Menara Safuan Joint Management Body v Cbal Sdn. Bhd. (WA-B52NCvC-36-01/2023)

Naina Mohamed bin Sultan Abdul Kadir, office bearer of plaintiff [SP1];

Wong Wai Onn, property manager by the plaintif [SP2]; and

Nurliyana Afiqah binti Mazlan, account manager of the plaintiff [SP3]. [14] On the other hand, the defendant has called only one witness, Mat Sham bin Ahmad, who is the director and shareholder of defendant [SD1]. PLEADED DEFENCE [15] In brief, the pleaded defences are as follows:

The plaintiff has failed, neglected, and/or refused to maintain Menara Safuan and its common areas adequately;

The plaintiff has wound up the developer, Menara Safuan

The plaintiff inconsistently has imposed maintenance charges on all unit owners; and 4. The defendant has yet obtained a strata title. MAIN ISSUE [16] he main and critical issue is whether the defendant is wholly responsible for the entire sum of maintenance charges, including maintenance fees, sinking fund contributions, quit rent, assessment, insurance, late interest in accordance with the provisions of SMA 2013. The Law [17] Section 25 of the SMA 2013 imposes a statutory duty on the plaintiff to collect charges, including maintenance charges from parcel owners for the maintenance and management of Menara Safuan. See section 25 as follows: Parcel owners to pay Charges, and contribution to the sinking fund, to the joint management body 25(1) Each purchaser shall pay the Charges, and contribution to the sinking fund, in respect of his parcel to the joint management body for the maintenance and management of the buildings or lands intended for subdivision into parcels and the common property in a [18] Section 34 of SMA 2013 provides the seriousness of the payment. In this regard, it is pertinent to consider that t to comply with the notice of demand issued by the plaintiff amounts to a criminal offence. See section 34 as follows: Procedure on recovery of sums due 34(1) Where a sum becomes recoverable by the developer from the purchaser in respect of his parcel by virtue of subsection 12(5), or by the joint management body from the parcel owner in respect of his parcel by virtue of subsection 25(6) or 33(3), the developer or the joint management body may serve on the purchaser or the parcel owner, as the case may be, 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 fourteen days from the date of service of the notice.

If any sum remains unpaid by the purchaser or parcel owner at the end of the period specified in the notice under subsection (1), the developer or the joint management body, as the case may be, may file a summons or claim in a court of competent jurisdiction or in the Tribunal for the recovery of the said sum or as an alternative to recovery under this section, resort to recovery under section 35.

Any purchaser or parcel owner who, without reasonable excuse, fails to comply with the notice referred to in subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both, and in the case of a continuing offence, to a further fine not exceeding fifty ringgit for every day or part thereof during which Pleaded admission by the defendant [19] The Court is satisfied that it is the pleaded case for the defendant the statement of defence as follows: Plaintif dan mengakui bahawa ia adalah menjadi tanggungjawab Defendan sebagai pemilik dan/atau pembeli premis tersebut untuk [20] The law is trite that parties are bound by their pleadings. See the Court of Appeal in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 3 CLJ 310 in which Abdul Malik Ishak JCA, held, inter alia, as follows: [43] In the absence of pleadings, evidence if any produced by the parties cannot be considered by the court and no party should be permitted to travel beyond its pleadings. All the necessary and material facts should be pleaded by the party in support of the case set up by the said party (Ram Sarup Gupta (dead) by L. Rs. v. Bishun Narain Inter College and others, AIR [1987] SC 1242; and K Kanakarathnam v. A Perumal and another, AIR [1994] Mad 247). According to the case of Hari Chand v. Daulat Ram, AIR [1987] SC 94, no evidence can be led on a fact not pleaded. Neither is it open to the parties to give up its case set out in the pleadings and propound an entirely new and different case (Vinod Kumar Arora v. Smt. Surjit Kaur, AIR [1987] SC Agreed facts by the defendant [21] The law is settled. The defendant is also bound by the statement of agreed facts. See Lau Bee Lan J [as she was then] in ADM Ventures (M) Sdn Bhd & Ors v. Renew Capital Sdn Bhd & Ors and other cases [2021] MLJU 1466 as follows: [57] The issues concerning the EGM held on 25/9/2015 will be addressed under Suit 47. For the purposes of the issue relevant to Suit 245, I find there is no merit in the aforesaid contention of the RC team for the reasons which follow. Firstly, for reasons proffered earlier, the Plaintiffs did not recognise TK and Neil as valid and properly appointed directors of GTG. Secondly, Dilantha had been removed as director of GTG on 25/9/2015 is an agreed fact which need not be proved and to which the parties are bound by their admissions contained in the statement of agreed facts. The case of CH Choo & Sons Sdn Bhd v Wong Nyuk Shing @ Wong Teck Tsin [2010] 9 MLJ 176 at 186 [11] endorses his point and I agree [22] The Court is satisfied that the statement of agreed facts plainly states the responsibility of the defendant to pay the charges. The statement is filed to this Court as Enclosure 13. The Enclosure 13 is reproduced as follows: FAKTA-FAKTA KES YANG DIPERSETUJUI

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3.

Plaintif dan Defendan adalah terikat kepada Akta Pengurusan Strata 2013.

Defendan hendaklah membayar segala caj bagi penyenggaraan , cukai pintu, taksiran, insurans, faedah kelewatan dan segala bayaran yang perlu kepada Plaintif tiap·tiap bulan (selepas ini dirujuk sebagai Caj-Caj tersebut mengikut peruntukkan Akta Admission by SD1 [23] The position is further fortified by the admission of SD1. See cross examination of SD1: So, this is your defence, right? So, do you agree that I mean based on your defence so do you agree that this is your legal obligation to pay all these charges to the plaintiff as a Joint Management Body? [24] Based on the aforesaid reasons, the answer to the main issue is positive. ANALYSIS ON THE DEFENCE Defence 1: The plaintiff allegedly failed, neglected, and/or refused to maintain the building and its common areas adequately [25] It is the pleaded defence that the plaintiff has failed to manage Menara Safuan well and also failed to maintain the property in good working order. Accordingly, the defendant contends that it is not obligated to make the payment. [26] considered view, the law is settled that the above is not a legitimate reason to excuse or waive the duty imposed on the defendant to make the requisite payments to the plaintiff. See the Court of Appeal in Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v. Paradise Boulevard Sdn Bhd [2021] MLJU 1464 which also discussed the lack of maintenance by the plaintiff is not a valid reason to refuse the statutory payment: - The Complex is not maintained and there are illegal squatters in the premises [18] The defendant argued that payment was not due to the plaintiff because the plaintiff had allegedly failed to maintain the Complex and that there were even illegal squatters in the premises of the Complex. On the alleged presence of illegal squatters which was denied by the plaintiff, I do not consider this as a substantive defence. [19] First, the defendant never raised a complaint about this, let alone action taken. It is useful to note that under Order 89 r. 1 of the Rules of Court 2012 the rightful owner of the premises is the one who should be taking action against trespassers. Secondly, the car parks of the defendant were actually rented out to third parties with the knowledge and consent of the defendant, to the extent that some RM238,000.00 (from January 2018 to April 2020) was deducted from the total outstanding amount due from the defendant, as this is reflected the rental received from said third parties. [20] Thirdly, and most fundamentally, this argument provides no legitimate basis to excuse or waive the duty imposed on the defendant to make the requisite payments to the plaintiff as the JMB of the Complex. I must emphasize that the obligation on the part of the defendant as the owner of the units or parcels is set out in especially Clause 8 of the SPA, as discussed earlier. obligation to make payment of the charges, for legislation also makes that mandatory on the part of the defendant. [24] This duty is embodied in Section 25 of the Strata Management Act 2013 which provides in clear terms, as follows: [26] That the liability of the defendant as the purchaser to be responsible for the payment of charges pursuant to the applicable agreement and statutory provisions is paramount. The reference to the High Court decision in Uda Holding Bhd & Anor v. Bumi Gajah Agencies Sdn Bhd [2010] 1 LNS 1509; [2010] MLJU 2154 where the Court examined not only the relevant sale and purchase agreement but also Section 23 of the Building and Common Property (Maintenance and Management) Act 2007 which is the predecessor to the relevant provision in the Strata Management Act 2013 is apt The High Court held as follows: purchased the condominium unit, they are contractually bound under clause 5.11 of the Sale and Purchase Agreement to pay for service charges and other relevant charges in relation to the said unit. With the coming into force of Building and Common Property (Maintenance and Management) Act 2007 (the Act) on 12.4.2007, this contractual obligation has now become a statutory liability. This is by virtue of section 23 of the Act which states:

(1) The purchaser shall pay the charges for the maintenance and management of the common property. [9] It is to be noted from the above provision that there was no mention that purchaser is excluded from paying the charges if they did not occupy the unit for whatever reasons or they did not use the facilities provided for by the developer or the Joint Management Body. The key point to note here is liability to make payment is not conditional on usage of the facilities or the unit purchased, but it is a strict liability based on services provided. At this juncture, I think it is appropriate for added] [28] This case before me is about the non-payment of maintenance and other charges by a parcel owner which is a clear statutory and contractual obligation of the defendant. This is so well-established A summary judgment ought to be suitable given that there is no issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim within the contemplation [27] See also the same legal position as decided by the Evrol Mariette Peters JC [as she was then] in UEM Land Berhad v. Yongnam Engineering Sdn Bhd [2020] 1 LNS 247 as follows: It is trite law that dissatisfaction with services is not a justification to refuse to abide by the provision of payment to the Plaintiff under the SPA. In any contract where services are rendered, payment must be made, especially so when those services are continued to be provided. The quality (or lack thereof) of such service does not justify refusal to pay. Business operations would reach a standstill if consumers were given the liberty to make or refuse payment depending on what they perceive to be a satisfactory level of services. It would be an affront to business and commercial and sense if such were the case. [43] In this connection, reference is made to UDA Holdings Bhd & Anor v. Bumi Gajah Agencies Sdn Bhd [2010] 1 LNS 1509; [2010] MLJU 2154, where it was held that the defendants' refusal to pay service charges on the basis that they were allegedly dissatisfied with the services provided, was not justified. This was explained by Hadhariah Ismail JC (now JCA): In their defence, the respondent has set out the various complaints they have with regard to the lacking in services rendered by the appellants. The question posed by the appellants is this. Can the respondent use this defence in not paying the service charges when the rest of the there can be any complaint, the purchaser must pay first for them to say services rendered do not commensurate with payment made. Furthermore, the respondent alleged they did not occupy the unit. In the circumstances, they are not in a position to say there were poor maintenance services rendered by the appellants. I find this line of defence is only a conjecture and concoction by the respondent to avoid liability. [Emphasis Added] [44] On a similar note, in Chang Kwok Wah & Ors v. Ong Tee Thong & Ors [2017] 1 LNS 1399, it was held: The SCJ (quite rightly) rejected both of these grounds, holding that there was no evidence that the project had been sold and that there was no evidence of complaints by the defendants over lack of service. In any event, the SCJ held that the defendants have to pay up before they could legitimately complain of lack of maintenance services. The SCJ's findings and conclusions in this regard are in my view, unimpeachable. [Emphasis Added] [45] Based on the authorities, even if the Defendant's dissatisfaction was authentic, the level of services provided does not exonerate the Defendant from their contractual obligation under the SPA to pay the [28] In brief, the claim is a strict liability case. See Hadhariah Ismail JC [as she was then] in Uda Holding Bhd & Anor v. Bumi Gajah Agencies Sdn Bhd [2010] 1 LNS 1509 [2010] MLJU 2154 which was referred in Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v. Paradise Boulevard Sdn Bhd [supra]. [29] The Court would add further. The statutory scheme of SMA 2013 is enacted due to the urbanisation. The scheme provides the important role of JMB with regards to the maintenance of a building. Under the statute, the owners are integral members and part and parcel of JMB. The owners also bear the shared responsibility to pay the maintenance charges. Such a feasible scheme is intended to ensure that the building and common properties are to be well maintained for the benefit of owners as a whole. [30] The Court also wishes to add that the law and the SMA 2013 provide fairly sufficient and various channel by the defendant if she/he is not satisfied with the maintenance carried out by the JMB. [31] After careful and due consideration, the Court is satisfied that the defence is not a valid reason to refuse the payment. [32] Based on the above reason alone, the plaintiff is entitled to the claim. Other Considerations [33] Be that as it may, for the sake of completeness, the Court would discuss other considerations. [34] Based on maxim , the defendant has the burden to prove the allegation. See Evrol Mariette Peters JC [as she was then] in Bandari Simma Realty & Anor v. Ravichanthiran a/l Ganesan (previously practicing as a partner for Messrs Ravi, Aida & Partners) [2021] 9 MLJ 330 as follows: probabilities. [51] Based on the Latin maxim ei incumbit probatis qui dicit, non qui negat, which means that the burden of proof is on the one who declares, not on the one who denies, the plaintiff had the legal burden to prove his case on a balance of probabilities. The legal burden was imposed on the plaintiff as prescribed by ss 101 and 102 of the Evidence Act 1950, which read: Section 101 Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. *** Section 102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all wer [35] After weighing and considering the evidence, it is the finding of fact by this Court that the defendant has failed to prove the allegation. No reliable and contemporaneous document being adduced to support the contention. This is admitted by SD1 while under cross examination as follows: All right Mr. Mat Sham, I got you Mr. Mat Sham I mean do you make any written complaint to JMB? Of course, of course. Where in the bundle, can you show to the court? My account officer will always go down to JMB and complaint where is our statement of account many manu times numerous we are in the same building, you see. I means in the bundle of documents so, there is no written complaint by you to the JMB in relation to what you said just now, am I right? Agree or disagree Mr. Mat Sham? [36] In this regard, see also the Court of Appeal in Guan Teik Sdn Bhd v. Haji Mohd Nor Haji Yacob & Anor [2000] 4 CLJ 324 which held as follows: "In cases where conflicting evidence are presented before a court, it is the duty of the court not only to weigh such evidence on a balance of probabilities but it is also incumbent upon the court to look at all the surrounding factors and to weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise of a given fact, He should, the contemporaneous documents and evaluate whether such [37] This Court also takes full advantage of the audio and visual testimony of the witnesses including SD1. It is the finding by this Court that evidence is contradictory. During cross-examination, SD1 admitted that that the non-payment is due to financial constraint. See cross examination of SD1 as follows: So, do you agree that based on the letter and then the paragraph you just read up you mentioned that because of the short income and the tight cash flow you are unable to meet the commitment, right? Yes. So, including the payment to the maintenance fee, sinking fund to the plaintiff? [38] The Court also wishes to add that the defendant has never lodged nor any formal complaints with the p concerns. More significant, the defendant has never objected to the statement of accounts issued. [39] That being the case, the doctrine of estoppel applies against the defendant. See the Court of Appeal in Kgn Jaya Sdn. Bhd. v. Pan Reliance Sdn. Bhd. [1996] 1 MLJ 233 as follows: accede to the appellant's arguments. We are left in no doubt that the undisputed facts of this case admit of the conclusion that the respondent was, by the conduct of the appellant, lulled into the belief that the appellant had no challenge to the accounts, leave alone the legal relationship between the parties. To put it another way, the appellant, by its silence coupled with the other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties or to the figure which the account showed as owing by it. Having done so, it ought not to be permitted to now contend otherwise [40] See also the High Court in Saujana Triangle Sdn Bhd v. JMB Perdana Exclusive and Tropics [2017] MLJU 1020 as follows: the BCPA 2007 and also relied on the authority Badan Pengurusan Tiara Duta v Timeout Resources Sdn Bhd [2014] 8 CLJ 133 CA. In ould be an offence under the BCPA 2007 to refuse or fails to pay maintenance and management charges under section 34: pay maintenance and management charges commits an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit and shall also be liable to a further fine not exceeding fifty ringgit for every day during which the offence is continued after the tatement of accounts are the monthly accounts as provided under the statutory obligation of the said objected to the charges due as approved in the Annual General Meeting of the Plaintiff Reply, page 49 of the Appeal Record). This Court rely on the case of Orix Factoring Malaysia Sdn Bhd v E Furnishings International Sdn action under summary judgment was against the defendants which arose when the 1st defendant breached the confirming agreement by failing to settle outstanding bills of exchange on the confirming facility on the due dates. The Kuala Lumpur High Court held that there was did not refute any of the monthly statements issued regularly by the plaintiff, the 1st defendant was estopped from denying the existence of the debt by the plaintiff. As the Defendant in this case had never objected to its statement of accounts as exhibited by the Plaintiff and neither could the Defendant prove otherwise by any documentary evidence, this cannot be a triable issue Defence 2: The plaintiff has wound up the developer, Menara Safuan Sdn Bhd [41] It is the considered view that the above defence is entirely irrelevant and immaterial to the claim. [42] The Court is satisfied that the plaintiff is a legitimate entity to file the claim against the defendant. [43] Moreover, no statutory provision provides that the defendant is waived from its duty to pay the charges to the plaintiff if the latter has wound up a developer. Defence 3 and 4: The plaintiff has failed to charge the maintenance charges consistently against all the unit owners and the defendant has yet obtained a strata title [44] With regards to the above defences, the Court finds them not to be valid defences. [45] The Court is of the considered view that no settled law and no statutory provision provide that the defendant is waived from its duty to pay the charges to the plaintiff if the latter has failed to charge the maintenance charges consistently against the unit owners or if the former has yet to obtain a strata title. OTHER CONTENTIONS BY THE DEFENDANT Contention 1: The plaintiff has failed to comply with section 90A (2), Evidence Act 1950 and accordingly failed to prove the sum of RM594,827- 03 [46] computer printed invoices issued by the plaintiff filed in the bundle of document [IDB] at the Enclosure 12 at pages 02 to 271 are not due proof of the contents. In this regard, the defendant contends that no certificate under section 90A (2), Evidence Act 1950 is tendered to the Court. Therefore, the plaintiff has failed to prove the sum of RM594,827-

[47] The Court respectfully disagrees. [48] It is already settled law that tendering the certificate under section 90A (2) is not a pre-requisite to accept or reject the printed document. See the Court of Appeal in Hanafi Mat Hassan v. PP [2006] 1 MLRA 706 as follows: s 90A(2)must be tendered in evidence in order to rely on the provisions of s 90A(3) and (4). However, s 90A(2) indicates that the tendering of a certificate is not a mandatory requirement in all cases. . [49] It is pertinent to consider that before the proceeding of the trial, this Court did categorise the documents as Part B. [50] Under the law, that this Court has the power to give instruction to the parties to ensure economical and expeditious trial. That being so, it is the instruction by this Court that all documents in the bundle unless pleaded fraud, are categorised in Part B. Such power by a trial court is decided by Wong Kian Kheong JC [as he was then] in KTL Sdn. Bhd. v. Leong Oow Lai [2014] MLJU 1405 as follows: If a document is classified as a Part C Document, the party adducing that document bears the evidential burden to satisfy the court on a balance of probabilities the following 2 conditions of admissibility of that document (2 Conditions of Admissibility):

in accordance with the rule against documentary hearsay, the maker of the Part C Document has to be called as a witness the Federal judgment in Capital Insurance Bhd v Cheong Heng Loong Goldsmiths (KL) Sdn Bhd [2005] 4 CLJ 1, at 20, 21-25 and 28. If the maker of a Part C Document cannot be called as a witness, the party adducing that document has to satisfy the court regarding the application of any one of the exceptions to the hearsay rule such as ss32(1)(a) to ss32(1)(a) [ss32(1)(i) and (j) EA only apply to criminal proceedings according to ss32(2)], 33 to 37, 73A(1), (2) and/or 90A(1) EA [s90c EA provides that s90A EA shall prevail over, among others, any other provision of EA relating to the proof of evidence]; AND

primary evidence of the Part C Document as understood in s62 EA must be adduced in court as required by s64 EA the Supreme decision in KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627, at 631. It is to be noted that Explanation 3 of s62 EA provides that a document produced by a computer (in compliance with s90A EA) is primary evidence. If primary evidence of a Part Document is not available, s64 EA provides that secondary evidence [within the meaning of s63(a) to (e) EA] of the