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2025 MarsdenLR 1055
HIGH COURT MALAYA KUALA LUMPUR
YAP TEAK SING – Appellant
Versus
LAI MING CHUN @ LAI POH LIN – Respondent
[Civil Suit No: WA-11ANCvC-58-09/2024]
Committal proceedings require strict adherence to procedural rules, including full disclosure of material facts; failure to do so can render applications for committal academic.
Headnote:(A) Strata Management Act 2013 - Order 52 of the Rules of Court 2012 - Ex parte application for committal proceeding - Learned Magistrate allowed the defendant's application to set aside the ex parte leave for committal on grounds of non-disclosure of material facts, thus rendering the plaintiff's application academic - The court emphasizes the need for strict compliance with procedural requirements in committal proceedings, including full disclosure of relevant facts. (Paras 15-17)
(B) Committal proceedings - A last resort after all other legal remedies are exhausted. (Para 14)
Facts of the case:
The plaintiff claimed leakage at his property caused by the defendant's property, referred to the Tribunal, which directed rectification. The plaintiff applied for a committal proceeding due to non-compliance, which the defendant challenged successfully, citing failure to disclose material facts regarding the rectification. (Paras 4-13)
Findings of Court:
The learned Magistrate's decision was upheld, confirming the importance of full disclosure and that without leave, a committal application is redundant. (Paras 11, 18)
Issues: Whether the plaintiff's non-disclosure warranted setting aside the ex parte leave and the implications on the committal application. (Paras 10-12)
Ratio Decidendi: The court ruled that non-disclosure of material facts regarding the rectification of the leak justified the dismissal of the committal application, emphasizing that committal proceedings necessitate strict adherence to procedural requirements. (Paras 15-16)
Result: Appeals dismissed with costs.
| Table of Content |
|---|
| 1. overview of the appeal against the magistrate's decision. (Para 1 , 2 , 3) |
| 2. background facts of the leakage dispute. (Para 4 , 5 , 6) |
| 3. failure to disclose material facts by the plaintiff. (Para 11 , 12 , 13) |
| 4. strict adherence to procedural rules in committal proceedings. (Para 14 , 15 , 16 , 17) |
| 5. dismissal of plaintiff's appeals and order for costs. (Para 18) |
Introduction
[1] The learned Magistrate had allowed the application of the Defendant to set aside the ex parte leave for a committal proceeding applied for by the Plaintiff against the 1st Defendant.
[2] In deciding that the 1st Defendant had successfully set aside the ex parte application for leave for the committal proceeding the learned Magistrate decided Plaintiff's application for a committal proceeding was therefore rendered academic.
[3] The Plaintiff now appeals against both this decision of the learned Magistrate.
Brief Facts
[4] The dispute between the Plaintiff and the Defendant arose as a result of a leakage suffered by the Plaintiff at his condominium at N- 17-3A, Suria Stonor Condominium (Plaintiff's property) which was believed to be caused by the 1st Defendant's condominium at N-21- 3A, Suria Stonor Condominium (Defendant's property).
[5] This dispute was referred to the Tribunal set up under the Strata Management Act 2013 . The 1st Defendant was directed to rectify this leakage suffered at the Plaintiff's property within 30 days of the Tribunal's decision.
[6] The Plaintiff applied by an ex parte application for leave under O 52 Rules of Court 2012 ("the rules") to initiate a committal proceeding against the 1st Defendant for failing to abide by the Tribunal's decision to rectify the leak.
[7] The relevant provision of O 52 of the Rules states as follows:
3. Application to Court (O 52 r 3)
(1) No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.
(2) An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.
[8] The learned Magistrate allowed the ex parte application of the Plaintiff for leave to apply for the committal proceeding. The effect of allowing leave the effect is as stipulated in O 52 of the Rules as follows:
4. Application for order after leave to apply granted (O 52 r 4)
(1) When leave has been granted under r 3 to apply for an order of committal, the application for the order must be made by notice of application to the Court, and, unless the Court granting leave has otherwise directed, there must be at least eight clear days between the service of the notice of application and the day named therein for the hearing.
(2) Unless within fourteen days after such leave was granted the notice of application is filed, the leave shall lapse.
(3) Subject to paragraph (4), the notice, accompanied by a copy of the statement and affidavit in support of the application for leave under r 3 and the order granting such leave, must be served personally on the person sought to be committed.
(4) Without prejudice to the powers of the Court or Judge under O 62 r 5, the Court or Judge may dispense with service of the notice under this rule if it or he thinks it just to do so.
[9] The above provision was duly followed by the Plaintiff to serve to the 1st Defendant with the committal notice as stated in the above provision. The 1st Defendant on his part applied to set aside the ex parte leave to commence committal proceeding granted to the Plaintiff based on various grounds.
[10] The learned Magistrate chose to hear the 1st Defendants application first before hearing the Plaintiff's application for the comm
