Pines' case rests on whether club owner has right to amend the club's rules, says court

Singapore

WHETHER some 162 unhappy members of The Pines, a country club, can successfully claim damages from the club owner will depend on whether the court is persuaded that the club owner, Exklusiv Resorts, has a right to amend the rules as it sees fit - including changing the location of the clubhouse, Justice Chua Lee Ming said on Tuesday.

The spat leading to this representative action by the members began in 2013, when the club closed for renovations. In March that year, Exklusiv sold the land parcel to property developer Oxley. Two hotels, Novotel Singapore and The Mercure Singapore, opened on the plot in late 2017.

A satellite clubhouse on-site is open to members of The Pines, but is smaller than what many had expected from a 2012 dialogue session with management.

The assessor of damages, Govinda Singh from Colliers, under the "breach of contract" course of action, had set out damages from S$81,700 to S$117,000. Under "tort of deceit", he had set out damages from S$81,700 to S$117,000. Under "tort of negligence", he had set out damages from S$37,400 to S$99,500.

But Justice Chua said that a failure to prove a breach of contract would render it futile for the plaintiffs to argue on the grounds of tort of deceit as well.

Under "tort of deceit", the plaintiffs had argued that if the club owner had communicated the "true state of affairs" to members early on, they could have taken some action - either by claiming the value of the remaining unused term of their membership, or applying for an injunction to halt the sale of the site to Oxley in 2013.

During the nearly eight-hour session on the opening day of the case, lawyers of Rajah & Tann, Vikram Nair and Foo Xian Fong, acting for Peter Kwee and his company Exklusiv, put it to the court that membership application forms state that the club's Constitution and bylaws may be amended "from time to time".

Mr Nair argued that just as a company is not obliged to update its customers when it amends its Constitution to change its address, a club owner is similarly not obligated to get the consent of its members when it changes its venue.

Furthermore, the Constitution also states that the proprietor reserves the right, in its sole discretion, to vary the facilities from time to time.

Last month, The Pines' management told members that the club is ready to resume operations by year-end - in the upgraded premises of the Laguna National Golf Resort Club.

The defendants' lawyers also attempted to show that the defendants had, in 2012, offered what has since been presented to members, if not more: facilities such as a gym, ballroom, rooftop swimming pool, tennis court and a multi-cuisine restaurant.

In fact, Exklusiv had made clear from the start that a scaled-down clubhouse was always in the plan, they said. Even in the 2012 dialogue session, the proposal was always for club members to share the facilities with hotel guests; it was never "exclusive" to begin with.

One gripe that the plaintiffs continue to have is the fact that sale of the plot of land was never formally communicated with members. But the defendants' lawyers said that it was reported in the media and visible from the hoarding at the construction site, which showed no intent to conceal the sale.

The plaintiffs were represented by counsel Lau Kah Hee and Muhammad Fikri Yeong of BC Lim & Lau LLC.

On Wednesday and Thursday, The Pines member Selina Newton and Mr Singh, a valuer from Colliers, will take the stand. The hearings will continue again from Nov 30 to Dec 4. Mr Kwee will likely take the stand only early next week.