Jmb Maskiara Residences v Intan Permata Properties Sdn Bhd (WA-22NCvC-371-07/2020)

This is an application by the Defendant under Order 33 rule 2 of the Rules of Court 2012 whereby the Court may order any question or issue arising in a cause or matter whether of fact or law or partly of fact and partly of law, and whether raised by pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

The Plaintiff’s (JMB Maskiara Residences) claim against the Defendant is in relation to the Defendant’s (Intan Permata Properties Sdn. Bhd.) failure to settle statutory charges including maintenance fees, sinking 25/04/2025 15:35:35 WA-22NCvC-371-07/2020 Kand. 101 2 fund and late payment interest charges for its respective parcels located within a stratified property (Maskiara Residences) amounting to RM1,070,461.15 as of 15.1.2020.

The Plaintiff is the management corporation of a stratified development (Maskiara Residences) in Taman Tun Dr. Ismail, Kuala Lumpur. The Plaintiff was incorporated on 22.6.2013 pursuant to the Building and Common Property (Maintenance and Management Act 2007 (Act 663). The Plaintiff is a statutory body charged with the duties and powers under the Strata Management Act 2013 to manage Maskiara Residences.

The Defendant is a company registered under the Companies Act 1965 and carries a business as a property investment company. The Defendant is the developer of Maskiara Residence and managed Maskiara Residence during the developer stage until 22.6.2013.

The brief grounds to support Enclosure 50 are as follows –

the Plaintiff is claiming for the purported outstanding maintenance fees, sinking funds, and late payment interests for 67 strata units at the Maskiara Residences amounting to RM1,070,461.15 as of 15.1.2020;

while the Defendant does not deny that there are outstanding maintenance fees and sinking funds owing to the Plaintiff, the Defendant disputes the quantum claimed by the Plaintiff in this suit for the following reasons –

part of the Plaintiff’s claim is time barred under Act 254;

(ii) part of the Plaintiff’s claim contravenes s. 8(2) of Act 757;

(iii) the Plaintiff has wrongfully claimed for maintenance fees and sinking funds in relation to units that have already been sold out and no longer belong to the Defendant;

(iv) the Plaintiff’s calculation for late payment charges is wrong; and

Whether the Plaintiff’s claim for the maintenance charges, sinking fund and late payment interest amounting to RM1,070,461.15 as at 15.1.2020 is based on a running account? In the event the answer is in the affirmative does Act 254 apply to running accounts?

Whether the Plaintiff’s claim prior to 15.1.2014 is barred by section 6

a determination of the Questions would save time and expenditure and would have the effect of substantially dispose of the matter without the necessity of a full trial. [6] The list of agreed questions as reflected in Enclosure 86 (exhibited in NCO-11) 3rd Affidavit in Reply of the Defendant filed by Tan Sri Dato’ Wira Ng Chen Onn outlined as follows: Issues Pertaining to the Applicability of the Limitation Act 1953.

(d) of Act 254? In the event the answer is in the affirmative, should the Plaintiff’s claim prior to 15.1.2014 be struck out with costs?

Whether section 105 (2) of Act 757 equally applies to proceedings in a court of competent jurisdiction? Issues Pertaining to SiFUS dated 4.4.2018.

Whether the Plaintiff is required to give effect to the share unit calculation for maintenance fees and sinking funds based on the SiFUS dated 4.4.2018 for the Plaintiff’s claim on or after 4.4.2018?

When will the calculation of share units based on SiFUS take effect?

Whether the following documents must be provided to the Plaintiff before the Plaintiff gives effect to the calculation of share units based on SiFUS –

SiFUS dated 4.4.2018;

(ii) Approved Shared Units of Each Parcel by the Director of Lands and Mines for the State of the Federal Territory pursuant to section 8 (2) of Act 757 (Jadual Strata); and

(iii) Certified Proposed Strata Plan. If the answer to Question (f) is in the affirmative, when were the documents be made available to the Plaintiff by the Defendant/Developer to enable the Plaintiff to give effect to the calculation of share units based on SiFUS?

Whether the Plaintiff’s claim which is based on the 2012 Share Unit Calculation for the amount RM524,333.12 as at March 2018, is valid and payable by the Defendant (prior to the issuance of the SiFUS dated 4.4.2018? Outstanding Charges Pertaining to the Defendant’s Sold Units.

Whether the Defendant is liable to pay for the outstanding charges in relation to the Plaintiff’s claim in relation to the 21 sold units as reflected below - APPENDIX A Unit No.

Unit P-16-03 2.

Unit XP-01-02 4.

Unit XN-13-06 6. Unit XN-03-07 7. Unit XN-05-06 8. Unit XN-02-03 9. Unit XN-13A-08 10. Unit XP-08-06 11.

Unit XP-10-03 13. Unit XN-02-07 14. Unit XP-10-05 15. Unit XP-B1-08 16. Unit XN-01-02 17.

Unit XP-11-05 19. Unit XN-12-07 20. Unit XN-01-06 21.

Does the outstanding charges pertaining the 21 sold units that is due to the Plaintiff only refers to late payment charges in relation to unsettled invoices by the Defendant prior to the sale of the 21 sold units?

Whether the Late Payment Interest charges (LPI) calculation was calculated based on 10% per annum on the outstanding statutory charges?

Whether the Defendant is liable to pay the LPI? [7] The respective parties filed their written submissions pursuant to the Notice of Application in Enclosure 50 as follows:

Defendant’s Submissions (Enclosure 63);

Plaintiff’s Submissions (Enclosure 67);

Plaintiff’s Submissions in Reply (Enclosure 70); and

Defendant’s Submissions in Reply (Enclosure 73). THE LAW UNDER ORDER 33 RULES OF COURT 2012 [8] The determination of the questions filed under O. 33 of the ROC 2012 would save time and expense and would have the effect of substantially dispose of the matter without the necessity of a full trial. [9] O. 33 r. 2 & r 5 of the Rules of Court 2012 relating to Mode of Trial reads as follows:

Time of trial of questions or issues (O 33 r 2) The Court may order any question or issue in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

Dismissal of action after decision of preliminary issue (O 33 r 5) If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just. [10] The High Court in the case of Thanaraj a/l Manikam & Ors v Lower Perak Tamil Co-operative Society [1997] 4 MLJ 82 at p. 88 decided that ideally the procedure for the defendant to adopt was to plead the issue in their statement of defence under O 18 r 11 of the RHC 1980. He could then follow up by an application under O 33 r 2 and if it appears to the court that the decision on the preliminary issue substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, the court may then act under O 33 r 5 to dismiss the plaintiff’s action. [11] In the case of Tenaga Nasional Bhd. v JVY HDD Technology Sdn. Bhd. [2012] 3 MLJ 705 at pp 713 & 714, the High Court decided that it was not inappropriate to consider and determine the two issues posed by the defendant even at this stage of the proceedings as follows: “[11] Thirdly, with regard to O 33, r 2 and r 5 of the RHC, its scope and usefulness had been acknowledged by the courts to be wide. It was in the genre of procedures open to the court, like for example O 14 A, which could be utilised to expeditiously, in appropriate situations, make a determination which would likely have the effect of substantially disposing the cause or matter before the court. The issues could be of pure law or of fact alone or even of mixed questions of fact and law. It could be mad at any stage of the proceedings. [12] The High Court in the case of Shanta Holdings Sdn. Bhd. v Aumkar Plantations Sdn. Bhd & Ors [2015] MLJU 2264, where the High Court allowed an application under Order 33 rule 2 of the ROC 2012 and held that the finding on the issue of limitation alone is a sufficient ground to dismiss the Plaintiff’s action without the need to go for full trial: “Order 33 r. 2 of the Rules of Court provides for a speedy and expeditious way, in appropriate cases of disposing of a cause or matter before the court because the determination of the preliminary issue is likely to have the effect of substantially disposed of the matter before the court (Langkawi R & D Academy Sdn Bhd v Ketua Setiausaha Kementerian Pertahanan Malaysia [2013] 3 CLJ 1006). Such disposal of the issues or question posed by the parties, if decided in their favour would bring an end to the suit which will eventually save costs and time, which would otherwise be expanded to deal with other issue of the case (Tan Ching Chong & Ors v Ekabina Sdn Bhd & Ors [2002] 3 CLJ 61). Order 33 in my opinion compliment the other provision in the Rule for speedy disposal of cases such as under Order 14, 14A and 18 of Rules of Court. … It must also be noted that the question posed by the applicant herein are actually pleaded in their statement of defence. As such the said issues/question of law referred to in this application would also form issues to be tried at the trial of this matter. Based on the aforesaid reason, I am of the opinion that this is a proper case under Order 33 Rules of Court. In particular my finding on the issue of limitation alone should be sufficient ground to dismiss the Plaintiff’s action without the proceed to go for full trial.” [13] It is trite law that to dispose of the matters under Order 33 ROC, there are principles to adhere whether the preliminary questions or issues raised in the cause or matter can be substantially disposed off which would call for the trial unnecessary as outlined by the High Court in the case of Azhar Harun v. Dato’ Muthukumar Ayarpadde & Ors [2022] 1 CLJ 390 in paragraph 38. SUBMISSIONS OF THE DEFENDANT Plaintiff’s claim for charges prior to 15.1.2014 is barred by limitation [14] Section 6(1) of the Limitation Act provides that – “6. (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 enforce a recognisance;

actions to enforce an award;

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.” [15] The Defendant submits that the Plaintiff sought to recover against the Defendant accrued between December 2011 until January 2020. The Plaintiff filed the current suit on 7.7.2020 which is more than 6 years after the cause of action for certain charges was said to have accrued. The Plaintiff’s claim for charges prior to 15.1.2024 was barred by the Limitation Act and ought to be struck off. The Defendant’s contention that the claims for management charges is not a running account based on the following reasons:

the total outstanding maintenance charges is not a single and undivided debt based on a “running account.” The Defendant is obliged to make payment to the Plaintiff every month for the maintenance charges and this creates a separate and distinct debt. (see Badan Pengurusan Bersama Sunrise Tower v. Brijnandan Singh Gurcharan Singh [2015] 1 LNS 860) [16] The High Court in the case of Leisure Farm Corporation v. Chow Tat Chow & Anor. [2019] 1 LNS 169 decided that there was no running account as the obligation to pay the charges arises every year and the cause of action arises each year when the obligation to pay is not met.

the last payment made by the Defendant was on 15.1.2014. There is no part payment made to this alleged running account within 6 years prior to this action. Hence, the Limitation Act is still applicable. (see Mascot Star Enterprise Sdn. Bhd. V. Perbadanan Bekalan Air Pulau Pinang [2021] MLJU 1830) Plaintiff’s claim for charges after 4.4.2018 contravenes s. 8 (2) of SMA

[17] The Defendant submits the maintenance fees and sinking funds after 4.4.2018 (which is the date of SiFUS) contravenes s. 8 (2) SMA which reads as follows: “(2) The allocated share units assigned to each parcel by the developer's licensed land surveyors or the share units for each parcel assigned pursuant to subsection (1) shall be deemed to be the allocated share units assigned to each parcel for the purpose of this Part until such time as the share units of each parcel have been approved by the Director pursuant to section 18 of the Strata Titles Act 1985.” (Emphasis added) [18] Section 18 Strata Titles Act 1985 (Act 318) reads as follows: “Every parcel shall have a share value as approved by the Director and expressed in whole numbers to be known as share units.” [19] Based on the above provisions, once SiFUS is issued, all charges must be based on the share units approved by the Director. As the SMA came into force on 1.6.2015, its provisions are effective and applicable to the Plaintiff effective the even date. The Plaintiff failed to calculate the charges post 4.4.2018 in accordance with the share units that have been approved based on the SiFUS. The Plaintiff has wrongfully claimed for the charges relating the units already sold to other owners. [20] The Plaintiff is also claiming for maintenance fees and charges where the Defendant is no longer the owner of the units. Therefore, the Defendant should not be liable to pay any outstanding fees and charges after the date of the sale and purchase agreements. The Plaintiff’s calculation of the late payment charges is disputed. [21] The calculation of the late payment charges by the Plaintiff is not based on the approved rate of 10% per annum. The amount of the late payment charges differs every month as reflected in the Enclosure 17 of the Common Bundle of Documents (Part C Vol. 1) for Unit N-15-01 (Enclosure 17 pp. 32 - 37) and Unit LG-01-01 (Enclosure 17 pp. 87 - 92). SUBMISSIONS OF THE PLAINTIFF [22] Both the Plaintiff and the Defendant had mutually agreed to the following as issues that can be disposed off pursuant to Order 33 ROC 2012:

whether the Plaintiff’s claim for maintenance charges and sinking funds charges including late payment interest charges before 15.1.2014 fall under the Limitation Act 1953 (Issue 1);

whether the Limitation Act 1953 is applicable to the Plaintiff’s claim for maintenance charges and sinking funds charges including late payment interest charges on Strata Management

whether the Plaintiff’s claim for maintenance charges and sinking funds charges including late payment interest charges on or after 4.4.2018 must follow the share units approved in the

whether the Defendant’s representative has informed SiFUS to the Plaintiff and/or whether the Plaintiff has knowledge and/or was informed about SiFUS (Issue 4);

when does maintenance charges and sinking funds charges be calculated based on SiFUS (Issue 5);

whether the Defendant has the obligation to pay the maintenance charges and sinking funds on units that has been sold and where the Defendant is no longer the parcel owner of the sold units (Issue 6); and

whether the late payment interest charges calculation is to follow the 10% per annum (Issue 7). [23] The Plaintiff’s claim on maintenance charges and sinking fund charges including the late payment interest charges are claims on running account, hence the Limitation Act 1953 does not apply to the claim by the Plaintiff. [24] The Developer having access to the SiFUS dated 4.4.2018 deliberately did not forward the same to the Plaintiff. The Plaintiff cannot change the share unit calculation based on the SiFUS without having the Strata Schedule that is certified by the Commissioner and obtaining as-built plains certified by an architect. [25] The Plaintiff’s obligation to issue invoices to the parcel owners are based on the list of parcel owners. The Plaintiff can only update the said list of parcel owners once the parcel owners update the change of parcel owners. The Defendant is liable to pay the outstanding statutory charges for the total of 67 units (including the 21 sold units). [26] The Plaintiff’s late payment interest calculation is proper and based on the 10% per annum in relation to all outstanding invoices that is due for payment. The calculation of late payment interest charges is based on the interest rate of 10% per annum, calculated on a daily basis, taking into account the number of days of payment delay by the unit owners and the late payment interest rate is recorded and updated automatically in the Plaintiff’s Accounting System. ANALYSIS & DECISION [27] In relation to Enclosure 50 where both parties agreed that the issues can be decided in this application and renders the full trial unnecessary, the above issues shall be dealt with as below: Issues Cluster 1. Issues 1 & 2 Limitation Issue 2. Issues 3,4 & 5 SiFUS Issue 3. Issue 6 Payment Responsibility Issue 4. Issue 7 LPI Issue [28] The Plaintiff is charged with the power of collecting maintenance and sinking fund charges from all parcel owners in Maskiara Residences including the Defendant pursuant to section 21 (2) SMA 2013. [29] The Defendant on the other hand is statutorily bound to make maintenance and sinking fund payment to the Plaintiff by virtue of section 25 SMA 2013. [30] The Defendant’s failure to make payment for maintenance, sinking fund charges and late payment interest over the years in respect of the said units amounted to RM 1,070,461.15 as at 15.1.2020 and the list of units and the outstanding statutory charges is tabulated in para. 41 of Enclosure 67. The Plaintiff sought to recover the outstanding statutory charges by virtue of section 34 SMA 2013 and pursuant to Regulation 20 Strata Management (Maintenance and Management) Regulations 2015 which provides as follows:

Notice to demand payment of sum due by purchaser or parcel owner Any written notice demanding payment of any sum due by a purchaser or parcel owner which is required to be served under subsection 34

of the Act shall be in Form 11. Issues 1 & 2 (Applicability of the Limitation Act 1953).

Whether the Plaintiff’s claim for the maintenance charges, sinking fund and late payment interest amounting to RM1,070,461.15 as at 15.1.2020 is based on a running account? In the event the answer is in the affirmative does Act 254 apply to running accounts?

Whether the Plaintiff’s claim prior to 15.1.2014 is barred by section 6

(d) of Act 254? In the event the answer is in the affirmative, should the Plaintiff’s claim prior to 15.1.2014 be struck out with costs? [31] Under section 6 of the Limitation Act 1953, the action founded on contract shall not be brought after the expiration of six years from the date when the cause of action accrues. [32] The Court of Appeal in the case of Brightvite Sdn. Bhd. v. Pantai Towers Management Corporation & Another Appeal [2019] 2 CLJ 439 at p. 453 decided as follows: “[44] The issue of limitation was also raised by the appellants. However, we would concur that the learned trial judge that the payment of management charges amounts to a running account such that limitation does not come into play.” [33] The Court of Appeal in the case of Ekuiti Setegap Sdn. Bhd. v. Plaza 393 Management Corp (established under The Strata Titles Act 1985) [2018] 4 MLJ 284 decided that the claim for unpaid charges owing by the parcel owners to the management corporation was not time barred under the Limitation Act as it based on a running account. The Court of Appeal decided at p. 453 as follows: “[78] As we had earlier found that the plaintiff’s claim is not barred by limitation for the reason that the maintenance charges are on a running account, the plaintiff would be at liberty to claim the arrears due from the defendant, at whatever rate determined by the general meeting, on a share unit basis.” [34] The High Court, in the case of Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v. Tam Cheng Meng [2018] 8 CLJ 361 at pp. 24, 44 & 45, decided as follows: [42] Section 33 of the SMA 2013 stipulates that a JMB is entitled to recover from a parcel owner the sum due to it in a court or in the Strata Management Tribunal (“tribunal”). Section 105 of the SMA 2013 expressly states that:

105.(2) For avoidance of doubt, the Limitation Act 1953 [Act 254] shall not apply to proceedings of the Tribunal. [43] The SMA 2013 is silent on whether the Limitation Act 1953 is similarly inapplicable to proceedings in court. As a JMB can choose to either file a claim in the tribunal or in a court of competent jurisdiction, I am of the view that it can be implied that the Limitation Act shall also not apply to proceedings of court. To interpret otherwise result in a discrepancy as to claims made at the tribunal and at court. [46] The SMA 2013’s stated purpose is “to provide for the proper maintenance and management of the buildings and common property, and or related matters”. In my view, it would defeat the SMA 2013’s stated purpose if the plaintiff’s claim for the outstanding service charges made at court is time-barred whereas if the plaintiff had made the claim at the tribunal, it would not be time-barred. [35] The Court finds that the Plaintiff’s claim for outstanding maintenance charges and sinking fund contribution and late payment interest amounting to RM1,070,461.15 as at 15.1.2020 is based on a running account and therefore are not time-barred by virtue of the same being claims which are based on a running account. [36] Based on the aforesaid reasons, the Limitation Act 1953 is not applicable to the Plaintiff’s claim. The Plaintiff’s claim is not barred by limitation for the reason that the maintenance charges are on a running account, hence the Plaintiff would be at liberty to claim the arrears due from the Defendant, at whatever rate determined on a share unit basis Issue 3, 4 & 5 (SiFUS Sijil Formula Unit Syer)

Whether the Plaintiff’s claim for maintenance charges and sinking fund charges including the late payment charges on or after 4.4.2018 must follow the share units approved in the Certificate of Share Unit (SiFUS) (Issue 3)?

Whether the Defendant’s representative has informed SiFUS to the Plaintiff and/or whether the Plaintiff has knowledge and/or was informed about SiFUS (Issue 4)?

When does maintenance charges and sinking funds charges be calculated based on SiFUS (Issue 5)? [37] The Court shall now deal with the issues raised pertaining to SiFUS. The Plaintiff has charged the Defendant based on the 2012 SU Calculation and the Plaintiff is entitled to the outstanding statutory charges of RM 1,070,461.15 as at 15.1.2020 reflected below: Unit No. Arrears (RM) 1 N-15-01 152,071.64 2 LG-01-01 115,964.80 3 P-16-03 61,097.60 4 P-16-05 61,097.60 5 N-LM-01 42,852.20 6 P-LM-01 42,852.20 7 N-12-05 41,173.05 8 N-13-05 41,173.05 9 N-13-03 41,171.40 10 P-16-08 36,667.25 11 P-16-07 36,492.30 12 P-15-01 36,486.70 13 XP-01-02 30,416.60 14 LG-01-02 29,903.47 15 P-16-01 21,729.10 16 XN-13-03A 19,570.35 17 XN-13-06 18,848.32 18 XN-03-07 10,712.39 19 XN-05-06 9,446.72 20 XN-02-03 8,758.90 21 XN-13A-08 8,406.85 22 XP-08-06 8,381.22 23 XP-08-03A 8,322.90 24 XP-10-03 6,662.03 25 LG-01-03 6,147.25 26 P-B1-03 5,967.87 27 XN-02-07 5,418.25 28 N-B1-16 5,207.30 29 N-B1-17 5,207.30 30 N-B1-20 5,207.30 31 P-B1-04 5,207.30 32 P-B1-07 5,207.30 33 P-B2-08 5,207.30 34 N-B1-19 4,796.05 35 N-B1-21 4,796.05 36 P-B1-06 4,796.05 37 P-B2-01 4,796.05 38 P-B2-02 4,796.05 39 P-B2-04 4,796.05 40 P-B2-03 4,796.05 41 P-B2-07 4,796.05 42 N-B1-26 4,413.16 43 N-B1-23 4,389.86 44 N-B1-24 4,389.86 45 N-B1-25 4,389.86 46 P-B1-09 4,389.86 47 P-B1-10 4,389.86 48 P-B1-11 4,389.86 49 P-B1-12 4,389.86 50 P-B1-13 4,389.86 51 P-B2-10 4,389.86 52 P-B2-11 4,389.86 53 P-B2-12 4,389.86 54 P-B1-01 3,986.46 55 XP-10-05 3,901.91 56 XP-B1-08 3,677.77 57 N-B1-15 3,596.60 58 P-B1-02 3,596.60 59 N-B1-18 3,197.62 60 P-B1-05 3,197.62 61 P-B2-06 3,197.62 62 XN-01-02 2,794.80 63 XN-09-03A 2,424.27 64 XP-11-05 2,375.00 65 XN-12-07 1,674.71 66 XN-01-06 1,462.61 67 XN-08-03 1,271.73 TOTAL 1,070,461.15 [38] The definition of ‘allocated share units’ provided in section 2 of the Building and Common Property (Management and Maintenance) Act 2007 (Act 663) are as follows: “allocated share units” means the share units to be assigned to each parcel by a developer’s licensed land surveyor.” [39] The definition of ‘allocated share units’ provided in section 2 of the Strata Management Act 2013 (Act 757) are as follows: “allocated share units” means the share units assigned to each parcel intended for subdivision by the developer’s licensed land surveyor or in a case where share units have not been so assigned, means the share units assigned under section 8.” [40] Needless to say, if there were no share units assigned to each parcel, only then the allocated share units assigned under section 8 of the SMA 2013 shall be deemed to be the allocated share units of each parcel for the purpose of this Part until such time as the share units of each parcel have been approved by the Director pursuant to section 18 of the Strata Titles Act 1985 (Act 318). [41] Section 18 of the Strata Titles Act 1985 (Act 318) reads as follows: Share units of parcels “Every parcel shall have a share value as approved by the Director of Lands and Mines and expressed in whole numbers to be known as share units.” [42] The Plaintiff had calculated and charged the maintenance and sinking fund based on the “Pengiraan Unit Syer Bagi Setiap Petak Berdasarkan Keluasan Petak” dated 9.8.2012 (Enclosure 53 pp 604 - 614). The Plaintiff has been assigned the share unit by the Defendant’s licensed land surveyor and as such there is no necessity for the Plaintiff to re calculate the share units in accordance to the formula set out in the First Schedule SMA 2013. [43] Based on the allocated share unit as per the 2012 SU Calculation, the Plaintiff issued invoices to all parcel owners at Maskiara Residences including the Defendant. The process of issuing invoices for maintenance and the sinking fund charges are done by the Plaintiff automatically through the Plaintiff’s computerised accounting system. The Plaintiff’s computerised accounting system will issue invoices which will then be sent to the Defendant. [44] The Plaintiff is unable to convene any Extraordinary General Meeting or Annual General Meeting to obtain approval from the parcel owners for any changes to the share unit calculation based on SiFUS without the relevant documents, including the Strata Schedule that is certified by the Commissioner and obtaining as-built plans certified by an Architect. In this respect, Tan Sri Dato’ Wira Ng Chen Oon the Chief Executive Officer of the Defendant Company sits as a representative of the Company in the Joint Management Committee at all material time. [45] By letter dated 24.5.2022 (Enclosure 53 p. 616), the Defendant enclosed the “Jadual Unit Syer” (share unit schedule) approved by the Federal Territory Kuala Lumpur Land & Mining Office categorically referred to the 2012 SU Calculation. The Defendant did not enclose the SiFUS Approval / Approved drawings. Further, the Plaintiff by letter dated 10.8.2022 (Enclosure 53 p.628) to the Defendant requested various documents from the same including register of all parcel owners of building or land intended for subdivision into parcels (Form 9 Act 757) and all approved plans, as-built plans and lands intended for subdivision into parcels and documents of allocated parking bays plan shown on an approved plan and listing relating to Maskiara Residences. [46] The Defendant failed to provide the SiFUS to the Plaintiff leaving the Plaintiff to give effect to the calculation of share units based on the 2012 SU Calculation as the allocated share units. The Plaintiff’s claim which was based on the 2012 SU Calculation is therefore allowed. [47] The Court shall not deal with the submissions of the Plaintiff that there is overwhelming evidence to show the mala fide intention of the Defendant/Developer in not producing the SiFUS during the Court proceedings in relation to the 4 Magistrate Court’s cases including the relevant appeals at the Kuala Lumpur High Court (see para 44 of Enclosure 67) as these cases do not involve the same parties and therefore not the subject matter of this case.

Whether the Defendant has the obligation to pay the maintenance charges and sinking funds on units that has been sold and where the Defendant is no longer the parcel owner of the sold units. [48] The list of the sold units and the respective dates of the Sale & Purchase Agreements (SPA) are as below: Unit No. Date of SPA 1 P-16-03 28.12.2011 2 P-16-05 28.12.2011 3 XP-01-02 23.10.2018 4

23.

3.2017 5 XN-13-06 23.3.2017 6 XN-03-07 21.5.2016 7 XN-05-06 20.12.2013 8 XN-2-03 28.11.2013 9 XN-13A-08 14.5.2015 10

24.

5.2013 12 XP-10-03 10.1.2015 13 XN-02-7 27.11.2015 14 XP-10-05 21.5.2016 15 XP-B1-08 1.10.2017 16

1.

4.2016 18 XP-11-05 15.12.2016 19 XN-12-07 15.1.2017 20 XN-01-06 23.12.2013 21 XN-08-03 10.1.2014 [49] The Plaintiff in their submissions (para. 36) conceded that in relation to the 21 sold units, Unit. No. P-16-03 and Unit No. P-16-05 ought to be disregarded since the Plaintiff is pursuing the relevant outstanding charges against the new owners. Based on the above, the Defendant is liable to pay for the late payment charges in relation to remaining 19 units sold (Nos. 3 to 21) since the said late payment charges are related to the outstanding statutory charges prior to the sale of these units. [50] In the circumstances, the Court is of the considered view that the Plaintiff is entitled to claim the Outstanding Statutory Charges against the Defendant even though the 19 units of the said parcels were sold to new purchasers. Therefore, the Defendant/Developer is liable to pay the maintenance charges and sinking funds on units that has been sold and where the Defendant is no longer the parcel owner of the sold units.

whether the late payment interest charges calculation is to follow the 10% per annum. [51] Section 25(6)(b) of the SMA 2013 reads as follows: “(6) If any sum remains unpaid by the parcel owner in respect of his parcel at the expiry of the period of fourteen days specified in subsection (5)-

the joint management body may recover the sum in the manner set out in section 34; and

the parcel owner shall pay interest at the rate to be determined by the joint management body under paragraph 19(1)(d) but such interest shall not exceed ten per cent per annum.” [52] To regurgitate, the process of issuing invoices for maintenance and the sinking fund charges are done by the Plaintiff automatically through the Plaintiff’s computerised accounting system (para 42 supra). [53] The late payment interest rate is automatically updated and recorded in the account statements within the Accounting System. The calculation of late payment interest charges is based on the interest rate of 10% per annum, calculated on a daily basis, taking into account the number of days of payment delay by the unit owners. [54] The Plaintiff uses a computerized accounting software system called UBS Building Services and Maintenance System which generates invoices, statements of account, and late payment interest automatically based on the information entered into the said Accounting System. Henceforth, the LPI calculation which is 10% per annum is proper and is therefore allowed. Conclusion [55] I have read and perused the Affidavits in Support, Affidavits in Reply, Written Submissions & the Authorities filed by both parties. I have also considered the submissions and arguments put forward by both parties for the Court’s deliberation. [56] The summary of my findings are as follows:

The Plaintiff’s claim is not barred by limitation.

The Plaintiff’s claim based on the 2012 SU Calculation is allowed.

The Defendant is liable to pay the outstanding charges with regards to the 19 sold units.

The LPI calculation which is 10% per annum is allowed. [57] Based on the aforesaid reasons, the Plaintiff’s claims are allowed with costs in the sum of RM20,000.00 (subject to allocatur). Dated this 21st day of February 2025. Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court (Civil NCvC 13) Kuala Lumpur COUNSEL Solicitors for the Plaintiff Mr. R. Thanasegar (Ms. Banusha Narenthiran with him) Messrs Chambers of Firdaus Petaling Jaya Solicitors for the Defendant Ms. Ho Zhi Vee Messrs Wong Kian Kheong Kuala Lumpur.