1. ) Equitable Management Consultants Sdn Bhd v 1. ) PERBADANAN PENGURUSAN PUSAT PERDAGANGAN AMCORP (BA-22NCvC-428-10/2024)

BETWEEN EQUITABLE MANAGEMENT CONSULTANTS SDN BHD (NO SYARIKAT : 198301010991 [106309-K])

A-ONE MARKETING SDN BHD (NO SYARIKAT : 199301020365 [2755103-U]) … PLAINTIFFS

PERBADANAN PENGURUSAN PUSAT PERDAGANGAN AMCORP

PENGARAH TANAH DAN GALIAN NEGERI SELANGOR … DEFENDANTS GROUNDS OF JUDGMENT

This is the Court’s decision on the First Defendant’s Notice of Application (Encl.11) brought pursuant to Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012. The Defendant seeks to strike out the Plaintiffs’ Writ and Statement of Claim 17/11/2025 15:18:13 BA-22NCvC-428-10/2024 Kand. 29 dated 23 October 2024 on the grounds that the action is frivolous, vexatious, time-barred, and an abuse of the process of the court.

The Plaintiffs challenge paragraph (f) of a Consent Order dated 2 May 2024 made in Originating Summons No. BA- 24NCvC-262-02/2024, which declared that all previous maintenance and sinking fund charges imposed by the Management Corporation of Amcorp Trade Centre (“ATC”) are “valid and binding upon all parcel owners.”

The Plaintiffs allege that the Consent Order was obtained fraudulently and without service, and therefore void ab initio. The First Defendant contends the order was properly obtained with the consent of the parcel owners, duly served, and that this suit constitutes a collateral attack on a valid court order.

The First Defendant is the Management Corporation (MC) of Amcorp Trade Centre, a strata-titled development consisting of approximately 956 parcels. The Plaintiffs own four of these parcels.

During the 10th Annual General Meeting (AGM) held on 26 February 2023, the parcel owners resolved the following: i) Special Resolution No. 1: approving recalculation of share units for all parcel; ii) Ordinary Resolution No. 2: agreeing that the current maintenance and sinking fund rates would remain until recalculation was finalised and validated by the court.

6.

The relevant portion, paragraph (f), states: “All maintenance and sinking fund charges imposed by the Applicant prior to the orders in paragraphs (a) to (e) herein are valid and binding upon all parcel owners at ATC, their personal representatives, purchasers, heirs and permitted assigns.”

Following the order, copies were delivered to each parcel owner’s letterbox and displayed on the notice board of ATC on 27 May 2024.

The Plaintiffs subsequently filed the present action on 23 October 2024, almost five months after the date of service. They seek a declaration that paragraph (f) is unlawful, null, and void.

The Plaintiffs advance four principal arguments:

The Consent Order was never served on them in accordance with Order 62 rule 6(1) of the ROC 2012. No affidavit of service was filed; hence, the 30-day limitation under Order 42 rule 13 did not commence.

The inclusion of paragraph (f) was fraudulent and not authorised by the parcel owners. They claim it was inserted unilaterally by the MC’s solicitors and therefore obtained by misrepresentation.

The relief sought is equitable, and the Court should not strike out a claim that raises serious allegations of fraud without hearing evidence.

This suit is distinct from BA-22NCvC-207-05/2024 (“Suit 207”) because it challenges the validity of a court order, not the quantum of charges. Therefore, it is not an abuse of process. IV. DEFENDANTS’ ARGUMENTS

The First Defendant, supported by the Second Defendant, raises the following contentions:

Time-Bar: The Plaintiffs are barred by Order 42 rule 13 since they received (or were deemed to have received) the Consent Order on 27.5.2024 but filed this suit only on 23.10.2024 which was 4 months and 26 days late and without seeking an extension of time.

Service Validity: The Consent Order was served via notice board and letterbox delivery, both accepted modes of communication under strata management law.

Constructive Notice: Even if personal service is disputed, the Plaintiffs had constructive notice through their solicitors in Suit 207 as early as 19 July 2024.

Delay and Equity: Declaratory relief is equitable. The Plaintiffs delayed unreasonably; hence, equity should not assist them.

Approbation and Reprobation: Plaintiffs consented to maintaining old rates through Ordinary Resolution No.2, but now challenge its effect. They cannot “blow hot and cold.”

Abuse of Process: Plaintiffs are already pursuing Suit 207 seeking refund of the same charges; this action is a collateral attack designed to circumvent the Consent Order. V. ISSUES

The Court identifies the following five issues for determination:

Whether service of the Consent Order was valid, or whether the Plaintiffs had constructive notice of it;

(ii) Whether the action is time-barred under Order 42 Rule 13;

(iii) Whether the Plaintiffs are entitled to equitable relief despite delay;

(iv) Whether the Plaintiffs are estopped under the doctrine of approbation and reprobation; and

Whether this suit constitutes an abuse of process or is tainted by mala fide intent. VI. COURT’S ANALYSIS AND FINDINGS

The Plaintiffs rely on Order 62 rule 6(1) to argue that personal service was mandatory. However, this Court accepts the Defendant’s evidence that the Consent Order was circulated through letterboxes and notice board posting on 27.5.2024, a practice widely used and recognised in strata management environments.

The Court further takes judicial notice under section 57 of the Evidence Act 1957, consistent with Lee Weng Sang v PP [1978] 1 MLJ 168 and Johnson Tan Heng Seng v PP [1977] 2 MLJ 66. Strata corporations customarily communicate via notice boards. It would be unrealistic to expect individual personal service on hundreds of parcel owners in a high-rise development.

Even if the Plaintiffs deny actual knowledge, constructive knowledge is clearly established. In Plastech Industrial Systems Sdn Bhd v N&C Resources Sdn Bhd [2013] 10 MLJ 837, the Court of Appeal held that knowledge of a party’s solicitor is imputed to the client. The same principle was reiterated in Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [2013] MLJU 905, emphasising that a litigant cannot feign ignorance when his counsel is aware of a matter.

In State Tailor Sdn Bhd v Nallapan (2005) 2 MLJ 589, the Court held inter alia as follows: "of course she could argue that she left the matter with her lawyer to deal. But her lawyer was her agent. And the general rule is that the knowledge of a solicitor is the knowledge of his client thereby depriving a client of the plea of lack or absence of knowledge due to the failure of his solicitor to disclose the true facts to him. (See Doshi v Yeoh Tiong Lay [1975] 1 MLJ 85). Thus, we do not think such argument is of any help to the appellant." [Emphasis is mine]

In Doshi v Yech Tiong Lay (1975) 1 MLJ 85, the Court held as follows: "Now the general rule is that the knowledge of a solicitor is the knowledge of the client, so that it is not open to the client to say that the solicitor did not disclose the true facts to him. Thus in Rolland v Hart (1870) Ch App 678 681, which was followed by the High Court of Australia in Stuart v Kingston (1923) 32 CLR 309, Lord Hatherley U.C. said: "Then the only question is, what is actual notice? It has been held over and over again that notice to a solicitor of a transaction, and about a matter as to which it is part of his duty to inform himself, is actual notice to the client. Mankind would not be safe if it were held that, under such circumstances, a man has not notice of that which his agent has actual notice of. The purchaser of an estate has in ordinary cases, no personal knowledge of the title, but employs a solicitor, and can never be allowed to say that he knew nothing of some prior incumbrance because he was not told of it by his solicitor." [Emphasis is mine]

It is undisputed that the Plaintiffs’ counsel in Suit 207 referenced the Consent Order in pleadings as early as 19 July 2024. Thus, at the very least, they had constructive notice from that date onwards.

Order 42 rule 13(1) provides that any application to set aside a judgment or order must be filed within 30 days from the date the order is served.

The Federal Court in Hong Kwi Seong v Ganad Media Sdn Bhd & Anor Appeal [2013] 6 MLJ 765 at [12]–[14] held that an application to set aside made outside the 30-day period under O 42 r 13, without any enlargement of time, must fail, and that the time requirement must be applied strictly to preserve finality.

The Plaintiffs filed this action on 23 October 2024, far exceeding the statutory limit. They offered no application for extension of time. Their argument that time never ran due to lack of service fails because constructive notice was proven as of 19 July 2024.

The Court reiterates the principle in Hong Kwi Seong, that rules of procedure are not mere technicalities but essential to justice. Allowing litigants to ignore statutory timelines would defeat the public interest in final.

The Plaintiffs seek declaratory relief-an equitable remedy. It is well established that equity aids the vigilant, not the indolent (vigilantibus non dormientibus aequitas subvenit).

In Kwee Chee Sun v Best Tile Marking Sdn Bhd [2024] 8 MLJ 620, the Court of Appeal refused declaratory relief due to delay, affirming that equitable remedies are discretionary and subject to laches. Similarly, Mohamad Yusalfaisal v Mat Zin [2020] MLJU 2547 held that a claimant’s unexplained delay bars equitable relief.

I believe that this legal position can be seen in the judgment of the Supreme Court in Faber Merlin (M) Sdn Bhd & Ors v Lye Thai Sang & Anor and Tan Kim Chua Realty (M) Sdn Bhd v Lye Thai Sang & Anor [1985] 2 MLJ 380 (SC). It was decided in that case that laches, acquiescence and delay will not assist an applicant in obtaining equitable relief.

In delivering the judgment of the Supreme Court, Wan Suleiman HP made the following observation: “In any case, even if the answer to these latter two issues had been otherwise, there is evidence of laches, acquiescence and delay on the part of the respondents, such that the discretion of the court should not be exercised in their favour.

Here, the Plaintiffs waited over three months after gaining constructive knowledge before filing. They neither provided explanation nor demonstrated prejudice suffered due to the Consent Order. Their delay suggests a tactical motive rather than genuine grievance.

The Court is mindful that allegations of fraud are serious. However, as observed in Bato Bagi v Kerajaan Negeri Sarawak [2011] 8 CLJ 766, mere invocation of “fraud” cannot override procedural discipline; there must be cogent evidence and prompt action.

The Plaintiffs participated in and voted for Ordinary Resolution No. 2 at the 10th AGM, which authorised the MC to maintain existing rates until court confirmation. Paragraph (f) of the Consent Order merely gives legal recognition to that decision.

The Federal Court in Cheah Theam Kheng v City Centre Sdn Bhd [2012] 1 MLJ 761 affirmed that a litigant cannot approbate and reprobate; once a party benefits from a transaction, he cannot later challenge its validity. The Court of Appeal in Fawziah Holdings Sdn Bhd v Metramac Corp Sdn Bhd [2006] 1 MLJ 505 applied the same doctrine to prevent inconsistent conduct.

The Plaintiffs paid charges under the old rate for years, accepted the services provided, and only after an unfavourable court ruling in Suit 207 did they reverse their stance. Such inconsistency undermines the integrity of judicial process.

This Court applies the reasoning of Cheah Theam Kheng directly: one cannot “blow hot and cold” in the same breath. The Plaintiffs’ present claim seeks to deny what they earlier accepted and approved.

In Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [1999] 4 MLJ 637, the High Court explained that abuse of process occurs when the court’s procedures are used for an improper purpose or where multiple proceedings are brought to harass or vex the opponent.

The Singapore High Court in Chee Siok Chin v Minister for Home Affairs [2005] SGHC 216 classified abuse into four categories, including (a) deceptive or sham proceedings, and

collateral attacks on existing judgments.

The Plaintiffs’ parallel suit, Suit 207, seeks refund of maintenance charges. This action seeks to invalidate paragraph

of the Consent Order that precludes those refunds. The two suits are inextricably linked; this one exists only to dismantle the obstacle in Suit 207. That is a classic collateral attack, condemned as abuse in Jasa Keramat and Chee Siok Chin.

On the allegation of fraud, the Plaintiffs tendered no documentary evidence, witness statement, or AGM minutes to substantiate the claim. The Consent Order emanated from resolutions passed by the majority of owners and approved by the relevant Land Office.

The principle that fraud must be specifically pleaded and accompanied by full particulars has been firmly affirmed by the Court of Appeal in Wong Yew Kwan v Wong Yu Ke & Anor [2009] 2 MLJ 672; [2010] 2 CLJ 703; [2008] 3 MLRA 496, and reinforced in CIMB Bank Bhd v Veeran Ayasamy [2015] 7 CLJ 289; [2015] 5 MLRA 602. A general allegation of fraud, however strongly worded, is insufficient and does not amount to a proper averment of fraud in the absence of the requisite particulars.

After evaluating all pleadings, affidavits and authorities, the Court finds as follows:

The Consent Order was validly served, and Plaintiffs had constructive notice.

(ii) The action is time-barred under Order 42 Rule 13 and procedurally defective.

(iii) Plaintiffs’ delay defeats equity; they are not entitled to declaratory relief.

(iv) Plaintiffs’ inconsistent conduct violates the doctrine of approbation and reprobation.

The filing of this suit, in the context of Suit 207, amounts to abuse of process.

(vi) Allegations of fraud are unsupported by evidence.

The cumulative effect of these findings is that the Plaintiffs’ action is frivolous, vexatious and unsustainable. The Court’s resources must not be expended on claims that are procedurally barred and legally untenable.

Judicial consistency and finality of judgments must be preserved. The Plaintiffs, having had constructive notice and chosen inaction, cannot now seek to reopen settled matters through collateral litigation.

Accordingly, the First Defendant’s application (Encl.11) is allowed. The Plaintiffs’ Writ and Statement of Claim dated 23 October 2024 are struck out under Order 18 rule 19(1)(b) and

of the Rules of Court 2012.

Costs: The Plaintiffs shall pay costs of RM2,000 to the First Defendant. Dated this 05 November 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Mr. Ravinder Singh Sodhi a/l Manmohan Singh Sodhi (Tetuan Gurmit Sodhi Chambers) Counsel for First Defendant : Ms. Malar a/p Loganathan (Tetuan Hashim Raj & Lim) Counsel for 2nd Defendant : Ms. Nur Syafiqah binti Mohamed Yusoff (Penasihat Undang-Undang Negeri Selangor)