Mohd Radzi Abdul Hamid J:

GROUNDS OF JUDGMENT

MATTER BEFORE THIS COURT

[1]This is a decision on an application by the Applicant for judicial review against the decision of the Strata Management Tribunal on 22.5.2023 which directed the Applicant to pay the 1^st Respondent a sum of RM55,796.31 with the cost of RM500.00 (“Application”).

BACKGROUND

[2]The Applicant is the parcel owner of unit 912 at Riviera Bay Condominium (‘RBC’). The 1^st Respondent is the Joint Management Body (“JMB”) established under Section 4 of the Building and Common Property (Maintenance and Management) Act 2007 (“BCPA”). Following the repeal of the BCPA, the 1^st Respondent is deemed to have been established under Section 17 of the Strata Management Act 2013 which took effect on 1.6.2015 (“SMA”).

[3]On 8.3.2022, the 1^st Respondent instituted a proceeding against the Applicant before the Strata Management Tribunal under Claim No: TPS/M-0785-3/2022 claiming RM59.037.51 being the outstanding maintenance charges, sinking fund charges, electrical charges, water charges, insurance, strata title charges and late payment charges. On 22.5.2023, the Tribunal decided in favor of the 1^st Respondent.

[4]The Applicant claims that the Tribunal’s decision is fraught with error, irregularity and illegality. The Applicant thus seeks an order of certiorari against the decision of the Tribunal. Apart from that, the Applicant seeks further orders to declare, inter-alia, that the 1^st Respondent’s basis of calculation of maintenance charges on per square foot basis is wrong in law and that Form 3 of the Second Schedule of the Strata Management (Maintenance and Management) Regulations 2015 (“Regulations”) dated 28.8.2015 is wrong.

ISSUES

[5]In seeking for an order of certiorari to set aside the decision of the Tribunal, the Applicant raises the following issues:-

(i)the failure of the 1^st Respondent to levy maintenance charges according to allocated share units as required by the law;

(ii)incorrect allocation of share units in Form 3 of the Regulations;

(iii)unlawful and unauthorized charges and/or not in accordance with the SMA;

(iv)validity of payments to the Managing Agent; and

(v)wrongful reliance on Strata Fiscal Inspection Report.

LAW ON JUDICIAL REVIEW

[6]The Court of Appeal in Nazrul Imran bin Mohd Nor v. Civil Service Commission Malaysia [2021] 6 MU 750; ; R Rama Chandran v. Industrial Court of Malaysia & Anor Akira Sales & Services (M) Sdn. Bhd. v. Nadiah Zee Bt Abdullah And Another Appeal Country Garden Danga Bay Sdn. Bhd. v. Tribunal Tuntutan Pembeli Rumah & Anor , the Court of Appeal opined that the scope of a judicial review is not limited only to procedural issues but also extends to the merits of a decision (see also Ranjit Kaur A/P S Gopal Singh v. Hotel Excelsior (M) Sdn. Bhd. ).

[7]The Court of Appeal in Nazrul Imran supra went on to hold that apart from the grounds of illegality, irrationality and procedural impropriety, a judicial review also includes determining whether the decision appealed from is proportional to the matter complained of. Reference was made to the Federal Court decision in the case of Maria Chin Abdullah v. Ketua Pengarah Imigresen & Anor .

DELIBERATIONS AND FINDINGSFirst Issue

[8]The Applicant argues that the 1^st Respondent failed to comply with the requirements of the SMA and the Regulations when the 1st Respondent had imposed maintenance charges upon parcel owners on square foot basis between the period commencing from 28.9.2007 until 31.12.2017 instead of on allocated share units basis. The law clearly stipulates that maintenance charges must be imposed on allocated share units basis for each parcel and there is no provision that empowers the 1^st Respondent to charge otherwise.

[9]Reference was made to the decisions in Perbadanan Pengurusan Endah Parade v. Magnificent Diagraph Sdn. Bhd. ; Badan Pengurusan Bersama Mahkota Parade v. Amtrustee Berhad & Ors (Civil Suit No: 22NCvC-66-11/2015) Equiti Setegap Sdn. Bhd. v. Plaza 393 Management Corporation .

[10]Th