Cheah Ting Feng v Perbadanan Pengurusan Banyan Tree Signatures Pavilion Kuala Lumpur (WA-22NCvC-693-11/2024)

This is the Court’s written Grounds of Judgment in respect of the Plaintiff’s application for an ad interim injunction vide Enclosure 7, filed on 4 February 2025, seeking to restrain the Defendant, Perbadanan Pengurusan Banyan Tree Signatures Pavilion Kuala 14/10/2025 18:54:20 WA-22NCvC-693-11/2024 Kand. 37 Lumpur (“the MC”), from enforcing a by-law that prohibits short-term rental (“STR”) activities within the residential component of the Banyan Tree development, and from issuing further notices, invoices, or fines pending disposal of the main suit.

Having heard learned counsel for both parties and considered the extensive affidavit evidence and written submissions, this Court delivered its decision on 23 June 2025, dismissing the Plaintiff’s application for an ad interim injunction with costs in the cause. The Court now sets out its full reasons and findings.

The Plaintiff, Cheah Ting Feng, a Vanuatu national, is the beneficial owner of fifty-one (51) residential units within the stratified development known as Banyan Tree Signatures Pavilion Kuala Lumpur (“the Building”), a mixed-use development comprising a residential component of 492 strata-titled condominium units and a hotel components occupying eight (8) upper floors operated under the Banyan Tree brand.

The Plaintiff, through his appointed operator Opus Hospitality Management Sdn. Bhd., began operating short-term rental (STR) or transient accommodation business across his units. The evidence shows that the Plaintiff’s listings appeared on online platforms such as Airbnb, Agoda, and Booking.com.

The Defendant is the Management Corporation (MC) established pursuant to section 17 of the Strata Management Act 2013 (“SMA 2013”) upon the issuance of strata titles for the Building. The MC is statutorily responsible for the maintenance, management, and administration of the common property and for the enforcement of the by-laws applicable to the proprietors of parcels within the Building.

The Defendant avers that the activity of the Plaintiff generated substantial movement of transient guests, noise, and security concerns inconsistent with a residential environment.

At the First Annual General Meeting (1st AGM) of the MC held thereafter, the proprietors passed a resolution introducing an Additional By-Law expressly prohibiting the use of any residential unit for short-term rental, lodging, or transient accommodation for any period of less than three months.

The by-law was adopted unanimously and duly lodged with the Commissioner of Buildings under subsection 32(3) of the SMA 2013.

This resolution was intended to regulate the increasing use of residential units for short-term letting via online platforms such as Airbnb, Agoda, and Booking.com, which the MC contends had given rise to significant issues of nuisance, security, and overuse of facilities.

Despite the notice and resolution, the Plaintiff continued his STR operations. Following repeated complaints and alleged breaches, the MC issued a series of invoices and compound notices. . Consequently, the MC began issuing compound notices and invoices for each observed breach to the Plaintiff, including:

37 invoices dated 1 May 2024 totalling RM9,600.00;

174 invoices between 19 September 2024 and 2 October 2024 totalling RM34,800.00;

37 invoices between 2 October 2024 and 4 October 2024 totalling RM7,400.00; and

51 notices dated 6 January 2025 imposing fines amounting to RM203,800.00.

The Plaintiff however contends that the said Additional By-Law is ultra vires the SMA 2013 as it effectively deprives parcel owners of the legitimate use and enjoyment of their property, and that the MC’s enforcement actions are unreasonable, oppressive, and tainted with mala fides.

The Plaintiff further asserts that representations made by the developer and its agents prior to purchase had indicated that short-term letting would be permissible, given the dual-key design of the units mirroring hotel suites.

On 4 February 2025, the Plaintiff filed the present Notice of Application (Encl. 7) supported by an Affidavit in Support (Encl. 8) affirmed by Kong Pooi Yee, seeking urgent injunctive relief to restrain the MC from enforcing the by-law, from issuing further notices or fines, and from restricting his or his guests’ access to the premises pending trial of the main action challenging the by-law’s validity.

The Plaintiff therefore sought the following interim reliefs:

An injunction to restrain the MC from enforcing or imposing the fines and invoices above referred to;

An injunction to restrain the MC from issuing further notices or fines in respect of the prohibition on STR activities; and

An injunction to restrain the MC from deactivating the Plaintiff’s access cards or restricting entry to his units and common facilities.

The Defendant opposed the application and filed several affidavits, including:

An Affidavit in Reply affirmed by Lee Whay Hoong on 13

A Second Affidavit in Reply affirmed by the same deponent on 25 February 2025 (Encl. 17);

A Further Affidavit affirmed by Chia Swee Foong, the property manager, on 6 March 2025 (Encl. 23), which annexed a police report regarding a serious criminal incident allegedly occurring in one of the Plaintiff’s STR units; and

Comprehensive written submissions (Encl. 12 and Encl. 18) supported by two volumes of authorities (Encl. 13 and 24), including Keet Gerald Francis Noel John v Mohd Noor bin Abdul Karim [1995] 1 MLJ 193, Innab Salil v IMTN Sdn Bhd [2020] 12 MLJ 16 (FC), and Palikota Sdn Bhd v Valentino Koh Jiunn Kiat [2024] MLJU 2920 (HC).

The Plaintiff filed an Affidavit in Reply (Encl. 14), an Additional Affidavit (Encl. 20), and an Further Affidavit (Encl. 25) in response, together with written submissions (Encl. 15 and Encl. 21) and two bundles of authorities (Encl. 16 and 22).

The Plaintiff contends that the resolution and Additional By-Law were passed at the instigation of the developer and the hotel operator within the same complex, allegedly to protect the commercial interests of the Banyan Tree Hotel which operates on the upper floors. He further asserts that the Defendant’s deponent, Dato’ Lee Whay Hoong, acted with conflict of interest as the hotel’s nominated representative during the 1st AGM.

The Defendant denies these allegations and maintains that the Additional By-Law was introduced for legitimate purposes of security, privacy, and safety, following multiple complaints from residents and management observations of disturbances, overuse of facilities, and unauthorized access by transient visitors. The Defendant relies on the statutory powers conferred under sections 59 and 70 SMA 2013 to make and enforce such by-laws.

Both parties filed extensive written submissions and bundles of authorities. The Plaintiff relied primarily on Keet Gerald Francis Noel John v Mohd Noor Abdul Karim [1995] 1 MLJ 193, Ng Yee Fog v Pangsapuri Menara U-Thant MC [2018] MLJU 470, and provisions of the SMA 2013 to argue that the MC had exceeded its powers. The Defendant relied on Innab Salil v IMTN Sdn Bhd [2020] 12 MLJ 16 (FC), Pentamaster v Ong Beng Chuan [2017] 11 MLJ 233, and Palikota Sdn Bhd v Valentino Koh Jiunn Kiat [2024] MLJU 2920 (HC) to emphasise that by-laws restricting STR use are lawful and enforceable.

After hearing both parties, this Court delivered its oral decision on 5 February 2025, dismissing the Plaintiff’s application.

From the pleadings, affidavits, and submissions, the following issues arise for determination:

Whether the Plaintiff has established a prima facie case or a serious issue to be tried This concerns the validity of the Additional By-Law adopted by the MC and whether such by-law is ultra vires the SMA 2013, or constitutes an unreasonable restriction on the Plaintiff’s proprietary rights as a parcel owner.

Whether damages would be an adequate remedy If the alleged losses are purely financial or compensable by repayment of fines, the equitable requirement of irreparable harm may not be satisfied.

Whether the balance of convenience favours the grant of the injunction. This entails weighing the Plaintiff’s proprietary interest and business operations against the Defendant’s statutory duties and the collective rights of other proprietors to security, safety, and peaceful enjoyment of their homes.

Whether the Court should intervene to restrain the MC’s statutory functions. The Defendant, as a statutory body under the SMA 2013, exercises delegated powers. The Court must determine whether there are sufficient grounds, such as illegality, ultra vires action, or mala fides, to justify interference with the MC’s enforcement of its by-laws.

What constitutes the proper status quo pending trial. The Plaintiff asserts that the status quo is the continued operation of STR activities, whereas the Defendant contends that the existing legal status quo includes the subsisting by-law duly passed and registered under the SMA 2013. D. FINDINGS AND ANALYSIS

Having considered the pleadings, affidavits, documentary exhibits, and the comprehensive submissions of learned counsel for both parties, the Court’s determination proceeds by reference to the well-established principles governing interlocutory injunctions, as set out in Keet Gerald Francis Noel John v Mohd Noor Abdul Karim [1995] 1 MLJ 193.

The Court must be satisfied that:

there is a serious issue to be tried;

damages would not be an adequate remedy;

the balance of convenience lies in favour of granting the injunction; and

the injunction sought will preserve, and not alter, the status quo.

Additionally, where the respondent to an injunction application is a statutory body exercising powers under legislation, the Court must exercise caution before restraining the performance of statutory duties. The Court’s intervention is warranted only upon clear proof that the statutory body has acted ultra vires, illegally, unreasonably, or in bad faith.

The guiding principles have been consistently affirmed in Innab Salil v IMTN Sdn Bhd [2020] 12 MLJ 16 (FC), Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 MLJ 333 (FC), and Pentamaster Technology (M) Sdn Bhd v Ong Beng Chuan [2017] 11 MLJ 233

Whether There is a Serious Issue to be Tried

The Court accepts that the Plaintiff has raised a bona fide question as to the validity and scope of the Additional By-Law adopted by the MC. The Plaintiff contends that the by-law is ultra vires the SMA 2013 as it prohibits a category of use allegedly consistent with the “commercial” characteristics of the Building, and therefore restricts the proprietary rights of parcel owners.

In particular, the Plaintiff asserts that his units were designed and marketed as “dual-key” residences, structurally suited for short-term stays, and that representations by the developer and marketing agents induced his investment on the understanding that such usage was permissible. He therefore argues that the by-law operates oppressively and in contravention of sections 59 and 70 of the SMA

2013.

Conversely, the Defendant submits that the by-law was validly enacted under paragraph 59(1)(c) and subsection 70(2) of the SMA 2013, which empower an MC to regulate the use of common property and to make additional by-laws for the safety, security, and wellbeing of residents.

It was further contended that the prohibition of STR activities has been upheld by Malaysian courts as a legitimate exercise of statutory power, notably in Palikota Sdn Bhd & Anor v Valentino Koh Jiunn Kiat [2024] MLJU 2920 (HC) and Innab Salil.

Upon a careful review, this Court is satisfied that the question of whether the Additional By-Law is ultra vires the SMA 2013 constitutes a triable issue that should properly be determined at the substantive stage of the main action. Accordingly, the first limb of Keet Gerald is satisfied.

Whether Damages Would Be an Adequate Remedy

The Plaintiff failed, however, to satisfy the Court that damages would be an inadequate remedy. The alleged losses are primarily financial and quantifiable, consisting of fines, potential loss of bookings, and reputational inconvenience. The MC’s enforcement action has been limited to the issuance of invoices and notices. There has been no seizure, eviction, or physical restraint imposed upon the Plaintiff’s property.

If at trial the Plaintiff succeeds in establishing that the Additional By-Law is invalid or unenforceable, the sums paid under protest , if any, could be refunded and compensatory damages awarded. Hence, monetary compensation provides a sufficient and proportionate means of redress.

In Keet Gerald’s case, the Court of Appeal observed that injunctions are not granted to protect purely pecuniary interests where compensation would suffice. Similarly, in Innab Salil and Muhammad Nazri v Mahkamah Tinggi Shah Alam [2020] 3 MLJ 645, the courts cautioned that equitable relief should not be used to shield commercial expectations in regulatory contexts.

In this case, the Plaintiff continues to operate STR activities notwithstanding the by-law’s existence, as evidenced by the Defendant’s uncontested affidavit showing active listings on various online platforms. His ongoing operations and ability to absorb the fines imposed undermine the assertion of irreparable harm. Accordingly, the second limb of Keet Gerald is not satisfied.

Balance of Convenience

The Court is of the view that the balance of convenience lies decisively against the grant of the injunction. The Defendant, as MC, is performing its statutory obligations under the SMA 2013. The impugned by-law was passed through a collective decision of the proprietors at a duly convened general meeting. To suspend its operation at an interlocutory stage would, in effect, restrain the Defendant from carrying out a statutory function conferred by law.

The Plaintiff, on the other hand, seeks to protect a commercial enterprise that is arguably inconsistent with the residential character of the property. The Defendant’s affidavits demonstrate genuine resident concerns over security, noise, and misuse of facilities. The incident reported in March 2025, involving an alleged sexual offence in one of the Plaintiff’s units operated as STR, further underscores the legitimate safety considerations driving the by-law’s enforcement.

Where a statutory management body acts within the apparent scope of its legal powers and for the collective welfare of proprietors, the Court should be slow to intervene unless clear illegality or mala fides is shown. On balance, the Defendant would suffer greater prejudice if restrained from enforcing by-laws applicable to all owners, than the Plaintiff would by having to comply pending trial.

Ultra Vires, Illegality, or Mala Fides

The Plaintiff has not produced credible evidence to suggest that the MC acted ultra vires, illegally, or in bad faith. The minutes of the 1st AGM, produced in the Defendant’s affidavit, show that the resolution was unanimously passed and subsequently registered with the Commissioner of Buildings. No procedural irregularity or violation of statutory safeguards has been demonstrated.

While the Plaintiff alleges conflict of interest due to the hotel’s representation at the AGM, this contention remains speculative. The Defendant’s evidence indicates that all resolutions were adopted with the requisite quorum and without dissent. The Plaintiff also failed to show that the by-law was enacted for an improper purpose or with mala fide intent.

In the absence of such evidence, this Court cannot infer bad faith or illegality. As stated by the Federal Court in Innab Salil, judicial interference with the exercise of statutory discretion must be exceptional and not based on conjecture or dissatisfaction with the policy choice of a management body.

Status Quo

The Plaintiff contends that the status quo to be preserved is the continued operation of STR activities as they existed prior to enforcement. This submission overlooks that the legal status quo includes the existence and effect of the duly registered Additional By-Law. Granting an injunction would therefore disturb, rather than preserve, that legal equilibrium.

The correct approach, consistent with Bandar Eco City Sdn Bhd v Corporate Commercial Sdn Bhd [2019] MLJU 1834, is that status quo refers to the position recognised by law at the time of the application, in this case, the by-law prohibiting STR is already operative. The Plaintiff’s desired order would suspend a lawfully enacted by-law and effectively grant the substantive relief sought in the main suit. Such intervention at an interlocutory stage would be premature and contrary to principle.

In summary:

There is a serious issue to be tried regarding the validity of the Additional By-Law;

Damages are an adequate remedy;

The balance of convenience and public interest favour the

No mala fides or illegality has been shown; and

The status quo is the continued enforcement of the by-law pending trial.

Accordingly, the Plaintiff has failed to satisfy the equitable requirements for injunctive relief. The Court therefore dismissed the application for ad interim injunction on 23 June 2025, with costs in the cause. F.

Upon careful consideration of the totality of the affidavit evidence, the documents exhibited, and the comprehensive written and oral submissions presented by both parties, this Court finds no sufficient basis to justify the grant of interlocutory injunctive relief in favour of the Plaintiff.

While the Plaintiff has demonstrated that there exists a bona fide issue to be tried concerning the legality and validity of the Additional By-Law, the remaining elements under the test in Keet Gerald Francis Noel John v Mohd Noor Abdul Karim [1995] 1 MLJ 193 were not satisfied. In particular:

The Plaintiff failed to show that damages would be inadequate;

The evidence does not establish any irreparable or disproportionate harm;

The balance of convenience clearly favours allowing the Defendant to continue performing its statutory duties pending the determination of the main suit; and

There is no credible evidence of mala fides, illegality, or ultra vires exercise of power on the part of the Defendant.

It bears emphasis that the Defendant, as MC established under the SMA 2013, is a statutory body entrusted with the collective management of the common property for the benefit of all proprietors. The by-law in question was duly passed by the proprietors at a general meeting and lodged with the Commissioner of Buildings. Until and unless it is declared invalid at trial, it remains presumptively valid and enforceable. Judicial restraint is therefore warranted at the interlocutory stage.

The Court is also mindful that granting the injunction sought would effectively suspend the operation of a by-law passed by the collective decision of proprietors and would, in substance, confer on the Plaintiff the very relief sought in the main action. This would be contrary to settled equitable principle and inconsistent with the statutory framework of the SMA 2013.

For these reasons, the Plaintiff’s Notice of Application for an ad interim injunction in Enclosure 7 is hereby dismissed with costs in the cause. The main suit shall proceed to case management before the Deputy Registrar for further directions. Dated : 14th October 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For The Plaintiff : Ramesh K. Supramaniam, G. Kanarasan & Julian Lee Chun Hon Messrs. Ramesh K. Supramaniam Advocates & Solicitors For The Defendant : Ahmad Azhad Aznul Affendi &