Property managers must be registered under relevant legislation to levy maintenance charges; failure to provide service invalidates payment claims.

[1] This is an appeal against the decision of the learned Sessions Court Judge dismissing the Appellants' claim against the Respondent for outstanding maintenance and service charges in the sum of RM37,188.82. This appeal arises after a full trial in the Court below on two days, where the Appellants called three witnesses and the Respondent, one.

[2] Prior to the hearing of this appeal the following interlocutory matters were filed and disposed of in relation to this appeal:-

(a) The Respondent's application to strike out the appeal, on the grounds that the Notice of Appeal erroneously stipulated that the Respondent was the appellant, when the former had not filed any appeal. This application was dismissed.

(b) The Appellants' application to amend the Notice of Appeal to rectify the foregoing error. The application was allowed with costs.

(c) The Appellants' application for an extension of time to lodge the security deposit of RM250-00. The application was dismissed, and on appeal to the Court of Appeal, allowed with costs and remitted to the High Court.

(d) The Appellants' filed an application to adduce fresh evidence in the appeal before this Court, which I refused with costs.

(e) The Appellants then filed an application for a stay of the hearing of the appeal pending their appeal to the Court of Appeal against my refusal to allow the fresh evidence to be adduced for the purposes of this appeal. I refused the application for a stay. This is primarily because the hearing of this appeal has already been considerably delayed, having been filed in 2011. A further stay would lead to considerable and in my view, unnecessary delay. In any event if the Appellants succeed in this appeal, the lack of the fresh evidence would not have affected the outcome of the appeal. On the other hand, if they do not succeed, then it would be open to the Appellants to have both the application to adduce fresh evidence and the appeal proper to be heard together. In all these circumstances therefore I refused a stay of the hearing of the appeal.

Salient Background Facts

[3] The First Appellant ('P1') is a developer that constructed a mixed commercial development known as Plaza Damas. Plaza Damas comprises commercial shoplots, office lots and apartments with strata titles all falling within the purview of the Strata Titles Act 1985 .

[4] The Second Appellant ('P2') is a wholly owned subsidiary of P1 and was appointed as a property development manager to manage Plaza Damas, by P1. In essence therefore P1 appointed P2 to collect all maintenance and service charges and to manage the common property in Plaza Damas.

[5] The Respondent is the owner of a unit in Plaza Damas.

[6] The Appellants' cause of action against the Respondent is based on contract, more particularly arising from a Sale and Purchase Contract dated 16 March 1999 ('SPA') and a Deed of Mutual Covenants also dated 16 March 1999 executed between P1 and the Respondent only.

In essence the Appellants' complaint is that the Respondent failed to pay the maintenance fees and service charges levied by P2 against the Respondent for services provided by P2. It should be noted that there is no contract, albeit oral or written between P2 and the Respondent.

[7] The Respondent in its defence raised a number of defences, including:-

(i) P1 had failed to provide the services it had undertaken or was obliged to provide under the SPA and/or Deed of Mutual Covenants. Accordingly the Respondent refused to make payments for services it had not received and denied owing these monies to P1;

(ii) The Respondent had never agreed or consented to any assignment or novation of the obligations under the SPA and/or the Deed of Mutual Covenants ('DOMC') to the Appellants. In this context, the Respondent maintained that it had not entered into a