Mentari Business Park JMB v mentari properties sdn bhd (BA-22NCVC-354-06/2016)

This suit started in 2016 and is a dispute between the Plaintiff, Joint Management Body of Mentari Business Park (“JMB”) and the Defendant, as the developer who is also the owner and operator of the 400 car park lots in the development (“Car Parks”).

The suit concerned ownership of the Car Parks and it concluded on 19 February2019 when the Court of Appeal affirmed the Judgment of the High Court dated 25 June2018 that the Car Parks were not part of the common property as asserted by the JMB.

The issue that remained was the Court of Appeal’s order for the High Court to assess how much Car Park electricity charges had been paid for by the JMB on behalf of the Defendant that should be paid back to JMB. Basis of assessment 4. The terms of the Court of Appeal order were as follows: “The Respondent’s (Plaintiff’s) alternative claims at paragraph 18(d) of the Statement of Claim for maintenance and electricity bills for the four hundred (400) car park lots at Block B of Mentari Business Park are allowed to the extent that the Appellant is directed to pay the necessary bills if any whereby this matter is subject to an assessment of damages to be decided by the Senior

For completeness, paragraph 18(d) of the Statement of Claim reads as follows: “secara alternatif kepada perenggan (c) di atas, sekiranya Mahkamah mendapati Defendan adalah pemilik sebenar 400 petak parkir tersebut, maka Defendan diarahkan untuk membayar yuran penyelenggaraan dan bil elektrik bagi petak parkir tersebut dari tarikh penubuhan Plaintif hingga tarikh kini pada kadar yang akan ditaksirkan kelak”

The relevant period for the assessment is between the period July 2008 when the JMB was formed until July 2019 (inclusive). From August 2019, a separate meter was installed for the Car Parks following the determination that it is not part of the common property. Analysis and findings

The JMB produced an expert affidavit dated 5 February2020 that attached a report by an expert from HSK Consult Sdn. Bhd. (“JMB Expert”) who calculated the “load consumption usage at the premises.” The JMB Expert was appointed in 2015 and it is not stated when he conducted the 26-day study referred to in his report. In any case, the undated report was qualified as being “based on a very limited information and mainly based on the ‘Main

The JMB Expert’s calculations did not make any reference to any actual electricity bills paid by the JMB for the period in question. It is not entirely clear if the study was a desktop study or if any empirical data was used. This Court found that the report itself was not self-explanatory as to the methodology, parameters and assumptions used by the JMB Expert in his calculations.

The conclusion by the JMB Expert from his affidavit, as far as the Court could glean, is that electricity consumption at the Car Parks for a 26-day month was 15,962.076 kWh. The JMB (not the JMB Expert) then produced its own summary table using various electricity tariff rates for the period July 2008 until August 2019 and assessed damages at RM990,207.37.

The Defendant’s rebuttal expert (“Defendant’s Expert”) questioned the JMB Expert’s report and pointed out that the consumption of “fittings” in watts had been estimated by the JMB Expert and are much higher than standard, and an analysis was necessary to understand the basis for his calculations. However, the Defendant’s Expert surmised that according to JMB Expert’s report, the total combined electricity consumption at the Car Parks and the undisputed portions of the common property was 101,704.04 kWh, of which 15.7% was attributed to the Car Parks. This fact did not appear to be challenged anywhere by the JMB.

The Defendant therefore took the position that the amount of actual electricity consumption chargeable to it for electricity use at the Car Parks for the period in question was only RM157,938.06. This was based on the following considerations: a) The JMB’s assessment was way off the mark compared to its previous estimate of RM35,746.49 in electrical charges for the Car Parks in the period from July 2008 until 2014, as asserted during the trial on liability; b) Based on the total combined electricity bills for the relevant period for the Car Parks and common property, which was aggregated at RM2,154,773.56, 15.7% of total consumption is only RM338,183.79; and c) Section 6(1) of the Limitation Act 1953 applies to limit the recoverable damages to the six (6)-year period between August 2013 and July 2019 only, resulting in the reduced figure of RM157,938.06.

Having reviewed all the evidence adduced and premised on the requirement of the law that damages assessed must be actual damages suffered by the JMB, this Court is unable to accept the JMB’s claim for the sum of RM990,207.37 as the figure is disproportionately high, taking into consideration that: a) the unchallenged 15.7% load consumption attributed to the Car Parks, which ratio was also logical considering the averments on affidavit that the common property includes lifts, pumps, air conditioning and other building services, street lighting etc; compared to the Car Parks which primarily consumed electricity only for lighting (tube lights on timers – not all of which were functioning, and emergency lighting) and a 1.4 HP air conditioner in the car park office. b) the best evidence available for the assessment of what the JMB is entitled to, namely the set of actual TNB bills issued for the combined Car Parks and common property for the period in question. Based on an updated tabulation of these bills that was subsequently submitted to the Court, TNB billings for the combined Car parks and common property area for the period July 2008 to August 2019 was RM 2,231,746.38, of which 15.7% is RM350,384.18.

Based on the above, this Court accepts RM350,384.18 as a credible estimation of the damages suffered by the JMB. However, this Court does not agree with the Defendant that the Limitation Act 1953 applies at the assessment of damages stage. It was a matter that ought to have been pleaded at the outset in the Defence on liability, and there is no indication that the statutory limitation defence was in fact raised. Conclusion 14. Damages are assessed at RM350,384.18 with judgment interest accruing thereon at 5% p.a. from the date of the Court of Appeal order on 19 February 2019 until the date of full payment. As the JMB’s claim was substantially reduced, this Court makes no order as to costs. Bertarikh : 18 Ogos 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif: Muhammad Khairuddin bin Annuar Messrs Yoon & Partners Peguam bagi pihak Defendan: