Yap Sing Lee v Lim Tat and others

• Jurisdiction: Singapore
• Judge: Loo Ngan Chor
• Judgment Date: 18 August 2017
• Neutral Citation: [2017] SGDC 233
• Court: District Court (Singapore)
• Docket Number: DC Suit No. 266 of 2011, District Court Appeal No. HC/DCA 11 of 2017, District Court Appeal No. HC/DCA 12 of 2017
• Year: 2017
• Published date: 24 March 2018
• Hearing Date: 28 October 2016,17 July 2017,21 March 2016,15 November 2016,26 October 2016,30 June 2017,27 October 2016,17 February 2017,20 June 2017,14 November 2016
• Plaintiff Counsel: Mr N Sreenivasan, S.C./ Ms Valerie Ang/ Ms Vithyashree/ Ms Tan Xin Ya (M/s Straits Law Practice LLC) -
• Defendant Counsel: Mr Martin Roderick Edward, S.C./ Mr Joseph Lau/ Mr Lau Wen Loong (M/s RHTLaw Taylor Wessing LLP) -
• Subject Matter: Libel,Natural and ordinary meaning - Justification,Qualified Privilege,Right of reply privilege,fair comment,express malice - damages
• Citation: [2017] SGDC 233

District Judge Loo Ngan Chor: Introduction:

This case involved a claim in libel between the plaintiff, a resident of the condominium known as Yong An Park (“the condo”), and members of the 19th management council (“the MC”) of the MCST. I could use the condo shorthand interchangeably to refer to the MCST of the condo even as I shall be using the MCST shorthand. The plaintiff had withdrawn his claim against the 1st defendant. Of the defendants that remained, the 4th, 6th to 9th defendants (“the counter-claimants”) have a counter-claim against the plaintiff, also for libel.

March 2006 was the start of the tumult that led to these cross-claims that reached across more than half a decade. It was about the time when the plaintiff bought his penthouse unit at Block 327 #25-01 in the condo and the time that the MC took office.

The plaintiff claim is based on the MC’s “special edition” newsletter in March 2007.¹ This was about the time when the MC would cease office following what would be the elections at the 20th annual general meeting of the condo on 31st March 2017.

The counter-claimants’ claim arose from seven open letters that the plaintiff sent to residents of the condo on 6th February 2010², 20th February 2010³, 10th April 2011⁴, 17th February 2012⁵, 7th June 2012⁶, 12th October 2012⁷ and 6th February 2013⁸. For ease of reference, these open letters are annexed to this judgment.

After the instant suit was commenced by the plaintiff, Mr Lim Tat (named as the 1st defendant in this suit, but against whom the plaintiff withdrew his claim), the 2nd, 3rd and 5th defendants in this suit, commenced Suit No. 112/2013 in the High Court against the plaintiff for defamation arising from his said letters and the six resolutions he had preferred at the 20th AGM. The plaintiff settled the High Court suit by accepting and agreeing to pay Mr Lim Tat and his co-plaintiffs, ie, the 2nd, 3rd and 5th defendants in this suit, $200,000 (collectively) and $30,000 in legal costs. Mr Lim Tat and his co-plaintiffs circulated a letter dated 6th February 2014 recording the settlement of the High Court suit to the residents of the condo.⁹

Following this settlement, the counter-claimants mounted their counter-claim in this suit.

On 20th June 2017, I found for each side in respect of his/their claim and counter-claim.¹⁰ After further written submissions, I made my decision on damages on 17th July 2017.¹¹

The plaintiff has not appealed. The 2nd to 7th and 9th defendants have appealed against my decision on liability.¹² The 8th defendant has not appealed that decision.

All of the counter-claimants, including the 8th defendant as counter-claimant, have appealed against my decision on damages.¹³

This grounds of decision is thus confined to explaining why I found for the plaintiff and the quanta of damages that I awarded in favour of the plaintiff ($45,000), on the one hand, and the counter-claimants ($3000 each) on the other hand.

The background facts:

I first set out the background facts. I do this by substantially taking a leaf out of the defendants’ summary as usefully set out in their closing submissions.

Gross floor area:

As these facts are long in the narrating, I would provide a quick sketch in this paragraph about the condo. Broadly speaking, the underlying differences had to do with the gross floor area of the condo. The condo was completed in 1986. The condo had 288 units and included eight townhouses and 16 penthouses. It was built to full development intensity before the Urban Redevelopment Authority (“URA”) introduced in 1989 the land planning tool known as gross floor area (“GFA”). Each building development has a GFA limit. With the introduction of the GFA, the condo had “excess or ‘unconsumed’ GFA. As of 1996, [the condo] had a paid-up GFA of 82,593.028 sq m. However, only 80,041 sq m had been utilised, leaving an excess GFA of 2552.028 sq m.”¹⁴

URA Written Permission 1996:

On 25th September 1996, the MCST (“the MCST”) of the condo applied to the URA for approval for the penthouses and townhouses to convert their roof terraces to family halls. The URA issued its written permission on 22nd November 1996 (“1996 WP”), which would expire in two years.¹⁵ With this application, the condo was deemed to have incurred additional GFA of 1034.94 sq m (see [38] below). It appears that, for all practical purposes for the condo, and certainly for the plaintiff’s roof terrace, this accrued GFA could not be clawed back (see [39] and [42], particularly the latter, below). A plot ratio calculation exhibit¹⁶ dated 25th September 1996 speaks of a “proposed residential GFA” of 81,075.94 sq m compared to the “previous approved GFA” of 80,041 sq m. The difference between these two numbers works out to 1034.94 sq m.

In the event, it seems that none of the properties concerned was given approval by the MCST to carry out the additions and alterations which were the subject of the 1996 WP.¹⁷ This apparently zero take-up was partly because some relevant property owners did not wish to sign a deed of undertaking required by the then management council to have a uniform design for the roof terrace enclosure.

Block 331 #15-01 (another penthouse unit):

The MCST was copied a letter dated 3rd June 2004¹⁸ from the URA to the architect to the owner of Block 331 #15-01. This penthouse unit was a recurring theme in this case for the defendants. By this letter, the URA rejected the owner’s appeal to waive its “requirement for the owner to declare that the subsidiary owners of condominium development has no objection to the development potential and baseline being consumed by the retention proposal. This is because the development potential and baseline are tied to the land and hence belong to the subsidiary proprietors collectively.” This unit was mentioned in the offending newsletter at paragraph 9, at [33] below.

The plaintiff’s A&A application:

On 11th August 2006,¹⁹ the plaintiff’s architect wrote to the condo manager “to revalidate” the 1996 WP because he proposed to enhance the existing staircase leading to the roof garden, which would have resulted in itself in additional GFA, but “to reduce the approved family hall area” on the roof so as to compensate for the staircase GFA. The architect said that overall, “there will not be any increased (sic) in GFA or increased (sic) in plot ratio for the whole development.”

The MCST understood the plaintiff’s application as just described in the foregoing paragraph.²⁰

By its reply of 4th September 2006,²¹ however, the condo manager took the position that the MC was “unable to approve any application … which affect the GFA of [the condo]. This is in accordance with … by-laws. The said by-laws also states that it shall be the onus of the subsidiary proprietor to obtain written confirmation from the relevant statutory body that any proposed works does not affect the GFA of [the condo].”

The plaintiff’s architect having also applied to the URA on 3rd September 2006 for the proposed additions and alterations, the URA’s reply of 2nd October 2006²², called an “advice”, signed by Mr Clement Lim, stated that “new GFA [was] created due to the enlarged staircase which would cause the overall GFA of the development to increase”. This being the case, the URA required written confirmation by the MC that a 90% resolution of the MCST had been passed approving of the plaintiff’s proposed renovation works.

A site meeting was arranged for URA’s Mr Clement Lim to inspect the plaintiff’s roof terrace on 29th October 2006. Mr Lim found a Perspex roof on the roof terrace, which conformed to the dimensions approved by the URA in 1996.

URA’s approval for the plaintiff’s works:

This being the case, Mr Clement Lim wrote an email on 30th October 2006 to the plaintiff’s architect in which he indicated that there was no issue involving GFA, in the following terms:

There will be no further Advice issue, and this email can be forwarded to the MCST to inform them that URA has no issue with GFA since there is existing GFA from the approved roof terrace structures which you can offset from to secure the GFA for your proposal.

You will simply need to obtain MCST’s endorsement in your resubmission to the Advice, to show us that MCST approves of the A/A works.

The plaintiff’s architect followed up on the URA’s advice by writing another letter to the MCST for its endorsement for the architect’s re-submission to the URA.

Further communications with the condo:

The plaintiff had further communications with the condo manager, which were unavailing.

The MC, or the defendants as the case may be, had understood the URA’s Mr Clement Lim’s position to mean that “consumption of GFA had already taken place by that existing roof, quite apart from the fact that MCST approval [for it] was not obtained.”²³

Stated differently, and with a few important details, the plaintiff in his email of 17th November 2006,²⁴ said this:

We had invited the approving authority, Mr Clement Lim of URA, to have a site visit on 29th October 2006 and raised the point that at the time of the approval for the “Family Area” for all the penthouses within our condo in 1996, any form of roof covering the trellis area (“Family Area”) would have consumed GFA and since there is an existing Perspex roof covering the entire roof structure of the trellis, the approval for the “Family Area” which involved additional GFA has already been consumed and utilized, therefore the issue of lapsed approval do not arise. Subsequently Mr Clement Lim had confirmed that since my unit’s structure was partially completed, the area is considered GFA and therefore we can offset our proposed a/a from the available unit GFA resulting in a net 0 (zero) GFA increment.

In the plaintiff’s email of 24th November 2006²⁵, he stated that he was told by the condo manager “that the MC will refer my...