The Joint Management Body cannot impose maintenance charges on the developer and commercial owners due to invalid resolutions and lack of voting rights, affirming separate accounts for residential and commercial components.

Kenneth St James JC:

(Post-Trial)

Prelusion

[1] The subject development project is a mixed development. It has both Residential and Commercial components (parcels).

[2] At the 1st Annual General Meeting (AGM) of the development, the joint management body for the Residential component (JMB) was formed, and resolutions were passed for the JMB to open a Building Maintenance account and a Sinking Fund account for the Residential component of the development. The money paid into these accounts was exclusively for the maintenance and management of the Residential component's common property and facilities.

[3] It was also resolved at the 1st AGM that the Commercial component will have a separate maintenance account for the maintenance and management of the Commercial component's common property.

[4] The JMB files this suit to claim that the developer and the Commercial component owner pay the maintenance and sinking fund charges into the Residential component's Building Maintenance account and Sinking Fund account. The arrears amount to more than RM56 million. The JMB also seeks an Order that the developer and Commercial component owner deliver possession of the Commercial component's common property to the JMB, for the JMB to maintain and manage.

[5] Should the JMB's claims be allowed?

Preliminaries

[6] This case was a part-heard trial that I took over after four days of trial had passed. I took over the trial on its 5th day. I heard the trial for another two days. So there were a total of six days of trial.

[7] I will refer to the Plaintiff: the Gurney Paragon Residential Joint Management Body as "P"; the 1st Defendant: Hunza Properties (Gurney) Sdn Bhd as "D1"; the 2nd Defendant: Hunza Properties (Penang) Sdn Bhd as "D2"; the 3rd Defendant: Beachfront Services Sdn Bhd as "D3"; and the 4th Defendant: the Director of Lands and Mines of Penang as "D4".

[8] I will refer to D1 and D2 together as "D1D2"; and D1, D2 and D3 together as "D1D2D3".

[9] P eventually called three witnesses. I was informed that P initially had six more witnesses. But at a narrowing-the-issues-for-trial session conducted by the previous presiding Judge, which took place after four days of trial-there was a partial resolution to the dispute concerning D1 rectifying certain defects in the Gurney Paragon development (Gurney Paragon). As there was no longer any issue relating to defects rectification, P did not call these six other witnesses. The Defendants called two witnesses.

The Plaintiff's Claims

[10] P is the residential joint management body. D1 is the developer of Gurney Paragon. D2 is the original owner of the land on which the development was built. D3 is D2's wholly owned subsidiary which operates and manages the car park and valet parking business on the Commercial component of Gurney Paragon. D4 is the Director of Lands and Mines of Penang, who approves the subdivision of buildings and lands.

[11] P claims against D1D2 for:

(1) alleged outstanding Maintenance charges and Sinking Fund contributions of RM56,930,645.52 (the RM56.93 million);

(2) the return of the common property of the Commercial component of Gurney Paragon to P (which I will allude to below);

(3) the rectification of certain defects in the fire protection and electrical services facilities.

[12] P claims against D3 for:

(1) D3 to account for the revenue from its car park and valet parking business operated on the Commercial component of Gurney Paragon;

(2) D3 to pay over to P all the monies collected from D3's car park and valet parking business.

[13] P's claim against D4 is for D4 to approve the strata plan for Gurney Paragon, or if the strata plan is already approved, to vary it according to the terms of this Court 's Judgment relating to the strata plan.

The Pertinent Facts Proved By The Documentary Evidence

[14] Gurney Paragon is a stratified mixed development. Gurney Paragon has two distinct components-the Residential component (the Condominiums) and the Commercial component (the Mall: also known