Woon Brothers Investments Pte Ltd v MCST Plan No 461

• Jurisdiction: Singapore
• Judgment Date: 25 August 2011
• Date: 25 August 2011
• Docket Number: Civil Appeal No 153 of 2010
• Court: Court of Appeal (Singapore)

Woon Brothers Investments Pte Ltd

Plaintiff

and

Management Corporation Strata Title Plan No 461 and others

Defendant

[2011] SGCA 43

Chao Hick Tin JA

and

V K Rajah JA

Civil Appeal No 153 of 2010

Court of Appeal

Civil Procedure—Originating processes—Applying to convert originating summons into writ of summons—Whether substantial dispute of facts was likely to arise

Statutory Interpretation—Construction of statute—Presumption that same words were to bear same meaning—Presumption that Parliament could not have intended absurd, unworkable or inconvenient result—Relationship between Act of Parliament and Rules of Court (Cap 322, R 5, 2006 Rev Ed)

A subsidiary proprietor of a building (‘the Appellant’) filed an originating summons (‘the OS’) against the building's management corporation, three of the management corporation's members and the building's developer (‘the Respondents’) . The allegations in the OS included, inter alia, fraud and breach of the obligations imposed upon the Respondents bythe Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) and Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) (‘BMSMA’)

The Respondents denied these allegations. Four of them applied to convert the OS into a writ of summons (‘writ’) under O 28 r 8 and O 5 rr 2 and 4 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘ROC’) . The Appellant resisted this application on the ground that s 124 (1) BMSMA stipulated proceedings which fell within the BMSMA had to be by OS and that being an Act of Parliament, it took precedence over the ROC. An assistant registrar dismissed the application to convert the OS into a writ but she was reversed upon appeal to a judge in chambers. The Appellant then appealed against the judge's decision.

Held, dismissing the appeal:

Jurisdiction issue

(1) An authority empowered by an Act of Parliament to make subsidiary legislation could not make rules or regulations which were inconsistent with that Act or any other Act: at [14].

(2) However, O 28 r 8 could not be said to be inconsistent with s 124 (1) BMSMA. The words ‘application’ (in the latter) and ‘proceedings’ (in the ROC) did not mean the same thing: at [18] and [19].

(3) There was nothing in s 124 (1) BMSMA which indicated Parliament intended to interfere or take away the court's inherent jurisdiction to administer judicial proceedings. If Parliament intended to override O 28 r 8 with s 124 (1) BMSMA, it would have done so explicitly: at [20].

(4) There was nothing in s 124 (1) BMSMA to justify reading ‘shall be by’ as ‘shall be commenced by an OS and shall continue as such until judgment of the court’. That expression should sensibly be construed to mean ‘shall be commenced by’: at [21].

(5) There was a presumption of statutory interpretation that Parliament could not have intended a meaning which could give rise to an absurd, unworkable or inconvenient result. Adopting the Appellant's argument would mean that the courts were required to continue managing a case in a manner which the courts themselves considered to be inexpedient or inconvenient: at [22].

(6) In any event, under s 41 A (2) of the Interpretation Act (Cap 1, 2002 Rev Ed) , it was expressly provided that in respect of an OS or summons so initiated under any written law, the court was empowered to give directions to facilitate the progress of the application. As far as practice and procedure of court were concerned, the ROC would prevail over any inconsistent provision in any such written law. Thus the ROC was expressly accorded precedence over any other written law (including an existing Act) as far as court practice and procedures were concerned. It was clear that an application made by way of an OS under any written law could be converted into a writ action if the court should deem it fit to do so: at [25].

Discretion issue

(7) In order for the court to exercise the discretionary power to convert an OS into a writ under O 28 r 8 (1) of the ROC, the threshold requirement prescribed in O 5 r 2 had to be met, namely, that ‘a substantial dispute of fact is likely to arise’. The applicant for conversion need not show that there would be or there already existed a substantial dispute of fact, so long as such a dispute was likely to arise. This was amply satisfied in this dispute: at [27] and [28].

(8) The Appellant argued that the case could proceed just as fairly and expeditiously by the OS if the court, pursuant to O 28 r 4 (4) , gave directions for the filing of evidence and attendance of deponents for cross-examination on specific areas. Given the range of factual issues that were in dispute, including allegations of fraud, and the number of parties who would be responding to the allegations made against them, the amount of cross-examination whichthe court would have to permit in order to be fair to all parties would effectively render the OS a writ in all but name. The Judge had not erred in exercising her discretion to convert the OS into a writ: at [29] and [32].

[Observation: At [23] of the judge's grounds of decision, she seemed to suggest that only applications made to court under ss 32 (1) , 36 and 76 to 83 BMSMA would fall within s 124 (1) . It would be clear, on a plain reading of s 88, that an application made pursuant to that section would also fall within s 124 (1) : at [26].]

462 Green Lane, Ilford, Re; Gooding v Borland [1971] 1 WLR 138; [1971] 1 All ER 315 (refd)

Hillwood Development Pte Ltd v Mariam binte Amir [1999] SGHC 106 (refd)

Hounslow London Borough Council v Thames Water Utilities Ltd [2004] QB 212 (folld)

Madras Electric Supply Corp Ltd v Boarland (Inspector of Taxes) [1955] AC 667 (folld)

Malaysian International Merchant Bankers Bhd v Highland Chocolate & Confectionery Sdn Bhd [1997] 1 MLJ 102 (folld)

Management Corporation Strata Title Plan No 1786 v Huang Hsiang Shui [2006] SGDC 20 (refd)

R v Central Valuation Officer; ex parte Edison First Power Ltd [2003] UKHL 20 (folld)

Tan Sock Hian v Eng Liat Kiang [1995] 1 SLR (R) 730; [1995] 3 SLR 49 (folld)

Thomas & Betts (SE Asia) Pte Ltd v Ou Tin Joon [1998] 1 SLR (R) 380; [1998] 1 SLR 913 (distd)

Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) s 124 (1) (consd) ;ss 32 (1) , 36, 53, 76-83, 88

Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) s 74 (2)

Interpretation Act (Cap 1, 2002 Rev Ed) ss 41 A (1) , 41 A (2) (consd) ;ss 19, 19 (c) , 41 A, 41 A (2) (b) , 41 A (2) (c)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 5 r 2, O 28 r 4 (4) , O 28 r 8 (1) , O 28 r 8 (3) (consd) ;O 5 r 3, O 5 r 4, O 28 r 4, O 28 r 8, O 41 r 5

Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) s 121

Land Titles (Strata) Act (Cap 158, 2009 Rev Ed)

Statutes (Miscellaneous Amendments) (No 2) Act 2005 (Act 42 of 2005)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Nicholas Lazarus (Justicius Law Corporation) for the appellant

Boo Moh Cheh (Kurup & Boo) for the first respondent

Philip Fong, Justin Chia and Kylie Peh (Harry Elias Partnership LLP) for the second to fifth respondents.

Chao Hick Tin JA

(delivering the grounds of decision of the court) :

Introduction

1 This appeal arose out of an originating summons (‘the OS’) taken out by a subsidiary proprietor of a unit within the building known as ‘International Plaza’ against the building's management corporation, three of the management corporation's members and the building's developer. The latter four respondents applied to convert the OS into a writ of summons (‘the writ’) but their application was dismissed by an assistant registrar (‘AR’) . However, the AR's decision was reversed upon appeal to a judge in chambers (‘the Judge’) . This appeal was from the Judge's decision which we heard and dismissed on 11 April 2011. As the procedural questions raised in the appeal are of some general interest, these grounds are accordingly issued.

Background

2 Woon Brothers Investments Pte Ltd (‘the Appellant’) is the subsidiary proprietor of Unit #46-15 in International Plaza, 10, Anson Road, Singapore 079908 (‘the Building’) . It filed the OS against the respondents. The respondents in this Appeal are the defendants in the OS. Management Corporation Strata Title Plan No 461 (‘the First Respondent’) , a body corporate established under the Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) (‘the Strata Act’) , consists of the subsidiary proprietors of all the units in the Building. It is the function of the First Respondent to manage the Building. The executive body of the First Respondent is the Council. Its members are elected by the subsidiary proprietors from among themselves as provided in s 53 of the Building Maintenance and Strata Management Act (Cap 30 C, 2008 Rev Ed) (‘the BMSMA’) .

3 The second to fifth respondents applied to convert the OS into a writ. Cheong Keng Hooi (‘the Second Respondent’) , Cheong Hooi Hong (‘the Third Respondent’) and Cheong Sim Lam (‘the Fourth Respondent’) are brothers and at the material time were members of the Council. The Third Respondent was the Chairman of the First Respondent. By the time the OS was instituted, the Fourth Respondent had ceased to be a member of the...