Alasan Penghakiman GS 22-87-2010
DALAM MAHKAMAH TINGGI MALAYA DI MELAKA
DALAM NEGERI MELAKA, MALAYSIA
GUAMAN SIVIL NO: 22-87-2010
5
DI ANTARA
10
1.
TAN CHIN YONG
2.
SIAH LI MEI
3.
KLAUS JURGEN SCHOLZ
4.
WONG WAI SUIN
5.
LALITHA PANJASERAM
6.
PRESTAHARTA SDN. BHD.
(No. Syarikat: 704441-P)
… PLAINTIF-PLAINTIF
15
DAN
20
25
1.
PERAHAMBI SELLAPPA THIAGARAJAN
2.
SEOW PIANG JOON
3.
SOH HO SIONG
4.
HOSAIN BIN BAHARI
5.
FAN KAW TAH @ FUN FOO TSING
6.
CHUA SOCK LAN
7.
WONG HON CHOW
8.
LIM CHIR CHING
9.
IRIS LEE WAN
… DEFENDAN- DEFENDAN
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Alasan Penghakiman GS 22-87-2010
GROUNDS OF JUDGMENT
[1]
There are two identical applications in Enclosures 18 and 36 under
Order 18 rule 19 (1) (a) and/or (b) and/or (c) and/or (d) Rules of the High
5
Court 1980 (Rules of Court 2012) and under the inherent jurisdiction of
the Courts filed by the Seventh, Second, Third, Fifth, Sixth, Eighth and
Ninth Defendants respectively to strike out the Plaintiff’s summon and
Statement of Claim dated 17.6.2010.
10
[2]
It is agreed that the decision in Enclosure 18 will bind Enclosure 36.
[3]
Both the Defendants and the Plaintiffs had filed their respective
affidavits. There are 18 affidavits all together for enclosures 18 and 36.
The affidavits will show the factual matrix of each party claiming as the
rightful Joint Management Committee (“JMC”) of Riviera Bay Resort
15
Condominium (“RBRC”).
[4]
The Plaintiffs’ Claim against the Defendants is for, inter alia, the
following reliefs:-
(a) Declarations that the Annual General Meeting held on
20
30.5.2010 by the 1st to 6th Defendants’ is invalid and that the
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Alasan Penghakiman GS 22-87-2010
election of JMC members and resolutions passed at the said
AGM are invalid;
(b) Injunctions restraining the Defendants’ from receiving and/or
issuing payments and representing the JMC of RBRC; and
5
(c) Losses and damages suffered by the JMC of RBRC.
[5]
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The Plaintiffs’ Claim is premised solely on the basis that the
Plaintiffs led by 1st Plaintiff, constitute the rightful JMC members of RBRC.
[6]
The Defendants contended that the Plaintiffs’ premise on this claim
is completely misconceived in fact and in law.
15
[7]
The grounds of striking out in the Defendants application dated
29.10.2010 (Encl. 36) are as stated as follows-
a)
Plaintiffs have no locus standi to bring this action;
b)
Plaintiffs’ writ of summon and statement of claim did not
disclose a reasonable cause of action against the Defendants;
20
c)
There are no issues to be tried; and
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Alasan Penghakiman GS 22-87-2010
d)
Plaintiffs’ statement of claim is frivolous, vexatious and abuse
of process of Court.
[8]
5
The issue here is whether the Plaintiffs’ claim is on the face of it
"obviously unsustainable".
[9]
Enclosures 18 and 36 were heard and adjourned on the 31.05.2013.
Since the letters issued by the Commissioner of Building (COB) become
the center of argument, I have directed parties to submit on the effect of
10
those letters issued by the COB on their positions. I have also directed
parties to submit whether the AGM held on 30.05.2010 by the 1st to 6th
Defendants’ and that the election of JMC members and resolutions
passed at the said AGM are valid.
15
[10] The issues are very important because in my opinion, the
Defendants’ case is solely depend on the COB letters that recognized
Perahambi Sellapa Thiagarajan’s (D1) as the rightful chairman of the JMC
of RBRC. On the other hand the Plaintiffs had questioned the decisions
of the COB in those letters as being inconsistent and give rise to an
20
estoppel.
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Alasan Penghakiman GS 22-87-2010
[11] Before I could deal with these enclosures, I was informed through
the submission of the Plaintiffs that by a letter dated 04.06.2013; the COB
had informed RBRC that Nurr Property Consultant has been appointed
as managing agent for RBRC with effect from 17.06.2013. (Refer to
5
Exhibit TCY-A ,Affidavit in Reply No. 5 of the Plaintiffs affirmed by Tan
Chin Yong on 20.06.2013 and which is also enclosed in the submission
as “Appendix A”).
[12] The letter dated 04.06.2013 reads as follows-10
“2.
Sukacita dimaklumkan bahawa pihak pentadbiran ini
telah melantik Nurr Property Consultant sebagai ejen
pengurusan mulai17 Jun 2013 bagi pemajuan di atas
sebagaimana yang termaktub di dalam Seksyen 25 Akta 663.
15
3.
Sehubungan
dengan
ini,
badan
dikehendaki
menandatangani satu perjanjian pengurusan dengan ejen
pengurusan yang dilantik oleh pihak kami.
20
4.
Pihak tuan juga perlu menyediakan akaun teraudit
sehingga tarikh penyerahan pengurusan kepada ejen
pengurusan (cut-off-date) dan kemukakan satu salinan akaun
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Alasan Penghakiman GS 22-87-2010
berkenaan kepada ejen pengurusan dan pihak pentadbiran
ini.”
[13] The letter to Nurr Property Consultant reads as follows5
“2.
Untuk makluman tuan, Pesuruhjaya Bangunan, Majlis
Bandaraya Melaka Bersejarah telah bersetuju melantik pihak
tuan, Nurr Property Consultant sebagai ejen pengurusan bagi
Kondominium Riviera Bay selaras dengan peruntukan
10
Seksyen 25(1), Akta Bangunan Dan Harta Bersama
(Penyenggaraan Dan Pengurusan) 2007 [Akta 663].
3.
Berikut adalah syarat dan peraturan pelantikan sebagai
ajen pengurusan:
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i.
Tempoh lantikan adalah bulan ke bulan mulai 17
Jun 2012 dan boleh ditamatkan lebih awal atau
dilanjutkan
mengikut
kepada
prestasi
ejen
pengurusan.
20
ii.
Mengemukakan Bon berjumlah RM13,600.00
atas nama Majlis Bandaraya Melaka Bersejarah
dalam tempoh dua (2) bulan dari tarikh perlantikan
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Alasan Penghakiman GS 22-87-2010
ini dan salinan insuran “Professional Indemnity”
dengan
jumlah
perlindungan
tidak
kurang
daripada RM500,000.00.
iii.
5
Kehendaki
menyediakan
satu
perjanjian
pengurusan di antara pihak ejen pengurusan
dengan pemaju.
iv.
Jumlah caj penyenggaraan yang dikenakan ialah
RM0.15
10
Skp sebulan dan jumlah "sinking fund" ialah
RM0.015skp
10%
dari
caj
penyenggaraan
sebulan.
v.
15
Fi pengurusan yang dikenakan ialah sebanyak
RM6,800.00 sebulan.
4.
Pihak tuan juga diingatkan dalam tempoh satu bulan
dari
tarikh
perlantikannya,
perlu
mengemukakan
kepada Pesuruhjaya suatu penyata yang menunjukkan
20
setakat pada tarikh perlantikannya —
a)
wang
yang
7
ada
dalam
kredit
Akaun
Alasan Penghakiman GS 22-87-2010
Penyenggaraan
Bangunan
atau
Kumpulan
Wang Penyenggaraan Bangunan;
b)
amaun yang kena dibayar dan terhutang oleh
pembeli yang kena dibayar kepada Akaun
5
Penyenggaraan
Bangunan
atau
Kumpulan
Wang Penyenggaraan Bangunan;
c)
apa-apa pendapatan yang didapati daripada
harta bersama bangunan yang kena dibayar
10
kepada Akaun Penyenggaraan Bangunan atau
Kumpulan Wang Penyenggaraan Bangunan.
15
d)
apa-apa
jumlah
wang
yang
terakru
bagi
penyenggaraan dan pengurusan bangunan,
yang
dibenarkan
Penyenggaraan
dibayar
Bangunan
daripada
atau
Akaun
Kumpulan
Wang Penyenggaraan Bangunan dan yang
20
masih belum dibayar.
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Alasan Penghakiman GS 22-87-2010
5.
Selain
daripada itu, syarikat
mengemukakan
penyata
Penyenggaraan
Bangunan
tuan juga
diminta
akaun Kumpulan Wang
dan
Kumpulan
Wang
Penjelas (sinking fund) kepada Pesuruhjaya setiap
5
enam bulan dari tarikh perlantikan.”
[14] Section 25(1) of the Building and Common Property (Maintenance
And Management) Act 2007 [Act 633] provides-
“(1) Where(a) a situation under subsection 6(7) occurs; or
(b) the commissioner is satisfied, after due inquiry has been
10
carried out by him or a person appointed by him, that the
maintenance and management of a building is not carried out
satisfactorily by the developer or the Body, as the case may
be, the Commissioner may appoint, by a written notification, one
or more persons to act as managing agent to maintain and
15
manage the building for a period to be specified by the
Commissioner.” (Emphasis added)
[15] Plaintiffs submitted that the appointment was made as a result of
the failure on the part of Joint Management Body of Riviera Bay
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Alasan Penghakiman GS 22-87-2010
Condominium (“JMB”) to carry out their duty under Act 663 and the COB
has the right to appoint management agent under section 25 of the Act to
maintain and manage the building.
5
[16] This is the latest development concerning the RBRC after so many
years. The appointment to my mind has ended the dispute between the
Plaintiffs and the Defendants on the issue of which Committee is
representing RBRC in receiving and/or issuing payments for RBRC and
maintaining and managing the building. This appointment means that the
10
issue before this Court has become academic.
[17] Section 28(1) and (2) of Act 663provides:“(1) Where a managing agent has been appointed under section
25, the managing agent shall have control over the moneys in the
15
Building Maintenance Account or Building Maintenance Fund.
(2) Subject to the general direction of the Commissioner, the
managing agent appointed shall perform the duties and
exercise the powers with regard to the maintenance and
20
management of the building as if he was acting as the
developer or the Body.” (Emphasis added)
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Alasan Penghakiman GS 22-87-2010
[18] Based on the provisions of law, the managing agent appointed will
assume the duty and power of the JMB in respect of maintenance and
management of the building. “Building” is defined under section 2 of the
Act 663 as “means any object erected on the development area, and
5
includes the common property of the building”. In my opinion it covers the
building of RBRC. Thus, the managing agent appointed to maintain and
manage the building, will be responsible to collect and manage the
maintenance funds from the unit owners of RBRC.
10
[19] Section 8 of Act 633 provides the Duties and powers of the Joint
Management Body (1) The duties of the Body include the following:
(a) to properly maintain the common property and keep it in a
state of good and serviceable repair;
15
(b) to determine and impose charges that are necessary for
the repair and proper maintenance of the common property;
(c) to insure and keep insured the building to the replacement
value of the building against fire and such other risks as may
be determined by the Body;
20
11
Alasan Penghakiman GS 22-87-2010
(d) to apply insurance moneys received by the Body in respect
of damage to the building for the rebuilding and reinstatement
of that building;
5
(e) to comply with any notices or orders given or made by the
local authority or any competent public authority requiring the
abatement of any nuisance on the common property, or
ordering repairs or other work to be done in respect of the
common property or other improvements to the property;
10
(f )to prepare and maintain a register of all purchasers of the
building;
(g )to ensure that the Building Maintenance Fund is audited
15
and to provide audited financial statements for the information
to the purchasers;
(h )to enforce house rules for the proper maintenance and
management of the building; and
20
(i) to do such other things as may be expedient or necessary
for the proper maintenance and management of the building.
12
Alasan Penghakiman GS 22-87-2010
(2) The powers of the Body shall include the following:
(a)to collect from purchasers maintenance and management
charges in proportion to the allocated share units of their
respective parcels;
5
(b)to authorize expenditure for the carrying out of the
maintenance and management of the common property;
(c) to recover from any purchaser any sum expended by the
Body in respect of that parcel in complying with any such
notices or orders as are referred to under paragraph (1)(e);
10
(d)to purchase, hire or otherwise acquire movable or
immovable property for use by the purchasers in connection
with their enjoyment of the common property;
(e)to arrange and secure the services of any person or agent
to undertake the maintenance and management of the
15
common property of the building;
(f)to make house rules for the proper maintenance and
management of the building; and
(g)to do all things reasonably necessary for the performance
of its duties under this Act.
13
Alasan Penghakiman GS 22-87-2010
(3) The Body shall be deemed(a)for the purposes of effecting any insurance under
paragraph (1)(c), to have an insurable interest in the building
5
equal to its replacement value or any value as determined by
the Body; and
(b)for the purposes of effecting any insurance under
paragraph (1)(d), to have an insurable interest in the subject
matter of the insurance.
10
(4) Where the Body incurs any expenditure or performs any repair,
work or act that it is required or authorized by or under this Part to
do or consequent upon the service on the Body of any notice or
order by any local authority or under any other written law, and the
15
expenditure or the repairs, work or act were or was rendered
necessary by reason of any wilful or negligent act or omission on
the part of, or breach of any provision of its by-laws by, any
purchaser or his tenant, lessee, licensee or invitee, the amount of
that expenditure expended by the Body in performing the repairs,
20
work or act shall be recoverable by the Body from that purchaser.
14
Alasan Penghakiman GS 22-87-2010
(5) The generality of this section shall not be prejudiced by any
other provision in this Part conferring a power or imposing a duty
on the Body.
5
[20] Section 11 of the Act 633 provides for Joint Management
Committee1) The Body shall elect a Joint Management Committee who,
subject to any restriction imposed or direction given by the Body at
a general meeting, may perform the Body's duties and conduct the
10
Body's business on its behalf, and may for that purpose exercise
any of the Body's powers.
(2) The Committee shall consist of the developer and not less than
five and not more than twelve purchasers, who shall be elected at
the annual general meeting and the Body and shall hold office for
15
a period not exceeding three years or until the dissolution of the
Body in accordance with section 15, whichever is earlier.
(3) From among the members of the Committee elected under
subsection (2), there shall be elected a chairman, a secretary and
a treasurer.
20
(4) The provisions of the First Schedule shall apply to the
Committee.
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Alasan Penghakiman GS 22-87-2010
[21] By virtue of the appointment by COB, the appointed managing agent
has taken over the role of the JMC to maintain and manage the building
of RBRC. Therefore, in this case the JMC is relieved from performing the
5
Body's duties and conducting the Body's business on its behalf.
[22] Dealing with the present dispute, it is not disputed that the COB
letters which the Defendants are relying contents the following
recognitions10
i.
Letter dated 16.03.2009 (“Appendix B”) contains the
following:“Sehubungan ini pihak COB telah dimaklumkan dan
menerima senarai nama ahli jawatankuasa seperti berikut
bagit ahun 2009
15
20
Pengerusi
:
PerahambiSellappaThiagarajan
Setiausaha
:
Seow Pang Joon
Bendahari
:
Dennis Tan Chin Yong
Ajk
:
Wong WaiSuin
Siah Li Mei
Fun Foo Tsing
HosainBahari
16
Alasan Penghakiman GS 22-87-2010
Soh Ho Siong”
(See Exhibit W-4 Enclosure 18A at page 28 Enclosure 36A)
5
ii.
Letter dated 12.01.2010 (“Appendix C”) where COB states the
following-:
“UntukmaklumannamaahlijawatankuasaBadanPengurusanB
ersama Riviera Bay Condominium yang telahdifailkan di Unit
PesuruhjayaBangunanbagikawasanMajlisBandaraya Melaka
10
15
Bersejarahadalahsepertiberikut:
Pengerusi
:
PerahambiSellappaThiagarajan
Setiausaha
:
Seow Pang Joon
Bendahari
:
Dennis Tan Chin Yong
Ajk
:
Wong WaiSuin
Siah Li Mei
Fun Foo Tsing
HosainBahari
Soh Ho Siong
20
Klaus JurgenScholz
Chua Sock Lan”
17
Alasan Penghakiman GS 22-87-2010
(See Exhibit W-5A Enclosure 18A and at page 31Enclosure
36A)
iii.
5
Letter dated 29.01.2010 (“Appendix D”) where COB states the
following “
“Dengan ini diberitahu bahawa En.Perahambi Sellapa
Thigarajan adalah Pengerusi Jawatankuasa Bersama dan
mewakili Badan Pengurusan Bersama (JMB) dalam
semua urusan rasmi. Pihak Pentadbiran ini akan berurusan
10
dengan
En.
Perahambi
Sellapa
Thiagarajan
sebagai
Pengerusi dan ahli Jawatankuasa beliau di dalam segala hal
rasmi
yang
berkaitan
dengan
pengurusan
dan
penyenggaraan harta bersama di bawah Akta 663.”
(See Exhibit W-5C Enclosure 8A and at page 37Enclosure
15
36A)
[23] After the issuance of letter dated 29.1.2010, Plaintiffs and
Defendants together with COB attended a meeting chaired by the State
Legal Adviser trying to resolve the dispute. As a result of the meeting the
20
COB and the State Legal Adviser had issued two lettersas follows--
18
Alasan Penghakiman GS 22-87-2010
iv.
Letter dated 17.05.2010 (“Appendix E”) where COB states the
following
“2.Pihakpentadbiraninitelahdifahamkanbahawa,
perkaramengenaiMesyuaratAgungLuarBiasa (EGM) yang
telahdiadakanpada
5
03.04.2010
KlangtelahdibawakehadapanMahkamahTinggi
di
Melaka
untukmendapatkansatukeputusanmengenaistatusnyahin
ggakinimasihbelumadaapalagikeputusan
yang
dibuatolehMahkamahTinggi Melaka.
10
3.Sehubungandenganitu,
pihakpentadbiraninitidakberhakuntukmemberikanapaapakenyataanmengenaiperkaratersebutsehinggaMahka
mahmembuatkeputusankeatasperkaraini.”
15
(See Exhibit TCY-3 Enclosure 47 of Affidavit in reply No. 2
affirmed by Tan Chin Yong on 26.04.2011 for Enclosure 18
dan 36)
20
v.
Letter from State Legal Adviser dated 31.5.2010 (“Appendix
F”) where it states the following-
19
Alasan Penghakiman GS 22-87-2010
“2. Perkara di atas (isu pertikaian Badan Pengurusan
Bersama dan Isu Kegunaan Harta Bersama RBC) telah
dibincangkan
di
dalam
mesyuarat
Majlis
Mesyuarat
Kewangan Negeri (MMKN) Melaka pada 19.5.2010 dan
26.5.2010 dan MMKN memutuskan untuk mengambil
5
pendirian berkecuali kerana pihak-pihak yang berikut telah
pun memfailkan beberapa tindakan/kes di Mahkamah Tinggi
Melaka mengenai pertikaian tersebut dan kini difahamkan
menunggu untuk diputuskan oleh Mahkamah Tinggi Melaka.
10
3.Memandangkan
pertikaian
tersebut
ini
di
hadapan
Mahkamah Tinggi Melaka, MMKN perlu mengambil pendirian
berkecuali bagi mengelakkan isu sub judice.
4.Justeru, sila pihak tuan maklumkan Pejabat ini keputusan
15
Mahkamah selepas Mahkamah Tinggi Melaka membuat
keputusan di dalam kes-kes yang berkenaan” .
(See Exhibit “TCY-1” Enclosure 27)
20
vi.
Letter dated 24.05.2011 (“Appendix G”) ”) where COB states
the following“
20
Alasan Penghakiman GS 22-87-2010
2. Telah memutuskan bersetuju untuk mengiktiraf Encik
Perahambi Sellapa Thiagarajan sebagai JMC yang sah
mewakili penduduk Riviera Bay Condominium merujuk
kepada sijil JMC bertarikh 29hb Januari 2010 oleh COB.
5
3.Sehubungan dengan itu, silalah pihak tuan meneruskan
tanggungjawab
selaku
JMC
sehinggalah
apa-apa
keputusan dibuat oleh pihak Mahkamah pada 07.06.2011.”
(See
10
Exhibit
WHC-1
Additional
Affidavit
of
Seventh
Defendants affirmed on 07.06.2011 and exhibit CSL-1
Additional Affidavit of Second, Third, Fifth, Sixth, Eighth and
Ninth Defendants affirmed on 07.06.2011)
15
vii.
Letter of COB dated 10.1.2013 (“Appendix H”) where COB
states the following:
“Adalah dimaklumkan bahawa Mesyuarat Agung luar biasa
(EGM)
yang dijalankan pada 3 April 2010 pukul 2.00
petang di Hotel Prescott Klang
20
adalah tidak sah kerana
tidak mengikut peraturan yang ditetapkan di dalam seksyen
10 Akta Bangunan Dan Harta Bersama (Penyenggaraan Dan
Pengurusan) 2007…”
21
Alasan Penghakiman GS 22-87-2010
(page 7 Affidavit in reply (3) of Seventh Defendant affirmed on
19.03.2013)
5
[24] From the above said letters, the Plaintiffs contended that the COB’s
decisions are inconsistent. The letter dated .31.5.2010 at item (v), the
COB and the State Authority took an independent stands while waiting for
the decision of Court over the dispute between the Plaintiffs and the
Defendants and required the decisions of the Court to be conveyed to
10
them.
[25] The Plaintiffs were satisfied with the COB’s and the State Authority’s
stands in leaving the disputes to be resolved by the Court. However the
decision was not followed when the COB by letter dated 24.5.2011 at item
15
(vi) still recognizing Defendants as the rightful JMC, pending the decision
of the Court.
[26] It is my opinion, the reason why COB and the States Authority were
not committed in resolving the disputes between the Plaintiffs and the
20
Defendants is because the disputes are before the Court and any decision
made would be sub judice.
22
Alasan Penghakiman GS 22-87-2010
[27] Section 41 of the Act 633 provides-
Any person or body aggrieved by any act or decision of the
Commissioner under this Act may, within fourteen days after
5
having been notified of the action or decision, appeal against
that action or decision to the State Authority; and the decision
of the State Authority shall be final and shall not be questioned
in any court.
10
[28] In this situation, it is my opinion that by letter dated 31.5.2010 at item
(v) by the State Legal Adviser on behalf of the State Authority is final and
conclusive. The Defendants were correct in saying that however manner
the contents of the letter was stated, it reflects the decision of the State
Authority made under section 41 of the Act.
15
[29] Therefore, the decision of the COB in recognizing the Defendants
as the rightful JMC must be respected and given effect. It is more so when
the Plaintiffs had withdrawn or discontinued their Judicial Review
Application No: 16-11-07/2011.The Plaintiffs’ had challenged the Decision
20
of the State Authority in Melaka High Court Judicial Review Application
No: 16-11-07/2011 (“Judicial Review Application”). On 18.1.2013 the
Plaintiffs’ withdrew the Judicial Review Application before me. The
23
Alasan Penghakiman GS 22-87-2010
Decision of the State Authority is therefore valid and binding; Appendix
B – Order of High Court dated 18.1.20131
[30] One year later, by letter dated 24.05.2011 (“Appendix G”) the COB
5
again had confirmed the Defendants as the rightful JMC of RBRC but with
qualification that it carries the duty as JMC pending the decision of the
Court. The Plaintiffs took the view that this matter is still within the power
of the Court. While I agree that the decision of the State Authority is final
and COB had repeatedly recognizing the Defendants as the rightful JMC,
10
It is my opinion that when COB issued the said letter, he is seized with
jurisdiction by virtue of s. 3(2) of Act 663.
.
[31] Be as it may, the facts still remain that the challenge mounted in this
civil suit is still pending. The Court must be jealous of its power. The
15
disputes before it must be heard and disposed of.In disposing the case,
the Court is subject to the Rules of Court.
[32] The Plaintiffs’ Claim against the Defendants’ is for, inter alia, the
following reliefs:20
1
Exhibit “WHC-2” of D7 AIR3
24
Alasan Penghakiman GS 22-87-2010
(a)
Declarations that the Annual General Meeting held on
30.5.2010 by the 1st to 6th Defendants’ is invalid and that the
election of JMC members and resolutions passed at the said
AGM are invalid;
5
(b)
Injunctions restraining the Defendants’ from receiving and/or
issuing payments and representing the JMC of RBRC; and
(c)
10
Losses and damages suffered by the JMC of RBRC.
[33] The Plaintiffs admitted that COB letters are inconsistent. In fact the
COB’s conduct has been the center of arguments. Therefore it is my
finding that declaration sought in prayer (a) and (b) above would be
tantamount to challenging the COB power under the Act 633in giving
recognition to the Defendants to carry out their duty as the lawful JMC.
15
[34] It is not disputed that COB was given the power under section 3 (2)
of Building and Common Property (Maintenance And Management) Act
2007 [Act 633]-
1) The State Authority may, in respect of a local authority area or
any other area, appoint an officer to be known as the Commissioner
25
Alasan Penghakiman GS 22-87-2010
of Buildings and such other officers as may be necessary for the
purposes of administering and carrying out the provisions of this Act.
(2) The Commissioner, subject to any general or special direction of
the State Authority, shall have charge of the administration of this
5
Actand Parts VI and VII of the Strata Titles Act 1985 and shall
perform such other duties as are imposed and may exercise such
powers as are conferred upon him by the Strata Titles Act 1985.
[35] Parts VI contain provisions relating to “Rights and Obligations
10
Attaching to Individual Parcels and Provisional Blocks” and Parts VII
provides matters concerning “Management of a Subdivided Building”
[36]Plaintiffs submitted that the COB always changes their stands and
made representations not in their favor. It was alleged that the COB after
15
making representations and had taken a neutral stands on the issues of
the rightful JMC and the validity of the EGM are before the Court to decide,
COB should not change their stands on their representations to recognize
the First Defendant as the lawful JMC and to declare the Plaintiff’ EGM as
invalid before the Court makes its decision over the issues..
20
[36] Therefore, the Plaintiffs argued that COB’s decision is inconsistent
and should be estopped.
26
Alasan Penghakiman GS 22-87-2010
[6[38]
In
Perbadanan
Pengurusan
Menara
Gurney &Ors
v.
Pesuruhjaya Bangunan, Majlis Perbandaran Pulau Pinang & Anor
[2011] 6CLJ 583, John O’Hara J’s opinion is as follows-“jurisdiction
[10] The 1st respondent is appointed by the State Authority
pursuant to s. 3(1) of Act 663.
5
[11] By virtue of s. 3(2), the 1st respondent shall have charge of the
administration of Act 663 and Parts VI and VII of Act 318 and shall
perform such other duties as are imposed and may exercise such
powers as are conferred upon him by Act 318.
[12] It is clear that the 1st respondent is empowered to authorize
10
the 2nd respondent to convene an Extraordinary General meeting if
he is satisfied that the Council was not property constituted. This
he can do under para. 9(3) of the Second Schedule of Act 318
which comes under s. 39 and therefore Part VII of Act
318.Furthermore para. 9(3) is to be read in the light of the original
15
compliance with para. 12 and 13 by the applicants.
[14] In regard to the other decisions made by the 1st respondent in
his letter of 3 March 2010, it is my decision that he is seized with
jurisdiction by virtue of s. 3(2) of Act 663.
27
Alasan Penghakiman GS 22-87-2010
[39] The Court was informed that the Court of Appeal had affirmed the
learned judge finding. In this case the Plaintiff had brought a judicial
review proceeding against the Commissioner of Building.
“The applicants sought for judicial review to quash the decision of
5
the 1st respondent regarding the irregularities which occurred in the
Annual General Meeting ('AGM') of the 1st applicant, who was the
Management Corporation for Menara Gurney….”.
[40] In this instant case, the Plaintiffs had alleged that the Annual
10
General Meeting held on 30.5.2010 by the 1st to 6th Defendants’ is invalid
and that the election of JMC members and resolutions passed at the said
AGM are invalid.
[41] By arguing that the COB should be estopped from changing their
15
stands on their representations and that the COB’s decision is
inconsistent, the Plaintiffs in other words are disputing the power of the
COB under the Act and the representations found in the said letter as
invalid.
20
[42] This is very true when the Plaintiffs cited authorities to support their
claim that the COB should be estopped and COB cannot “Approbate” and
“Reprobate” –
28
Alasan Penghakiman GS 22-87-2010
i) Boustead Trading (1985) Sdn Bhd v Arab-Malaysian
Merchant Bank Bhd [1995] 3 MLJ 331 (Tab 2 IOTP) on
estoppels issue, Federal Court held at page 344-345:-
5
"The time has come for this court to recognize that the doctrine
of estoppel is a flexible principle by which justice is done
according to the circumstances of the case. It is a doctrine of
wide utility and has been resorted to in varying fact patterns to
achieve justice. Indeed, the circumstances in which the
10
doctrine may operate are endless.
Edgar Joseph Jr J (as he then was) in an illuminating
judgment in Alfred Templeton &Ors v Low Yat Holdings
Sdn Bhd & Anor [1989] 2 MLJ 202 at p 244 applied the
15
doctrine in a broad and liberal fashion to prevent a defendant
from relying upon the provisions of the Limitation Act1952.
The doctrine may be applied to enlarge or to reduce the
rights or obligations of a party under a contract: Sarat
20
Chunder Dey v Gopal Chunder Laha LR 19 IA 203;
Amalgamated Investment and Property Co Ltd (In
liquidation' v Texas Commerce International Bank Ltd
29
Alasan Penghakiman GS 22-87-2010
[1982] 1 QB 84; [1981] 3 All ER 577; [1981] 3 WLR 565. It
has operated to prevent a litigant from denying the validity
of an otherwise invalid trust (see, Tengku Sri Wa Raja
&Anor [1970] 1 ML.1 222) or the validity of an option in a
5
lease declared by statute to be invalid for want of registration
(see, Taylor Fashions Ltd v Liverpool Victoria Friendly
Society[1981] 1 All ER 897; [1981] 2 ELR 576). It has been
applied to prevent a litigant from asserting that there was no
valid and binding contract between him and his opponent
10
(see, Waltons Stores (Interstate) Ltd v Maher (1988) 164
CLR 387) and to create binding obligations where none
previously existed (see, Spiro v Lintern[1973] 3 All ER 319;
[1973] 1 WLR 1002). It may operate to bind parties as to the
meaning or legal effect of a documents or a clause in a
15
contract
which
they
have
settled
upon
(see
the
Amalgamated case) or which one party to the contract has
represented or encouraged the other to believe as the true
legal effect or meaning; American Surety Co of New York
v Calgary Milling Co Ltd (1919) 48 DLR 295; De
20
Tchihatchef v Salerni Coupling Ltd [1932] 1 Ch 330;
Taylor Fashions."
And further:30
Alasan Penghakiman GS 22-87-2010
"The width of the doctrine has been summed up by Lord
Denning in the Amalgamated Investment case ([1982] 1 QB
84 at p 122; [1981] 3 All ER 577 at p 584; [1981] 3 WLR 565
5
at p 575) as follows:
The doctrine of estoppel is one of the most flexible and
useful in the armory of the law. But it has become
overloaded with cases. That is why I have not gone
10
through them all in this judgment. It has evolved during
the last 150 years in a sequence of separate
developments; proprietary estoppels, estoppels by
representation of fact, estoppels by acquiescence, and
promissory estoppels. At the same time it has been
15
sought to be limited by a series of maxims; estoppels
is only a rule of evidence, estoppels cannot give rise to
a cause of action, estoppels cannot do away with the
need for consideration, and so forth. All these can now
be seen to merge into one general principle shorn of
20
limitations. When the parties to a transaction
proceed on the basis of an underlying assumption
- either of fact or of law - whether due to
31
Alasan Penghakiman GS 22-87-2010
misrepresentation or mistake makes no difference
- on which they have conducted the dealings
between them - neither of them will be allowed to
go back on that assumption when it would be
unfair or unjust to allow him to do so. If one of
5
them does seek to go back on it the courts will give
the other such remedy as the equity of the case
demands. (Emphasis added.)"
10
ii)
Teo Kim Huat v Aetna Universal Insurance Bhd [2002] 2
CLJ 147at page 153 held that:-
“Once a representation has been made and acted upon,
the court will be reluctant to permit the person making
15
that representation to go back on his word or even to
allege a situation different from that which he had
represented. In Freeman and Another, Assignees of
William Broadbent v Cooke [1848] 2 Ex. 654, Parke B.,
after citing the case of Pickard v Sears And Barrett
20
[1837] 6 AD & E. 469, 474, said that a man is estopped
from denying what he has represented not only when he
represents as true that which he knows to be untrue but
32
Alasan Penghakiman GS 22-87-2010
whatever his “real intention may be he so conducts
himself that a reasonable man would take the
representation to be true, and believe that it was meant
that he should act upon it and did act upon it as true.”
5
Indeed, this court had acted on the representation by the
learned counsel for the defendant when the ex parte
interim injunction was extended from time to time.
Surely this court was entitled to act upon the
representation of the learned counsel for the defendant
10
“as true” and further at page 156,
“In this exercise, I am only concerned with estoppel in
pais which arise from the conduct of the learned counsel
for the defendant who blew “hot and cold” in regard to
15
the holding over. It is often said that a person should not
approbate and reprobate (Lissenden v C.A.V. Bosch,
Limited [1940] AC 412 at 417, 418, [1940] 1 All ER 425
at 429). It simply means that when a person has a
choice between two courses of conduct and he picks
20
and elects one choice of conduct, he cannot later resile
from it. Here, the learned counsel agreed to the holding
over in order to file an affidavit in reply and he has
33
Alasan Penghakiman GS 22-87-2010
benefited from that course of conduct and subsequently
he cannot resile from it. By resiling, his subsequent
conduct was in fact inconsistent with his earlier conduct.
In
short,
he
cannot
approbate
and
reprobate.”
(Emphasis added)
5
iii)
Cheah Theam Kheng v City Centre Sdn Bhd (in
liquidation) and other appeals[2012] 1 MLJ 761the Court of
Appeal at page 791, said:-
10
“[104] Now, if the High Court order dated 26 July 2001 is
to be treated as invalid as the liquidator wants this court
to make that sort of order, then the liquidator’s
appointment under the High Court order dated 26 July
15
2001 would also become invalid and the sale of the
lands to North Plaza cannot be authorised or validated.”
‘[105] We categorically say that the liquidator cannot
blow hot and cold to suit him whenever he feels like it.
20
He cannot approbate and reprobate in the same breath.
On the one hand, he claims that the High Court order
dated 26 July 2001 overrides or displaces a statute
34
Alasan Penghakiman GS 22-87-2010
which render the said order invalid and yet he has the
audacity to continue to act as a liquidator by virtue of the
said order. In the words of Sir Nicolas Browne-Wilkinson
VC in Express Newspapers plc v News (UK) Ltd and
others [1990] 3 All ER 376. At pp 383 – 384:
5
There is a principle of law of general application that it is
not possible to approbate and reprobate. That means
you are not allowed to blow hot and cold in the attitude
that you adopt. A man cannot adopt two inconsistent
attitudes towards another: he must elect between them
10
and, having elected to adopt one stance, cannot
thereafter be permitted to go back and adopt an
inconsistent stance.” (penekanan kami)
15
iv)
Eu Finance Berhad v Lim Yoke Foo [1982] 2 MLJ 37at page
39 the Federal Court had decided that-
“The respondent however argues that the second order
in any event stands until and unless it has been set
20
aside, and that the appellant’s failure to appeal under
section 418 to have it set aside is fatal and it is therefore
not now open to the appellant to question its validity in
35
Alasan Penghakiman GS 22-87-2010
these proceedings. The learned judge accepted this
contention and in effect based his decision on this
premise.
5
The general rule is that where an order is a nullity, an
appeal is somewhat useless as despite any decision on
appeal, such an order can be successfully attacked in
collateral proceedings; it can be disregarded and
impeached in any proceedings, before any court or
10
tribunal and whenever it is relied upon in other words, it
is subject to collateral attack. In collateral proceedings
the court may declare an act that purports to bind to be
non-existent. In Harkness v Bell’s Asbestos and
Engineering Ltd., Lord Diplock L.J. (now a Law Lord)
15
said (at page 736) that is has been long laid down that
where an order is a nullity, the person whom the order
purports to affect has the option either of ignoring it or of
going to the court and asking for it to be set aside.
20
Where a decision is null by reason of want of jurisdiction,
it cannot be cured in any appellate proceedings; failure
to take advantage of this somewhat futile remedy does
36
Alasan Penghakiman GS 22-87-2010
not affect the nullity inherent in the challenged decision.
The party affected by the decision may appeal ‘but he is
not bound to (do so), because he is at liberty to treat the
act
5
as
void.
[Birmingham
(Churchwardens
and
Overseas) v Shaw (at page 880 per Denman C.J). In
Barnard v National Dock Labour Board it was said that,
as a notice of suspension made by the local board was
a nullity, ‘the fact that there was an unsuccessful appeal
on it cannot turn that which was a nullity into an effective
10
suspension’ (at page 34 per Singleton L.J) Ridge v
Baldwin is to the same effect.
Lord Denning said in Director of Public Prosecutor v
Head (at page 111) that if an order was void, it would in
15
law be a nullity and there would be no need for an order
to quash it as it would be automatically null and void
without more ado.” (Emphasis added)
[43] Based on the authorities above and the Plaintiff’s claim of
20
“declaration” it is my opinion; such challenge is akin to judicial review.
37
Alasan Penghakiman GS 22-87-2010
[44]
In Robin Tan Pang Heng @ Muhammad Rizal Bin Abdullah
(Suing As Public Officer At Penang Turf Club) v Ketua Pengarah
Kesatuan Sekerja Malaysia &Anor [2011] 2 MLJ 457, the Federal Court
had decided5
“The appellant in praying for declaratory orders was in effect
resorting to a procedure that is akin to judicial review. No manifest
reasons may be discerned for invoking out rightly the exercise of
the discretionary powers of the court. The ingenuity of
10
circumventing the provisions of the available statutory procedure is
further aggravated by two facts. Firstly, as has been pointed out by
the learned High Court judge, it took six years before the action
finally proceeded where it was also converted from an action that
commenced as an originating summons to a writ action. Secondly,
15
the trial judge had observed that no objection was lodged at the
time the preliminary objection was raised. The courts should be
vigilant in curbing the conduct of any party that resiles from a
position that it has already taken. The Court of Appeal itself has
observed that there are no special circumstances prevailing on the
20
facts of this case to warrant the court to exercise its jurisdiction (see
para 21).
38
Alasan Penghakiman GS 22-87-2010
[45] It is not disputed that the decision by COB is a decision of public
authority. COB is appointed by the State Authority under section 3 (1) of
the Building and Common Property (Maintenance and Management) Act
2007 [Act 633]. Section 46 of the Act also provides that “The Public
5
Authorities Protection Act 1948 [Act 198]” is applicable to any action by
COB.
[46] In view of the facts and the dispute arising in this case and the
declaratory remedy prayed by the Plaintiffs, it is my finding that in essence
10
the challenge is directed to the COB whose decision in the letter dated
24.5.2011 is a decision of public authority. Order 53 (2) of the Rules of
Court 2012 provides that an application for judicial review may seek any
of the said reliefs, including the prayer for a declaration.
15
[47] In the earlier part of my judgment, I have noted that the Plaintiffs
had challenged the Decision of the State Authority in Melaka High Court
Judicial Review Application No: 16-11-07/2011 (“Judicial Review
Application”). On 18.1.2013 the Plaintiffs’ withdrew the Judicial Review
Application before me. The Plaintiffs took the right course to challenge the
20
decision of the State Authority by way of judicial review. In any event that
judicial review which has been discontinued is not in issue. However, the
39
Alasan Penghakiman GS 22-87-2010
challenge againstthe decision of COB whether it is valid or inconsistent is
jurisdictional issue before this Court.
[48]The landmark case of Ahmad Jefri Bin Mohd Jahri @ Md Johari v
5
Pengarah Kebudayaan & Kesenian Johor &Ors [2010] 3 MLJ 145.
James Foong FCJ in his judgment said as follows-
“The appellant obtained leave to appeal to the Federal Court on
two questions, viz: (i) whether pursuant to the amended O 53 of
10
the Rules of the High Court 1980 (‘RHC’), an application to
challenge the decision of a public authority could only be instituted
by way of judicial review under O 53 of the RHC; and (ii) whether
challenging the decision of a public authority by way of writ and
statement of claim, instead of through an application for judicial
15
review under O 53 of the RHC, constituted an abuse of the process
of court. The appellant’s main contention was that the procedure
under O 53 of the RHC was not a mandatory procedure — a person
aggrieved with the decision of a public body could therefore seek
relief by way of writ or originating summons.
20
It was held-
40
Alasan Penghakiman GS 22-87-2010
(1) Judicial review provides a means by which judicial control of
administrative action is exercised. In Malaysia, supervisory
jurisdiction by the High Court over administrative or public bodies
is found in O 53 of the RHC (see paras 6–7); Council of Civil
5
Service Unions v Minister for the Civil Service [1985] AC 374
referred.
(2) The stringent conditions imposed by O 53 of the RHC are
intended to protect those entrusted with the enforcement of public
duties against groundless harassment and to reduce delays in
10
resolving applications in the interest of good administration. In the
instant case, the appellant was clearly handicapped, inter alia,
through limitation of time, in applying for judicial review under O
53 r 3(6) (see paras 15–16); O’Reilly v Mackman [1982] 3 All ER
1124 followed.
15
(3) Not every decision made by an authoritative body is suitable
for judicial review. There must be sufficient public law elements in
the decision made. In the instant case, there were clearly
elements of public law present. The appellant was a public officer
20
subject to the Public Officers (Conduct and Discipline)
Regulations 1993 (‘the Regulations’). He had been dismissed
under a statutory law — the Regulations — by a body which had
41
Alasan Penghakiman GS 22-87-2010
acted within the scope of such statutory power. Although the
decision to dismiss the appellant involved the dismissal of an
employee by an employer, just like a master dismissing his
servant — which constituted a private law matter — the fact that
5
there were statutory conditions and restrictions imposed by the
Regulations on the conduct and dismissal of the appellant
underpinned the public law element in the instant case. The
instant case was thus suitable for judicial review (see paras 21,
36 & 61); R v East Berkshire Health Authority, ex-parte Walsh
10
[1985] 1 QB 152 and Wendal Swann v Attorney General of the
Turks and Caicos Islands [2009] UKPC 22 distinguished.
(4) Order 53 of the RHC sets out a specific procedure for an
aggrieved party seeking relief against a public authority
concerning an infringed right protected under public law. When
15
such an explicit procedure is created, then as a general rule all
applications for such relief must adhere to the procedure
prescribed under O 53 of the RHC, failing which the applications
would be liable to be struck off for abuse of the process of court.
However, there are exceptions, such as where the action is a
20
claim against the public authority for negligence and where the
action involves a matter affecting the legal status of an applicant
(see para 60); O’Reilly v Mackman [1982] 3 All ER 1124 followed;
42
Alasan Penghakiman GS 22-87-2010
YAB Dato’ Dr. Zambry bin Abd Kadir & Ors v YB Sivakumar a/l
Varatharaju Naidu (Attorney General Malaysia, intervener) [2009]
4 MLJ 24 (FC) followed; Majlis Perbandaran Ampang Jaya v
Steven Phoa Cheng Loon &Ors [2006] 2 MLJ 389 (FC) followed.
5
(5) A challenge on the use of appropriate procedure is very much
fact based. It is necessary for a judge when deciding on such a
matter to first ascertain whether there is a public law element in
the dispute. If the claim is based solely on substantive principles
10
of public law then the appropriate process should be by way of O
53 of the RHC. If it is a mixture of public and private law, then the
court must ascertain which of the two is predominant. If the claim
has substantial public law elements, then the procedure under O
53 of the RHC must be adopted. Otherwise it may be set aside on
15
the ground that it abuses the court’s process. If the matter is under
private law, though concerning a public authority it would be
inappropriate to commence the action under O 53 of the RHC.
The courts should be cautious in allowing a matter that should be
commenced by way of O 53 of the RHC, to proceed in another
20
manner (see para 61).
43
Alasan Penghakiman GS 22-87-2010
(6) In the instant case, the appellant’s claim was based solely on
public law. There was no trace of private law involvement.
Neither did the circumstances justify an exception to the
general rule. Thus, the appellant’s writ was rightly struck off as
5
an abuse of the court’s process (see para 63).
Conclusion
[49] In this instant case, it is my finding that the Plaintiffs’ action is based
on public law action. The Plaintiffs filed their action by way of Writ of
Summons instead of judicial review under order 53 Rules of Court 2012
10
or Order 53 of the Rules of the High Court 1980 at the material time. The
Plaintiffs’ action is therefore an abuse of process.
[50] Assuming the Plaintiffs have the jurisdiction to pursue their dispute,
it is my finding also that the dispute over the issue of the rightful JMC to
15
maintain and manage the building has become academic by operation law
by virtue of Seksyen 25(1) and Seksyen 28(1) and (2) of the Building And
Common Property (Maintenance And Management) Act 2007 [Act
633]where the Commissioner has appointed the managing agent to
perform the duties and exercise the powers with regard to the
20
maintenance and management of the building as if he was acting as the
developer or the Body including the duties and power to collect and
manage the maintenance funds from the unit owners of RBRC.
44
Alasan Penghakiman GS 22-87-2010
[51]
Order 18 rule 19 Rules of Court 2012 provides-
“(1) The Court may at any stage of the proceedings order to be
5
struck out or amended any pleading or the indorsement, of any writ
in the action, or anything in any pleading or in the indorsement, on
the ground that –
[a] it discloses no reasonable cause of action or defence, as
10
the case
may be; or
[b] it is scandalous, frivolous or vexatious; or
[c]
it may prejudice, embarrass or delay the fair trial of the action’
or
[d] it is otherwise an abuse of the process of the Court;
15
and may order the action to be stayed or dismissed or judgment to be
entered accordingly, as the case may be.”
20
[52]
Abuse of process is defined as follows –
45
Alasan Penghakiman GS 22-87-2010
“An action is an abuse of the process of the court where it is
“pretence less” or “absolutely groundless” and the court
has the power to stop it summarily and prevent the time
of the public and the court from being wasted2.”
5
[53] It is trite that this Court has the discretionary power to strike out an
action that it is “so plain and obviously unsustainable“. In Bandar
Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation
Bhd[1993] 4 CLJ 7 it was held10
[1] The principles upon which the Court acts in exercising its
power under any of the four limbs of O.18 r. 19(1) Rules of the High
Court 1980 are well settled. It is only in plain and obvious cases
that recourse should be had to the summary process under this
rule. This summary procedure can only be adopted when it can be
15
clearly seen that a claim or answer is on the face of it obviously
unsustainable.”
[54] In Roslan bin Abdullah v. New Zealand Insurance Co. Ltd.
20
[1981] 2 MLJ32 the Federal Court had decided at page325, as follows-
2
Pleadings: Principles and Practice by Sir Jack Jacob and Iain S. Goldrein, page 226-7 [Tab 7]
46
Alasan Penghakiman GS 22-87-2010
“The summary procedure under Order 18 rule 19 can only be
adopted when it can be clearly seen that a claim or answer is on
the face of it "obviously unsustainable": (see AG of Duchy of
5
Lancaster v L & NW Rly Co).”
[55] In the circumstances, the Plaintiffs writ of summons and the
Statement of Claim is struck out for abuse of process. The Defendants
application is allowed with Cost.
10
Dated: 22 August 2013.
15
20
47
Alasan Penghakiman GS 22-87-2010
5
Solicitors:
1) Tetuan K.P. Ng & Amardas (F.M Wong and K.P Ng) for the
Plaintiffs
2) Tetuan Gan Rao & Chuah (Dato’ M. Patmanathan and Sugandra
10
Rao Naidu (Shirin Pathmanathan with them) for the Defendants
Acts/Regulations
Building and Common Property (Maintenance and Management) Act
15
2007
Cases Referred:
1.
Perbadanan Pengurusan Menara Gurney &Ors v. Pesuruhjaya
Bangunan, Majlis Perbandaran Pulau Pinang &Anor [2011] 6CLJ
20
583.
2.
Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank
Bhd [1995] 3 MLJ 331.
25
3.
Teo Kim Huatt v Aetna Universal Insurance Bhd [2002] 2 CLJ 147.
48
Alasan Penghakiman GS 22-87-2010
4.
Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and
other appeals [2012] 1 MLJ 761.
5.
Eu Finance Berhad v Lim Yoke Foo [1982] 2 MLJ 37.
6.
Robin Tan Pang Heng @ Muhammad Rizal Bin Abdullah (Suing As
5
Public Officer At Penang Turf Club) v Ketua Pengarah Kesatuan
Sekerja Malaysia &Anor [2011] 2 MLJ 457.
10
7.
Ahmad Jefri Bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan
& Kesenian Johor &Ors [2010] 3 MLJ 145.
8.
Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking
Corporation Bhd [1993] 4 CLJ 7.
15
9.
Roslan bin Abdullah v. New Zealand Insurance Co. Ltd. [1981] 2
MLJ32.
49