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Letter from Ong Cher Meng

I REFER to “Landmark ruling” (July 18).

The judge has ruled that the fact that a higher offer was received for the en bloc sale of Horizon Towers is not within the purview of the Strata Title Board (STB); neither are any allegations of less-than-stellar conduct among the parties.

And that if the STB has to hear such matters, it would never get its job done.

So, if I get an offer for my home of say, $7 million and the en bloc sales committee of my condo gets an offer of $5 million, would my recourse be to sue in the courts while the STB can rule in favour of the $5-million sale and proceed? This defies logic and good business sense.

Moreover, if the STB is not equipped to handle matters pertinent to good faith, the highest sale price, the conduct of sales committee, et cetera, it is time that the approval of en bloc sales be given to a specialised legal tribunal which is equipped to do so.

Further, if the Land Titles (Strata) Act does not provide sufficient coverage to protect the rights of a subsidiaryproprietor who expects a fair and holistic hearing of their grievances, it is time for all en bloc sales to be held inabatement until such matters can be seriously addressed.

Horizon Towers is a mega test case for en bloc sales and it is time to take stock of our laws.

Source : Weekend Today - 19 Jul 2008

High Court dismisses appeal, says there’s no proof that sale was in bad faith

Minority owners seeking to stop the en bloc sale of Horizon Towers have been defeated yet again. Singapore’s High Court yesterday dismissed their appeal, on the grounds that they failed to prove the sale was done in bad faith and prejudiced their rights.

This decision, coming on the heels of the High Court’s dismissal of an appeal against the sale of Gillman Heights Condominium, marks the second major defeat for minorities here.

The minority owners of Horizon Towers whom BT spoke to said they were still considering their options at this time. But they will soon be meeting to decide if they will take the matter to the Court of Appeal, or start a civil suit to claim for any financial loss - which will be their final recourse.

If they decide not to appeal further, the $500 million sale of the Leonie Hill development to a consortium led by Hotel Properties Ltd (HPL) will go through. It will also mean that the closely watched saga - which has been playing out in the public eye for more than a year - will finally come to a close.

HPL group executive director Chris Lim told BT: ‘We are pleased with the High Court judgment and hope to move forward with the deal as it’s been one-and-a-half years since the sale agreement was inked.’

Justice Choo Han Teck, who presided over the minorities’ appeal, said in his judgment yesterday that the minorities had failed to show that the Strata Titles Board (STB) erred in law in its decision to approve the en bloc sale in December.

The High Court only has powers to consider questions of law on appeal.

The minorities had argued that the sale had been conducted in bad faith. They claimed a better sale price might have been achieved if the sales committee had pursued a second offer from a party called Vineyard, which had reportedly offered $510 million. The minorities claimed the sales committee did not pursue the offer - and even concealed it - because the development’s sales agent, First Tree, was getting a higher sales commission from the HPL consortium.

But Justice Choo said the minorities failed to prove bad faith, as their argument was essentially concerned with whether the eventual sale price was fair - which is ‘a question of fact’ for the STB to decide, and not a question of law for the court to deliberate on.

Justice Choo said, if the minorities feel the sales committee had deliberately or negligently not pursued the Vineyard offer, they can pursue a civil claim for the purported financial loss.

He also ruled that the minorities had failed to prove there was a lack of good faith in the way the sales proceeds were to be distributed amongst the various owners. The minorities argued the apportionment method used was unfair because it resulted in penthouse owners getting about 16 per cent less on a per- square-metre basis, compared to non-penthouse owners.

Justice Choo said there can’t be a lack of good faith in the selection of the apportionment method just because it was the only one considered or it led to some owners getting more than others. He noted that the STB had considered the evidence of several experts and it seemed no one method would satisfy everyone.

He added that, even if the STB had deemed the chosen method inappropriate, it would be an error of fact and not an error of law.

He also dismissed the minorities’ arguments that the en bloc sale was unconstitutional, and that the sale agreement had lapsed by the time the STB approved the sale.

Justice Choo also noted the ‘intrigue’ that has surrounded the en bloc sale of Horizon Towers. There have been numerous accusations on the conduct of the various parties involved - ranging from whether the sales committee should have worked harder to get a better sale price, to whether the minorities were only against the sale because the price was too low.

‘The STB was not bound to examine the rights and preferences of each individual subsidiary proprietor and it was not the forum to inquire into the conduct of individual members of the SC (sales committee), or even the SC as a whole,’ Justice Choo said. ‘If the STB were to embark on the kind of inquiry and make the findings the appellants say it ought to have done, the STB would never get its job done within the time limited.’

Source : Business Times - 18 Jul 2008

High Court ruling clears the way for $500m collective sale that was inked 1-1/2 years ago

THE drawn-out battle over the $500 million collective sale of Horizon Towers has moved one step closer to a conclusion after the High Court threw out an appeal by objecting owners.

Yesterday’s ruling means the sale of the Leonie Hill estate, first inked in January last year, can proceed - unless the objectors pursue one final possible avenue of appeal to the Court of Appeal. Some are considering this option.

The case marks a win for Mr K. Shanmugam in his final appearance as a litigator on April 30 before becoming Law Minister. He appeared before High Court Justice Choo Han Teck on behalf of the buyers, Hotel Properties (HPL) and its two partners.

HPL executive director Christopher Lim said: ‘We hope to move forward with it after 1-1/2 years of signing the agreement.’

They had inked a deal to buy the 99-year leasehold estate for less than $850 per sq ft of gross floor area, before prices shot up dramatically in last year’s bull market.

Some sellers were unhappy with what they regarded as a low price, particularly after a neighbouring development sold for more than double that price. Others, including the objectors, never wanted to sell from day one.

The objectors had argued, for example, that the sales committee had acted in bad faith in the way it handled an alternative offer of $510 million from another firm as well as the way it distributed the sale proceeds.

Justice Choo, in his judgment, dismissed the appeal saying there was no error of law to justify overturning a decision of the Strata Titles Board (STB) to allow the sale to go ahead. The STB had found that the sales committee had made a ‘judgment call’ to proceed with the offer.

The objectors did not prove the committee had acted in bad faith, he said. This was an issue of fact, not law, so it was within the purview of the STB, he said.

‘From the submissions and supporting documents, it appears that there may have been intrigue in the course of the en bloc sale from the day the SC (sales committee) was created to the proceedings before the STB,’ said Justice Choo.

‘It is questionable, however, whether the STB was the forum to resolve all questions arising from secret manoeuvres of the different factions among the subsidiary proprietors.’

The STB is not a court but a statutory tribunal, he added.

The Horizon Towers case was the first collective sale where the majority owners were slapped with a lawsuit for alleged breach of contract.

In late June, Justice Choo also dismissed an appeal by objecting owners of another large collective sale site - Gillman Heights. CapitaLand is the lead buyer of the $548 million site in Alexandra Road.

Source : Straits Times - 18 Jul 2008

Judge sets outrole of Strata Titles Board and whichof its findings can be challenged

IT IS a situation that may apply to some en bloc deals: The selling price could have been higher if the sales committee or its agent had tried harder to secure a better deal.

In the case of Horizon Towers, a potential buyer was even standing by with a higher price than the one that was eventually chosen.

But that cannot be reason enough to disallow an en bloc sale, according to Justice Choo Han Teck as he brought a protracted saga to an end.

In a landmark decision, the judge set out the role of the Strata Titles Board as well as which of its findings can be challenged, and which ones cannot.

When it comes to price, as long as the STB finds that a purchase price is fair, which would make it a “finding of fact” in legal parlance, it would have fulfilled its duty and is entitled to approve an en bloc sale.

Minority residents at Horizon Towers who argued that the $500-million sale to Horizon Partners Private Limited (HPPL) was done in bad faith - as evidenced by Vineyard Holdings’ higher offer of $510 million :- had failed to prove their case.

Justice Choo found “no error of law” and said the High Court “cannot and will not” interfere in findings of fact made by the STB.

“Whether it was the right time to sell, or that the sales committee ought to have made a little more effort to persuade the purchaser to offer more, are not crucial matters that oblige the STB to withhold approval.

“Nor would it be the concern of the STB that some, or all, of the appellants might have consented had the Vineyard offer been made known to all of them,” he said.

If the STB were to make such enquiries, it “would never get its job done within the time limited”.

The minority owners had appealed to reverse a Dec 7 decision by STB to approve the sale. But if residents believe that the sales committee had “deliberately or negligently” not pursued a higher offer, resulting in a financial loss to them, the recourse is through litigation in the courts, said Justice Choo.

“It is necessary for this point to be made, not to encourage further litigation, but to emphasise that a subsidiary proprietor who does not wish to sell his unit can only object to the en bloc sale on such grounds as the relevant statutes allow,” he said.

And, the statutes do not allow the STB to deal with “allegations and counter-allegations against parties” as its tribunal hearing does not give such parties “the full recourse of trial to defend themselves”.

He concluded that all sides were treated fairly in this deal as “fairness requires only that the rules and regulations of each en bloc deal to be properly and duly administered”.

Source : Today - 18 Jul 2008

They are seeking to convince STB to bring forward a key hearing date on collective sale

ANGRY owners at Tampines Court have opened up two fronts in their battle to save their estate’s $405 million collective sale.

One bid saw the sales committee lodge a High Court appeal to overturn a ruling by the Strata Titles Board (STB), while some owners made a direct plea to National Development Minister Mah Bow Tan.

The 10 or so owners went to a weekly Meet-The-People session on Monday night to voice their concerns to Mr Mah, the MP for the Tampines ward.

The Straits Times understands that Mr Mah, in his capacity as a local MP, has agreed to appeal to the STB on the owners’ behalf to bring forward a crucial hearing date.

The timing of that hearing - scheduled to let some sale objectors have a say - is also at the centre of the sales committee’s legal appeal.

The committee wants the High Court to overturn an STB ruling on when the hearing should be held.

The board said on Friday the hearing should go ahead as planned on Aug 7.

The date, however, comes after the sales agreement legally expires on July 25. If the hearing is held on Aug 7, the sale cannot be done as scheduled on July 25, effectively killing it.

Two sales committee members said in an affidavit filed on Monday that the STB failed to take into account that any hearing after July 25 ‘will be academic’, as the sales agreement would expire and the buyers were unlikely to extend the deadline.

The buyers - Far East Organization and Frasers Centrepoint - have already said they ‘are ready to complete the deal’, but ‘the onus was upon the vendors to secure the STB order within the agreed timeframe’.

The estate’s tight deadline stemmed from a sales committee decision to delay lodging its application for STB approval of the sale until Jan 7 this year although all the necessary conditions had already been met as early as July 25 last year.

It told the board that it wanted to await the outcome of legal challenges over the contentious Gillman Heights sale, as this could have a bearing on the fate of the Tampines Court deal.

As it turned out, the High Court last month cleared the way for the Gillman Heights deal and, in so doing, removed any potential obstacle to the Tampines Court sale as well.

Some owners told The Straits Times that they felt this deadline mess was the STB’s fault.

Madam Irene Cheang said it was the board’s duty to see the sale through within the six-month guideline, and that it had been inefficient in processing the sale.

STB registrar Bryan Chew stood by the board’s decision on the date of the hearing.

The time needed to get a sale approved depends on a variety of factors, including the number of objectors, the size of the estate and the complexity of the case, he said.

‘This is not the first time that we’ve taken more than six months,’ he added.

The STB said it had pencilled in the Aug 7 date after listening to sale objectors from June 16 to 18 and ‘taking into account the availability of all parties and the board’.

It has become a nerve-wracking time for the owners, as many have committed themselves to other properties.

Owner K. Balasubramaniam, 55, said residents could lose about $200,000 should the sale fail. He said the average open market value of a typical unit was $500,000 - while each owner would get about $700,000 should the sale go through.

Lawyers for the majority and minority owners declined to comment.

The Straits Times understands that there will be a High Court hearing this afternoon. It will be closed to the public.

Source : Straits Times - 16 Jul 2008