Armanee Condominium Joint Management Body v Burgess Rawson Management Sdn. Bhd. (BA-12B-55-06/2024)

Unproven staff costs billed as overtime and prior undercharging; and

Set off by cross-claim for the Pl of the agreement. No other specific triable issues were raised on the Statement of Account. Staff Costs [6] The Statement of Account showed the following disputed claims:

undercharged staff costs (May 2022, Dec 2022 and Jan-Mar 2023) totalling RM11,443.96

overtime staff costs (July - Nov 2022) totalling RM19,686.01 [7] The Plaintiff argued that the Defendant had acknowledged the debt by the part payments made and further, in a WhatsApp by an employee of the new property agent that the Plaintiff was asked to liaise with on the handover. The Defendant disputed this because the part payment was towards specific admitted items in specific invoices only, and the employee of the new property agent was only tasked to deal with handover issues. [8] The Defendant was admittedly responsible for paying the cost of staff employed by the Plaintiff to do the property management work under the Agreement, but the complaint was that the claim amount was inflated and lacked substantiation. The Defendant further contended that when the Statement of Account was paid down the account in October 2023, the disputed staff claims were specifically excluded from the part payment because they were unproven claims. [9] In reviewing the affidavit evidence, this Court found that the overtime costs were issued together with a summary breakdown that included the overtime claims attributed to named employees. However, the evidence was inconclusive in that there were no supporting documents accompanying the breakdown, such as:

attached time sheets of the employees concerned; or

proof of payment of the alleged overtime claims to the employees concerned. Likewise, the quality of the evidence in support of the retrospective billings for undercharged staff costs from prior months was lacking. [10] In moving the Court for summary judgment, the burden of proving a prima facie case is on the Plaintiff and in this case, this Court was not satisfied that there was sufficient proof of the disputed staff costs to justify summary judgment. There was notably also no evidence (either as an averment on affidavit or documentary proof) of a course of conduct where such claims had been accepted and paid based on just the summary breakdown of staff costs provided. [11] The Court considered and was not inclined to use the doctrine of estoppel against the Defendant who is a JMB as judicial notice is taken of the fact that the JMB comprises of volunteer residents who in this case, did not mobilize their collective responses in a timely fashion. Cross claim [12] The Defendant had a counterclaim against the Plaintiff for the sum of RM556,387.85 being damages for alleged breach of the Agreement. Among other things, the Defendant had complained that the Plaintiff failed in their duties by allowing residents accounts to remain in arrears under their watch without any remedial action. [13] The issues raised in submissions were pleaded in the Defence as a set off. Following Asia Times Sdn Bhd v The New Straits Times Press

(M) Bhd [2020] MLJU 1726, even though the word was not used in the Defence, the defendant had sufficiently pleaded what is in substance a defence of set off by cross claim. In Hanak v Green [1958] 2 All E.R. 141 CA (Eng), Morris L.J held at page 152 that: the authorities to which I have referred, it seems to me that the defendant had an equitable set-off which defeated the claim. This conclusion does not in any way depend on the terms used in the defence to the counterclaim. The question as to what is a set-off is to be determined as a matter of law and is not in any way governed by the language used by the parties in their pleadings (see Sharpe v Haggith (1912), 106 LT 13 [14] However, it was brought to the Courts attention that the counterclaim had been struck out summarily by the Sessions Court and was pending appeal under a separate appeal. In the circumstances, this Court considered that the current status of matters did not permit consideration of the defence of set off as a triable issue. Interest [15] Although the issue was not raised, the question of interest on a judgment debt is a matter of discretion of the Court under section 11 of the Civil Law Act 1956. As noted there appears to be a provision in the agreement for contractual interest to accrue only on the management fees, and not on the disbursements. Conclusion [16] For the above reasons, this Court allowed the appeal in part and the Sessions Court Judgment was revised to the following extent: summary judgment was affirmed on the principal sum of RM308,263.45 [RM339,393.42 less the disputed staff costs] enforcement of which to be stayed pending the disposal of the remaining claims, including, if and when it becomes relevant after the pending appeal on the striking out of the counterclaim. RM5,000.00 was awarded as costs of the appeal. Bertarikh : 15 April 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu: Harvinpal Kaur Ghuman, Messrs Othman Hashim & Co. Untuk Responden: Merissa Ann Augustin, Messrs