A Joint Management Body cannot claim for charges post-formation of a Management Corporation.

Introduction

[1] The Plaintiff is the Joint Management Body Sunrise Towers having the powers under Section 8 Building and Common Property (Maintenance and Management) Act 2007 , amongst others to maintain the common property and to determine and impose charges for the repair and proper maintenance of the common property.

[2] The Defendant is the proprietor of a condominium unit No 218-17 in Sunrise Towers. The Plaintiff claim against the Defendant is for arrears of maintenance and other charges due and remained unpaid by the Defendant. The sum claimed by the Plaintiff is RM 133,868.81 together with 10% interest per annum and cost.

[3] The Defendant's main defence is that the Plaintiff has no locus standi to bring the action against the Defendant and the cause of action against the Defendant is barred by limitation.

The Application

[4] The Defendant made an application under O 33 r 2 Rules of 2012 for two issues to be tried before the trial of this case based on the pleadings and the affidavits filed therein by the parties. The notice application dated 13 June 2014 is supported by an affidavit in support affirmed by Brijnandan Singh A/L Gucharan Singh on 5 June 2014 and an affidavit in reply of the same person dated 9 January 2014. The Plaintiff filed an affidavit in reply of Chew Sing Hoong affirmed on 1 August 2014.

[5] The Defendant raised the following preliminary issues of law to be determined.

1) Whether the Plaintiff being established under the Building and Common Property (Maintenance and Management) Act ("BCPA") 2007 on 21 August 2010 has locus standi to claim for the alleged charges and claims as pleaded in its Amended Statement of Claim dated 4 March 2014 that arose:

a) From the year 1998 until 21 August 2010 before the incorporation of the Plaintiff; and /or

b) between 21 August 2010 and 3 October 2011 which is after the incorporation of the Plaintiff and before the existence of the Sunrise Towers Management Corporation; and/or

c) after the existence of the Sunrise Towers Management Corporation on 3 October 2011 when by virtue of s 39(1) of the Strata Title Act ("STA") 1985, once a book of the strata register in respect of a subdivided building has been opened, the Management Corporation would have come into existence; and/or

2) Whether the Plaintiff is not barred by limitation to commence this suit.

[6] The position of the law on O 33 r 2 Rules of 2012 in succinctly set out in the case of Premium Vegetable Oils Sdn Bhd v. ICG Systems Sdn Bhd & Ors, which held at:-

[10] The Court is empowered under O 33 r 2 to order a trial of preliminary issue if:

i. the trial of such preliminary issue will result in a substantial saving of time and expenditure which otherwise would have to be expended should the action go to trial as a whole (see Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu, [2004] 1 MLJ 8 and Kumarasamy A/L Sengainy & Ors v. Revathy Development (M) Sdn Bhd; [1995] 2 MLJ 586; [1995] 1 AMR 701;

ii. there is no substantial disputes of facts (see Krisnan Rajan v. Bank Negara Malaysia & Ors, [2003] 1 MLJ 149);

iii. the outcome of the preliminary issue or question would result or substantially result in disposal of the whole case (see Krishnan Rajan v. Bank Negara Malaysia).

[11] In the present application, the preliminary issues framed for determination (vide Enclosure 39) by the fourth defendant deal with the Plaintiff's locus standi to institute the present action under s 304(1) of the Companies Act 1965 it has been held in Tan Ching Choong & Ors v. Ekabina Sdn Bhd, [2002] 5 MLJ 654 that an issue pertaining to a plaintiff's locus standi to institute an action is suitable for decision as a preliminary point pursuant to O 33 r of 2 of the Rules of High 1980. If the preliminary issue of the plaintiff's locus standi