3 Two Square Sdn Bhd v 1. ) Perbadanan Pengurusan 3 Two Square (22NCVC-586-10/2013)

1.

FOO ANN WAN

HOOI YOU VON

LOH KIM TONG @ WONG AH WAH

LIM E @ LIM HOON NAM (NO. K/P: 440619-01-5425)

TAN CHING WEI

ONG POO LIAN

DR. ABDUL AZIZ BIN HJ KECHIL

IR. YAP YEE HOCK (NO. K/P: 640221-06-5031) … DEFENDAN-DEFENDAN Introduction 1. The Plaintiff applied under order 1A, Orde2 Rule 1 and Order 92 Rule 4 of the Rules of Court 2012 (“the Rules”) for an order that the 1st Defendant comply with paragraphs 1 and 2 of a judgment dated 22/6/2017 with regards to the common facility of Central cooling Tower (Blok F).

The provision of the law contained in the Rules 2012 relied by the Plaintiff in making this application are reproduced here and are as follows: Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules.

Non-compliance with Rules (O. 2 r. 1)

Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

Inherent powers of the Court (O. 92 r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. Brief facts

The dispute in this case was between the developer of a mixed development project known as “3 two square”( “the property”) and the 1st Defendant the management body of the property and the 2nd to the 9th Defendants the committee members of the 1st Defendant.

The dispute culminated in a High Court judgement dated 22/6/2017 whereby the High Court allowed a mandatory injunction ordering the Defendants to maintain the common areas as specified in the judgement.

On appeal the Court of Appeal affirmed the High Court judgement and no further leave to appeal was filed by the Defendants.

However in a separate appeal before the Federal Court the Federal Court affirmed that the Defendants had the duty to bear the cost of the electric charges for the chiller and the cooling tower

It is the allegation of the Plaintiff in this case that the Defendants have failed to comply with the order to pay the electric charges as directed by the Court and had also failed to pay for the upkeep of maintaining the common areas.

This has resulted in the Plaintiff continuing to pay for the electric charges and maintain the common areas. The sums of money spent is specified in the affidavit in support of the application.

What the Plaintiff is seeking from this Court in this application is basically for this Court to direct the Plaintiff to comply with the Court Judgments. The Court’s decision Affidavit in support 10. The Court in deciding the Plaintiff’s application first looked at the affidavit in support of the application. The affidavit in support was affirmed by Gowry Vadivelu who gave his work address as “Penthouse, The Crest, 3 Two Square, No. 2 Jalan 19.1, 46300 Petaling Jaya.

The said Gowry Vadivelu has represented himself to be the “Peguam In-House/Pengurus Undang-Undang Plaintiff” and further contended that he was authorized by the Plaintiff to affirm this affidavit in support of this application.

It is trite law that all facts stated in the affidavit must be verified and be supported by the relevant documents. In this case the said Gowry Vadivellu has not exhibited any document to verify that he is an appointed in house lawyer or the legal manager for the Plaintiff.

The Plaintiff has also not annexed any authorization letter from the Plaintiff to show that he has been empowered to affirm the affidavit in support or filing this application in the first place.

It is also to be noted that the registered business address of the Plaintiff is at No. 14-2, Jalan 4A/27A, Section 2, Wangsa Maju, 53300 Kulala Lumpur. This address is different from the work address given by the so called in house lawyer.

In short the Court rules that not only the affidavit in support but by extension the whole application itself is defective and can be dismissed summarily. Provision of the law 16. It is clear also that the provisions of the law relied upon by the Plaintiff in the application are inapplicable, erroneous and irrelevant. Order 1A and Order 2 of the Rules merely stipulates that the non-compliance with the Rules of Court to are to be regarded as irregularity rather than illegality. These provisions do not even remotely empower the Court to give the orders applied in this case.

Meanwhile Order 92(4) is a residual power of inherent jurisdiction given to the Court to prevent injustice. What the applicant seeking here is an enforcement of judgment which has been delivered by the apex court as well the appellate court.

The proper provision of law applicable in this case is for the Plaintiff to enforce the judgment under Order 45 of the Rules. Order 45 of the Rules stipulates as follows:

Enforcement of judgment or order for payment of money (O. 45 r. 1)

Subject to the provisions of these Rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced by one or more of the following means:

a writ of seizure and sale;

garnishee proceedings;

in a case in which rule 5 applies, an order of committal.

In addition to rule 1(1) and subject to the provisions of these Rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced in the High Court by one or more of the following means:

a charging order; and

the appointment of a receiver.

Subject to the provisions of these Rules, a judgment or order for the payment of money into Court may be enforced in a case in which rule 5 applies, by an order of committal.

In addition to rule 1(2) and subject to the provisions of these Rules, a judgment or order for the payment of money into Court may be enforced in the High Court by the appointment of a receiver.

Paragraphs (1) and (2) are without prejudice to any other remedy available to enforce such a judgment or order as is therein mentioned or to the power of a Court under the Debtors Act 1957 [Act 256] to commit to prison a person who makes default in paying money adjudged or ordered to be paid by him, or to the written law relating to bankruptcy or the winding up of companies.

In this Order, references to any writ shall be construed as including references to any further writ in aid of the first-mentioned writ. Conclusion 19. For the reasons above the Court dismissed the Plaintiff’s application with a cost of RM5, 000. Dated: 12.6.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Gurdial Singh Nijar, Raymond Mah Mun Kitt, John Chan Chia Yoong, Abraham Au Tian Hui, Daphne Rethual, Tharani Kunasekara Tetuan Mah Weng Kwai & Associates Level 10-1, Tower B, Menara Prima, Jalan Pju 1/39, Dataran Prima, 47301 Petaling Jaya, Selangor. For the Defendant: Nama Peguamcara: David Samuel & Sheena Sebastian Tetuan Chambers Of Firdaus Unit J-5-1, 5th Floor Parklane Commercial Hub Jalan SS7/26, Kelana Jaya 47301 Petaling Jaya Selangor Darul Ehsan