Badan Pengurusan Bersama I Soho I City v Tribunal Pengurusan Strata (WA-25-408-11/2024)

Jadual kepada Akta Mahkamah Kehakiman 1964. ANTARA BADAN PENGURUSAN BERSAMA I SOHO I CITY … PEMOHON DAN

1.

IVAN SIM CHUN NUN … RESPONDEN-RESPONDEN

At the 4th Annual General Meeting of the Applicant held on 10.7.2023, a resolution was passed inter alia whereby a single rate for maintenance charges and sinking fund contributions was changed to higher and different rates for various components of the development known as I Soho I City.

Dissatisfied with the resolution passed, the 2nd Respondent filed a claim with the Strata Management Tribunal to seek for numerous orders.

On 7.10.2024, the Strata Management Tribunal made an award in favour of the 2nd Respondent inter alia, invalidating the resolution to impose different rates of maintenance charges and contribution to the sinking fund. Consequent thereto, it ordered that these rates be reduced to the single rate applicable prior to the 4th Annual General Meeting of the Applicant.

Aggrieved with the decision, the Applicant now files the present judicial review proceedings to challenge the award. Key background facts

The main facts upon which this application is premised on, is not in dispute.

The Applicant is the Joint Management Body (“JMB”) of I Soho I City (“I-City”). I-City is a commercial strata development located at No. 2, Persiaran Multimedia, Seksyen 7, 40000 Shah Alam, Selangor Darul Ehsan.

The 2nd Respondent is a parcel owner of a unit at I-City.

I-City is a commercial stratified development. It is comprised of seven blocks encompassing five main components as follows: No. Component No. of

i-Soho (Tower A) 955 51.329

i-Suite (Tower B) 825 50,505 3. Centralwalk (Towers C,D,E) 1,217 65,539 4. Retail 128 31,338 5. Carpark 1 104,840 Total 3,126 303,551

Prior to the 4th Annual General Meeting (“AGM”) of the JMB, the maintenance charges and contribution to the sinking fund for each of the components were at the single rate of RM 2.91 per share unit.

At the 4th AGM, a presentation was made and tabled by the operations manager of I-City for the single rate to be revised to multiple rates as follows: No. Component Current Rate Proposed revised rate

i-Soho (Tower A)

2.91 4.88 2. i-Suite 2.91 4.88

Centralwalk (Towers C,D,E) 2.91 4.19 4.

Carpark 2.91 1.86

The proposed revised rates were put to vote. By a majority, the resolution was passed in favour of the revised multiple rates.

Following the 4th AGM, the Commissioner of Building (“COB”) was informed of the dissatisfaction of some unit owners of the resolution passed at the 4th AGM. The COB then initiated a meeting to hear the views of the parties.

Subsequent to the meeting, the COB sent a letter dated 16.11.2023 to reprimand the Applicant for imposing the multiple rates.

On 15.6.2024, the 2nd Respondent filed his claim in Form 1 with the Strata Management Tribunal (“the Tribunal”) seeking various orders. For the purpose of the present proceedings, the relevant order is that a single rate for maintenance charges and contribution to the sinking fund be introduced for all parcels at I-City, as was previously imposed.

On 7.10.2024, the learned President of the Tribunal made an award as follows:

The resolution of the JMB passed at the 4th AGM on 10.7.2023 in determining the multiplerates for I-Soho (Tower A), I-Suite (Tower B), Centralwalk (Towers C, D and E), retail and the car park is null and void ab initio;

(ii) The JMB is to impose maintenance charges and contributions to the sinking fund at a single rate;

(iii) The JMB is ordered to comply with relief (ii) above within 60 days from the date of the Award;

(iv) Rates per share unit for I-Soho (Tower A), I-Suite (Tower B), Centralwalk (Towers C, D and E), retail and the car park in the calculation of maintenance charges and sinking fund contribution before the 4th AGM on 10.7.2023 is applicable from 10.7.2023 until relief (ii) above is complied with. Grounds for review

In essence, the JMB’s challenge to the Tribunal’s decision is premised on the usual grounds for which judicial review will lie, namely illegality, irrationality and breach of natural justice.

Specifically, in respect of the Tribunal’s award, it is alleged that the Tribunal’s decision was tainted with illegality and irrationality as its award was ultra vires its powers under the Strata Management Act 2013 (“SMA 2013”). In support thereof, it advances the following grounds:

The Tribunal had exceeded its monetary jurisdiction limit of RM 250,000 imposed in section 105(1) of the SMA 2013 in varying the rate for maintenance charges and contribution to the sinking fund which was already determined at the 4th AGM. By imposing a single rate for such charges, it would require the JMB to recalculate all the maintenance charges and contribution to the sinking fund and to refund the parcel owners. The refund computed would amount to approximately RM 472,338.96 per month which exceeds the jurisdiction of the Tribunal;

(ii) The Tribunal had no jurisdiction to hear the claim of the 2nd Respondent and to determine the maintenance charges and contribution to the sinking fund. The provisions of the SMA 2013 stipulate that the said rate of maintenance charges and contribution to the sinking fund remain solely with the JMB. Further, the JMB can impose different rates of maintenance charges on different components in a mixed development; and

It was also argued in addition to the ultra vires ground, that the Tribunal acted in breach of natural justice in addressing the 2nd Respondent’s own position of what the rate of maintenance charges and contribution to the sinking fund ought to be when the rate affects 3,352 parcel owners in I-City. The rate of RM 2.91 resulting from the Tribunal’s award affects only the 2nd Respondent as he was the only one who brought the claim in the Tribunal. The different rates will apply to all other parcel owners of the same component in the development.

The rates were determined and resolved by attendees at the 4th AGM. In the circumstances, the 2nd Respondent should have brought a representative action to enjoin all parcel owners. Otherwise he is said to lack the requisite locus standi.

Consequent to the above grounds, the JMB seeks inter alia, the relief of certiorari to quash the whole of the Tribunal’s Award dated 7.10.2024 in favour of the 2nd Respondent. Response of the 2nd Respondent

In opposition to the JMB’s application, the 2nd Respondent contends that firstly, the Tribunal acted well within its powers as Part 1 of the Fourth Schedule to the SMA 2013. The Tribunal had jurisdiction to hear a claim pertaining to nullifying a resolution passed at a general meeting. The orders it made were also within Part 2 of the Fourth Schedule. Having found the multiple rates passed by resolution at the 4th AGM was contrary to law, it acted within its powers to nullify the resolution. Secondly, the 2nd Respondent has the requisite locus standi to bring his claim before the Tribunal. Analysis and findings

Arising from the competing contention of the parties, there are only two principal issues for determination which I shall now proceed to deal with. Breach of natural justice-locus standi of R2

On the locus standi issue, this was not raised in the O. Statement. Where there is a failure to do so, no reliance can be had.

Reference is made to the Court of Appeal case of Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Perlindungan Hidupan Liar dan Taman Negara & Ors v Mariani bt Ramli [2021] 5 MLJ 857 where it was held as follows: [41] We are also of the considered opinion that the learned judge has committed an error of law when he decided on issues not pleaded in the grounds of the application… [42] The issue of raising a ground not pleaded in the statement of the judicial review application was considered by the Federal Court in Dr A Dutt v Assunta Hospital [1981] 1 MLJ 304, where Justice Chang Min Tat FJ (as he then was) held at p 309: There appears therefore to have been a complete disregard of the procedure prescribed and to be followed by the solicitors for the hospital. No point was however taken by counsel for Dr Dutt at any stage of the proceedings. We have however mentioned them not merely to draw attention to the fact that the new rules, the Rules of the High Court 1980, continue largely the same practice, O 53 r 1(2) requiring such a statement, r 1A limiting the time for such an application, now, to six weeks of the order sought to be quashed and r 3(1) providing that subject to the discretion of the court, no grounds shall be relied upon and no reliefs sought except those set out in the statement. We have done so also because the same solicitors had previously filed such a statement in its application for prohibition and because as will be seen, this amorphous application enabled the hospital to roam at large, well outside its proper confines. [43] Justice Chang Min Tat added that the High Court should not have resorted to the affidavit for the grounds on which the application was brought, as the rule was clear that all grounds had to be set out in the statement. [44] As in a writ action or an application by originating summons, the general rule is that the parties are bound by their pleaded case. The same principle applies to an application for judicial review, where the applicant must state the grounds of the application in the statement

In view of decided authorities on that issue, I am not obliged to consider the locus standi point. In any event, I am of the view that being a parcel owner, the 2nd Respondent is entitled to file the claim in the Tribunal. Jurisdiction of the Tribunal to hear and make the award

The starting point in considering the question of jurisdiction is section 105 of the SMA 2013 which provides as follows: Jurisdiction of Tribunal 105 (1). The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount.

Reference is then made to the corresponding provisions of the Fourth Schedule. The relevant provisions to consider are set out below:

A dispute or complaint concerning an exercise or the performance of, or the failure to exercise or perform, a function, duty or power conferred or imposed by this Act the subsidiary legislation made under this Act, except for those specifically provided for in this Part. ….

A claim for an order to nullify a resolution passed at a general meeting.

Reading the provisions above, the claim of the 2nd Respondent falls within the ambit of Part 1 of the Fourth Schedule. The JMB’s exercise of imposing the multiple charges for different components of I-City resulted from the resolution passed at the 4th AGM.

Upon adjudicating the dispute, the Tribunal then made an order to nullify the resolution and to order the JMB to impose a single rate. The question to consider is whether it had jurisdiction to do so.

In this regard, the provisions of Part 2 of the Fourth Schedule is relevant. It provides as follows:

....

The Tribunal may make any order of which it has the jurisdiction to make under Part 1 of this Schedule or an other order as it deems just and expedient.

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.

The import of paragraph 8 is this. In my view, having decided that the Tribunal had jurisdiction to entertain the 2nd Respondent’s claim under paragraph 7, Part 1 of the Fourth Schedule, paragraph 8 of Part 2 then allows it to make any order which would give effect to the claim being allowed.

The effect of nullifying the resolution means that the multiple rates pursuant to the resolution passed at the 4th AGM must now revert to the previous rate of RM 2.91. This is the natural and direct consequence of ordering the resolution to be null and void.

The order made by the Tribunal was necessary to give effect to the resolution which had been nullified. By the provisions of the Fourth Schedule, the Tribunal’s award therefore falls squarely within its jurisdiction.

The JMB further contends that the Tribunal acted beyond its monetary jurisdiction of RM 250,000. The effect of reverting to the previous rate of RM 2.91 would result in a refund of RM 472,338.96 per month.

I do not find any merit in this argument. The refund, if it can be referred to as such, is merely incidental to and a consequence of the principal order of nullifying the resolution at the AGM.

In addition, it is material that the claim before the Tribunal was not a monetary one. The import of section 105 is that where the amount sought in an award is more than RM 250,000, the Tribunal shall have no jurisdiction to hear and determine the claims in Part 1 of the Fourth Schedule. The 2nd Respondent’s claim was not monetary in nature. The monetary jurisdictional limit is therefore not triggered.

To conclude on the jurisdiction point, I find the Tribunal to have acted within the ambit of its statutory powers. Maintenance charges and sinking fund to be determined only by JMB

The Applicant further contends that the Tribunal acted ultra vires its powers in fixing the rate of charges. Pursuant to section 19(1) of the SMA 2013, the power to determine maintenance charges and contribution to the sinking fund lies with the JMB at its general meeting.

There is no dispute as to the meaning of section 19(1). However, to contend that the Tribunal acted contrary to the SMA 2013 when it fixed the rate of charges is untenable. In my view, the Tribunal did not fix the rate of charges.

As a consequence of finding the resolution to be null and void, it ordered the JMB to revert to the single rate previously applied. This order was merely consequential to the principal order of nullifying the resolution. It cannot be said to be fixing the rate of charges, which would then be contrary to SMA 2013.

The decision of the Tribunal was premised on the case of Muhamad Nazri bin Muhamad v JMB Menara Rajawali & Anor [2019] 10 CLJ 547 which held that the joint management body is only entitled to fix one rate applicable to all parcels.

The relevant portion of the judgment of the Court of Appeal reads as follows: [26] It is also important to apprehend the general legislative scheme of the SMA 2013 and the STA 1985 which governs all strata development projects. Both statutes set out a comprehensive, transparent, equitable and uniform regime to allocate and calculate the share units of each parcel; which must be filed with the Commissioner of Buildings and approved by the Director of Lands and Mines. It appears that the learned judge did not appreciate that different weightage factors between the types of parcels have been taken into account in the First Schedule of the SMA 2013. [27] We therefore take the view that on a proper construction of the said sections, the JMB is required to determine and fix only a single rate of maintenance charges to be applied to all types of parcels in proportion to the allocated share units. Accordingly, we do not think that the JMB’s resolution in fixing different rates for different types of parcels is in conformity with ss 21 and 25 of the SMA 2013.

The Court of Appeal also drew a distinction between the powers of the joint management body and the management corporation, where the latter is allowed to fix multiple rates in the SMA 2013, subject to conditions being satisfied. It held as follows: [38] There is also no provision under the SMA 2013 and the STA 1985 which empowers the JMB to fix different rates for different types of parcels. In contrast, such a power is expressly conferred on a MC in respect of two specific situations: (i) parcels which are used for significantly different purposes, and (ii) provisional blocks; sub-s 60(3)(b) of the SMA 2103. Therefore, if Parliament had intended for the JMB to have the power to fix different rates of maintenance charges, that intention would have been clearly reflected in the provisions of the SMA 2013; and because there is no such provision it must have been Parliament’s presumed intention and wisdom not to confer such power on the JMB.

Having considered the decision in Menara Rajawali I am of the view that the Tribunal was correct in nullifying the resolution fixing multiple rates. This is consonant with the judgment in Menara Rajawali which held that under the SMA 2013, a joint management body does not have the power to fix multiple rates.

The answer to the Applicant’s contention that the determination of rates is a power which belongs to the JMB at a general meeting in accordance with the SMA 2013, is again found in the judgment of Menara Rajawali. The Court of Appeal held as follows: [40] Be that as it may, does the fact that the JMB’s resolution was carried by a unanimous vote make it perfectly legal and valid for the JMB and JMC to fix and collect the different rates of the maintenance charges. The learned judge took the view that it would. However, we take a different view. The JMB as a body corporate under statute can only determine charges which are mandated under the SMA 2013. It will be ultra vires the SMA 2013 for the JMB and the JMC to fix and impose the different rates which are not sanctioned by statute. Further, the JMB does not have the inherent power nor can it arrogate to itself such power, even if the approval was obtained in a unanimous resolution at the AGM (Malaysia Shipyard & Engineering Sdn Bhd v Bank Kerjasama Rakyat (M) Bhd).

Whilst the power to fix rates lies with the joint management body, it does not extend to fixing multiple rates. Only a single rate can be fixed.

To reiterate, the resolution of the JMB was contrary to law. Upon invalidating the resolution imposing multiple rates, the Tribunal was then justified in making the order that a single rate as previously applied shall be imposed.

Premised on the foregoing findings, I am of the view that the Tribunal did not act ultra vires the provisions of the SMA 2013. The main order nullifying the resolution was well within its jurisdiction as spelt out in the SMA 2013. The other orders were merely consequential for the purpose of giving effect to the main order.

In the circumstances, the application for judicial review is dismissed. I order that costs of RM 5,000.00 subject to allocatur be paid by the Applicant to the 2nd Respondent. Dated: 22nd July 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: En. Raymond Mah Mun Kitt (Pn. Rachel Ng Ker Chi together with him) Tetuan MahWengKwai & Associates Counsel for 2nd Respondent: Datuk Joy Appukuttan (En. Kelvynn Foo Wai Tzen together with him) Tetuan KH Lim & Co.