2 After the evidentiary hearing before me, the parties agreed to try and mediate their differences at the Singapore Mediation Centre (the “SMC”). Unfortunately the mediation failed to reach any settlement. ¹ The parties did not contact the SMC after the mediation, and no further mediation has since been scheduled.

3 I gave oral judgment with brief grounds on 1 December 2016. The second and fourth plaintiffs have appealed, and I now set out the full grounds for my decision.

4 The management corporation of the Development is Management Corporation Strata Title Plan No 1024 (“MCST 1024”). The Development comprises 19 units, 11 of which are in Block 53 and 8 are in Block 51. ² Block 53, the older block, was completed in 1981. Block 51 was completed in 1986. ³

7 The first to fifth plaintiffs, who are the SPs of units in Block 53, ⁴ filed Originating Summons No 283 of 2012/V (“OS283/2012”) on 16 March 2012 in the High Court seeking various declarations that the Defendant had breached his duties as chairman, and an account of sums that the Defendant had improperly caused MCST 1024 to incur. On 17 April 2012, the parties agreed that the proceedings be converted to and continue as this Suit. ⁵ The first to fifth plaintiffs then filed their statement of claim (the “SOC”) on 8 May 2012, which was subsequently amended and re-filed on 11 October 2013.

8 On 2 November 2012, the Defendant commenced third party proceedings against the first to fifth third parties seeking, in the event that the first to fifth plaintiffs succeed in any of the reliefs that they sought against the Defendant, (i) contribution and/or indemnity and/or corresponding declarations in respect of the first to fourth third parties; and (ii) a declaration that the fifth third party has been enriched by the works and is not entitled to any restitution. ⁶

10 On 19 February 2014, the first, third, and fifth plaintiffs discontinued their action against the Defendant, and agreed to pay costs fixed at $12,000.00 to him. The Defendant, too, discontinued his action against the second, third, and fourth third parties, with no order as to costs. These discontinuances were without liberty to commence fresh proceedings relating to the respective cases as pleaded in the SOC and the Defendant’s Statement of Claim against the Third Parties (the “3PSOC”). ⁷

(a) First, he caused MCST 1024 to undertake the 62 items of works set out in the Annex to the SOC without having been authorised by the SPs to do so. ⁸ I set out these works at [168]–[178] below, and refer to them as the “Annex A Works”.

(b) Secondly, he favoured the SPs in the Mok Camp in relation to nine items of works. These works were performed on the common property adjacent to the units owned by the Mok Camp, and were “far superior and more extensive” than the corresponding works applied to the common property adjacent to the units owned by the SPs in the Plaintiffs’ Camp. ⁹ For convenience, I refer to these nine items of works as the “Annex B Works”, and note that there is some overlap between the Annex A Works and the Annex B Works.

(c) Thirdly, he appointed Mun Hean Asia Pte Ltd (“MH Asia”) as the managing agent of MCST 1024 without having been authorised to do so and without disclosing his pecuniary interest in MH Asia. ¹⁰

(a) Whether the expenses for the disputed works had been approved or authorised by the Council or the general body of MCST 1024;

(b) Whether the disputed works were upgrading works or routine maintenance works;

(c) Whether the Defendant was in control of the Mok Camp;

(d) Whether the decision to proceed with the disputed works was made by the Defendant;

(e) Whether the expenses for the disputed works had been properly budgeted for and approved by the general body, and/or properly ratified subsequently;

(f) Whether MH Asia had been appointed as managing agent of MCST 1024 and if so, whether they had been properly appointed;

(g) Whether the Defendant was in breach of s 60 of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”) in appointing MH Asia without declaring his pecuniary interests; and

(h) Whether the Defendant had failed to act in the best interests of all the SPs of MCST 1024 in relation to the disputed works.

14 Notwithstanding the strange characterisation of the above issues as “ancillary” (which means something that is auxiliary, supplementary, subsidiary, subordinate or additional), the answers to the issues at (a), (b), (d), (e), and (h) determine whether the Defendant is liable to MCST 1024 for the funds spent on the Annex A Works and whether the Defendant misused and exceeded his powers as Chairman. Also, for reasons that I will come to subsequently, whether the Defendant is “in control” of the Mok Camp (at (c) above) is irrelevant when all the SPs in the Mok Camp stood behind the Defendant and voted accordingly. Many of these SPs also gave evidence before me.

(i) The undertaking of the Annex A Works was authorised by the SPs, whether by the custom in MCST 1024 of the SPs consenting to works without a formal resolution, ¹¹ or by the discussion of the works at the 24th AGM at which the Plaintiffs were present and raised no objections to them. ¹²

(ii) Further, the undertaking of the Annex A Works was within the authority of MCST 1024 to maintain and keep the Development in good and serviceable repair (“repair and maintenance”), and the expenditure on the works had always been approved by the Council. ¹³

(iii) In any event, MCST 1024 had at its 27th AGM ratified the Annex A Works. ¹⁴

(i) Some of the Annex B Works could not have been performed because the common property on which they were said to have been performed does not even exist. ¹⁵ Others were necessitated by the different characteristics and layouts of Block 51 and Block 53, ¹⁶ and the different times at which the works were performed on each building. ¹⁷

(ii) In any event, the SPs in the Mok Camp had paid for any differences between the costs of the Annex B Works, and the costs of the corresponding works applied to the common property adjacent to the units of the SPs in the Plaintiffs’ Camp. ¹⁸

(c) In relation to the appointment of MH Asia, MH Asia was engaged on a temporary basis to provide MCST 1024 with the same book-keeping and administrative services that had previously been provided by Mun Hean Realty Pte Ltd (“MH Realty”), which was wound up in June 2009. MH Asia was paid the same rate of remuneration as MH Realty. All the members of the Council and all the SPs knew or ought to have known that the Defendant was a director of both MH Realty and MH Asia. None objected when informed about MH Asia’s appointment on or around 5 August 2009. ¹⁹

16 In the 3PSOC, the Defendant pleads further that if the Plaintiffs obtain the reliefs sought against him, he is entitled to contribution and/or indemnity and/or corresponding declarations against KL Tan and MCST 1024 in respect of the Plaintiffs’ claims. He explains: ²⁰

(a) The Annex A Works were carried out pursuant to decisions made by the 23rd and 24th Councils. KL Tan was a member of these Councils and he agreed to or acquiesced in the Council’s carrying out of these works. ²¹

(b) If the Annex A Works and Annex B Works were wrongful, KL Tan was in breach of his trust and/or fiduciary duties in allowing or consenting to the carrying out of them. He was also in breach of his duties to act diligently in failing to obtain the requisite approvals for the Annex A Works, and in failing to ensure that the SPs in the Mok Camp had provided an account of the payments that they made on account of the Annex B Works. ²²

(c) If MH Asia was appointed as managing agent wrongfully, KL Tan was in breach of his duties as a member of the Council in failing to object and thereby impliedly consenting to such appointment. ²³

(d) MCST 1024 obtained the benefit of Annex A Works and the Annex B Works, and of the administrative services provided by MH Asia. ²⁴

17 KL Tan denies that the 23rd or 24th Councils had approved either the Annex A Works or the Annex B Works. The sole Council meeting during that period was held only to propose an increase in the maintenance and sinking fund contributions of each SP. ²⁵ Further, the body of SPs in general meeting did not authorise the works. Instead, KL Tan had in a letter to the Defendant on 25 May 2009 objected to the works “when he realised that they were not budgeted for”. ²⁶ The Defendant had unilaterally decided to use the management and sinking funds to undertake the works. KL Tan did not consent or agree to his doing so. ²⁷

18 The second plaintiff, In-Lite Enterprise (S) Pte Ltd, has been the SP of unit #03-01 of Block 53 since 1996. It was represented in its dealings in MCST 1024 by KL Tan and his wife, Sarah Tham, ²⁸ both of whom are directors of the second plaintiff. ²⁹ Sarah Tham gave evidence on behalf of it, while KL Tan gave evidence qua first third party. However, Sarah Tham accepted that, from 1996 to 2009, the second plaintiff was represented exclusively by KL Tan. She attended neither general meetings nor Council meetings, and was not familiar with the events during that period. ³⁰

19 The fourth plaintiff, Poh Kim Video Pte Ltd, has been the SP of unit #03-03 of Block 53 since 1997. It was represented in its dealings in MCST 1024 by CY Lim, ³¹ who gave evidence on its behalf in these proceedings.

21 As witnesses, all of them came across as being fairly truthful. I found that the Plaintiffs genuinely felt aggrieved with what they perceived as unfair governance of the affairs of MCST 1024 and the Development. I found the Defendant a very focussed and deep thinking person, but who was also very quietly wilful and stubborn. He strongly believed that he took on a task of running the management corporation when no one was interested in doing so and was very annoyed when he was being challenged after years of service. The trouble started when the Urban Development Authority (“URA”) issued a circular dated 7 July 2008 on the alternative land use for the industrial cluster at Jalan Ampas, ³⁶ which included the Development. This paved the way for a potential en bloc sale of the Development with a change of user. However, it is alleged that the Defendant was not in favour of the sale. I pause to note that even if that was the case, he was entitled to take that view as a SP. His resolve to keep the control of MCST 1024 within the Mok Camp hardened thereafter. All the witnesses believed in what they said, but at times, that was simply their perception of the events. I therefore have to be guided more by the objective evidence before me.

22 In addition, the Plaintiffs called Mr James TM Loo (“Mr Loo”) and the Defendant called Mr Leslie Harland (“Mr Harland”) as expert witness. The expert witnesses put forward a joint statement, in lieu of a joint report. ³⁷ I found the expert evidence to be of limited assistance. As set out in the joint statement produced by the experts:

(a) It was difficult to make any meaningful comparisons in their respective reports because the instructions received by each expert was substantially different from the other.

(b) For example, Mr Loo’s report concerns the cost differences between the standard of works at Block 51 as compared to Block 53 whereas the focus of Mr Harland’s report concerns the reasonableness (or otherwise) of the costs incurred in undertaking the works.

What I note is that Mr Loo agreed with the findings of Mr Harland’s report and accepted the costs in carrying out the work was reasonable. Other than that I found the experts’ evidence was of little help for the issues I had to decide; they could not really be blamed for this due to their instructions and nature of the evidence put before them.

23 The Defendant was first elected Chairman of the Council at the 7th AGM of MCST 1024 on 30 September 1991. ³⁸ Thereafter, he was re-elected as Chairman at every AGM up to (and including) the 26th AGM on 6 October 2010. ³⁹

24 I start with the 23rd AGM, which was held on 2 October 2007. ⁴⁰ At that AGM, the Defendant informed the SPs of the need to raise the driveway and the culvert at the main entrance to the Development along Kim Keat Road, and to build a boundary wall to replace the existing perimeter fencing. The former was necessitated by soil settlement and the fact that the roads leading to the Development had been raised, while the latter was designed to improve safety and aesthetics. The general meeting “unanimously accepted the propos[al] of the above works”, ⁴¹ which were then carried out. I pause to mention that Counsel for the Plaintiffs, Mr Leo Cheng Suan (“Mr Leo”), confirmed that the statement in the minutes that “[t]he Council” unanimously accepted the proposal was erroneous ⁴² and should have stated “the general body” (ie, the general meeting).

25 On 20 November 2007, the Defendant sent a circular to all the SPs informing them that “[t]he lift lobbies and toilet facilities [at both Block 51 and Block 53] are due for upgrading”. ⁴³ These works commenced in June 2008, and were completed by October 2009. ⁴⁴

26 The 24th AGM was held on 9 October 2008. ⁴⁵ The Defendant updated the SPs on the progress of the works, and informed them that the five items of works had been “carried out and completed”. ⁴⁶ This is recorded at Point 5 of the minutes of the 24th AGM:

The SPs resolved to increase the management and sinking fund contributions by 20% and 10% respectively. Thereafter, the Defendant was re-elected as Chairman. ⁴⁷

27 Some five months later, on 12 March 2009, the SPs of units on the third and fourth floors of Block 53 filed OS300/2009 to determine, inter alia, whether the common corridors and toilets on the third and fourth floors of Block 53 came under the care of MCST 1024. These corridors and toilets were demarcated as common property. Over the years, however, these SPs had been made to pay additional sums, which were over and above their contributions to the maintenance and sinking funds of MCST 1024, to maintain these corridors and toilets. The Defendant, as Chairman, had taken the rather strange position that these corridors and toilets fell outside the care of MCST 1024 because “this arrangement was there from the start”. ⁴⁸ This issue was resolved just over a year later on 12 April 2010 (ie, after the two-tranche 25th AGM on 5 October and 4 November 2009), when the High Court ruled that these corridors and toilets were part of the common property of the Development, and ordered MCST 1024 to reimburse the applicant-SPs the expenses that they had incurred over the years in maintaining, repairing and renovating the areas. ⁴⁹

28 On 22 May 2009, the Council met at a coffee-shop and voted, by a majority, to increase the monthly maintenance and sinking fund contributions by 5% with effect from June 2009. KL Tan and Amy Tay voted against this proposal. In addition, the Defendant requested that the SPs pay two months’ maintenance and sinking fund contributions in advance, and the majority of the Council supported this request. ⁵⁰

29 Between 8 and 11 June 2009, various SPs in the Plaintiffs’ Camp wrote to the Defendant questioning the works and stating that they would not be making the advance payments of the maintenance and sinking fund contributions that the Defendant had requested. These SPs included the second plaintiff (represented by KL Tan), Hock Guan Cheong Builder Pte Ltd (represented by Amy Tay), LCE Engineering Pte Ltd (represented by AC Tan), and CKT Thomas Pte Ltd (represented by one Steven Teo). The Defendant replied that the advance payments were necessitated by a “shortage of funds … due to the upgrading/renovation works which have been completed ahead of schedule”. ⁵¹

30 Over June and July 2009, KL Tan (on behalf of the second plaintiff) and other SPs in the Plaintiffs’ Camp corresponded with the Defendant on the expenses for the works. The former considered the expenditures on the works irregular and excessive, while the latter maintained that the works were approved at the 24th AGM. ⁵²

31 On 31 July 2009, the Defendant wrote to KL Tan (in the latter’s capacity as the Secretary of MCST 1024) pointing out that members of the Council had been actively involved in the upgrading works for the past two years. The Defendant expressed his surprise at KL Tan’s “sudden interest” in the works, and stated that some of KL Tan’s questions were “frivolous”. ⁵³

32 On 5 August 2009, the Defendant informed the SPs and the members of the Council that MH Realty, which provided administrative services to MCST 1024, had been wound up in June 2009. Further, MH Asia had taken over the provision of these administrative services “temporarily”. The Defendant also “appeal[ed] to anyone eligible and interested in taking over the works” to contact MCST 1024. ⁵⁴

33 On 8 August 2009, the SPs in the Plaintiffs’ Camp wrote to object to the appointment of MH Asia, and proposed that an external managing agent be appointed to run MCST 1024 instead. ⁵⁵

34 On 25 August 2009, KL Tan, Karen Ang, Amy Tay, and AC Tan (in their capacities as members of the Council) sent a written reply to the Defendant. They stated that they were “not given any opportunity to involve or participate in the upgrading work and were not even furnished with details on planning, design, pricing, types of materials and fittings etc”. They added that “the upgrading work was [the Defendant’s] unilateral decision and was not budgeted, voted and/or approved via the proper procedure”. ⁵⁶

35 The 25th AGM was held on 5 October 2009 with all SPs represented. ⁵⁷ A motion was tabled to ratify the upgrading expenditures up to an amount of $530,000. This was objected to by the representative of the third plaintiff, Lim Heng Hoe (“HH Lim”). A committee comprising representatives from both the Plaintiffs’ Camp and the Mok Camp was then set up to “go through the upgrading expenses” (the “Audit Committee”). The six members of the Audit Committee were CK Loo, WC Mok, AC Tan, Ong Lye Chun (“LC Ong”), Tan Han Yong (“HY Tan”), and Sunny Yu. ⁵⁸ The 25th AGM was then adjourned for a month “to settle the outstanding matters”. ⁵⁹

36 The 25th AGM resumed on 4 November 2009 with all SPs represented. ⁶⁰ The Defendant, in his capacity as Chairman, noted that only AC Tan, CK Loo, and WC Mok of the six-member Audit Committee had submitted “their findings regarding expenses on the upgrading works”. HY Tan then commented that “copies of the bills handed to him for auditing purpose were marked ‘Confidential’ which prevented him from delegating the auditing work to others”. LC Ong stated that he “has not completed the auditing report”. Sunny Yu, while present at this meeting, does not appear to have made any remarks on his findings qua member of the Audit Committee. ⁶¹ The SPs did not manage to resolve the issue of the upgrading expenditure; HH Lim is recorded as having “proposed that the [A]uditing [C]ommittee meet up and ratify the issue on the upgrading expenses”. Thereafter, the meeting concluded with the election to the Council of four members of the Mok Camp and one member of the Plaintiffs’ Camp, with the remaining seats unfilled. ⁶²

37 Of the four members of the Mok Camp voted into the Council at the 25th AGM, two had been nominated by the SP of #01-00 of Block 53, Mun Hean Singapore Pte Ltd (“MH Singapore”), who is in the Mok Camp. This exceeded the number of nominees that MH Singapore was entitled to put up for election, and was in breach of s 53 of the BMSMA. One of MH Singapore’s nominees who had been elected to the Council resigned almost immediately after the 25th AGM in the hope of rectifying the defect. Nevertheless, various SPs in the Plaintiffs’ Camp applied to the STB in STB79/2009 to invalidate the election of all the Council members at the 25th AGM. The STB found that the error had been inadvertent and did not prejudice any of the SPs. It thus dismissed the application and awarded costs of $20,000 to the respondents. ⁶³

38 On 30 November 2009, LC Ong “on behalf of” AC Tan and HY Tan submitted their report on “Upgrading Expenses on Building Work-Done during the financial year ended 30 June 2009.” They made three observations: First, they opined that “the materials, fittings & fixture and work-done were generally not carried out in a uniform standard for common property in the [D]evelopment”, and suggested that “MCST 1024 should appoint a Quantity Surveyor to assess on the costs of the work done”. Secondly, they opined that the pricing for the works from two contractors, Kian Wah Contract Pte Ltd (“Kian Wah”) and Mod Creations Pte Ltd (“Mod Creations”), “were on the high side”, and that “the cost of boundary wall at approximately S$60,000.00 was high”. Thirdly, they stated that two bills from Kian Wah were omitted from the presentation on upgrading expenses at the 25th AGM on 5 October 2009, and “[a]s such, the Upgrading Expenses of $475,708.[44] … is not correctly presented”. ⁶⁴

39 On 5 March 2010, LC Ong wrote to the Defendant asking for the “‘As-Built’ drawings and inventory lists for the upgrading works”. ⁶⁵

40 The 26th AGM was held on 6 October 2010 with all SPs represented. In light of the ruling in OS300/2009 (see [27] above), the Defendant tabled a motion to upgrade the toilets on the third and fourth floors of Block 53, and another motion to increase the management and sinking funds to meet the expenditures for the upgrading works on, inter alia, these toilets, the driveway, and the drainage system of the Development. This motion was defeated because all the SPs in the Plaintiffs’ Camp voted against them. Another motion to adopt the audited financial reports for the financial year (“FY”) ended 30 June 2010 (ie, FY2010) was also not passed after Sarah Tham expressed the view that these reports “could not be adopted (passed) as the previous year’s audited statement was not adopted and this could have an effect on the status of current statement”. Once again, all the SPs in the Plaintiffs’ Camp voted against this motion. ⁶⁶

41 On 22 July 2011, various SPs in the Plaintiffs’ Camp requisitioned an Extraordinary General Meeting (“EGM”) to remove the Defendant as Chairman of MCST 1024 and to elect a new Chairman. ⁶⁷

42 The Council met on 5 August 2011 to discuss the requisition. During the meeting, the Defendant stepped down as Chairman and was replaced by his son, Dr Mok Wai Hoe (“Dr Mok”). ⁶⁸ The Defendant retained his position on the Council, ⁶⁹ on which he continued to serve. ⁷⁰

43 On 5 September 2011, an EGM was convened to consider a motion of no confidence in the Defendant as Chairman. Dr Mok ruled the motion out of order because “a new Chairman had already been elected”, and closed the EGM. ⁷¹

44 The 27th AGM was held on 6 September 2011 in the meeting room of a hotel. The SPs split into two groups along the lines of the Mok Camp and the Plaintiffs’ Camp, and each group held a separate meeting. Dr Mok chaired the meeting of the Mok Camp (the “Mok Meeting”), while CY Lim chaired the meeting of the Plaintiffs’ Camp (the “Plaintiffs’ Meeting”). ⁷²

45 On 26 September 2011, MH Singapore applied to the STB in STB78/2011 to invalidate various motions passed at the Plaintiffs’ Meeting. STB78/2011 was eventually decided on 18 February 2013. The STB declared that the Mok Meeting was the legitimate meeting and that the Plaintiffs’ Meeting was invalid. The STB also found that the elections at the Plaintiffs’ Meeting of the Council, and of CY Lim as Chairman, were invalid. ⁷³

(a) First, on 8 November 2011, the SPs in the Plaintiffs’ Camp purportedly held an EGM, and directed MCST 1024 to initiate legal proceedings against the Defendant for using the management and sinking funds without authority. MH Singapore applied to the STB in STB93/2011 to invalidate these resolutions. By consent, the hearing of STB93/2011 was held in abeyance until STB78/2011 was decided. After the decision in STB78/2011, MH Singapore withdrew STB93/2011.

(b) Secondly, on 21 June 2012, various SPs in the Plaintiffs’ Camp applied to the STB in STB50/2012 to invalidate the appointment of Dr Mok as Chairman on 5 August 2011 as well as the election of the members of the Council at the Mok Meeting. By consent, the hearing of STB50/2012 was held in abeyance until STB78/2011 was decided. After the decision in STB78/2011, the applicant-SPs withdrew STB50/2012.

47 The 28th AGM was held on 26 November 2012. None of the SPs in the Plaintiffs’ Camp attended this meeting, which proceeded with only the SPs in the Mok Camp present. The meeting adopted the financial statements of MCST 1024 for FY2012, as well as the interim financial report for the period from 1 July 2012 to 31 July 2012. ⁷⁴

48 On 23 April 2013, ⁷⁵ various SPs in the Plaintiffs’ Camp requisitioned an EGM to pass, inter alia, the following motions, which were subsequently ruled out of order by Dr Mok, who chaired the EGM when it was eventually held on 5 June 2013: ⁷⁶

(a) Motion 1: that two matters be determined by a general meeting of the SPs: (i) the “appointment of legal representatives” to defend MCST 1024 in this Suit; and (ii) the “appointment of any contractors or consultants or professional which costs or fees exceed $500 in total”.

(b) Motion 3: to revoke various resolutions “passed at the 26th and/or 27th [AGMs]”: (i) the “ratification of the Upgrading Work Expenses of about S$530,000 or any other sum”, and (ii) the “adoption of all Financial Reports ended 30 June in years 2009, 2010, 2011 and 2012 and the interim Financial Report from 1 July 2012 to 31 July 2012”.

(c) Motion 8: to direct MCST 1024 to refund late payment interest charges to various SPs in the Plaintiffs’ Camp.

(d) Motion 9: to direct MCST 1024 to approve an application for the subdivision of lots by certain SPs.

(e) Motion 10: to direct MCST 1024 to take action against the Defendant for “unauthorized use of the management and sinking funds to for Upgrading Expenses … and failing to declare his interest in [MH Asia]”.

49 On 26 June 2013, the first to fifth plaintiffs (to this Suit) applied to the High Court in OS569/2013 to invalidate the decisions made by Dr Mok at the 5 June 2013 EGM. Chan Seng Onn J broadly upheld the rulings made by Dr Mok, and directed that the applicant-SPs were not to table any amendments to Motion 1 that touched on the legal representatives already appointed by MCST 1024 to defend itself in this Suit (see Fu Loong Lithographer Pte Ltd and others v Mok Wai Hoe and another [2014] 1 SLR 218 (“Fu Loong (HC)”) at [70]).

(a) Dr Mok was wrong to rule out of order Motions 8 and 9, and his rulings were accordingly invalidated;

(b) The High Court erred in its direction in respect of Motion 1, and this direction was accordingly set aside;

(c) The High Court correctly affirmed the ruling by Dr Mok of Motion 3 out of order. However, its statements that “there was no resolution to ratify any previous upgrading work expenses passed during the 27th AGM” [emphasis in original] (see Fu Loong (HC) at [46]) and “the approval and adoption of audited accounts has nothing to do with whether individual expenditure items in the accounts were authorised” (see Fu Loong (HC) at [52]) had to be clarified as follows (at [42]):

52 I deal first with the preliminary issue of whether the Plaintiffs are the proper plaintiffs to bring this Suit against the Defendant. The Plaintiffs commenced this Suit on 17 April 2012, seeking declarations that the Defendant had breached a number of his duties to MCST 1024 as well as an account of sums that the Defendant had improperly caused MCST 1024 to incur (see [7] above). I note that, at a pre-trial conference (“PTC”) before Assistant Registrar Yeong Zee Kin on 18 April 2013, the Defendant objected to the Plaintiffs’ prosecution of this Suit on the grounds that MCST 1024 was the proper plaintiff to prosecute this Suit, and that the Plaintiffs were not entitled to seek reliefs on its behalf. ⁷⁷ However, the Defendant did not take out any application to strike out or dismiss this Suit on that ground.

53 Probably in an effort to meet this problem, the Plaintiffs and several other SPs in the Plaintiffs’ Camp then requisitioned an EGM, which was eventually held on 5 June 2013 (see [48] above), to pass inter alia Motion 10 that reads: ⁷⁸

54 The 5 June 2013EGM was chaired by Dr Mok, who ruled Motion 10 out of order. Dr Mok explained that the accounts of the works had been ratified at the 26th and 27th AGMs, which were in turn upheld by the STB as valid and proper. There was thus no basis for MCST 1024 to commence legal proceedings in respect of the works. ⁷⁹

56 The Plaintiffs now submit that O 18 r 8 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) requires the Defendant to specifically plead his objection to their locus standi to prosecute this Suit. Since the Defendant did not do so, he stands bound by his pleadings. ⁸⁰ The Plaintiffs add that, in any event, they are entitled to bring this Suit against the Defendant for two reasons:

(a) Since all common property (as well as the funds in the management and sinking fund) in MCST 1024 is owned by every SP as tenants-in-common in undivided shares, the Plaintiffs as “aggrieved SP[s] should be able to pursue a remedy in their own name” against the Defendant in his personal capacity. ⁸¹ In support of this, the Plaintiffs provide the following illustration:

(b) Alternatively, and drawing from company law, because MCST 1024 is controlled by the Defendant through the Mok Camp and will not take any action against him, the Plaintiffs are entitled to bring this Suit as a derivative action on behalf of MCST 1024 against the Defendant. ⁸²

57 The Defendant submits that the reliefs claimed by the Plaintiffs are only in respect of his role as Chairman and do not concern the Plaintiffs personally. ⁸³ The correct course for the Plaintiffs to take would be to seek support for a resolution at a general meeting directing MCST 1024 to pursue an action against him. ⁸⁴

58 I am surprised that no application was taken to dismiss or strike out this Suit on the basis that the Plaintiffs are not the correct parties to bring this action. It also seems to me that there are some issues, including this preliminary objection, in this Suit that are bound up with issues brought in the other proceedings to which I have referred above, or brought up but abandoned in those other proceedings. In these circumstances, I also note that there is no application to dismiss this action on the basis of an abuse of process under the rule in Henderson v Henderson [1843–60] All ER Rep 378 (“Henderson”), which has been described as part of the “extended” doctrine of res judicata (see Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 at [41] and [51]). These observations of Court of Appeal in Kho Jabing v Public Prosecutor [2016] 3 SLR 1259 at [3] are apposite:

59 I have noted that the issue of the Plaintiffs’ locus standi to prosecute this Suit was raised as early as the PTC on 18 April 2013 (see [52] above). The Plaintiffs attempted to remedy any such criticism just five days after the PTC by requisitioning the 5 June 2013 EGM to pass Motion 10. ⁸⁵ Dr Mok ruled, probably incorrectly, that Motion 10 was “out of order”. For some strange reason, the Plaintiffs chose not to proceed with their challenge to this ruling before the learned judge in OS569/2013, although in those proceedings they included it as one of the rulings they wished to impugn. As noted, the Defendant has not taken out any application to dismiss or strike out this Suit on this basis that the Plaintiffs are not the correct parties to sue.

63  In both the Plaintiffs’ and Defendant’s Lead Counsel Statements submitted before the commencement of the trial, the first three Agreed Legal Issues were stated to be:

(a) Whether the Plaintiffs may commence this action on behalf of MCST 1024;

(b) Whether the remedies sought are for the benefit of MCST 1024; and

(c) Whether MCST 1024 authorised this action.

64 In these Lead Counsel Statements, the Non-Agreed Factual and Legal Issues were listed as including:

(a) By the Plaintiffs:

(i) Whether the Defendant has control of the Council of MCST 1024 to prevent an action being brought against him for any wrongdoing by the SPs; and

(ii) Whether the exception to the “proper plaintiff” rule applies in this action;

(b) By the Defendant:

(i) Whether MCST 1024 has authorised the Plaintiffs to commence this action to seek reliefs on its behalf;

(ii) Whether the BMSMA permits such an action to be brought by the Plaintiffs, and, if so, the requirements to bring such an action;

(iii) Whether a common law derivative action is available to the SPs in a development, and, if so, the principles governing the common law derivative action and the requirements to mount such an action; and

(iv) Whether the Plaintiffs have fulfilled the requirements for bringing a common law derivative action.

65 Counsel for the Defendant, Mr Lee Poon Khoon Edwin (“Mr Lee”), prefaced the relevant part of his cross-examination of Sarah Tham by informing her that he was going to ask her questions as to whether the Plaintiffs have correctly brought proceedings against the Defendant and whether they were the proper parties to bring these proceedings against the Defendant who was chairman of MCST 1024. ⁸⁶ The transcript goes on for some ten pages where Mr Lee asked Sarah Tham questions as to whether MCST 1024 had authorised these proceedings, whether the Plaintiffs’ Camp could have, given their majority in share value, passed a resolution to direct MCST 1024 to take action against the Defendant, whether the Plaintiffs’ Camp tried to circumvent the need to hold a general meeting to vote on taking action against the Defendant by commencing this suit themselves and why they had abandoned their claim to invalidate Dr Mok’s ruling their Motion 10 (which was to direct MSCT 1024 to take action against the Defendant) out of order and the events before Chan J and the Court of Appeal in OS569/2013.

66 Mr Leo never objected to these questions as being irrelevant on the pleaded defence. In the event, whether pleaded or not, this was a very live issue before me and it was treated as such by the parties. Significantly, in the simultaneous closing submissions, the Plaintiffs ended with six paragraphs under the heading “Plaintiffs’ right to seek restitution for MCST” before their “Conclusion”. ⁸⁷ They did not contend that this was not a pleaded issue. In their closing submissions, the Defendant set out at para 29(a) the question whether the Plaintiffs were entitled to maintain this action against him and claim for reliefs on behalf of MCST 1024 as one of the issues before me. It was only in the Plaintiff’s reply closing submissions that they contend that this was not a pleaded issue. ⁸⁸

67 I will accordingly exceptionally deal with this preliminary objection as it was one of the issues contested by the parties before me and because no party will be prejudiced by my doing so. This would have been an exceptional case where if the Defendant had applied to amend his Defence at the close of his case, I would have given leave to do so and no one would have been prejudiced by this.

68 The Plaintiffs’ submission is that this Suit is a personal action that they are bringing in their own names against the Defendant. In their pleadings and evidence, the Plaintiffs maintained that they are bringing this Suit on behalf of and for the benefit of MCST 1024. The following reliefs are claimed by the Plaintiffs in their SOC: ⁸⁹

69 At trial, the Plaintiffs took the position that they are seeking remedies exclusively for the benefit of MCST 1024. This was even after Mr Lee had expressly highlighted to Sarah Tham that he was about to questions the locus standi of the Plaintiffs to bring this Suit against the Defendant: ⁹⁰

70 Sarah Tham agreed further that the order sought by the Plaintiffs “is that the defendant pay back monies to the MCST”, and that the “plaintiffs do not benefit from any claim”. ⁹¹

71 Similarly, CY Lim simply “hope[d] the court can consider making an order that the cost incurred by the MCST should be paid by the defendant”. ⁹² CY Lim added unequivocally that he “[did] not wish this court to consider [Motion] 10 in this suit”. ⁹³

72 That said, KL Tan when cross-examined disagreed that “a lawsuit about unauthorised use of MCST expenses should be brought by the MCST”, ⁹⁴ and took the position that “our suit [ie, this Suit] is from subsidiary proprietor” rather than MCST 1024. ⁹⁵ However, KL Tan gave this evidence solely qua first third party to these proceedings and not on behalf of the second plaintiff. Having chosen not to call KL Tan as their witness, the evidence adduced on behalf of the Plaintiffs is limited to the evidence of Sarah Tham and CY Lim.

73 I also note that the Plaintiffs in their closing submissions maintain that they have the “right to seek restitution for MCST” [emphasis added]. ⁹⁶ I am therefore unable to accept the Plaintiffs’ submission that they are bringing this Suit in their own names against the Defendant in his personal capacity.

75 The Plaintiffs accept the principle of a separate legal personality of MCST 1024, but contend that “the interests of subsidiary proprietors are so intimately related to those of the management corporation that there is no real distinction between the two”. ⁹⁷ While I do not think that the separate legal entity of a management corporation is illusory, there is some force in the argument that the legal personality of a management corporation is weaker, or at least somewhat different, from that of a company. As observed in Rachel PS Leow, “The legal personality of management corporations in strata title developments in Singapore” (2012) 1 Conv 75 at 77, a management corporation is comprised of its SPs collectively, has a flow-through liability structure, is subject to limited agency in the case of structural defects, and is empowered to represent its SPs in legal proceedings (see s 85(1) of the BMSMA and Ng Eng Ghee and others v Mamata Kapildev Dave and others (Horizon Partners Pte Ltd, intervener) and another appeal [2009] 3 SLR(R) 109).

These findings were not disturbed by the Court of Appeal in Fu Loong (CA) and with respect, I agree.

77 Unlike OS569/2013, this Suit involves claims by the Plaintiffs against the Defendant for damages or an account of profits resulting from a breach of duty to MCST 1024 (see [68] above). Such claims are properly within the remit of MCST 1024, and not the Plaintiffs, to prosecute. The very concept of a separate legal entity necessarily limits when others, even when it is its members, can bring actions on its behalf as opposed to that separate legal entity bringing its own action. Were the Plaintiffs allowed to pursue a personal action against the Defendant, the risk of double recovery – by both the Plaintiffs and MCST 1024 – in respect of his alleged breach of duty would be very real. It was put to KL Tan in cross-examination that if Motion 10 had been passed, the Defendant could have faced separate lawsuits by MCST 1024 and the Plaintiffs in respect of the same alleged breach of duty. KL Tan did not dispute the concern, and asserted only that “[w]e may withdraw our suit.” ⁹⁸

80 The Plaintiffs submitted that they were entitled to bring a derivative action against the Defendant on behalf of MCST 1024 “because the MCST, controlled by [the Defendant] through the Mok Camp, would not take any action against him”. ⁹⁹ The Plaintiff relied on principles analogous to those creating an exception to the rule that a company (rather than any of its members), as a separate legal entity, is the proper plaintiff for prosecuting claims to vindicate wrongs perpetuated on it. Their submission rests on a rationale that the Privy Council explained in Burland and others v Earle and others [1902] 1 AC 83 at 93 as follows:

85 Sarah Tham conceded that MCST 1024 had not authorised the Plaintiffs to bring this Suit on its behalf, and agreed that the Plaintiffs “could have raised a resolution before [a] general meeting to pursue any action against the chairman”. ¹⁰⁰ She accepted further that the Plaintiffs had chosen to pursue this Suit without the authorisation of a general meeting. ¹⁰¹

86 Both Sarah Tham ¹⁰² and CY Lim accepted that the Plaintiffs had attempted, albeit unsuccessfully, to procure MCST 1024 to pursue legal proceedings against the Defendant. This was done by tabling Motion 10 at the 5 June 2013 EGM, and by applying to the High Court in OS569/2013 to invalidate Dr Mok’s ruling of Motion 10 as being “out of order”. Before Chan J in OS569/2013, however, the Plaintiffs elected not to proceed with their challenge to Dr Mok’s ruling on Motion 10 (Fu Loong (HC) at [4]). As mentioned above at [71], CY Lim stated that he “[did] not wish this court to consider [Motion] 10 in this Suit”. ¹⁰³

87 Under cross-examination, Sarah Tham did not really answer Mr Lee’s questions as to why she did not proceed with her challenge to Dr Mok’s overruling of Motion 10 before Chan J in OS569/2013. In re-examination, despite the valiant attempts of Mr Leo to guide Sarah Tham through leading questions, the answers given by her made little sense as to why she did not proceed with the challenge to Dr Mok’s ruling on Motion 10 in OS569/2013: ¹⁰⁴

88 It was put to Sarah Tham that the Plaintiffs’ Camp, which comprises all SPs other than those in the Mok Camp, ¹⁰⁵ had the requisite majority in share value to pass a resolution directing MCST 1024 to pursue an action against the Defendant. Sarah Tham did not disagree, and attempted only to explain that the Plaintiffs had decided to pursue this Suit without the authorisation of a general meeting because of the events at the 27th AGM, in relation to which the Mok Meeting was eventually recognised as the legitimate meeting (see [44] above). There is also no evidence that any such resolution was proposed at the Plaintiffs’ Meeting for the purpose of the 27th AGM that was, in any case, ruled by the STB not to be the valid AGM.

89 Having elected to forgo the alternative remedy of challenging (in OS569/2013) Dr Mok’s invalidation of Motion 10, which would, if successful, have paved the way for a general meeting of MCST 1024 to authorise the launching of proceedings against the Defendant, it is not open to the Plaintiffs to achieve the same result by bringing a derivative action on similar grounds in the name and on behalf of MCST 1024 against the Defendant. Allowing the Plaintiffs to now maintain a derivative action in the name and on behalf of MCST 1024 against the Defendant in the circumstances set out above would be entirely wrong. To her credit, Sarah Tham accepted that the invalidation of Motion 10 remains “still validly made by Dr Mok” [emphasis added]. ¹⁰⁶

90 Finally, it is telling that despite the allegation by the Plaintiffs (ie, the second and fourth plaintiffs) of a wrong perpetrated on all the SPs, no other SP, not even one other from the Plaintiffs’ Camp, is proceeding to seek some redress. On the contrary, the first, third, and fifth plaintiffs discontinued their actions with costs and without liberty to commence fresh proceedings on the Plaintiffs’ pleaded cases (see [10] above). Together, the first, third, and fifth plaintiffs account for 29% of the share value of MCST 1024, while the second and fourth plaintiffs possess a total of only 11% of the share value of MCST 1024. ¹⁰⁷ On any account, the first, third, and fifth plaintiffs are SPs aligned with the second and fourth plaintiffs, but it is the latter who alone continue to pursue this Suit.

(a) First, the works go beyond mere repair and maintenance that were within the authority of MCST 1024 to undertake, and were upgrades of the common property that required the approval of a special resolution of the SPs in general meeting.

(b) Secondly, the body of SPs was unaware of the Annex A Works until they been undertaken, and did not authorise the Annex A Works at any general meeting or through the Council.

(c) Thirdly, works on the Development involving major expenditure were always raised for discussion and not proceeded with until approval for them had been obtained.

(d) Finally, the Annex A Works were not ratified by the body of SPs, and remain unauthorised today.

(a) First, the Annex A Works were not upgrading works but repairs and maintenance, and MCST 1024 had not only the power but also the duty to undertake them.

(b) Secondly, the Annex A Works were approved by the SPs and the Council, having been undertaken in accordance with the past practices of MCST 1024 and its Council; in particular, the Annex A Works had been raised for discussions and not been objected to in general meetings and Council meetings.

(c) Thirdly, no special resolution was needed to undertake the works, even if they went beyond mere repair and maintenance and amounted to upgrades to the Development.

(d) In any event, the Annex A Works have been ratified at the 27th AGM on 6 September 2011.

100 The Plaintiffs submit that the general power to undertake repair and maintenance under s 29(1)(b) of the BMSMA extends only to remedying defects in the common property and restoring it to the condition that it was in at the time it was built. Works carried out to replace or improve an item of common property that remains functional are an improvement or upgrade of the common property that may be undertaken only when authorised by a special resolution under s 29(1)(d) of the BMSMA. ¹⁰⁸ The difference between the two provisions lies in the comparative functionality of the item of common property in question before and after the works. Mr Leo submits that repairs and maintenance under s 29(1)(b) of the BMSMA contemplate only “like-for-like replacement: a single light-bulb light fitting cannot be replaced with a grand crystal chandelier”. Additions or alterations that go beyond this fall within s 29(1)(d) of the BMSMA and require a special resolution. ¹⁰⁹

101 The Defendant states in his closing submissions that “[a] special resolution is not necessary to carry out improvement works to the Development”. ¹¹⁰ Accordingly, the Council “can proceed with repair and maintenance works that may amount to improvement works without the need to call for an AGM” ¹¹¹ to pass a special resolution. ¹¹²

(a) the replacement of filament light bulbs with 20-year-old fittings, some of which have cracked and are difficult to source replacements for (or replacement of neon lighting), and replacement with more modern and commonly available energy saving bulbs and fittings;

(b) the repair of a leaking pipe (or an age-cracked 20-year-old ceramic sink) which necessitates hacking up of tiles and where matching ceramic tiles of that size and colour are no longer available and the question arises whether all the tiles should be replaced; or

(c) some switches are not working and current codes for electrical fittings no longer allow these 20-year-old switches to be used; modern replacements may require re-wiring of some areas and a replacement and re-wiring for all switches in the common property has been advised.

Would these works be repair and maintenance or improvement for the purposes of the BMSMA? It would be useful to look to decisions in other jurisdictions with equivalent legislation.

106 In Stolfa v Hempton [2010] NSWCA 218, the New South Wales Court of Appeal considered the interaction between the general duty (and power) to repair and maintain the common property, and the obligation to make additions and improvements when so directed by a special resolution of the SPs. Allsop P (as he then was) held (at [10]):

With respect, I entirely agree.

107 In The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 (“Thoo”) at [5]–-[6], Barrett JA observed that the specific obligation to make improvements and additions to the common property pursuant to a special resolution of the SPs under the New South Wales equivalent of s 29(1)(d) of the BMSMA does not curtail, but nevertheless shapes, the general duty to repair and maintain the common property. The touchstone of “replacement” is functional equivalence (see Thoo at [4]), which necessitates a comparison of the end-product of the works with the attributes of the common property at some earlier reference point (see Thoo at [6]):

112 When a proposal to renew or replace common property is under consideration, it is quite possible that the views of a body of SPs will differ widely, even amongst those who are of the same view on the ultimate issue (Thoo at [13]). The purpose of the strata title scheme of property management is to provide a mechanism for the resolution of such disagreement: the management corporation, which is empowered to take a decision on behalf of the SPs but in doing so must act in the interest of the SPs (see Chia Sok Kheng Kathleen v Management Corporation Strata Title Plan No 669 [2004] 4 SLR(R) 27 at [34]).

115 Relying on the evidence of the Defendant’s expert witness, Mr Harland, the Plaintiffs submitted that the “[t]he proper procedure for carrying out any upgrading or improvement work for a management corporation would be to plan it, budget for it, discuss it and obtain the requisite vote/approval by the general body then carry it through”. ¹¹³ Mr Harland testified that “market practice [was] to get three quotations for major renovation work” and that the SPs should be “collectively” consulted over the replacement of assets. ¹¹⁴ However Mr Harland’s opinion did not reflect the practices that this MCST 1024 and Council adopted. Notwithstanding, I find the SPs of MCST 1024 are entitled to adopt, in any given instance, an informal way of managing the affairs of the Development and the works in relation to it. Whether a given set of works is authorised, albeit informally, must be assessed in the light of the circumstances that led to its undertaking.

116 Sarah Tham admitted that the practice of MCST 1024 in relation to proposals to carry out works on the Development was simply that of laying the proposals before the SPs in general meeting. As long as no SPs objected, the works would be considered as having been authorised. ¹¹⁵ Further, a formal process of budgeting and calling for quotations was not a practice of MCST 1024. This was despite the fact that such a process had been undertaken at several AGMs. ¹¹⁶

117 KL Tan gave evidence that the past practice of MCST 1024 was informal. As long as a motion was raised for discussion at an AGM and no objection to it was taken, the motion would be considered as carried. ¹¹⁷

118 KL Tan continued that it sufficed for an estimate of the costs of proposed works to be placed before a general meeting and where no objections to the estimate were taken, then, as long as the actual costs of the works did not exceed the estimate, the works were considered to have been authorised. ¹¹⁸

119 CY Lim testified initially that all decisions taken at a general meeting had to be by way of a formal vote. However, he conceded that he attended general meetings infrequently and did not read the minutes. Although he had owned unit #03-03 at the Development since 1997, he had attended only “about two AGMs” until the 23rd AGM in 2007. CY Lim eventually clarified that “the matter has to be proposed and if there were no objections from the general body, then will be considered as approved”. ¹¹⁹

120 Until the differences arose in 2008, the minutes of the earlier AGMs up to the 24th AGM also bear this out. I therefore find as a fact, as in Si-Hoe Kok Chun, the SPs of MCST 1024 were entitled to and did in fact adopt an informal manner of conducting the proceedings at their general meetings, including those concerning works to the development. They chose, at times, to make decisions by consensus without the formality of taking a vote. Insofar as all SPs at a general meeting had informally assented to a matter within its purview, the matter will be authorised as if a formal resolution had been passed.

121 However such practices are not immutable and they can cease. This occurred here. The practice did not survive into the 25th AGM held on 5 October 2009 because, as noted above, disputes arose in the earlier part of 2009. I find that after 12 March 2009, when the SPs of units on the third and fourth floors of Block 53 commenced OS300/2009, the Council members and some, if not all, of the SPs became aware that disputes had arisen within their Development. There could have been no doubt about this after the decision in the Council meeting on 22 May 2009 ¹²⁰ to increase the monthly maintenance and sinking fund contributions and the call for two months’ advance was circulated. Between 8 to 11 June 2009 some SPs in the Plaintiffs’ Camp wrote to the Defendant questioning the works and stating that they would not be making the advance payments for the maintenance and sinking fund (see [29] above). It is noteworthy that all the SPs attended the 25th AGM on 5 October 2009 ¹²¹ and 4 November 2009 ¹²² because by this time disputes had erupted between the two camps.

122 Just as the SPs adopted an informal manner of decision-making, the Council, which comprised representatives from both the Plaintiffs’ Camp and the Mok Camp, also conducted its affairs and made decisions on behalf of MCST 1024 in an informal manner. Up until 2008/2009, no SP took issue with these practices of the Council.

123 The Defendant deposed that the meetings of the Council were “informal and on an ad hoc basis”. The members of the Council conducted discussions and made decisions by “the dissemination of notes or letters” between themselves. When they did meet face-to-face, their meetings were typically held at the office of the Defendant, and were usually not minuted. ¹²³

124 The Defendant added that the Council decided on all works to be done to the Development, and informed the SPs of its proposals at a general meeting or through the dissemination of written circulars. If no SP objected to the proposals, the Council would implement them. ¹²⁴ This was the process adopted in relation to five items of work:

(a) Painting and washing works to Block 51 and Block 53 in 1995;

(b) Waterproofing works to Block 53 in 2000;

(c) Re-surfacing and replacing the driveways, culvert, drains, metal gates, car parks, and main incoming water-pipe in 2002 and 2003;

(d) Replacing the main electrical switchboard in 2004 and 2005; and

(e) Raising the driveway and culvert and the building of a boundary wall in 2007.

125 KL Tan acknowledged this practice of the members of the Council deferring to the Defendant vis-à-vis the undertaking of works to the Development. This was at least the case between the 23rd AGM on 2 October 2007 ¹²⁵ and the 24th AGM on 9 October 2008, ¹²⁶ when KL Tan was Treasurer. I set out his evidence in relation the upgrading works to the lobbies and toilets at the second and third floors of Block 51, which were preceded by various circulars on and after 30 November 2007 from the Defendant (qua Chairman) to the SPs: ¹²⁷

126 It is clear to me and I so find, that KL Tan adopted and participated in this practice. He cannot now disavow the same. It is also clear that no SP took issue with these processes up until disputes arose between them in late-2008 to early-2009.

127 The evidence of the Defendant was corroborated by the testimonies of CK Loo, who was a member of the Council from 1998–2009 and from 2010–2013, KK Lee, who was a member of the Council from 1987–2013, and Thomas Neo, who was a member of the Council in 1995, 1997, 1999–2009, and 2011–2013. KK Lee, CK Loo, and Thomas Neo added that far from objecting to its processes, “most of the [SPs] were happy to leave the decision making to the Council”. ¹²⁸

128 The Plaintiffs do not dispute that it was the “customary practice” of the Council to communicate its proposals of works by placing notices of the works on the noticeboard of the Development, ¹²⁹ and that the works carried out by the Council pursuant to these notices were valid. The noticeboard was the sole noticeboard in the Development, ¹³⁰ and was located at the ground floor of Block 53, the block that contained the units of all the SPs in the Plaintiffs’ Camp, including those of the Plaintiffs. Neither Sarah Tham nor CY Lim disagreed that it was a “customary practice of [MCST 1024] that a notice of the works to be carried out would be put on [its] noticeboard”. ¹³¹

129 Moreover, the Plaintiffs agree that the Council had on multiple occasions sent notices of its proposals to them. In their submissions, they accept that the Defendant “had sent some circulars about works to be done”, and contend only that “the circulars were not always sent to all SPs [and] only to affected [SPs] or occupants”. ¹³² This was the evidence of Sarah Tham, ¹³³ which was not disputed by CY Lim.

130 Most crucially, KL Tan did not deny that pursuant to the informal practice of MCST 1024, the fact that a notice had been sent to the SPs and that there had been no objections to it meant that the works had been approved. He simply asserted that such a method of approval was “a scheme to go around the law. The law requires you to – to be voted, to be budgeted”. When it was then put to him in cross-examination that securing such approval was part of his duty as Treasurer in the Council, KL Tan simply replied “[i]t doesn’t [sic] occur to me at that time”. ¹³⁴

131 Just as a management corporation is entitled to adopt an informal manner of decision-making in its affairs, there is no reason why a council of a management corporation cannot, where the SPs that comprise the management corporation so agree, make decisions on behalf of the management corporation in an informal way. After all, the powers of a council derive from the management corporation (see s 58 of the BMSMA) Also, a management corporation is entitled to ratify a breach by the council of the Second Schedule of the BMSMA (see Diora-Ace Ltd and others v Management Corporation Strata Title Plan No 3661 and another [2015] 3 SLR 620 at [76]–[77] applying s 88(3) of the BMSMA). Accordingly, I find and hold that the body of SPs of MCST 1024 had agreed that the Council could makes decisions on its behalf with respect to works to the Development.

132 I note, for completeness, the Plaintiffs’ submission that some of the practices of the Council appear to be in breach of the Second Schedule of the BMSMA, ¹³⁵ which requires inter alia that a council gives three days’ notice for and keeps minutes of its meetings (see s 53(11) read with the Second Schedule of the BMSMA). However, as observed by Andrew Ang J in Ng Swee Lang and another v Sassoon Samuel Bernard and others [2008] 1 SLR(R) 522 (“Ng Swee Lang (HC)”) at [51] in the context of collective sale orders, the procedural safeguards in the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (the “LT(S)A”) are “not built in as absolute obstacles to be surmounted on pain of the Board being precluded from exercising jurisdiction [to sanction a collective sale] if any of the procedural requirements were not met, regardless of whether and to what extent the interests of the minority were affected.” Ang J continued (at [55]):

These statements were subsequently endorsed by the Court of Appeal in Ng Swee Lang and another v Sassoon Samuel Bernard and others [2008] 2 SLR(R) 597 (“Ng Swee Lang (CA)”) at [23]:

These passages in Ng Swee Lang (HC) and Ng Swee Lang (CA) were applied by the High Court in Lim Choo Suan Elizabeth and others v Goh Kok Hwa Richard and others [2009] 4 SLR(R) 193.

133 In my view, the observations in Ng Swee Lang (HC) and Ng Swee Lang (CA) apply with equal force in the context of the BMSMA, which, like the portions of the LT(S)A on collective sales, is designed to regulate the rights of the SPs in a strata development inter se, and ensure that a minority of SPs does not suffer oppression at the hands of the majority. On the facts of this case, all the SPs in MCST 1024 acquiesced in the procedural deficiencies in the meetings of the Council, and up until late-2008 to early-2009 raised no objections to the decisions made by the Council on works to the Development. None of the SPs were prejudiced by the lack of notice of the meetings of the Council; they were content to leave decision-making on works to the Development to the Council, and had no interest in attending the meetings of the Council. Accordingly, I find that the fact that the SPs were provided with inadequate notice of certain meetings of the Council did not invalidate the decisions of the Council made at those meetings.

134 As pleaded in the SOC, the Annex A Works comprise 62 items of works that the Plaintiffs allege were undertaken without the authorisation of MCST 1024, and I set them out in a table below. For convenience, I have categorised these works according to the 12 broad locations of common property on which they were performed. During the course of the trial, however, the Plaintiffs and their witnesses conceded that 30 of these 62 items were in fact undertaken within the authority of MCST 1024. These 30 items have accordingly been struck through in the table below:

135 As reported in the audited financial statements for FY2010, the total value of the works undertaken on the common property of the Development was $489,741.44. This comprised $475,708.44 on the 62 items of Annex A Works and another $14,033.00 of “Upgrading Expenses” reported in the audited financial statements for FY2010. ¹⁹⁸ The Plaintiffs, however, conceded in their SOC that they “do not have the particulars for the Upgrading Expenses $14,033.00”, and that the “Erection of Boundary Wall” for a sum of $65,600.00 (corresponding to Items 1 and 12 of the Annex A Works) had been “approved in 23rd AGM”. ¹⁹⁹ Accordingly, the Plaintiffs’ complaint of unauthorised works is only in relation to Annex A Works of $410,108.44 (ie, $489,741.44 – $14,033.00 – $65,600.00 = $410,108.44). This was confirmed by Sarah Tham at trial. ²⁰⁰

136 I pause to observe that my assessment of the Plaintiffs’ claims on the Annex A Works was limited by the evidence and submissions on the items therein. The documentary exhibits provided few details on the works in question, and little explanation was offered at trial or in submissions on what exactly these items of works covered. The parties did not link these documents to the specific item or items in Annex A. There were also some errors in the items in Annex A when the supporting documents were eventually traced. For example, Item 58 states $1,740.00 but the relevant invoice ²⁰¹ shows $1,712, and Item 61 states $14,190.34 but the relevant payment voucher ²⁰² shows $9,897.50. Further, Item 16 states “A&A works for toilets at 53 5th & 1st floor” with the figure $42,408.38 but when the invoice is traced ²⁰³ we find that it only relates to the first floor “A & A Work”. In the event, linking the Plaintiffs’ allegations (as pleaded in Annex A) to the relevant documentary evidence was in many cases a matter of some deduction and some guesswork, which is an unsatisfactory level of proof. This leaves me with little option but to resolve the issue based on the burden of proof which rests on the Plaintiffs to demonstrate that the items of works in question were unauthorised.

137 The Plaintiffs’ closing submissions did not touch on the individual items in Annex A, which formed a large part of the Plaintiffs’ claims. The Defendant however made comparatively more comprehensive submissions on the items in Annex A. ²⁰⁴ The Plaintiffs’ reply submissions were, with respect, very inadequate. It was contained in paragraphs 61 to 65 which only took up four pages out of a 49-page, 133-paragraph reply submissions. The Plaintiffs tried to explain that various concessions made by their witnesses, particularly Sarah Tham, had been taken out of context, and that all she had done was to concede certain items were repairs and maintenance. They claimed Sarah Tham did not know the state of the item that was being replaced or repaired before the expense was incurred to replace it and she was then asked to take that in isolation and to consider whether this could have been repair and maintenance. They also picked on an example of seven down-lights (Item 9), which had been posted in the ledgers as improvements or upgrading works to make the submission that “all these items listed in Annex A (and in the MCST’s ledges [sic] as upgrading expenses) were likely to have been replaced or carried out even though they were not in disrepair or spoilt.” This is clearly not a correct proposition to make from the evidence given that some items in Annex A had been conceded in their pleadings and by Sarah Tham at trial, eg, when she was shown the minutes of the 23rd AGM which noted her husband, KL Tan’s request to change the directory (Items 17 and 18); this was acceded to. Save for her rather unconvincing attempts during re-examination to claw back her concessions made during cross-examination, the reply submissions stated at paragraph 65 rather weakly that when Sarah Tham was cross-examined on Annex A, she had been on the witness stand for a long time and was tired. This again is not true as I found Sarah Tham to be quite alert during her cross-examination, which was in any case carried out quite fairly by Mr Lee.

138 The Plaintiffs offered no details or correlation with the documentary evidence and instead made allegations of grossed-up works with no individual pricing that could be matched to the documentary and photographic evidence. Submissions of the following nature were made: “Wash basins in Block 51 toilets changed to better wash basins” ²⁰⁵ without more. Another example is the Plaintiffs accepting as early as in their SOC that $65,600.00 of works on the driveway and boundary wall were approved, without bothering at any time thereafter to identify the items of Annex A Works that corresponded to that sum. I find that Sarah Tham was not confused when she made these concessions; she often paused to think before answering.

139 The 62 items of Annex A Works were compiled with a blunderbuss approach and without much thought as to where the target might be. Many of the descriptions of the works, as pleaded in the SOC, simply reproduce the titles of the invoices issued by the contractors who performed the works. Hardly any attempt was made to relate the invoices to the works pleaded in the SOC, much less to consider whether the works in question had in fact been authorised. This was reflected in three troubling aspects of the Plaintiffs’ case, which undermined the credibility of their claims:

(a) First, the Plaintiffs listed 62 items as the Annex A Works as works the expenses for which had been “incurred by the Defendant from June 2008 to March 2009 without approval and therefore in breach of trust”, ²⁰⁶ but, as noted above, withdrew many their claims without much resistance in relation to 30 of these items when challenged by the Defendant during the course of the trial. As noted above, the lack of care with which their case was pleaded and presented is most clearly seen in relation to Items 17 and 18, (works relating to the directory of the Development). When she was shown the minutes of the 23rd AGM, Sarah Tham had no choice but to concede that these works had been approved. ²⁰⁷ CY Lim provided no evidence to the contrary.

(b) Secondly, the Plaintiffs appeared to premise the objections to the items of Annex A Works based on the quantum of expenditure involved on the works, rather than on the nature of the works in question and the circumstances leading to their undertaking. I set out as an example an extract of the evidence of Sarah Tham on Items 4 and 5, which concerned additions and alterations (“A&A”) work to the fifth floor toilets at Block 53: ²⁰⁸

(c) Thirdly, and on a related note, the Plaintiffs took inconsistent positions on different parts of a series of works performed on the same items of common property. A good example would be Items 4 and 5 which concerned A&A works to the fifth floor toilets at Block 53, and were described by the Plaintiffs in the Annex of their SOC as “A&A Work at 53 Kim Keat 5th floor – Male/Female Toilets” and “Additional Work at 53 Kim Keat – Male/Female Toilets” [emphasis added] respectively. Yet, Sarah Tham took the position that Item 5 was authorised while Item 4 was not, apparently on the basis that Item 4 cost $38,521.07 while Item 5 cost $4,194.40 and without considering what the items of work entailed. I retained the conceded items in the Annex A table above because this kind of inconsistency can be seen when comparing the conceded items and non-conceded items especially when one considers the Plaintiffs originally claimed that all the sixty-two items were unauthorised works. From her evidence, it is clear that Sarah Tham also considered an item as authorised or unauthorised based on whether the item had been posted to the repair and maintenance ledger or the upgrading ledger. I set out one such example: ²⁰⁹

140 At the 25th AGM, the SPs had appointed a six-member Audit Committee to “go through the upgrading expenses” in relation to the Annex A Works, the authorisation of which they disputed, and held off passing the audited financial report for FY2009 in the interim (see [35]–[36] above). To date, however, only five members of the Audit Committee have submitted their findings. CK Loo and WC Mok (from the Mok Camp) reported that the expenditure had been fairly and reasonably incurred. ²¹⁰ AC Tan, HY Tan, LC Ong (from the Plaintiffs’ Camp) reported that the Annex A Works were “not carried out in a uniform standard for common property in the [D]evelopment” and that various expenditures were “higher than the market rate”, and recommended that a Quantity Surveyor be appointed to assess details of the pricing. Notably, however, the only objections taken by AC Tan, HY Tan, and LC Ong were to the quantum and scope (between Block 51 and Block 53), and not the authorisation, of the Annex A Works. ²¹¹

141 It is convenient at this juncture to deal with another important aspect of the Plaintiffs’ central complaint: whether the Annex A Works had been undertaken without informing them of the same thereby depriving them of an opportunity to object or disagree with the extent of the work. I have already dealt with the practice of MCST 1024 in relation to these kinds of works above as well as the functioning of the Council. I find that the evidence clearly shows that the SPs had advance notice of these works, notice in relation to the implementation of these works and some SPs, including the second plaintiff, had requested deviations from the proposed works.

142 I start with the 22nd AGM held on 27 September 2006 where in the context of the maintenance and sinking fund, there were proposals to reduce the same. It is noted under Item 5 of the minutes that the Defendant explained that MCST 1024 “needs to have sufficient fund [sic] for contingencies, such as major breakdowns, water-proofing and other repair/improvement works, as both buildings [were] more than 20 years old” (emphasis added). ²¹² In the event there was a vote to decrease the contributions by 5% in view of the surplus accumulated in the last financial year. The Defendant was proposed as Chairman by KL Tan.

143 As I have noted (at [23] above), at the 23rd AGM held on 2 October 2007, the Defendant informed the SPs at this meeting of the need to deal with the external works due to soil settlement of the surrounding roads and the remedial works undertaken by surrounding owners and the authorities. This was unanimously approved: a professional engineer would be engaged who would study the same and make proposals and a “subcommittee” would be formed “to look after these matters” ²¹³ . It was resolved that the contributions to the maintenance and sinking funds could remain unchanged. There is no evidence of any “subcommittee” being constituted and I have no doubt, and I so find, that the Council proceeded to take over that role.

144 On 20 November 2007, the Defendant (qua Chairman) sent a circular to all the SPs notifying them that the lift lobbies and toilets at both Block 51 and Block 53 were “due for upgrading”, and that MCST 1024 would be calling for quotations for the works. The Defendant also “welcome[ed] suggestions” from the SPs” as to the works. ²¹⁴ None were forthcoming. This was just over a month after the 23rd AGM on 2 October 2007. Sarah Tham gave evidence that this notice had come from “out of nowhere”, ²¹⁵ and KL Tan claimed at trial that he was surprised by the notice because it provided “no details on what the upgrading was”. ²¹⁶ Yet, none of the SPs raised any dispute as to this notice and none objected to the upgrading works proposed therein. This was confirmed by KL Tan who was the Treasurer of MCST 1024 at the time. ²¹⁷ In my view, this non-objection was telling. It shows the SPs were content with the works being carried out. This is so particularly in light of KL Tan’s evidence that the way that the upgrading works had been discussed at the 23rd AGM appeared to be in accordance with the common informal practice of MCST 1024 for the approval of works at that time. ²¹⁸

145 On 5 March 2008, the Defendant (qua Chairman) sent another circular to all the SPs repeating that the lobbies and toilets at both Block 51 and Block 53 were “due for upgrading (in view that these facilities are more than 20 years old)” and that MCST 1024 “is in the process of calling for quotations.” ²¹⁹ Sarah Tham confirmed receipt of the circular, and accepted that none of the SPs had raised any contemporaneous objections to its contents. ²²⁰ Further, the position taken by the Plaintiffs was simply that “[a]nyone reading this notice will think that they would be consulted with the quotations before any work starts”, ²²¹ and that “[i]t doesn't say for sure the MC will start work”. ²²² I do not accept this. The circular conveyed an unmistakable intention to proceed with the works, and no SP voiced any objection to the works at the material time or asked to see the quotations.

146 On 16 June 2008, WC Mok (qua Secretary) sent a circular to all the SPs of Block 53 notifying them that MCST 1024 had awarded the contract for the works to the fencing, sliding gate, and boundary wall of the Development to Teamcon Roofing Supply. ²²³ This was not disputed by the Plaintiffs.

147 On 17 June 2008, WC Mok (qua Secretary) sent a circular to the SPs on the fifth floor of Block 53 notifying them that MCST 1024 had engaged Kian Wah to perform “Upgrading of Gents and Ladies Toilet”. ²²⁴ KL Tan confirmed receipt of this curricular, and accepted that he had neither queried its propriety nor objected to the proposals therein. Although he suggested that he was surprised at the scale of the work (and the expenses involved) because the circular did not state that there was going to be “major upgrading work”, he conceded that, when the works were eventually reported as completed at the 24th AGM, none of the SPs objected to them. ²²⁵ I do not accept his “surprise” at the scale of the work, which I take to be ex post facto rationalisation, because there was certainly no contemporaneous expression of this at all material times. Moreover, these were works within his block.

148 On the 22 September 2008 a notice for the convening of the 24th AGM was sent to all SPs. Items 3 and 4 in that notice were to review the maintenance and sinking funds and to update the SPs on the renovation works to the common areas. ²²⁶

149 The minutes of the 24th AGM (see [26] above) state at Item 5 “RENOVATION WORKS ON THE COMMON AREAS” records the Defendant (qua Chairman) informing the SPs of, inter alia, upgrading of the first floor lift lobby, upgrading of the first and fifth floor male/female toilets and installation of the aluminium ceiling system for Block 53. ²²⁷ Although there were disagreements on Item 4.1 of the minutes, which I address elsewhere, there was no disagreement over Item 5 (c), (d) and (e). More importantly there is no record of anyone objecting or disputing to these works having been carried out without due authorisation or without their knowledge. To the contrary, the minutes show that CY Lim queried whether the third and fourth floor toilets would be upgraded as well and the Chairman explained that the toilets on these floors were not under the care of MCST 1024. This answer no doubt caused the launching of OS 300/2009 on 12 March 2009 (see [26] above) as the SPs on the third and fourth floors of Block 53 must have felt they were being unfairly left out. This must have meant that they wanted these works to be carried out

150 On 14 October 2008, the Defendant (qua Chairman) sent a circular to all the SPs of Block 51 notifying them that it had engaged Mod Creations to carry out “Upgrading of Lift Lobbly [sic], Gents and Ladies Toilet at second and third Floor”, suggesting the occupants on those floors use the toilets on the 4th and 5th floors instead and apologising for any inconvenience caused. ²²⁸ This was just after the 24th AGM on 9 October 2008. Sarah Tham did not dispute having received this circular, and merely insisted that the notice did not evince a definitive intention to carry out the works. ²²⁹ KL Tan admitted that the circular had been circulated to him qua Treasurer and did not object to the proposals therein. ²³⁰

151 On 21 January 2009, the Defendant (qua Chairman) sent a circular to all the members of the Council informing them that the works to the lobbies and toilets at Block 51 were underway and were “scheduled for completion in June 2009”, and that the works to the lobbies at the second to fifth floors of Block 53 would follow. The Defendant added that some of the SPs in Block 51 had “requested the use of different materials for the renovation” and that they “will be paying for the cost difference”. ²³¹ KL Tan admitted that he received this circular, and did not deny that he had “not raise[d] any query as to why there was going to be any upgrading at all for even the lift lobbies and toilets for all levels of [B]lock 51”. ²³²

152 On 6 March 2009, the Defendant (qua Chairman) sent a circular to all the SPs in Block 51 informing them of the imminent hacking and re-tiling works to the lobby and the toilets on the fifth floor. ²³³ Sarah Tham accepted that she had received this circular but “didn’t pay attention to it, because all this are work scheduled”. ²³⁴ KL Tan admitted that he received this circular and that he “did not raise any protest”. He explained that he had “treat[ed] this as normal routine and maintenance works”, and added that he “did not know whether it's the [B]lock 51 or [B]lock 53” that was the location of the work. ²³⁵ I am unable to accept this evidence. It is difficult to believe that KL Tan would have remained silent if the notification of these works came as a surprise to him. Rather, it is more likely than not that it did not matter to him whether the works were to Block 51 or Block 53, because the works to either location had been approved by the SPs.

153 On 13 March 2009, the Defendant (qua Chairman) sent a circular to all the SPs in Block 53 informing them of the imminent re-tiling works to the lobbies of the second to fifth floors. ²³⁶ It was undisputed that the Plaintiffs, whose units were on the third floor of Block 53, received this circular. Indeed, the Plaintiffs in a letter to the Defendant dated 18 April 2009.

154 Significantly, the second, third and fourth plaintiffs, whose units were on the third floor, wrote in to the Defendant under the heading “Renovation of Lift Lobby Floor at 3rd floor Mun Hean Building” on 18 April 2009, (the original typed date of 30 March 2009 had been deleted and the handwritten date of 18 April 2009 was initialled). They referred to the above 13 March 2009 notice and “request[ed] that the existing floor-tiles be kept” because they had re-tiled the third floor lobby “at [their] own expenses few years ago”, and asked that MCST 1024 instead “consider to upgrade the lift lobby wall”. ²³⁷ The Plaintiffs eventually chose a set of tiles of a similar cost to those of the tiles that MCST 1024 had originally chosen for the lobby floor, and MCST 1024 bore the cost of tiling the walls of the third floor lobby. ²³⁸

155 There was a further notice sent by the Defendant to the occupants of Block 53 dated 24 April 2009 where they were informed of hacking and re-tiling of the fourth and fifth floor lobby floors and walls and this notice records the consent of the occupants of the fourth and fifth floor to go ahead with these works during the long weekend of 1 to 3 May 2009.

156 On 11 May 2009, the Defendant (qua Chairman) sent a circular to all the members of the Council informing them of the progress of the upgrading works, and notifying them of an imminent shortfall in the funds of MCST 1024 due to these works. He then proposed to increase the monthly maintenance and sinking fund contributions by 5% each, and to have the SPs pay two months’ of contributions in advance. ²³⁹ Only in the wake of this circular did the disagreements between the parties deteriorate significantly, with KL Tan first expressing his displeasure at the coffee-shop meeting of 22 May 2009 (see [28] above).

157 The evidence shows, and I so find, that the members of the Council as well as the SPs had agreed to or otherwise acquiesced in the Council’s carrying out of the Annex A Works. They were content to go along with the proposals made by the Defendant and/or various members of the Council, who notified the SPs of the works through circulars. KL Tan confirmed that these circulars were sent to the members of the Council and were also published on the sole noticeboard of the Development located on the ground floor of Block 53, ²⁴⁰ even if not all the notices were sent to all the SPs, as contended by the Plaintiffs. KL Tan acknowledged that he had received the circulars, and testified only that the circulars were “a way to circumvent the law of getting approval from the general body” for the Annex A Works. ²⁴¹ Up until a meeting of the Council at a coffee-shop on 22 May 2009, where KL Tan asked to examine the “monthly bank statements and the bills for expenses incurred for the last 6 months”, ²⁴² no one objected to this state of affairs or manner of carrying out such works.

158 Sarah Tham confirmed that she received the circulars but that she “didn’t pay much attention to” many of them. ²⁴³ CY Lim, whose unit was tenanted out at relevant time, did not dispute that he had received some circulars that were handed to him by his tenant, and accepted that he had not protested that the works set out in the circulars had been unauthorised. ²⁴⁴

159 I now deal with the Defendants’ contention that the 24th AGM had authorised the Annex A Works in accordance with the informal decision-making practiced by MCST 1024 at that time as reflected in Point 4.1 of the minutes of the 24th AGM (“Point 4.1”). Point 4.1 records the Defendant informing the SPs of the cash balance of MCST 1024 as at 9 October 2008, the expenses for the upgrading works already carried out and those yet to be carried out, and a shortfall of $62,640.00 that MCST 1024 was about to encounter. ²⁴⁵ Thereafter, as stated in Points 4.2–4.5 of the minutes of the 24th AGM (“Points 4.2–4.5”), the SPs had resolved to increase their maintenance and sinking fund contributions to meet the shortfall. Point 4.1 reads: ²⁴⁶

160 The Plaintiffs argue that the events as recorded in Point 4.1 did not in fact occur at the 24th AGM. They refer to Points 2.2 and 2.3 of the minutes of the 25th AGM on 5 October 2009, which state that Point 4.1 was “expunged” from the minutes of the 24th AGM, and that “[a]s Point (4.1) was expunged, the minutes of the 24th AGM was passed”. ²⁴⁷ They contend that Point 4.1 was expunged because the upgrading expenses and ensuring shortfall in funds reflected therein had not been discussed at the 24th AGM. ²⁴⁸ The SPs in the Plaintiffs’ Camp had remained “silen[t]” at the 24th AGM because they had not been informed of the shortfall in funds. ²⁴⁹ I set out Points 2.2 and 2.3 of the minutes of the 25th AGM:

161 The Defendant, on the other hand, submits that Point 4.1 accurately set out the events that transpired at the 24th AGM, including the approval by the AGM of the works set out therein. ²⁵⁰ At the 25th AGM, there was much debate over Point 4.1, and the Defendant had understood HH Lim to have proposed that Point 4.1 be put aside for subsequent discussion when HH Lim suggested that Point 4.1 be expunged. ²⁵¹

162 To place Point 4.1 in its context, I set out Points 4.2–4.5, which the parties do not dispute occurred at the 24th AGM: ²⁵²

163 In my view, the evidence shows on a balance of probabilities that there was discussion on the works to the Development at the 24th AGM, and in particular on the works to the lobbies and toilets at both Block 51 and Block 53, as reflected in Point 4.1. This must be the case even if it is disputed whether the figures as set out in Point 4.1 on the expenses for the works to the Development were in fact stated or raised at the 24th AGM, and notwithstanding the resolution at the 25th AGM to “expunge” Point 4.1 as recorded in the minutes of the 24th AGM.

164 First, it is unlikely for Points 4.2–4.5 to have been discussed at the 24th AGM without any context. Point 4.1 to 4.5 dealt with the need for increased maintenance and sinking fund contributions in light of the works. Notably, CY Lim, who is recorded as having claimed at the 25th AGM that the ratification of upgrading expenditure as recorded in Point 4.1 “was not brought up for discussion or approved in the 24th AGM” (see [160] above), ²⁵³ accepted in his affidavit of evidence-in-chief (“AEIC”) that “the Defendant could have said that generally upgrading or maintenance works was needed” ²⁵⁴ and again at trial that Points 4.2–4.5 were in fact raised at the 24th AGM. ²⁵⁵ There must have been some actual or potential need for funds. Otherwise, the SPs, whom the Plaintiffs accept were very careful with their finances, ²⁵⁶ would have been unlikely to approve a 20% and 10% increase respectively in their maintenance and sinking fund contributions. It is recorded in the opening words of Point 4.1 that KL Tan proposed to reduce the contributions in view of the economic slowdown. I therefore find that it is more likely than not that the SPs could only be persuaded to agree to the increase their maintenance and sinking fund contributions after they were presented with a shortfall in the accounts, as set out in Point 4.1. I pause as an aside to note that these minutes of the 24th AGM do not record any objections that such works were unauthorised.

165 Secondly, the circulars describing the works undertaken or yet to be undertaken to the Development that were sent by the Council before and after the 24th AGM on 9 October 2008 (see [141]–[158] below) bear out the fact that works to the Development had been discussed at the 24th AGM. The Plaintiffs had not raised any contemporaneous objections to these circulars. On the contrary, the Plaintiffs had actively participated in the works, at one point even requesting that the MCST 1024 re-tile the walls instead of the floor of the lobby adjacent to their units (see [154] above).

166 Thirdly and most importantly, KL Tan in his letter dated 13 July 2009 to the Defendant alleging variations in the works between different parts of the Development had accepted that the events as set out in Point 4.1 did in fact transpire at the 24th AGM. ²⁵⁷

167 The effect of these findings is that the notification of the works to the Development to the SPs at the 24th AGM (as reflected in Point 4.1) and via the circulars sent by the Council (at [141]–[158] above), coupled with the lack of any contemporaneous objection by any of the SPs to the works in the context of the informal decision-making practices/processes of MCST 1024, amounted to an authorisation of or at least agreement to the works by the SPs. Since there is no dispute that the Annex A Works were undertaken pursuant to these notifications, insofar as the existence of these notifications is in fact established, I find that the Annex A Works were in fact authorised or at the very least agreed to by the SPs of MCST 1024.

168 With these observations in mind, I turn to individual items that comprised the Annex A Works. I need not repeat my comments on the nature of the evidence and the submissions thereon. There is also no need to repeat my findings set out above. I now turn to consider the Plaintiffs’ claims in relation to the larger items of expenditure, which together account for at least $385,295.88 of the $475,708.44 of Annex A Works (see [134] above).

169 Item 1 (“Upgrading of fencing & sliding gate”) for $30,000.00 and Item 12 (“Upgrading of fencing & sliding gate (balance) and additional work for entrance driveway”) for $35,600.00. I note the Plaintiffs recognised in their SOC that $65,600.00 on works to the boundary wall had been approved at the 23rd AGM. ²⁵⁸ However, they did not relate this sum to Items 1 and 12 of the Annex A Works. In any event, I find that these works were approved at the 23rd AGM as part of a unanimous resolution by the SPs to raise the driveway and to replace the fencing around the Development with a boundary wall (see [24] above). No objection was taken at the 24th AGM when the Defendant informed the SPs that these works had been completed. At trial, Sarah Tham and CY Lim confirmed the same on behalf of the Plaintiffs, ²⁵⁹ as did KL Tan, who was Treasurer at the material time. ²⁶⁰

170 Item 4 (“A&A Work at 53 Kim Keat 5th floor – Male/Female Toilets”) for $38,521.07. ²⁶¹ Despite their detailed criticism of the Annex A Works performed on the toilets, the Plaintiffs did not drill down to the individual items comprised in these invoices to make out their case that Item 4 was unauthorised. Item 4 relates to inter alia the re-tiling of the floor and walls of the fifth floor toilets at Block 53, the instalment of new sanitary wares, and extensive “hacking” works to install new water and sewerage pipes. ²⁶² Notably, Sarah Tham conceded that Item 5 (“Additional Work at 53 Kim Keat – Male/Female Toilets”) for $4,194.40 had been authorised. ²⁶³ Item 5 concerns primarily “[a]dditional hacking work” to replace the existing “cast iron soil waste pipe” with a “hubbless [sic] soil waste pipe” at the same toilet. ²⁶⁴ Both Item 4 and Item 5 had been performed by Kian Wah, which invoiced MCST 1024 for both of the items on the same day, 28 July 2008. Clearly, both items related to the same set of A&A works to the fifth floor toilets at Block 53. The Plaintiffs themselves plead Item 4 as “A&A Work” and Item 5 as “Additional Work” [emphasis added]. In addition to the reasons set out above, this inconsistency made it difficult to accept that Item 4 was unauthorised (see also [139] above).

171 Item 11 (“Design Work for Upgrading at 51/53 Kim Keat”) for $9,500.00. ²⁶⁵ This entailed the provision by Mod Creations of “Professional Services” vis-à-vis the Annex A Works to Block 51 and Block 53 such as “Design & Conceptualization Work” for the lift lobbies and toilets, “Detailed Drawings” for each of the lobbies, and “Project Management”. ²⁶⁶ In my view, design works are a necessary part of these kinds of work, and I struggle to see how the expenditure on them can be unauthorised. At trial, Sarah Tham alleged only that, of the design works, a “big chunk was for [B]lock 51 and a smaller chunk was for [B]lock 53”. ²⁶⁷ This went to the Plaintiffs’ allegation of unequal treatment, rather than that Item 11 was unauthorised. But more importantly, Mr Loo, the Plaintiffs’ own expert, attributed $5,700.00 of the $9,500.00 expenditure on Item 11 to Block 53. ²⁶⁸ The Plaintiffs did not clarify Item 11 with Mr Loo thereafter.

172 Item 16 (“A&A works for toilets at 53 5th and 1st floor”) for $42,408.38. ²⁶⁹ At the outset, I note that although Item 16 refers to both the first and fifth floor toilets at Block 53, the invoice for $42,408.38 from Kian Wah that the Plaintiffs refer to in their SOC describes only works to the first floor toilet. ²⁷⁰ A separate invoice titled “A&A Works – 5th floor – Male/Female Toilet at 1st storey Additional work” for $8,453.00, ²⁷¹ also issued by Kian Wah and on the same day as the invoice for Item 16, is not referred to by the Plaintiffs. Turning to Item 16 itself, it was undisputed that in June 2008, a sewerage pipe burst in the first floor toilets of Block 53, leaving a foul smell emanating from the first floor toilets at Block 53. Waste was seen under the soil, and the SPs found the stench quite unbearable. ²⁷² As a result, the toilets had to be overhauled. The extensiveness of the repairs needed can be seen in the evidence of KL Tan, who as Treasurer signed the payment vouchers for the works, that “the whole toilet had to be dug up” ²⁷³ and that it was consequently “logical for the [Defendant] to propose a 25 per cent increase to the maintenance fund and a 15 per cent increase to the sinking fund”. ²⁷⁴ In my view, the Council was entitled to and did in fact approve Item 16 pursuant to its duty to repair and maintain the Development. Item 16 involved hacking off the old and then installing new floors, walls, and toilet cubicles, running new pipes to the toilets, and installing new ceilings and fittings. These works were a necessary consequence in the replacement of the damaged sewer pipe. Indeed, the Plaintiffs accept in their Closing Submissions that the works to the first floor toilet at Block 53 were necessary repairs and maintenance: ²⁷⁵

173 Item 19 (“Deposits on labour work at Blk 51 2nd & 3rd floor, sanitary ware at Block 51 all floors and tiles material at Block 51 all floors”) for $42,886.00, Item 21 (“Balance 50% on tiles material at Block 51 all floors”) for $37,390.00, Item 23 (“20% Deposit on labour work, hacking & laying tiles at Block 51 2nd & 3rd floor”) for $5,496.00, and Item 33 (“Progressive Payment on labour work, balance 50% payment for toilet cubicles and purchase of mirrors and water spray head at Block 51, 2nd & 3rd floor”) for $19,057.00 (I note that the invoice corresponding to Item 33 states a sum of $20,047.00. However, neither party addressed this discrepancy in its submission or its evidence. Accordingly, I proceed on the Plaintiff’s pleading of $19,057.00.) ²⁷⁶ These four invoices related to the re-tiling of the second and third floor lobbies and toilets at Block 51, as well as the installation of toilet fittings and accessories including “Casanova” water closets, automatic-flush urinals, and wall-mounted basins at the first to fifth floor toilets at Block 51. ²⁷⁷ The Plaintiffs barely made any reference to the re-tiling of the second and third floor lobbies and toilets apart from in their SOC, and did not cross-examine the Defendant and his witnesses on whether they had been authorised. As for the installation of toilet fittings and accessories, the focus of the Plaintiffs at trial was that these fittings and accessories were superior to those used in Block 53. ²⁷⁸ In essence, the Plaintiffs’ allegation was not that the works had been undertaken without authorisation per se, but that they amounted to unequal treatment between the SPs of Block 51 and the SPs of Block 53. I consider this allegation below, under the Annex B Works (see [195] below).

174 Item 20 (“20% Deposit for toilet plumbing work at Block 51 all floors”) for $7,120.00 and Item 22 (“Progressive Payment (20%) for toilet plumbing work at Block 51 all floors”) for $7,120.00. I found it impossible to discern the details of these works, let alone find that they had been undertaken without authorisation. As recorded on the payment voucher for Item 20, Items 20 and 22 involved respectively a 20% deposit and a 20% progress payment for “proposed toilet plumbing work for level 1–5 @ [Block] 51” for a total sum of $35,600.00. ²⁷⁹ However, only the payment vouchers for Items 20 and 22 were exhibited, but not the underlying invoice for $35,600.00 from Mod Creations (which bore the reference number 3222A/08, as handwritten on the payment voucher for Item 22). The payment vouchers were regrettably scant on the particulars of the “toilet plumbing work” performed by Mod Creations. Yet the Plaintiffs did not even cross-examine the Defendant and his witnesses on this work. Further, the expenditures on Items 20 and 22 amounted to only 40% of $35,600.00 expenditure on the “toilet plumbing work”. It is noteworthy that the Plaintiffs pleaded only this portion of the total expenditure, and made no allegation as to the remaining 60%.

175 Item 36 (“60% Deposit for labour, plumbing work at Block 51 1st, 4th & 5th floor”) for $45,712.33 and Item 52 (“Balance payment of labour, plumping [sic] work at Block 51 1st, 4th & 5th floor”) for $30,474.88. ²⁸⁰ Kian Wah performed these works. As set out in the quotation from Kian Wah, the expenditures for these works entailed inter alia, “Labour charges for laying marble wall”, “Labour charges for laying wall tile”, and “Bird Mouth edge with polishing for tile at corner point”. ²⁸¹ The Plaintiffs alleged that the quotation “was not shown to the [SPs] of [B]lock 53”. ²⁸² However, CK Loo, to whom the quotation and the invoices had been made out, ²⁸³ testified that he had shown the quotation to KL Tan, who was a member of the Council, in May 2008. ²⁸⁴ This was not disputed by the Plaintiffs, who asserted only that KL Tan had told CK Loo to present the quotation at the 24th AGM and that CK Loo had failed to do so. To that end, there was no reason why KL Tan could not have raised the issue of the quotation (and what the Plaintiffs contend to be excessive expenditure) at the 24th AGM, particularly when he had vigorously resisted a proposal by the Defendant to raise the maintenance and sinking fund contributions to pay for the Annex A Works. The fact that KL Tan did not see fit to bring up this quotation at the 24th AGM suggests that he had found the works therein not to be out of the ordinary, and reinforced my view that they were not unauthorised.

176 Item 61 (“Labour Work at Block 51 2nd, 4th & 5th floor) for $14,190.34. ²⁸⁵ No attempt was made to relate these works to any invoice or payment voucher. Also, no evidence was given on the works, save for a bare denial by Sarah Tham that Item 61 had been authorised. ²⁸⁶ Finally, no submissions were made on these works. There was however an invoice from Kian Wah entitled “A & A Work for 2nd floor to 5th floor lift lobby area at No 53, Kim [sic] Keat Road” for the very same amount of $14,190.34, which listed, inter alia, “Hack off existing floor tile included to cart away (2nd, 4th and 5th floor)” and “Labour charge for laying new floor tile (2nd, 4th and 5th floor)”. ²⁸⁷ However, this invoice was described as relating to works to Block 53 rather than Block 51. Given the dearth of evidence on Item 61, I am unable to find that it was unauthorised.

177 Item 62 (“Joinery Work – doors for toilets, staircase, electrical riser, telephone riser, fire hose reel, pipe duct area etc.”) for $26,839.88. These works were performed by Kian Wah, and entailed the installation of doors with “Zebrano veneer & veneer ply finish” at the lift lobbies of Block 51. ²⁸⁸ At trial, the primary position taken by the Plaintiffs was that these doors were more expensive than those at Block 53. Sarah Tham described the doors at Block 51 as of “superior quality”. ²⁸⁹ This was properly an allegation of unequal treatment between the SPs in Block 51 and Block 53, rather than an allegation that the works were unauthorised. But more importantly, the Defendant gave evidence that there were no doors at the lobbies of Block 53, and that the doors installed at Block 51 were “one to one replacement of doors at the lift lobby area”. ²⁹⁰ Sarah Tham accepted that there were no doors at the lift lobbies at Block 53, ²⁹¹ and admitted that for Block 51 she “don’t know what was before the renovation, whether there is door or not”. ²⁹² I was thus unable to accept the Plaintiffs’ contention that these works were unauthorised.

178 For completeness, I set out my findings in relation to some of the other items of the Annex A Work that involved comparatively smaller expenditure:

(a) Item 13 (“Purchase 14 pcs lights for 53 1st level toilet”) for $784.00. ²⁹³ When the sewerage pipe at the first floor toilets of Block 53 burst, the whole toilet had to be dug up (see [172] above). Even if the exposed sewerage and/or the repair works thereto did not directly affect items of common property like the toilet lights, the replacement of such items was certainly reasonable and within the authority of MCST 1024. These items were over 20 years old, and it was only logical and sensible that a new ceiling and new lights were installed once the toilets had been overhauled, as reflected in Item 13.

(b) Item 17 (“Install 1 Directory Sign at lift lobby & to anodize black colour”) for $2,100.00 and Item 18 (“Re-arrange of Directory Sign at 53”) for $380.00. ²⁹⁴ Sarah Tham accepted that these works had been expressly authorised by the 23rd AGM, ²⁹⁵ and withdrew the complaints of the second plaintiff in relation to these works. ²⁹⁶ CY Lim did not give any evidence to the contrary on behalf of the fourth plaintiff.

(c) Item 39 (“30% Deposit for stainless steel hairline finished master door letterbox at Block 51 1st floor”) for $960.00 and Item 46 (“Balance 70% Payment for letterbox at Block 51 1st floor”) for $2,464.00. ²⁹⁷ The Plaintiffs’ “complaint is that the letterbox at [B]lock 51 was replaced but the one at [B]lock 53 was not.” ²⁹⁸ However, the letterbox at Block 51 had never been replaced since 1986, and was at least 12 years older than the letterbox at Block 53, which had been replaced in 1998. ²⁹⁹ At the time of its replacement, the original letterbox at Block 53 was approximately 17 years old. To replace the letterbox at Block 51 no less than 22 years after its construction can fairly be considered a work of repair and maintenance.

179 In the Plaintiffs closing submissions they point out that the Defendant admitted that there was a “technical mistake in not obtaining consent before proceeding with the work.” ³⁰⁰ The Defendant was not cross-examined on this point. Importantly, that submission is not the full story. The full extract from the minutes of the 25th AGM reads:

It is clear that the Defendant’s explanation for not holding an EGM to approve the works was the informal practice adopted, ie, the “work-on-trust” basis, which I have dealt with above.

180 According to the minutes of the 27th AGM, ie, the AGM held by the Mok Camp and which was eventually ruled by the STB as the valid AGM, the SPs unanimously confirmed the minutes of the 26th AGM, and then “unanimously resolved to confirm and accept all the outstanding minutes of the 25th AGM held on 5 Oct 2009 and the [EGM] held on 6 April 2010 and 24 July 2010 respectively”. ³⁰² Thereafter, the SPs “unanimously resolved to approve the accounts and adopt the three (3) audited financial reports for the years ended 30 June 2009, 30 June 2010, and 30 June 2011”. ³⁰³ I shall refer to these resolutions collectively as the “Ratification Resolutions”.

181 The Plaintiffs submit that the Annex A Works have not been ratified. First, the 25th AGM did not pass a motion that had been tabled to ratify the Annex A Works. ³⁰⁴ Secondly, the 26th AGM merely considered a motion to “decide on the unresolved upgrading expenditure not exceeding $530,000”, and decided that the amount be “reviewed and verified further” without passing the motion. ³⁰⁵ Thirdly, the Ratification Resolutions were defective. Although the SPs in the Plaintiffs’ Camp had been present at the 27th AGM, their votes had not been taken. As previously noted, at this AGM, the SPs split into two meetings within the same room, one held by the Mok Camp and the other by the Plaintiffs’ Camp. The SPs in the Plaintiffs’ Camp should thus be treated as having voted against the Ratification Resolutions, which the SPs in the Mok Camp, who held only 44% of the share value of the Development, lacked the requisite majority to pass. ³⁰⁶ Further, the notice of the 27th AGM (the “27th AGM Notice”) did not refer to the minutes of the 25th AGM (or the two EGMs thereafter) and the audited financial reports for FY2009 and FY2010. This was in breach of s 27 read with Paragraph 1 of the First Schedule to the BMSMA that invalidated the Ratification Resolutions. ³⁰⁷

182 The Plaintiffs add that in any event, mere adoption of the audited financial reports of MCST 1024 does not amount to ratification of the Annex A Works. ³⁰⁸ The SPs (in the Mok Camp) in adopting the audited financial reports accept only that the figures therein are current and that the sum stated in the report has been spent on the purposes stated. ³⁰⁹

183 In Fu Loong (HC), the High Court dismissed an application by the Plaintiffs to invalidate a ruling by Dr Mok at the 5 June 2013 EGM that their motions to revoke the Ratification Resolutions out of order. Chan J held that pursuant to the decision of the STB in STB78/2011 (see [45] above), the Mok Meeting was the valid 27th AGM and that the resolutions passed thereunder (including the Ratification Resolutions) had been validly passed (Fu Loong (HC) at [45]). However, “there was no resolution to ratify any previous upgrading work expenses passed during the 27th AGM”, and that “the approval and adoption of audited financial reports did not amount to a ratification of past upgrading work expenses” [emphases in original] (Fu Loong (HC) at [46]). Chan J added (Fu Loong (HC) at [52]):

184 In Fu Loong (CA), the Court of Appeal granted the clarification sought by Dr Mok’s counsel that Fu Loong (HC) did not stand for the blanket proposition that a ratification of accounts could never amount to a ratification of the individual expenditure items in those accounts. It would be apposite to set out the Court of Appeal explanation (Fu Loong (CA) at [42]):

185 At the outset, I note that the Plaintiffs do not dispute the veracity of the minutes of the 27th AGM, and of the Ratification Resolutions reflected therein.

186 The minutes of the 27th AGM state that the Ratification Resolutions were unanimously passed. Further, WC Mok and all his witnesses, KK Lee, Jessie Ang, CK Loo, WK Mok, WT Mok and Thomas Neo, each of whom was present at the 27th AGM, gave evidence that they had understood that when voting in favour of the Ratification Resolutions, they were also ratifying the authority of the Council to undertake the Annex A Works as well as the expenses incurred by MCST 1024 in consequence. This evidence is not challenged by the Plaintiffs. Indeed, the Plaintiffs had together with five other SPs in the Plaintiffs’ Camp had on 23 April 2013 written to the Secretary of MCST 1024 to requisition, inter alia, that various “resolutions, passed at the 26th and/or 27th [AGMs] be revoked”. ³¹⁰ These included “[t]he ratification of the Upgrading Work Expenses of about $530,000 or any other sum” and “[t]he adoption of all Financial Reports ended 30 June in years 2009, 2010, 2011 and 2012 and the Interim Financial Report from 1 July 2012 to 31 July 2012” (see [53] above). Implicitly at least, the Plaintiffs must have accepted that the expenditure of $530,000 had been ratified at the 26th and/or 27th AGMs. I do not accept the Plaintiffs’ submission that this requisition was “a pre-emptive measure, to revoke any such resolution, if it had been passed”. ³¹¹ The text of the requisition is clear, and refers unambiguously to “[t]he ratification” that had been passed. But more than that, Sarah Tham admitted in cross-examination that the Plaintiffs had made the requisition because the expenditure on the Annex A Works had been “unanimously ratified by all who attended [the 27th AGM]” in the Ratification Resolution: ³¹²

187 Sarah Tham conceded further that the Ratification Resolutions have not since been revoked, and that if the ratification remains, she had no case in respect of the Annex A Works: ³¹³

188 I do not accept the Plaintiffs’ contention that the SPs at the Mok Meeting lacked a sufficient majority to pass the Ratification Resolutions because they held only 44% of the share value of MCST 1024. The Plaintiffs relied on Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346 ³¹⁴ and The Queen v The Overseers of Christchurch, Middlesex (1857) 7 El & Bl 409 ³¹⁵ to contend that a member present or assembled at a meeting who does not vote on a resolution should nevertheless count as part of the corpus of participants at the meeting (from which the number of votes needed to constitute the requisite majority is calculated). However, these cases do not address the question of what it means to be “present” at a meeting. Mere physical existence at the venue a meeting cannot ipso facto constitute such “presence”, otherwise the question of “presence” at a meeting would simply come down to the physical boundaries of the venue. Something more is required: that of a conscious choice on the member’s part to participate in the meeting, even if he chooses to abstain from voting on a particular resolution. Although the SPs in the Plaintiffs’ Camp may have physically been in the same room as the SPs in the Mok Camp at the time of the 27th AGM, the SPs in the Plaintiffs’ Camp had chosen not to take part in the proceedings of the Mok Meeting. On the contrary, they had gathered to hold their own meeting in the same room. Hence they could not be said to have been part of the corpus of the Mok Meeting.

189 More importantly, under s 2(2) and (3) of the BMSMA on ordinary and special resolutions respectively, the relevant votes at a general meeting of a management corporation are the votes “cast” by SPs, whether for or against a resolution. This suggests that an SP must take the active step of voting, either for or against a resolution, in order for his vote to count. Having chosen to neither participate nor cast any votes in the Mok Meeting, the SPs in the Plaintiffs Camp cannot now assert that they had in fact voted against the Ratification Resolutions. I set out s 2(2) and (3) of the BMSMA with the appropriate emphases added in italics and bold italics:

190 The difficulty for the Plaintiffs’ Camp is that they took the unfortunate decision to hold a separate AGM and, of the two AGMs that were held, the STB in STB78/2011 ruled that the AGM held by the Mok Camp was the valid 27th AGM, see [45] above. That decision was not appealed against. Having chosen that option and not attending and voting at the AGM held by the Mok Camp, they are now bound by what occurred at that valid AGM.

191 I turn now to the Plaintiffs’ allegations of defects in the 27th AGM Notice, and the effect of such defects on the validity of the Ratification Resolutions passed at the 27th AGM. These objections should have been taken in OS569/2013, where the Plaintiffs applied to invalidate Dr Mok’s ruling out of order their motions to revoke the Ratification Resolutions. Having neglected to do so before either Chan J or the Court of Appeal, the Plaintiffs’ attempt to do so now is, in my view, an abuse of process under the rule in Henderson. A litigant will not be permitted to argue points that should have been, but were not, previously determined by a court or tribunal “because they were not brought to the attention of the court or tribunal in the earlier proceedings even though they ought properly to have been raised and argued then” (see The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 at [101] citing Henderson at 381–382).

192 OS569/2013 was, in substance, an application by the Plaintiffs to revoke the Ratification Resolutions. Any deficiency in the 27th AGM Notice that had the effect of impugning the Ratification Resolutions passed at the 27th AGM was a “point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” (see Henderson at 382). Yet, as Chan J observed in Fu Loong (HC) at [51], “[t]he Plaintiffs’ affidavit [in OS569/2013] was silent on why it was necessary to revoke the approval and adoption of the audited accounts.” Moreover, the Plaintiffs raised their objections to the 27th AGM Notice for the first time only in their closing submissions, having maintained in their pleadings and at trial that the Account Adoption Resolution was not valid only because it was not passed with a requisite majority of SPs. ³¹⁶ I am therefore unable to accept these belated objections.

193 On the facts and in the circumstances of this case, I find that the SPs in passing the Ratification Resolutions ratified the upgrading expenditure on the Annex A Works set out in the audited financial reports, and the SPs treated the adoption of audited financial reports as a amounting to a ratification of the individual expenditure items therein. At the 25th AGM, the SPs did not pass the audited financial report for FY2009 because the Plaintiffs’ Camp disputed the authorisation of the Annex A Works (see [35] above). At the 26th AGM, when the authorisation of the Annex A Works remained unresolved, the SPs similarly did not pass a motion to adopt the audited financial report for FY2010 (see [40] above). This practice was confirmed by Sarah Tham: ³¹⁷

194 Accordingly, when the 27th AGM passed the Ratification Resolutions it can only be taken to have ratified the upgrading expenditure on the Annex A Works set out in the audited financial reports. Sarah Tham conceded as much: ³¹⁸

195 I now deal with the Plaintiffs’ allegations that in the undertaking of the Annex B works the Defendant had treated them (and the other SPs in Block 53) unequally as compared those in Block 51, ³¹⁹ thereby breaching his fiduciary duties to manage MCST 1024 for the benefit of all the SPs. The Plaintiffs allege that in respect of the Annex B Works “far superior and more extensive” works were carried out to Block 51 than to Block 53 ³²⁰ The Defendant used his position as to gain for himself and the SPs in the Mok Camp the advantage of “improvements and high quality renovations to the common property of Block 51 (and the 1st and 5th floors in Block 53) where [they] own units”. In consequence, “MCST 1024 incurred excessive costs and expenses for the renovation for which it did not have the funds”. ³²¹ It is important to note that Blocks 51 and 53 are quite different in layout and area. They were designed by different architects and constructed by different building contractors some 5 years apart. There is also some evidence that Block 51 was designed to the specifications of the developer’s subsidiary which included the choice of material used for the building and which was subsequently sold to the subsidiary for their own usage. ³²²

196 It therefore does not take the Plaintiff far to simply rely on a report by Mr Loo (P2 – Estimated Cost Over-Spent on Block 51) that there was an over-spending of $99,962.02 on Block 51 because: (a) the works to Block 51 cost $295,411.64 while those to Block 53 cost only $127,186.80; and (b) the cost of the works to Block 51 would have been only $195,449.62 if it had been renovated to an equivalent standard as Block 53. ³²³ Some of the works to Block 51, which works were allegedly carried out to a higher standard than those to Block 53, were in fact paid for by the SPs at Block 51 and not MCST 1024. The Plaintiffs simply submit that “[o]nly some additional costs were borne by the SPs of Block 51”, ³²⁴ and point to a list compiled by the Defendant of the improvements paid for by the SPs at Block 51. ³²⁵ However, the list shows that the SPs at Block 51 paid for $124,818.12 of improvements, which exceeds the $99,962.02 allegedly over-spent on Block 51. The Plaintiff did not dispute the veracity of the list, and made no allegation that the contents of the list do not relate to the items on the report on over-spending at Block 51 prepared by Mr Loo.

197  I turn now to the nine specific items of Annex B Works, as pleaded by the Plaintiffs in their SOC. ³²⁶ I consider also the Plaintiffs’ claim, which the Plaintiffs did not plead but made only in submission, that the 20-year-old lift mechanism at Block 53 has not been changed despite the many requests made by SPs from the Plaintiffs’ Camp since the 14th AGM on 18 September 1998 to do so. ³²⁷

198 Item A: “the common corridors at Block 53 2nd & 5th floors were not tiled even though the corridors are common property, but for Block 51 expensive marble and granite tiles were used”. At the outset, I note that there are no common corridors at Block 51, ³²⁸ and Item A could relate only to the lobbies there. However, comparing the common corridors (with or without the lobbies) of Block 53 against the lobbies of Block 51 would not be a like-for-like comparison based on the photos adduced by the Plaintiff. No party provided any evidence or submission on how such a comparison should be made. Moreover, marble and granite was used only at the fifth floor lobby of Block 51. Quartz wall tiles were laid on the walls on the first floor lobby of Block 51, while deco-coloured mosaic was used on the walls and floors of the fourth and fifth floor lobbies of Block 51. Sarah Tham conceded that the marble and granite at the fifth floor lobby had been paid for by an SP from the Mok Camp, and took issue only with the quartz wall tiles at Block 51. ³²⁹ However, the relevant invoice from Mod Creations shows that MH Singapore had paid for both the “supply” and “laying” of the quartz wall tiles. ³³⁰ Neither CY Lim nor KL Tan gave evidence on marble, granite, or quartz titles at Block 51. Accordingly, I find that there is no substance to this complaint of unequal treatment and this claim in Item A must be dismissed.

199 Item B: “there are fewer lights installed at Block 53 and they were ordinary down lights whereas the Defendant installed fibre optic lights at his 5th floor office at Block 51”. I deal first with the quantity of lights and then the quality of lights.

(a) It was undisputed that there were more downlights at Block 51 than at Block 53. Even so, it was also undisputed that the lobby at Block 51, where all the downlights were installed, spanned a larger area than that at Block 53. This was confirmed by Sarah Tham. ³³¹ The floor plans of Block 51 and 53 showed that the lobby of Block 51 was more than double the size of the lobby of Block 53. ³³² Neither KL Tan nor CY Lim gave evidence on the number of down lights at the lobbies of Block 51 and Block 53. Further, the Plaintiffs did not make any submissions on whether, in light of the comparative sizes of the lobbies at Block 51 and Block 53, the number of downlights at the former was unjustified. Accordingly, the Plaintiffs were unable to prove, as far as the quantity of lights was concerned, that there was unequal treatment of the Plaintiffs.

(b) It was undisputed that fibre optic lights were installed at the fifth storey of Block 51. However, these lights were located at the fifth floor lobby and not the Defendant’s fifth-floor office, as pleaded by the Plaintiffs. Moreover, the fibre optic lights were purchased by an SP in the Mok Camp, with the invoices in question addressed to MH Singapore. ³³³ This was confirmed by Sarah Tham, ³³⁴ who explained that the issue of the fibre optic lights had been raised because they were “additional fixtures” in Block 51 that were “expensive”. She then claimed that “this additional fixtures will increase the consumption of electricity”, ³³⁵ which was charged to MCST 1024. However, the Defendant gave evidence that these fibre optic lights draw their power from his unit, and not from the common grid of the Development. Moreover, the electricity bills of MCST 1024 show that electricity consumption for Block 51 had, on the whole, decreased rather than increased after the fibre optic lights were installed. ³³⁶ Neither KL Tan nor CY Lim gave evidence on the fibre optic lights at the fifth floor of Block 51. Accordingly, the Plaintiffs’ claim on unequal treatment with respect to these works are also without foundation and must fail.

200 Item C: “the directory is of a lower grade for Block 53”. I note at the outset that, at trial, the Plaintiffs withdrew all their claims in relation to the directory at Block 51 (see [178(b)] above) under the Annex A Works. There was no withdrawal of Item C. Nevertheless, I am also of the view that the differences between the directories at Block 53 and Block 51 do not amount to unequal treatment of the SPs in Block 53. Sarah Tham deposed that the “directory for Block 53 is a bare aluminium panel with old vinyl text”. In contrast, the “directory for Block 51 is boxed up, lighted up and comes with a display monitor”. ³³⁷ In cross-examination, however, she accepted that mathematically, MCST 1024 had spent more on the directory at Block 53 than on that at Block 51. ³³⁸ It was then put to Sarah Tham by Mr Lee, that the same aluminium directory board had been installed in both Block 51 and Block 53. Sarah Tham eventually accepted that the two directory boards differed in appearance “because [MH Singapore], the defendant’s company, has paid for the difference and upgraded [the directory at Block 51] to a different looking board”. ³³⁹ Neither KL Tan nor CY Lim gave evidence on the directory signs at Block 51 and Block 53. For completeness, I note that Sarah Tham had observed at trial that unlike the directory at Block 53, the directory at Block 51 was lit up and therefore consumed electricity that was charged to MCST 1024. ³⁴⁰ However, this contention is not supported by the Plaintiffs’ pleadings, or by the evidence of CY Lim and KL Tan, or the Plaintiffs’ complaint as it stood at and after the trial. Neither have the Plaintiffs addressed this in their closing or reply submissions. I therefore find that the Plaintiffs have failed to make out their complaint or claim in respect of this item.

(a) First, it was undisputed that letterbox at Block 53 had been replaced in 1998, whereas the letterbox at Block 51 had never been replaced since Block 51 was built in the 1990s. In my view, it is unreasonable to insist that MCST 1024 must have, in 2008, procured for Block 51 a letterbox of a design identical to that procured for Block 53 in 1998, some ten years ago. Indeed, scouring the market for such a design in 2008, even if such a design was available in 2008 (as Sarah Tham testified), ³⁴¹ could have been costly and unproductive.

(b) Secondly, there were no particulars of this complaint other than a retreat to generalities. From the photographs, ³⁴² each letterbox at Block 51 looks bigger, however there are no dimensions to show if the overall size of the Block 51 letterbox structure was larger than the letterbox structure at Block 53.

(c) Thirdly, from the photographs, I note that Block 51 has nine letterboxes in a three-by-three configuration with two letterboxes below them but spanning the same width, making it a total of 11 letterboxes. In contrast, the Block 53 letterboxes were divided into two segments with each segment containing 12 letterboxes in a two-by-six configuration; this makes a total of 24 letterboxes. At the time of trial, I am told that Block 51 had 8 SPs owning 8 units and Block 53 had 11 units owned by 11 SPs. Why the number of letterboxes per block were discrepant was not explained. I was also not told if each SP in Block 53 had more than one letterbox. These differences were not even touched upon by the Plaintiffs.

(d) Thirdly, in comparing these photographs, one cannot say that the new letterbox at Block 51 is “far bigger and of a superior design” to that at Block 53. How they are superior or larger is not spelt out. From the photographs, their exteriors look similar and are simply of different designs.

The Plaintiffs’ closing and reply submissions also did not address this item. I therefore find that the Plaintiffs have not made out their complaint in Item D.

202 Item E: “only plastic signs were installed for Block 53 whereas solid aluminium, brass or metal signs were installed for Block 51”. The Plaintiffs claimed in their pleadings that only plastic signs were installed for Block 53 whereas solid aluminium brass, brass or metal signs were installed for Block 51. However, in Sarah Tham’s AEIC, she complains that there were signs for the passenger and cargo lift installed at every floor at Block 51 whereas there was no such signs in Block 53. ³⁴³ Her AEIC did not state or identify which signs were in plastic and which were in metal. From the evidence, the signs fall into three broad categories, according to the items of common property to which they relate: (i) the risers and hose reels; (ii) the lifts; and (iii) the staircases. I note the Plaintiffs did not specifically identify the categories of signs with which they took issue.

203 The Defendant’s evidence, which I accept, as well as the documentary evidence, is as follows:

(a) First, Block 51 had three sets of signs: “Electrical Riser”, “Telephone Riser” and “Fire Hosereel” for the simple reason that whilst Block 51 had been designed and built with proper shafts for these risers and the hosereel, Block 53 did not have such shafts. ³⁴⁴ This was a fact and could not be challenged by the Plaintiffs. That said, the signs in relation to the risers, hose reels, and staircases were not commented upon by the witnesses for the Plaintiffs, and were not referred to by the Plaintiffs in their submissions. There is accordingly no substance to this complaint.

(b) Secondly, Sarah Tham deposed that the there was “signage for the passenger and cargo lift installed on every floor in Block 51”. ³⁴⁵ It emerged in cross-examination that there were two lifts, a cargo lift and a passenger lift in Block 51 whereas there was only one lift in Block 53. Under cross-examination, Sarah Tham eventually accepted this as a fact and conceded there was therefore no need for Block 53 to have a similar set of signs for the lift. She then changed her allegation to one that “[i]f the signage is done in [sic] a reasonable price, I think it is acceptable, but it was not”. ³⁴⁶ This was a belated allegation that was not borne out in the pleadings and evidence of the other witnesses of the Plaintiff, and I reject it. There is accordingly no substance to this aspect of the complaint as well.

(c) Thirdly, Sarah Tham complained that the lift signage at Block 51 comprised “solid aluminium letters or cut out solid brass letters with gold plated, lacquered finish”. In contrast, “[t]he lift in Block 53 does not have any lettering” but only plain acrylic signs. ³⁴⁷ As depicted in the photos exhibited by Sarah Tham in her AEIC, the words “Passenger Lift” and “Goods Lift” are spelt out with individually cut-out aluminium and brass letters at the lift lobbies of Block 51 but as Sarah Tham had conceded, for obvious reasons, there was no need to similarly label the one lift at Block 53.

204 I note that the aluminium and brass letters that were installed to label the lifts at Block 53 simply replaced similar cut-out metal letters, some of which had fallen off over time. ³⁴⁸ This too was accepted by Sarah Tham. ³⁴⁹ Although the Defendant deposed further that “for the signage in [B]lock 51, the subsidiary proprietors sponsored part of the cost of the replacement”, ³⁵⁰ I note that the Defendant tendered no documentary evidence in support of this allegation. Nevertheless, the Plaintiffs did not dispute this assertion, either at trial or in their submissions. Accordingly, I find that the Plaintiffs have not made out their allegations in relation to the signs at Block 51 and Block 53.

205 I observe further that signs bearing the additional messages warning against the use of the lift in the event of fire and describing the “maximum design load” are found at both lobbies, albeit engraved on polished metal at Block 51 but printed on acrylic at Block 53. ³⁵¹ It was put to Sarah Tham and she grudgingly accepted that there was a “one to one replacement” of these signs and “when there was previously one sign, we now replace it with a new sign”. ³⁵² These differences were historical and existed long before these disputes arose.

I therefore find and hold that the Plaintiffs have not made out their complaints in Item E of Annex B.

206 Item F: “the toilet doors and door handles are of a lower grade for Block 53”. I consider first the door handles and then the doors themselves.

(a) The photographs exhibited by the parties show little visible difference in quality between the door handles in Block 51 and Block 53. ³⁵³ The Plaintiffs adduced no documentary evidence and did not explain or elaborate why the door handles in Block 53 are of a lower grade. Sarah Tham made no specific submissions in relation to the door handles and did not challenge the evidence of the Defendant during cross-examination that the handles of the toilet doors “are of the same quality”. ³⁵⁴ Accordingly, the Plaintiffs have not established their allegations in relation to the door handles at Block 51 and Block 53.

(b) The works on the toilet doors at Block 51 were performed by Kian Wah. As stated in the invoices issued by Kian Wah, these works were simply to “modify existing door/ door head & door frame in re-con Zebrano veneer & veneer ply finish”. ³⁵⁵ These invoices were made out to MH Singapore, ³⁵⁶ and under cross-examination, Sarah Tham accepted that some subsidiary proprietors had paid for some of the renovation works themselves. However, when shown documentary evidence that MH Singapore had made separate payment for the joinery work, she continued to refuse to acknowledge the clear contents of the documentary evidence. ³⁵⁷ I therefore do not accept her denials on the evidence on this score. I find that the Defendant had paid for the difference in the cost.

(c) However, Sarah Tham asserted subsequently that the differences in the appearances of the toilet doors at Block 51 could not be attributed solely to the works performed by Kian Wah under the invoices above. She explained that the amount under these invoices did not tally with the amount of expenditure, $492,000.00, that the Plaintiffs claim was incurred without authorisation. ³⁵⁸ I do not accept this evidence. It conflated the Plaintiffs’ claims in relation to the Annex A Works and the Annex B Works, and are irrelevant to the Plaintiffs’ allegation that the toilet doors at Block 53 are of lower quality than those at Block 51. That said, KL Tan, who had been sitting in the courtroom, had at this point been shaking his head rather vigorously at various points of the cross-examination and I had to warn him against doing so. ³⁵⁹ On balance, I find that MH Singapore had paid for the costs of laminating the toilet doors at Block 51. Accordingly, the Plaintiffs have not established their allegations in relation to the toilet doors at Block 51 and Block 53.

207 Item G: “the fire escape doors were not upgraded for Block 53”. The Defendant deposed that the fire escape doors in Block 53 had been changed in 2002 at a cost of $10,433.90 whereas those in Block 51 had not been changed since its inception in the 1980s. ³⁶⁰ I note that the cost of changing the fire doors at Block 51 was $7,488.00 ($8,012.16, including GST). ³⁶¹ This was not challenged by the Plaintiffs, with Sarah Tham, CY Lim, and KL Tan giving no evidence on the fire escape doors. Accordingly, the Plaintiffs’ have not made out their complaint of unequal treatment in relation to these works.

208 The Defendant submitted, which I accept, that in Block 53, there were no doors leading off the lift lobbies whereas in Block 51 there were. The differences in the layout can clearly be seen in the floor plans of Block 53, which do not indicate doors to the staircase and with the toilets at the other end of the corridor. When the lift lobby works were carried out, these doors at the Block 51 lobbies were replaced on a one-to-one basis. Sarah Tham had no alternative but to agree to this under cross-examination. ³⁶² However, in reviewing the evidence after the trial, I discovered one photograph of the fifth floor lobby, Block 53, which shows two doors. ³⁶³ I note that the units at the fifth floor of Block 53 are owned by SPs in the Mok Camp. However, this evidence was not referred to by anyone at trial.

209 Item H: “the toilet fixtures, sanitary ware and accessories are of a lower quality for Block 53. For Block 51, the toilets are working of grade A office blocks, some complete with shower and water heater”. I note at the outset that the Plaintiffs adduced no evidence on what “grade A office blocks” entail, or that the toilets in Block 51 were of such a standard. Sarah Tham deposed only that the ground floor lobby (and not the toilets) of Block 51 is of such a standard. ³⁶⁴ As for the works themselves, I make three points:

(a) The Defendant gave evidence that the tiles used at the toilets in Block 51 and Block 53 were sourced from the same country of manufacture. However, due to the fact that the Blocks were renovated at different times, the tiles used were different. Further, the SPs in Block 51 paid for the additional fixtures at the toilets there. ³⁶⁵ The Defendants adduced invoices showing that the cost of the tiles and veneer doors at Block 51 were billed to CK Loo, MH Singapore, or other SPs in Block 51. ³⁶⁶ The Plaintiffs did not adduce or point to any evidence to the contrary. I note too that there were no payment vouchers reflecting that MCST 1024 had paid for these works.

(b) Nevertheless, there is evidence that flush sensors and glass divided urinals were installed at the toilets in Block 51 but not at Block 53. In this regard, the Defendant deposed that flush sensors were necessary due to the smaller size of the toilet at Block 51. Further, at the time when the toilets in Block 51 were renovated in 2009, flush sensors were commonplace at most public buildings, and installing the same at Block 51 was simply part of keeping Block 51 in a state of good and serviceable repair. ³⁶⁷ CK Loo, who had procured the urinals at Block 51 and Block 53 broadly confirmed the same in his evidence. ³⁶⁸

(c) Even so, the Plaintiffs have made no specific allegations in their closing and reply submissions on the installation of flush sensors and glass divided urinals at Block 51, beyond the fact that such works were “clearly improvements and not merely like-for-like repairs and maintenance”. ³⁶⁹ The duty of MCST 1024 to keep the common property in a state of good and serviceable extends to the undertaking of works necessary to keep it in a state of good and serviceable repair (see [105] above). Further, the Plaintiffs have not disputed the evidence that urinals with flush sensors were necessary due to the smaller size of the toilet at Block 51. On balance, I am unable to accept that the installation of flush sensors and glass divided urinals at Block 51 was wrongful.

Accordingly, I found that the Plaintiffs have not established their allegations of unequal treatment in relation to these works.

210 It is worth noting the following three complaints by the Plaintiffs:

(a) First, Sarah Tham made an unfounded allegation that glass swing doors were installed for the toilets in Bock 51. ³⁷⁰ The Defendant corrected that with his evidence that only the second floor toilet had a glass swing door because that was the designated handicap toilet for the whole development. A larger access was required hence the glass swing door was installed. ³⁷¹ The Defendant correctly pointed out in his submissions that this was a sacrifice of the SP on the second floor of Block 51 (an SP in the Mok Camp) because more cubicles could not be constructed and the handicap toilet could only be used by one person at a time. ³⁷²

(b) Secondly, Sarah Tham also alleged that the toilet bowls in Block 51 were of a superior quality. However, she was not able to say how or why they were superior. In the event, she had to concede that they were just of different brands. ³⁷³

(c) Thirdly, Sarah Tham disingenuously said that the toilets on the first and fifth floors of Block 53 were renovated but the third and fourth floor toilets were not. Under cross-examination, Sarah Tham had to admit that once the judgment in OS300/2009 was handed down on 12 April 2010, which held that the toilets on the third and fourth floor were common property, the Defendant proposed a resolution to renovate the third and fourth floor toilets at the first available opportunity on the 26th AGM (6 October 2010), but the Plaintiffs’ Camp voted against that resolution thereby defeating the same. Sarah Tham had no real answer as to why they cast such a vote and yet proceeded to make this complaint before me.

Again these complaints were not raised in the Plaintiffs’ closing or reply submissions and I have little hesitation in dismissing them.

211 Item I: “the electrical distribution boxes are exposed and in disrepair for Block 53 whereas those at Block 51 were neatly covered up with a tailor-made design doors”. The Defendant deposed that there had always been a door to the electrical distribution box at Block 51. In contrast, the electrical distribution box at Block 53 had always been left exposed “as the said Block never had any risers”. This difference was attributable to the fact that the Blocks were “built by different architects / contractors”. ³⁷⁴ Sarah Tham did not dispute this evidence, and accepted that the electrical distribution box at Block 53 had always been left exposed. However, she insisted in cross-examination that the electrical distribution box at Block 53 should have been covered up “[b]ecause we are also contributing to the management sinking fund”. ³⁷⁵ The Plaintiffs did not offer any evidence to show that this state of affairs should have been rectified as a matter of safety or compliance with any codes, nor have they raised this in any general meeting as an item for discussion if they felt it should be remedied. Nevertheless, the Plaintiffs did not take this up in their closing and reply submissions. CY Lim and KL Tan did not give evidence on the electrical distribution boxes. Accordingly, I find that the Plaintiffs have failed to establish their allegations of unequal treatment in relation to these works.

212 For completeness, I note that the Plaintiffs dedicated a substantial portion of their submissions on the Annex B Works to the Defendant’s omission to even consider changing the lift mechanism at Block 53, which “is extremely old and old-fashioned”, despite frequent requests from the SPs in Block 51 to do so. ³⁷⁶ I note the Plaintiffs were able to table this at any time as part of an item to be discussed at an AGM and put to the vote. However there is no evidence that they have ever attempted to do so. Whilst they did raise this on a few occasions at general meetings, they never insisted it be put to a vote.

213 The short answer to this is that the Plaintiffs have made no mention of the lift mechanism at Block 53 in their pleadings, and brought the issue up for the first time in their closing submissions. I am therefore unable to accept the Plaintiffs’ allegations in relation to the lift mechanism at Block 53 as an issue in this trial.

214 Finally, the Plaintiffs raise three issues with the appointment of MH Asia:

(a) First, the Defendant appointed MH Asia as managing agent of MCST 1024 without the approval of the Council or a general meeting in breach of s 66(1) of the BMSMA.

(b) Secondly, the Defendant failed to disclose his pecuniary interest in MH Asia and decline to participate in the appointment decision in breach of s 60(1) of the BMSMA.

(c) Thirdly, the Defendant used his position as Chairman to appoint MH Asia and gained an advantage for himself or for MH Asia via an $8,000 payment from MCST 1024 to MH Asia in breach of s 61(2) of the BMSMA. ³⁷⁷

215 The Defendant denies the Plaintiffs’ claims, and makes the following submissions:

(a) First, MH Asia was appointed to fulfil a need for administrative services by MCST 1024. ³⁷⁸

(b) Secondly, MH Asia (and MH Realty before it) provided only administrative and book-keeping services to MCST 1024. No resolution was needed to appoint it. ³⁷⁹

(c) Thirdly, no separate declaration of the Defendant’s interest in MH Asia required since the Plaintiffs were clearly aware of the Defendant’s interest in MH Asia. ³⁸⁰

(d) Fourthly, the Plaintiffs are not entitled to seek damages for breach of statutory duty since they have no civil right of action against the Defendant arising from any such breach, and, in any event, no damage has been suffered. ³⁸¹

216 At this juncture, it bears mention that the Plaintiffs do not seek damages against the Defendant in respect of these alleged breaches of duty. Rather, they pray in their SOC only for a declaration that the Defendant “did not at [sic] act honestly with regard to the unilateral appointment of [MH Asia] as managing agent of MCST 1024 and unauthorized payment of S$8,000 to the purported Managing Agent, [MH Asia]” (see [68] above).

217 The appointment of a managing agent by a management corporation is not mandatory under the BMSMA. That said, in view of the increasing complexities of the BMSMA, the various procedures that need to be followed, and the onerous duties imposed by the BMSMA on a management corporation, management corporations increasingly appoint managing agents to relieve them of most of these duties, as well as their day-to-day administration of the strata scheme (see Strata Title at para 14.01). This is provided for in s 67 of the BMSMA, which reads:

218 As Prof Teo observes in Strata Title at para 14.39, however, the BMSMA is silent on when it is appropriate for a management corporation to delegate its powers to a managing agent, and when it suffices the management corporation to employ an agent simpliciter to carry out tasks on its behalf under r 12 of the Building Maintenance (Strata Management Regulations) 2005 (S 192/2005), which provides:

219 Accordingly, difficulties may arise in a particular case in determining whether, in the circumstances, a person is acting as a managing agent or performing only managerial services (see Strata Title at para 14.40). Much would therefore depend on the nature of the powers, duties, and functions delegated.

220 The Plaintiffs make no submission on the actual powers, duties, and functions that were delegated to and performed by MH Asia. They allege only that MH Asia had simply “tak[en] over the works of MH Realty”, which had been recorded to have been performing “management and administration” works, and “preparing financial statements, keeping books of account, sending bills/notices and other secretarial/administrative matters”, in the minutes of the 8th AGM in 1992 and the 11th AGM in 1995 respectively. Further, the appointment of MH Realty had been described as that of a “Managing Agent”. ³⁸²

221 In my view, MH Asia (and MH Realty before it) performed only administrative and book-keeping services for MCST 1024. Sarah Tham gave evidence that MH Asia performed the same services as those performed by MH Realty, and that she had never seen MH Realty sign off as managing agent. Further the payment vouchers made out to MH Realty, and subsequently to MH Asia, reflect the provision of only administration and book-keeping services. ³⁸³ Accordingly, I am unable to accept the Plaintiffs’ contention that MH Asia was appointed as managing agent of MCST 1024.

222 The duty of the members of the council of a management corporation is fiduciary in nature and analogous to that of company directors (see Fu Loong (CA) at [27]). In Re Steel and Others and the Conveyancing (Strata Titles) Act, 1961 (1968) 88 WN (Pt 1) (NSW) 467 at 470, Else-Mitchell J held:

223 Similarly, s 61 of the BMSMA provides for, in appropriate cases, imprisonment, fine, and/or disgorgement of profits:

224 Further, s 60 of the BMSMA mandates:

225 The raison d'etre for these rules is “to prevent abuse, malpractice and corruption” by members of the council (Singapore Parliamentary Debates, Official Report (28 July 1987) vol 49 at col 1412 (Prof S Jayakumar, Second Minister for Law)).

226 The Defendant admits that he is a shareholder of MH Asia. ³⁸⁴ However, he submits that he did not need to declare his interest in MH Asia since “the Plaintiffs were clearly already aware of [it]”. ³⁸⁵ Further the Defendant’s interest in MH Asia was not a “material interest” under s 60(2) of the BMSMA, and he was thus exempted from the need to declare his interest. ³⁸⁶ The Defendant adds that MH Asia simply “continued to seamlessly perform the functions [MH Realty] had erstwhile been performing for the MCST”. He had “belatedly realized that MHR[ealty]’s winding up would affect MHR[ealty]’s charges for the services provided to the MCST” and thus “sent a letter to the [SPs] and Council Members on 5 August 2009” to “[i]nform the SPs that MH Asia would takeover MHR[ealty]’s services temporarily” and to request “interested parties to put forward some names for the provision of the same services”. When SPs in the Plaintiffs’ Camp objected to MH Asia’s appointment, the Defendant replied that their “points are noted and will be included in the forthcoming [AGM]”, to which there was no further response from the SPs. ³⁸⁷ Presumably, his submission is that the SPs had acquiesced in the appointment of MH Asia.

227 I am unable to accept that the Defendant has no material interest in MH Asia. First, the Defendant is a director of MH Asia. ³⁸⁸ Although he only holds one share in MH Asia, all the other shares are held by MH Singapore. ³⁸⁹ Secondly, the Defendant is the managing director of MH Singapore, and together with his wife own at least 18% of the shares in MH Singapore. ³⁹⁰ The other 21 shareholders in MH Singapore are all from the Mok family, save for Thomas Neo, who is also a fellow director of MH Asia and who gave evidence on behalf of the Defendant in these proceedings, and two others, Lee Chor Ying and Leong Sow Yong. ³⁹¹ That 18% shareholding, in the absence of evidence to the contrary, does appear as the largest block of shares purely on an average. Thirdly and most importantly, there is clear evidence that the Defendant was considered the patriarch of the Mok family, whom everyone in the family “look up to you as a senior member of the family and defer to you in most decisions”. ³⁹² In these circumstances, the submission that the Defendant does not have a material interest in MH Asia is quite misleading.

228 Further, there is no dispute that the Defendant had procured the appointment of MH Asia qua Chairman, and that $8,000.00 was paid by MCST 1024 to MH Asia, of which the Defendant is a shareholder. This $8,000.00 was paid in tranches of $6,000.00 on 6 August 2009, and $1,000.00 on each of 27 August 2009 and 28 September 2009. ³⁹³ The Defendant clearly used his position to gain, directly or indirectly, an advantage for himself or MH Asia. One needs to look no further than the Defendant’s submission that MH Asia was appointed to ensure MH Realty’s winding up did not “affect MH[Realty]’s charges for the services provided to the MCST” [emphasis added].

229 The Defendant explained that MH Asia was appointed as a “temporary measure to assist MCST I024 in fulfilling its administrative duties”. ³⁹⁴ Further, the rate of $1,000.00 per month paid to MH Asia was the same as that paid to MH Realty. ³⁹⁵ This does not assist him. The duty of a member of the Council under ss 60 and 61 of the BMSMA, as well as at common law, is clear. As early as 1 February 2009, and on the first day of each of the seven months thereafter, MH Asia had issued debit notes for $1,000.00 to MCST 1024 “for accounting services for the month”. ³⁹⁶ The Defendant was a shareholder of both MH Realty and MH Asia, as well as Chairman of MCST 1024. He must have known of the winding up of MH Realty, and had appointed MH Asia in its place. Yet he neither placed the appointment of MH Asia before nor declared his interest in MH Asia to either the Council or the SPs in general meeting. Instead, he appointed MH Asia unilaterally, kept the Council and the SPs in the dark on MH Asia until 5 August 2009, and procured the retrospective payment of $6,000.00 to MH Asia (for work done from February to July 2009) the very next day. ³⁹⁷ In doing so, the Defendant used his position to gain, directly or indirectly, an advantage for himself or MH Asia. This was a breach of duty under ss 60 and 61 of the BMSMA, as well as at common law.

230 As noted above, the Plaintiffs limit their claims in respect of MH Asia to a declaration that the Defendant breached his duty as Chairman in the appointment of MH Asia. There is thus no need for me to consider the losses that they or MCST 1024 have suffered as a result of such breach. All that I will therefore do is observe that Sarah Tham accepts, inter alia, that MCST 1024 was in need of book-keeping and administrative services following the winding up of MH Realty, that MH Asia was simply “stepping into the shoes of” MH Realty, and that their objection to the appointment of MH Asia was “technical”. ³⁹⁸

231 I find that the Plaintiffs have not established their locus standi to prosecute this Suit. Accordingly, I dismiss the Plaintiffs’ claims against the Defendant. In consequence, the Defendant’s claims for relief against the third parties, which are premised on the Defendant’s liability to the Plaintiffs, are also dismissed.

232 Even if I am wrong on my conclusions as to the Plaintiffs’ locus standi, I find that they have not established their claims in respect of the Annex A Works and the Annex B Works. In such an event, I decline to grant the declarations sought by the Plaintiffs (see [68] above) insofar as they relate to the Annex A Works and the Annex B Works. However, I will grant the following declaration in relation to the appointment of MH Asia by the Defendant:

233 I will hear parties on costs.