Perbadanan Pengurusan 3 Two Square v 3 Two Square Sdn Bhd (W-02(NCVC)(W)-1457-07/2017)

3 TWO SQUARE SDN BHD (NO SYARIKAT: 612273-X) ...

YONG SHANG MING (NO KP: 830418-14-5999) ... KEDUA [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Bahagian Sivil Guaman Sivil No: 22NCVC-586-10/2013 Antara 3 Two Square Sdn Bhd (No. Syarikat: 612273-X) ... Plaintif Dan

Perbadanan Pengurusan 3 Two Square 2. Foo Ann Wan (No. KP: 560405-01-5856)

Hooi You Von (No. KP: 601031-07-5624)

Loh Kim Tong @ Wong Ah Wah (No. KP: 511102-71-5133)

Lim E @ Lim Hoon Nam (No. KP: 440619-01-5424)

Tan Ching Wei (No. KP: 710416-10-5876)

Ong Poo Lian (No. KP: 480818-10-5876)

Dr. Abdul Aziz Bin Hj Kechil (No. KP: 470606-07-5127)

Ir. Yap Yee Hock (No. KP: 640221-06-5031) ... Defendan-Defendan 2 Dan Yong Shang Ming (No. KP: 830418-14-5999) ... Pihak Ketiga] (DI DENGAR BERSAMA DENGAN) DALAM MAHKAMAH RAYUAN MALAYSIA [BIDANG KUASA RAYUAN] RAYUAN SIVIL NO: W-02(NCVC)(W)-1460-07/2017 ANTARA 3 TWO SQUARE SDN BHD (NO SYARIKAT: 612273-X) ... PERAYU

1.

2.

3.

LOH KIM TONG @ WONG AH WAH (NO. KP: 511102-71-5133)

LIM E @ LIM HOON NAM (NO. KP: 440619-01-5424)

6.

7.

8.

IR. YAP YEE HOCK (NO. KP: 640221-06-5031) ... [Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Bahagian Sivil Guaman Sivil No: 22NCVC-586-10/2013 Antara 3 Two Square Sdn Bhd (No. Syarikat: 612273-X) ... Plaintif 3 Dan

Perbadanan Pengurusan 3 Two Square 2. Foo Ann Wan (No. KP: 560405-01-5856)

Hooi You Von (No. KP: 601031-07-5624)

Loh Kim Tong @ Wong Ah Wah (No. KP: 511102-71-5133)

Lim E @ Lim Hoon Nam (No. KP: 440619-01-5424)

Tan Ching Wei (No. KP: 710416-10-5876)

Ong Poo Lian (No. KP: 480818-10-5876)

Dr. Abdul Aziz Bin Hj Kechil (No. KP: 470606-07-5127)

Ir. Yap Yee Hock (No. KP: 640221-06-5031) ... Defendan-Defendan Dan Yong Shang Ming (No. KP: 830418-14-5999) ... Pihak Ketiga] CORAM MARY LIM THIAM SUAN, JCA HAS ZANAH MEHAT, JCA VAZEER ALAM MYDIN MEERA, JCA JUDGMENT OF THE COURT In the High Court [1] The Plaintiff, 3 Two Square Sdn Bhd, was the developer of a mixed strata development known as “3 Two Square”, consisting of six commercial blocks, namely Block A to Block F. The Plaintiff retained ownership of all the strata parcel units comprised in Block F, and sold the remaining strata units in Blocks A to E to various parcel owners. Block F was also known as “Crest Tower”. The 4 Plaintiff instituted the High Court action in its capacity as parcel owner of all the strata units in Crest Tower. [2] The 1st Defendant, Perbadanan Pengurusan 3 Two Square, is the management corporation for 3 Two Square (“Management Corporation”), established by operation of law pursuant to the provisions in the Strata Titles Act 1985 (“STA”) which was then in operation and since replaced by the Strata Management Act 2013. [3] The 2nd to 9th Defendants were at the material time council members of the Management Corporation. [4] The Third Party, being a director of the Plaintiff, was also at the material time a council member of the Management Corporation. The 2nd to 8th Defendants, with leave of court, brought third party proceedings against the Third Party seeking indemnity and contribution in the event that the 1st to 8th Defendants were held liable to the Plaintiff. [5] The Plaintiff asserted that the 1st Defendant, as the Management Corporation, and the 2nd to 9th Defendants, as council members of the Management Corporation, are pursuant to the STA and the Building and Common Property (Maintenance & Management) Act 2007 (“BCPA”) obliged to maintain and upkeep in good proper working condition the common property 5 in 3 Two Square. The Plaintiff contended that the responsibility for the maintenance of these common areas and facilities lay with the Management Corporation. [6] The Plaintiff further alleged that in breach of its aforementioned statutory obligations, the Defendants failed to maintain and upkeep some of the common property in a good state of repair and operation, namely:

(a) failed to maintain the lifts in Crest Tower;

(b) failed to maintain the central cooling system in Crest Tower;

(c) failed to maintain and clean the toilets in Crest Tower;

(d) failed to maintain the common property leading to and surrounding the car parks in the basement car park area;

(e) failed to maintain the stairways and other common areas/property in Crest Tower;

(f) failed to maintain and take care of the landscaping in the area surrounding Crest Tower;

(g) failed to clean the windows and façade of Crest Tower; and 6

(h) failed to maintain the common property within the carpark areas leading to flooding and ponding in the basement carpark. [7] The Plaintiff claimed that arising from the aforesaid breaches of statutory duties, it has suffered losses, as follows:

(a) loss of rental arising from the failure to rent, or failure to renew tenancy agreements for parcel units owned by the Plaintiff in Crest Tower amounting to RM3,658,176.00;

(b) loss of rental from a prospective tenant who refused to take up tenancy within Crest Tower amounting to RM1,562,346.00;

(c) loss of profits from car parks in the sum of RM200,200.00;

(d) expenses incurred in maintaining the central cooling tower which is essential for the central air conditioning system in the sum of RM19,410.00;

(e) expenses inc urred to engage a contractor to maintain and clean the public toilets in Crest Tower from 1.1.2013 to 31.10.2013 amounting to RM37,355.40; and

(f) the cost of maintaining the common properties within the car park of Crest Tower amounting to RM2,900.00. 7 [8] The Plaintiff further alleged that the 2nd to 9th Defendants had breached their fiduciary duty to the Plaintiff by misusing the Management Corporation’s sinking fund by making payment out of this fund for certain repair and maintenance works without these expenditures being approved by a special resolution at a general meeting of the Management Corporation. These payments were instead approved at weekly meetings of the management council attended by some and not all council members. The Plaintiff states that payments out of the sinking fund can only be made upon being approved by a special resolution as stipulated in s. 46 of the STA and hence seeks an order that monies utilized from the sinking fund for these repair and maintenance works be repaid by the 2nd to 9th Defendants to the Management Corporation. [9] The Plaintiff sought to make the 2nd to 9th Defendants personally liable for what it contended were breaches of duty by the Management Corporation, claiming that these defendants were in breach of not only their statutory duties but also their fiduciary duties owed to the Plaintiff. [10] Wherefore, the Plaintiff claimed the following reliefs:

(a) a mandatory injunction requiring the 1st Defendant, as the Management Corporation, and the 2nd to 9th Defendants, as council members of the Management Corporation, to carry out their statutory and fiduciary duties 8 and obligations and properly maintain all common property including the following:

(i) the lifts in Crest Tower;

(v) the landscape surrounding Crest Tower;

(b) a declaration that the Defendants are under an obligation to maintain all the common property within 3 Two Square under the STA and BCPA, including the lifts, toilets in the common area, central cooling tower in Crest Tower and the car parks;

(c) special damages;

(d) general damages for the breach of statutory and fiduciary duties by the Defendants; 9

(e) interest at the rate of 5%; and

(f) cost on solicitor client basis. [10] The 1st to 8th Defendants in their Defence denied any breach of their statutory or fiduciary duties. They further contended that:

(a) the chiller and cooling tower, the lifts and toilets in Crest Tower do not form part of the common property in 3 Two Square primarily because the benefit of these facilities accrue exclusively to the Plaintiff and its tenants;

(b) the Plaintiff had agreed to contribute a higher management fee to the Management Corporation in order to defray the costs of the facilities under dispute or had agreed to bear the operating and maintenance costs of such facilities, and hence it was estopped from putting forward a position to the contrary;

(c) there was no legal requirement to obtain a special resolution of the Management Corporation in general meeting before utilizing the sinking fund; and

(d) the flooding and ponding issues in the basement carpark were the result of defective works from the construction of 3 Two Square and not the 10 result of any failure by the Management Corporation to properly maintain the common property. [11] The 9th Defendant denied liability on the basis that he was never involved in any of the decisions undertaken by or on behalf of the Management Corporation, which are the subject matter of this action. [12] The 1st to 8th Defendants commenced third part action against Yong Shang Ming who was a director of the Plaintiff, and who was appointed to the management council of the Management Corporation as a representative of the Plaintiff. Findings of the High Court

(i) Allegation of misuse of sinking fund without special resolution [13] The Learned High Court judge found that on a proper construction of s. 46 of the STA, no special resolution was required for the use or application of the sinking fund. Accordingly, the Plaintiff’s claim for the repayment to the Management Corporation of the monies utilized from the sinking fund for repair and maintenance works was dismissed.

(a) a mandatory injunction for the Management Corporation and its council members for the time being to undertake the maintenance and management of such common property;

(b) a declaration to the effect that the Management Corporation was obligated to maintain all common property at 3 Two Square including, without limitation, the lifts, the toilets and central cooling tower at Crest Tower and the common property located in the carpark. [15] In this regard, the learned High Court judge allowed the Plaintiff’s claim for special damages in connection with the costs incurred by the Plaintiff in maintaining the central cooling tower and toilets in Crest Tower.

(a) the Plaintiff failed to prove that the carpark flooding was attributable to a failure by the Management Corporation to maintain the carpark premises;

(b) the Plaintiff did prove that, on balance, there had been a failure to maintain the lifts in Crest Tower to an acceptable standard, and that this responsibility lay with the Management Corporation;

(c) one of the Plaintiff’s tenants, Novartis Corporation Malaysia Sdn Bhd, had refused renewal of its tenancy due to the problems associated with the flooded carpark and the frequent breakdown of the lifts at Crest Tower; and 13

(d) the loss of Tune Talk as a tenant was not proven to be attributable to the Defendants as the testimony on this issue was merely hearsay. [19] Based on these findings, the High Court held that the Management Corporation was only partially responsible for the loss of Novartis as a tenant, and determined its liability at 30% and allowed the claim for special damages in part only. [20] The following special damages were allowed:

(a) RM19,410.00 for the cost incurred by the Plaintiff in maintaining the central cooling tower in Crest Tower;

(b) RM37,355.40 for the cost of maintaining the toilets in Crest Tower;

(c) RM203,232.00 being 30% contribution of the Management Corporation in respect of the Plaintiff’s loss of Novartis Corporation Malaysia Sdn Bhd as its tenant; and

(d) RM15,390.00 being 30% contribution of the Management Corporation in respect of the Plaintiff’s loss of rental income from the carpark.

(v) General damages [21] The High Court allowed the plaintiff’s claim for general damages and directed that assessment be conducted to determine the costs incurred by the 14 Plaintiff in undertaking the rewiring of Crest Tower as well as the electricity charges incurred by the Plaintiff in respect of the common property in Crest Tower.

(i) RM250,000 for the Plaintiff against the Management Corporation with a direction that this cost is to be paid out of a special fund to be collected from among all the parcel owners but excluding the Plaintiff;

(i) Common property [26] The Plaintiff’s action was commenced prior to the coming into force of the Strata Management Act 2013 on 1 June 2015. Hence, the Strata Management Act 2013 will not apply to the determination as to whether the areas and facilities in question, i.e. the central cooling tower, lifts and toilets in 16 Crest Tower, are common property. Instead, that determination would have to be done by reference to the meaning ascribed to “common property” in the STA. [27] In the STA, common property is defined in s. 4 as follows: “common property” means so much of the lot as is not comprised in any parcel (including any accessory parcel), or any provisional block as shown in an approved strata plan; [28] Based on this definition and the evidence presented, the learned High Court judge found that the cooling tower for the centralized air conditioning system, the lifts and public toilets in Crest Tower were common property. The evidence showed that the cooling tower was not located on any parcel belonging to the Plaintiff nor to any other parcel owner. Further, learned counsel for 1st to 8th Defendants conceded that the toilets adjacent to the lift lobbies on every floor in Crest Tower were located in an area marked as “Lobi Lif” in the strata plan, hence placing them outside the areas comprised in the parcels belonging to the Plaintiff. [29] Nevertheless, the 1st to 8th Defendants contended that the relevant facilities were not common property on two grounds, namely:

(a) firstly, that the strata plan did not specifically identify the relevant areas as common property, in that there was no “common property” label affixed to these areas in the strata plan; and 17

(b) secondly, that the central cooling tower, toilets and lifts in Crest Tower were for the exclusive use of the Plaintiff and its tenants, and as such they cannot be considered common property. [30] On the first point, we find that the definition of “common property” in s. 4 of the STA defines it by exclusion, that is, common property is simply that which is not comprised in any parcel (including any accessory parcel), or any provisional block as shown in an approved strata plan. Hence, under s.4 of the STA, by exclusion, all those areas not comprised in or demarcated as parcels would be common property. Thus, we agree that the central cooling tower, lifts and public toilets in Crest Tower, which do not form part of the strata parcels or any accessory parcel are common property. The fact that these areas are not demarcated as common property in the strata plan does not mean that they are not common property. After all any demarcation on the strata plan would have been done by the Plaintiff as the developer of 2 Two Square. [31] And on the exclusive use argument, we agree with the findings of the learned High Court judge that even though the utility of these facilities accrue substantially (even if not exclusively) to the occupiers of Crest Tower, the cost of maintenance of such facilities cannot be left to the Plaintiff as strata parcel owners in that tower block. As these areas are common property, it would be 18 the obligation of the Management Corporation to maintain such property as set out in section 43(1)(a) of the STA, which provides as follows:

(a) to manage and properly maintain the common property and keep it in a state of good and serviceable repair; [32] The issue of whether an area in a strata development is common property cannot be construed by reference to its mere utility of these areas/facilities to certain parcel owners. Nowhere is the concept of exclusive or special use provided for in the STA. Maintenance charges imposed on the parcel owners by the Management Corporation is for the maintenance and management of all the common areas in the strata development. Crest Tower is part and parcel of the 3 Two Square, and it so happens that the Plaintiff owns all the strata units in Crest Tower, but that does not mean that the Plaintiff as proprietor of all strata parcel units in Crest Tower has to manage and maintain the cooling tower, lifts and public toilets in Crest Tower or for that matter any other common property in that tower block. [33] The fact that the Plaintiff is the only proprietor of the strata parcels in Crest Tower is simply a matter of circumstance. The Plaintiff is at liberty to dispose any one or more of its parcels to any third party. And if it does, the facilities in issue, such as the centralized air-conditioning, as well as the lifts and 19 toilets located at Crest Tower would be capable of being used by these future owners in common with the Plaintiff, its employees, agents and tenants. In this regard, we entirely agree with the learned High Court judge when he held that: “... the proper categorization of a facility as common property cannot depend on the identity of the proprietor in question, as an absurd result will arise if the facility is not considered common property on one day (and thus need not be maintained by the management corporation) but would be considered common property once the proprietor sells one of his parcels to a third party. It is well established that the court may favour an interpretation of statute that does not lead to an absurd result: see the dicta of Denning MR in Northman v Barnett London Borough Council, as applied by the Federal Court recently in Kesatuan Pekerja-Pekerja Bukan Eksekutif Maybank Berhad v Kesatuan Kebangsaan Pekerja-Pekerja Bank & Anor [2017] 1 LNS 296.” Hence, we are fully in accord with the learned trial judge’s finding that the onus and responsibility for the maintenance and upkeep of these facilities in Crest Tower rests with the Management Corporation.

The management corporation shall maintain a special account in which shall be paid such portion of the contribution to the management fund as may be from time to time determined under paragraph (ba) of subsection 41(5) by special resolution for the purposes of meeting its actual or expected liabilities in respect of the following matters:

(a) for painting or repainting any part of the common property which is a building or other structure;

(b) for the acquisition of any movable property for use in relation with the common property;

(c) for the renewal or replacement of any fixtures or fittings comprised in any common property and any movable property vested in the body corporate; and

(d) for any other expenditure not being expenditure incurred under subsection 43(5) to meet a liability for maintenance or for settling any defaults in payment by a proprietor. [35] Section 41 of the STA referred to in section 46 reads: Duty of original proprietor to convene first annual general meeting 21

(1) It shall be the duty of the original proprietor to convene the first annual general meeting of the management corporation within one month after the expiration of the initial period.

(a) to decide whether to confirm, vary or extend insurances effected by the management corporation;

(b) to decide whether to confirm or vary any amounts determined as contributions to the management fund; (ba) to determine the portion of contribution to the management fund to be paid into the special account to be maintained under section 46;

(c) to determine the number of members of the council and to elect the council where there are more than three proprietors; and

(d) to decide whether to amend, add to or repeal the by-laws in force immediately before the holding of the meeting. 22 [36] We agree with the decision of the learned trial judge that based on a proper construct of s. 46 of the STA (which was then in force and has since been repealed by the Strata Titles (Amendment) Act 2013 with effect from 1.6.2015), a special resolution is only required to determine the portion of the management fee contribution that is to be applied to the special account, and not for any use of the funds in the special account to defray expenses. Hence, we agree that once the proportion of the management fee to be contributed by the parcel owners to the special account has been determined by special resolution, the Management Corporation, and by extension the management council, would be free to utilize the sinking fund in any manner it considers fit and proper, so long as the purposes for which it is utilized comes within the matters specified in sub-paragraphs (a) to (d) of s. 46 of the STA. No special resolution is required for the utilization of funds in the special account to defray expenses stipulated in s. 46 of the STA, for none is stipulated in the STA. [37] In any event, the evidence shows that the use of the sinking fund for the purposes that the Plaintiff complains had been approved by the Management Corporation at its third annual general meeting held on 14.9.2013, where the details regarding the usage of the sinking fund had been included in the accounts that was tabled at the said general meeting. The general body at the third 23 general meeting had approved the said accounts. Hence, there is ratification of these expenses by the general body. [38] Thus, we find that the learned High Court judge was correct in rejecting this claim for the sum of RM249,634.00 be repaid to the Management Corporation by the 2nd to 9th Defendants for there is no breach of any fiduciary duty as alleged. [39] Corollary to that finding is that the issue of the 2nd to 9th Defendants being personally liable to the Plaintiff to reimburse the expenses defrayed for the installation of lift locking mechanisms, installation of closed circuit television cameras, waterproofing works and electric calibration works using the funds in the special account does not arise for consideration.

(b) in relation to the common property, the right of user which he would have if he and the other proprietors were co-proprietors thereof. In this regard, the main responsibility of a management corporation, as spelt out in s. 43(1) of the STA, is to manage and maintain the common property in the strata development and keep them in a state of good and serviceable repair for and on behalf of the parcel owners. Hence, the duty of the management corporation under s. 43(1) of the STA is owed to all proprietors collectively, as co-proprietors of the common property. [48] In this regard, we concur with the observation of the learned High Court judge that the management corporation would act primarily through the council 29 and any individual council members to whom a power or duty may have been delegated in accordance with item 5 of the Second Schedule, as well as any person who is employed as an agent or servant of the corporation pursuant to item 6 of the same Schedule. Accordingly, we find that the council’s duty and that of the individual council members, like that of the management corporation, must necessarily be owed to all the proprietors collectively. [49] The Plaintiff sought to make the council members. i.e. the 2nd to 9th Defendants personally liable to the Plaintiff for their alleged breach of fiduciary duties. Firstly, we find that on the facts there is no breach of fiduciary duty by the Defendants, and thus, the personal liability of the 2nd to 9th Defendants does not arise. Secondly, for reasons discussed earlier, the fiduciary duty of council members is owed to the management corporation and the parcel owners collectively and not to individual parcel owners. Hence, the learned High Court judge had correctly dismissed this aspect of the Plaintiff’s claim.

(v) Claim for loss of rental & carpark income [54] The Plaintiff claimed damages for the loss of rental income arising from the loss of a tenant and another potential tenant. The Plaintiff attributed this loss to the failure of the Defendants to adequately maintain the carpark common areas to avoid flooding and the failure of the Defendants to properly maintain the lifts in Crest Tower. [55] Now, as for the carpark, it was common ground that the basement carpark was prone to flooding. The carpark was owned by the Plaintiff but the driveways in the carpark and all other areas between the carpark lots were common property that came within the purview of the Management Corporation. The Plaintiff contended that the flooding in the carpark was the 33 result of inadequate maintenance by the Management Corporation, including the sump pumps located in the carpark. Whilst, the Defendants contended that the cause of flooding was a result of defective construction works and not maintenance failure. In this regard, evidence was led to show that the Plaintiff had sued the waterproofing specialist contractor who had carried out the waterproofing works at the basement carpark for defective works. A consent judgment was entered into between the Plaintiff and the waterproofing specialist; subsequent to which, further waterproofing works were carried out in the basement carpark by the waterproofing specialist. Based on the overall evidence, the learned High Court judge had found that the Plaintiff had failed to prove that the carpark flooding was attributable to inadequate maintenance by the Management Corporation. We do not find any reason to disagree with that finding. [56] As for the lifts, the learned High Court judge was correct to find that they were part of the common property and that the responsibility to maintain them rested with the Management Corporation. The question then is whether the Management Corporation had undertaken adequate maintenance of the lifts. The learned trial judge had, based on an evaluation of the evidence, found that the lifts in Crest Tower had not been maintained to a reasonable or even adequate standard. 34 [57] An appellate court does not readily interfere with findings of facts made by the trial court unless the trial judge had fundamentally misdirected himself, such that one may safely say that no reasonable court would have arrived at the same conclusion if it had properly directed itself and asked the correct questions. See, for example, Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395. [58] We have, with the above principles in mind, examined the grounds of judgment of the learned High Court judge and found that the conclusion reached by him as regards the adequacy of maintenance of the lifts is unsupported by evidence, and in fact the evidence supports the Defendants’ contention that they carried out proper and regular maintenance of the lifts at Crest Tower. [59] There had been several incidence of the lifts malfunctioning and getting stuck or overshooting the floor. This included an incident where an employee of a tenant at Crest Tower had when entering the lift car suffered injuries by falling into the lift compartment as a result of it having stopped well below the level of the floor. The Management Corporation had attended to these complaints and ensured that the lifts were regularly maintained. The Defendants had adduced documentary evidence showing that the Management 35 Corporation had engaged Sigma Elevator (M) Sdn Bhd to undertake regular servicing and maintenance of the lifts at Crest Tower. Sigma Elevator was also engaged to be on standby during peak hours between the hours of 7.30 – 8.30 am and 5.30-6.30 pm in March 2014 in order to address any issues relating to the lifts malfunctioning. As for the safety of the lifts, the Defendants adduced the Certificate of Fitness issued by the Jabatan Keselamatan dan Kesihatan Perkerjaan, the government regulatory body, to show that the lifts had undergone regular regulatory inspections and that the safety equipment employed in the lifts were in good working order. The Management Corporation had also attended to improving the functionality and safety of the lifts by the installation of the lift locking mechanisms utilising funds from the special account, which was objected to by the Plaintiff and became part of the claim herein. [60] When the totality of the evidence is considered, we find that the Management Corporation and the council members have done all that they could possibly have done to properly maintain and upkeep the functionality and safety of the lifts in Crest Tower. There is no evidence indicating that the Defendants could have done something more to attend to the Plaintiff’s complaint. The 2nd to 9th Defendants are lay persons who had volunteered their services to carry out the duties and responsibilities of the Management 36 Corporation. In so far as the lifts are concerned, they would have to act in accordance to the professional advice of the managing agent, Clements, and the technical advice of the elevator systems experts, in this case Sigma Elevator. It is not as if the Defendants had disregarded professional and technical advice leading to the lifts not functioning properly. [61] We found that the evidence shows that the Defendants had done all that they could possibly have done in respect of the problems associated with the lifts. In this regard, we found that the learned trial judge had failed to properly evaluate the evidence and correctly apply the law to the facts. The evidence does not support the learned judge’s finding that the Defendants had breached their statutory duty by failing to adequately maintain the lifts in Crest Tower. This, with due respect, is an appealable error on the part of the learned trial judge. Thus, we have allowed the appeal by the Defendants’ in this regard. [62] The trial court had awarded damages to the Plaintiff (on the basis of the Defendants being 30% liable):

(i) in the sum of RM203,232.00 against the Management Corporation for losses incurred by the refusal by the Plaintiff’s tenant, Novartis Corporation Malaysia Sdn Bhd, to renew its tenancy ostensibly for reasons 37 associated with the flooding of the carpark and the frequent breakdown of the lifts;

(d) of the Order dated 22.6.2017.

Tuntutan ganti rugi am Plaintif dibenarkan dengan tertakluk kepada pentaksiran ganti rugi oleh Hakim untuk tanggungan kerja-kerja pendawaian semula (“re-wiring”) Crest Tower, bil-bil elektrik yang ditanggung oleh Plaintif bagi Kawasan bersama di Crest Tower dan kos-kos penyelenggaraan tandas-tandas di Crest Tower oleh Plaintif yang masih berterusan; [64] Whilst dismissing the Plaintiff’s claim for general damages arising from breaches of statutory and fiduciary duties, the learned trial judge had ordered general damages to be assessed for matters that were not specifically pleaded. In paragraph (7) of the Order, the learned judge had ordered assessment of damages for the cost of re-wiring, electricity bills and the cost of maintenance of the toilets in Crest Tower. However, the claim for general damages in the pleadings was limited for breach of statutory and fiduciary duties. We found the order for assessment of general damages made by the learned judge was not in accord with the pleaded relief as it relates to matters beyond the allegations of breach of statutory or fiduciary duties. In fact, there is already an award of 39 special damages for the cost of maintenance of the chiller and cooling tower and public toilets, with an ancillary order for the assessment of any continuing cost and expense incurred by the Plaintiff in these regard (see paragraphs 4(a) and

(b) of the Order). Therefore, we found the award of general damages for the cost of re-wiring, electricity bills for the cooling tower and the cost of maintenance of the toilets in Crest Tower to be beyond the Plaintiff’s pleadings and unsustainable. If the Plaintiff had in fact incurred such cost and expense, it could have proved it at trial and claimed it. Hence, we found that there was no basis in law for the order of assessment of general damages and accordingly set-aside paragraph (7) of the Order.

(a) the sum of RM250,000.00 be paid by the Management Corporation to the Plaintiff, which amount is to be paid out from a special fund where contributions are collected from all parcel owners in 3 Two Square with the exception of the Plaintiff;

(b) the sum of RM75,000.00 be paid by the Plaintiff to the 9th Defendant; and

(c) the sum of RM75,000.00 be paid by the Management Corporation to the Third Party, which amount is to be paid out from a special fund where 40 contributions are collected from all parcel owners in 3 Two Square with the exception of the Plaintiff. [64] Though s. 78 of the STA permitted the court to make an order that a successful plaintiff in a claim against the management corporation need not contribute to costs awarded to plaintiff, it had been repealed at the time the judgment was pronounced. And, with the repeal of s. 78 of the STA, the Strata Management Act 2013 (“SMA”) governed any order of cost to be made in this case. The applicable section would be s. 143(4)(a) of the SMA. However, the learned judge had departed from a literal reading of s. 143(4)(a) of the SMA and made the order of cost as he did on grounds that a literal interpretation of that section would bring an absurd result. Be that as it may, since the Plaintiff was only partially successful in its claim and failed in its appeal; and the Defendants had partially succeeded in their appeal, we found that a more equitable order for cost would be for all parties to bear their own cost here and below. Therefore, the order of cost made by the High Court was set aside and substituted with an order that cost be borne by the respective parties here and below. [65] In the premise of the above, the Plaintiff’s appeal in Appeal No: W- 02(NCVC)(W)-1460-07/2017 was dismissed and the Management Corporation’s 41 appeal in Appeal No: W-02(NCVC)(W)-1457-07/2017 was allowed in part, as explained above. Orders accordingly. Dated: 27th December 2019 sgd Vazeer Alam Mydin Meera Judge Court of Appeal Counsel/Solicitors 42 Appeal No: W-02(NCVC)(W)-1457-07/2017 For Appellant: David Samuel (L.S. Leonard dan Savrena Kaur together with him) Tetuan Chambers of Firdaus Peguambela dan Peguamcara Unit No.J-5-1, 5th Floor, Parklane Commercial Hub Jalan SS 7/26, Kelana Jaya, 47301 Petaling Jaya Selangor Darul Ehsan. Tel : 7887 5360 For Respondent: Christie Soosay Nathan For R2 Tetuan Christie Soosay Nathan & Associates J-5-11, No.2 Jalan Solaris, Mont Kiara, 50480 Kuala Lumpur Tel : 7968 8288 Celine Chelladurai Oommen Kurien, HH Jee & Tan Wei Li together with him) M/S Tho, Hock & Chwan, Lot 5.21, 5th Floor, Plaza Prima Jalan Kelang Lama, 58200 Kuala Lumpur Appeal No: W-02(NCVC)(W)-1460-07/2017 For Appellant: Celine Chelladurai (Oommen Kurien, HH Jee & Tan Wei Li together with him) M/S Tho, Hock & Chwan, Lot 5.21, 5th Floor, Plaza Prima Jalan Kelang Lama, 58200 Kuala Lumpur For Respondent: David Samuel (L.S. Leonard dan Savrena Kaur together with him) Tetuan Chambers of Firdaus Peguambela dan Peguamcara Unit No.J-5-1, 5th Floor, Parklane Commercial Hub Jalan SS 7/26, Kelana Jaya, 47301 Petaling Jaya Selangor Darul Ehsan Tel : 7887 5360 43