The court established that claims for maintenance charges constitute a running account, hence not barred by limitation, entitling the management corporation to recover unpaid sums from the developer.

(Enclosure 50: Notice of Application under O 33 Rules of Court 2012)

[1] This is an application by the Defendant under O 33 Rules of Court 2012 whereby the Court may order any question or issue arising in a cause or matter whether of fact or law or partly of fact and partly of law, and whether raised by pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

[2] The Plaintiff's (JMB Maskiara Residences) claim against the Defendant is in relation to the Defendant's (Intan Permata Properties Sdn Bhd.) failure to settle statutory charges including maintenance fees, sinking fund and late payment interest charges for its respective parcels located within a stratified property (Maskiara Residences) amounting to RM1,070,461.15 as of 15 January 2020.

BACKGROUND

[3] The Plaintiff is the management corporation of a stratified development (Maskiara Residences) in Taman Tun Dr Ismail, Kuala Lumpur. The Plaintiff was incorporated on 22 June 2013 pursuant to the Building and Common Property (Maintenance and Management Act 2007 (Act 663). The Plaintiff is a statutory body charged with the duties and powers under the Strata Management Act 2013 to manage Maskiara Residences.

[4] The Defendant is a company registered under the Companies Act 1965 and carries a business as a property investment company. The Defendant is the developer of Maskiara Residence and managed Maskiara Residence during the developer stage until 22 June 2013.

Enclosure 50

[5] The brief grounds to support encl 50 are as follows-

(a) the Plaintiff is claiming for the purported outstanding maintenance fees, sinking funds, and late payment interests for 67 strata units at the Maskiara Residences amounting to RM1,070,461.15 as of 15 January 2020;

(b) while the Defendant does not deny that there are outstanding maintenance fees and sinking funds owing to the Plaintiff, the Defendant disputes the quantum claimed by the Plaintiff in this suit for the following reasons-

(i) part of the Plaintiff's claim is time barred under Act 254;

(ii) part of the Plaintiff's claim contravenes s 8(2) of Act 757;

(iii) the Plaintiff has wrongfully claimed for maintenance fees and sinking funds in relation to units that have already been sold out and no longer belong to the Defendant;

(iv) the Plaintiff's calculation for late payment charges is wrong; and

(c) a determination of the Questions would save time and expenditure and would have the effect of substantially dispose of the matter without the necessity of a full trial.

[6] The list of agreed questions as reflected in Enclosure 86 (exhibited in NCO-11) 3rd Affidavit in Reply of the Defendant filed by Tan Sri Dato' Wira Ng Chen Onn outlined as follows:

Issues Pertaining to the Applicability of the Limitation Act 1953 .

(a) Whether the Plaintiff's claim for the maintenance charges, sinking fund and late payment interest amounting to RM1,070,461.15 as at 15 January 2020 is based on a running account? In the event the answer is in the affirmative does Act 254 apply to running accounts?

(b) Whether the Plaintiff's claim prior to 15 January 2014 is barred by s 6(1)(d) of Act 254? In the event the answer is in the affirmative, should the Plaintiff's claim prior to 15 January 2014 be struck out with costs?

(c) Whether s 105(2) of Act 757 equally applies to proceedings in a Court of compet