Badan Pengurusan Bersama Cova Suites v 1. ) Tribunal Pengurusan Strata (BA-25-81-12/2022)

(2)(d), (e) & (m) 115, (1) & (4), 117 (2), (3) & Item-item 5, 8 dan 9 Bahagian 2 Jadual Keempat, Seksyen 117(4), 119(b), 120(1)(a) dan (b), (2), 121(1), (2)(a) dan

(b), (3)(b), Item 4 Bahagian 1 Jadual Keempat Akta Pengurusan Strata 2013; Dan Dalam perkara Peraturan 51(b) Peraturan-Peraturan Pengurusan Strata (Tribunal Pengurusan Strata) 2015; Dan Dalam perkara kes Tribunal Pengurusan Strata Tuntutan No: TPS/W-0616-02/2022 antara Wong Li Yoong (Pihak Yang Menuntut) dan Award Selepas Pendengaran yang diberikan pada 7 haribulan Disember 2022; Dan Dalam permohonan untuk perintah certiorari terhadap Award Selepas Pendengaran oleh Tribunal Pengurusan Strata yang diberikan pada 7 haribulan Disember 2022. ANTARA BADAN PENGURUSAN BERSAMA COVA SUITES (No. Pendaftaran: 0228) …PEMOHON DAN

1.

WONG LI YOONG (No. K/P: 740319-14-5628) …RESPONDEN-RESPONDEN JUDGMENT [1] This is an application for judicial review by the applicant against the award of the first respondent dated 7 December 2022. Relief Sought [2] The main reliefs sought by the applicant in this application for judicial review are reproduced below: “(i) Perintah certiorari untuk membatalkan (quash) keseluruhan awad selepas pendengaran oleh responden pertama yang diberikan pada 7.12.2022; dan

(ii) Perintah mandamus supaya responden pertama mendengar semula dan membuat keputusan mengikut undang-undang; atau

(iii) Secara alternative, mahkamah yang mulia ini mengenepikan (set aside) keseluruhan awad selepas pendengaran oleh responden pertama yang diberikan pada 7.12.2022;” Factual Background [3] The facts of this application are garnered from documents filed by parties. [4] On 22 February 2022, the second respondent filed a claim with the Strata Management Tribunal to compel the applicant to prepare audited reports for 2019 and 2020 and hold an AGM. [5] On 10 May 2022, the court dismissed a related injunction application in Suit 333, where plaintiffs sought similar relief. [6] On 13 June 2022, the applicant denied failing to prepare audited accounts or hold an AGM, citing the Covid-19 pandemic, questionable accounts since 2010, and ongoing litigation in Suit 333 as reasons. The applicant also filed a counterclaim for unpaid maintenance charges, later withdrawn after payment. [7] On 13 October 2022, the first respondent instructed the parties to file documents and witness statements. [8] At a hearing on 17 November 2022, the second respondent's counsel chose not to introduce new evidence, relying on the respondent's witness statement, while the applicant's counsel moved to strike out the case. [9] On 7 December 2022, the first respondent ruled in favor of the second respondent, ordering the applicant to hold the 11th AGM within 30 days and prepare the required audited financial statements. If the applicant fails to comply, the Commissioner of Building is authorized to convene the AGM. [10] It is this decision of the first respondent on 7 December 2022 that is the subject matter of this application for judicial review. Grounds for Judicial Review [11] The grounds put forth by the applicant in this application for judicial review are:

breach of natural justice when the plea of “no case to answer” was being taken from the second respondent and it was accepted that the second respondent has discharged her legal burden proof;

(ii) implying or imposing an admission on the applicant of the applicant’s failure to hold an Annual General Meeting (“AGM”);

(iii) failing to consider the applicant’s impossibility to prepare audited financial accounts and AGM; and

(iv) authorizing the Commissioner of Building (“COB”) to hold an AGM in the applicant’s stead when the COB and the first respondent has no power to do so. Principles relating to Judicial Review [12] The grounds for an application for judicial review are illegality, irrationality, procedural impropriety and proportionality. These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [13] The Federal Court’s decision in R Rama Chandran v. The Industrial Court of Malaysia & Anor (supra) suggests that the courts are permitted to scrutinize the challenged decision not only for process but also for substance. In other words, the courts are allowed to go into the merit of the matter. Nonetheless, the Federal Court in subsequent decisions held that not every case is amenable to such approach and merits can only be scrutinized in the most appropriate of cases. [14] In the Federal Court case of Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 the court stated the following: “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion.” Analysis and Findings [15] Founded on the legal principles in judicial review, this court will now proceed to consider this application. [16] The applicant submitted that there was a breach of natural justice when the plea of no case to answer was taken by the second respondent. It was argued that claimant (second respondent bears the legal burden to proof to establish a case and introduce evidence. [See: Dato’ Pardip Kumar Kukreja & Anor v. Vell Paari Samy Vellu [2015] 1 LNS 1482] [17] It was contended by the applicant that the first respondent is not bound by the Evidence Act 1950, nor by the legal principles regarding the burden of proof. However, it has been established through numerous case laws that even tribunals like the Industrial Court, which are also not governed by the Evidence Act 1950, must still adhere to the law on the burden of proof. In Johor Port Berhad v. Mahkamah Perusahaan Malaysia & Anor [2019] 1 LNS 2106 it was held as follows: “while this court is aware that the Industrial Court is not bound to follow strictly the Evidence Act 1950, nonetheless some general principles of Evidence Law must be the guiding points in arriving at a decision” [18] During the hearing on 17 November 2022, the second respondent informed the first respondent that they would rely on the pleadings and chose to submit a “no case to answer” argument. [19] The President of the first respondent then requested all parties to address the issue of the failure to convene an AGM. [20] The applicant informed the first respondent that they wished to submit arguments regarding the second respondent’s “no case to answer” plea. [21] The President of the first respondent permitted this and reminded the parties to also address the issue of the AGM. [22] However, in the applicant’s submission to the Tribunal, they only addressed the “no case to answer” issue and failed to submit on the AGM matter. [23] In this regard, this court alluded to sections 114 and 115 of the Strata Management Act 2013 as reproduced below:

“Determination of rules and procedure

The Tribunal may conduct the proceedings in such manner as it considers appropriate, necessary or expedient for the purpose of ascertaining the facts or law in order that it may determine a claim.

The powers conferred upon the Tribunal under subsection

shall include the following:

to determine when and where any part of the proceedings is to be held;

to determine the language or languages to be used in the proceedings and whether translations of any relevant documents are to be supplied;

to make interlocutory orders;

to determine the relevancy, admissibility and weight of any evidence without being bound by the rules of evidence under the Evidence Act 1950 [Act 56];

to draw on its own knowledge and expertise;

to order the provision of further particulars in a statement of claim or statement of defence;

to order the giving of security for costs;

to make an on-site inspection of the building or land which form the subject matter of the claim;

to order samples to be taken from, or any observation to be made of or experiment conducted upon, any parcel or common property or limited common property which is or forms part of the subject matter of the claim;

to order the discovery and production of documents or materials within the possession or power of a party;

to order the preservation and interim custody of any evidence for the purposes of the proceedings;

to order the interrogatories to be answered;

to order that any evidence to be given on oath or affirmation; and

to summon the parties to the proceedings or any other person to attend before it to give evidence or to produce any document, records or other thing in his possession or otherwise to assist the Tribunal in its deliberations.

A summons issued under paragraph (2)(n) shall be served and enforced as if it were a summons issued by a court.

Hearings

The Tribunal may decide whether to hold oral hearings for the presentation of evidence or oral arguments, or whether the proceedings shall be conducted on the basis of documents and other materials.

The parties shall be given reasonable prior notice of any hearing and of any meeting of the Tribunal for the purposes of inspection of document or property.

All statements, documents or other information supplied to the Tribunal by one party shall be communicated to the other party.

Any expert report or evidentiary document on which the Tribunal may rely on in making its decision shall be communicated to the parties.” [24] Reference was also made to the Strata Management (Strata Management Tribunal) Regulations 2015 (“SMR 2015”) which reads: “Hearing 26.(1) At the hearing before the Tribunal, the claimant shall be entitled to adduce evidence, call any witness or produce any document, record or thing to support his case.

After the claimant has presented his case, the respondent shall present his case and may adduce evidence, call any witness or produce any document, record or thing to support his case.

After the claimant and respondent have closed their respective cases, a brief oral or written submission may be made by the respondent and thereafter by the claimant.

The Tribunal may at any time assist the parties in conducting their cases.

An award made after the hearing under this regulation shall be in Form 11.

Notwithstanding anything to the contrary therein contained in these Regulations, the Tribunal may conduct the proceedings and the hearing in such manner, and give order as it thinks appropriate, necessary or expedient.” [25] A perusal of the provision reproduced above indicates that the first respondent may conduct the proceedings and the hearing in a manner as it deems appropriate, necessary or expedient. The provisions give the first respondent the discretion as to how to conduct the proceedings. In that sense, whether or not the first respondent accepts the plea of “no case to answer” is within the discretion of the first respondent as statutorily provided. [26] In coming to a decision, the first respondent had considered the relevant facts and legal issues. This court is of the view there was no breach of natural justice when the plea of “no case to answer” was accepted by the first respondent. [27] The applicant submitted that the ground of judicial review is the implying or imposing an admission on the applicant of the applicant’s failure to hold an AGM as well as the failure to consider the applicant’s impossibility to prepare audited financial accounts and AGM. [28] The applicant submitted further and/or in the alternative, that the first respondent completely disregarded the impossibility to comply with the statutory provision as raised by the applicant. The legal maxim ‘lex non cogit ad impossibilia’ (the law does not compel the impossible) should apply in this case, according to the applicant. [29] The applicant argued that the impossibility was clearly outlined in their Statement of Defence in the Strata Management Tribunal proceedings as follows:

presenting an audited account at an AGM is mandatory under paragraph 12(3)(b) of the Second Schedule of the Strata

the applicant was unable to prepare the latest audited accounts due to questionable accounts dating back to 2010; and

the account issues were also raised in Suit 333 to support a claim of breach of fiduciary duty against the former committee members. [30] In short, the applicant argued that:

the Strata Management (Exemption to Joint Management Body) Order 2021 exempted them from holding an AGM between 18 March 2020 and 30 June 2021 due to Covid-19;

(ii) numerous ongoing cases involving the applicant and third parties made holding an AGM inappropriate; and

(iii) issues with previous management committees made finalizing accounts, and therefore holding an AGM, impossible. [31] In this regard, this court alluded to the provisions mentioned by the applicant as reproduced below: “Paragraph 10(2), Second Schedule of SMA 2013

The first annual general meeting shall be held within one month after the expiry of the initial period and the subsequent annual general meetings shall be held once in each year, provided that not more than fifteen months shall lapse between the date of one annual general meeting and the next.” Strata Management (Exemption to Joint Management Body) Order 2021 PU(A) 277/2021 The annual general meeting which need to be convened within the period from 18 March 2020 until 30 June 2021 shall be convened latest by 1 July 2021 [Emphasis added] [32] The facts before this court are that the last AGM was held on 2 November 2019, and according to the Strata Management Act 2013 (SMA 2013), the next AGM should have taken place by December

The Covid Exemption Order extended this deadline to 1 July

Despite this, the applicant did not seek or obtain any extension from relevant authorities to delay the AGM or provide audited financial accounts. [33] Additionally, the claim that ongoing cases with third parties prevented the AGM from being held was disputed. These cases, it is observed involved third-party contractors and employees, not conflicting factions over voting rights or maintenance charges, and therefore in the considered view of this court, could not be used as a valid reason for not holding the AGM. [34] It is clear to this court that the applicant had failed to perform its obligations and duties under the SMA 2013. Having failed to perform its obligations and duties pursuant to the SMA 2013, the applicant now comes to this court to claim that the applicant’s rights are prejudiced. [35] Arguments whether the Commissioner of Buildings (“COB”) is authorized to convene the 11th AGM of Cova Suites only if the applicant fails to comply with the first respondent’s Award. This court opines that the applicant’s argument that the COB lacks the power to convene the AGM assumes non-compliance with the Award. The applicant should have already convened the AGM in accordance with the Award. Additionally, granting the COB the power to hold the AGM if the applicant does not comply is viewed as an ancillary or consequential order necessary to enforce the first respondent’s decision. [36] In this regard, this court alluded to Paragraph 9 Part 2 of the Fourth Schedule of SMA 2013 reads: “9. The Tribunal may make such ancillary or consequential orders or relief as may be necessary to give effect to any order made by the Tribunal.” [37] This provision of the SMA 2013, in the view of this court, allows the COB to make an order for the AGM to be held. Conclusion [38] For the abovementioned reasons, this court is satisfied there is no illegality, irrationality or procedural impropriety which would allow this court to allow this application for judicial review. This application for judicial review is therefore dismissed. Costs of RM4,000.00 to be paid to the second respondent, subject to allocator. Date: 26 August 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Applicant: Bernard Scott, Jonas Lee Fook Khong Tetuan Sault Scott & Co. Advocates & Solicitors No. 7-3, Jalan PJU 5/10, Dataran Sunway Kota Damansara, 47810 Petaling Jaya, Selangor. +6 03 6140 7940 sault.scott@yahoo.com For the Respondents: Tan Yan Yong Tetuan YY Tan & Co. Advocates & Solicitors A-12-13, Tropicana Avenue, Persiaran Tropicana Golf and Country Resort, 47410 Petaling Jaya, Selangor. +6 03 7886 0189 admin@yytanco.com