Alasan Penghakiman GS22-89-2011
DALAM MAHKAMAH TINGGI MALAYA DI MELAKA
DALAM NEGERI MELAKA, MALAYSIA
GUAMAN SIVIL No. S-22-89-2011
ANTARA
5
1. PERBADANAN PENGURUSAN KONDOMINIUM
GARDEN CITY
2. TEO LARK SYE
… PLAINTIF-PLAINTIF
(NO.K/P:560727-01-5613
10
DAN
15
1.
TAN CHONG HONG (NO. K/P 610909-10-6439)
2.
TAN YIK CHONG (NO. K/P 341209-71-5177)
3.
TAN CHONG GUAN @TAN CHONG GHAN
(NO. K/P 630421-10-7209)
4.
HASBULLAH BIN MUHAMMAD TAIB
(NO. K/P 630209-08-5495)
5.
DARSHAN SINGH PURAIN
6.
WAN SHUKRI BIN WAN MUSTAPHA
7.
DRALAND SDN. BHD.
(NO. SYARIKAT:132074A)
8.
TERANG TEGUH SDN. BHD
(NO. SYARIKAT; 168059-T
9.
CHALAVENUE (M) SDN. BHD
(NO. SYARIKAT:206281-K)
20
25
30
1
... DEFENDAN-DEFENDAN
Alasan Penghakiman GS22-89-2011
GROUNDS OF JUDGMENT
[1]
In this case, the First and Seventh Defendants’ application in
Enclosure 54 prays for the following order;1.
5
The Plaintiffs’ Writ of Summons and Statement of Claim
against the First and Seventh Defendants is struck off under
Order 33 r 5 of the Rules of Court 2012;
10
[2]
2.
Injunction dated 17.6.2011 be set aside;
3.
Liberty to apply;
4.
Cost of this application be borne by the second Plaintiff; and
5.
Relief or other order which the Court deems just.
This application under Order 33 r 2 Rules of Court 2012 and Order
33 r 5Rules of Court 2012 is for the Court to decide the preliminary issues
15
arising from the Plaintiffs’ Statement of Claim.
[3]
The preliminary issues stated in Enclosure 54 for the Court to
dispose are as follows -
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(a)
Whether on the facts alleged in the Plaintiffs’ Statement of
Claim, in essence are claims against the Commissioner of
Building (COB) who had directed the First Plaintiff (PPKGC)
2
Alasan Penghakiman GS22-89-2011
and the Seventh, Eighth and Nineth Defendants to hold an
Extra General Meeting to appoint new Council members of
PPKGC for the remaining year of 2011?;
5
(b)
If the answer for question 1 above is answered in the
affirmative, whether the Plaintiffs’ claim is an abuse of process
of Court for non compliance with Order 53 of the Rules of High
Court 1980, that this claim must be brought by way of judicial
review;
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(c)
Whether the Plaintiffs’ claim for declaratory reliefs ought to be
struck off on ground that there are other remedies under the
Strata Title Act 1985 [Act 318];
15
(d)
Whether the Plaintiffs’ claim have become academic by
operation of law by virtue of paragraph 8 of Second Schedule
of Act 318 which provides for new Council members to be
elected annually and that, the new Council for PPKGC had
been appointed on 26.12.2011 for the periodof 2012;
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(e)
Whether the Plaintiffs’ claim against the First and Seventh
Defendants could sustain in view of the Plaintiffs’ writ of
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Alasan Penghakiman GS22-89-2011
summons has expired on or before
30.11.2011 and their
application to extend its period of validity has been refused by
Court on 3.10.2012;
5
(f)
Whether the Second Plaintiff, Teo Lark Syeis a qualified voter
on ground that as parcel owner to a condominium
Management Corporation, he cannot institute proceeding in his
own name.
10
(g)
Whether the Plaintiffs haveany cause of action against the
Seventh, Eighth and Nineth Defendants who had merely
followed the directions of COB;
(h)
Whether the Plaintiffs’ action against the Seventh, Eighth and
Nineth Defendants is lawfully directed againstthemwho are not
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Council members of PPKGC;
(i)
Whether the Plaintiffs’ action in this case and his cause of
action in Notice of Motion No. 25-11-2011 filed herein is a
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duplicity.
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Alasan Penghakiman GS22-89-2011
[4]
The grounds of application in Enclosure 54 are based on the
following facts-
i.
Paragraph 12 of the Plaintiffs’ reply to the Defendants’s
defence and counterclaim, stated that “Notice of Motion No.
5
25-11-2011 ” is a judicial review proceeding against the COB;
ii.
The COB’s decision in giving sanction to panel members of
the First to Sixth Defendants as the new Council members of
PPKGC for the remaining year of 2011 is valid and lawful;
10
iii.
The new Council members of PPKGChas been appointed on
26-12-2011 for the period of 2012. COB has sanctioned the
appointment of new Council members in exercising its
statutory powers under the Strata Title Act 1985 (Act 318).
15
[5]
Enclosure 54 is supported by affidavit of Tan Chong Hong affirmed
on 12.10.2012.
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Affidavit of Tan Chong Hong (“TCH”)
[6]
TCH avers that the Plaintiffsare challenging the directionof COB to
the Seventh, Eighth and Nineth Defendants to call for an Extra General
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Alasan Penghakiman GS22-89-2011
Meeting (EGM) on 21.5.2011 in the Plaintiff’s Notice of Motion No. 25-112011 of High Court at Malacca.
[7]
5
TCH also avers that the Plaintiffs’ Notice of Motion No. 25-11-2011
is defective on ground that the procedure under Order 53 of the Rules of
High Court 1980 has not been complied with.
[8]
TCH further avers that Notice of Motion No. 25-11-2011 and this writ
of summons No. 22-89-2011 are duplicity on grounds that those causes
10
of action in both suits are similar. The Plaintiffs were not satisfied with the
directions and consent of COB to the the Seventh, Eighth and Nineth
Defendants to call for an Extra General Meeting (EGM) in May 2011. By
reason of duplicity of actions, this writ of summons No. 22-89-2011 ought
to be struck off.
15
[9]
COB has given its sanction to the new Council members of PPKGC
who were appointed in the EGM at Malacca on 21.5.2011.
[10] A copy of COB’s letter dated 24.5.2011 to PPKGC, whichhad
20
approved and accepted the newlyappointed Council members on
22.5.2011 is shown in ekshibit “TCH-1”.
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Alasan Penghakiman GS22-89-2011
Afidavit Teo Lark Sye (“TLS”)
[11] Plaintiffs objected to this application in Enclosure 54 by filing in their
reply through the Second Plaintiff, Teo Lark Sye’s affidavit affirmed on
1.11.2012.
5
[12] TLS raised a preliminary objection that this application ought to be
struck off on grounds that the Seventh Defendant had filed a similar
application by way of summon in chambers dated 18.7.2011 (Enclosure
13). The grounds stated in this application in Enclosure 54 and the grounds
10
stated in their application in Enclosure 13 are entirely the same.
[13] Enclosure13 is the Seventh Defendant’s application under Order 18
r 19 (1) (a),(b) and (d) and Order 92 r 4 Rules of High Court 1980. The
High Court decision on 16.11.2011 favoured the Defendantand the
15
Plaintiffs’ suit was struck out. However on appeal, the High Court decison
was set aside by the Court of Appeal on 2.5.2012 and the Defendant
leave to appeal to the Federal Court was refused on 26.9.2012. The
application in Enclosure 13 and all the relevant orders of Court are shown
in exshibits “TLS-1”, “TLS-2”, “TLS-3” dan “TLS-4”.
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[14] TLS also avers that since the entire process of trial has shut out the
Defendant’s grounds, therefore the grounds or issues brought up in this
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Alasan Penghakiman GS22-89-2011
application which are entirely similar cannot be allowed to be used and
argued again. Hence, there are no issues before this Court.
Preliminary objection
5
[15] TLS’s counsel in his written submission and further arguement
through his oral submission on 27.6.2013, pointed out that the grounds in
Enclosure 54 at page 4 of the Defendants’ grounds in support of their
application has referred to the decision of COB in giving sanction to the
Defendants as valid and lawful. Counsel submitted that this ground relied
10
by the Defendants in their application to strike out the Plaintiffs’ claim has
been argued at the Court of Appeal.
[16] Plaintiffs’ counsel in his written submission, submitted that the core
issue in this case is who is the rightful Council members that have been
15
validly appointed. It was submitted that the First Plaintiff’s Council
members were the rightful Council in view of the approval by the COB.
[17] It was also submitted that the entire issues had been argued in the
Court of Appeal. Plaintiffs’ appeal was allowed. However, counsel agreed
20
with this Court that there is no full written judgment by the panel of the
Court of Appeal.
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Alasan Penghakiman GS22-89-2011
[18] It was further submitted that the Defendants’ action in this application
is a duplicity for repeating the same grounds which had been dismissed
by the Court of Appeal.
5
[19] It was further submitted that if this Court were to agree with the
Defendants that the COB’s action in this case is valid and lawful, the issue
is still not resolved because in his view, the COB does not posess the
power to determine which Council members are validly appointed. It is the
counsel’s opinion that all procedures pertaining to election of members of
10
Council are provided under the Second Schedule of the Strata Titles Act
1985, which must be followed, When a meeting is held and members are
appointed, only those members appointed are considered as have been
lawfully appointed.
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The Defendants’ Reply
[20] The Defendants’ counsel submitted that the Plaintiffs’ counsel
arguement on duplicity of grounds of application in Enclosure 54 with
Enclosure 13, is not correct in law because Defendants’ counsel
understanding on what “duplicity” means is when the Plaintiffs’ present suit
20
which has not been tried and the other suit in Notice of Motion 25-11-2011
which was filed, contain the same subject matter and cause of action.
What the Plaintiffs counsel is trying to say is, the same grounds which he
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Alasan Penghakiman GS22-89-2011
thought was not allowed to stand because the Court of Appeal has heard
them is actually onthe point of res judicatain this application but not a
duplicity of actions.
5
[21] It was submitted that there is no full written Judgment from the Court
of Appeal for parties to study and appreciate it if indeed the grounds as
submitted by the Plaintiffs counsel have ever been considered by the Court
of Appeal in setting aside the High Court decision.It was pointed out that
the only issue which the Court of Appeal considered was the issue of
10
section 67(j) of the Strata Titles Act 1985 which the learned High Court
judge in her written judgment had found section 67(j) is applicable to the
Plaintiffs. The Plaintiffs should avail themselves to the Strata Titles Board
constituted under section 67 who has the power to decide anyappeal
under section 67 (j) of the Strata Titles Act 1985.
15
[22] In the absence of the Strata Titles Board which the Court of Appeal
found as has not been constituted, therefore the issue of Plaintiffs availing
themselve under 67(j) of the Strata Titles Act 1985 does not arise. Hence,
the Plaintiffs appeal was allowed and the case was sent backfor trial of this
20
action before another judge.
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Alasan Penghakiman GS22-89-2011
[23] Once the application to strike out the Plaintiffs’ claim under Order 18
r 19 (1) Rules of the High Court 1980 was dismissed, there are triable
issues before the High Court which warrants the case to be tried.
5
[24] Enclosure 54 was filed after the close of pliding. It was submitted
that the Plaintiffs should file judicial review against the decision of the COB
in sanctioning the Defendants’ new appointed Council members. Further,
counsel submitted that the Plaintiffs had filed judicial review in separate
application by way of Notice of Motion No. 25-11-2011 and later withdrew
10
it.
[25] The core issue in this case is whether in the absence of Strata Titles
Board in Malacca, COB is the competent authority to recieve complaints
and make any decisions to resove the complaints. The Plaintiffs’
15
arguement is that COB has no power. The Defendants’ arguement is that
COB is equipped with this power by virtue of section 39 read together with
Second Schedule of the Strata Titles Act 1985.
[26] The dispute between parties is pertaining to which Council members
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is the accepted and lawful panel. The issue derived from COB’s letter
dated 24.4.2011 which had given sanction to the First Defendant’s panel
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Alasan Penghakiman GS22-89-2011
members for the year 2012. COB had also accepted the First Defendant’s
panel members for the year 2013.
[27] The
5
Defendants’
counsel
referred
the
High
Court
case
Perbadanan Pengurusan Menara Gurney & Ors v. Pesuruhjaya
Bangunan, Majlis Perbandaran Pulau Pinang & Anor [2011] 6CLJ 583
and submitted that in this instance case, the correct procedure to
challenge COB’s decision is by way of judicial review under Order 53 of
the Rules of High Court 1980 at that time and now under Order 53 of the
10
Rules of Court 2012.
Ruling
[28] Based on the submissions, the preliminary objection by the Plaintiffs
is whether the Defendants are barred from filing this Enclosure 54 on
15
reason that the supported grounds in Enclosure 54 have been disposed of
in their application in Enclosure 13 under Order 18 r 19 (1) (a),(b) dan (d)
and Order 92 r 4 of the Rules of High Court 1980 at the High Court and
also at the Court of Appeal.
20
[29] The objection merits consideration. I have read the brief written
judgment of my learned sister dated 16.11.2011 and found the only reason
she gave in striking out the Plaintiffs’ claim is that there was no appeal
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Alasan Penghakiman GS22-89-2011
made by the Plaintiffs to the Strata Titles Board in compliance with section
67 (j) of the Strata Titles Act 1985 (exshibit “TLS-5”). TCH’s affidavit at
paragraph 4 (h), also confirms that the Court of Appeal had allowed
Plaintiffs’s appeal based on the reason that the Strata Titles Board has not
5
been constituted.
[30] In view of the sole ground adjudicated by the High Court and the
Court of Appeal and there is no indication in the order of the Court of
Appeal that it was on any other ground,my finding is that this application
10
is not res judicata.
[31] The Court of Appeal had ordered that this case be sent back to the
High Court to be heard by another judge (exshibit “TLS-3”). The Plaintiffs’
claim against the Seventh Defendant isstatus quoand pending trial. The
15
trial of an action is always subject to the rules of Court.
[32] It is my opinion that application under Order 18 r 19 (1)Rules of the
High Court 1980 is quite different from application under Order 33Rules of
Court 2012. Under Order 18 r 19 (1), pliding is struck out on ground that
20
on the face of it is “ obviously unsustainable”.Order 33 r 2,the Court may
direct any question arises from the pliding be tried separately before, on
or after the trial and may make any order as to the manner of any question
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Alasan Penghakiman GS22-89-2011
to be stated. Under Order 33 r 5, if it appears that the decision of any
question substantially disposses of the issue or renders the trial of the case
is unnecessary, the Court may dismiss the case or give such judgment as
the Court deems just.
5
[33] In the case ofNora Hayati bt Ismayatim (sebagai pemilik tunggal
yang menjalankan guaman) v Amanah Raya Berhad (didakwa
sebagai pentadbir de bonis non harta pesaka si mati, Law Kuar)
[2012]3 AMR 540, the preliminary objection of the Plaintiff in this instance
10
application issimilar with the preliminary objection found in this case as
follows“The Plaintiff had raised a preliminary issue (“PO”) that the
defendant had made a “similar application” under Order 18 r 19(1)
of the RHC, which was dismissed by the Court of Appeal; as such
15
the defendant is estopped from regurgitating the same issues under
Order 14A of the RHC on the ground that the relevant facts were not
disputed. It was also averred by the defendant that an Order 14A
applicaton is different in nature and scope from an application under
Order 18 r 19(1) of the RHC. The Plaintiff in reply contended that the
20
defendant’s application under Order 14A was misconcieved.”
Amelia Tee J in her judgment said14
Alasan Penghakiman GS22-89-2011
“The doctrine of res judicata would not be applicable in the instant
case because the principles applicable in a striking out application
under Order 18 r 19(1) of the RHC are quite different from that of an
application under Order 14A. In striking out application, the court is
5
concerned with whether the case was a plain and obvious case
where recourse should be had to the summary process under the
rule, which process should only be adopted when a claim is on the
face of it “obviously unsustainable”. Whilst the Court of Appeal had
allowed the Plaintiff’s appeal in respect of the defendant’s striking
10
out application, there is no indication in the order of the Court of
Appeal that it was on any other ground than the fact it was not on
the fact of it “obviously unsustainable”. The Court of Appeal had not
“necessarily and with precision” determined the issues that are now
raised by the defendant in their Order 14A application such as to
15
preclude them from making the present application.”
[34] In view of the above judgment which I am entirely agree with her, the
Plaintiffs preliminary objection is rejected.
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Application under Order 33 of the Rules of Court 2012 (Encl.54)
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Alasan Penghakiman GS22-89-2011
[35] Time of trial of questions or issues (O. 33 r. 2)
The Court may order any question or issue arising in a cause or
matter, whether of fact or law or partly of fact and partly of law, and
whether raised by the pleadings or otherwise, to be tried before, at
or after the trial of the cause or matter, and may give directions as
5
to the manner in which the question or issue shall be stated.
[36] Dismissal of action after decision of preliminary issue (O. 33 r.
5)
10
If it appears to the Court that the decision of any question or issue
arising in a cause or matter and tried separately from the cause or
matter substantially disposes of the cause or matter or renders the
trial of the cause or matter unnecessary, it may dismiss the cause
or matter or make such other order or give such judgment therein
15
as may be just.
[37] InYeoh Cheng Han & Anor v PPH Resorts (Penang) Sdn Bhd
[2011] 3 MLJ 207, the learned Judge said in his judgment:“ [23] The central issue for determination is whether the defendant is
20
a housing developer under the 1966 Act.The answer to this issue
would essentially determine the answers to the rest of the questions
posed to this court.
16
Alasan Penghakiman GS22-89-2011
[38]
Order 14A provides that the court may at any stage of the
proceedings, where it appears that the question of law is suitable for
determination without full trial of the action and where such determination
5
will finally determine the entire cause or matter, hear the application and
dispose of the case on a point of law. Order 14A empowers the court to
make a final determination of a question of law without the need for a trial.
[39] Further O 33 r 2 of the RHC 1980 provides that the court may order
10
any question or issue arising in a cause or matter, whether of fact or law
or partly of fact and partly of law, and whether raised by the pleadings or
otherwise, to be tried before, at or after the trial of the cause or matter, and
may give directions as to the manner in which the question or issue shall
be stated.
15
[40] I am guided by the opinion of Rohana J in Danaharta Managers
Sdn Bhd v Melewar Leisure Sdn Bhd & Ors [2008] 4 MLJ 448 Rohana
Yusuf J where she held that:
20
In deliberating on an application under O 14 of the RHC, the court
needs to only be satisfied whether or not the defendant had raised
any sustainable defence which deserves a trial. Whereas, under O
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Alasan Penghakiman GS22-89-2011
14A of the RHC the court will determine the issues of law upon the
construction of documents whenever it appears to the court that the
determination of any question of law will lead to a final conclusion of
the action because there are no facts in dispute. (Emphasis added).”
5
[41] In Tan Ching Choong & Ors v Ekabina Sdn Bhd & Ors [2002] 5
MLJ 654 Arifin Zakaria J (now CJ Malaysia) held that:
“The question posed by the defendants, if decided in their favour,
would bring an end to this suit. This would save costs and time,
which would otherwise be expended to deal with other issues of the
10
case.On this premise, the defendants’ application was allowed.”
[42] In the case of Petroleum Nasional Bhd v Kerajaan Negeri
Terengganu [2004] 1 MLJ 8; [2003] 4 CLJ 337 Mohd Noor Ahmad JCA
15
said:
“The core or primary issue is contained in the first three questions
posed in the respective application … Therefore, the determination
of the threshold issue as preliminary issues will be decisive of the
whole litigation or essentially the main part of the suit. Thus, resulting
20
in a substantial saving of time and cost as it will significantly cut down
the costs and time involved in pre-trial preparation or in connection
with the trial proper.”
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Alasan Penghakiman GS22-89-2011
[43] In Ayer Itam Height Sdn Bhd & Ors v Chung Nyuk Sen @ Henry
Chung [2003] 2 MLJ 481; [2003] 2 CLJ 685 Mohd Saari Yusof JCA
referred to the case of Everett v Ribbands and another [1952] 1 All ER
5
823:
“where there is a point of law which, if decided in one way, is going
to be decisive of the litigation, advantage ought to be taken of the
facilities afforded by the rules of court to have it disposed of at the
10
close of pleadings or very shortly afterwards.”
[44] The Court of Appeal inPetroleum NasionalBhd v Kerajaan Negeri
Terengganu & Anor Appeal [2003] 4 CLJ 337 at p349-352has stated
as follows15
at p352(g)
“Order 33 r2 of the RHC states that the Court may order any
question or issue arising in any cause or matter, whether of fact
or law or partly of fact and partly of law, whether raised on the
pleadings or otherwise to be tried before, at or after the trial of
20
the cause or matter…….”
at p361(d-e)
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Alasan Penghakiman GS22-89-2011
“It is to be stressed that under both Orders the Court can direct
that the question or issue to be determined or tried without any
party having to apply for it and the Court may on its own frame or
reframe the question or issue for the purpose or recast the
5
question or issue proposed by the applicant……”
[45] In the instant aplication, the Defendants had submitted various
preliminary questions and isues to be tried.
10
[46] Based on the authorities cited above and the issue at hands, I am of
the opinion that the case before me is suitable for me to use Order 14A
and/or Order 33Rules of Court 2012 to determine the question posed in
the application, subject to the directions of the Court on the manner which
the question or issue shall be stated.
15
[47] The Court may form its own question or modify the Defendants
question or use the Defendants formulated question as the question to be
tried.In determining the right question, I shall analysed the pleadings and
the facts averred in the affidavits of both parties.
20
Facts Pleaded in the Statement of Claim
20
Alasan Penghakiman GS22-89-2011
[48] In the Plaintiffs’ Statement of Claim, the Plaintiffs
pray for the
following orderi)
satu deklarasi bahawa EGM tersebut adalah batal dan
tidak sah; dan
5
ii)
satu deklarasi bahawa EGM Terbaharu tersebut adalah
sah.
[49] At paragraph
8 and 9 of the Plaintiffs Statement of Claim,
Plaintiffs’allegations are as follows10
“8. 1 notis EGM tersebut telah dikeluarkan oleh Defendan
Ketujuh, Defendan Kelapan dan Defendan Kesembilan
kononnya
atas
kebenaran
daripada
Pesuruhjaya
Bangunan bagi kawasan Majlis Bandaraya Bersejarah
(selepas ini dirujuk sebagai “Pesuruhjaya Bangunan
15
tersebut”) secara tidak sah dengan menggunakan kepala
surat Plaintif Pertama tanpa pemberitahuan dan kebenaran
daripada majlis Plaintif Pertama.
9. Kebenaran
Pesuruhjaya
Bangunan
tersebut
yang
diberikan kepada Defendan Ketujuh, Defendan Kelapan dan
20
Defendan Kesembilan untuk memanggil EGM tersebut telah
dicabar oleh Plaintif Pertama dalam Notis Usul Pemula
No. 25-11-2011.”
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Alasan Penghakiman GS22-89-2011
[50]
Plaintiffs pleaded that EGM conducted by the Defendants was held
in contravention with the provisions in the Strata Titles Act 1985 therefore
it is null and void and of no effect.
5
[51] Plaintiffs also pleaded in their Statement of Claim that the First
Plaintiff had conducted their EGM in Skudai, Johor where new Council
members had been appointed. The Second Plaintiff was appointed as the
president of the Council.
10
[52] in the affidavit of the Second Plaintiff affirmed on 21.7.2011, the
Second Plaintiff averred thati) paragraph 30(b)-....”dalam Usul pemula 25-11-2011 adalah
terhadap perlantikan Pesuruhjaya Bangunan kepada Defendan
15
Ke 7, Defendan Ke 8 dan Defendan Ke 9 untuk memanggil
mesyuarat luar biasa”.
ii) paragraph 34(f)- “Pesuruhjaya Bangunan tidak pernah mendapat
pengesahan Plaintif Pertama sebelum mengeluarkan surat pada
24.5.2011”.
20
iii) paragraph 35(a)-“Surat Pesuruhjaya Bangunan bertarikh
24.5.2011
adalah
tidak
peruntukan Akta 318”.
22
sah
kerana
menyalahgunakan
Alasan Penghakiman GS22-89-2011
The Defendants Defence
[53]
The Defendants in their defence state as follows“ 7.
Defendan Ketujuh, Defendan Kelapan dan Defendan
Kesembilan
5
telah
mematuhi
arahan
Pesuruhjaya
Bangunan dalam surat arahan bertarikh 6.5.2011
tersebut untuk memanggil EGM tersebut untuk tujuan
menjalankan pilihanraya pada 21.5.2011 di bawah arahan
dan pantauan/ supervisi Pesuruhjaya Bangunan (selepas in
dirujuk sebagai “EGM Sah tersebut”)
10
8.
Demi mematuhi arahan Pesuruhjaya Bangunan dalam surat
arahannya bertarikh 6.5.2011, Defendan Ke 7 telah
menghantar sepucuk surat bertarikh 8.5.2011 kepada
Plaintif Pertama dan seterusnya Defendan Ke 7, Defendan
15
Ke 8 dan Defendan Ke 9 telah memanggil satu Mesyuarat
Agung Luar Biasa, iaitu EGM sah tersebut, untuk diadakah
pada 21.5.2011 dalam satu notis bertarikh 9.5.2011.”
[54] The Defendants also pleaded that while this action is pending trial,
20
the Plaintiffs had filed Notice of Motion No. 25-11-2011 (paragraph 26.1)
for judicial review against the decision of the COB. The Plaintiff action in
this present action is an abuse of process because if the Plaintiffs were
23
Alasan Penghakiman GS22-89-2011
aggrieved with the decision of the COB, they should file judicial review
against COB and not by way of this present action which is by way of writ
of summons against the Defendants(paragraph 52).
5
[55] At paragraph 5 of the Defendants’ supporting affidavit of Enclosure
54, TCH averred that COB in their letter dated 24.5.2011 (“TCH-1”) had
approved the new Council members of PPKGC appointed in the EGM held
at Malacca on 21.5.2011.
10
Plaintiffs’ Reply to Defence
[56] In their reply, paragraph 12 (a) stated that “Plaintif mengesahkan
bahawa Usul Pemula No. 25-11-2011 adalah 1 Semakan Kehakiman
(“Judicial Review”) terhadap Pesuruhjaya Bangunan”and paragraph
15 (b) stated that, “Pesuruhjaya Bangunan tidak ada kuasa dan tidak
15
pernah membenarkan Defendan-Defendan menyalahi peruntukan
Akta Hakmilik Strata 1985”.
[57] Further at sub paragraph (c), the Plaintiffs alleged that the approval
of COB to the Seventh, Eighth and Nineth Defendants to call for EGM if
any, must be conducted in accordance with the provisions under the Act.
20
However, the Defendants had contravent the provisions by appointing
themselves without proper quorum and qualification.
24
Alasan Penghakiman GS22-89-2011
Decision of the Court
[58] After analysing the pleadings from both sides, the core issue before
me is all about the EGM and the appointment of Council members. Hence
the Plaintiffs’ claim for a declaration that the EGM is null and void and
5
declaration that the new EGM is valid and lawful. On the other hand the
Defendants stood by the direction of COB to them to call for the EGM.
Thus the EGM conducted by them is valid.
[59] I am of the opinion that there is a different between the direction of
10
COB to the Defendants to call for an EGM and the Plaintiffs’ claim that the
EGM which was conducted by the Defendants are null and void.
[60] After careful study on the issues stated in enclosure 54, and based
on my analysis of the pleadings, the proper questions to my mind that are
15
just and equitable to dispose the issuesarising in the Plaintiffs Statement
of Claim are as follows1. Whether on the facts alleged in the Plaintiffs’ Statement of
Claim, in essence are claims against the Commissioner of
Building (COB) who had directed the First Plaintiff (PPKGC)
20
and the Seventh, Eighth and Nineth Defendants to hold an
Extra General Meeting to appoint new Council members of
PPKGC for the remaining year of 2011;
25
Alasan Penghakiman GS22-89-2011
2. If the answer for question 1 above is answered in the
affirmative, whether the Plaintiffs’ claim is an abuse of process
of Court for non compliance with Order 53 of the Rules of High
Court 1980, that this claim must be brought by way of judicial
5
review;
3.Whether the Plaintiffs’ claim have become academic by
operation of law by virtue of paragraph 8 of Second Schedule
of Act 318 which provides for new Council members to be
10
elected annually and that, the new Council for PPKGC had
been appointed on 26.12.2011 for the period of 2012;
[61] Whether the Plaintiffs action is a duplicity for having filed the Notice
15
of Motion No. 25-11-2011 for judicial review, the issue does not arise
because this Motion against COB had been withdrawn by the Plaintiffs.
[62] Questions 1 and 2 can be dealth together because the issue raised
is inter related which called for a determination whether Order 53 Rules of
20
Court 2012, “judicial review” applies in respect of the Plaintiff’s present
action.
26
Alasan Penghakiman GS22-89-2011
[63] 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 of
Buildings and such other officers as may be necessary for the
5
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
Actand Parts VI and VII of the Strata Titles Act 1985 and shall
perform such other duties as are imposed and may exercise such
10
powers as are conferred upon him by the Strata Titles Act 1985.
[64] Parts VI contain provisions relating to “Rights and Obligations
Attaching to Individual Parcels and Provisional Blocks” and Parts VII
provides matters concerning “Management of a Subdivided Building”
15
[65] In my opinion, the issue whether COB has the power to issue
direction to the Defendants to conduct EGM does not arise. This issue is
not disputed by the Plaintiffs’ counsel during his oral submission on
27
Alasan Penghakiman GS22-89-2011
27.6.2011.The Plaintiffs are only interested to argue that COB has no
power to allow and never allowed the Defendants to contravent the
provisions in the Strata Titles Act 1985. It is the Plaintiffs contention that
the Defendants had appointed themselve in EGM without proper quorum
5
and qualification contrary to the provisions in the Strata Titles Act 1985.
[66] Therefore, if there is any issue, it is only in respect of the manner the
EGM was conducted to which, in my opinion, the provisions in the Building
and Common Property (Maintenance And Management) Act 2007 [Act
10
633] do not specifically empower COB to supervise the conduct of the
EGM.EGM is an internal matter of the Council. Any dissatisfaction arising
from the EGM including the election of members, the complaints can be
referred to COB.
15
[67] I agree with the submission by the Defendants’ counsel that section
39 of the Building and Common Property (Maintenance And Management)
Act 2007 read together with the Second Schedule of the Act, clearly
established the existence of COB. The Strata Titles Act 1985 has also
been amended to include the power of COB. Section 39 has referred to
20
Second Schedule, therefore, COB has the power to deal with matters
referred to in the Second Schedule of the Act.
28
Alasan Penghakiman GS22-89-2011
[68] It is my opinion that in the absence of Strata Titles Board, any
complaint shall be referred to the COB and COB may exercise his
discretion under paragraph 9(3) of the Second Schedule of the Act to make
any decision.
5
“9 (3) Where the Commissioner is satisfied that the council has not
been properly constituted, he may authorize in writing any proprietor
to convene an extraordinary general meeting for such purposes as
may be approved by the Commissioner.”
[69] 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
[10] The 1st respondent is appointed by the State Authority pursuant
to s. 3(1) of Act 663.
[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
15
powers as are conferred upon him by Act 318.
29
Alasan Penghakiman GS22-89-2011
[12] It is clear that the 1st respondent is empowered to authorize 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
5
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 compliance with
para. 12 and 13 by the applicants.
[13] However the applicants submit that by virtue of s. 67A of Act
318, the 1st respondent does not have jurisdiction to make the said
10
decisions, because s. 67A provides that there should be
established a Strata Titles Board to hear and determine any dispute
under Act 318. The rationale of the applicants' argument was that
since there was no Strata Title Board set up as yet, all disputes had
to be referred straight to court. I do not subscribe to such an
15
argument. Clearly it would be most unfair that parcel owners be
without an avenue to complain especially so if their complaint
relates to an issue as fundamental as the formation of or
participation in the Council of the Management Corporation.
Therefore it is my decision that the complaints were rightly
20
received by the 1st respondent who had jurisdiction to deal
with them under para 9(3).(The emphasis is mine)
30
Alasan Penghakiman GS22-89-2011
[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.
5
[70] 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
the 1st respondent regarding the irregularities which occurred in the
10
Annual General Meeting ('AGM') of the 1st applicant, who was the
Management Corporation for Menara Gurney….”.
[71] In this instant case, the Plaintiffs had alleged that the Defendants in
carrying out the direction of COB to hold EGM had contravent the
15
provisions of the Strata Titles Act 1985 mainly appointing themselve
without quorum and qualification.
[72] It is not disputed that there is a letter from COB dated 24.5.2011
(“TCH-1”) giving sanction to the new Council members of PPKGC
20
appointed in the EGM held in Malacca on 21.5.2011. The letter reads as
follows-
31
Alasan Penghakiman GS22-89-2011
“xxxxxxxxx
2.
Berdasarkan minit Mesyuarat Agung Luar Biasa (EGM)
Perbadanan Pengurusan Kondo Garden City, Melaka yang
bertarikh pada 22 Mei 2011 telah diterima dan difailkan oleh
5
pentadbiran ini pada 23 Mei 2011.
III) Berdasarkan kepada minit mesyuarat yang diterima oleh
pentadbiran ini, ahli-ahli majlis yang dilantik semasa Mesyuarat
Agung Luar Biasa (EGM) tersebut adalah seperti berikut:-
10
(1) Mr. Tan Yik Chong
-Chairman
(2) Mr. Tan chong Guan
-Vice Chairman
(3) Mr. Tan Chong Hong
-Secretary Cum Chief Executive
(4) En. Hasbullah Bin Muhammad Taib -Treasurer
(5) En. Darshansingh Purain –Ordinary Council Member
15
(6) En. Wan Shukri Bin Wan Musthapa –Ordinary Council
Member
4. Sehubungan dengan itu, ahli majlis yang telah dilantik semasa
Mesyuarat Agung Luar Biasa (EGM) hendaklah menjalankan
tugas-tugas
20
dan
kuasa-kuasa
Perbadanan
Pengurusan
sebagaimana yang termaktub di dalam Akta Hak milik Strata 1985
(Akta 318).
xxxxxxxxxxxxxx
32
Alasan Penghakiman GS22-89-2011
(Zainal Bin Haji Abu)
Pesuruhjaya Bangunan (COB)
Bagi Kawasan
Majlis Bandaraya Melaka Bersejarah.”
5
[73] The Plaintiffs disputed the appointment of Council members found
in the said letter and sought declaration that the EGM is null and void.
Since the Plaintiff had also conducted their own EGM, they also sought
declaration that the new EGM is valid.
10
[74] Based on the claim of “declaration” it is clear that the Plaintiffs are
challenging the appointment of Council members of PPKGC which have
been approved by COB. Such challenge to my mind is akin to judicial
review.
15
[75] 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 decided20
“The appellant in praying for declaratory orders was in effect
resorting to a procedure that is akin to judicial review. No manifest
33
Alasan Penghakiman GS22-89-2011
reasons may be discerned for invoking outrightly the exercise of the
discretionary powers of the court. The ingenuity of 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
5
proceeded where it was also converted from an action that
commenced as an originating summons to a writ action. Secondly,
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
10
position that it has already taken. The Court of Appeal itself has
observed that there are no special circumstances prevailing on the
facts of this case to warrant the court to exercise its jurisdiction (see
para 21).
15
[76] 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
20
Authorities Protection Act 1948 [Act 198]” is applicable to any action by
COB.
34
Alasan Penghakiman GS22-89-2011
[77] 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
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
5
Court 2012 provides that an application for judicial review may seek any
of the said reliefs, including the prayer for a declaration.
[78] The landmark case of Ahmad Jefri Bin Mohd Jahri @ Md Johari
v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145.
10
James Foong FCJ in his judgment said as follows-
“The appellant obtained leave to appeal to the Federal Court on two
15
questions, viz: (i) whether pursuant to the amended O 53 of 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
20
claim, instead of through an application for judicial 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
35
Alasan Penghakiman GS22-89-2011
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.
5
It was held(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
10
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
15
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.
20
(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
36
Alasan Penghakiman GS22-89-2011
of public law present. The appellant was a public officer 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 acted within the scope
5
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 there were statutory conditions
and restrictions imposed by the Regulations on the conduct and
10
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 [1985] 1 QB 152 and Wendal Swann v
Attorney General of the Turks and Caicos Islands [2009] UKPC 22
15
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
such an explicit procedure is created, then as a general rule all
20
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.
37
Alasan Penghakiman GS22-89-2011
However, there are exceptions, such as where the action is a 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; YAB
5
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) A challenge on the use of appropriate procedure is very much
10
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
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
15
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
the ground that it abuses the court’s process. If the matter is under
private law, though concerning a public authority it would be
20
inappropriate to commence the action under O 53 of the RHC. The
courts should be cautious in allowing a matter that should be
38
Alasan Penghakiman GS22-89-2011
commenced by way of O 53 of the RHC, to proceed in another
manner (see para 61).
(6) In the instant case, the appellant’s claim was based solely on
public law. There was no trace of private law involvement. Neither
5
did the circumstances justify an exception to the general rule.
Thus, the appellant’s writ was rightly struck off as an abuse of the
court’s process (see para 63).
10
Conclusion
[79] 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 or
Order 53 of the Rules of the High Court 1980 at the material time. The
15
Plaintiffs’ action is therefore an abuse of process.
[80] in the circumstances the answer to questions 1 and 2 is answered in
the affirmative.
20
[81] It is my finding also that the Plaintiffs claim is academic by operation
law by virtue of paragraph 8 of the Second Schedule of Strata Titles Act
1985 which provides for Council members to be appointed annually. In
39
Alasan Penghakiman GS22-89-2011
view of the EGM, the new Council members of PPKGC have been
appointed on 26.12.2011 for the year 2012.
[82] The determination of the issue as preliminary issues will be decisive
5
of the whole litigation or essentially the main part of the suit. Thus, resulting
in a substantial saving of time and cost as it will significantly cut down the
costs and time involved in pre-trial preparation or in connection with the
trial proper. In the circumstances the trial proper for this case is
unnecessary and pursuant to O 33 r 5 of the Rules of the High Court 1980,
10
the Plaintiff writ of Summon ought to be struck off for non compliance of
Order 53 Rules of Court 2012 and is an abuse of process.
[83] The Defendants application is allowed with Cost.
15
Dated: 22 August 2013
20
40
Alasan Penghakiman GS22-89-2011
5
SOLICITORS:
10
M/s Lee Kwang Chaow& Co (W. C. Goh and YapBell Pung) for the
Applicant/Defendants
M/s C.T. Chew& Co (Chew Chin Tai) for the Respondent/Plaintiffs
LEGISLATIONS
Rules of High Court 1980
15
Rules of Court 2012
Strata Title Act 1985
Building and Common Property (Maintenance And Management) Act 2007
CASES REFERRED:
41
Alasan Penghakiman GS22-89-2011
1. Perbadanan Pengurusan Menara Gurney &Ors v. Pesuruhjaya
Bangunan, Majlis Perbandaran Pulau Pinang & Anor [2011] 6CLJ
583
2. Nora
5
Hayati
bt
Ismayatim
(sebagai
pemilik
tunggal
yang
menjalankan guaman) v Amanah Raya Berhad (didakwa sebagai
pentadbir de bonis non harta pesaka si mati, Law Kuar) [2012]3 AMR
540,
3.
Yeoh Cheng Han & Anor v PPH Resorts (Penang) Sdn Bhd [2011]
3 MLJ 207,
10
4.
Tan Ching Choong & Ors v Ekabina Sdn Bhd & Ors [2002] 5 MLJ
654.
15
5.
Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1
MLJ 8; [2003] 4 CLJ 337.
6.
Ayer Itam Height Sdn Bhd & Ors v Chung Nyuk Sen @ Henry Chung
[2003] 2 MLJ 481; [2003] 2 CLJ 685
20
7.
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
25
8.
Ahmad Jefri Bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan
& Kesenian Johor & Ors [2010] 3 MLJ 145.
42
Alasan Penghakiman GS22-89-2011
43