WA-28PW-167-04/2023
High Court of Malaysia18 Jan 2024
The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.
Citations and treatment detected automatically from later judgments and the authorities this decision relies on.
Later cases and laws citing this decision
Not yet cited by a later decision.
Earlier cases and laws this decision relies on
“of this document via eFILING portal 2 JUDGMENT INTRODUCTION [1] The Applicant, Menara Inspiration Joint Management Body (“JMB”) filed this Notice of Motion (“NOM”) pursuant to section 517 of the Companies Act 2016 (“CA 2016”) to reverse the decision of the Liquidator of the Respondent in rejecting three (3) Proof of De”
“plan by 12.1.2016 in exhibit "TS-9"-encl 7 Jilid 1 pgs 1- 3). **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [15] Section 2(1) of the Town and Country Planning Act 1976 states that "planning permission" means permission granted, with or without condition, to carry ou”
“uasan lantai kasar ruang perniagaan/pejabat sebagai medan selera mengikut spesifikasi Majlis dan diserahkan kepada Majlis. [16] The powers of the JMB is clearly spelt out under Section 21 (2) of the Strata Management Act (“SMA”) to collect the charges from the parcel owners in the proportion to the allocated share unit”
Auto-detected from judgment text; not a substitute for a citator check.
Content
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) POST COMPANIES WINDING-UP NO.: WA-28PW-167-04/2023 BETWEEN KUMPULAN SEPAKAT KONSULT (1997/FP00378) …PETITIONER AND ONE-INSPIRATION DEVELOPMENT SDN BHD (Company No.: 844201-P) …RESPONDENT AND MENARA INSPIRATION JOINT MANAGEMENT BODY …APPLICANT
1
The Applicant, Menara Inspiration Joint Management Body (“JMB”) filed this Notice of Motion (“NOM”) pursuant to section 517 of the Companies Act 2016 (“CA 2016”) to reverse the decision of the Liquidator of the Respondent in rejecting three (3) Proof of Debt Forms (“POD”) lodged on 23.09.2022 and 14.11.2022.
2
The Applicant has appealed against my decision to dismiss it’s application in respect of only 2 POD’s for the sum of RM134,249.49 and RM88,450.00 and I shall only deal with the liquidators decision to reject these 2 POD’s.
3
The Applicant is the Joint management Body of Menara One Inspiration, a mixed development that was constructed by the Respondent.
4
The JMB had on 23.09.2022 lodged the following Proof of Debts with the Liquidator:
4
4.1 Form 55 dated 22.09.2022 for the sum of RM134,249.49 being maintenance charges owed by the Respondent as at 04.05.2021 pertaining to the food court at level P1 (“Food court”) which remains registered under the Developer (“2nd PODF”). The 2nd PODF enclosed inter alia the Applicant’s Statement of Accounts for the food court as at 07.11.2017 together with a copy of the Strata Tribunal Award dated 30.08.2018 for the sum of RM40,922.48 being the outstanding sinking fund and maintenance charges due from the Developer pertaining to the Food Court as at 07.11.2017. [5] Upon request by the liquidator to seek further evidence to support the 3rd PODF, the Applicant submitted the following POD with the Liquidator. Form 55 dated 14.11.2022 for the sum of RM88,450.00 being the excess utility deposits that were overpaid by the owners of Avenue D’Vogue pursuant to an award by the Strata Tribunal given on 28.09.2018 (3rd PODF”). The 3rd PODF enclosed inter alia the following:
5
5.1 Strata Tribunal Award dated 28.09.2018 (that was obtained with the consent of the Developer);
5
5.2 Notice of Hearing dated 14.09.2018 from the Tribunal for
5
5.3 ‘Notis Pemberitahuan Pihak Yang Menuntut/Pihak Penentang
5
5.4 Strata Tribunal Award dated 21.05.2028;
5
5.5 Letter from the Majlis Bandaraya Petaling Jaya (“MBPJ”) to the Developer dated 20.11.2017 regarding the Developer’s failure to transfer the excess utility deposits totaling RM88,450.00 to the JMB’s account; and 5.6 A summary of the utility deposits paid to TNB and SYABAS. APPLICANT’S SUBMISSION [6] The Applicant submit that the Strata Tribunal Award dated 28.09.2018 clearly prove that the Developer had admitted to having collected an excess of RM88.450.00 to open the utility accounts in the Developer’s name. The Applicant contends that it is entitled to receive the sum of RM88,450.00 from the account of the Developer/Respondent. [7] In regard to the 2nd PODF: that despite the Developer’s prior representations that the Food court was to be handed over to the MBPJ, the said handover had not taken place. As the Food Court was still registered to the Developer the obligation to pay all maintenance charges and sinking fund contributions accruing in respect of the Food court remained with the Developer. [8] In reply to the Applicant’s claim, the Liquidator’s stated position is as follows:
a
In respect to the accrued maintenance and sinking fund charges (2nd PODF), those payments are to be borne by MBPJ since the Food Court was meant to be handed over to MBPJ.
b
The sum of RM88,450.00 (claimed in the 3rd PODF) collected in excess by the Developer were monies belonging to the individual Purchasers and cannot be claimed by the JMB. THE LAW [9] Section 517 of the Companies Act 2016. “Appeal against decision of liquidator Any person aggrieved by any act or decision of the liquidator may apply to the Court which may confirm, reverse or modify the act or decision complained of and make such order as it thinks just.” APPLICANT’S SUBMISSION [10] In support of its application, the Applicant submits as follows:
10
10.1 MBPJ's refusal/failure to take over the food court has no legal or commercial relevance to the 2nd PODF. It is a simple fact that the food court remains registered to the Developer and thus it is axiomatic that all maintenance and sinking fund contributions arising from the food court remains the responsibility of the
10
10.2 In this regard, an email dated 03.04.2023 was sent by the MBPJ's solicitors to the Applicant to confirm that MBPJ has to-date not taken vacant possession of the Food Court (Please see a copy of the email dated 03.04.2023 from the MBPJ's solicitors at Exhibit “GL-11” is a copy of the email dated 03.04.2023 from the MBPJ's solicitors at page 114 of the Applicant's AFS);
10
10.3 Regardless of the outstanding issues between the Liquidator and the MBPJ in respect of the Food Court, the fact remains that the Food Court remains registered in the Register of Parcels in the name of the Developer and thus the Developer is liable to account for all accrued maintenance charges and sinking fund contributions arising therefrom; [11] The Applicant submits that the Liquidator had no valid grounds to reject the 3rd PODF for the following reasons: -
11
11.1 It is the Applicant that had taken the steps to seek repayment of the excess utility deposits totalling RM88,450.00 on behalf of the parcel owners. This is borne out by the Strata Tribunal Award that was filed by the Applicant;
11
11.2 It is the Applicant who is the correct party to seek the return of the utility deposits on behalf of the parcel owners as it is untenable for the Liquidator to expect every single parcel owner to lodge a proof of debt form in this regard; THE RESPONDENT/LIQUIDATOR’S SUBMISSION [12] The Liquidator submits that it was correct in rejecting the 2nd PODF. There are records prior to the winding up that shows on 14.11.2016, the solicitors for MBPJ had emailed the then Developer's solicitors informing that MBPJ shall accept the surrender of the Parcel without the Surau and Toilet. The contents of the email dated 14.11.2016 is contrary to an email sent by the same MBPJ's solicitors to the Applicant on 3.4.2023 denying that they had not taken vacant possession as at to date. [13] The Respondent submits that the development order for Menara One Inspiration project was conditional on a Food Court being built and surrendered to MBPJ. It is MBPJ who had approved the building plans on 12.1.2016 as seen in exhibit TS-9 with the toilet and surau. On 14.11.2016, MBPJ's solicitors made a confirmation in writing that they accepted the Food Court but without the toilet and surau. But now, there is an email by MBPJ to the Applicant alleging that they had never accepted the Food Court [which contradicts their email dated 14.11.2016]. [14] The Liquidator submits that the vacant possession of the said Unit was deemed given to MBPJ and hence from 14.11.2016, MBPJ is liable to pay for the maintenance and service charges. Further, the Food Court floor plan area includes the toilet and surau as part of the floor area allocated to MBPJ and based on the approved plan by MBPJ on 12.1.2016, it is not an accessory parcel nor is it a common property- (see the Surat Kebenaran Merancang dated 9.4.2013, the email by MBPJ solicitors dated 14.11.2016 and the approved plan by 12.1.2016 in exhibit "TS-9"-encl 7 Jilid 1 pgs 1- 3). [15] Section 2(1) of the Town and Country Planning Act 1976 states that "planning permission" means permission granted, with or without condition, to carry out development. Based on the development order, it was a condition that a parcel be allocated for the food court to be handed to Majlis Perbandaran Petaling Jaya [MBPJ]. Pursuant to the Surat Kebenaran Merancang dated 9.4.2013, it was stated that an allocation for a Food Court was to be built and surrendered to MBPJ which is reproduced for easy reference:- xi. Kemudahan Medan Selera. Menyediakan 2% daripada keluasan lantai kasar ruang perniagaan/pejabat sebagai medan selera mengikut spesifikasi Majlis dan diserahkan kepada Majlis. [16] The powers of the JMB is clearly spelt out under Section 21 (2) of the Strata Management Act (“SMA”) to collect the charges from the parcel owners in the proportion to the allocated share units of their respective parcels. The Food Court was not categorized as an unsold parcel for the Respondent to be required to pay for the maintenance and service charges. [17] Therefore the Food Court is neither sold to MBPJ nor is it part of the unsold units of the development area. As such, the Respondent is not liable to pay for any maintenance and service charges for the Food Court as it is not categorised as an unsold developer's unit. [18] With respect to the rejection of the 3rd PODF for the refund in the sum of RM88,450.00 being the TNB and SYABAS deposits, it is undeniable that the Respondent has to refund the excess sum of utility deposits to the parcel owners but not the JMB as these sums were collected by the Developer prior to its winding up from the individual Purchasers for water and TNB. As such, these monies belong to the individual Purchasers and is not a “chose in action” which vests with the JMB, thus the JMB does not have a right to claim the monies. [19] The JMB has no locus to collect the surplus deposits of the water and electricity for the Purchasers. The SMA only allows the JMB to collect maintenance and sinking fund and nothing else. See the case of Perbadanan Pengurusan Solaris Dutamas v Suruhanjaya Tenaga Malaysia & Anor (2022) MLJU 965 the statutory regime strict compliance is required and the body managing the development is prohibited from using the accounts to collect funds for any other extraneous purpose that is not provided for. Further the payments for TNB and water deposits were
Preamble
pursuant to the SPAs between the then Developer and the Purchasers. As stated in the case of Re Bandar Kinrara Properties Sdn Bhd (in liquidation) the JMB cannot enforce the rights under the SPA's as the JMB is not a party to the SPA's; Thus, the JMB, apart from being ultra vires from exercising its powers, cannot legally assume the rights of the purchasers. [20] After having considered the submissions and affidavits by both the Applicant and Liquidator, I accept the Liquidator’s submission as the correct position in law. [21] I find that the MBPJ is the beneficial owner of the Food court, since the development order and building plans clearly provided for the Food Court to be transferred to the MBPJ. And the fact that the MBPJ approved the building plans with the Food Court, toilet and surau as part of the area allocated to MBPJ, those areas cannot be regarded as common property or accessory parcel. [22] Section 2(1) of the Town and Country Planning Act 1976 clearly provides for planning permission to be given with or without conditions. In the present case the planning permission was expressly given subject to the Food Court being surrendered to the MBPJ. (see paragraph 15 above). The fact that the MBPJ refused to take over the Food Court does not change the ownership of the Food Court. [23] As for the issue of surplus deposits to be refunded, I agree with the Liquidator that the Applicant has no locus to make a claim on behalf of the owners since the SMA only allows the JMB to collect maintenance fee and sinking fund. The SMA does not empower the JMB to file claims on behalf of the unit owners. Additionally, the Applicant has not produced any binding documents like a Power of Attorney to allow it to act or file a claim on behalf of the unit owners. [24] For the aforesaid reasons, I dismiss the application by the Applicant with costs. Dated 27 March 2025 …………t.t…………………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE PETITIONER: ESVINE SAGANATHAN SOLICITORS FOR THE PETITIONER: TETUAN TEJA SINGH PENESAR & CO COUNSEL FOR THE RESPONDENT: PAMELA SOLICITORS FOR THE RESPONDENT: TETUAN EPHRAIM & ASSOCIATES Cases Referred to: ➢ Perbadanan Pengurusan Solaris Dutamas v Suruhanjaya Tenaga Malaysia & Anor (2022) MLJU 965 ➢ Re Bandar Kinrara Properties Sdn Bhd (in liquidation) Legislation Referred to: ➢ Companies Act 2016 Decision date: 18 January 2024
Wrong text, a broken link, out-of-date content, or a removal request — tell us and we'll check it against the official source.