Messrs Chee Hoe & Associates v 1. ) Joint Management Body - Zenith (BA-22NCVC-480-11/2022)

JOINT MANAGEMENT BODY – ZENITH

SEOW MENG WAH

AUDREY YEOW POH LIN

CHAN YAO HSIEN

TEH WOAN CIAN

KEVIN YAP KANG YI

KONG SOO

TINA LEONG SIEW MUN (NO. K/P : 681106-06-5096) ….. DEFENDANTS (in the Original Action) JOINT MANAGEMENT BODY – ZENITH (ESTABLISHMENT NO./SIRI : 0356) ….. PLAINTIFF 2

MESSRS CHEE HOE & ASSO.

LAI CHEE HOE ….. DEFENDANTS (in the Counterclaim) GROUNDS OF JUDGMENT (Striking our parts of claims for lack of locus standi)

After having provided legal professional services to the 1st Defendant-Joint Management Body of a strata development, the Plaintiff sued the 1st Defendant-Joint Management Body and all its seven (7) Officer Bearers for recovery of the legal professional fees said to be due and owing to the Plaintiff.

In the Statement of Claim the Plaintiff purported to claim for declaratory reliefs that the 2nd to 8th Defendants as the Office Bearers of the 1st Defendant/Joint Management Body have alleged breached their fiduciary duties to the 1st Defendant/Joint Management Body and have allegedly not acted bona fide for the interest of the 1st Defendant/Joint Management Body.

The Plaintiff, being advocate and solicitor, is not a purchaser or occupier of any of the parcels of common properties in the strata development managed by the 1st Defendant/Joint Management Body.

In the Defendants’ Defence, there is nothing from the 1st Defendant/Joint Management Body to allege that any of the Officer Bearers has acted outside the scope of authority or responsibility.

At the application of the 2nd to 8th Defendants, this Court on 20 March 2023 struck out the Plaintiff’s claims against the 2nd to 8th Defendants on the ground that the Plaintiff has no locus standi to sue the 2nd to 8th Defendants for any alleged breach of fiduciary duties to the 1st Defendant/Joint Management Body or for not acting bona fide for the interest of the 1st Defendant/Joint Management Body. 3

Dissatisfied, the Plaintiff has appealed to the Court of Appeal. Law on striking out

O.18 r. 19 striking out of a claimant’s suit is only to be resorted to in clear and obvious case where the plaintiff’s action is frivolous, vexatious, or an abuse of the process. Where the claimant’s action is obviously unsustainable or has no chance of success, the claimant’s action is frivolous, vexatious, or an abuse of the process and can be summarily struck out. As long as the claimant has at least one (1) triable issue that is relevant to his pleaded cause of action, the Court will not summarily strike out his claim under O.18 r.19.

Although the Court is generally reluctant to summarily strike out an action on grounds relating to the substantive merits of the case, the Court will in an appropriate case summarily strike out an action which is clearly time-barred, re judicata, premature or where the plaintiff lacks the locus standi or legal capacity to sue. See, for example, the cases of Government of Malaysia v. Lim Kit Siang [1988] 2 MLJ 12, [1988] 1 CLJ 219 (Supreme Court), Metrod (M) Bhd v. MGS Transport Sdn Bhd [2011] 9 MLJ 873 (High Court), etc where the courts struck out the plaintiffs’ suits for lack of locus standi.

In the words of Salleh Abbas LP in Government of Malaysia v. Lim Kit Siang (supra), “Every legal system has a built-in mechanism to protect its judicial process from abuse by busy-bodies, cranks and other mischief-makers by insisting that a plaintiff should have a special interest in the proceedings which he institutes. This special interest is a nexus between him and the party against whom he brings his complaints to court and is known as locus standi.”

In essence, the Plaintiff’s claims in the present case are for recovery of fees and disbursements for legal professional services rendered to the 1st Defendant/JMB. The 2nd to 8th Defendants were Officer Bearers of the 1st Defendant/JMB.

The Plaintiff is a firm of advocates and solicitors, and is not a parcel owner nor an occupier in the development which is managed and maintained by the 1st Defendant/JMB. There is no claim by the Plaintiff for any proprietary right to any parcel or to occupy any common property in the development project. 4

None of the 2nd to 8th Defendants has any privity of contract with the Plaintiff.

In paragraph 55 of the Statement of Claim, the Plaintiff prays for the following reliefs: “55.1. Satu Deklarasi bahawa D2 sehingga D8, sama ada secara bersama dan/atau berasingan (jointly and/or severally), perkerja dan/atau agen mereka telah melanggar tanggungjawab fidusiari mereka kepada Badan Pengurusan Bersama Zenith;

55.2. Satu Deklarasi bahawa D2 sehingga D8 telah secara bersama dan/atau berasingan (jointly and/or severally), telah gagal untuk bertindak secara bona fide demi kepentingan Badan Pengurusan

55.3. Bahawa D1 dan/atau D2 sehingga D8, sama ada secara bersama dan/atau secara berasingan (jointly and/or severally) untuk membayar kepada Plaintif Jumlah Tertunggak sebanyak RM13,809.70 [“Jumlah Penghakiman”] dengan serta-merta;

55.4. Bahawa D1 dan/atau D2 sehingga D8 untuk membayar kepada Plaintif faedah pada kadar 5% setahun atas Jumlah Penghakiman sebanyak RM13,809.70 dari tarikh penghakiman ini sehingga tarikh penyelesaian penuh;

55.5. Taksiran gantirugi am;

55.6. Kos; dan 55.7. Sebarang relief lanjut dan/atau relief yang lain Mahkamah yang Mulia ini fikir sesuai dan wajar”.

As the Plaintiff-law firm is not a parcel owner or any person who claims to have any proprietary interest in any parcel or right to occupy any common property in the development managed by the 1st Defendant/JMB, the Plaintiff has no locus standi to sue the 2nd to 8th Defendants (Office Bearers of the 1st Defendant/JMB) for any of the prayers in paragraphs 55.1 and 55.2 of the Statement of Claim.

In the present case, there is no allegation by the 1st Defendant that any of its officer bearers (2nd to 8th Defendants) has acted without the authority of the 1st Defendant/JMB in appointing the Plaintiff as the 1st Defendant/JMB’s solicitors, there can be no basis for holding any of the 2nd to 8th Defendants personally liable for the fees and disbursements in connection with the 1st Defendant/JMB’s court suits or legal matters. Since the prayer in paragraph 55.3 against the 2nd to 8th Defendants is dependent upon or consequential to prayers 55.1 and/or 55.2 of the Statement of Claim, the Plaintiff also has no locus standi to sue any of the 2nd to 8th Defendants for prayer 55.3 of the 5 Statement of Claim.

In the premises, the Plaintiff has no locus standi to sue any of the 2nd to 8th Defendants in respect of any of the reliefs prayed for in the present case.

It is clear and obvious that the Plaintiff/law firm has no locus standi to sue the 2nd to 8th Defendants for the reliefs prayed for in the present case.

This is a clear and obvious case for striking out the Plaintiff’s claims against the 2nd to 8th Defendants here.

In the premises this Court on 29 March 2023 struck out the Plaintiff’s claims against the 2nd to 8th Defendants with costs of RM8,000, subject to allocator, and directed that case management be proceeded insofar as the Plaintiff’s claims against the 1st Defendant/Joint Management Body is concerned. Dated this : 3rd May 2023 Signed ..……................................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCvC 10) To the parties’ solicitors:

For the Plaintiff : Tan Xin Messrs Chee Hoe & Associates (Kuala Lumpur)

For the Defendants : Wong Yi Wen Messrs Lim, Wong & Co (Kuala Lumpur)