Zehn Bukit Pantai Management Corporation v Tribunal Pengurusan Strata Kuala Lumpur (WA-25-159-06/2023)

TRIBUNAL PENGURUSAN STRATA KUALA LUMPUR,

2.

FOO SU LYNN ...RESPONDEN-RESPONDEN

The Applicant discovered that the 2nd and 3rd Respondents were installing glass curtains at the balcony of their unit without their approval. Their directions to stop the work of installation went unheeded. The Applicant then filed a claim with the Strata Management Tribunal (“Tribunal”) for orders that the glass curtain which was installed by the 2nd and 3rd Respondents were in breach of the Zehn Bukit Pantai By-Laws.

On 14.3.2023, the Strata dismissed the Applicant’s claim. Aggrieved by the decision, the Applicant commenced these judicial review proceedings seeking to quash the decision of the Tribunal. Key background facts

The Applicant is a body corporate established under the Strata Titles Act, 1985.

The 2nd and 3rd Respondents (“R2” and “R3” respectively) are the proprietors of Unit A-8-1 of Zehn Bukit Pantai.

On 25.8.2021, R2 acting for himself and R3, submitted a renovation application to the Applicant, listing out the renovations works to be carried out at their unit.

The application was approved by the Applicant on 6.9.2021, based on the scope of works and timeline as submitted by R2. It was agreed that the renovation works will be completed by 31.12.2021.

On 6.12.2021, when the Applicant discovered that R2 and R3 were installing glass curtain at the balcony of their unit, it immediately issued a stop work notice to the R2 on the same day. The Applicant contend that the installation was without its approval.

R2 however alleged that the Applicant had purportedly given approval for the installation of glass curtain vide its management committee representative, one Peter Macaulay. This was denied by the Applicant.

On 14.2.2022, the Applicant issued a letter informing R2 stating that there was no approval given for the installation of the glass curtain at the balconies of his unit. R2 was also informed that the installation was a breach of the Zehn Bukit Pantai By-Laws.

This was followed with another letter on 29.6.2022 where the Applicant requested R2 to remove the glass curtain which had been installed. R2 was also notified that in the event of his failure to do so, the Applicant will file a claim with the Strata Management Tribunal.

When the Applicant’s request was not complied with, it then filed a claim with the Tribunal on 9.8.2022. The Applicant’s claim before the Tribunal was that the installation of the glass curtain constituted a breach of By-Law 11, 27(1) and 29(2) of the Zehn Bukit Pantai By-Laws.

On 14.3.2023, the Tribunal dismissed the Applicant’s claim.

The principal grounds upon which the Tribunal came to its decision are as follows:

There was no breach of By-Law 11 stipulating that a proprietor shall not change the appearance, façade and color of the exterior of parcel without the written approval of the management corporation. The glass curtain that was installed did not in any way cause a change in the appearance, façade and color of the unit. Instead, it enhanced the appearance and value of the unit. There are condominiums in Kuala Lumpur where the same had been installed without contravening any law or by-law. Additionally, the installation of the glass curtain had been professionally installed and the safety had been guaranteed. The installation was also compelled by the condition of R2 and R3’s child; and

(ii) The provisions of section 117 of the Strata Management Act 2013 allows the Tribunal in making its award, to have regard to the interest of parcel owners in the use and enjoyment of their parcel. Grounds for review

The Applicant contends that the decision of the Tribunal was tainted with irrationality and illegality on the grounds as follows:

The Tribunal failed to take into account the fact that R2 and R3 had breached the House Rules of Zehn Bukit Pantai as there was no approval given for the installation of the glass curtain;

(ii) The Tribunal failed to take into account the fact that R2 and R3 had breached the provisions of the Third Schedule of the Strata Management (Maintenance and Management) Regulations 2015 (By-law 11 of the Zehn Bukit Pantai By-law) which provide that a proprietor shall not change the appearance, colour and exterior without prior written approval of the MC. Contention of R2 and R3

A preliminary objection was taken at the start of the proceedings that the Applicant had failed to file a Statement as required under O. 53 r 3(2) of the Rules of Court 2012. The rules require the Statement to set out the name and description of the applicant, the relief sought and the grounds on which it is sought.

The omission to file the O. 53 Statement was raised when R2 and R3 filed their Affidavit in Reply on 25.9.2023. However, until the hearing of the judicial review application, the Applicant did not file the O. 53 Statement.

On the merits of the substantive judicial review, R2 and R3 contend that the Tribunal had considered the relevant By-laws but was of the view that approval was not required as the installed glass curtain did not effect a change in the appearance, colour and exterior. Analysis and findings Preliminary objection

I shall deal first with the preliminary objection raised.

There is no dispute that the Applicant failed to file the O. Statement. Notwithstanding the omission, leave was granted to commence judicial review proceedings on 17.8.2023. Upon the grant of leave, the Applicant filed Form 110 pursuant to O. 53 r. 4. Parties then proceeded to file their respective affidavits.

The rules require that the O.53 must set out the grounds upon which the reliefs are sought. I have perused the application for leave filed in enclosure 1 and note apart from the reliefs sought, the Applicant has also stated the grounds upon which the reliefs are sought. Thus, the omission to file the O. 53 statement had been somewhat supplemented by the contents of enclosure 1.

Whilst it cannot be denied that there is a non-compliance, I am minded to excuse the non-compliance as I find no prejudice occasioned to R2 and R3. The grounds for the reliefs have been clearly expressed in enclosure 1. Admittedly there is no formal compliance, but in this instance, having stated the grounds in enclosure 1, I consider there to be substantial compliance.

I now come to the more crucial question at hand; whether there are grounds to review the decision of the Tribunal. By laws of Zehn Bukit Pantai

The By laws of Zehn Bukit Pantai are statutory by-laws housed in the Third Schedule of Strata Management (Maintenance and Management) Regulations 2015 which binds the management corporation and also the parcel owners.

To recapitulate, the Applicant’s case before the Tribunal was premised on the breach of By-laws 11, 27(1) and 29(2). By-law 27 and non-approval for installation of glass curtain

By-Law 27 of the Strata Management (Maintenance and Management) Regulations 2015 provides as follows:

Renovation works and repairs

A proprietor shall not carry out any renovation works to his parcel without first obtaining a prior written approval from the management corporation and, where necessary, from the appropriate authority.

Before the Tribunal, both parties were at variance on whether approval had been given. The Tribunal then concluded that “..pada pendapat tribunal adalah tidak berapa relevan lagi kerana pada masa memfailkan B1 kerja-kerja pengubahsuaian telah pun selesai.” B1 is the form for a claim filed with the Tribunal.

In my view, the Tribunal’s finding on the issue of approval is irrational. The fact of non-approval as contented by the Applicant is relevant as the Applicant’s claim is that R2 and R3 acted in breach of By-Law 27 which mandates approval to be obtained first.

The fact that the installation of the glass curtain had been completed does not render the issue of approval irrelevant.

On the documentary evidence, I find ample evidence to establish that no approval was given for the installation of the glass curtains. Although there was approval for the list of renovation works, glass curtain was not specifically mentioned. Instead what was stated was only curtains. The glass curtains went against the scope of approved renovation works. By-law 11 and By-law 29-change to exterior of parcel

The next point of contention is the Tribunal’s finding on breach of By-law 11 and 29, both of which are set out below as follows:

Appearance, façade and colour of the exterior of parcel A proprietor shall not change the appearance, colour code and façade to any part on the exterior of his parcel without the prior written approval of the management corporation and, where necessary, the approval of the appropriate authority.

Other prohibitions

(1)…

A proprietor shall not cause or permit any fitting or fixture or any alteration or change to be made to the exterior of his parcel that will affect or change the appearance of the common property or building facade or encroach onto any part of the common property without the prior written approval of the management corporation. Building facade shall include external windows, balconies, terraces, common areas, open areas and all other visible parts of the building which constitute or form part of the exterior appearance of the building.

The Tribunal found that “…jelas dapat dilihat ‘glass curtain’ yang dipasang tidak merubah rupa kod warna mahupun permukaan. Ianya seperti akuarium dan sekiranya dilihat dari bawah langsung tidak boleh dikesan bahawa terdapat ‘glass curtain’ dipasang dibalkoni PP. Tribunal juga berpendapat bahawa ‘glass curtain’ tersebut mencantik dan menambah nilai unit tersebut di mana ianya telah dipasang di kebanyakan kondominium di Kuala Lumpur tanpa melanggar undang-undang dan/atau undang-undang kecil yang sama atau serupa.”

In addition to the above, the Tribunal also considered the fact that the glass curtain was professionally installed and the contractor had guaranteed its safety and durability.

Having considered the appearance of the glass curtain which was installed, I am of the view that that the entire finding of the Tribunal falls within the ground of irrationality as understood in administrative law.

In R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145), the Federal Court held as follows: 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 find it illogical to conclude that the glass curtain did not alter the exterior and façade of R2 and R3’s parcel. The glass curtain would undoubtedly constitute a modification to the outward appearance. It affects the architectural uniformity of the development.

Whilst the material used may be transparent, to my mind, it alters the visual character of R2 and R3’s unit. Hence, it is a material change to the original façade. The approval of the Applicant as required under By-law 11 is required.

In addition, I find the Tribunal took into account irrelevant considerations. The enhancement in appearance and value of R2 and R3’s unit resulting from the installation of the glass curtain is totally irrelevant. The fact that other condominiums in Kuala Lumpur have also done the same is equally irrelevant. The presence of glass curtains in other development is not determinative of the issue. The same applies to the fact that the glass curtain had been installed in a manner which guarantees its safety.

What is crucial is whether approval of the Applicant had been obtained where the installation effects a change in the appearance to the exterior of the parcel. In this instance, there was no approval.

In making its award, the Tribunal had also adopted the approach in section 117(4)(b) of the Strata Management Act 2013, where regard is to be had to the interest of the parcel owners in the use and enjoyment of their parcels. In my view, such an approach cannot be in complete disregard of the By-laws which are ultimately to promote efficient and orderly management and maintenance of any development.

Premised on the above reasons, the judicial review application is allowed in that certiorari is to issue to quash the award of the Tribunal of 14.3.2023.

In addition, I also direct the glass curtain that had been installed is to be removed within 7 days from the date of this order.

Finally, costs of RM 5,000.00 is to be paid by the 2nd and 3rd Respondents to the Applicant. Dated: 17th June 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: Pn. Deyvinah Ganesalingam (Pn. Taysher Nair together with her) Tetuan Chee Hoe & Associates Counsel for Respondents: Pn. Faye Lim (Pn. Crystal Yeoh together with her)