Bonifac Lobo a/l Robert V.Lobo dan 1 Lagi v Tribunal Pengurusan Strata, Putrajaya dan 9 Lagi (W-02(A)-943-05/2017)

IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(A)-943-05/2017 BETWEEN

1. BONIFAC LOBO A/L ROBERT V.LOBO

2. JMB SILVERPARK RESORT … APPELLANTS AND

1. TRIBUNAL PENGURUSAN STRATA, PUTRAJAYA

2. PENGERUSI TRIBUNAL PENGURUSAN STRATA PUTRAJAYA,

3. TUAN MOHD HAMZAH BIN ISMAIL

4. CHOO CHEE CHOY

5. SUPRAMANIAM A/L SINNASAMY

6. FESTUS A/L CHRIST DHAS

7. KONG KHAI YENG

8. JULIE HOH KWAI NGOR

9. HIEW KEM CHON

10. TEOH GUEK YEAN STEWARD CHEN TIN KEW … RESPONDENTS (In the Matter of the High Court of Malaya at Kuala Lumpur Judicial Review No.WA-25-59-03/2016 Between

1. Bonifac Lobo A/L Robert V.Lobo

2. JMB Silverpark Resort … Applicants And

1. Tribunal Pengurusan Strata, Putrajaya

2. Pengerusi Tribunal Pengurusan Strata Putrajaya,

3. Tuan Mohd Hamzah Bin Ismail

4. Choo Chee Choy

5. Supramaniam A/L Sinnasamy

6. Festus A/L Christ Dhas

7. Kong Khai Yeng

8. Julie Hoh Kwai Ngor

9. Hiew Kem Chon

10. Teoh Guek Yean Steward Chen Tin Kew … Respondents) Corum: Mohd Zawawi Salleh, JCA (Now FCJ) Badariah Sahamid, JCA Zaleha Yusof, JCA JUDGMENT OF THE COURT Introduction [1] This appeal is against a judgment of the Kuala Lumpur High Court (Appellate and Special Powers Division) dated 13.4.2017, dismissing the Appellants’ application for a judicial review of the award of the Strata Management Tribunal (“Tribunal”) dated 3.2.2016. [2] Though the controversy involved in this appeal is short, in order to appreciate as to how it arose, it is necessary to set out the background facts in detail. Background facts [3] The 1st Appellant is a proprietor of a parcel in a property known as “JMB Silverpark Resort, Bukit Fraser”. The 2nd Appellant is the Joint Management Body (“JMB”) established under section 4 of the Building and Common Property (Maintenance and Management) Act 2007 (“the 2007 Act”). [4]

Pursuant to an Annual General Meeting (“AGM”) on 28.10.2014, the 1st Appellant together with four others were elected members of the Joint Management Committee (“JMC”). Under subsection 11(1) of the 2007 Act, the members of the JMC hold office for a period not exceeding three years or until dissolution of the JMB in accordance with section 15, whichever is earlier. [5] In November 2014, three of the five members of the JMC resigned. The remaining two members invoked paragraph 2(2) of the First Schedule to the 2007 Act to appoint three new members, to bring the total number of members to five. [6] By 26.5.2015, all the other members of the JMC had resigned, leaving the 1st Appellant alone in the committee. [7] On 27.5.2015, a notice was sent to all proprietors to convene an Extraordinary General Meeting (“EGM”) on 13.6.2015, pursuant to subsection 10(2) of the 2007 Act for the election of new members of the JMC. [8] The EGM proceeded as scheduled. At the EGM, the 3rd to 9th Respondents were appointed as the new committee members of the JMC. [9] The 1st Appellant maintained that he remained the chairman of the JMC despite the vacancies. He further challenged the validity of the appointment of the new members contending that the EGM was invalid as it was conducted under the 2007 Act which was repealed and replaced by the Strata Management Act 2013 (“the 2013 Act”) with effect from 1.6.2015. [10] In June 2015, a firm of solicitors purporting to act on behalf of JMB, demanded the 10th Respondent (who was the building manager for the Silverpark Resort) that he delivers up the assets, books and records of the JMB. [11] The 1st Appellant wrote to the 10th Respondent on 29.6.2015 stating that his employment contract with the JMB had ceased to have effect from 1.6.2015 “because of the relevant provisions of the 2013 Act”. [12] On 9.6.2015, the new JMC comprising the 3rd to 9th Respondents, commenced Originating Summons No. 24NCVC- 1047-07/2015 (“OS 1047”) seeking, inter alia, declarations that:

(ii) the JMC elected pursuant to the 13.6.2015 EGM was lawfully and validly elected. Proceedings before the Tribunal [13] The 1st Appellant claimed that he was unaware of the aforesaid summons. On 14.7.2015, the 1st Appellant filed a claim under the 2013 Act with the Tribunal. The first hearing before the Tribunal was scheduled on 11.1.2016. On the same day, the 3rd to 10 Respondents sent out a notice of the 8th AGM which was to be held on 23.1.2016. [14] At the first hearing before the Tribunal, the 1st Appellant raised objection regarding the AGM notice. The hearing was adjourned to 14.1.2016. The 1st Appellant then made an interlocutory application via Form 14 of the 2013 Act to cancel the notice of the 8th AGM (“the Form 14 application”). The hearing of the Form 14 application was also scheduled on 14.1.2016. [15] The hearing resumed on 14.1.2016. The 1st Appellant alleged that the 2nd Respondent (“the President”) had made adverse remarks about him and the 1st Appellant applied to recuse the presiding President and the claim be heard before another President. [16] The 1st Appellant affirmed a statutory declaration on 2.2.2016 (“the SD”) which recounted his version of events at the second hearing date on 14.1.2016. The SD was submitted to the Tribunal and the hearing resumed on 3.2.2016. The President dismissed the recusal application and proceeded to make the following award:

(ii) Dismissed the 1st Appellant’s claim on the ground that the Tribunal is bound by the decision of the High Court in the OS action. Therefore, the JMC’s members elected pursuant to the 13.6.2015 EGM were lawfully and validly elected. Consequentially, Mr Cheng (the 10th Respondent) could only take instruction from the new JMC and was not answerable to the 1st Appellant or the old JMC. Proceedings before the High Court [17] Feeling dissatisfied and aggrieved with the decision, the Appellants filed an application for leave for judicial review with the High Court to challenge and quash the decision of the Tribunal. [18] The reliefs sought are as follows:

(ii) A declaration that the purported Annual General Meeting of the 2nd Appellant held on 23.1.2016 is null and void as being contrary to the 2013 Act;

(iii) A declaration that the 1st Appellant is not prejudiced in any way in the non-payment of maintenance and other monetary charges and interest thereon to the JMB and the 1st Appellant’s voting rights at General Meetings since January 2016;

(iv) That the President be prohibited from hearing the claim of the Appellants dated 14.7.2015;

(vi) Any further other relief that the Court deems fit; and

(vii) Costs to be paid to the Appellants by the 2nd and/or the 3rd to 10th Respondents taking into account Order 59 rule 8(b) of the Rules of Court 2012. [19] The grounds upon which the reliefs are sought are as follows (see Pages 76 – 77, Record of Appeal, Volume 1, Part A):

(ii) Section 113 of the 2013 Act provides for the statutory obligation of the Tribunal to act fairly and impartially and to give each party a reasonable opportunity to present its case and to respond to his opponent's case. Based on notes of evidence and proceedings and the 1st Appellant’s own affidavit, he had not only been given the opportunity to file written submissions in reply to the respondents' arguments but he was also not prevented from presenting his arguments orally. Even if there was evidence to suggest that the notes of proceedings did not record each and every detail of the exchanges that had taken place at the hearing, this did not mean that what had been recorded did not actually take place;

(iii) Part 1 of the Fourth Schedule to the 2013 Act provides for the matters in which a claim may be made to the Tribunal. These matters do not include the ability of the Tribunal to nullify a notice of a general meeting. The Tribunal is a creature of statute and does not have any inherent jurisdiction and hence must derive its powers from the four corners of its constituting Act. Having regard to the provisions of the 2013 Act as a whole, the power to grant an interlocutory order to nullify a notice of AGM is not considered as one that exists by necessary implication. The Tribunal was: (a) entitled to have made a determination on the application in Form 14 after having received the written submissions of the 1st Appellant; and (b) entirely correct to have dismissed the application on the basis that it did not have the jurisdiction to grant the order prayed for;

(iv) The 1st Appellant contended that the Tribunal committed an error of law when the President stated that he had wanted to confer with others in connection with the recusal application. There was no evidence that the President had wrongly exercised his judicial discretion by conferring with third parties. There ought to be nothing wrong with a statement from an adjudicator that he or she wished to check up on the law as no one could claim to have a monopoly on knowledge. Furthermore, this ground for challenge had not been set out in the statement filed by the Appellants pursuant to Order 53 Rule 3(2) of the Rules of Court 2012, which meant that it did not form a valid ground for challenge before the court; and

(ii) The learned High Court Judge had erred in holding that in the event that there may have been procedural impropriety in the decision-making process, the reviewing court could exercise its judicial discretion to refuse the remedy. Our Findings Rules of Natural Justice [23] We have considered the competing submissions made by learned counsel on behalf of the respective parties and perused the Record of Appeal. We have unanimously dismissed the appeal with costs. We now set out our reasons for so doing. [24] Learned counsel for the Appellants submitted that the President, as a decision-maker, had breached the rules of natural justice when he failed to give reasons in dismissing the recusal application. According to the learned counsel, the 1st Appellant had been deprived of his right to submit when the President failed to furnish legal authorities relied upon as the basis of the decision not to recuse himself. The 1st Appellant’s affidavit, in support of the judicial review application, captured the exchange between the 1st Appellant and the President in the following manner (see Page 109, Record of Appeal, Volume 2A, Part B) : “62. Subsequently, the 2nd Respondent stated that he had made his ‘…rujukan…’ on the law of recusal and he did not find a reason to recuse himself and shall proceed with hearing the said Claim.”

63. I had then asked the 2nd Respondent which law he had referred to since I had a right to submit on it.

64. However, the 2nd Respondent stated that if needed, it will be in the grounds of his decision.” [25] In support of his submission, learned counsel for the Appellants relied on the decision of House of Lords in Hadmor Productions Ltd & Ors v Hamilton & Ors [1982] 1 All ER 1042, where Lord Diplock stated as follows: “Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given the opportunity of stating what his answer to it is.” [26] Learned counsel further submitted that the 1st Appellant was entitled to know the reasons relied upon by the President immediately i.e. at the time the decision to refuse the recusal application was pronounced. [27] We recognise that as a general rule, a court and/or tribunal which delivers a final judgment is obligated to give reasons for its decision. This is an important part of the judicial function, both in terms of explaining to the parties and an appellate court the basis for its decision. As the Judicial Committee of the Privy Council opined in Smith v Molyneaux [2016] UKPC 35 (Dame Mary Arden): “36. … It is an important duty of a judge to give at least one adequate reason for his material conclusions, that is, a reason which is sufficient to explain to the reader, and the appeal court, why one party has lost and the other has succeeded: see, generally, the decision of the Court of Appeal of England and Wales in English v Emery Reimbold & Strick Ltd [2002] EWCA 605; [2002] 1 WLR 2409, especially at paras 15 to 21. The judge does not have to set out every reason that weighed with him, especially if the reason for his conclusion was his evaluation of the oral evidence: “… if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon. (English v Emery Reimbold & Strick, para 19 per Lord

37. Phillips MR, giving the judgment of the court)” If an appellate court cannot deduce the judge’s reasons for his conclusion in a case, it will set aside the conclusion and either direct a retrial or make findings of fact itself: see English v Emery Reimbold at para 26.” (See also Dato’ Seri Anwar Ibrahim v P.P [2010] 9 CLJ 625; Thong Ah Fat v P.P [2012] 1 SLR 676). [28] These general principles which call for the court to provide reasons for its decision are not unique to criminal and civil cases but are principles which apply to all including the decisions of the Tribunal. [29] In relation to the formulation of a tribunal’s written reasons, we refer to the following cases:

12. The claimant, goes to the extent of making a misquoted statement in his submission, by quoting something which the tribunal did not say. This was one of the issues, if at all becomes one of the central issues that leads to argument between the parties and tribunal. The facts to the issue is that one of the notices of a resolution to be discussed and voted in the AGM 13.6.2015 is short serviced to the parcel owner, and when the tribunal says this, "it can be rectified in the meeting itself", what the tribunal meant is that the attending members (qualified parcel owners to attend the AGM) during the meeting itself can opt to propose and further call for that particular resolution (which is short serviced) NOT to be discussed and passed in the AGM. But it (short serviced itself) is not a valid reason to stop the AGM.

13. However, the whole episode of arguments, is not in any way prejudicial to any party. Being dissatisfied with the presiding President words or arguments is not a valid reason for recusal.” [36] We have carefully perused the notes of proceedings, the 1st Appellant’s SD and the Award. In our considered opinion, the comments made by the President must be looked at in the proper context – to keep a tight rein on proceedings of the Tribunal. To be fair to the 1st Appellant, there were some indications that the President spoke heatedly and impatiently when the 1st Appellant made a warranted suggestion in his submission. Taking these actions of the President as a whole, it must be said that he should have displayed a more judicial temperament, but we cannot say that his outbursts prejudicially affected the case because his criticism was with regards to manner in which the 1st Appellant conducted his case and not the merits of the case itself. We are not condoning any impatience of a discourteous kind, but an examination of the entire record convinces us that it did not deprive the Appellant of a fair hearing. [37] The case of Hadmor Productions (supra) cited by the 1st Appellant does not assist the Appellants. In that case, during arguments before the Court of Appeal, counsel had refrained from referring to speeches in Hansard for the purpose of interpreting the particular Act of Parliament. At no time during the course of hearing the appeal did Lord Denning MR who presided, indicate that he proposed to refer to Hansard. At the time that case was decided it was accepted that you could not have recourse to Hansard to interpret a statute. However, when he came to write his judgment the Master of the Rolls relied on Hansard. Lord Diplock commented adversely on this and it was under this circumstance that the decision of the Court of Appeal was set aside. By contrast, the present case is not one that concerns a decision made by the Tribunal based on a point which was not pleaded. [38] Before we conclude on this issue, we would like to emphasise that a judge and/or president of tribunal who has been duly appointed to hold a judicial office must discharge the duties of the office without fear and favour and must not yield unquestioningly to suggestion of bias. As Mason J, sitting in the High Court of Australia in the case of Re JRL; Ex parte CJL [1986] 161 CLR 342 (HCA) at p 352 entered a note of caution. He warned that: “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” We also agree with a further observation made by Mason J in the same case that: “It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.” [39] In R v S (RD) [1977] 3 S.C.R 484, L’Heureux-Dubé J and McLachlin J said: “Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges “are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances”: United States v. Morgan, 313 U.S. 409 (1941), at p. 421. The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III … ‘[t]he law will not suppose a possibility of bias or favour in a Judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a Judge, in the absence of convincing evidence to that effect: R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A.), at pp. 60-61.” [40] In our opinion all the above observations squarely applies to the President of the Tribunal. [41] For these reasons, the Appellant’s first ground of challenge must fail. Ex Debito Justitiae [42] Learned counsel for the Appellants complained that the learned High Court Judge had erred in holding that if procedural impropriety had been occasioned, the Court still has the discretion to refuse the relief sought. [43] The simple answer to the second submission is this. Prerogative relief in the form of certiorari is discretionary and is not available ex debito justitiae to an applicant who is able to demonstrate an error of law on the part of a public decision-maker - which we hasten to repeat that this is not the case here (see Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia & Anor [1996] 4 CLJ 687; [1996] 3 AMR 3693, [1995] 3 MLJ 369, [1995] 2 MLRA 435). [44] Suffice to say that in the circumstances of this instant appeal, the ultimate decision being correct, no injustice of any sort, whether substantial or inconsequential, has been occasioned because of the alleged wrong reasons. [45] Therefore, the second point raised by the Appellants is also rejected. Conclusion [46] For the reasons stated above, the appeal is devoid of merit. The impugned Award dated 3.2.2016, suffers no illegality or irrationality warranting interference by the High Court. Accordingly, we had dismissed the appeal with cost of RM10,000.00 and affirmed the decision of the High Court. Deposit was refunded. Dated: 23rd May 2019 sgd. (DATO’ SETIA MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia Counsel for the Appellants Datuk Sri Gopal Sri Ram (David Yii and Damien Chan with him) Messrs. Bodipalar Ponnudurai De Silva Advocates and Solicitors D-3-1-8, Solaris Dutamas No: 1, Jalan Dutamas 1 50480 Kuala Lumpur. Counsel for the Respondents N.Subramaniyan Messrs. Subramaniyan Advocates and Solicitors 106, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur.