Pinggir Mentari Sdn Bhd v Tribunal Pengurusan Strata (WA-25-413-12/2023)

1.

CAMELIA MANAGEMENT CORPORATION (Reg. No.: PTG.SEL.51/1/1-G/4-19) ... RESPONDENTS

This was an application for judicial review by the Applicant to quash the 1st Respondent’s (‘R1’) Award dated 27.11.2023 (‘Award’) for –

the Applicant to pay the 2nd Respondent ('R2') –

RM7,200.00 for the cost of replacement of RFID readers;

(ii) RM45,000.00 for the loss suffered byR2 for the high water charges;

(iii) Interest at the rate of 5% per annum from the date of filing of the claim until full settlement; and

(iv) costs of RM500.00 for the Tribunal proceedings; and

the Award to be settled by the Applicant within 30 days from the date of service of the Award.

The Applicant is a company incorporated in Malaysia and having its registered office address and principal place of business at Level 11, Menara BRDB, 285, Jalan Maarof, Bukit Bandaraya, 59000 Kuala Lumpur. The Applicant is the developer of the housing development in phases known as “Tamansari” in Rawang, which includes the stratified development known as “Camelia” (‘Camelia’).

R1 is a tribunal established under s 102 of the Strata Management Act 2013 [Act 757] (‘SMA 2013’) with its jurisdiction as provided in sub-s 105(1) and Part 1, Fourth Schedule of the SMA 2013.

R2 is the Management Corporation of Camelia established under s 17 of the Strata Title Act 1985 [Act 318] (‘STA 1985’) to, inter alia, manage the subdivided buildings, and manage and maintain the land and common properties in Camelia. R2’s address for service is the Management Office, Jalan Denai 2, Camelia Tamansari, Sungai Bakau, Rawang 48000, Selangor Darul Ehsan.

R2 had filed Claim No. TPS/B-2803-5/2023 before R1 pursuant to s 18 of the SMA 2013 invoking R1’s jurisdiction under sub-s 105(1) read with paragraph 2 of Part 1, Fourth Schedule which provides that: “Subject to subsection 16N(2) of the Housing Development (Control and Licensing) Act 1966 [Act 118], a dispute on costs or repairs in respect of a defect in a parcel, building or land intended for subdivision into parcels, or subdivided building or land, and its common property or limited common property.”.

The relevant cause papers which were filed and referred by R1 are set out below: The Statement of Claim in Form 1 of the Strata Management (Strata Management Tribunal) Regulations 2015 (‘SMTR 2015’) dated 24.5.2023 Exhibit “FTW-2” The Statement of Defence and Counterclaim in Form 2 of the SMTR 2015 dated 21.6.2023 Exhibit “FTW-3” R2’s written submission dated 11.9.2023 Exhibit “FTW-4”

R2 complained of the following defects: “COMMON AREA DEFECTS: 1) BARRIER ACCESS CARD READER ISSUE, INTERFERENCE WITH VEHICLE RFID 2) HIGH WATER BILLING, SUSPECT LEAKING, DEVELOPER DID NOT RECTIFY 3) LISTING OF COMMON AREA DEFECT NOT RECTIFY BY DEVELOPER”.

The Applicant’s Statement of Defence may be summarised as follows:

Barrier access card reader issue which interferes with vehicle RFID: - denies that the interference constitutes a defect; - replacement of the Mi-1808B RFID reader would amount to an upgrade or improvement, not rectification of a defect; - the reader was appropriate and of latest technology at the time of installation and Touch ‘n Go RFID usage was not prevalent then; - the interference arose later due to the nationwide introduction of Touch ‘n Go RFID, which was beyond the Applicant’s control; - the Applicant relies on technical reports and manufacturers’ confirmations to support that the system was suitable when installed; and - alternatively, the existing reader remains capable of validating residents’ access cards, albeit with certain limitations.

High water billing due to suspected leaking: - denies responsibility for the alleged high water bills; - complaints were first raised in 2021 and the domestic water pipe was inspected by the Applicant’s contractor in October 2022; - the domestic bulk water meter was replaced by Air Selangor on 14.1.2023, not by the Applicant, and following the replacement, water charges decreased, indicating that the issue was not caused by any defect attributable to the Applicant; and - accordingly, the alleged high billing does not arise from leakage for which the Applicant is liable.

Whether the alleged defects fall within the Applicant’s liability: - any alleged defects fall within the 24 months’ Defect Liability Period starting from the Certificate of Practical Completion dated 16.12.2019. During this period, the Applicant has the right and obligation to rectify defects, if any; and - R2 cannot recover costs exceeding what the Applicant itself would incur for rectification.

The hearing before R1 was held on 13.7.2023, 28.8.2023 and 18.10.2023.

The Applicant was represented by Foong Tuck Wai (‘FTW’) in the proceedings before R1. FTW is the Applicant’s Senior Manager and in charge of the construction operations.

R2 had informed R1 on 13.7.2023 that it will not be proceeding with its claim in respect of “LISTING OF COMMON AREA DEFECT NOT RECTIFY BY DEVELOPER”.

At the hearing, the Applicant called one witness i.e. Chin Wei Kong (DW1), the representative from GDSS Systems Sdn Bhd (‘GDSS’) which was the Applicant’s consultant for the development.

R2 also produced two witnesses, who were, and still are, residents at Camelia, namely Wong Poh Yik, Multimedia Designer (PW1) and Weladavi Acharige Shasila, Solicitor (PW2). PW2 also appeared for R2 in the hearing before this Court, to which the Applicant did not raise any objection.

On 27.11.2023, R1 handed down the Award in the following terms: “Tribunal membenarkan tuntutan:-

Pihak Penentang hendaklah membayar Pihak Yang Menuntut jumlah sebanyak RM7,200.00 (Ringgit Malaysia Tujuh Ribu Dua Ratus Sahaja);

Pihak Penentang hendaklah membayar Pihak Yang Menuntut jumlah sebanyak RM45,000.00 (Ringgit Malaysia Empat Puluh Lima Ribu Sahaja);

Pihak Penentang dikehendaki membayar kepada Pihak Yang Menuntut kos sebanyakRM500.00;

Jumlah pembayaran hendaklah dibuat dalam tempoh dalam tempoh tiga puluh (30) hari dari tarikh award ini;

Faedah 5% setahun dari tarikh pemfailan Borang 1 sehingga tarikh penyelesaian; dan

Tuntutan Ke-3 adalah dibatalkan dengan kebebasan memfailkan semula.”. The Legal Principles

R1’s jurisdiction is set out in s 105 of the SMA 2013 and for present purposes, sub-s 105(1) is relevant and it reads: “Jurisdiction of Tribunal

(1) The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount. …”.

Paragraphs 1 and 2 in Part 1, Fourth Schedule of the SMA 2013 state as follows: “1. A dispute or complaint concerning an exercise or the performance of, or the failure to exercise or perform, a function, duty or power conferred or imposed by this Act the subsidiary legislation made under this Act, except for those specifically provided for in this Part.

Subject to subsection 16N(2) of the Housing Development (Control and Licensing) Act 1966 [Act 118], a dispute on costs or repairs in respect of a defect in a parcel, building or land intended for subdivision into parcels, or subdivided building or land, and its common property or limited common property.”.

Sub-s 16N(2) of the Housing Development (Control and Licensing) Act 1966 (‘HDA 1966’) stipulates that: “Limitation of jurisdiction

…

The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from the sale and purchase agreement entered into between the homebuyer and the housing developer which is brought by a homebuyer not later than twelve months from –

the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is later;

the expiry date of the defects liability period as set out in the sale and purchase agreement; or

the date of termination of the sale and purchase agreement by either party and such termination occurred before the date of issuance of the certificate of completion and compliance for the housing accommodation or the common facilities of the housing accommodation intended for subdivision, whichever is later. …”.

Sub-ss 117(3) and (4) of the SMA 2013 provide that: “Awards of the Tribunal

…

In making an award under subsection (1), the Tribunal may make one or more of the orders specified in Part 2 of the Fourth Schedule, and may include in the award such stipulations and conditions as it thinks fit and just.

In making an order under subsection (3), the Tribunal shall have regard to-

the relevant provisions of this Act; or

the interest of all parcel owners or proprietors in the use and enjoyment of their parcels or the common property or limited common property.

Paragraphs 1 and 3 in Part 2, Fourth Schedule of the SMA 2013 read as follows: “1. The Tribunal may order a party to the proceedings to pay a sum of money to another party. …

The Tribunal may order the payment of compensation or damages for any loss or damage suffered by a party.”.

Moving on to the decision by R1 and challenging of awards made, sub-s 120(1) and s 121 of the SMA 2013 provide as follows: “Decisions of Tribunal to be final

(1) An award made under subsection 112(3) or section 117 shall –

subject to section 121, be final and binding on all parties to the proceedings; and

be deemed to be an order of a court and be enforced accordingly by any party to the proceedings. …”. “Challenging the award on ground of serious irregularity

(1) A party to the proceedings of the Tribunal may, upon notice to the other party and to the Tribunal, apply to the High Court challenging an award in the proceedings on the ground of serious irregularity affecting the awards.

If there is shown to be serious irregularity affecting the award, the High Court may-

remit the award to the Tribunal, in whole or in part, for reconsideration; or

set the award aside in whole or in part.

For the purpose of this section, "serious irregularity" means an irregularity of one or more of the following kinds which the court considers has caused substantial injustice to the applicant:

failure by the Tribunal to comply with section 113;

failure of the Tribunal to deal with all the relevant issues that were put to it; or

uncertainty or ambiguity as to the effect of the award.”.

In Perbadanan Pengurusan Sunrise Towers v. Tribunal Pengurusan Strata & Anor [2020] 1 LNS 1304, the Penang High Court said: “[8] The “serious irregularity” must be of the kind which the court considers has caused substantial injustice to the applicant. If ‘serious irregularity’ is established the Court may either (i) remit the award to the tribunal, in whole or in part, for reconsideration or (ii) set the award aside, in whole or in part.” (see too, Perbadanan Pengurusan Sunrise Towers v. Tribunal Pengurusan Strata & Anor [2023] 1 LNS 941 and Tan Chooi Lian v. Badan Pengurusan Bersama Plaza Prima & Anor [2024] 7 CLJ).

The Applicant relied on the oft quoted case of R Rama Chandran v Industrial Court Malaysia & Anor [1997] 1 MLJ 145 (FC) for the proposition that, in an application for judicial review, the decision of a tribunal may be reviewed by the court on the grounds of illegality, irrationality and/ or procedural impropriety. The court can scrutinise the decision, not only for the process, but also for the substance of the case.

Further, the Applicant cited the Court of Appeal decision in Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468 where the Court said: “[69] … the decision maker must consider matters required to be considered and disregard irrelevant collateral matters and the decision must be within the perimeters of the statutory powers given to the decision maker on the matter. It goes without saying therefore if the decision is made in compliance with these principles and requirements such decision cannot be said to be unreasonable and is unassailable. But if the exercise of the discretion is made in contravention of any law or that the decision maker has taken into consideration irrelevant matters or that the decision maker has acted in excess of powers conferred upon him in respect of the matter which he decided or that the decision militates against the object of the statute, then the court can intervene and strike down the decision as unreasonable and unlawful.”

R2 submitted that, whilst R Rama Chandran (supra) may have permitted the court to review a tribunal’s decision on grounds of illegality, irrationality and/ or procedural impropriety, the Federal Court in several cases after this decision has also cautioned as follows in Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 6294: “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v. Zaid Noh [1997] 2 CLJ 11; [1997] 1 MLJ 789 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate.”.

The Applicant contended that there was serious irregularity affecting the Award and, as a result, R1 had contravened paragraphs 121(3)(b) and (c) of the SMA 2013 in arriving at the Award. The burden is, of course, on the Applicant to show that there was such serious irregularity.

The two main grounds were whether R1 had committed errors in law and/ or fact and/ or acted in excess of, and/ or, without jurisdiction with regard to –

the barrier access card reader issue; and

the high water billing due to suspected leaking issue.

The issues which arose based on the grounds of application as set out in the Statement (encl. 2), and the reasoning by this Court in respect of each ground of application, are as follows: - Whether R1 had committed errors in law and/ or fact and/ or acted in excess of, and/ or, without jurisdiction with regard to:

The barrier access card reader issue The Applicant submitted that R1 had come to a conclusion based on irrelevant consideration and in doing so had reached a decision which was so perverse and devoid of plausible justification that no reasonable body of persons or tribunal in similar circumstances could have reached. According to the Applicant, R1 failed to take relevant matters into consideration, namely, that –

the Type Mi-1808B reader (‘Reader’) currently installed at the Condominium was manufactured in 2015. The access card system utilising the Reader (‘Access Card System’) was accepted by the Applicant in 2017 during the construction of the development and subsequently installed at the Condominium in 2019. The “Touch ‘n Go” RFID system, which was alleged to have caused delays to the Access Card System validating a resident’s access card, was only officially launched sometime in early 2019. A perusal of the Grounds of Decision (‘GD’) shows that, among the findings of fact by R1, was DW1’s evidence (DW1 was the sole witness called by the Applicant at the hearing before R1, contrary to what is stated in paragraph 10 of the Statement) that – • GDSS was appointed by the Applicant in 2017 to design and install the boom gate to the car park; • GDSS had advised the Applicant to use the RFID system, which was the newest technology at that point of time; • GDSS then appointed SKA Technology Sdn Bhd (‘SKA’) to install the boom gate with the Reader; • the Reader was installed at the Condominium around 2018 - 2019; • the “Touch ‘n Go” RFID came into the market in early 2019; and • the Reader does not have the technology to differentiate between two different signals from two different RFID cards. Therefore, the Applicant’s submission that R1 failed to consider the relevant matters as pleaded in the Statement is absolutely baseless;

(ii) R2 had only raised the complaints regarding the Reader and/ or the Access Card System for the first time on 2.3.2022 as seen from the e-mail from the resident in Unit 19 in Evidence 12. Firstly, this matter was not raised in the Applicant’s Statement of Defence. Secondly, a perusal of the GD reveals that R1 had considered the evidence by PW1 and PW2 and concluded, as a matter of fact, that the problem with the Reader arose from the time soon after the residents took vacant possession of their units. DW1’s evidence was that the vacant possession date was September 2019. In so far as the documentary evidence, R1 considered the relevant documents in Evidence 1, 5 and 6 which show that the residents first faced problems with the Reader on 9.8.2020 and that GDSS had e-mailed to SKA on 7.12.2021, which was copied to “BRDB Foong”, informing that the newly formed JMB has highlighted several defects/ problem with the security system work installed, including “Access card reader sensitivity ongoing still faulty after n2 yrs, especially during rain and cars with RFID”. R1 concluded that the problem occurred during the “developer’s management period” as defined in sub-s 7(2) of the SMA 2013 i.e. “the period commencing from the date of delivery of vacant possession of a parcel to a purchaser by the developer until one month after the establishment of the joint management body …”. In this case, the “developer’s management period” was until 14.12.2021. This fact was accepted by the Applicant (see paragraph 16 of the Statement). According to sub-s 9(1) of the SMA 2013, “Subject to the provisions of this Act, a developer shall, during the developer’s management period, be responsible to maintain and manage properly any building or land intended for subdivision into parcels and the common property.”. Therefore, the position taken by the Applicant that R2 first raised the complaint about the Reader only in March 2022 is contrary to the evidence which was before R1, and R1 cannot then be said to have failed to take into account a relevant matter which was not pleaded and not supported by the evidence adduced at the hearing; and

(iii) based on the technical report dated 6.9.2022 prepared by SKA (‘SKA Report’), the Reader is capable of validating a resident’s access card despite the presence of “Touch ‘n Go” RFID, albeit with certain limitations. Based on the GD, R1 did allude to the SKA Report in Evidence 14. R1 was of the view that the Applicant did not challenge the evidence – • by PW1 and PW2 as regards the complaints that cars, whether with or without “Touch ‘n Go” RFID faced the same problems as the cars with the Reader; and • as regards the Letter Of Assurance issued by MDT Innovations Sdn Bhd (‘MDT’) dated 22.9.2022 to SKA Services Sdn Bhd (Evidence 15) that there had been increasing complaints on frequency interference with vehicles with “Touch ‘n Go” sticker when entering or exiting the guardhouse equipped with auto barrier gates and in view of this, MDT had developed a new model of reader to overcome the problem. In addition, the Applicant argued that R1 took irrelevant matters into consideration i.e. since the installation of the Reader, a more advanced technology to overcome the barrier access card reader issue has been introduced and such technology is available for installation at the Condominium. In coming to its decision, R1 had committed an error of fact and law in awarding to R2 the sum of RM7,200.00 when it failed to consider that replacing the Reader is tantamount to an improvement or addition/ modification to the property when the Applicant’s obligation is merely to repair defects or carry out rectification works. R1 alluded to DW1’s evidence that changing to the new model as stated in Evidence 15 was to be regarded as an upgrade. In the final analysis, R1 was of the view that “… it’s immaterial whether the problem is to be considered a “defect or “upgrade”. It was R’s responsibility to remedy the situation to ensure that the residents to have smooth access in and out the car park.”. Upon review, this Court is of the opinion that there is no serious irregularity affecting the Award. Based on sub-s 9(1) and s 105 of the SMA 2013, R2 is responsible to maintain the Condominium and the evidence supports R1’s finding and conclusion that the Applicant has the duty to rectify the problem. As submitted by R2, the Joint Management Body inherited a flawed or defective/ faulty system. The Applicant did not adduce any evidence that it, or the supplier of the Access Card System, had conducted proper screening tests at the Condominium before the Reader and the Access Card System were installed and used. Furthermore, R1 found that DLA Engineering Services Sdn Bhd had issued a quotation dated 8.3.2023 to R2 for the supply, installation, testing and commissioning of a new reader for the sum of RM7,200.00 as per Evidence 21. Although there was no proof of payment for these works, R1 found that the order in the quotation was accepted as signified by R2’s chop and signature and the Applicant did not dispute that the works were carried out.

The high water billing due to suspected leaking issue The Applicant contended that R1 had committed an error of fact and/ or law when it failed to consider that –

after R2 first raised its complaints concerning the alleged high water charges due to the suspected leaking sometime in 2021, the water supply system was inspected by the Applicant’s contractor, MTL Construction Sdn Bhd (‘MTL’) on 5.10.2022 but no evidence of leakages was found;

(ii) subsequently, the “domestic bulk water meter” in the Condominium was replaced by Syarikat Bekalan Air Selangor Sdn Bhd (‘Air Selangor’) on 14.1.2023 and the water charges thereafter became significantly lower in comparison to the charges before the replacement of the domestic bulk meter; and

(iii) there was no evidence presented by R2 to establish that the alleged high water charges were due to the leakages of the water supply system installed in the Condominium. It was further contended that R1 had erred in fact and/ or law in holding that the domestic bulk water meter in the Condominium was under the purview of the Applicant when, in compliance with s 47 of the Water Services Industry Act 2006 [Act 655] (‘WSIA 2006’), the Applicant had handed over the water supply system to Air Selangor upon the issuance of the Certificate of Compliance and Completion (‘CCC’). Hence, since the domestic bulk water meter was under the purview of Air Selangor, and not the Applicant, R2’s complaints concerning the alleged high water charges should have been addressed by Air Selangor. Based on the GD, R1 adopted the same approach in the analysis of R2’s complaint on high water billing, namely, R1 made finding of facts based on the oral and documentary evidence (see pp 6 - 9 of the GD) followed with the reasoning for the decision (see pp 11 - 14 of the GD). It cannot be overemphasised that the Applicant’s sole witness was DW1 and his evidence pertained to the barrier access card reader issue only. No other witnesses gave evidence for the Applicant. In other words, there was no oral evidence to support the Applicant’s position in respect of the high water billing issue, apart from whatever answers were extracted during the cross-examination of PW1 and PW2, which upon scrutiny of the Notes of Evidence, did not put a dent to R2’s case. Additionally, the Applicant did not file any Written Submission or Reply Submission to R2’s submission after the hearing. It was in the light of these circumstances that R1 made, among others, the following findings: • the high water charges began from the time when the residents took vacant possession and persisted throughout the “developer’s management period”; • the Applicant did not show any proof that it took any action to resolve the issue during the “developer’s management period”. The inspection by MTL was after this period and in fact, no such evidence was adduced at the hearing; • the water charges dropped after the inspection by Air Selangor in December 2022 and January 2023, and not after the change of meter by Air Selangor in April 2023; • the Applicant did not challenge R2’s evidence that Air

Selangor had, by way of the letters dated 31.12.2021,

2.2023 and 17.4.2023 to R2 confirmed that the water meters were in order before and after the change of bulk meter, and that the high water charges were probably due to pipe leakage or usage by unauthorised persons; • the Applicant did not challenge R2’s evidence that there was a possibility of the Applicant’s workers using the water from the common bulk meter for repair or rectification works carried out in the Condominium and of pipe leakage somewhere around the building; This Court accepts R2’s submission that the Applicant should not be allowed to relitigate matters before this Court when it took a lackadaisical attitude towards the issues raised by R2 at the hearing.

Next is the Applicant’s submission that R1 had acted in excess of, and/ or, without jurisdiction in awarding RM45,000.00 to R2 when its jurisdiction under sub-s 105(1) read with paragraph 2 of Part 1, Fourth Schedule of the SMA 2013 and sub-s 16N(2) of the HDA 1966 is confined to “... a dispute on costs or repairs” in respect of a defect in a parcel, building or land intended for subdivision into parcels, or subdivided building or land, and its common property or limited common property.

In the particulars of claim in the Statement of Claim, R2 stated that: “ii. Tertakluk kepada subseksyen 16N(2) Akta Pemajuan Perumahan (Kawalan dan Perlesenan) 1966 (Akta 118), suatu pertikaian mengenai kos atau pembaikan berkenaan dengan suatu kecacatan dalam suatu petak, bangunan atau tanah yang dicadangkan untuk dipecah bahagi kepada petak-petak, atau bangunan atau tanah yang dipecah bahagi, dan harta bersama atau harta bersama terhadnya.”. However, it was also stated that the claim relates to “Common area defects … high water billing, suspect leaking, developer did not rectify”. In other words, R2’s pleaded the claim for high water billing as one which was caused by possible leakages, to which the Applicant did not adduce any evidence to challenge the same.

As for the submission that the Award is defective as R1 failed to provide reasons for the decision, and thereby not complying with the requirement of sub-s 117(2) of the SMA 2013, this is a wild accusation. The GD consists of 14 pages and reasons for the decision were certainly provided as evident in pp 9 - 14 of the GD.

In the premises, the Applicant has failed to establish any serious irregularity with the Award under paragraphs 121(3)(b) and (c) of the SMA 2013 and its application in encl. 15 was accordingly dismissed with costs of RM10,000.00, subject to allocatur. DATED: 29.12.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant : Amir Feisal Ariff (Adlin Binti Ahmad Azmi with him) Messrs. Ariff & Associates Solicitors for the 2nd Respondent: Weladavi Acharige Shasila