Festiva Mall Sdn Bhd v Perbadanan Pengurusan Zetapark (WA-22NCvC-281-04/2024)

In Badan Pengurusan Bersama Gurney Paragon (supra), the learned judge decided that following Aikbee Timbers Sdn Bhd & Anor v Yii Sing Chiu & Anor [2024] 1 MLJ 948, the Strata Management Act 2013 (“SMA 2013”) is to be interpreted by the courts as a social legislation – which necessitates interpreting it “to achieve a ‘just and reasonable’ and a ‘fair and justifiable’ outcome”. 01/01/2026 23:35:28 WA-22NCvC-281-04/2024 Kand. 139 S/N ZvjhiVAtBkq3hGico1DFw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 One of the orders that His Lordship made (under Issue No.3 at para [95] of his judgment) was that the defendant, who is the owner of the commercial component of a mixed development (that has a commercial component as well as a residential component), is to be totally exempted from paying any Maintenance Charges and/or Sinking Fund contribution to the Joint Management Body. His Lordship dismissed the JMB’s claim for payment of Charges and Sinking Fund Contribution and further held: “I find that D2 (as the commercial component owner) is to continue to maintain and manage its own commercial component common property. In other words, the maintenance and management of the commercial component’s common property are to remain at status quo.”

Whilst I wholly agree with many parts of the learned judge’s judgment in Badan Pengurusan Bersama Gurney Paragon (supra), I am constrained to take the view that there is no power under the SMA 2013 or any other statutes for the court to remove the duties and powers of a Joint Management Body (“JMB”) – which has been statutorily conferred by s.21 of the SMA 2013 – to manage and collect Maintenance Charges and Sinking Fund Contribution from the parcel owners, which include the parcel owner of the commercial units. This is totally different from a situation of ordering the removal of any committee member of the JMB. The legal effect of Badan Pengurusan Bersama Gurney Paragon (supra) is to exempt a JMB from its statutory duties and also to revoke its power to collect payments which the JMB is expressly empowered by an Act of Parliament to collect. It upholds an arrangement that is prohibited by s.149 of the SMA 2013. S/N ZvjhiVAtBkq3hGico1DFw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

With respect, in Aikbee Timbers Sdn Bhd (supra), the Court of Appeal did not exempt the commercial component of a mixed development from paying Maintenance Charges and Sinking Fund Contribution. The Court of Appeal merely held that different rates of Maintenance Charges may be imposed by a developer and/or a Management Corporation. The following paragraph from the judgment of Dr.Choo Kah Sing JCA sums up Aikbee Timbers Sdn Bhd (supra): “[92] After having considered the facts and evidence before us, we are satisfied that the legal regime within the SMA 2013 permits a developer and/or management corporation to impose different chargeable rates for the maintenance charges for parcels used for significantly different purposes in a mixed development which comprises of residential and commercial parcels within a subdivided building in a single development.”

For the purpose of this case, it suffices to point out that the power (if any) to impose different rates of Maintenance Charges is a completely ‘different kettle of fish’ from authorising a parcel owner to maintain his own parcel and be exempted from paying a JMB the Maintenance Charges and Sinking Fund Contribution, i.e. overriding s.25(1) of the SMA 2013. Even a developer holding unsold parcels is required by s.25(2) to pay the same. Thus, in my humble view, justice would be served by requiring the parcel owner of the commercial unit in the building to pay Maintenance Charges and Sinking Fund Contribution to the JMB but to allow a set-off of the expenses incurred earlier by the said parcel owner in maintaining part of the Common Property. This should serve to do justice without ignoring any statutory provisions of the SMA 2013. S/N ZvjhiVAtBkq3hGico1DFw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

As mentioned above, the facts of the present case resemble that of Badan Pengurusan Bersama Gurney Paragon (supra), in that the dispute is between the Plaintiff (owner of a mall/commercial component of a building) and the Defendant (Joint Management Body of the development).

In the present case, there exists a tripartite agreement which led to an unusual arrangement between the parties being practised for several years. The tripartite agreement was apparently entered into because even though the development consists of only one building, it comprises two components; a shopping mall at the bottom and three blocks of condominiums ‘stacked’ on the roof of the mall, and the mall owner wanted to have full control of the management of the mall and did not want to pay any Maintenance Charges or Sinking Fund Contribution to the JMB.

This form of mixed development (residential + commercial) is popular as it makes the condominiums and the mall beneath them more attractive to buyers and tenants alike. However, it gives rise to disputes – as could be seen from the facts of the present case in Kuala Lumpur and the Badan Pengurusan Bersama Gurney Paragon (supra) in Penang. Some statutory amendments would serve to lessen such disputes. Meanwhile, this case must be decided based on the provisions of the existing statutes and regulations, with guidance from reported judgments.

In this case, it ultimately boils down to whether the Plaintiff (mall owner) ought to be allowed to be in charge of the maintenance of Common Property used by both the residential component and the S/N ZvjhiVAtBkq3hGico1DFw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 commercial (mall) component of the building and be exempted from paying Maintenance Charges and Sinking Fund contribution to the Defendant. The Defendant has added a counterclaim to claim Maintenance Charges and Sinking Fund for the period from 13th March 2015 to 31st July 2024.

The lapse of time in this case also gave rise to the issue of whether the Limitation Act 1953 is applicable to bar part of the Defendant’s claim. The Defendant contends that limitation should not be applicable as it was allegedly a “running account” and/or subject to s.105 of the SMA 2013.

Both learned counsel agreed that there was no need for oral evidence and for this Court to determine the issues which they agreed upon, pursuant to Order 14A Rules of Court 2012.

The decision that I pronounced may be summed up as follows: that the Defendant JMB has a non-delegable duty to manage, maintain and repair all Common Property within the development area, including the part of the Common Property which has been maintained and repaired by the Plaintiff. I find the Tripartite Agreement is void and unenforceable as against the Defendant JMB, which has a statutory right to impose Charges and Sinking Fund contribution from the date of the Defendant’s establishment.

After considering the law on limitation, I also decided that Maintenance Charges and Sinking Fund Contribution due and payable to the Defendant more than 6 years prior to the date of filing of the writ in this action, i.e. prior to 30th April 2018 (the date of the S/N ZvjhiVAtBkq3hGico1DFw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Writ is 30th April 2024) would be barred by the Limitation Act 1953. In my view, the concept of a “running account” avoiding limitation is premised upon s.26(2) of the Limitation Act 1953.

There is also a need to prevent unjust enrichment of the Defendant as the Plaintiff has advanced the expenses for the maintenance of part of the Common Property which is also used by the occupants of the condominiums. Thus, I hold that the Plaintiff is entitled to set-off those expenses which were incurred after 29th April 2018, from the Maintenance Charges and Sinking Fund contribution payable to the Defendant. The parties are at liberty to apply to the court for assessment of the same. Lastly, as there is money to be set-off between the two parties, it would be manifestly unjust to restrain the Plaintiff from attending the first Annual General Meeting (“the AGM”) of the newly formed Management Corporation and to vote at the meeting. Thus, I acceded to the Plaintiff’s application for a ruling to be allowed to attend the AGM and to vote.

The reasons, in detail, for my decision are as explained below. Background Facts [16] As mentioned above, the building is a mixed development with condominiums constructed above a shopping mall. The mall has been named Setapak Central Mall (“the Mall”) while the 3 blocks block of condominiums constructed above the Mall are known as Zetapark Condominium (“Zetapark”). The building sits on a plot of land held under HS(D) 11525 PT No 8683, Mukim Setapak Daerah Kuala Lumpur (“the Land”). S/N ZvjhiVAtBkq3hGico1DFw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

Wintip Sdn Bhd is the registered proprietor of the Land (“the Land Proprietor”). Zetapark was developed by Zetapark Development Sdn Bhd (“Zetapark Developer”) while the Mall was developed by Festival City Sdn Bhd (“the Mall Developer”). The Plaintiff is the current owner of the Mall.

The parties are on common ground that Zetapark and the Mall beneath it, constitute one development (collectively referred to as “the Development” or separately as “the Mall” or “Zetapark” whenever the context requires). As Zetapark ‘sits’ atop the Mall, there is a portion of the buildings (staircases) and land (private driveway) which is Common Property used by both the Mall and Zetapark.

The Mall Developer acquired “Building Rights and Strata Rights” to develop the Mall sometime in March 2008 from another company that was granted an option by the Land Proprietor to develop the Mall. For the purpose of this case, the details of the transactions between the Mall Developer and the other company are irrelevant.

The Defendant (the Joint Management Body of Zetapark “JMB”) was established on 30th January 2015 pursuant to Section 7(2) of the Building and Common Property (Maintenance and Management) Act 2007, i.e. prior to the said Act being repealed by the Strata Management Act 2013 (“SMA 2013”) with effect from 1st June 2015.

Prior to the Defendant coming into existence on 30th January 2015, a Tripartite Agreement was entered into on 8th August 2014 between S/N ZvjhiVAtBkq3hGico1DFw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 the Land Proprietor, the Zetapark Developer and the Mall Developer (“the Tripartite Agreement”). The Defendant was not party nor privy to the Tripartite Agreement.

The salient clauses of the Tripartite Agreement may be summarised as follows. For convenient reference, screenshots of those clauses are also shown below.

Clauses 2.1 and 5.2 of the Tripartite Agreement give exclusive management and maintenance rights to the Mall Developer and preclude the Defendant (JMB) from exercising its statutory duties and powers to manage the Common Property;

(ii) A Plan attached to the Tripartite Agreement shows the demarcation of the Common Property and Limited Common Property of the Development as shaded areas in the Plan; S/N ZvjhiVAtBkq3hGico1DFw

(iii) In other words, the Tripartite Agreement defines the part of Common Property used by the occupants of Zetapark condominiums and the Mall as “Common Property” (shaded in Yellow) while the part of Common Property that is used only by the occupants of Zetapark condominiums as “Limited Common Property” (shaded in Orange);

(iv) Clause 3.1(d) of the Tripartite Agreement attempts to exclude the Mall Developer (and the Plaintiff as its successor-in-title) from liability to pay any fees, costs, charges and/or expenses incurred or to be incurred in connection with or pertaining to the management, operations, maintenance and repairs of the Limited Common Property; S/N ZvjhiVAtBkq3hGico1DFw

Clauses 13.2 and 20.1 of the Tripartite Agreement were worded to attempt to bind the Defendant JMB as well as the future Management Corporation (“MC”) to the term thereof. S/N ZvjhiVAtBkq3hGico1DFw [23] A complaint lodged by some of the parcel owners of Zetapark at the Office of the Commissioner of Buildings (“the COB”) regarding, inter alia, the validity of the Tripartite Agreement triggered a string of disputes. First, the COB responded with a letter dated 12th December 2019 stating, inter alia, that the Tripartite Agreement is inapplicable and cannot be entered into by the parties therein. [24] Next, the appointment of a new property management company, namely, VPC Alliance (PJ) Sdn Bhd on or around May 2019 led to the ‘discovery’ of non-payment of maintenance charges and sinking fund contribution by the Plaintiff. The minutes of meeting (the 5th AGM) recorded that this issue was hotly discussed. A screenshot of the said minutes is shown below. S/N ZvjhiVAtBkq3hGico1DFw [25] On 18th February 2020, the Defendant followed up by issuing invoices for Maintenance Charges and Sinking Fund contribution payable by the Plaintiff for the period from 13th March 2015 to 31st January 2020 amounting to RM20,435,281.61. The Plaintiff disputed the Defendant’s claim, which eventually led to this civil suit being filed. The Order 14A Questions Agreed By Both Sides [26] Both sides agreed that there is no need for evidence to be adduced viva voce, and that the whole civil suit could be disposed of by reference only to affidavit evidence pursuant to Order 14A. The two learned counsel agreed on the following questions:

Whether the Defendant, which was established for the three residential blocks (“Zetapark”) developed by Zetapark Development Sdn Bhd (“Zetapark Developer”), owes a statutory duty to manage, operate, maintain, administer and/or repair the Common Property shaded in yellow in Appendix A to Enclosure 20 (“Common Property”) and/or areas within the retail/shopping complex known as ‘Setapak Central’ (“Mall”), which was independently developed by Festival City Sdn Bhd (“Mall Developer”), whose rights have been assigned / transferred to the Plaintiff (“Question 1”). S/N ZvjhiVAtBkq3hGico1DFw

Whether the arrangement between Wintip Sdn Bhd (“the Land Proprietor”), Zetapark Developer and Mall Developer under the Tripartite Agreement dated 8.8.2014 (“Tripartite Agreement”) (which was incorporated into the Deeds of Mutual Covenant between Zetapark Developer and residential parcel owners) is binding, valid and enforceable against the Defendant, including the joint management committee and the residential parcel owners (“Question 2”).

(3)(i) If Question 1 is answered in the affirmative: whether the Defendant is entitled to impose back-charges against the Plaintiff for service charges and sinking funds from the date of the Defendant’s establishment until present (“Question 3(i)”).

(3)(ii) whether the Defendant is entitled to impose back charges for service charges and sinking funds for the management, operation, maintenance and/or repair for the Limited Common Property shaded in orange in Appendix A and/or areas within Zetapark which are for the use, benefit and enjoyment of the residential parcel owners (“Question 3(ii)”).

(3)(iii) If Questions 3(i) and 3(ii) are answered in the affirmative, whether the Defendant should impose different chargeable rates for the service charges and sinking funds for parcels used for significantly different purposes in a single development comprising of mixed residential (i.e. Zetapark) and commercial parcels (i.e. the Mall) (“Question 3(iii)”). S/N ZvjhiVAtBkq3hGico1DFw The Plaintiff’s Position [27] As narrated above, the Plaintiff refused to pay the Maintenance Charges and Sinking Fund contribution charged by the Defendant. Its learned counsel strenuously submitted that the Mall and Zetapark are two separate and distinct components of a development erected on the same land. She emphasised that the Mall is a retail and shopping complex operated solely by the Plaintiff while Zetapark comprises three residential blocks of condominiums which are sold to individual residential parcel owners. [28] It was further contended for the Plaintiff that since the Mall was never intended to be subdivided into parcels for sale, the provisions of the SMA 2013 “do not apply to the Mall Developer or the Plaintiff” and that the Defendant was established exclusively to represent the three residential blocks of Zetapark and to manage only the Limited Common Property and areas within Zetapark for the benefit of residential parcel owners. [29] In other words, the Plaintiff’s learned counsel interprets the law as confining the Defendant's statutory and operational duties to Zetapark, and submits that the Defendant has never managed, operated, maintained, or repaired the Common Property or any areas within the Mall. [30] She further submits that prior to the issuance of strata titles and establishment of a Management Corporation, there was no statutory framework governing the Common Property shared by the Mall and Zetapark. According to her, “this gap was filled by the Tripartite Agreement”, under which the Mall Developer (and subsequently the S/N ZvjhiVAtBkq3hGico1DFw Plaintiff) agreed to manage, maintain, and bear all costs for part of the Common Property, while the residential parcel owners had free access to the area maintained by the Plaintiff without making financial contribution. [31] It was contended that the Defendant had never included the Plaintiff in any budget approvals, notices, or resolutions relating to service charges or sinking funds. All annual budgets and service charge rates approved at the Defendant's meetings were computed based solely on expenditure for the part of the Common Property that serves only Zetapark, i.e. the Limited Common Property, with no provision for the Mall or the part of the Common Property maintained by the Plaintiff. [32] The Plaintiff’s learned counsel highlighted that the Plaintiff does not benefit at all from the use of the Limited Common Property within Zetapark, such as residential amenities and facilities, but the residential parcel owners have enjoyed the part of the Common Property maintained by the Plaintiff without paying any charges. She concluded her submissions on this point by contending that there is no statutory, contractual, or equitable basis for the Defendant to manage the Mall or the part of the Common Property maintained by the Plaintiff, or to collect any charges from the Plaintiff. [33] As for the Tripartite Agreement, learned counsel for the Plaintiff submits that in consideration of the Mall Developer agreeing to bear all costs and expenses incurred or to be incurred in connection with the management, maintenance and repairs of the Common Property, including cleaning, quit rent and sewerage charges, the S/N ZvjhiVAtBkq3hGico1DFw Mall Developer (and subsequently the Plaintiff) shall not be required or be liable to pay any fees, costs, charges and/or expenses incurred or to be incurred in connection with the management, operations, maintenance and repairs of the Limited Common Property and all areas within Zetapark. [34] It was also highlighted that the Zetapark Developer agreed to and had entered into Deed of Mutual Covenants (“DMC”) with the purchasers of Zetapark on terms and conditions that are consistent with the Tripartite Agreement. It was submitted that the DMC had reinforced the terms of the Tripartite Agreement and confirmed that the management, operation, maintenance and repair of the Common Property and/or areas within the Mall and the Limited Common Property and/or areas within Zetapark are segregated and distinguished. [35] The Plaintiff’s learned counsel prays for the O.14A questions to be answered in favour of the Plaintiff. The Defendant’s Position [36] The Defendant’s learned counsel submits that the Tripartite Agreement is invalid and/or in violation of the provisions stipulated in the SMA 2013. He puts forth the following points which I have summarised below. [37] It was submitted that the Tripartite Agreement effectively precludes the Defendant JMB (and the future MC) from exercising its statutory duties and powers prescribed under, inter alia, s.21 of the SMA 2013 to maintain and manage the Common Property of the S/N ZvjhiVAtBkq3hGico1DFw Development. Learned counsel cited s.148 of the SMA 2013 which prohibits any contract, agreement and/or deed relating to the maintenance and management of the common property which are contrary to the provisions of the SMA 2013 and also s.149 which provides that no agreement, contract or arrangement shall operate to annul, vary or exclude the provisions of the SMA 2013. [38] It was pointed out that the Tripartite Agreement allows the Plaintiff to contract out of its statutory obligations under, inter alia, ss.25 and 52 of the SMA 2013 to pay Maintenance Charges and Sinking Fund contribution. [39] Reference was made to several authorities which ruled that the powers of a JMB and Management Corporation are strictly circumscribed by the SMA 2013, and therefore any arrangement and/or conduct that is not in compliance with the provisions of the SMA 2013, such as the arrangement under the Tripartite Agreement, is invalid and unenforceable. [40] Learned counsel for the Defendant submits that the Defendant owes a statutory duty to manage, operate, maintain, administer and/or repair the Common Property shaded in yellow in Appendix A (“Common Property”). He highlighted the indisputable fact that Zetapark and the Mall are erected on the same land and form one development – as acknowledged by the Plaintiff and Zetapark Developer. He further relies on the definition of “Development Area” and “Common Property” in s.2 read together with s.21 of the SMA 2013 to contend that the Defendant JMB is under a statutory duty to maintain the Common Property of the Development. S/N ZvjhiVAtBkq3hGico1DFw [41] The Defendant’s learned counsel prays for the O.14A questions to be answered in favour of the Defendant. Analysis of the Facts and Law Question 1 posed under the O.14A application [42] I begin by bearing in mind that the SMA 2013 is the latest statute on managing strata properties. It repealed the Building and Common Property (Maintenance and Management) Act 2007 (“BCPA 2007”) which first introduced the creation of a Joint Management Body to empower purchasers to jointly manage a strata development with the developer after vacant possession was delivered to purchasers, i.e. in the interim period pending issuance of strata titles, whereupon a Management Corporation would come into existence by operation of law. [43] The SMA 2013 seeks to address the problems and disputes that were not covered by the BCPA 2007. The fact that the SMA 2013 had to be enacted, barely 6 years after the former Act came into force, illustrates the complexity of strata disputes – all the more so complex when a block of residential units is ‘stacked’ atop a shopping mall and sharing parts of the Common Property. [44] Property developers used to have sole management and maintenance rights until the issuance of strata titles and creation of a Management Corporation. Notably, the SMA 2013 seeks to ensure that developers act honestly and reasonably in the interim period. It also seeks to address differences between the purchasers/parcel owners themselves and/or disputes with the developer. S.17(4) of the SMA 2013 compels joint management by S/N ZvjhiVAtBkq3hGico1DFw stipulating that “The joint management body shall comprise the developer and the purchasers”. The developer and the purchasers have no choice but to jointly “maintain and manage the building intended for subdivision into parcels and the Common Property” (quoted from s.21(1)(a) SMA 2013) pending issuance of strata titles and creation of a Management Corporation. [45] In my view, the use of the words “duties of a joint management body” in s.21(1) SMA 2013 means that those duties are intended to be non-delegable duties. The exact words of s.21(1)(a), (b) and (c) are as follows: “The duties of a joint management body shall be as follows:

to properly maintain and manage the building or land intended for subdivision into parcels and the common property, and keep it in a state of good and serviceable repair;

to determine and impose the Charges to be deposited into the maintenance account for the purpose of the proper maintenance and management of the buildings or lands intended for subdivision into parcels and the common property;

to determine and impose the contribution to the sinking fund to be deposited into the sinking fund account for the purpose of meeting the actual or expected expenditure specified under subsection 24(2);” [46] By reason of the above analysis and the plain wording of s.21(1) SMA 2013, I am constrained to rule that the answer to the Question 1 posed under the O.14A application is in the affirmative. The Defendant owes a statutory duty to manage, operate, maintain, administer and/or repair the Common Property shaded in yellow in S/N ZvjhiVAtBkq3hGico1DFw Appendix A to Enclosure 20 and areas within the retail/shopping complex known as ‘Setapak Central’. Question 2 posed under the O.14A application [47] Moving on to Question 2, clauses in the Tripartite Agreement as particularised in para [22] above are relevant. I find that the Tripartite Agreement seeks to preclude the Defendant JMB (and the future MC) from exercising its statutory duties and powers prescribed under, inter alia, s.21 SMA 2013, to maintain and manage the building intended for subdivision into parcels and the Common Property and to collect payment of Maintenance Charges and Sinking Fund contribution. Those clauses contravene s.148 of the SMA 2013 which prohibits any contract, agreement and/or deed relating to the maintenance and management of the Common Property which are contrary to the provisions of the SMA 2013. [48] Further, the validity of the Tripartite Agreement had in fact been referred to the Commissioner of Buildings, who issued a letter dated 12th December 2019 stating that Tripartite Agreement is inapplicable and that the parties should not have entered into it. [49] By applying s.148 and also s.149 which provides that no agreement, contract or arrangement shall operate to annul, vary or exclude the provisions of the SMA 2013, I am constrained to rule that the Tripartite Agreement is invalid and unenforceable against the Defendant, including the JMB and the residential parcel owners. In other words, Question 2 posed under the O.14A application is answered in the negative. S/N ZvjhiVAtBkq3hGico1DFw Questions 3(i) & 3(ii) posed under the O.14A application [50] As the refusal of some parcel owners to pay Maintenance Charges and Sinking Fund contribution to the JMB is a common problem, s.25(1) of the SMA 2013 makes it mandatory for parcel owners to pay. This is applicable regardless of whether their parcel is occupied or not, or whether they are using the common facilities in the Common Property such as the swimming pool or gym. S.25(1) of the SMA 2013 reads:

Each purchaser shall pay the Charges, and contribution to the sinking fund, in respect of his parcel to the joint management body for the maintenance and management of the buildings or lands intended for subdivision into parcels and the common property in a development area. [51] The main reason given by the Plaintiff in submitting that it should not be required to pay Maintenance Charges and Sinking Fund contribution is that it does not use all the Common Property and the facilities therein. With respect, this reason is not significantly different from the common excuses voiced by owners of residential units who declined to pay Maintenance Charges and/or contribute to the Sinking Fund, such as: “I should not be required to pay because I don’t swim” or “I never use the gym” or “I sweep the walkway myself every morning”. The requirement to pay Maintenance Charges and Sinking Fund contribution is not dependent on usage of Common Property. It is a statutory requirement for all parcel owners to pay, irrespective of whether they are owners of commercial units or residential ones within the same Development Area. Even unsold parcels belonging to the developer are subjected to the mandatory S/N ZvjhiVAtBkq3hGico1DFw requirement of payment of the same Maintenance Charges and Sinking Fund contribution – as could be seen in s.25(2) which reads: “The developer shall pay the Charges, and contribution to the sinking fund, to the joint management body in respect of those parcels in the development area which have not been sold, being a sum equivalent to the Charges, and contribution to the sinking fund, payable by the purchasers to the joint management body had the parcels been sold.” [52] The Court of Appeal had in Perbadanan Pengurusan Solaris Dutamas v Suruhanjaya Tenaga Malaysia [2022] 4 MLJ 397; [2022] 6 CLJ 219 emphasised that statutory powers for the management of strata properties under SMA 2013 cannot be expanded or varied without an amendment to the statute itself. The resolutions passed at a General Meeting cannot override the statutory provisions of the SMA 2013. The following passages are clear: “[27] We share the view of the appellant that s 59 of the SMA 2013 comprises statutory powers that cannot be expanded and or varied without an amendment to the statute itself… [28] Much reliance was placed by the appellant on the Court of Appeal (‘COA’) case of Ekuiti Setegap Sdn Bhd v Plaza 393 Management Corp (established under The Strata Titles Act 1985) [2018] 4 MLJ 284; [2019] 2 CLJ 592 where the court held that the MC cannot act beyond what was mandated by the Strata Titles Act: Similarly, in the instant case, we find that the STA mandated that contributions to the management fund be determined on a share unit basis. Any other basis to determine the quantum S/N ZvjhiVAtBkq3hGico1DFw of contribution would be contrary to the STA and thus illegal. The fact that the charges levied on the square foot basis are in accordance with the resolutions passed at the plaintiff’s general meeting is immaterial, given that the plaintiff cannot act beyond the provisions of the STA.” [53] In Muhamad Nazri bin Muhamad v JMB Menara Rajawali [2020] 3 MLJ 645, the Court of Appeal reiterated that whatever is not expressly authorised in the SMA 2013 is deemed to be prohibited. I would humbly opine that this principle is equally applicable to prohibit the issuance of any order that has the effect of negating s.21 of the SMA 2013. [54] As pointed in para [3] above, I am constrained to decline to follow Badan Pengurusan Bersama Gurney Paragon (supra) because I find that there is no power under the SMA 2013 for the court to exempt a parcel owner from paying Maintenance Charges and Sinking Fund Contribution or to prohibit a JMB from collecting payments which the JMB is expressly empowered by ss.21 & 25 SMA 2013 to collect from the parcel owners. [55] In the circumstances, Questions 3(i) and 3(ii) are answered in the affirmative. There is a further consequential issue of whether part of the Defendant’s claim is barred by limitation. I shall deal with that issue after answering Question (3)(iii): which is whether the Defendant JMB should impose different chargeable rates for the charges and sinking fund for parcels used for significantly different purposes in a single development comprising of mixed residential (i.e. Zetapark) and commercial parcels (i.e. the Mall). S/N ZvjhiVAtBkq3hGico1DFw Question 3(iii) – Whether a JMB may impose different rates [56] The Court of Appeal in Muhamad Nazri bin Muhamad v JMB Menara Rajawali (supra) had in fact provided the answer to Question (3)(iii). It was held as follows: “[36] As a creature of statute, the powers of the JMB are limited and circumscribed by the SMA 2013 which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its establishment, or may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised. What the SMA 2013 does not expressly or impliedly authorise is to be taken to be prohibited. [38] There is also no provision under the SMA 2013 and the STA 1985 which empowers the JMB to fix different rates for different types of parcels. In contrast, such a power is expressly conferred on a MC in respect of two specific situations: (i) parcels which are used for significantly different purposes, and (ii) provisional blocks; sub-s 60(3)(b) of the SMA 2103. Therefore, if Parliament had intended for the JMB to have the power to fix different rates of maintenance charges, that intention would have been clearly reflected in the provisions of the SMA 2013; and because there is no such provision it must have been Parliament’s presumed intention and wisdom not to confer such power on the JMB.” [57] As a matter of fact, the Court of Appeal in Muhamad Nazri bin Muhamad v JMB Menara Rajawali (supra) expressed total disapproval of the JMB passing a resolution to collect different rates S/N ZvjhiVAtBkq3hGico1DFw of Maintenance Charges, even though the resolution was passed unanimously. The Court of Appeal declared the resolution as ultra vires the SMA 2013. This was stated in para [40] of the Grounds of Judgment, as follows: “[40] Be that as it may, does the fact that the JMB’s resolution was carried by a unanimous vote make it perfectly legal and valid for the JMB and JMC to fix and collect the different rates of the maintenance charges. The learned judge took the view that it would. However, we take a different view. The JMB as a body corporate under statute can only determine charges which are mandated under the SMA 2013. It will be ultra vires the SMA 2013 for the JMB and the JMC to fix and impose the different rates which are not sanctioned by statute. Further, the JMB does not have the inherent power nor can it arrogate to itself such power, even if the approval was obtained in a unanimous resolution at the AGM (Malaysia Shipyard & Engineering Sdn Bhd v Bank Kerjasama Rakyat (M) Bhd).” [58] From a reading of the SMA 2013, it appears that a power to impose different rates of Maintenance Charges and Sinking Fund Contribution for different components of a development is vested only on a Management Corporation, and not on its statutory predecessor, i.e. a JMB. This is because S.17A of the Strata Titles Act 1985 expressly authorises a management corporation to designate “limited common property” and to “create one or more subsidiary management corporations only for the purpose of representing the different interests of parcel proprietors by way of comprehensive resolution conducted under the Strata Management Act 2013”. Such S/N ZvjhiVAtBkq3hGico1DFw power is not available to the JMB. S.17A(1) of the Strata Titles Act 1985 reads: “The management corporation may designate limited common property and create one or more subsidiary management corporations only for the purpose of representing the different interests of parcel proprietors by way of comprehensive resolution conducted under the Strata Management Act 2013.” [59] The principle in statutory construction known in Latin as Expressio Unius Est Exclusio Alterius may be applicable to explain why a Management Corporation (MC) is authorised to create Subsidiary Management Corporation with the discretion to impose different rates while the SMA 2013 is silent regarding a Joint Management Body (JMB). A literal translation of Expressio Unius Est Exclusio Alterius is “The Expression of One Is the Exclusion of Another”. The application of this trite common law principle lead to the presumption that it was intentionally omitted for JMB to have this discretionary power. [60] As cited earlier above, the Court of Appeal in Perbadanan Pengurusan Solaris Dutamas v Suruhanjaya Tenaga Malaysia(supra) and Muhamad Nazri bin Muhamad v JMB Menara Rajawali (supra) had pronounced that whatever is not expressly authorised in the SMA 2013 is deemed to be prohibited. Thus, since there is an express provision in S.17A(1) of the Strata Titles Act 1985 for the creation of a Subsidiary Management Corporation and designation of “Limited Common Property” which will permit the imposition of a different rate for the “Limited Common Property”, I take the view that there is no power for the Defendant S/N ZvjhiVAtBkq3hGico1DFw JMB in this case to impose a rate for the Mall that is different from the rate imposed for Zetapark. Different rates may be imposed in the near future by a Subsidiary Management Corporation created for the purpose of representing the different interests of parcel proprietor/s of the Mall – but not by the Defendant JMB. Question 3(iii) is answered in the negative. [61] Before I depart from this point in explaining my answer to Question 3(iii), en passant, I note that the Court of Appeal Aikbee Timbers Sdn Bhd (supra) also did not authorise a JMB to impose different rates. This is clear from para [92] of Aikbee Timbers Sdn Bhd (supra) cited in para [4] above, where the Court of Appeal mentioned only the developer (pre-JMB stage) and the Management Corporation (post-JMB stage). The Limitation Issue [62] The limitation issue arises because part of the Defendant’s claim for Maintenance Charges and Sinking Fund contribution is for a period that preceded the filing of the Writ by more than 6 years. [63] First, it is noted that s.4 of the Limitation Act 1953 makes it mandatory for the Act to be expressly pleaded as a defence. This essentially means that a defendant intends to rely on the provisions of the Limitation Act 1953 must expressly plead the dates and that the plaintiff’s action is time-barred by operation of the said Act. In this case, the defence of limitation has been pleaded in the Plaintiff's Amended Defence To Counterclaim. It has satisfied the said s.4 which reads: S/N ZvjhiVAtBkq3hGico1DFw “4. Nothing in this Act shall operate as a bar to an action unless this Act has been expressly pleaded as a defence thereto in any case where under any written law relating to civil procedure for the time being in force such a defence is required to be so pleaded.” [64] Now, S.105 of the SMA 2013 states: “(1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount.

For the avoidance of doubt, the Limitation Act 1953 shall not apply to the proceedings of the Tribunal.” (emphasis added) [65] Does s.105(2) of the SMA 2013 negate the application of the Limitation Act 1953 in the civil courts as well, from being applicable to bar claims based on causes of action which had arisen more than 6 years. The word “Tribunal” in s.105(2) refers to the Strata Management Tribunal, which has limited jurisdiction under the SMA 2013 to hear dispute strata management disputes. [66] I am of the view that since Parliament had deemed fit to restrict the non-application of the Limitation Act 1953 to only “proceedings of the Tribunal”, s.105(2) does not render the Limitation Act 1953 inapplicable to civil suits where pleadings are properly filed to plead the same Act. Further, it ought to be noted that s.105 is about the jurisdiction of the Tribunal – as could be seen in s.105(1), followed by subsection (2) which starts with the words: “For the avoidance of doubt” and ending with “proceedings of the Tribunal”. There is no S/N ZvjhiVAtBkq3hGico1DFw pleadings in proceedings at the Tribunal to plead s.4 of the Limitation Act 1953. Hence, those words, “For the avoidance of doubt”, serve as a prelude to stating that the Limitation Act 1953 is in applicable to proceedings of the Tribunal. [67] Further, had the intention of Parliament to exclude the application of the Limitation Act 1953 to claims for Maintenance Charges and Sinking Fund contribution or any monetary claim under the SMA 2013, it could have been simply so stated, instead of adding the words “For the avoidance of doubt” and ending s.105(2) with “proceedings of the Tribunal”. [68] The limitation period for claims made by virtue of a written law are governed by s.6(1)(d) of the Limitation Act 1953 which reads:- “(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

actions founded on a contract or on tort;

...;

...;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.” [69] Are claims for Maintenance Charges and Sinking Fund contributions claims by virtue of a written law? In my humble view, they are because Maintenance Charges and Sinking Fund contributions are mandated by a written law, i.e. the SMA 2013, with different provisions making it mandatory to pay. Regardless of whether the S/N ZvjhiVAtBkq3hGico1DFw Plaintiff is a purchaser or a developer of the Mall which has yet to sub-divide the Mall into smaller stratified units, it is still liable to pay. If it is to be regarded as a purchaser, it is liable to pay pursuant to s.25(1) of SMA 2013, and if it is regarded as a developer, it is liable to pay under s.25(2). See s.25(1) & (2) quoted in para [50] and [51] above. [70] One final issue is whether a “running account” would become time-barred by the Limitation Act 1953 if there had been no payment made for more than 6 years prior to the date of filing of a writ? First, there is nothing magical about the term “running account”. It simply refers to an account in which there are frequent debit and credit entries, best explained with an illustration: a customer who owes RM1,000 pays his supplier RM600 on the 1st day of a month, reducing his outstanding debt to RM400 but on the 17th day of the month, he buys goods at a price of RM350 on credit, thus increasing his debt to RM750. On the 1st day of the following month, he pays RM200, reducing his outstanding debt to RM550 but on, say, the 12th day of that month, he buys RM400 of goods on credit, thus increasing his debt to RM950. In this example, the customer’s account with his supplier is “running” in the sense that there are payments that reduced his debt but also new purchases on credit which increased his debt. [71] This “running account” practice, as illustrated above, could go on for decades, as was common in Malaysia when transactions at kedai runcit (sundry shops) were actively triggering the operation of s.26(2) of the Limitation Act 1953 – which states that a right of action to recover a debt is deemed to accrue on the date of the last S/N ZvjhiVAtBkq3hGico1DFw payment made by the debtor, i.e. extended every time a partial payment is made by the debtor to the creditor. S.26(2) of the Limitation Act 1953 reads:- “Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.” [72] Even though some authorities on “running accounts” omitted to mention the partial payments which trigger s.26(2) of the Limitation Act 1953, the Court of Appeal in Ekuiti Setegap Sdn Bhd v. Plaza 393 Management Corp [2019] 2 CLJ 592 did highlight the point that a payment is required to be made to make it a “running account”. If there is no payment for 6 years, it will become statute-barred. The Court of Appeal made it clear in the following passage: “A payment made on account of a running account is in respect of the entire outstanding balance, with the result that time is extended for the whole of the debt.” It was held:- “[32] …In Wembley Industries Holdings Bhd, it was held: … a running account is a single account and not a composite of its various parts. A payment made on account of a running account is in respect of the entire outstanding balance, with the result that time is extended for the whole of the debt. It appears, therefore that a running account will become statute-barred only if more than six years elapse between the supply of the last article under it and the last payment on account.” S/N ZvjhiVAtBkq3hGico1DFw [73] Hence, a “running account” would also become time-barred if there had been no payment made for more than 6 years prior to the date of filing of a writ of summons. Thus, if no payment of Maintenance Charges or Sinking Fund contribution was ever made by the Plaintiff – as in this present case – the issue of a payment “extending the whole debt” pursuant to S.26(2) of the Limitation Act 1953 simply would not arise. [74] On this point, I would conclude by finding that the Limitation Act 1953 is applicable to bar part of the Defendant’s Counterclaim, i.e. Maintenance Charges and Sinking Fund Contribution that were due and payable more than 6 years prior to the date of filing of the writ in this action, i.e. prior to 30th April 2018 (the date of the Writ is 30th April 2024). I reiterate that there was no partial payment by the Plaintiff to trigger s.26(2) of the Limitation Act 1953. [75] Since the Plaintiff has advanced the expenses for the maintenance of part of the Common Property which is also used by the occupants of the condominiums, it would be equitable if and only if this Court is to allow the Plaintiff to set-off those expenses which were incurred after 29th April 2018, from the Maintenance Charges and Sinking Fund contribution payable to the Defendant. The Defendant would be unjustly enriched if no set-off is allowed. The parties are at liberty to apply to the court for assessment of the same. Lastly, as there is much money to be set-off between the two parties, the Plaintiff is not a defaulter that ought to be restrained from attending the first Annual General Meeting (“the AGM”) of the newly formed Management Corporation and to vote at the meeting. Thus, I S/N ZvjhiVAtBkq3hGico1DFw acceded to the Plaintiff’s application for a ruling that it may be allowed to attend the AGM and to vote. Conclusion [76] In summary, the upshot is that the Defendant JMB is entitled to claim Maintenance Charges and Sinking Fund contribution from the Plaintiff but barred by the s.6(1)(d) of the Limitation Act 1953 from claiming those charges and contribution which were due and payable more than 6 years prior to the date of filing of the Writ in this action, i.e. prior to 30th April 2018, while the Plaintiff is allowed to set-off those expenses (which were incurred after 29th April 2018) from the Maintenance Charges and Sinking Fund contribution payable to the Defendant. As there is also money due and payable (to be set-off) by the Defendant to the Plaintiff, it ought to be allowed to attend the first AGM of the newly formed Management Corporation and to vote at the meeting. Lastly, each party to bear own costs. Date of Decision: 20th August 2025 ………………………… Gan Techiong Judicial Commissioner High Court of Malaya at Kuala Lumpur (NCvC9) S/N ZvjhiVAtBkq3hGico1DFw Counsel for the Plaintiff: Sathya A/P Kumardas (Daud Sulaiman and Koo Jia You with her) SOLICITORS FOR THE PLAINTIFF: MESSRS SHEARN DELAMORE & CO. Advocates & Solicitors 7th Floor, Wisma Hamzah-Kwong Hing No 1 Leboh Ampang 50100 KUALA LUMPUR. Counsel for the Defendant: Samuel Tan (Nicole Wan Yee Herng with him) SOLICITORS FOR THE DEFENDANT: MESSRS SHOOK LIN & BOK Advocates & Solicitors 20th Floor, AmBank Group Building, 55 Jalan Raja Chulan, 50200 KUALA LUMPUR. S/N ZvjhiVAtBkq3hGico1DFw CASES REFERRED TO:

Badan Pengurusan Bersama Gurney Paragon Residential v Hunza Properties (Gurney) Sdn Bhd & Ors [2025] 7 MLJ 601.

Aikbee Timbers Sdn Bhd & Anor v Yii Sing Chiu & Anor [2024] 1 MLJ

948.

Perbadanan Pengurusan Solaris Dutamas v Suruhanjaya Tenaga Malaysia [2022] 4 MLJ 397; [2022] 6 CLJ 219 4. Muhamad Nazri bin Muhamad v JMB Menara Rajawali [2020] 3 MLJ

645.

Ekuiti Setegap Sdn Bhd v. Plaza 393 Management Corp [2019] 2 CLJ

592.

Section 2, S.17(4), S.21, S.21(1)(a), S.25(1), SS.25 and 52, S.105, S.105(2), S.148, S.149 of the Strata Management Act 2013.

Order 14A Rules of Court 2012.

Section 4, S.6(1)(d), S.26(2) of the Limitation Act 1953.

Section 7(2) of the Building and Common Property (Maintenance and Management) Act 2007.

S.17A of the Strata Titles Act 1985.