The definition of 'purchaser' under BCPA 2007 does not include the owner of a parcel, thus the statutory body is not liable for maintenance charges.

JUDGMENT

Che Mohd Ruzima Ghazali JCA:

Introduction

[1] Majlis Bandaraya Melaka Bersejarah (appellant/defendant), a statutory body established under the Local Government Act 1976 - Act 171 ( LGA 1976) ,was ordered by the High Court of Malacca to pay RM715,163.40 to the Badan Pengurusan Bersama Plaza Hang Tuah (respondent/plaintiff), a statutory body created under the Building and Common Property (Maintenance and Management) Act 2007 - Act 663 (BCPA 2007), being the maintenance charges and contribution to the sinking fund for the years of 2012 to 2014. The High Court also dismissed the appellant's/defendant's counterclaim to get back the sum paid to the plaintiff/respondent totalling RM249,115.30 for total failure of consideration in respect of the maintenance charges and contribution to the sinking fund for the year 2015. Aggrieved by the said order of the High Court, appellant/defendant appealed.

[2] For ease of reference, parties will be referred to by their acronym, MBMB for the appellant/ defendant and JMB for the respondent/plaintiff.

Brief Facts Of The Case

[3] MBMB owns five pieces of land in the city centre of Melaka (the Master Titles). By an agreement dated 8 March 1994, MBMB entered into a joint venture agreement (the JVA) to develop the Master Titles with a developer known as Atlantic Potential Sdn Bhd (the Developer).

[4] The end result of the JVA was the shopping complex in Melaka city centre known as Plaza Hang Tuah. As a consideration from the Developer under the JVA, MBMB was given a food Court with total floor area of 16,000 sq. ft. at Level 4 (the Food Court) and taxi parking bays with total floor area of 76,000 sq. ft. at Level 6 and upon the execution of the JVA, MBMB will receive RM83,940.00 from the Developer.

[5] JMB was established on 28 August 2008 pursuant to s 4 of the BCPA 2007 to maintain and manage the common property of Plaza Hang Tuah. Part of the JMB's power under BCPA 2007 is to collect from the purchasers the maintenance and management charges in proportion to the allocated share units of their respective parcels.

[6] At the time that the Developer was wound-up, no licensed land surveyor was appointed to assign the share units to each parcel owner. When JMB was formed in 2006, upon being advised by the Commissioner of Building (COB), JMB took the initiative to appoint Jurukur Saharuddin El-Asas, a licensed land surveyor, to allocate the share units to the parcel owner, which was done on 5 January 2015. MBMB is the proprietor of the strata title parcels for the Food Court, with a total area of 13,509 sq. ft or with a total share of 1883 units.

[7] JMB's claim against MBMB is for payment of the maintenance charges and contribution to the sinking fund for the years 2012 to 2014. MBMB has to pay the maintenance charges at the rate of RM1.35 per sq. ft. or RM9.59 per share unit, and the contribution to the sinking fund at the rate of 12 cents per sq. ft. or 96 cents per share unit. The total amount claimed by JMB against MBMB is RM715,163.40.

[8] MBMB disputed JMB's claim and raised the 4 main defences. First, JMB's claim is time-barred pursuant to the Public Authorities Protection Act 1948 . Second, MBMB is not liable to pay the maintenance charges and contribution to the sinking fund as it is neither a developer nor a purchaser in accordance with BCPA 2007. Third, JMB's claim was computed in sq. ft and not in share units as required under BCPA 2007, and fourth, no maintenance works were carried out by JMB on the common property. MBMB counterclaimed against JMB for the refund of the maintenance charges and contribution to the sinking fund in the sum of RM249,115.30 being paid for the year 2015 as consideration for JMB to carry out the maintenance of the common property of the Food Court which was wholly failed. MBMB's counterclaim rests on two causes of action, the total failure of consideration and unjust enrichment.

High Court's Decision

[9] On the facts of the case, MBMB entered into a private commerci