The Tribunal must hear claims afresh when a member is unable to continue, as mandated by s 109(3) of the Strata Management Act 2013, and denying a party the right to call witnesses constitutes a serious irregularity.

Introduction

[1] It is common for a situation to arise where a member presiding over any proceedings in respect of a claim before the Strata Management Tribunal is unable to complete or dispose the proceedings for some reason. This case brings to fore the determination of an issue of the appropriate course of conduct to be taken by another member of the Tribunal who proceeds to then hear the matter.

[2] In this case, the Applicant sought an Order of Certiorari via judicial review proceedings to quash a decision of the 1st Respondent Tribunal dated 14 September 2022 on the ground that the claim was not heard afresh by another member of the Tribunal and was thus in contravention of s 109(3) of Strata Management Act 2013 (hereinafter referred to as " SMA 2013"). It was further contended by the Applicant that the Tribunal had not acted fairly and impartially by not giving the Applicant the opportunity to present his case by calling witnesses.

[3] As such, the Applicant challenged the said Award pursuant to s 121 of SMA 2013 on the grounds of serious irregularity whereby 2013 permits this Court to remit the Award to the Tribunal for reconsideration if it is satisfied that there are serious irregularities affecting the said Award.

[4] Having heard and read the submissions of both learned Counsel, I had allowed the Applicant's application and ordered this matter be remitted back to the Tribunal for reconsideration. I will now provide my grounds for having granted the Order for Certiorari to quash the said Award dated 14 September 2022.

Background Facts

[5] The background facts are largely undisputed and can be briefly set out as follows:

5.1. The Applicant owns an apartment block at Block 31A-22-05, Taman Pekaka, Lorong Pekaka 1 Gelugor, Pulau Pinang (hereinafter referred to as "the said property") and occupies the same.

5.2. The 2nd Respondent is the management corporation managing the said property for which all owners pay a monthly fee.

5.3. The Applicant had been paying his monthly maintenance charges in the sum of RM90.00 which includes services for the common areas.

5.4. The Applicant however subsequently had issues in respect of the conduct of the 2nd Respondent in what he considered was a violation of the approval plan when the 2nd Respondent converted the common driveway into parking lots which the Applicant contended was illegal.

5.5. The Applicant had on several occasions complained (to no avail) to the management corporation in respect of the violation of the approved building plan when vehicles were allowed to park in the Common Driveway thus causing obstruction of the passage of Fire and Rescue Department (BOMBA) vehicles in cases of emergency.

5.6. As a form of protest, the Applicant then unilaterally decided the pay the 2nd Respondent maintenance charges of only RM45.00 per month (ie 50%) commencing from 11 January 2010.

5.7. The 2nd Respondent's attempts to get the Applicant to pay the maintenance charges in full were futile and this led to the 2nd Respondent filing a claim in the 1st Respondent Tribunal for all outstanding payments owed by the Applicant. The Applicant mounted a counterclaim seeking damages on the basis that the 2nd Respondent has failed or were negligent in the conversion of the common driveway into the parking lot which he contended obstructed the Bomba vehicle f