A joint management body is entitled to collect maintenance charges incurred prior to its establishment as per statutory provisions, and claims of defamation by the defendant are justified due to the truth of the underlying issues.

[1] The plaintiff is claiming for maintenance charges owed by the defendant in respect of an office unit. The defendant's counterclaim for damages for defamation is premised on the publication of monthly statements and letters of demand to committee members of the plaintiff depicting the defendant as a defaulter.

Brief Account Of The Facts

[2] Prior to the formation of the plaintiff, Harta-Aman Sdn Bhd the developer of Plaza DNP was responsible for the collection of the maintenance charges from the defendant. The rate of the maintenance charges levied on the defendant's office unit is RM0.46 per square foot.

[3] The plaintiff was established on 26 April 2008 as the joint management body of Plaza DNP pursuant to the Building And Common Property (Maintenance And Management) Act 2007 ('BCPA 2007').

[4] The defendant is the owner of a unit of office lot known as Unit 06-11, Level 6, Aster Court Plaza DNP pursuant to a Sale and Purchase Agreement ('SPA') and Deed of Mutual Covenants ('DMC') both dated 27 June 1996 between the developer and the defendant. Notwithstanding the defendant's stand, the defendant has been making payments of the maintenance charges at the rate of RM0.25 per square foot without prejudice to his rights.

Plaintiff's Case

[5] After its formation, the plaintiff took over the maintenance and management of Plaza DNP from the developer. The plaintiff's claim is for the recovery of maintenance charges owed by the defendant of RM60,379.21 as at 31 March 2010.

Defendant's Defence And Counterclaim

[6] The defendant's defence is premised on the following grounds:

1) the plaintiff is not entitled to collect the maintenance charges incurred prior to 26 April 2008 as the plaintiff is not privy to the SPA and the DCM;

2) the rate of the maintenance charges was not fixed in the plaintiff's general meeting in accordance with s 6(1)(c) BCPA 2007; and

3) the rate of the maintenance charges is not justified.

[7] The defendant as a well-known lawyer in Johor Bahru and a State Assemblyman for Senai had been put to extreme embarrassment and insult in public as a result of the continued issuance of the monthly statements and circulation of letters of demand to the defendant and all committee members of the plaintiff. Consequently, the defendant has been defamed by the publication of such letters and monthly statements by the plaintiff.

Findings Of The Court

Burden Of Proof In Civil Proceedings

[8] In law, the party who desires the Court to give judgment as to any legal right or liability bears the burden of proof (s 101(1) Evidence Act 1950 ). The burden of proof is on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence. In this respect it is the plaintiff who must establish its case. If the plaintiff fails to do so, it will not do for the plaintiff to say that the defendant has not established his defence ( Selvaduray v. Chinniah , [1939] MLJ 253 CA . It should also be noted that there must be some preponderance in the plaintiff's favour at the conclusion of the whole case. Even if the plaintiff established a prima facie case, but at the conclusion of the trial the Court found that the position was exactly even, then an