Ideal Heights Properties Sdn Bhd v Dzulkifli Bin Abbas (BD-A72NCvC-146-08/2017)

3 CLJ 544). In the present case, the Defendant raised issues such as the annual 10% interest rate, the total indefinite claim which includes the charges for the month of June 2017, the application of the limitation period of six years and the knowledge about the rate of the service charge. [4] Upon perusing the notice of application, the supporting affidavit and all other affidavits in reply, the statement of claim and the defence, and referring to the case of Perwira Affin Merchant Bank Bhd v. Dato’ Soh Chee Wen [1999] 1 LNS 170 in the determination of the meaning of ‘triable’, I found that the issues as raised by the Defendant are not triable, except that Page 3 of 8 the Plaintiff’s claim is partly tainted with the issue of statutory limitation because the claim involves those beyond the six years period. The parties’ submission [5] While the Plaintiff contended that the statutory limitation period is inapplicable because of the ‘nature’ of the account as being a ‘running account’ and that the claim is to ‘enforce a statutory duty’, the Defendant submitted otherwise. [6] There are at least four cases referred to by the parties that are decided by the High Court with different approach, interpretation and application of the law on the statutory limitation. [7] The Plaintiff referred to the case ofSri Wangsaria Management Corporation v Yeap Swee Oo @ Yeap Guan Cheng Anor, Veronica Leong Poh Geok v Lim Cheng Poh [2009] MLJU 1461that decided the account as a running account, hence the limitation period of six years is inapplicable. This is because, the figures do not remain constant as can be seen from the statement produced. Similarly, in the case of Plaza 393 Management Corporation v Ekuiti Setegap Sdn Bhd [2016] 1 LNS 1398, the limitation of six years was held to be inapplicable on the similar basis of the nature of Page 4 of 8 the account that was held to be a ‘running account’. The other case referred to by the Plaintiff is the case of Saujana Triangle Sdn Bhd v JMB Perdana Exclusive and Tropics [2017] 1 LNS 1035. In this case, the High Court decided, among others, that the duty to pay is mandatory under the Strata Management Act 2013, hence, the claim of this nature does not fall under section 6(d) of the Limitation Act 1953 because such claim is an enforcement of a statutory duty towards the maintenance and management charges under the Act 2013 and not to recover any sum recoverable under any written law as defined under section 6 (d) of the Limitation Act 1953. [8] The Defendant on the other hand referred to the case of Badan Pengurusan Bersama Sunrise Tower v Brijnandan Singh Gucharan Singh [2015] 1 LNS 860 that held such account is not a running account in view of the differences in the facts of the case and the dealing between the parties in a claim of the current nature and the referred case of Bajaj Textiles Ltd v. Gian Sing & Co. Ltd [1971] 2 MLJ 133, where the meaning of a ‘running account’ was defined. Therefore, the law on limitation was held to be relevant and applicable and hence, those claims made beyond six years are necessarily held to be statute barred. Page 5 of 8 The duty of the lower court and the principle of stare decisis [9] It is trite law that the lower courts are bound to follow the decisions of the higher courts as decided in various cases such as PP v. Datuk Tan Chang Swee (1980) 2 MLJ 276(FCJ), Haris Solid State v. Bruno Gentil Pereira (1996) 3 MLJ 489, Cooperative Central Bank v. Feyen Development (1997) 2 MLJ 829. It is understood that in case of two conflicting decisions of the higher courts, the courts lower in hierarchy are expected to follow the later decision as this is expected to represent the existing state of law. [10] The case referred to by the Defendant was decided in 2015 while those cases referred to by the Plaintiff were decided in 2009, 2016 and 2017 respectively. However, I was made to understand that the latest decided case of Saujana Triangle Sdn Bhd v JMB Perdana Exclusive and Tropics in 2017 is appealed against to the Court of Appeal and that the decision of the matter is still pending. [11] In view of the differences in approach and decision of the High Courts of coordinate jurisdiction, and while acknowledging the doctrine of stare decisis, the binding principle of the decision of the higher courts on the lower courts, I referred to the guide in Campbbell v. Campbell (1880) 5 Page 6 of 8 App. Cas. 787 that where two cases cannot be reconciled, ‘the more recent and the more consistent with general principles ought to prevail’. [12] In choosing between the conflicting decisions on the application of the statutory limitation to the claim of more than six years of this nature, I am more inclined to follow the decision in 2015 as referred to by the Defendant on the issue of defining the account as being ‘not a running account’ based on the following reasons:

All the four cases referred to by parties involves a claimant (the Plaintiff) which are either a Joint Management Body under the Strata Management Act 2013 or a Management Corporation under the Strata Titles Act 1985 which are both established by virtue of a statutory provision with stipulated statutory duties. The latest decided case in 2017 which held that section 6 (d) of the Limitation Act 1953 as inapplicable because the claim is not to recover any sum recoverable by virtue of any written law, but to enforce the statutory obligation under the Strata Management Act 2013 is arguably true in so far as only if the Plaintiff is the Joint Management Body established under the Act 2013. In the present case however, the Plaintiffis a developer, claiming expressly under the Sale and Purchase Agreement dated 10.9.1987. It is therefore difficult to Page 7 of 8 reconcile, how a developer can claim as possessing a statutory duty under the Act 2013 when it is never established by any provision of the Act. Hence, those cases as referred to by the Plaintiff, holding the inapplicability of the Limitation Act on the basis of an ‘enforcement of statutory duty’ is difficult to reconcile with the facts of this case when the claimant is a developer, claiming under the Sale and Purchase Agreement, which falls under the term ‘contract’ in the Limitation Act. Even if the Plaintiff argues that the claim is recoverable under the old legislation for maintenance charges, such claim falls under the definition of section 6(d) of the Limitation Act 1953 and is similarly limited to six years limitation period.

The Limitation Act 1953 is a law of general application. Neither the Act 1953, nor any other relevant statutes governing the strata management provides statutory exceptions to cases such as the present case which could be filed beyond six years period. The application of a common law principle in the interpretation of the nature of an account as being a running account or otherwise is not to override a clear statutory provision governing limitation of filing a claim. As it was held in the case of Campbell above, in deciding to Page 8 of 8 follow which decision, not only the more recent decision ought to prevail, but such decision must also be more consistent with general principles.

The meaning of a ‘running account’ in the case of Bajaj Textiles Ltd v. Gian Sing & Co. Ltd [1971] 2 MLJ 133 is inapplicable to the facts of the present case as the nature of the transaction or dealing between the parties are different. Unlike the facts of the present case, there were sale of goods transaction and friendly loans in the case of Bajaj Textiles Ltd where parties were engaged in transactions between one another and payments were made on various occasions to offset earlier or present debts. [13] Based on the foregoing reasons, and upon ruling that there are no triable issues, I have allowed the Plaintiff’s application for summary judgment under Order 14 Rule 1 of the Rules of Court 2012, but which is limited only to those amount of claim within the six years period, while the remaining sum exceeding the six years limitation is dismissed. Prepared by, Iriane bt Isabelo Magistrate, Magistrate Court 1, Selayang