Ho Phoy Kwang (BA-24NCvC-574-04/2021)

HO PHOY KWANG … PLAINTIFFS [NRIC NO. : 671113-08-5184]

HO PHOY CHUIN [NRIC NO. : 771201-10-5200]

THE SUMMIT SUBANG USJ MANAGEMENT … DEFENDANTS CORPORATION [REGISTRATION NO. : SEL : 2059/08]

MAYBANK TRUSTEES BERHAD [REGISTRATION NO. : 196301000109] (5004-P)]

SWAN PROPERTY [COMPANY NO. : 923850-V]

TEH GI YA [NRIC NO. : 540502-08-6033]

LIEW KWEK LEONG [NRIC NO. : 681010-08-5439]

LAW KI LENG [NRIC NO. : 520630-08-5045]

ONG BEE LEE [NRIC NO. : 640109-01-5018] 2

LIM KAR HOI [NRIC NO. : 680206-08-5305]

NANCY TAN [NRIC NO. : 730107-10-5764]

OOI CHOON WAN [NRIC NO. : 501116-07-5019]

YONG CHEANG PIN [NRIC NO. : 590612-07-5306]

YONG CHEANG YEE [NRIC NO. : 561230-07-5287]

LAM KOK WENG [NRIC NO. : 640508-08-6083]

IVY WONG YEE LEE [NRIC NO. : 620612-05-5350]

CHEONG YIN THENG [NRIC NO. : 760703-08-6384]

CHEONG YOKE THENG [NRIC NO. : 731202-08-5014] GROUNDS OF JUDGMENT (Originating Summons) INTRODUCTION [1] The Plaintiffs in this Originating Summon is seeking a declaration against the decision made by the 1st Defendant in terms of determination of different rates for maintenance charges. 3 [2] The Plaintiffs are the co-proprietors of a shop lot Unit No. M1/4/523 in a retail mall in an integrated mixed development project known as The Summit Subang USJ (known as The Summit). There are 556 parcels where the type of use of all 566 plots is business. [3] The 1st Defendant is the management corporation of The Summit. Whereby the 2nd Defendant is the trustee of AmFIRST Real Estate Investment Trust (AmFIRST REIT) owns a majority 87.2% or 822,590 share units in The Summit as opposed to the Plaintiff’s 110 share units. [4] The 3rd to 16th Defendants are registered parcel owners of business plot of The Summit. The 3rd to 16th Defendants previously were the proposed interveners in Enclosure 35. By way of Enclosure 35, the proposed interveners applied to intervene and /or be made Plaintiffs in this suit. Pursuant to that application on 8.12.2021, Justice Tee Geok Hock has ordered as follows (Enclosure 100) – “Maka adalah diperintahkan: 1) Dalam suatu guaman sivil, semua plaintif-plaintif hendaklah diwakili oleh satu (1) firma peguam sebagai peguamcara atas rekod (“solicitor on record”), walalu pun pada masa pendengaran dan perbicaraan plaintif-plaintif boleh diwakili oleh dua atau lebih peguambela-peguambela (“two or more counsel”) daripada firma-firma peguam yang berlainan; 2) Dalam tempoh 2 minggu dari tarikh perintah ini, Plaintif-Plaintif sedia ada dan kesemua 14 Pencelah-Pencelah 4 Dicadangkan hendaklah berbincang sama ada mereka semua bersetuju secara bertulis untuk diwakili oleh satu (1) firma peguam sebagai firma peguamcara atas rekod (“solicitor on record”); 3) Sekiranya Plaintif-Plaintif sedia ada dan kesemua 14 Pencelah-Pencelah Dicadangkan semua bersetuju secara bertulis untuk diwakili oleh satu (1) firma peguam sebagai pegaumcara atas rekod (“solicitor on record”), persetujuan bertulis ini hendaklah difailkan dan disampaikan pada atau sebelum 31.12.2021 dan justerus itu 14 Pencelah-Pencelah Dicadangkan itu akan dibenarkan untuk mencelah sebagai Plaintif Ke-3 hingga Plaintif Ke-16 dengan arahan-arahan sambilan yang berikut:

Plaintif Ke-3 hingga Plaintif Ke-16 atau wakil mereka dibenarkan memfailkan Afidavit Tambahan Plaintif-Plaintif Ke-3 hingga Ke-16 untuk mengemukan fakta-fakta dan keterangan tambahan dan juga untuk menjawab affidavit-afidavit yang difailkan oleh Defendan-Defendan pada atau sebelum 14.01.2022;

Defendan-Defendan dibenarkan memfailkan dan menyampaikan affidavit-afidavit jawapan mereka masing-masing terhadap Afidavit Tambahan yang difailkan oleh Plaintif Ke-3 hingga Plaintif Ke-16 pada atau sebelum 9 Februari 2022; 5

Plaintif Ke-3 hingga Plaintif Ke-16 atau wakil mereka dibenarkan memfailkan Afidavit Balasan Plaintif-Plaintif Ke-3 hingga Ke-16 untuk menjawab affidavit-afidavit jawapan Defendan-Defendan teresbut pada atau sebelum 23 Februari 2022; 2) Sekiranya Plaintif-Plaintif sedia ada dan kesemua 14 Pencelah-Pencelah Dicadangkan tidak bersetuju untuk diwakili oleh satu (1) firma peguam sebagai pegaumcara atas rekod (“solicitor on record”) atau tiada persetujuan bertulis difailkan dan disampaikan pada atau sebelum 31.12.2021, maka 14 Pencelah-Pencelah Dicadangkan itu akan dibenarkan untuk mencelah sebagai Defendan Ke-3 hingga Defendan Ke-16 dengan arahan-arahan sambilan yang berikut:

Defendan Ke-3 hingga Defendan Ke-16 atau wakil mereka dibenarkan memfailkan Afidavit-Afidavit Tambahan Defendan-Defendan Ke-3 hingga Ke-16 untuk mengemukan fakta-fakta dan keterangan tambahan dan juga untuk menjawab affidavit-afidavit yang difailkan oleh Plaintif-Plaintif dan Defendan-Defendan Pertama dan Ke-2 pada atau sebelum 14.01.2022;

Plaintif-Plaintif dan Defendan-Defendan Pertama dan Ke-2 dibenarkan memfailkan dan menyampaikan affidavit-afidavit jawapan mereka masing-masing terhadap Afidavit-Afidavit Tambahan yang difailkan oleh Defendan Ke-3 6 hingga Defendan Ke-16 pada atau sebelum 9 Februari 2022.” [5] This Court observed that the Plaintiffs and the proposed interveners has appointed different counsel, hence the proposed interveners were named 3rd to 16th Defendant pursuant to paragraph 4 of Enclosure 100 even though the proposed interveners in the first place applied in Enclosure 35 to be named as plaintiffs. [6] Such was the state of this matter when it came before me. [7] In 5th July 2024, the Court has dismissed the Originating Summons and ordered that parties were to bear their own costs. ISSUES TO BE TRIED [8] Based on the submission by the Plaintiffs, the primary issues to be determined by this Court are as follows – First Issue: Whether the 1st defendant can determine and impose different rates of maintenance charges and sinking fund contributions for different types of parcels in The Summit at all material times? Second Issue: Can the 1st defendant designate common property as exclusive common property and shared common property for the purposes of granting exclusive use or enjoyment to designated parcel proprietors, to support the determination and imposition of different maintenance charges rates on the designated parcel proprietors. 7 PLAINTIFF'S ARGUMENT [9] The Plaintiff relied on the Court of Appeal decision in Muhamad Nazri bin Muhamad v JMB Menara Rajawali & Anor [2019] 10 CLJ 547(Rajawali’s case) where the words “in proportion” appearing in the SMA strictly require the determination an imposition of only one uniform rate of maintenance charges to be applied to all types of parcels. [10] The maintenance charges to be paid by each parcel proprietor ought to be in proportion to the number of share units belonging to that parcel proprietor. In other words, a parcel proprietor should pay more maintenance charges if he has more voting power. Therefore, according to the Plaintiffs, resolutions as mentioned in Saman Pemula (the 1st AGM Resolution 4, EGM Special and Ordinary Resolutions, 6th AGM Resolution 4 and 7th AGM Resolution 5 passed respectively) to determine and impose different rates of maintenance charges on different types of parcels in The Summit are discriminatory, unfair, inequitable and prejudicial to the parcel proprietors. [11] The Plaintiff asserts that the words “in proportion” appearing in section 59 and 60 of Strata Management Act 2012 (SMA) require the 1st Defendant to determine and impose only one uniform rate of maintenance charges to be applied to all types of parcels in The Summit. [12] The Plaintiffs also submitted that this Court must follow and be bound by the decision of the Court of Appeal in Rajawali’s case and the AGM Resolution 4, EGM Ordinary Resolution, 6th AGM Resolution 4 and 7th AGM Resolution 5 respectively passed by the 1st Defendant to determine and impose different rates of maintenance charges and sinking 8 fund contributions for different parcels in The Summit are ultra vires the STA and SMA, unlawful, null and void ab initio. THE 3RD TO 16TH DEFENDANT’S ARGUMENT [13] By way of application in Enclosure 35, the 3rd – 16th Defendants applied to intervene. The 3rd – 16th Defendant’s argumen is that tthe 1st Defendant has determined and imposed different rates of maintenance charges for different parcels since 1.1.2013 to the Plaintiffs and 3rd – 16th Defendants which are contrary to section 43 of the Strata Titles Act 1985. 1ST and 2ND DEFENDANTS’ ARGUMENT [14] However, the 1st and 2nd Defendants submitted that 1st Defendant as the management committee is permitted by subsection 60 (3)(b) and

of the Strata Management Act 2013 (Act 757) to raise and determine different rates of charges to be paid in respect of parcels which are used for significantly different purposes. [15] According to the 1st and 2nd Defendants, the law governing significantly different facilities has been decided by the Court of Appeal in the case of Aikbee Timbers Sdn Bhd & Anor v Yii Sang Chiu & Anor and another appeal [2024] 1 MLJ 948 (Pearl Suria’s case). [16] The 1st and 2nd Defendants further argued that Enclosure 1 is baseless, frivolous, devoid of merit and ought to be dismissed. The 1st Defendant is permitted by subsection 60(3)(b) and (4) of the SMA to set and charge multiple rates of charges in respect of parcels which are used for significantly different purposes. In support of D1 and D2 submissions, they are relying on Pearl Suria’s case. 9 ANALYSIS AND FINDING [17] The Court will determine both the questions of law in tandem as the issues are intertwined. To determine the questions of law, this Court is guided by the principle enunciated from the following cases:

Hari Bhadur Gale v PP [2012] 6 MLJ 597, Federal Court set out basic principles of statutory interpretation; “Secondly, where the words are unambiguous, plain and clear they must be given their natural and ordinary meaning. It is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient or even unjust or immoral” (See: PP v Sihabduin Hj Salleh & Anor [1981] CLJ 39; Tan Weng Chiang v PP [1992] 4 CLJ 2094).

Lai Yak Kee v Pembinaan Alam Cemerlang Sdn Bhd [2012] 1 LNS 1464 – The Federal Court held that the duty of the Court is limited to interpret the words in the legislation: “In interpreting statute, the Court should not add or subtract any word.” “.. in the construction of a statute, the duty of the court is limited to interpreting the words used by the legislature, and it has no power to fill in the gaps disclosed. To do so would be to usurp the function of the legislation”.

NVJ Menon v The Great Eastern Life Assurance Company Ltd [2004] 3 MLJ 38. The COA held that the construction of 10 written law was a question to be determined by the Court and not by witnesses. [18] Federal Court's decision in Tebin Mostapa v Hulba-Danyal Balia & Anor [2020] 7 CLJ 561 gave guidance on the approach that is to be taken when construing a provision of a statute, whereby it held, at para [30]:

First, effect must be given to the object and intent of the Legislature in enacting the statute. Accordingly, the duty of the court is limited to interpreting the words used and to give effect to the words used. The court will not read words into a statute unless a clear reason for it is to be found in the statute itself. The court must begin by looking at the words in the statute and applying the plain and ordinary meaning of the words.

(ii) Second, if, however, the words employed are not clear, then the court may adopt the purposive approach in construing the meaning of the words used. Section 17A of the Interpretation Acts 1948 and 1967 provides for a purposive approach in the interpretation of statutes. Therefore, where the words of a statute are unambiguous, plain, and clear, they must be given their natural and ordinary meaning. The statute should be construed as a whole and the words used in a section must be given their plain grammatical meaning. It is not the province of the court to add or subtract any word; the duty of the court is limited to interpreting the words used by the Legislature and it has no power to fill in the gaps disclosed. Even if the words in a statute may be ambiguous, the power and duty of the court "to travel outside them on a voyage of discovery are strictly limited."

(iii) Third, the relevant provisions of an enactment must be read in accordance with the legislative purpose and applies especially where the literal meaning is clear and reflects the purposes of the enactment. This is done by reference to the words used in the provision; where it 11 becomes necessary to consider every word in each section and give its widest significance. An interpretation which would advance the object and purpose of the enactment must be the prime consideration of the court, so as to give full meaning and effect to it in the achievement to the declared objective. As such, in taking a purposive approach, the court is prepared to look at much extraneous materials that bear on the background against which the legislation was enacted. It follows that a statute has to be read in the correct context and that as such the court is permitted to read additional words into a statutory provision where clear reasons for doing so are to be found in the statute itself. [19] The relevant provision is subsection 60(3) of Strata Management Act 2013 is referred –

Subject to section 52, for the purpose of establishing and maintaining the maintenance account, the management corporation may at a general meeting-

determine from time to time the amount to be raised for the purposes mentioned in subsection 50(3);

raise the amounts so determined by imposing Charges on the proprietors in proportion to the share units or provisional share units of their respective parcels or provisional blocks, and the management corporation may determine different rates of Charges to be paid in respect of parcels which are used for significantly different purposes and in respect of the provisional blocks; and

determine the amount of interest payable by a proprietor in respect of late payments which shall not exceed the rate of ten per cent per annum. [20] Based on the above principles, the duty of this Court in interpreting the express words used in the provisions of the Strata Title Act and Strata Management Act is limited. This Court should not imply outcomes that the Parliament did not intend. 12 [21] To answer the 1st issue, this Court is with the 1st and 2nd Defendants. Therefore, in giving the plain meaning in subsection 60(3) of the SMA which clearly refers to MANAGEMENT CORPORATION, this Court is bound by the decision of Court of Appeal in Pearl Suria’s case. [22] In Aikbee Timbers Sdn Bhd & Anor v Yii Sing Chiu & Anor and another appeal [2024] 1 MLJ 698 (Pearl Suria’s case) the relevant decision governing significantly different purposes is as follows: “[64] The plain meaning in s. 60(3) of the SMA proffers that, first, the management corporation may increase the amount to meet the actual or expected general or regular expenditure necessary in respect of the expenditure spelled out in s. 50(3)(a) to (n) of the SMA. Secondly, if the amount is increased, the management corporation is to adjust the chargeable rate based on the increased amount. Thirdly, the management corporation 'may determine different rates of the charges to be paid in respect of parcels which are used for significantly different purposes' and also 'in respect of the provisional blocks.' [65] Different rates are allowed to be imposed for parcels in relation to a subdivided building which are used for significantly different purposes and for provisional blocks.” [66] It is instructive to understand that there are two types of strata title. Section 16 of the Strata Titles Act 1985 ( the STA 1985) states that the registrar of titles or deputy registrar of titles for the state or land for the district, whichever is applicable) shall prepare documents of strata title in respect of (a) a parcel …; [67] With regard to strata titled parcels with subdivided building, if there are parcels within the subdivided building which are used for significantly different purposes, then the management corporation is empowered to impose different chargeable rates for parcels which are used for significantly different purposes..where a building is subdivided into parcels with separate 13 strata titles, and the parcels are used for more than one type of purposes, such as parcels for residential purpose and parcels for commercial purpose within single development, then the management corporation is permitted in law to charge different rates for parcels that ae used for significantly different purposes. [23] Therefore, this Court is bound by the decision of Pearl Suria’s case. The Federal Court in Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 239 gave guidance on judicial binding precedent and held as follows – “[3] Judicial hierarchy must be observed in the interests of finality and certainty in the law for orderly development of legal rules as well as for the courts and lawyers to regulate their affairs. Failure to observe judicial precedents would create chaos and misapprehensions in the judicial system.This fact was certainly borne in mind by the Court of Appeal in Periasamy s/o Sinnapan & Anor v Public Prosecutor [1996] 2 MLJ 557 wherein Gopal Sri Ram JCA said ( at p 582): We may add that it does not augur well for judicial discipline when a High Court judge treats the decision of the Supreme Court with little or no respect in disobedience to the well-entrenched doctrine of stare decisis. We trust that the occasion will never arise again when we have to remind High Court judges that they are bound by all judgments of this Court and of the Federal Court and they must, despite any misgivings a judge may entertain as to the correctness of a particular judgment of either court, apply the law as stated therein”. [24] As a body corporate created by statute, the 1st Defendant may only exercise the powers conferred onto it by statute. It is trite law that a body corporate created by statute may only exercise the powers conferred onto it by statute. The Court of Appeal in the case of Muhamad Nazri bin Muhamad v JMB Menara Rajawali & Anor [2020] 3 MLJ 645 held that – “As a creature of statute, the JMB’s power were circumscribed by the SMA. What the SMA did not expressly or impliedly authorize had to be 14 taken to be prohibited. The JMB’s powers could extend no further than what was expressly stated in the SMA or was necessarily and properly required for carrying into effect the purpose of the JMB’s establishment or which might fairly be regarded as incidental to, or consequential upon, those things which the Legislature had authorized”. [25] This Court also refers to the role of punctuation ie the “comma” in s. 60(3) (b) of Strata Management Act 2013 - (b) raise the amounts so determined by imposing Charges on the proprietors in proportion to the share units or provisional share units of their respective parcels or provisional blocks, and the management corporation may determine different rates of Charges to be paid in respect of parcels which are used for significantly different purposes and in respect of the provisional blocks; and [26] The case of Dato' Mohamed Hashim Shamsuddin v The Attorney-General, Hong Kong [1986] 2 MLJ 112, it was decided that the grammatical and literal interpretation resulted in the first part of the sentence being read disjunctively from the second part. The punctuation "comma" in the case of Prithipal Singh v Dato' Bandar, Kuala Lumpur And Golden Arches Restaurant Sdn Bhd (Interveners) [1993] 3 MLJ 336 was not followed by the conjunction "and" but the conjunction "or". The Supreme Court held that Parliament had deliberately inserted a comma after the words "Federal Territory" and the significance cannot be ignored. [27] On the issue of construing a statute concerning a “comma”, the Federal Court in Thameez Nisha Hasseem v Maybank Allied Bank Bhd [2023] 5 CLJ 874 decided as follows- [85] We agree, with respect, that in construing a statute, the existence or absence of punctuation marks is relevant. In fact, punctuation forms part of any 15 statutory enactment and may be used as a guide to interpretation - that punctuation comma may result in either a disjunctive or conjunctive meaning of a statutory provision. (Dato' Mohamed Hashim Shamsuddin v The Attorney-General, Hong Kong [1986] 2 MLJ 112). In case Dato’ Mohamed Hashim Shamsuddin, the punctuation "comma" followed by the conjunctive "and". The grammatical and literal interpretation is - the first part of the sentence being read disjunctively from the second part. [28] Applying this principle to the interpretation of section 60(3)(b) of Strata Management Act 2013, and by virtue of “comma and “and” - the management corporation during general meeting has a discretion whether to raise the amounts so determined by imposing Charges on the proprietors in proportion to the share units or provisional share units of their respective parcels or provisional blocks OR the management corporation may determine different rates of Charges to be paid in respect of parcels which are used for significantly different purposes and in respect of the provisional blocks; and [29] Therefore, to say that MC cannot impose and determine different rates is without basis. [30] Next, the plaintiffs also submitted that the express words of the STA and SMA cannot be implied to introduce the unlimited power of MC to determine and impose different maintenance charge rates for different types of parcels, or designate common property to grant exclusive use or enjoyment to designated parcel proprietors to support the determination and imposition of different maintenance charges rates on the designated parcel proprietors. [31] This court is of the view that 14 affidavits filed by various parties as per Enclosure 162 until Enclosure 175 show that the MC did not exercise 16 unlimited power under the SMA in determining and imposing different maintenance charge rates for different types of parcels which is significantly for different purposes. [32] In light of the refusal of plaintiffs to cross-examine the deponents and failure on the part of the plaintiffs to rebut those affidavits, this Court has no other option but to accept the evidence as truth. The Court found that the 1st and 2nd defendant have discharged their burden of proof under s 60(3) SMA that the 4 individual components of the Summit use significantly different facilities which allows D1 to determine different rates. [33] The 1st Plaintiff also admitted during cross-examined that each individual component of the Summit utilizes significantly different facilities. [34] The 1st and 2nd Plaintiffs submitted that the calculation of single rates for the respective management periods as at prayer 4 of Enclosure 1 is accurate and in compliance with the SMA. However, this court is unable to accept it as accurate. The 1st Plaintiff admitted that the said figures were determined by her solicitors. P1 also admitted that she did not appoint any expert to calculate the rate. [35] The 1st and 2nd Plaintiffs also submitted that the EGM Special Resolution to designate common property for the purposes of granting exclusive use and enjoyment to designated parcel proprietors in support of the determination of different maintenance charges rates is ultra vires the STA and SMA. This Court found that as admitted by the Plaintiffs during cross examination, the Plaintiffs failed to exercise their rights under Regulation 11(2) (a) and (b) of the Second Schedule of the SMA to oppose resolutions passed at the EGM and to seek the assistance of the COB to call for another meeting. The Strata Management Tribunal is conferred 17 jurisdiction to hear among others, a claim for an order to nullify a resolution passed at the general meeting. [36] Based on Dato’ Yu Kuan Huat v Pesuruhjaya Bangunan Dewan Bandaraya Kuala Lumpur and Anor [2023] 1 LNS 265, it was decided that if an avenue of relief is specifically provided for, it should be extinguished before being brought before the Court and any attempt to circumvent this avenue would amount to an abuse of the process of Court. [37] As to the relief sought by the 1st and 2nd Plaintiffs for the appointment of an administer under section 76(1) – (3) of the SMA, since this Court found that the 1st Defendant can impose different rate of charges, the relief in para 5 - 8 is no longer relevant to be determined by this Court. CONCLUSION [38] Based on the reasons above, this Court dismissed Enclosure 1 and ordered for parties to bear their own costs. Dated : 25th September 2024 Signed ......................................................... HAZIZAH KASSIM Judicial Commissioner High Court Of Malaya at Shah Alam (NCvC 10) 18 To the parties’ solicitors:

For the Plaintiffs : Lesley Lim & Carolyn Ng Messrs Mah Weng Kwai & Associates (Petaling Jaya, Selangor)

For the 1st and : Datin Harwinder Kaur, 2nd Defendants Dhanesh Subramaniam Nair & Saranya Puvanesvaran Tetuan A.J. Ariffin, Yeo & Harpal (Wilayah Persekutuan, Kuala Lumpur)

For the 3rd – 16th : Hing Hong Ing & Naziha binti Ahmad Rupaai Defendant Hing Chambers (Subang Jaya, Selangor)