Ong Phaik Kooi v Tribunal Perumahan dan Pengurusan Strata (WA-25-218-08/2023)

ONG PHAIK KOOI

LAW WEY ANN (NO. K/P: 940621-10-5914) … PEMOHON-PEMOHON

1.

AMBER COURT MANAGEMENT CORPORATION (BUKU DAFTAR STRATA: P.T.BTG.15/B/13) ... RESPONDEN-RESPONDEN (Dengar bersama) DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-219-08/2023 Dalam Perkara Keputusan Di Tribunal Pengurusan Strata Dalam Kes No. TPS/C- 4405-10/2022 melalui Awad bertarikh 3.5.2023; Dan Dalam Perkara Keputusan Di Tribunal Pengurusan Strata Dalam Kes No. TPS/C- 4407-10/2022 melalui Awad bertarikh 3.5.2023; Dan Dalam Perkara Keputusan Di Tribunal Pengurusan Strata Dalam Kes No. TPS/C- 4409-10/2022 melalui Awad bertarikh 3.5.2023; Dan Dalam Perkara Keputusan Di Tribunal Pengurusan Strata Dalam Kes No. TPS/C- 4414-10/2022 melalui Awad bertarikh 3.5.2023; Dan Dalam Perkara Permohonan Ong Phaik Kooi dan Joann Wen Law untuk Mendapatkan Kebenaran untuk Perintah Certiorari; Dan Dalam Perkara Seksyen 41 Akta Relif Spesifik 1950; Dan Dalam Perkara Fasal-fasal 5 Dan 8 Perlembagaan Persekutuan; Dan Dalam Perkara Aturan 53 Kaedah-kaedah Mahkamah 2023; Dan Dalam Perkara Seksyen 121 Akta Pengurusan Strata 2013. Dan Dalam Perkara Bidangkuasa Sedia Ada Mahkamah.

ONG PHAIK KOOI

JOANN WEN LAW (NO. K/P: 860310-91-5020) … PEMOHON-PEMOHON

1.

AMBER COURT MANAGEMENT CORPORATION (NO. PENDAFTARAN: P.T.BTG.15/8/1) ... RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT Introduction [1] The proceedings before me are in respect of 2 Judicial Review applications, namely WA-25-218-08/2023 and WA-25-219- 08/2023, both of which are heard together. [2] They arise from a challenge to the 6 awards made by the Strata Management Tribunal (“Tribunal”) on 3.5.2023. Salient facts [3] The claims before the Tribunal were made by the Amber Court Management Corporation (“MC”), the 2nd Respondent in these proceedings. The MC’s claim before the Tribunal was filed on 17.10.2022 against the Applicants who are the unit owners of a development known as Amber Court Resort Apartments (“Amber Court”) in Genting Highlands. [4] The MC claimed the following items:

Unpaid maintenance charges;

(ii) Unpaid contribution to the sinking fund;

(iii) Miscellaneous charges including quit rent, insurance premium, sanitary charges and late payment charges; and

(iv) Costs of RM 500 for filing and transport charges. [5] The Tribunal allowed the claims of the MC. The amounts claimed differ for each of the 6 cases. However, the Applicants here are not taking issue with the amounts. Rather, the dispute is with regard to the Tribunal allowing the various heads of claim made by the MC. Grounds of challenge [6] The Applicants are aggrieved by the decision of the Tribunal and claim that it is tainted with irrationality, illegality and proportionality. The principal grounds canvassed and relied on in the proceedings before me are summarized as follows:

The MC is not entitled to claim for expenses such as insurance premium, internal sanitary and quit rent itemized under miscellaneous charges. The Strata Management Act 2013 only allows the MC to impose maintenance charges and sinking fund only. These charges have not been approved at the General Meeting. In addition, prior to the proceedings before the Tribunal, the MC had filed similar claims in the Raub Sessions Court, which were dismissed;

(ii) The MC cannot impose maintenance charges and contribution to the sinking fund on a square foot basis; it must be based on per share unit. The charges claimed by the MC before the Tribunal were imposed on a square foot basis; and

(iii) In 2019, the Applicants filed a civil suit in the Kuala Lumpur High Court vide Civil Suit No:. WA-22NCVC-209-04/2018 (“Suit 209”) for inter alia a declaration that they were not indebted to the MC in respect of water charges and seeking to off-set these charges against the maintenance charges owing by them. The Applicants contend that the claim before the Tribunal was already the subject matter of proceedings in Suit 209. Analysis and findings of this court [7] The grounds upon which the decision of a tribunal can be challenged in judicial review proceedings are trite. Suffice to refer to the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, a case regarded as the locus classicus on grounds for judicial review. The Federal Court held, In this context, it is useful to note how Lord Diplock (at pp 410–411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By ‘illegality’ as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts’ exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Statutory obligation of the parties [8] At the outset, some key principles in relation to the obligations of the parties as provided for in the Strata Management Act 2013 (“SMA”) needs to be stated. [9] Firstly, the MC is to operate a maintenance account and a sinking fund account in its name. (s. 50). The moneys in this account is to be utilised towards meeting various actual and expected expenditure including insurance premium, rent and rates. (s.

(3)). [10] Secondly, the SMA imposes a duty on parcel owners to pay maintenance charges and contribution to the sinking fund. (s. 52). The rates upon which the maintenance charges are based are determined at the general meeting of the management corporation. (s.58). The corollary to that is the management corporation is empowered to collect the charges (s.59 (2)(a) and (b)). [11] Thirdly, the charges are determined and collected based on the share units of the parcel owners. (s. 59). The statutory position has also now been settled and affirmed by several decided cases. (See: Ekuiti Setegap Sdn Bhd v Plaza 393 Management Corp [2018] 4 MLJ 284, Perbadanan Pengurusan Endah Parade v Magnificent Diagraph [2013] 6 MLJ 343, Target Term Sdn Bhd v Waldorf and Windsor Management Corporation and anor appeal [2024] 6 MLJ 598). [12] I shall now deal with the issues in contention. Whether the award for miscellaneous charges is contrary to the Strata Management Act 2013 [13] The MC through the Affidavits filed in these proceedings led evidence as follows. Amber Court, owned by the Applicants, is a development that was completed and vacant possession was handed over to the purchasers sometime around 1996. The management of the development was then subject to the Strata Title Act 1985 and the Buildings and Common Property (Maintenance and Management) Act 2007 [Act 663]. [14] The Tribunal held that payment of quit rent is a statutory obligation of owners. They are obliged to pay for it. As for insurance premium and sanitary charges, the Tribunal found on the evidence before it, that the Applicants had been previously paying without any protest. This is a finding which the Tribunal which the Tribunal is entitled to make on the evidence before it. The court, in exercising its powers of review ought to be circumspect in descending into the merits of the claim. [15] I have also considered the affidavit filed on behalf of the MC which states that from the commencement of their ownership, the Applicants had been invoiced for charges such as fire insurance premium, quit rent, internal sanitary charges, and late payment interests. Hence, they were notified of the MC’s claim before it was filed in the Tribunal. These charges were therefore not imposed without any prior notice. The Applicants are only raising their objections now after the MC filed its claim in the Tribunal. [16] My attention was also drawn to Clauses 16 and 17 of the Sale and Purchase Agreement between Villa Genting Development Sdn. Bhd. the developer of Amber Court, and the Applicants which provide for the right of the MC to collect premium fire insurance from the purchasers. [17] In addition, Section 59 of the SMA which came into force on 1.6.2015 imposes an obligation on the MC to insure the property it manages. The relevant provision reads, Duties and powers of management corporation

(1) The duties of a management corporation shall be as follows;

(a)….. ….

to effect insurance according to this Act or to insure against such other risks as the proprietors may by special resolution direct; [18] Under the SMA, the maintenance account managed by the MC is to be utilized inter alia for payment of insurance premium. The relevant provision reads, Developer to establish maintenance account in the name of management corporation

(1)… …

The maintenance account shall be used solely for the purpose of meeting the actual or expected general or regular expenditure necessary in respect of the following matters:

… …

paying any premiums for the insurance effected under this Act or any other insurance approved by a special resolution in a general meeting; [19] In my view, the miscellaneous charges for quit rent, sanitary charges and insurance premium were expenditure lawfully incurred by the MC. What is significant is that the Applicant did not dispute that the MC had paid for fire insurance premiums and quit rent on behalf of all parcel owners and that internal sanitary works were carried out for the benefit of the unit owners. [20] The amounts claimed were itemised in the Statements of Account produced before the Tribunal. The collection of such amounts is to be deposited into the maintenance account for the maintenance of the Amber Court development. The Tribunal had duly made this observation on the charges which were imposed, and found it to be in accordance to the provisions in the SMA. [21] In Perbadanan Pengurusan Endah Parade v Magnificient Diagraph Sdn Bhd [2013] 6 MLJ 343 a case decided under the Strata Titles Act 1985, the Court of Appeal held, Section 45(1) states very clearly that the management corporation ‘shall establish a management fund sufficient in the opinion of the management corporation to meet the administrative expenses as may be incurred for the purposes of controlling, managing and administering the common property, paying rent, rates and premiums of insurance and discharging any other obligation of the management corporation’. This is a very comprehensive provision. The expenses referred to includes the payment of ‘premiums of insurance’ and other payments connection with ‘discharging any other obligation of the management corporation’. [22] In the light of these provisions, the Applicants’ case that the SMA only allows for maintenance charges and contribution to the sinking fund to be charged to unit owners is wholly misconceived. [23] In the event there is a failure by the unit owners to pay, the SMA allows the MC to recover the insurance premium paid, evident by section 77 which entitles the MC to recover expenditure incurred in the course of performing its statutory duties relating to the management and maintenance of the common property. The relevant provision reads, Recovery of sum as a debt due to management corporation or subsidiary management corporation

(1) The payment of any amount lawfully incurred by the management corporation or the subsidiary management corporation in the course of the exercise of any of its powers or functions or carrying out of its duties or obligations shall by virtue of this section be guaranteed by the proprietors for the time being constituting the management corporation or the subsidiary management corporation.

(2)… [24] To conclude on the issue whether the miscellaneous charges were contrary to the SMA, I am of the view that the factual and legal position in relation to the miscellaneous charges support the decision of the Tribunal to allow these charges. I therefore do not find the decision of the Tribunal in this regard to be ultra vires the SMA. Whether the maintenance charges and contribution to the sinking fund were correctly imposed [25] The Applicants contend the Tribunal’s decision to allow these charges was illegal as they were imposed on a square foot basis and had not been approved at its annual general meeting (“AGM”). [26] The MC refuted the factual allegations of the Applicants by leading evidence to show that:

resolutions were passed at general meetings to fix the rates. After the 5th AGM held on 5 August 2018, all maintenance charges and sinking fund contributions were imposed based on share units;

(ii) the MC made consistent efforts to implement the rates based on share units; and

(iii) the MC presented comprehensive statements of account and the documentation pertaining to the AGM to support the same. [27] The Tribunal is best placed to decide on the facts based on the evidence presented before it. The Tribunal found the maintenance charges and contribution to the sinking fund to have been correctly imposed. In judicial review proceedings to challenge the decision of the Tribunal, there ought not to be any further dispute as to facts as the findings of fact would have been made by the Tribunal. [28] Before this court, I find the Applicants to have failed to substantiate their allegations that the maintenance charges imposed by the 2nd Respondent is based on square foot and not share unit. [29] Consequently, I do not find the Applicants to have advanced any compelling argument to impugn the decision of the Tribunal. Whether there is duplicity in the MC’s claim in view of Suit 209 [30] The Applicants’ case for review is also premised on the Tribunal’s failure to consider that the subject matter of the MC’s claims overlapped with Suit 209, which was filed earlier. [31] The Tribunal outrightly rejected the Applicants’ claim of duplicity. It held that Suit 209 was concerned with water charges which the Applicants sought to set off / contra against the outstanding maintenance charges owed to the MC. Hence, Suit 209 bore no relation and had nothing to do with the Applicants’ default in payment of statutory charges. The Tribunal expressly rejected the Applicants’ allegation of double claim. [32] Having examined the Statement of Claim of the Applicants in Suit 209, I find no reason to consider the decision of the Tribunal to be irrational. The ground of duplicity of claims is wholly without merit. More importantly, there is no provision in the SMA to allow unit owners to set off any amounts said to be owing by the MC against statutory payments they are obliged to make. Whether the Tribunal erred in allowing the late payment charges [33] In allowing the claim for late payment charges, the Tribunal had duly considered the provisions of s. 60(3)(c) which allows the MC to impose the interest to be imposed for late payment. The Tribunal took into consideration the documents in support of the rate to be imposed. Having done so, it was satisfied that the MC was entitled to collect the late payment charges. [34] Based on the reasoning of the Tribunal, I do not find its decision to be tainted with illegality nor irrationality. Conclusion [35] Premised on the foregoing reasons, the Applicants have failed to establish that the decision of the Tribunal of 3.5.2023 merits judicial review. In the result, both the Judicial Review applications are dismissed with costs of RM 5,000.00. Dated: 23rd February 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicants: En. Koh Kean Kang Tetuan WK Lim & Partners Counsel for Respondent: En. Bernard Liew Tetuan Kin Tong & Co.