Horizon Towers appeal session

Yesterday’s penultimate Horizon Towers appeal session was a decidedly tamer affair.

Still, Senior Counsel K Shanmugam of Allen & Gledhill (A&G), acting for the Hotel Properties consortium, was not spared heckling by majority owners seated in the public gallery when he sought permission from the court to address submissions made by the minority owners the day before.

Senior Counsel Michael Hwang, representing one of the minorities, opposed the move vigorously, arguing that only the applicants for the appeal - that is the majority owners, represented by the sales committee and their lawyers, Tan Rajah & Cheah - be allowed to reply to earlier submissions.

Judge Choo Han Teck proposed a middle ground: he will accept a written reply from Mr Shanmugam, but not an oral rebuttal, after the session.

Overall, the session was relatively calm, with Senior Counsel Chelva Rajah of Tan Rajah & Cheah, representing the majority owners, replying to submissions made by the minorities.

Mr Rajah rebutted the minorities’ claims that three missing pages could render an entire collective sale application null and void. At the heart of this appeal is whether the Strata Titles Board (STB) was right, in August, to throw out Horizon Towers’ application because it was missing three signature pages.

‘There has to be some proportion to this,’ Mr Rajah exhorted. He said that if the missing pages were substantial, then he would agree that it could be considered invalid. But, in the case of Horizon Towers, the three signature pages of the collective sale agreement - appended to the application - were only accidentally left out.

‘And it’s not really three pages, because one of the pages was there - but it was a copy of the faxed version, rather than the original - so it’s actually just two missing pages in question,’ Mr Rajah added. ‘Nothing can be more minor than this.’

He also cited the case of Dragon Court’s en bloc sale in 2003. The case went to court on a similar issue of missing disclosure. In that case, it was not disclosed that some of the owners were linked to the buyer. But the High Court allowed that application to stand, because the non-disclosure was subsequently made to the STB during the hearing.

Leaning on that judgment, Mr Rajah pointed out that Horizon Towers’ majority sellers had done the same - they had brought the missing pages to the attention of the STB during the August hearing.

He also argued against the minorities’ claims that the board - which heard the Horizon Towers’ application - had no power to amend the defective application. The minorities said the board was not properly constituted because the application, which leads to the constitution of the board, was defective.

But Mr Rajah said that regulations - and the Parliament’s recent amendments to en bloc rules - clearly show that the board was properly constituted, upon receiving the application, and had the power to cure any defects.

He concluded by asking the court to consider the facts of this case and decide if an entire application could be rendered invalid because of two missing pages.

Justice Choo adjourned the hearing to next week, at a date to be set later, when he will deliver his judgment on the appeal.

Source : Business Times - 4 Oct 2007