The disputed area was determined to be common property, not owned by the developer, which was affirmed by the court's rejection of the claim of trespass and misrepresentation regarding the strata title.

[1] The appellant is a developer and the registered owner of a plot of land on which a high rise mixed commercial development known as the Waldorf & Windsor Tower Service Apartments (the W&W Tower) has been built.

[2] The respondent is the Joint Management Body established on 18 January 2009 pursuant to the provisions of the Building and Common Property (Maintenance and Management) Act 2007 (the BCP (M&M) Act) to manage the W&W Tower.

[3] The appellant claimed that the respondent had trespassed onto a part of the seventh floor of the W&W Tower by occupying it as its Management Office (the Disputed Area). The appellant claimed to be the registered owner of the whole of the seventh floor of the W&W Tower by virtue of a strata title issued on 24 January 2011 and that the Disputed Area is privately owned by them and is not Common Property.

[4] The respondent denied the trespass and claimed that the Disputed Area is part of the Common Property and as such the respondent as the Joint Management Body of the W&W Tower has the legal right to occupy the same.

[5] The appellant contended that as the Disputed Area did not form part of the Common Property, it had lawfully given notice to the respondent to quit and deliver up possession of the Disputed Area.

[6] In the statement of claim, the appellant prayed for declaratory reliefs, to wit, that the area marked 'A' in Lampiran 1 annexed to the statement of claim is owned by the appellant and that the respondent had trespassed onto Area A. The appellant also sought for a mandatory injunction to compel the respondent to remove its Management Office and to restore the Disputed Area to its original position. (See para 7(a)(ii) of the statement of claim). The appellant also claimed for damages for trespass onto "Area A" to be assessed together with interests and costs.

[7] The respondent in its amended defence and counterclaim sought for inter alia, a declaration that the right, title and interest in and to "Area A" is not indefeasible and a declaration that the registration of "Area A" in the appellant's name was obtained by way of fraud or misrepresentation. The respondent also sought for an order that the Registrar of Land Title cancels the appellant's entry in the Registration of Land Title in favour of the appellant in respect of "Area A". The respondent also counterclaimed for an order that the entire "Area A" forms part of the common area and that it should be registered in the name of the respondent for common facilities for the benefit and enjoyment of the residents of the W&W Tower.

[8] For ease of reference and identification of the area marked "Area A" in Lampiran 1 annexed to the statement of claim claimed by the appellant; the area shown in the Strata Title Plan issued to the appellant and the Disputed Area claimed as Common Property by the respondent are shown in the respective plans reproduced as follows:

Plan 1 - Plan of "Area A" in Lampiran 1 annexed to the Statement of Claim

Plan 2 - Strata Title Plan

Plan 3 - Plan showing the Disputed Area

[9] In Plan 1 the perimeter delineated in bold is the area marked "Area A" in Lampiran 1 annexed to the statement of claim. In Plan 2 the perimeter delineated in bold is the area in the Strata Title Plan (see Rekod Rayuan Jilid 2(1)/4 p 294) and in Plan 3 the perimeter shaded in grey is the Disputed Area.

[10] The movie room, karaoke room, the walkway in front of the two rooms, lifts, lift lobby and stairwell are located in the shaded area in Plan 3 which are within the Disputed Area.

[11] It is the respondent's case that the appellant is claiming the whole of the seventh floor being the area marked "Area A" in Lampiran 1 annexed to the statement of claim which is an area larger than the area shown in the Strata Title Plan. The difference is the shaded area shown in Plan 3 which the appellant claimed the respondent had trespassed onto. (See para 18(a)(ii) of the statemen