Tunas Pte Ltd v Management Corporation Strata Title Plan No 562

JurisdictionSingapore
JudgeBelinda Ang Saw Ean J
Judgment Date08 September 2015
Neutral Citation[2015] SGHC 236
Citation[2015] SGHC 236
Docket NumberOriginating Summons No 505 of 2014
Published date15 September 2015
Hearing Date20 May 2015,29 October 2014,10 September 2014,19 January 2015
Plaintiff CounselCheong Yuen Hee (Y H Cheong) (Instructed) and Peter Pang Giap Oon (Peter Pang & Co)
Date08 September 2015
Defendant CounselLim Chee San (TanLim Partnership)
CourtHigh Court (Singapore)
Subject MatterLand,Land charges,Removal,Management corporation,Strata titles
Belinda Ang Saw Ean J: Introduction

The plaintiff, Tunas Pte Ltd, was at all material times, the subsidiary proprietor of units #27-01 to #27-08 and #28-00 in Hub Synergy Point, a commercial development located at 70 Anson Road, Singapore 079905 (“the Premises”). The defendant, the Management Corporation Strata Title Plan No 562, is the Management Corporation of Hub Synergy Point.

This round of dispute between the parties started after the plaintiff sold the Premises in May 2014. It was common ground that instruments registered as IB24036N and IB31843D were still registered against the plaintiff’s estate and interest in the Premises despite full and final satisfaction of the plaintiff’s indebtedness in 2008. On 9 May 2014, the defendant for the first time claimed that it was owed substantial legal fees in the total sum of $112,176.37 (“the 2014 demand”). This 2014 demand surfaced after the plaintiff informed the defendant about the sale of the Premises on 7 May 2014 and asked that the registered instruments against the Premises be withdrawn or discharged.

On 22 May 2014, the defendant threatened legal action if the 2014 demand was not paid by 29 May 2014.1 The plaintiff rejected the 2014 demand and filed Originating Summons No 505 of 2014 (“OS 505”) on 30 May 2014 to compel, inter alia, the defendant, at its own legal costs, to withdraw or discharge the registered instruments, IB24036N and IB31843D. Subsequently, on 5 June 2014 (ie, after OS 505 was filed), the defendant indicated its willingness to withdraw or discharge three registered instruments, namely, IB24036N, IB31843D and IB484820J (registered on 2 October 2009), if the plaintiff paid the total sum of $20,647.90 being legal fees in connection with the lodgements and the withdrawal and discharge (as the case may be) of all the three registered instruments. On 10 June 2014, the sum of $20,647.90 was paid under protest and upon reservation of the plaintiff’s right to reclaim this payment. At that time, OS 505 had not been listed for hearing and payment was made so as not to hold up the completion of the sale of the Premises.

On 20 May 2015, I made the following orders on the amended prayers in OS 505: The defendant had wrongfully refused to withdraw the Writ of Seizure and Sale registered in the Land Titles Register as IB24036N under s 132 of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”) despite the plaintiff’s demand made on or about 7 May 2014. The defendant had wrongfully refused to discharge the charge IB31843D registered under s 43 of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“the BMSMA”) despite the plaintiff’s demand made on or about 7 May 2014. The defendant was not entitled to payment of $20,647.90 before discharging IB240336N and IB31843D. The defendant to pay costs on a standard basis to be taxed if not agreed.

The defendant has appealed against the orders made on 20 May 2015.

OS 505

The main issue in OS 505 (as amended) was the legal basis of the plaintiff’s claim for re-payment of $20,647.90. Put another way, could the defendant have lawfully demanded payment of legal fees in the total sum of $20,647.90 before taking steps to withdraw or discharge the registered instruments IB24036N and IB31843D? Significantly, the defendant never pursued solicitor and client costs (“S&C costs”) as an additional component of its claims against the plaintiff in 2008. The issue was whether those legal fees were by necessary implication compromised upon full and final satisfaction of the plaintiff’s indebtedness in 2008. Other arguments advanced by the plaintiff were the defence of limitation and the paucity of the material to substantiate the defendant’s claim of $20,647.90.

This Grounds of Decision will discuss the scope of s 43 of the BMSMA in the context of the defendant’s claim for S&C costs as well as the legal character of the management corporation’s resolutions relied upon by the defendant as its basis to make the claim for S&C costs.

The facts The Registered Instruments

The facts are straightforward. I start with the two instruments that were lodged with the Registrar of Titles in 2008: The first instrument, IB24036N, was an Order of Court made on 4 March 2008 to execute on the Premises to satisfy a Judgment in MC Suit No 17644 of 2007/Z (“MC Suit 17644”). That Order of Court was entered as a memorial on the land register following the acceptance of the Application to Register the Order of Court made on 4 March 2008 pursuant to s 132 of the LTA (“the 2008 Memorial”). The second instrument, IB31843D, was a Management Corporation Charge registered pursuant to s 43 of the BMSMA (“the 2008 MCST Charge”).

On 16 September 2009, the defendant lodged a second Management Corporation Charge which was registered as IB484820J (“the 2009 MCST Charge”). Even though the substantive dispute in OS 505 did not relate to the 2009 MCST Charge, the figure of $20,647.90 nonetheless included the legal fees connected with the lodgement and discharge of the 2009 MCST Charge.

Events leading to the 2008 Memorial and settlement on 6 May 2008

On 3 August 2007, the defendant commenced MC Suit 17644 to recover the outstanding contributions and interest levied in relation to upgrading works for the period from March to July 2007.2 The defendant obtained summary judgment against the plaintiff for the total sum of $43,553.70 plus interest and costs on 21 February 2008 (“the February Judgment”).

Thereafter, the defendant obtained a court order to execute against the Premises to satisfy the February Judgment. The ex-parte Summons No 2980/2008 (“SUM 2980”) filed on 3 March 2008 was for an order of execution. On 4 March 2008, an Order of Court to execute on the Premises and the Writ of Seizure and Sale No 1290/2008/D (“the 2008 WSS”) were issued. As stated, the Order of Court of 4 March 2008 was entered as a memorial on the land register under s 132 of the LTA on 18 March 2008 (ie, the 2008 Memorial).3 For present purposes, the parties treated the Order of Court of 4 March 2008 as the 2008 WSS.

On 6 May 2008, the plaintiff through its lawyers, KhattarWong LLP (“KhattarWong”), paid $51,229.82 being the judgment sum, interest and costs inclusive of disbursements fixed at $4,000. Other than the costs and disbursements of $4,000, the defendant did not demand payment of additional legal fees in connection with SUM 2980, the Order of Court dated 4 March 2008, the 2008 WSS and the 2008 Memorial. According to the plaintiff, full payment of $51,229.82 was tendered and received in respect of the March WSS. Reference to the 2008 WSS was understood by the parties to encompass SUM 2980, the Order of Court dated 4 March 2008 and the 2008 Memorial.

KhattarWong’s covering letter dated 6 May 2008 reads:

Central Chambers Law Corporation

150 Cecil Street #16-00

Singapore 069543

Attention: Mr Rajendran Kumaresan

Dear Sirs

WRIT OF SEIZURE AND SALE NO. 1290 OF 2008/D

MC SUIT NO. 17644 OF 2007/Z

RA 39 OF 2008/T

RA 84 OF 2008/Z

We refer to the above matter.

We enclose herewith or firm’s cheque (UOB487720) for the sum of $51,229.82 with respect to the Writ of Seizure and Sale no. 1290/2008/D made payable to your clients pursuant to Judgment entered against our clients.

Our clients reserve their rights to proceed with the appeals with respect to the matter.

Yours faithfully

[signed]

R. NANDAKUMAR

Enc.

cc. clients

After receiving full and final payment of $51,229.82, the defendant, according to the cause papers, filed a Request dated 20 May 2008 directing the Sherriff to release the Premises from the 2008 WSS. However, the 2008 Memorial remained entered on the land register.

Events leading to the 2008 MCST Charge and payment before 17 April 2009

The 2008 MCST Charge was lodged on 21 April 2008 to recover arrears of contributions amounting to $103,641.89. Again, the contributions levied were for upgrading works inclusive of interest from August 2007 to an unspecified date.4

Despite the 2008 MCST Charge, the outstanding contributions were not paid and further contributions levied for upgrading works together with interest continued to accrue. On 25 February 2009, solicitors for the defendants, Rajah & Tann LLP (“Rajah & Tann”) sent a statutory demand for payment of the sum of $181,099.78 being “outstanding contributions … due and payable from [the plaintiff] to [the defendant]”.5

The plaintiff paid the sum of $181,099.78 on 9 April 2009 and its payment voucher dated 9 April 2009 described the sum of $181,099.78 as “payment of outstanding contributions of upgrading works from Aug 2007 to date and including interests [sic]”.6 As the description in the payment voucher made clear, the plaintiff was not required to pay other fees like S&C costs. After receipt of full and final payment of $181,099.78, the defendant discontinued its Company Winding up Petition No 33/2009 (“the CWU petition”) on 17 April 2009. The 2008 MCST Charge was not discharged.

Plainly, the defendant’s intention was to recover $181,099.78 without requiring the plaintiff to pay its lawyer’s fees seeing that Rajah & Tann’s statutory demand did not ask the plaintiff to pay for any legal fees in connection with: (a) the issuance of the statutory demand letter, and (b) the 2008 MCST Charge. In sum, the defendant did not require the plaintiff to pay any legal fees in exchange for full and final payment of $181,099.78. That payment led to the discontinuance of CWU petition with no costs order against the plaintiff.

2014 demand for legal fees

Before completion of the sale of the Premises, on 22 May 2014, the defendant’s solicitors, TanLim Partnership, sent the 2014 demand to the plaintiff’s solicitors, Mak & Partners (representing the plaintiff in the sale of the Premises). A breakdown of the 2014 demand for legal fees is found in the table provided by TanLim Partnership. The table is reproduced here:

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1 cases
1 books & journal articles
  • Land Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • 1 December 2015
    ...court. Lodgment of charge against unit for unpaid contributions 20.29 In Tunas Pte Ltd v Management Corporation Strata Title Plan No 562[2015] 5 SLR 756 (‘Tunas Pte Ltd’), the plaintiff had failed to pay contributions levied in respect of its unit. The defendant, the management corporation,......

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