Asm Development Sdn Bhd v Tenaga Nasional Berhad (WA-24NCvC-1587-04/2024)

TENAGA NASIONAL BERHAD (No Syarikat: 199001009294(200866-W)

PERBADANAN PENGURUSAN BTS MC 1 (No Pendaftaran: DBKL/JPPH/JMB/293) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff is a property developer. It is the developer of 7 blocks of apartments in Bandar Tasik Selatan, Kuala Lumpur. The said apartments are identified as Blocks A, B, C, D, E, F and G respectively. [2] In this case, the Joint Management Body which was set up to manage 5 blocks, i.e. Block A, B, C, D and E, is known as “JMB BTS-1”. Presumably “BTS” is the abbreviation of Bandar Tasik Selatan. [3] After the handing over of vacant possession to the purchasers, the Plaintiff (as the developer) assumed the responsibility of opening electricity supply accounts with the 1st Defendant Tenaga Nasional Berhad to procure electricity supply for the said apartments, including for the areas known as “Common Property”, and to collect Maintenance Charges from all the purchasers until a Joint Management Body (“JMB”) was set up. There are 5 electricity supply accounts, one for the Common Property of each block of those five apartments. [4] As mentioned above, JMB BTS-1 was formed to take-over the management and maintenance of the 5 blocks from the Plaintiff developer. That was on 10th April 2008. [5] It is undisputed that the Plaintiff had settled all outstanding bills issued by the 1st Defendant (TNB) before the handing-over to JMB BTS-1. However, after taking over the management and maintenance, JMB BTS-1 failed to open a new accounts with the 1st Defendant in its own name, or alternatively, to change the existing TNB accounts from the Plaintiff’s name to JMB BTS-1. The result is that the Plaintiff developer is still named as the registered user of the 5 accounts, and the invoices are still issued to the Plaintiff developer. The Plaintiff’s Position [6] The Plaintiff’s learned counsel submitted that it is mandatory for JMB BTS-1 to open 5 new accounts with the 1st Defendant TNB in its own name, or alternatively, to change the name of the 5 existing accounts from the Plaintiff's name to JMB BTS-1. [7] He further emphasised that since the formation of JMB BTS-1, the purchasers have been paying Maintenance Charges to JMB BTS- 1, and therefore it is only logical that the electricity bills for the Common Property are to be paid by JMB BTS-1. [8] Learned counsel submits that the Plaintiff had repeatedly informed the 1st Defendant that the responsibility of making payments of the outstanding electricity bills lies solely on JMB BTS-1 and subsequently on the 2nd Defendant (the Management Corporation). He cited, as evidence, a letter dated 19th February 2024, wherein the Plaintiff reiterated to the 1st Defendant that JMB BTS-1 is the actual user of electricity, and that it is the duty of the JMB BTS-1 to settle any outstanding electricity payments, and that the Plaintiff is not liable for any arrears of electricity bills. [9] It was further submitted that the Plaintiff had attempted to close the 5 existing electricity supply accounts with the 1st Defendant and/or to change the name of the registered account holder but the 1st Defendant refused to allow those TNB Accounts to be closed and/or changed, and instead continued to keep those accounts alive and continuing to bill the Plaintiff. [10] The Plaintiff’s learned counsel cited the definition of “consumer” in the Electricity Supply Act 1990 (“ESA 1990”), Tenaga Nasional Bhd v Tan Xian Guang (Spectacular Future Sdn Bhd, third party) [2025] MLJU 413 and 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square and other appeals [2021] 3 MLJ 280 as authorities to submit that JMB BTS-1 is liable to pay the outstanding electricity bills, and that the 2nd Defendant is vested with both the assets and liabilities of JMB BTS-1. He contends that by the definition of “consumer” in the ESA 1990, the 2nd Defendant and its predecessor (JMB BTS-1) ought to be declared as the consumer for those 5 electricity accounts. The 1st Defendant’s Position [11] The 1st Defendant takes a simplistic approach in resisting the Plaintiff’s application. It contends that since the Plaintiff’s name is still registered for those 5 accounts, the Plaintiff must be liable. [12] As to when the outstanding amount started to accrue, the 1st Defendant’s learned counsel submits that based on the Statements of Account, the outstanding amounts had accrued since 1st January 2016, with several partial payments having been made under those accounts from 2016. The 2nd Defendant’s Position [13] The 2nd Defendant made a feeble attempt to disclaim liability, stating that it has never agreed to pay the outstanding electricity charges. Analysis of the Facts and Law [14] Now, all stratified properties would have areas known as “Common Property” that do not belong to any purchaser/ parcel owner, including facilities for the use of all occupants of the strata development. Electricity supply is required for the Common Property and is to be paid by a JMB or Management Corporation by utilising the Maitnenance Charges collected from the purchasers/ parcels owners. [15] The Strata Management Act 2013 (“SMA 2013”) provides a clear picture for the management and maintenance of Common Property. There are three stages. The first stage is after the handing-over of vacant possession by a developer to the purchasers, when the developer still bears the responsibility to manage and maintain the Common Property. The second stage is upon the setting up of a Joint Management Body (JMB) – as in this case, the Joint Management Body is known as “JMB BTS-1” – to take-over the management from the developer. [16] The third (and final) stage is after a Management Corporation is established automatically by operation of law. That happens upon a book of Strata Register being opened in respect of a subdivided building, i.e. a stratified building. This is pursuant to s.17(3) & (4) Strata Titles Act 1985 which read: “(3) Upon the opening of a book of the strata register in respect of a subdivided building or land there shall, by the operation of this section, come into existence a management corporation consisting of all the parcel proprietors including in the case of phased development, the proprietor of the provisional block or blocks and the Director shall issue a certificate certifying the establishment of the management corporation as a body corporate constituted under this Act on the day the book of strata register is opened.

The management corporation existed by virtue of subsection (3) shall be known by the name appearing in the book of the strata register relating to a subdivided building or land, and shall be a body corporate, having perpetual succession and a common seal and which may sue and be sued.” [17] In our present case, there was no problem in the first stage when the Plaintiff developer was managing and maintaining the Common Property for the said 5 blocks of apartments. It is the second stage, and now the third stage that are problematic. [18] I find that the date of JMB BTS-1 starting to manage and maintain Common Property for the 5 blocks of apartments and the date when those outstanding electricity charges started to accrue, are dates which would shed light for this Court to make a conclusive finding of fact. [19] Now, it is undisputed that JMB BTS-1 was formed on 13th May

As alluded to earlier, the 1st Defendant’s affidavit disclosed that the outstanding electricity bills started to accrue since 1st January 2016. The Plaintiff’s evidence, as the developer, is that it has settled all electricity bills at the point in time of hand-over to JMB BTS-1 – which was in year 2008. This was undisputed by both Defendants. The fact that the current outstanding electricity charges started to accrue since 1st January 2016 shows that the previous members of JMB BTS-1 did pay electricity bills promptly after taking over management and maintenance in year 2008. Arrears were accrued only after 1st January 2016. The following table is an excerpt from the submissions of learned counsel for the 1st Defendant which makes it crystal clear that the Plaintiff developer had long handed over management and maintenance to JMB BTS- 1 prior to the outstanding electricity bills arising.

Formation of JMB

1.2016 Outstanding electricity bills commenced [20] The excuse given by the 1st Defendant is that the name of the registered user for those accounts was not changed to JMB BTS-1 and has remained in the name of the Plaintiff developer because the committee members of JMB BTS-1 has failed to sign the forms that are required for the change to be recorded, and the 1st Defendant has therefore continued to bill the Plaintiff. [21] With respect, this Court has to reject the aforesaid excuse given by the 1st Defendant. First, the 1st Defendant certainly knew that its consumer for those accounts in arrears is JMB BTS-1, and not the Plaintiff developer. The Plaintiff made multiple attempts to close those accounts but were refused by the 1st Defendant simply because JMB BTS-1 had refused/failed to sign the necessary forms to open new accounts. [22] Instead of just proceeding to close those accounts which have been in arrears for years and compelling the actual consumer/user to come forward to ratify the situation by paying up and opening new accounts, the 1st Defendant has acted unconscionably in continuing to bill the Plaintiff developer under those 5 accounts which the Plaintiff had attempted to close. The definition of “consumer” is in fact specifically stated in s.2 of ESA 1990 to be as follows: “consumer” means a person who is supplied with electricity or whose premises are for the time being connected for the purpose of supply of electricity by a supply authority or a license”. [23] Whilst it is true that in almost all cases, the consumer, i.e. the person “who is supplied with electricity”, would be the person registered with the 1st Defendant TNB as the registered user or account holder, there may be exceptions – such as shown by the clear-cut facts of this case which shows that the consumer is in fact JMB BTS-1 and currently the 2nd Defendant Management Corporation. [24] In Tenaga Nasional Bhd v Tan Xian Guang (Spectacular Future Sdn Bhd, third party) [2025] MLJU 413, the Court had occasion to consider this issue. It was opined as follows:- “[49] Section 2 of the ESA 1990 defines a “consumer” as “a person who is supplied with electricity or whose premises are for the time being connected for the purpose of receiving electricity.” [54] However, the context in this case is distinguishable where the Defendant had personally denied making any such application and he is neither the owner or the occupant of the premise. This court is of the view that even if such presumption exists, the presumption is grounded in the contractual and statutory relationship established when an individual register or applied for electricity supply. Such presumption can be rebutted by the following scenarios:

That the registration was done without the purported account holder’s knowledge or consent; or

(ii) that the actual user of the electricity supply is different from the registered account holder (e.g., tenants or unauthorized users). [55] There is no presumption of law under the ESA 1990 to assert that a registered account holder is deemed to be a person who applied for electric supply until the contrary is proved.” [25] With respect, I wholly agree with Tenaga Nasional Bhd v Tan Xian Guang (Spectacular Future Sdn Bhd, third party) (supra), that it would be unfair to assume that in all cases the consumer is the registered user – especially as in a situation of our present case. [26] I find that by attempting several times to close those accounts with the 1st Defendant TNB, the Plaintiff had in fact given sufficient notice of termination of the contract for supply of electricity. Yet, the 1st Defendant TNB had persisted in supplying electricity for accounts that are seriously in arrears – when it has ample authority to disconnect electricity to premises of defaulting accounts. [27] Had the 1st Defendant TNB proceeded to terminate electricity early instead of allowing arrears to accrue to such a huge amount, JMB BTS-1 (and currently the 2nd Defendant MC) would have been compelled to step forward earlier to ratify the situation and settle with the 1st Defendant. No doubt the 1st Defendant was trying to be kind but it should not have been done by continuing to bill the Plaintiff. [28] The facts that JMB BTS-1 had taken over the management and maintenance of the Common Property since year 2008 and was collecting maintenance charges and sinking fund contribution from the purchasers/ parcel owners since then while the Plaintiff developer had attempted multiple times to close the accounts but was refused by the 1st Defendant TNB, led to an inevitable conclusion that the Plaintiff developer should not be held liable for the arrears in electricity bills accrued after 1st January 2016 – which was some 8 years after JMB BTS-1 took over. It is the judgment of this Court that the Plaintiff has terminated its contract with the 1st Defendant TNB before the arrears started to accrue. The 1st Defendant TNB has itself to blame for its failure ‘to do the right thing’. It should have closed the accounts under the Plaintiff’s name and thereby compel JMB BTS-1 to come forward to ratify the situation. [29] As for the liability of the 2nd Defendant Management Corporation, it is not possible for the 2nd Defendant to seriously dispute the Plaintiff’s claim because those outstanding electricity charges should be borne by JMB BTS-1, and by operation of law, by the 2nd Defendant after its formation. By virtue of ss.27 & 28 of the SMA 2013, the 2nd Defendant Management Corporation ‘inherited’ the liabilities of its predecessor, i.e. JMB BTS-1. S.27(2)(b)(iii) SMA 2013 reads: The joint management body shall, not more than one month from the date of the first annual general meeting of the management corporation—

hand over to the management corporation—

any additional by-laws;

(iii) all the assets and liabilities of the joint management body; [30] S.28(2) of the SMA 2013 states: “Any right, power or remedy granted to, or any liability imposed on, the joint management body under this Part in respect of the development area, … shall vest in the management corporation…” [31] In light of ss.27 & 28 of the SMA 2013, the 2nd Defendant is liable by operation of law. (see also 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square [2021] 3 MLJ 280). Conclusion [32] By reason of the facts, law and findings explained above, the following reliefs are to be granted:

A Declaration that JMB BTS-1 (Block A, B, C, D and E) and/or Perbadanan Pengurusan BTS MC-1 of the low cost apartment Bandar Tasik Selatan is the actual user for the following 5 TNB accounts:- a. Block A – 220297048706; b. Block B – 220297055700; c. Block C – 220208281801; d. Block D – 220208286100; e. Block E – 220033844508; and (hereinafter referred to as “the said TNB accounts”.)

A Declaration that all outstanding bills for the said TNB accounts in arrears are owed by JMB BTS-1 (Block A, B, C, D and E) and/or Perbadanan Pengurusan BTS MC-1 and that the outstanding debts are to be transferred to their names;

An Order that the 1st Defendant is to change the 5 accounts from the Plaintiff’s name to Perbadanan Pengurusan BTS MC- 1, which are:- a. Block A – 220297048706; Counsel for the Plaintiff: Noor Syakirah bt Khalil (Nur Najihah (PDK) with her) SOLICITORS FOR THE PLAINTIFF: MESSRS JASBEER, NUR & LEE Advocates & Solicitors No. 8-2nd Floor, Block D, Wisma RKT, Jalan Raja Abdullah, Off Jalan Sultan Ismail, 50300 KUALA LUMPUR. Counsel for the 1st Defendant: Muhammad Syafiq Aiman Bin Muhammad Masri SOLICITORS FOR THE 1ST DEFENDANT: MESSRS MAZLAN & ASSOCIATES Advocates & Solicitors Suite 8.1., Level 8, Work@Clearwater, Changkat Semantan, Off Jalan Semantan, 50490 DAMANSARA HEIGHTS, KUALA LUMPUR. Counsel for the 2nd Defendant: Mohd Khairul Azam bin Abdul Aziz (Nabil Nur Akmal (PDK)with him) SOLICITORS FOR THE 2ND DEFENDANT: MESSRS AZAM AZIZ & CO Advocates & Solicitors 8-1(A), Pusat Komersial Sinar Sentul, Jalan Sinar Sentul 1, Sentul, 51100 KUALA LUMPUR. CASES REFERRED TO:

Tenaga Nasional Bhd v Tan Xian Guang (Spectacular Future Sdn Bhd, third party) [2025] MLJU 413.

3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square and other appeals [2021] 3 MLJ 280.

S.2 Electricity Supply Act 1990 2. S.27(2)(b)(iii) & 28(2) Strata Management Act 2013 3.