendant refrains, whether by itself of by its servants, employees and/or agents, from placing its property upon the Common Property unless for a reasonable time for the limited purpose of loading and unloading of cargo on and from transportation vehicles".

3. In the alternative to prayer 1 and 2, for prayer 2(b) of ORC 2085 to be varied as this Honourable Court deems fit.​ 4. That pending the disposal of this application, DC/SUM 2990/2022 be held in abeyance.​ 5. Costs of and occasioned by this application be paid by the Plaintiff to the Defendant. 6. Further and/or other reliefs that this Honourable Court deems fit.

I heard SUM 3252 on 26 January 2023. On 21 February 2023, I dismissed SUM 3252 because, broadly speaking,¹² I found that the Judgment was a consent order in the contractual sense, but no contractual vitiating factors were raised; I doubted that I had any residual discretion to set aside / vary a contractual consent order; and In any event, this was not the correct case to exercise any such discretion. Crucially, the discretion to set aside / vary judgments is exercised only if there is a need to avoid injustice. However, I did not think that the defendant had established such a need.

It is this decision that the defendant seeks leave to appeal against.

The defendant’s reasons for seeking leave to appeal

The defendant sought leave to appeal on the following grounds: there is a prima facie case of error of law; there is a question of general principle decided for the first time; and there is a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage.

In respect of the first ground, the defendant submitted that prima facie errors of law arose...