Bangsar Hill Management Sdn Bhd v 1. ) LIM Kok Seng (WA-11BNCvC-79-11/2023)

LIM KOK SENG

TAN CHOW HEE (NO. K/P: 771231-14-6361) ...RESPONDEN-RESPONDEN [DALAM MAHKAMAH MAJISTRET DI KUALA LUMPUR (BAHAGIAN SIVIL) GUAMAN NO: WA-A72NCvC-4759-11/2022 ANTARA BANGSAR HILL MANAGEMENT SDN BHD (NO. SYARIKAT: 567518-M) …PLAINTIF

LIM KOK SENG

TAN CHOW HEE (NO. K/P: 771231-14-6361) ... DEFENDAN – DEFENDAN] 30/08/2024 08:38:08 WA-11BNCvC-79-11/2023 Kand. 26 ALASAN PENGHAKIMAN INTRODUCTION [1] This was an appeal against the decision at the Magistrate’s Court after a full trial that dismissed the Appellant’s claim. [2] This Court allowed the appeal with cost of RM10,000.00 subject to allocatur’s fee. The reasons were as deliberated. [3] For ease of reference, the respective parties shall be referred to as the Plaintiff and Defendants as they were in the Magistrate’s Court. BRIEF FACTS [4] The Plaintiff is a company that provides for the management and maintenance services (Services) of a development area known as Bangsar Hill. [5] The First Defendant (D1) and Second Defendant (D2) are co-owners of Lot No. 11, Bangsar Hill, 26 Jalan Medang Serai, Bukit Bandaraya, Bangsar, 59100 Kuala Lumpur (Property) and also shareholders of the Plaintiff (as acknowledged by SD1 during Cross Examination at the Trial). [6] There were written contracts, a Road Management and Maintenance Agreement (RMMA) by which the Plaintiff was given an exclusive right by the Datuk Bandar Kuala Lumpur to manage and maintain the development access road and a Maintenance and Management Agreement (MMA) which gave the Plaintiff the right to collect the maintenance charges from the individual purchasers for a tenure of ten (10) years after the houses were built and vacant possession handed over to such purchasers. There was also a Novation contract between Datuk Bandar Kuala Lumpur and the Plaintiff in regards to the charges of the Services. The Defendants are a third-hand owner who bought the Property in 2012. [7] It was not disputed that the original tenure of ten (10) years had expired. [8] At the end of the Trial, the Learned Magistrate dismissed the Plaintiff’s claim and the Defendants’ counterclaim with no order as to costs. The Defendants have not appealed against the dismissal of their counterclaim. Plaintiff’s Contention [9] It is the Plaintiff’s case that the Datuk Bandar Kuala Lumpur had granted it an exclusive right under the contracts to manage and maintain the access roads and the public space as well as security control for the area of Bangsar Hill including the Property. [10] The Plaintiff also contended that by virtue of a resolution passed at its General Meeting dated 2.11.2017 by its shareholders who are residents of Bangsar Hill, they had agreed to increase the maintenance and management charges from RM1,643.00 per month (equivalent to RM4,929.00 per quarter) to RM1,802.00 per month (equivalent to RM5,406.00 per quarter) with effect from January 2018. Thus, the Plaintiff contended that there was a mutual agreement for its Services. In fact, thereafter, the Defendants had also paid the revised 2018 charges. [11] Based on the Services rendered, the Plaintiff sent the following invoices to the Defendants for payment- DOCUMENT DATE SUM AMOUNT PAID OUTSTANDING

(I) LATE CHARGES

IC 0000243 15.06.2020 277.30 0.00 277.30 2.

3.

4.

5.

6.

7.

8.

9.

10.

MAINTENANCE CHARGES

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

SC 0001566 01.10.2022 5406.00 0.00 5406.00 OUTSTANDING SUM AS AT 30.09.2022 74,009.39 [12] The Plaintiff further contended that despite the Plaintiff providing the Defendants with the Services, the Defendants have failed to settle the maintenance charges. However, in 2019, the Defendants had made payment to the Plaintiff for the maintenance of the Property which included the increased charges of 2018, as follows-DOCUMENT DATE SUM

OR0000993 11.06.2019 5406.00 27784.33 2. OR0001005 10.07.2019 5406.00 5406.00 3. OR0001044 28.11.2019 5406.00 5406.00 [13] Alternatively, the Plaintiff also contended that these invoices, formed a contract, and if there was no extension or renewal of the contracts as contended by the Defendants, the Plaintiff has, as a matter of right to claim under section 71 of the Contracts Act 1950 against the Defendants for the Services rendered. Defendants’ Contention [14] The Defendants contended that the Plaintiff as a private entity has no right to maintain and manage the Property, as such powers are only vested in the local authorities. [15] Thus, the Defendants contended that there was no contract between the Plaintiff and Defendants for the Services. [16] The Defendants also contended that the Plaintiff is not entitled to claim under section 71 of the Contracts Act as such “cause of action is actionable on different set of facts and may only be available (if properly pleaded) when no contract is found to be in place” by referring to the case of Ch’ng Ghee Weng & Anor v. Lee Khoon Eng T/A Prestige Construction [2018] 10 CLJ 189. ANALYSIS AND FINDINGS [17] This Court finds that the learned Magistrate failed to appreciate the facts and law as what could have been on balance of probabilities when deciding that the Plaintiff failed to prove that there was a mutual agreement which he held was sufficient to merit a dismissal of the Plaintiff’s claim. Issue on the validity of the contract made between the Plaintiff and Datuk Bandar Kuala Lumpur [18] This issue on the validity of the contract was raised by the Defendants. It was observed that the Datuk Bandar Kuala Lumpur was not subpoenaed during the trial. [19] Apparently, the Commissioner of the City of Kuala Lumpur (Datuk Bandar Kuala Lumpur) is a corporate sole established under the Federal Capital Act 1960 (Act 190), and is the local authority in charge of the city of Kuala Lumpur, having an official seal, authenticated by the person holding the position of the Commissioner, who “shall be officially and judicially noticed”, thus having the power of a corporation within the provision of Act 190. [20] Thus, on the issue of validity of the contracts between the Datuk Bandar Kuala Lumpur and Plaintiff, this Court could not agree with the Defendants’ submissions and finds that, by virtue of the powers of a corporation given to the Datuk Bandar Kuala Lumpur under Act 190, Datuk Bandar Kuala Lumpur has all the powers pertaining to contracts and that the contracts have been validly entered into between the Datuk Bandar Kuala Lumpur and Plaintiff. [21] It was nevertheless undisputed, that the contracts had lapsed. The only issue remains is that whether it has been renewed or extended which this Court finds in the affirmative by virtue of a resolution during the General Meeting held by the Plaintiff on 2.11.2017. [22] Further, by conduct of the Defendants and based on the facts, the Defendants have kept on using the Services provided by the Plaintiffs and obviously, the Services cannot be for free. [23] Additionally, this Court would agree with the Plaintiff’s submission when relying on the case of Nagasari Unggul Sdn Bhd v Tee Chee Hong [2019] 9 CLJ 544; [2020] 8 MLJ 361. In Nagasari, his lordship Wong Kian Kheong J held- [22] Sitting as an appellate Judge, I find that there is no plain error of fact when the learned SCJ decide that the Agreement had been concluded. This finding is supported by the following evidence and reasons (in addition to the SCJ's Decision as elaborated in the above para 13):

by a letter dated 4 October 2016, the Plaintiff's solicitors had demanded the Defendant to pay the Judgment Sum (Plaintiff's Demand). The Defendant did not reply to, let alone deny, the Plaintiff's Demand. In a commercial relationship, when one business entity (X) alleges that another business entity (Y) owes X a sum of money, Y's failure to deny X's allegation may amount to an admission of Y's indebtedness to X. On this matter, I rely on the following two decisions of the Court of Appeal:-

Gopal Sri Ram JCA's (as he then was) judgment in David Wong Hon Leong v. Noorazman Adnan [1995] 1 MLRA 708; [1995] 3 MLJ 283; [1995] 4 CLJ 155; [1996] 1 AMR 007, at 159; and

the decision of Hasan Lah JCA (as he then was) in Jetara Sdn Bhd v. Maju Holdings Sdn Bhd [2007] 1 MLRA 334; [2007] 3 MLJ 609; [2007] 3 CLJ 41, at 55; [24] Therefore, based on the evidence given by PW-1, it is clear that there was a mutual agreement by way of a resolution of the General Meeting on 2.11.2017 which was still subsisting, never been challenged or declared invalid or unlawful. The Invoices [25] This Court will now look at the issue regarding the invoices. It was clear evidence that the invoices were issued pertaining to the Services rendered by the Plaintiff to the Defendants. [26] Accordingly, reference is made to the case of Boustead Trading

Sdn Bhd v Arab Malaysian Merchant Bank Berhad [1995] 4 CLJ 283; [1995] 3 MLJ 331, where the Federal Court held- “[12] It is common ground that the appellant did not make any complaint about any of the invoices thus indorsed and sent by the respondent to it within the period of fourteen days prescribed by the indorsement. Neither did the appellant make any contemporaneous challenge as to the right of the respondent to impose the fourteen day period by way of the indorsement. It is also not in issue that the appellant, without raising any question on either of these points paid the respondent on several of the invoices. However, the appellant refused to make payment on about twenty invoices sent it by the respondent and these are the only ones that form the subject matter of the litigation between the parties. The appellant's refusal arose in this way.” [27] Additionally, the Federal Court in Boustead Trading (1985) Sdn Bhd (supra) held- “[49] A close examination of the evidence shows that the instant appellant did not merely remain silent, as contended by Counsel on its behalf. This is what actually happened. The appellant received from the respondent invoices of Chemitrade bearing upon them the rubber stamped endorsement specifying the fourteen day limit for objections. Now, the appellant at that stage had a choice. It could have told the respondent that the fourteen day limit was not part of the original arrangement, that this amounted to an abrogation of its rights and that it was not prepared to be bound by the limitation. But it did nothing of the sort. It did not merely remain silent. It actually made payments on those very invoices without any protest. A reasonable man similarly circumstanced as the respondent would have been entitled to assume as the respondent did, that the appellant was agreeable to the imposition of the fourteen day limit. Influenced - and we use that term deliberately - by the conduct of the appellant the respondent paid out on those very invoices. This the respondent would not have done had the appellant protested. The appellant's attempt to raise this point some seven months later, well after the respondent had paid out its money to Chemitrade, must, in our judgment be classified as unconscionable and inequitable conduct. It ought not therefore to be permitted to question the validity of the endorsement. (Emphasis added) [28] Similarly, in this matter, as gathered from the testimony of PW1 that the Defendants had made some payments of the invoices on 11.6.2019,

10.7.2019 and 28.7.2019, however, the Defendants have refused to pay on other invoices and did not raise objections to those invoices until commencement of this Suit. [29] Further, in Panetra Parking Services Sdn Bhd v TTDI Harta Sdn Bhd & Ors (2002) 1 LNS 2638, it was held- “[52] Under the principles of law of contract, a contract can be made either in writing or orally, provided the key terms are certain and there is valuable consideration. As such, a valid and binding agreement to extend the duration of an existing written contract can also be made orally unless the existing written contract specifically requires such extension to be agreed in writing. [53] The Plaintiffs' position is that the Laman Seri Contract was extended for 3 years from 1 December 2014 to 30 November 2017, while the Defendant's position is that after 30 November 2014 Platinum was appointed as carpark operator and manager at the Laman Seri site on month-to-month basis. [54] As the original Laman Seri Contract expired on 30 November 2014, the acts and conduct of the parties at about the time and/or subsequent to 30 November 2014 are relevant in considering whether there was mutual agreement to extend the contract period and if so, to what extent. Such acts and conduct of the parties include those testified to by the witnesses and corroborated by the following contemporaneous documentary evidence…”. [30] Moreover, in Sinarlim Sdn Bhd v Medallion Builders Sdn Bhd (dahulunya dikenali sebagai RC-Soils (M) Sdn Bhd) and others application [2012] 1 LNS 609; [2012] MLJU 847, Mary Lim J (as her Ladyship then was) held as follows- “[39] It must not be forgotten that the fact of previous payments is also not disputed. It is my view that the Defendant could not and would not possibly have been made such payments but for the existence of these contracts as alleged by the Plaintiff. [40] For all these reasons, I find that the evidence presented by the Plaintiff has amply proved the existence of the relevant contracts. Further, I agree with the Plaintiff that all this evidence supports the Plaintiff's contention not only of the existence of the contracts, but that work under these contracts had been duly done and completed; and that the Defendant had made partial payments.” (Emphasis Added) [31] In this regard, the case of Wong Yin Sun @ Wong Yeng Seng v Amalan Tepat Sdn Bhd (2015) 5 LNS 18, held- “[68] On this point, the Court agrees with the Defendant's submission that if indeed Plaintiff was denied entry into his bungalow land, why would Plaintiff continue to pay the maintenance fee from 1998 until 2010 without any protest or complaint? [69] Is the Plaintiff required to pay to the Defendant the maintenance and grass cutting fee and overdue interest? [70] The Plaintiff has been continuously making payment for the maintenance and grass cutting fee to the Defendant without any objection for a period of 10 years. [71] The Plaintiff did not resist the claim when served with a notice of demand. [72] In fact, the Plaintiff had negotiated with the Defendant for a discount of the overdue interest. [73] Hence, the Court finds that the Plaintiff, through his conduct, had impliedly admitted that he has to pay the maintenance and grass cutting fee.” (Emphasis Added) CONCLUSION As such, this Court finds that based on the above reasons, the appeal is allowed with cost. -SGD- (Y.A DR. SUZANA BINTI MUHAMAD SAID) Pesuruhjaya Kehakiman Mahkamah Tinggi Sivil NCVC1 Kuala Lumpur Dated: 29 OGOS 2024 COUNSELS FOR THE APPELLANT Tetuan Akberdin & Co. Peguambela & Peguamcara AAG/6, Block D, Tingkat Bawah Jalan Plumbum AA7/AA Pusat Komersial Seksyen 7 40000 Shah Alam Selangor Darul Ehsan FOR THE RESPONDENTS Tetuan K. Goh & Goh Peguambela & Peguamcara No.18-3, (Second Floor) The Right Angle, Jalan 14/22 46100 Petaling Jaya