(Tan Siew Tian and Others v Lee Khek Ern Ken[2008] SGHC 41)
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What a wonderful written decision! Even though 99% had agreed to the sale by the time it reached High Court - Justice Lee Seiu Kin still judged the case purely on it's point of contention and found in favour of the sole, unrepresented minority owner.
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35 "The plaintiffs also point out that as at the date of the hearing by the STB, the SPs of 99% share value wanted the sale to proceed and only the SP of one unit, representing less than 1% share value, refused to sell. These are compelling arguments indeed but to succumb to such arguments would, in my view, defeat the safeguards put in place by the legislature to protect the minority."
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"it is therefore not for the court to water down the protection afforded by the legislation in its present form in favour of the majority, vast though it may be."
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Weep for joy! Honestly, it does the heart good to see justice prevail against the pervasive 'might is right' mentality.
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The out of control 'purposive approach' has been reined in in clause 25 - at least for those requirements in the Schedule that are time sensitive.
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24 "Sir, the Boards decision will be final. An appeal can be made to the High Court only on a point of law or where there is alleged irregularity in the process.
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25 For this to be achieved it must be the intention of the legislature that where a condition is expressed in clear terms, there can be no scope for the argument that the STB must look beyond the express provision and undertake the onerous task of considering all sorts of submissions of fact and law in order to divine the true intention of Parliament. It cannot be the intention of the legislature that, in respect of any provision that is expressed in clear terms, the STB would be asked to interpret it in any other manner. The STB is not a court of law and certainly not equipped to make a determination on subtle questions of law."
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22 .... there will be adequate safeguards to protect the interests of minority owners. these safeguards are found in the procedures as well as in the substantive powers of the Strata titles Board".
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This is exactly what I was trying to say in a post some time back - that there was no need for the STB to continually abandon compliance of the law and turn its eye instead on its overall 'purpose' as defined by Parliament. Parliament has already defined it's purposes through those very laws and has ratified them one by one. Parliament's intent that enblocs be made easier has not resulted in the elimination of rules, but conversely in their tightening with the very intention that they be applied. The laws are the word of Parliament and the STB should feel comfortable applying them impartially.
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UPDATE 09 April '08: The developer is filing an appeal against the High Court decision
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My musing:
Can a S&P agreement be entered into with less than 80%, less than the majority stated in 84A(1)? Yes - but I still have a bee in my bonnet about this; how is this right? How can less than the majority conditionally sell the estate, by whose authority? How can a Sale Committee, which has tethered its ratification to 80% (and not less) signing the CSA, have the authority to sell with less than 80%? How can a buyer be allowed to conditionally buy a property with less than 80% approval? Isn't the 80% crucial without which there can be no sale, conditional or not? Isn't it an essential prerequisite? Aren't the less than 80% putting themselves in mortal danger of being sued by the developer-buyer if the SC cannot secure the 80% by the 12 month threshold? Are they made aware of this when they sign? What is the purpose of making a big brouhaha about the exact date the 80% is reached if it is largely irrelevant? If a Sale Committee could theoretically launch a tender exercise anytime during the permitted 12 month period before the 80% has been reached - how many have done so?
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"From the time the minimum 80 percent consent level is secured for a CSA, agents have up to 12 months to find a buyer and submit an application to the Strata Titles Board for an order of the collective sale."
Source - Business Times - 09 April 2008
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So, the public thinks it 80% first then sell
But the reality is sell, then get 80% before the 12 months is up.
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