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2024 MarsdenLR 1842
HIGH COURT MALAYA KUALA LUMPUR
FOO JIA YIN – Appellant
Versus
STRATA MANAGEMENT TRIBUNAL & ORS – Respondent
[Judicial Review Application No: WA-25-2-01/2023]
The Tribunal's failure to inspect the Applicant's unit before issuing Form 28 invalidated the Award, constituting procedural impropriety and lack of conclusive evidence.
Headnote:(A) Strata Management Act 2013 – Section 142 – Strata Management (Maintenance and Management) Regulations 2015 – Regulation 57 – Judicial review application to quash Tribunal's Award for inter-floor leakage – Tribunal failed to inspect Applicant's unit before issuing Form 28, rendering it invalid – Award quashed due to procedural impropriety and lack of conclusive evidence. (Paras 39, 40, 56, 81)
(B) Judicial Review – Grounds for review include illegality, irrationality, and procedural impropriety – Court will not interfere unless decision is infected with errors of law. (Paras 9, 80)
Facts of the case: The Applicant, owner of Unit A1201, challenged the Tribunal's Award holding her responsible for inter-floor leakage affecting Unit A1101, without proper inspection of her unit. (Paras 3, 5.1, 5.23)
Findings of Court: The Tribunal's Award was flawed due to failure to inspect the Applicant's unit, leading to an erroneous conclusion regarding liability for leakage. (Paras 39, 56)
Issues: Whether the Tribunal's decision was based on proper inspection and evidence regarding the source of leakage. (Paras 36, 80)
Ratio Decidendi: The Tribunal's failure to conduct a mandatory inspection and reliance on statutory presumption without conclusive evidence rendered the Award irrational and unjust. (Paras 39, 80)
Result: Application for judicial review allowed; Award quashed. (Paras 82)
JUDGMENT
Introduction
[1] The Applicant filed an application for judicial review (Encl. 9) under O 53 of the Rules of 2012 (ROC).
[2] Leave was granted to the Applicant for application for judicial review against the Respondents to seek the following:-
a) an order of Certiorari to quash the entirety of the Award given in Strata Management Tribunal Claim No TPS/W-2183-6/2022 dated 14 October 2022 against the Applicant;
b) a declaration that the Form 28 issued by the 3rd Respondent on 16 February 2022 is irregular and/or invalid; and
c) damages to be assessed;
2.1 that pending the disposal of the substantive judicial review application, any forms and/or methods to enforce and/or execute the Award by any party be stayed;
2.2 that a stay in the manner as mentioned in paragraph (2.1) above be granted in the interim pending the disposal of the present leave application;
2.3 that costs of this application be provided for; and
2.4 such further and other relief and other relief and/or directions as this Honourable Court deems fit.
[3] In essence, the present judicial review application was commenced by the Applicant to challenge the Award dated 14 October 2022 that was given by the 1st Respondent, the Strata Management Tribunal, (Tribunal), inter alia, holding that the Applicant was responsible for the inter-floor leakage involving the 2nd Respondent and to carry out the rectification works.
[4] After the hearing, I allowed the Applicant's judicial review application (Encl. 9). This judgment states the reasons for my decision.
Background Facts
[5] The background facts of this application gathered from the cause papers and submissions of the parties can be summarized as follows:-
5.1 The Applicant is the owner and resident of the unit above, A1201 of Andes Condo Villa whereas the 2nd Respondent is the owner and resident of the unit below and affected by the water leakage, A1101; and the 3rd Respondent is the joint management body for Residensi Andes Ria.
5.2 Vide a complaint form dated 28 October 2021 (that was filed with the 3rd Respondent on 18 December 2021) the 2nd Respondent complained to the 3rd Respondent regarding the water leakage on the ceiling of her unit;
5.3 On or about 8 January 2022, inspection was carried out at Unit A1101;
5.4 The 3rd Respondent indicated that it will carry out the inspection of the upper floor unit ie A1201 as advised by the technician;
5.5 The 3rd Respondent cancelled the appointment for inspection at Unit A1201 and never re-scheduled;
5.6 There were no further actions by the 3rd Respondent until the 2nd Respondent's follow-up e-mail on 15 February 2022;
5.7 In response to the 2nd Respondent's follow-up email, on or about 16 February 2022 the 3rd Respondent proceeded to issue Form 28 against the Applicant;
5.8 The 3rd Respondent had issued Form 28 under reg 59 of the Strata Management (Maintenance and Management) Regulations 2015 (Strata Regulations) alleging the Applicant that Unit 1201 was the cause of the leakage that affected the 2nd Respondent's Unit, Unit A1101;
5.9 At all material times, the Applicant asserts that Form 28 was issued by the 3rd Respondent without completing the inspection to Unit A1201;
5.10 However, the 3rd Respondent still alleges that Unit 1201 was the cause of the leakage and determined the Applicant to be responsible for rectifying the inter-floor leakage in Form 28;
5.11 On 16 February 2022, the 3rd Respondent also issued a notice to the Applicant to take all necessary steps and measures to rectify the inter-floor leakage within 7 days, failing which the 3rd Respondent would have no other option than to consider the inter-floor leakage and emergency and forcibly enter the Applicant's unit to rectify the leakage;
5.12 On or about 18 February 2022, works were done at Unit A1101 following parties' discussions on 16 February 2022 at the Applicant's costs given that the 3rd Respondent's position to not get involved;
5.13 On or about 25 February 2022, the watermark reappeared on t
