Asmah Musa JC:

GROUNDS OF JUDGMENT

I. INTRODUCTION

[1]This is the Court’s decision on the First Defendant’s Notice of Application (Encl.11) brought pursuant to Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012. The Defendant seeks to strike out the Plaintiffs’ Writ and Statement of Claim dated 23 October 2024 on the grounds that the action is frivolous, vexatious, time-barred, and an abuse of the process of the court.

[2]The Plaintiffs challenge paragraph (f) of a Consent Order dated 2 May 2024 made in Originating Summons No. BA-24NCvC-262-02/2024, which declared that all previous maintenance and sinking fund charges imposed by the Management Corporation of Amcorp Trade Centre (“ATC”) are “valid and binding upon all parcel owners.”

[3]The Plaintiffs allege that the Consent Order was obtained fraudulently and without service, and therefore void ab initio. The First Defendant contends the order was properly obtained with the consent of the parcel owners, duly served, and that this suit constitutes a collateral attack on a valid court order.

II. BACKGROUND FACTS

[4]The First Defendant is the Management Corporation (MC) of Amcorp Trade Centre, a strata-titled development consisting of approximately 956 parcels. The Plaintiffs own four of these parcels.

[5]During the 10th Annual General Meeting (AGM) held on 26 February 2023, the parcel owners resolved the following:

i)Special Resolution No. 1: approving recalculation of share units for all parcel;

ii)Ordinary Resolution No. 2: agreeing that the current maintenance and sinking fund rates would remain until recalculation was finalised and validated by the court.

[6]Pursuant to these resolutions, the MC initiated OS No. BA-24NCvC-262-02/2024 seeking court confirmation. On 2 May 2024, a Consent Order was recorded before the High Court, jointly agreed by the MC and the Director of Lands and Mines, Selangor.

[7]The relevant portion, paragraph (f), states:

“All maintenance and sinking fund charges imposed by the Applicant prior to the orders in paragraphs (a) to (e) herein are valid and binding upon all parcel owners at ATC, their personal representatives, purchasers, heirs and permitted assigns.”

[8]Following the order, copies were delivered to each parcel owner’s letterbox and displayed on the notice board of ATC on 27 May 2024.

[9]The Plaintiffs subsequently filed the present action on 23 October 2024, almost five months after the date of service. They seek a declaration that paragraph (f) is unlawful, null, and void.

III. PLAINTIFFS’ ARGUMENTS

[10]The Plaintiffs advance four principal arguments:

(a)The Consent Order was never served on them in accordance with Order 62 rule 6(1) of the ROC 2012. No affidavit of service was filed; hence, the 30-day limitation under Order 42 rule 13 did not commence.

(b)The inclusion of paragraph (f) was fraudulent and not authorised by the parcel owners. They claim it was inserted unilaterally by the MC’s solicitors and therefore obtained by misrepresentation.

(c)The relief sought is equitable, and the Court should not strike out a claim that raises serious allegations of fraud without hearing evidence.

(d)This suit is distinct from BA-22NCvC-207-05/2024 (“Suit 207”) because it challenges the validity of a court order, not the quantum of charges. Therefore, it is not an abuse of process.

IV. DEFENDANTS’ ARGUMENTS

[11]The First Defendant, supported by the Second Defendant, raises the following contentions:

(a)Time-Bar: The Plaintiffs are barred by Order 42 rule 13 since they received (or were deemed to have received) the Consent Order on 27.5.2024 but filed this suit only on 23.10.2024 which was 4 months and 26 days late and without seeking an extension of time.

(b)Service Validity: The Consent Order was served via notice board and letterbox delivery, both accepted modes of communication under strata management law.

(c)Constructive Notice: Even if personal service is disputed, the Plaintiffs had constructive notice through their solicitors in Suit 207 as early as 19 July