Lee Wei Seong v Mdsa Ventures Sdn. Bhd. (MA-24NCvC-45-02/2026)

CHONG YU MUI (NO. K/P: 530416-04-5164) ... APPLICANTS

BADAN PENGURUSAN BERSAMA HATTEN @ MELAKA RAYA (NO. DAFTAR: MBMBCOB.600/425) ... RESPONDENTS GROUNDS OF JUDGMENT A. INTRODUCTION NOTE: Before the delivery of this decision, the Court was informed by the solicitors for the First Respondent, by letter dated 08.07.2026 (Enclosure 24), that the First Respondent, MDSA Ventures Sdn Bhd, has been wound up by an Order of the High Court of Malaya at Kuala Lumpur dated 18.06.2026 in Companies Winding Up No. WA-28NCC-341-04/2026, a copy of the draft sealed Order being exhibited to that letter. By reason of section 471(1) of the Companies Act 2016, once a winding up order has been made, no action or proceeding shall be proceeded with against the company except with the leave of the Court and subject to such terms as the Court may impose. No such leave has been obtained. This action accordingly cannot be proceeded with against the First Respondent, and the Court proceeds to decision as against the Second Respondent only. Nothing in these grounds is to be read as a determination binding upon the First Respondent or its liquidator. [1] The Applicants are the purchasers of a commercial retail unit in a stratified mixed development in Melaka. By this Originating Summons they ask the Court to declare that vacant possession of their unit was never effectively delivered to them under their sale and purchase agreement, that the developer's notice purporting to deliver vacant possession is invalid, and that their liability to pay maintenance charges to the joint management body of the development has not yet arisen. They further seek a mandatory order compelling the developer to bring the shopping mall in which the unit sits into full operation, to ensure that the lifts and escalators function and are certified, and to complete the unit with partition walls. [2] The First Respondent is sued as the developer counterparty under the sale and purchase agreement. The Second Respondent is the joint management body constituted under the Strata Management Act 2013 for the development. The relief sought touches the two Respondents differently. The declarations concerning vacant possession, and the mandatory order, are directed at the First Respondent as developer; the declaration concerning maintenance charges is directed at the Second Respondent as the body statutorily charged with their collection. [3] Behind the several prayers lies a single organising controversy. The Applicants' position is that possession delivered in form but not in substance is no delivery at all, and that until they are given a unit they can actually use, neither the developer's obligations nor their own liability for maintenance charges can be treated as discharged or accrued. The Respondents meet that position on distinct grounds. The First Respondent says that vacant possession was delivered, and in any event that the claim against it comes far too late. The Second Respondent says that the obligation to pay maintenance charges is a creature of statute that owes nothing to the state of the mall and cannot be suspended by a dispute with the developer. [4] The questions that fall for decision are therefore whether the claim against the First Respondent is barred by limitation; whether, on the material before the Court, effective vacant possession is shown not to have been delivered; whether the mandatory relief sought is available at all; and whether the Court can and should declare that the Applicants' liability to pay maintenance charges has not arisen. In consequence of the winding up of the First Respondent recorded in the Note above, only the last of these questions falls for adjudication; the first three, which concern the First Respondent alone, are considered at Sections A to C below for completeness only and without adjudication against it. I set out the material facts before turning to these questions. B. MATERIAL FACTS AND PROCEDURAL HISTORY [5] The subject matter is Unit No. F3-089, Imperio @ Hatten City, Melaka ("the Unit"), described in the First Schedule to the sale and purchase agreement as a commercial unit on Level 3 of an approximate area of 261.93 square feet. The development is a stratified development to which the Strata Management Act 2013 applies. [6] By a sale and purchase agreement dated 18.02.2013 ("the SPA", exhibit LWS-TAB A to the Afidavit Sokongan), the Unit was sold to the Applicants at a purchase price of RM514,299.55. On the face of the executed instrument the vendor-side parties are named as Fuyuu Capital Sdn Bhd as proprietor and Fuyuu Ventures Sdn Bhd as developer. The First Respondent, against whom the developer's obligations are asserted, is MDSA Ventures Sdn Bhd. I return to that discrepancy at the close of these grounds; it is sufficient at this stage to record that the First Respondent has answered the claim as the developer. [7] The vacant-possession regime of the SPA is pleaded to be contained in Clause 15.2. Under it, upon the issuance of the Certificate of Completion and Compliance ("the CCC") the developer serves written notice on the purchaser to take delivery, and upon the expiry of fourteen days from that notice the purchaser is deemed to have taken possession, whether or not actual possession is taken. The service-charge covenants (Clauses 7.2.1 and 7.2.6 and the related sub-clauses) fix the purchaser's liability for service charges as running from the date of delivery or deemed delivery of vacant possession. [8] By a letter dated 12.11.2018 on Fuyuu Ventures Sdn Bhd letterhead (exhibit LWS-TAB B), the developer purported to deliver vacant possession of the Unit. The letter stated that the CCC had been issued, enclosed a copy of it, invoked Clause 15.2, and stated that no inspection would be conducted. It is not in dispute that this letter was issued and that a copy of the CCC was enclosed with it. [9] The Applicants depose, in the Afidavit Sokongan affirmed on 03.02.2026 (Enclosure 2) and again in the Afidavit Balasan affirmed on 10.04.2026 (Enclosure 9), that the mall known as Imperio Mall has never opened to the public; that the lifts and escalators do not function; that the Unit has never been fitted with partition walls and remains empty open space; and that they have at no time been able to occupy the Unit, carry on business in it, let it, or otherwise beneficially enjoy it. They exhibit photographs said to have been taken at the development on 02.02.2026 (exhibit LWS-TAB C). Those matters are disputed by the Respondents, and the provenance of the photographs is expressly put in issue by the Second Respondent in the Afidavit Jawapan Responden Kedua affirmed on 26.03.2026 (Enclosure 7). [10] The Applicants further depose to a tenancy arrangement entered into at or about the time of the SPA, under which a rental return was to be paid over two years. Rental was received for approximately six months, totalling about RM18,000.00, before it ceased. The Applicants say those sums were in truth a price rebate rather than rent, the mall not being operational. The First Respondent, in its Afidavit Jawapan affirmed on 27.03.2026 (Enclosure 8), relies on the receipt of those sums, and on a scheme of arrangement sanctioned on 06.01.2021 in respect of MDSA Ventures Sdn Bhd, as indicative of possession and benefit. The scheme of arrangement is said to have been sanctioned under s. 366 of the Companies Act 2016, binding the developer and its scheme creditors including the Applicants, and to have compromised the developer's liabilities - including liquidated ascertained damages and guaranteed rental return claims - while leaving the affected proprietors at liberty to deal with, let or sell their parcels. The character of the RM18,000.00 is disputed. [11] The Second Respondent is the joint management body established under s.17(1) of the Strata Management Act 2013 for the development. On 09.09.2025 it filed a statement of claim in Form 1 (Borang 1) against both Applicants in the Strata Management Tribunal, being Claim No. TPSZS/M-1005 9/2025, for arrears of maintenance charges of RM5,205.21 in respect of the Unit (exhibit LWS-TAB D), supported by a statement of account dated 18.06.2025. That claim remains pending before the Tribunal. [12] The Originating Summons was filed on 11.02.2026. Case management before the Senior Assistant Registrar was fixed for 10.03.2026. The application is supported by the Afidavit Sokongan (Enclosure 2), answered by the Afidavit Jawapan Responden Kedua (Enclosure 7) and the First Respondent's Afidavit Jawapan (Enclosure 8), and replied to by the Afidavit Balasan (Enclosure 9). [13] For present purposes it is convenient to distinguish what is admitted from what is contested. It is not disputed that the SPA was executed on 18.02.2013; that the Applicants are the purchasers of the Unit; that the letter of 12.11.2018 was issued and enclosed a copy of the CCC; or that the Second Respondent's Tribunal claim is pending. What is disputed, and disputed squarely on the affidavits, is whether the mall has ever operated, whether the lifts and escalators function, whether the Unit is in a usable state, and the character of the RM18,000.00 received by the Applicants. C. ISSUES FOR DETERMINATION [14] The following issues arise:

whether the claim against the First Respondent is barred by limitation;

whether, on the material before the Court, effective vacant possession of the Unit is shown not to have been delivered, and, if not, whether the developer's default is a continuing one;

whether the mandatory relief sought against the First Respondent is available in law; and

whether the Court can and should declare that the Applicants' liability to pay maintenance charges to the Second Respondent has not yet arisen. [15] The first issue is a threshold one which, but for the statutory stay recorded in the Note above, would if answered against the Applicants have disposed of the claim against the First Respondent. It is convenient to take it first, and to examine the nature of the vacant-possession obligation in the course of doing so, because the Applicants' answer to limitation is that the breach they complain of is a continuing one. D. GOVERNING STATUTORY AND LEGAL FRAMEWORK [16] Two bodies of law govern. The first is the law of limitation. Section 6(1)(a) of the Limitation Act 1953 provides that an action founded on a contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. [17] The second is the statutory scheme for the management of stratified developments under the Strata Management Act 2013. Section 17(1) constitutes the joint management body. Section 21(1) charges that body with, among other duties, the proper maintenance and management of the common property and the determination and imposition of the charges to be paid into the maintenance account. Section 25(1) provides that each purchaser shall pay the charges, and the contribution to the sinking fund, in respect of his parcel to the joint management body for the maintenance and management of the development; and s. 25(2) requires the developer likewise to pay in respect of unsold parcels. The Act also establishes the Strata Management Tribunal, before which claims for the recovery of such charges may be brought. It is convenient to note, at this stage, one further feature of s. 17. The joint management body is established upon the convening of its first annual general meeting, which under s.17(1) is to be held within twelve months of the delivery of vacant possession of a parcel to a purchaser. The existence of the body is thus, by the design of the statute, consequent upon the delivery of vacant possession - a matter to which I return. [18] It is necessary to be clear at the outset about what does not govern. The Unit is a commercial parcel. The Housing Development (Control and Licensing) Act 1966, and the statutory forms of contract prescribed under it, are directed at housing accommodation and do not apply to a commercial unit of this kind. The consequence is that the delivery of vacant possession here is governed not by any statutory prescription but by the terms the parties themselves agreed in the SPA. That distinction bears directly on the authorities relied on by the Applicants, to which I come. E. ANALYSIS AND DETERMINATION

Whether the Claim Against the First Respondent Is Barred by Limitation [19] The developer's core obligation under the SPA was to deliver vacant possession of the Unit. The Applicants' complaint against the First Respondent that effective vacant possession was never delivered is, in substance, a complaint of breach of that obligation. Whatever the form of the declarations sought, the claim against the First Respondent is, in form and substance, an action founded on the contract, to which, had the action been capable of being proceeded with, s. 6(1)(a) of the Limitation Act 1953 would have applied. Consistently with the Note above, the analysis in this Section, and in Sections B and C, is undertaken for completeness only, and determines nothing against the First Respondent or its liquidator. [20] When does the cause of action accrue? The principle is long settled. In Nasri v Mesah [1971] 1 MLJ 32 (FC), the Federal Court held that a cause of action founded on a contract accrues on the date of its breach, and that the statute runs from the earliest time at which an action could be brought; the expressions "the right to sue accrues", "the cause of action accrues" and "the right of action accrues" all denote the same thing for the purpose of limitation. The same principle was stated in The Great Eastern Life Assurance Co Ltd v Indra Janardhana Menon [2006] 2 MLJ 209 (FC), where the Court confirmed that a cause of action founded on contract accrues on the date of its breach and time begins to run from that breach. And in Nadefinco Ltd v Kevin Corporation Sdn Bhd [1978] 2 MLJ 59 (FC), the Court held that once a complete cause of action has arisen, time begins to run, and subsequent circumstances which would, but for the prior default, have constituted a cause of action are disregarded; time runs from whichever qualifying event occurs first. [21] The meaning of a cause of action was put by the Supreme Court in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (SC) as a statement of facts alleging that a plaintiff's right, at law or by statute, has been adversely affected by the act of a defendant - a factual situation the existence of which entitles one person to obtain a remedy against another. On the Applicants' own case, that factual situation was complete no later than the delivery of vacant possession said to have been effected by the letter of 12.11.2018. If, as the Applicants contend, that delivery was ineffective, the developer would then have been in breach, and the Applicants could have sought the very declarations they now seek from that date. [22] Applying Clause 15.2 of the SPA, the notice of 12.11.2018, coupled with the issuance of the CCC, set running the fourteen day period at the expiry of which the Applicants were deemed to have taken possession. That deemed delivery took effect on or about 26.11.2018. Taking that date - the date most favourable to the Applicants, being later than the notice itself the six-year period under s. 6(1)(a) expired on or about 26.11.2024. The Originating Summons was filed on 11.02.2026, more than a year after the expiry of that period. Whether time is reckoned from the notice of 12.11.2018 or from the deemed delivery on or about 26.11.2018, the result is the same: on either reckoning the six-year period had expired before the Originating Summons was filed on 11.02.2026. [23] The Applicants' answer is that the breach is a continuing one: the Unit still cannot be used and the mall still does not operate, so that time does not run against them. That answer could not have been accepted. A continuing breach requires a continuing obligation. The obligation to deliver vacant possession is not of that character. It is an obligation to be performed once. If it was performed defectively in 2018, the breach was complete then; the Applicants' continuing inability to use the Unit is the continuing consequence of that breach, not a fresh breach arising from day to day. To treat the persistence of damage as a continuing breach would defeat the very principle in Nasri v Mesah and Nadefinco, that time runs from the earliest point at which the action could have been brought and that subsequent circumstances are disregarded once the cause of action is complete. [24] Nor does it assist the Applicants to characterise their claim as something other than a claim touching late delivery. In Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd [2024] MLJU 1902 (FC), the Federal Court held that the cause of action in a purchaser's claim arising from a sale and purchase agreement accrues from the earliest point in time at which the purchaser could commence the action, and that a claim brought more than six years after that point is time-barred. The Federal Court there explained that time begins to run at the earliest point at which the claimant could commence action, namely from the execution of the sale and purchase agreement or from any breach of its terms, drawing upon the settled statements in Credit Corporation (M) Bhd v Fong Tak Sin [1991] 2 CLJ 871 and Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 1 CLJ 207 that an action founded on contract must be brought within six years of accrual and that the rationale of limitation is that a right long unexercised should not be left in a state of uncertainty. Whether framed as a claim for a declaration of invalid delivery or otherwise, the cause of action here would have accrued when the developer's alleged breach was complete, and the action would have been out of time. The Applicants sought to distinguish Obata-Ambak on the footing that it concerned challenges to contractual clauses and claims for liquidated ascertained damages arising from completed contractual events, whereas their own complaint is of a continuing character. The distinction does not hold. It restates the continuing-breach argument which, for the reasons given at [23] above, could not have been accepted: the persistence of the Applicants' inability to use the Unit is the continuing consequence of a breach complete in 2018, not a fresh breach accruing from day to day, and it does not displace the principle in Obata-Ambak that time runs from the earliest point at which the action could have been commenced. [25] Once a defendant raises limitation, the burden lies on the party asserting the claim to show that it was brought within time. That was stated in Muhamad Solleh bin Saarani & Anor v Norruhadi bin Omar & Ors [2010] 9 MLJ 603 (HC), adopting Ong Ah Bee v Hii Chung Siong, Robin [1993] 1 CLJ 504. The Applicants sought to discharge that burden only through the continuing-breach argument, which for the reasons given could not have succeeded. No case for the postponement or extension of the limitation period under Part III of the Limitation Act 1953 - confined as it is to defined circumstances such as fraud, concealment, mistake or disability - is pleaded in the affidavits or arises on the facts. [26] It follows that the claim against the First Respondent, insofar as it seeks declarations that vacant possession was not effectively delivered and that the letter of 12.11.2018 is invalid, would have been barred by s. 6(1)(a) of the Limitation Act 1953. That conclusion would have sufficed to dispose of prayers (1) and (2) as against the First Respondent, had the action been capable of being proceeded with against it. I nevertheless address the substance of the vacant-possession question, both because the Applicants' answer to limitation depends upon it and because it was fully argued - again for completeness only, and without adjudication against the First Respondent.

Whether Effective Vacant Possession Is Shown Not to Have Been Delivered [27] The Applicants' proposition of law is that vacant possession is not the mere symbolic delivery of keys or issuance of a notice, but the giving of real and meaningful possession that enables the purchaser to use the property for the purpose for which it was bought. As a general statement that proposition is unobjectionable. The difficulty lies in its application to this SPA and on this record. [28] The Applicants rely on Remeggious Krishnan v SKS Southern Sdn Bhd [2023] 3 MLRA 386 (FC) and Thomas Iruthayam & Anor v LSSC Development Sdn Bhd [2005] 2 MLRH 93 (HC). Neither carries the weight placed upon it. In Remeggious Krishnan, the Federal Court was concerned with a residential parcel sold on the statutory form of contract prescribed under the Housing Development (Control and Licensing) Act 1966, the manner-of-delivery clause of which (cl 27) expressly required that water and electricity supply be ready for connection — which the Court, reading it with the definition clause, construed to mean that the electrical points were fully functional and supply available for tapping into the property. It was because the contract imposed that express condition that delivery without an electricity connection was held to be a breach of the delivery clause. Even then, the remedy was an award of compensatory damages for a delay of sixty-three days, the electricity having in fact been connected well within the overall time for delivery; the Court did not declare that vacant possession had never occurred at all. The Applicants, in their Further Reply Submissions, met that distinction by contending that Remeggious Krishnan should be read not as a decision confined to housing accommodation under the Housing Development (Control and Licensing) Act 1966, but as authority for the broader proposition that vacant possession requires a genuine and practical ability to occupy and use the parcel rather than a merely symbolic or paper delivery. At that level of generality the proposition is unexceptionable, and I have already accepted it; but it does not advance the Applicants' case. The reasoning in Remeggious Krishnan was tied to an express contractual condition the stipulation in cl 27(1)(c), read with cl 1(k), that the utilities be ready for connection and not to any free-standing rule that possession is ineffective wherever a purchaser cannot put the parcel to profitable commercial use. Absent an equivalent express condition in the commercial SPA now before the Court, that broader principle supplies nothing capable of displacing the deemed delivery under Clause 15.2; and, as already observed, even at its highest the decision yielded compensatory damages for delay, not a declaration that vacant possession never occurred. [29] Thomas Iruthayam was likewise a case of a house sold under an agreement whose delivery clause (cl 7.1) expressly conditioned vacant possession upon the connection of water and electricity and the delivery of a certificate of fitness for occupation. The High Court held that the deeming provision in the companion clause (cl 7.2) was rebuttable, and that, the utilities not having been connected and no certificate of fitness having been delivered, the deemed delivery was rebutted and the developer was in breach. That the deeming of vacant possession may be rebutted is a proposition I accept. But whether it is rebutted depends upon the conditions the particular contract attaches to delivery, and upon the facts. [30] Two features distinguish the present case. First, the SPA is a commercial contract outside the Housing Development (Control and Licensing) Act 1966, so the statutory conditions that decided Remeggious Krishnan and Thomas Iruthayam have no automatic application here. The Applicants must show that this SPA conditioned the delivery of vacant possession upon the matters they complain of the operation of the mall, the functioning of the lifts and escalators, the installation of partition walls. Clause 15.2, as pleaded, conditions deemed delivery upon the issuance of the CCC and the service of notice, and deems possession taken "whether or not actual possession is taken". The CCC was issued and enclosed with the letter of 12.11.2018. On the face of the contractual mechanism, deemed delivery would have occurred. The Court's task is to give effect to the plain meaning of the words the parties chose, and not to rewrite the bargain: as the Federal Court affirmed in CIMB Bank Berhad v Anthony Lawrence Bourke & Anor [2019] 2 CLJ 1, parties are bound by the terms of the contract they have entered into, and it is the Court's duty to give effect to the clear and plain meaning of the words used. Whether the state of the mall or the completeness of the Unit displaces that deemed delivery cannot be answered without identifying an express or necessarily implied contractual condition to that effect, which the record does not establish. The First Respondent's reliance on Everest Point Sdn Bhd & Anor v Lim Peck Sim & Ors [2017] 7 CLJ 401 (FC), where the Federal Court treated vacant possession as delivered upon notice of a unit certified fit for occupation and held that an earlier invalid notice did not undo a later valid delivery, is consistent with that view of the mechanism. It should be observed, however, that Everest Point turned on facts in which the unit had in truth been completed and certified safe and fit for occupation, the effective date of delivery being fixed at the point when the issuance of the certificate was notified to the purchasers; the case establishes when a valid delivery takes effect, not that the bare issuance of a notice suffices irrespective of the state of the premises. [31] That qualification is not academic, for this Court has recently had occasion to consider a materially identical vacant possession mechanism arising within the same Hatten City scheme. In Wong Sin Yin & Anor v MDSA Resources Sdn Bhd [2026] MLJU 1076 (HC), consolidated actions by purchasers of commercial units in a neighbouring development were tried on a like Clause 15 regime, under which the deeming of possession was expressed to operate only upon the issuance of a certificate of completion and compliance certifying that the unit had been duly constructed and completed in conformity with the approved plans and was safe and fit for occupation. The Court held that the clause is sequential: the certification is the anterior condition, and the mere existence of a notice, or of a Form F1 or partial certificate, does not by itself establish that the contractual precondition has been satisfied. On unrebutted evidence - an architect's report and direct testimony of missing party walls, absent flooring and units that could not be identified - the deeming was displaced and the developer, who had elected to call no evidence, was held not to have proved valid delivery. [32] I have considered whether Wong Sin Yin governs the present case. It does not, for two reasons. First, it was decided after a full trial at which the purchasers adduced positive documentary and oral evidence of the physical state of the premises, that evidence stood unrebutted, and the developer made a deliberate forensic election to call no witness. The present matter comes before the Court on an Originating Summons, on competing affidavits, in which the very facts said to displace the deeming - whether the mall has operated, whether the common facilities function, whether the Unit is in a deliverable state, and the character of the RM18,000.00 - are in genuine and substantial dispute and cannot be resolved in that summary manner. What was proved at trial in Wong Sin Yin is, on this record, merely asserted and contradicted. Secondly, limitation was not in issue in Wong Sin Yin; the purchasers there pursued liquidated ascertained damages within the contractual formula, upon claims that were within time, whereas the present Applicants seek, years out of time, a declaration that delivery never occurred at all. The neutral event of a court-sanctioned scheme of arrangement neither cures nor establishes a defect in delivery: it compromised the developer's monetary liabilities and regulated the proprietors' freedom to deal with their parcels, and is silent upon whether the contractual precondition to a valid notice was met. Wong Sin Yin therefore confirms that the deeming under Clause 15.2 may be displaced by proof; it does not assist Applicants who have neither proved the displacing facts on this record nor brought a claim that would have been within time. Secondly, and in any event, the matters on which the Applicants rely to displace the deemed delivery are the subject of a genuine and substantial dispute of fact. Whether the mall has operated, whether the lifts and escalators function, whether the Unit is in a deliverable state for a commercial retail lot (as distinct from a bare shell for the purchaser's own fitting-out), and the character of the RM18,000.00, are all contested on the affidavits, and the Second Respondent has put the provenance of the Applicants' photographs directly in issue. These are not matters that can be resolved on competing affidavits in the summary manner of an Originating Summons. Where the very facts on which a declaration depends are in genuine contest, the deeming of possession under Clause 15.2 could not have been treated as rebutted on a record of this kind. For the same reason, the reliance placed on the Applicants' acceptance of the notice without objection, and on their receipt of the rental returns, as amounting to a waiver of any right to challenge delivery, cannot be resolved on this record either: the significance of those matters turns on the disputed character of the sums received and on facts not amenable to summary determination. They neither conclusively establish nor conclusively negate effective delivery on affidavit evidence of this kind. [34] A further consideration reinforces the difficulty in the Applicants' position, though I do not rest the decision upon it. The Applicants have themselves joined the Second Respondent, the joint management body, as a party, and rely upon its existence. Yet a joint management body comes into being, under s.17 of the Strata Management Act 2013, only upon the convening of its first annual general meeting following the delivery of vacant possession to parcel purchasers. To invoke the existence of the body while denying that vacant possession was ever delivered is an uneasy posture. The Applicants answered this in their Further Reply Submissions, submitting that they named the Second Respondent only because it is presently asserting maintenance claims against them and because the relief they seek necessarily affects its asserted statutory rights, so that the joinder cannot amount to a legal admission that effective delivery occurred; and that, in any event, the statutory formation of a joint management body cannot retrospectively validate a delivery defective in substance. There is force in that answer. It is for that reason that I put the point no higher than as a consideration consistent with the conclusions already reached, and do not rest the decision upon it. [35] The invocation, in prayer (2), of non-compliance with the Strata Management Act 2013 adds nothing. The validity of the delivery of vacant possession is a question under the contract. The Act governs the management of the development after delivery; it does not condition the contractual validity of vacant possession. Insofar as prayer (2) rests on the Act, it would in any event have been misconceived. [36] For these reasons, even leaving limitation aside, the Applicants would not have established the foundation for prayers (1) and (2): the deemed delivery of vacant possession under Clause 15.2 is not displaced on the material before the Court, and the residential authorities on which the Applicants rely do not govern a commercial contract that attaches no such conditions to delivery.

The Mandatory Relief Sought Against the First Respondent [37] Prayer (4) seeks a mandatory order compelling the First Respondent to operate Imperio Mall fully and validly, to ensure that all lifts and escalators function and are certified, and to complete the Unit with partition walls. This relief would have failed independently of limitation. [38] A mandatory order must rest upon a corresponding legal obligation. The Applicants must therefore identify a term of the SPA that obliges the developer to conduct and maintain the mall as a going concern, and to keep its common facilities in operation, as a continuing duty owed to the Applicants as purchasers of a single unit. No such term is identified in the affidavits, and none is apparent. An obligation to complete and deliver a unit is one thing; an obligation to operate a shopping centre as a commercial enterprise is another, and is not to be spelt out of a contract of sale absent clear language. Beyond the absence of foundation, an order requiring the ongoing conduct of a commercial enterprise of this kind is one the Court would not ordinarily grant, for it would call for the continuous supervision of a business over an indefinite period. Prayer (4) could not have been granted.

The Liability to Pay Maintenance Charges to the Second Respondent [39] Prayer (3) seeks a declaration that the Applicants' liability to pay maintenance charges to the Second Respondent has not yet arisen. Its premise is that the charge liability is contingent upon the effective delivery of vacant possession, which the Applicants say never occurred. The prayer fails, for reasons that are independent of the contested facts about the mall. [40] The obligation to pay maintenance charges is imposed by statute. Section 25(1) of the Strata Management Act 2013 provides that each purchaser shall pay the charges, and the contribution to the sinking fund, in respect of his parcel to the joint management body. The obligation is owed to the joint management body for the maintenance of the common property of the whole development, and it does not depend upon the parcel owner's occupation or use of his parcel, or upon his beneficial enjoyment of it. That the obligation arises from statute, and not from the resolution fixing the rate, is established by authority. In Badan Pengurusan Bersama Gurney Paragon Residential v Hunza Properties (Gurney) Sdn Bhd & Ors [2026] MLJU 368 (CA), the Court of Appeal held that the duty to pay maintenance charges and sinking fund contributions arises from the statutory provisions, in particular s.16 of the Building and Common Property (Maintenance and Management) Act 2007 and s.25 of the Strata Management Act 2013, and that a parcel owner remains liable notwithstanding that he did not attend or vote at the meeting at which the rate was fixed, the liability falling alike on residential and commercial parcel owners. That the liability does not depend upon the use or occupation of the parcel is established by Festiva Mall Sdn Bhd v Badan Pengurusan Bersama Zetapark [2026] 3 CLJ 952 (HC), where the High Court held that s.25(1) makes payment mandatory regardless of whether the parcel is occupied or the common facilities used, and applies alike to commercial and residential parcels. [41] The point is placed beyond argument by a decision of the Court of Appeal directly concerned with commercial units that were neither occupied nor usable. In Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] 1 LNS 2559 (CA), the purchaser of 168 commercial units, having taken them on an "as is where is" basis and contracted to bear the maintenance charges and outgoings, resisted payment of substantial arrears on the ground that the complex was abandoned and dilapidated and that it had derived no benefit. The Court of Appeal held that the Strata Management Act 2013 does not exempt an owner from paying the charges because it did not occupy the units for whatever reason, or did not use the facilities provided, or was dissatisfied with the services rendered; the liability is expressly imposed by s.25 and the joint management body need not rely on the sale and purchase agreement to enforce it. That reasoning answers the Applicants' case at its root. The Applicants' complaint that the development never functioned commercially, and that it would be unjust to make them pay for facilities from which they derived no benefit, is in substance the argument the Court of Appeal rejected. In their Further Reply Submissions the Applicants sought to distinguish Paradise Boulevard on the grounds that the strata development there already existed and was operational, that the purchaser had acquired its units on an "as is where is" basis, and that the dispute arose within an already-functioning strata regime, whereas the present case is said to raise the prior threshold question whether effective vacant possession capable of triggering the statutory obligations ever crystallised. Those factual differences are real, but they do not touch the ratio of Paradise Boulevard, which is that the liability under s.25 is imposed by the statute upon a parcel owner as such and is not defeated by non-occupation, non-use, absence of benefit, or dissatisfaction with the development. The threshold question the Applicants pose is, as against the Second Respondent, a derivative one: it depends upon their challenge to the delivery of vacant possession against the developer, which cannot now be pursued in these proceedings by reason of the statutory stay recorded in the Note above; and, whatever the fate of that challenge, it cannot suspend a statutory debt owed to a body that was no party to the contract of sale. So understood, the matters the Applicants raise go to the facts of Paradise Boulevard and not to the principle for which it stands, and that principle governs the present case. To the extent that Festiva Mall might be said to have concerned a functioning strata scheme, Paradise Boulevard establishes the governing principle on facts of non-occupation and non-use, and Gurney Paragon confirms that the statutory obligation binds residential and commercial owners alike; that principle is not confined to developments that operate. The obligation is, moreover, contractual as well as statutory: Clause 2 of the SPA independently binds the Applicants to pay the maintenance charges, and on the plain-meaning principle affirmed in CIMB Bank Berhad v Anthony Lawrence Bourke the Court gives effect to that covenant as written. [42] The Applicants' true grievance is with the developer, not with the joint management body. But the Second Respondent is a stranger to the SPA. It did not sell the Unit, it did not give vacant possession, and it is not answerable for the state of the mall. The statutory charge owed to it cannot be withheld or suspended on account of a dispute between the purchaser and the developer. The charges fund the maintenance, insurance and security of the common property for the benefit of all parcel owners; to permit one owner to withhold them because of a complaint against the developer would be to visit that complaint upon the body of owners who have no part in it. The Applicants press the injustice of being made to pay for a development they cannot use. But the greater risk to the strata scheme, and the graver injustice, lies in the position they propose. If the statutory maintenance obligation could be withheld whenever a parcel owner has a contractual grievance against the developer, no joint management body could reliably insure the structure, secure the common property or maintain the fire-protection systems, and the funding mechanism on which every owner depends would be reduced to a conditional option. The Applicants' remedy, if any, lies against the developer; it does not lie in the withholding of a statutory debt owed to the body of owners. It may be added that the charge liability the Applicants seek to escape is, on their own case, parasitic upon their challenge to delivery against the developer; that challenge cannot be pursued in these proceedings by reason of the statutory stay recorded in the Note above, and, whatever its fate, the statutory liability stands independently in all events. [43] There is a further and more fundamental difficulty. The declaration sought would have the Court exempt the Applicants from a liability that the statute imposes. That is not within the Court's power. In Festiva Mall, the High Court, applying the Court of Appeal's decision in Perbadanan Pengurusan Solaris Dutamas v Suruhanjaya Tenaga Malaysia & Anor [2022] 6 CLJ 219 (CA), held that the statutory powers for the management of strata properties under the Strata Management Act 2013 cannot be expanded or varied otherwise than by amendment of the statute, and that there is no power in the Court to exempt a parcel owner from paying charges or to prohibit a joint management body from collecting what ss.21 and 25 empower it to collect. A declaration that the Applicants' liability has not arisen would be an order of precisely that prohibited kind. To grant it would be ultra vires the Act. [44] To this may be added a discretionary consideration. Declaratory relief is not granted as of right. The very liability which prayer (3) invites this Court to declare unaccrued is already the subject of the Second Respondent's pending claim in the Strata Management Tribunal (Claim No. TPSZS/M-1005-9/2025). That is the forum in which the recovery of these charges falls to be determined. A declaration by this Court on the same question would trespass upon the Tribunal's jurisdiction and would serve no useful purpose. In refusing prayer (3) I do not determine the Applicants' liability for the sum claimed, which is a matter for the Tribunal; I hold only that the declaration sought that the liability has not arisen - cannot be granted. F. CONCLUSION [45] Subject to the Note recorded at the outset of these grounds, the issues are answered as follows. Had the claim against the First Respondent been capable of being proceeded with, it would have been barred by limitation, and would in any event not have succeeded, the deemed delivery of vacant possession under Clause 15.2 not being displaced on this record and the facts said to displace it being in genuine dispute and unsuitable for resolution on an Originating Summons; the mandatory relief would likewise have been unavailable for want of any obligation to support it. Those conclusions are recorded for completeness only and determine nothing against the First Respondent or its liquidator. The declaration concerning maintenance charges cannot be made, the liability being statutory, not amenable to exemption by the Court, and in any event pending before the Tribunal. [46] It is unnecessary to decide the question, noted earlier, whether the First Respondent (MDSA Ventures Sdn Bhd) is the same entity as the developer named in the SPA (Fuyuu Ventures Sdn Bhd). The First Respondent having answered the claim as the developer, and no adjudication being made against it in view of the winding up, nothing turns on it, and I leave that question open. [47] As against the Second Respondent, the Originating Summons therefore fails. As against the First Respondent, the action cannot be proceeded with by reason of section 471(1) of the Companies Act 2016, no leave having been obtained, and no adjudication is made upon the prayers directed at it. G. ORDERS OF THE COURT [48] For the reasons set out above, I make the following orders:

the proceedings against the First Respondent are stayed by operation of section 471(1) of the Companies Act 2016, and no adjudication is made upon prayers (1), (2) and (4) of the Originating Summons, which are directed at the First Respondent, with liberty to apply in the event that leave under that section is obtained;

prayer (3) of the Originating Summons is refused, and the Originating Summons is dismissed as against the Second Respondent;

the Applicants shall pay costs to the Second Respondent in the sum of RM20,000.00; and

there shall be no order as to costs as between the Applicants and the First Respondent. (MELAKA) Lawyer For Applicant : Puan Nur Syifa' Illvera binti Kimal Tetuan C T Chew & Co. Peguambela dan Peguamcara No. 43-G, Jalan Ong Kim Wee, 75300 Melaka. Lawyer For Respondent : Encik Godfrey Thomas Fernandez Tetuan G.T. Fernandez & Co. No. 70B, Taman Sri Reko, 43000 Kajang, Selangor.