Maisson Management Corporation v Newfields Property Management Sdn Bhd (WA-22NCvC-429-06/2021)

1.1 On 24.01.2024, after hearing parties, on the balance of probabilities, I found merit in this application, and it was allowed with an order that costs be in the cause. 30 1.2 Aggrieved, the defendant appealed against my decision, and these are my reasons. 22/03/2024 08:56:39 Kand. 47 S/N 9gNnucx3v0iMdgEnaBlS9A SALIENT FACTS [2] THE PARTIES: 35 2.1 The plaintiff (Maisson Residence JMB) is a management body established on 14.10.2017:

Under the Strata Management Act 2013 (SMA), to manage and maintain the Maisson Ara Damansara mixed development pending the formation of the Management Corporation.

From the facts, the MC would come into existence after opening the book of strata registers for the said mixed development on 11.09.2019, bearing number 7669.

The Maisson Management Corporation (MMC), by law, came into existence on 11.09.2019.

The developer for the development had given notice to convene the first annual general meeting (AGM) of the MMC on 15.01.2022 before the MMC can take over the role of maintaining the said mixed development from the plaintiff.

By law, three months after the holding of the MMC's first AGM, 50 the plaintiff is automatically dissolved, and the MMC takes over the plaintiff’s role in the said mixed development (section 27 SMA 2013).

2.2 The defendant, a local company, is a parcel owner of Building M1, 55 Level 1, Parcel 1, and its accessory parcels (A1, A2, A3, A4 and A2374), known as Maisson by The Park ("Commercial Centre"), that is part of the Maisson mixed development (Ara Damansara Development) which also comprises 1,247 serviced apartment units known as Maisson Residence: 60 S/N 9gNnucx3v0iMdgEnaBlS9A

The defendant is a sister company of the developer of the Ara Damansara Development.

The defendant and the developer share a common director (Seow Voon Ping) and secretary (Wong Chui Fui). They are wholly owned subsidiaries of Newfileds Land Sdn Bhd (Parent 65 Company). [3] SUBJECT MATTER OF DISPUTE:

3.1 Vacant Possession of the Commercial Centre was delivered to the defendant on 11.08.2016. 70 3.2 The plaintiff is suing the defendant for RM2,217,857.41 outstanding charges (maintenance charges and sinking fund contribution) accruing from the Commercial Centre since 11.08.2016, which they refuse to pay to date and deny that there is any need to pay.

3.3 On 24.2.2021, the plaintiff issued a written demand for the outstanding 75 charges under section 34 SMA 2013.

3.4 The defendant had also taken exclusive possession of common properties (the Genset Room and the MDF Room as their own) and denied the plaintiff access.

3.5 The plaintiff prays that an order by the Court is granted to compel 80 payment of the outstanding charges and the return of the common properties taken by the defendant.

3.6 The present suit against the defendant:

Though filed on 15.06.2021, which is after the MMC came into existence on 11.09.2019, however 85

The MMC was still not operative to assume or take over the role of the plaintiff until after the first AGM scheduled by the developer S/N 9gNnucx3v0iMdgEnaBlS9A on 15.01.2022 (i.e., more than 2 ½ years after the MMC came into existence by law after the book of strata registers for the said mixed development was opened on 11.09.2019). 90 [4] ENCLOSURE 21:

4.1 The plaintiff filed enclosure 21 on 11.02.2022.

4.2 They seek under O.15 r.6(2), O.20 r.5(1), and O.92 r.4 RC 2012 to substitute the plaintiff “Maisson Residence JMB” with “Maisson 95 Management Corporation” (MMC) to continue with the present suit since the MMC had officially assumed and taken over the role of the plaintiff over the said mixed development after the first AGM of the MMC on 15.01.2022, that includes prosecuting this suit to its targeted conclusion after the first AGM of the MMC on 15.01.2022. 100 4.3 Three months after the first AGM of MMC on 15.1.2022, the plaintiff/Maisson Residence JMB would be dissolved by law (14.04.2022). The plaintiff had filed this enclosure 21 two months before its dissolution.

4.4 The MMC has no objection to being made the plaintiff to continue 105 prosecuting the present suit against the defendant via the passing of a Circular Resolution of the MMC dated 30.1.2022: L25, exhibit JT-2, pp.12-14.

4.5 The decision: On 24.01.2024, after perusing all cause papers and the submissions of the parties, on the balance of probabilities, I found 110 merit in the plaintiff’s application, enclosure 21 was allowed with costs in the cause. S/N 9gNnucx3v0iMdgEnaBlS9A THE PARTIES ARGUMENTS 115 [5] I have duly observed and considered all-cause papers, the evidence adduced and the parties' arguments in canvassing for their positions in enclosure 21 above. 120 [6] THE PLAINTIFF’S SUBMISSIONS In canvassing for enclosure 21, the plaintiff, in a nutshell, argued:

6.1 The application in enclosure 21 is bona fide and necessary for the continuation of the present suit:

It was the developer's (sister company to the defendant) failure 125 to comply with the law that made this application necessary:

The MMC was established earlier on 11.09.2019 but was not operative until after the first AGM on 15.01.2022, where the office bearers would be elected and appointed, opening the maintenance account and the sinking fund account and then assume the role and 130 function of Maisson Residence JMB/plaintiff over the mixed development within one month after the first AGM (s.27(2) SMA).

The developer should have held this first AGM earlier when the mixed development achieved 25% of parcel proprietors (s.46(2) SMA). Records showed that 25% was achieved in February 2021. 135 That was when the initial period under the SMA ended.

However, the developer failed to do that and instead held the first MMC AGM on 15.01.2022 (2 ½ years after 11.09.2019).

The developer is duty-bound to convene the MMC's first AGM within one month of the expiration of the initial period (s.57 SMA). By right, 140 the MMC's first AGM should have been convened in March 2021, one month after achieving the 25% threshold.

During this initial period, pending the handover, Maisson Residence JMB/plaintiff continues to manage and maintain the strata scheme until it is handed over to MMC after the first AGM.

Consequently, Maisson Residence JMB/plaintiff, in the discharge of its duty, filed the present suit against the defendant on 15.06.2021 to recover arrears in maintenance charges and contribution to the sinking fund as required. S/N 9gNnucx3v0iMdgEnaBlS9A

As the SMA 2013 provides, had the developer convened the MMC's 150 first AGM in March 2021, the MMC itself could have filed the present action.

The plaintiff cannot be faulted for the developer's error/omission.

Now, under s.27 SMA 2013, the plaintiff will be automatically dissolved by law three months (14.04.2022) after the MMC's first 155 AGM.

Hence, enclosure 21 was filed on 11.02.2022 while the plaintiff was still in existence, before the targeted dissolution of the plaintiff on 14.04.2022. 160 In the circumstances, the plaintiff has the required locus to file this action against the defendant, as the law requires. It is the guardian of the common property pending the handover to the MC. Any claims against third parties concerning common properties can only be brought by the JMB: Syarikat East Coast & Ors v Makna 165 Mujur Sdn Bhd & Ors [2020] CLJ 539, CA.

By allowing this amendment, the real question in dispute between the parties will be fully canvassed and ventilated before the Court. It causes no injustice or prejudice to the defendant. The defendant 170 would still have the full opportunity to challenge and deny the present suit if they have merits. China Orient Asset Management v Alexma Corporation Sdn Bhd [2017] 1 LNS 1558 was cited in support: “Prejudice simply means that if the amendment is allowed, the party affected 175 will be unable to pursue or defend the suit, for example, where the material evidence necessary to pursue or defend the suit, which is necessitated by the amendment, is lost or no longer available”.

In Dato ’Tan Heng Chew v Tan Kim Hor [2009] 5 MLJ 790 was 180 also cited, which held that the plaintiff's position must be balanced with the defendant's interest. Amendments should be allowed if S/N 9gNnucx3v0iMdgEnaBlS9A the actual issues in controversy between the parties can be addressed. In the present case, the defendant failed to show the Court compellingly how it would be prejudiced.

Allowing this proposed amendment doesn’t alter the nature of the present suit: Abdul Johari bin Abdul Rahman v Lim How Chong & Ors [1997] 1 MLJ 629, CA. 190 6.2 The Court of Appeal in Park Access Sdn Bhd & 2 Ors v Badan Pengurusan Bersama Avenue [2018] 1 LNS 711, CA ruled that a JMB has no locus standi to commence a proceeding on the coming into existence of the MC. To allow so, would contravene s.39 and 42(1) of the Strata Title Act 1985 (STA):

However, since the above decision in 2018, ss.39 and 42 of the STA have been repealed by the Strata Titles (Amendment) Act 2013.

In Malaysia, the current principal laws governing strata properties 200 are the Strata Titles Act 1987 (STA), Strata Management Act 2013 (SMA), and the Housing Development (Control & Licensing) Act 1966 (HDA).

Under the new STA, the words on the coming into existence of the Management Corporation have been removed. It is no longer 205 upon the MC coming into existence.

It has been made clear in the new scheme:

That the MC would be registered as the proprietor of the common property and hold custody of the titles for common property (s.17B(1) STA 1987). 210 S/N 9gNnucx3v0iMdgEnaBlS9A

The MC is empowered to deal with the common property as permitted under the National Land Code (s.17B(2) STA 1987) Provided the MC obtains the unanimous resolution of the parcel proprietors (s.17B(3)(a) STA 1987), Save for the power to transfer, create charge or lien (s.17B(3)(b) STA 1987).

The MC cannot transfer or create a charge or lien over common property.

The plaintiff argued that the deliberate removal of the words “on coming into existence” suggests that the legislature intends for 220 the JMB’s existence and functionality until it hands over affairs to the MC before its dissolution three months after holding the MC's first AGM.

The plaintiff also argued that the legislature would have used more explicit words if it had intended that from the opening of the strata 225 title register with the conferment of powers on the MC under s.59 SMA 2013, the JMB would automatically lose all the powers conferred on it by the SMA 2013.

As the Federal Court had observed in Innab Salil & Ors v Verve Suites Mont’ Kiara Management Corp [2020] 12 MLJ 16, FC 230 that the SMA 2013 is a social legislation, its provisions should be construed liberally in favour of the JMB. The Right Honourable Tun Tengku Maimun, Chief Justice in the said case observed that: “The SMA 2013 is, without doubt, a social legislation. It was passed to facilitate the affairs of strata living for the good of the community or owners of 235 the strata title. Being social, the provisions of the SMA 2013, which safeguard community interests, ought to receive a liberal interpretation and not a restricted or rigid one. Accordingly, where two different interpretations are possible, it is the one which favours the interest of the community over the interest of the individual that is to be preferred”. 240 S/N 9gNnucx3v0iMdgEnaBlS9A

6.3 In the circumstances:

Though the MMC came into existence upon opening the strata register on 11.09.2019, it remained inoperative/dormant until 2 ½ 245 half years later when the developer called for the first AGM of the MMC on 15.01.2022.

During that period of 2 ½ years, the plaintiff continued to discharge its duties over the mixed development as empowered by the SMA

It collected maintenance charges and sinking fund 250 contributions from all parcel owners as the law requires.

At that time, the plaintiff was undoubtedly the rightful party to manage and protect the common properties of the said mixed development.

The plaintiff further argued that it would have been absurd to argue 255 that upon the opening of the strata register (11.09.2019), the plaintiff’s powers to deal with the common properties disappeared forthwith while the MMC remained dormant for 2 ½ years since its coming into existence due to the developer's failure to call for the first AGM of the MMC in a timely manner.

6.4 On the locus standi to act, the plaintiff argued that:

It is clothed with the required authority under the SMA 2103 pending the handover of its role and functions to the MMC within one month after the MMC's first AGM on 15.01.2022. Enclosure 265 21 is not about claiming or correcting the issue of locus standi since the plaintiff has the locus to begin with. S/N 9gNnucx3v0iMdgEnaBlS9A

Section 28(2) SMA 2013 provides: 270 “28. Balances not transferred shall vest in the Management

If any balance of money in the maintenance account and in the sinking fund account has not been transferred by the joint management body 275 under paragraph 27(2)(a), the money shall vest in the management corporation on the date of the expiry of the period specified in subsection 27(2).

Any right, power or remedy granted to, or any liability imposed on, 280 the joint management body under this Part in respect of the development area, including Charges, contribution to the sinking fund, and any other assets of maintenance account and the sinking fund account, shall vest in the management corporation on the date of the expiry of the period specified in subsection 27(2), and 285 the management corporation shall have the same right, power, remedy or liability as if it had at all times been a right, power, remedy or liability of the management corporation, including those rights in respect of any legal proceedings or applications to any authority by or against the joint management body pending 290 immediately before the date of the expiry of the period specified in subsection 27(2).

Any judgment or award of any arbitral or other tribunal obtained by the joint management body in respect of the development area, including 295 the Charges, contribution to the sinking fund and any other assets of the maintenance account and the sinking fund account, and not fully satisfied before the expiry of the period specified in subsection 27(2), shall be enforceable by the management corporation.” 300

Section 27(2) SMA 2013 provides: “27. Dissolution of Joint Management Body

A joint management body shall dissolve three months from the date of the first annual general meeting of the management corporation for the development area.

The joint management body shall, not more than one month from the date of the first annual general meeting of the management corporation- 310 S/N 9gNnucx3v0iMdgEnaBlS9A

Transfer all balances in the maintenance account and the sinking fund account to the management corporation after payment of all expenditures properly charged to the accounts.

Hand over to the management corporation- 315

any additional by-laws.

(ii) the audited accounts of the maintenance account and the sinking fund account or, if such accounts have not been audited, the unaudited accounts.

(iii) all the assets and liabilities of the joint management body.

(iv) all the documents delivered by the developer to the joint management body under subsection 15(3); and

all records relating to and necessary for the maintenance and management of the building or land intended for subdivision into parcels and the common property.

If only unaudited accounts have been handed over under subparagraph (2)(b)(ii), the joint management body shall hand over to the management corporation the audited accounts of the joint management body not more than three months from the date of the first 330 annual general meeting of the management corporation.

If the joint management body fails to comply with subsection (2) or (3), every member of the joint management committee commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred 335 and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both.

In proceedings against the member of the joint management committee for an offence under subsection (4), it is a defence if the member proves 340 that-(a) (b) the offence was committed without his knowledge, consent, or connivance; and he had taken all reasonable precautions and had exercised due diligence to prevent the commission of the offence.” Therefore, the plaintiff prays for order in terms. 345 [7] THE DEFENDANT’S SUBMISSIONS In opposing enclosure 21, the defendant, in a nutshell, argued:

7.1 Since the developer is not a party to the present action, they shouldn’t be faulted for failing to call for the first AGM of the MMC in a timely 350 manner. If the developer’s failure aggrieves the plaintiff, they could S/N 9gNnucx3v0iMdgEnaBlS9A have raised the matter with the Commissioner of Buildings under section 57(5) SMA 2013.

7.2 The defendant and the developer share a common director and 355 secretary, but they are still companies with separate legal entities.

7.3 Contrary to the plaintiff’s position, the defendant argued that the decision in Park Access Sdn Bhd & 2 Ors v Badan Pengurusan Bersama Avenue [2018] 1 LNS 711, CA is still applicable 360 notwithstanding the repeal of ss.39 and 42(1) STA 1985.

7.4 The defendant maintains their position that the property vests on the MMC upon it coming into existence, though the phrase had been removed in the new strata regime. Therefore, it was argued that, on 365 the coming into existence of the MMC, the plaintiff no longer has the power to institute a civil action against the defendant for the outstanding maintenance charges, sinking fund contributions, and the return of the common properties it had taken exclusive possession of. 370 7.5 The defendant acknowledges that the plaintiff will continue to exist and function until the MMC hands over its role and functions after the first AGM; the plaintiff no longer has the power to sue on the common property that had vested on the MMC upon its coming into existence. Section 3 SMA 2013 provides that it shall be read together with 375 ss.17(1), 17(3), and 17B (1) STA 1985. Section 17(1) STA 1985 vests the common property in the MMC upon its coming into existence. S/N 9gNnucx3v0iMdgEnaBlS9A

7.6 The defendant alleged that enclosure 21 by the plaintiff is not bona fide and amounts to a tactical manoeuvre to circumvent the defendant’s 380 application in enclosure 10 to strike out the plaintiff’s claim. The proposed substitution of the party is intended to salvage its defective claim. Therefore, the defendant prays that enclosure 21 be dismissed with cost. 385 LAW ON AMENDMENT & SUBSTITUTION OF PARTIES [8] In a nutshell “5. Amendment of writ or pleading with leave (O 20 r 5 RC 2012)

Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the 390 plaintiff to amend his writ or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct.

Where an application to the Court for leave to make the amendment mentioned in paragraphs (3), (4) or (5) is made after any relevant period of 395 limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

An amendment to correct the name of a party may be allowed under paragraph (2), notwithstanding that it is alleged that the effect of the 400 amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued. 405

An amendment to alter the capacity in which a party sues (whether as a plaintiff or as a defendant by counterclaim) may be allowed under paragraph

if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

An amendment may be allowed under paragraph (2), notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been 415 claimed in action by the party applying for leave to make the amendment.” S/N 9gNnucx3v0iMdgEnaBlS9A

8.1 The person responsible for drafting and filing the pleadings is duty-bound to ensure that they comply with the rules of pleadings. Amendments to the pleadings may be made at any stage of the 420 proceedings. The earlier the amendments are made, the better, so that the consequential amendment by the other side may be kept to a minimum.

8.2 The general principle regarding an amendment to pleadings is that 425 however negligent, the first omission may have been. However late the proposed amendment is, it should be allowed if it can be made without injustice to the other side. There is no injustice if costs can compensate the other side. 430 8.3 An application for amendment should be granted if it does not cause injustice. Applications for amendment of pleadings have been allowed immediately before the commencement of trial and during a trial.

8.4 Yamaha Motors Co Ltd v Yamaha (M) Sdn Bhd [1983] CLJ (Rep) 435 428, HC, Mohamed Azmi J (as he then was) said that three fundamental questions must be considered in deciding whether injustice would or would not result when an amendment is granted:

Whether the application is bona fide.

(ii) Whether the prejudice caused to the other side can be 440 compensated by costs; and

(iii) Whether the amendments would not, in effect, turn the suit from one character into a suit of another and inconsistent character. His lordship said that if the answers are in the affirmative: 445 " ... an application for amendment should be allowed at any stage of the proceedings, particularly before trial, even if the effect of the amendment would S/N 9gNnucx3v0iMdgEnaBlS9A be to add or substitute a new cause of action, provided the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the original statement of 450 claim."

8.5 The Court, in granting the amendment, allows such amendment not to cause injustice to the other side. To determine whether injustice will be caused, certain other principles would have to be considered: 455 In U-Meng Holdings Sdn Bhd v Tan Sri Datuk Ibrahim Mohamed; Ambank(M) Bhd (Third-party) [2010] MLJU 1181, [2010] 9 CLJ 411, CA, where Abdul Malik Ishak JCA held: The court would allow proposed amendments that do not change the 460 character of the dispute, are bona fide, and cause no prejudice to the opposite party that could not be compensated with costs. In Dato' Tan Heng Chew v Tan Kim Hor [2009] 5 MLJ 790, CA, the

Allowed the proposed amendments to resolve the real issues in controversy between the parties.

Since the plaintiff felt that his original statement of claim would not lead to a decision on the actual matter in controversy and the law allowed the amendment to be made to the pleadings, the Court held that the plaintiff 470 should be allowed to have it corrected if it could be made without any injustice to the defendant.

When considering whether injustice would be caused, the plaintiff's position must be balanced with the defendant's interest.

The Injustice caused would be far greater if the plaintiff's case were limited 475 prematurely.

Under the circumstances, the defendants could be compensated with costs for whatever prejudice they suffered. 480 S/N 9gNnucx3v0iMdgEnaBlS9A

8.6 The Federal Court in Hong Leong Bank v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1, FC further developed the law by holding that the principles in Yamaha Motor's case were laid down in respect of an application to amend made at an early stage of the proceedings, mainly before the trial commences. Yamaha Motor was decided under the old 485

Civil procedure has since changed with the introduction of pre-trial case management. Under the new case management regime, the Court recognises that a different approach is needed to prevent delay in a case's progress to trial.

The courts' management of cases before trial ensures the just, expeditious, and economical disposal of an action. Therefore, under this new regime, when an application to amend a pleading is made very late, the principles of Yamaha Motor should not be the sole consideration. An order for compensation by payment of costs in such a case may not be an adequate 495 remedy.

8.7 There is a clear distinction between factors to consider when applying for amendments at an early stage and a late stage of a given case:

The Court of Appeal in the case of Christopher Bandi v Tumbung Nakis & Anor; Jamil Sindi (Third Party) [2016] 4 CLJ 500 831, CA, cited with approval Hong Leong Bank (supra) and held further that parties must be aware that they have to frame their cases fully in all their causes of action and defences before the start of the trial.

The present regime of civil procedure does not allow the conduct 505 of one's case by instalment.

8.8 The view of the apex court of Australia by Heydon J in Aon Risk Services Australia Ltd v Australian National University [2009] 258 S/N 9gNnucx3v0iMdgEnaBlS9A ALR 14 was referred to where it was said that an application to amend a pleading should not be approached on the basis that a party is 510 entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to exercising power to permit amendments should be weighed.

8.9 Substitution of Parties: 515 “6. Misjoinder and non-joinder of parties (O 15 r 6 RC 2012)

A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may determine the issues or questions in dispute in any cause or matter so far as they affect the 520 rights and interests of the persons who parties to the cause or matter are.

…

order any of the following persons to be added as a party, namely— 525

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter 530 there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

…

A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.”

If there is any misjoinder or non-joinder of parties in an action, r 6 operates to save the action from being defeated: 540 See: S/N 9gNnucx3v0iMdgEnaBlS9A Sanmaru Overseas Marketing Sdn Bhd & Anor v PT Indofood Interna Corp & 2 Ors [2009] 6 AMR 309; [2009] 2 MLJ 765, CA; Tang Kwor Ham & 2 Ors v Pengurusan Danaharta Nasional Bhd & 5 Ors [2006] 4 AMR 89; [2006] 5 MLJ 60, CA. 545 In Seriborneo Capital Sdn Bhd v Ketua Pengarah Jabatan Kastam Diraja Malaysia & 4 Ors [2019] 4 AMR 91, the High Court held that even if some of the defendants are non-existent, the alleged misjoinder does not affect the plaintiff’s action. In Mohamed Azmal Noor Naina Mohd Noor v Arab-Malaysian 550 Finance Bhd & Anor [2003] 3 AMR 265; [2003] 2 CLJ 505, CA, Abdul Aziz JCA said that the purpose of adding a party to a cause or matter under r 6 “is to contribute to the effective, complete and global disposal or determination of the dispute in the cause or matter or of the relief or remedy that is claimed in it.” 555 Order 15 r 6 allows the court to secure the determination of all disputes relating to the same subject matter without the delay and the expense of separate actions. In any cause or matter where there is a misjoinder or non-joinder of any party, the court has a wide discretion to determine 560 any issues or questions in dispute in so far as it affects the rights and interests of the parties named in the cause or matter.

The court is usually inclined to allow the addition or substitution of a plaintiff, which is necessary to enable the question at issue to be 565 determined. However, leave to add or substitute a plaintiff will not be granted where to do so would be to prevent the defendant from relying on the Limitation Act 1953 (Act 254). But leave to correct the name of S/N 9gNnucx3v0iMdgEnaBlS9A a party may be given though the effect of doing so is to substitute a new party and even though the relevant period of limitation has 570 expired, provided that the court is satisfied that the mistake was genuine and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to sue: Order 20 r 5(2), (3). Where a claim is statute-barred at the date the writ is issued, the court cannot grant leave to amend the writ, either under this rule or under 575 Order 20 r 5, by substituting another plaintiff in place of the existing plaintiff. “4. Inherent Powers of the Court (O 92 r 4 RC 2012) “For the removal of doubt, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as 580 may be necessary to prevent injustice or to prevent abuse of the process of the Court.” Findings [9] The law is trite that leave to amend under O.20 r.5 RC 2012 can be 585 granted if the Court thinks it is just to do so and it does not cause injustice to the other party to enable the parties to have their day in Court over the actual issues of the conflict between them.

9.1 I have duly considered enclosure 21 in light of all the cause papers and the respective parties' arguments in canvassing for the matter:

Undoubtedly, serious legal issues must be canvassed and ventilated on the purported outstanding maintenance charges and sinking fund supposedly due from the defendant to the MMC. Allowing enclosure 21 would enable the court to adjudicate the S/N 9gNnucx3v0iMdgEnaBlS9A factual dispute. It is the continuation of what was initiated by the 595 plaintiff at the time that the MMC was not operational or functional because the developer did not timeously hold the legally required first AGM. Pending that handover, which is needed by law, MMC must continue its role and functions lest the mixed development be in turmoil.

I accept that O.15 r.6 RC 2012 determines that it operates to save the action from being defeated. It contributes to the appropriate legal determination of the suit without delay and expense of a separate action. Apart from its inherent jurisdiction under O.92 r.4 RC 2012, the Court possesses broad discretion to determine the 605 issue.

It is trite law that the Court favours granting the addition or substitution of parties when it is necessary in the circumstances to determine the subject matter of dispute appropriately:

In this regard, I am inclined to disagree with the arguments of the defendants on the issue of the legal standing of the plaintiff to sustain this suit for the recovery of common property on the argument that on the coming into existence of the MMC, the common property vests on the MMC thereby relinquishing the authority of the plaintiff over the 615 common property when the fact remains undisputed that the MMC itself at the time remained inoperative since 11.09.2019 for 2 ½ years due to the omission of the developer to call for the first AGM timely.

I take cognisance of the new Strata Regime that addressed some grey areas as addressed earlier. The phrase ‘on the coming into existence’ 620 is no longer in play that the MC would be registered as the common property proprietor and hold custody of the titles for common property (s.17B(1) STA 1987).

I believe accepting the defendant’s overstretching and simplistic argument would invite an unfair conclusion. It would be unjust and an 625 S/N 9gNnucx3v0iMdgEnaBlS9A abuse of process that would go against the fabric of the present case. Indeed, that would not be in the legislator's contemplation.

The defendant brought up the issue of its application in enclosure 10 to strike out the plaintiff’s claim under O.18. It must be considered that it is trite law when there are legitimate issues to be canvassed and 630 ventilated at trial, summary disposal will be denied. Therefore, in the circumstances, I cannot accept the defendant’s reasoning that Enclosure 21 primarily serves to circumvent Enclosure 10 (was dismissed on same day, 24.01.2024). 635 9.2 I find that enclosure 21 is not motivated by ill intent or mala fide, but it is a genuine concern to address the continuity of the present suit after the functioning MMC comes into play, thereby dissolving the Maisson Residence JMB/plaintiff. I take cognisance that the MMC has no objection to being made the plaintiff to continue prosecuting the 640 present suit against the defendant via the passing of a Circular Resolution of the MMC dated 30.01.2022: L25, exhibit JT-2, pp.12-14.

9.3 This resolution was passed five days after the MMC became functional or operational, eleven days before enclosure 21 was filed, and 645 approximately 2 ½ months before Maisson Residence JMB/plaintiff was by law dissolved on 14.04.2022. it is my considered judgment that it is a matter of course in the progression of this suit to its conclusion. 650 [10] I believe that granting enclosure 21 would not cause any injustice or prejudice to the defendant. The defendant did not lead any arguments on it in opposing enclosure 21. The granting of this amendment and substituting the plaintiff does not impair their opportunity to argue the merits of the plaintiff’s claim. I wish to reiterate what was said by the 655 Court of Appeal in U-Meng Holdings Sdn Bhd v Tan Sri Datuk S/N 9gNnucx3v0iMdgEnaBlS9A Ibrahim Mohamed; Ambank (M) Bhd (Third-party) [2010] MLJU 1181, [2010] 9 CLJ 411, CA, where Abdul Malik Ishak JCA held: The court would allow proposed amendments that do not change the character of the dispute, are bona fide, and cause no prejudice to the opposite party that could 660 not be compensated with costs. CONCLUSIONS [11] All things considered: 665 11.1 In light of the foregoing premise, I find merit in the plaintiff’s enclosure 21 that causes no injustice or prejudice to the defendant.

11.2 To reiterate, it is trite law that Order 15 r 6 allows the court to secure the determination of all disputes relating to the same subject matter 670 without the delay and the expense of separate actions as was observed by the Court of Appeal in In Mohamed Azmal Noor Naina Mohd Noor v Arab-Malaysian Finance Bhd & Anor [2003] 3 AMR 265; [2003] 2 CLJ 505, CA that the purpose of adding a party to a cause or matter under O.15 r 6 “is to contribute to the effective, 675 complete and global disposal or determination of the dispute in the cause or matter or of the relief or remedy that is claimed in it.”

11.3 In the circumstances, I granted an Order in terms of enclosure 21 with costs in the cause. 680 Dated 22.03.2024. HAYATUL AKMAL ABDUL AZIZ JUDGE 685 HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR S/N 9gNnucx3v0iMdgEnaBlS9A Parties: 690 Angeline Ang, together with Tan Jie Xin Messrs. Chee Hoe & Associates Counsels for the Plaintiff Ho Ai Ting, together with Man Weng Keat 695 Messrs. Lee Hishammuddin Allen & Gledhill Counsel for the Defendant S/N 9gNnucx3v0iMdgEnaBlS9A