Tsc Hardware Sdn Bhd (Dahulunya Dikenali Sebagai Thomtape Corporation Sdn Bhd) v Top Win Hardware Trading Sdn Bhd (BA-24NCvC-795-04/2024)

(ii) satu (1) unit kilang beralamat di No. 2, Block A, Jalan Perindustrian BJ2T 2, Kawasan Perindustrian Balakong Jaya 2, Tambahan 43300 Seri Kembangan, Selangor di bina di atas tanah di pegang di bawah Hakmilik Induk Title No. GM 6426, Lot 57700 (dahulu nya di kenali sebagai Geran Mukim 806, Lot 3396), Tempat Sungai Balak, Pekan Kajang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan dengan kawasan berluas 8,770 meter persegi - Hartanah Dan Dalam perkara mengenai deklarasi bahawa Topwin Hardware Trading Sdn Bhd (Defendan Pertama) ada lah pemegang amanah namaan TSC Hardware Sdn Bhd (Plaintif) berkaitan dengan jualan Hartanah-Hartanah tersebut Dan Dalam perkara mengenai hak dan kuasa Top Win Resources Sdn Bhd untuk mengutip caj penyelenggaraan Dan Dalam perkara mengenai Seksyen 17 dan 21 Akta Pengurusan Strata 2013 Dan Dalam perkara mengenai Aturan 7 dan Aturan 28 Kaedah-kaedah Mahkamah 2012 Antara 06/01/2026 08:07:08 BA-24NCvC-795-04/2024 Kand. 45 TSC Hardware Sdn Bhd (dahulu nya di kenali sebagai Thomtape Corporation Sdn Bhd) Plaintif Dan 1) Top Win Hardware Trading Sdn Bhd 2) Top Win Resources Sdn Bhd - Defendan Grounds of Decision

P OS seek the following reliefs : 1) A declaration that the First Defendant is a bare trustee for the Plaintiff in respect of the following properties - a) One (1) unit of factory located at No. 1, Block A, Jalan Perindustrian BJ2T 2, Kawasan Perindustrian Balakong Jaya 2, Tambahan 43300 Seri Kembangan, Selangor built on land held under Master Title No. GM 6426, Lot 57700 (formerly known as Geran Mukim 806, Lot 3396), Tempat Sungai Balak, Pekan Kajang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan with area measuring 8,770 square meters; and b) One (1) unit of factory located at No. 2, Block A, Jalan Perindustrian BJ2T 2, Kawasan Perindustrian Balakong Jaya 2, Tambahan 43300 Seri Kembangan, Selangor built on land held under Master Title No. GM 6426, Lot 57700 (formerly known as Geran Mukim 806, Lot 3396), Tempat Sungai Balak, Pekan Kajang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan with area measuring 8,770 square meters. 2) A declaration that the Second Defendant is not a management body under the Strata Management Act 2013 and has no right to collect maintenance charges; 3) An order that the First Defendant shall execute Form 433 B (Foreigner Consent Form), documents and / or instruments and / or forms necessary to give effect to the subsale transaction of the properties from the Plaintiff to Robin Industrial Sdn Bhd and / or any third party, within seven (7) days from receipt of such documents and / or instruments and / or forms from the Plaintiff and / or the solicitors; 4) In the event that the First Defendant fails to execute the documents and / or instruments and / or forms within the prescribed period, an order that the Court Registrar be empowered to execute such documents and / or instruments and / or forms on behalf of the First ure shall be deemed as valid as if it were that of the First Defendant;

The Defendants, in turn, filed a counterclaim against P. As set out in their affidavit in reply, the Defendants seek the following reliefs : 1) An order that the Plaintiff forthwith pays the Second Defendant the outstanding maintenance charges totalling RM 186,300.00 and interest of ten per centum (10 %) per annum calculated from day to day from the date 2) An order for the Plaintiff to remove and / or resolve the issues of illegal and / or unauthorized extension(s) at the properties;

In respect of the OS, the Defendants had filed an application dated 12.7.2024 via Enclosure 8 to convert the OS into a writ action pursuant to Order 28 rule 8 of the Rules of Court 2012.

On 26.11.2024, Enclosure 8 was disallowed. The developer (as hereinafter defined) was permitted to file an affidavit and be cross - examined.

Pursuant thereto, a cross - examination session was conducted on 16.10.2025. At that session, the parties cross - examined the following deponents:- (i)

(ii) the d deponent.

I allow the OS. Here are the grounds of my decision. Background facts

The 1st Defendant D1 and beneficial owner of a piece of vacant light industrial land held under GM 806, Lot 3396, Mukim of land

Sometime around the year 2010, D1 entered into a joint venture arrangement with Sani - developer Pursuant thereto, D1 granted the developer the right to develop the land into six factory units known as the Sani Industrial Park, a strata - title industrial development, and to sell the same.

On 31.3.2011, P entered into two tripartite sale and purchase agreements (collectively principal SPA the developer and D1 for the purchase of two factory units at the Sani Industrial properties .

The principal SPA was duly completed. Vacant possession of the properties was then delivered to P on 6.3.2012. P has since been the beneficial owner of the properties. Non - issuance of strata title to date

To date, strata titles for the properties, to be derived from the master title to the land, have not been issued. The Defendants complain that the delay is attributable to the unauthorized extensions at the properties, which deviate from the previously approved drawings annexed to the principal SPA.

As the proprietor of the master title, D1 says that it has been pursuing the strata title application. However, the process remains hindered due to the need to address the unauthorized extensions at the site. Maintenance and management of the Sani Industrial Park

Following delivery of vacant possession, the developer initially managed and maintained the infrastructure and common areas of the Sani Industrial Park.

On 7.9.2012, the developer issued letters to all purchasers of the six factory units, including P. The developer notified them that the total monthly maintenance cost for the common areas amounted to RM 5,175. After apportionment among the six units, each purchaser is to contribute RM 862.50 per month.

The Defendants say that all the purchasers in the Sani Industrial Park, except P, have met their responsibility to pay the maintenance charges due to the developer.

On 1.10.2013, upon expiry of the defect liability period, the developer issued letters handing over the management and maintenance of the Sani Industrial Park to one Yap Kok Fui, the majority - elected representative and owner of Unit C.1 and Unit C.2.9.

Thereafter, the said Yap Kok Fui appointed the 2nd Defendant D2 ) to undertake the maintenance and management of the Sani Industrial Park. Subsale sale and purchase agreements

On 3.10.2023, P entered into sale and purchase agreements with Robin Industrial Sdn Bhd ( subsale purchaser ) for the sale of the properties (collectively subsale SPA

Given that the subsale purchaser is a foreign entity, State Authority consent is required in order to give effect to the subsale SPA. The application for such consent must be made using Form 433 B (foreigner consent form), which requires execution by the registered proprietor of the properties.

The solicitors for P forwarded the foreigner consent form to D1 for is that D1 could not proceed with the execution of the foreigner consent form until the following issues are resolved by P :

Firstly, there are outstanding maintenance charges due and payable by P to D2; and

Secondly, there are issues concerning unauthorized extensions at the properties.

As a result, P filed this OS against the Defendants, to which the Defendants then filed their counterclaim against P. Issues for determination

The following issues arise for determination :

Whether D1 is holding the properties as a bare trustee for P;

Whether D1 can refuse or withhold P from transferring the properties to the subsale purchaser on the ground of maintenance charges allegedly owing to D2; and

Whether D2 unlawfully charges maintenance fees.

It is my finding that :

D1 is holding the properties as a bare trustee for P;

D1 cannot refuse or withhold P from transferring the properties to the subsale purchaser on the ground of maintenance charges allegedly owing to D2; and

D2 is unlawfully charging maintenance fees.

Accordingly, I allow the OS. Here are my reasons. Whether the 1st Defendant is holding the properties as a bare trustee for the Plaintiff

The law is that once the vendor has received the full purchase price, he becomes a bare trustee for the purchaser. (See the Federal Court case of Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1; the Court of Appeal case of Malayan Produce Company Sdn Bhd v Landbanq Sdn Bhd (in liquidation) & Anor [2023] 6 MLJ 840).

In the present case, the principal SPA was entered into between P and the developer on 31.3.2011. It is undisputed that P has fully paid the purchase price to the developer. Vacant possession of the properties was then delivered to P on 6.3.2012.

The evidence manifest that:- (a) P has fulfilled its obligations under the principal SPA; (b) no maintenance fee is outstanding to the developer; and (c) the developer has consented to the transfer of the properties to the subsale purchaser.

The developer issued a confirmation letter dated 14.7.2023, which reads : Purchaser : Robin Industrial Sdn Bhd Vendor : TSC Hardware Sdn Bhd Developer : Sani - Map Development Sdn Bhd Proprietor : Top Win Hardware Trading Sdn Bhd We, the developer of the Sani Industrial Park, hereby confirm the following. 1) We have no objection to the register beneficiary of the building to proceed with the disposal of the unit / units. 2) We consent to the assignment of the property to the purchaser. 3) There is no outstanding sum between us and the registered beneficiary of the unit / units. 4) The purchase price under the Sale & Purchase Agreement between us and the vendor has been fully settled. 5) The Vendor is the current beneficial owner of the property. 6) The property is assigned to Hong Leong Islamic Bank Berhad. 7) The postal address of the property is No. 2, Block A, Jalan Perindustrian BI2T 2, Kawasan Peridustrian Balakong Jaya 2, Tambahan, 43300 Seri Kembangan, Selangor. Refer attached copy of master title for the title detail. 8) The master title is free from encumbrances, no bridging financing or debenture created over the master title. 9) The application of the strata title has been rejected several times over the years by the MPKJ due to the illegal extension of the said units. M/s Top Win Hardware Trading Sdn Bhd (the owner of master title) is the current applicant for the strata title. 10) We have no objection to the purchaser entering a private caveat, but it is not advisable to do so. Attached please find approval with condition for initial stage of the strata application submitted by Top Win Hardware & Trading Sdn Bhd. 11) No private caveats entered onto the land. 12) We will confirm the title details in writing and let you have a copy of the title deed upon strata title has been issued. 13) We have no objection to direct transfer the ownership from the proprietor to the purchaser in the event the individual strata title is issued.

Premised on the above, I conclude that D1 holds the properties as a bare trustee for P. Due to the fact that strata title has not been issued, D1 remains as the registered proprietor. Accordingly, P is entitled to the declaration sought in prayer (1) of the OS. Defendants submission

Actually, the Defendants do not dispute that P is the beneficial owner of the properties. While D1, being the registered proprietor of the properties (which are still held under the master title of the land), is merely a bare trustee.

Notwithstanding this, the Defendants claim that D1, as a bare trustee, owes duties of care not only to P but also to the other four owners of factories at the Sani Industrial Park. In addition, P also bears contractual obligations owed to both the developer and D1 in the present circumstances.

The Defendants submit that :

Even if P seeks to dispose of the properties, it cannot evade or transfer the outstanding obligations, i.e. the unpaid maintenance charges and the issue of unauthorized extensions at the properties. These obligations must first be addressed before any valid disposal can take place.

The issue in this case, therefore, is whether P should be permitted to dispose of the properties while these two outstanding issues remain unresolved.

P properties, notwithstanding their status as beneficial owner, is not absolute and must be considered in the context of the unresolved issues.

I will now address t contention. Whether the 1st Defendant can refuse or withhold the Plaintiff from transferring the properties to the subsale purchaser on the ground of maintenance charges allegedly owing to the 2nd Defendant

Having established that D1 is the bare trustee, I find that D1 has no right to refuse or withhold P from transferring the properties to a new or subsequent purchaser. In this case, to the subsale purchaser.

In Noraini binti Mohamed Hadi v Pembangunan Tanah Dan Perumahan Sdn Bhd and another appeal [2021] 4 MLJ 152, the Court of Appeal held : The position of the law on subsale of land or property where its title has not been issued has always been by a sale and purchase agreement together with an assignment of the sale or a power of attorney. There is no need for the developer or original owner to be a party to the subsale sale and purchase agreement much less to give consent to the subsale but that the purchaser in the sub - sale need only to give notice of the sale or assignment to the original owner of the Master Title like the defendant. [136] The position of the law is as clear as broad daylight in that a vendor who had received the full purchase price to a property is a bare trustee for the purchaser and a court of law would impose on the vendor a constructive trust, holding the property for the purchaser and persons deriving title or claiming title through the purchaser as in this case. [137] Any refusal to transfer the said property to the plaintiff here would be a breach of trust

I consider that once the purchase price has been fully paid, D1 being a bare trustee, no longer retains any beneficial or proprietary interest in the p or assign the properties to a new or subsequent purchaser. Any refusal by D1 to facilitate the subsale and transfer to the subsale purchaser constitutes a breach of trust.

Although the foreigner consent form requires execution by the registered proprietor for submission to the land authority, such execution is merely a ministerial act. It does not confer upon D1 any discretion or decision - making power to refuse execution. Hence, the foreigner consent form is unjustifiable. It properties.

the foreigner consent form was based on the ground that there were outstanding maintenance charges allegedly owed by P to D2. I agree with P that D2 has no legal authority to collect maintenance fees. This issue will be addressed later.

Notwithstanding the above, D2 has no right or interest in the properties. Therefore, D1 has no basis to refuse or withhold execution of the foreigner consent form on the ground of outstanding maintenance fees allegedly owing to D2.

Even assuming that there are maintenance charges owing to D2 (which is disputed), such an allegation does not entitle D1 to refuse or withhold execution of the foreigner consent form recourse, if any, would be to commence a separate legal action to recover such alleged outstanding ma refusing and withholding execution on this basis is misconceived.

The situation in the present case is not novel. There have been several judicial precedents where developers refused to permit or effect transfers on the ground of outstanding maintenance fees. The courts have consistently viewed such conduct as unreasonable and an abuse of power.

In Phua Ah Gek & Ors v Tan Yew Lai Development Sdn Bhd & Anor [2024] MLJU 470, the High Court held : In conclusion, on issue 3, I hold that a developer, like the first defendant here, cannot refuse to transfer titles to purchasers who have fully paid up their purchase prices, like the plaintiffs here, on the alleged ground that maintenance charges are still owed to the developer. If there is such a dispute the developer should sue to establish

In Lee Ming Chong Sdn Bhd v Prudential Properties Sdn Bhd [2012] 8 MLJ 1, the High Court said : Judging the conduct of the giving or withholding consent to the assignment in the conveyancing context of a purchaser who had paid the full purchase price to the property, I would say any imposition of any conditions should be viewed with much circumspection as the only reason for coming back to the developer is more for administrative expediency than having to fulfill any continuing obligations on the part of the purchaser. The developer will have the continuing obligation to ensure that the strata title once issued is duly registered in the name of the purchaser and for so long as the developer delays in applying for the strata title it will be saddled with this continuing obligation. [25] It was further argued for the developer that the purchaser has a continuing obligation to pay service charges quarterly in advance to the developer in as much as the developer has an obligation to maintain the common properties under section 4.01(b) of the principal SPA. Whilst that may be so, any dispute between the two must be sorted out in a court of law and any non - payment must be by way of the developer suing under a debt due to it. [26] Even under the new scheme of the Building and Common Property (Maintenance and Management) Act 2007 which came into force on 12 April 2007, a joint mana issuance of the strata titles where the JMB provides the service of maintaining the common properties and any non - payment is to be sorted out either by a quick system of attachment of the moveables in the property and by way of recovery as a civil debt. [27] Likewise when strata titles are issued and the management corporation comes into being under the Strata Titles Act 1985, it takes over the obligation to maintain the common properties and there is no provision where if a purchaser has service charges in arrears then he cannot dispose of his property now held under a strata title. [28] How a developer can arrogate to itself the power to hold a purchaser to ransom until it settles what in this case is disputed service charges before granting its consent to the property to be disposed of, smacks of high - handedness and not a little haughtiness.

These authorities leave no doubt that a developer or registered proprietor cannot lawfully refuse or withhold consent for transfer on the ground of arrears of maintenance charges. Any such dispute must be resolved through proper legal channel, to deal with his property.

Here, the situation is even more untenable. Unlike the authorities cited above where the arrears of maintenance fees were claimed by the developer itself, the arrears in the present case are allegedly owed to D2, a party unrelated to the subsale to the subsale purchaser. This l to execute the foreigner consent form not only unlawful but even more egregious.

I conclude that the foreigner consent form on the ground of alleged arrears of maintenance fees owing to D2 is unlawful. P is therefore entitled to prayers (3) and (4) of the OS. To wit, compel D1 to execute all necessary documents, including the foreigner consent form, to give effect to the subsale and transfer of the properties to the subsale purchaser. Whether the 2nd Defendant unlawfully charges maintenance fees

The Defendants allege that there are outstanding maintenance charges amounting to RM 186,300 owed by P to D2. The Defendants have raised this as a counterclaim in their affidavit in reply.

The alleged arrears are said to have accumulated from 1.10.2013, when D2 supposedly took over management of the Sani Industrial Park from the developer, until the filing of the affidavit herein.

In response, P contends that there was never any assignment of management or maintenance fees collection rights to D2. maintenance charges is without legal basis. I agree with P for the following reasons. No assignment of rights to collect maintenance fees to the 2nd

D2 relies on a letter issued by the developer dated 1.10.2013 as the basis of its authority to collect maintenance charges. Upon scrutiny, the said letter does not assign any legal rights to D2.

The above - mentioned letter merely states : Please be informed that the defect liability period for the said property is over (18 months from the date of delivery of vacant possession). In consideration with that, we are here hand over the maintenance & management task of Sani Industrial Park to the representative (Mr Yap Kok Fei, owner of unit C1 & C2) who is

This statement does not confer any rights for D2 to collect maintenance fees. It merely indicates a handover of physical management tasks to one Mr Yap Kok Fei.

Interestingly, the above - mentioned letter was signed by Mr Yap Kok Kwong. Based on the d witness testimony during cross - examination, he is the brother of the aforesaid Mr Yap Kok Fei.

The evidence indicates that the purported handover was arranged informally between siblings. Nothing was mentioned with regard to D2. The developer does not even know who D2 is. 2nd collection of maintenance fees is unlawful

Unlike the position of the developer where the right to collect the maintenance fees was agreed under the Principal SPA, purported right to collect the maintenance charges can only arise under the Strata Management Act 2013 or the old act, i.e. the Building and Common Property (Maintenance and Management) Act 2007.

However, both statutes confer such powers only on a duly established joint management body. (See section 8 (2) of the Building and Common Property (Maintenance and Management) Act 2007 and section 21 (2) (a) of the Strata Management Act 2013). Thus, only a joint management body is vested with the statutory power to collect maintenance charges.

It is the d meeting for the formation of a joint management body. (See sections 4 and 5 of the Building and Common Property (Maintenance and Management) Act 2007 and sections 17 and 18 of the Strata Management Act 2013). These provisions mandate the developer to initiate and notify all purchasers for the first joint management body meeting.

In the present case, no evidence was produced of:- (a) any attempt to form a joint management body; (b) any minutes of the first annual general meeting of the joint management body; or (c) any notice issued concerning the first annual general meeting of the joint management body.

Although the developer asserts that its application to form a joint management body was rejected by the Commissioner of Buildings or local authority, no supporting evidence (such as a rejection letter or any application or correspondence) was produced. Accordingly, I reject such bare assertion as unsubstantiated.

The irresistible conclusion is that no joint management body was ever formed. Hence, no legal body exists with authority to collect maintenance charges from P.

The Court of Appeal in Prangin Mall Sdn Bhd V. Tang Joo Ming & Anor [2013] 6 MLJ 753; [2012] 1 LNS 1285 held : The right to collect the Charges granted to JMB under s. 8 (2) of the Act is . Section 8 of Act 663 provides the JMB with the right to collect the Charges in proportion to the allocated share units of their respective parcel. It is a statutory power giving authority to JMB to collect the Charges. Corresponding to the right of JMB to collect, the purchasers are bound by law under s. 23 (1) of Act 663 to pay the Charges. Failure on the part of the purchasers to pay the charges to JMB is an offence under s. 34 of Act 663 punishable with a fine not exceeding RM 5,000.00 and shall also be liable to a further fine not exceeding RM 50,000.00 for every day during which the offence is continued after conviction. In our opinion therefore, the power to collect the Charges under Act 663 is a newly created right and only commences upon formation of the JMB. It is distinct and different from the contractual right of Developer under the Sale and Purchase Agreement. For the above reason, we hold that there was the Developer s right to collect the Charges as submitted by the learned counsel for the Respondents. [18] if there is an assignment of such rights either contractually or by law. There is no evidence of an assignment of the contractual right, nor any provision

Thus, without a validly formed joint management body or an assignment of the contractual right, D2 has no statutory or contractual power to collect maintenance charges.

Moreover, D2 acting as a property manager of the Sani Industrial Park is illegal pursuant to section 22 J (1) of the Valuers, Appraisers, Estate Agents and Property Managers Act 1981. The said provision expressly prohibits any person from acting as a property manager without registration and authority to practise. (See the High Court cases of Lee Ming Chong (supra); United 1Borneo Hypermall Sdn Bhd v See Hong Cheen @ See Hong Chen [2022] MLJU 3515).

On this aspect, the Defendants contend that D2 is not performing services as a property manager. Rather, D2 merely assists in overseeing maintenance and management tasks pursuant to the handover by the developer, following agreement of the majority owners.

The Defendants say that an examination of the accounting documents relating to the maintenance and management of the Sani Industrial Park demonstrates that D2 is not carrying on a business as a property manager. Since no additional or separate charges are imposed on the owners, and all maintenance monies collected are properly accounted for and utilised solely for the upkeep of the Sani Industrial Park.

Be that as it may, the imposition of a fee, commission, charge, remuneration or other consideration for any services rendered as a property manager is not a pre - requisite to one being regarded as a property manager. As defined under section 22 I (2) of the Valuers, Appraisers, Estate Agents and Property Managers Act 1981, a property manager includes one who does the following :

preparing budgets and maintaining the financial records for the property;

monitoring outgoings for the property and making payments out of the income from the property;

advising on the necessity for upgrading the property or for the merging of interests;

managing and maintaining the building and facilities attached to the building; and

making or checking of inventories of furniture, fixtures, trade stocks, plant or machinery, or other effects.

oversees maintenance and management tasks maintenance monies, accounts for it and uses it for the upkeep of the Sani Industrial Park. This falls squarely within the ambit of a property manager as defined under section 22 I (2) of the Valuers, Appraisers, Estate Agents and Property Managers Act 1981.

To sum up:- (a) there was no valid assignment of management or collection rights to D2 by the developer; (b) no joint management body was ever established; and (c) D2 is not a licensed property manager under the Valuers, Appraisers, Estate Agents and Property Managers Act 1981.

As such maintenance fees against P is unlawful. Its counterclaim must therefore be dismissed. No strata title issued due to unauthorized extensions

The Defendants argue that the strata title was not issued due to unauthorized extensions to the buildings at the Sani Industrial Park. They say that D1 is now dealing with the local authorities. They contend that P is not allowed to transfer the properties before the issue of issuance of strata title has been resolved.

In this regard, I agree with P that the non issuance of strata title has no obstruction for the subsale and transfer to the subsale purchaser. This is done by way of a sale and purchase agreement together with an assignment of the sale. As was held in the Court of Appeal case of Noraini binti Mohamed Hadi (supra).

Such a reason to refuse the subsale and transfer to the subsale purchaser, in my view, is unreasonable and unlawful.

Further, during cross - the Defendants admitted to having demolished the unauthorized extensions in order to facilitate the strata title application Other arguments raised by the Defendants

For completeness, I will address the other arguments canvassed by the Defendants in written submissions,

Firstly, the Defendants argue that P can only assign rights to the subsale purchaser. And that liabilities cannot be assigned to the subsale purchaser without the consent of all parties. But that is a red herring.

P is not attempting to assign liability or transfer outstanding obligations to the subsale purchaser. is that D2 has no lawful authority to collect any maintenance charges. And imposition and collection of such charges are unlawful and without any contractual or statutory basis.

Moreover, P maintains that its obligations under the principal SPA have been complied with. Reference is made to clause 15 of the principal SPA, which reads : Clause 15 - a The Vendor shall at its own cost and expense construct or cause to construct the common property roads, driveways, car parks, drains, culverts, water mains, sewerage drains or TNB substation in accordance with the requirements and standards of the Appropriate Authorities and shall on completion do everything within its powers to have the same take over and maintained by the relevant local authority or the management corporation.

15.2 The Vendor shall upon completion bear all costs and expenses of maintenance of the said infrastructure referred to in sub - clause 15.1 and at its discretion provide such services as collection of normal refuse from such collection points as may be designated in the Building plans, cleaning of sidewalks and roadside drains and grass cutting on road reserves and side - tables and continue with such services until such services are taken over by the relevant local authorities or management corporation and in consideration thereof the Purchaser(s) hereby agree(s) to pay to the Vendor a monthly maintenance charge in the amount to be calculated by the Vendor based on the total cost of the aforesaid services incurred or to be incurred by the Vendor apportioned proportionately to the total number of units of shop offices erected in accordance with the Building Plan and the first payment shall in respect of such maintenance charge be made as from the date of handing over of vacant possession amounting to one quarter (1 / by quarterly payments in advance until the same are provided by and taken over by the relevant local authorities or management corporation Provided Always that the Vendor shall be entitled at its sole and absolute discretion from time to time to vary such quarterly maintenance charge by notice in writing to the Purchaser(s) of such its intention and the amended maintenance charge shall be payable for the period commencing from the date specified in the notice.

15.4 The aforesaid sums referred to in sub - clauses 15.2 and 15.3 hereof shall be paid by the Purchaser within fourteen (14) days from the date of a notice from the Vendor requesting for; such payment and in default of such payment the Purchaser shall be liable to pay interest on any such unpaid sum at the rate of Ten per centum (10%) per annum calculated from day to day Provided Always that nothing herein contained shall prejudice the rights of the Vendor under Clause 26 hereof.

15.5 The Purchaser(s) shall be liable for and shall pay the service charges for the maintenance and management of the common property and for service provided by the Vendor prior to the establishment of a management corporation under the Strata Title Act

It is plain from the above provision of principal SPA that it only binds d principal SPA confers any right on D2 to collect maintenance fees.

In any event, D2 is not a party to the principal SPA. Thus, D2 cannot rely on or enforce any obligations arising therein, including the collection of maintenance charges.

On that score, D2, being a stranger to the principal SPA and having no lawful status as a management body, owes no duty of care to owners under the principal SPA.

Furthermore, P points out that all maintenance charges have been duly settled. This was admitted by the d during cross - examination It was also confirmed in the d letter dated 14.7.2023, which states : 3) There is no outstanding sum between us and the registered beneficiary of the unit / units.

Secondly, the Defendants sought to rely on clause 13 of the subsale SPA. Where P made various warranties to the subsale purchaser. The Defendants claim that P has failed to disclose the two material issues in dispute (i.e. the outstanding maintenance charges allegedly due and owing by P to D2 and the unauthorized extensions at the properties) to the subsale purchaser.

By concealing these two issues, the Defendants contend that P has provided a misleading assurance to the subsale purchaser. It would therefore be unconscionable for D1 to execute the foreigner consent form.

I disagree. D1 is not a party to the subsale SPA. The warranties set out under clause 13 of the subsale SPA do not relate to D1. As such, these warranties cannot be relied upon by D1 as a basis for refusing to execute the foreigner consent form.

Thirdly, the Defendants raised the argument of laches, acquiescence, delay and estoppel. Their argument is this.

P was aware as early as the year 2013 that no management body had been constituted for the Sani Industrial Park. Despite this, P took no steps to compel the developer to form a management body under the Strata Titles Act 2013. Nor did P object to the d handover of management and maintenance responsibilities to Yap Kok Fui under the letter dated 1.10.2013, which responsibilities were subsequently assumed by D2.

By electing to stand by and take no action for more than a decade, P has acquiesced to the existing management structure and accepted D2 management services. Such prolonged silence constitutes that D2 is not a lawful management body or that it has no right to collect maintenance charges. To permit P to challenge the management arrangement at this juncture would be inequitable and would prejudice the Defendants as well as the other proprietors of factory units at the Sani Industrial Park.

acquiescence since 2013, spanning more than 11 years, preclude the declaratory reliefs sought. The doctrines of laches, acquiescence, delay and estoppel claim in this OS.

I consider that the doctrines of laches, acquiescence and estoppel are not applicable in this case. The cause of action only accrued when D1 refused to execute the foreigner consent form on 31.10.2023.

It must also be noted that there was no action nor demand by D2 for the alleged maintenance fees prior to these proceedings. The alleged outstanding maintenance charges only surfaced when P sought to transfer the properties to the subsale purchaser.

Upon failure to settle the matter via correspondences in February 2024, P promptly filed this OS in April 2024. There is therefore no delay, no acquiescence and no estoppel.

Furthermore, the Defendants have admitted that there is no formal management body formed, rendering the collection of maintenance fees illegal. Therefore, the doctrine of estoppel and acquiescence cannot be invoked to validate an illegality.

Lastly, the Defendants complain that P elected not to cross - examine evidence is unchallenged and uncontroverted. However, this contention is misplaced.

It must be emphasized that the present case proceeds by Originating Summons, where evidence is adduced primarily through affidavits, not oral testimony or witness statement. The allegations in the Defendants affidavit in reply dated 11.6.2024 (Enclosure 5) were affidavit in reply dated 25.6.2024 (Enclosure 6).

For the reasons above, I allow the OS and dismiss the Defendants counterclaim. I award costs of RM 20,000 to P. Dated 4 December 2025 Quay Chew Soon Judge High Court of Malaya Shah Alam, Selangor Civil Division NCvC 11 Counsel for the Plaintiff : Shayne Thum Weng Shen and Loshini a/p Babu (Messrs Shang & Co.) Counsel for the Defendants : Yap Jia Cheng (Messrs Jack & Cheng) Case reference :

Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1 2. Malayan Produce Company Sdn Bhd v Landbanq Sdn Bhd (in liquidation) & Anor [2023] 6 MLJ 840 3. Noraini binti Mohamed Hadi v Pembangunan Tanah Dan Perumahan Sdn Bhd and another appeal [2021] 4 MLJ 152 4. Phua Ah Gek & Ors v Tan Yew Lai Development Sdn Bhd & Anor [2024] MLJU 470 5. Lee Ming Chong Sdn Bhd v Prudential Properties Sdn Bhd [2012] 8 MLJ 1 6. Prangin Mall Sdn Bhd V. Tang Joo Ming & Anor [2013] 6 MLJ 753; [2012] 1 LNS 1285 7. United 1Borneo Hypermall Sdn Bhd v See Hong Cheen @ See Hong Chen [2022] MLJU 3515 Legislation reference :

Sections 21 (2) (a), 17 and 18 of the Strata Management Act 2013

Sections 4, 5 and 8 (2) of the Building and Common Property (Maintenance and

Management) Act 2007 Section 22J (1) of the Valuers, Appraisers, Estate Agents and Property Managers