Cheah Soo Chuan v Chiu Boon Hee (JA-25-8-04/2023)

This is a judicial review application by the Applicants against the decision by the Strata Management Tribunal [2nd Respondent (“R2”)] allowing the 1st Respondent’s (“R1”) claim for damages against the Applicants over a water leakage dispute affecting R1’s stratified property.

Having heard all parties concerned, this Court dismissed the Applicants’ application against which the Applicants are now appealing to the Court of Appeal.

This is this Court’s grounds of judgment.

On or around 04.10.2021, R1 discovered that there was a water leakage coming from the upper floor to his property identified as D-01-07, Residensi Ledang, Jalan Persiaran Puteri Ledang, 79250, Iskandar Puteri, Johor Bahru (“the said property”).

Subsequent to the discovery, R1 caused a report to be lodged with the Joint Management Body (“JMB”) concerning the said leakage with a view for an inspection to be carried out by the latter followed by remedial action.

On 05.10.2021. JMB notified the Applicants of R1’s complaint, as the Applicants are the unit holder of the property situated at the above floor from the said property.

An inspection was duly carried out on 18.10.2021 with a certificate of inspection issued in Form 28 by a representative of the JMB on 20.10.2021.

The said Form 28 confirms the damage to R1’s unit property D- 01-07 and that the person responsible to rectify it would be the Applicants who is the owner of unit property D-02-07.

On 27.12.2021, the Applicants rectified the problem that had caused the leakage.

More than 4 months later, on 09.06.2022, R1 made another report to JMB and requested JMB to inspect and issue another Form 28.

On 27.05.2022, the JMB carried out an inspection of unit D-01-

[12] On 18.06.22, the JMB issued a Form 28 dated 16 May 2022 (“2nd Form 28”). Subsequently, on 27.06.22, the JMB revised its 2nd Form 28 and issued another Form 28 dated 16 June 2022 (“3rd Form 28”). [13] A perusal of Form 28 dated 16.06.2022 shows that the JMB had certified that the damage to R1’s master bedroom in the property is a result of the earlier leakage and that the party responsible is the Applicants. [14] Accordingly, R1 claims before R2 that he had suffered losses amounting to RM 13,045.00. [15] On 30.01.2023, R2 granted an award in R1’s favour whereby the Applicants were ordered to pay RM8,000.00 to R1 within thirty (30) days from the date of the award (the impugned award). [16] Dissatisfied with the impugned award, hence the instant judicial review application. The Law on Judicial Review [17] It is trite law that Judicial Review is a process by which the High Court exercises its supervisory jurisdiction over proceedings and decisions made by public bodies exercising quasi judicial functions or performing public acts or duties. [18] In Malaysia, matters relating to judicial review is specifically provided under Order 53 Rules of Court 2012 (“ROC 2012”). The said Order governs not only procedure but also prescribes certain legal requirements to be met. It has also been a long-standing proposition of law that judicial review provides the means by which judicial control of administrative action is exercised. [19] Reference on that is made to Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Keseniaan Johor & Ors [2010] 5 CLJ 865 where the Federal Court had held as follows:- “[6] To fully appreciate this contention, let us begin by setting out the common law which accepts that the High Court has a supervisory jurisdiction over proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or charged with the performance of public acts and duties. The High Court does it by way of judicial review. In brief, judicial review provides a means by which judicial control of administrative action is exercised - see Council of Civil Service Union v. Minister for the Civil Service [1985] AC 374 @ 408. [7] In Malaysia, the exercise of the supervisory jurisdiction by the High Court over such bodies is found in O. 53 RHC bears the heading: "Application For Judicial Review". [20] It can also be said as trite law that the grounds for an application for judicial review are illegality, irrationality, procedural impropriety and proportionality. These grounds were formulated by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 (House of Lords) and later adopted in our own jurisprudence in Rama Chandran v The Industrial Court of Malaysia & Anor [1997 1 MLJ 145 where the Federal Court had held :- "In this context, it is useful to note how Lord Diplock (at pp. 410- 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Rview I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development." [21] The approach envisaged by the Federal Court in Rama Chandran has been applied not only limited to the Industrial Court but also applicable to decisions made by other statutory tribunals or bodies depending on the factual matrix of each case (see: Petroliam Nasional Bhd v Nik Ramli Nik Hassan [2003] 4 CLJ 625, FC). Analysis and decision [22] The Applicants main contention under illegality is that R2 had acted ultra vires its jurisdiction in hearing and delivering the impugned award. [23] The Applicants contend that R1’s complaint is for damages being the costs for repairing the damage in the master bedroom of the said property. As such, the Applicants submit that R1’s complaint is not "a dispute or complaint concerning an exercise or the performance of, or the failure to exercise or perform, a function, duty or power” as provided in the Strata Management Act 2013 or under Part 1 of the Fourth Schedule of the Strata Management Act 2013. [24] Such claim, if any, should be filed via a civil action in Court not R2, so submit the Applicants. [25] Counsel for R1 of course contends otherwise. [26] At the outset, it is common ground and accepted that the jurisdiction of R2 is conferred under the Strata Management Act 2013 (“SMA”) under s.105(1) which reads:- “(1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount.” [27] Part 1 of the Fourth Schedule to the SMA further provides that:- “Fourth Schedule

A dispute or complaint concerning an exercise or the performance of, or the failure to exercise or perform, a function, duty or power conferred or imposed by this Act the subsidiary legislation made under this Act, except for those specifically provided for in this Part.

Subject to subsection 16N(2) of the Housing Development (Control and Licensing) Act 1966 [Act 118], a dispute on costs or repairs in respect of a defect in a parcel, building or land intended for subdivision into parcels, or subdivided building or land, and its common property or limited common property.

A claim for the recovery of Charges, or contribution to the sinking fund, or any amount which is declared by the provisions of this Act as a debt.

A claim for an order to convene a general meeting.

A claim for an order to invalidate proceedings of meeting where any provision of the Act has been contravened.

A claim for an order to nullify a resolution where voting rights has been denied or where due notice has not been given.

A claim for an order to nullify a resolution passed at a general meeting.

A claim for an order to revoke amendment of by-laws having regard to the interests of all the parcel owners or proprietors.

A claim for an order to vary the rate of interest fixed by the joint management body, management corporation or subsidiary management corporation for late payment of Charges, or contribution to the sinking fund. claim for an order to vary the amount of insurance to be provided.

A claim for an order to pursue an insurance claim.

A claim for compelling a developer, joint management body, management corporation or subsidiary management corporation to supply information or documents.

A claim for an order to give consent to effect alterations to any common property or limited common property.

A claim for an order to affirm, vary or revoke the Commissioner's decision.” [28] In the light of the above provision, the ‘function, duty or power’ must also extend and connect to any subsidiary legislation made under SMA that provide for or relate to the same. [29] Of pertinence is of course the Strata Management (Maintenance and Management) Regulations 2015 (SMA Regulation), a piece of legislation albeit subsidiary, that seems to have not been addressed sufficiently by counsel for both parties in their respective submissions. [30] Now, since ‘inter-floor leakage’ being the complaint by R1 is not disputed before this Court, it is necessary then to refer to the specific provision of the law relating to it, which can be found in Part XV of the SMA Regulation. [31] Of pertinence is r.61 of SMA Regulation which reads:- “Inter-floor leakage caused by or attributable to a parcel

(1) Where the inter-floor leakage is caused by or is attributable to a parcel or any part thereof, the purchaser, parcel owner or proprietor of that parcel shall, without prejudice to his right to seek indemnity from any other party, shall take all necessary steps and measures to rectify the inter-floor leakage within seven days of receipt of Form 28.

If he fails to do all the necessary steps mentioned in subregulation 61(1), the developer, joint management body, management corporation or subsidiary management corporation or any managing agent appointed by the Commissioner under subsection 86(1) or 91(3) of the Act, as the case may be, shall immediately take all the necessary steps and measures to rectify the inter-floor leakage and shall charge and recover all cost and expense from the party responsible to rectify the inter-floor leakage.” [32] From the reading of the above r.61(1) and (2), the duty to rectify the inter-floor leakage that was caused by or attributable to a parcel, is undoubtedly imposed against the owner of that parcel who are the Applicants in this instant matter or if they fail to do so, under the circumstances, the JMB. [33] Thus, the Applicants’ contention that R2 has no jurisdiction to hear R1’s claim on the account of ‘duty, function and performance’ against them is totally bereft of merit, and I so hold. [34] In my view, the ‘duty to rectify the inter-floor leakage’ under r.61(1) and (2) of SMA Regulation must, by necessary implication, be extended to include a claim for damages suffered by the purchaser of the affected unit due to the inter-floor leakage caused by others. [35] Such interpretation is preferred based on the purposive approach codified in s.17A of the Interpretation Act 1948 and 1967 which reads:- “Regard to be had to the purpose of Act 17 A . In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.” [36] As such, I find there is no issue of illegality in the impugned award. [37] Next, upon careful considerations of the cause papers and the affidavits filed by the parties, I am of the firm view that all other issues relating to irrationality or proportionality raised by the Applicants are principally one of dispute as to the factual findings made by R2. [38] To that, I made reference to the Applicants’ Affidavit in-Support (Enclosure 3) where the following were pleaded:-

When and how did R1’s claim arose;

Whether R1 was contributorily negligent in respect of the damage caused to his property?

Whether R1 bears responsibility for the damage incurred?

Whether a causal link exists between the leakage and damage caused. [39] It is my finding that all the above issues were dealt with in R2’s grounds of judgment specifically at paragraphs 2(a) and (b) and at paragraph 17. That being the case, the Applicants cannot now utilize judicial review proceedings as a vehicle to appeal against the finding of facts made by R2 in the impugned award. [40] That appeal and judicial review application are each distinct in their principles and thus ought to be treated separately is well entrenched in our jurisprudence. In this regard, the Court of Appeal in William Jacks & Co (M) Sdn Bhd v S. Balasingam [1997] 3 CLJ 235 had this to say:- “It is well-settled that a Court cannot utilise certiorari proceedings as a cloak to entertain what, in truth, is an appeal against findings of fact. If authority is needed for that proposition, it may be found in the decision of the Indian Supreme Court in Basappa v. Nagappa AIR [1954] SC 440 and in Dharangadhra Chemical Works Ltd. v. State of Saurashtra & Others AIR [1957] SC 264.” [41] Thus, the findings made by R2 on the above questions raised by the Applicants before this court are completely within R2’s jurisdiction. In the absence of any perversity in the impugned award, which I find the Applicants failed to demonstrate before this Court, there should then be no reason for this Court to disturb the findings made by R2. In Edwards (HM) Inspector of Taxes) v Bairstow and Harrison 36 TC 207 it was held by the House of Lords that:- “.. I think he was right, for however strongly one may feel as to the facts, the facts are for the decision of the Commissioners. It would make an inroad upon their sphere if one were to say in a case such as the present that there could only be one conclusion. The Commissioners are far better Judges of these commercial transactions than the Courts, and although their attention has been drawn to what happened, they have in their final Case negatived anything in the nature of an adventure or trade. ………. As I see it, the reason why the Courts do not interfere with Commissioners' findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the Commissioners of greater experience in matters of business or any other matters. The reason is simply that by the system that has been set up the Commissioners are the first tribunal to try an appeal and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The Court is not a second opinion, where there is reasonable ground for the first. But there is no reason to make a mystery about the subjects that Commissioners deal with or to invite the Courts to impose any exceptional restraints upon themselves because they are dealing with cases that arise out of facts found by Commissioners. Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from, and, if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado." [42] Reference is also made by way of analogy to Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1 where it was held by the Federal Court that:- “[60] Had the respondents filed an appeal before the Special Commissioners, where the onus is on the respondents to establish their position, they will be accorded every opportunity to show where the appellant went wrong. The respondents may request for the attendance of witnesses to give evidence on oath and request any witness to produce any books, papers or documents which are in his custody or his control necessary for purposes of the appeal. Therefore, before the Special Commissioners the respondents will have all the opportunity to ventilate his disgruntlement, with every opportunity to undo what the appellant determined” [43] Looking at R2’s record in totality, the impugned decision also cannot be said to be so devoid of plausible justification that no reasonable body of persons could have reached them. The issues before R2 were simple and straight forward, they relate to inter-floor leakage and whose duty to rectify it. In fact, that the Applicants had attended to the repair would no longer suggest the necessity to determine who was at fault for the leakage. The award of RM8,000.00 as damages to be paid by the Applicants to R1 certainly involves the exercise of discretion by R2. On matters relating to ultra vires versus discretion, it is instructive to refer to Bromley London Borough Council v Greater London Council [1983] 1 AC 768 where the House of Lords had held as follows:- “In the argument before this House, as in the courts below, this has been treated as involving two distinct questions. These have been referred to respectively as: the question of ultra vires, which has been treated as a pure question of construction of the Transport (London) Act 1969; and the question of discretion, viz. the exercise of a statutory discretion in a manner that was unlawful under what in administrative law has become known as the Wednesbury principle stated by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, in terms that have been frequently cited ever since. The Wednesbury principle has in turn been subjected to sub-division in the course of the argument into decisions reached in the exercise of a statutory discretion that are unlawful because it can be shown that in reaching the decision the body exercising the discretion has acted on an erroneous view of the applicable law; and decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them.” [44] A careful examination of R2’s decision further shows a clear appreciation of the factual issues raised by parties together with evidence adduced by parties throughout the proceedings. In relation to appreciation of evidence by a quasi-judicial body, reference is made to Reg v Deputy Industrial Injuries Commissioner, ex p Moore [1965] 1 QB 456 where it was held by the English Court of Appeal that:- “These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his.” [45] Finally, on the issue of procedural impropriety, I note that s.113 SMA states that:- “The Tribunal shall act fairly and impartially as between the parties, giving each party a reasonable opportunity of presenting his case and dealing with that of his opponent.” [46] From the records of R2, I find that the Applicants were present and were given the opportunities to present their part of the case before R2. Further, I could not find anything before this Court that that could be classified as a breach of procedure as outlined in the SMA or SMA Regulations that would qualify for the impugned decision to be quashed. Conclusion [47] Based on the reasons as adumbrated above, the application for judicial review herein is dismissed with costs of RM 3,000.00, subject to allocator fee, to be paid by the Applicants to R1. Dated: 31.01.2026 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru For the Applicants : Messrs Tay & Partners Tingkat 6, Plaza See Hoy Chan Jalan Raja Chulan 50200, Kuala Lumpur For the 1st Respondent : Messrs Y K Chin L1-86A, KSL City No 33, Jalan Seladang Taman Abad, 80250 Johor Bahru