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2011 MarsdenLR 3505
HIGH COURT MALAYA, KUALA LUMPUR
KEE HUAT RADIO COMPANY SDN BHD – Appellant
Versus
JAMNAH VIEW CONDOMINIUM MANAGEMENT CORPORATION – Respondent
[Civil Appeal No: R3-12B-901-2010]
Management corporations are entitled to recover service charges from owners based on statutory provisions, regardless of earlier debts incurred by the developer.
Headnote:(A) Strata Titles Act 1985 - Sections 52 and 53 - Building And Common Property (Maintenance And Management) Act 2007 - Liability of condominium owner for service charges - Appellant liable for service charges from 10.5.2008; prior debt owed to developer not recoverable by respondent - The respondent's right to claim for amounts due scrutinized; the court finds that previous management's debts are not the respondent's obligation - Contractual terms necessary for establishing liability upheld - Appellant's claim for set-off against prior judgments rejected. (Paras 1, 5, 6, 8, 9, 10, 15)
(B) Appeal - Assessment of evidence - No errors of law or fact found in Sessions Court. (Paras 17, 18)
Facts of the case:
The appellant is a condominium purchaser who argues non-liability for pre-management service charges owed to the original developer, asserting prior debts should not pass to the management corporation.
Findings of Court:
The court found that the management corporation holds the right to claim for service charges incurred post-assumption of management duties from Beauland.
Issues: The main issues included the right of the management corporation to claim unpaid charges before registration of strata title, assignment of debt, and ability to offset prior judgments.
Ratio Decidendi: The court ruled that the respondent has statutory authority to collect charges due post-transition, upholding that lack of a formal agreement does not negate the transfer of debt responsibility.
Result: Appeal dismissed with costs.
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| 1. factual background of the case. (Para 1 , 2 , 3 , 4 , 5) |
Agreed issues
Arising from the dispute, the parties have formulated the following agreed issues:-
1. Whether the respondent is entitled to claim the total outstanding sum of RM96,245.55 in respect of various charges pursuant to paragraph 4 of the statement of claim before and after the establishment of the respondent?
2. Whether the respondent is entitled to claim from the appellant for maintenance and service charges before the strata title for the property has been transferred and registered in the name of the appellant?
3. Whether the judgment dated 18.3.1994 obtained by the appellant in Civil Suit No: S4-22-70-1994 and Order dated 17.5.1999 that was obtained by the appellantvide Originating Summons No: S5-24-1315-1995 is relevant and enforceable in this action?
4. Whether the appellant is entitled to set-off the maintenance and service charge from the balance judgment sum of the judgment dated 18.3.1994 in Civil Suit No: S4-22-70-1994 in the event the respondent has a right to recover the said sum from the appellant?
5. Whether the appellant is indebted to the respondent for the said sum of RM96,245.55?
Findings by learned Sessions court
In granting judgment in favour of the respondent, the trial judge conclude:-
1. Plaintif telah berjaya membuktikan kes plaintif terhadap defendan berdasarkan seksyen 52 dan 53 Akta yang tidak menghadkan jumlah yang boleh dituntut oleh sesuatu Perbadanan Pengurusan yakni hanya dari tarikh Perbadanan Pengurusan mula berkuatkuasa.
2. Surat daripada Dewan Bandaraya Kuala Lumpur bertarikh 12.4.2010 yang menyatakan perbadanan pengurusan mempunyai kuasa untuk mendapatkan kembali wang pengurusan yang terhutang semasa dalam tempoh permulaan.
3. Berdasarkan Seksyen 52 dan 53 Akta serta surat bertarikh 12.4.10 dari Dewan Bandaraya sudah mencukupi bagi mahkamah memutuskan bahawa palintif telah berjaya membuktikan tuntutannya terhadap defendan di mana plaintif mempunyai kuasa untuk menuntut jumlah yang ditanggung dalam menjalankan kuasa, tugas dan fungsinya sebagai satu Perbadanan Pengurusan termasuk asset dan liabiliti yang telah diserahkan kepada plaintif oleh pengurusan sebelumnya.
Grounds of appeal
The learned Sessions Judge is alleged to have erred in the followings:-
(a) Failure to look at the entire evidence.
(b) Misread section 52 of the Strata Titles Act 1985 .
(c) Misdirected herself on the facts.
Although five issues were listed, I am of the opinion that essentially these issues can be summarized into two categories namely the respondent's right to claim and set off.
The right to claim for the sum due prior to 10.5.2008
Learned counsel for the appellant strenuously argued that the learned Sessions Judge had failed to appreciate the legal effect of section 52(1) of the Strata Titles Act 1985 .
Section 52 (1) reads as follows:
(1) The payment of any amount lawfully incurred by the management corporation in the course of the exercise of any of its powers or functions or carrying out of its duties or obligations shall by virtue of this section be guaranteed by the proprietors for the time being constituting the management corporation, each proprietor being liable under such guarantee only for such proportion of the money so incurred as the share units of his parcel or the provisional share units of his provisional block bear to the aggregate share units.
Given the above provision its literal meaning, the appellant contend:
(a) The amount claimable by the respondent are amount lawfully incurred by them and not the expenditure incurred by its predecessor, Beauland; and
(b) The expenditure incurred by the respondent must be in the course of the exercise of its function as the management corporation of the condominium.
Further, the respondent only assumed the management of the condominium from Beauland from 10.5.2008. This fact is not disputed by the parties. It is also not disputed that prior to the respondent, the ma
