1. ) Chu Jin Hau v 1. ) Sime Darby Brunsfield Holding Sdn Bhd (BA-22C-17-04/2022)

CHU JIN HAU

ONG LAN YIT

CHU OI VUN

FOO POH WAH HOLDINGS SDN BHD (Company No.: 33406-T)

LIM HOOI YONG

SOO KING LOKE

LEONG NGOO @ LEONG YUE THIN

ONG LAM MOOI

YONG MIEN DEE

GLOBAL KIARA SDN BHD (Company No.: 398418-D)

CBD RESOURCES SDN BHD (Company No.: 923358-K) S/N 1byvA2m2mUOhrolSGujhIw

BUSS WEALTH MANAGEMENT SDN BHD (Company No.: 836070-H)

YIP WAI KEN

ANNE TANG GUAT LENG (Singapore NRIC: K0058567D)

LOU SET FANG

YIP YOKE WEI

GOH EE LEEN

PANG YEE HWA

PRIDE RESIDENCE SDN BHD (Company No.: 732630-P) … PLAINTIF-PLAINTIF

SIME DARBY BRUNSFIELD HOLDING SDN BHD (No Syarikat: 200601003292(723039-H)

SIME DARBY PROPERTY (ARA DAMANSARA) SDN BHD (dahulu dikenali sebagai

3.

GOH SIEW CHIN (NO. K/P: 570326-05-5509) S/N 1byvA2m2mUOhrolSGujhIw

5.

6.

7.

8.

9.

10.

11.

12.

13.

ERM PROPERTY MANAGEMENT SDN BHD (No. Syarikat 200301020750 (623170-T)

HENRY BUTCHER MALAYSIA MONT KIARA SDN BHD (No. Syarikat 201501023493 (1148822-P) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT A. INTRODUCTION [1] Previously, this suit was filed by the Plaintiffs against 15 Defendants, however, by way of a striking out application pursuant to Order 18 Rule 19(1) of the Rules of Court 2012 (“ROC 2012”), the 4th to 15th Defendants have been struck out from this suit by this court. Maintaining the remaining Defendants. S/N 1byvA2m2mUOhrolSGujhIw [2] This is the Grounds of Judgment written for the decisions which I had delivered on 13.2.2025 for both the Plaintiff’s and the 1st and 2nd Defendants’ application via Enclosure No. 108 and 119 respectively for a summary disposal pursuant to Order 14A ROC 2012. Also, for the decision delivered on 27.3.2025 for the application filed by the Plaintiff against the 3rd Defendant via Enclosure No. 117 pursuant to Order 14A ROC 2012. B. BRIEF BACKGROUND [3] The Plaintiffs are individuals or companies with the details as set out in Item B of Appendix A as set out in the said Statement of Claim. [4] The 1st Defendant is a company incorporated in Malaysia under the Companies Act 1965 and having its registered address at Level 10, Block G, No. 2, Jalan PJU 1A/7A, Ara Damansara, PJU 1A, 47301 Petaling Jaya, Selangor Darul Ehsan, Malaysia and is the Vendor/Developer of the development project known as OASIS ARA DAMANSARA (hereinafter referred to as the "said Project"). [5] The 2nd Defendant is a company incorporated in Malaysia under the Companies Act 1965 and having its registered address at Level 10, Block G, No. 2, Jalan PJU 1A/7A, Ara Damansara, PJU 1A, 47301 Petaling Jaya, Selangor Darul Ehsan, Malaysia and is the proprietor of the land on which the said Project was developed. S/N 1byvA2m2mUOhrolSGujhIw [6]

(D) 111073 PT 9 in the Mukim of Damansara, District of Petaling, State of Selangor measuring 63,862 sq meters (“hereinafter referred to as “the said Land”) and comprises:- a) Commercial shops and offices (Commercial Parcels) of 562 parcels in Block A, Block B, Block C, Block D and Block E; S/N 1byvA2m2mUOhrolSGujhIw b) 3 En Bloc Tower Blocks F, G, H; c) Residential Serviced Suites (“Service Apartment”) Parcels of 326 parcels in Block J and Block K; d) Retail complex and Piazza F & B outlets comprising 81 parcels; e) 2 levels of basement carpark (whole floor) parcels and 2 levels of car park (whole floor) parcels above retail complex which has been represented by the 1st Defendant in its sales brochures as comprising 5,000 car park bays; f) Ground level surface car parks located throughout and in-between various building blocks (accessorized to basement carpark parcel (whole floor)); and g) The properties under above (b), (d), (e) and (f) are owned by related companies of the 1st Defendant and/or the 2nd Defendant. [9] The express and/or implied terms of the Sale and Purchase Agreements between the Plaintiffs and the 1st and 2nd Defendants, inter alia, are as follows:- a. The 1st Defendant shall construct the said Project inclusive of Common Property in accordance with the Development Order (DO), Approved Building Plan No: MBPJ/120100/S/P10/738/2006 dated 22.11.2006, its Amended S/N 1byvA2m2mUOhrolSGujhIw Building Plans, in compliance with statutory building by-laws and also statutory standards and requirements of the Appropriate Authorities; b. To construct the common infrastructures which are intergral parts of the common property of the overall said Project and which are essential services serving the said Project comprising and including the internal circular ring road marked as Jalan PJU 1A/7A which must be a properly approved road in compliance to laws, the many open car parks located thereat, extensive compound lightings, landscape, walk ways and drive ways (hereinafter referred to as the “Common Infrastructures”); c. Vacant possession of the said Parcels shall be delivered and construction of the common property shall be completed within 36 months from the date of the Sale and Purchase Agreements and shall be free from encumbrances; d. Valid Certificate of Fitness for Occupation (CFO) would be procured for the said Project, its said Parcels and Common Property including all essential services; e. The 1st Defendant shall maintain the common property during its’ Developer’s Management Period until Oasis Square JMB was constituted on 13.12.2014 and to collect service charges based on share units; S/N 1byvA2m2mUOhrolSGujhIw f. Strata titles will be applied for and transferred to the Plaintiffs; and g. All statutory laws, regulations, by-laws and directives governing the said Project would be complied with. [10] The Plaintiffs have alleged via the Statement of Claim that there are several breaches by the 1st and 2nd Defendants which had led them to file this action against them. The alleged breaches are as follows: a. Failed to build the said Project in accordance with the Approved Building Plan and/or Development Order and complying with various statutory building by-laws; b. Unlawfully constructed the common property and/or infrastructures and/or essential services beyond and outside the said Land boundary in breach of and not in compliance with the Approved Building Plan and/or Development Order; c. Unlawfully built the common infrastructures, as defined above, on 3rd party land belonging to Majlis Perbandaran Petaling Jaya (hereinafter referred to as “MBPJ”) in breach of the Street Drainage and Building Act 1974, National Land Code 1965/2020, the Approved Building Plan and/or Development Order; d. Failed to deliver vacant possession of the said Parcels including fully completed common property and/or essential services in S/N 1byvA2m2mUOhrolSGujhIw accordance with the terms of the Sale and Purchase Agreements and free from encumbrances; e. Defective and unlawful Certificate of Fitness for Occupation (CFO) No. 00081 dated 5.4.2010 was issued for Blocks A and B when at that material point in time all the other remaining component building blocks in the said Project were still in the progress of construction. f. Failed to procure complete and valid support letters from Jabatan Perancang Pembangunan, Jabatan Lanskap, Jabatan BOMBA dan Penyelamat, Bahagian Mekanikal dan Elektrikal, Jabatan Kejuruteraan, JKKP, Indah Water Konsortium, Jabatan Kesihatan Persekitaran, TNB and other relevant Local Authorities for the issuance of the CFO for Blocks A and B; g. Defective and unlawful Form G1 to G21 and unlawful Certificate of Completion and Compliance (CCC) were issued for other blocks as follows:- No.

Blocks C, D & E

06.2011 to 17.10.2011 CCC-Form F with LAM/S/No: 2845 dated 06.12.2011 and based on Amended Building Plans No. MBPJ/120100/T/P10/1830/2007 dated 26.11.2007 amended and approved on 15.07.2011 S/N 1byvA2m2mUOhrolSGujhIw 2

Apartments)

12.2011 Form F with LAM/S/No: 2846 dated 09.12.2011 and based on Amended Building Plans No. MBPJ/120100/P10/1221/2008 dated 22.09.2008 amended and approved on 13.07.2011 3 Blocks F, G & H & Car Parks September 2011 Form F issued in September 2011 4

Blocks J & K (Retail)

01.2013 CCC - Form F issued in the year 2013 5 Piazza F & B Outlets 22.01.2013 CCC – Form F issued in the year 2013 h. Proceeded to unlawfully issue the CCC in final Form F instead of partial Form F1 for each of the above building blocks when the said Project is a single development that was incomplete and still in the progress of construction; i. Failed to fully rectify and make good all of the breaches of its Approved Building Plans, Development Order and various building laws and by-laws; j. Failed to provide and transfer to Oasis Square JMB, the ten percentum (10%) common visitor car parks set out in the Approved Building Plans and in compliance to the relevant laws; and k. Failed to apply for, procure and deliver the strata titles for the said Parcels to-date. S/N 1byvA2m2mUOhrolSGujhIw [11] It is the Plaintiffs’ claim that the 3rd Defendant has breached its statutory duty and/or carried out unlawful acts as follows:- a. Carrying out maintenance and management duties beyond the development area and on 3rd party land and unlawfully utilizing and paid 3rd party’s maintenance costs from the building maintenance account for that purpose; b. Unlawfully collected service charges and contribution towards sinking fund on a per square foot (PSF) basis during its management period from 13.12.2014 to 30.09.2020; c. Failed to assign allocated share units to the parcels during its JMB management period from 13.12.2014 to 30.09.2020; d. Unlawfully determined, imposed, billed and collected different and reduced PSF rates of charges for the service charges and contribution towards the sinking fund for the 1st and 2nd Defendants’ related companies’ commercial units in ‘En Bloc’ tower buildings, retail, car parks and central piazza F & B units since its formation on 13.12.2014 to 30.09.2020; e. Failed to impose a single rate of charges but instead applied unlawful multiple rates during its JMB management period from 13.12.2014 until 30.09.2020, in contravention of the Strata Titles Act 1985 and/or the Strata Management Act 2013; f. As from 01.10.2020, unlawfully accepting the wrongful share units assigned by the 1st Defendant based on purchase price S/N 1byvA2m2mUOhrolSGujhIw contrary to the provisions of the Strata Titles Act 1985, Strata Title Rules 2015 and/or Strata Management Act 2013; g. Unlawfully adopted the unlawful assigned share units and making these wrong share units known to the Parcel Owners only at an AGM held in September 2020 some 10+ years after delivery of 1st vacant possession on 19.01.2010 and still adopting such wrongful share units based on purchase price at the rate of RM0.40 per share unit commencing from 01.10.2020 until todate; h. Current service charges and contribution towards sinking fund imposed by the 3rd Defendant are excessive, unlawful and all are still based on wrongly assigned share units determined not in compliance to the statutory formula prescribed in the Strata Titles Act 1985, Strata Title Rules 2015 and/or Strata Management Act 2013; i. Failed to pursue for the final audited account from the 1st Defendant and to ensure that the final and proper surpluses in Building Maintenance Account and Sinking Fund Balance held in trust have been fully transferred by the 1st Defendant over to Oasis Square JMB; j. Failed to prepare and present proper yearly audited accounts during its JMB period of management as from 13.12.2014 until to date and at AGMs; S/N 1byvA2m2mUOhrolSGujhIw k. Failed to pursue with the car park owner on the ticketing machines and boom gates unlawfully installed in the common area without consent and/or without imposition of fair charges payable by the car park parcel owner; l. Failed to recover the reimbursement of the charges for the illegal usage of electricity at the basement car parks from car park owner for the period 2013 to 2016; and m. Allowing the ground level surface accessory parcels belonging to the basement car park owner to be used for unlawful commercial car park rental business in breach of the Deed of Mutual Covenant, House Rules and/or Strata Title Act 1985. [12] The Plaintiffs’ specific prayers for reliefs apart for interests and costs via the filing of this suit against the 1st and 2nd Defendants are as follows:- a. General Damages as shall be assessed by this Honourable Court; b. Special Damages of each Plaintiff against the 1st Defendant with regard to their respective individual claims for a total sum together with accrued interest of RM36,233,143.00 as at 31.12.2021 as set out in Appendix B, Part A (and more particularly Annexure 1, Annexure 2, Annexure 3, Annexure 4, Annexure 4(1) and Annexure 4(2)) as attached herein and S/N 1byvA2m2mUOhrolSGujhIw interest at the rate of 10% per annum on the outstanding sum from 01.01.2022 until date of judgment; c. Special Damages against the 1st Defendant owing to and payable to Oasis Square JMB for the collective benefits of all the proprietors (inclusive of the Plaintiffs) in the total sum together with accrued interest of RM48,268,442.00 as at 31.12.2021 as set out in Appendix B, Part B (and more particularly Annexure 5(1), Annexure 6, Annexure 7, Annexure 7(1) as attached herein and paragraph 16(j) above and interest at the rate of 10% per annum on the outstanding sum from 01.01.2022 until date of judgment; d. A Declaration that the Architect’s Certificate issued for purpose of earlier delivery of vacant possession (“VP”) is null and void; e. A Declaration that the current Certificate of Fitness for Occupation (“CFO”) and Certificate of Completion and Compliance (“CCC”) are null and void; f. Following the declaration in paragraph 29 (d) and (e) above, an Order that the Architect’s Certificate and current CFO and CCC are set aside; g. An Order that the 1st Defendant rectify and make good all current breaches of statutory building by-laws, approved plans and development order within one (1) year from date of this Order so as to enable the proper issuance of the final vacant S/N 1byvA2m2mUOhrolSGujhIw possession together with final CCC for the said Project inclusive of all fully completed common property; h. An Order that the 1st Defendant pay to the Plaintiffs liquidated ascertained damages from the 01.01.2022 until the date of the issuance of the Final CCC. i. An Order for specific performance for 1st Defendant to pay for the Plaintiffs’ service charges and contribution to sinking fund as billed by the 3rd Defendant as from 01.10.2020 until such time the 1st Defendant delivers the final lawful vacant possession together with Final CCC to the Plaintiffs; j. An Order that 1st Defendant to prepare and provide the final audited accounts of Building Maintenance Account upon expiry of its management period for the period 01.07.2014 to 12.12.2014 within one (1) year from date of this Order and to account for and pay all shortfall in the surpluses due to the Oasis Square JMB; k. An Order for 1st and 2nd Defendants to account for, reimburse and repay past years’ maintenance cost for the infrastructures on MBPJ land from 23.01.2013 until date of this Order to Oasis Square JMB and thereafter, the 1st Defendant to pay for the costs of the infrastructures on MBPJ land; l. An Order that the 1st and 2nd Defendant to resolve the issue of having no legal access into/out from the said Project and S/N 1byvA2m2mUOhrolSGujhIw including the encroachment on 3rd party land that is MBPJ land and making good all breaches of statutory laws, approved plans and development order within one (1) year from date of said Order; m. An Order for the 1st Defendant to provide and transfer to Oasis Square JMB within one (1) month from date of this order the statutorily required four hundred and twelve (412) common visitors car parks and one hundred and five (105) motorcycles bays in compliance to statutory laws; n. An order that the 1st and 2nd Defendants procure and deliver valid strata title to the Plaintiffs within one (1) year from the date of this Order; o. A declaration that the current share units determined based on purchase price is null and void; p. Following the declaration in paragraph 29 (o) above, an Order that current assigned share units determined on purchase prices assigned to the Plaintiffs’ said parcels is set aside; and q. An Order that the 1st Defendant apply for a Court Order pursuant to Section 417 and/or such relevant provisions under the National Land Code (Revised 2020) to direct the Registrar of the relevant land office to amend and adopt allocated share units as determined based on and in accordance to the prescribed statutory formula set out in the Fourth Schedule of S/N 1byvA2m2mUOhrolSGujhIw the Strata Title Rules 2015 and relevant laws in respect of the said parcel units of the Plaintiffs and with regard to Plaintiffs’ individual Strata Titles to be issued; and r. An order for damages for 1st Defendant to pay and fully reimburse and/or indemnify the Plaintiffs all the professional fees charges and expenses (including legal fees on solicitor-client basis) incurred by Plaintiffs and for the engagement of Plaintiffs’ Experts Witnesses and Plaintiffs’ solicitors. [13] The Plaintiffs’ specific prayers for reliefs apart from interests and costs via this suit against the 3rd Defendant are as follows:- a. General Damages as assessed by this Honourable Court; b. Exemplary Damages as assessed by this Honourable Court; c. Aggravated Damages as assessed by this Honourable Court; d. Special Damages payable by the 3rd Defendant to the Plaintiffs’ their individual claims as set out in Appendix B, Part C (and more particularly Annexures 8, 8 (1), dan (9)) as attached herewith amounting to RM2,242,600.00 with interest accrued as at 31.12.2021; e. An Order to compel the 3rd Defendant to pursue and seek full recovery of the earlier shortfall in the underpaid charges not collected during the JMB management period and accrued S/N 1byvA2m2mUOhrolSGujhIw interest from the parcel owners who are to the 1st and 2nd Defendant’s Related Parties in the total sum of RM33,855,191.00 as set out in Appendix C, and Annexures 10 and 10 (1) as attached; and f. An Order for the 3rd Defendant to immediately bill its charges and contribution to sinking fund to the Plaintiffs on their lawfully assigned share units as determined based on the statutory formula in Fourth Schedule, Strata Titles Rules 2015 and/or other relevant laws; g. An Order for the 3rd Defendant to prepare the proper yearly audited accounts since its first accounting period from date of its formation on 13.12.2014 until to-date, audit, present and table all said lawful audited accounts at an Annual General Meeting (“AGM”) or Extraordinary General Meeting (“EGM”) and to re-file the proper past years’ audited accounts with the Commissioner of Buildings (“COB”). C. NOTICE OF APPLICATION [14] The Plaintiffs had via Enclosure Nos. 108 and 117 filed Notice of Application against the 1st and 2nd Defendants and the 3rd Defendant respectively pursuant to Order 14A Rule 1 ROC 2012 for their claims against the Defendants to be decided summarily as these are questions of law. S/N 1byvA2m2mUOhrolSGujhIw [15] The 1st and 2nd Defendants had via Enclosure No. 119 also filed a Notice of Application against the Plaintiffs pursuant to Order 14A Rule 1 ROC 2012 for the allegations made against them to be disposed of summarily as it involves questions of law. [16] In perusing through both the applications under Enclosure Nos. 108 and 119 filed by the Plaintiffs and the 1st and 2nd Defendants respectively, I took the view that the application made by the 1st and 2nd Defendants via Enclosure No. 119 which involves the questions of locus standi and time barred under the Limitation Act 1953 should be dealt with first before considering Enclosure No. 108 by the Plaintiff. [17] I also took the view that Enclosure No. 117 against the 3rd Defendant will be dealt with last. D. THE LAW ON ORDER 14A ROC 2012 [18] Order 14A Rule 1 ROC 2012 is a rule to be invoked for summary disposal of a case or issues solely on questions of law:- “Determination of questions of law or construction (O. 14A, r. 1)

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that—

such question is suitable for determination without the full trial of the action; and S/N 1byvA2m2mUOhrolSGujhIw

such determination will finally determine the entire cause or matter or any claim or issue therein.

On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.

The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question.

The jurisdiction of the Court under this Order may be exercised by a Registrar.

Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provisions of these Rules.” [19] Be that as it may, it is trite that an issue is only suitable for determination under Order 14A, if: i. There is no dispute in facts of the issues, the parties wish to determine and would not require further adjudication [see Petroleum Nasional Bhd v Kerajaan Negeri Terengganu & Another Appeal [2004] 1 MLJ 8]; and ii. The points of law have been stated in clear and precise terms and the facts disclosed by the pleadings and affidavit evidence are sufficient for the court to make such determination [see Seloga Sdn Bhd v UEM Gynisys Sdn Bhd [2007] 7 MLJ 385]. [20] Through their respective Affidavits in Reply to their respective applications, both the Plaintiffs and the 1st and 2nd Defendants did not raise any dispute to facts in objecting for the questions of law posed for determination to be made pursuant to O. 14A r.1. S/N 1byvA2m2mUOhrolSGujhIw [21] However, the 3rd Defendant had via its Affidavit in Reply to the Plaintiffs’ application via Enclosure No. 117 had objected to a summary disposal of the issues raised by the Plaintiffs on the grounds that there are facts which are disputed. Among others, that the calculation method applied to determine the share units on the strata titles using purchase price was approved by the Director of Lands and Mines. [22] Be that as it may, essentially, the questions of law related to the 3rd Defendant are pertaining to the imposition of maintenance charges and sinking fund not in accordance to share units and based on multiple rates. The 3rd Defendant in its defence did not deny the Plaintiffs’ claims but only provided reasons for doing so. For example, at para 9(a) of the 3rd Defendant’s Affidavit in Reply (@ Enclosure No. 129): “Maintenance charges based on PSF

It is not disputed that the maintenance charges were collected on per square feet (“PSF”) basis from 13.12.2014 to 30.9.2020. The collection of the maintenance charges based on the PSF basis was unanimously approved in the first annual general meeting (“AGM”) on 13.12.2014.” [23] I refer to the Federal Court case of Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2009] 5 MLJ 754 where it was held that when the entire answer to the question posed which purely involved the application of undisputed facts, the claim could appropriately be disposed of under Order 14A ROC 2012: “[38] Finally, based on the view that we have taken, clearly, this is a fit and proper case to be decided under O 14A of the RHC on the single issue as posed to this court. The outcome of the claim by the respondent rests entirely S/N 1byvA2m2mUOhrolSGujhIw on our answer to the question posed which purely involved the application of the facts which are not in dispute, to the relevant provisions of the Act and the WUR. On that premise, we hold that the claim may appropriately be disposed of under O 14A (see European Asian Bank AG v Punjab and Sind Bank [1983] 2 All ER 508).” [24] Therefore, since there are no factual disputes in any of these applications, hence, I am of the view that these questions of law posed can be disposed of summarily by way of O. 14A r. 1. E. ISSUES [25] Based on these applications, the issues which have to be considered by this court are as follows:- I. Enclosure No. 119 by the Defendant a. Preliminary Objection by the Plaintiffs b. The questions of law posed by the 1st and 2nd Defendants: i. Whether the Plaintiffs’ have locus standi in bringing this action against the 1st and 2nd Defendants (Qs1, 4, 5, 6, 7, 9,12,13,15,16,17 & 18); ii. Whether the Plaintiffs are time-barred in bringing this action (Qs2 & 3); iii. Whether the Plaintiffs’ claim is academic (Qs10 & 11); iv. Legal obligation (Q8); and v. Uniform rate (Q14). S/N 1byvA2m2mUOhrolSGujhIw II. Enclosure No. 108 by the Plaintiffs – The questions of law posed by the Plaintiffs against the 1st and 2nd Defendants III. Enclosure No. 117 by the Plaintiffs – The questions of law posed by the Plaintiffs against the 3rd Defendant. F. FINDINGS OF THE COURT I. Enclosure No. 119 by the Defendant [26] As explained in paragraph 17 hereinabove, I decided on this application first. The questions of law posed via this application are as follows: Q1: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant for a declaration that the Architect’s Certificates, Certificate of Fitness for Occupation and Certificates of Completion and Compliance of the Plaintiffs’ parcels which were issued in 2010 and 2011 are null and void? Q2: Whether the Plaintiffsʼ claim against the 1st Defendant for a declaration that the Architectʼs Certificates, Certificate of Fitness for Occupation and Certificates of Completion and Compliance of the Plaintiffsʼ parcels which were issued in 2010 and 2011 are null and void, is time-barred under the Limitation Act 1953? S/N 1byvA2m2mUOhrolSGujhIw Q3: Whether the Plaintiffsʼ claim against the 1st Defendant for Liquidated Ascertained Damages (“LAD”) on the allegation that the vacant possession of the Plaintiffsʼ parcels and the common property was not delivered within 36 months from the date of the Sale and Purchase Agreements, is time-barred under the Limitation Act 1953? Q4: Whether the Plaintiffs who are sub-sale purchasers have a right to claim for LAD under the original Sale and Purchase Agreements executed between the original purchasers and the 1st and 2nd Defendants? Q5: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant for alleged non-compliance with the Development Order, Development Approval, Amended Building Plans and/or statutory building by-laws and requirements of the authorities? Q6: Whether the Plaintiffs have locus standi to commence proceedings against the 1st Defendant to enforce/compel compliance with the Development Order, Development Approval, Amended Building Plans and/or statutory building by-laws in respect of common property? Q7: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant to compel it to provide common property visitor car parks to the Joint Management Body (“JMB”) (3rd Defendant)? S/N 1byvA2m2mUOhrolSGujhIw Q8: Whether the 1st Defendant is required under the Sale and Purchase Agreements, the Building and Common Property (Management and Maintenance) Act 2007, Majlis Bandaraya Petaling Jaya Guidelines and/or any other legislation/by-laws to provide visitor car parks as common property? Q9: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant for alleged losses in the collection of parking fees allegedly suffered by the JMB (3rd Defendant) as a result of the alleged failure to provide visitor car parks as common property? Q10: Whether the Plaintiffs’ claim that the 1st and/or 2nd Defendants had failed to deliver and transfer strata titles for the Plaintiffs’ parcels is now academic given that strata titles for the Project have been issued and ready for perfection of transfer since 2019? Q11: Whether the Plaintiffs’ claim for a declaration that the current share units determined based on purchase price is null and void is academic in view that the recalculation of share units has been passed at the Extraordinary General Meeting on 5.7.2023 and is pending sanction by the High Court by way of Originating Summons No. BA-24NCVC-2129-11/2023? Q12: Whether the Plaintiffs have locus standi to bring a claim for any refund, reimbursement, repayment of maintenance charges and contributions to the sinking fund against the 1st Defendant, given that the JMB has been established since S/N 1byvA2m2mUOhrolSGujhIw

13.12.2014 and all monies in the maintenance and sinking fund accounts were handed over and/or transferred to the JMB (3rd Defendant)? Q13: Whether the Plaintiffs have locus standi to claim for any reimbursement and repayment of expenses paid out from the building maintenance account during the Developer Management Period (“DMP”) against the 1st Defendant, given that the JMB (3rd Defendant) has been established since 13.12.2014 and all monies in the maintenance account. Q14: Whether there was any requirement under the Building and Common Property (Maintenance and Management) Act 2007 for the 1st Defendant to impose and collect maintenance charges and contributions to the sinking fund at a single rate and in proportion to the allocated share units during the DMP? Q15: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant to compel the 1st Defendant to provide to the JMB the final audited building maintenance accounts for the period of 1.7.2014 until 12.12.2014, given that the JMB (3rd Defendant) has been established since 13.12.2014? Q16: If so, whether the Plaintiffs’ claim is now academic given that the audited accounts for the financial year ending 30.9.2015 S/N 1byvA2m2mUOhrolSGujhIw have been prepared which would include the period of 1.7.2014 to 12.12.2014? Q17: Whether the Plaintiffs have locus standi to bring a claim against the 2nd Defendant as the original proprietor of the Land to make the 2nd Defendant liable to the JMB (3rd Defendant) for the cost of maintenance for infrastructure allegedly built on land belonging to Majlis Bandaraya Petaling Jaya? Q18: Whether the Plaintiffs have locus standi to bring a claim against the 2nd Defendant as the original proprietor of the Land to resolve the issue of the Project allegedly having no legal access and/or any alleged encroachment on 3rd party land and to make good of all alleged breaches of statutory laws, approved plans and development order? a. Preliminary Objection by the Plaintiffs [27] Whether this court is bound by its previous decision in dismissing the Order 18 Rule 19(1) ROC 2012 (“O.18 r.19”) application made by the 1st and 2nd Defendants via Enclosure No. 27 of this suit. [28] It is the Plaintiffs’ position that since this court had dismissed the striking out application, the 1st & 2nd Defendants’ questions of law raised via this Order 14A Rule 1 ROC 2012 application which essentially are on whether the Plaintiffs have the locus standi in bringing this action and whether the Plaintiffs’ action is time-barred is a “second bite of the S/N 1byvA2m2mUOhrolSGujhIw cherry” and as such the 1st and 2nd Defendants are estopped from filing this application. [29] In the Order 18 application, this court was to consider whether the case which the Plaintiffs have brought against the Defendants is one which is plain and obviously unsustainable. O.18 r.19(1)(a) allowed the Plaintiffs to show a reasonable cause of action. This court had merely looked at the pleadings and decided that the action brought by the Plaintiffs against the Defendants was not plain and obviously unsustainable and as such, I had dismissed the O.18 application. [30] The principles applied in determining an Order 18 application is certainly different when compared to the principles applicable in an Order 14A application. In this case, the issues of locus standi and limitation are raised as questions of law though the same was raised as reason to strike out the pleadings. For both these applications, it cannot be denied that the judicial appreciations are different and the depth of these questions are far more than in a striking out application. [31] I rely of the reference made to the case of Sugi Sinar Sdn Bhd v Bank Muamalat Malaysia Berhad (Small Medium Enterprise Development Bank Malaysia Berhad (dahulunya dikenali sebagai Bank Perusahaan Kecil & Sederhana Malaysia Berhad), pihak ketiga) [2017] MLJU 62, where in hearing an Order 14A application subsequent to dismissing a striking out application (as in this case), the High Court held that the dismissal of the application under Order 18 Rule 19 does not prevent the court from applying Order 14A. The relevant excerpt of the High Court judgment is as follows: S/N 1byvA2m2mUOhrolSGujhIw “[10] It is clear from the reading of the above that the provisions in Order 14A is an addition to the powers given under Order 18 Rule 19 of the Rules. It can be exercised separately and independently of Order 18 Rule 19 of the Rules. In this case there had been an earlier unsuccessful attempt by the Defendant to strike off the case by virtue of Order 18 Rule 19. It is the court’s view that the dismissal of the application under Order 18 Rule 19 does not prevent the court from applying Order 14A.” [32] On the 1st and 2nd Defendants’ application to strike out the pleadings pursuant to Order 18 Rule 19, I had dismissed the application only on the basis that it was not on the face of it plainly unsustainable and nothing more. As found in the case of Nora Hayati v Amanah Raya Bhd [2012] 10 CLJ 634 that in a striking out application, the court is only concerned with whether the case on the face of it is obviously unsustainable. It was also held in that case that the principles applicable in a striking out application under Order 18 Rule 19 of the Rules of the High Court 1980 (pari materia to Order 18 Rule 19 of the Rules of Court 2012) are quite different from that of an application under Order 14A. [33] The only factor for this court to consider as a preliminary consideration to whether questions of law can be heard and decided pursuant to an application under O.14A r.1 is that whether there are disputes as to facts. In this case, I have dealt with this issue and have decided that there are no disputes as to facts and as such, the questions of law posed can be disposed of summarily via this application. As it was established by the Federal Court in Director Of Forests, Sarawak & Anor v Racha Urud & Ors And Other Appeals [2017] 5 CLJ 389 where Balia Yusof Wahi FCJ in delivering the judgment had stated as follows:- S/N 1byvA2m2mUOhrolSGujhIw “The issue of law, if it is discernible at all, has to be discernible from the statement of claim and defence. If there could still be a debate as to whether on slightly different facts a cause of action might or might not exist, an application under O. 14A is inappropriate. The court should not be required to interpret the statement of claim to decide what point of law arises. An application under O. 14A is to decide clear points of law or construction apparent on the pleadings (see Watson & Anor v. Dutton Forshaw Motor Group Ltd & Ors [1998] EWCA 3245, 22 July 1998, CA)” (Emphasis added) [34] On whether the 1st and 2nd Defendants are estopped by the principle of res judicata in raising the questions of law relating to locus standi and limitation in this application when the same was raised at the striking out application, the 1st and 2nd Defendants had relied on the Court of Appeal case, Lin Wen-Chih & Anor v Pacific Forest Industries Sdn Bhd & Anor [2021] 4 MLJ 367 where it was held that as a general rule, interlocutory applications do not attract the principle of res judicata. [35] It cannot be denied that although an application pursuant to O.14A r. 1 can dispose the case summarily, it still is an interlocutory application as an application to strike out pursuant to O.18 r.19 is. Therefore, the principles of res judicata does not apply in sustaining the Plaintiffs’ objection. b. The questions of Law posed by the 1st and 2nd Defendants [36] Whether the Plaintiffs’ have locus standi in bringing this action against the 1st and 2nd Defendants (Q1, 4, 5, 6, 7, 9, 12, 13, 15, 16, 17 & 18); S/N 1byvA2m2mUOhrolSGujhIw Q1: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant for a declaration that the Architect’s Certificates, Certificate of Fitness for Occupation and Certificates of Completion and Compliance of the Plaintiff’s parcels which were issued in 2010 and 2011 are null and void?

36.1 Any issue relating to the validity and or legality of the units/parcels and or the common properties of a development undoubtedly and undeniable will affect all the unit/parcel owners of that development.

36.2 Although the unit/parcel owners derive their right to seek for legal redress pursuant to the Sale and Purchase Agreements, however, their right is on their own respective unit(s)/parcel(s). Any action which has to be taken against any issues relating to the development which affects all the unit/parcel owners, has to be taken collectively either via the JMB or the MC as both have the right to sue and be sued. Alternatively, the unit/parcel owners have the right to seek for legal redress by commencing a representative action pursuant to Order 15 Rule 12 Rules of Court 2012:

36.3 Reliance is sought from the High Court case of Merang Jok & Ors v Government of Malaysia & Ors [2017] MLJU 209, where the High Court held as follows: “[20] The law pertaining to representative action is well settled. In the case of Duke of Bedford v. Ellis [1901] AC 1, it was held that in order to S/N 1byvA2m2mUOhrolSGujhIw succeed in a representative action, the plaintiff must satisfy three requirements. Firstly, the plaintiff and those represented by it are members of a class and that these members have a common interest. Secondly, the plaintiff and those represented have a common grievance. Thirdly, the relief sought is in its nature beneficial to them all. This decision was followed with approval by our courts in Palmco Holding Bhd v. Sakapp Commodities (M) Sdn Bhd & Ors [1986] 1 LNS 124;; [1988] 2 MLJ 626 and Voon Keng & Ors v. Syarikat Muzwina Development Sdn Bhd [1990] 1 CLJ 1010; [1990] 3 CLJ (Rep) 329, to name a few. [21] It is very clear, therefore, that besides fulfilling the three preconditions as stipulated in the Duke of Bedford’s case, the plaintiff in a representative action must state clearly in the summons and statement of claim that the action was taken up on behalf of themselves and on behalf of the others. (See Abdul Rahim Aki v. Krubong Industrial Park (Melaka) Sdn Bhd [1995] 4 CLJ 551; ; [1995] 3 MLJ 417; O. 6 r. 3 and O. 15 r. 12 of the RHC 1980; Palmco Holdings Bhd v. Sakap Commodities (M) Sdn Bhd & Ors [1986] 1 LNS 124; [1988] 2 MLJ 624 at p. 629)” (Emphasis added)

36.4 Admittedly, the Plaintiffs in this suit had commenced this action against the 1st and 2nd Defendants in their individual capacity as unit/parcel owners of Oasis Ara Damansara. Undisputedly, their claims in this action are not on their individual units/parcels but on matters which involve the entire development i.e Oasis Ara Damansara. Among others, the declarations sought by the Plaintiffs via this suit is for the Architect’s Certificates, CFO and CCC issued for S/N 1byvA2m2mUOhrolSGujhIw Oasis Ara Damansara to be declared null and void. Should this court find the need to make such declarations, obviously such declarations would affect all the unit/parcel owners of the entire Oasis Ara Damansara and not just these Plaintiffs.

36.5 There are consequences which will have to be suffered if the CFO and or the CCC are declared null and void, not just by the Defendants or the Plaintiffs in this suit but also all the other unit/parcel owners. As such, all unit/parcel owners have to be informed of such an action and should consent for the same to be declared. As such, only through a proper representative action could such claims be made.

36.6 In this case, the 1st and 2nd Defendants submit that the Plaintiffs’ failure to properly file a representative action on behalf of all owners in the project is fatal to their claims. The High Court case of Tan Siew Hong v Mohd Azli bin Abdul Hamid & Ors and other appeals [2018] MLJU 2008 (“Tan Siew Hong’s case”) was referred to establish their point where, having similar facts as this case, in the Tan Siew Hong’s case, three plaintiffs as unit owners in Gurney 8 sought to nullify the CCC issued for the entire development and moved the court to declare the vacant possession has not been delivered in respect of the entire development. The High Court in the Tan Siew Hong’s case in dismissing the plaintiffs held that the plaintiffs lacked the necessary locus standi as the action commenced by them was not a representative action when the action will affect all other unit S/N 1byvA2m2mUOhrolSGujhIw owners of the development. The relevant excerpt of the High Court judgment is as follows: “Locus Standi [8] The Plaintiffs in these 3 consolidated suits are the owners of 3 Units in Gurney 8. They are attempting to nullify the CCC by instituting the actions to move the court into declaring that Vacant Possession has not been delivered in respect of the entire development. Their pleaded case does not confine the prayers to their respective units only. The CCC issued is in respect of the entire Gurney 8 development. [9] The prayers sought by the Plaintiffs will necessarily affect all other Unit Owners in Gurney 8. In the event the court rules that the CCC issued by 2nd and 3rd Defendants is null and void, this declaration cannot be confined to the 3 Units only. This Court is now posed with the question as to whether they are entitled to bring such an action without the explicit consent of all owners/the Joint Management Body (JMB) and which is not in the form of a Representative Action. … [11] Since the prayers being sought is seeking to nullify the CCC in its entirety, it is trite that a representative action should be initiated as opposed to actions by the 3 individuals. The nullification of the CCC would affect each and every Unit Owner. Alternatively, it is for the JMB to bring such an action as the JMB is a creature of statute, established under the Building and Common Property (Maintenance and Management) Act 2007 (BCPA 2007). The JMB hence represents the residents/owners of Gurney 8 with Section 4(3) of the Act providing the JMB with the capacity to sue or being sued in its name. S/N 1byvA2m2mUOhrolSGujhIw … [13] This Court is entirely convinced that the Plaintiffs henceforth lack the necessary Locus Standi to seek the pleaded Declaratory reliefs. On this issue alone these Suits must be dismissed with costs.” (Emphasis added)

36.7 As such, undoubtedly, the fact being that this action brought by the Plaintiffs are not a representative action, in such circumstance, I am of the view that the Plaintiffs have no locus standi to pray for a declaration to nullify the Architect’s Certificates, Certificate of Fitness for Occupation and Certificates of Completion and Compliance which will affect all other unit/parcel owners in the development. Q4: Whether the Plaintiffs who are sub-sale purchasers have a right to claim for liquidated damages under the original Sale and Purchase Agreements executed between the original purchasers and the 1st and 2nd Defendants?

36.8 The Plaintiffs in this case have claimed for LAD against the 1st and 2nd Defendants pursuant to the SPA. The question which has been raised by the 1st and 2nd Defendants is that whether the Plaintiffs who are owners through a sub-sale purchase have the right to claim for LAD which is a contractual right under the SPA between the 1st purchasers and the 1st and 2nd Defendants (Principal SPA). S/N 1byvA2m2mUOhrolSGujhIw

36.9 The Defendants’ stand on this issue is that the Plaintiffs who are sub-purchasers are not privy to the principal SPA and as such do not have the rights under the same.

36.10 The Plaintiffs on the other hand refer this court to Clause 41 of the principal SPA which reads, “This Agreement shall be binding upon the successors in title and assigns of the Vendor and/or the Proprietor, the heirs, personal representatives, successors in title and permitted assign of the Purchaser”

36.11 So long as the beneficial interest of the principal purchaser under the principal SPA is transferred to the subsequent purchaser(s) via a Deed of Assignment, all rights of the principal purchaser gets vested on to the subsequent purchaser(s). Hence, if vacant possession is not delivered in accordance to the principal SPA, a subsequent purchaser by way of the Deed of Assignment has the right to claim for LAD in accordance to the principal SPA.

36.12 However, since the first question (Q1) hereinabove, is answered in the negative, the sub-sale purchasers in this suit being Plaintiffs who have brought this action their individual capacity shares the same fate as the principal purchasers who are Plaintiffs in this case. Q5: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant for alleged non-compliance with the Development Order, Development Approval, Amended S/N 1byvA2m2mUOhrolSGujhIw Building Plans and/or statutory building by-laws and requirements of the authorities? Q6: Whether the Plaintiffs have locus standi to commence proceedings against the 1st Defendant to enforce/compel compliance with the Development Order, Development Approval, Amended Building Plans and/or statutory building by-laws in respect of common property?

36.13 The Defendants argue that since the approvals have been given by the local authorities and any non-compliance of the same will have to be dealt with by the local authorities and not the Plaintiffs. I agree with the Defendants’ argument that the right to bring any action for non-compliance of any of the approval given for the development falls in the hands of the local authority related and as such, the Plaintiffs do not have the locus standi to do so.

36.14 The Plaintiffs if not satisfied with the approvals given by the local authorities could have their recourse by filing for a Judicial Review to challenge against such an approval pursuant to Order 53 of the Rules of Court 2012. There is no evidence that such action has been taken by any if not all the Plaintiffs. Given that the Plaintiffs have not taken such actions to challenge the approvals within three (3) months from the date of the approvals being granted, they are time-barred now. S/N 1byvA2m2mUOhrolSGujhIw Q7: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant to compel it to provide common property visitors car parks to the Joint Management Body (“JMB”) (3rd Defendant)? Q9: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant for alleged losses in the collection of parking fees allegedly suffered by the JMB (3rd Defendant) as a result of the alleged failure to provide visitor car parks as common property?

36.15 The Management Corporation (MC) for this development has been established on 9.4.2019 and by virtue of Section 17(1) of the Strata Titles Act 1985, from the time that the MC comes into existence, common property of this development would be vested in the MC.

36.16 The Court of Appeal case of Park Access Sdn Bhd & Ors v Badan Pengurusan Bersama Prima Avenue dan DPCC Fasa 1 (Blok G,H,I) and other appeals [2018] MLJU 647 confirms the proprietary rights when it held that from the time the MC comes into existence, the MC becomes the proprietor of the common property and that all proprietary rights in the common property is statutorily vested in the MC on the date of its establishment.

36.17 Therefore, similarly in this case, the proprietary rights of the common property of this development have been statutorily vested in the MC upon its establishment on 9.4.2019. As S/N 1byvA2m2mUOhrolSGujhIw such, the Plaintiffs being individual unit/parcel owners do not have locus standi to bring this action against the 1st and 2nd Defendants on matters involving the common property when the MC has been established prior to filing of this suit. Q12: Whether the Plaintiffs have locus standi to bring a claim for any refund, reimbursement, repayment of maintenance charges and contributions to the sinking fund against the 1st Defendant, given that the JMB has been established since 13.12.2014 and all monies in the maintenance and sinking fund accounts were handed over and/or transferred to the JMB (3rd Defendant)?

36.18 On the basis that the Plaintiffs had made all the payments for the maintenance and sinking fund to the 1st Defendant during the Developer’s Management Period (DMP), therefore, any claims arising from the payments made to the 1st Defendant directly during the DMP can be made against the 1st Defendant. Additionally, these are payments made for the Plaintiffs’ individual units/parcels as owners. Hence, I am of the view that the Plaintiffs have the locus standi to bring this action against the 1st Defendant.

36.19 In order to establish their right to bring this action against the 1st Defendant for the refund, reimbursement and repayment of maintenance charges and sinking fund, the Plaintiffs have referred to and relied on the Federal Court case of TRA MINING (MALAYSIA) SDN BHD-v-THIEN HONG TECK & S/N 1byvA2m2mUOhrolSGujhIw ORS AND ANOTHER APPEAL [2018] 10 CLJ 438 where it was held that: "[92] In order to establish that a person or a plaintiff has a locus standi in a proceeding before the court, he must satisfy the court that he possesses an interest in the issue raised in the proceedings. The court has to be satisfied that there was an infringement of a legal right or a breach of a statute which affects the plaintiff's interests substantially or the plaintiff has some genuine interest in having his legal position determined by the court in the proceedings. (see: Boyce v. Paddington Borough Council [1903] 1 Ch 109; Tan Sri Othman Saat v. Mohamad Ismail [1982] 1 LNS 2; [1982] 2 MLJ 177; Government Of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ (Rep) 63; [1988] 1 CLJ 219; [1988] 2 MLJ 12; Dewan Pemuda Masjid Malaysia v. SIS Forum (Malaysia) [2011] 4 CLJ 630; [2012] 1 MLJ 126).”

36.20 However, taking into consideration that payments made for maintenance charges and sinking fund to the 1st Defendant during the DMP were paid between the period from 2010 to January 2015, the Plaintiffs are time-barred pursuant to s.6(1)(a) of the Limitation Act 1953 as this suit was filed on 28.4.2022. Q13: Whether the Plaintiffs have locus standi to claim for any reimbursement and repayment of expenses paid out from the building maintenance account during the Developer’s Management Period (“DMP”) against the 1st Defendant, given that the JMB (3rd Defendant) has been established since 13.12.2014 and all monies in the maintenance? S/N 1byvA2m2mUOhrolSGujhIw Q15: Whether the Plaintiffs have locus standi to bring a claim against the 1st Defendant to compel the 1st Defendant to provide to the JMB the final audited building maintenance accounts for the period of 1.7.2014 until 12.12.2014, given that the JMB (3rd Defendant) has been established since 13.12.2014? Q16: If so, whether the Plaintiffs’ claim is now academic given that the audited accounts for the financial year ending 30.9.2015 have been prepared which would include the period of 1.7.2014 to 12.12.2014?

36.21 The maintenance account was managed by the 1st Defendant during DMP and the same was handed over to the JMB upon its establishment on 13.12.2014. The Building and Common Property (Management and Maintenance) Act 2007 (“BCPA”) and the Strata Management Act 2013 (“SMS”) are clear that the all funds under the maintenance and sinking funds accounts are to be transferred to and vested in the JMB upon the establishment of the same. (See: Jabar Khan @ Yasser Arafat bin Napi v Jebcon Sdn Bhd [2021] MLJU 532)

36.22 Therefore, the right to take any action pertaining to the building maintenance account lies with the JMB and not the Plaintiffs as claimed. As such, the Plaintiffs do not have the locus standi to bring this claim against the 1st Defendant. S/N 1byvA2m2mUOhrolSGujhIw

36.23 It is the right of the JMB to question and take the needful action(s) regarding the accounts when the same was handed over to it upon its establishment.

36.24 Be that as it may, considering the fact that the final audited accounts for the financial year ended on 30.9.2015 wherein the period from 1.7.2014 to 12.12.2014 has been included, the Plaintiffs claim is academic. Q17: Whether the Plaintiffs have locus standi to bring a claim against the 2nd Defendant as the original proprietor of the Land to make the 2nd Defendant liable to the JMB (3rd Defendant) for the cost of maintenance for infrastructure allegedly built on land belonging to Majlis Bandaraya Petaling Jaya? Q18: Whether the Plaintiffs have locus standi to bring a claim against the 2nd Defendant as the original proprietor of the Land to resolve the issue of the Project allegedly having no legal access and/or any alleged encroachment on 3rd party land and to make good of all alleged breaches of statutory laws, approved plans and development order?

36.25 Any cost of maintenance incurred using the building maintenance account is to be accounted for by the JMB. Therefore, any claims to be made for reimbursement or refund in relation to that account squarely falls on the JMB. The Plaintiffs as individual unit/parcel owners do not have S/N 1byvA2m2mUOhrolSGujhIw the locus standi to bring this claim against the 2nd Defendant.

36.26 Since the Plaintiffs are not the proprietors of the land on which is said to have been encroached, neither are they the approving authority of the approved plans and the development order, they clearly have no locus standi to bring this action against either the 2nd Defendant or the 1st Defendant. Reference was made by the 1st Defendant to the Court of Appeal case of Sin Heap Lee–Marubeni Sdn Bhd v Yip Shou Shan [2005] 1 MLJ 515 where it was held as follows on the issue of right to sue in a trespass situation: “[57] I now propose to deal with the question of locus standi as it relates to the respondent's claim in trespass. [58] Since trespass is an injury to a possessory right, the proper plaintiff in an action of trespass to land is a person who was in possession of the land at the time of the trespass. But if the land is vacant land, as the respondent's land in this case was, the owner has sufficient possession to sue in trespass…” (Emphasis added)

36.27 Based on the authorities referred to substantiate its stand, the 1st and 2nd Defendants have shown that the Plaintiffs have no locus standi to make these claims. S/N 1byvA2m2mUOhrolSGujhIw [37] Questions relating to whether the Plaintiffs are time-barred in bringing this action are Q2 and Q3. Q2: Whether the Plaintiffsʼ claim against the 1st Defendant for a declaration that the Architectʼs Certificates, Certificate of Fitness for Occupation and Certificates of Completion and Compliance of the Plaintiffsʼ parcels which were issued in 2010 and 2011 are null and void, is time-barred under the Limitation Act 1953? Q3: Whether the Plaintiffsʼ claim against the 1st Defendant for liquidated damages on the allegation that the vacant possession of the Plaintiffsʼ parcels and the common property was not delivered within 36 months from the date of the Sale and Purchase Agreements is time-barred under the Limitation Act 1953?

37.1 The Plaintiffs’ claims in the pleadings are that the Architect’s Certificates, CFO and CCC are defective and have been unlawfully issued and as such are null and void. Due to the unlawful issuance of these certificates, the vacant possession (“VP’) delivered to the Plaintiffs are void ab initio. The 1st and 2nd Defendants’ position is that the Plaintiffs are time-barred to bring this action.

37.2 Having decided that the Plaintiffs in their individual capacity do not have the locus standi to claim for such a declaration, I S/N 1byvA2m2mUOhrolSGujhIw find that the question of being time-barred is no longer relevant in this case.

37.3 Be that as it may, whether the Plaintiffs’ claims against the 1st and 2nd Defendants are contractual and or in tort, s.6(1)(a) of the Limitation Act 1953 of 6 years from the date of the cause of action would apply unless there is an exception pursuant to s.29 of the Limitation Act 1953, which is not pleaded by the Plaintiffs.

37.4 In the Court of Appeal case of Golden Approach Sdn Bhd v Lau Sen Leong & Anor [2019] 3 MLJ 777 as highlighted by the 1st and 2nd Defendants via the submission, it was held that the right of action to claim for LAD accrued on the day after the time limited to deliver vacant possession and the court had struck out the Plaintiffs’ claim pursuant to Order 14A ROC 2012 on the grounds that the claim is time-barred. The relevant excerpt of the judgment is reproduced below: “[35] Therefore based on the aforesaid, Insun’s case applies and the plaintiffs’ right of action to claim for liquidated and ascertained damages accrued on the date of the breach, namely the day after the time limited under cl 20(2) of the SPA of delivery of vacant possession on 4 August 1998. [36] As the plaintiffs’ cause of action was founded on contract, the limitation period is governed by s 6 of the Limitation Act 1953, which is six years from the date of the breach. The last date for the plaintiffs to bring an action against Golden Approach for the breach of cl 20(2) of the SPA is 3 August 2004. Clearly, the action herein was filed 15 March 2017 which is outside the limitation period as prescribed under s S/N 1byvA2m2mUOhrolSGujhIw 6(1) of the LA. Hence, the plaintiffs’ claim is out of time. [39] We agree with the contention of learned counsel for Golden Approach. In view that we have allowed the appeal, and the claim is barred by limitation, there is nothing left for the matter to be remitted back to High Court. We have decided on the question of law, namely on the limitation issue. We therefore invoke the powers under O14A and order that the claim be struck out (O 14A r 1 and O 14A r 2 of the ROC 2012 referred).”

37.5 Furthermore, as argued by the Defendants, the certificates had been issued by the local authorities. By virtue of Order 53 ROC 2012, the Plaintiffs could have filed for a Judicial Review against the approvals and or the certificates issued by the local authorities, which they did not do within the given three (3) months from the date of the issuance. As such, the Plaintiffs are time-barred. [38] Whether the Plaintiffs’ claim is academic as per Q10 and Q11. Q10: Whether the Plaintiffs’ claim that the 1st and/or 2nd Defendants had failed to deliver and transfer strata titles for the Plaintiffs’ parcels is now academic given that strata titles for the Project have been issued and ready for perfection of transfer since 2019?

38.1 The 1st and 2nd Defendants claim that strata titles have been issued and are ready for the perfection of transfer since 2019 but the unit/parcel owners including the Plaintiffs did not come forward to affect the transfer till to date. The Plaintiffs on the other hand claim that the strata titles issued in 2019 S/N 1byvA2m2mUOhrolSGujhIw were defective and invalid as the share units stated in the issued strata titles which are based on purchase price are erroneous and unlawful.

38.2 Since there are disputes as to material facts, it is my view that this issue is not one which can be disposed via an Order 14A application. Hence, this issue should be disposed via a full trial. Q11: Whether the Plaintiffs’ claim for a declaration that the current share units determined based on purchase price is null and void is academic in view that the recalculation of share units has been passed at the Extraordinary General Meeting on 5.7.2023 and is pending sanction by the High Court by way of Originating Summons No. BA-24NCVC-2129-11/2023?

38.3. On the basis that this issue of share units has been addressed and dealt with, I agree with the Defendants that such a declaration sought by the Plaintiff is no longer relevant and is indeed academic. [39] Question Q8 is related to legal obligation. Q8: Whether the 1st Defendant is required under the Sale and Purchase Agreements, the Building and Common Property (Management and Maintenance) Act 2007, Majlis Bandaraya Petaling Jaya Guidelines and/or any other legislation/by-laws to provide visitor car parks as common property? S/N 1byvA2m2mUOhrolSGujhIw

39.1 There are specific provisions in the SPA which deals with car parks i.e Clause 1 & 7 and both these clauses expressly state that the car park areas belong to the vendor (the 1st Defendant being the developer). The list of common facilities and services in the SPA also does not include the car park areas. Undeniably the SPA is the instrument which binds the Plaintiffs with the 1st Defendant.

39.2 Clearly the SPA does not provide for car parks to be common facilities and places no obligation on the Defendants to provide the 10% visitor car parks as common property to the JMB (3rd Defendant).

39.3 Be that as it may, even if this is challenged, it should be brought by the JMB or the MC against the 1st Defendant and not the individual Plaintiffs as in this case. [40] On the issue of imposition of maintenance charges based on PSF and on different rates. Q14: The BCPA and/or the STA did not preclude the 1st Defendant from collecting and imposing maintenance charges at a PSF basis and at different rates across the different types of parcels during its management period at all material times. The Plaintiffs’ reliance on clauses of the SPAs to assert that maintenance charges ought to be imposed on a share unit basis during the DMP is time-barred under Section 6(1)(a) of the Limitation Act 1953. S/N 1byvA2m2mUOhrolSGujhIw

40.1 It is the 1st Defendant’s argument that Section 17(1) of the BCPA does not specifically require the developer to impose and collect maintenance charges in proportion to the allocated share units during the DMP as is required of the JMB pursuant to Section 8(2)(a) BCPA. In the SMA however, the developer is required to impose and collect maintenance charges in proportion to the allocated share units during the DMP.

40.2 Based on this change made in the SMA, it can be seen that Section 17(1) of the BCPA was never intended to carry the provision in Section 9(3) of the SMA with regards to the developer during the DMP.

40.3 On the issue of imposition and collection made based on multiple rates, only in 2019 through the Court of Appeal’s decision in the case of Muhamad Nazri Muhamad v. JMB Menara Rajawali & Anor [2019] 10 CLJ 547 (“Rajawali case”) the term “in proportion” appearing in the SMA was interpreted as “a single rate”. Up to the Rajawali case, there was no requirement for a uniform rate to be imposed.

40.4 Even so, since the DMP was from 2010 to December 2014, this case being filed on 28 April 2022 by the Plaintiffs is clearly time-barred pursuant to Section 6(1)(a) of the Limitation Act 1953. S/N 1byvA2m2mUOhrolSGujhIw II. Enclosure 108 – by the Plaintiffs against the 1st and 2nd Defendants [41] The Plaintiffs’ application pursuant to Order 14A ROC is for the determinations of five (5) questions of law altogether formulated by the Plaintiffs to be determined by this court. Out of the 5 questions (Q1 -5), Q1, Q2 and Q3 are considered together:- Q1. Whether the 1st Defendant’s determination, imposition and collection of the maintenance charges and contribution to the sinking fund during the Developer's Management Period from 19.1.2010 to 12.1.2015 (a month after 13.12.2014) on per square foot (PSF) basis is unlawful, null and void. Q2. Whether the imposition and collection of the maintenance charges by the 1st Defendant during the Developer's Management Period from 19.1.2010 to 12.1.2015 (a month after 13.12.2014) at different multiple PSF rates levied as follows is unlawful, null and void: i. Serviced Suites parcels at the rate of RM0.25 per square foot for maintenance charges + RM0.03 per square foot for contribution to the sinking fund; ii. ‘En Bloc’ Blocks F, G, H, car parks, retail complex parcels at Block J and K and Piazza F & B outlets belonging to the 1st Defendant and/or its related companies at the rate of RM0.05 per square foot for S/N 1byvA2m2mUOhrolSGujhIw maintenance charges + RM0.01 per square foot for contribution to the sinking fund; and iii. Other Commercial parcels at the rate of RM0.35 per square foot for maintenance charges + RM0.03 per square foot for contribution to the sinking fund. Q3. Whether the 1st Defendant is responsible for the determination, imposition and collection of a single rate of maintenance charges and contribution to the sinking fund and in proportion to the share units.

41.1 As stated in paragraph 40 hereinabove, the DMP in this development was from the period between 19.1.2010 to 12.1.2015 during which the BCPA was operational. The SMA came into force only on 1.6.2015. As established in the foregoing paragraphs, the BCPA and or the STA 1985 did not require the Developer i.e. the 1st Defendant in this case, to impose and collect maintenance charges and sinking fund in proportion to the allocated share units during the DMP (s.17(1) of BCPA).

41.2 As such, the 1st Defendant was not under any obligation to impose the maintenance charges and or the sinking fund according to share units.

41.3 As for the uniform rate, as established earlier, only through the Rajawali case (2019) that the Court of Appeal had S/N 1byvA2m2mUOhrolSGujhIw interpreted that “in proportion” in s.9(3) SMA means “single rate”. Prior to the Rajawali case, there was no requirement to such an imposition.

41.4 Be that as it may, since the 1st Defendant has an obligation to impose and collect the maintenance charges and sinking fund pursuant to the SPA, any breach of the same entitles the Plaintiffs to bring an action against the 1st Defendant. However, in this case the Plaintiffs are time-barred pursuant to s.6(1)(a) of the Limitation Act 1953 since more than 6 years have lapsed when this case was filed. [42] The other two (2) questions put forth by the Plaintiffs are involving the to the unsold units and the ‘En bloc’ Tower Blocks F, G, H etc pertaining to the maintenance charges and sinking fund on the same. Q4. Whether the 1st Defendant is responsible for collecting maintenance charges and contribution to the sinking fund at the same single rate and in proportion to the share units for the unsold parcels of the 1st Defendant as the Developer; and Q5. Whether the 1st Defendant is responsible for collecting maintenance charges and contribution to the sinking fund at the same single rate and in proportion to the share units in respect of its ‘En bloc’ Tower Blocks F, G, H, car parks, retail complex parcels at Block J and K and Piazza F & B outlets. S/N 1byvA2m2mUOhrolSGujhIw

42.1 At the risk of repeating, I adopt the reasoning given in the foregoing paragraphs related to the issue of imposition and collection of maintenance charges and sinking fund by the 1st Defendant.

42.2 Additionally, since the JMB can be sued and can sue pursuant to the BCPA and the SMA, as owners of the parcels, the Plaintiff could bring action against the JMB should there be any grievance related to the common propert. II. Enclosure 117 – by the Plaintiff against the 3rd Defendant [43] There are five (5) questions of law which have been formulated by the Plaintiffs to be considered by this court. I will consider Q1 to Q4 which relate to the imposition and collection of maintenance charges and sinking fund for the period between 13.12.2014 to 30.9.2020 by the 3rd Defendant being the JMB as follows: Q1. Whether the collection of maintenance charges and contribution to the sinking fund by the 3rd Defendant as the Joint Management Body on per square foot (“PSF”) basis during its management period from 13.12.2014 to 30.9.2020 is unlawful, null and void; Q2. Whether the 3rd Defendant’s imposition and collection of maintenance charges and contribution to the sinking fund at different multiple PSF rates between serviced suites parcels and commercial parcels and also at lower PSF rates for S/N 1byvA2m2mUOhrolSGujhIw parcels belonging to the companies related to the 1st and 2nd Defendants’ ‘En Bloc’ tower block parcels, retail complex, Piazza F&B outlets and car parks since its formation on 13.12.2014 to 30.9.2020 is unlawful, null and void; Q3. Whether the 3rd Defendant is responsible for the determination, imposition and collection during its management period from 13.12.2014 to 30.9.2020 of a single rate of maintenance charges and contribution to the sinking fund and in proportion to the share units; Q4. Whether the 3rd Defendant is responsible for collecting the maintenance charges and contribution to the sinking fund at the same single rate and in proportion to the share units during its management period from 13.12.2014 to 30.9.2020 in respect of the ‘En bloc’ Tower Blocks F, G, H parcels, car parks, retail complex parcels at Block J and K and Piazza F & B outlets;

43.1 Upon perusing through all the related documents, I am of the view that the 3rd Defendant has failed to comply with its statutory requirements pursuant to the then BCPA and the subsequent SMA and the Strata Titles Act to impose and collect maintenance charges and sinking fund based on share units since the 3rd Defendant’s establishment on 13.12.2014. As for the charges imposed and collected on a single rate, it is established through the Rajawali case that S/N 1byvA2m2mUOhrolSGujhIw the rates to be imposed should be a single rate and not a multiple rate as was done by the 3rd Defendant.

43.2 Due to the 3rd Defendant’s failure to comply with the legal requirements to impose and collect maintenance charges and sinking fund based on share units and on a single rate, the imposition and collection of the same is unlawful.

43.3 It is the Plaintiff’s argument that since the 3rd Defendant’s action was unlawful, the sums collected so far from the Plaintiffs since its conception on 13.12.2014 must be returned to the Plaintiffs.

43.4 However, the 3rd Defendant on the other hand, have highlighted to this court that by returning the sums collected would leave that period of time i.e. between 13.12.2014 to 30.9.2020 as the period where no payments made by the Plaintiffs as unit/parcel owners towards the maintenance of the common property. As Section 25 of the SMA is mandatory for the unit/parcel owners to pay maintenance charges and sinking fund, not paying the sums will cause the Plaintiffs to breach their statutory duty to do so.

43.5 Section 25 of the SMA is reproduced as follows: “ (1) Each purchaser shall pay the Charges, and contribution to the sinking fund, in respect of his parcel to the joint management body for the maintenance and management of the buildings or lands intended S/N 1byvA2m2mUOhrolSGujhIw for subdivision into parcels and the common property in a development area.

The developer shall pay the Charges, and contribution to the sinking fund, to the joint management body in respect of those parcels in the development area which have not been sold, being a sum equivalent to the Charges, and contribution to the sinking fund, payable by the purchasers to the joint management body had the parcels been sold.

The amount of the Charges to be paid under subsections (1) and

shall be determined by the joint management body from time to time in proportion to the allocated share units of each parcel.

The amount of contribution to the sinking fund to be paid under subsections (1) and (2) shall be a sum equivalent to ten per cent of the Charges unless otherwise determined by the joint management body from time to time at a general meeting which shall not be less than ten percent of the Charges.

A parcel owner shall, within fourteen days of receiving a notice from the joint management body, pay the Charges, and contribution to the sinking fund, to the joint management body.

If any sum remains unpaid by the parcel owner in respect of his parcel at the expiry of the period of fourteen days specified in subsection (5)-

the joint management body may recover the sum in the manner set out in section 34; and

the parcel owner shall pay interest at the rate to be determined by the joint management body under paragraph 19(1)(d) but such interest shall not exceed ten per cent per annum.” [44] Q5 of the Plaintiffs questions involves the period post 1.10.2020 pertaining to the legality of the imposition of maintenance charges and sinking fund. S/N 1byvA2m2mUOhrolSGujhIw Q5. Whether the 3rd Defendant’s post 01.10.2020 maintenance charges and contribution to the sinking fund based on share units on purchase prices are unlawful, null and void.

44.1 As for Q5, it is not disputed that the calculation adopted to ascertain the share units is based on the purchase price of the unit/parcel and not in accordance to the 1st Schedule of the SMA 2013 as it should be. Although the 3rd Defendant argues that the Director of Lands and Mines had approved the said calculation, that by itself does not make the calculation correct. In fact, by the very fact that the calculation was not based on the 1st Schedule of the SMA, the share units derived based on the purchase price is unlawful.

44.2 The Plaintiffs have also prayed for the 3rd Defendant to collect from the 1st and 2nd Defendants’ related parties’ parcel owners of Blocks F, G, H, car parks, retail complex and Piazza F & B outlets for the period between 13.12.2014 to 30.9.2020 the sum amounting to RM33,855,191.00 including interest at 10% per annum being the alleged shortfall in collection for maintenance charges and sinking fund. The fact that I have declared that collection of maintenance charges and sinking fund based on PSF and multiple rates by the JMB as unlawful, the same would apply to the collection made from the 1st and 2nd Defendant. As the saying goes, what is good for the goose is good for the gander! As such, S/N 1byvA2m2mUOhrolSGujhIw the Plaintiffs’ prayer against the 1st and 2nd Defendant is disallowed.

44.3 Hence, I am of the view that it is only proper that the maintenance charges and sinking fund be recalculated based on share units (determined in accordance to the 1st Schedule of the SMA 2013) and on a single rate for the period from 13.12.2014 till 30.9.2020 and from 1.10.2020 onwards till to date accordingly. F. CONCLUSION I. Enclosure 119 [45] Q1, Q2, Q3, Q5, Q6, Q7, Q8, Q9, Q11, Q12, Q13, Q14, Q15, Q16, Q17 and Q18 posed by the 1st and 2nd Defendants in this application are answered in the affirmative. [46] Q4 and Q10 posed by the 1st and 2nd Defendants are answered in the negative. [47] The Plaintiffs are to pay costs of RM5,000.00 to the 1st and 2nd Defendants subject to allocatur. II. Enclosure 108 [48] Q1, Q2, Q3, Q4 and Q5 posed by the Plaintiffs in this application are answered in the negative. As such, this application is dismissed with S/N 1byvA2m2mUOhrolSGujhIw costs of RM5,000.00 to be paid by the Plaintiff to the 1st and 2nd Defendants subject to allocatur fee. III. Enclosure 117 [49] Q1, Q2, Q3, Q4 and Q5 posed in this application by the Plaintiffs are answered in the affirmative, however, the Plaintiffs’ claim for a refund through this application is disallowed. [50] The Plaintiffs and the 3rd Defendant are to recalculate the maintenance charges and sinking fund based on share units and a single rate for the between 13.12.2014 to 30.9.2020 and from 1.10.2020 onwards. Upon recalculation, the difference in amount if in excess to be refunded by the 3rd Defendant to the Plaintiffs and to the 1st and 2nd Defendant accordingly. [51] The 3rd Defendant is ordered to pay costs of RM5,000.00 to the Plaintiff subject to allocatur fee. SUMATHI A/P MURUGIAH Judicial Commissioner High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 2nd MAY 2025 S/N 1byvA2m2mUOhrolSGujhIw Counsel for Plaintiffs : Ms. Viola Lettice Decruz & Ms. Claudia Lynette Silva (Messrs VL Decruz & Co) Counsel for 1st & 2nd Mr. Aqil Nasharuddin Defendants : (Messrs MahWengKwai & Associates) Counsel for 3rd Defendant : Mr. Lee Guo Wen (Messrs Gan, Ho & Razlan Hadri) S/N 1byvA2m2mUOhrolSGujhIw