Subsection
(2) A proprietor shall not be entitled to vote if, on the seventh day before the date of the meeting, all or any part of the Charges, or contribution to the sinking fund, or any other money due and payable to the management corporation in respect of his parcel are in arrears. [31] The statute is unmistakable in prescribing that parcel owners who have not fully paid maintenance and other charges in respect of their parcels to the committee of the JMB shall not be entitled to vote at a general meeting of the JMB. That is the consequence for non-payment as prescribed by statute. [32] In any event, again, the defendant did not explain how the inability of the defendant to exercise its voting rights at a general meeting could justify its refusal to pay the maintenance and other charges. [33] The refusal of any parcel owner to make payment of charges due from the owner not only infringes the SPA and the SMA but also affects the financial position of the JMB or management corporation to perform its duty to maintain and manage the common area of the said Complex. In the case of the defendant, it must be stated again that during the period from January 2018 until August 2020 the total amount outstanding from the defendant vis-à-vis its parcels in the Complex is RM 5,094,106.70 as pleaded. The actual amount due however is less, at RM 4,856,109.70 after deduction is made of the sums of rentals of the car park allotted to the defendant. [34] As such, the assertion made by the plaintiff that the fact that the defendant had not since day one paid a single cent for the maintenance of the Complex whilst being the owner of 90% of the units in the Complex has made it "highly impossible for the plaintiff to maintain the Complex to perfection" cannot therefore be taken lightly. [35] For the defendant to raise its main defence that the moneys demanded by the plaintiff are not due to the plaintiff as the Complex was not maintained is therefore wholly tenuous. It is also disingenuous at the same time, and for the Court to accede to this defence would mean that the defendant would be allowed to benefit from its own default. That would not be correct. That is not the law. I need only repeat a passage from the decision of the High Court in Bank Simpanan Nasional v. Rudysham Abdul Raof [2017] 4 CLJ 234 where I had stated:- "No Benefit from Own Default [88] It is also my finding that the appellant is additionally subject to the trite principle of law that a party cannot benefit from his own wrong or default, which in this case, being the negligent mistake by the appellant. It is an established presumption in law that parties to a contract do not intend that either party should be able rely on its own breach of obligations to avoid a contract or obtain any benefit under it, unless the contrary is clearly provided for by the contract (see the House of Lords decision in New Zealand Shipping Co v. Société des Ateliers et Chantiers de France [1919] AC 1" [36] The contentions advanced by the defendant are in substance ones of bare denial in the face of clear contractual terms and statutory provisions especially on the duty of a parcel or unit owner to make payment of the quit rent, rates, assessments, service and maintenance charges, contributions to sinking fund, management corporation charges, utilities and other outgoings in respect of its units at the Complex, amounting to RM 4,856,109.70, and on the voting disentitlement at general meetings if any such payments is in arrears. [37] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to this summary judgment application. The defendant also did not dispute the invoices sent by the plaintiff and only raised its complaints after the writ in the main action was filed. This also suggests the issues raised by the defendant contesting this summary judgment are an afterthought. [38] Above all, the case of the defendants is also riddled with averments which are not substantiated. These are bare averments without real support. No documents were produced by the first defendant to corroborate its stance on virtually all the arguments to challenge this summary judgment application. It is trite that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues (see the Court of Appeal decision in Chen Heng Ping & Ors v. Intradagang Merchant Bankers (M) Bhd [1995] 3 CLJ 690; [1995] 2 MLJ 363). [39] Reference should also be made to the leading judgment of the former Supreme Court on summary judgment application in Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 CLJ 627 which held as follows:- [40] Having evaluated the facts and law arising from this instant case, I have, in the foregoing, determined that the defendants have so plainly failed to raise any triable issue or reasonable defence. It has fallen very considerably short, and not succeeded, on a balance of probabilities, in demonstrating that it has any triable issue to resist the plaintiff's summary judgment application. I additionally find that all the arguments raised by the first defendant to be entirely at variance from and not consistent with either the clear position in law or the undisputed contemporary documents, being the SPA. The resistance of the defendant is futile and must therefore fail. The Counter-claim [16] In so far as Enclosure 12 was concerned, namely the Plaintiff's application to strike out the Defendant and Counterclaim, the Judge ruled as follows; [45] The counterclaims pleaded by the defendant essentially prayed for first a declaration that the defendant does not owe anything to the plaintiff; secondly a declaration that the plaintiff has breached their obligation as a JMB in disallowing the defendant from attending and voting at the AGM; thirdly a declaration that the plaintiff has breached its obligation as the JMB to maintain the said Complex; fourthly an order that the various repairs are to be undertaken to the Complex; and fifthly the plaintiff to pay compensation to the defendant. [46] Now it is quite patent that the prayers in the defendant's counterclaim concerns for all intents and purposes the same arguments that the defendant advanced as its defence to the claim filed by the plaintiff in the summary judgment proceedings. [47] And invariably too, the arguments advanced by the plaintiff to strike out the counterclaim are a repeat of those raised by the plaintiff to defeat the issues claimed by the defendant to be its defence to the main claim. Thus the plaintiff maintained that despite the plaintiff providing security and other maintenance of the said Complex, the defendant as owners of 90% of the units in the said Complex has failed to settle any of the charges in non-compliance with Clause 8 of the SPA. [48] In addition it is observed that such a refusal is also in breach of Section 25 of the SMA. As stated earlier this payment obligation in the SPA and the legislation is mandatory and not qualified by the performance or otherwise of the plaintiff. In any event, there is no evidence that the plaintiff had failed to perform its obligation under the contract or pursuant to any statutory requirement. [49] The issue of illegal squatters was never raised by the defendant, and neither did the defendant itself as owners of the many parcels at the Complex take any action to cause under Order 89 r.1 of the RC 2012 the removal of the said trespassers. Again, the reason for the absence of any complaint is probably due to the fact that even the car parks of the defendant too were rented out to third parties with the knowledge of the defendant (and where some RM 238,000.00 of such rentals was deducted from the total outstanding amount due from the defendant to the plaintiff). [50] No evidence was furnished to prove that the plaintiff was prevented from attending the AGM of the JMB but the inability of the defendant to exercise its voting rights thereat is entirely as a result of his non-payment of the said various charges, in light of the provisions in Schedule 2 to the SMA as referred to earlier. [51] The defendant raised the issue that it was disputing the maintenance rate and that the same was not proven. According to the plaintiff the liquidator for the developer has not raised the rates since the Complex was constructed in the 1990s. But the defendant has never raised any protest on the rate of maintenance charges. Indeed, the defendant as the purchaser had the right to invoke the provision of Section 12 (7) of the SMA to apply to the Commissioner of Buildings for a review but there is no evidence the defendant had resorted to this course of action. [52] It is difficult to characterise the counter claim of the defendant for damages other than being without basis and reason. No loss or damage has been shown but more significantly it is the defendant who owes the plaintiff RM 4,856,109.70 as at Augusts 2020, depriving the JMB of a source of funding to maintain the Complex. [53] The defendant had thus failed to submit any prove of damages for their claim for compensation. The often quoted dictum of Lord Goddard CJ in Bonham Carter v. Hyde Park Hotel [1948] TLR 177 would be most apt in the context, and it is worth reiterating what had been said, as follows:- "Plaintiffs must understand that, if they bring actions for damages it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you give me these damages'. They have to prove it" [54] This was applied in the Federal Court case of Datuk Mohd Ali bin Hj Abdul Majid & Anor (Both Practising As Messrs Mohd Ali & Co) v. Public Bank Berhad [2014] 6 CLJ 269 where it was held by His Lordship Arifin Zakaria CJ as follows:- [32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person's case, the proof of such allegation falls on him. (See s. 103 of the Evidence Act 1950 ). If he fails to prove both the liability and the quantum of damages, he loses the action. [33] Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. This principle is borne out in the case of Bonham-Carter v. Hyde Park Hotel [1948] 64 TLR 177 where Lord Goddard CJ observed: --- This statement was cited with approval by Edgar Joseph JR FCJ in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15; [1994] 3 MLJ 777. [34] The claim by the plaintiff in the present case is for general and special damages arising out of breach of contract and/or negligence. Therefore, the burden rests on the plaintiff to prove the damages and it is not sufficient for the plaintiff to merely assert that he had suffered such damages without proving it. (See The Susquehanna [1926] AC 655 and Bolag v. Hutchison [1905] AC 515). In the circumstances, we hold that the learned High Court Judge was right in ordering that summary judgment be entered on liability with damages to be assessed. (See Dummer v. Brown and Another [1953] 1 QB 710; Tan Ah Chim & Sons Sdn Bhd Iwn. Lim Kean Siew Dan Lain-Lain [2000] 1 LNS 206; [2000] 6 MLJ 670)". [55] The statements of accounts which documented the payments demanded from the defendant covered a period from 2018, yet no payment had been made for any of the 168 units owned by the defendant. [56] The allegation that the Complex was an abandoned building is however untrue based on the pictures exhibited as part of affidavit evidence, for it is revealed that whilst not very well maintained (arguably contributed in no small measure by the non-payment by the defendant), some repair and cleaning activities were being performed at the Complex. [57] In any event the defendant cannot validly contend that such charges were not due to the plaintiff as the JMB because it had not properly managed the Complex because it needs to be emphasized that the defendant had in fact not paid a single cent from the date of its purchase of the 168 units in 2018. Its prayer for an order to repair the premises is also misconceived when the defendant itself had failed to make any payment to the plaintiff for the maintenance of the property. [58] In any event what the defendant counterclaimed for are matters that it could not achieve because of the contractual provisions in the SPA, the requirements in the SMA and as made clear in the various case law authorities. [59] Accordingly I find that the defendant's prayers for declaration are without merit and the damages sought are not in accord with the provisions of the SPA and the SMA. This renders the counterclaim frivolous, vexatious and is otherwise an abuse of process under Order 18 r.19 (1) of the RC 2012. Our Analysis and Decision [17] Essentially, we find that there is no basis for the Defendant to dispute that during the period from January 2018 until August 2020 the total amount outstanding from the Defendant vis-à-vis its 168 parcels in the complex is RM 5,094,109.70 as pleaded. The actual amount due however is less, at RM 4,856,109.70 after deduction was made to account for the sums of rentals of the car parks allotted to the Defendant. [18] In so far as the Defendant's liability to pay the charges is concerned, it is clear that the SMA does not exempt the Defendant from paying the charges because they did not occupy the units for whatever reasons, or they did not use the facilities provided for by the developer or by the JMB. [19] The SMA does not exempt the Defendant from paying the charges because of their dissatisfaction with the services rendered by the JMB. On the contrary, the Defendant's liability to pay the charges is expressly stated in s.25 SMA. [20] The Plaintiff has averred that all invoices have been issued and sent to the Defendant. The Defendant denies receiving any invoices. These invoices are for the period from January 2018 to August 2020. It is inherently improbable that invoices were not sent to the Defendant. [21] The substantial ground on which the Defendant denies any liability to pay the charges is their dissatisfaction with the services that have been provided by the JMB. The Defendant alleges that the complex is in a state of disrepair and dilapidation. The Judge disagreed with the Defendant's contention. [22] The Judge opined that the JMB had performed some services although much more could be done. But it all boiled down to the JMB's financial capability which was badly affected in no small way due to the Defendant's failure or refusal to pay the charges. Thus, the Judge held that having failed to make the requisite payments, it was not open to the Defendant to complain about the quality of services that were rendered by the JMB. [23] The Defendant complained that they were prevented from entering the units or that they were locked out of their units. The Judge found no evidence to back up their complaint. Indeed, until the suit was filed the Defendant never raised any of the issues that were raised via the counterclaim (to oppose enclosure 12) or as triable issues (to oppose enclosure 14). These were all raised in response to the Plaintiff's suit. [24] The Defendant alleged that there were trespassers. If this was in reference to the third party using the Defendant's car park lots then it was open to the Defendant to take it up timeously with the Plaintiff or to take out legal proceedings to evict the third party. But the Defendant did no such thing. They never raised any complaint in regards to the third party's use of the defendant's car park lots. The Plaintiff maintains that the car parks were let out to the third party with the Defendant's consent. But the Defendant denies that they gave any consent. It is important to keep in mind that the Plaintiff did not benefit from the rental arrangement with the third party and the rentals collected, RM238,000.00 was duly deducted from the principal sum owing by the Defendant to the Plaintiff. [25] The next point is the complaint that the Defendant was prevented from attending the AGM. The Judge found this to be unsubstantiated as there was no evidence to back up this complaint. Indeed, if the Defendant were truly prevented from attending the AGM, one would have expected to see a complaint in writing addressed to the Plaintiff or to the Commissioner of Buildings. Hence, this was just a bare allegation. Again, this allegation should not be conflated with the Defendant's obligation (per s.25 SMA) to pay the outstanding charges to the Plaintiff. [26] The Defendant alleged that the Plaintiff could not rely on the SPA to mount the claim for the outstanding charges. In our view, the Plaintiff need not rely on the SPA as the Defendant is required by law, i.e., s.25 SMA to pay the charges to the Plaintiff. [27] Perhaps the last point is the complaint that the Defendant was not allowed to vote. This is provided for in paragraph 21 (2) of the $ 2^{n d} $ Schedule to the SMA which reads: A proprietor shall not be entitled to vote if, on the seventh day before the date of the meeting, all or any part of the Charges, or contribution to the sinking fund, or any other money due and payable to the management corporation in respect of his parcel are in arrears. [28] Hence, the eligibility to vote at an AGM is only for those who are not in arrears. Thus, in the present circumstances, it was incumbent upon the Plaintiff to ensure that in compliance with the law, the Defendant, being in arrears, was not allowed to vote in any AGM. This complaint was therefore devoid of any legal basis. [29] No doubt, counsel for the Defendant criticised the Judge's approach and reasoning in dealing with both applications. But we are constrained to say that we are not persuaded that the Judge's approach was erroneous, the reasoning flawed or the conclusions wrong. Our perusal of the Judge's grounds of judgment reveals that the Judge dealt convincingly with all the points made by counsel for the Defendant in respect of both applications. Result [30] However, having due regard to the facts as disclosed in the affidavits and the pleadings and upon due consideration of the submissions of the parties, we are satisfied that there are no bona fide triable issues warranting a trial. As such, there was no misdirection or error on the part of the Judge in allowing summary judgment per Enclosure 14. We also see no reason to disagree with the Judge that the Defendant's Counterclaim is obviously unsustainable and ought to be struck out summarily. [31] As such, the Judge did not err in allowing Enclosure 12. The appeals are accordingly dismissed and the decision of the High Court dated 25 March 2021 is hereby affirmed. We allow costs of RM5,000.00 (subject to allocatur) to the Plaintiff (Respondent) for each appeal. S. Nantha Balan Judge, Court of Appeal, Putrajaya, Malaysia Date: 29 November 2021 Legal representation: For the Appellant: Lim Chun Loong Wong Yi Wen Messrs. Lim, Wong & Co. H-2-7, Plaza Arkadia, No. 3, Jalan Intisari Perdana, Desa Parkcity, 52200 Kuala Lumpur. Tel: +603 27429513 Ref: LW026/2020/RL/YW For the Respondent: Santhirakala Ramasamy Tetuan Ze Yi & Kee No.B-2-13A Blok B, Taipan 2 Ara Damansara Jalan PJU 1A/3 47301 Petaling Jaya, Selangor Tel: +6012 9003210 Ref: CZI/KL/CL/JMB/PANDAN SAFARI/4788/19/SR Statutes: Order 14 Rules of Court 2012 Order 18 Rule 19 (1) (b),(d) Rules of Court 2012 Section 25 Strata Management Act 2013 Section 34 Strata Management Act 2013 Paragraph 21 (2) - 2nd Schedule to the Strata Management Act 2013 Cases Referred To: Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v. Paradise Boulevard Sdn Bhd [2021] 7 AMR 461, [2021] AMEJ 1215, [2021] 1 LNS 1224, [2021] MLJU 1464 (HC)