ASM Development Sdn Bhd v Badan Pengurusan Bersama Lingkaran Maju (WA-24NCvC-528-02/2025)

On 5.2.2025, the Applicant filed the Originating Summons (‘O.S.’, encl. 1) against the Respondent seeking for the following main reliefs:

a declaration that the purported resolution made at the Annual General Meeting (‘AGM’) on 25.8.2017 or any 03/09/2025 16:30:40 WA-24NCvC-528-02/2025 Kand. 42 other date(s) allowing or authorising the Respondent to charge a rate of maintenance fees and sinking fund pursuant to the Sale and Purchase Agreement (‘SPA’) of the owners of the Lingkaran Maju lots for each unit of shares for parking lots and retail units (‘purported Resolution’) is null and void ab initio;

a declaration that any outstanding maintenance fees and sinking fund allegedly payable by the Applicant to the Respondent based on the rates of maintenance fees and sinking fund fixed under the purported Resolution are null and void ab initio;

an order that all maintenance fees and sinking fund paid by the Applicant to the Respondent based on the rate of maintenance fees and sinking fund fixed under the purported Resolution shall be reimbursed to the Applicant by the Respondent;

an order that all legal proceedings including legal actions in any tribunal for any outstanding maintenance fees and sinking fund allegedly payable by the Applicant to the Respondent based on the rates of maintenance fees and sinking fund fixed under the purported Resolution shall be withdrawn by the Respondent or shall be null and void ab initio;

an order that all judgments including judgments from any tribunal for any outstanding maintenance fees and sinking fund allegedly payable by the Applicant to the Respondent based on the rates of maintenance fees and sinking fund fixed under the purported Resolution shall be null and void ab initio;

an order that the Applicant is allowed to apply for any consequential orders necessary to enforce the declarations and orders above; and

general damages.

After having considered the cause papers and submissions of the parties, I was persuaded to answer the issues raised in relation to encl. 1 in favour of the Respondent. Hence, on 3.7.2025, the application was dismissed.

The Applicant is aggrieved by my decision. These are my full grounds of judgment.

Apart from the O.S., the cause papers are as follows:

the Applicant’s Affidavit in Support (‘AIS’) affirmed by Datuk Mohamed Roslan Bin Mohamed Shariff on 5.2.2025 (encl. 2);

the Respondent’s Affidavit in Reply (‘AIR’) affirmed by Tuan Haji Aishamuddin Bin Zulkefli on 4.3.2025 (encl. 7);

the Applicant’s AIR affirmed by the same deponent on 20.3.2025 (encl. 8); and

the Respondent’s Corrective AIR affirmed by the same deponent on 24.3.2025 (encl. 9, to which the Applicant raised no objections).

The following are the background facts of the case as set out in the Applicant’s Written Submissions (encl. 11).

The Applicant is the developer and owner of all parking lots in Lingkaran Maju, namely at Basement 3, Lower Ground 2, Lower Ground 1 and Ground Floor.

The Applicant is responsible to pay the maintenance fees and sinking fund for all the parking lots owned by itself and the retail units which vacant possession has yet to be delivered to the Respondent.

The Respondent is the Joint Management Body (‘JMB’) which is responsible under the Strata Management Act 2013 [Act 757] (‘SMA 2013’) to maintain the Lingkaran Maju lots. This includes the duty to collect the maintenance charges or fees and contribution to the sinking fund (‘MCSF’) from the owners of the Lingkaran Maju lot (‘Owners’) according to their unit of shares.

Based on sub-ss 17(1), 18(1) and 19(1) of the SMA 2013, the Respondent held its First AGM on 25.8.2017 at Golden Eagle Hall, South Lake Residence, No.1, Bandar Tasik Selatan, 57100 Kuala Lumpur (‘First AGM’).

Under paragraph 19(1)(c) of the SMA 2013, among the agenda for the First AGM of the JMB is to determine the rates of the MCSF to be paid by the Owners, including the Applicant.

The Applicant alleged that, at the First AGM, the Respondent abdicated the statutory duty and took the shortcut of stating in the purported Resolution that the rates of the MCSF to be paid by the Owners, including the Applicant, would be at the same rates as stipulated in the SPA whereas the SPA is silent as to the same.

The Applicant was compelled to file encl. 1 for the following reasons:

the SPA is silent on the rates of the MCSF, the purported Resolution is invalid, uncertain and wrongful;

the purported Resolution stated that the rates of the MCSF would be the same as stated in the SPA until the next AGM of the Respondent. However, the Respondent has not made any resolutions, decisions or statements relating to the rates of the MCSF in any of its subsequent AGM up to the latest Seventh AGM held on 3.12.2024 (‘Seventh AGM’). Hence, there is no valid Resolution in place authorising or allowing the Respondent to collect the MCSF at the rates which were unilaterally fixed during the First AGM without going through a proper AGM; and

despite the mandatory obligation under regulation 13 of the Strata Management (Maintenance And Management) Regulations 2015 [PU(A) 107/2015] (‘SMR 2015’), the Respondent has failed in its duty as the JMB since the First AGM up to the Seventh AGM to issue a notice in Form 5A to the Owners, including the Applicant, to inform and confirm the rates of the MCSF.

The Applicant takes the position that it is fair and reasonable for it to seek the intervention of this Court to provide finality and clarity to the rates of the MCSF, which in clear breach of the requirements under the SMA 2013 and SMR 2015, has never been fixed by the Respondent. Analysis and Decision of the Court 1st Issue: Whether the current proceeding is filed in a wrong forum and this Court lacks jurisdiction to determine the validity and legality of the purported Resolution

The Respondent submitted that the Applicant should have addressed its complaints to the proper forum established under the SMA 2013 i.e. the Strata Management Tribunal (‘Tribunal’) and not to this Court. The Tribunal is conferred jurisdiction to hear, among others, a claim for an order to nullify a resolution passed at a general meeting (see sub-s 105(1) of the SMA 2013 and paragraph 7 of the Fourth Schedule, Part 1 on Jurisdiction of the Tribunal). As an avenue of relief is specifically provided for, it should be extinguished before being brought before the court. Any attempt to circumvent this avenue would amount to an abuse of the process of the court (see Dato’ Yu Kuan Huat v. Pesuruhjaya Bangunan Dewan Bandaraya Kuala Lumpur [2023] 1 LNS 265, Yong Kein Sin & Anor v Perbadanan Pengurusan Springtide Residences [2023] 1 LNS 558 and Ho Phoy Kwang & Anor v. The Summit Subang USJ Management Corporation & Ors [2024] CLJU 2177).

The Applicant retorted that this Court is a Court of unlimited jurisdiction and has the proper, inherent and rightful jurisdiction to determine and decide the validity and legality of the purported Resolution. Dato’ Jasbeer Singh relied on the decisions by the Court of Appeal in Muhamad Nazri Muhamad v JMB Menara Rajawali & Anor [2019] 10 CLJ 547 and Aikbee Timbers Sdn Bhd & Anor v Yii Sing Chiu & Anor and Another Appeal [2024] 3 CLJ 177 to support his submission for the Applicant.

The learned counsel relied on another string of cases of high authority, namely, Malaysia Shipyard & Engineering Sdn Bhd v Bank Kerjasama Rakyat (M) Bhd [1985] CLJ Rep 206, Bank Pertanian (M) Bhd v Koperasi Permodalan Melayu Negeri Johor [2014] 6 MLJ 262, Koperasi Jurukur Tanah Berlesen Berhad (Kojuta) v Mohd Ruzuki Bin Harun @ Omar [2016] MLJU 1721 and Manian a/l K. Marappan & Anor v Sinwufu Enterprise Sdn. Bhd (Mashudan bin Kamar & Ors, third party) and another appeal [2020] MLJU 1415 in contending that the Respondent is a JMB established under s 17 of the SMA 2013 and it is a body corporate. Being a creature of statute, it is subject to the supervision and monitoring of this Court to ensure that it acts in accordance with the SMA 2013 and SMR 2015.

Furthermore, the Applicant highlighted that in the Written Submissions, the Respondent has been approbating and reprobating and constantly changing its stance on the correct forum to decide on the validity and legality of the purported Resolution. On one hand, the Respondent submitted that the correct forum would be before the Tribunal, whereas on the other hand, the Respondent stated that this issue should be brought before the upcoming AGM of the Respondent and that the validity and legality of the purported Resolution is to be decided by the High Court under the Judicial Review proceedings.

To the Applicant, the conflicting position taken by the Respondent proves that the jurisdictional challenge raised by the Respondent is merely a tactical manoeuvre to escape from explaining its actions of breaching paragraph 19(1)(c) and sub-s 25(3) of the SMA 2013 and regulation 13 of the SMR 2015 before this Court.

Having considered the submissions by both parties on this jurisdictional issue, there is merit in the Respondent’s contention that the correct forum for the Applicant to bring its grievances is the Tribunal. The Tribunal is empowered to decide on the issue of the validity of the purported Resolution. In the event the Tribunal decides in the Applicant’s favour, the Tribunal can make an order to nullify the purported Resolution. If the outcome is not in the Applicant’s favor, the Applicant’s recourse would be by way of judicial review.

However, at the same time, I recognise that the prayers in the O.S. go beyond making an order to nullify the purported Resolution. The extent of the orders sought in prayers 4 and 5 in the O.S. are to “all legal proceedings including legal actions in any tribunal …” and “all judgments including judgments from any tribunal …”. These orders would be beyond the powers of the Tribunal to make.

It is for this reason that I was not prepared to decide encl. merely on the arguments on the issue of jurisdiction, but rather, to deal with all the substantive issues raised by both the Applicant and the Respondent. 2nd Issue: Whether only the Owners who signed the SPA would be able to seek the reliefs claimed in encl. 1 and not the developer who prepared the SPA itself

The Respondent drew the attention of the Court to prayer 1 in the O.S. and submitted that the application for a declaration was made as if on behalf of the Owners who had signed the SPA and DMC with the Applicant. Hence, the party who is entitled to apply for the declaration should be the Owners who have signed the SPA and DMC with the Applicant, and not the Applicant as the developer who had prepared the SPA and DMC. The Applicant cannot rely on its own documents to apply for the declaration.

Section 2 of the SMA 2013 defines a “parcel owner” to mean “the purchaser or the developer in respect of those parcels in the development area which have not been sold by the developer”. In my view, the Applicant is a “parcel owner” and is responsible to pay the maintenance fees and sinking fund for all the parking lots owned by the Applicant and retail units that have yet to be delivered vacant possession to the Respondent.

Therefore, I was not prepared to make a finding that the Applicant does not have locus standi to seek the reliefs as prayed in the O.S. 3rd Issue: Whether the Respondent has breached paragraph 19(1)(c) of the SMA 2013 during the First AGM in passing the purported Resolution 4th Issue: Whether the Respondent has acted in an ultra vires and mala fide manner by determining the MCSF and making the purported Resolution null and void ab initio 5th Issue: Whether the SPA should be read analogously with the Deed of Mutual Covenants (‘DMC’) and any references to the SPA includes the terms in the DMC

The three issues as set out above will be addressed together as they are related.

The definitions in s 2 of the SMA 2013, apart from the definition of “parcel owner”, which are relevant for present purposes are as follows: ““sinking fund account” means an account required to be opened and maintained by a developer, joint management body, management corporation or subsidiary management corporation under section 11, 24, 51, 61 or 67, as the case may be; “maintenance account” means an account required to be opened and maintained by a developer, joint management body, management corporation or subsidiary management corporation under section 10, 23, 50, 60 or 66, as the case may be; … “joint management body” means the body established under section 17; … “Charges” means any money collected to be deposited into the maintenance account; … “share units” has the meaning assigned to it in section 4 of the Strata Titles Act 1985; … “provisional share units” has the meaning assigned to it in section 4 of the Strata Titles Act 1985; “allocated share units” means the share units assigned to each parcel intended for subdivision by the developer's licensed land surveyor or in a case where share units have not been so assigned, means the share units assigned under section 8.”.

Sub-ss 17(1), 18(1) and 25(2) and (3) and paragraph 19(1)(c) of the SMA 2013 provide as follows: “17. Establishment of a joint management body

A joint management body shall be established upon the convening of the first annual general meeting of that joint management body –

if vacant possession was delivered before the commencement of this Act, not later than twelve months from the commencement of this

if vacant possession is delivered after the commencement of this Act, not later than twelve months from the date of delivery of vacant possession of a parcel to a purchaser. …

Duty of developer to convene first annual general meeting of joint management body

It shall be the duty of the developer to convene the first annual general meeting of the joint management body within the period specified in subsection 17(1). …

First annual general meeting of joint management body

The agenda for the first annual general meeting of the joint management body shall include the following matters: …

subject to subsections 25(2) and

(3), to determine the amount to be paid by a parcel owner as the Charges, and contribution to the sinking fund; …

Parcel owners to pay Charges, and contribution to the sinking fund, to the joint management body …

The developer shall pay the Charges, and contribution to the sinking fund, to the joint management body in respect of those parcels in the development area which have not been sold, being a sum equivalent to the Charges, and contribution to the sinking fund, payable by the purchasers to the joint management body had the parcels been sold.

The amount of the Charges to be paid under subsections (1) and (2) shall be determined by the joint management body from time to time in proportion to the allocated share units of each parcel. …”.

The relevant excerpt from the Minutes of the First AGM is reproduced below for ease of reference: “… PRESENT A) Temporary panel of Joint Management Body

Dato’ Yap Wee Leong Executive Director, ASM

Koi Guan Beng Representative from

Shamsul Qamar Maju Link Sale & bin Abd Rani Purchase Agreement (SPA) Solicitors from

Shafieuddin bin Ibrahim

Wan Sarimah binti

Chan Lai Choon Company Secretary,

Muhammad Muzhaffar Messrs Alan Yoon Bin Nordin Associates, Independent Auditor … CHAIRMAN FOR THE MEETING Mr Koi welcomed Dato' Yap Wee Leong, Executive Director of ASMD, the Developer of Maju Link, to preside as Chairman for the Meeting. There were no objections from the floor. … CHAIRMAN INTRODUCTORY SPEECH … The Chairman then handed the Chair to Mr. Koi for Agenda (a). a) To determine the number of members of the joint management committee and to elect the members of the joint management committee … ix. Since there were 7 proposed nominees, Mdm Lau Yong Ying highlighted there was no necessity to go for poll voting. The purchasers’ present unanimously agreed that the Joint Management Body be established under the provisions of the Strata Management Act 2013 and that the following seven (7) persons shall be elected as committee members of the

Mr Koi Guan Beng from ASM Development Sdn Bhd 2. Encik Zulkifle bin Mustafar from ASM Development Sdn Bhd 3. Dato' Adam bin Abd Ghani from Tekun Nasional 4. Dato' Chan Weng Sang from Station One Holdings Bhd 5. Dato' Hew Fook Sang from Chemind Industries Sdn Bhd 6. Mdm Lau Yong Ying 7. Mdm Chang Kam Lan. …

To determine the amount to be paid by a parcel owner as the Charges, and contribution to the sinking fund. i. The Chairman then proceeded to Agenda

which is to determine the amount to be paid by a parcel owner as the Charges, and contribution to the sinking fund. The Chairman informed that the rate for the Charges and contributions to the sinking fund is the same as stated in the SPA which will valid until next Annual General Meeting of the JMB. He invited questions from the floor. However, there were no questions and no objections. ii. Mr Foong Chee Hoong (Unit T5-L1-S2) then proposed that the amount to be paid by a parcel owner as the Charges, and contribution to the sinking fund shall remain the same as stated in the SPA which shall be valid until the next Annual General Meeting of the JMB. It was seconded by Dato’ Hiew Fook Sang (Unit T2-1-3 under Chemind Industries Sdn Bhd). iii. There being no objections from the floor, the Chairman announced that the amount to be paid by a parcel owner as the Charges, and contribution to the sinking fund shall remain the same as stated in the SPA and shall be valid until the next Annual General Meeting of the JMB was unanimously agreed upon by the purchasers’ present. …”.

The Applicant submitted that the main issue to be decided is whether the purported Resolution passed at the First AGM by the Respondent for the MCSF breaches paragraph 19(1)(c) of the SMA 2013.

The Applicants asserted that, by reading s 2, paragraph 19(1)(c) and sub-s 25(3) of the SMA 2013, –

the Respondent, as the JMB for Lingkaran Maju, is responsible to determine the MCSF during the First AGM; and

the word “shall” in paragraph 19(1)(c) and sub-s 25(3) of the SMA 2013 provide that the fixing of the rates of the MCSF is the mandatory obligation of the Respondent and this needs to be complied and fulfilled at the strictest sense as it is expressly stipulated in the SMA 2013. Furthermore, the purpose of the enactment of the SMA 2013 and SMR 2015 is to protect the Owners and to govern the acts and responsibilities of the Respondent as the JMB of Lingkaran Maju. Therefore, the word “shall” in the said statutory provisions as well as regulation 13 of the SMR 2015 are of mandatory obligation unless the Respondent is able to show that the real intention of the SMA 2013 and SMR 2015 is to be complied in an optional manner [see, among others, Low Cheng Soon v TA Securities Sdn Bhd [2003] 1 CLJ 309 (CA), Md Yusoff Ahmad v Siti Hajar Sarkawi & Anor [2013] 1 CLJ 200 (CA) and Innab Salil & Ors v Verve Suites Mont’ Kiara Management Corporation [2020] 10 CLJ 285 (FC)].

It was additionally contended by the Applicant that –

any resolution made in relation to the fixing of the rates of the MCSF during the First AGM must be clear, unambiguous and certain with no room for any doubt or uncertainties as it would govern the payment of the MCSF by the Owners, including the Applicant. Based on the purported Resolution, the Respondent has fixed the rates of the MCSF to be the same as stated in the SPA until the next AGM. The Minutes of the First AGM show that no other documents or external references, save for the SPA, has been made in the Minutes when the Respondent approved the purported Resolution;

the AGMs after the First AGM have not confirmed or fixed a proper rate of the MCSF to be paid by the Owners. Thus, any rate which the Respondent has been charging the Owners was unilaterally decided by the Respondent without the proper approval of the Owners during an AGM;

as the Respondent is a JMB established under s 17 of the SMA 2013, it is a body corporate, and being a creature of statute, it cannot do anything that is not permitted by the statute under which it is incorporated. As the SMA 2013 does not permit the Respondent to fix the rates of the MCSF without going through an AGM with the approval of the Owners, any rates allegedly claimed and fixed by the Respondent arbitrarily from the Applicant is illegal, mala fide, ultra vires and void ab initio [see Malaysia Shipyard & Engineering Sdn Bhd v Bank Kerjasama Rakyat (M)

despite knowing the purported Resolution was invalid, the Respondent continued to charge and demand the MCSF at the rates which the Respondent had arbitrarily fixed outside the bounds of law permitted under the SMA 2013 and SMR 2015. The Applicant had disputed the rates and the Respondent proceeded to initiate Kuala Lumpur High Court Winding Up Petition No. WA-28NCC-219-03/2024 against the Applicant (‘Winding Up Petition’) as well as several actions at the Tribunal for the alleged outstanding sum of the MCSF.

I have considered the juxtaposed positions taken by the parties and I was persuaded by the Respondent’s submissions for the following reasons:

(a)

The minutes of the First AGM were adopted at the Second AGM and the minutes of the Second AGM were adopted at the Third AGM and this process was repeated up to the Seventh AGM. All AGMs were attended by representatives of the Applicant and there was never any hindrance for the Applicant to bring up any issue in relation to the MCSF in any of the AGM subsequent to the First AGM. There was no necessity for the Respondent to make any resolutions relating to the rates of the MCSF in any AGM after the First AGM unless the same was brought up as an issue by the Applicant or any of the purchasers, which was not the case. Therefore, the rates of the MCSF as agreed at the First AGM remain valid and in force until the issue on the same is raised at a future AGM.

Articles 2.9 and 19 in the SPA provides as follows: “ARTICLE 2 RECITALS …

2.9 In order to provide for the management and preserving the status, image, character, value and exclusiveness and the congenial and harmonious occupation, use and enjoyment of the Facilities and Common Property by the Purchaser in common with the Other Purchasers of the Units comprised in the Project, the Vendor and the Purchaser hereby agree to mutually to be bound by the terms and conditions of the Deed of Mutual Covenants PROVIDED ALWAYS that the Vendor shall upon the formation of the Joint Management Body or the Management Corporation, whichever is earlier, be discharged from any liabilities in relation to the Deed of Mutual Covenants except for the liabilities incurred prior to the date of such formation … ARTICLE 19

19.1 The Purchaser shall if and when required by the Vendor or the Joint Management Body or the Management Corporation execute a deed of mutual covenants with the Vendor or the Joint Management Body or the Management Corporation in common with all the other purchasers of the units comprised in the Project.”.

The 2nd Preamble in the DMC states that the DMC is supplemental to the SPA while pursuant to the 4th Preamble the parties have agreed to enter into the DMC to regulate the maintenance, administration, management and use of the said Unit, the Building, the Common Property, the Common Facilities and Services and the provision of Common Facilities and Services by the vendor or the Management Corporation.

Clause 1.1 in the DMC defines “Service Charges” and “Sinking Fund” as follows: “Service Charges refers to the amount of money determined from time to time by the Vendor under Clause 6:1 hereunder for the purpose of upkeeping maintaining and managing the Common Property and the provision of Common Facilities and Services and including the cost and expenses mentioned in Clause 3.3.1 herein. … Sinking Fund means such amount of money as may be determined by the Vendor from time to time under Clause 5.1 hereunder and payable by the Purchaser to the Vendor immediately upon delivery of vacant: possession of the said Unit and the said amount shall constitute the Purchaser's share for intended upkeep and maintenance of the said Land and Building - including but without limiting to major infrastructural and structural mechanical electrical works, re-painting of the exterior walls of the Building, redecoration and improvisation of facilities and amenities which the Vendor may choose to carry out or introduce for the common usage/benefit of all the Purchasers from time to time and the amount of such contribution shall be determined in proportion to the share units assigned to the said Unit by the Vendor's Surveyor.”.

Clauses 5 and 6 in the DMC provides for the Sinking Fund and Service Charges, respectively, in the following terms: “5.

5.1 The Purchaser shall pay a contribution to a Sinking Fund and the amount of such contribution payable by the Purchaser shall be the amount stipulated in Section 5 of Appendix 1 hereto and shall be payable by the Purchaser immediately upon the delivery of vacant possession of the said Unit by the Vendor.

5.2 The Purchaser shall, upon the date he takes vacant possession of the said Unit contribute to the sinking fund an amount equivalent to ten per centum (10%) of the service charges determined in accordance with clause 17 of the Sale and Purchase Agreement and thereafter such contribution shall be payable in advance every quarterly within seven (7) days from the date of Vendor's written notice.

5.3 The Vendor shall and is hereby irrevocably authorised by the Purchaser to utilise the Sinking Fund for the purposes of which it was set up including, but not limited to, the following :- a) for painting or repainting any part of the Building and/or the Common Property; b) for the acquisition of suitable assets and equipment for use in relation with the Common Property, c) for the renewal or replacement of any fixtures or fittings, capital equipment (ie. fire fighting equipment, lifts, water storage tanks, etc) comprised in the Common Property; d) for maintenance repair and improvement of the Common Property, the Building and the Common Facilities and Services including infrastructural, structural mechanical electrical works which are deemed necessary by the Vendor or its consultants; and e) any other expenditure not being expenditure incurred to meet any liability vis-a-vis the Purchaser's unit or for settling any default in payment by the Purchaser.

6.

6.1 The Purchaser hereby agrees to pay an agreed sum of the amount stipulated in Section 6 of Appendix I as the Service Charges.

6.2 The Purchaser shall pay one (1) month deposit and three (3) months advance in respect of the Service Charges immediately upon the delivery of vacant possession of the said Unit and thereafter the same shall be payable in advance every quarterly in advance.

6.3 The Purchaser shall pay all Maintenance and Services charges quarterly within seven (7) days from the date of the Vendor's written notice and shall be liable for a late interest payment of ten (10%) per centum on the amount so due and such rate of interest shall be applicable and valid even after judgment is obtained in a competent court. …”.

Sections 5 and 6 of APPENDIX I in the DMC state as follows: “5 The Sinking Fund Cents Fourty Six Point Three (46.3) per square metre (for Retail Units) 6 Services Charges Ringgit Malaysia Four and Sixty Three Cents (RM4.63) per square metre (for Retail Units).”.

The SPA and DMC were prepared by Messrs. Wajdi Mohamad, Shamsul & Co, the solicitors for the Applicant and signed by the Applicant as the vendor. These legal documents, which were executed contemporaneously, formed part of one transaction and must be read together as if they were one in order to ascertain the intention of the parties [see Prestaharta Sdn Bhd v Ahmad Kamal Md Alif & Ors [2016] 1 LNS 255 (CA)]. The reference to “the SPA” in the Minutes of the First AGM must therefore be read to include the terms and conditions of the DMC. It is for this reason that the Owners, other than the Applicant, have not questioned the rates of the MCSF because they have signed the SPA and the DMC with the Applicant and they are bound by all the terms and conditions therein.

It follows that the 3rd Issue and 4th Issue are answered in the negative and the 5th Issue is answered in the affirmative. 6th Issue: Whether the Respondent has breached regulation 13 of the SMR 2015 by failing to provide any notice in Form 5A confirming the MCSF within 28 days after each AGM

Regulation 13 of the SMR 2015 reads as follows: “Notice of resolution confirming Charges, contribution to the sinking fund and rate of interest determined by joint management body

Within twenty-eight days after each general meeting of the joint management body at which the Charges are confirmed or varied, the joint management body shall issue a notice in Form 5A to all purchasers to inform the purchasers of the amount of Charges, contribution to the sinking fund and the rate of interest in respect of any late payment imposed by the joint management body in that annual general meeting and a copy of Form 5A shall be displayed on the notice board of the joint management body at a conspicuous part of the development area.”.

It was the Applicant’s contention that the obligation under regulation 13 of the SMR 2015 is mandatory. However, the Respondent has failed in its duty as a JMB since its First AGM up to the Seventh AGM to issue a notice in Form 5A to the Owners, including the Applicant, to inform and confirm the rates of the MCSF in Lingkaran Maju.

The Applicant postulated that the Respondent could not issue a Form 5A to the Owners because, at all material times, the Respondent was aware that the rates of the MCSF, which were fixed during the First AGM, was wrongful as the SPA is silent on the same.

As has been determined earlier, the SPA must be read together with the DMC and the Respondent did not breach paragraph 19(1)(c) of the SMA 2013 and nor did it act in an ultra vires and mala fide manner by making the purported Resolution at the First AGM.

Even if the Respondent is to be blamed for the failure to provide the notice in Form 5A to the Applicant or the purchasers, the Applicant did not show any provision in the SMR 2015 whereby the Respondent can be said to have committed an offence and a penalty can be imposed for the said failure.

Throughout the period from the First AGM until the Seventh AGM, there was no confusion among the Owners regarding the rates imposed by the Respondent in respect of the MCSF. The Owners were aware that the rates are the same as decided in the First AGM. The minutes of the First AGM were adopted at the Second AGM and so on up to the Seventh AGM. All AGMs were attended by representatives of the Applicant and the purchasers.

In these circumstances, I find that the 6th Issue was raised by the Applicant as an afterthought in order to stall the hearing of the Winding Up Petition which was fixed for hearing on 27.5.2025 (‘Winding-Up Petition’). 7th Issue: Whether the Applicant is guilty of laches and that such delay requires the Court to dismiss the application 8th Issue: Whether the Applicant filed the O.S. under a bona fide intention and to uphold its legal rights under the SMA 2013 and SMR 2015

The abovementioned Issues are inter-related and shall be discussed together.

Apart from the jurisdictional issue, the Respondent also argued that the Applicant had waited for more than seven years i.e. seven AGMs had taken place before taking any action. In all these years, the Applicant itself had agreed to pay the MCSF to the Respondent at the rates as decided in the Resolution that was made at the First AGM. Hence, the Applicant was accused of being guilty of laches or negligent inactivity.

In addition, the Respondent contended that the Applicant has, through its conduct, waived its rights or has placed the Respondent in an unreasonable position if the declaration is allowed. It is unfair for the Applicant to now seek to annul the Resolution made at the First AGM because payment for the MCSF have been received, not only from the Applicant, partially, but also from the other Owners and have been spent by the Respondent to maintain the Lingkaran Maju Building since 2017 (see Clause 2.9 in the SPA and Clauses 5.3 and 6 in the DMC). A Court of Equity will not allow a dormant claim to be set up when the means of resisting it have perished (see Yong Kein Sin & Anor v Perbadanan Pengurusan Springtide Residences [2023] 1 LNS 558).

Moreover, the Applicant has not given any reason for the unreasonable delay which is fatal to its application (see Khor Cheng Wah v Sungai Way Leasing Sdn. Bhd [1997] 1 CLJ 396, Maharin Nisha Hassan Mohamed v Panir Selvam Chellamuthu & Anor [2005] 7 CLJ 289 and Heng Wah Trading Co v Glamor Shoes Industries [2017] 1 LNS 362).

The Applicant countered the Respondent’s arguments by submitting that the Applicant is not guilty of laches for the following reasons:

as of to date, the MCSF are being charged. The doctrine of laches is inapplicable in the current proceedings because the question on the validity and legality of the purported Resolution is a live issue that requires intervention or assistance of this Court [see Nwakobi (Osha of Obosi) v Nzekwu [1964] 1 WLR 1019 (PC) and IB Capital Sdn Bhd v Ivory Indah Sdn Bhd & Anor [2022] 1 MLJ 860 (CA)];

even though the purported Resolution was worded seven years ago in the First AGM, the same Resolution has been adopted by the Applicant for the last seven years in each AGM held up to the latest on 3.12.2024;

the Applicant has always and consistently contested the rates of the MCSF which were unfairly or illegally imposed by the Respondent, but each time the Respondent would proceed to stifle the Applicant by filing various legal actions against the Applicant including the Winding Up Petition, on the basis that there are unpaid MCSF rather than providing a proper explanation on the charging of such sums;

the Respondent has failed to show that there has been unreasonable delay by the Applicant in the commencement or prosecution of the current legal proceedings and that the consequences of delay render the grant of any reliefs sought in the O.S. as unjust; and

the Respondent had access to the Minutes and all the resolutions passed in the AGM and was well-aware that the purported Resolution was clearly in breach of the SMA 2013 and SMR 2015. Under these circumstances, the Respondent could not rely on equitable doctrines such as laches as it has not approached the court with clean hands.

As for the 8th Issue, the Applicant asserted that the O.S. was filed under a bona fide intention to ensure the Respondent, as a JMB acts in line with the legislative intention of the SMA 2013 and SMR 2015 and to protect the Owners, including the Applicant from the arbitrary, ultra vires and mala fide actions of the Respondent in imposing unfair or illegal MCSF. It was also with the intention of bringing closure to all issues and claims between the Applicant and the Respondent.

Having considered the submissions by the parties, it is my finding that the Applicant has not disputed the rates of the MCSF as agreed in the First AGM prior to the hearings before the Tribunal or before the winding up proceedings were initiated. The Applicant had only raised the issues in the present O.S. after seven years and there was no explanation given by the Applicant for the delay.

I accepted the Respondent’s argument that the Applicant is guilty of laches or inequitable conduct and that the declaration sought by the Applicants was for an improper motive, namely as a delay tactic to stall the hearing of the Winding Up Petition for the sum of RM1,488,793.70, which was to be heard on 27.5.2025. The court in ASM Development Sdn Bhd v Badan Pengurusan Bersama Lingkaran Maju [2024] MLJU 3502 had found that the Applicant has been haemorrhaging cash, is severely insolvent and in deep financial trouble without a business and without any disclosed plan for rehabilitation.

The Applicant submitted that the winding up proceedings are not prejudiced in any manner upon the filing of the O.S. in this Court because the Applicant has affirmed in the AIS that it has placed and deposited the sum of RM6,373,885.36, which is the alleged outstanding MCSF by the Applicant and higher than the claimed sum in the winding up proceedings, with its solicitors to be held as stakeholder pending the disposal of the instant proceedings (see paragraph 40 and exhibit “A-6” in the AIS being the proof of depositing dated 23.12.2024 for the term deposit for the tenure of 91 days).

The maturity date for the term deposit is 24.3.2025. The Applicant attempted to show proof of extension of the placement of RM6,317.967.02 until 24.6.2025 vide Annexure A in its Written Submissions in Reply (encl. 23). However, I did not consider Annexure A in my deliberations as the fact and proof of the extended period for the term deposit should have been affirmed and exhibited in an affidavit.

In the premises, the 7th Issue was answered in the affirmative and the 8th Issue was answered in the negative. 9th Issue: Whether if this Court allows the Applicant’s prayers, it will prejudice the other Owners who have never questioned the rates of the MCSF

The Applicant keenly argued that its application should be allowed to ensure strict compliance by Joint Management Bodies, such as the Respondent, to the aforesaid provisions of the SMA 2013 and SMR 2015 as well as to protect parcel owners. This Issue was said to be self-serving and only protects the interest of the Respondent. The Applicant questioned as to why it should renounce or lose its rights just because the others Owners do not want to, or fail to, protect their interests.

With respect, the Applicant has failed to appreciate an important practical point which is this; it would be impossible for the Respondent to reimburse the Owners for the MCSF that the Respondent has spent on maintaining the Lingkaran Maju Building since 2017. It is for this very reason that it was incumbent on the Applicant to raise the issues which it has now brought up in this suit from the very beginning and not to wait for seven years to pass.

The 9th Issue was therefore answered in the affirmative.

Premised on the foregoing reasons, the Applicant’s application was dismissed with costs of RM7,000.00, subject to allocatur. DATED: 29.8.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Counsels for the Applicant : Dato’ Jasbeer Singh Kaura (Nakeeran Kumar a/l Kanthavel with him) Messrs. Jasbeer Nur & Lee Counsels for the Respondent : Logeswari a/p Subramaniam Messrs. Leong Yeng Kit & Co.