Mamata Kapildev Dave and Others v Lo Pui Sang/Kuah Kim Choo and Others
[2008] SGSTB 7
Case Number: STB 43/2007
Decision Date: 21 Jan 2008
Tribunal: Strata Titles Boards
Coram: Kong Mun Kwong, Philip Chan, Richard Tan, Tan Sook Yee, Teo Pin
Counsel Names: C R Rajah SC, Anand Karthigesu & Lalitha Rajah (Tan Rajah &
Cheah) for the applicants, K S Rajah SC, Philip Fong & Justin Chia (Harry
Elias Partnership) for the 2nd, 4th and 8th respondents, Kannan Ramesh,
Esther Yang & Dian Chen (Tan Kok Quan Partnership) for the 5th, 6th and
7th respondents, Michael Hwang SC (instructed by Phang & Co), Yeo Chuan
Tat, Phang Sin Kat & Susan Wong (Phang & Co) for the 10th respondent
Preliminary Background
1. The Applicants in this case represent the subsidiary proprietors of the
development known as Horizon Towers ("HT") who entered into a collective
sale agreement ("CSA") These are known hereinafter as the consenting
subsidiary proprietors ("CSPs"). The original Applicants were Arjun
Samtani, Wee Hian Siew and Chan Siew Chee. These were replaced by Doreen
Seow, Halimah Tan Bee Lay and Henry Lim Meng Loke ("HL") when the matter
was heard by the Board and the application dismissed on 3 August 2007.
Subsequently, the Applicants appealed against the decision of the Board
and the High Court allowed their appeal and sent the matter back to the
Board for hearing. When hearing resumed on 16 October 2007, the Board
granted an application to replace the second set of Applicants with Mamata
Kapildev Dave, Naseem Jumabhoy and Kazi Maksud Umar.
2. The Applicants were originally represented by Drew & Napier LLC ("D&N)
and subsequently replaced by Messrs Tan Rajah & Cheah ("TRC"). The
Respondents are the subsidiary proprietors of the development who did not
sign the CSA. Those who did not sign the CSA are hereinafter known as
minority owners. There were nine sets of Respondents who filed objections
with the 1st Respondent appearing in person, the 2nd, 4th, 8th and 9th
Respondents were represented by the firm of Messrs Harry Elias Partnership
("HEP") while the 5th, 6th and 7th Respondents were represented by Messrs
Tan Kok Quan Partnership ("TKQP"). The 3rd Respondent withdrew his
objection before the hearing commenced. There was a late filing of an
objection by a subsidiary proprietor represented by Messrs Phang & Co
("PC'') which the Board accepted despite the objections of the Applicants.
This last objector is the 10th Respondent. After the hearing recommenced,
the 9th Respondents discharged their lawyers and continued the case in
person.
3. The CSPs entered into a conditional sale and purchase agreement ("S&P
Agt") with Horizon Partners Pte Ltd ("the Purchaser") in a document
entitled "Option to Purchase" dated 22 January 2007.
4. The Board was duly constituted with no objections to its composition,
carried out two sessions of mediation on 30 May 2007 and 8 June 2007
without success, and proceeded to hear the case on the 27 July and 2 and 3
August 2007. The Board dismissed the application in the afternoon of 3
August 2007.
Resumed Hearing
5. At the resumed hearing, the Board sat for 12 days on 16, 22, 24 and 30
October 2007; 6, 7, 9, 10, 12, 13, 14 and 15 November 2007.
6. The Board considered the evidence filed. Essentially, affidavits were
filed by 11 witnesses of fact and by seven expert witnesses. Two of the
witnesses were subpoenaed, namely, Poonam Harilela and Mohinder Kalra.
There was an application to the Board for Arjun Sarntani to be subpoenaed
as a witness of fact. This application was rejected by the Board as the
application failed to provide the necessary details that the Applicants
were entitled to. Although the Board indicated that the respondents are
allowed to put in another application with the necessary details so that
the Applicants would not be taken by surprise, the Board did not receive
any subsequent application. The Board accepted that the respondents no
longer wanted to bring the witness before the Board. The parties also
filed with the Board, numerous documents. The closing submissions are set
out in the Annex to these grounds of decision.
7. Having received the evidence, the closing submissions as well as reply
submissions from the parties, the Board deliberated on all the issues
raised and delivered its oral decision on 7 December 2007 as set out
below.
"We will start by explaining that this is an application for an order
under Section 84A of the LTSA. There are objections filed and that 10 sets
of Respondents of which the 3rd Respondent has withdrawn are on record.
The Board has received affidavits and heard testimonies of the various
witnesses and it was heard over a period of time which we must say that
lasted longer than most other en blocapplications brought before, the
Board and this was to facilitate the presentation of the Respondents
objections.
The Board has considered other evidence as well put before the Board
including relevant documents and expert reports and expert replies & the
Board has broadly classified the issues into 5 headings, they are :-
1. Constitutional Point;
2. Jurisdictional Point;
3. Section 84A(1) Point : which would generally include your 80%
requirement and the content of the S & P;
4. Section 84A(3) Point : which is basically concerning matters that are
not in compliance with the Schedule, there are a couple of them which I
will not read them out now;
5. Section 84A (9) which basically involved the transaction not in good
faith:
(a) Sale Price
(b) Method of distribution
(c) The relationship between the Purchaser and the Vendor
Now having considered all the evidence before the Board, having considered
the legal submissions by the parties, the Board is able to arrive at a
decision. In particular the Board would like to thank all counsel involved
for their assistance during the hearing and in the submissions and the
Board has in particularly guided by, to name a few: The Phoenix Court
case; s 9A of the Interpretation Act; The Parliamentary Debate Reports
that recorded the speeches of Associate Prof Ho Peng Kee, the Minister
State for Law and Prof S Jayakurnar in his capacity as Minister for Law.
The Board's decision is as follows:-
The Applicants' prayer is granted and the Applicants are to summit to the
Board a draft order for approval and adoption and no order as to cost.
The GD will be released in due course, bearing in mind, the numerous
issues raised by the parties.
As an interim, The Board will say as follows:-
In respect of the Constitutional Point, it has been rejected.
In respect of the Jurisdictional Point, it has been rejected.
In respect of the Sect 84A(1) point as well as the Sect 84A (2) point, we
have been guided by the Phoenix case and the purposive interpretation
approach in terms of interpreting the Legislation. We are also guided by
the fact of that under the Phoenix case reference was made as to whether
there was prejudice or not. Arising from that, the Board has rejected the
grounds put in by the Respondents and in respect of the 5Ih heading, Sect
84(A) 9, the transaction is not in good faith, in respect of sale price,
the method of distribution and in respect of the relation between the
Purchaser and the Vendor, the Board relied on the purposive approach and
referred to the Parliamentary Debate Reports for guidance as to the
meaning of good faith and after much deliberation the Board is of the
opinion that the Respondents have not made out their respective cases as a
matter of fact.
This brings us to the conclusion of this hearing.
Thank you very much."
8. The Board now sets out its grounds of decision in the order of its oral
decision with the necessary departures to facilitate the flow of writing.
The revised headings used are set out below.
(1) Constitutional and Jurisdictional points;
(2) Sections 84A(1) and 84A(3) points;
(3) Transactions not in good faith - section 84A(9)(a) points;
Constitutional and Jurisdictional points
9. What is effectively before the Board, is a request by the 2nd, 4th and
8th Respondents for the Board to give its decision in respect of their
Constitutional Rights and another request by the 1st, 2nd, 4th, 5th, 6th,
7thand 8th Respondents for the Board to give its decision in respect of
the validity of the S&P Agt. However, these requests are framed as
objections to the Applicants' application under section 84A(1) of the Land
Titles (Strata) Act ("LTSA").
10. Accordingly, it is the Applicants' application that gave life to the
Respondents' objections. It is noted that section 84A gives the
Respondents a right to object to the Applicants' application. This is set
out in section 84A(4).
"Section 84A(4)
A subsidiary proprietor of any lot in the strata title plan who has not
agreed in writing to the sale referred to in subsection (1) and any
mortgagee, chargee or other person (other than a lessee) with an estate or
interest in land and whose interest is notified on the land-register for
that lot may each file an objection with a Board stating the grounds for
the objection within 21 days of the date of the notice served pursuant to
the Schedule or such further period as the Board may allow."
The Board's Powers - LTSA 's express provisions
11. Whilst section 84A does not prescribe a list of the grounds of
objection, section 84A mandates the Board's role in two ways. First, the
Board must approve the Applicants' application if the conditions are met
under section 84A(7). All the respondents are not relying on this ground.
Section 84A(7) provides for the respondents to object to the grant of the
application by the Board on two limbs, namely, the financial loss limb and
the failure to redeem mortgage or charge limb arising from insufficient
proceeds of sale.
"Section 84A(7)
Where one or more objections have been filed under subsection (4), the
Board shall, subject to subsection (9), after mediation, if any, approve
the application made under subsection (1) and order that the lots and
common property in the strata title plan be sold unless, having regard to
the objections, the Board is satisfied that -
(a) any objector, being a subsidiary proprietor, will incur a financial
loss; or
(b) the proceeds of sale for any lot to. be received by any objector,
being a subsidiary proprietor, mortgagee or chargee, are insufficient to
redeem any mortgage or charge in respect of the lot."
12. Second, the Board must not approve the Applicants' application in the
prescribed circumstances under section 84A(9). All the respondents are
relying on this section. This section provides for the respondents to
successf3lly object to the grant of the application by the Board when the
Board is satisfied that the transaction of the collective sale is not
conducted in good faith. The Board's decision on issues under this heading
is found in the later part of this Grounds of Decision.
"Section 84A(9)
The Board shall not approve an application made under subsection (1) if
the Board is satisfied that -
(a) the transaction is not in good faith after taking into account only
the following factors:
(i) the sale price for the lots and the common property in the strata
title plan;
(ii) the method of distributing the proceeds of sale; and
(iii) the relationship of the purchaser to any of the subsidiary
proprietors; or
(b) the sale and purchase agreement would require any subsidiary
proprietor who has not agreed in writing to the sale to be a party to any
arrangement for the development of the lots and the common property in the
strata title plan."
13. Accordingly, in regard to the issues that were raised under the
Constitutional law heading and the Jurisdictional point heading, the
respondents appear not to be relying on the above express provisions.
14. As the express powers of the Board are limited to the two
above-mentioned provisions, the Board must dismiss the respondents'
objections relating to their Constitutional Rights and the validity of the
S&P Agt unless it is shown that the Board has the necessary jurisdiction
to give a decision on the issues raised by the respondents. It is not
disputed that it was open to the respondents to have raised these issues
in the Courts.
The Board's Powers - the purposive interpretntion
15. Besides examining the LTSA in order to determine the role of the Board
and therefore its jurisdiction, the Board is bound by the provisions of
section 9A of the Interpretation Act to give the provisions of the LTSA a
purposive interpretation. In order to carry out this exercise, the Board
looked at the Parliamentary speeches made in 1998 during the Second
Reading of the Land Titles (Strata) (Amendment) Bill which explained the
role of the Board when Parliament proposed giving the Board powers to hear
collective sale applications. Extracts of section 9A are reproduced below
for ease of reference. In particular, section 9A(2)(a) and 9A(3) expressly
provide for the Board to rely on the Parliamentary Debate Reports to
assist the Board in the interpretation of the provisions of collective
sale in the LTSA.
"Interpretation Act
Purposive interpretation of written law and use of extrinsic materials
Section 9A
(1) In the interpretation of a provision of a written law, an
interpretation that would promote the purpose or object underlying the
written law (whether that purpose or object is expressly stated in the
written law or not) shall be preferred to an interpretation that would not
promote that purpose or object.
(2) Subject to subsection (4), in the interpretation of a provision of a
written law, if any material not forming part of the written law is
capable of assisting in the ascertainment of the meaning of the provision,
consideration may be given to that material
(a) to confirm that the meaning of the provision is the ordinary meaning
conveyed by the text of the provision taking into account its context in
the written law and the purpose or object underlying the written law; or
(b) to ascertain the meaning of the provision when -
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking
into account its context in the written law and the purpose or object
underlying the written law leads to a result that is manifestly absurd or
unreasonable.
(3) Without limiting the generality of subsection (2), the material that
may be considered in accordance with that subsection in the interpretation
of a provision of a written law shall include
(a) ...
(b) ...
(c) the speech made in Parliament by a Minister on the occasion of the
moving by that Minister of a motion that the Bill containing the provision
be read a second time in Parliament;
(d) any relevant material in any official record of debates in Parliament;
(e) ...
(f) ...
(4) In determining whether consideration should be given to any material
in accordance with subsection (2), or in determining the weight to be
given to any such material, regard shall be had, in addition to any other
relevant matters, to
(a) the desirability of persons being able to rely on the ordinary meaning
conveyed by the text of the provision taking into account its context in
the written law and the purpose or object underlying the written law; and
(b) the need to avoid prolonging legal or other proceedings without
compensating advantage."
16. At this juncture, it is important to note that the Board comprises 5
panel members not all of whom are trained in the field of law. This was
intended by Parliament so that it is "relevant to what the Strata Titles
Board will have to do". This is quoted from the extract of the
Parliamentary Debate Reports Volume 69, column 634 as reproduced below.
"...The other big area that we looked at was the role of the Strata Titles
Board. I think, like I have said in my speech, it is an important safe
guard. The Strata Titles Board will be enhanced. There will be more
members. And as Mr Rai has rightly pointed out, based on personal
experience, the Board comprises senior professionals in the various fields
which are relevant to what the Strata Tirles Board will have to do, not to
decide on the law, but to decide on whether the sale price is one where
there is no collusion, decide on the method of distribution, whether it is
unfair to the minority owners. The composition of the panel will ensure
that this task is better done, rather than a judge sitting in court
fettered by the rules of evidence." [Emphasis by author]
17. It is also important to note how "the role of the Strata Titles Board"
is expressed. First, the Board is"not to decide on the law". This explains
why the Board comprises senior professionals from various fields. Second,
the Board is "to decide on whether the sale price is one where there is no
collusion, decide on the method of distribution, whether it is unfair to
the minority owners".
18. Accordingly, the Board concludes that it was not the intention of
Parliament to empower the Board to resolve the issues now raised by the
respondents before the Board relating to the constitutional and
jurisdictional points. These are matters for the Courts to decide and it
is open to the respondents to pursue the matters before the Courts.
Therefore, the Board dismisses the respondents' objections that are framed
as constitutional and jurisdictional points.
Sections 84A(1) and 84A(3) points
19. The next set of issues that the Board has to deal with concerns
conduct on the part of the Applicants in failing to comply with the
requirements set out in sections 84A(l)(b) and 84A(3) which are reproduced
below for ease of reference.
"Section 84A(l)(b)
An application to a Board for an order for the sale of all the lots and
common property in a strata title plan may be made by the subsidiary
proprietors of the lots with not less than 80% of the share valueswhere 10
years or more have passed since the date of the issue of the latest
Temporary Occupation Permit on completion of any building comprised in the
strata title plan or, if no Temporary Occupation Permit was issued, the
date of the issue of the latest Certificate of Statutory Completion for
any building comprised in the strata title plan, whichever is the later,
who have agreed in writing to sell all the lots and common property in the
strata title plan to a purchaser under a sale and purchase agreement which
specifies the proposed method of distributing the sale proceeds to all the
subsidiary, proprietors(whether in cash or kind or both), subject to an
order being made under subsection (6) or (7)" [emphasis by author]
"Section 84A(3)
No application may be made under subsection (1) by the subsidiary
proprietors referred to in that subsection unless they have complied with
the requirements specified in the Schedule and provided an undertaking to
pay the costs of the Board under subsection (5)."
The applicable law
20. On the issues raised before the Board regarding non compliance with
the requirements concerning collective sales set out in the LTSA, the
Board is very much guided by the judgment of Justice Andrew Ang in Ng Swee
Lung and Another v Sussoon Samuel Bernard and Others [2007] SGHC 190
(Phoenix Court).
21. The starting point must be the learned judge's observation of problems
faced by tribunals when confronted with a challenge of non-compliance with
statutory requirements. The learned judge noted the undesirable result of
Parliament's failure to state the consequences of such non-compliance.
"28 A recurrent problem in the interpretation of statutes is that such
legislation often dictates what requires to be done without also spelling
out the consequence of non-compliance."
22. Fortunately for the Board, the learned judge provides a solution on
how to resolve the stated problem.
"43….the modem approach in Singapore as well as in England, Australia and
Canada is to treat the question as one of statutory construction to be
answered by looking at the whole scheme and purpose of the Act and by
weighing the importance of the particular requirement in the context of
that purpose and asking whether the legislature would have intended the
consequences of a strict construction, having regard to the prejudice to
private rights and the claims of the public interest (if any)."
23. The learned judge had identified the purpose for setting out detailed
procedures in the LTSA as giving"adequate notice of the sale and its
terms" in order for the relevant parties "to decide whether or not to
lodge objections with the Strata Titles Board". It was not intended by
Parliament to put "absolute obstacles"before the Board when it is deciding
whether to grant an order of sale.
"51 As the Minister explained, safeguards were introduced in the
legislation to protect the interests of minority owners. Hence, the
detailed procedures set out in the legislation. As stated by the Minister,
the purpose of these procedures is to
[E]nsure that all relevant parties will have adequate notice of the sale
and its terms, in order to decide whether or not to lodge objections with
the Strata Titles Board. [emphasis added].
The procedures were not built in as absolute obstacles to be surmounted on
pain of the Board being precluded from exercising jurisdiction if any of
the procedural requirements were not met, regardless of whether and to
what extent the interests of the minority were affected."
24. In paragraph 65 of his judgment, the learned judge set out the
minority's right and went on to hold that,"procedural irregularities that
did not prejudice or significantly impair the minority's rights ... should
not affect the determination of the Board to allow the sale to proceed as
it is enjoined to do".
"...the Majority's right to a collective sale was not necessarily
irreconcilable with those of the minority - limited under the statutory
scheme to a right to oppose the sale -
(a) if a financial loss would be incurred or if the proceeds of sale would
be insufficient to render any mortgage or charge;
(b) if the transaction was not in good faith taking into account only the
sale price, the method of distributing the same and the relationship of
the purchaser to any of the subsidiary proprietors; or
(c) if the sale and purchase agreement would require the minority to be a
party to any arrangement for redevelopment of the land.
Thus, as earlier reasoned in [51] to [54], procedural irregularities that
did not prejudice or significantly impair the minority's rights (as
detailed above) should not affect the determination of the Board to allow
the sale to proceed as it is enjoined to do."
Issues raised by respondents
25. Three instances each were raised in respect of non-compliance with the
requirements set out in section 84A(l)(b) and section 84A(3).
(a) Section 84A(1)(b) non-compliance
26. The three instances raised by the respondents in respect of
non-compliance of the requirements set out in section 84A(1) are:
(i) the failure to amend discrepancies in Form 1 details of which are set
out in the 10th Respondent's supplemental Opening Statement (PC 6);
(ii) the failure to include in Form 1, the necessary company resolutions
authorising the signing of the CSA by Harilela B Pte Ltd, Nashford Pte Ltd
and Yeong Soon Cheong (Pte) Ltd; and
(iii) the failure to include in the S&P Agt, the method of distributing
the sale proceeds.
(i) Failure to amend discrepancies in Form 1
27. The objection is basically related to two points. The first point is
an old issue concerning the three missing pages in Form 1 and it was the
reason relied on by the Board when it dismissed the application earlier.
The 2nd, 4th, 8th and 10th Respondents alleged that the application is
defective if Form 1 is not amended. As the High Court sent the matter back
to the Board for hearing, the Board did so. There was no instruction by
the High Court to the Board in its judgment to make amendments to the
statutory declaration.
28. The Board accepts the Applicants' submission set out in paragraph 223
of its Reply Submissions that "No formal application to amend the
collective sale application is necessary because all the relevant material
in respect of the alleged inadequacies of the application have been
brought to the Court's attention." Further, the Board noted that the 2nd,
4th, 8th and 10th Respondents were not prejudiced by this omission to
amend Form 1. Accordingly, the Board dismisses the objection on this
point.
29. The second point concerns the fact that not all the signatures for the
execution pages of the CSA were witnessed. This point had been raised by
the 2nd, 4th and 8th Respondents. The Board noted that there is no such
requirement in The Schedule. The Board also noted that none of those who
signed the CSA has filed any objection in respect of the validity of the
CSA arising from a failure to have the signatures witnessed.
30. Further, the Board noted that the 2nd, 4th and 8th Respondents were
not prejudiced by this omission of witnessing to some of the signatures in
the CSA as they were still able to file their objections under the
permitted grounds. Accordingly, the Board dismisses the objection on this
point.
(ii) Omission of company resolutions in Form 1
31. The 2nd, 4th, 8th and 10th Respondents objected to the grant of the
Applicants' application on the ground that the Applicants failed to
include in Form 1, the necessary company resolutions authorising the
signing of the CSA by the subsidiary proprietors, Harilela B Pte Ltd,
Nashford Pte Ltd and Yeong Soon Cheong (Pte) Ltd.
32. In addition, the 10th Respondent alleges that as a result, those who
have agreed in writing to sell all the lots and common property in the
strata title plan to a purchaser did not own at least 80% of the share
values as required by section 84A(l)(b) only because some of the
subsidiary proprietors who are companies failed to show in Form 1, the
necessary company resolutions that empowered those who signed for and on
behalf of these companies. Therefore, it was not a direct attack on the
failure to obtain the requisite agreement of subsidiary proprietors owning
80% of the share values.
33. The Board noted that the relevant directors' resolutions have been
given to all parties as follows:
(i) the directors' resolution for Harilela B Pte Ltd at page 7 of TRC 11;
(ii) the directors' resolution for Nashford Pte Ltd at page 16 of TRC
1l;and
(iii) the directors' resolution for Yeong Soon Cheong (Pte) Ltd at page 19
of TRC 11.
34. It must be acknowledged that the HT en bloc sale proceedings, both at
the Courts and at the Strata Titles Board had received much publicity and
consequently these proceedings must have had the necessary attention of
all involved. Nevertheless, the subsidiary proprietors concerned in which
the necessary company resolutions that empowered those who signed for and
on behalf of these companies were not shown in Form 1, did not file any
objection before the Board. This might be contrasted with some subsidiary
proprietors who are part of the group of CSPs who filed objections which
the Board had to reject as the LTSA permitted only those who did not agree
to the sale to object.
Omission of method of distributing the sale proceeds in S&P Agreement
35. The 2nd, 4th, 8th and 10th Respondents objected to the grant of the
Applicants' application on the ground that the Applicants failed to
include in the S&P Agt, the method of distributing the sale proceeds.
36. This ground of objection was also raised in the Phoenix Court where
the relevant facts are the same in that whereas the method of distributing
the sale proceeds was not found in the S&P Agreement, it was found in the
CSA. Justice Andrew Ang held that Parliament would not have intended that
the approval of the sale by the Board should be invalidated by reason of
such a technical objection.
"129 Although there was no provision in the S&P Agreement specifying the
proposed method of distribution of the sale proceeds, such specification
was provided in the CSA, a copy of which was given to all the subsidiary
proprietors and to the Board. The subsidiary proprietors were therefore
provided with the information so as to be able to decide whether or not to
object to the sale. (As was explained by the Minister, this was the
purpose of giving notice of the terms of the sale to all relevant
parties.) The Board was also able to carry out its duty under s 84A(9) to
determine whether the sale was in good faith, taking into account the sale
price and the proposed method of distributing the proceeds of sale.
Considering that the purpose of the legislation is to make en bloc sales
easier to achieve and taking into account the compliance in effect if not
in form with the requirement for specification of the method of
distribution and in the absence of any real prejudice to the plaintiffs, I
am of the viewthat Parliament would not have intended that the approval of
the sale by the Board should be invalidated by reason of such a technical
objection."
37. However, in the 10th Respondent's closing submission, it was submitted
that:
"156. If the Phoenix Court case had actually decided that a requirement
for jurisdiction or locus standicould be swept aside merely on the basis
that no prejudice is shown, the 10th Respondents respectively submits that
the decision was in error."
38. The Board is bound by the interpretation given by Justice Ang and
would similarly dismiss the respondents objection on this ground. Besides,
this is not the appropriate forum to look into whether a decision by the
High Court is in error if the respondents are not able to distinguish the
facts before the Board as compared with the facts before the High Court in
the Phoenix Court.
(b) Section 84A(3) non-compliance
39. Three instances of statutory non-compliance were raised by the
respondents in respect of non-compliance with the provisions in section
84A(3):
(i) the failure to convene the EOGM on 25 March 2006 in compliance with
the necessary requisition requirement;
(ii) the failure to give several 8-week notices in compliance with
Paragraph l(b) of The Schedule of the LTSA; and
(iii) the failure to give a valuation report as at the date of sale .
40. As mentioned above, the Board is guided by the decision in the Phoenix
Court. It was held by the learned judge that the Board should allow the
sale if the procedural irregularities complained of by the respondents did
not prejudice or significantly impair the minority subsidiary proprietors'
rights of objections.
"65. ...procedural irregularities that did not prejudice or significantly
impair the minority's rights (as detailed above) should not affect the
determination of the Board to allow the sale to proceed as it is enjoined
to do."
41. The learned judge had earlier identified the purpose of the detailed
procedures set out in The Schedule. It is basically to give the minority
subsidiary proprietors adequate notice of the sale and its terms in order
to decide whether to exercise their rights to object.
"51. As the Minister explained, safeguards were introduced in the
legislation to protect the interests of minority owners. Hence, the
detailed procedures set out in the legislation. As stated by the Minister,
the purpose of these procedures is to
[E]nsure that all relevant parties will have adequate notice of the sale
and its terms, in order to decide whether or not to lodge objections with
the Strata Titles Board. [emphasis added]."
42. Evidently, the party complaining of the procedural irregularity did
not suffer from the same as they did file their objection before the Board
for its consideration under the permitted grounds of objection.
Accordingly, the Board finds that the 2nd, 4th and 8th Respondents are not
prejudiced by the failure to convene the EOGM on 25 March 2006 in
compliance with the necessary requisition requirement and by the failure
to give several 8-week notices in compliance with Paragraph 1(b) of The
Schedule of the LTSA. Therefore, the Board dismisses the objections in
respect of these two grounds.
43. In respect of the third instance of non-compliance, ie, the failure to
give a valuation report as at the date of sale, the Board is also guided
by the decision of the High Court in the Phoenix Court. In that case, the
objection was based on facts that are similar to those before this Board,
ie, the valuation was not as at the date of the sale. The learned judge
held at paragraph 115 that The Schedule only required the valuation report
to be not more than three months old. It did not prescribe that the
valuation must be undertaken with reference to the date of the S&P
Agreement.
"115 In the present case, para 1(e)(vi) of The Schedule does not prescribe
that the valuation must be undertaken with reference to the date of the
S&P Agreement. On the contrary, the requirement clearly is only that the
valuation report should not be more than three months old."
44. This would have been enough to dispose of the matter as in the case
before the Board. However, the learned judge went one step further and
held that:
"117 But even if I were to assume that the plaintiffs were correct, what
would be the consequence of such non-compliance? As noted, the
uncontroverted evidence was that there was no material difference in value
whichever of the two dates the valuation was made on. Given that the
purpose of the legislation is to make it easier to achieve en bloc sales,
and no prejudice to the plaintiffs having been shown, I am of the view
that the legislature would not have intended that the decision of the
Board be invalidated by such a footling objection."
45. The Board in this case similarly finds that the 2nd, 4th and 8th
Respondents have not been prejudiced as the subject matter of the
valuation report, ie the open market value of HT as at 22 January 2007 has
been ventilated in six expert valuations and examined in the process of
this hearing. Accordingly, the Board dismisses this objection.
Transactions not in good faith - section 84A(9)(a) points
46. The final set of issues is founded on grounds of objections prescribed
by section 84A(9)(a). The respondents' objections are based on all three
factors of sale price, method of distributing sale proceeds and the
relationship of the purchaser to any of the subsidiary proprietors. The
relevant provision is set out below for ease of reference.
"Section 84A(9)(a) The Board shall not approve an application made under
subsection (1) if the Board is satisfied that the transaction is not in
good faith after taking into account only the following factors:
(i) the sale price for the lots and the common property in the strata
title plan;
(ii) the method of distributing the proceeds of sale; and
(iii) the relationship of the purchaser to any of the subsidiary
proprietors; or
…"
47. In the recent Phoenix Court decision, the learned judge held that the
burden of proof that the transaction is not in good faith rests with the
objecting respondents.
"132. First, it was alleged that the defendants had failed to show that
the transaction was in good faith allegedly as required by s 84A(9)(a)(i).
The short answer is that the onus of satisfying the Board that the
transaction was not in good faith fell on the party making the
allegation."
Although the case specifically referred to only the first limb, (i), the
Board holds that the same principle applies to the other two limbs of (ii)
and (iii).
Meaning of good faith -purposive interpretation
48. It is common ground that the Board is bound to take a purposive
interpretation of the meaning of good faith as used in section 84A(9)
pursuant to section 9A of the Interpretation Act.
49. Extracts of the Second and Third Readings are set out below. In the
Second Reading, Assoc. Prof Ho Peng Kee explained the role of the Strata
Titles Board (STB) at columns 604 and 634. He identified the role of the
Board as being to determine whether the proposed sale is bona fide and at
arm's length so that the proposed sale can proceed. More importantly, the
Board must do so by considering 4 things, namely, (1) the minority's
objection; (2) the interests of all the owners; (3) all the circumstances
of the case; and (4) the scheme and intent of the en bloc provisions in
the Bill.
"Let me now elaborate on the role of the Board, in particular, how it acts
as a safeguard. The Board will first satisfy itself that the required
consent has been obtained and that prescribed procedures have been
complied with. It will not review or intervene to determine the terms of
sale. Essentially, its role is to determine that the proposed sale is bona
fide and at arm's length transaction so that the proposed sale can
proceed. It will do this by considering the minority's objection, the
interests of all the owners, all the circumstances of the case and the
scheme and intent of the en-bloc provisions in the Bill. The Board will
look at the sale price, method of distributing the sale proceeds to ensure
that the minority owners are treated no less favourably than the majority,
and the relationship of the purchaser to the owners, to ensure that there
is no collusion. If the Board decides that the transaction is bona fide
and at arm's length transaction, the sale will proceed. Otherwise, the
sale cannot proceed and the majority owners would have to rework their
proposal if they wish to sell en-bloc. The Board will not re-write the
agreement for the parties." [Emphasis by author](Singapore Parliamentary
Debate Reports Volume 69 column 604: Second Reading 3 1 July 1998
50. The scheme and intent of the en bloc provisions is basically captured
in the explanation given by the Minister for Law in the Third Reading at
column 1343. It is stated that if subsidiary proprietors were to choose to
apply to the STB instead of the Courts for an order of sale, it would be a
more facilitating method of obtaining it.
"Sir, if you look at the existing scheme, under section 78, it is possible
for an application or some applicants to go to court and get a court order
even though you do not have 100% consent to achieve exactly what the Bill
achieves, except that the Bill now provides a more facilitating method of
achieving this result. So it is not a question that it was impossible for
a subsidiary proprietor or group of subsidiary proprietors where there is
no unanimous consent to have en-bloc sale. It is possible. What we are
doing here is to recognize the frustrations and difficulties, to recognize
in land scarce Singapore, this will enable optimum utilization of land. Is
it or is it not desirable to make this move? So that is the fundamental
question which has been addressed in the Second Reading debate. The Third
Reading here is to discuss the improvements which have been made by the
Select Committee." in Singapore Parliamentary Debate Reports Volume
69colurnn 634, 70colurnn 1343 Third Reading 4 May 1999
51. Further, the Minister of State for Law said that the STB is "not to
decide on the law". As regards "sale price", there should be "no
collusion". As regards "method of distribution", it should "not be unfair
to the minority".
"...The other big area that we looked at was the role of the Strata Titles
Board. I think, like I have said in my speech, it is an important
safeguard. The Strata Titles Board will be enhanced. There will be more
members. And as Mr Rai has rightly pointed out, based on personal
experience, the Board comprises senior professionals in the various fields
which are relevant to what the Strata Titles Board will have to do, not to
decide on the law, but to decide on whether the sale price is one where
there isno collusion, decide on the method of distribution, whether it is
unfair to the minority owners. The composition of the panel will ensure
that this task is better done, rather than a judge sitting in court
fettered by the rules of evidence." [Emphasis by author] "Singapore
Parliamentary Debate Reports Volume 69 column 634: Second Reading 31 July
1998
Issues raised by respondents
52. All the respondents filed objections stating that the transaction was
not in good faith in respect of the sale price pursuant to the first limb
(i) whilst only the 2nd and 8th Respondents filed objections in relation
to the method of distributing the sale proceeds under the second limb (ii)
and the 2nd, 4th and 8th Respondents filed objections in respect of the
relationship between the purchaser and any of the subsidiary proprietors.
Duty of the Sale Committee to see that the sale transaction is not "not in
good faith"
53. Counsel for the 2nd, 4th & 8th, 5th, 6th & 7th and 10th, Respondents
submitted that the Sale Committee ("SC") when exercising the power under
the CSA of selling all the units in the condominium was acting as agent
for the all CSPs as well as the minority (2nd, 4th & 8th Respondents) and
that they were in the position of the mortgagee exercising his power of
sale (2nd, 4th & 8th and 10th respondents). The 10th Respondent in
particular said that the SC was selling property which they did not own
and unlike the mortgagee they had no interest in the property of the other
subsidiary proprietors, hence he would place the duty of the SC in a
position higher that that of the mortgagee.
54. The SC may be agents for the rest of the CSPs. It may well be that as
agents they have certain fiduciary duties, but the Board is to be
concerned only with the issue of good faith vis-2-vis the sale
transaction. (See section 84A(9) LTSA) Any breach of fiduciary duties has
to be assessed in the light of this requirement. In any event members of
the SC are also acting for themselves.
55. The likening of the SC's powers to that of the mortgagee was first
mentioned in the Thevasan Gnanasundram & Others v Khaw Seng Ghee & Another
[2000] SBSTB 4 ("Seedevi"). In that case the Board there said that it
considered "the approach taken by the courts in determining whether a
mortgagee has breached his duty to act in good faith in exercising his
power of sale a useful guide for its assessment whether a collective sale
is in good faith having regard to the factor of price." The Board in the
same case also noted that the mortgagee has in addition to the duty to act
in good faith, the duty of taking reasonable steps to obtain the best
price available at the time of the sale. The Board then went on to say
that in determining whether the mortgagee has breached his duty there are
2 broad areas of enquiry: the steps taken in relation to the sale and the
comparison between the sale price and the hue price of the property. The
Board then concluded that, "these areas of enquiry are equally relevant
for the purpose of section 84A(9)".
56. The Board has considered the views in the Seedevi quoted above and the
submissions of counsel on this point. Under section 84A(9) LTSA we have to
consider whether the transaction was in good faith in regard to the sale
price, method of distributing the sale proceeds and relationship of the
purchaser to any of the subsidiary proprietors. The Board's concern
therefore is clearly only with good faith.
57. The duties imposed on a mortgagee by Equity are (1) acting in good
faith and (2) taking reasonable steps to obtain the best price available
at the time of the sale (Cuckmere Brick Co Ltd v Mutual Finance Ltd[1971]
Ch D 949). The duties on the mortgagee are imposed by Equity fearing that
otherwise the mortgagee may sell the property of the mortgagor for a price
which is sufficient to pay himself what is owing to him under the mortgage
leaving the mortgagor with nothing. But the mortgagee may decide at his
absolute discretion as to when he should exercise his power of sale after
the power has arisen. This is because he, the mortgagee, has his own
interest as a creditor to protect.
58. In the Board's view, the SC's position is not like that of the
mortgagee though superficially there may be some similarity. Members of
the SC are not just selling property of the minority owners, or of the
otherconsenting subsidiary proprietors, they are also selling their own
property. They are not merely interested in the property being sold as
creditors. They have an interest as owners as much as the other subsidiary
proprietors. Thus unlike the mortgagee who is interested as a creditor to
recoup the sum owing to him under the mortgage, the members of the SC are
also selling their own units. Their interest as owners would mean that
they would be inclined to try to obtain the best price available. Thus
under the LTSA the SC's express duty is to see that the sale transaction
goes through for a price that is obtained otherwise than 'not in good
faith'. As counsel for the 10th Respondent has noted in his closing
submissions, there is no express statutory duty on the SC other than this:
they need only ensure that the sale transaction is in good faith.
59. In the context of the mortgagee having to act in good faith, the term
has been held to cover not only absence of bad faith, fraud but also
behaviour that can be said to be grossly negligent In Black's Dictionary
8th Edition which was referred to by both counsel for the 5th, 6th & 7th
and 10th Respondents:- " A state of mind consisting in (1) honesty in
belief or purpose (2) faithfulness to one's duty or obligation (3)
observance of reasonable commercial standards of fair dealing in a given
trade or business, or (4) absence of intent to defraud or to seek
unconscionable advantage".
60. Thus generally the description of good faith involves notions of
honesty, fairness and absence of unconscionable and perhaps even reckless
behaviour. Hence in the Parliamentary debates the Minister for Law and the
Minister of State for Law referred to examples of collusion, conflict of
interest, types of behaviour that have connotations of being less than
honest or a likelihood of there being at least unconscionable behaviour.
61. The Board would agree with the view in the Seedevi that the Board
should consider 2 areas in its enquiry in regard to whether the
transaction is in good faith viz. "the steps taken in relation to the sale
and the comparison between the sale price and the true price of the
property". This approach comes within the description of good faith as set
out in Black's Dictionary 8th Edition.
Application of the good faith requirement to the facts
(A) Steps taken in relation to the sale
62. The relevant events are summarised below.
(1) Marketing right up to August 2006 tender
(2) Decision to sell by private treaty after failed tender
(3) September to December 2006: Marketing via letters and telephone calls
by First Tree Pte Ltd ("FT"), the appointed property agents; members of
SC, and possible co-brokers.
(4) Verbal expression of interest by the Hotel Properties Ltd ("HPL") on
23 December 2006
(5) Written expression of interest at $510 million from Su and Shan
representing Vineyard Pte Ltd ("Vineyard") on 28 December 2006.
(6) Decision by the SC not to follow up on Vineyard's expression of
interest on advice of lawyers
(7) Follow up on the HPL's proposal resulting in option granted to the
Purchaser on 22 January 2007.
(8). HL, a member of the SC also followed up on Vineyard's expression of
interest by asking for deposit of $50 million on 6 January 2007.
63. The Board has given due consideration to items 1-5 listed above and is
of the view that all the steps and action taken right up to and including
the decision to sell by private treaty were in order. The reserve price of
$500 million was on the high side at that time. In any event the public
tender failed miserably resulting only in one expression of interest. It
should be noted that HPL indicated that it was prepared to pay $500
million which was the reserve price. Up to then, no one had indicated any
serious interest in buying.
64. Vineyard's expression of interest came on to the scene on 28 December
2006 via a letter from the Kuala Lumpur ("KL") lawyers Su and Shan.
Vineyard was prepared to pay $510 million. The SC sought advice from its
lawyers about the expressions of interest from Vineyard as well as from
KPL. In so doing the SC cannot be faulted. The lawyer indicated that the
firm of Su and Shan was not known in Singapore and that the CSA had
mandated the SC to sell by private treaty at not less than $500 million.
In the lawyer's opinion the SC cannot be faulted for so exercising its
power as given if it were to follow up on the interest shown by HPL.
Thereupon the SC decided not to pursue Vineyard's expression of interest.
But HL the member of the SC whose contact had brought Vineyard on to the
scene did, in the process, ask Vineyard, through his contact, for further
information and to give a deposit of $50 million if it was serious about
purchasing the property. This was not forthcoming and on 22 January 2007
the SC gave the Purchaser an option to purchase for $500 million and this
was duly exercised.
65. The Board was considerably exercised by Vineyard's expression of
interest and the SC's rather robust attitude to it. The Board noted that
Vineyard's expression of interest at $510 million came before HPL's
indication that it was prepared to pay $500 million. Further the SC
through its member HL asked Vineyard for a deposit of $50 million to be
paid within a few days. This was considerably onerous as contrasted with
the deposit of a mere $5 million required of HPL. However after much
discussion and deliberation the Board came to the view that the SC did not
'not act in good faith' when it did not pursue Vineyard's expression of
interest. The SC had taken the advice of its lawyers as to the
appropriateness of accepting HPL's offer to pay $500 million for HT. While
its attitude towards Vineyard's interest at $510 million might be said to
be robust and cavalier, in the circumstances, the Board is of the view
that it was a judgment call of the SC and not a decision made 'not in good
faith'.
66. It must be remembered that before the option was exercised when HPL
offered to pay $500 million the property market was relatively less
bullish than the latter part of 2007. The failure of the public tender of
HT in August 2006 supports this position. The $500 million reserve price
set in late July 2006 was on the high side. Prior to HT no other en bloc
sale of residential property had come close to $500 million. It was the
biggest en bloc sale of residential property to have been launched then.
Apart from HPL who was prepared to buy at $500 million the only other
expression of interest was from a source unknown to the SC as well as its
lawyers.
67. It might be said that the SC should have checked out Vineyard rather
than to have shown such a lack of interest because its lawyers, Su and
Shan, were not known to SC's lawyers. But such investigations would have
taken time which might have prejudiced the interest shown by a party who
is better known in Singapore. The SC's lawyers advised that they could not
be faulted for taking the offer of the HPL to commit to an option to
purchase at $500 million. If it had delayed in responding to HPL's
interest while it pursued the seriousness and the viability of the
Vineyard offer to buy, HPL might withdraw its interest and the SC may then
have to answer the CSPs as to why it did not take HPL's offer to buy.
68. It might also be said the SC could have used the Vineyard's interest
to get HPL to improve on the price it was prepared to pay. Evidence was
given that HPL was asked if it could do better and it replied in the
negative. Admittedly the HPL was not informed of Vineyard's interest to
buy at $510 million. But we must be careful not to visit the scene with
hindsight. HPL is well known in Singapore real estate circles. It was
prepared to pay $500 million the reserve price. The SC was given a mandate
to sell at a price not below the reserve price. The SC had received and
relied on legal advice before making the decision to give the Purchaser
the option to purchase. Thus in the final analysis the Board's view is
that this was a judgment call by the SC who had acted quite properly in
the circumstances. The sale price of $500 million was at that time, in
early January 2007, a fair price.
(B) Was the sale transaction conducted with undue haste?
69. The reaction of the SC to HPL's indication of interest at $500 million
has to be considered in the context of the history of the collective sale
attempt. Given the circumstances stated above the Board is of the opinion
that the sale transaction was not conducted with undue haste.
(C) Was FT in a position of conflict because its contract with the SC was
expiring in late January 2007?
70. It is a fact that FT's contract with the SC was due to expire on 20
January 2007. It is also the law that no matter when the option was given
or the contract concluded an agent through whose effects the contract was
obtained would be entitled to his commission. However even if this were
known to FT it would be understandable if FT were nervous about getting
its commission especially as in this case it was to be paid its commission
by the purchasers. Its nervousness can be seen in its anxiety in getting
the purchaser to express this commitment in a letter. The SC was not
entirely satisfied with FT's performance. The SC had asked other real
estate agents to co-broke with FT and had also instructed some of its
members to try to get offers. This was known to FT and could not have
helped in allaying its nervousness about its position after its contract
expired.
71. Accepting that FT may have been anxious about concluding the deal
before its contract expired, it is the Board's view that the respondents
have failed to show that FT is in a position of conflict. But even
assuming that FT was in a position of conflict, the SC had acted on its
own initiative in deciding to pursue HPL's proposal after receiving and
relying on legal advice. Further taking the entire history of the
collective sale of HT into consideration, the lapse of a month between the
first indication of interest by the Purchaser and the granting of the
option on 22 January 2007 does not prove that the transaction was not 'not
in good faith'.
(D) Was there conflict between certain members of the SC who had purchased
more units after the collective sale process had started and the other
CSPs
72. It was evident that three members of the SC had purchased units in HT
after the collective sale process had commenced. It was suggested that the
ownership of these units at this time indicated that they had put
themselves in a position of conflict as they could have been motivated by
other factors, eg, their leveraged positions to be more ready to sell when
they perhaps should not have.
73. The Board does not accept that the respondents have proved that the
three SC members who had purchased more units when they did were ipso
facto in a conflict position. When they bought the extra units, they may
well have been motivated by the prospect of a collective sale yielding
good profits, a money-making venture. They may have used 'insider'
knowledge and took a risk in purchasing the extra units at that time. This
motive would lead them to seek the best price that could be had at that
time rather than accepting a price that was not reflective of the true
market value. But this in itself does not mean that they were in a
position of conflict with the other CSPs. Whether they were living in the
units, and they were indeed living in their original units, or renting
them out they were owners who had agreed to sell in a collective sale and
would be interested in getting the best price available. The conflict if
any has to be proved and the Board is of the view that the respondents so
alleging have not done this.
74. As regards whether the said three SC members brought about a hurried
sale the three SC members did not form the majority of the SC and the
Board finds that the respondents failed to prove that the three SC members
have influenced the SC to decide in favour of giving an option to purchase
to the Purchaser.
75. The Board also finds as a matter of fact that the SC had received and
relied on legal advice when deciding whether to give the option to
purchase to the Purchaser.
76. Further, the Board finds as a matter of fact that the sale was not
hurried.
(E) Sale price and the true value of the property at the relevant time
EXPERT EVIDENCE
77. The use of expert evidence is to assist the tribunal in making their
decision. The expert evidence relied on in this case by the parties are of
two types, namely, (1) the expert opinion in respect of the market value
of Horizon towers as at 22 January 2007; and (2) the expert opinion in
respect of the use of the chosen method of distributing sale proceeds. In
the case of the first type of expert opinion, it was intended by parties
to assist the tribunal in deciding whether the transaction was in good
faith as regards the sale price. In the case of the second type of expert
opinion, it was intended by the parties to assist the tribunal in deciding
whether the transaction was in good faith as regards the method of
distribution.
78. The evidence offered by the parties as set out below:
(a) Market value evidence
(1) a valuation report dated 16 March 2007 on the open market value of HT
as at 16 March 2007 by Chesterton International Property Consultants Pte
Ltd as exhibited in Chng Shih Hian's affidavit dated 19 July 2007 ("TRC
3") [CIP Report];
(2) a valuation report dated 18 July 2007 on the market value of HT as at
22 January 2007 by SC Lim Pte Ltd as exhibited in Lim Soo Chin's affidavit
dated 20 July 2007 ("HEP 7") [LIM Report];
(3) a valuation report dated 18 July 2007 on the open market value of HT
as at 22 January 2007 by HBA Group Property Consultants Pte Ltd as
exhibited in Tang Kok Kong's affidavit dated 20 July 2007 ("PC 1") [HBA
Report];
(4) a valuation report dated 20 July 2007 on the land value of HT as at 22
January 2007 by Steven Loh Consulting Pte Ltd as exhibited in Loh Kin
Mun's affidavit dated 23 July 2007 ("HEP 8") [LOH Report];
(5) a valuation report dated 7 May 2007 on the open market value of HT as
at 22 January 2007 by Jones Lang LaSalle as exhibited in Tan Keng Chiam's
affidavit dated 26 July 2007 ("TRC 5") [JLL Report];
(6) a valuation report dated 1 November 2007 on the open market value of
HT as at 22 January 2007 and 12 February 2007 by CB Richard Ellis (Pte)
Ltd as exhibited in Mohamed Kamal Bin Hamdi's affidavit dated 1 November
2007 ("TRC 13") [CBRE Report];
(b) Method of distributing sale proceeds evidence
(1) an expert opinion report on apportionment of sale proceeds of HT dated
16 March 2007 by Chesterton International Property Consultants Pte Ltd as
exhibited in Chng Shih Hian's affidavit dated 19 July 2007 ("TRC 3");
(2) an expert opinion report dated 18 July 2007 on the proposed
distribution of sale proceeds of HT by SC Lim Pte Ltd as exhibited in Lim
Soo Chin's &davit dated 20 July 2007 ("HEP 7");
(3) an expert opinion report dated 20 July 2007 on the method of
distribution of the sale price of HT by Steven Loh Consulting Pte Ltd as
exhibited in Loh Kin Mun's affidavit dated 23 July 2007 ("HEP 8");
(4) an expert opinion report dated 16 April 2007 on the fairness and
equitableness of the adopted method of apportionment of the sale proceeds
of HT as at 22 January 2007 by Reily Management Pte Ltd as exhibited in
Yee Ming Yeow's affidavit dated 25 July 2007 ("HEP 9");
RELIANCE ON EXPERT EVIDENCE
79. As mentioned above, if expert evidence is able to assist the Board in
determining whether the sale price is "too low" or if "the method of
distribution ofthe sale proceeds is not equitable': the Board is not to
grant the Applicants' application for an order of sale as is explained by
the Minister for Law in the Singapore Parliamentary Debate Reports Volume
70 column 1329.
"...In deciding on a case, the Board will not impose its own terms and
conditions on the parties. If the Board feels that the price is too low or
the method of distribution of the sale proceeds is not equitable, it will
order that the sale not proceed." [Emphasis by author]
80. However, the burden of proof rests with the respondents as they are
making the allegation of the price being too low and the method of
distribution of the sale proceeds being not equitable. Justice Andrew Ang
so held in Phoenix Court.
"132. First, it was alleged that the defendants had failed to show that
the transaction was in good faith allegedly as required by s 84A(9)(a)(i).
The short answer is that the onus of satisfying the Board that the
transaction was not in good faith fell on the party making the
allegation."
SALE PRICE NOT TOO LOW
81. There were two important points that the Board observed during the
conduct of the hearing. First, there was the tendency to frequently refer
to the rising price trend of the property market in the first quarter of
2007. Second, the fact that HT was the first collective sale that involved
a large land area that required a teaming-up of investors given the
comparatively unheard of sale price of S$500 million at that time.
(A) RISING PRICES IN FIRST QUARTER OF 2007
82. An important issue for the Board's consideration was whether the
references to sale transactions after 22 January 2007 by the experts in
establishing the open market value of HT as at 22 January 2007 would be
permitted in law. The Board sought guidance from an earlier application
before the Board and two English cases, namely, Alliance & Leicester plc v
Home & Company (Lexis Transcript, 10 March 1999, pg 2) ("ABOA Reply, TAB
3") and Halifax Mortgage Services Ltd (formerly BNP Mortgages Ltd) v P
Simpson and others 64 ConLR 117 at 133 ("ABOA Reply TAB 4").
83. Whilst the two cases touch on professional negligence of valuers, the
relevant portion relied on by the Board for assistance in determining
whether the sale price of KT is too low or not is: what "the correct value
of a property at the date of the valuation" is. The court in both cases
held that the use of hindsight is not allowed.
84. In Alliance & Leicester plc v Horne & Company (Lexis Transcript, 10
March 1999, pg 2) ("ABOA Reply, TAB 3"), the court held that:
"...Valuation is an art, not a science. There must be room for differences
of opinion. The basic approach, however, of the expert who is called to
assist the court is not in issue. His task is to place himself in the
position of the original valuer and to determine what, at the relevant
valuation time, is the figure which a competent, careful and experienced
valuer would arrive at after making all necessary inquiries and paying
proper regard to the then state of the market. This necessarily and
obviously involves the making of a retrospective valuation. That does not
entitle him or the court to use hindsight. The instant valuation must be
based on material reasonably available at the relevant date…"
85. Further, in Halifax Mortgage Services Ltd formerly BNP Mortgages Ltd)
v P Simpson and others 64 ConLR 11 7 at 133 ("ABOA Reply TAB 4"), the
court held that:
"...the correct value of a property at the date of the valuation is the
figure which was most likely to have been put forward by a reasonably
competent valuer using that information which was available to him at the
date and excludes the exercise of hindsight. In my view, therefore, a
valuer considering an earlier valuation by another, should put himself as
far as possible in the position of the other valuer at the time of the
earlier valuation. This is in fact the advice given to valuers making
retrospective valuations in the RlCS Guidance Notes at para 1.19.4
effective from 1 February 1997. I therefore consider that Mr Shields was
not entitled to 'verify' his retrospective valuation or to help him 'to
determine the true value of the property' at the dates of the challenged
valuations by reference to the prices obtained for similar properties
after the dates of those valuations. So to do, in my view, plainly
involves the use of hindsight…."
86. The Board is aware of the practice among valuers of reliance on later
sale transactions being taken as an indication of the appropriateness of
the market price. When such reliance is made, the overall property market
should be a stable one.
87. This Board holds that in this case, given the market conditions then,
"the prices obtained for similar properties after the dates of those
valuations" is not allowed.
88. The Board takes comfort that the point not to rely on hindsight in
expert evidence has been similarly accepted by the Singapore Court of
Appeal. Although this case was not mentioned at the hearing, the Board
would like to set out the relevant part of the decision of the Court of
Appeal.
89. In JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) [2007] SGCA
40 ; [2007] 4 SLR 460 , the Court of Appeal issued a warning against the
use of hindsight that produces "scapegoat effect" at paragraph 69
reproduced below.
"At this juncture, it is also necessary to reiterate that a court must
always guard against the "scapegoat effect" that often magnifies ex post
facto and makes plausible culpability by employing the spectacles of
hindsight. It is almost intuitive for a third party observer, after the
occurrence of an unhappy event, to conclude that procedures could or
should have been adopted to obviate the subsequently known risks. On the
other hand, an auditor looking at the matter as it presented itself at the
material time would usually quite naturally conclude that he or she was
acting reasonably. It is crucial, in the interests of justice, that the
standard of reasonable care be objectively assessed on the basis of
knowledge then reasonably available as well as measures that could have
been reasonably adopted at the material time. The acid test is certainly
not one of retrospective plausibility."
(B) LARGE LAND AREA
90. The other important issue for the Board's consideration was whether
the omission to give the due consideration to the exceptionally large land
area that made HT out of the reach of most developers in Singapore if they
did not team up to buy when teaming-up was not already a trend. This is
somewhat like the reverse of hindsight, that is, as referred to by one of
the two cases, "the then state of the market".
91. In Alliance & Leicester plc v Horne & Company (Lexis Transcript, 10
March 1999, pg 2) ("ABOA Reply, TAB 3"), the court held that the expert
ought "to determine what, at the relevant valuation time, is the figure
which a competent, careful and experienced valuer would arrive at after
making all necessary inquiries and paying proper regard to the then state
of the market."
92. In a similar vein, the court in Halifax Mortgage Services Ltd
(formerly BNP Mortgages Ltd) v P Simpson and others 64 ConLR 117 at 133 ("ABOA
Reply TAB 4") held that the expert, "should put himself as far as possible
in the position of the other valuer at the time of the earlier valuation."
93. Therefore, the Board holds that there is no property at the time of
the sale of HT that could be reasonably used as a comparable in this case
given the facts as proved.
IMPACT ON THE EXPERT EVIDENCE
94. There were 6 expert valuations apart from the one filed in Form lwith
the Applicants tendering three reports, the CIP Report, the JLL Report and
the CBRE Report; the 2nd, 4th and 8th respondents tendering two reports,
the LIM Report and the LOH Report; and the 10th Respondent tendering one
report, the HBA Report.
95. As the burden of proof rests with the respondents, the Board would
first consider the valuations tendered by the respondents.
96. In the LIM Report, the market value of HT as at 22 January 2007 is
fixed at:
(a) S$582 million relying on comparable sales that included Parisian
[4,563m2], Futura [8,086m2], Ardmore Point [5,624m2], Grange Tower
[4,948m2] and Lucky Tower [1$,718m2] and
(b) S$613 million relying on the Residual Value Analysis that considered a
rising market.
97. In the HBA Report, the market value of HT as at 22 January 2007 is
fixed at S$650 million relying on,inter alia, Leonie Parc View transacted
in the period of May to June 2007.
98. In the LOH Report, the market value of HT as at 22 January 2007 is
fixed at S$645 million relying on Parisian [4,563m2].
99. Applying the principles on hindsight and the then state of the market,
all three expert reports have to be rejected. In the LIM Report, the
comparable sales relied on were in respect of properties which land areas
were very much smaller than HT's land area of 19,021.lm2. This omission
means that the expert did not take into consideration the market situation
on 22 January 2007 in respect of the large land area of HT. Further, the
Residual Value Analysis considered a rising market that took place after
the sale date of 22 January 2007 thereby relying on hindsight that is not
allowed.
100. In the HBA Report, the market value was derived from use of
information of a transaction that took place after the sale date of 22
January 2007. Accordingly, this report is rejected because of its reliance
on hindsight which is not allowed.
101. In the LOH Report, the market value relied on the sale of a property
that is far smaller that HT and the Board rejects this report for the
reason that the Board had stated above in respect of the LIM Report.
Other evidence
102. Independent of the expert evidence, the Board had the benefit of
receiving undisputed facts which have a bearing on the Board's factual
finding as regards whether the sale price of S$500 million is "too low".
The Board accepts that when the Reserve Price of S$500 million was first
set with the touted premium of 80% above the individual unit price, the
price was way above the market price. This was borne out in August 2006
when there was no bidder although the Reserve Price was made known. The
fact that the Reserve Price was above what the market would offer
continued until November 2006. This is borne out by the facts which the
Board accepts that despite numerous efforts to market the HT at the stated
Reserve Price, there were no offers.
103. When interest was shown at price of S$500 million, the Board accepts
that there was some movement in the market. The Board also accepts the
fact that at that time, the price of S$500 million would put the
collective sale of HT as a record price. The only other expression of
interest of S$510 million from Vineyard could be accepted as a possible
indication of the likely price range of HT in December 2006. The Board
finds that the price of S$500 million as at 22 January 200 was not too low
a price that warrants the sale not proceeding.
Transaction not in good faith - section 84A(9)(a)(ii) : method of
distributing sale proceeds
104. It is the 2nd and 8th Respondents' position that the adopted method
is unfair and their case is set out in paragraph 203 of the Closing
Submission of the 2nd, 4th and 8th respondents as reproduced below.
"The fact of the matter is that had the matter been seriously considered
(as it sould [sic] have been), it would have revealed that the 50-50
method results in grossly unfair apportionment. The regular units will get
proceeds at $10,197.9 per square meter whilst the penthouses will get
$8,238.5 per square meter. All in all penthouse owners get 16% less on a
psf basis. We respectfully submit that the penthouse owners are severely
prejudiced by this method of apportionment."
105. In describing the role of the Board, the Minister of State for Law
said at Parliamentary Debate Reports Volume 69column 604, that the Board
in looking at the method of distributing the sale proceeds, the Board must
be satisfied that the minority owners are treated no less favourably than
the majority.
"...The Board will look at the sale price, method of distributing the sale
proceeds to ensure that the minority owners are treated no less favourably
than the majority,…"
Method of distribution ofthe sale proceeds is not equitable
106. The method of distributing sale proceeds approved in the CSA was the
"50% SA - 50% SV" method whereby 50% of the sale proceeds was to be
divided among the subsidiary proprietors based on the SA ("strata area")
of the respective units and the other 50% was divided in proportion to
their respective SV ("share value"). Other methods from the "Valuation
Guidelines for Collective Sales" issued by the Singapore Institute of
Surveyors and Valuers were also commented and argued upon by the expert
witnesses.
107. Out of the seven experts, only four argued substantially on the
merits of the approved distribution method. It is to be noted that only
one of them disagreed with the principle of using the strata area and
share value together as a basis of distribution. He had proposed to use
solely the respective strata area of the units as the base for sharing the
proceeds.
108. The 50% SA - 50% SV method of distributing the sale proceeds among
the subsidiary proprietors has been widely used in collective sales.
Although its application does result in the penthouse owners getting less
than the 100% SA method, yet, as shown in cross-examination by TRC had
this method been used, the owners of all other units except for the
penthouse owners would he penalized.
109. A distribution method solely based on the strata area will not give
recognition that the en bloc sale is a sale of the common property held by
all subsidiary proprietors as reflected in their respective share value.
(s13(1) of the LTSA states the common property is held by the subsidiary
proprietors as tenants-in-common proportional to their respective share
value)
110. In past applications before the Board the 50%SA - 50%SV method of
distributing sale proceeds had been used as an acceptable compromise. The
Singapore Institute of Surveyors and Valuers Guidelines describe this
method as capable of helping to "even out the difference in strata areas
and share values where there are big discrepancies in both among the
various units". This is also the case of the present dispute before the
Board.
111. The Board found that the 50%SA - 0% SV method in the CSA had received
more than 80% approval of the subsidiary proprietors. Out of the eleven
owners of the penthouse units, only 3 submitted objections.
112. Therefore, the Board dismisses this objection as the Board is
satisfied that the transaction is not "not in good faith" in as far as the
method of distributing the sale proceeds is considered as a factor for
determining good faith.
Transaction not in good faith -section 84A(9)(a)(iii) : relationship
between purchaser and any subsidiary proprietor
113. It is the 2nd, 4th and 8th Respondents' position that the
relationship between the purchaser and sellers shows further lack of good
faith as is set out in paragraph 211 of the Closing Submission of the 2nd,
4th and 8th Respondents as reproduced below.
"HPL applied unsuccessfully (twice) to appear before the Board.
Notwithstanding this, it appears that they are still trying to participate
in these proceedings - through the applicants! The reason for their so
doing clear [sic] - they have up to a S$l billion profit at stake. This
can be seen by the Applicants' introduction of new witnesses of fact as
well as new valuers to give evidence at the 2nd tranche of the hearing,
not in respect of any new matters but matters which already existed before
the Board during the 1st tranche of the hearing."
114. As in the case of the method of distributing the sale proceeds, the
Minister of State for Law also explained at Parliamentary Debate Reports
Volume 69 column 604, that the Board's role in the third limb (iii), ie,
the Board should look at the relationship of the purchaser and the owner
to see if there is collusion.
"The Board will look at ... the relationship of the purchaser to the
owners, to ensure that there is no collusion."
115. The Board notes that the allegations of the 2nd, 4th and 8th
Respondents are conduct that took place after the transaction. The Board
finds that the alleged conduct does not go to prove collusion in respect
of the transaction.
116. The Board further notes that none of the subsidiary proprietors has
any relationship with the purchaser. However the 10th Respondent's counsel
had suggested that the lawyers advising the SC at the time of the sale may
have some connection to the purchaser through one of its consultants. It
is a matter of public knowledge that Mr J Grimberg, consultant to D&N, is
and has been non-executive chairman of HPL a publicly quoted company. This
fact, on its own, in the Board's view does not prove that there was
conflict of interest between the D&N and HPL let alone between the SC and
HPL.
117. For the reasons enumerated above the Board is satisfied that on the
facts the sale transaction was not "not in good faith" as provided in
section 84A(9) LTSA.
118. Accordingly, the Board granted the Collective Sale Order in the form
set out below [The annexes have not been included in this Grounds of
Decision].
COLLECTIVE SALE ORDER
TAKE NOTICE that pursuant to an application made in the above proceedings
by the abovenamed Applicants, the Strata Titles Board comprising the
Deputy President, Dr Philip Chan, and the members, Mrs Tan Sook Yee, Mr
Kong Mun Kwong, Dr Richard Tan and Mr Teo Pin, sitting at 45 Maxwell Road
#Ol-11 The URA Centre East Wing Singapore 0691 18 on 7 December 2007 made
the following orders:
WHEREAS the Third Respondent, Mr Mohammed Yusuf (unit #03-02 West) has on
14 May 2007 withdrawn his objection filed on 27 April 2007 with the leave
of the Board;
WHEREAS the Objections filed by the remaining Respondents, Lo Pui Sang/Kuah
Kim Choo (unit #02-04 East) on 23 April 2007, Ng Eng Ghee (unit #19-02
East) on 30 April 2007 as amended on 25 October 2007; Hendra Gunawan/Sulistiowati
Kusumo (unit #17-06 West) on 1 May 2007 as amended on 25 October 2007,
Rudy Darmawad/Widia Seteono (unit #09-03 East) on 3 May 2007 as amended on
25 October 2007, Maryani Sadeli (unit #06-04 East) on 3 May 2007 as
amended on 25 October 2007, Then Khek Koon/Jasmine Tan Kim Lian (unit
#19-04 East) on 3 May 2007 as amended on 25 October 2007, Quek Keng Seng
(unit #I 1-03 West) on 7 April 2007 and Canterford Limited (units #08-06
East, #14-01 East, #14-06 East, #09-05 West, #lo-05 West) on 16 July 2007
as amended on 24 October 2007 (hereafter collectively referred to as the
"Respondents"), have been heard by the Board at hearings conducted on 27
to 28 July 2007,30 to 31 July 2007, 2 to 3 August 2007, 30 October 2007, 6
to 7 November 2007, 9 to 10 November 2007 and 12 to 15 November 2007; and
WHEREAS on the basis of facts available to the Board, the Board not being
satisfied pursuant to Section 84A(9) of the Land Titles (Strata) Act (Cap
158) ("the Act") that:-
(a) the transaction is not in good faith after taking into account only
the following factors:-
(i) the sale price for the lots and the common property in the Strata
Title Plan No. 993:
(ii) the method of distributing the proceeds of sale; and
(iii) the relationship of the purchaser to any of the subsidiary
proprietors; or
(b) the sale and purchase agreement would require any subsidiary
proprietor who has not agreed in writing to the sale to be a party to any
arrangement for the development of the lots and the common property in the
Strata Title Plan No. 993;
The Board hereby, under Section 84A(7) and Section 84A(11) of the Act,
approves the application and orders that:-
1. all the subsidiary strata units, the lots and the common property in
the Strata Title Plan No. 993 comprising the development known as Horizon
Towers (hereafter "Horizon Towers") be sold collectively to Horizon
Partners Pte Ltd of 50 Cuscaden Road #08-01 HPL House Singapore 249724
(the "Purchaser") subject to and in accordance with the terms and
conditions of the Option to Purchase dated 22 January 2007 granted to the
Purchaser and accepted by the Purchaser on 12 February 2007 (the "Sale
&Purchase Agreement");
2. the Minority Owners, namely those subsidiary proprietors as listed in
Annex A hereto be bound by all the terms in the Collective Sale Agreement
dated 1 I May 2006 and the Sale & Purchase Agreement as if they were
parties thereto;
3. the gross sale proceeds of the Majority and Minority Owners shall be
allocated in accordance with Annex 12 of the application herein (a copy of
which Annex 12 is annexed hereto as Annex B);
4. all the costs and disbursements of the Applicants in connection with
and incidental to this application be borne by all the subsidiary
proprietors of Horizon Towers (including the Minority Owners) in the
proportion in which they share the gross sale proceeds of the collective
sale and that such costs and disbursements be deducted from their
respective share of the sale proceeds. Without limiting the generality of
the foregoing, the said costs and disbursements shall include the costs of
advertisements, valuation reports, the Majority Owners' solicitors' costs
and disbursements in connection with the application, the Strata Titles
Board's application and hearing fees, stamp duty and goods and services
tax;
5. the said Minority Owners shall:-
(a) execute, sign, seal and deliver and perfect all acts and deeds and
deliver unto the Purchaser title deeds, conveyances, assignments,
surrenders, releases, transfers, deeds, instruments, deeds of variation,
or such other assurances as may be necessary to effect the sale;
(b) execute and furnish to the Purchaser or other relevant parties such
Statutory Declaration(s) as required by the Inland Revenue Authority of
Singapore; and
(c) do all such acts and things and execute all such documents as may be
necessary or expedient for the purpose of effecting or perfecting the
collective sale.
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