Back
2021 MarsdenLR 3878
HIGH COURT MALAYA KUALA LUMPUR
FAZARUDIN SUJAIRI MD RADZI – Appellant
Versus
BADAN PENGURUSAN BERSAMA PANGSAPURI CASMARIA – Respondent
[Originating Summons No: WA-24NCVC-2294-12/2020]
Originating Summons is improper for cases involving factual disputes; house rules are not classified as law under constitutional principles.
Headnote:(A) Rules of 2012 – Order 5 – Originating Summons – The Plaintiff filed an Originating Summons against the Defendant for declarations and damages related to the towing of his vehicle from the condominium's parking lot. The court found that the proper mode of initiation should have been a writ due to disputed facts and hearsay evidence. The Plaintiff’s claim regarding the house rules was deemed misconceived as they are not considered law under Article 13 of the Federal Constitution. (Paras 6-10, 12-15)
(B) Reliefs – The court concluded that the Plaintiff’s requests for reliefs were untenable due to insufficient evidence to support his claims. (Paras 12-15)
Facts of the case: The Plaintiff alleged that his car was illegally towed and sought damages and declarations regarding the condominium's house rules. The Defendant disputed the circumstances under which the towing occurred.
Findings of Court: The Plaintiff's Originating Summons was dismissed, and it was determined that the case should have been initiated by writ due to factual disputes. The house rules were not considered law per constitutional standards.
Issues: Whether the case was appropriate for Originating Summons or writ, and if the Plaintiff's reliefs were valid.
Ratio Decidendi: Originating Summons is inappropriate for cases involving disputed facts, and house rules cannot be classified as law in the context of constitutional protection against deprivation of property.
Result: Originating Summons dismissed with costs.
JUDGMENT
Introduction
[1] The Plaintiff having a business at Pangsapuri Casmaria, Batu Caves ("the condominium") filed an Originating Summons against the Defendant the managing body of the said condominium seeking various declarations from the court as well as asking for damages.
The Brief Facts
[2] The main grievance of the Plaintiff against the Defendant is that the Defendant had purportedly towed away his car, a Savy bearing registration number PGQ 2345 from the parking lot of Block A of the condominium.
[3] The Plaintiff alleges that the towing away by the Defendant is illegal is therefore asking for damages and is also seeking declarations that the house rules of the condominium under which the towing was done, is against A 13 of the Federal Constitution . The Plaintiff also contends that the house rules are not applicable at the place where he had parked his car as this is not a common area.
The Issues
[4] Looking at the facts the court determined that the first issue is whether this is a proper case to be initiated by an Originating Summons?
[5] The other issues are whether the reliefs including the declarations and damages asked for are proper and valid under the circumstances of the case?
Originating Summons
[6] Order 5 of the Rules of 2012 ("the Rules") specifies the manner a civil claim should be commenced and states as follows:
1. Mode of beginning civil proceedings (O 5 r 1 )
Except as provided in these Rules and subject to O 94, r 2, proceedings shall be commenced either by originating summons or by writ.
[Order 5 rule 1 Subs PU(A) 232/2012:r 3l
2. Proceedings which shall be begun by writ (O 5 r 2 )
Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ.
3. Proceedings which shall be begun by originating summons (O 5 r 3)
Proceedings by which an application is to be made to the court or a Judge thereof under any written law shall be begun by originating summons.
4. Proceedings which may be begun by writ or originating summons (O 5 r 4)
(1) Proceedings:
(a) in which the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law; or
(b) in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under O 14 or O 81 or for any other reason considers the proceedings are more appropriate to be begun by writ.
[7] From the above provision it is clear that where there are dispute of facts then the proper mode to commence proceeding is by way of a Writ and not by way of Originating Summons.
[8] From the court's view, in this case the whole of Plaintiffs case is hinged on hearsay evidence. In his affidavit the Plaintiff states that it was the police who informed him that the Defendant had towed his car. The name of the police who informed him is not specified neither is there an affidavit of the police who informed him been filed.
[9] Clearly therefore the Plaintiff's Originating Summons is untenable as it is based on hearsay evidence. Further the fact of the towing is being disputed to by the Defendant.
[10] The Defendant also disputes that the place from where the car was towed from, is not a common area or that the house rules of the condominium does not apply.
[11] Apart from the hearsay evidence it is apparent that there are dispute as to facts and therefore the proper mode to commence proceedings should be by way of Writ and not Originating Summons.
Reliefs
[12] It is clear that the Plaintiff's application for declaration that the house rules are against art 13 of the Federal Constitution is misconceived. Article 13 of the Federal Constitution provides as follows:
(1) No person shall be deprived of property save in accordance with law.
(2) No law shall provide for the compulsory acquisition or use o
