Strict compliance with service requirements is mandatory for jurisdiction to hear claims under the Strata Management Act; failure to comply leads to dismissal.

JUDGMENT

Amarjeet Singh Serjit Singh JC:

Introduction

[1] This is an application for judicial review by the Management Corporation of Sunrise Towers ("the applicant") to quash the award of the Strata Management Tribunal ("the tribunal") made on 20 June 2019 dismissing its claim to recover statutory payments due from the 2nd Respondent, a proprietor of one of the parcels of Sunrise Towers ("the proprietor") pursuant to sub-section 78(2) of the Strata Management Act 2013 ("the Act").

[2] On 7 September 2020 I dismissed the application with costs. My reasons for the decision are as follows.

Background

[3] The proprietor is the owner of the parcel known as No 218-17, Sunrise Towers, Persiaran Gurney, Penang ("the parcel"). The applicant alleged that it had served the statutory notice of demand under Form 20 on the proprietor demanding payment for outstanding accumulated service charges, contribution to the sinking fund, quit rent, insurance and late payment interest (collectively referred to as the "management charges") pursuant to s 78(1) of the Act. The proprietor had failed to make any payment as demanded within the period specified in the Form 20. The failure led to the applicant filing a claim with the tribunal pursuant to s 78(2) of the Act to recover the said management charges from the proprietor.

[4] The applicant produced three witnesses while the proprietor gave evidence on his own behalf at the hearing of the claim. At the conclusion of the hearing the tribunal dismissed the claim on a jurisdictional issue and therefore did not decide the merit of the claim.

[5] The reasons for the dismissal are stated clearly in the oral reasons delivered by the president of the tribunal as evident from the notes of proceedings which are reproduced below:

Setelah mendengar saksi-saksi dan kesemua keterangan yang dikemukakan, tuntutan PYM (Pihak Yang Menuntut) dan tuntutan balas. Tiada kos.

Alasan ringkas adalah walaupun alamat penyampaian oleh di premis 218-17 adalah dibenarkan untuk penyampaian oleh SMA (Strata Management Act), dan kalau pun ada hutang, mesti ada penyampaian dan dalam masa yang ditetapkan. Tiada bukti penyampaian Borang 1 dalam tempoh yang ditetapkan. Tiada juga bukti penyampaian Borang 20. Tanpa bukti penyampaian Borang 1 dalam masa yang ditetapkan, Borang 1 luput dan adalah suatu nullity. Alasan terperinci sekiranya ada JR (Judicial Review) kelak.

[6] It is clear from the above that the tribunal gave two reasons for holding the claim a nullity or in other words that the tribunal had no jurisdiction to try the claim. The first reason was the failure of the applicant to show that Form 1 was served on the proprietor within the time stipulated or before the expiry of Form 1 as required by reg 9 of the Regulations and the second was that the notice of demand in Form 20, which is a prerequisite before a claim can be filed, was not shown to have been served on the proprietor.

Challenging An Award Made By The Tribunal

[7] Dissatisfied, the applicant filed these judicial review proceedings to quash the award of the tribunal dismissing its claim. The applicant relied on sub-section 121(1) of the Regulations that allows an award of the tribunal to be challenged for any one or more of the instances constituting "a serious irregularity affecting the award' listed in sub-section 121(3). There are altogether three instances of "serious irregularity":

(a) failure of the tribunal to act fairly and impartially as between the parties including giving each party reasonable opportunity to present his case and dealing with his opponent's case;

(b) failure of the tribunal to deal with all the relevant issues that were put to it; or

(c) uncertainty or ambiguity as to the effect of the award.

[8] The "serious irregularity" must be of the kind which the court considers has caused substantial injustice to the applicant. If 'serious irregularity' is established the court may either (i) remit the award to the tribunal, in whole or in part, for reconsiderat