Case Details
- Citation: [2021] SGHC 128
- Title: Ooi Say Peng and another v Koh Kai Chuan Raymond and others
- Court: High Court of the Republic of Singapore (General Division)
- Date of Decision: 27 May 2021
- Judges: Philip Jeyaretnam JC
- Coram: Philip Jeyaretnam JC
- Case Number: Suit No 868 of 2019 (Registrar’s Appeals 53 and 54 of 2021)
- Tribunal/Court: General Division of the High Court
- Decision Type: Ex tempore judgment on striking out applications
- Plaintiffs/Applicants: Ooi Say Peng and another
- Defendants/Respondents: Koh Kai Chuan Raymond and others
- Parties (as reflected in the metadata): Ooi Say Peng; Josephine Tay Siok Leng; Koh Kai Chuan Raymond; Toh Lay Keng, Vivien; Hup Soon Loong Construction Pte Ltd; Gan Geok San (trading as D’arclub Architects); Chu Chiang Yong; ZPT Engineering Services; Wee Joon Kin
- Counsel for Plaintiffs: Edwin Lee Peng Khoon (Eldan Law) (instructed) and Tay Siok Leng Josephine (Josephine Tay & Co)
- Counsel for 4th Defendant: Choa Sn-Yien Brendon and Lim Jia Xin Kimberly (Patrick Ong Law LLC)
- Counsel for 5th and 6th Defendants: Gokulamurali s/o Haridas, Linisha Kapur Supramaniam and Ng Si Xuan Sancia (Tito Isaac & Co LLP)
- Legal Areas: Civil Procedure – Pleadings, Injunctions – Mandatory injunction, Tort – Breach of statutory duty, Tort – Negligence, Tort – Nuisance
- Statutes Referenced: Building Control Act
- Cases Cited: [2021] SGHC 128 (as reflected in the provided metadata)
- Judgment Length: 7 pages, 3,723 words
Summary
In Ooi Say Peng and another v Koh Kai Chuan Raymond and others ([2021] SGHC 128), the High Court (Philip Jeyaretnam JC) dealt with Registrar’s Appeals arising from applications by the fourth, fifth and sixth defendants to strike out the plaintiffs’ claims against them. The plaintiffs, owners of 17 Richards Avenue (“17RA”), alleged that structural works carried out on the neighbouring property 19 Richards Avenue (“19RA”) improperly interfered with a shared party wall, causing cracking, water leaks, and compromise of structural integrity and safety.
The appeals concerned whether the claims against the fourth, fifth and sixth defendants were “unarguable and unsustainable”. The court struck out the plaintiffs’ prayers for mandatory injunctions against these defendants, holding that the pleaded injunction relief was wholly unarguable and unsustainable in law. However, the court declined to strike out the remaining causes of action in negligence and breach of statutory duty at this stage, finding that those claims were not, on the face of the pleadings, necessarily doomed.
What Were the Facts of This Case?
The plaintiffs are the owners of 17RA. Their grievance relates to structural works (“the Redevelopment Works”) undertaken by the first and second defendants on 19RA, a neighbouring property that shares a party wall with 17RA. The plaintiffs alleged that, sometime around November 2013, the party wall was improperly “hacked” (a term the judge used broadly to include allegations of embedment, recessing, tampering, or removal of parts of the party wall). They contended that this interference compromised the party wall’s ability to provide support, leading to cracking within 17RA, water seepage/leaks, and a loss of structural integrity and safety.
After the incident, the Building and Construction Authority (“BCA”) investigated the matter. The BCA required information and reports from “qualified persons” under the Building Control Act. The fourth defendant was the qualified person for architectural works; the fifth defendant was the qualified person for civil and structural engineering works; and the sixth defendant was a partnership firm of which the fifth defendant was a partner. The Redevelopment Works continued to completion notwithstanding the investigation. A Temporary Occupation Permit (“TOP”) for 19RA was granted on 3 May 2017, and a Certificate of Statutory Completion (“CSC”) was issued on 31 January 2019.
The plaintiffs’ pleaded position was that the grant of TOP and CSC was made on the basis of omissions and false statements by the fourth, fifth and sixth defendants. The plaintiffs filed their writ of summons on 31 August 2019, about two months before the expiry of six years from the original incident. They initially sued the owners of 19RA (the first and second defendants) and also included the contractor (the third defendant) and, additionally, the qualified persons (the fourth, fifth and sixth defendants) and the Resident Technical Officer (the seventh defendant). The present appeals, however, concerned only the fourth, fifth and sixth defendants.
At the pleading stage, the Statement of Claim (“SOC”) was extensive (73 pages). The plaintiffs relied on statutory cross easements under the Land Titles Act (as pleaded in the SOC) to support their case that the party wall rights entitled them to have the whole wall continue in a manner that each building supported by the wall receives support from the whole wall. While the judge noted that the right between neighbours is not that the party wall must remain exactly as it always was, it is that it must remain capable of providing support, the plaintiffs’ core narrative remained that the party wall’s support was compromised by the Redevelopment Works.
What Were the Key Legal Issues?
The principal issue before the court was whether the claims against the fourth, fifth and sixth defendants should be struck out in whole or in part. In Singapore civil procedure, striking out is reserved for claims that are clearly unsustainable—typically where they are unarguable, frivolous, or an abuse of process. Here, the judge framed the question as whether the pleaded claims were “unarguable and unsustainable”.
A second, more specific issue concerned the plaintiffs’ sought remedies. The SOC prayed for multiple mandatory injunctions, including orders requiring the fourth, fifth and sixth defendants to remove certain structures allegedly wrongly recessed into the party wall and to restore the party wall to its prior condition. The court had to decide whether such mandatory injunctive relief was legally maintainable against construction professionals who did not own or control the relevant property and who, on the pleaded case, had already completed their role in the Redevelopment Works.
Finally, the court also had to consider whether the remaining causes of action—negligence and breach of statutory duty—were sufficiently pleaded to survive a striking out application. This required the court to assess whether the pleaded allegations were coherent as to duty, breach, causation, and the connection between any alleged failures (such as supervision or investigation) and the damage complained of.
How Did the Court Analyse the Issues?
Philip Jeyaretnam JC began by emphasising the nature of the dispute: the core grievance concerned the easement/right of support between neighbours, which directly binds the owners of the properties. The plaintiffs’ claim against the first and second defendants (owners of 19RA) was therefore naturally anchored in the party wall support regime. The judge observed that the plaintiffs’ attempt to “layer” additional claims against the qualified persons (the fourth, fifth and sixth defendants) created complexity that risked derailing efficient and expeditious determination. While case management was not the subject of the appeals, the judge indicated that the pleadings’ structure and remedy choices were relevant to whether the claims could fairly proceed.
On the mandatory injunctions, the court’s reasoning was decisive. The judge held that seeking mandatory injunctions against the fourth, fifth and sixth defendants as prayed for in prayers (d) through (k) was “wholly unarguable and unsustainable” and should be struck out. A key point was that the prayers did not clearly specify the fourth, fifth and sixth defendants. Instead, the prayers used broad drafting phrases such as “and/or such other Defendants as this Honourable Court deems fit” and, in prayer (j), “all the Defendants and/or one or more of them”. To strike out the injunctions against the fourth, fifth and sixth defendants, the court would have to introduce words excluding them from those prayers. The judge treated this as a pleading and remedial defect that could not be cured at the striking out stage without fundamentally rewriting the relief sought.
More substantively, the judge questioned the legal sustainability of ordering construction professionals to repair past damage through mandatory injunctions. The court noted that, in typical construction-related tort claims involving cracks, leaks, or compromised structural integrity, the usual remedy is damages reflecting the cost of rectification. Mandatory injunctions are not unheard of where a claimant seeks to restore support in an easement context, but the judge found it highly unusual to seek such primary injunctive relief against construction professionals. The court’s concern was that mandatory injunctions would require a proper legal basis—particularly where the defendants do not own or control the source of future damage and where there is no pleaded future wrong threatened or presumed against them.
The judge acknowledged the plaintiffs’ explanation for seeking mandatory injunctions: access to 19RA was allegedly not forthcoming, and any rectification works would require entry. However, the court treated this as insufficient to justify the extraordinary remedy against the qualified persons. The judge’s underlying legal point was that the plaintiffs’ remedy structure did not align with the nature of the alleged wrongs and the defendants’ role. In other words, the pleadings did not establish a coherent foundation for compelling the fourth, fifth and sixth defendants to undertake or procure restoration works as a mandatory injunction remedy, rather than seeking damages.
Turning to negligence and breach of statutory duty, the judge did not strike out those causes of action. The court nevertheless provided pointed observations about the pleadings’ deficiencies. The plaintiffs pleaded that the fourth, fifth and sixth defendants “caused and/or permitted unauthorised building and structural works”, but the judge characterised this as a bare averment. Elsewhere, the SOC alleged that the hacking of the party wall was done by the first, second and third defendants only, which appeared to contradict the attempt to attribute the hacking to the qualified persons. This inconsistency raised concerns about clarity and coherence.
Similarly, the judge observed that even if the fourth, fifth and sixth defendants owed duties to the first and second defendants to supervise the works, it did not automatically follow that they owed duties to the plaintiffs (the neighbouring owners). The pleadings were not clear on this point. At times, the SOC seemed to slide towards a proposition that the qualified persons had a duty to stop the contractor from causing damage to the plaintiffs—an assertion the judge suggested would be difficult to establish. The judge also noted that the plaintiffs’ “failure to investigate” allegations were unclear as to how any duty to investigate after the event was breached and how such breach caused further damage, given that subsequent failure to investigate could not cause the original alleged damage.
Despite these criticisms, the court’s approach at the striking out stage was cautious. The judge’s task was not to decide the merits definitively but to determine whether the claims were unarguable and unsustainable. The court concluded that, while the pleadings were problematic and would benefit from clarification, the negligence and breach of statutory duty claims were not so plainly doomed as to warrant striking out in their entirety. The court also struck out parts of the nuisance pleading that were embarrassing, indicating that some aspects of the pleading were procedurally defective even if the overall claims were not.
What Was the Outcome?
The High Court allowed the appeals in part. It struck out the plaintiffs’ prayers for mandatory injunctions against the fourth, fifth and sixth defendants (as prayed for in prayers (d) through (k) of the SOC). The practical effect is that the plaintiffs could not pursue mandatory injunctive relief compelling these qualified persons to remove structures and restore the party wall as against them.
However, the court did not strike out the remaining causes of action against the fourth, fifth and sixth defendants in negligence and breach of statutory duty. The action therefore continued for damages against those defendants, subject to the court’s observations that the pleadings required clarification and that case management would likely be necessary to prevent delay and prejudice at trial.
Why Does This Case Matter?
This decision is significant for practitioners because it illustrates how Singapore courts scrutinise both the legal basis and the pleading structure of injunctive relief in construction disputes. The court’s insistence that mandatory injunctions against construction professionals for past damage are “wholly unarguable and unsustainable” underscores that injunctions are not a default remedy where damages could address rectification costs. It also highlights the importance of pleading a coherent and legally supportable basis for injunctive relief, including the existence of a future wrong or threatened damage, and the defendant’s connection to the source of that future harm.
From a civil procedure perspective, the case also demonstrates the court’s willingness to strike out defective or embarrassing parts of pleadings, especially where prayers for relief are drafted in a way that does not clearly identify which defendants are bound by the injunction. The court’s comments about the need for clarification and the risk of complexity provide a practical warning: extensive pleadings that mix easement-based claims against property owners with tort/statutory claims against professionals can become unwieldy and may jeopardise remedy coherence.
Finally, the decision is useful for understanding the boundary between duties owed to property owners under easement/support regimes and duties owed by qualified persons under the Building Control Act framework. While the court did not definitively determine the scope of duty in negligence and statutory breach, it signalled that duty to supervise or investigate does not automatically translate into a duty to the neighbouring owner, and that causation must be pleaded with care. For law students and litigators, the case provides a concrete example of how duty, breach, and causation are assessed at the striking out stage without collapsing into a full merits determination.
Legislation Referenced
- Building Control Act (Singapore) – provisions relating to “qualified persons” and their roles (including reference to s 8(1) in the judgment extract)
Cases Cited
- [2021] SGHC 128
Source Documents
This article analyses [2021] SGHC 128 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.