Schedule
Schedule Part I, paragraph 3 of SMA and based on the definitions of ‘Tribunal’ and ‘Charges’ under section 2 of the SMA. [8] The counsel for the Defendant relied on the case of Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 7 CLJ 785 where the Court of Appeal had expressed their approval on the mandatory nature of the Arbitration Act 2005 to exclude the Court’s jurisdiction and argued that it is of the similar situation in the instant case of SMA. It was submitted that section 105 provides the word “shall” which, following the Federal Court’s decision in PP V Yap Min Woie [1996] 1 MLJ 169, it confers a mandatory unfettered jurisdiction upon the Tribunal by Parliament. [9] The Defendant’s counsel contended that section 106 of the SMA explicitly excluded to make way for filing claims with the Tribunal and thus Plaintiff’s claim does not fall within the exception of section 106 (1)(a) and (b) of SMA: 8 “106. Exclusion of jurisdiction of court. (1) Where a claim is filed with the Tribunal and the claim is within the Tribunal’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 – (a) the proceedings before the court were commenced before the claim was filed with the Tribunal; or (b) the claim before the Tribunal is withdrawn, abandoned or struck out.” [10] The counsel for the Defendant averred that the comprehensiveness of the SMA proves to show that the SMA is the most appropriate forum and pointed out to the provisions of the SMA relating to the conduct, procedure and powers of the Tribunal, its subsidiary legislation that is the Strata Management (Strata Management Tribunal) Regulations 2015 and the debates on the Strata Management Bill at Parliament. 9 [11] In relation to the joinder of action ground, the Defendant’s counsel asserted that the Plaintiff had lumped all the sums claimed for the 5 Separate Units together so that the amount claimed is over and above the statutory limitation of RM250,000.00. It was argued that if the Plaintiff had placed a claim per unit it would be impossible as the average monthly maintenance charges is RM750 each per month where if it were to be calculated at RM250,000 limitation would mean that it must be uncollected charges of 333 months, equivalent to 27 ¾ years for each unit whereas a 6 years limitation for a claim to be taken under a civil litigation would be caught by the limitation period. To which the Defendant claimed that the Plaintiff abusively adopted a non-mandatory and/or discretionary provision under Order 15 r 1(1)(a) ROC 2012 instead of justifying the joinder and show the causes of action in reference to the case of Harris v Ashworth [1962] 1 All ER 438. It was submitted that the Plaintiff is utilizing the ROC 2012 to circumvent the clear unambiguous SMA and placed reliance on the case Sistem Lingkaran Lebuhraya Kajang (SILK) v Inch Kenneth Kajang Rubber Ltd [2011] 1 CLJ 95 where the Court of Appeal struck down an attempt to utilize the provisions of the ROC 2012 to circumvent the clear unambiguous terms of the Land Acquisition Act 1960. 10 [12] It was argued by the Defendant’s counsel that if this appeal is not allowed, the objective of SMA would be defeated and counsel made reference to section 17A of the Interpretation Acts 1948 and 1967 and the Federal Court cases in relation to the objective and purpose of SMA, the case of Andrew Lee Siew Ling v United Overseas Bank [2013] 1 CLJ 24, the Federal Court case of Dato’ Seri Anwar Ibrahim (DSAI) v PP [2010] 4 CLJ 265 and the Federal Court case of Majlis 12. Agama Islam Wilayah Persekutuan (MAIWP) v Victoria [2016] 4 CLJ The Defendant’s counsel submitted that no prejudice will be placed on the Plaintiff if its claim is to be heard at the Tribunal and the irregularity can be cured under Order 1A and Order 2 of the ROC 2012, however in the latter, the Defendant’s counsel argued that this was not raised by the Plaintiff. Plaintiff’s Submission [13] The learned counsel for the Plaintiff submitted that the Defendant must file an application for a stay under Order 12 Rule 10 of the ROC 2012 for leave and not as an application to struck out, if the Defendant wish for the Court to transfer the matter to the Tribunal. The Plaintiff’s counsel submitted that for an Order 18 rule 19 ROC 2012 application, the Defendant must clearly show that the Plaintiff’s claim is obviously 11 unsustainable and referred to the authorities of Solai Realty Sdn Bhd v United Overseas Bank (M) Bhd [2013] 4 MLJ 545; Hap Seng Consolidated Bhd v Darinsok bin Pangiran Apan & Ors and another appeal [2014] 1 MLJ 335. The Plaintiff’s counsel asserted that the Defendant’s appeal must be dismissed based on several grounds based on sections 105(1), 106(2) and 78(2) of the SMA. [14] The Plaintiff’s counsel submitted that the jurisdiction of the court is stipulated under section 105(1) of the SMA where the monetary jurisdiction of the Tribunal is a sum not exceeding RM250,000.00 and this matter is excluded under section 106(1)(a) SMA because there was no claim filed before the Tribunal. In addition, the Plaintiff’s counsel also submitted from its written submission that following section 78(2) of the SMA: “(2) If any sum remains unpaid by the proprietor at the end of the period specified in the notice under sub-section (1) the management corporation or the subsidiary management corporation, as the case may be, may file a summons or claim in court of competent jurisdiction or before the Tribunal for the recovery of the said sum or, as an alternative to recovery under this section, resort to recovery under section 79. 12 [emphasis my own]” [15] It was asserted by the Plaintiff’s counsel that based on section 78(2) of the SMA, the SMA is clear in giving a choice to the parties on which forum they wish to commence action and the jurisdiction of the Courts have not been excluded. [16] In relation to the joinder of action, the counsel for the Plaintiff submitted that the Defendant’s counsel averment that the action brought for 5 Separate Units to circumvent the limitation of RM250,000.00 is baseless as the value of the claim as pleaded is RM623,500 which far exceeds the monetary jurisdiction of RM250, 000.00. The counsel for the Plaintiff does not deny that the Tribunal does exist to hear the matter but the choice of forum is provided for in the SMA to which the sum claim of RM623,571.04 would be higher as the Defendant has not paid a single cent to the Plaintiff. The Plaintiff’s counsel added that the joinder of action for the 5 Separate Units would save time and cost. THE SESSION COURT’S DECISION [17] The Sessions Court dismissed the Defendant’s application under Order 18 rule 19 ROC 2012: 13 “Alasan Penolakan Permohonan A.18 k.19 1. Defendan adalah pemilik 5 unit hartanah yang menjadi asas kepada tuntutan plaintif. Fakta berkenaan pemilikan 5 unit tersebut tidak dipertikaikan oleh defendan. Sebagai pemilik, defendan bertanggungan untuk membayar caj-caj penyenggaraan setiap bulan bagi kesemua hartanah yang dimiliki. Namun caj-caj tersebut seperti yang didakwa oleh plaintif, tidak dibayar. 2. Plaintiff telah memfailkan tuntutan di Mahkamah berdasarkan s. 78(2) APS 2013 kerana tuntutan yang difailkan melebihi bidangkuasa Tribunal PS. Berdasarkan s. 105(1) APS, bidangkuasa Tribunal PS tidak boleh melebihi jumlah RM250,000.00. 3. Sek. 78(2) dan s. 105(1) memperuntukkan berikut: ……… 4. Mahkamah berpendapat plaintif boleh menggabungkan tuntutan bagi 5 unit walaupun perjanjian jualbeli ditandatangani secara berasingan. Ini kerana kelima-lima unit adalah kepunyaan defendan dan tidak melibatkan 14 pemilik lain. Hartanah juga terletak di bangunan yang sama dan dengan cara ini dapat menjimatkan masa dan kos pihak-pihak. Berdasarkan alasan-alasan yang dinyatakan, Mahkamah telah menolak permohonan defendan di bawah A. 18 k. 19 dengan kos dalam kausa.” THE COURT’S FINDING [18] For Order 18 rule 19 of the ROC 2012 application, the legal principle is that the applicant must prove that the opponent’s claim for the summary process under Order 18 rule 19 should be exercised sparingly, only in plain and obvious case. The burden to prove that the case is obviously unsustainable based on any of the four limbs stipulated under parts (a) or (b) or (c) or (d) of Order 18 rule 19 rests with the applicant. There is an abundant of authorities on this and I refer to the authorities submitted by both counsels, the Federal Court’s case of Bandar Builder (supra) attributed by the Defendant’s counsel and the case of Solai Realty (supra) as referred by the Plaintiff’s counsel. [19] Order 18 rule 19(1) of the ROC 2012 which is about striking out pleadings and endorsements provides that, 15 “19(1)The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) It discloses no reasonable cause of action or defence, as the case may be; (b) It is scandalous, frivolous or vexatious; (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is an otherwise an abuse of the process of the Court, And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under subparagraph (1)(a). (3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” What is meant as ‘obviously unsustainable’ had been scrutinised in a plethora of cases. The root word is not ‘unsustainable’ but rather the 16 word ‘obviously’ which denotes that on the face of it, the claim must be plainly or evidently unsustainable in law: Pet Far Eastern (M) Sdn Bhd v Tay Young Huat [1999] 5 MLJ 558. [20] Based on the Defendant’s application, the issue is whether the plaintiff’s claim is unsustainable that is whether its pleading is ‘scandalous’, frivolous’ or ‘vexatious’ and an abuse of the court process. The heart of the matter as contended by the Defendant that the Plaintiff’s claim should be struck out revolves around the Court’s jurisdiction under SMA. [21] The definition as to what entails to be ‘scandalous’ ‘frivolous’ or ‘vexatious’ can be found in the case of Solai Realty (supra) where in reference to the English case of Murray v Epsom Local Board [1897] 1 CH 35, it was held that, “.. ‘scandalous’ generally refers to matters which improperly cause a derogatory light on someone, usually a party to an action, with respect to moral character or uses repulsive language. …. The words ‘frivolous’ or ‘vexatious’ generally refer to a groundless action with no prospect of success, often raised to embarrass or annoy the other party to the action.” 17 [22] This Court also wish to rely on a recent decision of the Court of Appeal in Tan Wei Hong and 4 Others v Malaysia Airlines System Berhad and 4 Others, Civil Appeal No.: W-01(NCVC)(W)-125-04/ 2016 where the principles applicable in striking out application had been meted out as guidance, and the definition of ‘abuse of process’ was looked into which the Court of Appeal finds that, “… A pleading is an abuse of process if the litigation process is used for improper purpose; e.g. where the proceedings constitute a sham; where the process of the Court is not being fairly or honestly used, or is employed for some ulterior or improper purpose;” [23] Upon careful perusal of the Plaintiff’s Statement of Claim, it is of the view that the factual allegations, if proven, clearly disclosed a cause of action based on a statutory breach. I do not see anything baseless or scandalous, nor frivolous, of the Plaintiff’s Statement of Claim where the particulars for the recovery sum is as detailed at paragraph 11 of the Statement of Claim. [24] In relation to the issue of Tribunal’s and the court’s jurisdiction under the SMA, the provisions must be scrutinized to ascertain the 18 meaning of the provisions on the establishment of the Tribunal and the court’s jurisdiction. Section 105 of SMA provides for the jurisdiction of the Tribunal and section 106 SMA provides for the exclusion of jurisdiction of court which both provisions are reproduced here for easy reference: “105. Jurisdiction of Tribunal (1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part I of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount. (2) For the avoidance of doubt, the Limitation Act 1953 shall not apply to the proceedings of the Tribunal. (3) The jurisdiction of the Tribunal 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.” 19 “106. Exclusion of Jurisdiction of court. (1) Where a claim is filed with the Tribunal and the claim is within the Tribunal’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 – (a) the proceedings before the court were commenced before the claim was filed with the Tribunal; or (b) The claim before the Tribunal is withdrawn, abandoned or struck out. (2) Where paragraph (1)(a) applies, the issues in dispute in the claim to which those proceedings relate, whether as shown in the initial claim or emerging in the course of the hearing, shall not be the subject of proceedings between the same parties before the Tribunal unless the claim before the court is withdrawn, abandoned or struck out. 20 (3) For the purpose of this section, a claim shall be deemed to have been made with the Tribunal when section 108 has been completed.” [25] In interpreting a provision of a statute, I viewed that the subsections and the parts of the same clause of the parent Act must be read as a whole. I refer to the authority by M.N. Rao, Amita Dhanda in N S Bindra’s Interpretation of Statutes, Tenth Edition, 2007 at page 690, that the presumption and legal intendment is that each and every clause in a statute has been inserted for some useful purpose and therefore, the instrument of the Act must be read as a whole to ascertain both its intent and general purpose, also the meaning of each part. The same authors illustrate that the court is not only to look at the words, but has to look at the content, the collection and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed. [26] Other than sections 105 and 106 of SMA, section 78(2) SMA also provides the provision relating to filing a summons or claim in court or before the Tribunal by the management corporation or the subsidiary management corporation. Section 105 of SMA spells out the limitations of the Tribunal which is stated clearly that the claim must not exceed 21 RM250,000.00 and the jurisdiction of the Tribunal is limited where it “shall not extend to any claim” to title to any land, or estate or interest in land or any franchise. Section 106 of SMA comes with subsection (1)(a) and (b), subsections (2) and (3). Subsection (1) started off by stating “Where a claim is filed with the Tribunal..”, that it shall not be the subject of the proceedings in any court, unless the proceedings in court had commenced before the claim filed in Tribunal or where the claim before Tribunal had been withdrawn, abandoned or struck out. In ascertaining the true meaning of jurisdiction in filing a claim, I viewed that section 105 and section 106 SMA cannot be read without section 78(2) SMA. [27] Section 78 of SMA is in relation to the procedure for recovery of sums due. Section 78(1) states that where a sum becomes recoverable by the management corporation from a proprietor, the management corporation may serve on the proprietor a written notice demanding payment of the sum due within the period as specified in the notice which shall not be less than two weeks from date of service. Section 78(2) states that if any sum remains unpaid by the proprietor at the end of the period specified in the notice based under subsection (1), the management corporation may file a summons or claim in a court or before the Tribunal or resort to recovery under section 79. 22 [28] Consequently, the heading of a section alone cannot be relied upon to ascertain the meaning of the section. Section 106’s heading stated as “Exclusion of Jurisdiction of Court” which by interpreting it in isolation with the rest of the paragraphs will not give the true meaning of the whole section 106 SMA. The same authors in N S Bindra’s Interpretation of Statutes also viewed that it would be a fundamental error to detach the first portion of a section and settle its meaning first by ignoring the rest of the section, and then proceed to apply remainder of the section on the basis that the meaning of the first part is already fixed. The Court viewed that the Defendant’s counsel’s submission on section 106(1) was without in reference to subsections (2) and (3). This Court holds the view that sections 105 and 106 must be read as whole and perhaps the whole Act, to ascertain the meaning of the Tribunal’s jurisdiction. It is the same authors’ view that no provision of a statute can be read in isolation as it has to be construed with reference to the context and in the light of other provisions: V Tulasmma v Sesha Reddy [1977] SCC 99. [29] Section 106 (1)(a) SMA states that if there was a claim filed before the Tribunal and within the Tribunal’s jurisdiction, issue in dispute shall not be subject of proceedings unless for the reasons under parts (a) or (b) of subsection (1). The reasons which is either part (a) or (b), 23 clearly shows that issue in dispute shall not be subject of court’s proceedings unless the proceedings before the court commenced before the claim was filed with the Tribunal or the claim is withdrawn, abandoned or struck out. Subsection (2) of section 106 further emphasized the application of subsection (1)(a), the issue in dispute shall not be subject of proceedings between the same parties before the Tribunal unless the claim before the court is withdrawn, abandoned or struck out. [30] Upon careful reading of section 106(1) SMA, it throws some light that if the claim had been filed with the Tribunal, the same issues in dispute cannot be filed at the court unless the matter filed at the court commenced before the claim was filed with the Tribunal, or the claim before the Tribunal is withdrawn, abandoned or struck out. I seemed to be repeating the provision as there is no other way to interpret it as the wording is straightforward, it literally states what it means. Section 106(1) SMA clearly does not provide the mechanism to file a claim concurrently unlike in the Construction Industry Payment and Adjudication Act 2012 (CIPA) which provides the enabling provision to file concurrently, giving the claimant the choice to settle its claim at three different dispute settlement mechanisms. 24 [31] Under the CIPA, the effect of adjudication decision is binding unless it is set aside by the High Court or settled by written agreement between parties or the dispute is finally decided by arbitration or the court: section 13(a), (b) or (c) CIPA. In addition, under section 16(1)(a) and (b) CIPA, a party may apply to the High Court for a stay of an adjudication decision in the circumstances, either when an application to set aside the adjudication decision under section 15 has been made (section 16(1)(a) CIPA) or, the subject matter of the adjudication decision is pending final determination by arbitration or the court: section 16(1)(b) CIPA. [32] It is also worth mentioning here that the decisions of the Tribunal is final and binding to the proceedings as provided under section 120 SMA. Under section 120(1)(a) and (b) SMA the Tribunal’s award shall be final and binding on all parties and the award by the Tribunal “be deemed to be an order of a court and be enforced accordingly by any party to the proceedings”. It is crystal clear that the SMA does not provide the concurrent mechanism to file a claim at the court and Tribunal simultaneously where in the latter, the Tribunal’s award shall be binding on all the parties to the proceedings. 25 [33] The Defendant’s counsel pointed out section 17A of the Interpretation Acts 1948 and 1967 submitting that section 106 SMA should be given the purposive interpretation. Section 17A of the Interpretation Acts 1948 and 1967 embodies the concept of purposive approach which the Federal Court in the case of Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 adopted the position taken by the House of Lords in Pepper v Hart [1993] AC 593 that, on the construction of the statute that would promote the purpose or object underlying a particular Act to allow reference to White Papers, official reports and ministerial statements as a guide to interpretation of statues, Lord Griffiths observed, “.. The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. …” [34] I have touched on the purpose of enacting the Strata Management Act 2013 in one of my decisions this year, in the case of Saujana Triangle v JMB Perdana No.Rayuan Sivil: 12ANCVC-77-08/2016 on a summary judgment claim, by referring to the Hansards, that is the 26 debates at the Parliament (the Second Reading of the Strata Management Bill 2012 (the SM Bill) of 29.9.2012 and at the Senate of 19.12.2012) where the lacuna was identified in the implementation of the Building and Common Property (Maintenance and Management) Act 2007 (Act 663) (BCPA 2007). The SM Bill 2012 was tabled with the Strata Titles (Amendment) Bill 2012 to ensure that the amendments in both legislations are synchronised. The Minister for Housing and Local Government had stated, among others, “… Selain daripada itu juga, rang undang-undang ini juga telah pun mengambil kira peralihan akaun secara automatik kepada jawatankuasa baru JMB atau pun MC yang telah dipilih dalam tempoh tiga bulan bagi mengelakkan sebarang urusan dan transaksi berkaitan penyelenggaraan dan pengurusan bangunan terganggu yang akhirnya memberi kesan kepada penghuni secara keseluruhannya; dan (xi) antara elemen penambahbaikan yang paling penting adalah kewujudan tribunal pengurusan strata yang akan diwujudkan di bawah rang undang-undang ini. Dengan prinsip mudah dan cepat, perwujudan tribunal akan memberikan akses yang mesra pengguna kepada semua pihak yang tidak berpuas hati untuk 27 menyalurkan tuntutan berkaitan penyelenggaraan dan pengurusan kepada tribunal tersebut. “…. Satu bab khusus berkaitan pertikaian yang melibatkan isu penyelenggaraan dan pengurusan bangunan berstrata. Pertama, ianya melibatkan pelantikan pegawai undang-undang untuk menganggotai tribunal. Tribunal pengurusan strata mempunyai kuasa untuk memutuskan keseluruhan award tidak melebihi RM250,000. Terdapat 24 klausa yang disusun secara komprehensif merangkumi bidang kuasa tribunal, pengecualian kuasa mahkamah, kriteria responden, tatacara persidangan tribunal, kehadiran perbicaraan, persidangan terbuka, rundingan penyelesaian, pelantikan pakar oleh tribunal, award tribunal, rujukan kepada mahkamah tinggi, pelupusan dokumen dan prosedur mencabar keputusan tribunal, semua adalah telah pun tertera dengan begitu jelas sekali dalam rang undang-undang ini.” 28 [35] The debate mentioned the headings in general pertinent to the establishment of the tribunal under SMA where the details had been agreed and as passed at Parliament. As revealed in the partly extracted Hansard, the purpose of establishing a tribunal under the SMA was to facilitate claims under SMA in expeditious manner where the limitation of the claim is capped at RM250,000.00. Reading the debate as a whole, the establishment of a tribunal under SMA was to cater for the increasing complaints relating to strata title properties and the issues one of which, the refusal of proprietors to pay maintenance charges, as pointed out by the Defendant’s counsel at the second paragraph of page 88 of the House of Representatives’ debate of 16.11.2012. [36] For this reason, the relevant provisions on the establishment and jurisdiction of the Tribunal must be read as a whole. In this case, I do not see any ambiguity in sections 78, 105 and 106 of SMA. The provisions clearly stated that the claims under SMA can be filed at the court or at the Tribunal and in the latter, it is within the limitations provided and that it has not commenced in court following section 106. Therefore the purposive approach for interpretation would be irrelevant. This is consistent with the Federal Court’s case of Andrew Lee Siew Lind v United Overseas Bank [2013] 1 CLJ 24 attributed by the Defendant’s counsel that where the language of a provision is plain and 29 unambiguous, section 17A of the Interpretation Acts 1948 and 1967 will have no application as the question of another meaning will not arise: “…Thus, it is only when a provision is capable of bearing two or more different meanings can section 17A be resorted to in order to determine the one that will promote the purpose or object of the provision. Such an exercise must be undertaken without doing any violence to the plain meaning of the provision. …” [37] Upon careful scrutiny of sections 78(2), 105 and 106 of SMA, this Court finds that they are not provisions relating to the object of the SMA or provisions on the general functions of the SMA where the construction of the provisions may connote a wide meaning. Sections 78(2), 105 and 106 SMA clearly meted out the jurisdiction of the tribunal and the limitations and Parliament will not allow such construction to be in differing meanings as it would render the whole purpose of establishing a tribunal and court’s jurisdiction as meaningless. The Court viewed that the Court has jurisdiction to hear a claim under SMA, particularly where the amount of claim exceeds RM250,000.00. 30 [38] In relation to the case of Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 7 CLJ 785 as referred by the Defendant’s counsel where the Court of Appeal had expressed their approval on the Arbitration Act 2005 to exclude the court’s jurisdiction, in that case, it involves a construction dispute in reference to an arbitration agreement and the defendant filed for a stay pending arbitration before filing its defence against the plaintiff’s writ and statement of claim. The Court of Appeal in that case referred to section 10 of the Arbitration Act 2005 where at page 802, it stated that section 10 provides a mandatory stay of court proceedings where there is an arbitration agreement unless the arbitration agreement is null and void, inoperative or incapable of being performed, or that there is in fact no dispute between the parties with regard to the matters to be referred. [39] This Court finds that section 10 of Arbitration Act 2005 had since been amended where the court under section 10(1)(b) order a stay of arbitration if there is no dispute between the parties, had been removed under the Arbitration (Amendment) Act 2011 and the remaining precondition for a stay of proceedings to be granted is that the agreement is not null, void, inoperative and incapable of performance. In addition, the court’s jurisdiction under section 8 of the Arbitration 31 Act 2005 was also amended. The original section 8 of Arbitration Act 2005 reads as follows: “Unless otherwise provided, no court shall intervene in any of the matters governed by this Act.” [40] This Court finds that section 8 of Arbitration Act 2005 had been amended under the Arbitration (Amendment) Act 2011 as the provision was unclear to court’s jurisdiction and the new section 8 now reads: “No court shall intervene in matters governed by this Act, except where so provided in this Act.” Referring to the ‘Annotation to the Malaysian Arbitration Act 2005 (Amended 2011)’ by the Kuala Lumpur Regional Centre for Arbitration (KLRCA), 2013, the Explanatory Notes to the Amendment Bill 2011 provides the rationale to the amendment which its purpose is to limit court intervention to matters specifically covered by the provisions of the parent Act and to discourage the invocation of the court’s inherent powers. The SMA was enacted in 2012 and this Court finds that there is no similar provision as stipulated in the amended Arbitration Act 2005 in 32 the SMA, to exclude court’s intervention. In view of the latest legal position under the Arbitration Act 2005, the Albilt Resources (supra) case must be distinguished from the current case. [41] In relation to the Defendant’s counsel’s argument of joinder of action by the Plaintiff, this Court viewed that the 5 Separate Units belong to the same and one person which is the Defendant. The Court viewed that the 5 Separate Units are of the same cause of action that is for the recovery of the Charges from the Defendant and the claim as pleaded by the Plaintiff is RM623,571.04 as at 29.12.2015 which exceeds the RM250,000.00 limitation imposed under the SMA. [42] For the purpose of completeness, regarding Defendant’s counsel’s submission to invoke Order 1A of the ROC 2012, this Court’s stands is that where there is a breach of mandatory provision under the ROC 2012, this Court will not invoke Order 1A as it is not curable: Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor [2009] 4 CLJ 329. This Court holds the view that there is no procedural irregularity in this case and Plaintiff’s claim is not scandalous or vexatious nor it is an abuse of court process to warrant Plaintiff’s claim as unsustainable within the meaning of Order 18 rule 19 of the ROC 33 2012. This Court finds that there is a clear demarcation of jurisdiction of the Tribunal and the court’s under the SMA and the Plaintiff’s claim is legally provided under the SMA to be brought before the court. In light of the above reasons, I dismiss the appeal. Dated: 9 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 34 COUNSEL FOR THE APPELLANT/DEFENDANT: WILSON LIM YEAP POAY NEE Tetuan Teoh Pek Wei 33.9, Level 9, The Boulevard Mid Valley City 59200 Kuala Lumpur [Ruj: TPW.L.2373.16/PN] Tel : 03-2282 8228 Faks : 03-2282 6692 COUNSEL FOR THE RESPONDENT/PLAINTIFF: EUNICE ONG Tetuan Eunice Derek & Co Suite B-06-02, 6th Floor, Gateway Corporate Suites No. 1 Jalan Desa Kiara 50480 Mont Kiara, Kuala Lumpur [EDCO/587/CBD/2015/LIT/EO/SH] Tel : 03-6201 4087 Faks : 03-6201 4085