The court affirmed that the issuance of the Certificate of Fitness for Occupation serves as conclusive evidence of compliance, and the burden rests on the appellant to prove negligence, which was not established in this case.

Introduction

[1] This is the Appellant's appeal against a part of the decision of the High Court of Malaya at Pulau Pinang, which was delivered on 12 September 2019.

Background Facts

[2] Briefly, the facts in the present case are as follows.

[3] One Tanjong Condominium ("OTC") is a high-rise residential condominium consisting of two 41-storey towers (Tower A and Tower B). It features 173 residential units along with an interconnected five-storey podium that accommodates common facilities such as a swimming pool, gymnasium, and car parks. The OTC was developed by the Respondent.

[4] On 16 June 2014, the Certificate of Fitness for Occupation (Sijil Kelayakan Menduduki) ("CF") for Tower B and the common properties was issued. Meanwhile, for Tower A, the CF was issued on 13 April 2015. Vacant possession of the respective units was delivered to the relevant purchasers. The defect liability period for Tower B and Tower A expired on 16 June 2016 and 13 April 2017, respectively.

[5] The Joint Management Body of OTC ("JMB") was established on 8 June 2016, whereas the Appellant was established on 24 October 2016. The maintenance and management of the common property at OTC were handed over to the JMB and subsequently to the Appellant after the latter's establishment.

[6] Allied Group Property Services Sdn Bhd ("AGPS") has been appointed as the property manager of OTC to perform maintenance and manage the common properties under the Appellant's direction and instructions.

[7] On 2 November 2016, a joint inspection was carried out to identify all defects in the common properties. The defects were reported to the Respondent. Once all parties were satisfied, a certificate confirming the rectification of defects in the common properties of OTC was issued.

[8] On 18 November 2016, a fire broke out on Level 35 of Tower A. The common area and passenger lift on Level 35 of Tower A sustained fire damage. However, there was no significant damage to the building structure of OTC.

[9] On 20 September 2017, the JMB engaged Architect Centre Sdn Bhd ("ACSB") to assess the defects at the OTC and prepare a report. The "Property Inspection Report & Advisory on One Tanjung Condominium," dated 5 December 2017, was prepared by ACSB ("the Inspection Report"). In the Inspection Report, various fire safety hazards and non-compliance with the fire safety requirements outlined in the Uniform Building By-Laws 1984 ("UBBL 1984") were identified.

[10] On 27 December 2017, the Appellant served a letter to the Respondent and three of its consultants, along with a copy of the Inspection Report, and requested that they address the various defects highlighted therein. The Respondent and the three named consultants responded with their respective replies regarding the Inspection Report.

[11] The Appellant subsequently initiated legal proceedings against the Respondent, seeking an order to compel the Respondent to rectify and remedy the defects in OTC at the High Court below. The case was heard by the learned Judicial Commissioner ("JC").

[12] The matter proceeded to a full trial. At the conclusion of the trial, the High Court partially allowed the Appellant's claim for a mandatory injunction.

[13] To summarise, the High Court directed the Respondent to undertake repair and rectification works for the defects identified by the Appellant, excluding the Respondent's purported non-compliance with fire safety regulations.

[14] Dissatisfied, the Appellant lodged this appeal against that part of the High Court's decision.

The Appellant's Cause Of Action

[15] The Appellant's cause of action against the Respondent was founded on the tort of negligence and a breach of statu