Management Corporation Strata Title Plan No 2297 v Seasons Park Ltd

MPH Rubin J:

[1] This registrar’s appeal concerns discovery of documents in an action commenced by the management corporation of a condominium against a developer. The background facts which surround the dispute between the parties are as follows.

[2] The plaintiff, a management corporation constituted under the provisions of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed), represents 390 homeowners of a condominium known as Seasons Park. The defendant is the developer of Seasons Park and was responsible for its proper construction. The development of the project began in or around 1996 and the certificate of statutory completion was issued in or around 28 February 1998. In so far as is material under cl 9(1) of the sale and purchase agreement between the defendant and the purchasers of the units at Seasons Park, it was agreed by the defendant, as the developer/vendor, as follows:

[3] The plaintiff was duly constituted on or around 27 May 1999. The plaintiff’s first annual general meeting was convened on 24 June 2001 when the plaintiff took over from the defendant the control, management and administration of the common property of Seasons Park, for the benefit of all the subsidiary proprietors.

[4] Since or around the year 2000, several subsidiary proprietors had been complaining to the defendant of water ingress in the rooftops of the residential units and defects in elevators, windows, the car park, lift lobbies, the clubhouse, swimming pools, floors, walls, tennis courts and other areas of the common property. The defendant reportedly attempted to effect repairs to the property but the complaints persisted.

[5] The plaintiff then commissioned a firm of building surveyors to study and review the problems at the development. The report submitted by the said surveyors concluded that the common property at the development had several defects and that the defendant’s various attempts at rectifying the defects in the rooftops and the elevators had been unsuccessful. A further report by the surveyors also said that there was rainwater ingress in a substantial number of the residential units.

[6] Consequently, the plaintiff commenced this action against the defendant for breach of duty as well as for breach of the sale and purchase agreement and breach of an implied contract.[1] The main complaint of the plaintiff, as set out in the statement of claim, is as follows:[2]

[7] The defendant, no doubt, denies the plaintiff’s claim. Apart from some general and specific denials, the defendant averred in the defence as follows:[3]

[8] There ensued the discovery process and in the event, there was an order by the assistant registrar on 15 March 2004 granting discovery of some ten items including architectural, structural, and mechanical and electrical (M&E) drawings (“contract drawings”) and original specifications of the contracts relating to the construction of the development (“contract specification”).

[9] The defendant appealed against the said order in relation to most of the discovery items. I heard the appeal on 21 April 2004. While the appeal was in train, the court was informed that the parties had come to an amicable arrangement in respect of a number of items forming the subject matter of the notice of appeal. Only the contract drawings and contract specifications were left for determination. After hearing arguments, I dismissed the defendant’s appeal on the grounds that the said documents appeared relevant to the proper determination of the issues at hand. On 28 April 2004, the defendant wrote to the court requesting further arguments to be presented and these arguments were heard by me on 28 June 2004.

[10] The main thrust of the defendant’s arguments appear in the defendant’s solicitors’ letter dated 28 April 2004. The relevant parts read as follows:

[11] The principles as regards discovery were redefined by the Court of Appeal in Tan Chin Seng v Raffles Town Club Pte Ltd [2002] 3 SLR 345 where Chao Hick Tin JA, in delivering the opinion of the court, said at [15] to [19]:

[12] Returning to the issues before the court, the defendant’s contention was that the plaintiff has failed to satisfy the test of relevancy as regards the contract drawings and contract specifications. In a nutshell, what the defendant seemed to be contending was that (a) in relation to the plaintiff’s claim based on contract, it should confine itself only to the terms of the sale and purchase agreement and (b) in relation to the claim founded on tort, it should restrict itself to breaches of normal industry standards and/or the Singapore Construction Industry Development Board’s Quality Assessment System (CONQUAS) and/or British Standards.[4]

[13] The plaintiff’s claim based on breach of duty bespeaks many alleged lapses.[5] The said lapses include, amongst other things, (a) failure to issue the necessary instructions or directions to the contractor or sub-contractor or architects on the matters in relation to or affecting the development[6]; (b) failure to exercise reasonable skill and care in relation to the design and supervision of the construction of the development so as to avoid loss and damage[7] and (c) failure to superintend the construction of the said works properly or at all.[8]

[14] Relevant evidence simply means such evidence as bears directly upon the point or fact in issue. Relevancy is that which conduces to the proof of a pertinent hypothesis. A fact or document is said to be relevant when it is so connected directly or indirectly with a fact in issue in an action that evidence given respecting it, may reasonably be expected to assist in proving or disproving the fact in issue (see Black’s Law Dictionary (6th Ed, 1990) pp 1290–1291 and Earl Jowitt, The Dictionary of English Law (Sweet & Maxwell Ltd, 1959)).

[15] Order 24 r 1(2) employs the auxiliary verb “could” before the words “adversely affect another party’s case”. In Webster’s New World Dictionary of the English Language (2nd College Ed, 1980), the word “could” is defined as:

In my opinion, the use of the word “could” connotes that the court, in arriving at a decision whether a particular document is relevant or not, need not at this stage of the trial process enter upon an in-depth analysis as to the exact degree of relevance apropos the documents. What is required of the court at this stage of the trial is only to form an informed view as to whether the documents in question may reasonably be expected to assist in proving or disproving the fact in issue.

[16] In returning to the appeal before me, the defendant’s contention that contract drawings and contract specifications do not relate to or bear directly upon the issue of the alleged breach of duty as well as implied obligations, is an over-simplification of the facts in issue. The defendant’s counsel contended before the assistant registrar[9] that the documents under reference had no relevance to the plaintiff’s pleaded case and if at all, these concerned an issue between the architects’ main contractor and the defendant. This position also features in the defence filed by the defendant.[10] If what the defendant contends was accurate, then those documents, perforce, become relevant for the very purpose of the defendant’s averments. Having pleaded that its architects designed the development and its contractors carried out the specifications, it does not now lie in the mouth of the defendant to claim that contract drawings and contract specifications are irrelevant to the issues to be determined at the trial. I must at this juncture, hasten to add a rider that my determination as to the relevancy of the documents in question does not touch upon the issue as to admissibility of the said documents at the trial.

[17] In my view, the contract drawings as well as the contract specifications appear prima facie relevant to the determination of the issues at hand. As I said earlier, the court at this stage is not required to undertake a full scale inquiry into the area of relevancy. So long as the applying party satisfies the court that the documents requested may reasonably affect another party’s case adversely, it should not be prevented from discovering those documents.

[1]See Statement of Claim, paras 25 to 28.

[2]See Statement of Claim, paras 38 and 39.

[3]See the Defence, paras 18, 19, 20, 24 and 25.

[4]See defendant’s solicitors’ letter dated 28 April 2004, paras 6 and 7.

[5]See Statement of Claim, para 39

[6]See Statement of Claim, para 39(i)

[7]See Statement of Claim, para 39(k)

[8]See Statement of Claim, para 39(e)

[9]See NE before the AR at p 3, lines 13 to 14.

[10]See the Defence, paras 24(1) and (2).