Mainland Symbol Sdn Bhd v 1. ) Perbadanan Pengurusan Puteri Park Plaza (BA-24NCvC-2559-12/2023)

PERBADANAN PENGURUSAN PUTERI PARK PLAZA

ALL STARS PROPERTY MANAGEMENT SDN. BHD. [1479999-T]

PESURUHJAYA BANGUNAN AMPANG JAYA …DEFENDAN-DEFENDAN JUDGMENT Introduction [1] The present suit concerns a dispute between a parcel owner in a commercial complex and the Management Corporation of the said commercial complex. [2] The crux of the Plaintiff’s complaint, as a parcel owner, is that it was unlawfully deprived of its statutory rights to attend, speak and vote at an Extraordinary General Meeting (“EGM”) that had taken place. As a result, the Plaintiff in its Originating Summons prayed for, inter alia, that the EGM be declared as null and void and that a new EGM be held. The Central Issue [3] The fundamental issue for determination by this Court in the present suit is whether the EGM had been carried out in accordance with the provisions, rules and regulations that apply to the present case. Put differently, the question is whether the Plaintiff was deprived of its statutory rights to attend, speak and vote at the EGM as guaranteed under the relevant legislation. The Parties and the Background Facts [4] The Plaintiff, Mainland Symbol Sdn Bhd, is at all material times the registered, legal and beneficial owner of a Basement Car Park with the roof-top as accessory parcel in a commercial complex known as Puteri Park Plaza. [5] The First Defendant, Perbadanan Pengurusan Puteri Park Plaza, is the Management Corporation formed under the Strata Titles Act 1985 and/or the Strata Management Act 2013. It is responsible for the management of the stratified commercial complex known as Puteri Park Plaza. [6] The Second Defendant is All Stars Property Management Sdn Bhd. It is a Property Management Company. It was engaged by the First Defendant to conduct the EGM of the Management Corporation and has since been appointed as the Property Manager for Puteri Park Plaza. [7] The Third Defendant is the Pesuruhjaya Bangunan Ampang Jaya. As the Commissioner of Buildings for Ampang Jaya it is a statutory body responsible for implementation and enforcement of the provisions of the Strata Management Act 2013. [8] The First Defendant had conducted its 8th Annual General Meeting on 19 May, 2023. As a result of complaints of irregularities, non-compliances and breaches of the provisions of the Strata Management Act 2013 made to the Third Defendant, a directive was made by the Third Defendant to the First Defendant to convene an EGM to regularise the 8th Annual General Meeting. [9] The Second Defendant was engaged by the First Defendant to convene and conduct this EGM, which was held on 20 December, 2023. The Present Suit [10] The present Originating Summons relate to the conduct of the EGM. In its prayers, the Plaintiff is seeking:

Deklarasi bahawa Mesyuarat Agung Luarbiasa Perbadanan Pengurusan Puteri Park Plaza (SEL: 3802/10) yang dijalankan pada 20-12-2023 adalah tidak sah dan terbatal;

Deklarasi bahawa semua keputusan, penetapan dan/atau resolusi yang dicadangkan dan/atau diluluskan dalam Mesyuarat Agung Luarbiasa Perbadanan Pengurusan Puteri Park Plaza (SEL: 3802/10) yang dijalankan pada 20-12-2023 adalah tidak sah dan terbatal;

Injunksi mengalang Defendan Pertama, melalui diri mereka sendiri, pengkhidmat-pengkhidmat, ejen-ejen, pekerja-pekerja ataupun sebaliknya dari mengambil sebarang langkah termasuk tetapi tidak dihadkan kepada yang berikut:-

Bertindak atas apa-apa keputusan, penetapan dan/atau resolusi yang dicadangkan dan/atau diluluskan dalam Mesyuarat Agung Luarbiasa Defendan Pertama tersebut;

(ii) Menyekat dan/atau menghalang Plaintif dari menghadiri dan/atau mengundi dalam mana-mana Mesyuarat Agung Tahunan dan/atau Mesyuarat Agung Luarbiasa selagi Plaintif tidak mempunyai sebarang hutang dan/atau tunggakan dalam pembayaran caj penyenggaraan dan/atau Sumbangan kepada Kumpulan Wang Penjelas;

(iii) Menyekat dan/atau menghalang Plaintif dalam apa cara sekalipun dari menikmati petak dan/atau petak aksesori milikan Plaintif di Plaza Puteri Park selagi Plaintif tidak mempunyai sebarang hutang dan/atau tunggakan dalam pembayaran caj penyenggaraan dan/atau Sumbangan kepada Kumpulan Wang Penjelas;

Mengambil sebarang tindakan lanjutan terhadap Plaintif berkenaan caj penyenggaraan dan/atau sumbangan kepada Kumpulan Wang Penjelas selagi Tuntutan di Tribunal Pengurusan Strata di Putrajaya No. Tuntutan: TPS/B-8051- 12/2023 belum diputuskan;

Defendan Pertama hendaklah mengadakan Mesyuarat Agung Luarbiasa dalam masa satu (1) bulan dari tarikh Perintah Mahkamah yang Mulia ini dan Plaintif dibenarkan hadir dan mengundi dalam Mesyuarat Agung Luarbiasa yang bakal diadakan;

Sementara itu, Jawatankuasa yang lama hendaklah terus memegang jawatan sehingga Mesyuarat Agung Luarbiasa diadakan;

Mesyuarat Agung Luarbiasa Defendan Pertama hendaklah dipantau oleh Defendan Ketiga sebagai pihak yang bertanggungjawab untuk pentadbiran Akta Pengurusan Strata 2013;

Defendan Kedua dilarang dari mengendalikan Mesyuarat Agung Luarbiasa yang bakal dijalankan bagi Defendan

Kos hendaklah ditanggung sepenuhnya oleh Defendan Pertama dan/atau Defendan Kedua; dan

Perintah-Perintah dan/atau relif-relif selanjutnya yang Mahkamah yang Mulia ini anggap patut, adil dan suai manfaat. The Parties’ Contentions [11] It was not disputed that the Plaintiff was allowed to attend the EGM. It was also not disputed that the Plaintiff was not allowed to speak and vote at the EGM. It was on the basis of the latter that the Plaintiff has filed the present Originating Summons action. [12] The position taken by the Plaintiff is that the right to attend and vote at General Meetings is a fundamental right of a parcel proprietor. With the exception of money due and payable to the Management Corporation, it pointed out that there is no other provision in the Strata Management Act 2013 which denies a proprietor the right to attend and vote at General Meetings. It drew this Courts attention to Regulation 21(1) of the Second Schedule of the Strata Management Act 2013 which states that: Each proprietor who is not a co-proprietor shall have one vote in respect of each parcel on a show of hands and, on a poll shall have such number of votes as that corresponding with the number of share units or provisional share units attached to his parcel or provisional block. [13] According to the Plaintiff, it has paid up all maintenance charges and contribution to the sinking fund and the Plaintiff does not owe any monies to the Management Corporation in respect of its parcel. Hence, it was the Plaintiff’s submission that the reliance by the First Defendant and the Second Defendant on Regulation 21(2) of the Second Schedule of the Strata Management Act 2013 was misconceived. That relevant Regulation provides as follows: A proprietor shall not be entitled to vote if, on the seventh day before the date of the meeting all, or any part of the Charges or contribution to the Sinking Fund, or any other money due and payable to the management corporation in respect of his parcel are in arrears. [14] The Plaintiff also cited Muhamad Nazri Muhamad v JMB Menara Rajawali & Anor [2019] 7 AMR 422; [2019] 10 CLJ 547; [2020] 3 MLJ 645; [2020] 4 MLRA 288, MTrustee Bhd v Tribunal PengurusanStrata Di Putrajaya & Ors [2021] AMEJ 1027; [2021] CLJU 1051; [2021] MLJU 1226; [2021] MLRHU 899 and Tropicana Macalister Avenue (Penang) Sdn Bhd v Badan Pengurusan Bersama Tropicana 218 Macalister [2023] 7 AMR 407; [2023] CLJU 1554; [2023] MLJU 1728; [2023] MLRHU 1340 to support its above contention. [15] The Plaintiff further submitted that the List of Eligible Voters ought to have been put up on the Notice Board at least 48 hours prior to the EGM but in the present case, was only put up some 24 hours prior to the EGM. Accordingly, the Plaintiff argued that there was non-compliance with Regulation 14 of the Second Schedule of the Strata Management Act 2013 which reads as follows: The Management Committee of the Management Corporation shall put up a list of the names of the persons who are entitled to vote at a general meeting on the notice board at least forty-eight hours before the general meeting. [16] The Second and Third Defendants acknowledged that the 8th Annual General Meeting was declared void by the Third Defendant but they attributed the “fault” to the “Plaintiff-controlled-property-manager”. The gist of the Second and Third Defendants’ contention is that an EGM had indeed been held and had been validated by the Third Defendant on 13 March, 2024. According to the Second and Third Defendants, the Plaintiff’s prayers in its Originating Summons amount to a “second attempt in invalidating the First Defendant’s 8th Annual General Meeting”. [17] Crucially, the First and Second Defendants submitted that the Plaintiff is still in arrears in respect of its parcel and hence was not entitled to speak and vote at the EGM. In other words, there was no contravention of the Plaintiff’s statutory rights. The Applicable Law [18] For purposes of the present matter before this Court, a number of provisions of the Strata Management Act 2013 are apposite. These include section 52(4), 60(4), 61(4) and 78(1). Equally pertinent are Regulations 21(1) and (2) of the Second Schedule of the Strata Management Act 2013 and Regulation 31 of the Strata Management (Maintenance and Management) Regulations 2015. [19] Section 52(4) of the Strata Management Act 2013 provides: Section 52 Proprietors to pay Charges, and contribution to the sinking fund

The proprietor shall, within fourteen days of receiving a notice from the developer, pay the Charges, and contribution to the sinking fund, to the management corporation and if any sum remains unpaid by the proprietor at the expiry of the period of fourteen days, the developer may in the name of the management corporation recover the sum in the manner set out in section 78. while sections 60(4), 61(4) and 78 of the Strata Management Act 2013 read as follows: Section 60 Maintenance account of the management corporation

Any Charges imposed under subsection (3) in respect of a parcel shall be due and payable on the passing of that resolution to that effect by the management corporation and in accordance with the terms of that resolution, and may be recovered in the manner set out in section 78 from the proprietor of, or his successor-in-title to, the parcel, or the person for the time being receiving the rent of the parcel, whether as an agent or a trustee or a receiver, and who would receive the same if the parcel were let to a tenant. Section 61 Sinking fund account of the management corporation

Any contribution to the sinking fund imposed under subsection (3) in respect of a parcel shall be due and payable on the passing of a resolution to that effect by the management corporation and in accordance with the terms of that resolution, and may be recovered in the manner set out in section 78 from a proprietor of, or his successor-in-title to, the parcel, or the person for the time being receiving the rent of the parcel, whether as an agent or a trustee or a receiver, and who would receive the same if the parcel were let to a tenant. Section 78 Procedure for recovery of sums due

Where a sum becomes recoverable by a management corporation by virtue of subsection 52(4), 60(4), 60(5), 61(4), 61(5) or 77(3), or by a subsidiary management corporation by virtue of subsection 68(4), from a proprietor under this Act, the management corporation or the subsidiary management corporation, as the case may be, may serve on the proprietor a written notice demanding payment of the sum due within the period as may be specified in the notice which shall not be less than two weeks from the date of service of the notice. [20] Regulations 21(1) and (2) of the Second Schedule of the Strata Management Act 2013 have been produced in paragraphs [12] and [13] above and Regulation 31 of the Strata Management (Maintenance and Management) Regulations 2015 states as follows: 31 Notice to demand payment of sum due by proprietor Any written notice demanding payment of any sum due by a proprietor which is required to be served under subsection 78(1) of the Act shall be in Form 20. Analyses and Decision of this Court [21] The purpose of the holding of the EGM, as directed by the Third Defendant, is to regularise the earlier 8th Annual General Meeting of the Management Corporation of Puteri Park Plaza. It should be emphasized that issues pertaining to the irregularities, non-compliances and breaches of the provisions of the Strata Management Act 2013 that do not relate to the holding of the 8th Annual General Meeting and the EGM are not of concern to this Court in the present suit. [22] Likewise, the matters considered by this Court in the granting of the first ex-parte injunction, an ad interim injunction, and the subsequent setting aside of the ex-parte and ad interim injunctions are no longer relevant for purposes of the present proceedings. This Court is only concerned with the principal issue outlined in paragraph [3] above. [23] The Plaintiff on the one hand, and the First Defendant together with the Second Defendant on the other hand, have hurled allegations of wrongdoings against one another. One such example would be allegations of mismanagement by the former property management company and complicity by the present property management company supposedly controlled by the former and latter respectively. These, together with many other serious allegations raised by the parties in the present proceedings, are irrelevant for purposes of determining the core issue in this action. [24] In examining the issue of whether there had been non-compliance with the relevant governing provisions and rules as outlined in paragraphs [18] – [20] above, there is merit in the argument that the provisions in sections 60(4) and 61(4) read together with Regulation 31 of the Strata Management (Maintenance and Management) Regulations 2015 have not been complied with. This raises the presumption that no sum is due and payable by the Plaintiff. [25] One of the key business or decision to be carried out and made at the 8th Annual General Meeting of the First Defendant is the election of its Committee Members. In Abdul Halim bin Mansor (Dalam Kapasiti Beliau Sebagai President Kongres Kesatuan Sekerja Malaysia) v National Union of Bank Employees & Anor, Abdul Halim bin Mansor [2020] CLJU 91; [2020] MLJU 256, the Court of Appeal underscored the importance and integrity of an election process. In that case, the election process had to comply with the scheme of the MTUC Constitution. In the present case, the conduct of any general meetings and election process must comply with the scheme of the Strata Management Act 2013 and its Regulations. [26] This Court is satisfied that the Plaintiff had been denied its statutory right to vote at the EGM. The fact that the EGM had indeed taken place and was certified by the Third Defendant as having been conducted does not mean that its validity cannot be challenged and questioned by this Court. [27] The First and Second Defendants had also raised another point, that is, the Plaintiff has been paying a lower rate and thus rendering it to be in arrears. This Court believes that the First and Second Defendants are justified in questioning the Plaintiff's payment of a different and much lower rate. They are entitled to take the appropriate and necessary measures to remedy the situation. Until such a state of affairs is formally addressed and resolved, the Plaintiff is entitled to invoke its statutory rights to be present and to vote at any of the general meetings. [28] This Court has also considered the submission by the First and Second Defendants that the Plaintiff has not exhausted its remedies by exercising its rights as provided by the Strata Management Act 2013, that is, to seek redress and resolve their issues before the Strata Management Tribunal, prior to the commencement of the present action and the proper mode would be by way of the judicial review procedure. The following cases were cited by the Plaintiff, namely, Badan Pengurusan Bersama Mahkota Parade v Bangunan Majlis Bandaraya Melaka Bersejarah [2016] CLJU 1080; [2016] MLJU 610; [2016] MLRHU 898, Foo Yau Lim & Ors v Dato’ Han Joke Kwang [2014] 1 AMR 697; [2014] 2 MLJ 692; [2014] 4 MLRA 753, Robin Tan Pang Heng v Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2010] 4 MLJ 771; [2010] 1 MLRA 478 and Subramaniam v Tan Lee Leng & Ors [1980] 1 MLJ 171; [1971] 1 MLRH 29. [29] Having considered the provision in section 106 of the Strata Management Act 2013, the above authorities and the factual matrix of this case, this Court is of the considered view that it has the jurisdiction to hear the present suit and the mode of Originating Summons as utilised by the Plaintiff is the proper mode of originating process. [30] In view of the above findings, order in terms is granted as per the prayers in paragraphs (b) to (f), (h) and (k) of Enclosure 1. The time period of “satu (1) bulan” in prayer (f) is substituted with “tiga (3) bulan”. In the interim, the Third Defendant shall appoint an Administrator for the First Defendant to run its affairs and to conduct the EGM. This appointment shall be for a period until a new Committee for the First Defendant is duly appointed at the EGM. [31] In the overall scheme of things, this Court considers it as fair that parties are to bear their own costs. Dated: 29 July 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Patrick Samuel a/l Joseph Sebastian for the Plaintiff (Messrs. The Law Office of Patrick Samuel) Vinod a/l R. Kamalanathan for the First and Second Defendants (Messrs. Vinod Kamalanathan & Associates) Nur Adilah binti Kamarzaman for the Third Defendant (Majlis Perbadaran Ampang Jaya)