JUDGMENT

Arziah Mohamed Apandi JC:

Introduction

[1] There is the Malay proverb which says "Marahkan nyamuk, kelambu dibakar" that literally means because of one mosquito the whole net is burned down. This is exactly the case here.

[2] This is a strata property dispute where a subsidiary management corporation (plaintiff) is suing the licensed land surveyor (2nd defendant) for allegedly incorrectly designating certain areas as common property rather than limited common property in the Special Plan. The 1st Defendant is the management corporation.

[3] The 2nd Defendant put up this striking out application under O 18 r 19 of the Rules of 2012 (ROC 2012) under limb (a), (b) and/or (d) where he contends that the action is devoid of merits as it discloses no reasonable cause of action, it is scandalous, vexatious and/or it is an abuse of process.

Background

[4] The Plaintiff is a subsidiary management corporation established on 9 April 2019 pursuant to s 17A of the Strata Titles Act 1985 ("STA 1985") to manage limited common property designated for Menara 1 MK within the One Mont' Kiara development.

[5] The 2nd Defendant is a licensed land surveyor appointed by the 1st Defendant (Management Corporation) on 28 February 2017 to prepare a Special Plan delineating limited common property for the purposes of creating subsidiary management corporations.

[6] The Special Plan was presented at two Extraordinary General Meetings ("EGMs") in 2017. At the 1st EGM on 15 July 2017, the draft Special Plan was debated for approximately two hours. At the 2nd EGM on 6 December 2017, the Special Plan was approved by comprehensive resolution with 67.6% in favour and only 1.3% against.

[7] The Special Plan was subsequently approved by the Director of Survey and Mapping Malaysia ("JUPEM") on 22 March 2019 and the Director of Lands and Mines ("PTG") on 9 April 2019. Three subsidiary management corporations, including the Plaintiff, were duly established on 9 April 2019.

[8] The plaintiff now claims, some five years after its establishment, that certain areas designated as common property in the Special Plan ("Disputed Areas") should have been designated as limited common property. The plaintiff alleges the 2nd defendant acted negligently in preparing the Special Plan.

Principles On Striking Out

[9] The principles governing striking out applications are well-established. In Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969 SC, the Supreme Court held that it is only in plain and obvious cases that recourse should be had to the summary process under O 18 r 19 ROC 2012, and the summary procedure can only be adopted when it can clearly be seen that a claim is on the face of it "obviously unsustainable."

[10] The Court of Appeal in Metroplex Holdings Sdn Bhd v. Commerce International Merchant Bankers Berhad; [2013] 4 MLJ 520; [2013] 8 CLJ 329; [2013] 3 AMR 782 CA emphasised that the claim must be "plainly or evidently unsustainable in law" and that such power should be exercised sparingly.

[11] However, where a claim falls squarely within one of the four limbs of O 18 r 19(1) ROC 2012, the Court is duty-bound to exercise its powers to prevent abuse of its processes and to ensure judicial efficiency.

Issues For Determination

[12] This striking out application raises four principal issues namely - (a) Whether the claim discloses no reasonable cause of action by reason of wrong mode of commencement and non-joinder of necessary parties; (b) Whether the claim is frivolous and vexatious having regard to the comprehensive resolution passed; (c) Whether the claim constitutes an abuse of process; and (d) Whether the 2nd defendant owed any duty of care to the plaintiff.

[13] Examining the Plaintiff's Statement of Claim (SOC) and reliefs sought, the predominant subject matter is the validity of the Special Plan as approved by JUPEM and PTG. The plaintiff seeks- (a) A declaration that the Level 23A Office Plan i