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Grounds publishedDecided 1 Dec 2008
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Court of Appeal

Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301

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[2008] SGCA 47Case no. CA 20/2007

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Grounds of decision

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  1. Introduction

  2. [1] This is an appeal by Lee Tat Development Pte Ltd (“Lee Tat”) against the decision of the High Court in Originating Summons No 706 of 2004 (“the Present Action”). This appeal is the latest chapter in a long saga of bickering and court proceedings between Lee Tat and the respondent, the Management Corporation of Grange Heights Strata Title No 301 (“the MC”), as well as their respective predecessors in title over a plot of land, namely, Lot 111-31 of Town Sub-Division 21 (“the Servient Tenement”), which is currently owned by Lee Tat. The parties’ dispute (“the Dispute”) has dragged on for more than 30 years because, as shall be seen below, previous rounds of litigation have, for one reason or other, left certain fundamental issues relating to the parties’ respective rights vis-à-vis the Servient Tenement undecided.

  3. Factual background

  4. [2] In the Present Action, the MC sought a declaration of its entitlement to repair and/or maintain a right of way that it claims to have over the Servient Tenement. The judge in the court below (“the Judge”) granted the declaration sought (see Management Corporation of Grange Heights Strata Title No 301 v Lee Tat Development Pte Ltd [2007] 2 SLR 554 (“Grange Heights (No 3) (HC)”)). Effectively, the MC was permitted to carry out the following repair and/or maintenance works to its alleged right of way over the Servient Tenement:[note: 1]

  5. There is a dispute between the parties as to the width of the road proposed to be constructed on the Servient Tenement. However, this dispute is not relevant in view of the conclusions which we have reached in this judgment.

  6. [3] The Servient Tenement is a long, narrow and irregular strip of land with an area of around 883.4m. It lies adjacent to Lots 111-30, 111-32, 111-33 and 111-34 of Town Sub-Division 21, which we shall refer to individually as “Lot 111-30”, “Lot 111-32”, “Lot 111-33” and “Lot 111-34” respectively, and collectively as “the Dominant Tenements”. The Servient Tenement and all the Dominant Tenements were originally owned by a single owner, Mutual Trading Ltd (“Mutual”). In 1919, Mutual (then in liquidation) sold and conveyed the Dominant Tenements to various purchasers, but retained ownership of the Servient Tenement. Each conveyance conveyed the land sold, together with the dwelling house and the buildings described therein, and granted a right of way over the Servient Tenement (“the Right of Way”) in favour of each of the Dominant Tenements as follows:

  7. We shall refer to the above grant of the Right of Way as “the Grant” in this judgment.

  8. [4] In 1970, Hong Leong Holdings Ltd (“HL”), the predecessor in title of the MC, became the owner of one of the Dominant Tenements (viz, Lot 111-34) as well as the land adjacent to it (viz, Lot 561 of Town Sub-Division 21 (“Lot 561”)). Lot 561 has an area of 9,631.6m, which is more than three times the size of Lot 111-34, which has an area of 3,066.1m. Lot 561 has no access to Grange Road except via Lot 111-34 and the Servient Tenement, using the Right of Way. However, Lot 561 has access to River Valley Road (via either St Thomas Walk or River Valley Grove) and Killiney Road (via St Thomas Walk). HL amalgamated Lot 111-34 and Lot 561 into one lot, which became Lot 687 of Town Sub-Division 21 (“Lot 687”), in order to develop a condominium (“Grange Heights”) consisting of 120 residential apartments, a car park for 188 cars, a swimming pool, two tennis courts and changing rooms. (For convenience, we shall refer to the amalgamation of Lot 111-34 and Lot 561, which was effected in 1976, as “the Amalgamation”; these two plots of land will, however, continue to be referred to by their respective lot numbers in this judgment even though they have been merged to form Lot 687.) The original proposed layout of Grange Heights included the Servient Tenement as part of the development, but this was rejected by the competent authorities on the ground that HL did not own the Servient Tenement. The layout which was eventually approved excluded the Servient Tenement from the development. All the residential units in Grange Heights, together with the car park and the swimming pool, are situated on Lot 561 while the tennis courts and the changing rooms are situated on Lot 111-34.

  9. [5] The residential units in Grange Heights are held by subsidiary proprietors under strata titles. Pursuant to the version of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) which was in force at the time the Present Action was commenced (we shall refer to this particular version as “the Act”), the “common property” (as defined in s 3 of the Act) comprised in a strata title plan is held by subsidiary proprietors as “tenants-in-common proportional to their respective share value[s] and for the same term and tenure as their respective lots are held by them” (see s 13(1) of the Act). Section 33(1) of the Act provides that the subsidiary proprietors of the lots in a strata title plan shall constitute the management corporation of that strata title plan, and s 33(3) provides that the management corporation shall, subject to the Act, have the control, management and administration of the common property. In particular, s 33(2)(b) of the Act states that the management corporation may sue and be sued in respect of any matter affecting the common property. The effect of these provisions is that the MC is the alter ego of the subsidiary proprietors of the residential units in Grange Heights (“the Residents”), who collectively own the common property in Lot 111-34 and Lot 561. As such, references to the MC in this judgment should be read as incorporating references to the Residents as well, and vice versa.

  10. [6] In 1973, ownership of two of the Dominant Tenements, namely, Lot 111-32 and Lot 111-33, passed to Collin Development Pte Ltd (“Collin”), which later changed its name to Lee Tat (by a deed of rectification executed in 1986, the conveyance of Lot 111-32 and Lot 111-33 to Collin was reflected as having been a conveyance to “Lee Tat ... formerly known as Collin ...” instead). Lee Tat subsequently acquired the Servient Tenement from the Official Receiver on 27 January 1997. Since that date, Lee Tat has owned the Servient Tenement as well as two of the Dominant Tenements in favour of which the Right of Way was granted in 1919. It is thus both the (successor) grantor (vis-à-vis the Servient Tenement) and the (successor) grantee (vis-à-vis Lot 111-32 and Lot 111-33) of the Right of Way under the Grant.

  11. [7] This appeal is the culmination of four sets of court proceedings stretching over a period of more than 30 years between Lee Tat and the MC (as well as their respective predecessors in title) concerning the entitlement of, first, HL and, later, the Residents to use the Right of Way. The first set of proceedings consisted of Suit No 3667 of 1974 and Civil Appeal No 11 of 1976 (collectively, “the First Action”); the second set of proceedings comprised Originating Summons No 404 of 1989 and Civil Appeal No 131 of 1990 (collectively, “the Second Action”); the Present Action, from which this appeal stems, constitutes the third set of proceedings; and the fourth set of proceedings consisted of Originating Summons No 825 of 2004 (“OS 825/2004”) and Civil Appeal No 89 of 2004 (collectively, “the Fourth Action”). In this judgment, we shall refer to the High Court and the Court of Appeal in each of these actions as “the HC” and “the CA” respectively; we shall also refer to the First Action, the Second Action and the Fourth Action collectively as “the Previous Actions”.

  12. [8] After the MC commenced the Present Action, Lee Tat responded by filing OS 825/2004 for, inter alia, a declaration that the Right of Way did not extend to Lot 561 and a permanent injunction to prohibit (among others) the Residents from using the Right of Way for access between Grange Road and Grange Heights. As Lee Tat’s defence in the Present Action was dependent on its claims in OS 825/2004 being upheld by the court, the HC, with the consent of the parties, heard the latter action first. The HC dismissed Lee Tat’s claims in OS 825/2004 (see Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301 (No 2) [2004] 4 SLR 828 (“Grange Heights (No 4) (HC)”)). Lee Tat’s appeal against that decision was dismissed by a majority of the CA (see Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301 (No 2) [2005] 3 SLR 157 (“Grange Heights (No 4) (CA)”)). We shall hereafter refer to the majority of the CA in the Fourth Action as “the Majority Judges” and to the Majority Judges’ decision as “the Majority Judgment”.

  13. [9] As we mentioned at [1] above, the long saga of bickering and court proceedings between the parties has not brought the Dispute closer to a final resolution. Many legal issues between them remain unresolved. For example, in the Present Action, the Judge left unanswered the question of whether the Residents may use the Right of Way for vehicular traffic as a result of the decisions in the Previous Actions. Lee Tat claimed that the Residents had abandoned their entitlement to use the Right of Way in this particular manner, but the MC denied this. Another issue that was left undecided was what would constitute excessive use of the Right of Way, given that the Residents own Lot 111-34, to which the Right of Way is appurtenant. Indeed, as will be seen, there are many more fundamental legal issues between the parties which remain open, and there will be no end to this series of litigation so long as any of these issues are not resolved.

  14. [10] The Dispute is concerned primarily with the MC’s claim that the Residents are entitled to use the Right of Way for the purposes of gaining access to Lot 561 from Grange Road and vice versa. Lee Tat denies that the Residents have any such right. The Dispute raises issues of fact and law which could have been decided within a short period of time if the parties had agreed on the precise issues which required adjudication and had put those issues clearly and comprehensively to the courts in the Previous Actions. The fact that many legal issues currently remain undecided suggests that something went wrong somewhere in the Previous Actions. Whatever may be the reasons for or the causes of this situation, it is time for this court to bring finality to the Dispute in so far as it is within our judicial power to do so. Indeed, after we reserved judgment to consider the arguments of counsel for the parties, we suggested to them that this would be a proper case for their clients to negotiate a mutually acceptable settlement, whether in monetary terms or otherwise. However, this came to naught. As such, it now falls on this court to decide not only the question of whether the Residents may use the Servient Tenement as a means of access between Lot 561 and Grange Road, but also the outstanding legal issues connected with the parties’ respective rights over the Right of Way. Before we deal with these issues, however, we have to consider a more immediate question relating to issue estoppel (“the Estoppel Question”).

  15. The Estoppel Question: Issue estoppel and its impact on the present appeal

  16. The relevance of issue estoppel in this appeal

  17. [11] This appeal is, on the face of it, concerned with whether or not the Judge’s decision in the Present Action is correct in law. The Judge granted the MC’s application on the basis that, pursuant to the decision made in the Fourth Action, the MC was entitled to enjoy the Right of Way to the extent decided in the Second Action (see Grange Heights (No 3) (HC) ([2] supra) at [30]–[32]). He rejected Lee Tat’s contention to the contrary on the ground that Lee Tat was estopped from re-litigating this particular issue – viz, whether the Residents could use the Right of Way to access Lot 561 from Grange Road by crossing from Grange Road to Lot 111-34 and then to Lot 561, and vice versa (“the Main Issue”) – because, as was held by the HC and the Majority Judges in the Fourth Action, that issue had already been decided against Lee Tat in the Second Action.

  18. [12] At one level, this appeal is concerned with the law relating to rights of way and conflicting claims to use a right of way over a servient tenement. (To facilitate our discussion of this area of the law, we shall hereafter refer to the owner of a dominant tenement in favour of which an easement has been granted as a “dominant owner” and the owner of a servient tenement over which an easement exists as a “servient owner”.) These are no doubt important issues to the parties in this action, and also to other dominant owners in similar situations in Singapore.

  19. [13] At another level, this appeal raises a more important question – ie, the Estoppel Question – as to the application of the principle of estoppel per rem judicatam, more commonly referred to as “res judicata” for short. (We should add that what we are concerned with in this regard is the doctrine of res judicata in its conventional form, as opposed to its extended form, which is discussed at [58]–[61] below.) Res judicata is based on the important principle of public policy that a cause of action, or an issue necessary to the resolution of a cause of action, which has been finally and conclusively adjudicated on the merits by a court of competent jurisdiction may not be re-litigated by the same parties. Res judicata applies to all litigation before the courts. For this reason, our decision on the applicability or otherwise of issue estoppel (which is the particular form of estoppel per rem judicatam involved in the present appeal) will have a larger and more lasting impact on the legal rights of litigants generally than our decision on the specific rights of Lee Tat and the MC in relation to the Right of Way.

  20. [14] Issue estoppel is relevant in this appeal because the outcome of the Present Action was – according to the Judge’s analysis – already predetermined by the decision in the Fourth Action that Lee Tat was estopped from re-litigating “the issue [of] whether the [R]ight of [W]ay ... could be used by the [R]esidents ... to reach ... [L]ot 111-34 and then to cross over to ... [L]ot 561” (see Grange Heights (No 3) (HC) ([2] supra) at [29]). We would highlight at this juncture that this issue, which we shall term “the issue raised in the Fourth Action”, is the same as the Main Issue which we defined earlier at [11] above. Significantly, the HC in the Fourth Action did not dismiss OS 825/2004 by direct reference to the facts and the legal issues raised by Lee Tat as the owner of the Servient Tenement. Instead, the HC dismissed it on the basis that the CA in the Second Action had already ruled against Lee Tat on the issue raised in the Fourth Action (which, as we have just mentioned, is also the Main Issue in the Present Action) (see Grange Heights (No 4) (HC) ([8] supra) at [32]–[37]). In other words, the HC in the Fourth Action dismissed OS 825/2004 on the ground that Lee Tat, in advancing the issue raised in the Fourth Action, was effectively seeking to re-litigate a point that had already been decided by the CA in the Second Action. On appeal by Lee Tat in the Fourth Action, the Majority Judges affirmed the decision of the HC on substantially the same grounds (see Grange Heights (No 4) (CA) ([8] supra) at [16]–[18]). How the Majority Judges arrived at this conclusion and whether their conclusion was wrong in law are relevant issues before us. As will be seen, what we are faced with in this case is a situation in which neither the Judge in the Present Action nor the HC and the Majority Judges in the Fourth Action have actually addressed directly the rights of Lee Tat, as a servient owner, vis-à-vis the MC with respect to the use of the Right of Way for the benefit of Lot 561.

  21. [15] Ordinarily, issue estoppel should not cause serious difficulties for the court dealing with the same issue(s) in future litigation between the same parties. The present appeal is, however, an exception because of the interaction between the substantive law on rights of way and the law on issue estoppel. As we see it, the following problems have arisen in this case. The first relates to the existence or otherwise of legal rights, namely, whether the Residents are entitled to use the Right of Way to pass between Lot 561 and Grange Road, given that they do not reside on Lot 111-34, the dominant tenement. One difficulty that arises in this regard is that a right of way, whether acquired by prescription or (as in the present case) by a grant, is not an immutable or irrevocable legal right that, once acquired, lasts forever. It can be lost in a number of ways under the law, such as by abandonment, by extinguishment due to the operation of law (eg, if something is done to destroy the easement or the character of the dominant tenement) or even by excessive use. With respect to Lot 111-34 specifically, a question of law arises as to whether the Right of Way might have ceased to exist by 1976 as against the owner of the Servient Tenement because of the Amalgamation. Alternatively, questions of law arise as to whether the Right of Way might no longer have existed to its full extent as set out in the Grant by the time the appeal in the Second Action was heard in 1992 (because the Residents had not used it for vehicular traffic in any meaningful way since 1976) and whether the Right of Way had been extinguished by the time the appeal in the Fourth Action was heard in 2005 (because of events which had occurred in the course of and after the construction of Grange Heights).

  22. [16] The second problem relates to the application of a legal principle, viz, the doctrine of res judicata. In the Fourth Action, the HC and the Majority Judges effectively held that Lee Tat was estopped from re-litigating the Main Issue (the issue raised in the Fourth Action being, as we pointed out at [14] above, the same as the Main Issue) because that issue had already been decided against Lee Tat in the Second Action. In the course of perusing the judgments in the Previous Actions and after hearing counsel, however, we formed the provisional view that the Main Issue was not the same as the issue decided by the courts in the Second Action (“the issue decided in the Second Action”). Furthermore, in the Fourth Action, the Main Issue (as framed in the form of the issue raised in the Fourth Action) also did not arise between the same parties as those involved in the issue decided in the Second Action. In the Second Action, Lee Tat was sued in its capacity as a dominant owner, whereas, in the Fourth Action, it sued as a servient owner. Accordingly, we were somewhat puzzled by the Majority Judges’ decision in the Fourth Action that Lee Tat was estopped from raising the Main Issue in that action. As the Dispute has gone on for more than 30 years without a final resolution, freezing in the meantime the development of what are acknowledged to be very valuable pieces of land in Singapore, we are of the view that it is necessary that we resolve this dispute definitively once and for all so as to terminate the cycle of litigation between the parties. To this end, we propose to re-examine all the judgments in the Previous Actions in order to identify the issue or issues of fact and/or law that were determined in those actions, and, in turn, ascertain what issue or issues Lee Tat is now barred from raising in the Present Action by virtue of issue estoppel.

  23. [17] If the Majority Judges in the Fourth Action were correct in finding that the issue decided in the Second Action was the same as the issue raised in the Fourth Action (which is the same as the Main Issue (see [14] above)), it would mean that the Majority Judges were also correct to hold that Lee Tat was estopped from bringing up the Main Issue (as framed in the form of the issue raised in the Fourth Action) in that action (ie, the Fourth Action). This would in turn mean that, in the Present Action, the Judge was correct to rule that, pursuant to the Majority Judgment in the Fourth Action, issue estoppel prevented Lee Tat from raising the Main Issue in the Present Action. We would, in that case, have to dismiss this appeal. But, if we should find that the Majority Judges were wrong in regarding the issue raised in the Fourth Action as being the same as the issue decided in the Second Action and therefore erred in holding that Lee Tat was estopped from bringing up the Main Issue (as framed in the form of the issue raised in the Fourth Action) in the Fourth Action (and see, in this regard, our provisional view at [16] above), then we would be placed in the unenviable position of having to decide whether, in spite of the Majority Judgment being wrong in law on the point of issue estoppel, we should nonetheless hold that Lee Tat is estopped from re-litigating the Main Issue because that was what the Majority Judges decided. In this regard, if we were to decide that Lee Tat is not bound by the Majority Judgment, then it is open to this court to consider and resolve the Main Issue as well as all the other outstanding legal issues in dispute once and for all. With this prospect open to us, we directed the parties, after we had reserved judgment, to file further submissions on res judicata and abuse of process and also on the extinguishment of a right of way. This process, together with the need for this court to re-examine the issues raised, the arguments made and the decisions rendered in the Previous Actions, has contributed to the delay in finalising this judgment.

  24. The decisions in the Previous Actions

  25. [18] We will now retrace our steps to 1974 (when the First Action was commenced) to ascertain the issue or issues which were decided between the parties and their respective predecessors in title in the Previous Actions vis-à-vis the Right of Way. For this purpose, and to facilitate the understanding of the issues arising from the development of Grange Heights, we have appended to this judgment, as Appendix 1, a site plan (not drawn to scale) showing the location of the Dominant Tenements (ie, Lot 111-30, Lot 111-32, Lot 111-33 and Lot 111-34) in relation to the Servient Tenement (ie, Lot 111-31 of Town Sub-Division 21) and Lot 561 (which has been amalgamated with Lot 111-34 to form Lot 687). (It should be noted that the attached site plan does not take into account changes in the configurations and/or the lots numbers of any of the Dominant Tenements other than Lot 111-34, since nothing in this judgment turns on such developments, if any.) It can be seen from the site plan that, as mentioned earlier (at [4] above), there is no access from Lot 561 to Grange Road and vice versa except through Lot 111-34 and the Servient Tenement (via the Right of Way). Hence, as all the residential apartments in Grange Heights are sited on Lot 561, the Residents also have no access to Grange Road except through Lot 111-34 and the Right of Way over the Servient Tenement. The site plan also shows that, although Lot 561 has no access to Grange Road, it has access to River Valley Road (via either St Thomas Walk or River Valley Grove) and Killiney Road (via St Thomas Walk). The Residents have been using St Thomas Walk, a public road, for access to Grange Heights since 1976. River Valley Grove is another public road which may be used for access between Grange Heights and River Valley Road. However, there is no evidence as to whether the Residents have been using River Valley Grove for this specific purpose in the past and, if not, why they have not been doing so.

  26. The First Action

  27. (1) The decision of the HC

  28. [19] The First Action was commenced by Collin in 1974 against HL on the ground that the latter, which was then in the course of developing Grange Heights on Lot 111-34 and Lot 561, and its contractors were, inter alia, using the Right of Way for lorries to bring workers and construction materials to Lot 561 from Grange Road. Collin, in its capacity as a dominant owner, sought the following reliefs against HL, which was likewise a dominant owner (see Collin Development (Pte) Ltd v Hong Leong Holdings Ltd [1975-1977] SLR 457 (“Grange Heights (No 1) (HC)”) at 458, [7]):

  29. It should be noted that the declaration sought by Collin was in substance a restatement of the principle in Harris v Flower (1904) 74 LJ Ch 127 (“the Harris v Flower principle”). This principle states that a right of way which is granted over a servient tenement in favour of a dominant tenement cannot be used for the purposes of a non-dominant tenement as that would exceed the rights of the dominant owner as defined by the terms of the grant. In the context of the present case, the Harris v Flower principle entails that, since Mutual (the servient owner at the time of the Grant) granted the Right of Way over the Servient Tenement for the benefit of the Dominant Tenements (which include Lot 111-34 but not Lot 561), the MC could not use the Right of Way for the benefit of Lot 561. Harris v Flower was cited in argument by Collin. Although F A Chua J did not expressly refer to that case in his judgment, he did in essence decide that Collin’s argument was not an answer to HL’s contention that HL’s activities did not substantially interfere with Collin’s enjoyment of the Right of Way and, therefore, Collin was not entitled to prevent HL from using the Right of Way (see further [20] below).

  30. [20] In its defence, HL contended that, in law, Collin had no cause of action unless it could prove that HL’s actions had caused substantial interference with its (Collin’s) enjoyment of the Right of Way. Chua J agreed with this legal submission (see Grange Heights (No 1) (HC) ([19] supra) at 459, [10]), citing Hutton v Hamboro (1860) 2 F & F 218; 175 ER 1031 and Pettey v Parsons [1914] 2 Ch 653. Reference was also made to pp 580–581 of Halsbury’s Laws of England vol 12 (Butterworths & Co (Publishers) Ltd, 3rd Ed, 1955). On the facts, HL denied that it had substantially interfered with Collin’s enjoyment of the Right of Way as alleged or at all, or that it had evinced any clear intention to continue any interference or disturbance as alleged or at all.

  31. [21] HL contended that it was entitled to “an identical or [a] similar right of way over [the Servient Tenement]” (see Grange Heights (No 1) (HC) ([19] supra) at 458, [8]), and could pass and repass over the Right of Way as well as authorise other persons to do so. HL also counterclaimed for the following declarations (ibid):

  32. [22] Collin obtained an interim injunction against HL, which was continued until the trial of the action. By the time the trial was heard in 1976, the development of Grange Heights was substantially completed. As we noted at [20] above, at the trial, Chua J accepted HL’s submission on the law. He found that, on the facts, there was no evidence that HL had caused substantial interference with Collin’s enjoyment of the Right of Way. Accordingly, he dismissed Collin’s action on the following grounds (see Grange Heights (No 1) (HC) ([19] supra) at 460–461, [16]–[22]):

  33. [23] Chua J also dismissed HL’s counterclaim on the ground that HL could not seek declaratory rights in relation to the Right of Way against Collin, which did not own the Servient Tenement (id at 461, [24]). In other words, whether HL was entitled to use the Right of Way to access Lot 561 from Grange Road and vice versa was an issue to be decided between HL and the then owner of the Servient Tenement, and not between HL and Collin, both of which were dominant owners having the same entitlement to use the Right of Way.

  34. (2) The decision of the CA

  35. [24] Collin appealed against the dismissal of its claim, but HL did not appeal against the dismissal of its counterclaim. The CA dismissed Collin’s appeal (see Collin Development (Pte) Ltd v Hong Leong Holdings Ltd [1975-1977] SLR 202 (“Grange Heights (No 1) (CA)”)). Wee Chong Jin CJ, delivering the judgment of the CA, said (at 203–204, [7]–[11]):

  36. [25] In dismissing the appeal, Wee CJ added that Collin was not precluded from seeking any remedy in the future “if and when the facts and circumstances ... changed” (id at 204, [12]). It is not clear whether Wee CJ, in making that remark, had in mind circumstances where there might be substantial interference with Collin’s enjoyment of the Right of Way or where HL’s use of the Right of Way might contravene the Harris v Flower principle. As will be seen, the facts and the circumstances did change in 1997 after Lee Tat acquired title to the Servient Tenement.

  37. (3) Our observations on the decisions of the HC and the CA in the First Action

  38. [26] We have the following observations on the decisions of the HC and the CA in the First Action:

  39. (a) Chua J and the CA effectively rejected Collin’s argument (“Collin’s argument in the First Action”), which was based on the Harris v Flower principle, on the ground that that principle was not relevant for the purposes of determining the rights of Collin and HL inter se as dominant owners. This was because a dominant owner had no right or standing to challenge a fellow dominant owner’s use of a right of way which both dominant owners were entitled to enjoy on the ground that such use infringed the terms of the grant. The question of whether a dominant owner’s use of a right of way had exceeded the terms of the grant was a matter between the servient owner who had made the grant and the dominant owner, and not between two dominant owners having the same entitlement to enjoy that right of way. A dominant owner was only entitled to a remedy against his fellow dominant owner if the latter’s use of the right of way had substantially interfered with the former’s enjoyment of the same easement (see Grange Heights (No 1) (HC) ([19] supra) at 459, [10] and Grange Heights (No 1) (CA) ([24] supra) at 203, [7]). Correspondingly, HL’s counterclaim that it was entitled to use the Right of Way to gain access to Lot 561 from Grange Road and vice versa was, in our view, correctly dismissed by Chua J since the then owner of the Servient Tenement was not a party to the First Action (see Grange Heights (No 1) (HC) at 461, [24]).

  40. (b) Both Chua J and the CA found on the facts that HL had not substantially interfered with Collin’s enjoyment of the Right of Way and dismissed Collin’s claim on that ground (see Grange Heights (No 1) (HC) at 461, [22] and Grange Heights (No 1) (CA) at 204, [10]–[11]). In other words, the Harris v Flower principle was not relevant to the issue to be determined in the First Action.

  41. (c) Both Chua J and the CA observed that it was highly improbable that vehicular traffic from Grange Heights after its completion would be so heavy as to substantially interfere with Collin’s enjoyment of the Right of Way (see Grange Heights (No 1) (HC) at 460–461, [21] and Grange Heights (No 1) (CA) at 204, [10]). It should be noted, however, that these were speculative statements of fact made in the context of whether there was substantial interference by HL with Collin’s enjoyment of the Right of Way. These statements were not made in the context of a claim by a servient owner (ie, the owner of the Servient Tenement) that HL was not entitled to use the Right of Way for the purposes of Lot 561 and/or that such use would be excessive and contrary to the terms of the Grant. It should also be noted that the CA found that Collin “rarely use[d] [the Right of Way] and [was] unlikely to do so in the near future” (see Grange Heights (No 1) (CA) at 204, [10]).

  42. The Second Action

  43. (1) The decision of the HC

  44. [27] On 27 April 1989, the MC (which had by then been constituted under the Land Titles (Strata) Act (Cap 158, 1988 Rev Ed)) commenced the Second Action for an injunction and damages against Lee Tat (as Collin was by then known) for blocking the Residents’ access to and use of the Right of Way. Lee Tat had placed an iron gate across that end of the Servient Tenement which bordered Grange Road (“the Grange Road end of the Servient Tenement”) and had erected a fence across that end of the Servient Tenement which bordered Grange Heights. The MC obtained an interim injunction restraining Lee Tat from obstructing the Residents’ access to the Right of Way, and Lee Tat applied to have it discharged.

  45. [28] Lee Tat’s application for the interim injunction to be discharged (“the Discharge Application”) was heard by Punch Coomaraswamy J. Lee Tat’s case was that the interim injunction should be discharged because:

  46. (a) the Amalgamation had extinguished the MC’s right of way over the Servient Tenement (“Issue (a) of the Second Action”); and

  47. (b) the Residents were not entitled to use the Right of Way because they were using it not for the purposes of the dominant tenement in favour of which that right had been granted (ie, Lot 111-34), but for the purposes of Lot 561, the non-dominant tenement on which all the residential apartments in Grange Heights stood (“Issue (b) of the Second Action”).

  48. The CA in the Second Action took cognisance of the same issues (see Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301 [1992] 2 SLR 865 (“Grange Heights (No 2) (CA)”) at 868, [13]) and, as will be seen, whether the CA decided those issues then has an important bearing on the outcome of this appeal. Issue (b) of the Second Action is in fact the same as Collin’s argument in the First Action, which was premised on the Harris v Flower principle. Issue (b) of the Second Action also involves the same question as that encapsulated in the Main Issue as well as the issue raised in the Fourth Action.

  49. [29] In the HC, Lee Tat argued, in respect of Issue (a) of the Second Action, that the Amalgamation had extinguished the MC’s entitlement to use the Right of Way because “Lot 111-34 [had] ceased to exist. It [had become] part of Lot 687.”[note: 2] With regard to Issue (b) of the Second Action, Lee Tat relied on the Harris v Flower principle and contended, inter alia, that the Right of Way was “for [the] benefit of ... Lot 111-34 ... [and could not] be passed to Lot 687”.[note: 3] In its defence, the MC argued that “[a]ll [the] cases cited by [counsel for Lee Tat were] between [a] dominant tenant and [a] servient tenant – [and] not between two dominant tenants”.[note: 4] In making this submission, the MC effectively took the position that Lee Tat, not being the owner of the Servient Tenement, could not rely on Issue (b) of the Second Action. The MC further contended that Lee Tat had acquiesced in the Residents’ use of the Right of Way since 1976.

  50. [30] The HC rejected Lee Tat’s arguments on both Issue (a) of the Second Action and Issue (b) of the Second Action. Coomaraswamy J held that the Right of Way continued to exist in favour of Lot 111-34 despite the Amalgamation and, since Lee Tat had conceded that there was no excessive use of the Right of Way by the Residents, Lee Tat was not entitled to close the Right of Way and prevent the Residents from using it. He accordingly dismissed the Discharge Application and granted the MC a permanent injunction restraining Lee Tat from interfering with the Residents’ use of the Right of Way (“the 1990 Injunction”). Coomaraswamy J’s reasons for so ruling are set out in Management Corp Strata Title No 301 v Lee Tat Development Pte Ltd [1990] SLR 1193 (“Grange Heights (No 2) (HC)”) as follows (at 1195–1196, [7]–[11]):

  51. (2) The decision of the CA

  52. [31] Lee Tat’s appeal to the CA was dismissed. The CA, in a judgment delivered by Goh Joon Seng J, rejected Lee Tat’s arguments (as set out at [28]–[29] above) and affirmed the decision of the HC on the following grounds (see Grange Heights (No 2) (CA) ([28] supra) at 869–871, [19]–[24]):

  53. (3) Our observations on the decisions of the HC and the CA in the Second Action

  54. [32] The following are our observations on the decisions of the HC and the CA in the Second Action:

  55. (a) With regard to Issue (a) of the Second Action, both the HC and the CA held that the Amalgamation did not destroy or extinguish the Right of Way. With respect, this issue did not have to be decided at all in the Second Action because neither the MC nor Lee Tat, as fellow dominant owners with equal entitlement to use the Right of Way, was in a position to question the existence of the easement vis-à-vis the other; only the then owner of the Servient Tenement could have done so.

  56. (b) The HC cited no authority for its ruling on Issue (a) of the Second Action, but the CA referred to Graham v Philcox [1984] 1 QB 747 as authority for the principle that “[o]n amalgamation, so long as the user [of] the servient tenement [was] not excessive, the enlargement of the dominant tenement by such amalgamation [did] not affect the existence of the right of way” (see Grange Heights (No 2) (CA) ([28] supra) at 869, [19]). In our view, given the factual situation which existed at the time of the Second Action, this principle (“the principle stated by the CA in the Second Action”) was wrong for the reasons stated below:

  57. (i) If the Residents intended to reach their apartments in Grange Heights (which were all situated on Lot 561, the non-dominant tenement) from Grange Road, they would have to cross from Grange Road to, first, Lot 111-34 (the dominant tenement) and then Lot 561. It would have been contrary to the Harris v Flower principle for the Residents to use the Right of Way in this manner as it would have entailed using the Right of Way, which had been granted in favour of Lot 111-34, for the benefit of a non-dominant tenement (viz, Lot 561).

  58. (ii) If the Residents intended to use the Right of Way to reach Grange Road from their apartments in Grange Heights, they would have to cross from Lot 561 to Lot 111-34 (the dominant tenement) first, before proceeding from Lot 111-34 to Grange Road. Although the Right of Way could be used for passage between Lot 111-34 and Grange Road (Lot 111-34 being one of the Dominant Tenements), such use of the Right of Way by the Residents at the time of the Second Action would inevitably have resulted in excessive use of the easement. This is because, at the time the Grant was made, the Right of Way (in relation to Lot 111-34) was meant to be enjoyed by only the occupants of and the visitors to the one bungalow which then stood on Lot 111-34 (cf the (approximately) 120 households residing in Grange Heights at the time of the Second Action).

  59. (iii) In either of the situations delineated at sub-paras (i) and (ii) above, the owner of the Servient Tenement at the time of the Second Action would have been entitled to an order of court permanently restraining the Residents’ unlawful use of the Right of Way. This in turn would have meant that, vis-à-vis the then owner of the Servient Tenement, the Residents were not entitled to use the Right of Way so long as Grange Heights stood on Lot 561 and Lot 111-34 (as amalgamated as Lot 687). The Right of Way would revive for the benefit of Lot 111-34 alone if that lot were restored to its original state as at the time of the Grant. This is because, as stated in Jonathan Gaunt QC & Paul Morgan QC, Gale on Easements (Sweet & Maxwell, 17th Ed, 2002) at para 12-77, “[a] previously existing right [of way] will not be affected by acts of excessive user or usurpation ... if ... the extent of the excess can be ascertained” [emphasis added]. However, at the time of the Second Action, it was practically impossible to restore Lot 111-34 to its original state due to the developments and changes which had taken place since the completion of Grange Heights (see further [93] below). In truth, at the time of the Second Action, the Right of Way had already effectively been extinguished by operation of law with respect to Lot 111-34 (see [93], [102]–[106] and [109] below).

  60. (c) In our view, Graham v Philcox does not support the principle stated by the CA in the Second Action. Graham v Philcox was concerned with the alteration of a dominant tenement in rather unusual circumstances. In that case, a right of way had been granted to the first floor flat of a coach house (“the upper flat”), but not the flat on the ground floor (“the lower flat”). The upper flat and the lower flat were originally occupied as two separate and distinct dwelling units. Subsequently, the entire coach house was conveyed to the plaintiffs, who occupied it as a single dwelling unit. The plaintiffs contended that they were entitled to continue using the right of way by virtue of s 62(2) of the Law of Property Act 1925 (c 20) (UK), which stated that a conveyance of land was deemed to include “all ... easements ... at the time of the conveyance ... enjoyed with ... the land, houses, or other buildings conveyed ... or any part thereof”. In response, the defendants, who were the owners of the servient tenement, argued that, since the dominant tenement for whose benefit the right of way was being claimed (namely, the entire coach house) was larger than the dominant tenement for whose benefit the right of way was originally granted (namely, the upper flat), under the Harris v Flower principle, the plaintiffs could not use the right of way given that the upper flat and the lower flat had been combined into a single residence. May LJ noted that “there was no evidence whatever ... that the actual or anticipated user by the plaintiffs of the [right of] way was in any way excessive, either in quantity or quality” (see Graham v Philcox at 757). It was in these circumstances that May LJ rejected the suggestion by the defendants’ counsel that the mere alteration of a dominant tenement could extinguish an easement appurtenant to the land or affect the entitlement to use that easement (id at 756–757), and held that the effect of s 62 of the Law of Property Act 1925 was to annex the benefit of the right of way to the whole coach house (id at 757). In this regard, it is significant that Gale on Easements takes the view (at para 9-30) that Graham v Philcox “is really concerned with the operation of section 62 [of the Law of Property Act 1925] and does not affect the principle ... in Harris v. Flower”.

  61. (d) In our view, a non-dominant tenement cannot become, for the purposes of an easement created by a grant, part of the dominant tenement simply by amalgamation with the dominant tenement, especially where the non-dominant tenement is far larger than the dominant tenement (as in the present case, where Lot 561 is more than three times larger than Lot 111-34).

  62. (e) It is clear that, in raising Issue (a) of the Second Action, Lee Tat did so, and could have done so, only in its capacity as a dominant owner (specifically, as the owner of the dominant tenements, Lot 111-32 and Lot 111-33) as it did not then own the Servient Tenement. Although the CA in the Second Action referred to Graham v Philcox, which (as mentioned in sub-para (c) above) involved a dispute between servient owners and dominant owners, there is nothing in Grange Heights (No 2) (CA) to suggest that the CA regarded Lee Tat’s argument on Issue (a) of the Second Action as an assertion of the rights of the then owner of the Servient Tenement. In this connection, it is interesting to note that the CA stated in its judgment that Mutual had presumably been dissolved already (id at 867, [4]). This suggests that the CA, in deciding the appeal in the Second Action, did not have in mind the rights of the then owner of the Servient Tenement. Therefore, the decision of the HC and the CA that the Amalgamation had not destroyed the Right of Way was not intended to, and did not, bind the then owner of the Servient Tenement, who was not a party to the Second Action, but only bound Lee Tat as the dominant owner of Lot 111-32 and Lot 111-33. In other words, both the HC and the CA decided Issue (a) of the Second Action in the context of the rights of two dominant owners inter se.

  63. (f) The HC’s decision (at 1195–1196, [10] of Grange Heights (No 2) (HC) ([30] supra)) that Lee Tat, as a dominant owner, was only entitled to prevent the MC from substantially interfering with its enjoyment of the Right of Way – but not to block the MC’s access to and use of the Right of Way – effectively amounted to a ruling that Lee Tat could not raise Issue (b) of the Second Action as only the then owner of the Servient Tenement had the requisite locus standi to raise that issue. This aspect of the HC’s holding in the Second Action mirrors Chua J’s dismissal of Collin’s claim and HL’s counterclaim in the First Action (see [23] and [26] above). The CA in the Second Action agreed with the HC that Lee Tat, not being the owner of the Servient Tenement, could only prevent its enjoyment of the Right of Way from being substantially interfered with by the Residents; apart from that, Lee Tat was not entitled to bar the Residents from using the Right of Way for the purposes of Lot 561 (see Grange Heights (No 2) (CA) at 869, [20]) as that was a matter between the Residents and the then owner of the Servient Tenement.

  64. (g) The decisions of the HC and the CA, as set out at sub-paras (a) and (f) above, did not constitute a ruling on the merits of Issue (b) of the Second Action (which, as we pointed out at [28] above, involves the same question as that encapsulated in the issue raised in the Fourth Action). This is because Issue (b) of the Second Action could only be decided between the MC and the then owner of the Servient Tenement, and the latter was not a party to the Second Action. The HC and the CA held, in substance, that Lee Tat, which did not own the Servient Tenement at the time of the Second Action, had no locus standi to raise Issue (b) of the Second Action. The fact that Issue (b) of the Second Action was not decided is, in our view, all the more evident when one examines Lee Tat’s written case for its appeal in the Second Action. At para 4.3 of its written case, Lee Tat submitted that:[note: 5]

  65. The “real question” as framed by Lee Tat is essentially the same as Issue (b) of the Second Action. The CA in the Second Action did not rule on this point at all. Instead, like the HC, it focused on the circumstances in which Lee Tat, as a dominant owner, was entitled to protection, vis-à-vis the MC, of its entitlement to enjoy the Right of Way.

  66. (h) Even if the decisions of the HC and the CA in the Second Action were relevant to Issue (b) of the Second Action and, thus, the issue raised in the Fourth Action, they would not necessarily have provided the MC with a defence (in the form of issue estoppel) to Lee Tat’s claims in the Fourth Action. This is because the courts’ decisions in the Second Action rested on the factual premise that, in spite of the Amalgamation, there was no likelihood of such excessive use of the Right of Way by the MC as to substantially interfere with Lee Tat’s enjoyment of that easement or cause a nuisance to Lee Tat (see Grange Heights (No 2) (HC) at 1195–1196, [9]–[10] and Grange Heights (No 2) (CA) at 871, [24]). The factual situation would change if, for instance, the Right of Way were used by all or a substantial number of the Residents and their visitors simultaneously, in contrast to the scenario posited by the CA in the First Action (see Grange Heights (No 1) (CA) ([24] supra) at 203, [10]). As K R Handley, Spencer Bower, Turner and Handley: The Doctrine of Res Judicata (Butterworths, 3rd Ed, 1996) (“Spencer Bower”) states at para 383, “[t]here is substantial authority that there can be no res judicata in a changing situation”. Sundaresh Menon JC succinctly made the same point in Goh Nellie v Goh Lian Teck [2007] 1 SLR 453 (at [34]) as follows:

  67. The Fourth Action

  68. (1) The decision of the HC

  69. [33] In the Fourth Action, Lee Tat, as the owner of the Servient Tenement, sought the following reliefs:[note: 6]

  70. [34] It should be noted that the first three declarations sought by Lee Tat were nothing more than a restatement of the Harris v Flower principle. If those declarations had been granted by the court, it would have meant that the Residents would no longer be entitled to use the Right of Way to access Lot 561 from Grange Road and vice versa. The fourth, fifth and sixth reliefs were merely consequential orders to be made if the first three declarations were granted. In the Fourth Action, Lee Tat contended that it was entitled to bring up the Main Issue (as framed in the form of the issue raised in the Fourth Action) and could rely on the Harris v Flower principle for that purpose as it was suing in its capacity as the owner of the Servient Tenement; in contrast, in the First Action and the Second Action, it had raised the Main Issue (as framed in the form of Collin’s argument in the First Action and Issue (b) of the Second Action respectively) as a dominant owner, and the courts in those actions had held that it was not entitled to raise that issue and to rely on the Harris v Flower principle in support of its case.

  71. [35] The MC’s main defence in the Fourth Action was that Lee Tat was estopped from re-litigating the issue raised in the Fourth Action by cause of action and/or issue estoppel as that issue had already been decided against Collin (Lee Tat’s predecessor in title) and Lee Tat in the First Action and the Second Action respectively. Lee Tat’s reply was that neither form of estoppel could operate against it as it was suing in the Fourth Action as a servient owner, whereas it had litigated the First Action and the Second Action as a dominant owner. Based on this joinder of issue, the HC proceeded to determine whether estoppel applied.

  72. [36] The HC identified the issue raised in the Fourth Action as being the same as the Main Issue (see Grange Heights (No 4) (HC) ([8] supra) at [17]; see also [14] above), and held that Lee Tat was indeed estopped from re-litigating the issue raised in the Fourth Action as that issue had already been decided against Lee Tat in the Second Action (although it had not been decided against Collin in the First Action). The HC’s reasoning was as follows (see Grange Heights (No 4) (HC) at [30]):

  73. [37] The HC then dealt with Lee Tat’s argument that it was not estopped from bringing up the issue raised in the Fourth Action by either the decision in the First Action or that in the Second Action because it had not been a party to those actions in its capacity as a servient owner (id at [31]):

  74. The statement in the above passage that Lee Tat’s lead counsel had not asserted that Lee Tat could avoid the operation of cause of action or issue estoppel was a reference to the HC’s comment that (id at [19]):

  75. Consequent upon this observation, the HC held that Lee Tat was estopped from arguing the issue raised in the Fourth Action as it had already been decided in the Second Action (id at [30]–[37]), and the fact that Lee Tat was not then the owner of the Servient Tenement was not relevant (id at [39]).

  76. [38] In our view, the HC’s observation at [19] of Grange Heights (No 4) (HC) ([8] supra) is inherently self-contradictory as it suggests that Lee Tat could have avoided the operation of cause of action and/or issue estoppel if the court had found that estoppel did indeed arise. Clearly, what Lee Tat’s counsel must have meant was that, since Lee Tat had not been a party to either the First Action or the Second Action as a servient owner (which was the capacity in which Lee Tat litigated the Fourth Action), it was not bound by the decisions or any rulings of fact or law made in those actions.

  77. [39] The HC’s confusion is quite apparent from its finding that there was no cause of action or issue estoppel against Collin (as Lee Tat was known at the time of the First Action) arising from Chua J’s decision in the First Action. In Grange Heights (No 4) (HC) ([8] supra) at [24]–[25], the HC held:

  78. [40] The declarations sought by HL in its counterclaim in the First Action (see [21] above) were the exact counterparts of the reliefs sought by Collin in that action (see [19] above). One of the reliefs sought by Collin was a declaration that HL and the Residents were not entitled to use the Right of Way for the purposes of Lot 561; this relief addressed, in substance, the Main Issue (as framed in the form of Collin’s argument in the First Action). Likewise, HL’s counterclaim in the First Action brought into play the Main Issue. Chua J dismissed Collin’s claim on the ground that Collin, not being the owner of the Servient Tenement, could not raise the Main Issue (as framed in the form of Collin’s argument in the First Action) against HL. Correspondingly, he also dismissed HL’s counterclaim because he held (correctly, in our view) that HL could not raise the Main Issue against Collin for the same reason (viz, Collin was not the owner of the Servient Tenement).

  79. [41] The HC in the Fourth Action, in holding that the First Action did not give rise to any estoppel against Collin, recognised that Collin’s argument in the First Action had not been ruled on by either the HC or the CA in the First Action (see Grange Heights (No 4) (HC) ([8] supra) at [24]–[25] (reproduced at [39] above)). Logically, therefore, since Collin’s argument in the First Action was the same as Issue (b) of the Second Action (see [28] above) and since Lee Tat had litigated the Second Action in the same capacity as that in which Collin litigated the First Action, the HC in the Fourth Action should, in our view, have found that Issue (b) of the Second Action had similarly not been decided in the Second Action. This is because Lee Tat, which was not the owner of the Servient Tenement at the time of the Second Action, could not have relied on Issue (b) of the Second Action in those proceedings. It therefore follows that the HC’s finding in the Fourth Action that no estoppel arose against Collin as a result of the First Action was inconsistent with its ruling that an estoppel did arise against Lee Tat from the Second Action. In our view, the confusion arose because the HC in the Fourth Action assumed that, since what was in substance the Main Issue (as framed in the form of Issue (b) of the Second Action) had been canvassed by Lee Tat in the Second Action, the courts in that action must have decided that issue. This assumption is wrong as the true position is that the Main Issue was not decided in either the First Action or the Second Action for two reasons. First, it was not necessary for the courts in those actions to rule on the Main Issue for the purposes of deciding the respective questions before them, (namely, vis-à-vis the First Action, whether HL had substantially interfered with Collin’s enjoyment of the Right of Way, and, vis-à-vis the Second Action, whether Lee Tat, as a dominant owner, was entitled to prevent the Residents, its fellow dominant owners, from using the Right of Way for access to and from Grange Road). Second, the Main Issue could only have been determined vis-à-vis the then owner of the Servient Tenement; the owner of the Servient Tenement was not, however, a party to either the First Action or the Second Action.

  80. [42] Other passages in the HC’s judgment in the Fourth Action also show that the HC misunderstood what had been decided in the Second Action. In Grange Heights (No 4) (HC) ([8] supra), the HC commented on the CA’s decision in the Second Action as follows:

  81. [43] We have the following observations on the above passages:

  82. (a) With regard to [34]–[35] of Grange Heights (No 4) (HC) ([8] supra), Graham v Philcox ([32] supra) was not relevant to both the factual matrix in the Second Action and the decision of the CA therein because Lee Tat was then litigating as a dominant owner. In Graham v Philcox, the dispute was between servient owners and dominant owners as to the rights of the latter under the grant which created the easement (see sub-para (c) of [32] above), whereas, in the Second Action, the dispute was between two dominant owners inter se. More importantly, contrary to what the HC in the Fourth Action thought (see [34] of Grange Heights (No 4) (HC)), Issue (b) of the Second Action was not decided by the CA in the Second Action for two reasons (in this regard, see also [41] above). First, that issue could only have been decided between the MC and the then owner of the Servient Tenement, which was not Lee Tat at that time. Second, it was not necessary for the court to decide Issue (b) of the Second Action for the purposes of determining the question before it, which was whether Lee Tat, as a dominant owner, was entitled to obstruct the Residents’ access to and use of the Right of Way.

  83. (b) With regard to [36] of Grange Heights (No 4) (HC), the question of whether there had been substantial interference by the MC with Lee Tat’s use of the Right of Way was not a live issue in the Second Action as Lee Tat had conceded that there was no such interference. That question (which concerned the rights of the MC and Lee Tat inter se as dominant owners) bore no relevance to the issue raised in the Fourth Action (which concerned the rights of the MC as a dominant owner and Lee Tat as a servient owner respectively). As a result of that concession coupled with the fact that Lee Tat did not at the time of the Second Action own the Servient Tenement, the HC’s ruling in the Second Action that Lee Tat was not entitled to close the Right of Way so as to prevent the MC from using it was a foregone conclusion.

  84. (c) With regard to [37] of Grange Heights (No 4) (HC), the fact that the CA in the Second Action set out the two contentions of Lee Tat (ie, Issue (a) of the Second Action and Issue (b) of the Second Action) did not necessarily mean that the CA eventually decided both issues. In fact, as we pointed out earlier (at sub-para (g) of [32] above), the court ruled on Issue (a) of the Second Action only, but not Issue (b) of the Second Action. Following from its decision on Issue (a) of the Second Action (viz, that the Amalgamation did not affect the Residents’ entitlement to use the Right of Way), the CA went on to hold that, since both Lee Tat and the Residents were equally entitled to use the Right of Way and since Lee Tat had not complained that the Residents had substantially interfered with its enjoyment of the Right of Way, Lee Tat had no right to prevent the Residents from using that easement. The CA’s decision in the Second Action (and, likewise, the HC’s decision in that action) did not imply that the Residents could use the Right of Way to access Lot 561 from Grange Road and vice versa. Clearly, the CA (as well as the HC) in the Second Action did not decide the Main Issue (as framed in the form of Issue (b) of the Second Action).

  85. (d) With regard to [38] of Grange Heights (No 4) (HC), the HC was wrong to hold that “the references in [the CA]’s judgment [in the Second Action] to ... Lee Tat’s entitlement [to] protection if its right of way was substantially interfered with ... were obiter dicta” (ibid). In the Second Action, the fact that, as conceded by Lee Tat, there was no substantial interference with Lee Tat’s enjoyment of the Right of Way lay at the heart of the CA’s decision to affirm the HC’s dismissal of the Discharge Application and the grant of the 1990 Injunction.

  86. (e) With regard to [41] of Grange Heights (No 4) (HC), we are of the view that the HC’s statement that Chua J could have allowed HL’s counterclaim in the First Action is wrong in law. Chua J had no jurisdiction to declare HL’s rights against Collin in relation to the Right of Way as the latter was not the owner of the Servient Tenement at the time of the First Action. In any case, any declaration granted to HL would have been ineffective against the then owner of the Servient Tenement as it was not a party to the First Action. In our view, Chua J, in dismissing HL’s counterclaim (see Grange Heights (No 1) (HC) ([19] supra) at 461, [24]), was effectively deciding that the Main Issue was not relevant to the issue before him.

  87. (f) With regard to [43] of Grange Heights (No 4) (HC), we agree that Lee Tat was bound by the CA’s decision in the Second Action, but only in its capacity as the dominant owner of Lot 111-32 and Lot 111-33. It was not bound by that decision in its capacity as a servient owner, viz, as the owner of the Servient Tenement (in this regard, see our earlier observation at sub-para (e) of [32] above). It is an established principle that “[a] person who litigates in different rights is in law separate persons” (see Spencer Bower ([32] supra) at para 221 and the authorities cited at n 38 therein). Collin and Lee Tat did not participate in the First Action and the Second Action respectively as servient owners, and, thus, any decision made in those actions could not have affected Lee Tat’s right as a servient owner after it acquired title to the Servient Tenement in 1997. Moreover, the Main Issue (as framed in the form of Collin’s argument in the First Action and Issue (b) of the Second Action respectively) was not decided in both the First Action and the Second Action for the reasons stated at [41] above. Accordingly, Lee Tat could not have been estopped from litigating in the Fourth Action any issue affecting its interests in the Right of Way as the owner of the Servient Tenement, including the Main Issue (as framed in the form of the issue raised in the Fourth Action).

  88. (g) With regard to [44] of Grange Heights (No 4) (HC), contrary to the HC’s view, a decision in Lee Tat’s favour on the issue raised in the Fourth Action would not have rendered the CA’s decision in the Second Action nugatory for two reasons. First, the CA’s decision in the Second Action would continue to bind Lee Tat as a dominant owner. Second, the issue decided in the Second Action (which corresponds to Issue (a) of the Second Action) was different from the issue raised in the Fourth Action (which corresponds to Issue (b) of the Second Action).

  89. (2) The decision of the CA

  90. [44] As mentioned at [14] above, Lee Tat’s appeal to the CA in the Fourth Action was dismissed by the Majority Judges on substantially the same grounds as those given by the HC. Unfortunately, the Majority Judges also misunderstood in equal measure the arguments of Lee Tat on the Main Issue (as framed in terms of the issue raised in the Fourth Action) and the question of estoppel. In contrast, Chao Hick Tin JA’s dissenting judgment, in our view, explains clearly the issues which were raised in the First Action and the Second Action as well as the issues which were actually decided therein (see [62]–[66] below). We will first set out the relevant passages in the Majority Judgment for comment.

  91. [45] In Grange Heights (No 4) (CA) ([8] supra), the Majority Judges said at [2]:

  92. With respect, as we have explained earlier (see [41] as well as sub-paras (c) and (f) of [43] above), the “precise issue” mentioned in the above passage, which is in essence the Main Issue, was not decided in the Second Action (nor in the First Action) although it was raised in the Second Action (as well as the First Action). The courts in both the First Action and the Second Action did not find it necessary to determine the Main Issue for the purposes of determining the respective issues before them, which did not concern the point as to whether or not the Right of Way could be used for the benefit of Lot 561, a non-dominant tenement. Instead, in the First Action, the question before the court was whether HL had substantially interfered with Collin’s enjoyment of the Right of Way and, in the Second Action, the question before the court was whether Lee Tat, as a dominant owner, was entitled to prevent its fellow dominant owners (ie, the Residents) from using the Right of Way even though, as conceded by Lee Tat, there had been no excessive use of the easement by the Residents. The courts in the First Action and the Second Action effectively ruled that Collin (in the First Action) and Lee Tat (in the Second Action) were not competent to raise the Main Issue, which affected only the rights of the then owner of the Servient Tenement.

  93. [46] In Grange Heights (No 4) (CA) ([8] supra) at [13], the Majority Judges, in response to Lee Tat’s argument that it had not been a party to the Second Action as a dominant owner, said:

  94. With respect, the logic in this passage is questionable. The mere fact that the cases cited by Lee Tat did not show that a dominant owner could not challenge a fellow dominant owner’s inappropriate use of a right of way did not mean that the opposite proposition was true and that Lee Tat therefore had the requisite locus standi in the Second Action to bring up the Main Issue (as framed in the form of Issue (b) of the Second Action).

  95. [47] We note that, in support of its argument on the Main Issue, Lee Tat cited the following authorities: Harris v Flower ([19] supra), Re Gordon and Regan (1985) 15 DLR (4th) 641 (“Gordon and Regan (HC)”), Bracewell v Appleby [1975] Ch 408 and Peacock v Custins [2002] 1 WLR 1815. Except for the Canadian case of Gordon and Regan (HC), which concerned a dispute between dominant owners inter se, the other three cases, which were all decisions of the English courts, concerned disputes between servient owners and dominant owners vis-à-vis the extent of the latter’s rights over easements appurtenant to their dominant tenements.

  96. [48] In Gordon and Regan (HC) ([47] supra), the dispute, as just mentioned, was between dominant owners inter se, and the court applied the Harris v Flower principle in adjudicating the dispute. Briefly, the facts of that case were as follows. Two dominant owners (“the applicants”) wanted to sub-divide the dominant tenement which they owned into two, with the intention that the owners of the sub-divided properties would drive over the right of way to park their vehicles on a non-dominant tenement adjoining the applicants’ dominant tenement. The applicants sought from the court a declaration that the proposed use of the right of way by the owners of the sub-divided properties was not prohibited by the terms of the deed which granted the right of way. Their fellow dominant owners (“the respondents”), who were entitled to use the same right of way, objected. The Ontario High Court, citing Harris v Flower ([19] supra), held that the proposed use of the easement by the owners of the sub-divided properties as an access route to the non-dominant tenement was not permitted; its decision was affirmed on appeal by the Ontario Court of Appeal (see Re Gordon and Regan (1990) 66 DLR (4th) 384 (“Gordon and Regan (CA)”)).

  97. [49] At first glance, Gordon and Regan (HC) ([47] supra) might give the impression that a dominant owner is entitled to rely on the rights of a servient owner in order to prevent a fellow dominant owner from using a right of way which is common to both dominant tenements in excess of the terms of the grant. Indeed, the Majority Judges in the Fourth Action relied on this very case to reject Lee Tat’s contention that only a servient owner could rely on the Harris v Flower principle (see Grange Heights (No 4) (CA) ([8] supra) at [13]). However, the decision in Gordon and Regan (HC) has to be understood in the light of the relief which the applicants sought. The question before the Ontario High Court was whether or not the applicants’ proposed use of the right of way was prohibited by the terms of the deed which created the easement – it was in the context of construing the ambit of the right of way that the court invoked the Harris v Flower principle. Furthermore, a careful reading of Gordon and Regan (HC) reveals that no argument was raised before the Ontario High Court as to whether the applicants, as dominant owners, were competent to raise the Harris v Flower principle against the respondents; the Ontario High Court (and likewise the Ontario Court of Appeal) appeared to have assumed that that could be done. For these reasons, we do not regard Gordon and Regan (HC) as authority for the proposition that a dominant owner is entitled to assert the rights of a servient owner against a fellow dominant owner for the purposes of contending that the latter’s use of an easement, which is common to both dominant tenements, exceeds the terms of the grant creating that easement. As Chua J held in the First Action (see [26] above), a dominant owner has no locus standi to complain about a fellow dominant owner’s use of a right of way that may be contrary to the terms of the grant. That right belongs to the servient owner alone. The right of a dominant owner in relation to protection of the easement appurtenant to his dominant tenement is limited to ensuring that his enjoyment of the easement is not substantially interfered with by any party, including his fellow dominant owner and the servient owner. In this regard, it may be of interest to note that, in the Second Action, the MC itself had argued before the HC that Lee Tat, not being the owner of the Servient Tenement at that time, was not competent to raise the Main Issue in that action (see [29] above). The MC made a similar submission at para 40 of its written case for the appeal in the Second Action, as follows:[note: 7]

  98. In the Fourth Action, however, the MC departed from the above position (see further sub-para (e) of [80] below).

  99. [50] In any event, even if Gordon and Regan (HC) ([47] supra), as affirmed on appeal in Gordon and Regan (CA) ([48] supra), were good authority for the proposition that a dominant owner may invoke the rights of the servient owner against a fellow dominant owner, it would not matter in the Present Action because that proposition does not represent the law in Singapore and is in fact contrary to the law as it was stated or understood by the courts in the First Action and the Second Action (see, respectively, [26] and sub-para (f) of [32] above).

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