Mohd Radzi Abdul Hamid J:

GROUNDS OF JUDGMENTMATTER BEFORE THIS COURT

[1]This is a decision at the end of a full trial on a claim instituted by the Plaintiffs against all Defendants arising from issues related to the transfer of monies from the 2^nd Plaintiff (‘LMC’) to the 1^st Defendant and the functions and duties of the First Defendant as the Joint Management Body of a property known as Kondominium Lagenda (‘Lagenda’). This decision also relates to the Counter Claim instituted by all the Defendants against the Plaintiffs and one, Eng Song Huat who was at the material time a Director of the 1^st Plaintiff (‘Jeuro’).

[2]Based on the Statement of Claim, the Plaintiffs claim essentially rests on a claim that the 2^nd to 5^th Defendants who were Directors of LMC at the material time and also members of the Joint Management Committee of the Joint Management Body, Badan Pengurusan Bersama Kodominium Lagenda (‘JMB’) had wrongfully caused LMC to transfer to the JMB the amount of RM438,945.00 being maintenance charges collected by LMC as the management corporation appointed by the Jeuro. It is both the Plaintiffs’ claim that those monies belonged to Jeuro and therefore those monies should be returned.

[3]It is the Defendants’ case that all those monies do not belong to the either Plaintiff but are monies held in trust for the purchasers and therefore those monies were legally and properly transferred to the JMB as the Joint Management Body incorporated under the Building and Common Property (Maintenance and Management) Act 2007 on 20.5.2010 (‘BCPA’). Since the monies were trust monies, all the Defendants cannot be said to have committed any wrong under the law in affecting the transfer of those monies and managing them under the JMB’s control and functions as the Joint Management Body.

[4]Further to that all the Defendants filed a Counter Claim against the Plaintiffs seeking:-

(a)outstanding maintenance charges due from Jeuro for 6 units owned by it amounting to RM410,866.20 or alternatively for the amount of RM 168,756.85 calculated from 20.5.2010 being the date of formation of the JMB;

(b)an order declaring that Jeuro as the developer of the Project had failed in executing their obligations to cause the issuance of strata titles to all purchasers pursuant to the Strata Title Act 1985;

(c)an order declaring that an amount of RM919,468.44 or any monies received by Jeuro from the Ministry of Housing and Local Government or from the Housing Development Account are trust monies;

(d)an order declaring that all monies collected by the Plaintiffs from parcel purchasers/owners are trust monies; and

(e)for damages against all the Plaintiffs.

[5]After having considered the evidence and hearing submissions from very able counsels, this Court finds and decides as follows.

COURT’S DELIBERATIONSPlaintiffs’ ClaimOn the general position of the law and monies collected by a developer prior to coming into force the BCPA

[6]To begin with the BCPA came into effect in the State of Melaka on 12.4.2007. It has been judicially held by the Federal Court in Badan Pengurusan Bersama Rustika v. Sri Damansara Sdn. Bhd. Sharon Lobo v. AAB Avenue 1 Sdn. Bhd. & Ors. [2010] 1 LNS 521; Badan Pengurusan Bersama Cyber Heights Villa, Cyberjaya v. Tindak Murni Sdn. Bhd. [2016] CLJU 278 / [2016] 1 LNS 278 and LCS Management Corporation v. Leisure Commerce Square Sdn. Bhd. [2015] CLJU 10251 ; [2015] 1 LNS 1025)

[7]It must be noted however the decision in Badan Pengurusan Bersama Paradesa Rustika (Supra) did not touch on the issue of the legal status of those monies whether they are to be considered as monies received and held in trust for the benefit of purchasers or whether they form part of the asset and property of the developer. The issue in Badan Pengurusan Bersama Paradesa Rustika (Supra) was not a dispute on the building maintenance account but on the exercise of the powers of the Commissioner under section 16 and 22 of the BCPA. Therefore, to that extent the decision in Badan