Back
2009 MarsdenLR 2520
HIGH COURT MALAYA KUALA LUMPUR
SRI WANGSARIA MANAGEMENT CORPORATION – Appellant
Versus
YEAP SWEE OO @ YEAP GUAN CHENG & ANOR & ANOTHER APPEAL – Respondent
[Suit No: S4-22-1640-2004]
A management corporation may recover outstanding service charges from successors-in-title when the original proprietor fails to settle dues; failure to inquire does not absolve responsibility.
Headnote:(A) Strata Titles Act 1985 - Sections 45(3), 45(4), 45(5) and 45(6) - Recovery of outstanding service charges against successors-in-title - Plaintiff, as Management Corporation, is entitled to claim service charges owed by the Defendants as successors to the Third Party for unpaid amounts pre-sale - Defendants cannot evade liability by failing to inquire about outstanding charges - Court confirms resolution to impose interest on late payments is enforceable against registered proprietors - Plaintiff's claim allowed for arrears totaling RM50,766.72 with interest. (Paras 11-28)
Facts of the case:
The Plaintiff claimed for service charges owed by the Defendants, who purchased two Apartments without notifying the Management Corporation and failed to settle the outstanding amounts owed by the previous owner, Third Party. Plaintiff provided evidence of the arrears. (Paras 1-4)
Findings of Court:
The Defendants are held liable for unpaid service charges totaling RM50,766.72. Interest at 6% per annum from the date of the writ until judgment and 8% thereafter was awarded. Costs to be taxed in favor of Plaintiff. (Para 11)
Issues: Whether the Plaintiff can recover outstanding service charges from the Defendants as successors-in-title, the applicability of the interest imposed, and the effect of limitation on the claim. (Paras 17-23)
Ratio Decidendi: The Defendants are liable under section 45(5) of the Act for service charges owed by the Third Party, despite their claim of uncertainties in amounts owed. Failure to inquire about these charges at the time of property purchase does not absolve them of responsibility. (Paras 16, 21-22)
Result: Claim by Plaintiff allowed.
| Table of Content |
|---|
| 1. establishment of ownership and service charges (Para 1 , 2 , 3 , 4) |
| 2. chronology of relevant events and obligations of parties (Para 5 , 6 , 7) |
| 3. liability of successors for outstanding charges (Para 11 , 12 , 13) |
| 4. court's interpretation of recovery rights under the act (Para 18 , 20) |
| 5. interest charges on late payments (Para 21 , 23) |
| 6. legislative intention to enforce payment (Para 24 , 27) |
| 7. conclusion and costs awarded (Para 25 , 26) |
[1] The Plaintiff is the management corporation of Sri Wangsaria Condomiums, Jalan Ara, Bangsar, Kuala Lumpur ("the Codominiums"). The developer/original proprietor was Eng Lian Enterprise Sdn Bhd ("ELE"). The Defendants are the joint co-owners of Unit No 165-16 and No 165-17 ("the Apartments") in the said Condominiums. The Apartments) were originally owned by one Mr Ooi Pit Beng who then sold them to the 2nd purchaser, one Lim Cheng Poh ("the Third Party"). Strata titles were issued to the Third Party on 29 April 1993.
[2] On 9 October 1996 by way of two separate sale and purchase agreements ("the SPA") the Third Party sold and the Defendants purchased the Apartments. On 22 April 1997 the Defendants became the registered co-proprietors of the Apartments. According to the Plaintiff prior to or at the 2time of transfer and/or registration of the Defendants as co-proprietors, neither the Defendants nor the Third Party notified the Plaintiff of the impending sale. The Plaintiff says that at 1 April 1996 the Third Party owed a total sum of RM24,241.88 for apportioned service charges, levy contributions, quit rent, insurance premium and water charges (collectively referred to as 'service charges') in respect of both Apartments (exh P12 and P13). After the Defendants became the registered proprietors of the two Apartments, the Defendants paid arrears outstanding from the date they obtained vacant possession only.
[3] The Plaintiff claims that the Defendants as successors-in-title to the Third Party are liable to pay to the Plaintiff the outstanding amount of service charges owed by the Third Party in respect of the Apartments. The Plaintiff issued notices of arrears of service charges to the Defendants but the Third Party's solicitors wrote to the Plaintiff vide letters dated 24 November 1997 and 16 November 1998 asking the Plaintiff to cease billing and requesting the Defendants to pay (exh D48 and D49). The Plaintiff continued billing the Defendants and the Defendants responded vide their solicitor's letters dated 4 November 2003 and 5 December 2003 denying liability and threatened to take legal () action against the Plaintiff (exh P26 and P27). The Plaintiff responded by a letter to the 1st Defendant dated 15 December 2003 forwarding current statements and notifying the Defendants that they were seeking legal advice on the Defendants' solicitor's letter (exh P37).
[4] The Plaintiff claims that as at 5 July 2004 the amount of service charges and water charges outstanding for Apartment No 165-16 was RM24,379.40 and for Apartment No 165-17 was RM26,387.32 (exh P24 and P25). On 6 July 2004 the Plaintiff through its solicitors issued a letter of demand for arrears of service charges as at 5 July 2004 amounting to a total of RM50.766.72 in respect of both Apartments (exh P23). The Plaintiff says that the Defendants have failed and/or neglected and refused to pay part of or the full amount claimed. By way of this action the Plaintiff seeks to recover arrears of maintenance/service charges and apportionment of outgoings from the Defendants as succes-sors-in-title to the Third Party and prays for the following orders:
(i) A Declaration that the Plaintiff as Management Corporation is entitled to sue and/or recover from the Defendants (as current registered co-proprietors of the 2 Apartments) the arrears of apportioned service charges (being apportioned service charges owed for the levy contribution, insurance premium and water charges) owed and not discharged by the 2nd Purchaser and/or Defen
