Case Details
- Title: Ooi Say Peng & Anor v Koh Kai Chuan Raymond & 6 Ors
- Citation: [2021] SGHC 128
- Court: High Court of the Republic of Singapore (General Division)
- Date of Judgment: 27 May 2021
- Hearing Dates: 18 March 2021 and 10 May 2021 (judgment reserved)
- Judges: Philip Jeyaretnam JC
- Proceedings: Ex tempore judgment
- Suit No: 868 of 2019
- Registrar’s Appeals: 53 and 54 of 2021
- Plaintiffs/Applicants: Ooi Say Peng; Josephine Tay Siok Leng
- Defendants/Respondents: Koh Kai Chuan Raymond; (and six others)
- Defendants relevant to the appeals: the fourth, fifth and sixth defendants (qualified persons and their firm)
- Property context: 17 Richards Avenue (“17RA”) and 19 Richards Avenue (“19RA”), sharing a party wall
- Core dispute (as pleaded): alleged improper “hacking”/interference with the party wall during redevelopment works on 19RA, allegedly causing loss of support, cracking, and water leaks affecting 17RA
- Claims pleaded against the fourth, fifth and sixth defendants: negligence, breach of statutory duty, and nuisance
- Remedies sought (key feature): mandatory injunctions (including prayers for restoration/repair-type orders) and damages
- Issue on appeal: whether the claims against the fourth, fifth and sixth defendants should be struck out (in whole or in part)
- Judgment length: 14 pages; 4,018 words
- Publication note: subject to final editorial corrections and/or redaction for publication in LawNet/Singapore Law Reports
Summary
This High Court decision concerns interlocutory appeals arising from an application to strike out claims against the fourth, fifth and sixth defendants in a neighbour dispute involving a shared party wall. 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 the party wall—described broadly in the pleadings as “hacking” (including embedment, recessing, tampering or removal). The plaintiffs claimed that this interference compromised the structural integrity of the party wall and caused cracking and water leaks in 17RA.
The appeals were limited to whether the plaintiffs’ claims against the fourth, fifth and sixth defendants—who were involved as qualified persons in the building process—were “unarguable and unsustainable” and should therefore be struck out. The court held that the plaintiffs’ prayers for mandatory injunctions against these defendants were wholly unarguable and unsustainable in law and should be struck out. However, the court allowed the action to continue against them for damages.
In reaching this conclusion, the court emphasised the mismatch between the pleaded tortious wrongs and the remedy sought. While mandatory injunctions may be conceptually available in neighbour easement contexts, the court found it highly unusual and legally problematic to order construction professionals to repair or restore past damage through mandatory injunctions where the defendants did not own or control any potential source of future damage and where the pleadings did not establish a pleaded future wrong threatened by the defendants.
What Were the Facts of This Case?
The plaintiffs are the owners of 17 Richards Avenue, Singapore (“17RA”). Their grievance arises from structural works (“the Redevelopment Works”) carried out on the neighbouring property, 19 Richards Avenue (“19RA”), which shares a party wall with 17RA. The plaintiffs alleged that, sometime around November 2013, the party wall was improperly hacked or otherwise interfered with during the redevelopment. They contended that this interference resulted in cracking within 17RA, water leaks, and a compromise of the structural integrity and safety of the party wall and their own building.
For the purposes of the court’s analysis, the term “hacking” was used broadly to encompass various allegations of interference with the party wall. The pleadings included allegations that the works involved embedment or recessing of structures, tampering or removal, and other forms of interference that could be characterised as compromising the support that the party wall was meant to provide.
Regulatory oversight formed part of the factual background. The Building and Construction Authority (“BCA”) investigated the matter and required information and reports from qualified persons. The fourth defendant was the qualified person for architectural works under the Building Control Act (as referenced in the judgment). The fifth defendant was the qualified person for civil and structural engineering works, and the sixth defendant was the partnership firm of which the fifth defendant was a partner. The Redevelopment Works continued to completion after the investigation, with a Temporary Occupation Permit (“TOP”) granted on 3 May 2017 and a Certificate of Statutory Completion (“CSC”) issued on 31 January 2019.
The plaintiffs’ case 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 the writ of summons on 31 August 2019, about two months before the expiry of six years from the original incident. While the plaintiffs initially sought relief against the owners of 19RA and other parties, they also included the qualified persons and a Resident Technical Officer as defendants. The present appeals, however, concerned only the fourth, fifth and sixth defendants.
What Were the Key Legal Issues?
The central issue in the appeals was whether the plaintiffs’ claims against the fourth, fifth and sixth defendants should be struck out. In Singapore civil procedure, striking out is an exceptional remedy used where a claim is unarguable, unsustainable, or otherwise bound to fail. Here, the court framed the question as whether the claims were “unarguable and unsustainable” at the interlocutory stage.
More specifically, the court had to decide whether the plaintiffs’ prayers for mandatory injunctions against the fourth, fifth and sixth defendants were legally maintainable. The plaintiffs sought multiple declarations and mandatory injunctions, including orders that would effectively require restoration or repair-type works. The court considered whether such mandatory injunctive relief was available against construction professionals/qualified persons in the circumstances pleaded.
A related issue was the coherence of the pleadings and the alignment between the alleged wrongs and the remedies sought. The court noted that the plaintiffs’ claim against the qualified persons was pleaded in negligence, breach of statutory duty, and nuisance, but the pleadings did not clearly articulate how the alleged failures (such as supervision or investigation) caused further damage, nor did they translate the loss into financial terms. The court therefore had to assess whether the injunctive relief sought was sustainable in law given the nature of the pleaded case.
How Did the Court Analyse the Issues?
The court began by setting out the overall structure of the dispute. The plaintiffs pleaded that the party wall rights were supported by statutory implication under the Land Titles Act, which implies cross easements between neighbours so that each building supported by the party wall will have the support of the whole wall. The court observed that, as between neighbours, the right is not necessarily that the party wall must remain exactly as it always has been, but that it must remain capable of providing support.
Against that easement-based backdrop, the court considered the plaintiffs’ natural remedy against the owners of the neighbouring property. If the plaintiffs proved that support was lost as a result of interference with the party wall, the natural remedy might be a mandatory injunction requiring restoration of support to prevent further damage. However, the court distinguished between claims against the owners of the dominant/servient properties (who control the party wall and the source of ongoing interference) and claims against construction professionals or qualified persons who do not own or control the potential source of future damage.
Turning to the claims against the fourth, fifth and sixth defendants, the court analysed the pleaded causes of action. The plaintiffs alleged, in broad terms, that the qualified persons caused and/or permitted unauthorised building and structural works, negligently supervised the works, and failed to investigate matters raised by the plaintiffs. The court found these aspects not straightforward and, at least at the striking-out stage, insufficiently clear or coherent. For example, the first aspect was described as a bare averment, and the pleadings elsewhere appeared to contradict the notion that the qualified persons caused the alleged “hacking” because the design intent of the approved plans was pleaded as not involving hacking.
The court also addressed the second and third aspects—supervision and investigation. Even if the qualified persons owed a duty to the owners of 19RA to supervise the contractor, that did not automatically mean they owed the same duty to the plaintiffs. The pleadings were not clear on the scope of duty. As for the alleged failure to investigate, the court found it unclear how any duty to investigate after the event could be breached in a way that caused further damage. The court noted that any subsequent failure to investigate could not cause the original alleged damage.
The most striking feature, however, was the plaintiffs’ remedy strategy. The court observed that the plaintiffs did not reduce their loss into financial terms, despite a “sweep-up” prayer for damages. Instead, the plaintiffs sought mandatory injunctions as the primary remedy. The court acknowledged that mandatory injunctions may be less unusual in neighbour easement disputes where the remedy is to restore support. But it was “highly unusual” in a claim against construction professionals to seek mandatory injunctions requiring them to repair something they had damaged in the past, rather than to seek damages for the harm already done.
In analysing the legal sustainability of mandatory injunctions against the qualified persons, the court focused on several interlocking considerations. First, it questioned whether it is legally sustainable to order a tortfeasor to repair past damage rather than award damages, absent a pleaded future wrong threatened by or presumed against the tortfeasor. Second, it considered that the fourth, fifth and sixth defendants did not own or control any potential source of future damage. Third, it considered that the pleadings did not establish a basis for concluding that mandatory injunctive relief was necessary to prevent an imminent or continuing harm attributable to these defendants.
The court also addressed the plaintiffs’ explanation for seeking mandatory injunctions: that any works, including proper preparatory investigation, would require access to 19RA, which allegedly had not been forthcoming. While the court expressed understanding of the plaintiffs’ frustration—particularly given that the plaintiffs had lived with the aftermath for close to eight years—it held that the core of the claim was the easement for support operating against the owners of 19RA. The court considered that layering additional claims against the qualified persons created complexity that could derail efficient and expeditious determination.
Although case management was not the subject of the appeals, the court noted that the pleadings’ state could prejudice, embarrass, or delay a fair trial. Clarifying available remedies would also likely improve the conduct of proceedings. This practical concern reinforced the court’s legal conclusion that the injunctive prayers were not sustainable against the qualified persons.
Accordingly, the court held that the mandatory injunctions prayed for in prayers (d) through (k) of the Statement of Claim were wholly unarguable and unsustainable and should be struck out as against the fourth, fifth and sixth defendants. The court then addressed the technical pleading issue: the prayers did not specify the fourth, fifth and sixth defendants in a straightforward manner. In most prayers, they would fall within a phrase such as “and/or such other Defendants as this Honourable Court deems fit”. In prayer (j), the relevant phrase was “all the Defendants and/or one or more of them”. Therefore, striking out required excluding the fourth, fifth and sixth defendants from those prayers by introducing appropriate words.
Finally, the court stated that the action would continue against the fourth, fifth and sixth defendants for damages. The court’s approach thus separated the remedy (mandatory injunctions) from the underlying tortious causes of action, allowing the plaintiffs to pursue monetary relief while removing the legally problematic injunctive component.
What Was the Outcome?
The court allowed the appeals in part. It struck out the plaintiffs’ claims for mandatory injunctions against the fourth, fifth and sixth defendants, as prayed for in prayers (d) through (k) of the Statement of Claim (Amendment No 1). The striking out was limited to the injunctive relief; it did not dispose of the plaintiffs’ entire claims against these defendants.
Importantly, the action continued against the fourth, fifth and sixth defendants for damages. In practical terms, the plaintiffs could still pursue their negligence, breach of statutory duty, and nuisance allegations for monetary compensation, but they could not seek mandatory orders compelling those defendants to undertake or fund restoration-type works through injunctions on the pleadings as framed.
Why Does This Case Matter?
This decision is significant for practitioners because it clarifies the limits of mandatory injunctive relief in construction and neighbour disputes, particularly where the defendants are construction professionals or qualified persons rather than the owners who control the source of ongoing harm. The court’s reasoning reflects a broader principle: injunctions are not merely alternative remedies to damages; they must be legally and factually aligned with the nature of the wrong, the risk of future harm, and the defendant’s relationship to the continuing problem.
For lawyers drafting pleadings, the case underscores the importance of coherence between pleaded causes of action and the remedies sought. Where the alleged wrong is past damage, and where the defendant does not own or control the relevant property or source of future interference, courts may be reluctant to grant mandatory injunctions requiring repair. Plaintiffs should consider whether their pleadings should instead focus on damages, or whether they can properly plead and evidence a threatened future wrong that justifies injunctive relief.
From a case-management perspective, the court also signalled that adding multiple layers of claims against different categories of defendants can create complexity that threatens efficient adjudication. While the court did not decide case management issues in the appeals, its remarks suggest that courts may scrutinise whether additional defendants and remedies are genuinely necessary to resolve the dispute. Practitioners should therefore evaluate early whether claims against qualified persons are likely to survive striking out and whether the remedy sought is sustainable.
Legislation Referenced
- Land Titles Act (cross easements implied under s 104(2) as referenced in the judgment)
- Building Control Act (qualified person provisions under s 8(1) as referenced in the judgment)
Cases Cited
- [2021] SGHC 128 (the present case; no other specific authorities were provided in the supplied extract)
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.