Badan Pengurusan Bersama Gurney Paragon Residential v Hunza Properties (Gurney) Sdn Bhd (P-01(IM)(NCvC)-632-10/2024)

HUNZA PROPERTIES (GURNEY) SDN BHD [ Business Registration No.: 723943-A ] 2 HUNZA PROPERTIES (PENANG) SDN BHD [ Business Registration No.: 440664-U ] 3 BEACHFRONT SERVICES SDN BHD [ Business Registration No.: 968888-M ] TS [In The High Court Of Malaya At Pulau Pinang (Civil Division)

Hunza Properties (Gurney) Sdn Bhd (Company No.: 723943-A)

Hunza Properties (Penang) Sdn Bhd (Company No.: 440664-U)

Beachfront Services Sdn Bhd (Company No.: 968888-M)

Director of Lands & Mines Penang 15/08/2025 15:23:32 P-01(IM)(NCvC)-632-10/2024 Kand. 29 2 | P a g e CORAM: S. NANTHA BALAN, JCA, AZHAHARI KAMAL BIN RAMLI, JCA AHMAD KAMAL BIN MD. SHAHID, JCA JUDGMENT [1] This is an appeal by Badan Pengurusan Bersama Gurney Paragon Plaintiff against the decision of the Learned Judicial Commissioner (now Judge) dated 24 September 2024 dismissing the Plaintiff 26 June 2024 which dismissed the Plaintiff claim in Civil Suit No. PA-22NCVC-247-12/2017 Suit 247 against the Defendants. Suit 247 is reported as Badan Pengurusan Bersama Gurney Paragon Residential v Hunza Properties (Gurney) Sdn Bhd & Ors [2025] 7 MLJ 601, [2024] 10 CLJ 569 (HC). The Plaintiff to dismiss Suit 247 is registered as Civil Appeal (Appeal No. P- 02(NCvC)(W)-1305-07/2024) Appeal 1305 . Background Facts [2] The Plaintiff was established on 14 October 2014 as the Joint Management Body JMB of a development called Gurney Paragon, of which the first defendant ('D1') was the developer and the second defendant ('D2') was the original owner of the land on which the development was built. D2 is the parcel owner of several components of Gurney Paragon, namely: a) Gurney Paragon shopping mall; b) retail podium; c) St Joseph's Heritage Building; d) office block; and e) retail car park (basement and surface) 3 | P a g e [3] D3 -park operator providing valet services at the surface car park lots within Gurney Paragon. The Defendants are subsidiaries of Hunza Properties Berhad. Gurney Paragon is a stratified mixed development and had two distinct components - the residential component ('condominiums') and the commercial component (the mall, the office tower and the heritage structure St Joseph's). [4] From June 2011 to November 2013, vacant possession of the condominiums was delivered to the purchasers. In October 2014, at the first annual general meeting ('first AGM') of the Gurney Paragon serviced condominiums, the Plaintiff was formed under the Building and Common Property (Maintenance and Management) Act 2007 ('BCPA'). [5] The Plaintiff's duty and function was to maintain and manage the building or land intended for subdivision into parcels and the common property. At the first AGM, certain resolutions were passed, inter alia, to establish a separate building maintenance fund to strictly and exclusively manage the residential apartments comprised of the Gurney Paragon serviced condominiums and for the management of the common property and common facilities belonging to and enjoyed by the owners/residents of the Gurney Paragon serviced condominiums and for the owners of the commercial component to set up their own respective separate building maintenance fund, to manage and maintain the commercial component independently from the Gurney Paragon serviced condominiums. 4 | P a g e [6] More than two years after the first AGM, in January 2017, the Plaintiff issued a letter to the Commissioner of Buildings ('COB'), asserting that, (i) D1 failed to deliver to the Plaintiff the approved building plans (for subdivision), the draft strata plans, the schedule of parcels, and the register of parcel owners; and (ii) failed to pay the maintenance and management charges into the Plaintiff's building management fund and failed to contribute to the sinking fund, according to ss. 12 and 15 of the Strata Management Act 2013 ('SMA'). [7] The Plaintiff effectively claimed for RM56.93 million, which consisted of the charges to be paid into the building maintenance fund and the contributions to the sinking fund. D1 denied the Plaintiff's allegations and asked the COB to deliver its administrative decisions and directives concerning this dispute. D1 further wrote to the Plaintiff to state that the Plaintiff's demands revealed that the Plaintiff was seeking a 'monetary contribution' that was contrary to the resolutions that the Plaintiff itself passed at the first AGM, which made their demand legally and ethically unjustifiable. The COB made an administrative decision that the Plaintiff was to maintain and manage the condominiums separately from the commercial components of the mall, the office tower and the St Joseph's and that the Plaintiff was to collect the building maintenance fund charges and the sinking fund contributions only from the condominiums (residential owners) as the commercial component was to be maintained and managed separately by its owner instead. 5 | P a g e Suit 247 [8] The Plaintiff filed Suit PA-22NCVC-247- Suit 247 to claim that the developer and the commercial component owner pay the maintenance and sinking fund charges into the residential component's building maintenance account and sinking fund account. The Plaintiff also sought an order that the developer and commercial component owner deliver possession of the commercial component's common property to the Plaintiff, for the Plaintiff to maintain and manage. Briefly, t complaints against the Defendants via Suit 247 is as follows;

First, it is alleged that D1 failed to carry out duties as a Developer during the "Developer's management period" as provided in Building and Common Property (Management and Maintenance) Act 2007 ("BCP 2007") and/or Strata Management Act 2013 ("SMA 2013"), inter alia, including

Convening the 1st Annual General Meeting ("1st AGM") that was delayed by 32 months from the time frame as stipulated in the BCP 2007 and/or SMA 2013;

Failed to provide statutory documents to the Plaintiff that was requested as early as 16 October 2016 even though all requests were rejected until a Discovery Order was obtained on 30 May 2018.

The actions taken by D1 directly hampered the Plaintiff in discharging its statutory duties.

D1 and/or D2 did not pay to the maintenance account and sinking fund like other Gurney Paragon parcel owners and has through the 1st AGM passed a resolution that the JMB was formed for the exclusive purpose of Gurney Paragon Service Apartments which is a separate and different component from the development area of Gurney Paragon. 6 | P a g e

D1 and/or D2 obtained a letter dated 7 April 2017 from COB reiterating the same.

D1 and/or D2 claim that they own the parcels but refused to pay charges to the maintenance account and contribute to the sinking fund like all other parcel owners.

Plaintiff contends that the resolution passed during the AGM on 14 October 2014 and the COB letter dated 7 April 2017 is void and ultra vires.

D1 and/or D2 is not allowed to form a sub management whether through the BCP regime or otherwise.

In any event, the Plaintiff contends that the requirements under the SMA for the purposes of forming a sub management is not fulfilled.

The ownership of the common property is vested in the hands of the JMB or management corporation. [9] Under Suit 247, the Plaintiff claimed several Common Properties from D1 and/or D2, inter alia, which includes: a) Surface car parks; b) Facade; c) Retail podium and Alfresco Area [10] According to the Plaintiff, the proposed strata plan itself obtained (upon discovery order) distinguished and/or identified several areas which are clear common property. But they were not returned to the Plaintiff. Since D2 claims ownership to these areas and contend that they are not common property, D2 shall similarly pay charges to the Maintenance Account and contribute to the Sinking Fund just like any other parcel owners. The common properties must be immediately returned to the Plaintiff and if D1and/or D2 wishes to use it, they can rent it from the Plaintiff. 7 | P a g e [11] The Plaintiff contends that the surface car parks lots, facade and retail podium are properties held on trust for and on behalf of the Plaintiff. According to the Plaintiff, D1 and D2's failure and/or refusal to relinquish and/or deliver the facade and/or surface car parks lots is contrary to the trust prevailing between D1and/or D2 and the Plaintiff. Consequently, D1 and/or D2 are in breach of the trust obligations owed by them to the Plaintiff. Defects Not Repaired and Nuisance [12] D1 (allegedly) failed to resolve the issues relating to the leakages and exhaust outlets which are within the knowledge of D1 but they were not attended to. It is also alleged that D1 failed to: a) rectify leakages in various locations including P1 and P2 car parks; and b) rectify and/or re-align the exhaust outlets which emits cooking fuel from the retail food and beverage outlets to the residential units [13] In the course of conducting an independent building inspection of both West Tower and East Tower, the inspectors discovered that the electrical and fire protection/fighting systems are in an unsafe condition and this may lead to electrical fire hazards and/or endanger building occupants. [14] The issues that arose in Suit 247 were (i) whether D1 and D2 were liable to pay maintenance charges into the building maintenance account and to pay sinking fund contributions into the sinking fund account; and (ii) which party was to manage the common properties delineated in yellow in the strata plan. 8 | P a g e Reliefs Sought in Suit 247 [15] In Suit 247, the Plaintiff sought the following reliefs: Charges to the maintenance account and contribution to the sinking fund

A declaration that D1 and/or D2 is to pay maintenance charges to the maintenance account and sinking fund in accordance to the rates determined by the Plaintiff payable by all the other parcel owners;

that D1 and/or D2 to pay a total sum of RM56,930,645.52 to the maintenance account and sinking funds of the

In the alternative to the above prayers, that D1 and/or D2 to pay a total sum for the maintenance account and sinking funds after deducting the share units allocated for the Retail Podium and/or surface car parks;

A declaration that all that wall on the exterior of Gurney Paragon Shopping Mall which forms the facade of the shopping mall ("the Facade") is common property;

A declaration that all that open space in the front of St Jo's Heritage Building of Gurney Paragon ("the Retail Podium") is common property;

A declaration that all surface car park bays or lots in Gurney Paragon are common property,

A declaration that D1 and/or D2 was and is holding the façade, Retail podium and Surface Car Park Lots for the Plaintiff in trust;

A declaration that the parcelling or accessorising and/or disposal of the Surface Car Park Lots by D1 to D2 is invalid and/or null and void;

A declaration that the parcelling or accessorising and/or disposal of the Retail Podium by D1 to D2 is invalid and/or null and void;

An order that the parcelling or accessorising of and/or disposal of the Surface Car Park Lots by D1 to D2 be set aside; 9 | P a g e

An order that the parcelling or accessorising of and/or disposal of the Retail Podium by D1 to D2 be set aside;

An Order that D1 and/or D2 do forthwith deliver the Façade, Retail Podium and Surface Car Park Lots to the Plaintiff;

An Order that D1 and/or D2 and/or D3, whether through its agents, nominees and/or officers, is not entitled to use the Façade, Retail Podium and Surface Car Park lots for any activity and/or purpose without the permission of the Plaintiff having first been obtained in writing;

An account by D1 and/or D2 of the revenue and/or income collected from the usage of the Façade and/or the Retail Podium, whether through advertising or any commercial activity or otherwise, from the commencement of collection of such revenue and/or income to the date of the Order herein;

An Order that the account in prayer (n) above be provided by D1 and/or D2 to the Plaintiff by way of a sworn affidavit within 7 days from the date of the Order herein;

An Order that D1 do pay to the Plaintiff all moneys found to be due to the Plaintiff on the taking of the account in prayer (o) above;

An account by D2 and/or D3 of the revenue and/or income collected from the usage of the Surface Car Park Lots, whether through commercial car parking or any commercial activity or otherwise, from the commencement of collection of such revenue and/or income to the date of the Order herein to the date of the Order herein;

An Order that the account in prayer (q) above be provided by D2 and/or D3 to the Plaintiff by way of a sworn affidavit within 7 days from the date of the Order herein;

An Order that D2 and/or D3 do pay to the Plaintiff all monies found to be due to the Plaintiff on the taking of the account in prayer (r) above;

An Order that D1 and/or D2 do provide the Plaintiff within 7 days from the date of the Order herein a list of all users and/or advertisers including any agreements executed between D1 and/or D2 and such users and/or advertisers in relation to the Façade and/or the Retail Podium; 10 | P a g e

An Order that D1 has breached its trust obligations to the

An Order that D2 has breached its trust obligations to the

Consequent upon prayer (u) above, an Order that D1 do pay to the Plaintiff general damages for breach of trust as may be assessed by this Honourable Court;

Consequent upon prayer (v) above, an Order that D2 do pay to the Plaintiff general damages for breach of trust as may be assessed by this Honourable Court;

Pursuant to Section 11 of the Civil Law Act 1956, interest at such rate and for such period as this Honourable Court deems fit and/or otherwise appropriate in respect of the damages awarded pursuant to prayers (w) and/or (x) above; Defects (ya) An Order that D1 to rectify all defects identified in the independent building inspection and advisory report conducted on 5.9.2017 and 6.9.2017 by Architect Centre Sdn Bhd including leakages/seepages in P1 and P2 car parks and complete all repair / rectification works within 90 clear days from the date of this Order; (yb) An Order that D1 to re-align and/or rectify the exhaust outlets and/or exhaust system to stop any acts of trespass, among others to prevent commercial cooking fume continues to escape into residential units and the common property and complete all re-alignment and/or rectification works within 90 clear days from the date of this Order; (yc) An order to restrain D1 by himself, its agents, tenants, employees, successor and/or his/her representatives or otherwise from repeating or continuing the nuisance or any nuisance of a like kind and acts of trespass; (yd) An Order that D1 to rectify all defects and/or attend to all shortcomings identified in the active fire protection services inspection conducted on 17.1.2018 by the Architect Centre Sdn Bhd and complete all defects and/or attend to all shortcomings within 90 clear days from the date of this Order; 11 | P a g e (ye) An Order that D1 to rectify all defects and/or attend to all shortcomings identified in the electrical services inspection conducted on 17.1.2018 by the Architect Centre Sdn Bhd and complete all defects and/or attend to all shortcomings within 90 clear days from the date of this Order; (yf) general damages be assessed against D1;

An order that the 4th Defendant D4 be bound by any order made by this Honourable Court with regards to any form of adjustment made to the share units and/or surrendering the Common Property to the Plaintiff; (aa) An order that if the strata plan is approved and endorsed by D4 be herein set aside forthwith and further take into account any order made by this Honourable Court which may relate to the strata plan; Dismissing Suit 247 [16] On 26 June 2024, the Learned Judicial Commissioner (now Judge) dismissed the Plaintiff

Tuntutan Plaintif terhadap Defendan-Defendan Pertama, Kedua dan Ketiga di perenggan-perenggan 66(a), 66(b), 66(c), 66(ca), 66(d), 66(e), 66(f), 66(u), 66(v), 66(w), 66(x) dan 66(y) Pernyataan Tuntutan Terpinda Semula Plaintiff bertarikh 15.05.2020 ditolak.

Tuntutan Plaintif terhadap Defendan-Defendan Pertama, Kedua dan Ketiga di perenggan-perenggan 66(cb), 66(g), 66(h), 66(i), 66(j), 66(k), 66(1), 66(m), 66(n), 66(0), 66(p), 66(q), 66(r), 66(s), 66(1) Pernyataan Tuntutan Terpinda Semula Plaintiff bertarikh 15.05.2020 ditarik balik oleh Plaintif.

Tiada perintah terhadap tuntutan Plaintif di perenggan-perenggan 66(ya), 66(yb) dan 66(yc) Pernyataan Tuntutan Terpinda Semula Plaintif bertarikh 15.05.2020 kerana perintah bertarikh 8.4.2022 (Lampiran 247) telah direkodkan di hadapan Pesuruhjaya Kehakiman YA Kenneth Yoong Ken Chinson St James pada 8.4.2022.

Tuntutan Plaintif di perenggan-perenggan 66(yd) dan 66(ye) Pernyataan Tuntutan Terpinda Semula Plaintiff bertarikh 15.5.2020 adalah ditarik balik oleh Plaintif pada 16.04.2024 dengan pemeliharaan hak Plaintif untuk memfailkan satu tuntutan yang baru berkenaan dengan yang sama. 12 | P a g e

Tiada perintah terhadap tuntutan Plaintif di perenggan-perenggan 66(yf) Pernyataan Tuntutan Terpinda Semula Plaintif bertarikh 15.05.2020.

Tuntutan Plaintif terhadap Defendan Keempat di perenggan-perenggan 66(z) dan 66(aa) Pernyataan Tuntutan Terpinda Semula Plaintiff bertarikh 15.05.2020 ditarik balik oleh Plaintif.

Kos sebanyak RM200,000.00 dibayar oleh Plaintif kepada Defendan-Defendan Pertama, Kedua dan Ketiga pada atau sebelum 27.9.2024, tertakluk kepada fi alokatur.

Kos sebanyak RM80,000.00 dibayar oleh Plaintif kepada Defendan Keempat pada atau sebelum 27.9.2024, tanpa tertakluk kepada fi alokatur. [17] A summary of the [2024] 10 CLJ 569 is as follows:

In a mixed development, with different types of parcels - residential parcels and commercial parcels - the developer is entitled to impose different rates for the different types of parcels. The chargeable rate to maintain and manage common facilities which are for the exclusive 'benefit and enjoyment' of the residential parcel owners, should not be the same as the rate chargeable for the commercial parcel owners, who do not have the right to use such exclusive facilities that are only for the residential parcel owners. The formula to determine the different chargeable rates must 'represent a fair and justifiable proportion of the expenses for the maintenance and management of the common property.' (para 57)

It was not 'just and reasonable' nor was it 'fair and justifiable' for the Plaintiff to charge the first and second defendants the same rates or charges that residential parcel owners pay into the Plaintiff's building maintenance account and sinking fund account. The second defendant, as the commercial parcel owner did not (and does not) get to use the common facilities that were exclusive to the residential parcels such as the swimming pool and the gym. Nor did the second defendant get the benefit of the expenses incurred by the Plaintiff for the residential parcels, such as general repair and maintenance. The Plaintiff also did not pay any money towards the maintenance and management of the common property of the commercial component, which was managed by the second defendant. (paras 59-63) 13 | P a g e

The first and second defendants were never asked by the Plaintiff to vote on the resolutions passed at the Plaintiff's general meetings; on pertinent resolutions such as the resolutions on the rate chargeable for the maintenance and management of the common properties in Gurney Paragon. Section 22(2)(g) of the Strata Management Act 2013 ('SMA') provides that the second defendant, as the owner of the unsold parcels in Gurney Paragon, had the same voting rights as any purchaser, exercisable in a general meeting. At the first AGM, it was not the second defendant who caused, or was responsible for, the passing of the resolutions passed. The second defendant did not attend the first AGM as a commercial parcel owner and did not vote. It was only the residential parcel owners who voted and passed the resolutions and so, the residential parcel owners and the Plaintiff were bound by the resolutions. (paras 64-71)

The first AGM resolutions were affirmed at the second AGM. No subsequent resolutions passed at subsequent AGMs invalidated the first AGM resolutions. In the AGMs after the first AGM, the budgets presented by the Plaintiff disclosed expenses solely for the residential component (condominiums). There was no budget for any provision to maintain and manage the commercial component. The fact demonstrated that the Plaintiff had not only accepted but in fact endorsed the separation of the building maintenance and sinking fund accounts into the residential component and the commercial component. Further, the Plaintiff's expenses were limited only to the residential parcels. The Plaintiff's audited accounts did not disclose any expenses for the commercial component (paras 72-76)

Section 16(5) of the Building and Common Property (Maintenance and Management) Act 2007 ('BCPA') provides that the COB is empowered to resolve disputes about the building maintenance account 'as he deems fit and just.' The COB had decided (i) the maintenance of the condominiums (residential parcels) was separate from the commercial parcels; and (ii) the Plaintiff was to collect maintenance charges for the residential parcels only; the commercial parcels were to be maintained and managed by their owner, namely the second defendant. The COB's decision was based on the resolutions, as the resolutions were unanimously passed. The resolutions provided that the management, collection and expenditure of the residential component, which necessarily included the building maintenance account money - were to be separate from the commercial component. As the BCPA empowered the COB to resolve disputes about the building maintenance account, and his decision was not set aside, the COB's decision was thus binding on the Plaintiff. (paras 81-87) 14 | P a g e

The Plaintiff's one development-one account argument did not result in a just outcome. Gurney Paragon was a mixed development. For the one development-one account argument - which necessarily meant that there could only be one chargeable rate - to be just and reasonable, in relation to the SMA, and fair and justifiable in relation to the SPAs between the first and second defendants and the purchasers, these three things must take place:

the general meetings - where the Plaintiff asserted that decisions relating to the whole Gurney Paragon development were made - must be attended by all parcel owners (residential and commercial) so that they could all vote on the resolutions, which constitute binding decisions; (ii) if all parcel owners (residential and commercial) were not given the right to vote, the general meeting would have no power to decide on the one rate chargeable for all parcels: residential and commercial; and (iii) also, the AGMs would not have been in compliance with the SMA, and the decisions made at the AGMs would be rendered void. Herein, no valid AGM was held by the Plaintiff, because the second defendant, as the commercial parcel owner, was not given the right to attend the AGMs as a parcel owner, with a right to vote. To determine a valid chargeable rate, a general meeting with all the parcel owners in attendance, including the second defendant, must be held. Until a valid rate is determined, no charges were due and owing from the first and second defendants. The first and second defendants were not liable to pay the Plaintiff the RM56.93 million claimed (paras 88, 91 & 94)

The second defendant (as the commercial component owner) was to continue to maintain and manage its own commercial component common property. The maintenance and management of the commercial component's common property were to remain status quo. This court was bound to interpret the BCPA and the SMA as social legislations which were not rigid but flexible, to bring about what was 'just and reasonable' and 'fair and justifiable' which compelled this court to allow separate maintenance and sinking fund accounts for the residential component as against the commercial component. (paras 95-98) Enclosure 311 [18] The Plaintiff filed a Notice of Appeal decision. In the meanwhile, the Plaintiff applied to the High Court (via Enclosure 311) under Order 45 Rule 11 of the Rules of Court 2012, Section 73 of the Courts of Judicature Act 1964, and/or the inherent jurisdiction of this Honourable Court pursuant to Order 92 Rule 4 of the Rules of Court 2012 for the following orders: 15 | P a g e

That the execution of paragraphs (1), (2), (3), (4), (5) and (7) of the High Court Judgment dated 26.6.2024 be stayed pending the disposal of the Plaintiff's Civil Appeal No.: P-02(NCVC)(W)-1305- 07/2024 in the Court of Appeal against the High Court Judgment dated 26.6.2024 ("Appeal");

That the execution of paragraphs (1), (2), (3), (4), (5) and (7) of the High Court Judgment dated 26.6.2024 be stayed pending the disposal of the Plaintiff's Appeal in the Court of Appeal;

That the First Defendant, Second Defendant and/or Third Defendants are not allowed to exercise their rights to vote in the Plaintiff's Annual General Meeting and/or Extraordinary General Meeting pending the disposal of the Plaintiff's Appeal in the Court of Appeal;

Costs; and

All other and/or further relief which this Honourable Court deems fit and proper. Grounds for Enclosure 311 [19] Briefly, the grounds in support of the Plaintiff

The Plaintiff has on 25.7.2024 filed an Appeal against the High Court Judgment dated 26.6.2024 ("Judgment") against D1 to D3;

This stay of execution is sought to stay all forms of execution of the orders of the High Court in said Judgment, in particular, D1 to D3's rights to vote, payment of the costs in the sum of RM200,000.00 to D1 to D3 and the dismissal of the Plaintiff's declaration for D1 and/or D2 to pay maintenance charges and contribute to the sinking fund in accordance to the rates determined by all the other parcel owners.

There are special circumstances that warrant a stay of execution of the said Judgment, in essence:

D1 and/or D2 collectively hold a majority 312,552 share units, representing 75.61% of the total aggregate share units in the Development Area. 16 | P a g e

To dismiss the Plaintiff's claim against D1 and/or D2 to pay charges and contribution to the sinking fund in a total sum of RM56,930,645.52 essentially render D1 and/or D2 free from any arrears of charges and be allowed to vote in the upcoming AGM of the Plaintiff pursuant to paragraph 21(2), Second Schedule of the

D1 and/or D2 being the majority share units holder would be in a position to outvote the rest of the residents and:

change the dynamic of the conduct of the Appeal against the High Court Judgment; and

(ii) change the composition of the committee in the Plaintiff / Joint Management Body ("JMB") and take over the management of the Development Area of the JMB.

To allow D1 and/or D2 to vote without paying charges would result in a serious inconsistency and have wide-ranging consequences, impacting the development area as a whole;

One-time payment of RM200,000.00 is a huge sum which would affect the utilising of the maintenance and sinking funds intended for the management and maintenance of the Development Area for the common good of the parcel owners and/or proprietors as a whole;

The Plaintiff's Appeal in the Court of Appeal will be rendered nugatory if a stay is not granted and the High Court Judgment is executed;

The balance of convenience lies in favour of the Plaintiff. 17 | P a g e [20] In opposing this appeal, the Defendants raised several preliminary objections. First, counsel for the Defendants submitted that the Judgment dated 18 September 2024 dismissed the Plaintiff claim which included a monetary component. The effect of the decision is that the Plaintiff is to maintain and manage the residential component property for the residential parcel owners, and D1/D2 to maintain and - the commercial parcel owner. (See: paragraph [98] of the Learned Judicial Commissioner Judgment in Suit 247). Thus, there is nothing positive to do or not to do. Further, it was impressed upon us that there is no counterclaim by the Defendants. [21] Counsel for the Defendants said that therefore there is, nothing to be executed upon. Counsel referred us to paragraphs [11], [12] and [13] of the Learned Judicial Commissioner , which reads as; MY GROUNDS FOR DISMISSING P's APPLICATION [11] First-as I alluded to earlier, it is unusual for an unsuccessful plaintiff, in a suit with no counterclaim by the defendants, to ask for a stay of execution of the judgment. The terms of the judgment denied P their claim. Here, P's primary claim was for the alleged arrears in maintenance and sinking fund charges that D1D2D3 allegedly did not pay P. [12] The judgment does not order P to pay any sum of money. The judgment does not order P to perform any act or carry out an obligation. [13] I asked P to show me - from the terms of the judgment dated 26.6.2024 - which term of the judgment is available for D1D2D3 to execute or enforce against P. P could not give me an answer. And so I find that there is no term in the judgment that can be executed or enforced against P. There exists no term in the judgment that should be stayed. This leads me to conclude that this application for a stay of execution does not (cannot) relate to "the enforcement of the judgment". 18 | P a g e [22] Next, we were referred to paragraph 3 of Enclosure 311 which was described as being akin to an application for injunction whereby the Defendants are not allowed to exercise their rights to vote in the AGM and EGM. [23] It was pointed out that the AGM was conducted on 24 November 2024 and the Defendants did not vote. According to the counsel for the Defendants, they were not invited as parcel owners to participate or vote. Hence, the application [24] Next, in so far as the Plaintiff is seeking a stay of costs of RM200,000.00, this is also academic as the Plaintiff had already made payment of costs on 27 September 2024. [25] Counsel for the Defendants emphasized that the Plaintiff issued Form 5A . The Form 5A is the precursor to the invoice for maintenance charges. However, the invoice had yet to be issued. At any rate, the Defendants contend in their favour, the Plaintiff is insisting that the Defendant pay maintenance charges. It was emphasized that every year, the budget is only for the residential component and not for the commercial component of Gurney Paragon. Counsel said that he sent a letter asking the Plaintiff to withdraw Form 5A but they refused. 19 | P a g e [26] Finally, counsel for the Defendants argued that the Plaintiff is relying on Order 45 rule 11 of the Rules of Court 2012 which deals with an application for stay of execution based on matters occurring after judgment. Here, nothing has occurred by way of the Defendants conduct or action to trigger Order 45 r.11 because the Plaintiff is relying on events which pre-dated the . Our Decision [27] On 24 September 2024, the Learned Judicial Commissioner (now Judge) dismissed the Plaintiff Plaintiff now appeals to this court against that decision. Ordinarily, upon the High Motion in Appeal 1305 to renew their application on terms as sought in Enclosure 311. However, instead of doing so, the Plaintiff has chosen to appeal to the Court of Appeal. The consequences of adopting the appeal route is as stated below. [28] It is trite that when a court hears an application for stay then the relevant consideration is whether there are special circumstances to exercise the allow a stay. (See: Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 (FC), paragraph [23]; [2003] 5 AMR 758; [2003] 4 CLJ 1; [2003] 1 MLRA 536). On the other hand, in an appeal to the Court of Appeal against the determine whether the High Court had wrongly exercised its discretion not to grant a stay. 20 | P a g e [29] In the present case, the matter has come before us as an appeal against the sought. As such, the function of this Court vis-à-vis the appeal is one of review only. This is elaborated further in the paragraphs below. [30] In so far as the stay application was concerned, in paragraphs [12] and [13] of the Grounds of Judgment the Judicial Commissioner had clearly alluded to the situation here, which has prompted the Defendants side to raise a preliminary objection, that in view of the dismissal of the Plaintiff's claim, there is nothing on which execution can be levied as there is no positive thing to do, or not to do on either side. [31] We have considered the issues carefully and given much thought to the Plaintiff's concerns as to what may take place vis-à-vis the AGM/EGM during the period between now and the main appeal (Appeal 1305) which is yet to be fixed for hearing. [32] We are of the view that there is no legal basis for us to grant the orders sought by the Plaintiff which have been couched as a stay, as there is, as rightly stated by counsel for the Defendants, nothing to stay . [33] We simply do not see how special circumstances can be said to exist in a situation where the claim has been dismissed and the Plaintiff now seeks a so-called stay or an injunction to prevent the Defendants from voting at any AGM or EGM (See: paragraph 3 of Enclosure 311) to mitigate or to cater to the situations or possible consequences that may follow from the dismissal of the Plaintiff's action. 21 | P a g e [34] On the issuance of the Form 5A, we think that we should not say anything either way, as this may be construed as a finding by this Court and may be utilised in the committal proceedings which are on-going between the parties. We shall leave it as a live issue for parties to argue in the committal proceedings. Hence, we are neutral on the question of whether Form 5A was in defiance of the High Court's order. [35] Before us, the Defendants have stated that even at the last AGM, they did not vote. Hence, it was suggested that the Plaintiff's fear of the Defendants exercising majority rights at the AGM is misplaced. We think that is a matter to be ventilated at the appeal proper and not before us. The issue of costs has been conceded as being academic. [36] In the circumstances, regardless of whether there are merits in the main appeal (Appeal 1305) in favour of the Plaintiff or in favour of the Defendants, the appeal which is presently before us, is an appeal against the High Court's exercise of discretion and our appellate function here is merely to review the decision of the High Court. [37] In this regard, it is apt to refer to the case of Vasudevan Vazhappulli Raman v. T Damodaran PV Raman & Anor [1981] 2 MLJ 150, [1981] CLJ 84; [1981] CLJ (Rep) 101, where Abdoolcadeer J (later SCJ) held as follows: There is a catenation of cases on this point and it will suffice to cull and refer to a few which restate the well-settled principles. An appellate Court can review questions of discretion if it is clearly satisfied that the Judge was wrong but there is a presumption that the Judge has rightly exercised his discretion and the appellate Court must not reverse the Judge's decision on a mere " measuring cast " or on a bare balance as the mere idea of discretion involves room for choice and for differences of opinion (Charles Osenton & Co. v. Johnston [1942] AC 130, 148 at p. 148 per Lord Wright). 22 | P a g e The Privy Council held in Ratnam v. Cumarasamy & Anor.[1964] CLJU 237; [1964] 1 LNS 237; [1965] 1 MLJ 228 that an appellate Court will not interfere with the discretion exercised by a lower Court unless it is clearly satisfied that the discretion had been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice, referring to Evans v. Bartlam [1937] AIR AC 473. The House of Lords, approving the decision of the English Court of Appeal in Ward v. James [1966] 1 QB 273 held to the same effect in Birkett v. James [1978] AC 297, 317, 326 (at pp. 317, 326). For good measure, we would refer to the felicitous expression of Goulding J, in Re Reed (a debtor) [1979] 2 All ER 22, 25 on this point (at p. 25): ... the duties of an appellate Court in such a matter as this are, in my judgment, confined to those normally exercisable where the lower Court has a discretion, that is to say, we are not justified in setting aside or varying an order simply because we may think we might have come to a different conclusion ourselves on similar material. We Can only interfere if either we can see that the Court below has applied a wrong principle, or has taken into account matters that are in law irrelevant, or excluded matters that it ought to have taken into account, or otherwise that no Court, properly instructing itself in the law, could have come to the conclusion which in fact was arrived at. [38] On the whole, we agree with the Learned Judicial Commissioner (now Judge) that there is nothing on which execution can be levied as there is no positive thing to do, or not to do on either side. In the circumstances, we do not see any error of law or misdirection on the part of the High Court or any wrongful exercise of discretion in dismissing the application that was filed by the Plaintiff via Enclosure 311. The appeal is clearly devoid of merit and it is hereby dismissed with costs of RM10,000.00 (subject to allocator). S. Nantha Balan, Judge, Court of Appeal, Putrajaya, Malaysia. Date: 18 July 2025 23 | P a g e Legal Representation For the Plaintiff Mr. Lai Chee Hoe Mr. Low Yen Hau Ms. Felicia Toh Yue Qian Messrs. Chee Hoe & Associates Level 1, Conservatory, 7 Lorong Travers, Bukit Persekutuan 50480 Kuala Lumpur. For the Defendants Mr. Ashok Kumar Mahadev Mr. Lim Chin Lun Messrs. Skrine Level 8, Wisma Uoa Damansara, 50 Jalan Dungun, Bukit Damansara 50490 Kuala Lumpur.