unsold units) as well as the party who had pledged to absorb the 1st Year Free Maintenance fees and sinking fund charges for both the sold and unsold units during the 1st year post delivery of VP; and c) Consequent to the Defendant-Appellant’s breach of statutory duties to collect and maintain accounts, the Defendant-Appellant had also breached its statutory duty to appropriately transfer the appropriate balance within the sinking fund and maintenance fees accounts to the Plaintiff-JMB before the expiration of the Developer’s Management Period. [47] Dissatisfied with the Learned Judge’s decision to allow the Plaintiff’s claim, the Defendant-Appellant filed the Appeal before us. C. THE APPEAL BEFORE US [48] We have thoroughly perused the Memorandum of Appeal, the High Court’s Grounds of Judgment, the Record of Appeal and the parties’ respective written submissions and we are of the view that the Appeal before us can be disposed off by determining the following two issues: a) Issue 1: Whether or not the Learned Judge was correct to find that the Appellant had breached its statutory duty to appropriately collect the maintenance fees and sinking fund Page 24 of 37 charges for both the sold and unsold units in Phase 1 and Phase 2 of the Condominium; and b) Issue 2: Whether or not the Learned Judge was correct to find that the Appellant had breached its statutory duty to appropriately transfer the appropriate balance within the sinking fund account and maintenance fee account to the Respondent. D. ISSUE 1: WHETHER OR NOT THE LEARNED JUDGE WAS CORRECT TO FIND THAT THE APPELLANT HAD BREACHED ITS STATUTORY DUTY TO APPROPRIATELY COLLECT THE MAINTENANCE FEES AND SINKING FUND CHARGES FOR BOTH THE SOLD AND UNSOLD UNITS IN PHASE 1 AND PHASE 2 OF THE CONDOMINIUM [49] As we have identified at length earlier, the Appellant’s gripe was primarily on the issue of quantum. The factum of their delay in furnishing the audited account was entirely irrefutable and in fact admitted by the Appellant. The Appellant contended that the Respondent supposedly had failed to prove or furnish sufficient evidence to ‘rationalize’ the ‘discrepancies’ within their calculation. [50] We will deal with this contention later in this Judgment. We will first address the Appellant’s argument that the ‘discrepancies’ were brought upon by the Respondent’s wrongful imposition of sinking fund charges and maintenance fees which was supposed to be paid by the parcel purchasers. Page 25 of 37 [51] As we have mentioned earlier, the Appellant attempted to paint a picture that there was a grave and incomprehensible shortfall of almost RM800,000.00 between the Unsold Unit Receivables (RM1,091,204.76 personally owed by the Appellant as the parcel owner of the six (6) unsold units in phases 1 and 2 of the condominium) and the Initial Debt Amount (RM1,872,625.00). [52] The fallacy that the Appellant was trying to draw was that the shortfall of RM800,000.00 was instead receivables from purchasers who have either failed or refused to pay their dues in sinking fund charges and maintenance fees. [53] The Appellant posited the argument that as the Developer, the Appellant was only statutorily required under section 12(2) of the SMA to pay the maintenance fees and sinking fund charges for the unsold units that were still within the Developer’s ownership. We have no qualms as to the Appellant’s interpretation of section 12(2) of the SMA. Indeed we agree that the Developer should not bear the losses stemming from the breaches of errant purchasers who do not pay their dues for their respective parcels purchased. [54] Nevertheless, the facts and circumstances in the Appeal before us is glaringly different from the legal position the Appellant is staking. Firstly, the entire notion that the Appellant was being ‘forced’ to pay the dues on behalf of purchasers was entirely misleading. It was admitted that there wasn’t any billing for any maintenance fees or sinking fund charges for the 1st year of the Developer’s Management Period post delivery of VP. Thus, it was not a case of errant purchasers not paying their dues but instead a case of the Page 26 of 37 Appellant’s own failure or intentional omission to collect the maintenance fees and sinking fund charges for both the sold and unsold units. [55] This ourtright admission of not billing or not collecting falls squarely in line with the admitted fact that the Developer had pledged to absorb the 1st year free maintenance fees and sinking fund charges on behalf of itself (for the unsold units) and on behalf of the parcel purchasers (for the sold units). So there cannot be a case of errant purchasers when the Developer itself had not bothered to bill and collect the maintenance fees and sinking fund charges from the purchasers. [56] The facts of the Appeal before us were far from a typical case of a failure to pay maintenance fees and sinking fund charges where errant purchasers failed or refused to pay maintenance fees and sinking fund charges (despite the Developer having performed its statutory duty to bill and attempt to collect the maintenance fees and sinking fund charges from the errant purchasers). [57] Here the Developer did not perform its statutory duty under section 9(3) of the SMA to COLLECT the maintenance fees and sinking fund charges from both the purchasers and itself as Developer. And since the non-performance was motivated by the pledge to omit (absorb) the maintenance fees and sinking fund charges, then it is only just and appropriate for the Appellant-Developer to bear the pledged 1st Year free maintenance fees and sinking fund charges on behalf of the purchasers (for the sold units) and on behalf of itself (for the unsold units). Page 27 of 37 [58] It cannot at all be the intention of the law that a Developer can at its own whims and fancies omit and write off any portion of the maintenance fees and sinking fund charges. Such an arbitrary discretion directly transgresses and is ultra vires against the statutory duty to collect under section 9(3) of the SMA 2003. It is a Developer’s mandatory duty to ensure that the requisite maintenance fees and sinking fund charges were billed and collected. There is nothing in the SMA that clothes the Appellant with any discretion to omit any portion of the maintenance fees and sinking fund charges. Thus, if the Developer decided to omit any portion of maintenance fees and sinking fund charges owed by the purchasers, then the Developer must absorb the omitted sum and become personally liable to pay the same omitted sum on behalf of the purchasers. [59] In any case, the Appellant-Developer ought not be allowed to approbate and reprobate its stance in this matter. The Appellant cannot on one breath omit and not collect the maintenance fees and sinking fund charges from the purchasers and on the same singular breath blames the purchasers for not paying their maintenance fees and sinking fund charges. Estoppel should set in to bar the Appellant from adopting two contradictory stances at one singular time. (see Ho Yau Hong & Ors v How Yaw Ming and another appeal [2023] MLJU 933 ; Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ ; of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16) Page 28 of 37 [60] We now move on to deal with the Appellant’s issue on quantum. We are minded that the Learned Judge had entirely dismissed the Appellant’s contention on quantum on two main grounds. Firstly, on the ground that the Appellant itself had not provided its own alternative calculation and supposed sums to disprove the accuracy and correctness of the Respondent’s clear calculations. Secondly, on the ground that the Appellant should be estopped from negating its prior admissions o the correctness and accuracy of the Respondent’s calculations and claims: Page 29 of 37 … Page 30 of 37 Page 31 of 37 [61] The eminent late Gopal Sri Ram JCA (as His Lordship then was) delivering the decision of the Court of Appeal in Kgn Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 2 CLJ 611 also expressed the same sentiment that Statements of Account that goes unanswered or unresponded are deemed to be admitted: “Encik Darshan Singh, in response to a question put to him by a member of the panel hearing this appeal, frankly conceded that his client did indeed receive the statements of account of which we have earlier spoken. It follows that a reasonable man similarly circumstanced as the appellant would, if it were really true that there had been no appointment of sub-agency as later claimed by it, have, post haste sent these accounts back to the respondent and denied any liability. But that is not what happened. The appellant remained silent, held onto the accounts, and did nothing about it. The denial by its solicitor's letter of 4 January 1993, came long after the delivery of the account. When asked why his client had kept silent for a rather long period of time, Encik Darshan Singh's response was that his client was a large company and did not do anything until the letter before action was received. We trust that we will be forgiven if we are unable to detect the logic in this response. We are of the view that it would be a travesty of justice if we were to accede to the appellant's arguments. We are Page 32 of 37 left in no doubt that the undisputed facts of this case admit of the conclusion that the respondent was, by the conduct of the appellant, lulled into the belief that the appellant had no challenge to the accounts, leave alone the legal relationship between the parties. To put it another way, the appellant, by its silence coupled with the other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties or to the figure which the account showed as owing by it. Having done so, it ought not to be permitted to now contend otherwise. It follows that it does not, therefore, lie in the mouth of the appellant to now deny the respondent's claim. It would be plainly inequitable to do so. An examination of the facts leads us to this conclusion. The legal basis upon which such a conclusion may be sustained is well-settled and is now beyond question. See Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Bhd. [1995] 4 CLJ 283;[1995] 3 MLJ 331.” (emphasis added.) [62] We are in full agreement with the Learned Judge’s findings and the above precedent of the Court of Appeal. Apart from the above ratio decidendi we are beckoned to highlight that the Appellant’s own witnesses had testified that they have admitted and verified the Page 33 of 37 accuracy of the Respondent’s figures in the Audited Report and the Aging Reports. The Appellant’s own Directors had executed a Statutory Declaration admitting and verifying the accounts contained within the Audited Report. Not only that, the Appellant’s own witness had admitted that the Aging Reports (which were prepared for the purposes of preparing the accounts for Ket & Co’s auditing) were prepared by the Appellant’s own appointed Property Management agent, JL Facilities Sdn Bhd. Thus: a) These documents (which were marked as Part B Documents) were the Appellant’s own documents and not even the Respondent’s Documents; and b) These documents were prepared by independent third party entities who were also appointed by none other than the Appellant itself (and have no personal interest whatsoever in this case). [63] Therefore, on top of not refuting the Respondent’s Letters of Demand and Statements of Account, the Appellant’s own Directors have admitted the accuracy and correctness of the Respondent’s accounts, figures, and calculations. It would certainly be gravely unjust if we were to allow the Appellant to now contradict its own prior admissions and acknowledgment. [64] Thus, considering all of the above deliberations under this heading we answer issue 1 in the POSITIVE. The Learned Judge was astutely correct in finding that the Appellant had breached its statutory duty to appropriately collect the maintenance fees and Page 34 of 37 sinking fund charges for both the sold and unsold units in phase 1 and phase 2 of the Condominium. E. ISSUE 2: WHETHER OR NOT THE LEARNED JUDGE WAS CORRECT TO FIND THAT THE APPELLANT HAD BREACHED ITS STATUTORY DUTY TO APPROPRIATELY TRANSFER THE APPROPRIATE BALANCE WITHIN THE SINKING FUND ACCOUNT AND MAINTENANCE FEE ACCOUNT TO THE RESPONDENT [65] Considering our positive answer in issue 1 above, it can only necessarily follow that we agree with the Learned Judge that the Appellant had failed to duly transfer the appropriate balance within the maintenance fees account and sinking fund account to the Respondent-JMB. [66] Despite the Appellant’s insistence that it had already transferred all of the monies from the two accounts to the Respondent, the glaring balance of receivables admitted to not have been transferred to the Respondent can only mean that the Appellant had not properly accounted for and/or collected the appropriate maintenance fees and sinking fund charges that was owed by the Appellant itself. [67] The alternative possibility (that the Appellant had indeed collected the appropriate maintenance fees and sinking fund charges) is equally damning against the Appellant as it would mean that the Appellant had misappropriated the collected maintenance fees and sinking fund charges. In these two possible scenarios, there was a Page 35 of 37 gross failure to collect maintenance fees and sinking fund charges or there was a gross failure to transfer collected maintenance fees and sinking fund charges to the Respondent. In both scenarios, the Appellant would still be in breach of its statutory duties and the Appellant would still owe the same amount of monies to the Respondent-JMB. [68] Thus, considering all of the above deliberations under this heading we also answer issue 2 in the POSITIVE. The Learned Judge was indeed correct in finding that that the Appellant had breached its statutory duty to appropriately transfer the appropriate balance within the sinking fund account and maintenance fee account to the Respondent. E. OUR DECISION [69] It was altogether clear to us that there were no appealable errors whatsoever in the Learned Judge’s judicial appreciation of the facts, the prevailing laws, and the evidence that were tendered before the High Court. [70] Succinctly, it was altogether misconceived for the Appellant to contend that the sums claimed by the Respondent were all uncollected or unpaid amounts that was owed by the purhasers of sold units. By the Appellant’s own admission the Appellant indeed had owed and had not collected from itself a majority of the sum claimed for unpaid and uncollected maintenance fees and sinking fund charges for the unsold units. The remainder of the sum owed Page 36 of 37 was the pledged free 1st year uncollected maintenance fees and sinking fund charges for both the sold and unsold units in which the Appellant had ‘omitted’ (and absorbed). [71] We must reiterate that a mere intentional omission from collecting the uncollected maintenance fees and sinking fund charges does not automatically ‘erase’ the statutory duty to pay and duty to collect. Since the Appellant was more than willing to ‘absolve’ or ‘liberate’ the purchasers from their duty to pay the 1st year uncollected maintenance fees and sinking fund charges, it shall be incumbent upon the Appellant to absorb the uncollected sums and subsequently pay or transfer the same to the Respondent-JMB before the expiration of the Developer’s Management Period. [72] Based on the aforementioned reasons, we are of the considered view that there is no plain error of fact/law committed by the learned judge to warrant our intervention. Thus, the Appellant’s Appeal is devoid of merit and must be dismissed with costs. Accordingly, the decision of the High Court dated 5th January 2023 is affirmed. [73] We also order costs of RM30,000.00 to be paid by the Appellant to the Respondent (subject to allocatur fee). Dated 28th January 2025 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL Page 37 of 37 For the Appellant -