Badan Pengurusan Bersama Tasik Heights Apartment v Asm Development Sdn. Bhd. (WA-24NCvC-4826-10/2023)

The Plaintiff (P) is the joint management body (JMB) of the Tasik Heights apartments property development project.

The Defendant (D) is the owner-developer of the Tasik Heights apartments.

After P was formed, P discovered that D had not paid the premiums necessary to progress their application for subdivision of the Tasik Heights apartments so that separate strata titles could be issued, and ownerships be transferred, to the purchasers. Despite continued requests, D did not pay the required premiums, causing the application for strata titles to stall.

P then filed this Originating Summons for the relief of an Order that D pays the premiums required, and that D completes and settles the application for subdivision, to get the strata titles.

Should P’s Originating Summons be allowed?

D is the registered and beneficial owner of the subject land where the Tasik Heights apartments are built. D is also the developer of the Tasik Heights apartments.

D signed the Housing Developers (Control and Licensing) Act 1966 and the Housing Developers (Control and Licensing) Regulations 1989, Schedule H Sale and Purchase Agreements (SPA) with the purchasers who bought the Tasik Heights apartments. The Tasik Heights apartments were sold in about 1992.

P is the joint management body which was formed to manage the Tasik Heights apartments. P was formed in 2008 (on 17.5.2008).

After taking over the management of the Tasik Heights apartments from D, P found that D had yet to obtain the strata titles to transfer them to the purchasers. In July 2020, P began S/N PbjjIUgZl06eNyVT6suiDg Page 4 of 13 writing to D to ask about the status of D’s application for the strata titles.

In August 2020, the Land Office (Pejabat Pengarah Tanan dan Galian Wilayah Persekutuan) informed P that D’s application to amend the express condition over the subject land was approved on 6.7.2020, and that D was given six months from the date to pay the further premiums required before an application for subdivision could be made.

In November 2020, D asked for an extension of time to pay the premiums and for a reduction of the premium amount. The Land Office extended the deadline for D to pay the premiums to 27.9.2021.

In November 2021, P continued to communicate with the Land Office. The Land Office informed P that D’s deadline to pay the premiums was extended a final time to 2.1.2022

But, in July 2021, the Land Office informed P that D’s deadline to pay the premiums was extended further (because of the Covid-19 pandemic) to 3.10.2022.

Then again, in December 2022, the Land Office informed P that D’s deadline to pay the premiums was further extended to 16.12.2022.

On 31.12.2022, P demanded that D pays the premiums due and settles the application for strata titles.

As D has failed to pay the premiums and settle the application for strata titles, P filed this suit in October 2023.

Which provisions of the STA obligate D to apply for subdivision of building or land, for the purpose of issuing strata titles? The answer is: section 8(1), read together with section 8A(1) and section 8(3).

Section 8(1) provides that the original owner of the land, “on which there is a building capable of being issued with strata titles”, if they had “sold or agreed to sell” to any person, “any parcel in such building or land”—must, within certain specified periods, apply for “the subdivision of the building or land”. Section 8A(1) provides that such an owner—must apply for a “certificate of proposed strata plan”. Section 8(3) provides that such an owner, who has been issued with a “certificate of proposed strata plan”—must apply for subdivision according to section 9(1) within a month from the issuance date of the certificate of proposed strata plan.

Which provision of the STA obligates D to pay the premiums required for the subdivision? The answer is section 9(1).

Section 9(1) provides that an application for the approval for “the subdivision of the building or land”—must be made in the prescribed form, and must be accompanied by certain prescribed fees and other documents. Case law authority 21. A defendant-owner-developer is under “a statutory and contractual obligation”, within the prescribed time limits—

to apply for the subdivision of building or land for “the housing development” for the “issuance of separate strata titles for the parcels”;

to “procure separate strata titles”; and

to “execute and forward a valid and registrable Memorandum of Transfer” of the parcels to the purchasers. see Blue Green Network Sdn Bhd & Ors v Pilihan Megah Sdn Bhd [2023] MLJU 1405 (HC); [2023] AMEJ 1247, at paragraph [15](11). D’s AVERMENTS IN REPLY AND ARGUMENTS

D’s affidavit averments and arguments to oppose P’s suit can be summarised as follows—

the SPA that P exhibited is not relevant because P (JMB) is not a party to the SPA; S/N PbjjIUgZl06eNyVT6suiDg Page 7 of 13

P has no authority to “reject” the extensions of time given to D; it was the Land Office which gave D the extensions;

P is the JMB; P has acted ultra vires and has no locus standi to file this suit against D because:

D had never entered into an agreement with the JMB;

(ii) P can only act for its members: the purchasers;

(iii) the relief asked for in prayer 1 of this Originating Summons (for D to pay the premiums due to enable the application for strata titles) is “not valid” because the “source of the law” for it is not stated in the Originating Summons;

(iv) the relief asked for in prayer 2 (for D to complete and settle the application for strata titles) is based on section 8 of the Strata Titles Act 1985, which is a “penal law”. Privity of contract 23. D argues that they have no privity of contract with P, as P is the JMB and not the purchasers who signed the SPA. And as there is no privity of contract, D is not obligated to pay the premiums due, and to settle the application for strata titles.

I find that this argument is not cogent. It is correct that under clause 10 of the SPA, D (as owner-vendor) is obligated to apply for subdivision to obtain the separate strata titles for the purchasers, and to later “execute a valid and registrable S/N PbjjIUgZl06eNyVT6suiDg Page 8 of 13 memorandum of transfer of the relevant parcel” to the purchasers.

But P is not suing D for breach of contract. P is suing D for breach of their statutory duty under the STA to apply for subdivision of the building or land for the issuance of strata titles, including the payment of the required premiums. I am therefore not minded to dismiss P’s Originating Summons on this ground. Locus standi 26. D argues that P cannot enforce the purchasers’ rights under the SPA. P is not a party to the SPA. P has no locus standi to sue D. For this proposition, D relies on the case law authority of Re: Bandar Kinrara Properties Sdn Bhd (in liquidation) [2021] 6 CLJ 599 (HC); [2021] MLJU 423; [2021] MLRHU 274.

I find that this argument is untenable. First, in Bandar Kinrara Properties (supra), the liquidators filed suit there to raise the question of whether the JMB there has the right to represent the purchasers in claiming the stakeholder sums under the SPA there. I reiterate that here, P is not suing D for breach of their contractual obligations. P is suing D for breach of their statutory obligation to apply for subdivision to get the strata titles, and to pay the necessary premiums.

Second, section 21(1) of the Strata Management Act 2013 (SMA) provides that the duties of a JMC such as P, include—

to “properly maintain and manage the building or land intended for subdivision into parcels and the common property” [such as the Tasik Heights apartments];

to “determine and impose the charges” relating to the maintenance and management, and contribution to the sinking fund, of the Tasik Heights apartments;

to “prepare and maintain a register of all parcel owners” of the Tasik Heights apartments;

to “do such other things as may be expedient or necessary for the proper maintenance and management” of the Tasik Heights apartments.

Section 21(2) of the SMA provides that P’s powers include powers—

to collect the charges “in proportion to the allocated share units” of the respective parcels;

to “do all things reasonably necessary for the performance of its duties” under the SMA.

Section 2 of the SMA defines “common property” as—

in relation to a building or land intended for subdivision into parcels [not yet subdivided], means so much of the development area—

as is not comprised in any parcel or proposed parcel; and

(ii) used or capable of being used or enjoyed by occupiers of two or more parcels or proposed parcels; or

in relation to a subdivided building or land [already subdivided], means so much of the lot—

as is not comprised in any parcel, including any accessory parcel, or any provisional block as shown in a certified strata plan; and

(ii) used or capable of being used or enjoyed by occupiers of two or more parcels; [notes an emphases mine]

For P to exercise its powers and to carry out its duties under the SMA, the Tasik Heights apartments should necessarily be subdivided into separate strata titles, with the delineated common property. Only then can P properly maintain and manage the Tasik Heights buildings and common property. Only then can P determine, impose and collect the charges and contributions. Only then can P prepare and maintain a register of all parcel owners of the Tasik Heights apartments. Only then can P do all other things expedient to maintain and manage the Tasik Heights apartments.

Third, D argues that for P to file this suit on behalf of all the purchasers (since getting the strata titles affects each of them), there must be “proper” consent or authority. D argues that in P’s affidavits which support this Originating Summons, there is no averment or documentary evidence of proper consent or S/N PbjjIUgZl06eNyVT6suiDg Page 11 of 13 authority. D cites section 143(2)(a) of the SMA to support their argument.

But an analysis of section 143(2)(a) discloses that the words of that provision do not support D’s argument. Section 143 is about “representation in proceedings”. Section 143(2)(a) provides that where “some or all” of “the parcel owners or proprietors” of the parcels in the Tasik Heights apartments are “jointly entitled to take proceedings concerning the common property against someone (here: D, the owner-developer), the proceedings can be taken by P (the JMB), “as if” P were the parcel owners or proprietors of the parcels.

Hence, section 143(2) endorses, not prohibits, P (the JMB) to file proceedings concerning the common property against anyone, as if P were the parcel owners. Filing this Originating Summons to get the strata titles for the purchasers directly relates to filing proceedings concerning the common property.

Further, section 143(1) provides that a person who is “authorised by” P (the JMB), can “institute such proceedings”, or “appear in such proceedings”, or “do all acts in respect of the proceedings” on P’s behalf.

The deponent who affirmed P’s affidavits in this Originating Summons proceeding averred that she is P’s representative, and that she is fully authorised (diberikan kuasa sepenuhnya) to affirm the affidavits.

For these reasons, I find that it is fit and just to grant P the reliefs (Orders) that they pray for i.e. to the effect that D is to pay the required premiums for the application for subdivision of the Tasik Heights apartment building or land. And that D is to complete and settle the application for subdivision of the Tasik Heights apartments into separate strata titles, which will also demarcate the common property, for P to maintain and manage them.

I grant prayers 1 and 2 of the Originating Summons with costs of RM7K to be paid by D to P by 17.12.2025. Dated: 9th February 2026 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA KUALA LUMPUR S/N PbjjIUgZl06eNyVT6suiDg Page 13 of 13 Solicitors for the Plaintiff : Khairul Shahrizan Bin Hamizi & Emmy Hazwani binti Jamil Messrs. Shahrizan & Co Solicitors for the Defendant : Noor Syakirah binti Khalil Messrs. Jasbeer Nur & Lee Legislation referred to:

Section 8(1) of the Strata Titles Act 1985.

Section 8A(1) of the Strata Titles Act 1985.

Section 8(3) of the Strata Titles Act 1985.

Section 9(1) of the Strata Titles Act 1985.

Section 21(1) of the Strata Management Act 2013.

Section 21(2) of the Strata Management Act 2013.

Section 2 of the Strata Management Act 2013.

Section 143(2)(a) of the Strata Management Act 2013. Case referred to:

Blue Green Network Sdn Bhd & Ors v Pilihan Megah Sdn Bhd [2023] MLJU 1405 (HC); [2023] AMEJ 1247.

Bandar Kinrara Properties Sdn Bhd (in liquidation) [2021] 6 CLJ 599 (HC); [2021] MLJU 423; [2021] MLRHU 274.