Yong Kein Sin v Perbadanan Pengurusan Springtide Residences (P-02(NCvC)(A)-234-02/2023)

LEE KEOK CHOO (NRIC NO: 610812-11-5232) ... APPELLANTS PERBADANAN PENGURUSAN SPRINGTIDE RESIDENCES (REG. NO.: PTG/PB/DTL/720/2008) ... RESPONDENT [In the High Court of Malaya in Penang Originating Summons No.: PA-24NCVC-693-07/2022

Yong Kein Sin (NRIC No: 630416-07-5791)

Lee Keok Choo (NRIC No: 610812-11-5232) ... Plaintiffs And Perbadanan Pengurusan Springtide Residences (Reg. No.: PTG/PB/DTL/720/2008) ... Defendant] (HEARD TOGETHER WITH) IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: P-02(NCVC)(A)-234-02/2023

LEE KEOK CHOO (NRIC NO: 610812-11-5232) APPELLANTS PERBADANAN PENGURUSAN SPRINGTIDE RESIDENCES (REG. NO.: PTG/PB/DTL/720/2008) RESPONDENT 1 [In the High Court of Malaya in Penang Originating Summons No.: PA-24NCVC-909-09/2022

Yong Kein Sin (NRIC No: 630416-07-5791)

Lee Keok Choo (NRIC No: 610812-11-5232) ... Plaintiffs And Perbadanan Pengurusan Springtide Residences (Reg. No: PTG/PB/DTL/720/2008) (HEARD TOGETHER WITH) IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: P-02(NCVC)(A)-235-02/2023

YEOH JIN AIK (NRIC NO: 500225-07-5531) APPELLANTS PERBADANAN PENGURUSAN SPRINGTIDE RESIDENCES (REG. NO.: PTG/PB/DTL/720/2008)

Susan Khoo Soo San (Australian Passport No: PB2132393)

Chu Yun Han (Taiwanese Passport No: 306867180)

Sun Tzyh Fang (Taiwanese Passport No: 353096287)

Jeng Wei (Taiwanese Passport No: 3600988880)

Yong Kein Sin (NRIC No: 630416-07-5791)

Lee Keok Choo (NRIC No: 610812-11-5232)

Yeoh Jin Aik (NRIC No: 500225-07-5531) ... Plaintiffs And Perbadanan Pengurusan Springtide Residences (Reg. No.: PTG/PB/DTL/720/2008) Defendant] CORAM: CHE MOHD. RUZIMA BIN GHAZALI, JCA WONG KIAN KHEONG, JCA AZHAHARI KAMAL BIN RAMLI, JCA

These three appeals (3 Appeals) emanated from three originating summonses (OS) disposed of together in the High Court. We heard together the 3 Appeals, namely-

Civil Appeal no. P-02(NCvC)(A)-2408-12/2022 $ (1^{st}$ Appeal) had been filed by two co-proprietors of one parcel of apartment no. 8-27-1 [Appellants $ (1^{st}$ Appeal)] in a "development area" known as Springtide Residences (Development Area) against the management corporation of the Development Area (MC);

Civil Appeal no. P-02(NCvC)(A)-234-02/2023 $ (2^{nd}$ Appeal) had been filed by the same appellants in the $ 1^{\mathrm{st}} $ Appeal against the MC [Appellants $ (2^{nd}$ Appeal)]; and

Civil Appeal no. P-02(NCvC)(A)-235-02/2023 $ (3^{rd}$ Appeal) had been filed by owners of six parcels of apartments in the Development Area [Appellants $ (3^{rd}$ Appeal)] against the MC.

A draft copy of this judgment (Draft) had been previously forwarded to Che Mohd. Ruzima bin Ghazali and Azahari Kamal bin Ramli JJCA. Both my learned brothers had agreed with the Draft. B. Background B(1). The $ 1^{\mathrm{st}} $ Appeal

The Development Area consists of two tower blocks [2 Towers (Apartments)] of 74 parcels of apartments (Apartments) and three landed residential four-storey bungalows (Villas).

In the first Annual General Meeting of the MC on 26.4.2013 $ (1^{st} $ AGM), a resolution was passed as follows - where any parcel proprietor has breached any by-law passed by MC at the MC's AGM and where the MC has incurred any costs, fees or expenses whatsoever in the enforcement of the by-law, the MC shall recover as a debt on an indemnity basis all such costs, fees or expenses in defending any legal suit brought by the parcel proprietor [By-Law (MC's Indemnity)].

On 25.10.2019, the first appellant in the 1 $ ^{1 s t} $ Appeal [ $ 1 ^{1 s t} $ Appellant (1 $ ^{1 s t} $ Appeal)] filed a claim in the Strata Management Tribunal (SMT) against the MC and Allied Property Services Sdn. Bhd. (the company which managed the Development Area) (Property Management Co.) for an award by SMT that the MC shall follow the rate of maintenance charges as stipulated in s 60(3) of the Strata Management Act 2013 (SMA).

The SMT dismissed the claim of the $ ^{1st} $ Appellant ( $ ^{1st} $ Appeal) on the ground that the $ ^{1st} $ Appellant ( $ ^{1st} $ Appeal) had claimed against the wrong parties (SMT's Award). The SMT also awarded costs of RM250.00 to be paid by the $ ^{1st} $ Appellant ( $ ^{1st} $ Appeal) to each of the MC and Property Management Co. [Costs (SMT)]. The $ ^{1st} $ Appellant ( $ ^{1st} $ Appeal) had paid the Costs (SMT) to the MC and Property Management Co.

The MC issued an invoice dated 1.12.2020 to the Appellants ( $ 1^{\mathrm{st}} $ Appeal) for a sum of RM11,234.95 [the amount of legal fees paid by the MC to the MC's solicitors for defending the MC in the claim by the $ 1^{\mathrm{st}} $ Appellant ( $ 1^{\mathrm{st}} $ Appeal) in SMT] [MC's Indemnity Claim (Legal Fees)].

The Appellants (1 $ ^{1st} $ Appeal) filed an OS in the High Court ( $ 1^{st} $ Suit) for, among others, a declaration that the By-Law (MC's Indemnity) is invalid under SMA and/or the Strata Management (Maintenance and Management) Regulations 2015 (SMR).

The $ 1^{\mathrm{st}} $ Suit was dismissed by the High Court with costs of RM5,000.00 [High Court's Decision ( $ 1^{\mathrm{st}} $ Suit) ]. The $ 1^{\mathrm{st}} $ Appeal was lodged against the High Court's Decision ( $ 1^{\mathrm{st}} $ Suit).

According to the High Court's Decision ( $ 1^{\mathrm{st}} $ Suit), among others-

the learned High Court Judge relied on -

ss 59(1)(h), (2)(j), (6)(a), 70(2)(g), 77(1) and 143(3) SMA; and

the High Court's judgment in Chew Chin Tai v Perbadanan Pengurusan Kondominium Selat Horizon [2015] 1 LNS 1196 - to decide that the By-Law (MC's Indemnity) is valid; and

the High Court relied on the judgment of Augustine Paul FCJ in the Federal Court case of Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 MLJ 697, at [31] and [32], which held that by virtue of the doctrine of res judicata, the SMT's Award estopped the Appellants ( $ 1^{\mathrm{st}} $ Appeal) from commencing the $ 1^{\mathrm{st}} $ Suit. B(2). The $ 2^{\mathrm{nd}} $ Appeal

In the Development Area, the MC imposed maintenance charges of RM3.567 per share unit for the Apartments but only charged RM1.861 per share unit for the Villas (MC's Different Rates). According to the MC, the MC's Different Rates are imposed because-

the proprietors of the Villas (Villa Proprietors) have limited use of the following common property within the 2 Towers (Apartments) -

swimming pool;

function hall/ room;

gym room;

barbeque area;

children's playground;

car parks;

car washing bay;

visitors parking bays;

lifts;

concierge desk;

toilets; and

security surveillance [Common Property (2 Towers)];

the Villa Proprietors have to maintain their own facilities within their own Villas, namely-

swimming pool;

private home lift;

garden; and

garage; and

the MC only maintained the outer walls and roofs of the Villas [MC's Reasons (Different Rates)].

An OS had been filed by the Appellants ( $ 2^{\mathrm{nd}} $ Appeal) in the High Court ( $ 2^{\mathrm{nd}} $ Suit) for, among others, the following orders:

a declaration that the MC's Different Rates are ultra vires SMA and/or SMR;

an order that the MC shall forthwith impose on the Villa Proprietors the same rate of maintenance charges as imposed for proprietors of the Apartments (Apartment Proprietors); and

an order for the MC to recover from the Villa Proprietors the shortfall in the payment of maintenance charges and contributions to the sinking fund (Sinking Fund Contributions) by the Villa Proprietors due to the MC's Different Rates [Shortfall (Maintenance Charges/Sinking Fund Contributions)].

The learned High Court Judge dismissed the $ 2^{nd} $ Suit with costs of RM8,000.00 [High Court's Decision ( $ 2^{nd} $ Suit) ]. The High Court's Decision ( $ 2^{nd} $ Suit) is the subject matter of the $ 2^{nd} $ Appeal.

The learned High Court Judge relied on, among others, the following grounds to arrive at the High Court's Decision ( $ 2^{\mathrm{nd}} $ Suit):

by virtue of the doctrine of res judicata, the SMT's Award estopped the Appellants $ (2^{n d} $ Appeal) from commencing the $ 2^{n d} $ Suit. Reliance was placed on Akitek Tenggara and s 106(1) SMA;

the Appellants ( $ 2^{\mathrm{nd}} $ Appeal) are barred from filing the $ 2^{\mathrm{nd}} $ Suit by laches or inordinate delay on the part of the Appellants ( $ 2^{\mathrm{nd}} $ Suit);

in view of the unreasonable delay in the institution of the $ 2^{\mathrm{nd}} $ Suit, the Appellants ( $ 2^{\mathrm{nd}} $ Appeal) had acquiesced to the MC's Different Rates;

the MC's Different Rates could be imposed pursuant to ss 59(1)(b) and 60(3)(b) SMA due to the MC's Reasons (Different Rates). The High Court relied on the Court of Appeal's judgment delivered by Vernon Ong Lam Kiat JCA (as he then was) in Muhamad Nazri bin Muhamad v JMB Menara Rajawali & Anor [2020] 3 MLJ 645;

the MC's Different Rates were "fortified" by a letter dated 19.3.2018 (COB's Letter) from the Commissioner of Buildings (COB) to the first appellant in the $ 2^{\mathrm{nd}} $ Appeal. The Appellants (2 $ ^{nd} $ Appeal) did not apply to the court or SMT to invalidate COB's Letter;

if the MC's Different Rates are invalid, the High Court would not order the MC to recover the Shortfall (Maintenance Charges/Sinking Fund Contributions) from the Villa Proprietors. The learned HC Judge relied on the High Court's judgment in Ekuiti Setegap Sdn Bhd v Plaza 393 Management Corporation [2019] 8 MLJ 549 which had been affirmed by the Court of Appeal; and

the $ 1^{\mathrm{st}} $ Appellant ( $ 2^{\mathrm{nd}} $ Appeal) was previously a member of the Management Committee [elected under s 56(1) SMA] at the time the MC's Different Rates were imposed. B(3). The 3rd Appeal

In the ninth AGM of the MC on 17.12.2021, a resolution was passed wherein a cash call of RM1,450,000.00 [Cash Call (RM1.45 Million)] would be collected in 12 monthly instalments (commencing from 1.4.2022) from all the proprietors of the Apartments and Villas in accordance with their share units for a "priority programme" of capital expenditure arising from -

lift shaft flood protection - RM150,000 (10%);

modernization of the main entrance, gates and security systems - RM500,000 (35%);

permanent infrastructure for façade access - RM250,000 (17%); and

sinking fund contingency finance - RM550,000 (38%) [Resolution (9th AGM)].

The Appellants ( $ 3^{\mathrm{rd}} $ Appeal) filed an OS in the High Court ( $ 3^{\mathrm{rd}} $ Suit) for, among others, various declarations regarding the Resolution ( $ 9^{\mathrm{th}} $ AGM).

While the $ 3^{\mathrm{rd}} $ Suit was pending, the MC convened an Extraordinary General Meeting on 30.8.2022 [EGM (2022)] . At the EGM (2022), a resolution was passed as follows - the Cash Call (RM1.45 Million) passed as a Resolution ( $ 9^{\mathrm{th}} $ AGM) was classified as a Sinking Fund Contribution to meet the actual and expected expenditure of the MC [Resolution (EGM)].

The $ 3^{\mathrm{rd}} $ Suit was dismissed by the High Court with costs of RM15,000.00 [High Court's Decision ( $ 3^{\mathrm{rd}} $ Suit)]. The $ 3^{\mathrm{rd}} $ Appeal has been filed against the High Court's Decision ( $ 3^{\mathrm{rd}} $ Suit).

The learned High Court Judge relied, among others, ss 51(2)(c), (e), 59(1)(a), (c) and 61(3) SMA to arrive at the High Court's Decision $ (3^{\mathrm{rd}} $ Suit). C. Contentions of the parties

Mr. M. Thayalan, learned counsel for the appellants in the 3 Appeals, had advanced the following submission, among others, in support of the 3 Appeals:

the $ 1^{\mathrm{st}} $ Appeal should be allowed because-

the MC as a body corporate created by the Strata Titles Act 1985 (STA), is not empowered under the SMA and SMR to make the By-Law (MC's Indemnity);

the SMT's Award did not attract the application of the res judicata doctrine which would estop the Appellants $ (1^{\mathrm{st}} $ Appeal) from filing the $ 1^{\mathrm{st}} $ Suit;

the Appellants $ (1^{\mathrm{st}} $ Appeal) were not guilty of laches or excessive delay in the institution of the $ 1^{\mathrm{st}} $ Suit; and

an enforcement of the By-Law (MC's Indemnity) is contrary to regulation 51(b) of the Strata Management (Strata Management Tribunal) Regulations 2015 and O 59 r 3(1) of the Rules of Court 2012 (RC);

the following contentions support the $ 2^{n d} $ Appeal-

the MC's Different Rates could not be imposed pursuant to ss 59(1)(b) and 60(3)(b) SMA; and

the COB's Letter did not support the MC's Reasons (Different Rates); and

the $ 3^{\mathrm{rd}} $ Appeal should be allowed because, among others, the Cash Call (RM1.45 Million) and the Resolution (EGM) cannot be imposed under ss 51(2), 59(1)(a), (c) and 61(3) SMA.

Mr. Lee Khai, learned counsel for the MC, resisted the 3 Appeals on the following grounds, among others:

the High Court's Decision $ (1^{\mathrm{st}} $ Suit) was justified because-

according to paragraph 7 of the Fourth Schedule to the SMA, the SMT had jurisdiction to decide on the validity of a resolution passed at the MC's general meeting, such as the By-Law (MC's Indemnity). By virtue of the SMT's Award, the doctrine of res judicata would bar the Appellants ( $ 1^{\mathrm{st}} $ Appeal) from filing the $ 1^{\mathrm{st}} $ Suit;

according to s 106(1) SMA, the issues in dispute before the SMT cannot be tried in court. Hence, the lawful dismissal of the $ 1^{\mathrm{st}} $ Suit by the learned High Court Judge;

the By-Law (MC's Indemnity) was passed in the $ 1^{\mathrm{st}} $ AGM in 2013. The Appellants $ (1^{\mathrm{st}} $ Appeal) were therefore guilty of inordinate delay of almost 10 years when they filed the $ 1^{\mathrm{st}} $ Suit;

the MC was empowered to pass the By-Law (MC's Indemnity) under s 70(2) SMA. Furthermore, the By-Law (MC's Indemnity) was not prohibited by s 70(5)(a) and (b) SMA; and

the By-Law (MC's Indemnity) could be lawfully enforced by the MC pursuant to s 59(1)(h), (2)(i), (6), 77(1) and 143(3) SMA;

the $ 2^{\mathrm{n d}} $ Appeal should be refused on the following grounds-

the SMT's Award would estop the Appellants $ (2^{\mathrm{nd}} $ Appeal) from filing the $ 2^{\mathrm{nd}} $ Suit;

the inordinate delay of the Appellants $ (2^{n d} $ Appeal) in the institution of the $ 2^{n d} $ Suit, supported the High Court's Decision $ (2^{n d} $ Suit);

the MC's Different Rates could be imposed under s 60(3)(b) SMA. In this regard, the MC relied on the recent Court of Appeal's judgment in Aikbee Timbers Sdn Bhd & Anor v Yii Sing Chiu & Anor and another appeal [2024] 1 MLJ 948; and

the MC's Different Rates was "in line" with the COB's Letter; and

the High Court's Decision $ (3^{\mathrm{rd}} $ Suit) was justified because the Cash Call (RM1.45 Million) and the Resolution (EGM) could be lawfully imposed under s 61(3) SMA. D. Issues

The following questions shall be decided in these 3 Appeals:

with regard to the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appeals -

when a claim is filed in a SMT by a "parcel owner" (defined in s 2 SMA) in a "development area" (defined in s 2 SMA), does s 106(1) SMA bar access to the courts by the parcel owner? This issue concerns a parcel owner's fundamental access to justice under Article 5(1) of the Federal Constitution (FC);

whether a decision of the SMT attracts the application of the doctrine of res judicata when-

the SMT is not a "court" as understood in s 3 of the Courts of Judicature Act 1964 (CJA);

(ii) the SMT is not a "Subordinate Court" pursuant to s 3(2)(a) and (b) of the Subordinate Courts Act 1948 (SCA); and

(iii) the SMT has not heard the dispute on its merits; and

can a suit by a parcel owner against a MC regarding the development area be barred by laches and/or inordinate delay on the part of the parcel owner in filing the suit [Laches/Excessive Delay (Parcel Owner)]? In this regard-

does s 6 of the Limitation Act 1953 (LA) or any other provision in the LA bar an action by a parcel owner to invalidate a by-law and/or MC's decision (ByLaw/MC's Decision)?; and

(ii) whether a MC can rely on a defence of Laches/Excessive Delay (Parcel Owner) when a By-Law/MC's Decision is invalid under the SMA and its subsidiary legislation [SMA/Subsidiary Legislation (SMA)];

in respect of the $ 1^{\mathrm{st}} $ Appeal -

can the By-Law (MC's Indemnity) be lawfully made pursuant to s 70(2) SMA, including paragraphs (a) to (i) of s 70(2) SMA? In this regard, is s 70(2) SMA exhaustive of all the circumstances in which a MC is empowered to make a by-law?; and

whether the MC can rely on ss 59(1)(h), (2)(j), (6)(a), 77(1) and/or 143(3) SMA to justify its enforcement of the By-Law (MC's Indemnity);

with regard to the $ 2^{\mathrm{nd}} $ Appeal, can the MC's Different Rates be justified under s 60(3)(b) SMA? This question discusses whether the phrase "parcels which are used for significantly different purposes" in s 60(3)(b) SMA-

allows an application of the "just and reasonable" criteria as laid down by the Court of Appeal in Aikbee Timbers; or

applies the test that parcels are "used for significantly different purposes" as decided by Collin Lawrence Sequerah JCA in the Court of Appeal case of AUM Capital Sdn Bhd v Menara UOA Bangsar Management Corporation [2024] 3 MLJ 527; and

with respect to the $ 3^{rd} $ Appeal, can the Cash Call (RM1.45 Million) and the Resolution (EGM) be lawfully imposed by the MC pursuant to s 51(2)(a) to (e), 59(1)(a), (c) and/or 61(3) SMA? OUR DECISION E. Interpretation of SMA/Subsidiary Legislation (SMA)

In Innab Salil & Ors v Verve Suites Mont' Kiara Management Corporation [2020] 12 MLJ 16, at [26], Tengku Maimun CJ had delivered the following judgment of the Federal Court: [26] The [SMA] 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] 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).

Premised on Innab Salil, as SMA is a "social legislation", the SMA/Subsidiary Legislation (SMA) should be given a wide interpretation (not a narrow construction) in favour of the "good of the community or owners of the strata title" (Social Legislation Construction). F. Did the SMT's Award bar the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Suits?

We reproduce below ss 106(1) and 117(2) SMA: "s106. Exclusion of jurisdiction of court

Where a claim is filed with the [SMT] and the claim is within the [SMT]'s jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless-

the proceedings before the court were commenced before the claim was filed with the [SMT]; or

the claim before the [SMT] is withdrawn, abandoned or struck out. s 117. Awards of the [SMT]

The [SMT] shall in all proceedings give its reason for its award in the proceedings." (emphasis added).

Firstly, s 106(1) SMA does not oust the court's jurisdiction. The effect of s 106(1) SMA is as follows:

if a person has filed a claim in the SMT, no court proceedings can be filed regarding the subject matter of the claim in SMT save in the circumstances stipulated in the proviso (a) or (b) to s 106(1) SMA; and

the object of s 106(1) SMA is to prevent simultaneous duplicity of proceedings in SMT and the court regarding the same claim.

Secondly, notwithstanding the fact that the SMT's Award stated expressly that the claim of the $ 1^{\mathrm{st}} $ Appellant ( $ 1^{\mathrm{st}} $ Appeal) had been "dismissed", we are of the view that in effect and in law, the SMT's Award had "struck out" the claim within the meaning of proviso (b) to s 106(1) SMA. This decision is premised on the following two reasons:

the SMT decided that the $ 1^{\mathrm{st}} $ Appellant $ (1^{\mathrm{st}} $ Appeal) had claimed against the wrong parties; and

SMT did not decide on the merits of the claim of the $ 1^{\mathrm{st}} $ Appellant ( $ 1^{\mathrm{st}} $ Appeal). By virtue of s 117(2) SMA, the SMT "shall in all proceedings give its reason for its award in the proceedings". In this case, the SMT did not give any reason on whether the By-Law (MC's Indemnity) was valid or otherwise.

Thirdly, if the SMT's Award could bar the $ 1^{\mathrm{st}} $ Suit, the fundamental right of the parties to file the $ 1^{\mathrm{st}} $ Suit under Article 5(1) FC, namely, their fundamental access to justice, would have been unlawfully deprived - please refer to the Federal Court's judgment delivered by Gopal Sri Ram FCJ in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507, at [4].

For the reasons expressed in the above paragraphs 26 to 28, the learned High Court Judge had committed an error of law in respect of the effect of s 106(1) SMA. G. Whether an award of SMT can raise the application of the res judicata doctrine

Sections 102, 105(1), (3), 120(1) and 121 SMA state as follows: "s 102. Establishment of [SMT] There is established a tribunal to be known as the [SMT]. s 105. Jurisdiction of [SMT]

The [SMT] shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the [SMT] is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount.

The jurisdiction of the [SMT] shall not extend to any claim in which the title to any land, or any estate or interest in land, or any franchise, is in question. s 120. Decisions of [SMT] to be final

An award made under subsection 112(3) or section 117 shall-

subject to section 121, be final and binding on all parties to the proceedings; and

be deemed to be an order of a court and be enforced accordingly by any party to the proceedings. s 121. Challenging the award on ground of serious irregularity

A party to the proceedings of the [SMT] may, upon notice to the other party and to the [SMT], apply to the High Court challenging an award in the proceedings on the ground of serious irregularity affecting the awards.

If there is shown to be serious irregularity affecting the award, the High Court may-

remit the award to the Tribunal, in whole or in part, for reconsideration; or

set the award aside in whole or in part.

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:

failure by the Tribunal to comply with section 113;

failure of the Tribunal to deal with all the relevant issues that were put to it; or

uncertainty or ambiguity as to the effect of the award. (emphasis added).

We are of the view that an award of a SMT does not attract the application of the doctrine of res judicata. Our reasons are as follows:

once a "court" has finally decided a case $ (1^{\mathrm{st}} $ Case), the decision in the $ 1^{\mathrm{st}} $ Case may affect subsequent cases in other "courts" by way of an application of the doctrine of res judicata - please refer to the judgment of the Supreme Court delivered by Peh Swee Chin FCJ in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, at 197 to 198, 198 and 199 to 200. A SMT -

is not a "court" as defined in s 3 CJA (a SMT is not the "Federal Court", "Court of Appeal" or "High Court"); and

is not a "Sessions Court" or "Magistrate's Court" as understood in s 3(2)(a) and (b) SCA. Section 120(2)(b) SMA provides that a SMT's award "shall" "be deemed to be an order of a court and be enforced accordingly by any party to the proceedings". This provision merely states that for the purpose of the enforcement of a SMT's award, the SMT's award shall be deemed to be a court order and can be enforced as a court order. Section 120(2)(b) SMA does not confer the status of a "court" on a SMT;

a SMT is an inferior tribunal created by s 102 SMA with limited jurisdiction according to s 105(1) and (3) SMA. Notwithstanding the fact that s 120(1)(a) SMA provides that an award of a SMT "shall" "be final and binding on all parties to the proceedings", an award of a SMT may nevertheless be challenged in the High Court as follows-

by virtue of s 121(1) to (3) SMA, a party who is aggrieved by the SMT's award may apply to the High Court under s 121 SMA to "challenge" the SMT's award; or

a party who is adversely affected by an award of SMT may file a Judicial Review application in the High Court pursuant to O 53 RC;

in this case, the SMT had not decided the claim in the SMT on its merits - please refer to the above paragraph 27. The res judicata doctrine is an equitable concept based on case law and should not be applied indiscriminately so as to cause an injustice or inequity - please see the judgment of Gopal Sri Ram JCA (as he then was) in the Court of Appeal case of Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346, at 356, 357 and 358. If we have applied the res judicata doctrine in the $ ^{1} $ $ ^{st} $ and $ ^{2} $ $ ^{nd} $ Appeals, this will occasion a grave injustice to the Appellants ( $ ^{1} $ $ ^{st} $ Appeal) and Appellants ( $ ^{2} $ $ ^{nd} $ Appeal) because the SMT did not decide on the merits of the claim in the SMT; and

in any event, as explained in paragraphs 42 and 53 below, the By-Law (MC's Indemnity) and MC's Different Rates are invalid premised on ss 70(2) SMA and 60(3)(b) SMA respectively. The res judicata doctrine which is based on case law cannot estop the application of statutory provisions in ss 60(3)(b) and 70(2) SMA - please refer to the Court of Appeal's judgment in Sabah Development Bank Bhd v TYL Land & Development Sdn Bhd [2024] 6 MLJ 433, at [46]. With respect, the learned High Court Judge did not consider the above reasons regarding why the doctrine of res judicata cannot be applied based on an award of a SMT.

In support of the contention that the SMT's Award would bar the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Suit, Mr. Lee Khai cited the judgment of Augustine Paul FCJ in the Federal Court case of Akitek Tenggara. The learned High Court Judge accepted this submission. We are unable to agree due to the following reasons:

Augustine Paul FCJ's dicta regarding the application of the doctrine of res judicata by way of a decision of the "Lembaga Arkitek Malaysia" (LAM) was not shared by Abdul Hamid Mohamed FCJ (as he then was), at [1], and Abdul Aziz Mohamed FCJ, at [132], [144] and [148]. In other words, Augustine Paul FCJ's dicta regarding the application of the res judicata doctrine was purely obiter;

the first question of law referred to the Federal Court in Akitek Tenggara, at [20], was whether LAM was competent to decide on the validity of the termination of an architect's appointment by the architect's client. In Akitek Tenggara, the Federal Court did not grant leave for the question of whether LAM's decision could operate as a form of res judicata to bar any party from questioning LAM's decision in subsequent court proceedings; and

LAM's decision in Akitek Tenggara had been decided on the merits of the matter before LAM. Furthermore, an application for Judicial Review of LAM's decision was allowed by the High Court but this decision was reversed on appeal to the then Supreme Court. In the $ 1^{\mathrm{st}} $ Suit, unlike Akitek Tenggara, the SMT's Award did not decide on the merits of the claim of the $ 1^{\mathrm{st}} $ Appellant ( $ 1^{\mathrm{st}} $ Appeal) - please refer to the above paragraph 27. H. Is there a limitation period for a suit to invalidate a By-Law/MC's Decision?

Section 6 LA states as follows: "Limitation of actions of contract and tort and certain other actions s 6(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.

An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any written law shall not be brought after the expiration of one year from the date on which the cause of action accrued: Provided that for the purpose of this subsection the expression "penalty" shall not include a fine to which a person is liable on conviction for a criminal offence.

Nothing in this section shall apply to -

any cause of action within the Admiralty jurisdiction of the High Court which is enforceable in rem other than an action to recover the wages of seamen, or

any action to recover money secured by any mortgage of or charge on land or personal property.

Subject to sections 22 and 32 of this Act the provisions of this section shall apply (if necessary by analogy) to all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity." (emphasis added).

It is clear from the words in s 6(1)(a) to (d) and (2) to (6) LA that Parliament has not provided for a limitation period for any action to invalidate a By-Law/MC's Decision. We are also unable to find any other provision in the LA which stipulates a limitation period for a suit to invalidate a By-Law/MC's Decision. This is understandable because if a By-Law/MC's Decision is unlawful pursuant to the SMA/Subsidiary Legislation (SMA), the By-Law/MC's Decision is void ab initio and cannot be enforced at all. In such case, any party who is adversely affected by the invalid By-Law/MC's Decision, may apply to the court to invalidate the By-Law/MC's Decision without being shackled by any limitation defence under the LA. The above decision is supported by the Federal Court's judgment delivered by Eusoffe Abdoolcader J (as he then was) in Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37, at 39 to 40, as follows: "The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon - in other words, it is subject to collateral attack. In collateral proceedings the court may declare an act that purports to bind to be nonexistent. In Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729, 736,Lord Diplock L.J. (now a Law Lord) said (at page 736) that 'it has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside'. Where a decision is null by reason of want of jurisdiction, it cannot be cured in any appellate proceedings; failure to take advantage of this somewhat futile remedy does not affect the nullity inherent in the challenged decision. The party affected by the decision may appeal 'but he is not bound to (do so), because he is at liberty to treat the act as void' [Birmingham (Churchwardens and Overseers) v Shaw (1849) 10 QB 868, 880, 116 ER 329 at page 880 (per Denman C.J.)]. In Barnard v National Dock Labour Board [1953] 2 QB, 34 it was said that, as a notice of suspension made by the local board was a nullity, 'the fact that there was an unsuccessful appeal on it cannot turn that which was a nullity into an effective suspension' (at page 34 per Singleton L.J.). Ridge v Baldwin [1964] AC 40 is to the same effect. Lord Denning said in Director of Public Prosecutions v Head [1959] AC 83 (at page 111) that if an order was void, it would in law be a nullity and there would be no need for an order to quash it as it would be automatically null and void without more ado. Lord Denning as Master of the Rolls so held too in Regina v Paddington Valuation Officer & Anor, Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380 (at page 402), 402. The judgment of this court in Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155, 157 refers (at page 157) to the decision of the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council & Anor [1980] 1 WLR 182, 189 and a passage in the judgment of the Lord Chancellor, Lord Hailsham of St. Marylebone (at page 189) where he refers to a spectrum of possibilities as the legal consequence of noncompliance with statutory requirements and speaks of one extreme where there has been such an outrageous and flagrant violation of a fundamental obligation that what has been done may be safely ignored and treated as having no legal consequence and in the event of any reliance sought thereon the party affected is entitled to use the defect simply as a shield or defence without having taken any positive action of his own." (emphasis added). The above judgment of the Federal Court has been affirmed by Lord Brightman on appeal to the Privy Council in Lim Yoke Foo v Eu Finance Bhd [1985] 1 MLJ 17, at 20. I. Can the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Suits be defeated by Laches/Excessive Delay?

According to s 32 LA- "Acquiescence s 32. Nothing in [LA] shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise." (emphasis added).

We are of the view that the learned High Court Judge had erred in dismissing the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Suits on the ground of Laches/Excessive Delay on the part of the Appellants ( $ 1^{\mathrm{st}} $ Appeal) and Appellants ( $ 2^{\mathrm{nd}} $ Appeal). Our reasons are as follows:

in paragraphs 42 and 53 below, we have decided that the By-Law (MC's Indemnity) and MC's Different Rates are invalid according to ss 70(2) SMA and 60(3)(b) SMA respectively. Hence, as explained by our Federal Court in Eu Finance, the By-Law (MC's Indemnity) and MC's Different Rates are void ab initio and cannot be enforced at all by the MC. In such case, there is no question of delay on the part of the Appellants $ (1^{\mathrm{st}} $ Appeal) and Appellants $ (2^{\mathrm{nd}} $ Appeal) to file the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Suits respectively, especially when there is no limitation period prescribed under the LA for the Appellants $ (1^{\mathrm{st}} $ Appeal) and Appellants $ (2^{\mathrm{nd}} $ Appeal) to institute the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Suits respectively - please refer to the above paragraph 34; and

it is clear from s 32 LA that the defence of Laches/Excessive Delay is based on Equity. There is a maxim of Equity that "Equity follows the law" (the application of Equity shall be subject to the operation of statutes) - please refer to the High Court's judgment in Darul Fikir v Dewan Bahasa & Pustaka [2018] 10 MLJ 693, at [8(2)]. If the By-Law (MC's Indemnity) and MC's Different Rates are unlawful by virtue of written law, namely the SMA (Statutory Illegalities), in accordance with the maxim that "Equity follows the law", the court cannot rely on an equitable defence of Laches/Excessive Delay to negate the Statutory Illegalities. J. Whether the By-Law (MC's Indemnity) was valid

We reproduce below ss 59(1)(a) to (c), (h), (2)(j), (6)(a), (b), 70(2)(g), (i), 77(1), 143(3) and 150(1) SMA: "s 59. Duties and powers of [MC]

The duties of a [MC] shall be as follows:

to properly maintain and manage the subdivided building or land and the common property and keep it in a state of good and serviceable repair;

to determine and impose the Charges to be deposited into the maintenance account for the purposes of proper maintenance and management of the subdivided buildings or lands and the common property;

to determine and impose the contribution to the sinking fund to be deposited into the sinking fund account for the purposes of meeting the actual or expected expenditure specified under subsection 51(2);

to enforce the by-laws; and

The powers of the [MC] shall be as follows:

to do all things reasonably necessary for the performance of its duties under [SMA] and for the enforcement of the bylaws.

Wheres 70. By-laws for regulation of subdivided building or land

the [MC] incurs any expenditure or performs any repairs, work or act that it is required or authorized by or under this Part or by or under any other written law to perform, irrespective of whether or not the expenditure was incurred or the repairs, work or act were or was performed consequent upon the service on it of any notice or order by any Government or statutory authority; and

the expenditure or the repairs, work or act referred to in paragraph (a) were or was rendered necessary by reason of any willful or negligent act or omission on the part of, or breach of any provision of its by-laws by, any person or his tenant, lessee, licensee or invitee, the amount of the expenditure of any money expended by the [MC] in performing the repairs, work or act shall be recoverable by it from that person as a debt in an action in any court of competent jurisdiction or before the [SMT].

A [MC] 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:

behaviour;

imposition of fine not exceeding two hundred ringgit against any proprietor, occupant or invitee who is in breach of any of the by-laws. s 77. Recovery of sum as a debt due to [MC] or subsidiary management corporation

The payment of any amount lawfully incurred by the [MC] 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 [MC] or the subsidiary management corporation. s 143(3) Any judgment or order given or made in favour of or against the joint management body, management corporation or subsidiary management corporation, as the case may be, in any proceedings referred to in subsection (2) shall have effect as if it were a judgment or an order given or made in favour of or against the parcel owners or the proprietors, as the case may be. s 150. Regulations

The Minister may, after consultation with the National Council for Local Government, make such regulations as may be expedient or necessary for the better carrying out of the provisions of [SMA]." (emphasis added).

Firstly, the "Minister" (defined in s 2 SMA as the Minister charged with the responsibility for local government) may make by-laws in the form of regulations under s 150(1) SMA (Statutory By-Laws).

Secondly, Parliament has specifically provided in s 70(2) SMA for the MC's power to -

make by-laws in addition to the Statutory By-Laws (Additional By-Laws); and

amend the Additional By-Laws - which are not inconsistent with Statutory By-Laws.

Thirdly, with regard to the MC's power to make and/or amend the Additional By-Laws, by virtue of the maxim of statutory interpretation, generalia specialibus non derogant, the court can only consider the specific provision of s 70(2) SMA and not the other provisions in SMA. The maxim generalia specialibus non derogant applies when a specific provision in a statute overrides a general provision in the same statute - please refer to Gopal Sri Ram JCA's (as he then was) judgment in Court of Appeal case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719, at 758 to 759. Consequently, the learned High Court Judge committed an error of law by relying on ss 59(1)(h), (2)(j), (6)(a), 70(2)(g), 77(1) and 143(3) SMA to justify the MC's imposition of the By-Law (MC's Indemnity).

Fourthly, our interpretation of s 70(2) SMA is as follows:

the MC can only make and/or amend the Additional By-Laws under s 70(2) SMA to regulate the "control, management, administration, use and enjoyment of the subdivided building or land and the common property" {MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)]};

MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)] includes the power of the MC to make and/or amend the Additional By-Laws for "all or any" of the matters stated in paragraphs (a) to (i) of s 70(2) SMA {Paragraphs (a) to (i) [Section 70(2) SMA]};

Paragraphs (a) to (i) [Section 70(2) SMA] are not independent of MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)]. This is because the legislature has employed the term "including" in s 70(2) SMA between MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)] and Paragraphs (a) to (i) [Section 70(2) SMA]. Hence, the Additional By-Laws made and/or amended by the MC pursuant to Paragraphs (a) to (i) [Section 70(2) SMA] -

should relate to MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)]; and

cannot be beyond MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)]; and

the powers of the MC to make and/or amend the Additional By-Laws in s 70(2) SMA are exhaustive. This interpretation is premised on the following reasons-

as explained in the above sub-paragraph (3), Paragraphs (a) to (i) [Section 70(2) SMA] are not independent of MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)]. Consequently, a MC cannot possess powers beyond Paragraphs (a) to (i) [Section 70(2) SMA] and beyond MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)];

Parliament has used the phrase "all or any of the following matters" in Paragraphs (a) to (i) [Section 70(2) SMA]. This phrase supports the legislative intent that Paragraphs (a) to (i) [Section 70(2) SMA] are meant to be comprehensive;

the employment of a conjunctive term "and" between the penultimate paragraph (h) and the last paragraph (i) in s 70(2) SMA shows the intention of Parliament that all the matters in Paragraphs (a) to (i) [Section 70(2) SMA] have been exhaustively enumerated;

according to s 2 SMA, a MC comes into existence under the STA. By virtue of s 17(3) STA, a MC comes into existence upon the opening of a strata register in respect of a development area. As a creature of statute (STA), a MC cannot have powers beyond s 70(2) SMA to make and/or amend the Additional By-Laws;

the Social Legislation Construction (please refer to the above Part E) does not support the power of a MC to make and/or amend the Additional By-Laws beyond s 70(2) SMA. If a MC has wide powers to make and/or amend the Additional By-Laws beyond s 70(2) SMA, the MC may abuse such wide powers, especially to the detriment of "minority" parcel owners who cannot pass a "special resolution" (defined in s 2 SMA as "a resolution which is passed at a duly convened general meeting of which at least twenty-one days' notice specifying the proposed resolution has been given, and carried by a majority consisting of not less than three-quarters of the valid votes cast at the general meeting by a show of hands, or if a poll is demanded and taken, by a majority consisting of not less than three-quarters in number of the valid votes cast on such poll") in the MC's AGM or EGM to make and/or amend the Additional By-Law pursuant to s 70(2) SMA; and

if there is a need for a MC to have an Additional By-Law beyond s 70(2) SMA, the MC may apply to the Minister to provide for such a by-law in the Statutory By-Laws. Needless to say, Parliament has the prerogative to expand the scope of s 70(2) SMA.

Premised on our construction of s 70(2) SMA in the above paragraph 41, we are of the view that there is nothing in s 70(2) SMA, either expressly or by necessary implication, which confers power on the MC to pass the By-Law (MC's Indemnity) because -

the By-Law (MC's Indemnity) is not required or needed for MC's Regulation [Control/Management/Administration/Use/Enjoyment (Development Area)]; and

the MC cannot rely on any one of the Paragraphs (a) to (i) [Section 70(2) SMA] to pass the By-Law (MC's Indemnity). Premised on the above reasons, the By-Law (MC's Indemnity) is unlawful for being ultra vires s 70(2) SMA [Invalid By-Law (MC's Indemnity)]. The High Court had fallen into a legal error by failing to decide regarding the Invalid By-Law (MC's Indemnity).

There is another reason to support the Invalid By-Law (MC's Indemnity). The SMT's Award only awarded costs of RM250.00 to be paid by the 1 $ ^{st} $ Appellant (1 $ ^{st} $ Appeal) to each of the MC and Property Management Co. The Costs (SMT) had already been paid by the 1 $ ^{st} $ Appellant (1 $ ^{st} $ Appeal) to the MC and Property Management Co. If we have not invalidated the By-Law (MC's Indemnity), the By-Law (MC's Indemnity) would have unlawfully allowed the MC to recover from the 1 $ ^{st} $ Appellant (1 $ ^{st} $ Appeal) costs for the proceedings in the SMT (for which the SMT had not decided the merits of the dispute - please refer to the above paragraph 27) far in excess of the Costs (SMT). This is clearly an injustice to the 1 $ ^{st} $ Appellant (1 $ ^{st} $ Appeal). It is to be borne in mind that the SMT did not order the $ 1^{\mathrm{st}} $ Appellant ( $ 1^{\mathrm{st}} $ Appeal) to indemnify the MC and Property Management Co. with regard to the costs of the proceedings in the SMT.

The High Court in Chew Chin Tai had decided that rule 8(d) of a development area's "House Rules" (which allowed the MC in that case to claim for the legal fees incurred by the MC due to proceedings commenced by the plaintiff) was valid based on ss 43(7), 44, 45, 52 and Schedule 3 to STA. Unfortunately, in Chew Chin Tai, there was no analysis by the High Court of these STA provisions which were similar but not identical to the above provisions in SMA. In view of our interpretation of s 70(2) SMA in the above paragraph 41, we are constrained to overrule the High Court's judgment in Chew Chin Tai. K. Outcome of the 1 $ ^{st} $ Appeal

Premised on the reasons expressed in the above Parts F to J, the $ 1^{\mathrm{st}} $ Appeal is allowed with the following order:

the High Court's Decision $ (1^{\mathrm{st}} $ Suit) is set aside;

we grant prayers (i) to (vi) of the $ 1^{\mathrm{st}} $ Suit;

with regard to prayer (vii) in the $ 1^{\mathrm{st}} $ Suit), we only order costs of the $ 1^{\mathrm{st}} $ Appeal and $ 1^{\mathrm{st}} $ Suit [Costs （ $ 1^{\mathrm{st}} $ Appeal/$ 1^{\mathrm{st}} $ Suit)] to be paid by the MC (not the members of the Management Committee) to the Appellants （ $ 1^{\mathrm{st}} $ Appeal). This is because the decision with regard to the By-Law (MC's Indemnity) was made in the $ 1^{\mathrm{st}} $ AGM and the Management Committee of the MC only implemented the By-Law (MC's Indemnity). Furthermore, the members of the Management Committee are not personally liable for the enforcement of the By-Law (MC's Indemnity). Lastly, as the members of the Management Committee were not parties in the $ 1^{\mathrm{st}} $ Suit and $ 1^{\mathrm{st}} $ Appeal, they were not afforded a right to be heard in this case; and

we order the MC to pay Costs ( $ 1^{\mathrm{st}} $ Appeal/$ 1^{\mathrm{st}} $ Suit) in a sum of RM15,000.00 to the Appellants ( $ 1^{\mathrm{st}} $ Appeal) (subject to allocatur fee). L. Whether the MC's Different Rates were valid

Section 59(1)(b) SMA has been reproduced in the above paragraph 37. Sections 12(1) to (8), 52 and 60(3) SMA state as follows: "s12. Purchaser and developer to pay Charges, and contribution to sinking fund

Each purchaser shall pay the Charges, and contribution to the sinking fund, in respect of his parcel to the developer for the maintenance and management of the buildings or lands intended for subdivision into parcels and the common property in a development area.

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

The amount of the Charges to be paid under subsections (1) and (2) shall be determined by the developer in proportion to the allocated share units of each parcel.

The amount of contribution to the sinking fund to be paid under subsections (1) and (2) shall be a sum equivalent to ten per cent of the Charges.

The purchaser shall, within fourteen days of receiving a notice from the developer, pay the Charges, and contribution to the sinking fund, to the developer and if any sum remains unpaid by the purchaser in respect of his parcel at the expiry of the period of fourteen days, the developer may recover the sum in the manner set out in section 34.

If any sum remains unpaid by the purchaser in respect of his parcel at the expiry of the period of fourteen days specified in subsection (5), the purchaser shall pay interest at the rate of ten per cent per annum on a daily basis.

Any purchaser who is not satisfied with the sums determined by the developer under subsection (3) or (4) may apply to the [COB] for a review and the [COB] may -

determine the sum to be paid as the Charges, or contribution to the sinking fund; or

instruct the developer to appoint, at the developer's own cost and expense, a registered property manager to recommend the sum payable as the Charges, or contribution to the sinking fund, and submit a copy of the registered property manager's report to the [COB].

Upon receiving the report under paragraph (7)(b), the [COB] shall determine the sum payable as he thinks just and reasonable, and any sum so determined by the [COB] shall be deemed to be the sum payable as the Charges, or contribution to the sinking fund. s 52. Proprietors to pay Charges, and contribution to the sinking fund

Each proprietor shall pay the Charges, and contribution to the sinking fund, to the [MC] for the maintenance and management of the subdivided building or land and the common property in a development area.

During the preliminary management period, the amount of the Charges to be paid under subsection (1) shall be determined by the developer in proportion to the share units assigned to each parcel.

The amount of the contribution to the sinking fund to be paid under subsection (1) shall be a sum equivalent to ten per cent of the Charges.

The proprietor shall, within fourteen days of receiving a notice from developer, pay the Charges, and contribution to the sinking fund, to the [MC] and if any sum remains unpaid by the proprietor at the expiry of the period of fourteen days, the developer may in the name of the [MC] recover the sum in the manner set out in section 78.

If any sum remains unpaid by the proprietor at the expiry of the period of fourteen days specified in subsection (4), the proprietor shall pay interest at the rate of ten per cent per annum on a daily basis.

Any proprietor who is not satisfied with the sums determined by the developer under subsection (2) or (3) may apply to the [COB] for a review and the [COB] may

determine the sum to be paid as the Charges, or contribution to the sinking fund; or

instruct the developer to appoint, at the developer's own cost and expense, a registered property manager to recommend the sum payable as Charges, or contribution to the sinking fund, and submit a copy of the registered property manager's report to the [COB].

Upon receiving the report under paragraph (6)(b), the [COB] shall determine the sum payable as he thinks just and reasonable, and any sum so determined by the [COB] shall be deemed to be the sum payable as the Charges, or contribution to the sinking fund.

For the purposes of this section, "proprietor" includes -

the person for the time being receiving the rent of the parcel, whether as an agent or a trustee or a receiver, and who would receive the same if the parcel were let to a tenant;

a purchaser to be duly registered as a proprietor; or

a developer in respect of those parcels in the development area which have not been sold. s 60(3) Subject to section 52, for the purpose of establishing and maintaining the maintenance account, the [MC] may at a general meeting -

raise the amounts so determined by imposing Charges on the proprietors in proportion to the share units or provisional share units of their respective parcels or provisional blocks, and the [MC] may determine different rates of Charges to be paid in respect of parcels which are used for significantly different purposes and in respect of the provisional blocks; ...” (emphasis added).

Section 2 SMA has defined "Charges" to mean any money collected by a MC which will be deposited into a "maintenance account" (defined in s 2 SMA) to be opened by a MC as required by SMA. Section 60(3)(b) SMA is a specific provision intended by Parliament for a MC to impose different rates of Charges to be paid in respect of "parcels which are used for significantly different purposes". In accordance with the maxim of statutory interpretation, generalia specialibus non derogant, the learned High Court Judge should have considered only s 60(3)(b) SMA [not s 59(1)(b) SMA] in deciding whether MC's Different Rates could be justified under s 60(3)(b) SMA. As such, the High Court had committed an error law in relying on s 59(1)(b) SMA in upholding the validity of MC's Different Rates.

According to s 60(3)(b) SMA, MC's Different Rates could only be lawfully imposed in respect of "parcels which are used for significantly different purposes".

The following Court of Appeal cases (in chronology) had construed the meaning of the phrase "parcels which are used for significantly different purposes" in s 60(3)(b) SMA:

Muhamad Nazri concerned the powers of a Joint Management Body (JMB) to impose different Charges for different parcels. According to Vernon Ong Lam Kiat JCA (as he then was) in Muhamad Nazri, at [1] and [38] - "[1] Can a [JMB] impose different rates of maintenance charges for different types of parcels in a condominium development? That was the issue which presented itself at the High Court concerning the imposition of maintenance charges in a mixed condominium development comprising of residential, retail shop and car park parcels. [38] There is also no provision under the [SMA] and the [STA] which empowers the JMB to fix different rates for different types of parcels. In contrast, such a power is expressly conferred on a MC in respect of two specific situations: (i) parcels which are used for significantly different purposes, and (ii) provisional blocks; sub-s 60(3)(b) [SMA].” (emphasis added);

Dr. Choo Kah Sing JCA decided as follows in Aikbee Timbers, at [2], [3], [51], [53], [56] to [58], [64], [65], [67], [69], [78], [79], [83], [84] and [87] to [90] - "[2] ... The two questions of law were as follows: Whether on the true construction of the provisions of the [SMA], the [STA], the Housing Development (Control & Licensing) Act 1966, the Housing Development (Control & Licensing) Regulations 1989, in particular, Schedule H as prescribed in regulation 11:

the determination of and imposition of the different rates of maintenance charges and contribution to the sinking fund between apartment parcels and commercial parcels by the first respondent as the developer of Pearl Suria is valid in law; and

the determination of different rates of the maintenance charges and contribution to the sinking fund by the third respondent as the [MC] of Pearl Suria is valid in law? [3] On 23 June 2022, the learned High Court judge answered both the questions of law (a) and (b) in the negative. Consequently, the learned High Court judge granted an order to the effect that all parcel owners of residential and commercial parcels have to pay the same rates of charges for the payments of maintenance charges and contribution to the sinking fund in the development. [51] [SMA] is a social legislation. Likewise, the HDA 1966 and HDR 1989 are also social legislation. They are intended to achieve a common goal for the common good of the society. We are of the view that the formula in the Fifth Schedule of the SPA or the current Schedule H cannot be applied mechanically without giving due consideration of the peculiar facts in a mixed development. [53] In a mixed development, like the one before us, the exclusive common facilities are exclusively for the benefit and enjoyment of the residential parcels' owners. The expenditure for the maintenance and management of these exclusive common facilities which are exclusively for the benefit of the residential parcels' owners should not be included in the formula for the chargeable rate for the commercial parcels owners who have no right to enjoy such exclusive common facilities. The rigid imposition of only one chargeable rate for maintenance charges for residential parcels and commercial parcels would not reflect the true construction of a social legislation. [56] Section 52(6) [SMA] allows a proprietor who is not satisfied with the sums determined by the developer to apply to the [COB] for a review. The [COB] is empowered to review the sums chargeable and may (a) determine himself the sum to be paid as the charges (including the contribution to the sinking fund), or (b) instruct the developer to appoint a registered property manager to recommend the sum payable as charges (including the contribution to the sinking fund) by submitting a report to the [COB]. Upon receiving the report, sub-s (7) states that the [COB] shall determine the sum payable as he thinks just and reasonable. [57] Reading sub-s 52(6) and (7) together proffers: (i) the formula for the calculation of the charges (or the rate) is not rigid, otherwise, there is no reason to give the [COB] the power to review the charges that have been determined by the developer; (ii) the use of the word 'sums' in sub-s (6), ie, 'Any proprietor who is not satisfied with the sums ...', connotes there could be more than one rate of charges for maintenance charges or contribution to the sinking fund; (iii) the appointment of a registered property manager to recommend the sums payable as charges simply means there could be more than one way of tabulating what could be the expenses to be included and/or excluded in the total expenses which are relevant to determine the charges (the rate); and lastly, (iv) there should not be a rigid application of the formula. The determination of the charges (the rate) must be based on the principle of just and reasonable under the [SMA] and fair and justifiable under the SPA in this present case to determine the proportions with respect to different parcels' owners having regard to the rights of use of the common facilities of the parcels concerned in a mixed development. [58] Based on the above analysis, reading the [SMA] together with the SPA, and considering the relevant Schedules of the HDR 1989 and the HDA 1966, we find that the developer was entitled in law to impose different chargeable rates between the residential parcels and commercial parcels for the maintenance charges and contribution to the sinking fund in the development during the preliminary management period. Therefore, our answer to the first question of law is in the affirmative. [64] The plain meaning in s 60(3) [SMA] proffers that, first, the [MC] may increase the amount to meet the actual or expected general or regular expenditure necessary in respect of the expenditure spelled out in s 50(3)(a)-(n) [SMA]. Secondly, if the amount is increased, the [MC] is to adjust the chargeable rate based on the increased amount. Thirdly, the [MC] 'may determine different rates of the Charges to be paid in respect of parcels which are used for significantly different purposes' and also 'in respect of the provisional blocks'. Lastly, the [MC] is to determine the interest chargeable for late payments. [65] Different rates are allowed to be imposed for parcels in relation to a subdivided building which are used for significantly different purposes and for provisional blocks. [67] With regard to strata titled parcels in a subdivided building, if there are parcels within the subdivided building which are used for significantly different purposes, then the [MC] is empowered to impose different chargeable rates for parcels which are used for significantly different purposes. Likewise, if there are provisional blocks, the [MC] is empowered to impose different chargeable rates for the provisional blocks. It is to be noted that both the words 'parcels' and 'blocks' were used in plural form. This connotes that the law has envisaged a situation like the instant case, where a building is subdivided into parcels with separate strata titles, and the parcels are used for more than one type of purposes, such as parcels for residential purpose and parcels for commercial purpose within single development, then the [MC] is permitted in law to charge different rates for parcels that are used for significantly different purposes. [69] If one is to take the total expenses (or estimated expenses), including the expenses for the common properties which are exclusively for the use of the residents of the residential parcels and divide by the entire share units in the development as the only denominator, the result could only produce a single rate. If this approach is the only approach, why then did the law provide that the [MC] 'may determine different rates of Charges'? The only plausible answer lies in the words 'used for significantly different purposes'. The phrase 'used for significantly different purposes' simply connotes the use of the parcels is distinctly different. Residential parcels and commercial parcels are used for significantly different purposes. [78] The language used in the section is clear and unambiguous. The phrase 'for significantly different purposes' must be understood in reference to the noun before the phrase which is the word 'parcels' as mentioned earlier. Therefore, one has to compare the group of parcels whether among them there are any parcels being used for significantly different purposes. It is a fundamental error to read into the sentence that those 'parcels' have departed from their original purpose. If Parliament intended the meaning to refer to a parcel which purpose has changed from its original purpose, then Parliament would have said so in clear words. We are not inclined to accept the interpretation adopted by the learned High Court judge as the correct position of the law. [79] There are significantly different purposes in the use of the parcels for this development in that there are parcels used for residential purpose and there are parcels used for commercial (mall and car park) purposes. [83] As mentioned earlier, during the preliminary management period, any proprietor who is not satisfied with the sums determined by the developer may apply to the [COB] Buildings for a review (see s 52(7) [SMA]). The [COB] shall determine the sum payable as he thinks just and reasonable. The application of the principle of just and reasonable is also found in s 12(8) [SMA], when a [MC] has yet to come into existence. [84] Within the regime of our own strata title law, it could be distilled from ss 12(8) and 57(2) [SMA] that the test for determining chargeable rates or different chargeable rates, as the case may be, is 'just and reasonable'. The sums charged must be just in the sense that one must pay for what one is entitled to enjoy and to share his responsibility with those who share the same rights and benefits. The sums charged must be reasonable in the sense that the identified expenses for the common property must not be excessive or unreasonable. [87] On 11 March 2019, YSC complained to the [COB] that the developer had imposed different chargeable rates. On 28 August 2019, the [COB] replied to YSC. The [COB] was satisfied that there was nothing irregular or wrong after it had examined the MC's letter dated 23 July 2019 explaining how the different chargeable rates came about. [88] The [COB] had considered the different chargeable rates and did not object to the imposition of different chargeable rates by the developer or by the MC. This means the [COB] that different chargeable rates are permitted in a mixed development. Further, it also means that the different chargeable rates previously imposed by the developer and the present different chargeable rates imposed by the MC were just and reasonable in the opinion of the [COB]. [89] After having considered the items which the developer or the MC had taken into consideration in order to derive the different chargeable rates, we are satisfied that the different chargeable rates were just and reasonable. The owners of the residential parcels were not over-charged. The identified items were indeed expenditure for the maintenance of the exclusive common facilities which were provided exclusively for the residential parcels. [90] We could not find the commercial parcels' owners had abused their majority voting rights. They did not arbitrarily pass the resolution for their own advantage to have different chargeable rates. Likewise, the developer did not arbitrarily determine the chargeable rates under s 52(2) [SMA]. Hence, based on the analysis of the law and the reasoning herein, we answer the second question of law in the affirmative." (emphasis added); and

Collin Lawrence Sequerah JCA delivered the following judgment in AUM Capital, at [45] - [45] We agree with the submission of counsel for the [MC] that the practice of charging different rates of service charges to take into account the specific amount of usage of different elements of common property for example, lifts and swimming pools does not accord with the legislative intent of the [SMA] which requires the [MC] to impose a single rate of service charges on all parcels according to their share units, unless those parcels are used for 'substantially different purposes' according to s 60 [SMA]." (emphasis added).

It is to be noted that in Aikbee Timbers-

the development area is a mixed development project which consists of parcels used for residential purpose and commercial purposes (mall and car park);

the first question that arose in Aikbee Timbers concerned the Charges which could be imposed under s 12 SMA by a developer on "purchasers" (defined in s 2 SMA) before the formation of the JMB; and

a purchaser of a parcel in the development area had complained to the COB regarding the imposition of different rates of Charges by the developer. The COB had decided that the developer could impose different rates of Charges in the development area. This case concerned the Development Area which consists solely of parcels used for residential purposes. In this sense, this case can be easily distinguished from Aikbee Timbers.

As there are conflicting Court of Appeal judgments regarding the meaning of the phrase "parcels which are used for significantly different purposes" in s 60(3)(b) SMA, this panel may choose which judgment to be adopted - please refer to the judgment of the Federal Court delivered by Peh Swee Chin FCJ in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1, at 12 to 13.

With respect, we decide to follow the Court of Appeal cases in Muhamad Nazri and AUM Capital. In our view-

a MC can only impose different rates of Charges in a development area pursuant to s 60(3)(b) SMA if the parcels in the development area are "used for significantly different purposes"; and

a MC cannot impose different rates of Charges in a development area under s 60(3)(b) SMA merely on the ground that it is "just and reasonable" for the MC to do so. The following reasons support the above decision -

s 60(3)(b) SMA does not expressly provide for a "just and reasonable" test. If the legislature had intended for the application of the "just and reasonable" test in s 60(3)(b) SMA, such a test would have been easily inserted by Parliament in that provision;

s 60(3)(b) SMA is placed by our legislature in Chapter 3 {Management after first [AGM] of the [MC]} of Part V SMA [Cap. 3 (Part V) SMA]. According to s 2(1)(a) of the Interpretation Acts 1948 and 1967 (IA), Part 1 IA applies to the construction of SMA (enacted after 18.5.1967). Section 16 IA (in Part 1 IA) states as follows - "Notice to be taken of division into parts, chapters, etc.

Where an Act or subsidiary legislation is divided into parts or chapters or otherwise, the fact and particulars of the division shall, without express mention thereof in the Act or subsidiary legislation, be taken notice of in all courts and for all purposes whatsoever." (emphasis added). In Nor Hazliza bt Ismail & Anor v Mohamed Yusoff bin Shaik Madar [2024] 4 MLJ 770, at [11(1)], the Court of Appeal had applied s 16 IA in the construction of the CJA. It is clear from the placing of s 60(3)(b) in Cap. 3 (Part V) SMA and the heading of Cap. 3 (Part V) SMA that Parliament has intended for s 60(3)(b) SMA to apply to development areas after the first AGM of the MCs (such as in this case);

Parliament has employed the "just and reasonable" criteria in the following provisions in the SMA-

s 12(8) SMA - payment of Charges by purchasers of parcels in a development area to a developer (not the MC). Section 12 SMA is placed in Chapter 2 {Management by developer before [JMB] is established} Part IV SMA [Cap. 2 (Part IV) SMA]; and

(ii) s 52(7) SMA is placed in Chapter 2 {Management by developer before first [AGM] of [MC]} Part V SMA [Cap. 2 (Part V) SMA]. Premised on s 16 IA, the placement of ss 12(8), 52(7), the headings of Cap. 2 (Part IV) SMA and Cap. 2 (Part V) SMA, the legislature has intended for the "just and reasonable" test to apply to development areas before the first AGMs of the MCs; and

by reason of the maxim of statutory interpretation, generalia specialibus non derogant, to decide on the validity of the MC's Different Rates, the court can only apply the specific provision of s 60(3)(b) SMA and not the other provisions in the SMA [including the "just and reasonable" test in ss 12(8) and 52(7) SMA].

We are unable to accept the High Court's Decision ( $ 2^{\mathrm{n d}} $ Suit) because-

in accordance with the maxim of statutory interpretation, generalia specialibus non derogant, the learned High Court Judge should have only considered s 60(3)(b) SMA [not s 59(1)(b) SMA] to decide on the validity of the MC's Different Rates;

s 60(3)(b) SMA only allows the imposition of the MC's Different Rates provided that the "parcels" are used for "significantly different purposes". In this respect, the term "parcel" is defined in s 2 SMA and cannot include "common property" (also defined in s 2 SMA). In this respect, the High Court committed an error of law in accepting the MC's Different Rates by taking into account the fact that the Villa Proprietors have limited use of the Common Property (2 Towers);

in this case, the parcels in the Development Area, be they the Apartments or Villas, have the same use, namely, for residential purpose. The Apartments and Villas in this case cannot be used for "significantly different purposes" so as to justify the MC's Different Rates under s 60(3)(b) SMA; and

the construction of s 60(3)(b) SMA is a question of law which does not depend on the contents of the COB's Letter. Based on the above reasons, the MC's Different Rates are unlawful for being ultra vires s 60(3)(b) SMA (Invalid MC's Different Rates).

In view of the Invalid MC's Different Rates (as explained in the above paragraph 53), the following considerations are of no consequence:

the $ 1^{\mathrm{st}} $ Appellant ( $ 2^{\mathrm{nd}} $ Appeal) was previously a member of the Management Committee [elected under s 56(1) SMA] at the time the Invalid MC's Different Rates were imposed; and

the MC's Different Rates were unanimously passed at the MC's AGM. M. Our decision in the 2 $ ^{n d} $ Appeal

As explained in the above Parts G to I and L, we allow the $ 2^{\mathrm{n d}} $ Appeal with the following order:

the HC's Decision $ (2^{\mathrm{nd}} $ Suit) is set aside;

prayers (i) and (ii) in the $ 2^{\mathrm{n d}} $ Suit are granted, namely -

a declaration that the MC's Different Rates are invalid; and

with effect from today, a perpetual injunction under s 53 of the Specific Relief Act 1950 is granted to compel the MC to impose on the Villa Proprietors the same rate of maintenance charges as those imposed on the Apartment Owners;

with regard to prayer (iii), we decline to order the MC to recover the Shortfall (Maintenance Charges/Sinking Fund Contributions) from the Villa Proprietors. This is because the Villa Proprietors had not been made parties in the $ 2^{\mathrm{nd}} $ Suit and had not been accorded their right to be heard in respect of the $ 2^{\mathrm{nd}} $ Suit (and the $ 2^{\mathrm{nd}} $ Appeal thereafter) (in accordance with the second rule of natural justice); and

subject to allocatur fee, costs of the proceedings in the $ 2 ^{nd} $ Appeal and $ 2 ^{nd} $ Suit in an amount of RM15,000.00 shall be paid by the MC (not the members of the Management Committee) to the Appellants $ (2 ^{nd} $ Appeal). N. Whether the Cash Call (RM1.45 Million) and Resolution (EGM) are valid

Sections 51(2)(a) to (e) and 61(3) SMA provide as follows: "s 51. Developer to establish sinking fund account in the name of [MC]

The sinking fund account shall be used solely for the purposes of meeting the actual or expected capital expenditure necessary in respect of the following matters:

the painting or repainting any part of the common property which is a building or other structure;

the acquisition of any movable property for use in relation to the common property;

the renewal or replacement of any fixtures or fittings comprised in any common property and any movable property vested in the [MC];

the upgrading and refurbishment of the common property; and

any other capital expenditure as the [MC] deems necessary. s 61. Sinking fund account of the [MC]

Subject to section 52, for the purpose of establishing and maintaining the sinking fund account, the amount to be paid by the proprietors of the parcels or provisional blocks shall be a sum equivalent to ten per cent of the Charges imposed under subsection 60(3), unless otherwise determined from time to time at a general meeting of the [MC], but such contribution to the sinking fund shall not be less than ten per cent of the Charges." (emphasis added).

The sole issue in the $ 3^{\mathrm{rd}} $ Appeal is what is the extent of the MC's duty and/or power under the SMA to impose the Sinking Fund Contribution [MC's Duty/Power (Sinking Fund Contribution)].

Firstly, s 51(2)(c) and (e) SMA concern how the "sinking fund account" (defined in s 2 SMA) shall be "used" [not regarding the extent of the MC's Duty/Power (Sinking Fund Contribution)]. As such, the learned High Court Judge had erred in law by relying on s 51(2)(c) and (e) SMA to reach the High Court's Decision $ (3 ^{rd} $ Suit). Furthermore, by virtue of the maxim of statutory interpretation, generalia specialibus non derogant, only the specific provision of s 61(3) SMA [not s 51(2)(c), (e) SMA and any other provision in the SMA] can be considered by the court in deciding the MC's Duty/Power (Sinking Fund Contribution).

Secondly, s 59(1)(a) SMA imposes a duty on the MC "to properly maintain and manage the subdivided building or land and the common property and keep it in a state of good and serviceable repair". Section 59(1)(a) SMA is not relevant in the $ 3^{\mathrm{rd}} $ Suit because this provision does not provide anything regarding the extent of the MC's Duty/Power (Sinking Fund Contribution).

Thirdly, according to s 59(1)(c) SMA, the MC shall have a duty "to determine and impose the contribution to the sinking fund to be deposited into the sinking fund account for the purposes of meeting the actual or expected expenditure specified under subsection 51(2)" SMA {MC's Duty [Section 59(1)(c) SMA]}. The MC's Duty [Section 59(1)(c) SMA] must be read together with s 52(1), (3) and 61(3) SMA as follows:

according to s 2 SMA, the term "proprietor" has the meaning assigned to it in s 4 STA. Section 4 STA defines a "proprietor" to refer to a "parcel proprietor". By virtue of s 52(1) and (3) SMA, each "proprietor" "shall" pay the Sinking Fund Contribution of a sum equivalent to 10% of the Charges {Construction [Section 52(1) and (3) SMA]};

the Construction [Section 52(1) and (3) SMA] is supported by the opening words "Subject to section 52" which have been expressly inserted by Parliament in the first part of s 61(3) SMA $ \{1^{\mathrm{st}} $ Part [Section 61(3) SMA]}. The effect of the words "subject to" has been explained by Mohamed Dzaiddin FCJ (as he then was) in the Federal Court case of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72, at 94 to 95 and 97, as follows - "In our view, the question to be answered here is quite straightforward, viz whether the provisions in Part VII [Immigration Act 1959/63], being a special law, have the effect of prevailing over any inconsistent provisions in Parts I to VI [Immigration Act 1959/63] in their application to Sabah and Sarawak. The crux of Datuk Foo's [Sarawak State Attorney General] submission is that Part VII of the Act is a special law for East Malaysia and in its application to Sabah and Sarawak, the provisions in Part VII shall have the effect of prevailing over or overriding the inconsistent provisions in Parts I to VI. He reasoned that s 1(2) clearly provides that the Act shall apply throughout Malaysia subject to Part VII. He cited s 64(1) which states as follows: Without prejudice to the general operation of Parts I to VI (in East Malaysia as in West Malaysia), as a general law for Malaysia as a whole, those Parts shall also have effect, subject to and in accordance with this chapter, as a special law for each of the East Malaysian States as if for any reference to Malaysia (except in a reference to a Government in Malaysia) there were substituted a reference to the East Malaysian State. He submitted that the section enabled Parts I to VI to be applicable to Sabah and Sarawak as a separate unit for immigration purposes, but subject to and in accordance with Part VII as a special law for each of the East Malaysian states. Datuk Foo laid stress on the words 'subject to' by relying on the judgment of Neal J in Government of the Federation of Malaya v Surinder Singh Kanda [1961] 27 MLJ 121 at p 138: To test the conclusion to which I have come by following the method of approach adopted by the Attorney General in his argument and endeavouring to give to the words, 'subject to,' their ordinary meaning ... 'subject to' must mean from that point of view 'swallowed up' or 'negatived by'. In our opinion, there is much force in the submission of the learned State Attorney General that Part VII as a special law for East Malaysia prevails over the inconsistent provisions in Part I to VI of the Act. For the above reasons, we hold that the provisions in Part VII prevail over any inconsistent provisions in Parts I to VI in their application to Sabah and Sarawak as a special law." (emphasis added); and

the words "unless otherwise determined from time to time at a general meeting of the [MC], but such contribution to the sinking fund shall not be less than ten per cent of the Charges" in s 61(3) SMA $ \{2^{\mathrm{nd}} $ Part [Section 61(3) SMA] } are ambiguous. This is because there are two possible interpretations of the $ 2^{\mathrm{nd}} $ Part [Section 61(3) SMA], namely-

the MC has the power to pass a resolution at the MC's AGM and/or EGM which can increase the Sinking Fund Contribution to any amount in excess of 10% of the Charges $ \{1^{\mathrm{st}} $ Construction, $ 2^{\mathrm{nd}} $ Part [Section 61(3) SMA]}; or

the MC cannot pass a resolution at the MC's AGM and/or EGM which can increase the Sinking Fund Contribution to a sum exceeding 10% of the Charges { $ 2 ^{n d} $ Construction, $ 2 ^{n d} $ Part [Section 61(3) SMA]}. We accept the $ 2^{\mathrm{n d}} $ Construction, $ 2^{\mathrm{n d}} $ Part [Section 61(3) SMA] because -

the $ 2^{\mathrm{nd}} $ Construction, $ 2^{\mathrm{nd}} $ Part [Section 61(3) SMA] is supported by the opening words "Subject to section 52" in the $ 1^{\mathrm{st}} $ Part [Section 61(3) SMA]. Hence, the $ 2^{\mathrm{nd}} $ Construction, $ 2^{\mathrm{nd}} $ Part [Section 61(3) SMA] is in consonance with the $ 1^{\mathrm{st}} $ Part [Section 61(3) SMA];

(ii) if Parliament had intended the $ 1^{\mathrm{st}} $ Construction, $ 2^{\mathrm{nd}} $ Part [Section 61(3) SMA], the legislature would have employed the phrase "notwithstanding section 52" in the $ 2^{\mathrm{nd}} $ Part [Section 61(3) SMA]; and

(iii) if we have accepted the $ 1^{\mathrm{st}} $ Construction, $ 2^{\mathrm{nd}} $ Part [Section 61(3) SMA], MCs which are creatures of statute [please refer to the above sub-paragraph 41(4)(d)] , would have unlimited power to pass a resolution at the MC's AGM and/or EGM to increase the Sinking Fund Contribution to any amount in excess of 10% of the Charges! Such an outcome is contrary to the Social Legislation Construction (please refer to the above Part E). Premised on the above reasons, we decide that the Cash Call (RM1.45 Million) and Resolution (EGM) are invalid under s 61(3) SMA. O. Outcome of the 3 $ ^{rd} $ Appeal

As explained in the above Part N, the $ 3^{rd} $ Appeal is allowed and the following order is made:

the High Court's Decision $ (3^{\mathrm{rd}} $ Suit) is set aside;

prayers (i) to (iii) in the $ 3^{\mathrm{rd}} $ Suit are granted; and

costs of the proceedings in the $ ^{3 rd} $ Appeal and $ ^{3 rd} $ Suit in a sum of RM30,000.00 shall be paid by the MC (not the members of the Management Committee) to the Appellants $ ^{3 rd} $ Appeal). DATE: 20 MAY 2025 WONG KIAN KHEONG Judge Court of Appeal For the Appellants (in the 3 Appeals): Mr. M. Thayalan, Ms. Chong Jun Min & Cik Syifa Irdina Binti Sheikh Zulkifli (Messrs JA Yeoh) For the Respondent (in the 3 Appeals): Mr. Lee Khai, Mr. Lee Huai & Ms. Teh Chiew Yin (Messrs Ong and Manecksha)