The joint management body's constitution is valid, and parking bays' ownership is determined by contractual agreements, not common property status.

Introduction

[1] This is a consolidated civil action that principally concerns the ownership of the car parking bays of the Krystal Point commercial centre and Krystal Villa residential apartments at Sungai Nibong, Penang (collectively "Krystal Point Project").

[2] In civil suit no 22-789-2009 ("First Suit"), Badan Pengurusan Bersama Krystal Point brought the action against Saluran Projek Sdn Bhd and Modern System Parking Sdn Bhd whilst in civil suit no 22-NCVC-285-09/2013 ("Second Suit"), Saluran Projek Sdn Bhd and Modern System Parking Sdn Bhd brought the action against Badan Pengurusan Bersama Krystal Point.

[3] Badan Pengurusan Bersama Krystal Point ("JMB") is the joint management body of the Krystal Point Project constituted pursuant to the Building and Common Property (Maintenance and Management) Act 2007 (Act 663). Saluran Projek Sdn Bhd ("Saluran Projek") was the developer of the Krystal Point Project and is now in liquidation. Modern System Parking Sdn Bhd ("Modern System Parking") is a private limited company that claims ownership of lot no. B-3-17 (also known as 303-3-17) of Krystal Point ("Unit 79") and 134 carpark lot accessory parcels appurtenant thereto.

[4] The crux of the dispute is on the competing claim of ownership between the JMB and Modern System Parking over the car parking bays.

Preliminaries

[5] The First Suit was initially commenced by the JMB against Saluran Projek on 11 December 2009. Saluran Projek defended and counterclaimed against the JMB. On 27 February 2013, Modern System Parking was granted leave to intervene in the First Suit as the Second Defendant therein. Pending the disposal of the First Suit, both Saluran Projek and Modern System Parking on 18 September 2009 commenced the Second Suit against the JMB. The JMB defended and counterclaimed against both Saluran Projek and Modern System Parking. By a court order dated 31 March 2014, the First Suit and the Second Suit were consolidated to be heard before the same judge. Notwithstanding that Saluran Projek is in liquidation, leave was granted to the JMB to pursue its claim against Saluran Projek in the First Suit and the liquidator sanctioned Saluran Projek's continuation of its claim in the Second Suit.

[6] The trial of the consolidated suits came before me and was heard on 29 February 2016 and 2 March 2016.

[7] The trial documents were marked as bundles A to G comprising of the documentary evidence in bundles B, B1, B2, B3, B4, B5 and B6 which were consented by the parties to be of category B. In addition, exhs P1, P2, P3, P4, D5, P6 and D8 were admitted in evidence during the course of the trial. There was an ID P7 tendered but that was eventually not strictly proved and hence not admitted in evidence.

[8] The parties called the following witnesses at the trial:-

JMB

(i) Zuraidha Binti Zainol ("PW1"), an officer at the Pejabat Tanah dan Galian Pulau Pinang ("PTG");

(ii) Mohd Nizam Bin Saad ("PW2"), an officer at the Building Control Department of the Majlis Bandaraya Pulau Pinang;

(iii) Tee Siew Chong ("PW3"), a member of the JMB; and

(iv) Nik Ariff Bin Long Dir ("PW4"), the Commissioner of Building Penang.

Modern System Parking

(i) T. Yuvarajah a/l Thambysamy ("DW1"); formerly project manager of Saluran Projek; and

(ii) Goh Teng Whoo ("DW2"), a consultant to Modern System Parking.

Saluran Projek did not call any witness

[9] After the close of trial, the JMB and Modern System Parking filed their respective closing written submission in chief and in reply. Oral clarification with counsel was held on 6 May 2016.

Background Facts

[10] The Krystal Point Project is a development undertaken by Saluran Projek on that piece of land known as Lot