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Grounds publishedDecided 27 Nov 2015
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Court of Appeal

Attorney-General v Aljunied-Hougang-Punggol East Town Council

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[2015] SGCA 60Case no. Civil Appeal No 114 of 2015; Summons No 258 of 2015; Summons No 268 of 2015; Summons No 269 of 2015

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  1. Sundaresh Menon CJ (delivering the judgment of the court):

  2. Introduction

  3. [1] Town Councils are a somewhat unique feature of our system of local government, established to control, manage, maintain and improve the common property of our public housing estates. Almost 80% of the population of Singapore reside in or own homes in housing estates built and managed by the Housing and Development Board (“HDB”), a statutory board established in 1960 and charged with the responsibility of addressing and meeting the housing needs of the general population of Singapore. Historically, the HDB was also responsible for the maintenance and management of the common property of these housing estates. By common property, in broad terms, we refer to those parts of the estate that are not encompassed within each individual unit, such as corridors, stairs and lifts. Town Councils were formed in 1989 to take over these functions from the HDB and in order to perform these functions, they clearly required funding. Such funds were to be raised from various sources, including conservancy and service charges imposed on residents as well as grants-in-aid made by the Minister of National Development (“the Minister”). These matters are provided for in the legislation that was passed for this purpose, namely, the Town Councils Act (Cap 329A, 2000 Rev Ed) (“TCA”). The TCA also deals with another important issue, namely, the obligation of Town Councils to manage their finances in accordance with the broad principles laid down in the TCA as well as the more detailed provisions contained in the Town Councils Financial Rules (Cap 329A, R 1, 1998 Rev Ed) (“TCFR”). But what if a Town Council fails to act in accordance with these principles or to comply with the detailed stipulations? What remedies avail an interested party in such a situation? Who may apply for relief in such circumstances and what are the limits of the court’s power to act? These are the questions that lie at the heart of this appeal, which was brought against the decision of a High Court Judge (“the Judge”) that is reported as Attorney-General v Aljunied-Hougang-Punggol East Town Council [2015] 4 SLR 474.

  4. Background facts

  5. [3] The appellant is the Attorney-General acting on behalf of the Government in respect of a matter falling within the remit of the Ministry of National Development (“MND”). The HDB has also applied to be joined as a co-plaintiff/co-appellant in these proceedings. The HDB too is represented by the Attorney-General in this appeal. The respondent is the Aljunied-Hougang-Punggol East Town Council (“AHPETC”). On 1 October 2015, by virtue of the Town Councils (Declaration of Towns) Order 2015 (GN No S 577/2015), AHPETC was renamed as Aljunied-Hougang Town Council to reflect the change in the area of the Town. This, however, does not affect the present appeal as there was no order for the dissolution of AHPETC. For the purpose of this judgment, we will continue to refer to the respondent as AHPETC.

  6. An overview of the TCA and the TCFR

  7. [4] As this appeal revolves around the lapses of a Town Council in relation to the management of its finances, it would be helpful, before we turn to the specific facts of this case, to provide a brief description of how Town Councils are funded, how those funds are regulated by the TCA and the TCFR, and to identify the main requirements of the TCA and the TCFR that are in issue here.

  8. [5] To perform its duties and functions under the TCA, a Town Council is empowered to levy conservancy and service charges on its residents every month (s 39 of the TCA). The amounts so collected are supplemented by grants-in-aid made by the Minister from time to time, typically on an annual basis (s 42 of the TCA). The Town Council is also empowered to raise loans for specific purposes as well as to invest its funds (ss 40 and 41 of the TCA). These are the primary sources of a Town Council’s funds, though there are others, such as fines collected by the Town Council for any infringements by the residents (ss 46 and 49 of the TCA).

  9. [6] All money received by a Town Council by virtue of the TCA and all liabilities falling to be discharged by a Town Council are to be paid into and out of a “Town Council Fund” which the Town Council shall establish (ss 33(1) and (2) of the TCA). The Town Council Fund consists of separate funds for different types of properties, such as residential and commercial, and these are further split into operating funds for short-term expenses and sinking funds for long-term expenses (ss 33(3) and (4) of the TCA; rr 3 and 4 of the TCFR). A portion of the conservancy and service charges, grants-in-aid and any interest received by a Town Council must be transferred into the sinking fund every quarter of every financial year (r 4(2B) of the TCFR). This is to ensure that there will be sufficient funds available, when required, for major cyclical upgrading and maintenance works such as repainting of the common property or upgrading of lifts. Proper accounts and records are required to be kept in respect of these funds as well as the transactions and affairs of the Town Council generally (s 35(a) and (b) of the TCA).

  10. [7] A Town Council is not allowed to disburse any money out of the Town Council Fund except for the purposes specified in the TCA (s 33(6) of the TCA). It is also required to do all things necessary in order to ensure that all payments out of its moneys are correctly made and properly authorised and that adequate control is maintained over the assets of the Town Council and over any expenditure it incurs (s 35(c) of the TCA). Aside from this, a Town Council is also obliged to comply with the financial rules set out in the TCFR. Part IV of the TCFR, for example, deals with expenditure and payments and it covers details such as the authority to sign cheques and incur expenditure on behalf of the Town Council (rr 33 and 34 of the TCFR).

  11. [8] To ensure that its finances are in order, every Town Council is required to prepare and submit its financial statements annually (s 36 of the TCA), and its accounts are required to be audited by the Auditor-General or such other auditor as may be appointed by the Minister (s 38 of the TCA). Other checks (such as surprise examinations of safes, cash-boxes, drawers or other receptacles for money (r 114 of the TCFR)) and procedures (such as procedures for quotations and tenders (rr 73 and 74 of the TCFR)) are also put in place to prevent loss and wrongful use of funds.

  12. [9] The foregoing requirements are unsurprising since they pertain to a public body that has control over and custody of public funds for specified purposes.

  13. The breaches by AHPETC in this case

  14. [10] For the purpose of the present appeal, we are primarily concerned with the following requirements that were imposed on AHPETC:

  15. (a) to do all things necessary to ensure that all payments out of its moneys are correctly made and properly authorised and that adequate control is maintained over the assets of, or in custody of, the Town Council and over the expenditure incurred by the Town Council (s 35(c) of the TCA); and

  16. (b) to make transfers to the sinking fund within one month from the end of each quarter of each financial year (r 4(2B) of the TCFR).

  17. [11] Against that background, we set out a chronology of the key events that led to this appeal.

  18. [12] Like all Town Councils, AHPETC was obliged under the TCA to submit audited financial statements with the auditor’s observations report (if any) for each financial year to the Minister within five months of the end of the financial year so that these could be presented to Parliament. AHPETC was late in submitting these statements for two consecutive financial years -FY 2011/2012 and FY 2012/2013. AHPETC’s audited financial statements and auditor’s observations reports which were eventually issued for these financial years contained various disclaimers by its auditors. In essence, the auditors stated that they were unable to express an opinion as to the validity of certain receivables, expenses and payments; the completeness of AHPETC’s related party disclosures; and the accuracy of the cash and bank balances in the bank accounts. They also noted AHPETC’s failure to comply with the requirement to make quarterly sinking fund transfers. Arising from these events, the Deputy Prime Minister and Minister for Finance, upon the request of the Minister, exercised his powers under s 4(4) of the Audit Act (Cap 17, 1999 Rev Ed) on 19 February 2014 and directed the Auditor-General to conduct an audit into the financial accounts, records and books of AHPETC for FY 2012/2013 (“the Audit”).

  19. [13] The Minister decided in the circumstances that the grants-in-aid that would otherwise have been payable to AHPETC for FY 2014/2015 (typically paid in or around April or May of each year), should be withheld pending the completion of the Audit. When informed of this development, AHPETC responded, telling the MND, among other things, that it would not be able to fulfil one of its obligations under the TCFR for the first quarter of FY 2014/2015 if the grants-in-aid were withheld. The obligation in question was that arising under r 4(2B) of the TCFR which required that a stipulated portion of the conservancy and service charges, grants-in-aid and interest received be transferred by every Town Council to its sinking fund every quarter – see [6] above. Upon being apprised of AHPETC’s position, the Minister offered to disburse half of the grants-in-aid subject to certain conditions. It appears that these conditions were not acceptable to AHPETC. As a result, the grants-in-aid were not made, and consequently, AHPETC has not, since FY 2011/2012, been able to make the transfers into its sinking fund in a timely fashion, and further, had not made the transfer for the fourth quarter of FY 2014/2015 (which was due on 30 April 2015) at the time of the hearing. We digress to observe that the key conditions that the Minister wished to impose were for AHPETC and its chairman to provide explanations or assurances as to AHPETC’s financial status and its ability and willingness to comply with the financial rules under the TCA and the TCFR before disbursing the grants-in-aid.

  20. [14] On 9 February 2015, the Auditor-General released its report on the Audit (“the Auditor-General’s Report”). This identified several lapses in AHPETC’s governance and its compliance with the TCA and the TCFR. The major lapses included the following:

  21. (a) AHPETC had failed to effect transfers into the sinking fund bank accounts as required by the TCFR.

  22. (b) AHPETC did not have adequate oversight of related party transactions. These were transactions with third parties in which the key officers of AHPETC had ownership interests. As a result, it was thought that the integrity of such payments was open to question.

  23. (c) AHPETC did not have a system in place to monitor arrears of conservancy and service charges accurately even though these constitute a major part of a Town Council’s revenue stream. The specific concern raised was that in the absence of a reliable system, there would be no assurance that arrears are properly collected and applied in accordance with the applicable legal framework.

  24. (d) AHPETC had poor internal controls over its assets and expenditures. The main concern here was that AHPETC failed to comply with the stipulated safeguards and checks, such as performing monthly bank reconciliations on a timely basis, following the rules on approval of procurement and segregating the duties within the payment process. As a result of this, there was a risk of AHPETC losing valuables and cheques in its possession, incurring unnecessary expenditure and making wrong payments for goods and services.

  25. (e) AHPETC did not have a proper system to safeguard documents and maintain proper accounts and records as required by the TCA.

  26. [15] The report concluded that unless the weaknesses were addressed, there could be no assurance as to the accuracy or reliability of AHPETC’s financial statements, or that public funds were being spent, accounted for and managed properly.

  27. [16] Before the Judge, and similarly before us as well, the parties agreed that:

  28. (a) AHPETC had breached the TCA and the TCFR in the ways specified in the Auditor-General’s Report. At the hearing before us, Mr Peter Low, counsel for AHPETC, alluded to the fact that steps have since been taken by AHPETC to comply with the TCA and the TCFR, but he confirmed that not all of the lapses have been rectified.

  29. (b) AHPETC has a duty to ensure that payments made to third parties are properly made and duly authorised, and hence it has a duty to look into past payments it made to third parties to ascertain if they were properly made or duly authorised and, if not, to take steps to recover such payments.

  30. (c) AHPETC had not, at the time of the hearing before the Judge, made the sinking fund transfers for the third and fourth quarters of FY 2014/2015. The transfer for the third quarter of FY2014/2015, which should have been made by 31 January 2015, was eventually made on 8 July 2015. Hence, at the time the parties were before us, only the sinking fund transfer for the fourth quarter of FY 2014/2015, which should have been made by 30 April 2015, remained outstanding.

  31. [17] Parliament convened on 12 February 2015 to discuss the findings of the Auditor-General’s Report. Shortly thereafter, on 20 March 2015, the MND commenced proceedings before the High Court and sought the following orders:

  32. Decision of the court below

  33. [18] The Judge dismissed the MND’s application in its entirety. He divided the orders sought into three broad categories, namely:

  34. (a) orders pertaining to the grants-in-aid that have yet to be disbursed by the Minister to AHPETC (see prayer 3(a) and the first part of prayer 3(b) above);

  35. (b) orders regulating the application of the Town Council’s funds (consisting of all funds actually in the custody of AHPETC including but not limited to grants-in-aid and conservancy and service charges) and extending to the investigation and recovery of any sums found to have been improperly paid out (see prayer 3(b) and prayers 3(c) to (h)); and

  36. (c) the declarations set out in prayers 1, 2 and 2A.

  37. [19] The Judge’s reasons may be summarised in broad terms. First, in relation to the orders pertaining to the grants-in-aid that have yet to be disbursed (at [18(a)] above), the Judge held that since s 42 of the TCA empowered the Minister to impose conditions on the grants-in-aid, it was neither necessary nor appropriate for the court to be asked to make orders imposing any such conditions.

  38. [20] Second, the Judge refused to grant the orders sought in relation to the appointment of independent accountants to regulate the use of the funds in AHPETC’s custody and to investigate and recover the sums that might have been paid out improperly (at [18(b)] above) because he held that MND did not have a right to those reliefs. The MND advanced various bases to support its contention that it was entitled to the reliefs it sought. It argued that it had a statutory right to such reliefs under s 21(2) of the TCA; in the alternative, it claimed that it was entitled to those reliefs pursuant to a statutory interest under the TCA, a beneficial interest under a Quistclose trust, and/or a legal interest pursuant to a contractual mandate that it possessed over the grants-in-aid. The Judge rejected all of the alternative bases advanced by the MND.

  39. [21] Third, the Judge refused the declarations sought in prayers 1 and 2 as he found that the MND had not established its interest in the “Town Council Moneys”, that is, the funds that were in the custody of AHPETC. The Judge also refused the declaration sought in prayer 2A on the basis that it would not be of any use to the MND. But the Judge also observed that the HDB as opposed to the MND would be entitled to bring an application to the court under s 21(2) of the TCA and to obtain at least some of the reliefs sought. At the time of the hearing before the Judge, the HDB was not a party to the proceedings.

  40. [22] The MND filed its appeal on 29 May 2015.

  41. Application to join the HDB

  42. [23] On 22 June 2015, the HDB applied to be joined as a co-plaintiff/co-appellant. It did so on the basis that if the Judge was correct to hold that the MND is not entitled to rely on s 21(2) of the TCA and that the only reason the reliefs in this case could not be granted is because the HDB was not a party, then it should be joined as a proper party.

  43. [24] On 16 July 2015, AHPETC applied to strike out the HDB’s joinder application pursuant to O 18 r 19 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). This was fixed for hearing at the same time as the substantive appeal.

  44. Application to make new points on appeal and adduce fresh evidence

  45. [25] On 13 July 2015, AHPETC applied to introduce evidence which pertained to events that occurred after the judgment was released on 27 May 2015. The new evidence related to the following three new points that had not been raised in the court below:

  46. (a) that AHPETC had submitted its audited financial statements for FY 2013/2014 to the MND on 30 June 2015;

  47. (b) that AHPETC had made the sinking fund transfer for the third quarter of FY 2014/2015 on 8 July 2015 (see [16(c)] above); and

  48. (c) that AHPETC’s managing agent (ie, FM Solutions and Services Pte Ltd (“FMSS”)) had intimated that it did not wish to proceed with any ongoing projects with AHPETC after the expiry of its existing agreement on 14 July 2015.

  49. Issues before this Court

  50. [26] The issues before us may be stated in broad terms as follows:

  51. (a) whether leave should be granted for AHPETC to raise the new points on appeal and to adduce the relevant evidence;

  52. (b) whether the HDB should be joined as a party;

  53. (c) whether the MND and/or the HDB is (or are) entitled to the reliefs sought under s 21 of the TCA; and

  54. (d) whether the MND is entitled to the reliefs sought under one or more of the alternative legal bases it relies upon.

  55. [27] The consideration of these issues will give rise to sub-issues. For instance, in relation to issue (c) above, it will be relevant to consider who has standing to seek relief under s 21 of the TCA, and also, if standing is established, what, if any, reliefs or remedies the court may and should grant. We will deal with the relevant sub-issues as we set out our reasons.

  56. Our decision

  57. Should leave be granted for AHPETC to raise new points on appeal and adduce fresh evidence?

  58. [28] We consider that leave should be granted for AHPETC to introduce the three new points on appeal as well as adduce the fresh evidence in support. AHPETC had, in compliance with O 57 r 9A(4)(b) of the ROC, stated, in the Respondent’s Case, its intent to apply for leave to introduce these points and adduce the fresh evidence in support. It had also filed a summons for leave to adduce fresh evidence by way of affidavit.

  59. [29] The new points relate to events which occurred after the judgment was released and they are relevant insofar as they might show that the reliefs sought by the MND are no longer called for. The present case can be distinguished from two previous cases where leave to introduce new points on appeal was denied (see Feoso (Singapore) Pte Ltd v Faith Maritime Co Ltd [2003] 3 SLR(R) 556 at [32]; Ng Bok Eng Holdings Pte Ltd and another v Wong Ser Wan [2005] 4 SLR(R) 561 at [35]). In those cases, the new point on appeal could have been (but was not) raised at the trial or hearing below. As a result, it was thought that the opposing party would be prejudiced if the new point was allowed to be taken at the appeal. The circumstances are plainly different here.

  60. [30] We also see no reason to reject AHPETC’s application for leave to adduce fresh evidence in support of the three new points. The fresh evidence consists essentially of the affidavit of Ms Sylvia Lim Swee Lian, dated 13 July 2015, exhibiting a copy of AHPETC’s 2013/2014 Annual Report, which included its audited accounts for FY 2013/2014, as well as a copy of AHPETC’s instruction to its bankers to transfer the sum of about $4.46m to its sinking fund. In the affidavit, Ms Lim also deposed that, in light of the sudden demise of Mr Danny Loh Chong Meng, the managing director of FMSS, on 27 June 2015, FMSS had intimated that it did not wish to proceed with any ongoing projects with AHPETC after the expiry of its existing agreement on 14 July 2015. Ms Aurill Kam, counsel for the MND and the HDB, did not object to the contents of this affidavit; indeed Mr Han Kok Juan had filed an affidavit in reply dated 23 July 2015 on behalf of the MND. Even though Ms Kam objected to Ms Lim’s further affidavit filed on 31 July 2015, which was a response to Mr Han’s reply affidavit, on the basis that its contents were irrelevant and that the affidavit had been filed late, we do not think that this can or should affect our decision to allow AHPETC to adduce the fresh evidence contained in Ms Lim’s affidavit dated 13 July 2015.

  61. Should the HDB be joined as a party?

  62. [32] We turn to the next issue, to which there are two aspects. As we have already noted, AHPETC applied to strike out the HDB’s application to be joined as a party. It is not evident to us why AHPETC did this. The substantive merits of the HDB’s application would have had to be determined and AHPETC would in any event have had the opportunity to oppose the application. In the circumstances, it seemed to us that this was an unnecessary step. More fundamentally, it was flawed. The striking out application was brought under O 18 r 19 of the ROC which applies only to pleadings (including an originating summons seeking relief) and any endorsement of a writ. It does not apply to a summons in a pending cause or matter. This is evident from O 18 r 19, read with O 1 r 4, which provide:

  63. [33] Order 18 r 19(1) specifically states that it applies only to “any pleading or the endorsement of any writ”. While “pleading[s]” are defined in O 1 r 4 to exclude both originating summons and summons, O 18 r 19(3) states in clear terms that the rule shall apply to “an originating summons as if it were a pleading”. The logical conclusion is that O 18 r 19 does not apply to a summons in a pending cause or matter. There is nothing in our case law or the leading textbooks (see, eg, Jeffrey Pinsler, Singapore Court Practice (LexisNexis, 2014) (“Singapore Court Practice”) at para 18/19/3 on “[w]hat may be struck out” and Singapore Civil Procedure vol 1 (GP Selvam gen ed) (Sweet & Maxwell, 2015) (“Singapore Civil Procedure”) at para 18/19/1 on “[e]ffect of rule”) to even suggest that it is possible to extend the rule to permit an application to be made to strike out a summons in a pending cause or matter. Having regard to the plain words of the relevant provisions as we have set them out above, we consider it obvious why that is so.

  64. [34] For this reason, we dismiss AHPETC’s striking out application. The real issue, as we have noted, is whether leave should be granted for the HDB to be joined.

  65. [35] As to that, we found one aspect of the application to be unusual and we raised this with Ms Kam as a preliminary point. The application was made on a conditional basis. As originally framed, the application was for the HDB to be joined as a party in the event that we disagreed with the MND that it has the requisite standing and the entitlement to the various reliefs it is seeking and further if we agreed with the Judge that the only reason the reliefs could not be granted is because the HDB (rather than the MND) is the proper party to bring the action. In our judgment, the conditional nature of the HDB’s application for joinder was untenable. If at the end of the proceedings as they were originally constituted (without the HDB being a party), we were to conclude that the MND was not entitled to the orders sought, that would be the end of the matter. There would simply be no need or occasion for us to go on to consider whether the HDB or some other person would instead be entitled to the same or similar reliefs and ought therefore to have been joined as a party. Furthermore, the HDB’s application in its original form was premised on it being found to be entitled to the orders sought but for the fact that it had not been joined as a party. But that is to put the cart before the horse. Until the HDB is joined as a party, there is no reason for us to even consider whether it would be entitled to the orders sought. For these reasons, we indicated at the start of the hearing that we were not prepared to entertain the HDB’s application on this basis and invited it to decide whether it wished to apply unconditionally to join as a party. Ms Kam then informed us that the HDB should be taken to be making an unconditional application to be joined as a party to the action and the appeal.

  66. [36] We accordingly turn on this basis to the question of whether the HDB should be joined as a party in these proceedings. Order 15 r 6(2)(b) of the ROC sets out the court’s power in the event of a nonjoinder of parties. It reads:

  67. [37] The HDB relied on O 15 r 6(2)(b)(i) of the ROC as well as on the inherent powers of the court in seeking to be joined as a party in these proceedings.

  68. [38] To rely on O 15 r 6(2)(b)(i), the applicant must show that his presence is “necessary for the purpose of adjudication”, and that includes cases where “he has rights which may be affected by the outcome in the proceedings” (Jeffrey Pinsler SC, Principles of Civil Procedure (Academy Publishing, 2013) at para 07.020). A plaintiff will be added only if it is “necessary to enable the question at issue to be determined” (Singapore Civil Procedure at para 15/6/3; see also Singapore Court Practice at para 15/6/8). Here, we are not satisfied that the HDB should be joined as a party on this basis. The presence of the HDB is not necessary for the question or issue in dispute to be determined, which is whether the MND is entitled to the reliefs sought. Indeed, this point was implicitly and perhaps unwittingly conceded by the HDB when it took the position before us, in order to justify the conditional nature of its joinder application, that the question of whether the MND is entitled to the reliefs sought can be dealt with separately as an “anterior question” before we consider whether the HDB should be joined as a party. This shows that even the HDB did not consider that it had to be added as a party for the question or issue in dispute to be determined.

  69. [39] As mentioned earlier, the HDB also relied on the inherent powers of the court in seeking to be joined as a party. However, there is no need for us to consider whether the court’s inherent powers should be invoked because we consider that the HDB can be joined as a party under O 15 r 6(2)(b)(ii) of the ROC. An applicant relying on that provision would have to first establish that the question or issue between one of the parties and the proposed new party is linked, factually or otherwise, to the relief or remedy claimed in the cause or matter (see Lim Meng-Eu Judy v RSP Investments (S) Pte Ltd [1998] 2 SLR(R) 525 (“Lim Meng-Eu Judy”) at [13]). As to this, it is difficult to argue otherwise. The claims arise out of the same set of facts and the reliefs sought by the new party, the HDB, against AHPETC are substantially the same as those sought by the MND. However, that is not the end of the matter because this is subject to the overriding consideration that it must be “just and convenient” to order a joinder (Lim Meng-Eu Judy at [13]). This requires the court to take into account the interests of the existing parties to the action (Chan Kern Miang v Kea Resources Pte Ltd [1998] 2 SLR(R) 85 (“Chan Kern Miang”) at [24]) as well as that of the party to be joined (Tan Yow Kon v Tan Swat Ping and others [2006] 3 SLR(R) 881 at [44(a)]; Alliance Entertainment Singapore Pte Ltd v Sim Kay Teck and another [2007] 2 SLR(R) 869 at [67]). The lateness of the application would go towards the assessment of whether it is “just and convenient” to order a joinder (Chan Kern Miang at [23]–[29]).

  70. [40] We first observe that there is nothing to prevent the joinder of a party simply because the matter is at the stage of an appeal. The provision is wide enough to allow the court to entertain an application “at any stage of the proceedings”, and we can see no reason why this should be read narrowly to exclude applications that are brought at the stage of an appeal (see also Chan Kern Miang at [19]; Odex Pte Ltd v Pacific Internet Ltd [2008] 3 SLR(R) 18 at [76]). Hence, we do not consider that the application is necessarily foreclosed by its lateness alone.

  71. Is (or are) the MND and/or the HDB entitled to rely on s 21 of the TCA?

  72. [43] The primary argument mounted by the MND and the HDB before us is that each of them is entitled to apply to the High Court under s 21(2) of the TCA for an order compelling AHPETC to comply with the provisions of the TCA and the rules in the TCFR that govern Town Council finances. In particular, they focus on AHPETC’s non-compliance with s 35(c) of the TCA and r 4(2B) of the TCFR. We will turn to the details of what those provisions require of AHPETC and how they relate to AHPETC’s breaches of the TCA and the TCFR shortly. We begin with our analysis of the statutory framework.

  73. [44] Much was said by both parties about the debates that took place in Parliament at the time when the Town Councils Bill (Bill No 9 of 1988) (“Town Councils Bill”) was tabled. Both parties as well as the Judge placed significant emphasis on these debates. With respect, we do not consider that there is much in them that can help us in relation to the issues that are before us. Importantly, the debates are conspicuously silent on the specific issue that is now before us, which is the ambit of s 21 of the TCA and the specific sub-issues that arise, which are as follows:

  74. (a) Who are those who come within the provision and can therefore bring an application for relief? This goes to the issue of standing.

  75. (b) What are the types of reliefs that may be granted? This goes to the powers of the court when faced with such an application.

  76. [45] We begin by setting out s 21 of the TCA which is the provision pursuant to which the present application was brought:

  77. [46] Both parties relied on the Parliamentary debates in an attempt to demonstrate the legislative intent underlying s 21 of the TCA. AHPETC focused on the following passages from the debates during the second reading of the Town Councils Bill (Singapore Parliamentary Debates, Official Report (29 June 1988) vol 51 at cols 408–409 and 441–444):

  78. [47] The same passages were also relied upon by the MND and the HDB, but on top of that, they also drew our attention to other parts of the debates. In particular, they placed emphasis on the following (Singapore Parliamentary Debates, Official Report (28 June 1988) vol 51 at cols 378–381 and 388; Singapore Parliamentary Debates, Official Report (29 June 1988) vol 51 at cols 428, 433–434 and 442–443):

  79. [48] AHPETC’s central contention, relying principally upon the passages we have set out at [46] above, is that the Parliamentary debates suggest that there was nothing in the way of remedial steps or measures that were available in circumstances where a Town Council fails to comply with its duties under the TCA. Mr Low pointed, by way of contrast, to s 50 of the TCA, as an instance in which the Minister could appoint a person to exercise or perform the specified powers, duties and functions of the Town Council; but he noted, this was only available in the exceptional circumstances outlined in that section, and there is no doubt that those circumstances were not met here. Insofar as s 21(2) of the TCA is concerned, he accepted that on its plain words, an application could be made to the court. However, he contended that the MND was not a party that could bring an application for relief under that section. Further, he argued that even if a party could avail itself of that section, there was a severe limitation as to the sort of remedies that the court seised of such an application could order. In fact, according to Mr Low, the only thing that such a court could do is to declare that the Town Council should do that which it is allegedly not doing. In this regard, he placed particular emphasis on the fact that there is nothing expressly stated in the TCA that would allow the appointment of independent accountants for instance. Mr Low submitted, based on the extracts from the Parliamentary debates which we have referred to at [46] above, that the legislative intent was to leave the remedy for any breach in the political sphere and specifically, that the residents would have to wait until an election for them to avail themselves of the only real remedy available to them – namely, to vote out those responsible for lapses in the way the Town Council was run.

  80. [49] As against this, the main contention of the MND and the HDB based on the extracts we have cited at [46]-­[47] above may be pithily summarised as follows:

  81. (a) The operational latitude granted to Town Councils extends to the way they may run their estates and manage their funds, but it does not detract from Town Council’s financial accountability to the Minister.

  82. (b) The Parliamentary intent is clear that mismanagement is not to be tolerated, and in particular, there is nothing to suggest any intent to preclude the Government or any other interested party from seeking relief against an errant Town Council for financial mismanagement.

  83. [50] In the final analysis, we are unable to agree entirely with either party’s submissions on this. In our judgment, it is evident from the debates that the Town Council was seen as a political measure that would deepen the connection between Members of Parliament (especially in their capacity as Town Councillors) and the residents they were elected to serve in their constituency. What was unquestionably clear from the debates was that neither the Town Councils nor the residents could expect that either the Government or the HDB would bail them out with financial assistance of any sort in the event a given Town Council sustained financial or other losses due to mismanagement. To this extent, it was contemplated that the residents would have to bear the consequences, even the adverse ones, of electing, as their representatives in Parliament and as those who would oversee the operations of their Town Council, persons who discharged their duties in such a way that it caused financial and other losses to their Town Council.

  84. [51] In our judgment, the broad philosophical thrust of the legislation was to emphasise that Town Councils would enjoy a measure of independence in the manner in which they discharged their duties but on no analysis could it be said that such latitude or independence extended to permitting them to act unlawfully or contrary to the many stipulations imposed by the TCA and the TCFR without any recourse at law. It is one thing to say that the Town Councils would have latitude in developing their plans and operations. It is entirely another thing to say on this basis that there is either no duty to comply with the TCA and the TCFR, or, which in substance comes to the same thing, that there is no remedy to speak of in the event of a breach of such a duty. Section 21(1)(f) of the TCA casts upon Town Councils the duty to comply with the provisions of the TCA and the rules made thereunder, and the TCA is replete with provisions that impose obligations of proper governance on the Town Council. Brief reference may be made in this connection to ss 21 and 33–38 of the TCA which set out the obligations of a Town Council to manage its funds as well as the estate under its charge properly. Indeed, taken together with the provisions of the TCFR, it is simply unarguable that there is nothing to constrain the governance of the Town Councils.

  85. [52] In our judgment, it is clear from this that such latitude or independence was to be exercised subject to the safeguards that were incorporated in the TCA and the TCFR. But having accorded this degree of independence and latitude on the Town Council, the residents would have to bear the consequences of this. What this means in particular, as we have already noted, is that they would not be entitled to expect the Government to bail them out in the event of mismanagement.

  86. [53] Mr Low could not deny the existence of the duty to comply with the various obligations imposed on Town Councils under the TCA and the TCFR. The real nub of his argument then was that even allowing that this might be so, there is ultimately no legal remedy for a breach of such a duty. Rather, in reliance on the extracts from the Parliamentary debates which he cited, Mr Low contended that the remedy lies in the realm of politics alone. But in our judgment, it is perverse to speak of a legal duty, such as we have noted above, that lacks a legal remedy and invites only a political remedy. To put it another way, there can be no legal duty if there is no legal remedy for the breach.

  87. [54] More importantly, Mr Low’s argument places undue emphasis on what was said in the course of the Parliamentary debates without regard to the proper context in which those words were spoken. The most important aspect of this context is that none of what was said in Parliament concerned the central question with which we are confronted, which is the ambit of s 21 of the TCA (see [44] above), and more specifically in this context, who may apply to the court for relief when faced with a breach of the duties laid down in the TCA and the TCFR; and whether the remedies the court may grant in such circumstances are somehow limited. Here, Mr Low’s arguments run into considerable difficulty. Not only are the debates silent on this issue, the simple and undeniable fact is that Parliament did provide for recourse to be had to the court to enforce the statutory duties of a Town Council through the express provision made in ss 21(2) and (3) of the TCA. It is then a leap of logic to say that there is limited or effectively no room for judicial intervention in such circumstances. The fact that the Parliamentary debates do not address the question of what, precisely, the court can do in such a situation, means that in the final analysis the resolution of this issue must rest on the usual interpretative techniques deployed by courts, that is to say, the textual and contextual analysis of the words of the statute.

  88. [55] In that light we turn to construe s 21 of the TCA so as to answer the two questions we have identified earlier at [44] above. We take these in turn.

  89. Who can apply?

  90. [56] The MND contends that it is entitled to bring an application under s 21(2) of the TCA to enforce the requirement or duty set out in s 21(1)(f) of the TCA. On this basis, the MND seeks an order to compel AHPETC to comply with the provisions of the TCA, and in particular, s 35(c) of the TCA (set out at [10(a)] above). The MND argues that the requirements in s 35(c) of the TCA are imposed on the Town Council for its benefit and therefore that it may rely on s 21(2) of the TCA to obtain the reliefs sought. The Judge did not agree with the MND on this point. In addition, the HDB is now before us contending that it is entitled, in any event, to rely on s 21(2) of the TCA to apply for the reliefs sought because it is specifically named there as a party who may bring a claim. The HDB further submits, in the alternative, that s 35(c) of the TCA and r 4(2B) of the TCFR (summarised at [10(b)] above) are imposed on the Town Council for its benefit and therefore it may rely on s 21(2) of the TCA to obtain the reliefs sought.

  91. [57] In our judgment, s 21(2) of the TCA is a provision that exists for the specific purpose of enabling a certain category of persons to seek relief from the court when a person falling within the said category contends that a requirement or duty imposed on a Town Council has been breached. As to who precisely can invoke the section, we begin with the words of s 21(2) which provides:

  92. [58] The text of the sub-section (in particular the words in italics) shows that, as the first step, the applicant must identify a particular requirement or duty imposed on the Town Council. Moreover, that requirement or duty must be imposed “by this section”, which is s 21 of the TCA. The applicant would have to go on to prove that the Town Council has failed to carry out or perform that requirement or duty.

  93. [59] We begin with the requirement or duty that we are concerned with and this is prescribed in s 21(1)(f) of the TCA. Section 21(1)(f) provides as follows:

  94. [60] In our judgment, this obliges the Town Council to comply with all the provisions of the TCA and the rules made thereunder, and this includes, for present purposes, s 35(c) of the TCA and r 4(2B) of the TCFR. Although this point was not challenged by Mr Low, we should nevertheless undertake a brief analysis of s 21(1) to demonstrate that s 21(1)(f) is, in fact, quite broad and is not constrained by the other limbs in s 21(1). In our judgment, the language used in s 21(1)(f) is wide and unrestricted, and on its terms, it covers all of the provisions in the TCA as well as the rules made thereunder. We can see no reason to reduce the breadth of the provisions by adopting a restrictive interpretation of s 21(1)(f). It is not uncommon for provisions of this sort to have a wide scope of application (see [69]-[70] and [72] below), the only difference being that the drafters here have consolidated the Town Council’s duties into a single sub-section, namely, s 21(1) of the TCA. Furthermore, the ejusdem generis principle of construction, which directs that “wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character” (Oliver Jones, Bennion on Statutory Interpretation (Sweet & Maxwell, 6th Ed, 2013) at p 1105), has no application here. For one thing, s 21(1)(f) of the TCA is situated in the middle (and not at the end) of the list of requirements and duties in that sub-section. This has been the case for the equivalent of s 21(1)(f) of the TCA since the TCA was first enacted in 1988 (see s 21(1) of the Town Councils Act (No 12 of 1988)) and the two subsequent amendments to s 21(1) of the TCA in 1999 and 2005 did not change that (see s 2 of the Town Councils (Amendment) Act 1999 (No 6 of 1999) and s 4 of the Town Councils (Amendment) Act 2005 (No 23 of 2005)). This appears to be a deliberate choice. We observe also that s 21(1)(f) of the TCA effectively imports the rest of the provisions in the TCA and the TCFR into the framework set out in s 21 of the TCA. It is not a provision that lends itself to being cut down to fit within a genus. To put it another way, it seems to us to be difficult, if not impossible, to find a genus which can apply without effectively requiring us to read s 21(1)(f) out of existence.

  95. [61] We are therefore satisfied that s 21(1)(f) was not intended to be read restrictively and that it imports into s 21 the Town Council’s duty to comply with all the provisions of the TCA and the rules made thereunder. It must follow that the Town Council is required to act in accordance with, among other provisions, s 35(c) of the TCA and r 4(2B) of the TCFR.

  96. [62] Section 35(c) of the TCA states that a Town Council shall:

  97. [63] Rule 4(2B) of the TCFR provides that:

  98. [64] Having identified the requirements and duties in question, we proceed to examine who their beneficiaries are.

  99. [65] For this purpose, we turn to the words in s 21(2) which we have marked in bold at [57] above, and which inform us who may apply to the court to compel the performance of that requirement or duty which has not been carried out or performed by the Town Council. We begin with the HDB’s position since it is expressly named in this section. There are two possible interpretations of the sub-section. The first is that the HDB can rely on s 21 of the TCA without having to establish specifically that the requirement or duty in question was imposed on the Town Council for its benefit or for the benefit of its flat(s). On this basis, only persons other than the HDB who are seeking to rely on s 21 of the TCA would have to prove that the requirement or duty in question was imposed on the Town Council for their benefit or for the benefit of their flat. This was the view the Judge took, and it is the primary position advanced by the HDB in this appeal. The second interpretation is that any party, whether the HDB or otherwise, seeking to rely on s 21 of the TCA would have to first establish that the requirement or duty in question was imposed on the Town Council for its benefit or for the benefit of its flat.

  100. [66] Of course, it does not follow that just because the HDB was specifically named in s 21(2), it need not demonstrate specifically that it was the intended beneficiary of the requirement or duty in question. Indeed, it might be argued that the legislative drafters specifically named the HDB in s 21(2) so as to make it clear that the HDB would be entitled to rely on s 21 of the TCA just like “any person” but only if it was able to show that the requirement or duty in question was imposed for its benefit or for the benefit of its flat. Otherwise, one might argue that the words “any person” should be interpreted narrowly to cover only residents and exclude the HDB altogether.

  101. [67] In our judgment, the first of the two interpretations set out at [65] above is to be preferred. To explain this, we need to examine the genesis of provisions that are similar to s 21 of the TCA. The Judge had observed that there are two other statutes in Singapore that contain provisions similar to s 21 of the TCA, namely, s 88(3) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) and s 38(2) of the HUDC Housing Estate Act (Cap 131, 1985 Rev Ed). The Judge went on to observe however that these provisions were not in themselves instructive as to the proper interpretation of s 21(2) because he considered that each statute must be interpreted in accordance with its own purpose, structure and scheme. But it is also the case that such provisions are not unique to Singapore, and by tracing the evolution of such statutes in other jurisdictions and the language they adopt, rather more might be revealed.

  102. [68] Our research takes us back to the 1960s. It was then that Australia first enacted laws governing strata-titled properties (in common parlance, multi-storey buildings). The first such legislation was the Conveyancing (Strata Titles) Act (No 17 of 1961) (NSW) in New South Wales, which was later used as a model for other states in Australia. Other parts of the world, including Singapore (see Land Titles (Strata) Act (Act 41 of 1967)), subsequently followed suit. The scheme of the legislation regulating these developments entailed the creation of a body corporate (commonly referred to as a management corporation or strata corporation) impressed with various duties and functions, one of which would be to control, manage and administer the common property for the benefit of the residents. It is in such legislation that we first find provisions using language similar to that which we see in s 21 of the TCA.

  103. [69] An early example of such a provision can be found in the Strata Titles Act 1967 (No 7551) (Vic) (“the Victorian Strata Titles Act”). Section 33(2) of this statute which was passed in the state of Victoria, reads:

  104. [70] Two points are worth noting in connection with this provision in the Victorian Strata Titles Act. The first is that the drafters thought it necessary to specify that “any person” includes “any public or local authority”. The second point is that this provision is structured slightly differently from our s 21 of the TCA. This brings us to s 223np(4) of the Real Property Act 1886–1967 (SA) (“the South Australian Real Property Act”) which was passed around the same time, and it reads:

  105. [71] Other jurisdictions have adopted similarly worded provisions in their own statutes (some of which have since been repealed), and it appears that the drafters in those jurisdictions have broadly adopted the wording found in either the Victorian Strata Titles Act (we set out examples of such provisions at [72] below) or that in the South Australian Real Property Act (see, for instance, s 55(2) of the Strata Titles Act 1985 (Act 318) (Malaysia) (“Malaysian Strata Titles Act”)). Section 21 of the TCA is worded in similar terms to the provision in the South Australian Real Property Act save that it expressly mentions the HDB and also specifically lists out the various requirements and duties in the section (ie, s 21(1) of the TCA) instead of referring to the requirements and duties imposed either by “this Part” or “this Act”. The scope of s 21 of the TCA is not narrower even though it refers only to requirements and duties under “this section” (as opposed to “this Part” or “this Act”) because, as we have noted, s 21(1)(f) requires the Town Council to “comply with the provisions of this Act and the rules made thereunder”.

  106. [72] A further observation we make is that having reviewed similarly worded provisions in the statutes of various jurisdictions, it appears that all of them allow “any person” to apply to the court for relief so long as that person is the intended beneficiary (either personally or by virtue of ownership of the flat, unit, parcel or lot) of the requirement or duty in question. This much is true also of s 21 of the TCA. Some of the provisions in these various statutes go on to clarify that “any person” extends to cover local authorities and public bodies. To illustrate this point, we refer to three such provisions (aside from the extract from the Victorian Strata Titles Act that we have reproduced at [69] above). These are:

  107. (a) s 53(1) of the Unit Titles Act 2005 (No 17 of 2005) (Cook Islands):

  108. (b) s 51(1) of the Unit Titles Act 1972 (No 15 of 1972) (New Zealand):

  109. (c) s 66(1) of the Land Code (Strata) Act (S 29/99, 2000 Rev Ed) (Brunei):

  110. [73] What is common in each of these four examples, including s 33(2) of the Victorian Strata Titles Act, is that the reference to the local, relevant or public authority or body is always as a subset of the primary subject of the provision which is “any person”. This reveals a critical and seemingly deliberate point of departure in s 21(2) of the TCA which reverses the sequence and begins with “the Board” (which is defined in s 2(1) of the TCA to mean the HDB) and then adds to that “or any person”. This suggests that the HDB was a distinct subject and not a subset of “any person” and this would militate against the suggestion that the HDB also would have to demonstrate a specific interest. Indeed, were that the case, there would have been no real need to name the HDB at all.

  111. [74] Furthermore, it seems to us to be sensible that Parliament would have wanted the HDB to have standing to apply for relief without having to specifically prove that the requirement or duty in question that was breached was imposed on the Town Council for its benefit. For one thing, the HDB occupies the unique role as the owner of the common property in addition to any other property interests it might have within a given housing estate. In our judgment, specific reference was made to the HDB because it will always have an interest in the common property (which belongs to the HDB; see the definition of “common property”, read with “residential property”, “commercial property” and “housing estate” in s 2 of the TCA; see also Singapore Parliamentary Debates, Official Report (28 June 1988) vol 51 at cols 393–395 (Mr Heng Chiang Meng (Jalan Kayu)) and Singapore Parliamentary Debates, Official Report (29 June 1988) vol 51 at cols 415–416 (Mr Chiam See Tong)), and by virtue of this, it must have been thought that standing should be conferred on the HDB to bring an application to safeguard this interest aside from any other capacity it might enjoy, in common with other flat owners, by virtue of its ownership of unsold flats. Second, the HDB retains a public function and duty to ensure that its housing estates are properly maintained and managed even though the primary responsibility for this has been devolved onto the Town Councils by virtue of the enactment of the TCA. One of the HDB’s functions and duties is “to manage all lands, houses and buildings or other property vested in or belonging to the [HDB]” (s 13(b) of the Housing and Development Act (Cap 129, 2004 Rev Ed)). In keeping with this, the HDB has a residual role when Town Councils are dissolved; thus, while the HDB ceases to be liable for the maintenance and management of common property once a Town Council takes over and for so long as that Town Council is established (s 53(1) of the TCA), it resumes responsibility as the owner of the housing estates for their maintenance and management upon the dissolution of a Town Council (s 55(2) of the TCA).

  112. [75] For these reasons, we are satisfied that the HDB is conferred express standing to bring an application under s 21(2) of the TCA without having to specifically establish that the particular requirement or duty in question exists for its benefit.

  113. [76] We turn next to consider the position of the MND, which contends that it is entitled to bring an application under s 21(2) of the TCA because it is a “person for whose benefit” the requirement or duty in question is imposed on the Town Council by s 21(1)(f) read with s 35(c) of the TCA. In this regard, the MND raises a number of points, namely:

  114. (a) the Minister is “constitutionally charged” with responsibility over Town Councils by virtue of Art 30(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) read with the Constitution of the Republic of Singapore (Responsibility of the Minister for National Development) Notification 2011 (S 304/2011);

  115. (b) Town Councils are bodies administering public funds and s 35(c) of the TCA imposes financial management standards aimed at safeguarding such funds;

  116. (c) the TCA is under the regulatory purview of the MND; and

  117. (d) the MND disburses grants-in-aid to the Town Councils and these make up a substantial portion of a Town Council’s funds.

  118. [77] To fully appreciate the MND’s contention, some background on the role of the Minister in relation to matters concerning the Town Council as envisaged in the TCA would be helpful. Under the TCA, the Minister is empowered to do several things, including:

  119. (a) to make grants-in-aid to Town Councils for the purposes of enabling the Town Councils to carry out their functions (which can be made subject to conditions (s 42 of the TCA));

  120. (b) to make rules on how Town Councils are to manage their finances (s 43 of the TCA); and

  121. (c) to appoint a person to perform the powers, duties and functions of a Town Council in certain limited circumstances (s 50 of the TCA).

  122. [78] Further, the Minister is also required under the TCA to receive the audited financial statements, the auditor’s reports and the annual reports of the Town Councils and present these to Parliament each year (ss 38(11), (13) and (14) of the TCA). All these go to show that the Minister, supported by the MND, has a role to play with regard to Town Councils under the TCA. And this is perfectly in line with the MND’s point that the Minister is “constitutionally charged” with responsibility over Town Councils. The Minister is answerable to Parliament on matters concerning the Town Councils, and to that end, he is expressly empowered by the TCA to do certain things.

  123. [79] Furthermore, as the MND rightly pointed out in its argument, s 35(c) of the TCA imposes an obligation on Town Councils to ensure that funds held by them, which would consist of both grants-in-aid received from the Minister and conservancy and service charges collected from the residents, are not lost or misused. However, the TCA is conspicuously silent on the power or the role of the Minister (or the MND) with regard to ensuring the Town Councils’ compliance with s 35(c) of the TCA or indeed any other provisions in the TCA and the TCFR. This stands in contrast to other matters concerning the Town Councils for which the Minister was expressly empowered to act.

  124. [80] The MND’s key contention is that it is an intended beneficiary of s 35(c) of the TCA that has been imposed on the Town Council because: first, the Minister/MND has regulatory oversight over Town Councils, and second, the Minister disburses public funds to the Town Councils and that considerations of good governance mandate that the Town Councils be answerable to the Minister/MND in relation to their finances. Both grounds are related, but for the sake of clarity we discuss them separately.

  125. [81] We reject the MND’s first ground because there is a logical gap between, on the one hand, the fact that the Minister has certain powers to regulate the affairs of Town Councils as are expressly set out in the TCA, such as in s 42 or s 50 of the TCA, and on the other hand, the proposition that the Minister/MND has regulatory oversight of the Town Councils in general and with it, an interest in ensuring compliance with all of the obligations imposed by the TCA and the TCFR, including s 35(c) of the TCA. We do not agree that the former (ie, specific aspects of regulation as provided by the TCA) leads to the latter (ie, general regulatory oversight). Not only is there nothing at all in the TCA to that effect, there is evidence to contradict the MND’s claim that it has regulatory oversight of the Town Councils. It should be recalled that, at the second reading of the Town Councils Bill, the Minister was asked by the Member for Bo Wen if there would be a supervisory body to monitor the Town Councils and his response was that “[t]hat is not the intention” (see [46] above). Moreover, the fact that the MND is not specifically named in s 21(2) of the TCA, though not determinative in and of itself, does undermine the MND’s claim that it is vested with a blanket interest in enforcing the various requirements and duties set out in s 21(1) of the TCA, including s 21(1)(f). In the circumstances, we cannot accept the first of the two broad grounds advanced by the MND.

  126. [82] As to the second ground, we disagree for two essential reasons. First, it is not disputed that when disbursing the grants-in-aid, it was (and remains) open to the Minister to impose conditions upon which these would be available. This is provided for in s 42 of the TCA and it furnishes ample and indeed, in our judgment, the appropriate means by which to secure the ends of sound governance. To the extent the Minister has any concerns over the application of the grants-in-aid, it is open to him to condition the making of any or further grants-in-aid upon the Town Council agreeing to abide by appropriate safeguards. The MND argues that the Minister’s responsibility over the grants-in-aid under s 42 of the TCA must give rise to concomitant rights of supervision over the grants-in-aid and the Town Councils that receive them. However, this argument seems to have missed the fact that the legislative drafters have, by way of express wording in s 42 of the TCA, provided that the Minister can impose conditions on the grants-in-aid and there is no reason for thinking these could not extend to the imposition of reasonable safeguards.

  127. [83] Secondly, the grants-in-aid were made in order to enable the Town Council to carry out its functions. Indeed, the primary function of the Town Council under s 18(1)(a) of the TCA is to control, manage, maintain and improve the common property and to keep it in a state of good and serviceable repair and in clean and proper condition. Those who benefit from the discharge of this function are the residents and flat owners in the area served by the Town Council. If the moneys disbursed by way of the grants-in-aid are not properly applied by the Town Council in the carrying out of its functions, then it is the residents and flat owners who are adversely affected and it is they who would be able to apply under s 21(2) to compel the Town Council to do so. We are therefore satisfied that the MND is not an intended beneficiary of the requirement or duty imposed on the Town Council by s 21(1)(f) read with s 35(c) of the TCA.

  128. [84] In the circumstances, we hold that the HDB (but not the MND) is entitled to bring an application under s 21 of the TCA. We are mindful of the fact that the MND has further grounds, which are distinct from its reliance on s 21 of the TCA, and on which it contends that it should be entitled to at least some of the reliefs it has sought in these proceedings. These were not pressed with great vigour before us but we have dealt with them towards the end of this judgment at [121]-[129] below. This leads us to the next question: what are the powers of the court when faced with such an application?

  129. What can the court do?

  130. [85] The answer to this is circumscribed by the terms of s 21(2) of the TCA which provides that an interested person may apply to the High Court for “an order compelling the Town Council to carry out the requirement or perform the duty”, and s 21(3) of the TCA which provides that on such application, the High Court may “make such order as it thinks proper”. Relying on the wide terms of s 21(3) of the TCA, Ms Kam submitted that the court has power not only to compel the Town Council to carry out the requirement or perform the duty in question but also to prescribe the manner in which this should be done. She submitted that the court’s power is not constrained such that it can only grant a mandatory order, but can do whatever is necessary to remedy the breach of statutory duty, including in the present context, appointing independent accountants to step in and do what is necessary to ensure compliance (see prayer 3 at [17] above).

  131. [86] As against this, Mr Low submitted that under s 21 of the TCA, the court only has the power to order AHPETC to abide by the provision or declare that it has not done so. As Mr Low put it, all the court can do is to declare that the Town Council is obliged to carry out the duty or requirement in question and perhaps also that the Town Council is and has been in breach of this requirement or duty.

  132. [87] In our judgment, there are difficulties with both sets of contentions. While we accept that s 21(3) is drafted in wide terms, we do not consider that the intention underlying that section was for the court to step into the shoes of the Town Council or to substitute its own decisions for those of the Town Council in question as to how the various requirements and duties are to be carried out. The nature of the orders that were sought by the HDB in effect extended to the court taking steps to see to it that the specified duties were carried out in a particular way by an actor, namely, the independent accountants who, Ms Kam submitted, would be acting on behalf of and be accountable to the court as its agents for the conduct of those duties. In our judgment, this reveals the flaw in the argument because it is inconceivable that the court could be put in such a position in a matter that involved an aspect of local government. On the other hand, Mr Low’s contention reduced the court to an irrelevant and ultimately toothless observer. As we pointed out to Mr Low, the issue was not one of the Town Council being unaware of its duties so that it needed to be reminded of them by the court. Hence, here again we are driven to construe the provisions of ss 21(2) and (3) to determine just what the court may do in a situation such as this.

  133. [88] We begin by observing that s 21 is intended to provide an avenue for interested persons to seek relief when a Town Council fails to perform one or more of its statutory duties. It seems reasonable to approach this on the footing that having provided this avenue, Parliament could not have intended it to lead to a fruitless or pointless end. Indeed, the express terms are an application for an order “compelling the Town Council to carry out the requirement or perform the duty” [emphasis added] in response to which the court may make “such order as it thinks proper”. That must in our judgment encompass an order that has the real object and effect of compelling the Town Council to carry out the requirement or perform the duty that it has hitherto neglected to do.

  134. [89] Against the backdrop of those remarks, it may be helpful to examine the court’s power to grant a mandatory order. This is because both a mandatory order and an order under s 21 of the TCA serve the purpose of compelling a body to perform its statutory duty. The cases on mandatory orders granted in the context of judicial review might shed some light on the proper ambit of an order made under s 21 of the TCA. It is however crucial to bear in mind that these are not necessarily the same in all respects and should not be unthinkingly treated as such.

  135. [90] In relation to mandatory orders, the courts will give specific directions as to how the statutory duty can be performed, so long as they do not impinge on the discretion (if any) conferred on the public body. The case of R v The Council of the Metropolitan Borough of Poplar (No 1) [1922] 1 KB 72 provides a helpful illustration of how the court works to strike an appropriate balance in these matters. There, the London County Council and the Managers of the Metropolitan Asylum District issued precepts to the Poplar Borough Council requiring it to pay a certain sum. The Poplar Borough Council was obliged under statutes to pay, but it failed to do so. The Poplar Borough Council did not have the financial means to pay, and it did not wish to levy a rate to meet the precepts as it considered that doing so would impose too great a burden on the poorer segments of its ratepayers. The English Court of Appeal upheld the mandatory order for the Poplar Borough Council to make the payments and “if necessary to make and levy a rate for the purpose of those payments” (at 84). Such an order made it clear that the Poplar Borough Council could not decline to pay what was due on the basis that it did not wish to acquire the requisite funds by levying a higher rate. However, there are limits as to when the courts would give specific directions. For instance, the courts will be reluctant to grant a mandatory order “if the form of the order requires day-to-day supervision” (see David Foulkes, Administrative Law (Butterworths, 8th Ed, 1995) at p 395).

  136. [91] We turn next to two decisions of the Supreme Court of the Australian Capital Territory involving a provision that is similar to s 21 of the TCA. The provision in question there, namely, s 113 of the Unit Titles Act 1970 (No 31 of 1970) (ACT) (“Unit Titles Act 1970”), reads:

  137. [92] In the first case, Caroline Emily Cole v The Proprietors – Units Plan 109 [1996] ACTSC 60 (“Caroline”), the applicant was a proprietor of a unit in Units Plan 109 who sought a number of orders under s 113 of the Unit Titles Act 1970. At the outset, Miles CJ had this to say on the interpretation of s 113 (at [4]):

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