CEMPAKA MEWAH SDN BHD (In Creditors' Voluntary Liquidation) (Liquidator appointed on 17.4.2003) c/o KPMG CORPORATE RESTRUCTURING PLT v PENGARAH UKUR DAN PEMETAAN NEGERI SEMBILAN DARUL KHUSUS (N-01(NCvC)(A)-460-06/2022)

This is an appeal against the decision of the High Court in Seremban dated 10 June 2022, which dismissed the Appellant’s (the Plaintiff in the High Court) applications brought by way of an Originating Summons (“OS”). The Appellant sought, among other reliefs, a declaration that the Respondent (the First Defendant in the High Court) be directed to approve and issue the certificate of proposed strata plan (“CPS”/8A Certificate) in respect of a housing project developed by the Appellant, to enable the Appellant to proceed with the necessary actions under section 9 of the Strata Titles Act 1985 (“STA”).

The Appellant is the developer of a strata housing project comprising 200 parcels, known as Cape Nautica Villas, Batu 6, Jalan Pantai, Port Dickson, located on Lot 1309, PN. 11588, Bandar Telok Kemang, in the District of Port Dickson. The Appellant was then wound up through a creditors’ voluntary liquidation, and a Liquidator was duly appointed on 17 April 2003.

The Respondent is the authority empowered to issue a CPS under section 8A of the STA.

The Second Defendant who is not a party to this appeal, is the Director of Land and Mines of Negeri Sembilan, who is authorised to approve applications for the subdivision of buildings pursuant to section 9 of the STA, following the approval of a CPS/8A Certificate by the Respondent.

It is a legal requirement that a CPS/8A Certificate issued under section 8A of the STA by the Respondent is necessary under section 10(1) (a) of the STA before the Second Defendant may grant approval for the subdivision of the building.

On 13 February 2017, the Appellant submitted an application for a CPS, together with supporting documents to the Respondent through a surveyor appointed by the Appellant, Jurukur Pembangunan Sdn. Bhd. (“JPSB”).

Upon review, the Respondent found the Appellant’s CPS/8A Certificate application to be irregular for the following reasons: a) The building plan submitted by the Appellant did not provide for parking parcels, known as an accessory parcel plan, whereas the Sales and Purchase Agreement (“S&P”) expressly includes provisions for separate parking parcels, referred to as an accessory parcel plan, in Clause 6 of the Fifth Schedule of the S&P; and 5 b) The Appellant submitted only a Certified True Copy of the building plan, rather than the original building plan approved by the local planning authority, nor a building plan certified by the same authority.

As a result of these inconsistencies, the Appellant’s application for the CPS/8A Certificate could not be approved.

Summarily, the Appellant contends: i. The Learned Judge erred in law and in fact in failing to recognise that the provisions of section 6(3)(b) of the Strata Management Act 2013 (“SMA”) as well as sections 8A(6)(a) and 8A(7)(a) of the STA, relied upon by the Respondent to refuse the issuance of the CPS/8A Certificate, only came into force on 1 June 2015 and were therefore inapplicable on the date of the S&P, namely 16 August 1996; ii. The Learned Judge erred both in law and in fact in failing to recognise that the term “accessory parcel” as used in item 6 of the Fifth Schedule of the S&P does not bear the meaning of “accessory parcel” as defined under section 4 of the STA; 6 iii. The Learned Judge erred both in law and in fact in failing to recognise that the S&P contains no provision for an accessory parcel in respect of a parking space to accompany the purchase of each unit parcel; and iv. The Learned Judge erred in law and in fact in failing to recognise that the law imposes no requirement to allocate an accessory parcel for a parking space in the proposed strata plan submitted by the Appellant for the Respondent’s approval.

It is the Respondent’s contention that the effective date of section 8A of the STA is immaterial, as the S&P entered into between the Appellant and the purchasers remain binding on the parties, including the Respondent. The Respondent contends that the S&P which expressly provide for accessory parcels, bind the Appellant vis-à-vis the purchasers, irrespective of the coming into force of section 8A of the STA. Further, the Appellant itself applied for the issuance of the CPS/8A Certificate by way of a letter from JPSB dated 13 February 2017, expressly pursuant to section 8A of the STA. In the circumstances, the Appellant is estopped from contending that section 8A of the STA is inapplicable, having invoked and relied upon that very provision, which was already in force at the material time.

The Respondent argued that according to section 4 of the STA, an accessory parcel means a parcel shown in a strata plan as an accessory parcel that is used or proposed to be used together with another parcel. The Appellant had submitted the building plan without providing parcels for parking spaces known as an "accessory parcel plan" or "accessory parcel". The Respondent’s review found that the absence of these accessory parcels in the building plan is inconsistent with the S&P.

The Respondent further argues that Clause 6 of the Fifth Schedule, the Preamble and Clause 31(a) of the S&P clearly provide that each purchaser is entitled to one designated parking space. Accordingly, each residential parcel is sold together with one designated parking space. According to the Respondent, the Appellant’s assertion that the term “accessory parcel” in Clause 6 of the Fifth Schedule does not fall within the definition of “accessory parcel” under section 4 of the STA is therefore without merit.

The Respondent contends that the Appellant’s assertion that the parking spaces constitute common property is equally untenable, as the Second Schedule to the S&P does not list parking spaces as “common facilities and services”. There is thus a clear inconsistency between the Appellant’s application for the CPS/8A Certificate and the S&P, justifying the Respondent’s refusal to issue the CPS/8A Certificate.

In light of the discrepancy between the proposed strata plan submitted through the JPSB and the S&P, the Respondent found the proposed strata plan to be irregular. The Respondent contends that section 8A(6) of the STA expressly requires accessory parcels to be reflected in a CPS/8A Certificate application, and the Appellant’s failure to submit the relevant parking layout plans warranted the Respondent’s refusal to grant the approval.

Before addressing the substantive issues raised herein, there arises a preliminary objection by the Respondent concerning the propriety of commencing this action by way of OS. The Respondent contends that the Appellant ought instead to have proceeded by way of an application for Judicial Review. The High Court upheld the said preliminary objection.

This Court is of the considered view that the principal issues in this appeal relate to the construction of the S&P and the Appellant’s application for the CPS/8A Certificate. The Appellant’s application has been held in abeyance pending the resolution of matters concerning the allocation of the car park spaces to the satisfaction of the Respondent. We are of the considered view that no final decision has been made by the Respondent in the form of a rejection of the Appellant’s application. In other words, the application has not been 9 formally rejected but instead was described by the Respondent as irregular (tidak teratur).

In their submissions, the Respondent has stated that they are unable to approve the Appellant’s application at this stage, as the proposed strata plan submitted for the CPS/8A Certificate does not designate the car park spaces as accessory parcels. Furthermore, the Respondent has indicated that the issuance of the CPS/8A Certificate is also impeded by a complaint from a purchaser regarding the status of the car park spaces allocated. The Respondent’s letter dated 31.7.2019 states that: “…pihak JUPEM Negeri Sembilan tidak dapat meneruskan selanjutnya bagi Permohonan Sijil Cadangan Pelan Strata (CPSP) sehingga pihak tuan mencapai kata sepakat dalam menyelesaikan permasalahan ini.”

In addition, the Respondent’s letter of 15 April 2021 had requested the Appellant to take necessary actions to resolve the problems (mengambil tindakan yang sewajarnya bagi menyelesaikan permasalahan ini).

There is, therefore, no finality in this matter, as the legal status of the car park spaces remains unresolved. The Appellant has, through the OS, sought a definitive interpretation of the 10 relevant provisions of the S&P and the STA to address the issue concerning the accessory parcels.

In Capitol Avenue Development Sdn Bhd v Gamwon Properties Sdn Bhd [2021] 1 LNS 528, it was argued by the Plaintiff’s counsel therein that as the sole and principal issue in that case relates to the construction of the Architect's Certificate of Extension of Time under the sale and purchase agreement and the facts of the case are mainly undisputed, the Plaintiff filed an OS pursuant to Order 5 Rule 4 Rules of Court 2012 ("ROC 2012"). The only live issue to be resolved is whether the Defendant is entitled to rely on the Architect's certificate for Extension of Time to reduce the sum to be paid for liquidated damages. It was argued that the determination of the issues by OS is not only sensible but the correct approach. The Court of Appeal agreed with the learned counsel for the Plaintiff on this issue.

In the present matter, the learned High Court Judge in his judgment had relied on the Federal Court’s decision in Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145, a leading Malaysian administrative law case on the correct mode of commencement for judicial review proceedings. In that case the appellant was a government officer who stopped attending work after a dispute with his superior. Later, he was dismissed from service, with the dismissal notified via gazette. On 15 January 2004, the appellant filed a writ of summons and 11 statement of claim seeking inter alia a declaration that his dismissal was null and void and damages for wrongful dismissal. The High Court struck out the writ as an abuse of process, and the Court of Appeal dismissed his appeal. The Federal Court granted leave to appeal on two key questions: i. Whether, pursuant to the amended Order 53 of the Rules of the High Court 1980 (now Rules of Court), a challenge to a decision of a public authority must be commenced by an application for judicial review under Order 53 instead of by a writ of summons; and ii. Whether commencing an action by writ instead of by judicial review was an abuse of the court’s process.

The Federal Court dismissed the appellant’s appeal and reaffirmed key principles about judicial review procedure in that judicial review is the appropriate mode and that initiating a claim by writ and statement of claim without complying with the procedural requirements for judicial review constitutes an abuse of the court’s process if public law relief is sought.

However, it must be noted that in that case the Federal Court further stated that the public law element must be assessed first and if the dominant issue is private law in nature (even if a public authority is involved), judicial review is not the proper mode, and a writ action may be appropriate instead.

Importantly, the Federal Court in the same case had laid down exceptions to the general rule as follows: “This general rule enunciated in O’Reilly v Mackman has in fact been acknowledged by this court in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors and repeated in YAB Dato’ Dr Zambry. However, like all general rule, there are exceptions. This again was recognised by Lord Diplock in O’Reilly v Mackman where he referred to ‘particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law or where none of the parties objects to the adoption of the procedure by writ, or originating summons’. Then of course there is the exception for a claim against the public authority for negligence as decided in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors. There may be others and these ‘are left to be decided on a case to case basis’ as spoken of by Lord Diplock in O’Reilly v Mackman. The circumstances in YAB Dato’ Dr Zambry is obviously one of them where this court found that a challenge by the appellants of their suspension from attending a State Legislative Assembly is a matter that affects their legal status is an exception. For this, the aggrieved party can commence their claim by way of an originating summons rather than an application under O 53 of the RHC. We observed that a challenge on the use of appropriate procedure is very much fact based. Thus, it is necessary for a judge when deciding on such matter to first ascertain whether there is a public law element in the dispute. If the claim for infringement is based solely 13 on substantive principles of public law then the appropriate process should be by way of O 53 of the RHC. If it is a mixture of public and private law then the court must ascertain which of the two is more predominant. If it has substantial public law element then the procedure under O 53 of the RHC must be adopted. Otherwise it may be set aside on ground that it abuses the court’s process. But if the matter is under private law though concerning a public authority, the mode to commence such action under O 53 of the RHC is not suitable. Aside from this, there could be other circumstances like the kind in YAB Dato’ Dr Zambry. Much depends on the facts of the case.”

In Leo Leslie Armstrong (sebagai Presiden dan Pemegang Jawatankuasa the Young Men's Christian Association of Kuala Lumpur) (Persatuan Pemuda Kristian Kuala Lumpur) v Jawatankuasa Kerja Tanah Wilayah Persekutuan Kuala Lumpur (yang dahulunya dipegang oleh Majlis Mesyuarat Kerajaan Negeri Selangor) [2015] 2 CLJ 10, the learned Senior Federal Counsel contended that the application to challenge the decision of the Land Administrator in that case, must be made by way of judicial review as the appellant was challenging the decision of a public authority namely the Land Administrator. In that case, the appellant challenged the change of status of the original land tenure from freehold to leasehold for the subdivision of two plots of land, Lot A and Lot B was ultra vires and unlawful. The Court of Appeal stated as follows: “It is the contention of learned Senior Federal Counsel that the application to challenge the decision of the Land Administrator in this case, must be made by way of judicial review as the appellant was challenging the decision of a public authority namely the Land Administrator. However, in Litus Jau & Anor v Boustead Pelita Tinjar Sdn Bhd & Ors [2014] 1 MLJ 794, Raus Sharif, PCA, speaking for the Court of Appeal, after reviewing the House of Lord's decision in O'Reilly v Mackman [1982] 2 All ER 1124, reiterated that the principle that a plaintiff who alleges infringement by a public authority of his rights must do so by way of judicial review as to allow him to proceed by way of an ordinary action would be against public policy and an abuse of process of Court, is only a general rule. Therefore, not every case where a challenge is mounted against a decision by a public authority must be by way of judicial review. There are exceptions to this general rule. In this respect, the learned judge in Litus Jau (supra) had referred to the Federal Court case of Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865, and had followed the guidelines stated in that case in ascertaining the proper mode of proceedings in public law matters. The guide is this: "If the claim for infringement is based solely on substantive principles of public law then the appropriate process should be by way of O 53 of the RHC. If it is a mixture of public and private law then the court must ascertain which of the two is more predominant. If it has substantial public law element then the procedure under O 53 of the RHC must be adopted. … But if the matter is under private law though concerning a public authority, the mode to commence 15 such action is under O 53 is not suitable … Much depends on the facts of the case." [Emphasis added]

The dichotomy between private law rights and public law rights continues to trouble the courts. The question of whether the appropriate procedure has been adopted is one that is inherently fact-sensitive and must be determined on the particular circumstances of each case. The court cannot be swayed merely by the fact that the Respondent is a government body. The factual matrix of the present case centers on the Appellant, in its capacity as developer and vendor, seeking to obtain strata titles for private purchasers pursuant to private sale and purchase agreements. We are of the considered view that the dispute is, in substance, one of a private law nature, notwithstanding that the authorities responsible for the issuance of the CPS/8A Certificate and, ultimately, the strata titles are public bodies.

The true test is not the status of the Respondent, but the nature of the rights asserted and the substance of the relief sought. Where the complaint does not challenge the legality, procedural propriety or rationality of an administrative decision in the public law sense, but instead turns on the construction of contractual instruments and the determination of private rights and obligations, the matter does not fall exclusively within the province of judicial review under O.53 of the ROC

[28] It is trite law that the mere involvement of a statutory authority does not, without more, convert a dispute grounded in private law into one requiring redress solely by way of judicial review. The court must look at the pith and substance of the action. In the present case, the Appellant does not impugn any concluded decision of the Respondent nor seek to quash an exercise of statutory power; rather, the Appellant seeks declaratory relief to resolve outstanding issues arising from the interpretation of the S&P and their interaction with the statutory framework governing strata titles. [29] The Respondent’s preliminary objection founded on the alleged mischaracterisation of the action as one in private law is therefore without merit. [30] In light of authorities cited in the above, it is evident that, in the absence of express statutory language to the contrary, the High Court retains jurisdiction to grant declaratory orders. In other words, Order 53 ROC 2012 does not constitute an exclusive code for the grant of declaratory relief. Upon consideration of the factual matrix before us, we find that the proceedings commenced by way of the OS were not improper. The nature of the issues and the reliefs sought rendered the OS a proper and appropriate mode of commencement. Accordingly, there is no impediment under Order 53 of ROC 2012 to the Appellant seeking the declaratory reliefs prayed for. The Issues [31] The central issue for determination is whether the Respondent’s stated reasons for refusing to process the application for the 8A Certificate are valid and justifiable in law. [32] The Respondent refused to approve the Appellant’s application for the 8A Certificate by letter dated 15 April 2021. [33] The Respondent’s position was that the proposed Strata Plan and As-Built Plans (Pelan Siap Bina) submitted with the Appellant’s application were inconsistent with the S&P regarding the status of the car park space/lots (tempat letak kereta (“TLK”)); and did not comply with section 6 of the Fifth Schedule of the S&P which provides that each accessory parcel comprises one car park lot to be designated by the vendor. Section 6 of the Fifth Schedule of the S&P states as follows: “6. Accessory Parcel with one (1) car-parking lot only to be designated by the Vendor” [34] The Respondent further contends that the Appellant had failed to comply with section 6(3)(b) of the SMA which states: “Section 6(3),— A schedule of parcels filed under subsection (1) or an amended schedule of parcels filed under subsection (2) shall:

show a legend of all parcels, all common properties and all accessory parcels, and in the case of accessory parcels, specify in the legend the parcels they are made appurtenant to” [35] In other words, under section 6 (3) (b) of the SMA, when a developer files a schedule of parcels with the Commissioner, that schedule must include a legend (key) listing:

all individual parcels;

(ii) all common property;

(iii) all accessory parcels; and

(iv) for any accessory parcel, which parcel(s) it attaches to (i.e., which parcel the accessory parcel belongs with). [36] The Respondent further contends that the Appellant had failed to comply with sections 8A(6)(a) and 8A(7)(a) of the STA which state: “Application for certificate of proposed strata plan 8A (6) Every proposed strata plan shall—

show a legend of—

all parcels;

(ii) all common property; and

(iii) all accessory parcels, and specify therein the parcels they are made appurtenant to, irrespective of whether the accessory parcels are contiguous to those specified parcels; 8A (7) Where an accessory parcel—

consists of a building or parts thereof and is bounded by external walls, floors and ceilings, the dimensions and boundaries of such accessory parcel shall be shown in the proposed strata plan in accordance with the requirements of subsections (3), (4) and (5)” [37] The S&P dated 16.8.1996 herein is a statutory form of S&P which adopts Schedule H of the Housing Developers (Control and Licensing) Regulations 1989, in force from 1 April 1989 and promulgated under the Housing Developers (Control and Licensing) Act 1966 (now Housing Developers (Control and Licensing) Act 1996). [38] The fourth recital of Schedule H, appearing as the third recital in the S&P notes that approval for the Building Plans has been obtained from the Majlis Perbandaran Port Dickson (“MPPD”), and that the certified Floor Plan, Storey Plan, and Site Plan are annexed to the First Schedule. [39] It must be noted that at the material time, Schedule H did not require the attachment of an Accessory Parcel Plan to the First Schedule. Such a requirement arose only after 2002 by virtue of PU(A)473/2002. Accordingly, any accessory parcel would be reflected solely in the Site Plan and Storey Plan, as provided in Clause 31(a) of the S&P. [40] The last recital of Schedule H reads: “And WHEREAS the Vendor has agreed……*with accessory parcel with vacant possession distinguished as accessory parcel No…of Building No….(hereinafter referred to as “the said Parcel”) subject to the terms and conditions hereinafter contained.” [41] Apparently, as at the date of the S&P, Schedule H permitted the deletion of the recital “with accessory parcel with vacant possession distinguished as accessory parcel No…. of Building No….” indicated by the asterisk (*) which means “delete whichever is not applicable” (see at the end of the Fourth Schedule of Schedule H). In the present case, these words were deleted and not found in the S&P, removing any reference to accessory parcels associated with the car parks. [42] Accessory parcel is defined in Clause 31(a) of the S&P as: “31 Interpretation In this Agreement, where the context so admits –

“accessory parcel” means any parcel shown in the Site Plan and Storey Plan as an accessory parcel which is used or intended to be used in conjuction with the parcel.” [43] We find that no car park was ever designated as an accessory parcel under Clause 31(a) of the S&P and neither the Site Plan nor the Storey Plan records any such designation. Likewise, the Building Plans approved by MPPD do not provide for it. [44] Only the First to Fourth Schedules form part of the statutory requirements under Schedule H. Clause 30 provides that these schedules “shall form part of the agreement and shall be read, taken and construed as an essential part of the Agreement.” Consequently, the Fifth and Sixth Schedules of the S&P, including the provisions in section 6 concerning accessory parcels, are not statutory requirements. They merely confer upon each purchaser the right to use a car park lot designated by the Appellant, and do not create an entitlement to an accessory parcel. [45] In short, the car parks were never intended to constitute accessory parcels. The references to “Accessory Parcel” in the recital and section 6 of the Fifth Schedule do not correspond to Clause 31 of the S&P. The recital in the S&P adopting Schedule H as at 16 August 1996 lawfully omitted the words “distinguished as accessory parcel No…. of Building No…”, reflecting the legal position at the time. [46] We are of the considered view that the rights conferred upon each purchaser under the S&P are limited to the use of a car park, to be designated by the Appellant as the vendor, and do not extend to any entitlement to an accessory parcel in connection with the purchase of a parcel (see the final Recital of the S&P and section 6 of the Fifth Schedule). [47] The term “Accessory Parcel,” as employed in the Recital and section 6 of the Fifth Schedule, is not synonymous with the definition of accessory parcel contained in Clause 31(a) of the S&P. Notably, the Recital in the S&P, in the form of Schedule H applicable as at 16 August 1996, did not provide for car parks as necessary parcels, as evidenced by the deletion of the words “distinguished as accessory parcel No…. of Building No….” [48] It is apparent to this Court that the Respondent misconstrued the language of section 6 of the Fifth Schedule, treating it as a requirement that car parks be designated as accessory parcels in the proposed strata plan submitted for the 8A Certificate. The Appellant, did not seek to amend nor apply for the exemption to convert the car parks from non-accessory status to common property and we find the reason is clear: the car parks were never accessory parcels. [49] At the material time of the S&P, no legal or factual basis existed to treat the car parks as appurtenant to any parcel. Consequently, the proposed strata plan could not, and did not, include any legend indicating necessary parcels or specifying to which parcel an accessory parcel might be appurtenant. A fortiori, the Respondent was not justified in requiring such a designation. [50] Accordingly, this Court finds that the Respondent’s interpretation of the S&P and the Fifth Schedule was misconceived. The Appellant’s position is fully consistent with the language of the S&P and the prevailing factual and legal matrix. The Appellant’s entitlement to the use of the car parks remains unaffected, and the car parks cannot be treated as accessory parcels in the proposed strata plan for the purposes of the 8A Certificate. [51] We are also not persuaded with respect to the Respondent’s contention that the MPPD’s certification of the As-Built Plans as Certified True Cope (Salinan Diakui Sah) which do not correspond in every detail with the original Building Plans has the effect of altering the status of the car parks. We find that such certification does not, and cannot convert the car parks into accessory parcels. The As-Built Plans, as submitted to the Respondent, have been duly certified by the MPPD and are valid and proper for the purposes of the application for the 8A Certificate. In our view, the certification serves solely to confirm the accuracy of the As-Built Plans in relation to the constructed development and does not carry with it any implication of entitlement or reclassification of the car parks. Conclusion [52] Having considered the submissions of the parties and the materials on record, this Court is of the considered view that the Respondent’s interpretation of the S&P and the proposed strata plan is misconceived. The Appellant has established that the rights conferred under the S&P relate solely to the use of the car parks, which were never intended to be accessory parcels, and that the certification of the As-Built Plans by the MPPD does not alter this position. The proposed strata plan, as submitted, was valid and proper for the purposes of the application for the 8A Certificate. In light of the foregoing, the Appellant has demonstrated that the Respondent’s objections were without merit. [53] For the foregoing reasons, the appeal was allowed. The decision of the High Court was set aside, and the Appellant was awarded costs in the sum of RM15,000.00, subject to allocatur. Dated: 2 February 2026 Sgd Noorin Binti Badaruddin Judge Court of Appeal Malaysia LIST OF COUNSELS:

Paari Perumal; and

Jayaratnam A/L Kumarasamy [Jayaratnam & Partners (Kuala

Amalina Binti Zainal Mokhtar (Senior Federal Counsel); and

Mohamad Shafiq Bin Mohd Sazalli (Federal Counsel) [Attorney General’s Chamber] CASES REFERRED TO: Capitol Avenue Development Sdn Bhd v Gamwon Properties Sdn Bhd [2021] 1 LNS 528. Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 3 MLJ 145. Leo Leslie Armstrong (sebagai Presiden dan pemegang jawatankuasa the Young Men's Christian Association of Kuala Lumpur) (Persatuan Pemuda Kristian Kuala Lumpur) v Jawatankuasa Kerja Tanah Wilayah Persekutuan Kuala Lumpur (yang dahulunya dipegang oleh Majlis Mesyuarat Kerajaan Negeri Selangor) [2015] 2