Ea Bee Kiaw v Tribunal Pengurusan Strata (MA-25-15-05/2026)

BADAN PENGURUSAN BERSAMA HATTEN @ MELAKA RAYA (Registration No.: MBMBCOB.600/425) ... RESPONDENTS GROUNDS OF JUDGMENT A. INTRODUCTION [1] This is the Applicant's application in Enclosure 1 for leave to commence judicial review proceedings pursuant to Order 53 rule 3 of the Rules of Court 2012. The substantive relief which the Applicant intends to pursue is an order of certiorari to quash an award of the Strata Management Tribunal dated 06.04.2026 in Claim No. TPSZS/M-1015-9/2025 ("the Award"), by which the Applicant was directed to pay the Second Respondent the sum of RM5,000.13 within sixty days. The Applicant also prays for a stay of execution of the Award pending the disposal of these proceedings. [2] The Award was made upon a claim by the Second Respondent, the joint management body of Hatten @ Melaka Raya, for maintenance charges said to be outstanding in respect of a commercial parcel purchased by the Applicant. Before the Tribunal, the claim was resisted principally on the footing that vacant possession of the parcel had never been effectively delivered, that the parcel was incapable of occupation or use, and that in those circumstances no liability for the charges claimed had arisen. [3] It is necessary to state at the outset what this application is, and what it is not. The Court is at the leave stage prescribed by Order 53 rule 3. The merits of the intended judicial review do not arise for determination. The function of the Court at this stage is that of a filter: to ascertain whether the procedural preconditions of Order 53 are satisfied, whether the decision sought to be impugned is amenable to the supervisory jurisdiction, and whether the material discloses a case fit for consideration at a substantive hearing on an inter partes basis. [4] Notice of the application was given to the Attorney General's Chambers, and copies of the statement and the affidavit in support were lodged with those Chambers. The Attorney General's Chambers, acting for the First Respondent, informed the Court that it does not object to the grant of leave, subject only to its position that the prayer for a stay of execution be heard inter partes, since the Attorney General's Chambers does not represent the Second Respondent in relation to the merits of the underlying dispute. [5] These grounds address, in turn, the procedural preconditions to the grant of leave; the amenability of the Award to an order of certiorari; whether an arguable case is disclosed; and the appropriate course in respect of the prayer for a stay of execution. B. BACKGROUND FACTS AND PROCEDURAL HISTORY [6] The Applicant is the purchaser of a commercial retail lot bearing unit no. F2-023 in the project known as Imperio @ Hatten City. The developer is Fuyuu Ventures Sdn Bhd ("the developer"). The Second Respondent is Badan Pengurusan Bersama Hatten @ Melaka Raya, the joint management body bearing registration no. MBMBCOB.600/425, whose management office is stated to be at Level 13, Imperio Residences and Mall, No.192, Jalan Syed Abdul Aziz, Taman Melaka Raya, 75000 Melaka. [7] A certificate of completion and compliance in Form F under the Uniform Building By-Laws 1984 was issued on 09.11.2018 in respect of the development described in the certificate. By a letter to the Applicant dated 12.11.2018, the developer stated that the certificate had been issued and that it was ready to deliver vacant possession of the commercial parcel pursuant to clause 15.2 of the sale and purchase agreement, subject to payment of the balance purchase price and other outstanding sums. The letter further stated that, upon the delivery or deemed delivery of vacant possession to the Applicant, possession of the parcel would simultaneously be delivered or deemed delivered by the Applicant, as landlord, to the developer, as tenant, under a tenancy agreement. The Second Respondent subsequently produced and annexed the Form F and the letter as Appendices 1 and 2 respectively to its Form 3 before the Tribunal. [8] On 09.09.2025, the Second Respondent filed a claim against the Applicant in the Strata Management Tribunal by Form 1 under regulation 6 of the Strata Management (Strata Management Tribunal) Regulations 2015. The claim was registered as Claim No. TPSZS/M-1015-9/2025. The Second Respondent claimed RM5,000.13 and identified, as particulars of its claim, a statement of account as at 18.06.2025 in that amount, a reminder letter, Form 11 and supporting documents. [9] On 08.10.2025, the Applicant filed a statement of defence and counterclaim in Form 2. She pleaded, in substance, that she had never received notice to collect the keys and that no keys had been handed over; that the Second Respondent was put to proof that the parcel was ready for occupation; that no claim for service charges could be brought until delivery of the keys; that the entire five-storey mall was not ready for use and had never commenced operation; that the developer retained more than one hundred unsold parcels in the mall in respect of which no charges had been paid and no enforcement action taken; and that the car parks on levels 6 to 9, which she asserted were common property, were being operated for charge by the developer or its representatives without the sums collected being paid to the Second Respondent. By her counterclaim, the Applicant sought to restrain the filing of any similar claim against her unless the identified matters were rectified; together with costs of RM5,000.00. [10] On 12.11.2025, the Second Respondent filed Form 3, being its defence to the counterclaim. It disputed the counterclaim and produced the certificate of completion and compliance dated 09.11.2018, the developer's letter dated 12.11.2018 concerning vacant possession, and the strata layout plans for levels 6 to 9 as Appendices 1, 2 and 3 respectively. Its position was that the mall building was covered by the certificate; that, although only two units were operating, it remained responsible for maintaining the common property, including the electrical rooms, water installations, six lifts, escalators and other building systems; that it had issued Form 11 to the developer in respect of the developer's parcels and was negotiating payment by instalments; and that the car parks on levels 6 to 9 were not common property but were managed by a car-park operator appointed by the owners of the relevant parking parcels, without its involvement. [11] The Applicant thereafter filed written submissions before the Tribunal dated 02.02.2026. Relying, among other matters, on section 21(1) of the Strata Management Act 2013 ("the SMA 2013"), she contended that the total and continuous shutdown of the lifts and escalators was inconsistent with the Second Respondent's statutory duty to manage and maintain the common property; that the Second Respondent had not obtained any valid certificate, permit or approval to operate those facilities; that no real service had been rendered and the statutory purpose of the maintenance charges was consequently defeated; and that vacant possession had never been validly delivered in law or in fact because, among other matters, no partition wall had been installed to demarcate the parcel. On that basis she contended that any claim for maintenance charges premised upon such delivery was premature and lacked statutory foundation. [12] The claim was heard on 06.04.2026 before the President of the Strata Management Tribunal. On the same day, the Tribunal issued the Award in Form 11 pursuant to subregulation 26(5) of the Strata Management (Strata Management Tribunal) Regulations 2015. The Award directs the Applicant to pay the Second Respondent RM5,000.13, stated to be outstanding as at 17.06.2025, within sixty days from the date of the Award. Beyond recording that order, the Award as exhibited contains no findings of fact, does not address the Applicant's defence or counterclaim, and gives no reasons for the decision. [13] On 12.05.2026 the Applicant filed the present application, comprising the notice of application for leave (Enclosure 1), the statement pursuant to Order 53 rule 3(2) dated 11.05.2026 (Enclosure 2), and the affidavit in support affirmed by the Applicant on 08.05.2026 (Enclosure 3), which exhibits the Award, the Form 1, the Form 2, the Form 3 and the written submission of 02.02.2026. A brief written submission dated 10.07.2026 was filed for the hearing (Enclosure 7), and the Applicant relied upon a bundle of authorities filed on 14.07.2026 (Enclosure 9). [14] The statement identifies the following grounds for the intended review: that the Tribunal erred in law in treating liability for the charges as arising automatically, without considering whether vacant possession had been effectively delivered, whether the parcel was capable of use or occupation, and whether the development was in fact in operation; that the Tribunal failed to consider material facts, including that the mall had never opened, that the lifts and escalators were not functioning, that there was no access to the parcel, that no partition walls existed and that the parcel could not be used; that the Award contains no reasons and does not address the issues raised; that the failure to consider the defence and the written submission deprived the Applicant of a fair hearing; and that the decision is irrational. The statement also asserts that the same underlying issue is pending before the High Court in proceedings commenced by originating summons although no cause papers of any such proceedings are exhibited. C. ISSUES FOR DETERMINATION [15] Four issues arise at this stage:

whether the procedural preconditions to the grant of leave under Order 53 of the Rules of Court 2012 — namely locus standi under rule 2(4), timeliness under rule 3(6), and the requirements of rules 3(2) and 3(3) are satisfied;

whether the Award of the Strata Management Tribunal is amenable to an order of certiorari;

whether the application discloses an arguable case fit for substantive consideration; and

what course ought to be taken in respect of the prayer for a stay of execution of the Award. D. GOVERNING LAW AND FRAMEWORK [16] The power of the High Court to issue an order of certiorari derives from paragraph 1 of the Schedule to the Courts of Judicature Act 1964, read with section 25(2) of that Act. The procedure is governed by Order 53 of the Rules of Court 2012. [17] Order 53 rule 3(1) provides that no application under the Order may be made unless leave has been granted. By rule 3(2), the application for leave is made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on. Rule 3(3) requires prior notice of the leave application to be given to the Attorney General's Chambers, together with copies of the statement and affidavits. Rule 2(4) confers the entitlement to apply on any person adversely affected by the decision, action or omission in relation to the exercise of a public duty or function. Rule 3(6) requires the application to be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision was first communicated to the applicant. [18] The impugned decision is an award of the Strata Management Tribunal, a body established under Part IX of the SMA 2013 and exercising statutory adjudicative functions over disputes within its prescribed jurisdiction. Section 117(2) of the SMA 2013 provides that the Tribunal "shall in all proceedings give its reason for its award in the proceedings". Section 118 empowers the Tribunal, before making an award, to refer to a Judge of the High Court a question of law arising in the proceedings. Section 120 provides that an award is final and binding on the parties, is deemed to be an order of a court, and may be enforced accordingly. Section 121 permits a party to challenge an award before the High Court on the ground of serious irregularity. Section 123 makes non-compliance with an award an offence, punishable on conviction with a fine not exceeding RM250,000, imprisonment for a term not exceeding three years, or both. These provisions form the statutory background against which the questions at this stage fall to be considered. E. THE THRESHOLD AT THE LEAVE STAGE [19] The threshold at the leave stage is deliberately modest, and it is well settled. The leave requirement operates as a filter to exclude applications that are frivolous, vexatious or otherwise unarguable, and to protect public decision-makers from groundless challenge. It is not an occasion for a minute examination of the merits. What must be shown is a case which, on the material presently available, is arguable and warrants full investigation at a substantive hearing with all affected parties before the Court. That is the effect of the guidance of the Federal Court in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad [2012] 4 CLJ 478 at p 488, where it was held that, upon a quick perusal of the material available, leave ought to be granted if the application is not thought to be frivolous and if an arguable case in favour of granting the relief sought may be the resultant outcome at the substantive hearing. To that proposition the Federal Court attached a rider: unless the matter is amenable to judicial review, no success may be envisaged. In arriving at that formulation the Federal Court drew upon Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, and upon its own earlier decision in Mohd Nordin Johan v The Attorney-General, Malaysia [1983] 1 CLJ 130; [1983] CLJ (Rep) 271, where leave had been held to be warranted because the point taken was not frivolous and justified argument on a substantive motion for certiorari. [20] The Court of Appeal has spoken to the same effect. In Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 at p 69 it was said that the High Court should not go into the merits of the case at the leave stage, its role being confined to seeing whether the application is frivolous; refusal in limine is justified where, for example, the applicant is a busybody, the application is made out of time or is brought against a body immunised from being impleaded, or the subject matter of the review is by settled law non-justiciable. In Dato' Sri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 at p 129 the Court of Appeal, describing the threshold as low, held that the Court must determine whether prima facie there is a genuine case for review, and that leave will be refused only where the application is frivolous, vexatious or hopeless; is made by a busybody with a misguided or trivial complaint of administrative error; is misconceived; is unarguable or groundless; or where there is a more appropriate alternative procedure, or judicial review is an inappropriate procedure. [21] Distilled, these authorities indicate that leave ought to be refused where:

the application is frivolous and vexatious, or is filed out of time;

the applicant has no locus standi, is a busybody, or has no arguable case;

the subject matter is not amenable to judicial review or is nonjusticiable; or

there is a more appropriate alternative procedure, such that judicial review is an inappropriate procedure. The issues identified in paragraph [15] above are framed in accordance with those inquiries. F. ANALYSIS AND DETERMINATION Issue (a): Compliance with the Procedural Requirements of Order 53 [22] The Applicant is the party against whom the Award was made. She is directly exposed to its coercive consequences: the Award is deemed to be an order of a court and is enforceable as such under section 120 of the SMA 2013, and non-compliance attracts criminal liability under section 123. She is plainly a person "adversely affected" within the meaning of Order 53 rule 2(4). She is not, in the language of Tang Kwor Ham (supra), a busybody, nor is her complaint of the misguided or trivial character described in Dato' Sri Mohd Najib (supra). [23] The Award is dated 06.04.2026. The application for leave was filed on 12.05.2026, some five weeks later. It was therefore made promptly, and well within the three-month period prescribed by Order 53 rule 3(6). [24] The application is supported by a statement setting out the name and description of the Applicant, the relief sought and the grounds relied on, and by an affidavit verifying the facts, in compliance with Order 53 rule 3(2). Notice was given to the Attorney General's Chambers together with the requisite documents, in compliance with rule 3(3). The procedural preconditions to the grant of leave are satisfied. Issue (b): Amenability of the Award to Certiorari The Tribunal is a creature of statute. As Raja Azlan Shah AG CJ (Malaya) observed in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1978] 1 MLRA 132, a body which owes its existence to statute possesses only such powers as the statute confers, and since "every legal power must have legal limits, otherwise there is dictatorship" no discretion so conferred is free of legal restraint; where its limits are exceeded it becomes the duty of the Court to intervene. The Tribunal is established under Part IX of the SMA 2013; its jurisdiction is conferred by, and exercised under, that Act; it adjudicates disputes between parties who come before it not by consent but by force of the statutory scheme; and its awards take effect as orders of court, disobedience to which is a criminal offence. A body of that character, discharging adjudicative functions of a public nature under an Act of Parliament, falls squarely within the supervisory jurisdiction of the High Court under paragraph 1 of the Schedule to the Courts of Judicature Act 1964. The exercise of its powers is, in the language of Order 53 rule 2(4), the exercise of a public duty or function. The rider attached in WRP Asia Pacific Sdn Bhd (supra) is accordingly satisfied, and the subject matter of the intended review is not one which settled law places beyond the reach of the Court in the sense contemplated in Tang Kwor Ham (supra). [26] Section 120 of the SMA 2013, which renders an award final and binding, does not lead to a different conclusion. A finality provision of this kind protects a lawfully made award from re-litigation of its merits; it does not immunise the Tribunal from supervision where the award is impeached on grounds going to legality, jurisdiction or procedural fairness. The supervisory jurisdiction thus engaged is an incident of the judicial power of the Federation vested in the courts by Article 121 of the Federal Constitution, which the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 4 MLRA 554 reaffirmed to be reposed in the courts and exercisable by judges as the appointed guardians of the Constitution. A statutory declaration of finality falls to be read against that constitutional background, and does not, absent the plainest language, displace the Court's power of supervision. Nothing in the SMA 2013 purports to exclude, and no party has suggested that it excludes, the supervisory jurisdiction of this Court. [27] Sections 118 and 121 of the SMA 2013 provide statutory avenues of recourse in respect of Tribunal awards. Whether either avenue constitutes a more appropriate alternative procedure within the fourth category identified in Dato' Sri Mohd Najib (supra) was not argued before me. The point was not raised in opposition to leave, and the mere existence of such an avenue cannot, at the leave stage and on the modest threshold applicable, render unarguable an intended challenge founded on the classic supervisory grounds of error of law, failure to give reasons and want of procedural fairness. This accords with Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 1 MLRA 336, where the Federal Court recognised that, where the grounds of challenge rest on principles of public law raising questions of law which transcend the individual case, judicial review may be the appropriate course notwithstanding the availability of an alternative appellate remedy. Nothing more need be said of it at this stage. Issue (c): Whether an Arguable Case Is Disclosed [28] The grounds must be assessed against the standard identified above: not whether they will succeed, but whether they are arguable. They comprise, in substance, an alleged error of law in the construction placed upon the charging provisions of the SMA 2013; an alleged failure to give reasons and denial of a fair hearing; and an alleged failure to consider material matters. The central ground concerns the absence of reasons, and it is convenient to begin there. [29] Section 117(2) of the SMA 2013 imposes an express and unqualified duty: the Tribunal "shall in all proceedings give its reason for its award in the proceedings". The Award exhibited to the affidavit in support records the operative order and nothing else. Whether reasons were in fact furnished in some other form in the proceedings - whether orally at the hearing or in a separate document not exhibited - cannot be determined ex parte on the material before the Court. On the face of the exhibited record, however, the contention that the Tribunal did not discharge the duty imposed by section 117(2) is plainly arguable. It would be premature, and wrong, to express any view at this stage on the legal consequence of such a failure if it is established; that is a matter for the substantive hearing on the full record and after all parties have been heard. [30] The second ground, the alleged failure to consider material matters, is connected. The proceedings before the Tribunal were contested in earnest. The Form 2 defence and the written submission of 02.02.2026 raised specific questions of substance: whether vacant possession had been effectively delivered where, on the Applicant's account, no keys were handed over and no partition walls were installed; whether the parcel was capable of occupation or use; whether the mall was in operation at all; and whether, in those circumstances, liability for the charges claimed had arisen. The Award gives no indication on its face of any engagement with those questions. In R Rama Chandran v Industrial Court of Malaysia & Anor [1996] 1 MLRA 725; [1997] 1 MLJ 145 the Federal Court held that the failure of a tribunal to address its mind to a fundamental issue placed before it is a serious error affecting the validity of its award. Whether the Tribunal in fact considered the matters raised is a question that can only be resolved on the record of its proceedings, which is not before the Court. It suffices for present purposes that the complaint cannot be dismissed as frivolous. [31] The third ground, the alleged error of law, raises the question whether liability for maintenance charges under the SMA 2013 arises independently of the effective delivery of vacant possession or the capacity of the parcel to be occupied or used. That is a question of statutory construction with implications extending beyond this dispute. It is not self-evidently answered in the Applicant's favour. The contrary position is itself substantial: the certificate of completion and compliance was issued on 09.11.2018; the developer gave notice concerning the delivery of vacant possession by the letter of 12.11.2018; and the duty of a joint management body to maintain and manage the common property subsists whether or not individual parcels are occupied, the charges being the means by which that duty is funded. But the presence of a substantial contrary case does not negate arguability; it confirms that the question is a genuine one, fit for full argument rather than summary resolution ex parte. [32] It is unnecessary to evaluate separately at this stage the remaining grounds advanced in the statement, namely irrationality and the assertion that the same underlying issue is pending before the High Court in proceedings commenced by originating summons. As to the latter, no cause papers are exhibited and no weight is placed upon it. Those grounds remain open, to be pursued or not at the substantive hearing as the Applicant may be advised. [33] Standing back, this is not a frivolous or vexatious application. The sum awarded is modest, but the consequences of the Award are not: it operates as an order of court and exposes the Applicant to criminal sanction in the event of non-compliance. The grounds founded on section 117(2) of the SMA 2013, on the alleged failure to consider the defence and written submission, and on the construction of the charging provisions of that Act, each cross the threshold of arguability. The application is not hopeless, misconceived, unarguable or groundless within any of the categories identified in Dato' Sri Mohd Najib (supra); prima facie, there is a genuine case for review. [34] It should be emphasised, so that no misunderstanding arises, that nothing in these grounds expresses or implies any view on the outcome of the intended review. The Court sits in its supervisory and not its appellate jurisdiction. As the Federal Court explained in Sri Lempah (supra), the concern of the reviewing Court is to see whether the deciding body has contravened the law by exceeding the powers which Parliament confided to it, and not to override the decision on its merits. The Second Respondent's case, resting upon the certificate of completion and compliance, the events of 09.11.2018 and 12.11.2018, and its statutory duties in respect of the common property, remains fully open. Issue (d): The Prayer for a Stay of Execution [35] The prayer for a stay of execution stands on a different footing.A stay would operate directly against the Second Respondent, which has had no notice of this application and no opportunity to be heard. The Attorney General's Chambers, while not opposing leave, reserved the position that the stay should be dealt with inter partes, since it does not represent the Second Respondent on the merits. No circumstance of urgency has been demonstrated of a kind that cannot await service. [36] In those circumstances, the just course is neither to grant nor to refuse the stay ex parte, but to direct that the prayer be heard inter partes, on notice to the Respondents and with liberty to file affidavits. That preserves the position of all parties, and ensures that any interim restraint upon the enforcement of an award which, by section 120 of the SMA 2013, carries the force of an order of court, is imposed only after those affected have been heard. G. CONCLUSION [37] For the reasons given, the procedural requirements of Order 53 rules 2(4), 3(2), 3(3) and 3(6) of the Rules of Court 2012 are satisfied; the Award of the Strata Management Tribunal dated 06.04.2026 is amenable to an order of certiorari; and the application discloses an arguable case fit for substantive consideration inter partes. The threshold described in WRP Asia Pacific Sdn Bhd (supra) and in Dato' Sri Mohd Najib (supra) is crossed. The grant of leave decides nothing beyond that threshold; the substantive application will be determined on its merits, on the full record and after all parties have been heard. The prayer for a stay of execution falls to be determined inter partes. H. ORDERS OF THE COURT [38] The following orders are accordingly made:

leave is granted to the Applicant to commence judicial review proceedings for an order of certiorari to quash the award of the Strata Management Tribunal dated 06.04.2026 in Claim No. TPSZS/M-1015-9/2025, in terms of prayer 1 of Enclosure 1;

the Applicant shall, within fourteen (14) days of the date of this order, file the notice pursuant to Order 53 rule 4 of the Rules of Court 2012 and serve it, together with the statement and affidavit, on all persons directly affected;

the Applicant's prayer for a stay of execution of the Award is adjourned to be heard inter partes; the Applicant shall serve the cause papers, this order and the notice of hearing on the Respondents within seven (7) days of the date of this order, and the Respondents shall be at liberty to file affidavits in reply in accordance with such further directions as may be given;

the costs of this application shall be costs in the cause; and

there shall be liberty to apply. Dated 21 July 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Applicant : Puan Nur Syifa Illvera binti Kimal Tetuan C T Chew & Co. Peguambela dan Peguamcara No. 43-G, Jalan Ong Kim Wee, 75300 Melaka.