United Highlands Sdn Bhd v Presiden Tribunal Pengurusan Strata (WA-25-233-05/2019)

1.

BADAN PENGURUSAN BERSAMA SELESA HILLHOMES (No. Pendaftaran: PMPB Siri 2/2008) …RESPONDEN-RESPONDEN

On 18.10.2018, the 2nd Respondent brought a claim before the Strata Management Tribunal seeking for orders inter alia to compel the Applicant to take certain actions in respect of the guardhouse, the auto-gate facilities and visitor car parks.

On 19.2.2019, the Tribunal in its Award, granted orders which the Applicant is aggrieved about. Hence, the present judicial review proceedings. Salient facts

The Applicant, United Highlands Sdn. Bhd. (“UHSB”), is a company whose principal business is property development and construction. It developed a residential strata development known as Selesa Hillhomes, situated in Bukit Tinggi, Bentong, Pahang.

The 1st Respondent is the President of the Tribunal who delivered the award dated 19.2.2019, which forms the subject matter of these proceedings.

The 2nd Respondent is the Joint Management Body (“JMB”) established under the Strata Management Act 2013 and is responsible for the management and maintenance of the common property at Selesa Hillhomes.

On 24.11.2016, Tenaga Nasional Berhad (“TNB”) issued a notice to the JMB stating that certain structures within the development, namely a guardhouse, gate barrier, and access road were situated within the vicinity of a TNB electric transmission tower and constituted a safety hazard.

TNB demanded for the structures to be dismantled immediately, the failure of which constitutes an offence under section 37(12)(a) of the Electric Supply Act 1990.

By a letter dated 19.1.2017, the JMB informed TNB that the strata titles for Selesa Hillhomes had not yet been issued and that the land on which the structures were situated was still held under a master title in UHSB’s name. In view of this, it did not have the legal authority to dismantle the structures.

Thereafter, the local authority, Majlis Perbandaran Bentong (“MPB”) issued a letter dated 6.4.2017 to the JMB to direct that the guardhouse be relocated to a suitable location and that the relevant approvals be obtained prior to any demolition and reconstruction works.

Upon clarification that the master title to the land was in UHSB’s name, TNB then issued a further notice dated 26.3.2018 directly to UHSB, requiring it to dismantle and remove the structures.

On 28.3.2018, UHSB took action to demolish the guardhouse and the barrier gate, leaving Selesa Hillhomes without controlled access or security infrastructure.

The JMB subsequently attempted to construct a replacement guardhouse and gate barrier. However, MPB issued a stop-work order pending the requisite approval and the consent of the registered landowner.

To comply with MPB’s requirements, the JMB sought the consent of UHSB for the construction of a replacement guardhouse and gate barrier at a suitable location within the development. UHSB refused to grant such consent.

In view of the deadlock situation, the JMB filed a claim before the Tribunal. In the Borang 1 dated 18.10.2018, the JMB sought the following orders which I have summarized as follows:

To compel UHSB to cooperate and allow the completion of auto gates at the present location;

(ii) To compel UHSB to allow the common area marked X in the map to be used as a visitors’ car park;

(iii) To compel UHSB to pay RM 22,676.35 as costs for the construction of auto gates to replace the demolished guardhouse which had been handed over to the JMB as common property; and

(iv) To compel UHSB to restore the demolished site to a presentable and safe condition.

Upon hearing the parties and considering the submissions, the Tribunal in its Award of 19.2.2019, made the following orders:

UHSB to within 14 days from today provide a letter of support as required by MPB in its letter dated 18.12.2018 to the JMB, to enable the JMB to make the necessary application to MPB for the construction of the boom gates and if deemed necessary the construction of a guard house as there was no mention of a guard house in MPB’s letter;

(ii) Upon MPB giving the requisite approval for the construction of the boom gates, UHSB is to allow the JMB to construct the boom gates and guard house (if deemed necessary);

(iii) UHSB is to provide adequate parking bays for visitors to register at the guard house and thereafter drive their vehicles away;

(iv) Upon the JBM obtaining the approval of MPB and other relevant agency (if so required), UHSB is to within 60 days pay to the JMB the costs of equipment, material and construction of the auto gates (amounting to RM 22,676.35) as replacement for the demolished guardhouse;

UHSB is to within 30 days from today, restore the demolished site to a presentable and safe condition; and

(vi) UHSB is to pay costs of RM 1,000.00 to the JMB for the proceedings within 30 days from today.

Aggrieved by the Award, UHSB files the present judicial review proceedings. Grounds for review

UHSB contends that the Award was in excess and ultra vires the jurisdiction of the Tribunal. The Award of the Tribunal comprise of orders beyond its jurisdiction. The Award is also sought to be impugned on grounds of illegality and irrationality.

Its reasons are as follows. Firstly, the jurisdiction of the Tribunal is set out in the 4th Schedule to the Strata Management Act 2013 [Act 757] (“SMA”). The orders in the Award do not fall within the ambit of the 4th Schedule.

Secondly, the claim of the JMB before the Tribunal was confined only to the auto gates. However, the Award extended UHSB’s obligation to the provision of guardhouse and the car parks. The provision of a guardhouse is not part of its contractual obligation under the Sale and Purchase Agreement with the purchasers. The Award imposed obligations on UHSB to finance facilities not contemplated in the Sale and Purchase Agreements or approved development plans. In any event, the provision of security facilities is a contractual issue that should involve only the Applicant and the purchasers of units in Selesa Hillhomes. The issues before the Tribunal are more appropriately raised in the civil court as these are matters which are within the jurisdiction of the civil court.

Thirdly, the provision of car parks is an issue which had been litigated and therefore barred by the principle of res judicata. The contention of the 2nd Respondent

The JMB denies that the Award of the Tribunal was tainted with illegality, irrationality, excess of jurisdiction or error of law.

The Tribunal acted within its jurisdiction to issue the orders in the Award under the Strata Management Act 2013. The claim was within the jurisdiction of the Tribunal, as provided for in paragraph 13 of Part 1 of the Fourth Schedule, and which by virtue of paragraph 8 of Part 2, it could make orders in respect thereof.

The factual matrix justified the orders made. Being the Joint Management Body, the JMB was statutorily responsible for the guardhouse as it was on common property. The demolition ordered by TNB left the residents with no security infrastructure. Any reconstruction required the consent of UHSB as the landowner. As UHSB refused to give consent, the JMB had to seek redress from the Tribunal.

The JMB also denies the Tribunal had adjudicated on matters arising from contractual obligations between UHSB and the purchasers. It was merely confined to the relationship between UHSB and the JMB. The JMB inherited the guardhouse which encroached on supply lines.

Finally, res judicata has no application to the issue of car parks. Analysis and findings The law

The grounds upon which a decision of an inferior tribunal can be successfully challenged in judicial review proceedings, namely procedural impropriety, illegality and irrationality are settled and trite law. In R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145), the Federal Court held: 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. … I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of 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.

All the three grounds are being relied on by UHSB in its challenge to the Award of the Tribunal.

To reiterate, the Award directed that UHSB provide the letter of support for the JMB to apply to MPB for consent to construct the boom gates and if necessary the construction of the guard house. Once MPB gives its consent, UHSB is to allow the JMB to proceed with the construction.

The letter of support was in fact a requirement of MPB. The Award specifically dealt with this issue. The Tribunal having examined MPB’s letter of 18.12.2018 found that MPB had requested the JMB to submits plans for the reconstruction of the boom gate, and which must be accompanied by a letter of support from UHSB.

In my view, the boom gate had to be reconstructed as it is an essential security structure. The guardhouse and the auto gate structures had been demolished following TNB’s notices, citing safety concerns. The structures were under the transmission lines of TNB.

These were structures which UHSB had allowed to be erected as a security post. The Tribunal considered the fact that it was clearly stated in the advertisement brochure. The provision of 24 hours security was represented to interested purchasers. The boom gates are therefore an essential part of the security services.

With the demolition of the old security structure, a new one must be constructed to safeguard the security of the residents. It is inconceivable for the residents of Selesa Hillhomes not to have any security, having benefited from one. UHSB cannot unreasonably withhold its consent to allow the construction of a new one. The withholding of its consent caused the JMB to file its claim before the Tribunal.

In view of MPB’s requirement, and the refusal of UHSB to give consent for a replacement guardhouse, the Tribunal made the order in its Award. I find the order to be warranted in the circumstances.

Another material fact is that the guardhouse was located on common property. The letter from MPB dated 6.4.2017 is evidence of that fact, and it states as follows: Semasa lawat periksa bersama puan pada 5.4.2017, didapati pondok pengawal keselamatan yang merupakan harta bersama, memang berada dibawah talian api TNB. Hasil dari perbincangan semasa lawatperiksa tersebut, didapati JMB telah bersetuju untuk mengalihkan pondok pengawal keselamatan ini ke lokasi lain yang lebih selamat, praktikal dan tidak melibatkan kos yang terlalu tinggi.

Common property clearly falls within the jurisdiction and management of the JMB under section 21 of the Strata Management Act 2013.

Contrary to UHSB’s contention, the Tribunal was not adjudicating on contractual issues. The dispute was in relation to the obligation of UHSB which now falls upon the JMB as the new security structure is to be constructed on common property. In my view, the Tribunal’s award was confined to determining the rights and obligations between UHSB and the JMB. It did not assume jurisdiction over contractual obligations in the Sale and Purchase Agreements with the purchasers. Similarly, UHSB’s contention that the Tribunal had encroached into jurisdiction of the local authorities has no merit.

By extension of what the Tribunal considered to be UHSB’s obligations, it then directed UHSB to pay the JMB the construction cost of RM 22,676.35. To my mind, I do not consider it to be irrational as this is the cost of constructing new security structures following the demolition. The obligation of UHSB in relation to security structures is not extinguished with the demolition of the previous structures. Now that the previous structures were found to be in an unsuitable location by TNB, it is justified to have UHSB bear the costs since the demolished structures were part of the development of Selesa Hillhomes. Jurisdiction to make the orders in the Award

The next question for consideration is whether the Tribunal acted within its jurisdiction in issuing the orders in the Award.

In this regard, the provisions of the Fourth Schedule to the Strata Management Act 2013 providing for the jurisdiction of the Tribunal is relevant, in particular paragraph 13 which provides as follows:

A claim for an order to give consent to effect alterations to any common property or limited common property.

The new security structure must be constructed on common property. In view thereof, I agree with the submission of the JMB that the consent to rebuild a guardhouse at a suitable location within the development, falls squarely within the above provision.

In addition, paragraph 8 of Part 2 of the Fourth Schedule empowers the Tribunal to do as follows:

The Tribunal may make any order of which it has the jurisdiction to make under Part 1 of this Schedule or any other order as it deems just and expedient.

In my view, having decided that the Tribunal had jurisdiction to entertain the JMB’s claim under paragraph 13 of the Fourth Schedule, paragraph 8 then allows it to make any order which would give effect to the claim being allowed. I find the Tribunal’s order relating to cost of replacement can be catered for under paragraph 8. The cost of RM 22,676.35 ordered to be paid by UHSB was therefore well within its statutory powers. Car park issue

The Tribunal directed for the provision of car parks as one of the orders in its Award. The car parks were merely for visitors to register at the guardhouse and thereafter drive the vehicles away.

In view of the guardhouse which had been demolished, it would appear that this order was issued as a new boom gate and guardhouse would be constructed. It is reasonable to require visitors to register at the guardhouse before entering the residential area, and for that purpose, space must be allocated for the visitors to park their cars whilst doing so.

I also find that UHSB’s contention that res judicata applies to the car park issue in the light of a previous Tribunal Award and a High Court injunction issued on 21.9.2021 is unrelated and has no bearing on the order issued by the Tribunal in this case.

Premised on the abovementioned reasons, I find no merit in the Applicant’s judicial review application. The reliefs sought for are refused, and the judicial review application in enclosure 7 is therefore dismissed.

I also order that costs of RM 5.000.00 subject to allocatur be paid by the Applicant to the 2nd Respondent. Dated: 26th May 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: En. Wallace Wong (En. Teng Weng Loong & Cik Elaine Alexander with him) Tetuan Teng Weng Loong & Co. Counsel for 2nd Respondent: En. Lai Chee Meng (En. Mou Kar Wye with him)