Implied powers exist for Joint Management Bodies to lease common property, enabling them to perform necessary maintenance duties, even if not explicitly stated in the enabling statute.

The Parties

[1] The appellant is a Joint Management Body (JMB) incorporated under the Building and Common Property (Maintenance and Management) Act 2007 (the Act) which came into force on 12 April 2007. The appellant maintains and manages inter alia, the premises known as "Tiara Duta Clubhouse and Restaurant and Car Parks" (the premises) being common property in a condominium development known as Tiara Duta Condominium located at Persiaran Putra, Taman Putra Sulaiman, Ampang, Selangor (the property).

[2] The appellant has appointed a Joint Management Committee (JMC) to perform its duties and conduct business on its behalf. ( Section 11 (1) of the Act)

[3] To date, a Management Corporation has not been formed as less than 25% of the owners of the property have registered the transfer of the strata titles from the developer to themselves.

[4] The respondent is a company incorporated under the Companies Act 1965 .

The Agreements

[5] On 18 July 2011, a written agreement (the first agreement) (Rekod Rayuan Jilid 3 p 417) was entered into between the respondent and the appellant for the lease of the premises for a period of five years, with effect from 1 July 2011, with an option to renew for a further period of five years, at the rental of RM5000 per month for the first five year period.

[6] On behalf of the appellant, the first agreement was signed by Hj M Isa bin Halihan (SP2), its former chairman and Hajah Haizan bt Abdul Rahman (SP3) its former secretary.

[7] The first agreement was signed by Syed Abd Rahman Syed Akil on behalf of the respondent.

[8] The first agreement was substituted by a second agreement dated 30 April 2012 (Rekod Rayuan Jilid 3 p 443) entered into between the same parties upon almost similar terms and conditions for a period of 10 years with effect from 1 April 2012 and with an option to renew for another 10 years. The rental was increased to RM9000 per month for the first two years and thereafter with an increase of 10% annually from the third to the 10th year.

[9] For purposes of this appeal, references to "agreement and/or lease" shall refer to the second agreement as being the agreement in issue, unless specifically referred to as the first agreement or second agreement.

[10] Both the first and second agreements were not registered as a lease under Part 15 of the National Land Code .

[11] It was an agreed term of the agreement that the restaurant would be open to the residents of Tiara Duta Condominium as well as to members of the public.

The Problem

[12] Prior to 1 April 2012 possession of the premises was handed over to the respondent by the appellant to enable the respondent to carry out renovation works before the commencement of business on 1 April 2012.

[13] In order to carry on the business, the respondent had applied for and obtained a lesen perniagaan from Majlis Perbandaran Ampang Jaya (MPAJ) for year ending 31 December 2012.

[14] Sometime in November 2012, the respondent applied to MPAJ for a renewal of its lesen perniagaan for 2013. The respondent was informed by MPAJ to obtain a letter of support (surat sokongan) from the appellant in respect of the agreement entered into between the appellant and the respondent. On 3 December 2012 the respondent wrote to the appellant requesting for the letter of support.

[15] The appellant declined to give the letter of support to the respondent on the ground that it was not obliged to do so under the terms and conditions of the agreement.

[16] In consequence, the respondent was not able to obtain its lesen perniagaan for 2013 and had to stop its business operations.

The Claim And Counterclaim

[17] The respondent's claim against the appellant was for breach of the agreement and pray