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) 23/07/2025 16:28:46 22NCVC-586-10/2013 Kand. 306 S/N jSbkwvQkGkyyf4zdYlX46w

TAN CHING WEI

ONG POO LIAN

DR. ABDUL AZIZ BIN HJ KECHIL

IR. YAP YEE HOCK (NO. K/P: 640221-06-5031) … DEFENDAN-DEFENDAN

The Plaintiff applied under Order 52 Rule 2 and 4 of the Rules of Court 2012 (“the Rules”) to cite the Defendants for contempt of paragraph 1 and 2 of a High Court Judgment dated 22/6/2017.

The Plaintiff had obtained a mandatory injunction at the High Court against the Defendants for the management and maintenance of the property referred to as 3 Two Square.

Order 52 Rules 2 and 4 stipulates as follows:

Committal for contempt of Court (O. 52 r. 2) S/N jSbkwvQkGkyyf4zdYlX46w The Court may, on the application of any party to any cause or matter or on its own motion, make an order of committal in Form 107.

Application for order after leave to apply granted (O. r. 4)

When leave has been granted under rule 3 to apply for an order of committal, the application for the order must be made by notice of application to the Court, and, unless the Court granting leave has otherwise directed, there must be at least eight clear days between the service of the notice of application and the day named therein for the hearing.

Unless within fourteen days after such leave was granted the notice of application is filed, the leave shall lapse.

Subject to paragraph (4), the notice, accompanied by a copy of the statement and affidavit in support of the application for leave under rule 3 and the order granting such leave, must be served personally on the person sought to be committed.

Without prejudice to the powers of the Court or Judge under Order 62, rule 5, the Court or Judge S/N jSbkwvQkGkyyf4zdYlX46w may dispense with service of the notice under this rule if it or he thinks it just to do so. Brief facts

The Plaintiffs is the Developer of the property 3 Two Square which comprises a mixed development property comprising several blocks of 5 storey buildings, office towers, basement parcels, management units, public toilets and parking bays.

The 1st Defendant is the Management Corporation of the said property whereas the other Defendants are committee members of the 1st Defendant.

The Plaintiffs had earlier applied to this Court for consequential orders to the said High Court Judgement. This Court ruled that as Judgment had already been entered by the High Court the Judgment could now not be varied or expanded. The Court then dismissed the application for consequential order.

The Plaintiffs then proceeded through this application to cite the Defendants for contempt of the original High Court Judgment dated 22/6/2017. The High Court Judgment dated 22/6/2017

For ease of reference paragraphs 1 and 2 of the High Court Judgement are reproduced here: S/N jSbkwvQkGkyyf4zdYlX46w MAKA ADALAH PADA HARI INI DIHAKIMI seperti berikut :-

Satu Injuksi Mandatori terhadap Defendan Pertama dan ahli majlis (“council members”) buat masa kini dan masa hadapan untuk melaksanakan obligasi dan tugas dengan menyelenggara secara sesuai dan sempurna segala harta Bersama termasuk yang berikut :- i) Lift dalam Crest Tower (Block F); ii) Central cooling tower di Crest Tower (Block F); iii) Tandas awam di Crest Tower (Block F); iv) Tingkat kaca dan ruang depan (“facades”) untuk

(vi) Semua ruang atau kawasan bersama/umum dalam Crest Tower (Block F); dan

(vii) Semua ruang Bersama/umum di Kawasan tempat letak kereta di Pembangunan yang dikenali sebagai 3 Two Square yang mempunyai alamat pos Dataran 32, No. 2, Jalan 19/1, 46300 Petaling Jaya, Selangor Darul Ehsan.

Satu Deklarasi bahawa Defendan Pertama adalah berobligasi untuk menyelenggara semua harta-harta bersama (‘common area’) di Crest Tower (Blok F), central cooling tower di Crest Tower (Block F), dan Kawasan Bersama di tempat letak kereta. S/N jSbkwvQkGkyyf4zdYlX46w The basis for the application

The Plaintiff contends that the Defendants have refused to pay or taken steps to take over the payments of the electric charges imposed by Tenaga Nasional Berhad (“TNB”) for the usage of electricity in the common area at Menara Crest (Block F) which includes the Central Cooling Tower and corridor lights.

The other non-compliance by the Defendants is failing to manage and repairing the air condition units, water treatment for the use of the Central Cooling Tower.

The final non-compliance is failing to maintain the latrines in the common area as well as failing to supply tissue papers and soap in the latrines. Law on committal order

In the case of Tan Sri (Dr) Rozali Ismail & Ors V Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458 the Federal Court classified 2 types of contempt of court i.e. “(1) a specific conduct of contempt for breach of a particular court order; or (2) a more general conduct for interfering with the due administration or the course of justice”

In this case it is clear that the Plaintiff’s application for contempt against the Defendants is in relation to a specific conduct for the breach of a particular court order. The specific conducts have been S/N jSbkwvQkGkyyf4zdYlX46w identified and elaborated to in the application as the basis for the application.

The case of Peguam Negara Malaysia V Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652 highlights 2 principles in order to succeed in an application for committal i.e. first the burden of proof lie upon the person who alleges contempt and that secondly the standard of proof is beyond reasonable doubt.

In this case as the Plaintiff alleges a specific conduct against a specific High Court Judgment the Court chose to look at the High Court Judgment itself instead of considering decision in the Court of Appeal as submitted by the Defendants.

A glaring fact noticeable from the High Court Judgment is that it gives a general order for the Defendants to manage and maintain the common properties. The Judgment do not specifically make any particular order that in order to manage and maintain the Defendants are to pay the electric charges or clean the toilets or supply soap and tissue papers.

In short, the Court rules that the High Court Judgment is ambiguous as to the manner the Defendants are to manage and maintain the common properties. Where there is an ambiguity the Courts have decided that the ambiguity should be resolved in favor of the alleged contemnor and if there is a doubt the doubt must be resolved in favor of the alleged contemnor. (See Wee Choo Keong V MBF Holdings Sdn Bhd & Anor [1993] 3 CLJ 210; Tan Kang Ho V mao Sheng marletting (M) Sdn Bhd & Ors [2015] 4 CLJ 113). S/N jSbkwvQkGkyyf4zdYlX46w

In this case the Court also rules that this application by the Plaintiff fro contempt is not bona fide but a means to pressurize the Defendants to undertake tasks which has not been specifically directed by the Court. The Plaintiff should have instead when applying for the mandatory injunction applied for specific orders from the court.

A final point observed by the Court is that there is an inordinate delay in enforcing the High Court judgment by bringing this application for contempt. This is especially so since as alleged by the Plaintiff that they had to bear the expenses which was supposed to be borne by the Defendants, there should have been some urgency in enforcing the judgement.

Based on the factors above the Court dismissed the Plaintiff’s application for contempt against the Defendants with a cost of RM10,000. Dated: 21.7.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N jSbkwvQkGkyyf4zdYlX46w 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, Aqil Nasharuddin. 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 S/N jSbkwvQkGkyyf4zdYlX46w

Tan Sri (Dr) Rozali Ismail & Ors V Lim Pang Cheong @ George

Peguam Negara Malaysia V Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652;

Wee Choo Keong V MBF Holdings Sdn Bhd & Anor [1993] 3 CLJ 210; Tan Kang Ho V Mao Sheng Marletting (M) Sdn Bhd & Ors [2015] 4 CLJ 113). S/N jSbkwvQkGkyyf4zdYlX46w