Ng Poh Hwa v 1. ) Hijauan Kiara Management Corporation (WA-22NCvC-632-11/2023)

1.

BUKIT KIARA PROPERTIES SDN BHD (COMPANY NO.: 216311-K) ... DEFENDANTS GROUNDS OF JUDGMENT (encls. 12 & 14)

This was an application by the 1st Defendant (‘D1’) in encl. and the 2nd Defendant (‘D2’) in encl. 12 to strike out the Plaintiff’s Writ and Statement of Claim (‘SoC’) dated 10.11.2023

Eventually, I had allowed both applications. Naturally, the Plaintiff is dissatisfied with my decision and is pursuing his right of appeal.

These are my full grounds of judgment.

The cause papers in relation to encl. 12 are as follows:

the Notice of Application dated 15.2.2024 (encl. 12);

D2’s Affidavit In Support (‘AIS’) affirmed by its Director, Datuk Tong Nguen Khoong on 28.2.2024 (encl. 13);

the Plaintiff’s Affidavit In Reply (‘AIR’) affirmed on 20.3.2024 (encl. 16); and

D2’s AIR affirmed by the same deponent on 4.4.2024 (encl. 17).

The cause papers in respect of encl. 14 are as follows:

the Notice of Application dated 19.3.2024 (encl. 14);

D1’s AIS affirmed by its Chairman, How Wei Thing on 19.3.2024 (encl. 15);

the Plaintiff’s AIR affirmed by the Plaintiff on 19.4.2024 (encl. 18); and

D1’s AIR affirmed by its Chairman, Justin Chin E-Loong on 8.5.2024 (encl. 19).

It would be an accurate observation that the instant applications have long been pending in this Court. This is due to the fact that upon the retirement of the previous Judge, the post was left vacant for approximately six months. When the case was first called up before me on 3.10.2024, I was of the view that this case was suited for mediation and the learned counsels who appeared for all the parties were optimistic that the parties would agree to a mediation before me.

Unfortunately, my attempt to resolve the dispute after two mediation sessions was not successful and I then proceeded to give the decision for encls. 12 and 14.

Upon perusal of the SoC, the salient background facts are as set out below.

The Plaintiff is an established developer and director and a long-standing resident of Hijauan Kiara Condo (‘Hijauan Kiara’).

D1 is a Management Corporation (‘MC’) established under the Strata Management Act 2013 [Act 757] (‘SMA 2013’) for the purpose of administering and managing the common properties. D1 is the registered owners of the common properties of Hijauan Kiara.

D2 is a company incorporated in Malaysia with an address at Penthouse, Block B-13A-P1, Plaza Mont Kiara, Mont Kiara, 50480 Kuala Lumpur.

D2 is the registered and beneficial owner of a piece of freehold land held under GM 1063 and GM 4630, Lots 2374 and 2373 both in Mukim Batu, District of Kuala Lumpur (‘said Land’).

D2 undertook the development of the said Land into a housing development with common facilities known as Hijauan Kiara complete (‘said Development’).

By way of a Sale and Purchase Agreement dated 15.4.2005 (‘SPA’), the Plaintiff purchased Unit E-5-1 from D2 (‘said Property’).

15.

A545 and A544 - two car park bays at Level P5 (P5-15 and P5-16);

A432 - one car park bay at Level P3 (P3-27); and

A635 – private lift lobby.

After D2 had handed over vacant possession of the said Property on 28.2.2008 to the Plaintiff, including the car park bays, the Plaintiff encountered problems in parking his vehicle at the car park bay P3-27 (‘Parking Problem’) due to an alleged design flaw in the construction by D2 whereby the driver is unable to exit from the car by using the driver’s door because it is beside the wing wall of the car park block (‘Alleged Design Flaw’).

The Plaintiff asserted that, at all material times, D2 was fully aware and appraised of the Parking Problem.

After the delivery of vacant possession of the said Property, the then Joint Management Body (‘JMB’) and D2 were said to have orally agreed to allot the Plaintiff car park bay P3-26 as an alternative parking bay to car park bay P3-27. The car park bay P3-26 was originally allotted as a visitors’ car park bay (‘Alleged Oral Agreement’).

The Plaintiff claimed that the Alleged Oral Agreement has been documented in the JMB’s records, and subsequently, D1’s after it was formed. Although the Plaintiff states or his family member had sighted the records, they were not given a copy of the same.

Alternatively, the Alleged Oral Agreement was confirmed by the conduct of the parties whereby for approximately 15 years, the Plaintiff had been parking at car park bay P3-26 without any dispute or protest by D1. Furthermore, the Defendants had removed the marking of the visitors’ car park sign on car park bay P3-26 in order to allow the Plaintiff uninterrupted use of the same and D1 did not take any action in accordance with the house rules to assert the Plaintiff's purported unauthorised usage of car park bay P3-26 as an alternative parking bay.

In consideration of the Alleged Oral Agreement, the Plaintiff waived his rights to park at car park bay P3-27.

An implied term of the Alleged Oral Agreement was that the Defendants will take the necessary steps to amend the strata plan to include car park bay P3-26 as an accessory parcel to the Said Property.

The Plaintiff asserted that the Defendants must be bound by the terms of the Alleged Oral Agreement and he has reasonable basis and a legitimate expectation that the Defendants would have taken the necessary steps to adhere to their promises. The Plaintiff has, to his detriment, relied on the said expectation.

In September 2023, the current management of D1 had prevented the Plaintiff from parking at parking bay P3-26 in an unprofessional and harsh manner where D1’s personnel acted aggressively and caused intimidation to the Plaintiff and his family members. On 17.10.2023, D1 wrongfully proceeded to clamp the Plaintiff’s car parked at car park bay P3-26 on the ground that the Plaintiff’s car was parked in an unauthorised car park bay which was meant for visitors. The Plaintiff, as an established developer and director and a long-standing resident of the said Development, has suffered distress and disappointment by these actions and claimed for, among others, the loss of use of his car and the carpark, and damage to his car in a sum to be assessed by the Court.

The Plaintiff claimed against the Defendants for the following:

a declaration that car park bay P3-26 is an accessory parcel to the said Property;

an Order for specific performance for D1 and/ or D2 to amend the strata plan to include car park bay P3-26 as an accessory parcel to the said Property;

an Order for specific performance for D1 and/ or D2 to hand over the strata title of the Said Property with car park bay P3-26 as an accessory parcel to the said Property within 90 days from the date of the Order of this Court or any reasonable extended time as allowed by this Court;

a mandatory injunction to compel D1 to remove the clamp on the Plaintiff’s car;

a prohibitory injunction to prevent D1 from clamping or prohibiting the Plaintiff from using car park bay P3-26; and

general, aggravated and/ or exemplary damages.

D1’s and D2’s applications were made pursuant to limbs (a), (b) or (d) of O. 18, r. 19(1), RC 2012 (there appears to be a typographical mistake in encl. 14 wherein limb (c) was referred to but the last ground of the application is stated as the Plaintiff’s claim being an abuse of the process of the court).

O. 18, r. 19(1) of the RC 2012 reads as follows: “Striking out pleadings and endorsements (O. 18, r. 19)

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

…; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”.

In SS Motor Century Sdn Bhd v Wawasan Sinar Gemilang Sdn Bhd & 4 Ors [2025] AMEJ 1249, I summarised the legal principles in these words: “[16] In considering the instant application, I am guided by the trite legal principles as follows:

it is only in plain and obvious cases that recourse should be had to the summary process under O.18, r. 19(1) of the RC 2012, namely where a claim is on the face of it obviously unsustainable. The degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail of the issues of law and/ or fact. The summary procedure cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action. The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious [see Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC) and Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 (FC)]. The discretionary power may only be exercised in plain and obvious cases where the case has no chance of success [see Pengiran Othman Shah Bin Pengiran Mohd Yusoff v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) [1996] 1 MLJ 309 (CA]. So long as the SoC discloses a reasonable cause of action, however weak the claim is, it cannot be struck off summarily [see Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 2 CLJ 457 (CA), Dato’ Raja Ideris Raja Ahmad & Ors v Teng Chang Khim & Ors [2012] 2 CLJ 288 (CA)]. The court will assume that the contents of the statement of claim are true [see Tuan Haji Ishak Bin Ismail & Ors v Leong Hup Holdings Bhd and Other

in determining an application pursuant to limb (a) of O.18, r. 19(1) RC 2012, O. 18, r. 19(2) provides that no evidence shall be admissible on an application under the said limb. This means that limb (a) must be considered without having regard to the AIS and AIR. The court must be satisfied that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief which it asked for (see Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 (CA) and Amanah Raya Bhd v.

in the context of limb (b) of O.18, r. 19(1) RC 2012, the word “scandalous” means wholly unnecessary and irrelevant and not merely unpleasant allegations. The words “frivolous or vexatious” refer to a groundless action of statement with no prospect of success, often raised to embarrass or annoy the other party to the action. The court has to consider the affidavit evidence adduced by the parties (see Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 (CA) and Thong’s case (supra)]; …

as regards limb (d) of O.18, r. 19(1) RC 2012, an abuse of the process of the court refer to situations where the court’s process is used for an unlawful object and not for the actual purpose intended to achieve justice. The judge is entitled to consider the affidavit evidence [see Thong’s case (supra)].” (see too, Tan Wei Hong & Ors v. Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425 which was cited by the Plaintiff). - D1’s Application

D1 contended that the Plaintiff has no reasonable cause of action against D1 and the claim is scandalous, frivolous or vexatious and an abuse of court process on the following grounds:

the duties and powers of a JMB are as stipulated in s 21 of the SMA 2013 while the duties and powers of a MC are as stipulated in s 59 of the same statute. As a creature of statute, the powers of the JMB and D1 are circumscribed by the SMA 2013 and what the SMA 2013 did not expressly or impliedly authorised had to be taken to be prohibited (see Muhamad Nazri bin Muhamad v JMB Menara Rajawali & Anor [2020] 3 MLJ 645). Based on s 59 of the SMA 2013, D1 has no power to enter into the

D1 has no power under the Strata Titles Act 1985 [Act 318] (‘STA 1985’) to amend the strata plan to include car park bay P3-26 as an accessory parcel to the Said Property.

The Plaintiff countered that the Plaintiff has a reasonable cause of action and a legitimate claim against D1, and that this is not a clear and obvious case that merits his claim to be struck off summarily for the following reasons:

the Alleged Design Flaw by D2, which is not in accordance with the guidelines for parking and internal traffic circulation, and as supported by the Built Survey of car park A432 (PS-27) and A433 as prepared by Jurukur Cekap in exhibit “NPH-4”, encl. 18 must be tested in a trial. The Defendants have not produced any evidence to question the veracity of this Survey;

D1 has acknowledged the Parking Problem. The Alleged Oral Agreement was entered into between the Plaintiff and Tiffany Loo, the Property Services Manager of Bukit Kiara Properties Services Sdn Bhd (‘BKPS’), who was appointed by D1 and D2, and had assisted to mitigate the issues surrounding the Parking Problem on behalf of D1 and D2. The Alleged Oral Agreement is valid and D1 is bound by the same;

under paragraphs 21(1)(i) and 21(2)(h) of the SMA 2013, one of the JMB’s duties is to do such other things as may be expedient or necessary for the proper maintenance and management of the buildings or lands intended for subdivision into parcels and the common property and one of the powers is to do all things reasonably necessary for the performance of its duties under the SMA 2013 and for the enforcement of the by-laws. The Plaintiff also referred to paragraphs 8(1)(i) and 8(2)(g) of the Building and Common Property (Maintenance and Management) Act 2007 which provide as follows: “Duties and powers of Joint Management

(1) The duties of the Body include the following: …

to do such other things as may be expedient or necessary for the proper maintenance and management of the building.

The powers of the Body shall include the following:

to do all things reasonably necessary for the performance of its duties under this Act.”. Based on the case authority of Badan Pengurusan Tiara Duta v Timeout Resources Sdn Bhd [2015] 1 MLJ 110, the JMB’s power could be implied;

there is no encumbrance or restriction under the SMA 2013 that curtails or prevents D1 from entering into the Alleged Oral Agreement. The Plaintiff merely wants to swap car park bay P3-26 with car park bay P3-27; and

D1’s assertion that it has no power under the STA 1985 to amend the strata plan to include car park bay P3-26 as an accessory parcel to the said Property and to hand over the same is not, in itself, sufficient reasons for the entire claim against D1 to be dismissed. The reliefs sought in paragraph 29 of the SoC must be seen collectively. The prayer for an order for specific performance for D1 to amend the strata plan and to hand over the strata title of the Said Property with car park bay P3-26 as an accessory parcel to the Said Property are sought in the alternative. The Plaintiff must be permitted to lead evidence at the trial on this matter. Even if the said prayers are allowed only against D2, there are still the prayers for a declaration that car park bay P3-26 is as an accessory parcel to the said Property and for a mandatory injunction and a prohibitory injunction against D1.

After having considered the cause papers and submissions by the parties, I was inclined to agree with D1’s submissions that D1’s application in encl. 14 should be allowed pursuant to all three limbs as cited by D1 for the following reasons:

For purposes of limb (a) of O.18, r. 19(1) RC 2012, and in line with the legal principles, I considered only the SoC and not any affidavit evidence. A scrutiny of paragraph 29 of the SoC shows that there is no mention that the Plaintiff is seeking for the allotment of car park bay P3-26 as an alternative parking bay to car park bay P3-27 and that the prayer for an order for specific performance for D1 to amend the strata plan and to hand over the strata title of the Said Property with car park bay P3-26 as an accessory parcel to the Said Property are sought in the alternative. The Plaintiff has named D1, which is the MC, and hence, the relevant statutory provision governing the MC’s powers is s 59 of the SMA 2013. Based on this provision, D1 has no power to enter into the Alleged Oral Agreement with the Plaintiff. Furthermore, the prayers sought by the Plaintiff in the Writ and SoC are unattainable in law as D1 has no power under the STA 1985 to amend the strata plan to include the visitor’s car park bay P3-26 as an accessory parcel to the said Property. The visitor’s car park bay P3-26 is considered a common property under s 4 of the STA 1985 as it is a lot not comprised in any parcel. Under sub-s 17B(3) of the STA 1985, D1 shall not have the power to transfer, charge or lien any portion of the common property which forms part of the building or of the land on which the building stands.

For purposes of limbs (b) and (d) of O.18, r. 19(1) RC 2012, I am permitted to consider the affidavit evidence. Upon doing so, I find that there are no averments to dissuade me from striking out the Plaintiff’s Writ and SoC against D1. Based on the photograph in exhibit “H-1”, encl. 15, the Plaintiff’s car is shown at car park bay P3-27 and it is observed that getting out of the driver’s side of the car would not be a problem at all if the Plaintiff does not do reverse parking. In my opinion, the Plaintiff’s claim is frivolous or vexatious. - D2’s Application

D2 contended that the Plaintiff has no reasonable cause of action against them and the claim against them is frivolous, vexatious and an abuse of court process because –

there is no privity of contract between the Plaintiff and D2 in respect of the Alleged Oral Agreement. The Plaintiff cannot impute knowledge of the Alleged Oral Agreement onto D2 through Tiffany Loo, who was the managing agent appointed by the JMB and an employee of BKPS, which is a separate legal entity from D2;

the Plaintiff’s reliance on the doctrine of promissory estoppel to circumvent the privity rule must be disregarded as it was raised for the first time in the Plaintiff’s AIR, when it should have been pleaded in the Reply, as the doctrine of promissory estoppel is used as a shield, and not a sword. Apart from that, the said doctrine cannot apply in the context of this case because the JMB would be the promisor, the Plaintiff, the promisee, and D2 is the third party. Hence, the third party who can claim or enforce the benefit against the promisor is not the Plaintiff, and the promisor is not D2; and

based on the SoC, the Plaintiff’s claim against D2 is not for breach of any terms of the SPA, express or implied. The pleaded claim is not based on the Alleged Design Flaw. This was first raised only in the Plaintiff’s AIR.

The Plaintiff retorted that D2’s contentions are baseless and without merit and that the Plaintiff has a reasonable cause of action and a legitimate claim against D2 as the developer for the following reasons:

the doctrine of privity of contract does not apply as there exists an oral agreement between the Plaintiff and Tiffany Loo who assisted to mitigate the Parking Problem on behalf of D1 and D2. Applying the decision of the Federal Court in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283, the material facts giving rise to estoppel have been sufficiently pleaded. The doctrine of promissory estoppel was raised in the Plaintiff’s AIR to counter the privity point which was raised by D2 for the first time in the AIS. D2 had received information or facts from its application for further and better particulars vide the letter dated 17.1.2024 but D2 did not take any steps to amend its Defence to reflect the privity argument;

D2 has acknowledged the Parking Problem and D2 is bound by the Alleged Oral Agreement. Issues with regards to the Alleged Oral Agreement cannot be decided summarily without a trial; and

the issue pertaining to the Alleged Design Flaw and the built survey as prepared by Jurukur Cekap must be tested in a trial.

I have fully considered the related cause papers and submissions of the parties, and the following are my findings:

Similar to D1’s application, for purposes of limb (a) of O.18, r. 19(1) RC 2012, and in line with the legal principles, I considered only the SoC and not any affidavit evidence. A scrutiny of paragraph 29 of the SoC shows that there is no mention that the Plaintiff is seeking for the allotment of car park bay P3-26 as an alternative parking bay to car park bay P3-27 and that the prayer for an order for specific performance for D2 to amend the strata plan and to hand over the strata title of the Said Property with car park bay P3-26 as an accessory parcel to the Said Property are sought in the alternative. Significantly, D2 had pleaded that it is not privy to the Alleged Oral Agreement between the JMB and the Plaintiff (see subparagraph 5(a) of D2’s Defence dated 28.12.2023, encl. 9). Hence, it is incumbent on the Plaintiff to plead the material facts giving rise to estoppel in his Reply To Defence dated 10.1.2024 (encl. 11), which upon perusal of the same clearly shows that he has not so pleaded. Therefore, D2 was correct in submitting that the Plaintiff’s reliance on the doctrine of promissory estoppel to circumvent the privity rule must be disregarded as it was raised for the first time in the Plaintiff’s AIR, and that in any event, the said doctrine is inapplicable in the circumstances of this case.

Having closely scrutinised the SoC, the Plaintiff’s claim against D2 is not for breach of any terms of the SPA, express or implied, and nor is it primarily premised on the Alleged Design Flaw.

Based on the abovementioned considerations, D1’s and D2’s applications in encls. 12 and 14 were allowed. Costs of RM3,500.00 were ordered to be paid by the Plaintiff to D1 and D2, respectively, subject to allocatur. Dated: 31 July 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA (NCvC2) KUALA LUMPUR Counsels/ Solicitors: For the Plaintiff : Ramesh K. Supramaniam Messrs. Ramesh K. Supramaniam For the 1st Defendant: Razlan Hadri Zulkifli (Lee Guo Wen with him) Messrs. Gan Ho & Razlan Hadri For the 2nd Defendant: Hoi Jack S'ng (Tiffany Low Jia Qi with him)