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1. Tham Sau Hoong v Perbadanan Pengurusan Pantai Emas Resort [2021] MLJU 176
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Khairul Shahrizan bin Hamizi
 THAM SAU HOONG v PERBADANAN PENGURUSAN PANTAI EMAS
RESORT
CaseAnalysis
| [2021] MLJU 176

Tham Sau Hoong v Perbadanan Pengurusan Pantai Emas Resort [2021]

MLJU 176
Malayan Law Journal Unreported

HIGH COURT (PENANG)

AMARJEET SINGH SERJIT SINGH JC
SAMAN PEMULA NO PA-24NCvC-927-10 OF 2019
21 January 2021

Khaw Veon Szu (Veon Szu & Kok Thye) for the plaintiff.
Eric Augustine (YC Wong) for the defendant.

Amarjeet Singh Serjit Singh JC:

JUDGMENT

Introduction

[1] In this judgment I only state the reasons in respect of the orders that I had refused to grant the plaintiff in the
instant originating summons. The orders sought and not granted concern the defendant’s 11th Annual General
Meeting held on 30.6.2019 (“11th AGM”) and are as follows:
(i) a declaration that all proceedings at the defendant’s 11th AGM is null and void and consequently an order
that a fresh 11th AGM is held within one month thereof; and
(ii) a declaration that the election and appointment of the new members of the management committee at the
defendant’s 11th AGM are null and void;

Background facts

[2] The plaintiff is the proprietor of a parcel in a condominium known as Gold Coast Resort in Penang. The
defendant is the management corporation of the condominium which is a subdivided building consisting of parcels.
The condominium is therefore regulated by the Strata Titles Act 1985 and other related statutes. The defendant
came into existence by operation of law, namely, subsection (1) of section 39 of the Strata Titles Act 1985, which
states that upon the opening of a book of the strata register in respect of a subdivided building by the Registrar of
Titles there shall come into existence a management corporation consisting of all parcel proprietors. Subsection (2)
confers upon such management corporation legal personality of a body corporate having perpetual succession and
a common seal while subsection (3) provides that the management corporation can sue and be sued in its name.

[3] The duties and powers of a management corporation is provided by section 59 of the Strata Management Act

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2013. Amongst others, its duties are to properly maintain and manage the building, to prepare and maintain a strata
roll which contains, inter alia, the names and addresses of every registered proprietor and to comply with all by-laws
relating to a subdivided building, its land and common property. The duties, powers and business of a management
corporation are according to subsection (2) of section 56 of the Strata Management Act 2013 to be exercised by a
management committee elected at its annual general meeting. In this regard the detailed workings and matters of
the management corporation and management committee are provided in the Second Schedule of the Strata
Management Act 2013. The by-laws that govern the management corporation and its management committee are
either those by-laws made by the Minister or by the management corporation itself by special resolution. In the
event of any breach or violation of any of the by-laws by persons bound to comply with the by-laws subsection (7) of
section 70 entitles the management corporation or a parcel proprietor to apply to the Strata Management Tribunal
(“the Tribunal”) or to the Courts for an order to enforce the performance of or restrain the breach of any of the by-
laws.

[4] In the instant originating summons the plaintiff averred that upon a referral by him the Commissioner of
Buildings (“the Commissioner”) informed on 31.5.2016 that four committee members of the defendant for the year
2016/2017 were to relinquish their posts as management committee members if they fail to rectify the breaches of
either paragraphs 11, 22(1) and 27(1) of the Third Schedule of the Strata Management (Maintenance and
Management) Regulations 2015 committed by them. For a clearer picture the said paragraphs of the Third
Schedule are reproduced below:

Paragraph 11:

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

Paragraph 22(1):

A proprietor shall not do anything to his parcel which may encroach on any part of the common property or any other
parcel.

Paragraph 27(1):

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

[5] The management committee held an emergency meeting to discuss the matter stated by the Commissioner
and subsequently informed the Commissioner that the breaches had been rectified. On 16.6.2016 the
Commissioner issued a letter stating that based on feed-back and investigations that were carried out it was found
that the parcel proprietors had remedied the breaches and were therefore entitled to continue as members of the
management committee.

[6] The plaintiff disagreed with the Commissioner’s findings and alleged that the breaches were in fact not rectified
and what took place was the regularisation of the breaches by the management committee. The plaintiff was of the
view that to rectify the breaches the offending parcel proprietors must put back their parcels to its original form.
Approvals by the management committee and the appropriate authorities to remedy the breaches does not meet
the requirements of the law. As a result, the plaintiff on 24.8.2016 filed a claim with the Tribunal seeking an order to
compel the defendant to enforce the performance of the by-laws against the offending parcel proprietors.

[7] On 27.7.2018 the plaintiff’s claim was dismissed by the Tribunal. Subsequently, the High Court at Penang on an
application for judicial review quashed the decision and remitted the matter back to the Tribunal for reconsideration
of the claim under paragraph (a) of subsection (2) of section 121 of the Strata Management Act 2013. The learned
Judge made the decision on the ground that that the Tribunal had failed to consider the actual complaint of the
plaintiff and had taken into account irrelevant factors. The judgment of the High Court on the judicial review
proceedings is found at Tham Sau Hoong v Tribunal Pengurusan Strata & Satu Lagi [2019] 7 CLJ 132.

[8] In my view this is the appropriate stage to dispose of the plaintiff’s argument that the High Court had made
findings of fact of breaches of the by-laws by certain parcel proprietors and this Court must take into account those
findings as evidence that the breaches remain unrectified. With respect the argument is fatally flawed. A court
exercising powers of judicial review does not make findings of fact for that that is a matter for the Tribunal after

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hearing the appropriate witnesses and documentary evidence. All the High Court did was to point out the plaintiff’s
real complaint and the matters that the Tribunal had failed to address and most importantly concluded by remitting
the claim back to the Tribunal for reconsideration. The findings of fact as to the status of the breaches was therefore
a matter for the Tribunal at the rehearing of the plaintiff’s claim as ordered by the High Court.

[9] Before the Tribunal could rehear the matter the defendant held its 11th AGM on 30.6.2019. Four of the parcel
proprietors who were alleged to have breached the abovementioned by-laws and whose conduct is the subject
matter of the rehearing by the Tribunal were elected as members of the management committee for the year
2019/2020. The plaintiff aggrieved by their election to the management committee filed the instant originating
summons on 15.10.2019 for declarations that all proceedings at the 11th AGM as well as the election of the entire
management committee is null and void. The grounds advanced by the plaintiff in support of the declarations are as
follows:
(a) that persons who were not registered proprietors were listed as persons entitled to attend the 11th AGM on
a list pasted on the notice board of the condominium;
(b) the 11th AGM was attended by proxies of parcel proprietors whose proxy forms were either defective or
where a proxy represented more than one parcel proprietor in violation of the Second Schedule to the
Strata Management Act 2013; and
(c) there were four parcel proprietors who were not eligible to contest for a seat on the management
committee on account of breaching the abovementioned paragraphs of the Third Schedule of the Strata
Management (Maintenance and Management) Regulations 2015 were elected to the management
committee.

The governing principles

[10] The governing principles for granting or not granting a declaratory order are trite. Firstly, the relief is a
discretionary remedy and in exercising this power the Court has to consider the utility of the declaration claimed and
the usefulness of the declaration on the one hand as against the inconvenience and embarrassment that may result
on the other hand (Datuk Syed Kechik Bin Syed Mohamed v Government Of Malaysia & Anor [1979] 2 MLJ 101).

[11] Secondly, a claimant should be granted the declaration he seeks if he has succeeded in making good his case
and has done nothing to disentitle himself to relief unless there are strong reasons in public policy to deny him the
relief (Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (executor of the estate of Loo Cheng Ghee) [1998] 4
MLJ 651).

[12] Thirdly, the Courts have a discretion to refuse declarations which will serve no useful purpose and may deny
the remedy in appropriate cases (Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus
[1981] 1 MLJ 29). In this regard the difference between jurisdiction and discretion was made clear by the Privy
Council in Rediffusion (Hong Kong) Ltd v Attorney-General [1970] AC 1136 at 1155 in the following passage:

When considering an action claiming relief in the form of discretionary remedies only it is thus important to distinguish
between the jurisdiction of the court to entertain the action at all, i.e., to embark upon the inquiry whether facts exist which
would entitle the court to grant relief claimed, and a settled practice of the court to exercise its discretion by withholding the
relief if the facts found to exist disclose a particular kind of factual situation. The application of a discretion to refuse relief
even though this may be pursuant to a settled practice is an exercise of jurisdiction, not a denial of it.

[13] Fourthly, it was established by the Federal Court in Manggai v Government of Sarawak [1970] 2 MLJ 41 that
a declaratory relief will be refused if there is a failure to pursue the alternative remedy that is made available for
such purpose. The decision of Asquith LJ in the case of Wilkinson v Barking Corporation [1948] 1 KB 721 was
followed where the law was explained by His Lordship in the following words:

It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a
specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not
to others.

Decision of the Court

[14] The grounds raised by the plaintiff are now considered and analysed one at a time.
Inclusion of names of persons who are not eligible to vote

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[15] The first ground is that eight persons who are not registered proprietors were on the list to attend and of
course vote at the 11th AGM. The plaintiff obtained these names off a list that was pasted at the notice board of the
condominium. The plaintiff contention is based on the meaning of “proprietor” which appears in paragraph 21 of the
Second Schedule of the Strata Management Act 2013. The paragraph reads as follows:
(1) Each proprietor who is not a co-proprietor shall have one vote in respect of each parcel on a show of
hands, …
(2) A proprietor shall not be entitled to vote if, on the seventh day before the meeting, all or any part of the
Charges, or contributions to the sinking fund, or any other money due and payable to the management
corporation in respect of his parcel are in arrears.

[16] Counsel for the defendant argues that these eight persons have purchased parcels in the condominium and
have paid the maintenance charge and therefore have a right to attend the 11th AGM although not yet registered as
proprietors save for one proprietor due to a mistake in the list. Counsel for the plaintiff argues that the word
“proprietor” in the said paragraph 21 means a registered proprietor and nothing else. This meaning is derived from
reading section 2 of Strata Management Act 2013, which provides that the word “proprietor” has the meaning
assigned to it under section 4 of the Strata Titles Act 1985. The said section defines the word “proprietor” to mean a
person for the time being registered as the proprietor of the parcel. On the face of such clear definition I agree with
counsel’s interpretation that only a registered proprietor is entitled to attend and vote at the annual general meeting.
A purchaser who has purchased but is not yet registered as a proprietor has therefore no such right.

[17] The plaintiff further claims that there were eight instances of proxy forms that were in violation of paragraphs
18(1) and (4) and paragraph 22(1) of the Second Schedule of the Strata Management Act 2013.

[18] Counsel for the plaintiff submits that the entire proceedings of the 11th AGM is rendered null and void by virtue
of the fact that there were sixteen persons who were ineligible to attend and vote at the 11th AGM. I disagree with
counsel’s submission. It is firstly pointed out that the Strata Management Act 2013 or any of the by-laws thereunder
are silent on such an effect where ineligible persons have attended and/or voted in the annual general meeting. In
my view it is a question of fact whether the attendance of such illegible persons have affected the result of the
election to the management committee or any resolution or motion at an annual general meeting. I would add that it
was precisely for this reason that the plaintiff approached this Court for a declaration to declare the defendant’s
11th AGM null and void.

[19] In my considered opinion even assuming that sixteen persons who should not have attended did attend the
meeting their attendance had no impact whatsoever on the defendant’s 11th AGM. There were seven seats up for
election to the management committee. It is clear as day without contradiction that there were only seven
nominations made by parcel proprietors. The election to the management committee was therefore an uncontested
election as all seven nominations were elected without a vote being casted. The submission that the whole
proceedings of the meeting at the 11th AGM is tainted with votes which are bad in law is untenable and against the
undisputed evidence.

[20] In exercising its discretion to grant declaratory relief the court must consider the utility of the declaration
claimed and the usefulness of the declaration on the one hand as against the inconvenience and embarrassment
that may result on the other hand when considering the alleged non-compliance. There is no doubt in my mind that
there is no utility or useful purpose in granting the declaration. The presence of the eighteen persons did not impact
the 11th AGM in any way whatsoever. It would have been a different story if the eighteen persons had affected the
election or polls that were carried out. The minutes of the 11th AGM shows that all the polls were also decided by
overwhelming majorities of the share units.

[21] For the above reason the declaration sought to declare the defendant’s 11th AGM null and void is refused.
Disqualification of five persons from contesting in election

[22] The plaintiff claimed that four of the persons elected to the management committee were ineligible to contest
because they had breached paragraphs 11, 22 and 27(1) of the Third Schedule of the Strata Management
(Maintenance and Management) Regulations 2015 and the said breaches had not been rectified to date. The
plaintiff further claims that one other person who was elected was not a registered parcel proprietor which
disqualifies that person from contesting for a seat in the management committee.

[23] In my analysis of the undisputed and unrebutted facts produced before this Court I am satisfied that all five

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persons whose election is disputed were eligible to contest for a seat on the management committee. My reasons
are as follows.

[24] Firstly, there is no provision in any statute or subsidiary legislation that disqualifies a parcel proprietor from
contesting on the ground that that person has breached either paragraphs 11, 22(1) and 27(1) of the Third
Schedule of the Strata Management (Maintenance and Management) Regulations 2015.

[25] The plaintiff contended that the four parcel proprietors were automatically disqualified from contesting and
prohibited from taking office as members of the management committee by virtue of paragraph 3(1)(l) of the
Second Schedule of the Strata Management Act 2013. The relevant parts of paragraph 3 reads as follows:

(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.

[26] It is clear from the plain and literal reading of paragraph 3(1)(l) that it refers to instances taking place after a
parcel proprietor has been elected as a member of the management committee as opposed to from being
disqualified automatically from contesting as alleged by the plaintiff. It refers to a situation that the parcel proprietor
has ignored a notice given to him by the management committee to rectify or remedy a breach of a by- law. The
paragraph is only triggered when the seat of an existing member becomes vacant or is deemed to be vacated on
the happening of certain events. The paragraph has nothing to do with eligibility or qualification of parcel proprietors
to contest a seat on the management committee. This Court is not permitted to add words into the paragraph that is
not intended.

[27] The eligibility for election as a member of the management committee is on the other hand expressly provided
in paragraph 2 of the Second Schedule of the Strata Management Act 2013. It suffices to state that nowhere in the
said paragraph 2, which consists of thirteen subparagraphs, does it say that a parcel proprietor is ineligible to
contest if such proprietor has committed a serious breach of the by-laws and has failed to remedy the breach within
the time stipulated as alleged by the plaintiff. In the circumstances the plaintiff has come up with his own
interpretation by reconstructing paragraph 3(1)(l) into something different from what was intended. Even a
purposive interpretation of the paragraph would not justify the interpretation given by the plaintiff. In the
circumstances the plaintiff has failed to make a case for declaratory relief against these four parcel proprietors and I
in the exercise my discretion refuse to grant the relief as sought for the reason given by the plaintiff.

[28] Secondly, the fifth person who was alleged not to be a registered parcel proprietor is without merit. The
defendant has explained that the said person in in fact a registered proprietor and there was a mistake in the earlier
strata roll provided to the plaintiff. The strata roll was subsequently corrected to reflect the correct position. The
plaintiff’s allegation therefore is without merit on account of being based on a strata roll that was not correct.

[29] Thirdly, the plaintiff has resorted to the Tribunal for an order to compel the defendant to enforce the by-laws
against the parcel proprietors who are alleged to have breached paragraphs 11, 22(1) and 27(1) of the Third
Schedule of the Strata Management (Maintenance and Management) Regulations 2015 which includes some of the
persons who have been elected to the management corporation. The plaintiff did so because he was not satisfied
with the Commissioner’s findings that the breaches had been remedied.

[30] In my judgment the plaintiff is therefore not entitled to seek recourse to the court as he had done in the instant
action to seek this declaration but must see through the order of the High Court made in the judicial review
proceedings that he himself commenced. The matter of breaching the by-laws is now before the Tribunal. 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.

[31] I find support for my above legal reasoning in subsection (1) of section 106 of the Strata Management Act
2013 which states that if the matter is within the Tribunal’s jurisdiction the same matter cannot be the subject of
proceedings brought to the court subsequently. Therefore, the plaintiff’s claim for the second declaration being the

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subject matter before the Tribunal is expressly not permitted by the said section 106. The claim before the Tribunal
is not withdrawn, abandoned or struck out. In fact the plaintiff’s claim has been dismissed by the Tribunal in its
grounds of judgment dated 28.8.2020.
Conclusion

[32] For the above reasons I dismissed the plaintiff’s application with costs.

End of Document

Khairul Shahrizan bin Hamizi