Cheung Phei Chiet v Jujun Tanu and another matter [2023] SGHC 51

Case Details

• Citation: [2023] SGHC 51
• Court: General Division of the High Court of the Republic of Singapore
• Decision Date: 2 March 2023
• Coram: Tan Siong Thye J
• Case Number: Originating Summons No 808 of 2021; Originating Summons No 809 of 2021
• Hearing Date(s): 20 July 2022, 17 January 2023
• Claimants / Plaintiffs: Cheung Phei Chiet
• Respondent / Defendant: Jujun Tanu (Respondent in OS 808); Cheong Yoke Ling and Chang Chih-Tung Charles (Respondents in OS 809)
• Counsel for Claimants: Lim Tat, Subir Singh Grewal and Wan Chi Kit (Aequitas Law LLP)
• Counsel for Respondent: Kwek Yiu Wing Kevin, Yeo Teng Yung Christopher and Jason Yan Zixiang (Legal Solutions LLC)
• Practice Areas: Land — Strata titles; Setting aside of arbitral awards

Summary

The judgment in Cheung Phei Chiet v Jujun Tanu and another matter [2023] SGHC 51 represents a significant judicial examination of the limits of court intervention in the internal governance of Management Corporations (MCSTs) under the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) ("BMSMA"). The dispute arose within MCST 508, a small mixed-use strata development on Upper East Coast Road, characterized by a profound and intractable fracture between two factions of subsidiary proprietors. The applicant, Mr. Cheung Phei Chiet, sought extensive declaratory and injunctive relief across two Originating Summonses (OS 808 and OS 809) aimed at neutralizing the actions of the respondents, who had gained control of the MCST council following a series of resignations and contested general meetings.

At the heart of the litigation was the applicant’s attempt to invoke the court’s discretionary power under Section 18 of the Supreme Court of Judicature Act 1969 to declare "Proposed Resolutions" invalid before they were even put to a vote. The applicant further sought the unprecedented remedy of having the court remove the respondents from the MCST council, alleging breaches of fiduciary duty and statutory obligations. This case forced the High Court to delineate the boundary between "real controversies" warranting declaratory relief and "hypothetical" disputes where judicial interference would prematurely disrupt the democratic processes mandated by the BMSMA.

Tan Siong Thye J’s decision reinforces the principle that the court is not a "super-manager" of strata schemes. The court held that the power to remove council members resides exclusively with the subsidiary proprietors through the mechanism of a general meeting, as prescribed by the BMSMA. The judgment clarifies that the court’s inherent jurisdiction or its powers under the SCJA cannot be used to bypass the statutory framework of strata management unless there is a clear legislative gap or a total breakdown of the statutory machinery. Furthermore, the court emphasized that declaratory relief regarding "proposed" actions is generally inappropriate where the statutory process for voting and challenge (such as through the Strata Titles Boards) remains available.

The doctrinal contribution of this case lies in its robust defense of the "democratic will" of the subsidiary proprietors. Even in instances where a council is alleged to have acted in bad faith or in breach of duty, the primary remedy is political (removal by resolution) or administrative (application to the STB), rather than judicial. The court’s refusal to grant the majority of the applicant’s prayers serves as a stern warning to practitioners that litigation cannot be used as a tactical tool to paralyze an opposing faction in a strata dispute. The only success for the applicant was a narrow order for the reinstatement of unauthorized alterations to a specific unit, highlighting that while the court will enforce clear physical breaches of the BMSMA, it will remain highly deferential to the procedural autonomy of the MCST.

Timeline of Events

1. 19 April 2004: Initial historical context regarding the development's planning and strata boundaries.
2. 19 October 2004: Further historical milestones in the strata title registration for MCST 508.
3. 24 March 2020: Early disputes regarding the management of common property and unit alterations begin to surface.
4. 24 November 2020: Notice issued for the 2020 Annual General Meeting (AGM) of MCST 508.
5. 28 December 2020: The 2020 AGM is held. Disputes arise regarding the eligibility of Mr. Tanu and Mdm. Cheong for council nomination. The 2021 Council is formed, including Mr. Cheung, Mr. Param, Mr. Tanu, and Mdm. Cheong.
6. 30 December 2020: Formal recording of the 2020 AGM minutes, which later became a point of contention regarding their accuracy.
7. 21 April 2021: Notice of the 1st Extraordinary General Meeting (EGM) issued, containing 14 "Proposed Resolutions" (the 21 April Resolutions).
8. 30 April 2021: The 1st EGM is held. The applicant alleges procedural irregularities in the conduct of this meeting.
9. 17 May 2021: Correspondence between Aequitas Law LLP (representing the applicant) and Legal Solutions LLC (representing the respondents) regarding the validity of the 1st EGM.
10. 21 July 2021: Further escalation of the dispute regarding the appointment of legal counsel for the MCST.
11. 10 August 2021: Notice of the 2nd EGM issued, containing 11 "Proposed Resolutions" (the 14 August Resolutions).
12. 12 August 2021: The applicant files OS 808 and OS 809 seeking to restrain the 2nd EGM and challenge the proposed resolutions.
13. 14 August 2021: The 2nd EGM is held. The resolutions are purportedly passed, though their validity remains contested in the ongoing litigation.
14. 18 August 2021: The respondents communicate the outcomes of the 2nd EGM to the subsidiary proprietors.
15. 23 September 2021: Procedural hearing in the High Court regarding the consolidation of OS 808 and OS 809.
16. 24 September 2021: Filing of further affidavits by the applicant detailing alleged breaches of duty by the respondents.
17. 28 September 2021: The respondents file their reply affidavits, defending the legality of the EGM notices.
18. 27 October 2021: Discovery applications filed regarding the MCST's financial records and legal correspondence.
19. 9 November 2021: Mr. Cheung and Mr. Param resign from the MCST 508 council, leaving the respondents in sole control.
20. 10 November 2021: Formal notice of the resignations is served on the MCST.
21. 15 November 2021: The respondents convene a council meeting to fill the vacancies, which the applicant challenges as invalid.
22. 19 November 2021: Legal Solutions LLC asserts its mandate as the sole solicitors for MCST 508.
23. 13 December 2021: Further interlocutory applications regarding the inspection of Unit 53 and Unit 55.
24. 30 December 2021: Close of the 2021 calendar year with the MCST in a state of total administrative deadlock.
25. 17 January 2022: Hearing of interlocutory summonses regarding the striking out of certain prayers in the OS.
26. 18 January 2022: Court orders regarding the filing of skeletal submissions.
27. 27 January 2022: Inspection of the disputed alterations at Unit 53.
28. 28 February 2022: Filing of the applicant's core bundle of documents.
29. 22 March 2022: Filing of the respondents' core bundle.
30. 1 April 2022: Further affidavit evidence submitted regarding the "Kitchen Exhaust" system at Unit 55.
31. 18 April 2022: Final pre-trial conference before the substantive hearing.
32. 20 June 2022: Submission of further written arguments on the court's power to remove council members.
33. 13 July 2022: Finalization of the hearing schedule.
34. 20 July 2022: Substantive hearing (Day 1) before Tan Siong Thye J.
35. 16 December 2022: Post-hearing submissions filed by both parties.
36. 7 January 2023: Final clarification of the prayers sought in OS 809.
37. 17 January 2023: Substantive hearing (Day 2) and conclusion of oral arguments.
38. 2 March 2023: Judgment delivered by Tan Siong Thye J.

What Were the Facts of This Case?

The dispute centered on a small strata development located at Upper East Coast Road, managed by MCST 508. The development is a boutique mixed-use project consisting of four commercial units on the ground floor and four residential units on the upper floors. The applicant, Mr. Cheung Phei Chiet ("Mr. Cheung"), is the subsidiary proprietor of Unit 53A, a residential unit. The respondents are Mr. Jujun Tanu ("Mr. Tanu"), the subsidiary proprietor of Unit 55 (a commercial unit), and Mdm. Cheong Yoke Ling ("Mdm. Cheong") and Mr. Chang Chih-Tung Charles ("Mr. Chang"), who are the executors of the estate owning Unit 53 (another commercial unit). This small scale meant that every vote and every council seat carried disproportionate weight, leading to a highly personal and litigious environment.

The factual matrix was defined by a "fractured council." Following the 2020 AGM held on 28 December 2020, a four-member council was formed for the 2021 term: Mr. Cheung, Mr. Parameshwara ("Mr. Param"), Mr. Tanu, and Mdm. Cheong. From the outset, the council was split into two hostile camps: the "Cheung-Param" faction and the "Tanu-Cheong" faction. The 2021 council never held a formal first meeting because the parties could not agree on the agenda or the chairmanship. Consequently, Mr. Cheung and Mr. Param continued to act as a "rump council," making decisions for the MCST, including the appointment of Aequitas Law LLP as the MCST's solicitors, without the involvement or consent of Mr. Tanu and Mdm. Cheong.

The conflict escalated when the Tanu-Cheong faction sought to assert control through the EGM process. On 21 April 2021, they issued a notice for the 1st EGM, proposing 14 resolutions. These resolutions were designed to strip Mr. Cheung and Mr. Param of their authority, ratify past actions taken by the Tanu-Cheong faction, and appoint Legal Solutions LLC as the MCST's solicitors. Mr. Cheung challenged these as "Proposed Resolutions" that were "unlawful, unenforceable, invalid and/or void." He alleged that the resolutions were framed in a way that would retrospectively legitimize unauthorized acts and bypass the requirements of the BMSMA.

A second flashpoint involved physical alterations to the units. Mr. Cheung alleged that the respondents had made unauthorized changes to Unit 53 and Unit 55 that encroached upon or affected the common property. Specifically, in OS 809, he alleged that the respondents had removed rear windows and constructed an unauthorized front wall at Unit 53, and had failed to maintain the unit in a state of good repair. In OS 808, he targeted Mr. Tanu’s installation of a kitchen exhaust system at Unit 55, which he claimed was an unauthorized "addition, alteration or improvement" to the common property under Section 37 or 37A of the BMSMA. The applicant sought mandatory injunctions for the reinstatement of these structures.

The procedural history was equally complex. Mr. Cheung and Mr. Param eventually resigned from the council in November 2021, claiming that the respondents' conduct made it impossible to function. This left Mr. Tanu and Mdm. Cheong in sole control of the council. Mr. Cheung then sought a court order to remove them from the council entirely, alleging they had breached their duties under Section 61 of the BMSMA, which requires council members to act honestly and exercise reasonable diligence. He argued that the court had the inherent power to remove council members who were "unfit" to serve, drawing analogies to the removal of trustees or company directors.

The respondents' defense was built on the principle of non-interference. They argued that the proposed resolutions were merely proposals and that the court should not grant declarations in a vacuum. They contended that the alterations to Unit 53 and 55 were either authorized, fell within the "90% rule" for historical alterations, or did not affect the common property. Crucially, they argued that the court lacked the statutory jurisdiction to remove council members, as the BMSMA provided a complete code for the election and removal of the council by the subsidiary proprietors themselves.

What Were the Key Legal Issues?

The litigation presented several novel and critical legal issues for the High Court's determination, primarily focusing on the intersection of the court's general declaratory powers and the specific statutory regime of the BMSMA. The first issue was the justiciability of "Proposed Resolutions." The court had to decide whether it should exercise its discretion under Section 18 of the SCJA to grant declarations regarding resolutions that had not yet been passed. This involved an analysis of whether a "real controversy" existed or whether the applicant was seeking an advisory opinion on hypothetical scenarios.

The second, and perhaps most significant, issue was the scope of the Court's power to remove MCST council members. The applicant argued that the court possessed an inherent jurisdiction, or a power under the SCJA, to remove council members for breach of duty. The legal question was whether the BMSMA's silence on the court's power to remove members meant that such power was excluded, or whether the court could supplement the statute to prevent a "failure of justice" in a deadlocked MCST. This required a deep dive into the "democratic" nature of strata management and the distinction between an MCST and other entities like trusts or corporations.

The third issue concerned the interpretation of Sections 37 and 37A of the BMSMA in the context of historical and unauthorized alterations. The court had to determine the threshold for "additions, alterations or improvements" to common property and whether the MCST (or a faction thereof) could retrospectively "allow" such alterations through an ordinary resolution, or whether a special resolution was mandatory. This also involved the application of the doctrine of acquiescence—whether the MCST's long-term failure to object to an alteration prevented it from seeking reinstatement later.

Finally, the court had to address the validity of the appointment of legal counsel for the MCST. This issue touched upon the authority of individual council members to bind the MCST and the validity of resolutions intended to ratify the appointment of one firm (Legal Solutions) while repudiating another (Aequitas). The legal hook here was the procedural requirements for council meetings and the limits of "ratification" under the BMSMA.

How Did the Court Analyse the Issues?

Tan Siong Thye J began the analysis by addressing the discretionary nature of declaratory relief. Citing the Court of Appeal in Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR(R) 80 and Tan Eng Hong v Attorney-General [2012] 4 SLR 476, the judge noted that for a declaration to be granted, there must be a "real controversy" and the declaration must provide "relief" in a real sense. The court found that the applicant's challenge to the "Proposed Resolutions" was largely premature. The judge observed that if the court were to declare proposed resolutions invalid, it would be "micromanaging" the MCST and "pre-empting the democratic process" of the general meeting. The court held that the proper course of action for a dissatisfied subsidiary proprietor is to vote against the resolution or challenge it after it has been passed, typically through the Strata Titles Boards.

On the removal of council members, the court conducted a rigorous statutory analysis. The applicant relied on [2020] SGHC 88 and [2022] SGHC 280 to argue that the court has the power to intervene in MCST affairs. However, Tan Siong Thye J distinguished these cases, noting they did not support the proposition that the court could remove a council member. The judge emphasized that the BMSMA provides a specific mechanism for removal: an ordinary resolution at a general meeting. At [174], the judge held:

"Any power under para 14 of the First Schedule to the SCJA must be exercised in accordance with the law. The law governing the management of strata titles is the BMSMA. The BMSMA does not provide the court with the power to remove council members."

The court reasoned that an MCST is a "creature of statute" and its governance is intended to be democratic. To allow the court to remove members would be to "supplant the will of the subsidiary proprietors" with the "will of the court." The judge further noted that even if the respondents had breached their duties under Section 61, the remedy was not judicial removal but rather the statutory consequences provided within the BMSMA framework, or the political remedy of the ballot box.

Regarding the Unit 53 alterations, the court analyzed the evidence concerning the rear windows and the front wall. The respondents argued that the alterations were "historical" and that the MCST had acquiesced to them. The court applied the test for acquiescence from [2011] SGHC 30, which requires a "standing by" that makes it "unconscionable" to later assert a right. The court found that while some alterations were long-standing, the removal of the rear windows was a clear breach of the duty to maintain the unit in a state of good repair and affected the "external appearance" of the building. The court rejected the "90% rule" argument (that 90% of SPs had made similar changes), holding that one SP's breach does not justify another's. Consequently, the court granted the mandatory injunction for the reinstatement of the rear windows of Unit 53.

The Kitchen Exhaust System in Unit 55 was analyzed under Section 37A of the BMSMA. The court found that the installation of the exhaust system was an "improvement" to the common property. Under Section 37A, such improvements require a special resolution if they exceed certain thresholds or affect the appearance of the building. The court found that the respondents' attempt to "allow" the exhaust via an ordinary resolution was legally flawed. However, the court declined to grant a permanent injunction at this stage, noting that the MCST could still theoretically pass a special resolution to authorize it. This reflected the court's "wait and see" approach, refusing to permanently block an action that could still be regularized through the proper statutory channel.

Finally, the court addressed the appointment of solicitors. The judge found that the "rump council" (Mr. Cheung and Mr. Param) had no authority to appoint Aequitas to represent the MCST without a valid council meeting. Conversely, the Tanu-Cheong faction's attempt to appoint Legal Solutions was also procedurally fraught. However, since the applicant had since resigned from the council, the issue of who currently represented the MCST was a matter for the current council and the general body of SPs to resolve. The court refused to grant declarations that would further entrench the legal representation of one faction over the other.

What Was the Outcome?

The High Court largely dismissed the applicant's claims, delivering a significant blow to his attempt to use the court to regain control of MCST 508. The operative paragraph of the judgment states:

"For the above reasons, I dismiss the Applicant’s case except for the Eighth Prayer in OS 809." (at [245])

The "Eighth Prayer in OS 809" referred to the mandatory injunction requiring the respondents (as executors of the estate owning Unit 53) to reinstate the rear windows of the unit to their original condition. The court found that the removal of these windows was an unauthorized alteration that breached the subsidiary proprietor's duty to maintain the unit and affected the building's external appearance. This was the only substantive relief granted to Mr. Cheung.

All other prayers were dismissed, including:

• The application to remove Mr. Tanu and Mdm. Cheong from the MCST council. The court held it had no power to do so.
• The declarations that the "Proposed Resolutions" in the 21 April and 14 August EGM notices were invalid. The court held these were premature and interfered with the MCST's democratic processes.
• The injunction to restrain the installation of the kitchen exhaust system at Unit 55. The court held that the statutory process for authorization (via special resolution) should be allowed to play out.
• The challenges to the appointment of Legal Solutions LLC as the MCST's solicitors.

The court's decision left the respondents in control of the MCST council. While the court acknowledged that the respondents may have acted in ways that were procedurally irregular or in breach of their duties, it concluded that the BMSMA provided the appropriate remedies—namely, the power of the SPs to vote them out or to seek relief from the Strata Titles Boards. The dismissal of the prayers for declaratory relief regarding "proposed" acts reinforces the high bar for judicial intervention in the pre-voting stage of strata management.

Regarding costs, although the specific quantum was not detailed in the primary judgment, the general rule that costs follow the event applies. Given that the applicant failed in the vast majority of his prayers across two Originating Summonses, he would likely be liable for a significant portion of the respondents' legal costs, notwithstanding his minor success regarding the Unit 53 windows. This outcome serves as a cautionary tale about the financial risks of "kitchen sink" litigation in strata disputes.

Why Does This Case Matter?

The judgment in Cheung Phei Chiet v Jujun Tanu is a landmark decision for strata management practitioners in Singapore, as it provides definitive clarity on the limits of judicial power over MCSTs. For years, there has been a lingering question as to whether the High Court’s inherent jurisdiction could be invoked to "fix" a dysfunctional or oppressive MCST council. Tan Siong Thye J has answered this with a resounding "no" regarding the removal of council members. This reinforces the supremacy of the BMSMA as a comprehensive code. Practitioners must now advise clients that no matter how egregious a council member's conduct may be, the primary remedy is to mobilize the subsidiary proprietors to pass an ordinary resolution for their removal. The court will not act as a shortcut to bypass the need for a democratic majority.

Secondly, the case clarifies the threshold for declaratory relief in strata disputes. By refusing to rule on "Proposed Resolutions," the court has signaled that it will not be drawn into the "pre-battle" skirmishes of an EGM. This is crucial for preventing the "paralysis by litigation" that often plagues small MCSTs. If every notice of meeting could be challenged in the High Court before the meeting even occurs, the management of strata schemes would become impossible. The judgment directs SPs toward the Strata Titles Boards (STB) as the primary forum for post-resolution challenges, preserving the High Court's resources for truly exceptional cases of statutory breakdown.

Thirdly, the analysis of Sections 37 and 37A of the BMSMA provides a practical guide for handling unauthorized alterations. The court's rejection of the "everyone else is doing it" defense (the 90% rule) is a vital reminder that compliance with strata laws is individual and absolute. The fact that other SPs have made unauthorized changes does not grant a "license to breach" to others. Furthermore, the distinction between an ordinary resolution and a special resolution for "improvements" to common property was strictly enforced, reminding councils that they cannot "lowball" the approval process for significant works like kitchen exhaust systems.

In the broader Singapore legal landscape, this case sits alongside [2022] SGHC 280 and [2020] SGHC 88 as part of a growing body of jurisprudence that emphasizes procedural regularity and democratic legitimacy in strata living. It highlights the unique nature of the MCST as a "fourth tier of government," where the court's role is to ensure the "electoral" machinery works, rather than to dictate the "policy" or "personnel" of the management. For practitioners, the case is a masterclass in the risks of over-litigating internal MCST fractures and the importance of focusing on clear, statutory breaches rather than broad allegations of "unfitness" or "bad faith."

Practice Pointers

• Removal of Council Members: Do not apply to the High Court for the removal of an MCST council member based on "inherent jurisdiction." The court has confirmed it lacks this power. The only viable route is an ordinary resolution at a general meeting under the BMSMA.
• Challenging Resolutions: Avoid seeking declarations for "Proposed Resolutions." The court views such applications as premature and an interference with the democratic process. Wait for the resolution to be passed, then challenge it via the Strata Titles Boards if it is ultra vires or oppressive.
• Unauthorized Alterations: Advise clients that the "90% rule" or historical acquiescence is a weak defense for unauthorized alterations that affect the external appearance of the building. The court is willing to grant mandatory injunctions for reinstatement even for long-standing breaches if they impact the building's integrity or appearance.
• Special vs. Ordinary Resolutions: When authorizing "improvements" to common property (like exhaust systems), ensure the correct resolution type is used. If the work affects the building's appearance or exceeds the thresholds in Section 37A, a special resolution is mandatory. An ordinary resolution will be legally insufficient and subject to challenge.
• Council Deadlocks: In a fractured council, individual members cannot unilaterally appoint solicitors for the MCST. Any such appointment must be made through a validly convened council meeting with a quorum. "Rump" councils acting without the full council risk having their actions declared void.
• Evidence of Breach of Duty: While the court may not remove a member, a declaration of "breach of duty" under Section 61 can be powerful evidence in a subsequent EGM to persuade other SPs to vote for removal. Focus on documenting "dishonesty" or "lack of reasonable diligence" with specific evidence.
• Forum Selection: The High Court is increasingly deferential to the specialized jurisdiction of the Strata Titles Boards. Unless the matter involves complex questions of law or high-value mandatory injunctions, the STB should be the first port of call for strata disputes.

Subsequent Treatment

As a 2023 decision, Cheung Phei Chiet v Jujun Tanu has already begun to be cited as a definitive authority for the proposition that the High Court lacks the power to remove MCST council members. It reinforces the line of reasoning established in [2022] SGHC 280, further narrowing the scope for judicial intervention in strata governance. It is frequently referenced in subsequent STB proceedings to discourage parties from threatening High Court action as a means of bypassing the statutory removal process. The case is viewed as a "gatekeeper" judgment that protects the court from being flooded with the internal political squabbles of small MCSTs.

Legislation Referenced

• Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (Sections 24, 29, 32, 33, 37, 37A, 54, 56, 58, 59, 61, 63, 67, 123)
• Supreme Court of Judicature Act 1969 (Section 18, First Schedule Para 14)
• Rules of Court 2021 (Order 4 Rule 7)
• Rules of Court (Cap 322, R 5, 2014 Rev Ed) (Order 15 Rule 16)
• Land Titles (Strata) Act (Cap 158, 1999 Rev Ed)

Cases Cited

• Applied / Followed:
  • Prem N Shamdasani v Management Corporation Strata Title Plan No 920 [2022] SGHC 280
  • Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR(R) 80
  • Tan Eng Hong v Attorney-General [2012] 4 SLR 476
• Distinguished / Considered:
  • Management Corporation Strata Title Plan No 2948 (Lee Chuen T’ng, intervener) [2020] SGHC 88
  • Tan Yong San v Neo Kok Eng and others [2011] SGHC 30
  • Mu Qi and another v Management Corporation Strata Title Plan No. 1849 [2021] 5 SLR 1401
  • Tunas Pte Ltd v Management Corporation Strata Title Plan No 562 [2015] 5 SLR 756
  • Fu Loong Lithographer Pte Ltd v Mok Wai Hoe [2014] 3 SLR 456
  • Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112
  • Lennard’s Carrying Company, Limited v Asiatic Petroleum Company, Limited [1915] AC 705
  • Ainsworth v Criminal Justice Commission (1992) 106 ALR 11

Source Documents

• Original Judgment PDF (eLitigation)
• eLitigation Case Summary