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2023 MarsdenLR 277
HIGH COURT MALAYA PULAU PINANG
TROPICANA MACALISTER AVENUE (PENANG) SDN BHD – Appellant
Versus
BADAN PENGURUSAN BERSAMA TROPICANA 218 MACALISTER – Respondent
[Originating Summons No: PA-24NCvC-187-02/2023]
The court ruled that only the Joint Management Body can determine maintenance charges at a general meeting, and the plaintiff has the right to vote and include motions in the agenda.
Headnote:(A) Strata Management Act 2013 - The court addressed the validity of the 3rd Annual General Meeting (AGM) held on 4 December 2022, declaring it null and void due to procedural irregularities. The plaintiff, as a significant shareholder, was entitled to vote and have their motion included in the agenda. The court emphasized that only the Joint Management Body (JMB) can determine maintenance charges at a general meeting. (Paras 52, 21, 19, 32)
(B) Voting Rights - The right of a parcel owner to vote at a general meeting is conferred by statute and should not be interfered with lightly. (Paras 33, 34)
(C) Motion Inclusion - The court found that the plaintiff's motion to restrict the use of common property must be included in the AGM agenda as per statutory requirements. (Paras 42, 46)
(D) Nomination Rights - The plaintiff is entitled to nominate and elect members of the Joint Management Committee, and procedural errors in nominations were deemed unlawful. (Paras 48, 50) (E) Costs - The defendant was ordered to pay costs of RM8,000 to the plaintiff. (Para 53)
| Table of Content |
|---|
| 1. plaintiff's originating summons for declaratory relief (Para 1 , 2 , 3 , 4) |
| 2. previous originating summons and injunction details (Para 8 , 9 , 10 , 12) |
| 3. determination of charges must be at a general meeting (Para 21 , 22 , 25 , 26) |
| 4. right to vote at the agm is conferred by statute (Para 32 , 34 , 35 , 36) |
| 5. motion inclusion requirements for agm (Para 37 , 38 , 39 , 40) |
| 6. entitlement to nominate members of the joint management committee (Para 48 , 49 , 50) |
| 7. conclusion and order for the case (Para 52) |
Introduction
[1] The Plaintiff ("P") filed an Originating Summons dated 17 February 2023 ("OS") to seek for certain declaratory reliefs against the Defendant ("D"). On 16 June 2023, I allowed the OS. Here are the grounds of my decision.
The Plaintiffs Originating Summons
[2] Vide the OS, P prayed for the following:
(a) A declaration that the 3rd Annual General Meeting ("3rd AGM") of D, which was held on 4 December 2022, shall be null and void, of no effect, and / or set aside;
(b) An order that D shall reconvene the 3rd AGM within 60 days from the date of this order;
(c) A declaration that P has a right to vote at the reconvened 3rd AGM of D in respect of its 40,661 share units in Tropicana 218 Macalister;
(d) A declaration that the motion deposited by P at the registered office of D on 7 November 2022 be included in the agenda of the reconvened 3rd AGM of D; and
(e) A declaration that P be entitled to elect and / or nominate members of the Joint Management Committee.
The Parties
[3] P is the parcel owner of the parcels with a total share unit entitlement of 40,661 share units, out of 67,961 share units, in the development known as Tropicana 218 Macalister ("218 Macalister"). The total share units owned by P make up approximately 60% of the total share units in 218 Macalister.
[4] D is a Joint Management Body ("JMB") established under the Strata Management Act 2013 ("SMA").
Background Facts
[5] 218 Macalister was developed by P as a mixed development comprising of hotel, retail lots, Neo Suites (flexible home and work space) and serviced residences. Together with the related facilities and car park lots within a 33-storey development consisting of podium levels and 2 towers (Tower M and Tower T).
[6] Being an integrated development, 218 Macalister contains 4 components. Namely:
[7] When 218 Macalister was launched, it was agreed that there would be common areas, common property and common facilities. The use and enjoyment of which are restricted, and thereby exclusive to purchasers in respect of the components where their respective parcel(s) are located. This is reflected in the Reports and Financial Statements for the Financial Year ended 31 October 2021 prepared by D.
Previous Originating Summons No PA-24NCvC-469-05/2022
[8] Previously on 27 May 2022, P had filed a suit vide Originating Summons No PA-24NCvC-469-05/2022 ("Previous OS"). Further on 30 May 2022, P had also filed an application for an interim injunction against D pending the disposal of the Previous OS ("Injunction Application").
[9] Vide the Previous OS, P prayed for the following:
(i) A declaration that P is entitled to attend and vote at the Third Annual General Meeting of D which is scheduled to be held on 5 June 2022 ("Previously Proposed Third AGM');
(ii) An order that the duly elected Chairman of the Previously Proposed Third AGM shall not prohibit or prevent P from casting its votes, and shall accept the votes of P in any motion or resolution proposed in the Previously Proposed Third AGM;
(iii) Alternatively, in the event that the Prevous OS cannot be heard before 5 June 2022, an order that any Annual General Meeting held without the participation of P shall be null and void, of no effect and set-aside;
(iv) A declaration that the Notice of the Previously Proposed Third AGM dated 12 May 2022 issued by D is irregular, and is therefore null and void;
(v) A declaration that the service of the Notice of the Previously Proposed Third AGM dated 12
