PROFESSIONAL PRACTICE II

Name: Zulaaikha Binti Mohd Apandi

Matric No.: 1113280
Section: 9 (Sir Darbi)
PRANGIN MALL SDN BHD v TANG JOO MING & ANOR
[2013] 6 MLJ 753
Parties:
Prangin Mall Sdn Bhd is the appellant in this proceeding and Tang Joo Ming and Another
is the respondent who are purchasers of parcels in the mall.
Prior Proceeding:
In Sessions Court, the appellant had made a claim against the respondents for
maintenance and service charges. The learned Sessions Court judge decided in favor of
the appellant. Then, the respondent appealed on the decision to the High Court. However,
the proceeding was discontinued. The respondent, on the other hand, initiated an
originating summons seeking a declaration that the the judgment of the Sessions Court
was null and void. It was allowed by the High Court and the judgment was to be set
aside. Hence, the appellant appealed against the said decision of the High Court in this
proceeding.
Facts:
The appellant is claiming maintenance and services charges for a shopping complex
known as Prangin Mall from the respondents who were purchasers of parcels in the
mall. The mall was developed by Getaran Unggul Sdn Bhd (Developer). The developer
had entered into a sale and purchase agreement with purchasers of parcels in the mall in
which the developer obtained rights to collect maintenance charges from the purchasers.
Subsequently, an agreement was entered by the Developer and the appellant whereby
the appellant was appointed to maintain the mall and was granted the Developers rights
under the sale and purchase agreement to collect maintenance charges. However, the
respondents failed to pay the charges since 2004.
As a result, the appellant filed a suit against the respondents for the sum in the
Sessions Court. The respondents filed defence and counterclaimed on the ground of the

appellants failure to manage the mall and misuse of common properties in the mall.
Appellants application to strike out the defence and counterclaim was allowed by the
court and judgment was entered against the respondents for the sum.
The respondents had made an appeal to the High Court against the Sessions Court
decision. However, the appeal was discontinued. Instead, the respondents filed
originating summons at the High Court for a declaration that the judgment of the Sessions
Court was null and void. It was allowed by the High Court. The appellant appealed
against the decision.
Objectives:
The objective of the Appellant is to set aside the decision of the High Court and to
retained his rights to claim maintenance charges under the sale and purchase agreement. `
On the other hand, the respondents wishes for the court to affirm the High Court
decision on setting aside the judgment of the Sessions Court.
Theories of the Parties:
The appellant appealed on grounds that the High Court had erred for the following
reasons:
1) The contention raised by the respondents in the originating summon on the issue of
locus standi with regards to the appellants capacity to initiate suit against the respondents
in the Sessions Court should not be allowed on the principle of res judicata or issue
estoppel. This is because the respondents did not raise the issue during the proceedings at
Sessions Court.
2) The law did not prohibit the appellant from claiming the charges since it was due and
awed before formation of Joint Management Body (JMB) under the Building and
Common Property (Maintenance and Management) Act 2007.
Hence, the judgment of the Sessions Court was not illegal and should not have been set
aside as a nullity.
The respondents, on the other hand, contended that the judgment of Sessions Court
was illegal because the developer was prohibited from collecting charges upon formation

of the JMB. The respondents argued that the decision was illegal for being in breach of
Act 663 and liable to declared null and void. The judgment also liable to be set aside.
Issue:
The issue before the court is whether the appellant retained its right to claim the charges
incurred prior to the formation of the JMB?
Judgment:
The court agreed that the appellant have the right to collect maintenance charges
from the respondent as a contractual rights under the sale and purchase agreement. A
breach by the respondents to pay the charges under the agreement would entitle the
parties to remedies under the contract. Thus, to deny the developer right under the
agreement would denied the developer of any recourse.
The court also decided that the respondents ought to be estopped from raising the
issue of locus standi in their originating summon application by the principle of res
judicata.
Reasoning:
1) The court decided that the appellant have rights to collect maintenance charges under
the sale and purchase agreement.
The appellant's claim was made pursuant to the sale and purchase agreement made
between the respondents and the developer whereby the respondents were responsible for
payment of the maintenance charges of the mall. The appellant have been granted the
developer's right under an agreement with the developer. Hence, the appellant claimed the
charges due under the agreement against the respondents. The court have examined the
Building and Common Property (Maintenance and Management) Act 2007 and decided
that the role and duties of the appellant ceased upon formation of JMB but not before
that.

The duty of the developer to carry out maintenance and management of the mall

before the formation of is imposed by Section 5(4) of the Act. It is a legal duty imposed
on the developer to maintain the mall before the formation of JMB. However, the law is
silent on developers right to collect charges. Despite being silent on the rights, the

developer however is under an obligation under Section 16 of the Act to open a building
maintenance account (BMA account) with a bank. The developer shall maintain BMA
until the formation of the JMB. Section 17(1) of the Act states the monies to be deposited
into the account by the developer are all charges received from the purchasers in the
development area for the maintenance and management of the common property of the
development area; and all charges for the maintenance and management of the common
property to be paid by the developer. The developer's duty to maintain the mall ceased
upon the formation of JMB under Section 8 of the Act whereby it become the duty of the
JMB thereafter. The JMB is empowered to collect the maintenance charges from the
owners, in proportion to the allocated share units of their respective parcels.
Upon highlighting the above, the court made clear that the developer have a
contractual rights derived from the sale and purchase agreement to collect maintenance
charges from the respondents prior to formation of JMB. This contractual right remain
enforceable despite the obligation to manage and maintain the building ceased upon the
formation of the JMB. This is because the Act does not override or transfer that
contractual right to JMB. A breach by the respondents to pay the charges agreement
would entitle the parties to remedies under the contract. Thus to deny the developer its
contractual right would denied the developer of any recourse. The court also took judicial
notice that the sale and purchase agreement is a contract sanctioned by law pursuant to
Regulation 11 of the Housing Development (Control and Licensing) Regulations 1989.
To deny the developer a contractual right under a contract sanctioned by another law
would lead to disarray. It would also amount to an interference with freedom to contract.
2) The court also decided that the respondents ought to be estopped from raising the issue
of locus standi in their originating summon application by the principle of res judicata.
The judges decided that the respondents ought to be estopped from raising the issue of
locus standi in the originating summons application by the principle of res judicata. The
respondent tried to justify their failure to raise the issue on the ground that they were only
made aware of JMB one year later after proceeding in Sessions Court that is on 28
September 2009. This is highly improbable since the JMB had commenced collecting
maintenance charges from the owners of parcels in the mall since 28 September 2008.

The respondents failure to raise the issue at the Sessions Court has attracted the
application of res judicata.
For these reasons, the court held that there is no breach of statute by the sessions court
when judgment was entered for the appellant. The court allowed the appeal and set aside
the order by the High Court which declared the judgment of the Sessions Court is a
nullity.
Concurring/Dissenting: None
Comments:
The court have successfully identified the governing law on the administration of
common property and rights to collect maintenance charges under the Building and
Common Property (Maintenance and Management) Act 2007. The court also have
successfully analysed the provisions of the Act thoroughly. By doing so, the court have
made a just and fair decision towards the appellant. This is because the court have read
the Act as a whole and was able to uphold the appellants contractual rights to collect
maintenance charges due and owed by the respondents despite the establishment of JMB.
The court is able to appreciate and foresee that denial to the appellants right to collect the
charges under the sale and purchase agreement would deny appellant to any recourse in
order to claim the expenses incurred for maintaining the mall.