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2024 MarsdenLR 940
HIGH COURT MALAYA KUALA LUMPUR
BADAN PENGURUSAN BERSAMA KM1 EAST CONDOMINIUM – Appellant
Versus
BERJAYA HARTANAH BERHAD – Respondent
[Writ Summon No: WA-22NCvC-16-01/2024]
The Joint Management Body of a condominium has the locus standi to sue for defects in common property under the Strata Management Act, and claims are not barred by the Limitation Act if filed within the statutory timeframe.
Headnote:(A) Limitation Act 1953 - Sections 6 and 6A - Strata Management Act 2013 - Sections 21 and 143(2)(a) and (A) - Joint Management Body (JMB) of KM1 East Condominium filed suit against developer for defects - Court ruled that JMB has locus standi to sue for defects in common property - Suit not time-barred under Limitation Act. (Paras 14-18, 28-38)
(B) Duty of Care - Court held that developer does owe a duty of care to JMB despite JMB's existence post-construction - Previous case law not applicable as it was based on outdated legislation. (Paras 26-33)
Facts of the case:
The JMB of KM1 East Condominium sought to compel the developer to rectify defects discovered post-construction, including water leakage and structural issues. The developer contended the claim was time-barred and that the JMB lacked standing. (Paras 2-12)
Findings of Court:
The court found the JMB has the right to pursue claims regarding common property defects, and the suit was timely filed. (Paras 38-40)
Issues: Whether the claim is time-barred and if the JMB has standing to sue for defects in common property. (Paras 20-21)
Ratio Decidendi: The court held that the addition of Section 6A allows for a three-year extension from the date of knowledge of defects, and the JMB's statutory powers under the Strata Management Act grant it the right to sue. (Paras 24-25, 28-29)
Result: The application to strike out the suit was dismissed.
JUDGMENT
[Enclosure 11]
Introduction
[1] The plaintiff is the Joint Management Body ("JMB") of a residential condominium known as KM1 East Condominium ("KM1 East Condominium") located at No 11, Jalan Jalil Perkasa 1, Bukit Jalil, 57000 Kuala Lumpur. The defendant, Berjaya Hartanah Berhad (formerly known as Berjaya Golf Resort Berhad), is the developer of KM1 East Condominium. ["Berjaya Hartanah"].
[2] The JMB filed a suit on 12 January 2024 against Berjaya Hartanah, seeking, among others, an order directing Berjaya Hartanah to rectify and/or remedy the defects in KM1 East Condominium within 3 months.
[3] Berjaya Hartanah filed an application dated 25 March 2024 to strike out the writ under O 18 r 19 of the Rules of 2012. [See encl 11 Notice of Application]. The application raises three interesting legal issues. Berjaya Hartanah, the developer of KM1 East Condominium, contends:
i. JMB's claim is premised on negligence for latent damage in a construction of a condominium. By virtue of s 6A of the Limitation Act 1953 , the JMB must file this suit within three years after it discovered the alleged latent damage.
ii. Berjaya Hartanah does not owe a duty of care to the JMB in respect of the construction of the condominium as the JMB was not even in existence at the time KM1 East Condominium was constructed.
iii. Further, the JMB's claim is in relation to alleged defects in the common properties and/or facilities of KM1 East Condominium. Case law held that such claim is a contractual claim and only the purchasers of KM1 East Condominium, who have privity of contract under their respective sale and purchase agreements, have the necessary locus standi to pursue such claim against Berjaya Hartanah within the Defects Liability Period.
[4] I dismissed the application on 15 July 2024. These are my Grounds of Judgment. The plaintiff shall be referred to as the plaintiff or as JMB, the defendant as defendant or Berjaya Hartanah.
Facts Of The Case
[5] The plaintiff is the Joint Management Body of KM1 East Condominium and is involved in the maintenance and management of KM1 East Condominium.
[6] The defendant Berjaya Hartanah is the developer of KM1 East Condominium.
[7] Berjaya Hartanah delivered vacant possession to the purchasers of KM1 East Condominium in or around February 2016, and subsequently held the first Annual General Meeting ("AGM") for KM1 East Condominium on 17 December 2016.
[8] Pursuant to the AGM, the plaintiff was formed as the Joint Management Body to take over all aspects of management and maintenance of KM1 East from the defendant.
[9] In the course of the plaintiff's management and maintenance of KM1 East Condominium, the plaintiff discovered various structural and/or latent defects in KM1 East Condominium. ("Defects").
[10] Sometime in January 2020, the plaintiff engaged Architect Centre Sdn Bhd to carry out an inspection of the Defects. Architect Centre Sdn Bhd carried out the said inspection on 18 January 2020 and thereafter issued a report dated 23 March 2020 ("March 2020 Report").
[11] The March 2020 Report according to the JMB identified the Defects to include:
i. Water seepages and leakages in multiple areas in KM1 East Condominium;
ii. Dislocation and/or exposed electrical wiring, conduits and cables;
iii. Cracks and concrete spalling in multiple floors, rooftops and surfaces; and
iv. Water leakage and ponding issues in multiple lift pits.
[12] The JMB requested Berjaya Hartanah to rectify the defects but Berjaya Hartanah refused and/or failed to carry out any rectification work in respect of the Defects.
[13] Hence the JMB filed this suit before me. Berjaya Hartanah filed a striking out application as mentioned earlier.
Issues
First Issue - JMB's Claim Is Premised On Negligence For Latent Damage In A Construction Of A Condominium. By Virtue Of Section 6A Of The Limitation Act 1953 , Must The JMB File This Suit Within Three Years After It Discovered The Alleged Latent Damage?
The Law On Latent Defects Or Latent Damage
