Badan Pengurusan Bersama Gurney Paragon Residential v 1. ) Hunza Properties (Gurney) Sdn Bhd (PA-22NCvC-247-12/2017)

HUNZA PROPERTIES (GURNEY) SDN BHD

HUNZA PROPERTIES (PENANG) SDN BHD

BEACHFRONT SERVICES SDN BHD

PENGARAH TANAH DAN GALIAN PULAU PINANG …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Application to set aside Order for leave to commence committal)

I delivered a post-trial judgment in this case on 26.6.2024 (Judgment). I then gave my written grounds of judgment on 18.9.2024 (GOJ). 06/08/2025 11:56:44

On 27.1.2025, the 1st to 3rd Defendants (Ds) filed an ex parte application for leave to commence committal proceedings against the Plaintiff (P), which is the joint management body (Application for leave). On 6.3.2025, I granted Ds the leave to apply for a committal order (Leave Order).

P is the alleged contemnor. P now applies to set aside the Leave Order.

P presents these grounds to set aside the Leave Order. Non-service of the Judgment on the committee members of P

At the start of oral submissions, P raised the issue that the Judgment was not served on the committee members of P’s joint management committee. But later, when it was pointed out that P did not raise this as an issue to be determined for the Application for leave, and that P did not raise the averment of fact that the committee members were not personally served with the Judgment, P’s counsel forthrightly informed me that P is dropping this point i.e. retracting this issue as a ground to set aside the Leave Order.

This is commendable, because, instead of the conduct of counsel that I sometimes see, that is, counsel raising all manner of issues, or as many issues as they can possibly conceive, P’s counsel here facilitated the reduction and the narrowing down of the issues argued, in order to save time and costs. Page 3 of 20 Nothing in the Judgment to be enforced i.e. there was no counterclaim against P

P argues that the Judgment (delivered on 26.6.2024, with the GOJ given on 18.9.2024) is not a Judgment that compels P to do or to abstain from doing an act. P argues that in the Judgment, I merely dismissed P’s claim, which contained many prayers for various reliefs and remedies.

As such, P argues, the Judgment cannot be enforced by way of Order 45 Rule 5 of the Rules Of Court 2012 (ROC).

The pertinent portions of Order 45 Rule 5 are set out here for reference— Enforcement of judgment to do or abstain from doing an act (O. 45, r. 5)

(1) Where—

a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or

a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to these Rules, the judgment or order may be enforced by one or more of the following means:

(A) with the leave of the Court, an order of committal;

(B) where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body;… My finding 10. P’s argument can be reworded in this way: the Judgment does not prohibit P from performing any specific act. This means that there can be no breach of the terms of the Judgment by the performance of any act. Hence, leave should not be given for Ds to commence committal proceedings against P, as P did not perform any prohibited act.

I find this argument untenable.

First, when considering this Application for leave, I am to consider whether Ds (applicants) have shown, by their cause papers (here: the Notice Of Application, the Affidavit In Support of the application, the statement under Order 52 Rule 3(2) of the ROC (Order 52 Statement), and the second Affidavit In Support), that there is “a prima facie case for contempt” i.e. there is a prima facie basis for the intended committal application—Wee Choo Keong v MBF Holdings & Anor and another appeal [1993] 2 MLJ 217 (SC); [1993] 2 AMR 1205; [1993] 3 CLJ 210; [1993] 1 MLRA 260.

In considering whether there is a prima facie case for contempt, I am also to consider whether the affidavit evidence presented is “not inherently improbable” i.e. inherently probable—Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors [2016] 7 MLJ 1 (HC); [2017] 4 AMR 434; [2016] 1 CLJ 52; Page 5 of 20 [2016] 2 MLRH 31 per Justice Nazlan Ghazali, citing Tan Kang Ho v Mao Sheng Marketing (M) Sdn Bhd & Ors [2015] 5 AMR 146 (HC); [2015] 4 CLJ 113; [2015] MLRHU 83 per Justice Wong Kian Kheong.

In my Judgment, I made findings that include these findings—

the 1st and 2nd Defendants (D1D2) are not liable to pay into P’s building maintenance account and P’s sinking fund account;

D1D2 are permitted to separately maintain and manage the commercial component’s common property; and

separate maintenance and sinking fund accounts are allowed for the residential component as opposed to the commercial component.

The affidavit evidence presented in Ds’ Application for leave, which I find is inherently probable, discloses that P has committed the following acts, which I consider are prima facie evidence of acts which are contrary to the terms of my Judgment—

P issued its letter dated 7.11.2024 to D1D2, where its paragraph 5 states: “we will continue to treat you as part of the Strata Scheme under the umbrella of the Joint Management Body…”. D1 replied by letter dated 13.11.2024, stating that the content of paragraph 5 of P’s 7.11.2024 letter was in blatant disregard of the Judgment. P did not respond further. Instead, P issued the Form 5A to D1D2. Page 6 of 20

P issued the Form 5A under Regulation 13 (Notice Of Resolution Confirming Charges, Contribution To The Sinking Fund And Rate Of Interest Determined By Joint Management Body) dated 9.12.2024, which notified D1D2 that “the amount of charges imposed on you [i.e. D1D2] as the parcel owner…shall be [at such a rate]” and “the amount of contribution to the sinking fund imposed on you …shall be [at such a rate]” and “the rate of interest payable in respect of any late payment of the Charges or contribution to the sinking fund is 10% per annum”.

Ds’ solicitors wrote to P’s solicitors by letter dated 22.1.2025 (show cause letter) to state that P’s conduct offends the terms of the Judgment, and to ask P to show cause why P should not face contempt and committal proceedings. Ds gave P 24 hours to respond. P did not respond. On 27.1.2025, Ds filed their Application for leave.

P’s letter dated 5.2.2025, finally replying to Ds’ show cause letter, came too late. P’s reply letter came two weeks after the show cause letter, and after Ds filed their Application for leave.

Second, there are two types of contemptuous conduct—(i) ”specific conduct of contempt for breach of a particular court order”, and (ii) ”a more general conduct for interfering with the due administration or the course of justice”—Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458 (FC); [2012] 2 AMR 429; [2012] 2 CLJ 849; [2012] 2 MLRA 717.

An example of the specific contemptuous conduct is a breach of an injunctive order. The more general contemptuous conduct includes acts which are contrary to, or acts which defy, or even acts that circumvent, the terms of a judgment or order of court.

I find, on a prima facie basis, that P had committed this “more general” contemptuous conduct.

Even though the Judgment clearly states that D1D2 are not liable to pay maintenance charges nor to contribute to P’s sinking fund accounts (which relate only to the residential component’s common property), and P is to maintain these accounts separately to the commercial component’s funds for these purposes—P nevertheless issued the Form 5A notice to D1D2, insisting that maintenance charges and sinking fund contributions are “imposed’ on them, and that late payment interest too will be charged accordingly. P issued this Form 5A notice to D1D2 as if D1D2 are liable to pay these charges, contributions and interest.

Third, P argues that it issued the Form 5A notice because it was just carrying out a statutory obligation under Regulation 13 of the

And that is exactly the point. P issued the Form 5A notice to D1D2 as if there was never any litigation that resulted in the Judgment that D1D2 is not liable to pay these charges into P’s accounts.

Regulation 13 provides that within 28 days after each general meeting, P (the joint management body: JMB) “shall issue [the Page 8 of 20 Form 5A notice] to all purchasers to inform the purchasers” about the amount of charges, contributions and late payment interest imposed by the JMB.

P, at first instance, appeared to have disregarded, and I would say ignored, the terms of the Judgment. This conduct, to me, is prima facie evidence that P willfully disregarded the terms and the effects of the terms of the Judgment. This conduct constitutes an interference with the due administration and course of justice.

The Judgment determined that D1D2 are not liable to pay the charges, contributions, and late payment interest. Yet P continued to impose the charges, contributions, and late payment interest on D1D2. This amounts to interfering with the administration and the course of justice. I reiterate that one of the effects of the Judgment is that D1D2 need not pay these charges. D1D2 are not liable to pay these moneys that are used to maintain and manage the residential component’s common property. D1D2, as commercial parcel owners, are permitted to maintain and manage their own commercial component’s common property.

The due administration or course of justice dictates that the parties in this suit are to comply with, adhere to, and respect the terms and the effects of the Judgment. By continuing to impose the charges, contributions and late payment interest on D1D2, P is interfering with the due administration and course of justice.

Fourth, P knew the terms of the Judgment, in the form of the sealed Judgment dated 26.6.2024 and in the form of the GOJ given on

18.9.2024. If P was merely carrying out its statutory duty when it issued the Form 5A notice, because it was (as submitted) fearful of the consequences of not issuing it to D1D2, P could have qualified or modified the terms of the Form 5A notice. But P did not do that.

When I asked P why it did not qualify or modify the Form 5A notice issued to D1D2, P replied that it was because Form 5A was a standard form notice. P merely followed the standard form. I find this explanation to be a mere excuse. Following a protracted and heavily contested litigation, which resulted in the Judgment, and apprised of the grounds (the reasons) for the Judgment, the least that P could have done—if it was fearful of the consequences of not issuing the Form 5A notice to D1D2, and it felt that it could not change the standardised words of Form 5A—was to issue the Form 5A notice to D1D2 with a cover letter stating, or at least explaining, its position.

For instance, P could have stated that it was merely carrying out its statutory duty to issue the Form 5A notice to D1D2, but because of the Judgment, D1D2 are not liable to pay these charges, contributions and late payment interest that P had decided to impose on the residential parcel owners. But P did not do even that. Failure to adhere to Order 42 Rule 6(1) of the ROC (a judgment or order to do an act shall specify the time within which the act is to be done)

P argues that there was a failure to adhere to Order 42 Rule 6(1) of the ROC. Order 42 Rule 6(1) provides that a judgment or order which requires a person to do an act must specify the time within Page 10 of 20 which the act is to be done. In other words, when a person is ordered to do an act, the order must set a time for it to be done.

Order 42 Rule 6(1) is set out here for reference—

Judgment requiring act to be done: Time for doing it (O. 42, r. 6)

Subject to paragraph (2), a judgment or order which requires a person to do an act shall specify the time after service of the judgment or order, or some other time, within which the act is to be done. The Judgment which Ds seek to enforce does not relate to the doing of an act within time 32. P argues that the Judgment does not relate to the doing of an act within time. No penal endorsement on the Judgment, and P’s committee members are not party to the suit 33. P argues that there was no penal indorsement on the Judgment. P submits that since committal proceedings are quasi-criminal proceedings in a civil suit, strict procedural compliance is required of Ds when they seek leave to commence committal proceedings.

P further argues that P’s committee members are not parties to this suit. P is not named in the penal notice, in defiance of Order 45 Rule 7(4)

P also argues that P (as the JMB) was not named in the penal notice (even though there was actually no penal notice in the Judgment anyway). Not having a penal notice in the Judgment breaches Order 45 Rule 7(4) of the ROC.

Order 45 Rule 7(4) provides that a prerequisite to enforcing a judgment under Order 45 Rule 5, which I reiterate is about enforcing a judgment to do or to abstain from doing an act, is that a prescribed notice (formulated in Form 83 of the ROC)— commonly called the Order 45 Rule 7 penal notice—must be indorsed on the judgment which is served on the person who is ordered to do or to abstain from doing an act. The penal notice alerts the person that if he or she neglects to obey the judgment to do the act, or if they disobey the judgment to abstain from doing the act—they are liable to the process of execution to compel them to obey the judgment. This penal notice requirement is applicable whether the person is a natural person or a body corporate.

The pertinent portions of Order 45 Rule 7(4) are set out below for reference— Service of copy of judgment or order prerequisite to enforcement under rule 5 (O. 45, r. 7)

(1) In this rule, references to an order shall be construed as including references to a judgment. .

There shall be endorsed on the copy of an order served under this rule a notice in Form 83 informing the person on whom the copy is served—

in the case of service under paragraph (2), if he neglects to obey the order within the time specified therein, or, if the order is to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it; and

in the case of service under paragraph (3), that if the body corporate neglects to obey the order within the time so specified or, if the order is to abstain from doing an act, that if the body corporate disobeys the order, the body corporate is liable to process of execution to compel the body to obey it. My findings 38. I will take these arguments about non-compliance with what P calls “procedural safeguards”, together.

First, there is a distinction between the procedural requirements in the enforcement of judgments and orders under Order 45 of the ROC, and the procedural requirements for contempt and committal under Order 52 of the ROC.

In my view, the requirement for a penal notice (under Order 45 Rule 7) to be indorsed on the judgment to be enforced under Order 45 Rule 5—applies to a proceeding where a party seeks to compel the person to do an act or to abstain from doing an act. The penal notice is to notify the person that if he or she disobeys the Court order, they are liable to the process of execution. In this regard, I agree with the view propounded by the High Court in Muhammad Said Amin v Haszeri Bin Hussin [2014] 8 MLJ 795 (HC); [2013] 6 AMR 695; [2014] 3 CLJ 536; [2013] MLRHU 84, per Justice Yeoh Wee Siam.

But here in this suit, Ds made this Application for leave under Order 52, which is the specific rule of court that governs committal proceedings against someone, whether a natural person or a body Page 13 of 20 corporate. Under Order 52, there is no requirement for a penal notice to be indorsed on the specific order or judgment that is sought to be enforced for contempt.

What constitutes contempt of court may not necessarily be disobeying a documented (sealed) order or judgment. It could be acts or conduct that amount to interfering with the due administration or course of justice. It could be acts and conduct of contradicting, defying, or circumventing the terms or effects of an order or judgment of the court.

What is required under Order 52 is for Ds to apply ex parte for leave to commence committal proceedings, supported by the Order 52 Statement and an affidavit verifying (proving) the facts relied on to get the leave of court. And Ds have complied with this requirement.

Second, the Judgment provides that certain prayers in P’s Re-Amended Statement Of Claim (Re-Amended SOC) were dismissed, certain other prayers were withdrawn, and no order was made on some other prayers. The Judgment does not contain injunctive terms. In other words, the documented sealed Judgment merely dismissed the active prayers. The Judgment does not contain compulsive terms (to do an act) or prohibitive terms (not to do an act).

I am hence of the view that in the circumstances of this suit, it does not make procedural sense to require Ds to indorse a penal notice to the sealed Judgment (which simply dismissed P’s prayers for reliefs and remedies). The Judgment is not a judgment that Page 14 of 20 contains an order for P to do a specific act or to abstain from doing a specific act.

Instead, Ds invoked the Order 52 procedure to pursue a committal order against P for contempt of court. To get the leave of court to commence committal proceedings, Ds were required to file an ex parte application, which is supported by the Order 52 Statement and an affidavit verifying the facts relied on, to show a prima facie case for contempt. This, Ds have done.

Third, P argues that Ds’ intended committal proceeding can only be based on the documented sealed Judgment, not the GOJ. In effect, P is arguing that to substantiate the assertion that P has committed an act of contempt of court, Ds can only rely on the very terms of the sealed Judgment dated 26.6.2024. Ds cannot go outside the terms of the Judgment, such as referring to the court’s GOJ, to establish the contemptuous act. I find this argument insupportable, for two reasons.

One—the Judgment states that prayer 66(a) is dismissed. Prayer 66(a) of P’s Re-Amended SOC is P’s claim for a declaration that D1D2 are to pay maintenance charges to the maintenance account and sinking fund by the rates determined by P to be payable by all the other parcel owners in proportion to the assigned allocated share units.

A dismissal of this prayer can only mean that D1D2 are adjudicated by the Court to be not liable to pay these charges. To give effect to this term of the Judgment—there is obviously no procedural Page 15 of 20 need for the Judgment to contain terms that expressly say that P is prohibited from imposing charges, contributions and late payment interest on D1D2, or that P is prohibited from notifying D1D2 that these charges are imposed on them. There is also no procedural need for a penal notice to be indorsed on the Judgment that says that if P imposes such charges on D1D2 or notifies D1D2 that such charges are imposed on them, then P is liable to be found in contempt of Court.

Two—there is case law authority, which I agree with, that propounds the principle that the GOJ of a judgment is very important to understanding the judgment and the terms of the judgment. The GOJ is pivotal to an understanding of how and why the court arrived at the judgment. The GOJ contains the reasons that caused the Court to arrive at its judgment—Malpac Holdings Berhad v Malpac Capital Sdn Bhd & Ors [2017] MLJU 1257 (HC); [2017] AMEJ 0904; [2017] CLJU 1251; [2017] MLRHU 808 per Justice Nazlan Ghazali.

I am of the view that from the term in the sealed Judgment that states that P’s prayer 66(a) is dismissed, and from a reading of the GOJ—P should know, especially with solicitors’ advice, what acts are contemptuous of the Judgment. No full and frank disclosure 52. P argues that there was no full and frank disclosure of material facts that renders Ds’ Application for leave either defective or inadequate. In other words, because there was no disclosure of Page 16 of 20 certain material facts, the Leave Order should not have been granted in the first place, and hence should be set aside.

The alleged material facts that were not disclosed that P argues are fatal to Ds’ Application for leave are—

D1 sent its representative (as the developer’s representative) to attend every JMB joint management committee meeting, which P alleges shows that D1D2 have, by this conduct, submitted or surrendered themselves to be a part of P’s strata scheme, such that P was justified in issuing to them the Form 5A notice.

D1 requested P (the JMB) to amend the records in the minutes of joint management committee meetings, which shows that D1D2 actively participated in the joint management committee meetings.

Ds lodged a complaint against P to the Commissioner Of Building (COB), which shows that D1D2 consider themselves a part of the JMB, because they complained to the COB about the JMB.

Ds represented to the Court that P did not reply to Ds’ show cause letter dated 22.1.2025, when P had in fact replied to the show cause letter. My findings 54. Firstly, I will take the alleged material non-disclosure number (4). P replied to Ds’ show cause letter by P’s solicitors’ letter dated 5.2.2025. But by 5.2.2025, Ds had already filed the Application for Page 17 of 20 leave. P can hardly say that Ds were guilty of not disclosing the fact that P replied to Ds’ show cause letter. Ds could not disclose the fact that P replied to the show cause letter because when Ds filed the Application for leave (on 27.1.2025), P had yet to issue its reply to the show cause letter.

And when Ds eventually received P’s 5.2.2025 reply, Ds exhibited P’s reply in their second affidavit supporting the Application for leave. Also, in that second affidavit, Ds dealt with the matters raised in P’s reply. In my view, this constitutes due disclosure of the fact that P replied to the show cause letter.

Secondly, as for the other three alleged material facts not disclosed, I cannot see how the non-disclosure of these facts—(i) D1 sent its developer’s representative to attend every JMB joint management committee meeting; (ii) D1 requested P to amend the minutes of joint management committee meetings; (iii) Ds complained about P to the COB—warrants setting aside the Leave Order.

In other words, I do not see how these alleged non-disclosures of material facts absolve P from its acts of interfering with the due administration or course of justice; from its act of defying the Judgment or circumventing the effects of the Judgment. Or to put it differently, I do not see how these alleged non-disclosures could extinguish the prima facie evidence of contempt, which moved me to grant Ds the Leave Order. Page 18 of 20 The substantive hearing must fail, and is an abuse of the Court’s process 58. P argues that the substantive hearing of the committal application proper must fail, and for this reason, the Leave Order should be set aside.

P also argues that Ds’ Application for leave to commence committal proceedings, and the committal application proper are an abuse of the process of the court. P argues that these applications by Ds are “to put pressure on P and to steer P away from the ongoing appeals”. (One appeal is against the Judgment, and the other appeal is against the dismissal of P’s application for a stay of execution.) My findings 60. In determining this application to set aside the Leave Order, I am not going to consider whether the committal application proper will fail or succeed. If I were to do that, I would have to consider the merits of the committal application proper.

I will not deal with the issues, either of fact or law, that constitute the merits of Ds’ committal application proper. I will only deal with the merits of P’s application to set aside the Leave Order.

Further, I find no evidence to support P’s assertion that Ds’ Application for leave is purposed to put pressure on P and to steer P away from the two pending appeals. P’s assertion is nothing but a flailing attempt at bolstering the merits of its application to set aside the Leave Order. But this attempt, ironically, has the opposite Page 19 of 20 effect of disclosing how meritless P’s application to set aside the Leave Order actually is.

For these reasons, I dismiss P’s application to set aside the Leave Order, with costs of RM7K to be paid by P to Ds (the 1st to 3rd Defendants) by 2.9.2025. Costs are subject to the allocatur. Dated: 6 August 2025 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA GEORGETOWN PULAU PINANG Solicitors for the Plaintiff : Lai Chee Hoe, Low Yen Hau Messrs. Chee Hoe & Associates (Kuala Lumpur) Solicitors for the 1st to 3rd : Ashok Kumar, Lim Chin Lun Defendants Messrs. Skrine (Kuala Lumpur) Page 20 of 20 Legislation referred to:

Order 45 Rule 5 of the Rules Of Court 2012.

Order 52 Rule 3(2) of the Rules Of Court 2012.

Regulation 13 of the Strata Management (Maintenance and Management) Regulations 2015.

Order 42 Rule 6(1) of the Rules Of Court 2012.

Order 45 Rule 7(4) of the Rules Of Court 2012. Cases referred to:

Wee Choo Keong v MBF Holdings & Anor and another appeal [1993] 2 MLJ 217 (SC); [1993] 2 AMR 1205; [1993] 3 CLJ 210; [1993] 1

Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors [2016] 7 MLJ 1 (HC); [2017] 4 AMR 434; [2016] 1 CLJ 52; [2016] 2 MLRH 31.

Tan Kang Ho v Mao Sheng Marketing (M) Sdn Bhd & Ors [2015] 5 AMR 146 (HC); [2015] 4 CLJ 113; [2015] MLRHU 83.

Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458 (FC); [2012] 2 AMR 429; [2012] 2 CLJ 849; [2012] 2 MLRA 717.

Muhammad Said Amin v Haszeri Bin Hussin [2014] 8 MLJ 795 (HC); [2013] 6 AMR 695; [2014] 3 CLJ 536; [2013] MLRHU 847.

Malpac Holdings Berhad v Malpac Capital Sdn Bhd & Ors [2017] MLJU 1257 (HC); [2017] AMEJ 0904; [2017] CLJU 1251; [2017]