Susur Saujana Sdn Bhd v Kbc Management Corporation (BA-12ANCvC-24-02/2022)

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1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN CIVIL APPEAL NO. BA-12ANCVC-24-02/2022 BETWEEN APPELLANT/DEFENDANT SUSUR SAUJANA SDN. BHD. AND RESPONDENT/PLAINTIFF KBC MANAGEMENT CORPORATION 10/12/2022 15:12:10 BA-12ANCvC-24-02/2022 Kand. 26 JUDGMENT [1] Claim by plaintiff as the Management Corporation (MC) of Kelana Business Centre (KBC) against defendant is for payment of alleged outstanding service, maintenance and water charges and sinking fund contributions for an executive office unit 703, in the sum of RM284,166.41 as at 30.4.2021 with interest and costs. [2] The office unit 703 is owned by the defendant, since 6.8.2020. It was previously owned by Urus Untung Sdn Bhd (UUSB) whom had purchased it from Faeiz Corporation Bhd (FCB). [3] The charges were duly paid by UUSB during the respective period of ownership of Unit 703. But subsequently, both UUSB and defendant had refused to pay any outstanding charges on grounds of validity and accuracy of the charges, so it was disputed. [4] Contention by defendant is that the charges imposed are not substantiated with credible evidence vis supporting documents. It is also alleged, there were inconsistencies in the statement of account issued by predecessor to plaintiff, the Joint Management Body (JMB) for the year 1999 to 2011 and the statement of account issued by the plaintiff MC for the year 2012 to 2014. There is also question raised on the sums charged by the JMB, like no charges were levied in the year 2003 and water charges were arbitrarily deducted between the year 2004 to 2006. Hence, in sum total the proof afforded by the plaintiff vide affidavit evidence is inconclusive as against the defendant. [5] The other material issue raised by defendant is that, the alleged charges comprising monies is payable by FCB to the JMB, adding up to RM157,535.12 and to the plaintiff RM61,674. The pivotal issue, is the debt due from FCB attributable to the defendant? [6] Both the MC and JMB are regulated by the Strata Management Act 2013 (Act 757) in terms of debt recovery; detailing the mode and manner of collection and recovery by plaintiff from any person or entity, including the defendant and never willy-nilly. [7]

Preamble

Pursuant to section 25(1) of Act 757, each purchaser is required to make payment of charges and sinking fund contributions. In the event of default, the JMB is entitled to pursue a claim against the purchaser cum parcel owner, which is FCB, for the material time when the charges were incurred, by virtue of section 34 of Act 757. [8] It is undisputed, FCB occupied Unit 703 as the purchaser throughout the tenure of the JMB, for the period 1999 to 2011. So, with dissolution of the JMB, any or all outstanding charges are due and payable by FCB only and no other entity. Thus, it is asserted by defendant that the plaintiff as MC, evolving from the JMB, has acted ultra vires Act 757, by commencing the current proceeding against defendant for the outstanding payments which are not attributable to the defendant. [9] Upon incorporation of the plaintiff as MC for Kelana Business Centre, it has the vested right to continue to pursue with the claim for outstanding charges incurred against FCB. But plaintiff has pursued against the defendant instead. [10] In compliance with Act 757, specifically section 60(4), the proprietor FCB ranks in priority to pay up the outstanding charges, followed by its successor in title, UUSB. It is not the defendant. Sequentially, it is not plucked from thin air, but fortified by the decision of the Court of Appeal in the case of Brighvite Sdn Bhd v Pantai Towers Management Corporation & Anor appeal (2018) MLJU 209. To reiterate, pursuant to the statutory restrictions under Act 757, the claim for outstanding charges, follows that it cannot be pursued against the defendant, but FCB or UUSB. It is also apparent that the JMB had slept on their right to sue for over 22 years and now has opted to pursue against the defendant. [11] In sum total, there are triable issues apparent on the face of record, to wit – • Are the outstanding charges claimed by plaintiff attributable to the defendant? • What is the basis for the plaintiff to have sued the defendant, when the charges are owed by FCB? • Pursuant to the statutory restriction under Act 757, claim by plaintiff has to be pursued against FCB, or UUSB and not the defendant? • The pivotal issue, is the correct defendant sued for the outstanding charges which were incurred by FCB? • Is plaintiff justified in suing the defendant, after inertia for a long period of about 22 years? • It is apparent, the said property has changed hands a few times; and the current defendant commenced occupation of the said premises since the year 2020, whilst the outstanding charges claimed was for the period prior to the defendant taking over the unit. • Moreover, the sum claimed is not definite, pursuant to dispute by the defendant; it is unsupported by requisite documents, including accurate statement of accounts. It has to be reiterated, the charges incurred are not recent but for the years 1999 to