Suria First Holdings Sdn Bhd v Tribunal Pengurusan Strata (WA-25-299-09/2023)

ARA HILL JOINT MANAGEMENT BODY ...RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT Introduction [1] The Applicant applies for an interim stay in respect of the decision of the Strata Management Tribunal issued on 24.8.2023 pending the disposal of the substantive judicial review application. Salient facts [2] The 2nd Respondent filed a claim in the Strata Management Tribunal seeking payment of RM 69,810.96 for outstanding maintenance charges and contributions to the sinking fund calculated up to 15.4.2023, in respect of the Applicant’s unit in Ara Hill Condominium. [3] On 24.8.2023, the Strata Management Tribunal issued an award in favour of the 2nd Respondent where the Applicant was ordered to pay RM 69,810.96 (“Tribunal Award”). The payment was ordered to be made within 30 days from the date of the award. At the same time, the counterclaim filed by the Applicant was dismissed. [4] The Applicant was dissatisfied with the award. It then filed the present judicial review application seeking to quash the Tribunal Award. It claims that the decision was tainted with illegality, irrationality, procedural impropriety and offended the principle of proportionality. [5] Leave to apply for judicial review was granted on 12.12.2023. Pending the hearing of the substantive judicial review, the Applicant now applies for an interim stay of the Tribunal Award to halt the enforcement of the payment of RM 69,810.96. Grounds in support of stay [6] The Applicant claims the status quo ought to be maintained and that there are special circumstances warranting a stay. In the event stay is not granted, the outcome if it favours the Applicant, will be rendered nugatory. Analysis and decision [7] Order 53 r 3(5) provides that the mere grant of leave under this rule shall not operate as a stay of the proceedings in question. Thus, the court is not obliged to grant an automatic stay upon the grant of leave. It is trite that the grant of leave in judicial review proceedings is an exercise of the court's discretion. (See: Nasioncom Holdings Bhd v Suruhanjaya Sekuriti [2008] 4 MLJ 620, Tan Bun Teet & Ors v Menteri Sains, Teknologi dan Inovasi Malaysia & Ors [2013] 3 CLJ 1115 (CoA)). Certain conditions must be satisfied first. [8] The Court of Appeal in Jagdis Singh Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 3 CLJ 47 dealt with the key factors to bear in mind when deciding whether or not to grant a stay as follows, Now, what factors or principles will, and should, guide the courts in applications for a stay of an order granted by a court. These factors or principles have been reiterated in very many of cases decided by our courts. The factors or principles so enumerated are inexhaustive, and not all of them are applicable to every case. Each has its own peculiar principle. Some of the principles to be considered in the motions may be stated as follows:

the courts have an unimpeded discretion to grant or refuse stay. In this, like in all other instances of discretion, the court is bound to exercise that discretion both judicially as well as judiciously and not erratically (see Serangoon Garden Estate Ltd v Ang Keng [1953] 1 MLJ 116; Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86);

an unsuccessful party applying for a stay must show ‘special circumstances’. What will constitute ‘special circumstances’ will no doubt vary from case to case. The fact that an appeal would be rendered nugatory if stay was refused is the most common one (see Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257; [2003] 4 CLJ 1 and Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2) [1976] 1 MLJ 131). The application is not granted as a matter of routine and it is not an automatic or mechanical relief slavishly followed after filing an appeal. In every matter or suit before a court of law, whether in its original or appellate stage of proceedings, the court will consider the competing rights of both parties including the applicant and respondent to justice;

there is a need to preserve the res or preservation of the subject matter of litigation. The courts have an obligation to protect the res for the purpose of ensuring that the appeal, if successful, will not be rendered nugatory (see Erinford Properties Ltd v Cheshire County Council [1974] 2 WLR 749). But where it is shown by affidavit evidence, say by the respondent, that the res will not be destroyed or there is in fact no res, an application may not be granted;

where an application is an abuse of the court process, then the stay of proceedings will not be granted. A typical example of abuse of court process is where a suit is duplicated or where a party employs improper and perverse procedure to obtain an advantage undeservedly;

it is important to stress that initiation of a suit in a court of law demands the suit will be heard expeditiously and completed without any inhibition midway. Therefore, where an application for stay of proceedings is intended to merely stop or suspend the proceedings; it will be refused. Some applicants, on seeing the weakness of their client’s case, would resort to application for stay and thereby waste the time of the other party and the court. The party simply cannot resort to the interlocutory of stay proceedings on having the slightest disagreement with any ruling of a trial judge. Courts are enjoined not to encourage such unwholesome practice; and

an applicant for stay of proceedings must come with clean hands because what he is asking is an equitable relief. Equity will not assist the unclean. That is why the court has to look into the antecedents of the parties. [9] Guided by the principles as aforesaid, it leaves me now to consider the application for stay. Special circumstances [10] The primary consideration is whether special circumstances exists, the most common being the nugatory principle. The Applicant is obliged to show that the substantive judicial review will be rendered nugatory if stay is refused. In this regard, I am not persuaded whether by way of affidavit evidence or counsel’s submission, that the Applicant has proven this. [11] The award is a monetary award. The Applicant was ordered to pay a specified amount. The payment of the amount to the 2nd Respondent would not change the position of the parties in any way as to render the hearing of the substantive judicial review futile. In the event the Applicant succeeds at the substantive judicial review, it is entitled to a refund of the payment made by the Applicant in compliance to the Tribunal Award. [12] In other words, no irreparable harm will result if stay is refused. To reiterate, the award pertains to only a monetary judgment. The sum is also not substantial. [13] Irreparable harm suggests a situation that is not capable of being reversed. (See: Perwira Alam Sdn Bhd v Tribunal Pengurusan Strata & Anor [2023] MLJU 1288). There is nothing before me to show that the Applicant would be unable to obtain a refund in the event it succeeds in the judicial review proceedings. Therefore. there is no likelihood of irreparable harm occasioned if stay is not granted. Merits are irrelevant [14] In applying for stay, the Applicant has gone to great lengths to show its case has merits. It contends that the Tribunal Award was erroneous as maintenance charges claimed by the 2nd Respondent was premised on square foot rather than share unit. Consequently, the Tribunal Award was ultra vires the Strata Management Act 2013. [15] Regardless of the merit of the Applicant’s case, numerous authorities have reiterated that merits of the case is irrelevant in applying for a grant of stay. [16] The Federal Court in Kosma Palm Oil Mill Sdn Bhd & Ors vs Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 held as follows: There are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if the stay was referred is the most common one. The merits of a party’s case in a stay application is not a relevant matter for consideration. (Emphasis added.) [17] Justice Abu Bakar Jais J (as he then was) held in Professional Solutions Sdn Bhd v Pentadbir Tanah Seremban & Anor and another case [2019] 9 MLJ 1, [57] On this note too, it should be reminded that in an application for a stay pending the determination of a court’s case, the merits of that case is not an issue. It does not matter whether the case would be likely concluded in favour of the applicant for stay. [18] In the light of the authorities cited and the principles enunciated, I am not to be concerned with the merits of the Applicant’s case. Instead, the primary consideration remains whether special circumstances has been demonstrated by the Applicant. No deprivation of the successful fruits of litigation [19] Having succeeded before the Tribunal, the 2nd Respondent ought to be allowed to enjoy its fruits of litigation. It ought not to be deprived of it merely because a judicial review application has been filed. The Court of Appeal in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 held, The approach taken by most judges appears to be that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. [20] In my view, the 2nd Respondent ought to be allowed to benefit from the Tribunal Award. The fact that the Applicant has filed these proceedings to challenge the award should not preclude the 2nd Respondent from enforcing the Tribunal Award. Conclusion [21] Premised on the foregoing reasons, the application for stay is dismissed. The Applicant is pay costs of RM 3,000.00 to the 2nd Respondent. Dated: 31st December 2025 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: Sophia Au May San Tetuan Lui & Bhullar Counsels for 2nd Respondent: Chan Wei Yang (Ho Yong Yi together with him) Tetuan Josephine, LK Chow & Co.