‘Drafting flaw’ behind saga

Source : Today - 10 Feb 2009

IN DISMISSING yesterday the last-ditch appeal by 10 minority owners against the collective sale of Gillman Heights, Singapore’s highest court has set down the clear criteria, going forward, for all other privatised HUDC estates that wish to go en bloc.

In a case that hinged on the completion date of the estate, the Court of Appeal ruled that the age of HUDC estates should be pegged to the date when they became “fit for occupation” instead of when they were awarded the temporary occupation permit (TOP) or certificate of statutory completion (CSC).

Chief Justice Chan Sek Keong, who delivered the judgment, told a packed courtroom that Parliament had indeed intended the law on collective sales to apply to HUDC estates when it was enacted in 1999. But the use of an estate’s TOP or CSC as a point of reference for its age was a “drafting flaw”, he said.

This created an “omission in respect of privatised HUDC estates” because HUDC estates, which were built as a form of public housing, are only awarded their TOPs or CSCs when privatisation works have been completed.

There are 18 HUDC estates in Singapore.

The minority owners’ two-year fight to scupper Ankerite’s $548-million purchase at every turn - through contests before the Strata Titles Board and the High Court previously - had centred around the fact that the 607-unit, 99-year leasehold estate had only received its CSC in 2002, which meant that any collective sale needed 90 per cent approval to be legal.

The law states that 80 per cent is needed for developments more than 10 years old, and 90 per cent if it is younger.

In Gillman Heights’ case, only 87.54 per cent of owners had agreed to the sale, but yesterday’s ruling means the estate has been judged to be more than 22 years old because it was completed in December 1994.

The Appellate Court - comprising CJ Chan, Justice Andrew Phang and Justice V K Rajah - also ordered the 10 appellants to pay the costs of yesterday’s appeal and half of the costs in earlier proceedings after Senior Counsel Michael Hwang, who represented the minority owners, argued that it was “nobody’s fault” that there was drafting flaw in the legislation.

Some minority owners who spoke to Today said they were “satisfied” with the decision.

One of them, who declined to be named, said the entire appeal was about “righting the wrong” - which eventually proved to be the drafting flaw.

“But now that they have admitted that there was a drafting flaw, why are we penalised for it?” he asked, referring to the costs - which is understood to be in the region of $300,000 in total - they would have to bear.