The retrospective application of statutes cannot override existing contractual rights without clear legislative intent.

Appeal 1326

[1] This appeal raises a short but an important and interesting point relating to the manner as to how provisions in a statute should be construed. The statute in question is the Building and Common Property (Maintenance and Management) Act 2007 ("BCPA 2007").

[2] The relevant factual context in which this dispute is premised on is simply this. The appellant was the developer of Kelana Square which comprised of commercial units and car parks. The respondent is the Joint Management Body of Kelana Square formed under the BCPA 2007.

[3] Upon the forming of the respondent, the appellant handed over to the same various facilities of the development to the respondent save and except the car parks. The reason for the exclusion of the car parks was that they had been excluded from the common property through the sales and purchase agreements of the commercial units in Kelana Square entered between the purchasers and the appellant around 1995. The appellant was then able to rent the car parks out back to the purchasers or third parties for a fee.

[4] The relevant provision of the sales and purchase agreements excluding the car parks is cl. 5.08 which reads as follows:

5.08 Retention of Car Park, Food Court and Deli

Notwithstanding the sale of the Unit to the Purchaser and the sale of the parcels of office and/or retail units comprised in the Shopoffice Project, the Purchaser agrees and confirms that all surface car parks and covered car parks (including the basement parking and any other parking) in the Shopoffice Project and the food Court and deli situated on the ground level and plaza level respectively shall belong to the Vendor and shall not be included into the sale of the Unit herewith whether as an accessory unit or Common Property.

[5] When BCPA 2007 came into force on 12 April 2007, s 2 defined "common property" as this:

"common property", in relation to a development area, means so much of the development area as is not comprised in any parcel, such as the structural elements of the building, stairs, stairways, fire escapes, entrances and exits, corridors, lobbies, fixtures, and fittings, lifts, refuse shutes, refuse bins, compound drains, water tanks, sewers, pipes, wires, cables and ducts that serve more than one parcel, the exterior of all common parts of the building, playing fields and recreational area, driveways, car parks, and parking areas, open spaces, landscape areas, walls and fences, and all other facilities and installations and any part of the land used or capable of being used or enjoyed in common by all the occupiers of the building;

Parliament thus had seen it fit to make car parks in any development with common facilities as common property.

[6] Contrast to the aforesaid definition is the definition contained in the sales and purchase agreements entered between the appellant and the purchasers which prescribed as follows:

Common Property

means, in relation to the Shopoffice Project, so much of the area in the Shopoffice Project as is not comprised in any Unit (including any accessory Unit) or any provisional blocks as shown in the approved Building Plans, including but not limited to such facilities and services stipulated in the Fifth Schedule hereto which are reserved for the use and enjoyment of the purchasers of the Units comprised in the Shopoffice Project, but excluding:

(a) all surface car parks demarcated or constructed in or about the Shopoffice Project and all covered car parks (including the basement car parks and any other car parks); and

(b) the food Court and