Wan Suleiman SCJ:

[1] The two appeals, FCCA 79/84 and FCCA 90/84 were heard together. The appellants in FCCA 79/84 being defendants Nos 2, 3 & 4 and the appellant in FCCA 90/84 defendant No 1 in the court below.

[2] It would be convenient to refer to appellant in FCCA 90/84 as 1st appellant and to those in FCCA 79/84 as 2nd, 3rd & 4th appellants respectively. The following are the facts as found by the learned trial Judge, and are not disputed in this appeal. 1st appellant is the owner of a multi-storey complex, the Merlin Tower Johor (herein after referred to as "the complex"). On April 1, 1977 it entered into an agreement with the plaintiffs (pp 17 to 30 of the Records in FCCA 79/84) by which it sold to them a parcel in the complex, No, 212 on the second floor.

[3] On or about July 1980, it sold the complex to the 2nd appellant. 3rd appellant then became the owner of the podium block and the office units 4th appellant later acquired the hotel lobby and the car parks. Apart from the transaction between the respondents and 1 st appellant it is not clear precisely when 2nd, 3rd and 4th appellants made their respective acquisitions.

[4] Under cl 8.04 of the agreement, it is provided that certain parts of the complex is "common property". Subsequently the 1st appellant built a mezzanine floor within the 24 feet void between the roof garden and the fifth floor, and converted a portion of the ground floor passageway into a hotel lobby. It sold to 2nd appellant the basement car parks, the mezzanine floor and the hotel lobby. The latter later transferred them to the 3rd and 4th appellants. The 3rd appellant then applied for separate titles for the car park, mezzanine floor, the hotel lobby and the roof garden.

[5] The respondents asserted that these places were "common property" under the agreement and by way of Originating Summons asked for a declaration to that effect; and further declarations that the construction of the mezzanine floor and the conversion of the void into a hotel lobby were unreasonable as contrary to cl 1.01(f) alternatively, the sites chosen were common property; that the sale of the property to the 2nd and the other appellants were ultra vires the agreement and void.

[6] They also sought to obtain an injunction to restrain the 3rd appellant from applying for the issue of separate titles and for applying to the authorities for further amendments to the building plan under the agreement, and a further declaration that pursuant to cl 1.01(2)of the agreement, the 3rd appellant should render accounts showing how the service charges for respondents' parcel as well as those for the other parcels in the complex are determined.

[7] The learned trial judge listed four issues for determination between the parties:

(a) whether the car parks are "common property" within the meaning of the agreement;

(b) whether the mezzanine floor, hotel lobby and the roof garden were sited on the common property. If they were, whether the amendments made to the plan which render them not common property were ultra vires the agreement;

(c) whether the plaintiffs were entitled to an account levied on the service charges;

(d) whether the delay in bringing the action defeats the plaintiffs' case.

[8] The following acts were agreed upon before the hearing in the court below:

(1) The original approved building plan submitted by the First Appellant did not have the hotel lobby and mezzanine floor.

(2) The amended approved building plan submitted by the First Appellant was approved on October 30, 1979. It contained amendments sought by the First Appellant. The amendments were the inclusion of the hotel lobby and mezzanine floor.

(3) The First Appellant had applied for strata titles on May 25, 1978 and no application was made for strata titles for the following areas - the basement car parks, the hotel lobby and the mezzanine floor. There is fresh application for strata title for the three areas and the roof garden.

[9] The learned trial judge found in fav