The Management Corporation Strata Title Plan No. 1788 v Lau Hui Lay William and another

The claimant is the management corporation (MCST) of The Summit condominium. The defendants, Mr Lau Hui Lay William, a registered architect who later chaired the MCST's management council from 2009 to 2017, and Ms Aw Jieh Yui Midori, own unit #06-03, bought from the developer in 1989. They said the developer's sales director verbally agreed they could install mezzanine attics, and that the attics were completed around April or May 1993, before the MCST was constituted on 18 November 1993. They admitted they had no planning permission from the Urban Redevelopment Authority (URA).

The MCST discovered the attics in August 2017 after a complaint about bird droppings led its managing agent to a skylight and compressor on the roof. It asked the owners to remove the attics unless they obtained a 90% resolution under s 37(2) of the Building Maintenance and Strata Management Act 2004 (BMSMA) and regulatory approval. In October 2021 the owners applied to the URA, paid a penalty of $2,400 and a development charge of $422,807, and on 8 September 2022 obtained written permission to retain the attics, with a verified additional gross floor area of 63.58m2. In Originating Application No 404 of 2023 the MCST sought their removal, or alternatively additional contributions to the management and sinking funds, damages and an indemnity.

1. Whether the mezzanine attics were completed before the BMSMA came into force on 1 April 2005
2. Whether a breach of the Planning Act gave the MCST a civil cause of action
3. Whether applying to the URA in 2021 to retain the attics amounted to effecting an improvement under s 37 of the BMSMA

The relevant date was 1 April 2005, when s 37 came into force; the MCST did not rely on any by-law breach, so the date the MCST was constituted did not matter. The owners' own evidence, photographs showing a raised false ceiling in their unit, and a Straits Times article of 30 October 1993 showcasing the renovated unit broadly supported completion in 1993. The court declined to draw an adverse inference under s 116(g) of the Evidence Act, noting that records might not have been kept over so many years and that differences in stated floor area were within the margin of error. It was also implausible that a family living in the unit would tolerate construction lasting until 2005.

Building without permission was an offence under the Planning Act, enforceable by the authority, but the Act gave no other party a civil remedy. In any event the URA had since granted permission, and payment of the penalty barred further proceedings.

There was no equivalent to s 37 before the BMSMA. The MCST argued that effect included obtaining regulatory approval, so the 2021 application triggered s 37. The court rejected this: read with the definition of floor area, effect referred to carrying out physical works, which were completed in 1993. The MCST's reading would also produce the unworkable result that an owner who sought permission would breach s 37 while one who never applied would not.

The court observed that it would have been inclined to find deliberate concealment for limitation purposes, as Mr Lau ought to have known permission was needed and never told the MCST, but made no finding. That the owners had benefited from a gap in the law, and stayed silent despite Mr Lau's position, justified nominal costs.

Lee Seiu Kin J dismissed the application, holding that the MCST had no cause of action, so the mandatory injunction sought did not arise. Because of the owners' conduct, the court awarded them only nominal costs fixed at $1.