Judicial Review allows quashing of tribunal decisions for procedural faults; proper General Meeting approval is necessary for financial decisions in strata management.

JUDGMENT

Awang Armadajaya Awang Mahmud JC:

Introduction

[1] This is an application for Judicial Review (encl 1) pursuant to O 53 r 4 Rules of 2012 seeking for the following prayers

a. The applicant be grant leave to apply for an Order of Certiorari to set aside the Award given by the Strata Management Tribunal (Reference No, TPSZS/M-0050-2/19), given on 14 March 2019 that ruled the Decision of the Applicant dated 9 January 2019 be set aside, with no Order as to cost and the 1st Respondent is to submit a new application for the payment of allowances for the 1st Respondent, to the Applicant for the approval of rates.

b. That the execution of the Award given by the Strata Management Tribunal (Reference No TPSZS/M-0050-2/19), given on 14 March 2019, be stayed until the disposal of this application for Judicial Review

c. All other Orders or directives that are consequential to this application be given

d. Cost of the Application and / or any consequential cost shall be the cost in the cause.

[2] The basis of this application are as follows:

i. The Award given by the 2nd Respondent that the decision of the Applicant not to allow the claims of the 1st Respondent on the basis that the Applicant only has powers to approve the rate of allowances to be paid, and is not seized of the powers to approve the payment to the 1st Respondent pursuant to s 23(1) Strata Management Act 2013 is not reasonable or irrational and / or defective.

ii. The motion for the payment of the allowances to be paid to the 1st Respondent was dismissed by the Applicant on 9 January 2019 was never discussed and / or recorded in the Minutes of the 1st Respondent's Annual General Meeting.

iii. There exist special circumstances that warrant the stay of execution of the Award of the 2nd Respondent until the disposal of this Application by the High Court.

The Cause Papers

[3] The cause papers are as follows:

a. Application for Judicial Review pursuant to O 53 r 4 dated 12 June 2019.

b. Statement of the Applicant pursuant to O 53 r 3(2) dated 12 June 2019 ("the Statement").

c. Affidavit-in-Support affirmed by the Applicant dated 3 July 2019 ("Applicant's Affidavit").

d. Affidavit-in-Reply affirmed by the 1st Respondent dated 27 August 2019 ("1st Respondent's affidavit").

e. Affidavit-in-Reply affirmed by the Applicant dated 20 September 2019 ("the Applicant's Reply Affidavit"),

Background Facts

[4] The Applicant is the Commissioner of Buildings for the Hang Tuah Jaya Municipal Council and his address for service is at SF-01, 2nd Floor,Kompleks Melaka Mall, Jalan Tun Abdul Razak-Lebuh Ayer Keroh, Hang Tuah Jaya, 75450 Ayer Keroh, Melaka,

[5] The 1st Respondent is the Joint Management Body for Pangsapuri Ixora, whose address for service is Pejabat Pengurusan A-01-01, Pangsapuri Ixora, 75450 Bukit Beruang, Melaka, and it is a body corporate that was formed pursuant to s 17 Strata Management Act 2013 .

[6] The 1st Respondent applied to the Applicant for payment of allowances to some committee members of the Joint Management Body, particularly the Chairman, the Secretary and the Treasurer, The other members of the committee are not paid. After several rounds of meetings and discussions, the Applicant decided that the application be refused on the grounds, as follows:

i. The application for payment of the allowances was neither discussed nor put forward in the General Meeting of the Joint Management Body whether it is the Annual General Meeting or the Extraordinary General Meeting.

ii. The proposed payment of allowances is not made known to all parcel owners who pay maintenance fees to the 1st Respondent.

iii. Since there is no transparency, it offends the law.

iv. It also offends the usual practice of presenting any motion in respect of expenditure of the funds of the Joint Management Body at the General Meeting. All motions and minutes must be recorded and votes taken (if there is a necessity).

[7] The 1st Respondent, being dissatisfied with the decision of the Commissioner of Buildings, filed a c