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2012 MarsdenLR 1688
HIGH COURT MALAYA KUALA LUMPUR
JMB SILVERPARK SDN BHD – Appellant
Versus
SILVERPARK SDN BHD & ANOR (ENCLS 1 & 6) – Respondent
[Originating Summons No: 24 NCvC-2148-08/2012]
The court held that the clubhouse is common property under relevant statutes, confirming that estoppel cannot apply against statutory definitions and that legal advice cannot alter statutory provisions.
Headnote:(A) Strata Titles Act 1985 - Building and Common Property (Maintenance and Management) Act 2007 - Clubhouse ownership - Court primarily considers definitions of 'common property' as per statutory documents, finding no proprietary claim by the Developer over the Clubhouse, which is deemed common property. (Paras 6-34)
(B) Estoppel - Court affirms that estoppel cannot apply against statute, thus the Plaintiff retains the right to assert claims regarding common property. (Paras 35-39)
(C) Legal advice - Court emphasizes that legal opinions cannot supersede statutory provisions as interpreted by the Court. (Paras 40-42)
Facts of the case:
Plaintiff filed for declarations regarding a Clubhouse as common property under Statutory Sale Agreement and related laws. Defendants claimed proprietary rights and sought to contest the Plaintiff's claims, arguing estoppel and challenging the proper procedure for case initiation.
Findings of Court:
Orders include declarations affirming Clubhouse as common property, and costs awarded to the Plaintiff, with other claims allowed subject to proof of damages.
Issues: Ownership and classification of the Clubhouse; applicability of estoppel; propriety of commencing action via Originating Summons versus Writ.
Ratio Decidendi: Court rules that the Clubhouse qualifies as common property, confirming rights of users as per statutory definitions, noting absence of proprietary rights by Defendants.
Result: Plaintiff's claims allowed in part, with costs granted.
| Table of Content |
|---|
| 1. clubhouse defined as common property. (Para 24) |
| 2. defendant lacks proprietary rights. (Para 25) |
| 3. 1st defendant's lack of proprietary interest. (Para 26 , 29) |
| 4. court asserts clubhouse as common property. (Para 31 , 34) |
| 5. estoppel argument rejected against statutory provisions. (Para 35 , 38) |
[15] The 1st Defendant relied on exhibits ANS-4 and ANS-6 (see 1st Defendant's Affidavit in Reply 2 and 3 in enclosures 9 and 11 respectively). The 1st Defendant averred that exhibit ANS-4 is the official Site Plan (and Location Plan) certified by the Architect in February 1994 and it shows that there is indeed a separate plot and/or parcel which had been comprised for the Clubhouse. The 1st Defendant contended that this separate plot or parcel for the Clubhouse had never been sold and it is shown in the Strata Plan as a parcel, and therefore the Clubhouse is considered a proprietary club owned by the Developer ie the 1st Defendant, and a strata title has to be issued for the Clubhouse.
[16] There is no averment by the 1st Defendant that exhibit ANS-4 is the Approved Plan. The recitals of the statutory SPA only refer to the Building Plans. The 1st Defendant did not disclose the Building Plans or the provisional block plans.
[17] The Site Plan and Location Plan in exhibit ANS-4 has a notation at the far right of the Plan which states:
"CADANGAN SEBUAH REKREASI (CLUBHOUSE) 3 - TINGKAT UNTUK PANGSAPURI PERANGINAN DI ATAS LOT 2493 2494, PT 1495, PT 1496, PT 1497 DAN PT 1498, BUKIT FRASER, PAHANG DARUL MAKMUR UNTUK SILVERPARK SDN. BHD.".
[18] From the above notation, it appears to me that the 1st Defendant had put up the Plan to build the Clubhouse for the resort condominiums in the Development, which means it was designated to be a separate plot of parcel, not to be sold, but to be used as a common facility of the purchasers of the Development, and intended to be a common property.
[19] The 1st Defendant averred that it did not disclose the approved plan because the Strata Plot Plan is unavailable and undergoing its finalization stage. To date, the 1st Defendant only has the Draft Strata Plot Plan which is pending verification by the Surveyor and to be submitted to the Pejabat Tanah dan Galian Negeri Pahang. The 1st Defendant has made full payment of the survey fees to Lembaga Jurukur which is before issuance of the Master Title. The receipt and a copy of the Draft Strata Plot Plan dated 1 October 2012 are collectively marked as exhibit ANS-6. The 1st Defendant contended that in the Draft Strata Plot Plan, there is a distinct and separate strata plot for the Clubhouse which is labeled as "M22".
[20] In the "Pelan Lokasi" in exhibit ANS-6 there is a certification by the Surveyor, Mohd Hanifa K Abd Hamid, that the building M22 and provisional block are within the boundaries of lot 4559, and another certification by the same Surveyor that he has compared the "Pelan Lokasi" with the original Building Plan which was prepared by the Architect or professional engineer responsible for the construction and found that the Plan is in accordance with the said Plan.
[21] There is no evidence that the alleged Draft Strata Plot Plan in exhibit ANS-6, which is only a Location Plan and Floor Plan of a building referred to as M22, has been certified by the Land Surveyor pursuant to s 9(1) of the STA . In fact, the 1st Defendant admitted in enclosure 11 that the Draft Strata plot Plan is pending verification by the Surveyor, Sr Haji Mohd Hanifa K Abd Hamid, before submission to the Land Office in Pahang. Exhibit ANS-6 cannot be accepted as evidence that the building, M22, is situated on a separate strata plot which is distinct from that on which the Development is situated.
[22] Counsel for the 1st Defendant submitted that the Director of Lands and Mines will only approve the appl
