PHOENIX COURT

Sorry, there was some confusion earlier - there were not one but two different cases brought before the High Court concerning Phoenix Court. The first involved 12 majority owners against the Sale Committee (06 Nov) and the second the lone minority couple trying to block the sale (09 Nov).

1) The decision of Justice Lai Siu Chiu on 06 Nov
In short,

• the court came down hard on the 12 majority owners (the plaintiffs) who tried to scuttle the sale. He pointed to the clause in their CSA that stated :-

In attempting to set aside the CSA and the Supplemental Agreement, the plaintiffs had also breached the covenants and undertakings in cl 7 of the CSA. The relevant sub-clause states:
Every Owner agrees as follows:
(p) not to do anything whether by an act or omission that may prevent or otherwise be detrimental to the Collective Sale or the fulfillment of any of the purpose under this [CSA] or the [SPA].

• the S&P supersedes the CSA (as we all knew already, but here is the case that puts the seal on that argument).
• and finally:

It was because of the frivolity of the plaintiffs’ claim that I ordered indemnity costs against them in favour of all nine defendants.
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2) The decision of Justice Andrew Ang on 09 Nov

The minority couple lost the case.

A landmark decision and one which lays down the law regarding the consequences of non-compliance with a statutory requirement.

"The elusive historical approach of characterising procedural provisions as either directory or mandatory is largely anachronistic today. The preferred approach in modern times in determining the validity of an Act is to understand the purpose of the relevant procedural rule as well as the scope and intent of the governing statute. This approach does not entail ignoring the usage of words such as “shall” or “must” in legislation. It suggests that any prima facie inference raised by such words may be dislodged after taking into consideration the scope and objectives of the legislation and the consequences arising from alternative constructions.'

'To conclude, the modern approach in Singapore as well as in England, Australia and Canada is to treat the question as one of statutory construction to be answered by looking at the whole scheme and purpose of the Act and by weighing the importance of the particular requirement in the context of that purpose and asking whether the legislature would have intended the consequences of a strict construction, having regard to the prejudice to private rights and the claims of the public interest (if any).'

'This is not to say, however, that apart from the express grounds, there cannot be any other circumstance in which a Board may decline (or even be precluded from) ordering a sale.'

'At the end of the day, each objection must be examined on its own facts and the particular requirement breached set against the overall purpose of the legislation. One should then consider whether a strict construction and the invalidation of the Board’s order is what Parliament would have intended, taking into account any prejudice to the rights of parties and the public interest (if any).'

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Just as a matter of interest, I found another case on lawnet dealing with 'procedural' matters and how another judge views their importance. In a High Court decision on 06 Nov 2007 (Lee Hsien Loong v SDP and Others), Justice Andrew Phang Boon Leong wrote:

36 Enough has been said to illustrate a broader – albeit related – point. The rules of procedure – such as the one presently considered – are intended to ensure that one of the two twin pillars of justice is achieved, viz, procedural justice. The other pillar is that of substantive justice. As was observed in the High Court decision of United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR 425 at [4]–[9]:

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'It is axiomatic that every party ought to have its day in court. This is the very embodiment of procedural justice. The appellation “procedural” is important. Procedural justice is just one aspect of the holistic ideal and concept of justice itself. In the final analysis, the achievement of a substantively just result or decision is the desideratum. It is more than that, however. It is not merely an ideal. It must be a practical outcome – at least as far as the court can aid in its attainment.

However, the court must be extremely wary of falling into the flawed approach to the effect that “the ends justify the means”. This ought never to be the case. The obsession with achieving a substantively fair and just outcome does not justify the utilisation of any and every means to achieve that objective. There must be fairness in the procedure or manner in which the final outcome is achieved.

Indeed, if the procedure is unjust, that will itself taint the outcome.

On the other hand, a just and fair procedure does not, in and of itself, ensure a just outcome. In other words, procedural fairness is a necessary but not sufficient condition for a fair and just result.

The quest for justice, therefore, entails a continuous need to balance the procedural with the substantive. More than that, it is a continuous attempt to ensure that both are integrated, as far as that is humanly possible. Both interact with each other. One cannot survive without the other. There must, therefore, be – as far as is possible – a fair and just procedure that leads to a fair and just result. This is not merely abstract theorising. It is the very basis of what the courts do – and ought to do. When in doubt, the courts would do well to keep these bedrock principles in mind. This is especially significant because, in many ways, this is how, I believe, laypersons perceive the administration of justice to be. The legitimacy of the law in their eyes must never be compromised. On the contrary, it should, as far as is possible, be enhanced.'