IN THE HIGH COURT OF MALAYA ATSHAH ALAM IN THE …3 TWO SQUARE SDN. BHD. … DEFENDANT . BEFORE ....

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IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN

SUIT NO: 22NCVC-510-07/2013

BETWEEN

PERBADANAN PENGURUSAN 3 TWO SQUARE ... PLAINTIFF

AND

3 TWO SQUARE SDN. BHD. … DEFENDANT

BEFORE

Y.A. TUAN GUNALAN A/L MUNIANDY

JUDGE, HIGH COURT

GROUNDS OF JUDGEMENT

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[1] This is a lengthy and protracted trial of 3 consolidated suits

commenced by the Plaintiff (‘P’) Management Corporation (‘MC’) of a

condominium called 3 Two Square (‘3TS’) established under Section 43 of

the Strata Titles Act, 1985 (‘STA’) against the Developer and previous

Managing Agent (‘M/A’) of the building , now the Defendant (‘D’).

[2] Vide the 1st suit, Shah Alam High Court (‘SAHC’) Suit No.

22NCVC-510-07/2013 (‘Suit 510’) filed on 31.7.2013, P seeks “the return of

management fees paid by the Plaintiff to the Defendant in the sum of RM

1,200,000.00 (management fees for the years 2008 – 2012 at

RM240,000.00 per year) and for various documents as listed in Annexure A

of Statement of Claim – A” also filed on 31.07.2013.”

[3] Vide the 2nd suit, SAHC, Suit No. 22NCVC-516-07/2013 (‘Suit 516)

P seeks payment from the Defendant in the sum of RM1,739,712.00 as

maintenance and sinking fund charges for the car parks owned by the

Defendant based on Car Park Maintenance Invoice 1 and Car Park

Maintenance Invoice 2.

[4] Vide the 3rd suit, SAHC Suit No. 22NVCV-125-03/2014 (‘Suit 125’)

filed on 10.06.2014 P seeks payment from the Defendant in the sum of RM

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139,200.00 as rental of the Car Park Office from August 2008 until May

2013 and presumably based on Car Park Office Rental Invoice 1 to 5.

Factual Background of Claims

Suit 22NCVC-510-07/2013

[5] Summary of P’s case:

(1) The Plaintiff is a management corporation for “3TS” incorporated

pursuant to Strata Titles Act 1985 on 2nd August 2008 and having

its office at Management Office, Block A LG2, 3 Two Square, No.

2, Jalan 19/1, 46300 Petaling Jaya, Selangor Darul Ehsan.

(2) The Defendant is a company incorporated pursuant to Companies

Act 1965 in Malaysia having its business address at F-39-PH,

Penthouse The Crest, Dataran 3 Two, No. 2 Jalan 19/1, 46300

Petaling Jaya, Selangor Darul Ehsan. The Defendant is the

developer for 3TS commercial center known as 3TS.

(3) After the completion of 3TS, the Defendant has full control on the

Plaintiff’s account and after the Plaintiff were incorporated, except

for accounts, the Defendant and/or Joint Management Body of 3TS

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had tendered all services and management dealing and affairs of

3TS to the Plaintiff. However, the Defendant had still continued to

deal with accounts of 3TS with no approval or consent from the

Plaintiff.

(4) Since September 2012, the Plaintiff had requested from the

Defendant for all documents and complete account books to be

submitted to the Plaintiff and around October 2012, the Defendant

had submitted documents and incomplete account books in nine

boxes to the Plaintiff.

(5) Vide letter dated 18.10.2012, the Plaintiff had requested for

documents in detail, listed in the list prepared by the Defendant.

However, the Defendant had failed, refused and/or neglected to

provide the documents tabulated in List “A” in Statement of Claim.

(6) Further and based on audit accounts, the Plaintiff discovered that

in 2008, the Defendant had charged a sum of RM240,000.00 per

annum for management fees for Joint Management Body of 3TS

and in 2009, 2010, 2011 and 2012, the Defendant had charged a

sum of RM240,000.00 per annum for management fees on the

Plaintiff with no management agreement entered into between the

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Plaintiff and the Defendant nor Joint Management Body of 3TS with

the Defendant to enable the Plaintiff to charge management fees of

RM240,000.00 per annum or RM20,000.00 per month.

(7) Thus, the Defendant had invalidly, unfairly and wrongly levied and

obtained payment of management fees which was not approved by

Joint Management Body of 3TS and the Plaintiff in the sum of

RM1,200,000.00 and had failed to give any explanation to the

Plaintiff despite numerous demands.

(8) The above action of the Defendant was intended to conceal its

fiduciary duties and responsibilities as the developer to the Plaintiff.

[6] Summary of D’s case:

(1) The Defendant is the developer appointed to develop a commercial

centre known as 3TS.

(2) After the Defendant completed the 3TS commercial centre in

August 2007, the Defendant in the capacity as developer had

maintained and managed 3TS project.

(3) Joint Management Body 3TS (‘JMB’) was incorporated on 2/8/2008

to take over the maintenance and management of 3TS.

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(4) JMB had directly or indirectly appointed the Defendant as the

Managing Agent to continue maintaining and managing 3TS on

behalf of the JMB.

(5) The Plaintiff was incorporated on 8/4/2009 and after the

incorporation of the Plaintiff, the Plaintiff had directly or indirectly

appointed the Defendant to continue maintaining and managing

3TS on behalf of the Plaintiff.

(6) The Defendant’s service in maintenance and management of 3TS

was terminated by the Plaintiff via the Plaintiff’s letter dated

13/7/2012.

(7) Subsequent to the above facts, JMB and the Plaintiff had paid to

the Defendant RM20,000.00 per month from 2/8/2008 until

31/7/2012 for maintenance and management services of 3TS as

provided by the Defendant.

(8) The maintenance fees were paid by the Plaintiff or JMB to the

Defendant with no complaint.

(9) All the Plaintiff’s documents and documents related to maintenance

and management of 3TS in the Defendant’s custody that were to

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be handed over to the Plaintiff under the law had already been

handed over to the Plaintiff.

(10) The Defendant had performed all its duties and responsibilities as

a developer.

Suit 22NCVC-516-07/2013


(1) At all material times, the Defendant was the owner of all the car

park parcels at Basement 1 & 2 and L1 & 2 measuring 169,728 s.f.

in 3TS (the Defendant’s car park parcels).

(2) At all material times, maintenance charges and sinking fund

payable by parcel owners in 3TS including the Defendant are as

follows:-

From 1.08.2008 until 15.1.2010

Maintenance charges - RM0.18

Sinking fund - RM0.02

Total - RM0.20

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Since 16.1.2010

Maintenance charges - RM0.27

Sinking fund - RM0.03

Total - RM0.30

(3) However, since the Plaintiff was incorporated, the Defendant had

only paid maintenance charge of RM0.045 and sinking fund of

RM0.005 p.s.f., i.e. total of RM0.05 p.s.f.

(4) Therefore, there were shortages of payment for maintenance

charges and sinking fund by the Defendant i.e. from 01.08.2008

until 15.01.2010 of RM0.15 p.s.f. and since 16.01.2010, shortage

of payment of RM0.25 p.s.f.

(5) Since August 2012, the Plaintiff and/or its solicitor had sent

notices, letters and invoices to the Defendant asking for payment

of the shortfall of maintenance charges and sinking fund for the

Defendant’s car park parcels. However, the Defendant ignored

the demands.

(6) Maintenance charges and sinking funds payable since 01.08.2008

until 31.7.2013 are as follows:-

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Details

From 1.08.2008 until 15.1.2010

Maintenance charges - RM0.18 - RM0.0045 = RM0.135

Sinking fund - RM0.02 – RM0.005 = RM0.015

Total month - 17.5 months

Maintenance charges - 169,728 sq ft x RM0.135 x 17.5 = RM400,982.40

Sinking fund - 169,728 sq ft x RM0.015 x 17.5 = RM 44,553.60

Total Shortage RM444,536.00

Since 16.1.2010

Maintenance charges - RM0.27 – RM0.0045 = RM0.225

Sinking fund - RM0.03 – RM0.005 = RM0.025

Total month - 30.5 months

Maintenance charges - 169,728 sq ft x RM0.225 x 30.5 = RM1,164,758.40

Sinking fund - 169,728 sq ft x RM0.025 x 30.5 = RM 129,417.60

Total Shortage RM1,294,176.00

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(7) The Defendant claims that payment of maintenance charges and

sinking fund was made for Corporate Office of RM0.50 permonth

p.s.f. from 01.08.2007 until 15.01.2010 and RM0.60 per month

p.s.f. from 16.01.2010 until now.

(8) The Plaintiff avers that the Defendant did not make payment for

maintenance charge and sinking fund in the sum averred by the

Defendant.

(9) Despite, all parcels of units in 3TS had paid the same rate of

RM0.20 p.s.f. per month from 01.08.2008 until 15.01.2010 and

payment of RM0.30 p.s.f. per month from 16.1.2010 until now.

(10) The Plaintiff avers that payment that the Defendant alleged as

excess payment is actually payment for electric bills for centralized

air conditioner, including chillers, related pumps, AHUs and

cooling towers.


(1) The Defendant is a developer of a project known as “3TS” (“the

said development”) who is responsible towards the maintenance

of the said development from the date of delivery of vacant

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possession of each parcel in the said development to purchasers

until the lapse of the defect liability period.

(2) Vacant possession was delivered to the purchasers of the said

development on 3.8.2007 and the Joint Management Body was

established.

(3) The Plaintiff was incorporated on 8.4.2009.

(4) The Defendant is the registered owner of the land below in the

said development, detailed with the square feet of each parcel: -

(5) Since August 2007, that is the date of delivery of vacant

possession of parcels at the said development to purchasers, until

16 January 2010, the Defendant had paid RM0.50 p.s.f. per month

for Corporate Offices, RM0.20 p.s.f. per month for shops, and

RM0.05 p.s.f. per month for car park parcels. Amount paid by the

Defendant was RM80,827.80 per month. At the same time, all

purchasers in the said development are paying RM0.20 p.s.f.

(6) After 17 January 2010 until now, the Defendant had paid RM0.30

p.s.f. per month for the said shops, RM0.60 p.s.f. per month for

Corporate Office and RM0.05 p.s.f. for car park parcels. Total sum

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paid by the Defendant per month was RM95,850.00. At the same

time, all purchasers at the said development were paying RM0.30

p.s.f. per month.

(7) From the date of delivery of vacant possession until to-date, the

Defendant has paid RM0.30 p.s.f. every month on a higher rate for

its corporate office as compared to other owners at the said

premises, as per the Plaintiff’s bill, which contravenes the Strata

Title Act.

(8) Pursuant to the Strata Title Act, permitted rate that can be charged

to owners must be the same. However, after several complaints

and demands to the Plaintiff after 2012, the Plaintiff failed and/or

refused to rectify the above, despite having full knowledge that the

Plaintiff had overcharged the Defendant. The Plaintiff further

demanded that the Defendant pay RM0.15 and RM0.25 p.s.f.

every month for car park parcels.

(9) At the same time, the Plaintiff refused to maintain the common

areas at the Defendant parcel.

(10) The Defendant had paid extra to the Plaintiff every month from the

date of delivery of vacant possessions until todate.

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(11) Any increase in rate of charges payable to the Plaintiff as stated in

the Statement of Claim is invalid and contravenes the law.

(12) Further and/or in the alternative, without admitting to any increase

of charges as valid, the total monthly bills by the Plaintiff every

month for the Defendant’s parcels are lower that what the

Defendant had paid monthly in total to the Plaintiff.

(13) Except for management charges, the Plaintiff had contravened the

law by charging the Defendant the utility charges.

(14) Because of error of fact and law, the Defendant had overpaid the

Plaintiff every month for charges claimed to be payable to the

Plaintiff, for maintenance claimed for the common areas in 3TS

including common facilities at the Defendant’s parcels.

(15) The Defendant repeats and adopts the above paragraphs for its

counterclaim against the Plaintiff.

(16) Pursuant to the Strata Title Act, contribution or charges payable by

the Defendant should be the same rate with other parcel owners at

the said development i.e., RM0.20 p.s.f. or RM0.30 p.s.f. per

month, based on the relevant period.

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(17) Further, the Defendant had paid extra to the Plaintiff by RM0.30

p.s.f. every month for the Corporate Office for the period after

delivery of vacant possession until to-date.

(18) The Defendant counter-claims from the Plaintiff for the overpaid

sums received by the Plaintiff from the Defendant and for refund

RM2,516,671.50 for the overpaid sum or in the alternative, set-off

from any sum accrued in the Judgment owing by the Defendant to

the Plaintiff for car park parcels, if any, which is denied.

Suit 22NCVC-125-03/2014


(1) Before July 2012, the Defendant had full control over JMB

members of 3TS and the Plaintiff. Therefore, any action taken by

3TS JMB and the Plaintiff were actually the decisions made by the

Defendant and solely for their benefit.

(2) At all material times, the Defendant has and still has the full control

of car park operation for 3TS and it has placed, continued using

and occupying the car park management office (‘CPMO’) located

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in an office space having approximately 600 square feet which is a

common property in Block A, LG-2, 3TS, No. 2, Jalan 19/1, 46300

Petaling Jaya, Selangor Darul Ehsan under the Plaintiff’s control

and management (The said Car Park Office).

(3) At all material times, neither 3TS JMB nor the Plaintiff had

appointed the Defendant, whether directly or indirectly or by any

implication, as managing agent and/or had given approval to the

Defendant to maintain nor manage 3TS as a whole until

management of 3TS is taken over by the Plaintiff after its

establishment on 8.4.2009.

(4) As a developer, the Defendant personally assumed that they are

the managing and maintenance agent to manage 3TS until the

new members had taken over the Plaintiff’s management and until

the Defendant’s involvement in management and maintenance of

3TS had ceased.

(5) Despite several meetings and negotiations between the Plaintiff’s

representative and the Defendant’s representative, the Defendant

failed, refused, and/or neglected to make any rental payments to

the Plaintiff.

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(6) Since September 2012, the Plaintiff and/or its solicitors had sent

invoices and letters (including letters dated 26.9.2012, 6.12.2012

and 6.1.2013) to the Defendant demanding monthly rentals from

them for the said CPMO and demanding arrears of payment from

the Defendant since the establishment of the Plaintiff.

(7) The Defendant’s representative, Ms. Rachaelle Yong had made a

false representation to the Plaintiff’s representative, Mr. Loh Kim

Tong that the CPMO was owned by the Defendant. The Plaintiff

came to know that the said CPMO is not owned by the Defendant

but a common areas owned by the Plaintiff after the Plaintiff

acquired Strata Title Plan for 3TS.

(8) The Defendant admitted that the Plaintiff is entitled to collect

rentals for the CPMO since the establishment of the Plaintiff as

they never permitted the Defendant to occupy the premise for free

with no rental. In addition, even if the Defendant is the managing

agent, the said office was not meant for maintenance of 3TS but

was intended by the Defendant to manage car park parcels owned

by the Defendant. The Defendant had used its office at Block F

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Corporate Tower as its management office for the purpose of

managing and maintaining 3TS.

(9) As at April 2013, the Defendant had failed, refused and/or

neglected to pay monthly rentals since August 2008 until and

including the month of April 2013. The total monthly rental owed

by the Defendant to the Plaintiff is RM136,800.00 (RM4.00 p.s.f. x

600 s.f. = RM2,400 per month x 57 months (August 2008 to April

2013) ( the said outstanding rentals).

(10) The Plaintiff had instructed it’s solicitors Messrs Ling & Mok to

issue a notice dated 18 April 2013 (The said Notice of Demand) to

demand from the Defendant to make payment of the said

outstanding rentals and give a notice of the Plaintiff’s intention to

repossesses the said CPMO on or before 31.5.2015. However, the

Defendant still failed, refused and/or neglected to make any

payment of the said outstanding rentals. The Defendant however,

had delivered the vacant possession of the said CPMO on

31.5.2013.

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(1) The Defendant is the developer of a development project 3TS.

After 3TS project was completed and delivery of all shop lot

parcels and office to the purchasers had taken in August 2007, the

Defendant as the developer had maintained 3TS project from

August 2007 until the establishment of Joint Management Body

(“JMB”) 3TS in August 2008.

(2) After the establishment of JMB, JMB had appointed the Defendant

directly or indirectly as managing agent and/or had given approval

to the Defendant for them to fully maintain and manage the 3TS

project until the Plaintiff took over after their establishment in April

2009.

(3) Therefore, the Plaintiff had appointed the Defendant as managing

agent directly or indirectly and/or had agreed and allowed the

Defendant to continue maintaining and managing 3TS project until

the Defendant’s services were terminated by the Plaintiff in July

2012.

(4) As managing agent, the Defendant had occupied the said office

with no charges and agreement, permission or with objection from

JMB and the Plaintiff since August 2008 so that the Defendant

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could manage and maintain 3TS projects including car park area

affairs in 3TS.

(5) After the termination of the Defendant’s services in July 2012, they

were allowed to occupy the said office to manage the car park

area in 3TS. The Plaintiff had agreed directly or by conduct that

the Defendant was permitted to continue occupying the office

without charges or rental and the Plaintiff be restricted or estopped

from denying this.

(6) In any circumstances, the Defendant is not responsible or liable

towards the Plaintiff for the rental for the period before the

establishment of the Plaintiff.

(7) There was no tenancy agreement entered into by the Defendant to

rent the said office. The Plaintiff’s claim is invalid, baseless and

mala fide.

The Law on Burden of Proof

[11] The governing provisions of this aspect of the law are Sections 101

and 103 of the Evidence Act, 1950 (‘EA’) which provide that:

“101. Burden of proof

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(1) Whoever desires any court to give judgment as to any legal

right or liability, dependent on the existence of facts which he

asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact,

it is said that the burden of proof lies on that person.

…

103. Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person

who wishes the court to believe in its existence, unless it is

provided by any law that the proof of that fact shall lie on any

particular person.

…”

[12] On the onus of proof at different stages of the trial, the classic case

is Selvaduray v Chinniah [1939] 8 MLJ 253 where Terell, AG CJ explained

succinctly that:

“… it is clear that the onus is on the plaintiff to prove his case.

After the conclusion of the whole case there must be some

preponderance in his favour. It may be true that the plaintiff

established a prima facie case, but at the conclusion of the trial

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the learned Judge has found that the position was exactly even,

i.e. that any preponderance in the plaintiff’s favour had

disappeared. That being the case the plaintiff must necessarily

fail, as he has not discharged the onus which is upon him. No

doubt the defendant would equally have failed if he had been

the claimant and had tried to establish, as a substantive part of

his case, the alternative version which he tried to prove in

answer to that of the plaintiff. But as he was not the claimant,

that consideration is quite immaterial. It is quite sufficient for his

purpose if he can satisfy the Court that the plaintiff has not

established his case and the learned Judge has so found.”

[13] As regards adjudicating the veracity of witness testimonies, the

leading authority is Tindok Besar Estate Sdn. Bhd. v Tinjar Co. [1979] 2

MLJ 229 where Chang Min Tat, FJ, remarked:

“For myself, I would with respect feel somewhat safer to refer to

and rely on the acts and deeds of a witness which are

contemporaneous with the event and to draw the reasonable

inferences from them than to believe his subsequent

recollection or version of it, particularly if he is a witness with a

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purpose of his own to serve and if it did not account for the

statements in his documents and writings. Judicial reception of

evidence requires that the oral evidence be critically tested

against the whole of the other evidence and the circumstances

of the case. Plausibility should never be mistaken for veracity.”

[14] On the same area of the law, in Lee Ing Chin @ Lee Teck Seng &

Ors v Gan Yook Chin & Anor [2003] 2 MLJ, 97 Gopal Sri Ram, JCA (later

FCJ) pronounced:

“A judge who is required to adjudicate upon a dispute must

arrive at his decision on an issue of fact by assessing, weighing

and, for good reasons, either accepting or rejecting the whole

or any part of the evidence placed before him. He must, when

deciding whether to accept or to reject the evidence of a

witness, test it against relevant criteria. Thus, he must take into

account the presence or absence of any motive that a witness

may have in giving his evidence. If there are contemporary

documents, then he must test the oral evidence of a witness

against these. He must also test the evidence of a particular

witness against the probabilities of the case. A trier of fact who

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makes findings based purely upon the demeanour of a witness

without undertaking a critical analysis of that witness’ evidence

runs the risk of having his findings corrected on appeal. It does

not matter whether the issue for decision is one that arises in a

civil or criminal case: the approach to judicial appreciation of

evidence is the same.”

Credibility of Witnesses

[15] P, in their submission, called into question the credibility and

truthfulness of several witnesses called by D, foremost among whom are

as below based in contradictions and discrepancies in their evidence. I held

the view that this was a valid issue that merited sessions consideration.

[16] DW1, who was D’s consultant engineer was shown by his

demeanour to be an interested party having also been a former member of

the JMB and MC. He further conceded that he had no personal knowledge

of the matter that he had testified on as he had never been present in any

of the relevant meetings and AGM. This rendered his evidence hearsay

and devoid of credibility.

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[17] DW2 was the surveyor who prepared the Strata Plan (‘SP’) for the

present development. The subject of complaint against his evidence was

that he had clearly present a version that was contrary to the Defence case

when he acknowledged that the share units assigned to each parcel

determines the following:

(1) the working rights of the proprietor;

(2) the quantum of undivided shares of each proprietor in the common

property; and

(3) the proportion payable by each proprietor of the contribution levied

by the MC.

[18] P took issue with the evidence of DW3, a director of D and ex

council member of the MC, on the ground of his constant reluctance to give

full and frank disclosure to the Court and evasiveness throughout the

cross-examination. It was plainly apparent that when he was confronted he

could not support his testimony with any corroborative evidence and most

of the documents which he had mentioned in court were not produced in

the Bundles.

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[19] Lastly, but most importantly, it was the evidence of DW4, D’s Head

of Finance and a key witness in this case, whose contradictory evidence

presented a lot of difficulties and tarnished the defence case for seriously

lacking credibility. He particularly appeared not to understand the simple

meaning of having personal knowledge of the contents important of

documents that D sought to produce of which he was not the maker and

instead as contended by P, “… continued with his charade of giving

inconsistent statement which led to the commencement of a committal

proceeding against him. Despite being a Chartered Accountant by

profession, he conveniently ignored several attempts, including by the

Court, to explain in plain language what personal knowledge meant.

[20] In the circumstances, I further concurred with the submission of P

that PW4’s evidence as a whole did not justify being “… given much

probative value in the light of other contemporaneous documents as well as

the conflicting testimonies given by the DW4 himself while under oath

during the cross examination.

[21] It would appear that DW3 was a partisan witness who had

intentionally or deliberately presented conflicting and irreconcilable version

in regard to his personal knowledge of the contents of several material

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document such as payment vouchers and debit not exhibited in the

Bundles of Documents (‘BOD’) while he had all the opportunity to clarify

that the signatures appearing on the documents in question were his he

had, for reasons of his own, chosen to deny it but only admitted the same

at the last stage of cross-examination. As rightly pointed out by P, it was

highly improbable and most unlikely for DW4 not to be able to identify his

signatures on document placed before the Court on one day of the trial and

to strangely recognize the same on the very next day. Equally important is

the fact that DW4 by his own admission conceded that much of his

knowledge in regard to that material documents on which he testified was

based on information received from a 3rd party, namely, another employee

of D and he himself had no personal knowledge.

[22] Hence, it can be seen that only very minimal credibility can be

attached to DW4 credibility and that his evidence was substantially hearsay

that should not be taken into consideration.

Analysis of Evidence and Findings on Core Issues

Suit 22NCVC-510-07/2013

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[23] This suit arises basically from alleged illegal and unauthorized

payments by the Defendant (‘D’) and the incomplete handover of important

documents to P following its incorporation and takeover of management of

the complex.

[24] The crux of D’s case in respect of this suit is based on the following

material facts as submitted by them.

“D as the developer of the complex had been maintaining the

complex from the initial period i.e. August 2007 until August

2008 after which the JMB came into existence by operation of

law.

D is the registered proprietor of 13 shop lots, 17 office lots

(‘Block F’) and all the car park parcel which is attached to one

of the unit in Block F (parcel 267) (‘accessory parcel’) of the

Complex.

D via its representative was the jointly involved in the

management of the complex along with other parcel owners.

D post the initial period, i.e., after August 2008, continued to

‘manage’ the complex until 2012.

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D’s representative had continued to control the JMB and

subsequently the MC vide its proxy until 2012 during which the

parcel owners voted for new MC members.

After the newly appointed MC members, i.e., on 2012/2013, /

office bearers, took over the management of the MC, startling

discoveries were made, such as:

a) The so-called managing agent which is the alter ego of D

has been continuously ‘managing’ the complex from 2007

until 2012 when in 2012 they were replaced with Clement

Management, a licensed property management company.

b) That the so-called managing agent i.e. D had been paid

RM20,000.00 per month from 2008 – 2012 under the

pretext of payment of management service.

c) Above the RM20,000.00 payment, D continued to charge

all the operation cost of its management staff which

includes benefis, cover allowances and all other expenses.

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d) It was also discovered that there were no records of

collection of maintenance charge and sinking fund from D

as the registered proprietor of various units in the complex.

e) It was also discovered that D had been outsourcing all the

procurement jobs and supplies from its subsidiaries

companies known as Crest Builder Sdn. Bhd., CB Tech,

and others where there is an additional 7% kick back

charges billed to the MC without prior approval of the MC.

f) That D had been misusing their position as the de facto

managing agent in making purchases for their personal

staff, car park business operation, their customer and

holdings (Crest Builder Sdn. Bhd. by way of subsidy from

the maintenance funds which was collected in their own

personal bank account.

g) That D as the Developer had failed to open a separate

maintenance account under the development account up to

2011 and has been collecting and depositing the

maintenance charges into their own account over which

they had full control and no proper account was given.

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h) That there are no documentary records of council meetings

and resolutions passed by the MC from 2009 until 2012.”

[25] P also highlighted the following undisputed facts that emerged at

the trial:

“(a) There was no tender application open for a competent

licensed property Management Company to manage the

complex from 2008-2012.

(b) That no proposal for the appointment of a managing

agent was brought to the AGM.

(c) That the issues of calling for tender and appointments of

management company was never brought before any of

the council meetings.

(d) That there was no letter of appointment appointing D as

the managing agent (‘M/A’).

(e) There was no approval either from the MC or even from

the AGM approving the payment of RM20,000.00 as M/A

fee.

(f) There was no payment voucher or paper trail to show

who approved the payment.

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(g) That D was paid RM20,000.00 per month from 2008-2012

from the management fund as their professional fees.

(h) Over and above the RM20,000.00, D had charged

separately for the staff and supplies to the management

fund.”

[26] It was not in dispute that there was no documentary evidence

before the Court showing that there was any letter of appointment or offer

ever issued or given by P to D for the position of managing agent (‘M/A’) of

the condominium.

[27] D’s case on the issue of its appointment as M/A and right to collect

management fees is briefly this:

(1) The JMB had expressly or impliedly appointed D as the Managing

agent for the complex.

(2) After 8/4/2009 in which the Management Corporation (‘MC’) was

formed, the MC had expressly or impliedly appointed D as the

managing agent.

(3) That all the documents were already handed over to P.

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(4) That the management fee of RM20,000.00 per month was paid

without any objection.

(5) That D as the Developer had discharged their duty and obligation

with full transparency.

(6) That D had paid all the maintenance charges charged by P in

respect of the parcels that it owned.

[28] P on the other hand, alleged that since the inception of the MC that

D had at all material times been unjustly enriching themselves and abusing

their position first as the Developer, then as M/A and lastly as majority

office bearers of the MC during the period 2008 to 2012.

[29] During the same period D had been allegedly collecting

management fee of RM20,000.00 per month which was never approved by

the parcel owners of the complex but decided unilaterally by D when they

were in control of the funds. Neither was D ever appointed by the parcel

owners as the M/A in any AGM or Council Meeting.

[30] D had also during their tenure as M/A been allegedly withholding

information of the accounts and expenses of parcel owners and refused to

disclose the same when queried during the AGM of the MC.

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[31] P also rightly stressed that the so called ‘audited accounts’

produced by D must be treated with caution as their reliability was in

question since the purportedly independent’ account out appointed by D to

perform the audit relied wholly on documents selectively provided by D. As

correctly contended, the credibility of the said audited accounts was open

to question as the accounts could not be verified by P as the essential

documents listed in the Appendix A were not fully handed over to P.

[32] D, further, did not provide any proof that the maintenance and

sinking fund (‘M and S/F’) charges collected by D during the period 2008 to

2012 were credited into the Maintenance Fund of the complex.

[33] A scrutiny of the evidence, based on the comparative study,

disclosed a wide disparity between the managing agent (‘M/A’) fee charged

D s an unlicensed M/A and that charged by Clement Management, the

licensed M/A appointed by P. Without going into details of the figures, what

was discovered was that the professional fees charged by Clement was

RM13,500.00 per month or RM162,000.00 per annum whereas D charged

RM240,000.00 per annum throughout the period.

[34] In the analysis of D’s case and evidence at the trial, the crux of

their defence can be summarised as follows:

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(1) The JMB and the MC had expressly or impliedly appointed D as

the Managing Agent (‘MA’) for the complex and allowed D to keep

maintaining the complex.

(2) That all the documents were handed over to P.

[35] Concerning the 1st limb above, no evidence of any sort was

presented to prove the existence of the so claimed express or implied

consent or approval of the JMB followed by the MC, for the appointment of

and payment to D as the M/A. DW3, D’s former director and ex-chairman of

the MC himself, conceded that the appointment of the M/A was never

proposed nor endorsed at the AGM of the JMB or MC. The same was

confirmed by other important witnesses for D. There was no management

agreement entered into between the MC and D. According to DW3, the

process of appointment of D as the M/A never went through the AGM but

was done by the Committee Members themselves without any approval or

endorsement by the AGM. Neither were tenders called from managing

agencies to bid for the job.

[36] Under the circumstances, I upheld P’s contention that D had failed

to proffer any evidence of value at the trial that went to show that the JMB,

MC and/or parcel owners had expressly or at least implicitly appointed and

allowed D as the M/A with a fee of RM20,000.00 until 2012. However,

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having done so, I also took note of P’s contention that P, being a body

corporate established on 8.04.2009 pursuant to S. 39 of the STA was not

entitled to claim for matters (fees and charges) or debts incurred prior to its

corporation. Among the claims that fell in this category was the claim for

return of managing agent fees for the years 2008 and 2009.

[37] I found merits in D’s submission that P’s aforesaid claim for matters

prior to its incorporation is untenable in law as P did not have the right or

locus standi to make the claim at that point in time. The provisions of the

STA have no retrospective effect to validate the claim for matters arising

prior to the incorporation of the JMB. The position taken by P is erroneous

that it is entitled to levy charges and claims against D even before it is

deemed incorporated. It is also noteworthy as pointed out by D that at no

time between 02.02.2008 and 8.04.2009 has there been any notice

pursuant to Section 23(3) of the Building and Common Property

(Maintenance and Management) Act, 2007 issued to D. The charges in

question were never levied by 3 TS JMB but by P. It, thus, followed that the

claim for return of management fees was sustainable only with effect from

8.4.2009, i.e., after the incorporation of P.

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[38] With respect to the part of the claim relating to the request for

documents as per Annexure A of the Statement of Claim (‘SOC’), I agree

with D’s contention that this aspect of the claim appears to be incongruous

or in conflict with the claim for return of M/A fees paid to D. As P had

claimed that D had never been appointed the M/A of 3TS as no

management services had been provided by them it would be untenable for

P to seek the return of documents during the period when D was

maintaining and managing 3 TS. Based on the undisputed documentary

evidence that was raised in P’s case, it was correctly contended by D that

the following events are material to the issue of request for documents by

P:

“(i) By way of P’s letter dated 15 May2012, D was requested to

provide to P’s Council various financial information of 3TS

such as (1) details of the computation of cashflow

projection, (2) budget for the financial year beginning 1

August 2012 until 31 July 2013, (3) existing payroll costs,

(4) details of rental expense, (5) listing of monthly

collections from January to March 2012, (6) the monthly

management accounts from 1 August 2011 to 31 March

2012 and etc;

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(ii) By way of a memo/letter dated 31 May 2012, D provided P

with various documents relating to the maintenance and

management of 3TS such as (1) the actual maintenance

charges and sinking fund collection since 2008; (2)

breakdown of maintenance charges billings and

collections; (3) breakdown of monthly operation costs; (5)

payroll of the management team at the MC Office; details

of rental expense being paid on a monthly basis; (6)

copies of the contracts with the various service providers

and etc. These documents were acknowledged received

by PW-1 on 1 June 2012;

(iii) By way of D’s letter dated 9 August 2012, D had given P

(1) bank reconciliation as at 30 June 2012 and (2) the

bank records for the month of July 2012;

(iv) In a further letter dated 29 August 2012, D had also given

P (1) the creditors listing as at 31 July 2012; (2) bank

reconciliation as at 31 July 2012; and (3) statements of

account for Block F (Corporate Tower) in respect of

tenants with outstanding balances;

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(v) By way of the Plaintiff’s letter dated 18 October 2012, P

had requested D (as the previous Managing Agent of 3TS)

the to provide various documents as listed in the annexure

to the said letter. In this regard, it was inter alia made

known that P had received nine (9) boxes of documents

from D and that list of items are need to ‘fully substantiate

the previous audit accounts prepared by the auditors

GEPs and Associates’.

(vi) In a memo/letter dated 3 September 2012, an undated

memo/letter and a further undated memo/letter

(acknowledged received by P on 18 December 2012, D

had handed to P (1) maintenance and sinking fund bills

(April 2008 – May 2008); (2) quit rent bills and insurance

premium bills (2008 – (2012); (3) water and sewerage bills

(October 2007 – June 2012); (3) official receipts attached

with bank in slip (August 2010 – July 2012); (4) journal

vouchers (2008 – 2012); (5) payment vouchers (June

2010 – December 2010 and Jan 2008 – September 2010);

(6) official receipt books (2007 – 2010 and etc.

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[39] I am also in agreement with D’s submission it is clear from PW3’s

evidence itself that all such documents requested by P pursuant to P’s

letter dated 18 October 2012 which is identical to List A of the Statement of

Claim-A, have mostly been provided by D to P under the cover of D’s

undated memo/letter (acknowledge received by P on 18 December 2012.

PW3 admitted that based on the contemporaneous documents, the request

by P for documents had been fulfilled by D.

[40] In view of the weight of evidence and admission supporting D’s

assertion that the P’s request for documents had been substantially

complied with by D, P’s claim for the handover of various documents

relating to management fees for the years 2008 to 2012 was devoid of

merits. Furthermore, based on the finding that D had not been appointed as

M/A for the complex following the setting up of the JMB the order sought

would be redundant and academic.

Suit 22NCVC-516-07/2013

[41] This claim is for M and S/F charges in respect of D’s car parks

which are accessory parcels to Parcel No. 267 located on the 15th Floor

(Penthouse) of the Corporate Tower, Block F of the 3 TS complex. It is

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undisputed that P claim in Suit 516 is based solely on Car Park

Maintenance Invoice 1 and Car Park Maintenance Invoice 2 which were

only issued on 17 July 2013.

[42] D’s defence in this suit is basically that P’s claim and purported

entitlement to charge maintenance and sinking fund charges upon the car

parks owned by D independently of D’s parcel, is contrary to Sections 34(2)

and 69 of the Strata Titles Act 1985.

[43] For ease of reference, the relevant provisions of the STA invoked

by D to support its defence are reproduced below:

“Section 4. Interpretation

In this Act, unless the context otherwise requires -

“accessory parcel” means any parcel shown in a strata plan as

an accessory parcel which is used or intended to be used in

conjunction with a parcel;

…

“common property” means so much of the lot as is not

comprised in any parcel (including any accessory parcel), or

any provisional block as shown in an approved strata plan;

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…

“parcel”, in relation to a subdivided building, means one of the

individual units comprised therein, which (except in the case of

an accessory parcel) is held under separate strata title, and in

relation to a subdivided land, means one of the individual units

of land parcel;

34. Rights of proprietor in his parcel and common property

…

(2) No rights in an accessory parcel shall be dealt with or

disposed of independently of the parcel to which such

accessory parcel has been made appurtenant.

36. Share unit entitlements

The value of each parcel, except in the case of an accessory

parcel where no share value shall be allotted, shown in the

schedule of share units shall be taken as the share unit

entitlement, and in the case of a provisional block the value

shall be taken as the provisional share unit entitlement. The

share units of a parcel or the provisional share units in the case

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of a provisional block as specified in the strata title or in the

provisional strata title, as the case may be, shall determine -

(a) the voting rights of the proprietors;

(b) the quantum of the undivided share of each proprietor in the

common property; and

(c) the proportion payable by each proprietor of the contribution

levied by the management corporation pursuant to section 45,

63 or 66

…

45. Management fund.

(1) The management corporation shall establish a

management fund sufficient in the opinion on the management

corporation to meet the administrative expenses as may be

incurred for the purposes of controlling, managing and

administering the common property, paying rent, rates and

premiums of insurance and discharging any other obligation of

the management corporation.

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(2) The management corporation may invest any moneys in

the management fund, but only in such investments or in such

manner as may be approves at a general meeting.

(3) Subject to section 41A, for the purpose of establishing and

maintaining the management fund the management corporation

may at a general meeting-

(a) determine from time to time the amount, to be raised

for the purposes mentioned in subsection (1);

(b) raise the amounts so determined by levying

contributions on the proprietors in proportion to the share

units or provisional share unit of their respective parcels or

provisional blocks; and

(c) determine the amount of interest payable by a

proprietor in respect of late contributions which shall not

exceed the rate of ten per cent per annum.

…

(5) Any contribution levied under subsection (3) in respect of a

parcel shall be due and payable on the passing of a resolution

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to that effect by the management corporation and in

accordance with the terms of that resolution, and may be

recovered as a debt from a proprietor of, or his successor in

title to, the parcel.

…

(6) For the purposes of subsection (5), the word “proprietor”

shall include -

(a) the person for the time being receiving the rent of the

parcel, whether as an agent or a trustee or a receiver, and who

would receive the same if the parcel were let to a tenant; or

(b) a purchaser to be duly registered as proprietor.

Section 69. No dealing in accessory parcel independent of

a parcel

No accessory parcel or any share or interests therein shall be

dealt with independently of the parcel to which such accessory

parcel has been made appurtenant as shown on the approved

strata plan.”

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[44] Considering the provisions of sections 34(2) and 69 of the STA

which expressly prohibit any accessory parcel or any share or interest

therein from being dealt with independently of the parcel, I concur with the

contention that P’s action in charging maintenance and sinking fund

charges, on the basis of square footage (sq. ft.) in respect of D’s car parks

is clearly prohibited in law as such action by P amounts to treating D’s

accessory parcels and its interest therein independently of the parcel to

which it was made appurtenant.

[45] It followed that since the establishment of P on 8.4.2009, P was

only entitled to one payment of contribution from D or at the very least, as

an individual proprietor of Parcel 267. As pointed out by D, in order to arrive

at D’s share unit entitlement for Parcel 267, the square area of this parcel

as well as the area of the accessory parcels together with their weightage,

are factored in to obtain the share unit for the particular parcel. Further, the

accessory parcels with Parcel No. 267 do not just comprise car parks but

other components as well, such as rooftop area, air con ledges, planter

hones, etc. for which no charges were imposed.

[46] Under S. 36 of the STA, the accessory parcels are not allocated

share units but only the parcel itself by taking into account the specific

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characteristics of each accessory parcel to obtain the aggregate share

units of the parcel. In levying charges on D’s car parks, the same cannot be

treated as regular parcels subject to the same S/F & M charges at RM0.20

p.s.f. and later at RM0.30 p.s.f.

[47] It is also important to note the undisputed fact that no other parcel

owner, with exception of D, had been subjected to such charges for their

accessory parcels. The said additional charges had only been imposed on

D without any valid reasons.

[48] By levying the said charges towards D’s car parks P was in effect

treating the said car parks as regular parcels based on the rate imposed,

which was, thus, not in accordance with the provisions of the STA as

alluded to.

[49] Also noteworthy is S. 18 of the STA under which the share units

(share value) of each parcel is approved by the Director of Land & Mines

and is based on a proposed assignment of share units by the proprietor of

the lot (D’s licensed surveyor) pursuant to Section 9(1)(g) of the STA. The

First Schedule of the Strata Management Act, 2015 (‘SMA’) lays down the

precise formula for the calculation of share units for each parcel. It is similar

to the formula allocation of share units pursuant to the STA except that the

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SMA obviates the need for the allocation of share units to be approved by

the Director of Land and Mines.

[50] D also raised the issue of the legality of the additional charges

imposed on D for M and S/F for the accessory parcels (car parks) by

reference to a Court of Appeal authority, Perbadanan Pengurusan Endah

Parade v Magnificent Diagraph Sdn. Bhd. [2014] 5 CLJ 881 where it was

held affirmatively that the STA only allows a management corporation to

levy only one payment or contribution from parcel owners and such

contribution or payment must be approved at a general meeting. Mohamad

Ariff Yusof, JCA in delivering the judgment of the Court of Appeal held:

“The High Court Judge was correct in his decision that the STA

merely allows the levying of one payment or contribution from

unit holders approved at a general meeting. The conclusion

reached by the High Court accorded with the wording of the

Act, and the presumed collective intention and wisdom of

Parliament. The management corporation established is by

statute deemed to be a body corporate with perpetual

succession and a common seal. The council constitutes the

executive body of the management corporation here, and the

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council is subject to restrictions or directions of the general

meeting. (paras 26, 27 & 29)

…

In terms of statutory context, the proprietors of a subdivided

building have what is termed by the statute as “share units

entitlements” (s. 36) which is taken to be the “value” of each

parcel. That “value” shall, inter alia, determine “the proportion

payable by each proprietor of the contribution levied by the

management corporation pursuant to s. 45...” (s. 36(c)). It is

quite plain that based on this formula each proprietor has to

share the administrative and maintenance expenses, inclusive

of insurance premiums, which are carefully defined and

delineated by the several statutory provisions mentioned earlier

above. …

The issue here is not whether proprietors do not have to

contribute towards the payments for insurance premiums, but

whether they can be compelled to pay their share over and

above the statutory contribution to the management fund as

established under s. 45(1). In this respect, we agree with the

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proposition advanced by the respondent that the management

corporation as a body incorporated under statute can only levy

payments which are mandated by the statute. It will be ultra

virus its powers for the management corporation to levy

payments which are not sanctioned by the statute. This is

where a proper interpretation of s. 45 of the STA becomes of

fundamental importance. Section 45(1) states very clearly that

the management corporation “shall establish a management

fund sufficient in the opinion of the management corporation to

meet the administrative expenses as may be incurred for the

purposes of controlling, managing and administering the

common property, paying rent, rates and premiums of

insurance and discharging any other obligation of the

management corporation.” This is a very comprehensive

provision. The expenses referred to includes the payment of

“premiums of insurance” and other payments in connection with

“discharging any other obligation of the management

corporation.” To this extent, we agree with the submission of

counsel for the respondent that in fixing the contribution to be

paid by each proprietor, the management corporation must

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budget for it for approval at general meeting. After all, s. 45(3)

allows the management corporation to “determine from time to

time the amount to be raised for the purposes mentioned in

sub-s. (1), i.e., the contribution to the management fund. The

issue is not whether the management corporation should not be

empowered to act reasonably or to deny that it should have

discretion and flexibility to manage the subdivided building in its

day-to-day running, but rather whether the charges have been

properly decided by the unit holders in general meeting. We

have been referred to the High Court decision in Lai King Lung

v. Perbadanan Pengurusan Anjung Hijau & Anor [2012] 1 CLJ

1013, which in turn quotes the Singapore High Court decision in

Ezio Paganetto v. The Management Corporation Strata Title No

1075 [1988] 1 LNS 141; [1988] 1 SLR 268, and the general

principle that a management corporation should be allowed to

act reasonably without undue insistence on the existence of

specific by-laws to cover every practical difficulty. We agree

such an approach will be unreasonable and, to quote counsel

for the appellant, “at most... highly technical and at its lowest...

pedantic”. Nevertheless, the issue of proper authority to impose

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a levy is too important to be left to the management corporation

or the council to decide as a matter of discretion. It is not quite

a matter such as deciding which contractor should mow the

lawn.

The same reasoning applies in relation to the sinking fund. We

find the statutory provision in s. 46 of the STA quite clear. It

states that the management corporation “shall maintain the

special account in which shall be paid such portion of the

contribution to the management fund as may from time to time

under para. (ba) of sub-s. (5) of s. 41 by special resolution for

the purposes of meeting its actual or expected liabilities” in

respect of the several matters concerned with maintenance

already alluded to earlier. The amount to be placed in the

special account must be “such portion of the contribution”, and

therefore on a proper and purposive interpretation of this

provision, the management corporation cannot impose an

additional levy as sinking fund over and above the contribution

to the management fund. We therefore agree with the decision

of the learned trial judge on this issue.”

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[51] Having perused the above comprehensive pronouncement I upheld

the submission of D that any attempt to levy the instant additional charges

separately and distinctly on the proprietors, as in the case of D, is void and

prohibited under the STA and that it is explicitly clear that P in this case

does not have the authority under the STA to levy additional charges

against D in respect of its accessory parcels for which, pursuant to Section

36 of the STA no share value (share unit) is allotted.

[52] Finally, as regards whether the claim is this suit is sustainable or

otherwise, this suit is predicated solely on Car Park Maintenance Invoices

1) and 2) [‘CPM I 1) and 2)’] which were only issued on 17.07.2013 for

which there was no approval at a general meeting of the MC whereas this

claim was filed only on 31.07.2013. As such, this claim filed before the

issuance of CPM 1) and 2) could be regarded as premature and the

invoices issued without the approval of the general meeting as null and

void as well. It also means that at the time suit 516 was filed P had no valid

and sustainable cause of action against D as nothing was then due and

payable. It has to be further noted that by virtue of the clear pronouncement

in: PP Endah Parade (supra) if a MC wishes to raise each proprietor’s

contribution to meet expenses incurred it would have to budget for it,

meaning that it is not empowered to pass resolutions as and when it

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wished having the retrospective effect of levying fresh charges against

proprietors.

[53] On the abovementioned grounds, I would conclude that, on the

facts and in law, the claim herein has no merits and has to be dismissed

with costs.

Suit 22NCVC-125-03/2014

[54] Vide this suit P seeks the following reliefs against D:

(1) The vacant possession of the common property;

(2) Arrears of rents at a sum of RM139,200.00 as of 31.5.2013;

(3) Double rent at the rate of RM4,800.00 a month starting from

1.6.2013 until the vacant possession was given;

(4) Interest at the rate of 8% per annum on the awarded sum from the

date of filing of this Writ till the date of Judgment and 5% interest

date from the date of Judgment till the date of full settlement; and

(5) Cost;

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(6) Any other relief which the Honourable Court deems just and

reasonable.

Material Facts

[55] The important facts as outlined briefly in D’s Written Submission

are these:

“The office space in dispute in this matter known as the car

park management office (‘CPMO’) is the office space within the

common property of the complex which belongs to the MC.

It is not disputed that D had been occupying the common

property as early as 2008 and have been running their carpark

business operation from the said office.

It is also not disputed that D had been occupying the common

property without paying any rental or contribution to the MC.

It was admitted by D’s witness that the Strata plan was only

handed over to the current MC on July 2012 and prior to that

the strata plan was not in their possession.”

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P’s Case

[56] P submits that their case in this suit is as follows:

“P submits that D had misused their authority as the Developer,

‘managing agent’ and majority office bearers for 2009 – 2012 to

occupy the common property to operate their car business

without paying any rental.

It is highly improbable for D who had originally applied for the

Strata Application for the development not to be in possession

of the Approved Strata Plan (‘SP’).

It was recorded in the minutes and also during the trials that

only upon repeated requests from the 2012/2013 MC then D

passed a copy of the Strata Plan in July 2012.

There is no way that P could have given their consent directly,

expressly, impliedly or tacitly any time before July 2012 since

any knowledge of what constitute a common property or

common area require a visual observation of the SP.

Since P was misled by the misrepresentation of D’s

representative as to ownership or location of their parcels, P is

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entitled to compensation or contribution in the form of rentals

retrospectively.”

D’s Case

[57] The core of D’s case was estoppel. D invoked the principle of

estoppel on the ground that the MC had never objected to D using and

occupying the spaces in question.

Issues For Determination

(1) Whether estoppel could be raised against the 2012/2013 MC for

the uninterrupted use and occupation of the CPMO?

(2) Whether the MC (‘P’) is entitled to reimbursement/rental from D

who had been using the common properties for D’s car park

business operation without paying rentals to the MC?

Finding

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[58] P contended, in my view, correctly that under the facts and

circumstances of this case, the principle of estoppel could not be relied

upon by D for certain valid reasons.

[59] First and foremost, D’s own Legal Manager (‘DW5’) who was

actively involved in the complex had in her evidence admitted that nobody

had authorized D to occupy the common property.

[60] Secondly, P could not have agreed or consented for D to occupy

the common property prior to July 2012 as they were not in the position to

know that the office space was a common property and that there was a

false representation made by D’s agent.

[61] Thirdly D’s Director / Council Member and Chairman of the 2010

MC (‘DW3’) contended that the no one could differentiate between a

common property and a private unit without a strata plan.

[62] DW3 himself admitted that there is no evidence to support their

pleading at paragraph 6 of the Amended Defence i.e., that P had

consented to and agreed with no objections for, the occupation of the

common property by D’s staff for the said carpark operation.

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[63] I also concur with D’s submission that based on the reasons

advanced, which arise from D’s own evidence, it was more likely and

probable than not that P could not have consented as alleged by D to the

occupation as P themselves were not aware that the office space was a

common property prior to July 2012. The facts and evidence clearly show

that upon obtaining the Strata Plan, P had immediately sought arrears of

rental from D for usage of the common property.

[64] In support of the above contention, P relied, inter alia, on Section

71 of the Contracts Act, 1950 (‘C/A’) which lays down expressly that:

“Where a person lawfully does anything for another person, or

delivers anything to him, not intending to do so gratuitously, and

such other person enjoys the benefit thereof, the latter is bound

to make compensation to the former in respect of, or to restore,

the thing so done or delivered.”

[65] In the Privy Coucil case on Siow Wong Fatt v Susur Rotan Mining

Ltd & Anor [1967] 2 MLJ 118 the principles governing the application of S.

71, C/A were discussed and it was held:

“Four conditions must be satisfied to establish a claim under

section 71. The doing of the act or the delivery of the thing

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referred to in the section: (i) must be lawful; (ii) must be done

for another person; (iii) must not be intended to be done

gratuitously; (iv) must be such that the other person enjoys the

benefit of the act or delivery.”

[66] Based on the above legal principles, I am of considered view, that

in the instant case, as held in LCS Management Corporation v Leisure

Commerce Square Sdn. Bhd. [2015] MLJU 757, D was liable to pay

reasonable and appropriate compensation to the MC for the enjoyment by

D and/or their servants/ agent of the common property in 3TS as referred to

for the period of occupation. If D are not ordered to make an adequate

contribution, it would be indisputably unjust to the other purchasers/

proprietors who had duly contributed to the maintenance and management

funds for the maintenance and upkeep of the complex after having

substantially benefited from use of the common property.

[67] On these principal grounds, I held that P is entitled to judgment

against D in this suit for rental of the common property (‘CPMO’) to be

calculation from the date of occupation of the same at a reasonable rate as

stated below.

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Conclusion

[68] I have taken note of the fundamental principle of evidence that in a

civil action the burden of proof rests throughout on the Plaintiff and that the

applicable standard of proof is on a balance of probabilities. This principle

applies equally to the Plaintiff (‘P’)’s claim in the 3 suits and the Defendant

(‘D’)’s counter claim (‘C/C’) in one of the suits.

[69] In this trial, where numerous witnesses have been called over

many days and voluminous documentary and oral evidence have been

adduced, the Court has to determine the issues in dispute by considering

all the material evidence as a whole and not the testimonies of individual

witnesses or documents in isolation.

[70] Having done so and after reading the submissions of both counsel

carefully and considering the respective contentions, I conclude my findings

as follows on P’s claims and D’s C/C.

Suit 22NCVC-510-07/2013

[71] The Court finds that the P has proved on a balance of probabilities

(‘B/P’) that there was no agreement that was binding and enforceable

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entitling the Defendant to collect fees as Managing Agent (‘M/A’) of the

Condominium (‘3TS’) since the incorporation of P in 04/2009, upon which D

was not entitled in law to manage the Condominium any longer or to act as

the M/A. There was clearly no binding agreement or contractual obligation

on the part of P for D to be paid RM20,000.00 per month as management

fees. However, the P is not entitled to claim in this action in its capacity as

the Management Corporation (‘MC’) for any sums owing before its

incorporation on the ground of not having the necessary locus standi until

its incorporation.

[72] I therefore, allow the Plaintiff’s claim for return of the management

fees paid to D with effect from 08.04.2009 at RM20,000.00 per month.

[73] Prayer (b) for documents to be handed over as per Annexure A is

not necessary in view of the above order and because most of the

documents have already been handed over to P.

[74] Judgment entered for P as per prayer a) in part with effect from

08.04.2009 only, prayer c) interest at 5% per annum from date of filing of

writ until realisation and prayer d) for costs.

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Suit 22NCVC-516-07/2013

[75] This is a claim for maintenance and sinking funds charges (‘M &

S/F’) for accessory parcels namely, car parks owned by P, independently of

the residential parcels owned by them.

[76] In view of the provisions of Section 69 of the Strata Titles Act

(‘STA’) as well as Section 36, I uphold D’s contention that, based on

authorities cited on the interpretation of Section 36, it is explicitly clear P

does not have the authority under the STA to levy additional charges

against D in respect of the said accessory parcels over and above the M

and S/F charges for the residential parcels.

[77] I therefore dismiss this claim with costs. Based on the same

reasoning I allow D’s counter-claim (‘C/C’) in part with costs, i.e. sum of RM

143,971.62 and RM 288,882.24 wrongly paid as M & S/F charges for the

accessory parcels with interest of 5% per annum.

[78] As for return of utility charges allegedly wrongly paid by D to P, this

claim has no merits or basis in law or facts as the charges were incurred by

D in respect of property owned by them for which there is no provision or

agreement for the MC to pay utility charges.

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[79] This prayer is dismissed. Judgment entered for D on the C/C to the

above extent only.

22NCVC-125-03/2014

[80] P has proved their entitlement to be paid rental for the Car Park

Office (‘CPO’) which is common property and unlawfully occupied and used

by D without paying rental. D was, therefore, liable to pay reasonable rental

for the use and occupation of P.

[81] However, there was no tenancy agreement, whether express or

implied, on the rate of rental and other terms. There can, however, be no

doubt that D has to pay rental for the space that was not part of the

property in Block F that it owned.

[82] Hence, I allow this claim in part too on the basis of fair and

reasonable compensation for wrongful use and occupation at half the rate

claimed as follows:

(1) RM 1,200.00 per month from 08/2008 till 05/2013 =

RM 68,400,00.00.

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(2) RM 2,400.00 per month with effect from 06/2013 and continuing

until delivery up of vacant possession.

[83] Judgment entered for Plaintiff as per prayers a), b) and c), as

amended above, prayer d) at 5% per annum until realisation and prayer e)

for costs as below.

Cost:

1st suit RM 100,000.00 to the Plaintiff.

2nd suit RM 50,000.00 to the Defendant.

3rd suit RM 40,000.00 to the Plaintiff.

Dated: 18 December 2017

(GUNALAN A/L MUNIANDY)

Judge

High Court of Malaya

Shah Alam

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COUNSEL:

For the Plaintiff : Mr. Adrian Silvarajoo together with

Mr. Nik Abdul Matin Fawwaz bin Nik

Safeia and Mr. Mohamad Atif bin

Abdullah

Messrs Ramli Yusuff & Co.

Petaling Jaya, Selangor

For the Defendant : Mr. Oomen Kurien together with

Mr. Jee Hock Hua

Messrs Yip & Co.

Kuala Lumpur

IN THE HIGH COURT OF MALAYA ATSHAH ALAM IN THE …3 TWO SQUARE SDN. BHD. … DEFENDANT . BEFORE ....

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