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2013 MarsdenLR 1486
HIGH COURT MALAYA ALOR SETAR
CAYMAN DEVELOPMENT (SP) SDN BHD – Appellant
Versus
BADAN PENGURUSAN BERSAMA KOMPLEKS CAYMAN & ANOR – Respondent
[Originating Summons No: 24NCVC-1169-7-2012]
A Management Corporation takes precedence over a Joint Management Body; a body cannot exist concurrently with another governing entity as per the legislation.
Headnote:(A) Building and Common Property (Maintenance and Management) Act 2007 - Section 7 - Strata Titles Act 1985 - Section 39(1) - Judicial review - The existence of a Joint Management Body (JMB) was contested, ultimately determined that with the operation of an established Management Corporation (MC), a JMB cannot coexist. The plaintiff's application also highlighted that failure to appeal within statutory time limits barred the challenge against the JMB's registration. (Paras 1, 3, 6, 12)
(B) Legal Character - The plaintiff has standing to seek a declaration regarding the validity of the JMB under the Specific Relief Act. The jurisdiction to issue such declarations is expansive, subject to the court's discretion and the necessity of the case. (Paras 9, 10)
Facts of the case:
The plaintiff, acting as liquidator, sought a declaration against the Cayman Complex JMB, established in 2009, arguing its unlawfulness due to the preexistence of an MC operational since the strata title register's opening. On 20 March 2012, the cancellation of the JMB was denied.
Findings of Court:
The JMB was declared invalid as it conflicts with the statutory requirement for a single governing body (MC) where one exists. The plaintiff was allowed to seek a declaration on grounds of locus standi.
Issues: The core issues addressed included whether two governing bodies could co-exist for strata properties and if the plaintiff could challenge the registration of the JMB given failure to follow procedural remedies.
Ratio Decidendi: The court concluded that under the pertinent legislation, only the MC can operate, rendering the JMB illegal. The plaintiff had proper standing to challenge and was entitled to the sought declaration.
Result: Enclosure (1) was allowed.
| Table of Content |
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| 1. establishment of jmb and mc under relevant acts. (Para 1) |
[1] Enclosure (1) is plaintiff's application inter alia for a declaration that D1, Cayman Complex Joint Management Body (JMB) be declared unlawful. It is common ground Cayman Complex JMB was established on 3 October 2009 following a meeting convened by plaintiff in its capacity as liquidator for the developer of Cayman Complex (the complex). A certificate that JMB was duly constituted was issued by the Commissioner of Buildings pursuant to s 7 of (Act 663). On 28 February 2012 plaintiff was informed vide letter from the State Land Office a book of the strata title register had been opened on 30 January 2003 (JSR-5). Plaintiff wrote to D2 on 6 March 2012 to cancel the registration of JMB which was rejected on 20 March 2012.
