Dato' Pretam Singh

CONTRACTING OUT
Pretam Singh Nor & Co @ 0322846722

CONTRACTING OUT
Parties tend to determine the terms and
conditions that are to be incorporated into their
agreement and the practice to introduce such
terms and conditions in the agreement that
tend to avoid the application of the statutory
provision is known, by the law experts, as an act
of contracting out

CONSUMER PROTECTION ACT 1999
Legislative limitations on contracting out of
statutory provisions are not uncommon, at least
in consumer protection law. a term of a
contract is void to the extent that the term
purports to exclude, restrict or modify legislative
consumer guarantees, such as guarantees as to
the fitness for purpose of goods or services

No contracting out
6. (1) The provisions of this Act shall have effect

notwithstanding anything to the contrary in any
agreement

DOES HDA HAS PROVISION AGAINST
CONTRACTING OUT?

Daiman Development Sdn Bhd v Mathew Lui
Chin Teck [1981] 1 MLJ 56
‘The rules impose no penalties on a purchaser

who enters into a contract which does not
conform to the requirements of the rules.’
Sir Garfield Barwick

City Investment Sdn Bhd v Koperasi Serbaguna
Cuepecs Tanggungan Bhd [1985] 1 CLJ 131
“ having regard to the policy and objective of

Act 1966 and the protection afforded by this
legislation to house buyers is not merely a
private right but a matter of public interest
which Parliament has intended to protect”.
Mohamed Azmi J

Beca (Malaysia) Sdn Bhd v Tan Choong Kuang &
Anor [1986] 1 MLJ 390
“ The duty of observing the law is firmly placed

on the housing developers for the protection
of house buyers. Hence, any infringement of
the law would render the housing developer
liable to penalty and conviction”.
Lee Hun Hoe CJ (Borneo)

Hariram a/l Jayaram & Ors v Sentul Raya
Sdn Bhd [2003] 1 MLJ 22
The standard sale and purchase

agreements signed by the plaintiffs must take
precedence over the Contracts Act 1950 and must be
given effect accordingly.
Justice Malik Ishak J

CHAI SAU YIN v. KOK SENG FATT
[1966] 2 MLJ 54; [1966] 1 LNS 25
• "This, however, is a court of law and not a

court of morals and it is on that basis that the
case must be decided."

COLLECTION OF DEPOSIT

• Regulation11(2)
No person including parties acting as
stakeholders shall collect any payment by
whatever name called except as prescribed by
the contract of sale

"housing development"
means to develop or construct or cause to be
constructed in any manner whatsoever more than four
units of housing accommodation and includes the
collection of moneys or the carrying on of any building
operations for the purpose of erecting housing
accommodation in, on, over or under any land; or the
sale of more than four lots of land or building lots with
the view of constructing more than four units of
housing accommodation;

TAN & TAN DEVELOPMENT SDN
BHD LWN PENDAKWA RAYA [1994]
4 CLJ 74

Erti asas “housing accommodation’ – ialah ‘to develop or
construct … more than four units of housing
accomodation.Habis disitu Kata-kata yang menjadi sandaran
peguam perayu, yang sebenarnya adalah sebahagan daripada
klausa ‘and includes the collection of monies… for the
purpose of erecting housing accommodation…’, and includes
the collection of monies…, adalah suatu perluasan atau
pemanjangan kepada erti asas itu, yang tidak membataskan
(qualify) erti asas itu. Kedudukannya ialah bahawa, jika
seseorang itu membina lebih daripada empat unit ‘housing
accommodation’ , dia menjalankan pemajuan perumahan.
Tetapi jika dia tidak berbuat demikian, tetapi sebaliknya hanya
mengutip wang untuk membina ‘housing accommodation’ –
yang semestinyalah difahami sebagai bererti lebih daripada
empat unit – itu adalah juga pemajuan perumahan
Abdul Aziz J.

Collection of stakeholder sum by
lawyers?
• “includes the collection of monies… for the

purpose of erecting housing
accommodation…”

SPLITTING OF THE SPA?

Can Developer split the agreements in relation
to sale of bungalows ?

Cheong Soo Leong & Ors v H'ng Ah Ba (2004) 2
CLJ 19

The court held that the defendants had embarked on a
project to develop 75 units of houses including the Plaintiff's
house. Though the sale of the land and the contract to build
the house were done through two separate agreements,
….the defendants were not ordinary contractors engaged to
build houses for individuals but housing developers within the
context of s.3 of the 1966 Act.

Yeoh Cheng Han and Anor v PPH
Resorts (Penang) Sdn. Bhd
[2011] 3 MLJ 207

if it can be shown that the vendor/contractor had developed,
constructed or caused to be constructed in any manner
whatsoever more than four units of housing accommodation
or was involved in the sale of more than four lots of land or
building lots with the view of constructing more than four
units of housing accommodation thereon. What more here
where the agreement to sell the land and construct the
housing unit is contained in a single contract. They were
certainly doing housing development

LEGALITY OF SUPPLEMENTARY AGREEMENT TO
STANDARD SPA (SCHEDULE G AND H)

SEA HOUSING CORPORATION SDN BHD v LEE
POH CHOO [1982] 2 MLJ 31
• Federal Court held …contrary terms and
conditions which purport to get round the Act
and rules so as to remove the protection of
home buyers may not be so inserted in; (2)
clause 32 of the agreement being inconsistent
with r 12 of the Rules and not designed to
comply with the requirements of the rules is
void.

CITY INVESTMENT SDN BHD v SERBAGUNA
CUEPACS TANGGUNGAN BHD [1985] 1 CLJ 131

“ The protection afforded by the law to house buyers is not
merely a private right but a matter of public interest which
Parliament has intended to protect from being bargained
away or renounced in advance by an individual purchaser.”
Mohamed Azmi FCJ

“If you have require your homebuyer to sign a
contract that supplements the Sales and
Purchase Agreement, it be may be an offence
as there can only be one agreement between
homebuyer and Developer.”
“the parties may not contract out of the

contract and to do so is an open defiance of
the Housing Developers legislation.”
MK RETNAM HOLDINGS SDN BHD v BHAGAT
SINGH SURIAN SINGH [1985] 1 CLJ 520

Supreme Court also held that a second agreement entered
into by a housing developer and a purchaser in which it
purported to extend the completion date by a further six
months after the lapse of the statutory time-limit, was in
violation of letter and spirit of the Housing Developers
(Control and Licensing) Rules 1970, and therefore should not
be allowed to stand. On delivering the decision of the
Supreme Court in this issue, Hashim Yeop A Sani SCJ (as he
then was) said (at p. 213):

“But it would seem to us that the validity of the
second agreement should be tested in the light
of the Housing Developers (Control and
Licensing) Rules 1970. We are of the view that
the second agreement is a clear example of
“contracting out” of the provisions of the 1970
Rules”.

Sea Housing Corporation Sdn Bhd v Lee Poh
Choo [1982] 2 MLJ 31

It is clear that only terms and conditions designed to comply
with the requirements of the Housing Developers (Control
and Licensing) Rules, 1970, may be inserted in the contract of
sale of land that is governed by the Housing Developers
(Control and Licensing) Act, 1966 and the Rules, and that the
contrary terms and conditions which purport to get round the
Act and rules so as to remove the protection of home buyers
may not be so inserted; (2) Clause 32 of the agreement being
inconsistent with r 12 of the Rules and not designed to
comply with the requirements of the rules is void.

Schedule H
Recital
• AND WHEREAS the Vendor has agreed to sell and the
Purchaser has agreed to purchase a parcel with vacant
possession distinguished and described in Section 3 of the
Sixth Schedule hereto which is delineated and shaded GREEN
in the *Storey Plan/Delineation Plan and of the Building which
is delineated and shaded RED in the Site Plan (hereinafter
referred to as “the said Building”) with accessory parcel with
vacant possession distinguished and described
in ………………….which is delineated and shaded BLUE in the
Accessory Parcel Plan annexed in the First Schedule
(hereinafter referred to as “the said Parcel”), subject to the
terms and conditions hereinafter contained.

EXPO HOLDINGS SDN BHD
v SAUJANA TRIANGLE SDN BHD
LNS 2009 1 1694
• ZALEHA BINTI YUSOF JC

• “Therefore when the defendant amended the
statutory contract by deleting the sentence
beginning from the “*” and instead got the plaintiff
to sign the Supplementary Agreement for the
accessory car parking parcel, the defendant had
clearly removed the very protection and benefits
guaranteed to the plaintiff under the Housing Act.”

Reg 6. Particulars to be included in advertisement.
• (1) Any advertisement (other than those conveyed by means of broadcast sound receivers or through television receivers)
made by any licensed housing developer shall include the following particulars:
• (a) the housing developer's licence number and validity date;
• (b) the advertisement and sale permit number and validity date;
• (c) the name and address of the licensed housing developer and his authorised agent, power of attorney holder or project
management company if any, as approved by the Controller;
• (d) the tenure of the land if the land is leasehold, its expiry date, restriction in interest and encumbrances, if any, to which
the land is subject;
• (e) the description of the proposed housing accommodation;
• (ea) any parking lot which is an accessory parcel to the housing
accommodation in a parcel and which does not form part of the common
property of the accommodation;
• (f) the name of the housing development, if any;
• (g) the expected date of completion of the proposed housing development;
• (h) the selling price of each type of housing accommodation;
• (ha) where applicable, the minimum and maximum selling price of each type of housing accommodation;
• (i) the number of units of each type available; and
• (j) the name of the Appropriate Authority approving the building plans and the reference number.

ADVERTISEMENT/SPA

FABER UNION SDN BHD v. TRIBUNAL TUNTUTAN PEMBELI RUMAH,
KEMENTERIAN PERUMAHAN DAN KERAJAAN TEMPATAN & ORS
[2011] 7 CLJ 37
Expected Date of Completion: June2006

• (a) considering issues on pre-contractual misrepresentation relating to the
expected date of completion which is clearly beyond the jurisdiction
conferred by the Act;
• (b) determining the expected completion date based on the brochure and
not based on the date in the SPA that has been mutually agreed by parties
thereby abusing its jurisdiction;
• (c) determining the amount of compensation contrary to legal provisions;
• (d) amending the date of the SPA to the date the respondents paid the
deposit thereby amending the completion date from 5 April 2008 to 31
July 2006;
• (e) the Tribunal has amended the terms of the SPA as provided under
Schedule G of the Housing Development (Control and Licensing)
Regulations 1989 ("the regulations").

• Having considered the award I am unable to agree with
counsel for the applicant that the Tribunal has committed
errors of law that warrants curial intervention. The Tribunal
has considered relevant matters and has not taken into
consideration irrelevant matters. The award does not suffer
from the infirmities of illegality, irrationality or procedural
impropriety.
AZIAH ALI J

• It is submitted that the importance of information
and contents in the advertisement and/or brochures
is emphasized by the fact that the applicant could
not amend such information and contents without
the approval of the Housing Ministry. The applicant
had failed, refused and/or neglected to do so despite
knowing of the inevitable delay in completion of the
project. Therefore it is submitted that it is ludicrous
to suggest that the Tribunal should confine its
jurisdiction only to the SPA AZIAH ALI J

Deed of Mutual Covenant….
Is it lawful?

Can purchasers claim for more than SPA ??

Raja Lob Sharuddin Raja Ahmad Terzali & Ors V. Sri Seltra Sdn Bhd
[2008] 2 CLJ 284
• City Investment Sdn Bhd v. Koperasi Serbaguna Cuepacs

Tanggungan Bhd [1988] 1 MLJ 69.
– But the Act of 1966 and the Rules were designed to
improve and supplement common law remedies and do
not expressly or by implication deprive a litigant of a
contractual remedy which is not dealt with under the
SPA..Lord Templeman
• Clause 23, in particular, is meant to be an additional
protection for house buyers, without affecting or limiting their
rights under the common law.

CONTRACT OUT FROM APPROVED DRAWINGS

Completed Building and Plans

13. MATERIALS AND WORKMANSHIP TO CONFORM TO DESCRIPTION
• The said Parcel together with all the common property shall be
constructed in accordance with the description set out in the Fourth
Schedule and in accordance with the plans approved by the Appropriate
Authority which description and plans have been accepted and approved
by the Purchaser, as the Purchaser hereby acknowledges. No changes
thereto or deviations therefrom shall be made without the consent in
writing of the Purchaser except such as may be required by the
Appropriate Authority. The Purchaser shall not be liable for the cost of
such changes or deviations and in the event that the changes or deviations
involve the substitution or use of cheaper materials or the omission of
works originally agreed to be carried out by the Vendor, the Purchaser
shall be entitled to a corresponding reduction in the Purchase Price herein
or to damages, as the case may be.

"required"
• Ballentine's Law Dictionary where it is stated that when used
in a statute, the word "required" may be equivalent to the
word "commandered".
• The meaning of the word "required" was considered by the
Supreme Court of New Zealand in Edyvane v. Donnelly And
Others, [1946] NZLR 263 where Fair J concluded that it means
"mandatory".

TAN TIEN SENG & Anor v.GROBINA RESORTS SDN BHD (NO 2)
[2005] 7 CLJ 70
• Further, the changes or deviations must be such as may be "required by the Appropriate
Authority", which means that the initiative for such changes or deviations must originate
from such authority on grounds of eg, policy considerations in relation to planning
and development orders. Hence, changes and deviations which are brought about by the
defendant's own amendment or making through the defendant's engineer and architect are
in my view outside the scope of cl. 31(b) read with cl. 12.
• Clause 31(b) provides as follows:
• "Appropriate Authority" means any authority for the time being authorisd under any written
law in force in West Malaysia to approve buildings plans, subdivision of land, subdivision of
building, the issue of documents of title and to enforce any other laws related thereto.
• In my view, the architect or structural engineer employed by the defendant could not come
within the scope of cl. 31(b). LOW HOP BING J

1. Lim Sew Lan v. Pembangunan Hysham Sdn Bhd & Anor
[1999] 4 CLJ 701,
• The protection or exemption to those clauses take effect only

when the alterations, changes or deviations to the building
plans are required ie, unilaterally imposed by the appropriate
authority.
• In so far as the words "such as may be required by the
Appropriate Authority" in cl. 12 are concerned, I am of the
view that the changes to or deviations from the building plan
would have come within the ambit and purview of cl. 12 if
such changes or deviations had been required ie, unilaterally
imposed by the appropriate authority but not otherwise,
Kamalanathan Ratnam J

CHAN YEW MUN & ANOR v. FABER UNION SDN BHD
[2015] 4 CLJ 239
VAZEER ALAM MYDIN MEERA JC
• Whether Developer contractually bound to deliver property with car

porch measuring at its promised length
• The Purchaser confirmed receiving a copy of the amended floor plan
and had put down his initial in the amended layout plan as an
acknowledgement of receipt of the aforesaid plan and not as giving
his consent to any amendment to the floor plan; and not least of all
to the shortening of the car porch length
• In this regard, there was no agreement in writing by the plaintiffs to
vary the SPA to shorten the car porch. The mere initial or signature of
the first plaintiff on the amended floor plan, without anything more,
could not be taken as signifying the purchaser' consent to amend the
SPA and shorten the length of the car porch

Capping Corporation Limited & Ors v.
Aquawalk Sdn Bhd & Ors [2013] 1 LNS 574;
• ... there is a written agreement, any variation or termination of the

same should be also in written form and in very clear language

YEW HONG TENG & ANOR v. TTDI JAYA SDN BHD
[2015] 1 LNS 1114
SEE MEE CHUN J
• Clause 14 of S&P which requires the building to be constructed in

accordance with the plans approved by the local authority and no
changes or deviations shall be made without the consent in writing of
the purchaser. Here it was Plaintiff evidence he did not consent to
any amendments. The evidence of PW10 (Director of Building MBSA)
was that MBSA did not instruct the changes and DW2 (the architect)
had said the changes were ordered by Defendant. The amendment to
the building plans amounts to a breach of S&P by Defendant

ALLAN KINSEY & ANOR v. SUNWAY RAHMAN PUTRA SDN BHD & ANOR; DEKON SDN
BHD (THIRD PARTY)
PRASAD SANDOSHAM ABRAHAM J
• The issue of the certificate of fitness of occupation will point
compliance and satisfaction of cl. 14 ie, that the said property had
been constructed in a good and workman manner in accordance with
the description set out in the fourth schedule of the principal
agreement and in accordance with plan approved.
• And I refer to the case of Pentadel Sdn Bhd v. TPPT Sdn Bhd [2011] 1
LNS 1283, wherein Her Ladyship Hadhariah found at p. 6 of her
judgment and I quote with approval:
• Under a construction contract, a certificate issued by the relevant authorities

certifying the works had been completed prima facie proof that that the
works had been completed.

GOLDEN QUANTUM ACRES SDN BHD
v.SSU MANAGEMENT SERVICES SDN BHD [2014] 10 CLJ
NALLINI PATHMANATHAN J
• Although the appellant did not complete the works according to contractual
specifications, the appellant complied with the provisions of cl. 27. Clause 26(2)
provided specifically that if the appellant failed to deliver vacant possession of
the villas in the manner stipulated in cl. 27, only then the appellant would be
liable to pay the LAD. This meant that the developer must have delayed or
abandoned the completion of the property in toto. The clause did not provide a
remedy in a situation where the developer, ie, the appellant had completed the
works but had done so in a shoddy manner that it failed to meet the contractual
obligations
• For a claim for damages arising from a failure of the appellant to construct the
building in accordance with contractual specifications, the remedy available to
the respondents was the cost of effecting such repairs to meet contractual
specifications as well as consequential loss arising for the reasonable time during
which the respondents had suffered a loss of use of the villas.
• The respondent was required to mitigate its losses by ensuring that the repairs
were effected within a reasonable time. They were entitled to be compensated
on the basis of an objective and reasonable estimate of the time taken to effect
the requisite works. This was not equivalent to a claim for LAD, although the
quantum agreed upon may well be a reasonable estimate for the purposes of
determining the quantum per day of delay.

TTDI JAYA SDN BHD v. YEW HONG TENG & ANOR
COURT OF APPEAL, [2017] 1 CLJ
ASMABI MOHAMAD JCA
• If it was true that there was a total failure of consideration, a

reasonable purchaser would have rejected the property at the outset
and exerted his rights for a rescission of the SPA and not wait for
several years to elapse before deciding to rescind the SPA
• . The plaintiffs did not seem to be satisfied with the rectification of
defects by the defendant and had decided to abandon the said
property despite the same had been registered in their names. The
plaintiffs ought not to have abandoned the said property but to
mitigate their losses by engaging their own contractor to rectify the
defects and charging the same to the defendant under cl. 25(1) & (2)
of the SPA
• We were of the view the High Court had erred in granting liquidated
ascertained damages of 10% based on the purchase price of
RM476,024 as there was no issue of the property being delivered late

CHONG NGE WEI & ORS v. KEMAJUAN
MASTERON SDN BHD [2022] 4 CLJ 833
Clause 12 of the statutory sale and purchase contract under Schedule
H of the Housing Development (Control and Licensing) Regulations
1989 is clear in that it entitles a purchaser of a housing unit to claim
damages in the event the developer uses different materials for the
construction of the property without his written consent;
'different materials' means just that and does
not necessarily connote 'cheaper materials'. It
is also to be noted that in deciding whether the purchaser is or is not
entitled to the damages sought for, the fact that he had opted to claim
for damages instead of the alternative right to claim for a reduction in
the price of the property is an irrelevant consideration..

And in so far as proof of actual loss is concerned, the tendering of a
quotation prepared by the building contractor detailing the remedial
works to be undertaken, and the costs that it would entail, may suffice
to constitute prima facie proof of the damages suffered by the
purchaser; it needs no reiteration that in the absence of any rebuttal
evidence against such a prima facie proof, it is not open to the
developer to retort that the sum awarded is excessive and
unreasonable

(1) Theinference drawn by the Court of Appeal was
unjustified and sent the wrong message to housing
developers that they could change contract materials
at their whims and fancies without having to face any
legal consequences. Obviously, the reason why the appellants
did not ask for a reduced price for the properties was because they
chose to exercise their alternative right under cl. 12 of the SPA to claim
for damages for the respondent's wrongful act of using a different
material for the construction of the outer walls without their written
consent..

There was nothing in cl. 12 of the SPA to say that
damages could only be claimed in the event the
respondent used materials that were cheaper than
the contracted materials. What entitled the
appellants to claim for damages under the clause
was the unauthorised use by the respondent of
materials that were different from what was
contracted for. It was unfair to draw any unfavourable inference
against the appellants for opting to claim for damages instead of
claiming for a reduction in the price of the properties and to conclude
that, because of that, the change in the materials had no adverse
effect on the value or purchase price of the properties

CONCLUSION
CONTRACTING OUT
IS PROHIBITED UNDER HDA

PUBLIC TALK-CONTRACTING
OUT-SMA 2013
PRETAM SINGH, NOR & CO

CONTRACTING OUT PROHIBITED
• 149. (1) The provisions of this Act shall have effect
notwithstanding any stipulation to the contrary in any
agreement, contract or arrangement entered into
after the commencement of this Act.
• (2) No agreement, contract or arrangement, whether
oral or wholly or partly in writing, entered into after
the commencement of this Act shall operate to annul,
vary or exclude any of the provisions of this Act.

Strata Title in Singapore & Malaysia, 3rd Ed., Prof. Teo
Keang Sood, at pg 495, inter alia, stated:
"Firstly, it is trite law that a body created by a statute only has powers
granted expressly or by implication in that statute. A management
corporation's power to raise contributions is clearly and exhaustively
provided for in s. 42 of the LTSA (i.e. the Land Titles (Strata) Act, Singapore).
Anything done outside these powers is void ab initio. Secondly, upholding
contracts which circumvent the detailed and carefully drafted provisions of
the LTSA would drive a coach and horses through it."; and
at pg 497:
"If parties are permitted to contract out of the legislative framework of the
BMSMA (i.e. the Building Maintenance and Strata Management Act 2004) for
reasons best suited to them, one can imagine the chaos and confusion
which can result. Not only would a management corporation contract to
absolve itself of its duties under the BMSMA, it would have a free hand in
raising contributions which may be inimical to the interests of subsidiary
proprietors in a strata scheme." PRETAM SINGH, NOR & CO
POWER TO SUE

KL PLAZA

Syarikat East Coast v. Makna Mujur [2020] 2 CLJ
539. Harmindar Singh Dhaliwal JCA stated: -
"By virtue of statutory law in the form of s. 8 of BCPA 2007, the
second respondent has sole control and management of the
common property of KL Plaza. By law, the JMB is the guardian of
the common property. Any claims against third parties in relation
to the common property can only be brought by the JMB and not
the individual parcel owners or some of them together as is the
case in the instant suit. It is for the JMB alone to pursue such
claims for the benefit of all parcel owners. It is for this reason that
the JMB has been given the right in law to sue or be sued in its
name."

Representation in proceedings
143. (1) Notwithstanding any other written law—
(a) in any proceedings by or against the joint management body, management
corporation or subsidiary management corporation; or
(b) in any other proceedings in which the joint management body,
management corporation or subsidiary management corporation is required or
permitted by the court to be represented, or to be heard, or is otherwise entitled
to be represented or to be heard,any person authorized by the joint
management body, management corporation or subsidiary management
corporation for that purpose may, on behalf of the joint management body,
management corporation or subsidiary management corporation, institute such
proceedings or appear in such proceedings and may make all appearances
and applications and do all acts in respect of the proceedings on behalf of the
joint management body, management corporation or subsidiary management
corporation.
(2) Where all or some of the parcel owners or proprietors of the parcels in a
development area—
(a) are jointly entitled to take proceedings for or with respect to the common
property in that development area against any person or are liable to have
such proceedings taken against them jointly
the proceedings may be taken—
BADAN PENGURUSAN BERSAMA AVENUE K DAN K RESIDENCE
v. LEONG LI NAR REALTY SDN BHD & ORS [2021] 1 LNS 1232
MOHD ARIEF EMRAN ARIFIN JC
I agree that the right to institute any action in relation to the common
property lies with the Plaintiff ((JMB)

DR. LOOI MUN CHOON v. PARAGON PROMENADE SDN BHD
[2021] 1 LNS 1541 ALICE LOKE YEE CHING JC
This provision has to do with the issue of representation in suits

pertaining to common property involving parcel owners and the joint
management body or management corporation relating to matters
falling within the scope of the Act. This is not the case here.

POWER TO RENT A PARCEL- CAN IT BE
RESTRICTED BY JMB/MC

BADAN PENGURUSAN BERSAMA AVENUE K DAN K RESIDENCE
v. LEONG LI NAR REALTY SDN BHD & ORS [2021] 1 LNS 1232
MOHD ARIEF EMRAN ARIFIN JC
I am of the opinion that the Plaintiff does not have the power to
prevent any owner of any unit in the building to rent its premises to
any third party. Act 757 relied on by the Plaintiff does not contain any
such power to either the JMB or the Management Corporation to
restrict such rights. If the Plaintiff, being a Joint Management Body,
intends to restrict such rights then the appropriate by-laws must be
created by it under the Strata Management Act

DMC???

NON-APPLICATION OF OTHER WRITTEN
LAWS, CONTRACTS AND DEEDS

NON-APPLICATION OF OTHER
WRITTEN LAWS, CONTRACTS AND
DEEDS
• 148. On the coming into operation of this Act, in a

local authority area or part of a local authority area or
in any other area, the provisions of any written law,
contracts and deeds relating to the maintenance and
management of buildings and common property in as
far as they are contrary to the provisions of this Act
shall cease to have effect within the local authority
area or that to the other area

Wisma MPL JMB v. Malaysia Pacific Corp Bhd [2013] 1 CLJ 420;
[2013] 1 MLJ 712
The deed of mutual covenants cannot prevail over the statutory

provisions. The Court said (at page 731):
[110] It is to be noted that s. 44 of Act 663 states that on the
coming into operation of the Act, the provisions of any written law,
contracts or deeds relating to the maintenance and management of
buildings and common property in so far as they are contrary to the
provisions of Act 663, shall cease to have effect.
[111] Moreover the plaintiff is empowered by s. 8(2) of Act 663 to
make house rules for the proper maintenance and management of
Wisma MPL.
[112] Therefore the contention of the defendant that the deed of
mutual covenants between the defendant and the purchasers
prevails over the house rules is certainly misconceived in law."

BY-LAWS FOR BUILDING OR LAND INTENDED
FOR SUBDIVISION INTO PARCELS

THIRD SCH.BY LAW
STRAT MANAGEMENT(MAINTENACE AND MANGEMENT) Regulation 2015
• Section 150 for regulating the control, management, administration, use

and enjoyment of the building or land intended for subdivision into
parcels or the subdivided building or land, and the common property; or

ADDITIONAL BY LAW
provided for in any additional by-laws made
under section 32, 70 or 71;

• 32. (1) Any by-laws prescribed by the regulations made
under section 150 shall have effect in relation to every
building or land intended for subdivision into parcels and the
common property.
• (2) A developer during the developer's management period
may make additional by-laws or make amendments to such
additional by-laws, not inconsistent with the by-laws
prescribed by the regulations made under section 150, with
the approval of the commissioner.
• (3) A joint management body may, by a special resolution,
• make additional by-laws or make amendments to such
additional
Additional By -Laws
• by-laws, not inconsistent with the by-laws prescribed by

regulations made under section 150, for regulating the
control, management, administration, use and enjoyment of
the building or land intended for subdivision into parcels and
the common property, including all or any of the following
matters:
• (a) safety and security measures;
• (b) details of any common property of which the use is
restricted;
• (c) the keeping of pets;
• (d) parking;
• (e) floor coverings;

• (f) refuse control;
• (g) behaviour;
•
• (h) architectural and landscaping guidelines to be observed by all parcel owners; and
• (i) imposition of fine not exceeding two hundred ringgit against any parcel owner,
occupant or invitee who is in breach of any of the by-laws.
• (4) The additional by-laws made under subsection (2) or (3) shall bind the developer or
the joint management body, as the case may be, and the parcel owners, and any chargee
or assignee, lessee, tenant or occupier of a parcel to the same extent as if the additional
by-laws:
• (a) had been signed or sealed by the developer or the joint management body, as the
case may be, and each parcel owner and each chargee or assignee lessee, tenant or
occupier, respectively; and
• (b) contain mutual covenants to observe, comply and perform all the provisions of those
additional by-laws.
• (5) The developer or the joint management body, as the case may be, shall—
APPLICATION
• (1) The by-laws set out in this Third Schedule and any
additional by-laws made under the Strata Management Act
2013 ("the Act") shall bind the developer, the joint
management body, the management corporation or the
subsidiary management corporation, as the case may be, and
the purchaser, parcel owners or proprietors, and any chargee or
assignee, lessee, tenant or occupier of a parcel to the same
extent as if the by-laws or the additional by-laws have been
signed or sealed by each of the person or body mentioned
above and contain mutual covenants to observe, comply and
perform all the provisions of the by-laws or additional by-laws.

• (7) The developer or the joint management body, as the case may be, or
any parcel owner shall be entitled to apply to a court of competent
jurisdiction or the Tribunal—
• (a) for an order to enforce the performance of or restrain the breach
of, any by-laws by; or
• (b) to recover damages for any loss or injury to any person or property
arising out of the breach of any by-laws from,any person bound to
comply with the by-laws

CONTRACTING OUT BY AGREEMENT

PLAZA 393 MANAGEMENT CORPORATION v.
EKUITI SETEGAP SDN BHD [2016] 1 LNS 1398
The crux of the Defendant's defence is that it had paid all the
maintenance charges for the 7 parcels, and nothing is outstanding. The
Defendant relies heavily on the Agreement dated 19.7.2011 entered
between the Defendant (signed by the Director of the Defendant i.e.
DW3) and the Plaintiff (signed by one N. Madhavan Nair, the previous
Chairman of the Plaintiff) ("Agreement").
I rule that the Agreement is void under the STA for the reasons that I
have stated earlier. Thereafter, when the SMA, came into operation,
pursuant to s. 148, it expressly provides for the non-application and
cessation of effect of any existing contract, including this Agreement
I agree with counsel for the Plaintiff that a claim for outstanding
service charges is a running account. The figures do not remain
constant as can be seen from the statements produced. Therefore
limitation does not apply.
.
KB LOH SDN BHD v. PERBADANAN
PENGURUSAN SOHO[2021] 1 LNS 987 QUAY
CHEW SOON JC
10.10 Notwithstanding anything to the contrary, the Purchaser
agrees that the service charge as contribution to maintenance
charge payable by the owner of the car park bays belonging to the
Commercial Development where the numbers and locations of the
car park bays shall be as determined by the Vendor (hereinafter
refer to as "the Commercial Car Parks"), shall be granted a 90%
rebate of the service charge as contribution to maintenance charge
payable by a parcel owner on a per square foot basis. The
Purchaser undertakes and covenants together with all Other
Purchasers of the Other Parcels comprised in the said Project to
procure the Joint Management Body or the Management
Corporation (as the case may be) to grant such.

Pursuant to sections 21(2) and 25(3) of the SMA, the JMB is
empowered to determine the rate of maintenance charges and
contribution to the sinking fund.
The effect of Clause 10.10 DMC is to accord preferential treatment to
D. This is flatly against the principle of 'one rate is applicable to all
parcels'

• [28] Further, Clause 10.10 DMC is rendered void by virtue of section 24 of the
Contracts Act 1950, as it contravenes sections 21(2) and 25(3) of the SMA. In this
regard, Clause 10.10 DMC would be "forbidden by a law" and "is of such a nature
that, if permitted, it would defeat any law", within the ambit of sections 24(a)
and (b) of the Contracts Act 1950. (See the Supreme Court case of Coramas Sdn
Bhd v. Rakyat First Merchant Bankers Bhd & Anor [1994] 2 CLJ 143; [1994] 1 MLJ
369 at 378; the Federal Court case of Sababumi (Sandakan) Sdn Bhd v. Datuk Yap
Pak Leong [1998] 3 CLJ 503; [1998] 3 MLJ 151).

[29]
Any contractual clause which attempts to

contract out of a legal provision is illegal
and unenforceable as it is opposed to
public policy.

[34] Clause 10.10 DMC states that:
"... the Purchaser undertakes and covenants together with all
Other Purchasers to procure the Joint Management Body or
the Management Corporation to grant such".
[35] Clause 10.10 DMC requires D to procure the JMB or the
MC (in this case, P) to grant the 90% rebate. In this regard,
there was no such approval granted by the JMB or P at all
material times. It is common ground that the DMC was not
tabled and/or approved at any general meeting of the JMB or
P. Thus, D failed to satisfy the condition stipulated in Clause
10.10 DMC. This renders Clause 10.10 DMC inapplicable in
any event.

No privity of contract
D argues that the JMB or P ought to give effect to Clause 10.10
DMC, which all original purchasers signed with the developer. D
contends that the DMC regulates the rights and obligations of
the parties and the other purchasers inter se in relation to the
use and enjoyment, occupation and management of Soho Suites.
And that the DMC is binding upon the successors in title and
assignees of the original parties thereto.
It is undisputed that neither the JMB nor P is a party to the DMC.
The DMC was entered into between:- (i) the original purchaser,
(ii) the developer (as vendor), and (iii) the proprietor of the land
on which Soho Suites is situated. Thus, there is no privity of
contract between D and the JMB or P. . The JMB or P cannot be
saddled with a burden or liability under the DMC, to which it is
not a party.

Insurance Premium, Quit Rent and Water Bil
The statutory provisions under the SMA contemplate that a JMB is

entitled to collect any other charges (besides service charge and
contribution to sinking fund), provided that the same is part of the
purposes or matters envisaged under section 23(3) of the SMA. Thus,
JMBs or MCs are empowered to collect contribution to the
maintenance account, independently and separately from the service
charge.

Unlike its preceding Act, the SMA no longer requires a JMB to establish a
management fund 'sufficient' to meet all the administrative expenses in a
general meeting. Instead, it now allows a JMB (or MC) to determine and
impose the 'Charges' to be deposited into the maintenance account, for
purposes of meeting the actual or expected expenditures. In other words,
it permits a JMB to determine and impose 'Charges' on the proprietors on
a reimbursement basis (actual expenditure) as well as on a budget basis
(expected expenditure).

allocated share units

FIRST SCHEDULE
Formula for the computation of allocated share units
2. (1) The allocated share units of a parcel shall be calculated as follows:
Allocated = (area of parcel x FP1) + (area of accessory

share units of x FP2) parcel x WF3) a parcel
(2) In the above formula—
(a) areas are expressed in square metre;

(b) WF1 is the weightage factor for the type of parcel as specified in
Table 1;
(c) WF2 is the weightage factor for whole floor parcel as specified in
Table 2;
(d) WF3 is the weightage factor for accessory parcel as specified in Table 3;
(e) if there is more than one accessory parcel, the component formula
for the accessory parcel (area of accessory parcel x WF3) shall be
applied to each accessory parcel and then shall beSINGH,
PRETAM addedNOR
to &the
CO
Weightage factor (WF1) for types of parcel
1. Table 1 shows the weightage factors (WF 1 ) for the types of parcels reflecting
the frequency of usage and general maintenance of the common property which
are as follows:
TABLE 1
Without air-conditioning to With air-conditioning to

common areas of corridors, common areas of corridors,
lobbies and foyers lobbies and foyers
No. Type of parcel WF1 WF1 WF1 WF1

having having having having
benefit no benefit of benefit no benefit of
of common common of common common
lift/escalator lift/escalator lift/escalator lift/escalator
facility facility facility facility
1. Apartment/Small Office 1.00 0.85 1.30 1.15

Home Office (SOHO)
2. Office/Institution 1.00 0.85 1.30 1.15

(College) complex
3. Retail complex 2.00 1.70 3.20 2.90
4. Hotel/Medical centre 2.20 1.90 2.80 2.45

complex
5. Industrial complex 1.00 0.85 1.45 1.30
6. Car park 0.75 0.65 0.85 0.75

(whole floor parcel)
7. Shop-houses, shop-
apartments and shop-
offices—
(a) Upper floor parcel 1.00 0.85 1.30 1.15
(b) Ground floor 0.85 0.85 1.15 1.15

parcel
8. Land parcels Not Not Not Not

applicable
PRETAM SINGH, NOR & CO applicable applicable applicable
Weightage factor (WF3) for accessory parcel
1. (1) Table 3 shows the weightage factors (WF3) for an accessory parcel
which are as follows:
TABLE 3
No. Accessory parcel WF3 Basis
1. Outside building 0.25 To reflect a non-habitable open

or enclosed area outside the
building.
2. Within building 0.5 To reflect a non-habitable open or

enclosed area within the
building.
PERBADANAN PENGURUSAN STRAITS VIEW v. PERMAS JAYA SDN BHD
[2012] 1 LNS 1135
VERNON ONG J
• a) Section 43(2) STA 1985 empowers the plaintiff to, inter alia, (ii) recover from
any parcel proprietor any sum expended by the plaintiff in respect of that
proprietor's parcel; and (ii) collect during the initial period by way of
contributions from proprietors in proportion to their share units or provisional
share units of their respective parcels or provisional blocks.
• b) Pursuant to s. 45(1) STA 1985, the plaintiff is required to establish a
management fund to manage and administering the common property and
discharging any other obligations of the plaintiff.
• c) During general meeting, the plaintiff may (for the purposes of subsection (1)
of s. 45 STA 1985 ) determine the amounts to be raised and interest payable in
respect of late contributions; and levy contribution on the proprietors in
proportion to the share units or provisional share units of their respective
parcels or provisional blocks.
• d) Under s. 52 STA 1985, the plaintiff shall be entitled to recover the
contributions from the defendant as a debt due to it.

• a) On a true construction of s. 45 STA 1985, the reference to 'provisional lot'
is restricted to a provisional lot which is actually receiving benefit or
services from the management corporation and or is inside the area which
is managed by the management corporation;
• b) The acts of the plaintiff in immediately levying the contributions under s.
45(3) STA 1985 during the 2nd and 3rd AGMs (and without prior complying
with s. 45(3)(a) STA 1985 ) are acts that are ultra vires, void and invalid;
• c) The plaintiff does not have any valid cause of action against the
defendant as the plaintiff failed to comply with ss. 53(1) and ss. 53(2) STA
1985 - namely, the plaintiff's failure to serve on the defendant the 2
separate written notices before filing this action; and
• d) The contributions of RM270,662.69 and RM160,616.86 are not
contributions approved in any AGM of the plaintiff and or are in fact
contributions in relation to periods of time preceding the 2 AGMs of the
plaintiff

9.9 A management corporation is, inter alia, required to manage
and properly maintain the common property and keep it in a
state of good and serviceable repair (s. 43 STA 1985). A
management corporation is required to establish a management
fund to meet the administrative expenses for the purposes of
controlling, managing and administering the common property,
paying rent, rates and premium of insurance and discharging any
other obligation (s. 45(1) STA 1985). Pursuant thereto, a
management corporation is empowered to levy contributions on
the proprietors in proportion to the share units or provisional
share units of provisional blocks (s. 45(3) STA 1985).

10.1. At the 2nd AGM held on 14.8.2010, a budget was
tabled putting forward the amounts to be levied on the
proprietors. The budget was adopted in the general
meeting; this fact is evidenced in the minutes of the
2nd AGM (exh. G Encl. 9) at page 8 where it is minuted
that by a majority on a show of hands the contribution
to the management fund be fixed at RM22.00 per share
unit per month. It was also agreed by a unanimous vote
that the interest on late payment be fixed at the rate of
10% per annum

This contention is misconceived for the simple fact that subsection(1) of s.
53 merely provides that the management corporation may serve a 2
weeks notice on the proprietor. The s. 53 notice is not mandatory in
nature. The plaintiff has a discretion whether to issue the notice or not.
Accordingly, the plaintiff is not precluded from filing this action for the
recovery of the contributions against the defendant

12. The defendant is not liable to pay the contributions of
RM270,662.69 for the period Jan. 2010 - Aug. 2010 and
RM160,616.86 for the period Aug. 2009 - Dec. 2009. These
contributions were not approved in any of the AGMs of the
plaintiff pursuant to s. 45 STA 1985.
12.1. This is not an issue as learned counsel for the plaintiff

conceded that these 2 sums in question were not sanctioned in
the plaintiff's AGM. Be that as it may, the Court is empowered to
grant summary judgment for part of the claim under O. 14 r. 3(1)
ROC 2012.

MUHAMAD NAZRI MUHAMAD v. JMB MENARA RAJAWALI & ANOR [2018] 9
CLJ 547 S NANTHA BALAN J
It was for the AGM comprising of the owners to decide whether

the rate for payment of maintenance charges for all types of units
should be uniform or whether depending on the facts and
circumstances, there should be a difference in the rates
The share unit or multiplier is fixed, whereas the multiplicand or
rate can vary depending on what the JMB decides at the AGM.
There was nothing in these sections of the SMA 2013, which
prevents the JMB/JMC from fixing different rates of charges for
different types or categories of units in the strata project, so long
as this was approved by the AGM. Here, the approval was clearly
given by a unanimous resolution at the AGM on 25 June 2016.
Hence, it was valid and legal for the JMB to fix different rates of
charges for the residential/retail units and car park units as that
was well within the mandate imposed by the AGM
MUHAMAD NAZRI BIN MUHAMAD V JMB MENARA RAJAWALI
RAYUAN SIVIL NO: W-02(NCVC)(A)-2057-10/2018 VERNON
ONG LAM KIAT, JCA
In the light of the fact that three weightage factors have been applied in the
calculation of share units for car park parcels and which calculation is
premised on equitable considerations, it would appear that the JMB is only
empowered to fix one rate which is applicable to all types of parcels. If that
course is adopted, then the owners of different type of parcels will be
paying maintenance charges in proportion to the allocated share units of
their respective parcels because the rate per share unit is the same .
It is also important to apprehend the general legislative scheme of the SMA
2013 and the STA 1985 which governs all strata development projects. Both
statutes set out a comprehensive, transparent, equitable and uniform
regime to allocate and calculate the share units of each parcel; which must
be filed with the Commissioner of Buildings and approved by the Director
of Lands and Mines.
AMITY ONE SDN BHD v. BINJAI RESIDENCY MANAGEMENT CORPORATION
HIGH COURT MALAYA, KUALA LUMPUR
QUAY CHEW SOON JC
[29]Sections 21 and 25 of SMA 2013 impose duties and powers upon a

JMB which are similar to duties and powers imposed upon a
management corporation under sections 52 and 59 of SMA 2013.
Accordingly the ratio decidendi of Muhamad Nazri (supra ) should
equally apply to a management corporation as well
DATO PRETAM@ PRETAM SINGH, NOR & CO

Can one rely on section 60(3) of
SMA 2013 as justifying a Different
share rate of charges

60"(3) Subject to section 52, for the purpose of establishing and
maintaining the maintenance account, the management
corporation may at a general meeting -
(b) raise the amounts so determined by imposing Charges on the
proprietors in proportion to the share units or provisional share
units of their respective parcels or provisional blocks, and the
management corporation may determine different rates of
Charges to be paid in respect of parcels which are used for
significantly different purposes and in respect of the provisional
blocks;"

QUAY CHEW SOON JC
[33] My view however is that s. 60(3) is not applicable to the
present case. Here, the use of land stipulated in the master
title is that of a commercial land for service apartment. Both
'commercial purpose' and 'service apartment' are stipulated
in the title itself and anticipated from the beginning. Thus,
this is not a situation where P's parcels were changed midway
to be "used for significantly different purposes". The use of
P's parcels remain the same now as it was in the beginning.
The justification for invoking s. 60(3), namely different rates
of Charges in respect of parcels which are used for
significantly different purposes, is absent here

Management Corporation v. Fitters Building Serrvices Sdn Bhd [2017] 1
LNS 2231.
In that case, a proprietor sought to move a resolution for a

different lower rate of Charges to be imposed on its parcels on
the basis that it had been maintaining the parcels at its own
costs. The High Court held that such resolution was void as the
proprietor did not satisfy the condition of 'significantly different
purpose' laid down in s. 60(3). The Court observed that the
express conditions of the master title clearly indicate that the
units in that proprietor's parcels and other similar units are to be
used as 'commercial buildings'. To allow different rates of
Charges for units of similar use would be unjust to other parcel
proprietors.

ARRANGEMENTS
The Arrangement essentially calls for D to implement lower share units

for P's parcels based on the weightage factor of 1 instead of 4. In
return, P will transfer the Laundry Room and 10 car park lots to D. P
also agreed to provide an additional 10 car park lots as free parking for
D as long as the Arrangement is in place.

[53] Under the Arrangement, P attempts to
transfer/deal with the accessory car parks
independently of its parcels. the Arrangement clearly
contravenes sections 34(2) and 69 of STA 1985 and is
therefore illegal. After the Arrangement was
terminated by D with effect from 1.7.2018, the
modified Arrangement was proposed. In my opinion,
the modified Arrangement would be equally illegal for
contravention of STA 1985 and SMA 2013.

Once a share unit has been allocated to a parcel, D has no power
to reduce its weightage factor or to recognize a lower share unit
in order for P to pay lower Charges. Unless the revision of share
unit is made under sections 23(2)(b) or 33(2)(b) of STA 1985,
which do not apply here.
D has no power to reduce or apply a different share unit other
than that already endorsed on the strata register and P's strata
titles. As a creature of statute, D's powers are limited to those
expressly provided under the law.
D has no power to accede to P's request to reduce the
multiplying factor for its parcels for the purpose of enabling P to
pay lower charges.

D is obligated under sections 59(1)(b) and 59(2)(a) of SMA 2013 to
impose a fixed rate per share unit and to levy charges in proportion to
share unit. Additionally, both SMA 2013 and STA 1985 mandate D to
impose and collect Charges in proportion to the share unit of parcels and
not in proportion to square foot of the parcels. P's request for the latter
tantamount to asking D to take the law into its own hands and ignore the
statutory formula.

“SUBSIDIARY MANAGEMENT
CORPORATION”

SODALITE SDN BHD & ORS v. 1 MONT' KIARA DAN
KIARA 2 MANAGEMENT CORPORATION & ORS
(i)[2021] 7 CLJ of
the proportion 633
the MOHD ARIEF
share units EMRAN
or provisional ARIFIN
share JCthe
units of
parcels or provisional blocks; and (ii) the first defendant may determine
different rates of charges for the parcels if they are used for significantly
different purposes. Based on the plain reading of s. 60(3) of the SMA, the
first defendant had powers to differentiate the different type of charges to
be imposed on proprietors subject to the condition that the power must
not exceed the two limitations above

The first defendant must strictly adhere to the requirements of s.
60(3)(b) to be read together with ss. 51, 52 and 59 of the SMA.
Furthermore, no reasons were given as to why the proprietors of I-Zen
Kiara 2 were excluded from paying any form of charges for the
common property, despite the clear requirement of the SMA. The first
defendant committed an error of law in imposing charges contrary to
the express powers under s. 60(3) of the SMA.

The first defendant had allegedly transferred RM5,200,023.58, being
the surplus funds, and apportioned the sums from the first defendant
to the SMCs, which allegedly led to the transfer of monies to the SMCs.
The first defendant had the power to transfer or apportion the funds
that relate to the SMCs to enable the entities to comply with their
duties under the SMA

The levy and collection and maintenance charges and sinking fund
contributions by way of method B in ordinary resolution 4 under
agenda No. 5 at the first Annual General Meeting was null and void. All
maintenance orders shall be levied and collected by the first defendant
based on the consideration contained in s. 60(3) of the SMA.

Car parks as part of common property
Whether D1. may lawfully rent out the
car parks to third parties

CAR PARK BAYS

Ideal Advantage Sdn Bhd v. Perbadanan Pengurusan Palm
Spring @ Damansara & Another Appeal [2019] 1 LNS 894,
The developer had sought to sell 45 units of the condominium
to a related company ("D1"), together with 329 accessory car
park parcels. Apart from 5 units of the condominiums with only 1
accessory car park parcel attached to each, the other 40 units
have 8-15 accessory car park parcels each.
D1's intention of holding 329 accessory car park parcels was to
use those car parks for a commercial venture and not as
accessory parcels to the main units of the condominium. The
Court of Appeal found the arrangement to be illegal

QUAY CHEW SOON JC
[45] The word "accessory" connotes the usage of the accessory
car park parcel as attached or annexed, connected or dependent
on and/or used or intended to be used with the main parcel. It is
not independent on its own. To allow the carrying out of a
business venture of renting out the accessory car park parcels
independently of the parcel units of the condominium, as what
was done by D1, would defeat the very purpose and intent of
Parliament in legislating the STA 1985 with regards to accessory
parcel.
[46] To this extent, D1's purpose and intent clearly constitutes a breach of sections 4,
34(2) and 69 of the STA 1985, which constitutes illegality."
[52] The Court also found the act of renting out the car parks as a dealing which is
caught by sections 34(2) and 69 of STA 1985:
"[50] The act of renting out 394 car parks by D1 independent of the main parcels,
constitutes "dealing" of the accessory parcels, which is prohibited by sections 34(2)
and 69 of the STA 1985, which includes any dealings by way of tenancies or the rental
of car parks."
TARGET TERM SDN BHD v. WALDORF AND WINDSOR
MANAGEMENT CORPORATION; MALAYSIA LAND PROPERTIES
SDN (INTERVENER/2ND DEFENDANT IN COUNTER CLAIM )
BETWEEN TARGET TERM SDN. BHD.... PLAINTIFF AND 1.
WALDORF AND WINDSOR MANAGEMENT CORPORATION ...
DEFENDANT 2. MALAYSIA LAND PROPERTIES SDN ...
INTERVENER/2ND DEFENDANT IN COUNTER CLAIM [2021] 1
LNS 2505 ROZANA ALI YUSOFF J

25] Therefore, the renting of the 414 Car Parks amounts to "tenancy" or
"tenancy exempt from registration", which is "dealing". Thus, the 414 Car
Parks are "dealt with" independently of the parcel. The fact that the 414
Car Parks were used for business and let out to third parties are clear
violation or in contravention Sections 34(2) and 69 STA. Although the title
is a commercial title, the use of the 414 Car Parks is subject to law, i.e.
Sections 4, 34(2) and 69 of the STA.

The 414 Car Parks as accessory parcels have to be used in conjunction
with the main Parcel which the serviced apartment and is meant for
dwelling purposes and not a commercial unit. The allocation of 414 Car
Parks to the Plaintiff is an illegality because they were not used nor
intended to be used in conjunction with the main parcels. Hence the
intention and usage of the 414 Car Parks resulted in a breach of Sections
34 (2) and 69 of the STA 1985.

[26] Since the 414 Car Parks were not used in conjunction with the
B21- 03, and therefore, is not accessory parcels by legal definition in
Section 4 of the STA. In view of the illegality and defeasibility of the
Strata Title, the 414 Car Parks are not accessory parcels. Therefore, the
414 Car Parks are common property as they are not parcel or
accessory parcel.

Is Written Notice is a prerequisite to a claim for the Charges ?

Perbadanan Pengurusan Straits View v. Permas Jaya Sdn Bhd [2012] 1 LNS
1135
The High Court dismissed such an argument when dealing with an

equivalent provision in section 53 of the STA 1985. In that case, the
developer (original proprietor) argued that the management corporation
did not have a valid cause of action because of its failure to serve 2
separate notices under sections 53(1) and (2) of STA 1985 prior to filing
the suit. The Court said:
"11.1. This contention is misconceived for the simple fact that

subsection(1) of s. 53 merely provides that the management corporation
may serve a 2 weeks notice on the proprietor. The s. 53 notice is not
mandatory in nature. The plaintiff has a discretion whether to issue the
notice or not. Accordingly, the plaintiff is not precluded from filing this
action for the recovery of the contributions against the defendant".

Ong Hock Eam & Ors v. Perbadanan Pengurusan Komtar Fasa Satu [2018] 1
LNS 106
"[28] It is plain to me that by the usage of the word

"may" in s. 53 of Act 318 [STA 1985], the service of
the notices stipulated therein are not mandatory...
[29] Furthermore the Appellants have not shown
how they were prejudiced by the non-service of the
second notice; such as for example the attachment
of their movable property...".

THEFT IN CONDO

HARVINDER KAUR GUJJAR SINGH v. JOINT
MANAGEMENT BODY PERDANA VIEW &
ANOR [2017] 1 LNS 421
Sandanatavan Marimuthu & Anor v. Badan Pengurusan - PV3; TSS
Security Services Sdn Bhd (Third Party) [2015] 2 CLJ 844
based on the provisions of Act 663, the Joint Management Body ('the
JMB') in that case is duty bound only to maintain and manage those
areas defined as 'common property' in section 2 of the Act. And that,
as a consequence, the JMB does not owe any duty of care in respect of
the security of the unit of the plaintiff in that case.
she has to establish that the theft was committed by unauthorised
person(s) and not by a legal occupier of the condo. In the event that
the thief/thieves had a legal right to enter the condo, there is no
breach of duty on the 1st defendant's part. In the event that she is able
to establish that the theft was committed by unauthorised person(s),
she has to show that it is through the 1st defendant's negligence that
these unauthorised person(s) managed to gain entry into the condo

ILLEGAL PARKING
FAZARUDIN SUJAIRI MD RADZI v. BADAN
PENGURUSAN BERSAMA PANGSAPURI
CASMARIA[2021] 1 LNS 1276
Further the Federal Constitution states that no person shall be
deprived of property save in accordance with law. The house
rules cannot be considered as law. The rules are made under
the Strata Management Act 2013 which is the law. If anything
the proper declaration should be for a declaration that the
Strata Management Act 2013 is against Article 13 of the
Federal Constitution.
The Plaintiff's claim for general damages and any other
damages is also untenable as the Plaintiff has not shown any
evidence or put forward any facts to support allegations of
any loss suffered as a result of the car being towed away.

Can JMB sign agreement for period
longer than 12 months ?

KENSINGTON STRATA MANAGEMENT SDN BHD v. BADAN PENGURUSAN BERSAMA
PANGSAPURI RIA [2021] 5 LNS 1
MABEL S MUTTIAH SCJ
The Court finds from the conduct of the P and the D it is inevitable to conclude that at the
material times both parties accepted that the 2nd Agreement was valid, lawful and binding
upon them. The D's reliance on the Contracts Act 1950 /The Strata Management Act 2013 to
raise the issue of illegality is simply to avoid its liability and the Court is not wrong to
conclude that this is an afterthought argument broached by the D.
The Court is of the view that section 21(3) of the Strata
Management Act 2013 does not declare the agreement to be
invalid. Neither does it penalise any party for contravening the
Act. It only prohibits the D from entering into such agreement.
The validity of such agreement is not automatically void.
In MERONG MAHAWANGSA SDN BHD & ANOR v. DATO' SHAZRYL ESKAY ABDULLAH [2015] 8
CLJ 212 B (on illegality) where the Federal Court also held that
"Even so, in Lori v. Arab Malaysian Finance, this court counselled that courts should be slow
to strike down commercial contracts on the ground of illegality“
The Court concludes that there are no case-laws that says contravention of Section 21(3) of
the Strata Management Act 2013 would render an agreement void. In any event,

MOHAMED HANAN MOHAMMED ALI v.
BADAN PENGURUSAN BERSAMA
DAMANSARA FORESTA[2021] 1 LNS 1831
[41] I have also considered section 21(3) of the Strata Management Act
and find that the said provision does not apply to the contract at hand.
The said proviso only applies to "contract relating to maintenance and
management of any building or land intended for subdivision" and not
to any contract to supply gymnasium equipment to be used by the
residents of the property.
[42] I find that the intention of the said proviso is clearly limited to the
maintenance and management of building or land that would be
subsequently subdivided. They are not to cover all aspects of the
management of the common property or services to be provided to
the residents of the condominium. This is another error committed by
the learned Magistrate that requires appellate interference.

WHEN IS JMB A CARETAKER JMB?

PARK ACCESS SDN BHD & ORS v. BADAN PENGURUSAN
BERSAMA PRIMA AVENUE DAN DPCC FASA 1 (BLOK G, H, I)
AND OTHER APPEALS [2018] 1 LNS 711 YEOH WEE SIAM, JCA
We are of the firm opinion that upon the establishment of the
MC on 24.1.2014, by virtue of section 42(1) of the STA, from
the time that the MC comes into existence, the MC becomes
the proprietor of the common property. Therefore, even
though the 1st AGM of the MC was held on 11.6.2016, and
the assets and liabilities were to be handed over by the JMB
to the MC before 11.7.2016, the fact remains that all
proprietary rights in the common property of the 2
developments have already been statutorily vested in the MC
on the date of establishment of the MC on 24.1.2014. The
JMB then merely existed as a "caretaker" interim body for the
sole purpose of smooth handing over of all matters to the MC
once the Management Committee is appointed. However, the
JMB has no proprietary rights over the common property.
•Thus, at any time after 24.1.2014, the JMB
has lost its locus standi to sue on behalf of
the Plaintiff to claim any proprietary rights
over the common property or the Disputed
Areas from the Defendants. The Plaintiff, by
instituting these proceedings against the
Defendants in its capacity as the JMB, when
the MC is already established, has clearly
acted contrary to the express provisions of
the STA, in particular sections 39 and 42(1).

1.Can MC by a resolution in AGM enter into agreement for
Developer to maintain his portion of common property ?
2. Is Limitation Applicable to claim for Charges?
3. Service charges based on square feet or share units ?

EKUITI SETEGAP SDN BHD v. PLAZA 393 MANAGEMENT CORPORATION
CA [2018] 1 LNS 259 TENGKU MAIMUN TUAN MAT
1. The agreement if upheld would result in a different

common property being managed by the plaintiff and the
defendant respectively. The defendant in this instance would
act as if it is a management corporation under the STA or the
Strata Management Act 2013 (SMA). The defendant also need
not contribute to the management fund as the other
proprietors. These would run counter to the statutory regime
of the STA/SMA which does not envisage a strata
development having multiple common areas or having more
than one management corporation. Neither does the
STA/SMA envisages exempting certain proprietor from paying
the maintenance charges or making contribution to the
maintenance fund as resolved by the management
corporation in its AGM
2. If the plaintiff's argument is accepted, it would mean that the MC is
conferred the discretion to charge the parcel owners either on a square foot
or on a share unit basis. This will result in two different basis of levy of the
maintenance charges on parcel owners. In our view, it cannot be that the STA
intended MC to charge parcel owners on a different basis, but rather the law
intended that there be only one basis for the quantum of contribution to the
MC to be determined and that is on the basis of share unit.
We find that the STA mandated that contributions to the management fund
be determined on a share unit basis. Any other basis to determine the
quantum of contribution would be contrary to the STA and thus illegal. The
fact that the charges levied on the square foot basis are in accordance with
the resolutions passed at the plaintiff's general meeting is immaterial, given
that the plaintiff cannot act beyond the provisions of the STA.

3. Before we proceed with the main issues, we wish to state
at the outset that we find no appealable error in respect of the
learned judge's finding that the plaintiff's claim is based on a
running account. In Wembley Industries Holdings Bhd (supra), it
was held
"... a running account is a single account and not a composite of
its various parts. A payment made on account of a running
account is in respect of the entire outstanding balance, with the
result that time is extended for the whole of the debt. It appears,
therefore that a running account will become statute-barred
only if more than six years elapse between the supply of the last
article under it and the last payment on account.".
Consequently, we agree with the learned judge that the
plaintiff's claim is not barred by limitation under section 6 of the
Limitation Act

Perbadanan Pengurusan Endah Parade v. Magnificient
Diagraph Sdn Bhd [2014] 5 CLJ 881 where Mohamad Ariff
Yusof JCA said at pg 903:
"In this respect, we agree with that the management corporation as a

body incorporated under statute can only levy payments which are
mandated by the statute. It will be ultra vires its powers for management
corporation to levy payments which are not sanctioned by the statute.
This is where a proper interpretation of s. 45 of the STA becomes of
fundamental importance. Section 45(1) states very clearly that the
management corporation "shall establish a management fund sufficient in
the opinion of the management corporation to meet the administrative
expenses as may be incurred for the purposes of controlling, managing
and administering the common property, paying rent, rates and premiums
of insurance and discharging any other obligation of the management
corporation." This is a very comprehensive provision.".

SINKING FUND

3 TWO SQUARE SDN BHD v. PERBADANAN PENGURUSAN 3
TWO SQUARE , YONG SHANG MING (THIRD PARTY) [2018] 4
CLJ 458 AZIZUL AZMI ADNAN J
1.Based on a proper construction of s. 46 of the Strata Titles Act 1985, no special

resolution was required for the use or application of the sinking fund. Although a
special resolution is required to determine the portion of the contribution of the
management fees that is to be applied to the special account, no special resolution
is required in order for the funds in the special account to be used to defray
expenses
2.All the facilities located outside the parcels and which were capable of being
used in common by more than one parcel owner to be common property. These
included the cooling tower, toilets and lifts in Crest Tower.
3. Even though the council members owed a fiduciary duty to the management
corporation and to the proprietors as a whole, this duty was not owed to any
individual proprietor. No liability will arise in connection with the exercise of a duty
or function of a management corporation by its council member, for as long the
council member acts in good faith in what he or she considers to be in the best
interests of the proprietors as a whole

PERBADANAN PENGURUSAN 3 TWO SQUARE v. 3 TWO SQUARE SDN BHD &
ANOR AND ANOTHER APPEAL
ANTARA PERBADANAN PENGURUSAN 3 TWO SQUARE
[2019] 1 LNS 2281
that the council members of a management corporation owe a duty of

fiduciary and good faith and care to the corporation similar to those
owed by directors of a company. Such a duty requires them not to
allow any conflict to arise between their duty to the corporation and
their own personal interests. The duty is to be discharged with such
care as an ordinary prudent person in a like position would use under
similar circumstances. And when it is discharged as such, council
members may not be held liable for decisions that were fairly and
reasonably made, even if it turned out to be wrong in hindsight. This is
often referred to as the 'business judgment rule' and it protects council
members if it can be established that they have acted in good faith
taking into account all the factors surrounding the matter and that they
personally believed the decision arrived at was made in the best
interest of the condominium owners and the management corporation
as a whole.
PLAZA PEKELILING MANAGEMENT CORPORATION v. FITTERS
BUILDING SERVICES SDN BHD [2017] 1 LNS 2231
ROHANI ISMAIL JC
Furthermore, if the re-election of the entire management committee is

to be allowed at an EGM, then anybody could requisite an EGM to re-
elect a new management committee of a Management Corporation
before the completion of a term, and that to the Court's view is not the
intention and purpose of the Act.

DELAY IN HAVING AGM

JOINT MANAGEMENT BODY CHERAS SENTRAL v. TRIBUNAL
PENGURUSAN STRATA & ORS [2018] 1 LNS 72
AZIZAH HAJI NAWAWI J
Further, under section 2(6) of the Second Schedule (Provisions for

Management Corporation) of the SMA 2013, all members of the
management committee of a management corporation shall retire from
office at the conclusion of the next general meeting. Section 2(4) of the
Second Schedule provides that a committee shall be elected at each
annual general meeting.
Therefore, by the operation of the law, at the conclusion of the 3rd AGM
on 24.10.2015, Mr. Chong has retired as chairman of the applicant, with
the new management taking over. Even if we agree with Mr. Chong's
contention that the 3rd AGM is tainted with illegality because of the
injunction, when the 4th AGM was held, there was no longer any
injunction to stop the 4th AGM which was conducted in accordance with
the SMA 2013. Therefore, after the 4th AGM, Mr. Chong is effectively not
the chairman of the applicant. Therefore, by claiming to be the chairman
of the applicant to maintain this action, Mr. Chong has come to this court
with 'unclean hands'
Re Daljit Kaur Harjan Singh; Ex P Perbadanan
Pengurusan Ixora [2015] 8 CLJ 573,
Provisions under paragraph 2(1) of the Second Schedule to Strata Titles
Act 1985 applicable in Semanjung Malaysia which provided that
council members elected in an annual general meeting of a
management corporation established for apartments issued with strata
titles shall cease to hold office at the next annual general meeting and
the provisions under paragraph 8(2) of the same Schedule which
similarly requires "not more than fifteen months shall elapse between
the date of one annual general meeting and the next".
The Court held that the elected members of the council of such
management corporation at one annual general meeting continued to
hold office as such members until the election of the new members in
replacement and this was notwithstanding that no subsequent annual
general meeting was held within the 15 months period. The Court held
that if it was otherwise, it would cause undue hardship to all the parcel
proprietors of the apartments and all third parties dealing with its
management corporation andPRETAM theSINGH,
council.
NOR & CO
Bin Hee Heng v. Management Corporation
Strata Title Plan No 647 [1991] SGHC 41;
[1991] 1 SLR (R) 484
On similar provisions under Land Titles (Strata) Act (Cap 277,
1970 Rev Ed, 1976 Reprint), the Singapore High Court held the
fact that no such annual general meeting was called within
the 15 months period merely meant that the management
corporation and its officers laid themselves open to
prosecution.
It could not in any way affect the validity of an annual general
meeting subsequently held and the adjourned annual general
meeting, if the proper procedure had been followed

(1) A person who is a chairman, secretary or treasurer or a member of
a management corporation shall vacate or shall be deemed to have
vacated his office as such member -
(I) in the case of a member of the management committee, if he
commits a serious breach of the by-laws and has failed to remedy the
breach, if the breach is capable of being remedied within fourteen days
of the date of receipt of notice from the management committee.
In my view if that matter is decided in favour of the plaintiff the
management committee must comply with giving the necessary
notices to the parcel proprietors to rectify the breaches within
fourteen days. It is only then upon the refusal to rectify that the said
parcel proprietors are deemed by operation of law to have vacated
their seats at the management committee. If the parcel proprietors are
found to have remedied the breaches there is no issue of being
deemed to have vacated their seats.

DOES MC/JMB HAS POWERS OUTSIDE THE DEVELOPMENT
AREA?

DUA RESIDENCY MANAGEMENT
CORPORATION v. EDISI UTAMA SDN BHD &
ANOR 2. E&O CUSTOMER SERVICES SDN BHD
[2021] 1 LNS 174
LIM CHONG FONG J
26 JANUARY 2021

• The Plaintiff commenced this Suit on 4 October
2017 against the First Defendant for breach of
contract, breach of statutory duties and/or
negligence predicated on design flaws as well as
against the Second Defendant for breach of contract
and/or negligence predicated on inadequate
maintenance which resulted in latent defects
discovered in several parts of the Condominium.
Consequently, the Plaintiff claimed damages for
rectification of the defects.

Upon my careful reading of the Ocean Front case, I am of the view that
there is no reason not to adopt the analysis and conclusions therein
here. I am mindful that the applicable statutes involved are not
identical as pointed out by the First Defendant but they are in my view
closely similar. As to the differences, it does not really matter that
there was the involvement of an intermediary entity, to wit the JMB
which is jointly constituted by the developer and several
representative purchasers upon the completion of the Condominium
until the Plaintiff is established. The critical consideration is that the
First Defendant has been in continuous participation in the
maintenance and management of the Condominium although not
alone solely. It is also plain that the Condominium developed by the
First Defendant is fraught with defects that are the subject matter of
the complaint by the Plaintiff here and therefore not purely a case of
financial economic loss. In the circumstances, I hold there is on the
special facts herein sufficient proximity and hence it is just and
reasonable to find a duty of care owed by the First Defendant to the
Plaintiff to ensure that the Condominium has been properly
constructed with good workmanship in accordance with the agreed
specification and approved plans in the SPA
1.Consequently and in the circumstances, I find and
hold that the First Defendant is negligent as claimed
by the Plaintiff in respect of the Swimming Pool
Defect
3. In the circumstances, I therefore find that the
Swimming Pool Defect was only discovered by the
Plaintiff with reasonable diligence in December 2015.
Since this Suit has been filed in October 2017, this is
well before the expiry of the limitation period

DUA RESIDENCY MANAGEMENT CORPORATION v. EDISI UTAMA SDN BHD & ANOR 2. E&O
CUSTOMER SERVICES SDN BHD [2021] 1 LNS 174
LIM CHONG FONG J
26 JANUARY 2021
I find and hold that the VAEAA does not support the finding of the
existence of a duty of care on the part of the Second Defendant which
is unregistered with the Board pursuant to the statute. If there is any
need of registration by the Second Defendant under the VAEAA, the
recourse for non-registration is for the Board to enforce the penalty
prescribed in the VAEAA against the Second Defendant but not to
afford the Plaintiff a private law cause of action

By Law 14 Third Schedule SMA 2013
Keeping of animals
(1) In a building used for residential or dwelling purposes, a proprietor shall not keep
any particular animal in his parcel or on the common property thereof that may cause
annoyance or nuisance to the other proprietors or which may be dangerous to
the safety or health of the other proprietors or which contravenes any written law or
rules and regulations of the relevant State or the local authority.
(2) A proprietor, who is in breach of sub-paragraph 14(1) of these by-laws, shall within
three days upon the receipt of a written notice from the management
corporation remove the particular animal from the building. If he fails to do
so, the management corporation may take whatever action deemed necessary to
remove the particular animal from the building and –
(a) all cost incurred shall be charged to and imposed on the proprietor, and
(b) the management corporation shall not be liable for any damage reasonably caused
to the property of the proprietor in the process of removing such animal.

“Nuisance”
“an inconvenience materially interfering with the ordinary

physical comfort of human existence”. So, for example, an
activity which causes excessive noise or dust or smoke
might constitute a nuisance.

“Annoyance”
It has no technical legal meaning but it is clear that it is wider

than “nuisance”. The leading case on the point, Tod-Heatley v
Benham (1888) 40 CH D 80 concerned the use of a building as a
hospital for patients with contagious diseases. Medical evidence
was given that there was no significant risk of infection from the
hospital and the court held that the use was an annoyance
although not a nuisance.
“really does bring an objection to the mind of a reasonable

being” or “reasonably troubles the mind and pleasure, not of a
fanciful person, or of a skilled person who knows the truth, but of
the ordinary sensible Malaysian inhabitant of a house”. There
need not be any “physical detriment to comfort”.

Can the Management Corporation make
additional by law
prohibiting the keeping of pets in the stratified
parcels ??

Section 70(2) of the Strata
Management Act 2013
It is apparent that the Management Corporation may in an

AGM adopt Additional By laws in relation to Pets but cannot
be inconsistent with Third Schedule By Laws (Standard By
Law).The Third Schedule By Laws (Standard By Law)
allows the keeping of pets and therefore any prohibition of
pets thereof would be an inconsistency.

The Licensing of Dogs and Kennel Establishment
(FT of Kuala Lumpur) By Laws 2011 allow one small dog to
be kept, harboured or maintained in a flat (By Law 8A)
SCHEDULE II (By-law 2) defines small dogs to mean:

➢ Miniature Pinscher,
➢ Bichon Frise,
➢ Pekingese,
➢ Papillon ,
➢ Poodle (Toy),
➢ Japanese Chin,
➢ Maltese,
➢ Pomeranian ,
➢ Chihuahua

It is my respected view that any Proprietor aggrieved
by the this Additional By Law that prohibits the
keeping of Pets may be advised to challenge to
revoke the additional By law in the Strata
Management Tribunal

THANK YOU…
pretam_s@yahoo.com/0122849402

Dato' Pretam Singh

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CONTRACTING OUT

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6. (1) The provisions of this Act shall have effect

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“ having regard to the policy and objective of

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“ The duty of observing the law is firmly placed

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The standard sale and purchase

Justice Malik Ishak J

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Mohamed Azmi FCJ

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“the parties may not contract out of the

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• ZALEHA BINTI YUSOF JC

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Expected Date of Completion: June2006

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• City Investment Sdn Bhd v. Koperasi Serbaguna Cuepacs

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• The protection or exemption to those clauses take effect only

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• Whether Developer contractually bound to deliver property with car