Teo Kim Hui and Another v Kwok Wai Hon

[1] This was a case in which I refused to grant leave to a couple Teo Kim Hui and Lim Ah Mui (“the plaintiffs”), to appeal to the Court of Appeal against my dismissal of their Registrar’s Appeal from the subordinate courts. The plaintiffs have now filed a notice of appeal (in Civil Appeal No. 145 of 2008) against my decision.

[2] The plaintiffs are the owners of No. 355 Balestiar Road #04-357, Goodwill Mansion, Singapore. One Kwok Wai Hon (“the defendant”) is the owner of #03-357 which is located immediately below the plaintiffs’ unit. The defendant complained of water seepage from the plaintiffs’ unit into his unit in early October 2007.

[3] The plaintiffs attempted to resolve the complaint amicably by getting contractors to ascertain the source of the leakage. They did not agree with the report of the chartered surveyor engaged by the defendant which stated that the leakage was due to defective waterproofing membrane under the floor finishes in the plaintiffs’ unit. The plaintiffs requested the leakage detection division of the Public Utilities Board (“PUB unit”) to do remedial work. Their request for the PUB unit to inspect the defendant’s unit was denied. The plaintiffs apparently took steps to arrest and stop the leakage. However the leak persisted.

[4] When the plaintiffs failed to make good the leakage by late December 2007 and failed to paint the ceiling of #03-357 as the defendant demanded, the latter commenced proceedings in MC Suit 1578 of 2008 (“the proceedings”) on 18 February 2008, claiming for loss and inconvenience including loss of rental.

[5] The plaintiffs were advised that the law requires such disputes between strata title unit owners to be brought before the Strata Titles Board (“the Board”). Accordingly, they applied vide summons no. 2812 of 2008 (“the application”) to strike out the proceedings under Order 18 r 19(1) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“the Rules”) on the ground that the subordinate/magistrates courts have no jurisdiction to entertain the claim which can only be dealt with by the Board pursuant to certain provisions in the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“the Act”). By then the plaintiffs had filed their defence denying liability, putting the blame for the leak into the defendant’s flat on the management corporation of Goodwill Mansion.

[6] The deputy registrar of the subordinate courts dismissed the application and the plaintiffs’ appeal against his decision to a district judge in chambers (by way of Registrar’s Appeal No. 78 of 2008) was also dismissed. Suffice it to say that the district judge accepted the submission of counsel for the defendant (who was the plaintiff below) as I did, that the Board is merely an alternative tribunal available to subsidiary proprietors who choose not to litigate their disputes; it does not oust the jurisdiction of the subordinate courts. There is no express provision in the Subordinate Courts Act (Cap 321 2007 Rev Ed) (“the SCA”) and/or the Act that excluded disputes between subsidiary proprietors from being brought before the courts.

[7] For purposes of this appeal, I adopt the reasoning of the district judge in dismissing Registrar’s Appeal No. 78 of 2008 and shall not repeat his grounds here (see his grounds of decision at [2008] SGMC 4).

[8] The plaintiffs then appealed against the district judge’s decision to a judge in chambers in the High Court by way of RA No. 51 of 2008 (“the RA”). I heard and similarly dismissed the RA on 30 July 2008.

[9] Under s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”), the plaintiffs should have written to my court with a request for further arguments within seven days of my dismissal of the RA viz by 6 August 2008, prior to filing a notice of appeal. The plaintiffs failed to do so. Instead, the plaintiffs attempted to file a notice of appeal to the Court of Appeal on 8 August 2008, which notice was rejected for technical reasons.

[10] On 11 August 2008, the plaintiffs made a second attempt to file their notice of appeal to the Court of Appeal. It was again rejected, this time for the reason that leave was required to appeal to the Court of Appeal.

[12] Counsel for the plaintiffs first relied on s 52 of SCA for the civil jurisdiction of the magistrate’s court:

[13] He then referred to s 21(1) of the SCA for the civil jurisdiction of the district court:

[14] Next, counsel placed reliance on ss 89(2), 101 and 116 of the Act. The sections read as follows:

[15] It was counsel’s contention therefore that interpreting s 52(2) in the light of s 21(1)(a) of the SCA, a magistrate’s court has no jurisdiction to hear a dispute between strata title owners which, in the light of s 89(2) of the Act “shall” be determined by the Board and under s 101(1)(a) thereof, the Board may make orders for the settlement of the dispute or under s 116 thereof, may dismiss an application made to it in varying circumstances outlined under sub-paras (a) to (e).

[16] Counsel added that the district judge who dismissed the plaintiffs’ appeal in RA 78 of 2008 [6] erred in drawing an analogy with s 6(2) of the International Arbitration Act (Cap 143A 2002 Rev Ed) (“the IAA”) which reads as follows:

[17] Counsel pointed out that there were vast differences between the situations under the Act and those under the IAA. If there was an arbitration agreement between parties, one party can apply to court to prevent the other party from going to the courts to litigate any dispute between them, as arbitration agreements confer enforceable rights between the parties.

[18] It should be noted however that if a suit is commenced in contravention of an arbitration agreement, unless the defendant applies to court to enforce the arbitration clause, the jurisdiction of the courts remains as a stay of proceedings is not automatic. Even when a party to an arbitration agreement applies for a stay of proceedings, the court still retains a discretion whether or not to grant a stay. Therefore, even the express provision in s 6(2) of the IAA does not automatically oust the jurisdiction of the courts.

[19] The plaintiffs’ counsel argued that the situation is different for disputes between subsidiary proprietors of strata title units who would be unlikely to have made agreements to arbitrate. The arbitral tribunal for them is the Board which is essentially a court specifically constituted to determine disputes relating to building management and strata management conclusively. (The only two areas where the Board has no jurisdiction are: (a) determination of title to land and (b) offences committed under the Act which jurisdiction remains with the subordinate courts).

[20] Hence, under s 98 of the Act, no appeals lie to the High Court against an order made by the Board except on a point of law.

[21] There was therefore an important question of law to be decided as to whether the proceedings should be tried before the Board. Counsel relied on the following principles extracted from Lee Kuan Yew v Tan Liang Hong [1997] 3 SLR 489 when leave to appeal is sought:-

[22] Counsel for the defendant objected to the OS relying on the same principles in the authority cited by the plaintiffs in [21] and which were reiterated in Candid Water Cooler Pte Ltd v United Overseas Bank Ltd [2006] 3 SLR 216 at [33]. He pointed out that:-