Schedule
Jadual Pertama (Perenggan 1) Akta Mahkamah Kehakiman 1964; Dan Dalam perkara menurut seksyen 59(1)(h)(i) & seksyen 59(2)(g)(j) Akta Pengurusan Strata 2013; 30/10/2024 09:31:03 Kand. 47 S/N K/DQwhlaR0y8ifE8bgXqRg Dan Dalam perkara menurut seksyen 70(2) Akta Pengurusan Strata 2013; Dan Dalam perkara menurut seksyen 121(1)(2)(3), Akta Pengurusan Strata 2013; Dan Dalam perkara Aturan 53 Kaedah 3, Kaedah-Kaedah Mahkamah 2012. ANTARA 1. PERBADANAN PENGURUSAN BERSAMA MAIN PLACE (No. Pendaftaran: 107/2019) 2. YAM HUANG MENG (NO. K/P: 681001-10-7325) 3. LIM CHIN HUAT (NO. K/P: 520920-10-5171) 4. LEE TONG LEONG (NO. K/P: 580821-08-5587) 5. NG KEONG WEE (NO. K/P: 850831-08-5019) …PEMOHON-PEMOHON S/N K/DQwhlaR0y8ifE8bgXqRg DAN 1. LOKE YEU LING (NO. K/P: 670506-08-5076) 2. CHONG SENG FOO (NO. K/P: 680827-08-5295) 3. LEE YEW GUAT (NO. K/P: 620815-07-5116) 4. KOW CHONG YEN @ KOH CHONG YEN (NO. K/P: 581205-01-5379) 5. TRIBUNAL PENGURUSAN STRATA …RESPONDEN-RESPONDEN JUDGMENT [1] This application for judicial review stems from the Award of the fifth respondent, the Strata Management Tribunal (“Tribunal”) dated 16.02.2023 (“Impugned Decision”) in respect of Claim No. TPS/B- 4317-10/2022 (“Claim No. 4317”). [2] Claim No. 4317 was filed by the first to fourth respondents against all the applicants. It consisted of four claims: (i) an order to nullify a resolution passed at the Second Annual General Meeting of the first applicant on 17 January 2022 S/N K/DQwhlaR0y8ifE8bgXqRg (“the AGM”) to the effect that “any parcel owner who initiates any litigation against ‘Perbadanan Pengurusan Main Place’ shall be fully responsible to pay and reimburse ‘Perbadanan Pengurusan Main Place’ the full legal fees, disbursement and all other related costs as billed by the counsel for the said litigation when parcel owner loses the suit” (“the Resolution”). The Resolution was proposed as ‘Agenda 5.0’ during the AGM (“First Claim”); (ii) an order to invalidate repayment or reimbursement of legal fees in the amount of RM12,200.00 charged into the monthly statement of the third and fourth claimants (the third and fourth respondents before this court) (“Second Claim”); and (iii) an order that parcel owner be entitled to receive notice of meeting, attend, vote and participate in the general meeting hold by the management corporation (“Third Claim”); and (iv) an amount of RM3,000.00 to be paid by the second, third, fourth and fifth respondents (the second to fifth applicants before this court) to every claimants (the first to fourth respondents before this court) as damages towards the fault (“Fourth Claim”). Reliefs Sought [3] The reliefs sought by the applicants as stated in the Order 53 Statement are succinctly reproduced as follow: S/N K/DQwhlaR0y8ifE8bgXqRg (i) that an order of certiorari be granted for the Impugned Decision to be removed to this court and be quashed; (ii) a declaration that: (a) the Tribunal is wrong in law in delivering the Impugned Decision; (b) the order for costs of RM500.00 to each and every first to fourth respondents is irrational; (c) the Tribunal failed to take into account that the Resolution passed during the AGM is valid and the first applicant has the mandate to charge legal fees on parcel owner who initiated legal action against the first applicant and lost in the suit. Factual Background [4] The facts of this application for judicial review are garnered from documents filed by parties. [5] The first applicant is the management corporation of one mixed development area known as Main Place, located in Subang Jaya (“the Management Corporation”). Main Place is made up of 1121 units of service apartments identified as Main Place Residence, and 140 units of office and retail outlets commonly known as Main Place Mall. S/N K/DQwhlaR0y8ifE8bgXqRg [6] The first to fourth respondents are among the parcel owners of Main Place Residence. [7] The development of Main Place was once abandoned in year 1999. It was revived by one Sumbangan Lagenda Sdn Bhd (“SLSB”) in year 2011. [8] The second to fifth applicants were the member of the management committee for the Management Corporation. They had held the post of Chairman, Secretary and Treasurer for a different period of time. [9] The first to fourth respondents are parcel owners who are dissatisfied with the manner in which the maintenance charges being collected and utilised by the Management Corporation. One of the main contentions between the aggrieved parcel owners and the Management Corporation revolve around the expenditure of the Management Corporation in renting common area located in the 8th floor of the Main Place development area. The common area consists of facilities for the use of residents of Main Place Residence. It is a parcel owned by SLSB, and is being rented to the Management Corporation at an agreed rate. [10] This led to the filing of numerous suits by the second respondent against the Management Corporation and/or SLSB, and/or the Joint Management Body. The applicants too averred that there were numerous other claims and/or small claims which the applicants averred to be frivolous, vexatious and an abuse of proses of the court or tribunal, filed by the parcel owners. S/N K/DQwhlaR0y8ifE8bgXqRg [11] As a result, the Management Corporation had to fork out monies from the maintenance fund to defend itself from the suits. In order to resolve this issue, the Resolution was proposed and passed during the AGM, to the effect that legal fee and all other related costs incurred by the Management Corporation to defend itself from suit brought by a particular parcel owner will be reimbursed by such parcel owner in event the said parcel owner loses the said suit. [12] This formed the basis of the First Claim by the first to fourth respondents in Claim No. 4317. [13] Following the passing of the Resolution, legal fees incurred by the Management Corporation in appointing counsel to defend itself, in the amount of RM12,200.00, were charged to the account of the third and fourth respondents. This formed the basis of the Second Claim in Claim No. 4137 before the Tribunal. Grounds for this application [14] The grounds upon which the applicants sought to challenge the Impugned Decision are as follow: “as against s. 121(3)(b) of the Strata Management Act 2013 (“the SMA 2013”) (i) that the learned President had erred in law and fact in failing to consider that the Resolution was passed pursuant to s. 70 and s.70(2)(g) of the SMA 2013; (ii) that the learned President had erred in law and fact in failing to take into account the factual background leading to the necessity to have a by-law through the Resolution; S/N K/DQwhlaR0y8ifE8bgXqRg (iii) that the learned President had erred in law and fact in failing to consider that the Resolution had given the mandate to the Management Corporation to charge legal fees on parcel owner who initiated legal action against the Management Corporation and lost in the suit; (iv) the learned President had erred in law and fact in failing to consider that the 2nd to the 5th Applicants were acting in according to the by-law (i.e. the Resolution); as against s. 121(3)(c) of the SMA 2013 (v) the learned President had erred in law and fact when decided that the Applicants be ordered to pay costs of RM500.00 to each of the 1st to 4th Respondents; (vi) the learned President had failed to consider that the 2nd to 5th Applicants were acting as member of the management committee of the Management Corporation under s.56 of the SMA 2013 in order for the Management Corporation to be bound by its duties and obligations in accordance with s.59(1)(h)(i) of the SMA 2013.” Principles relating to Judicial Review [15] The grounds for an application for judicial review are illegality, irrationality, procedural impropriety and proportionality. These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: S/N K/DQwhlaR0y8ifE8bgXqRg “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 exercisable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person S/N K/DQwhlaR0y8ifE8bgXqRg who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [16] The Federal Court’s decision in R Rama Chandran v. The Industrial Court of Malaysia & Anor (supra) suggests that the courts are permitted to scrutinize the challenged decision not only for process but also for substance. In other words, the courts are allowed to go into the merit of the matter. Nonetheless, the Federal Court in subsequent decisions held that not every case is amenable to such approach and merits can only be scrutinized in the most appropriate of cases. [17] In the Federal Court case of Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 the court stated the following: “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may S/N K/DQwhlaR0y8ifE8bgXqRg be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion.” [18] The Rama Chandran (supra) approach is also applicable “to decisions of other statutory tribunals or bodies”, provided that the approach shall be exercised carefully, depending on the factual matrix of the case (see the Federal Court case of Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625). The same apex court in Ranjut Kaur S Gopal Singh v Hotel Excelsior (M) Sdn. Bhd. [2010] 8 CLJ 629 held that cases involving issue of public policy, national interest, public safety or national security should be precluded from applying the Rama Chandran (supra) approach. [19] Founded on the principles relating to judicial review, this court will consider this application for judicial review. S/N K/DQwhlaR0y8ifE8bgXqRg Analysis and Findings [20] In relation to the jurisdiction of this court over the Impugned Decision, section 120 of the SMA 2013 provides that an award of the Tribunal shall be final, subject to section 121 of the same Act: “120 Decisions of Tribunal to be final “(1) An award made under subsection 112(3) or section 117 shall – (a) subject to section 121, be final and binding on all parties to the proceedings; and (b) be deemed to be an order of a court and be enforced accordingly by any party to the proceedings. (2) …” [21] Section 121 of the SMA 2013 stipulates that an award of the Tribunal may be challenged in the High Court on one or more of the three grounds of serious irregularity stated in subsection 121(3), which has caused substantial injustice to the applicant. If there is serious irregularity (which the court considers has caused substantial injustice to the applicant), the High Court may remit the award back to the Tribunal in whole or in part for reconsideration, or set the award aside in whole or in part. Section 121 of the SMA 2013 is reproduced below: “121 Challenging the award on ground of serious irregularity S/N K/DQwhlaR0y8ifE8bgXqRg (1) A party to the proceedings of the Tribunal may, upon notice to the other party and to the Tribunal, apply to the High Court challenging an award in the proceedings on the ground of serious irregularity affecting the awards. (2) If there is shown to be serious irregularity affecting the award, the High Court may- (a) remit the award to the Tribunal, in whole or in part, for reconsideration; or (b) set the award aside in whole or in part. (3) For the purpose of this section, "serious irregularity" means an irregularity of one or more of the following kinds which the court considers has caused substantial injustice to the applicant: (a) failure by the Tribunal to comply with section 113; (b) failure of the Tribunal to deal with all the relevant issues that were put to it; or (c) uncertainty or ambiguity as to the effect of the award.” [22] In this application for judicial review, the applicant sought to challenge the Impugned Decision on the second and third grounds of serious irregularity, namely the failure of the Tribunal to deal with all the relevant issues and the ambiguity as to the effect of the Impugned Decision, as envisaged under paragraphs 121(3)(b) and (c) of the SMA 2013. S/N K/DQwhlaR0y8ifE8bgXqRg [23] The grievance of the applicants against the Impugned Decision were mainly three pronged: (i) the order to nullify the Resolution; (ii) the order to invalidate the charging of legal fees incurred in defending itself against the action brought by a particular parcel owner, on such parcel owner; and (iii) the order for costs for the first to fourth respondents. The order to nullify the Resolution [24] The Resolution which was passed at the AGM reads: “any parcel owner who initiates any litigation against ‘Perbadanan Pengurusan Main Place’ shall be fully responsible to pay and reimburse ‘Perbadanan Pengurusan Main Place’ the full legal fees, disbursement and all other related costs as billed by the counsel for the said litigation when parcel owner loses the suit” [25] The Resolution has the effect of recovering, on a full indemnity basis, legal fees, disbursement and any cost whatsoever incurred by the Management Corporation in defending itself against any legal action or litigation brought by a certain parcel owner, from such parcel owner, in the event the said parcel owner did not find favour with the court and/or tribunal. [26] The applicants contended that the Management Corporation is allowed to make the Resolution be part of the by-law by virtue of paragraph 70(2)(g) of the SM 2013 which reads as follow: S/N K/DQwhlaR0y8ifE8bgXqRg “70 By-laws for regulation of subdivided building or land (1) … (2) A management corporation may, by special resolution, make additional by-laws or make amendments to such additional by-laws, not inconsistent with the by-laws prescribed by the regulations made under section 150, for regulating the control, management, administration, use and enjoyment of the subdivided building or land and the common property, including all or any of the following matters: … (g) behaviour …” [27] According to the applicants, the Resolution was intended to curb the behaviour of certain parcel owners in them bringing forth repetitive, mala fide, frivolous and vexatious legal actions against the Management Corporation. [28] The applicants took the position that the passing of the Resolution is the only avenue for the applicants to recover compensation for legal fees and costs incurred. This however, was not apparent in the affidavits of the applicants. [29] The effect of the Resolution is that the Management Corporation shall be entitled to recover from certain parcel owners who lost their suit against the Management Corporation, all legal fees, costs and disbursements incurred in the course of the Management S/N K/DQwhlaR0y8ifE8bgXqRg Corporation defending itself in the suit. It is a recovery of costs on a full indemnity basis. [30] Pursuant to section 70 of the SMA 2013, the Management Corporation is empowered, by way of special resolution, to make additional by-laws not inconsistent with by-laws prescribed by the regulations made under section 150 of the SMA 2013. The additional by-laws must, however, be for the purpose of “regulating the control, management, administration, use and enjoyment of the subdivided building or land and the common property”. [31] By-laws passed under section 70 of the SMA 2013 should, in the considered view of this court, have a direct resultant effect in terms of regulating the control, management, administration, use and enjoyment of the development area. As a corollary thereof, the term “behaviour” stipulated in paragraph 70(2)(g) of the SMA 2013 must be construed in the context of regulating the control, management, administration, use and enjoyment of the development area. [32] In the considered view of this court, in this case the purpose intended by the Resolution is to regulate the behaviour of the parcel owners as against the Management Corporation. It is not for the benefit of the “subdivided building or land and the common property”. Hence, this court fails to how the Resolution could be passed by virtue of section 70 of the SMA 2013. To equate the behaviour of certain parcel owners towards the Management Corporation, such that it will affect the development area in terms of its control, management, administration, use and enjoyment is, in the view of this court, too remote. S/N K/DQwhlaR0y8ifE8bgXqRg [33] Reference is made to section 59 of the SMA 2013 which stipulates the duties and powers of the management corporation. In relation to the power to make additional by-laws, paragraph 59(2)(g) of the Act reads: “59 Duties and powers of management corporation (1) … (2) The powers of the management corporation shall be as follows: … (g) subject to subsection 70(2), to make additional by-laws for the proper maintenance and management of the subdivided buildings or lands and the common property; …” [Emphasis added] [34] The above paragraph further illustrates the intention of Parliament that by-laws made by the Management Corporation shall be for the proper management and maintenance of the development area. [35] As alluded earlier, the Resolution has the effect of recovering costs incurred on a full indemnity basis. The resultant effect thereof is that the Management Corporation shall be entitled to charge all legal costs and fees incurred onto the account of certain parcel owner. After that, the Management Corporation shall be entitled to act upon that outstanding amount. S/N K/DQwhlaR0y8ifE8bgXqRg [36] Pursuant to section 77 of the SMA 2013, such outstanding amount will be a debt guaranteed by the parcel owner, and be actionable at the mercy of the Management Corporation [see: Dubon Bhd v. Wisma Cosway Management Corporation [2020] 6 CLJ 589, FC, where it was held that the outstanding charges “creates an undisputed debt”]. The Management Corporation shall be entitled to recover the same through the court or Tribunal, or to apply for any movable property of the parcel owner be attached and auctioned off by virtue of section 79 of the SMA 2013. [37] The by-laws prescribed under the Third Schedule of the Strata Management (Maintenance and Management) Regulations 2015 also allow the Management Corporation to deactivate any access card or restrict parcel owner from using the common facilities [see paragraph 6 of the Third Schedule]. [38] In Golden Star & Ors v. Ling Peek Hoe & Anor and another appeal [2024] 6 CLJ 487, Mary Lim FCJ speaking for the Federal Court found that costs incurred cannot be in itself a cause of action: “[24] With respect, we disagree. Costs incurred in prosecuting a claim cannot be in itself a cause of action, whether in separate or the same proceedings. More so, in the circumstances of the present appeals where costs were claimed as special damages between the same parties in the same proceedings, when there was already a specific order on costs; and where the items claimed as costs or special damages were themselves claimable as costs. … S/N K/DQwhlaR0y8ifE8bgXqRg [36] Brett LJ repeated his views in Quartz Hill Gold Mining v. Eyre (1883) 11 QBD 674, that "extra costs", that is, the difference between the amount a successful litigant is required to pay his solicitors and his party and party costs, are not damages for which an action can lie. … … [38] In Ross v. Caunters, Megarry VC was unequivocal on the principle that costs are not claimable as damages: It also seems to me that there is ample authority for saying that a successful plaintiff cannot obtain, in the guise of damages, any costs which, on a party and party taxation of costs, are disallowed by the taxing master. … … [50] … As a matter of law, the legal fees, charges, retainer, refresher or any other charges associated with the litigation between the parties at the High Court (and likewise at the Federal Court and Court of Appeal) are not claimable as damages. These sums are only claimable as costs within the costs regime as provided in O. 59.” [Emphasis added] [39] The applicants by way of the Resolution, sought all costs incurred in the course of the Management Corporation defending itself automatically ascend to an outstanding amount which is actionable upon a separate or new cause of action. In light of Golden Star (supra) this court opines this cannot be done. S/N K/DQwhlaR0y8ifE8bgXqRg [40] Moreover, the award of costs is a matter of discretion by the court, especially when a party in a suit prayed for costs to be assessed on full indemnity basis. The Federal Court in Golden Star (supra) stated the following: “[30] Again, we disagree. It was not open to the High Court to assess costs on a full indemnity basis. Costs are generally awarded on a party and party basis. If it was to be on any other basis, say indemnity or solicitor and client basis, then a specific order has to be sought. There are none from the terms of the order of 28 November 2012. In the absence of a specific order to the contrary, then the costs must be assessed on a party and party basis. … [33] We disagree. Damages are compensatory in nature awarded to compensate for loss sustained as a result of a civil wrong committed in breach of a duty of care. Whether such damages are recoverable or not is a matter of proof dependent on the evidence adduced at trial. As mentioned earlier, in the event there is lack of proof, the award should be nil or nominal. Costs of litigation on the other hand are discretionary. …” [Emphasis added] [41] The Federal Court in Takako Sakao v. Ng Pek Yuen & Anor (No 2) [2010] 1 CLJ 419 found that whether to award costs on indemnity basis depends on the factual matrix of the case: “[9] What appears clear is that the discretion to award costs on an indemnity basis is unfettered. All that is required is that S/N K/DQwhlaR0y8ifE8bgXqRg it must be an appropriate case warranting an award on that basis. …” [42] If the Resolution is allowed to have its full force and effect, it may be akin to allowing the Management Corporation to assume the discretionary power of the court in granting costs, and to recover costs on a full indemnity basis. [43] In the instant case, legal costs were charged into the account of the relevant parcel owner by the Management Corporation, without any regard or concern as to whether it was supported by any proof, and it continued to be the case up until the claim has been heard by the Tribunal. [44] The learned President found as reproduced below: “[24] Melalui Pembelaan Penentang Pertama tidak mengemukakan dokumen ataupun bil yang menunjukkan jumlah yang telah diinboiskan oleh peguam Penentang Pertama dan hanya mengatakan bahawa ia mala fide. … [26] … Adakah jumlah yang dicaj adalah jumlah yang diinboiskan oleh peguam? … [31] Adakah jumlah yang dibelanjakan oleh Penentang Pertama adalah sah dibelanjakan dengan menggunakan wang dari akaun penyerenggaraan? Adakah Penentang Pertama ia perlu dibelanjakan ataupun adakah jumlah untuk munasabah? S/N K/DQwhlaR0y8ifE8bgXqRg … [36] Cara Penentang-Penentang selepas membelanjakan wang yang begitu banyak untuk membela tindakan ataupun menfailkan tindakan terhadap pemilik tanpa memberikan sebarang penjelasan. [37] Kemudian meluluskan satu resolusi di mana Penentang-Penentang mengenakan caj guaman yang tinggi terhadap pemilik petak yang mengambil tindakan terhadap mereka bagi tindakan yang ditarikbalik pada tarikh pengurusan kes ataupun untuk kes yang belum lagi dibicarakan. [38] Adakah Penentang-Penentang berhak berbuat demikian menurut peruntukkan undang-undang?” [45] Therefore, this court is of the view that the learned President was correct in allowing the First Claim which is to invalidate the Resolution. [46] In Innab Salil & Ors v. Verve Suites Mont’ Kiara Management Corporation [2020] 10 CLJ 285, Tengku Maimun Tuan Mat CJ stated that the SMA 2013 is a social legislation: “[25] A statute is said to be a 'social legislation' when Parliament passes the statute for a beneficent reason with the intention to ease or facilitate the affairs of, or protect a certain section or group of persons (see Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687; [1995] 3 MLJ 369; Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 6 CLJ 232; [2011] 2 MLJ 141). S/N K/DQwhlaR0y8ifE8bgXqRg [26] The SMA 2013 is without doubt, a social legislation. It was passed to facilitate the affairs of strata living for the good of the community or owners of the strata title. Being social in nature, the provisions of the SMA 2013 which safeguard community interests ought to receive a liberal interpretation and not a restricted or rigid one. Accordingly, where two different interpretations are possible, it is the one which favours the interest of the community over the interest of the individual that is to be preferred. This is in line with the aforementioned decisions in Ang Ming Lee and Hoh Kiang Ngan.” [Emphasis added] [47] In this regard, the Resolution was passed via an overwhelming majority during the AGM. Applying the principle found in Innab (supra), could it be said that, the Resolution, being passed in an AGM (which typically represents the view of the community), prevails over the interest of the individual (i.e. the parcel owners)? [48] Based on the statement of claim filed by the first to fourth respondents before the Tribunal, out of 434,271 total share unit for Main Place development area, SLSB owns 79% of the total share unit. This was also averred by the first to fourth respondents in their Affidavit in Reply (see paragraphs 28 and 53, Enclosure 24). The applicants merely brushed the averment off as being irrelevant. [49] Despite the Resolution being passed with a majority of 79% (as confirmed by the applicants through their Affidavit in Rebuttal at paragraph 25, Enclosure 26), can such majority reflect the intention of the community in that development area? The written S/N K/DQwhlaR0y8ifE8bgXqRg submissions of the applicants, stated that “maka adalah satu hakikat bahawa Pemaju memang boleh menguasai Resolusi di mesyuarat Agung. Resolusi di Mesyuarat Agung pula adalah menurut undang-undang Akta Strata Pengurusan 2013” (see paragraph 7, Enclosure 35). Therefore, applying the principle of Innab (supra), it is in my view, the interest of other parcel owners as against SLSB ought to be balanced. Fees charged into the account [50] As the Resolution should be nullified, it follows that there is no reason for the legal fees to be charged into the account of the parcel owner. In this regard, reference is made to the case of Perbadanan Pengurusan Endah Parade v. Magnificient Diagraph Sdn Bhd [2014] 5 CLJ 881 where the Court of Appeal among others found that: “[35] … In this respect, we agree with the proposition advanced by the respondent that the management corporation as a body incorporated under statute can only levy payments which are mandated by the statute. It will be ultra vires its powers for the management corporation to levy payments which are not sanctioned by the statute. …” Issue on Costs payable [51] Pertaining to the costs payable, the learned President said: “43. Tribunal bersetuju bahawa tindakan ini tidak sepatutnya difailkan terhadap Penentang Kedua sehingga Kelima, S/N K/DQwhlaR0y8ifE8bgXqRg tetapi disebabkan mereka adalah adalah ahli badan pengurusan membuat keputusan untuk mengemukakan resolusi tersebut, dan pemilik-pemilik petak yang mempunyai unit syer yang paling banyak tidak sepatutnya menggunakan kebaikan ini bertindak sewenang-wenang tanpa menghiraukan pemilik petak yang lain. 44. Oleh yang demikian, Tribunal hanya menggenakan kos terhadap mereka.” [52] The applicants submitted that the learned President had taken into account the amount of RM495,011.94, without giving them opportunity to explain. The court is concerned if there is any injustice caused to the applicants by taking the figure into consideration. [53] In the considered view of this court, there has been no injustice as this particular ground was not in the Order 53 Statement nor was it addressed in the applicants’ affidavits. [54] Moreover, the learned President has been consistent with her position that the amount charged into the account is not supported by any evidence. This does not matter what exactly is the amount concerned. This is not the case where the applicants are able to prove the basis of the amount charged in the account and the learned President chose to ignore it. Neither the amount of RM12,200 nor the amount of RM495,011.94 was proven by the applicants. S/N K/DQwhlaR0y8ifE8bgXqRg Conclusion [55] For the aforementioned reasons, this court finds there was no illegality or procedural impropriety or irrationality which would allow this court to grant the reliefs sought by the applicant. Costs of RM 3,000.00 to be paid to each of the first to fourth respondents, subject to allocator. Date: 30 October 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam S/N K/DQwhlaR0y8ifE8bgXqRg Counsel: For the applicant: Zeaiana binti Rohani Tetuan Eunice Tan & Partners. Advocates & Solicitors No. 2-1-11, Tingkat 1, Wisma Rampai Jalan 34/26, Taman Sri Rampai Setapak, 53300 Kuala Lumpur kllee_partners@yahoo.com +6 03 4143 9999 For the first to fourth respondents: Loke Yeu Ling Chong Seng Foo Lee Yew Guat Kow Chong Yen @ Koh Chong Yen (In person) S/N K/DQwhlaR0y8ifE8bgXqRg