Sime Darby Property (Bukit Raja) Sdn. Bhd. v 1. ) Tribunal Pengurusan Strata (BA-25-28-03/2020)

1.

WONG CHAN KEONG (No. K/P: 660407-02-6119)

TAN BEE BEE (No. K/P: 671123-01-5294) …RESPONDEN-RESPONDEN JUDGEMENT [1] This is an application for judicial review seeking an order of certiorari to quash the award of the First Respondent in favour of the Second Respondent and Third Respondent on 23.12.2019. Specifically, the applicant is seeking the following reliefs from this court: a. An order of Certiorari to quash the Award in which the Applicant is required to adjust the parking lot to a dimension of 5.0 metre x 2.5 metre in accordance with the Guidelines S/N 776zL4/zxU6VUET3paywsw and Selangor State Planning Standards within a period of 30 days from the date of the Award; b. A declaration that the parking lot with the size dimension of 2.4 metre x 4.8 metre was being built in accordance with the building plan approved and allowed by the Majlis Perbandaran Subang Jaya and that the applicant has complied with the said building terms; c. All consequential orders and directions as this Honourable Court deems fit; d. The cost for this application and the incidental cost following this application are included as the cost in the cause; and e. Other reliefs as this Honourable Court deems fit and proper. BACKGROUND [2] The second and third Respondents are purchasers of a residential condominium unit know as Unit B-19-02, Putra Residence, Putra Height, Selangor (“the Property”) in the housing project developed by the Applicant (“the Housing Project”) through a Sale and Purchase Agreement date 18.6.2014 (“the Agreement”). According to the Accessory Parcel Plan in the First Schedule of the Agreement, the parking lot allocated to the Property is CP259 and CP260 on the 4th floor (Podium). [3] The Housing Project is completed with the parking lots to each property within the Housing Project being built in in accordance with the building plan approved by the Majlis Perbandaran Subang Jaya (“MPSJ”). S/N 776zL4/zxU6VUET3paywsw Delivery of the vacant possession of the said Property to the Second and Third Respondents has been done via a notice of delivery of vacant possession by the Applicant on 31.5.2018 which is supported by a Certificate of Completion and Compliance date 21.5.2018 (“the CCC”) [4] The Second and Third Respondents filed a claim against the Applicant on 27.5.2019 to the First Respondent under the Strata Management Act 2013 which included an issue on the car park CP 259. [5] The First Respondent upon hearing the claim delivered an award ordering the Applicant to adjust the parking lot to a size of 5.0 metre x 2.5 metre in accordance with the Guidelines and Selangor State Planning Standards (“the Selangor Guidelines”) within 30 days from the date of the Award (“the Award”). The size of the car park as built according to the plan BGN/600-1/10/4 (BP3(1)) approved by Majlis Perbandaran Subang Jaya was 4.8 metre x 2.4 metre. PRINCIPLES RELATING TO JUDICIAL REVIEW [6] An application for judicial review is governed by Order 53 of the Rules of Court 2012. [7] In the case of Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417, the court held: “It seems to us that it should be treated as trite law that judicial review is not an appeal from a decision but a review of the manner in which the decision was made and S/N 776zL4/zxU6VUET3paywsw the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable.” [Emphasis added] [8] In the case of BU Developmen Sdn Bhd v Selangor Appeal Board & Ors [2014] 8 MLJ 539, Vernon Ong J (as His Lordship then was) held that “…the decision of the body may be quashed by an order of certiorari where (i) that body has acted without jurisdiction; or (ii) that body has exceeded its jurisdiction; or (iii) body has failed to comply with the rules of natural justice in a case where the rules are applicable; or (iv) there is an error of law on the face of the record or the decision is unreasonable in the Wednesbury sense. In short, whether certiorari will lie to quash the decision which has already been made by that body depends not on the decision itself but on whether the decision was made ultra vires, unfairly or unjustly in the exercise of the disrection.” [Emphasis added] [9] The Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as reproduced below: S/N 776zL4/zxU6VUET3paywsw “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of S/N 776zL4/zxU6VUET3paywsw natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” [Emphasis added] [10] Founded on these principles, this court will now consider the grounds raised by the applicant. GROUNDS RAISED BY APPLICANT [11] In this application for judicial review, the grounds raised by the Applicant are as follows:

The First Respondent had erred in law and/or facts in arriving at the Award;

(ii) the award delivered by the First Respondent was unreasonable, irrational and/or perverse; and

(iii) the First Respondent has committed a serious irregularity in granting the award. S/N 776zL4/zxU6VUET3paywsw

The First Respondent had erred in law and/or facts in arriving at the Award; [12] The learned counsel for the Applicant argued the First Respondent had erred when he held that the Applicant is bound by the Selangor Guidelines despite the fact that the Applicant had complied with the building plan approval by MPSJ. It was argued by learned counsel that any construction needs to be built based on building plan, and in this case the building plan as approved by appropriate authority MBSJ. [13] It was therefore argued that the Award of the First Respondent to make the parking bay bigger is against the plan approved by MBSJ. Hence, the Award of the First Respondent is illegal and irrational. It was argued that the dimension of the parking lots is in accordance to the building plans as approved by MBSJ and that the Certificate of Completion and Compliance (“CCC”) had been issued. [14] In this regard, reference was made to the case of Pua Yu Len & Anor v Bandar Eco-Setia Sdn Bhd [2018] MLJU 761 where See Mee Chun J (as her Ladyship then was) stated the following: “CCC issued for the property on 22.5.2013 is prima facie evidence that the property was built in a good and workmanlike manner and has conformed with the approved building plans and the property is safe for occupation.” [Emphasis added] S/N 776zL4/zxU6VUET3paywsw [15] It was submitted the Selangor Guidelines are mere guidelines with no force of law. As such, the Applicant is not bound by the Selangor Guideline. Moreover, the applicant argued that the Applicant had complied with the approved building plan by MBSJ. [16] The fact that the CCC was issued is not in dispute. However, even though the CCC was issued, the Second and Third Respondents’ car park CP 259 would be inaccessible if there is a car in car park bay CP 258. Moreover, the affidavit in support of the application affirmed by Abd Malek bin Isman dated 17.3.2020 [Enclosure 3] attached an approved car park plan which did not have the measurements of the car park bay or lots. [17] The crux of this application is that Second and Third Respondents’ compliant that the car park CP 259 is obstructed when there is a car parked at CP 258. The Second and Third Respondents when purchasing the condo including the car park lot would have an expectation that it would be fit for its purpose. Here the car park CP 259 is obstructed and cannot be utilized when there is a car in CP 258. The Award of the First Respondent was for the Applicant to rectify this situation to enable the Second and Third Respondent to be able to utilize car park lot CP 259. [18] It is the considered view of this court that the effect of the size of the car park lot could not have been appreciated until the said car park lot was ready for utilization. It was only then the owners of car park lot CP 259 could see the issue with the car park lot CP 259. [19] For this reason, this court is of the considered view that this ground is without merit. S/N 776zL4/zxU6VUET3paywsw

(ii) the award delivered by the First Respondent was unreasonable, irrational and/or perverse [20] It was argued by the Applicant that the Award delivered by the First Respondent to order the Applicant to adjust the size of the car park lot CP 259 and to hold that the parking is not fit for purpose and hence defective is unreasonable, irrational and/or perverse. [21] It was submitted the Award ordering the Applicant to adjust the parking lot CP 259 to a size 5.0 metre x 2.5 metre is not in accordance with the building plan approved by MBSJ. [22] It was submitted that the First Respondent had relied on the technical team and site inspectors in arriving at the award. This same technical team had found and confirmed in their report that the car park lot was built to size as per the approved building plan. [23] It is the considered view of this court that the fact the car park was built according to the building plan approved by MBSJ is not in dispute. The question before this court is whether car park lot CP 259 is fit for purpose? If a car is parked in car park lot CP 259 and another car is parked in lot CP 258, the car parked in car park lot 259 is blocked by the car parked in car park lot CP 258. [24] While this situation may not have been envisaged by the approved building plans, the fact remains that the car park lot CP 259 is not accessible if a car is parked in car park lot CP 258. What is the effect if the car park lot CP 259 cannot be used? Where are the respondents to S/N 776zL4/zxU6VUET3paywsw park their car if not in the car park lot CP 259? It is the view of this court the car park lot CP 259 is not fit for its purpose.

(iii) the First Respondent has committed a serious irregularity in granting the award. [25] It was submitted that the Award is prejudicial and has caused biasness against the Applicant. The Award was argued to prejudice the substantive rights of the Applicant and is not in accordance with the MBSJ approved building plans. It was submitted that the car park was built according to approved building plans and hence should not be altered. Reference was made to the case of Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd & Anor Appeal [2018] 6 CLJ 683. [26] The Applicant had stated and confirmed that the Malaysian Standard Car Park Guideline is adhered to. Applicant’s affidavit in support affirmed by Abd Malek bin Isman [enclosure 3]. In the same affidavit in support at Exhibit SDUDSB-4, the Applicant avers the MBPJ guidelines were adopted and not the Malaysian Standard. This is because the approving authority MBSJ did not have guidelines. Hence the Applicant adopted the MBPJ guidelines. This court is of the considered view there is contradiction in the applicant’s affidavit evidence. [27] Additionally, before this court there was no explanation pertaining to the contradiction in the affidavit evidence. S/N 776zL4/zxU6VUET3paywsw Conclusion [28] For the abovementioned reasons, this court finds there is no merit to this application. The application is dismissed with costs of RM 2500.00. Date: 23 August 2022 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam S/N 776zL4/zxU6VUET3paywsw Counsel: For The Applicant: Dato’ Pretam Singh A/L Darshan Singh Tetuan Pretam Singh, Nor & Co Suite A-10-09, Level 10, Menara UOA Bangsar, 59000 Kuala Lumpur +6 03 2284 6722 For The 1st Ahmad Hanir bin Hambaly @ Arwi Respondent : Jabatan Peguam Negara Bahagian Guaman Aras 6, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya +6 03 8872 2000 For The 2nd & 3rd Wong Chan Keong, Tan Bee Bee Respondent : No. 40, Jalan Putra Murni 3/2D Putra Heights, 47650 Subang Jaya, Selangor S/N 776zL4/zxU6VUET3paywsw