BADAN PENGURUSAN BERSAMA COVA SUITES PESURUHJAYA BANGUNAN, MAJLIS BANDARAYA PETALING JAYA

BA-25-38-07/2023 Kand. 68 10/09/2024 15:44:08 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-38-07/2023 Dalam perkara mengenai permohonan untuk semakan kehakiman di bawah Aturan 53 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara mengenai Tribunal Pengurusan Strata Tuntutan No: TPS/W- 0616-02/2022 antara Wong Li Yoong (Pihak Yang Menuntut) dan Award Selepas Pendengaran yang diberikan pada 7 haribulan Disember 2022; Dan Dalam perkara keputusan Pesuruhjaya Bangunan melalui surat kepada “Pemilik- Pemilik Petak Badan Pengurusan Cova Suites” bertarikh 21.6.2023; Dan Dalam perkara Seksyen 4, perenggan 11, Jadual Kedua Akta Pengurusan Strata 2013. ANTARA BADAN PENGURUSAN BERSAMA COVA SUITES (No. Pendaftaran: 0228) …PEMOHON 1 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal DAN PESURUHJAYA BANGUNAN, MAJLIS BANDARAYA PETALING JAYA …RESPONDEN JUDGMENT [1] This application for judicial review by the applicant, Badan Pengurusan Bersama Cova Suites seeks to challenge the respondent’s decision vide a notice dated 21 June 2023 to authorize in writing any person to convene an Extraordinary General Meeting (“EGM”) for the purposes of electing new committee members and to determine the number of the committee members. Relief Sought [2] In this application for judicial review, the applicant sought the following reliefs as reproduced from Enclosure 1: “(i) Pengisytiharan bahawa keputusan tersebut yang dibuat melalui notis responden bertarikh 21.6.2023 adalah terbatal dan tidak sah kerana menyalahi undang-undang, tidak rasional dan ketidakwajaran prosedur; (ii) Perintah certiorari untuk membatalkan keputusan tersebut yang dibuat melalui notis responden bertarikh 21.6.2023; 2 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal (iii) Perintah pelarangan untuk melarang responden daripada menggunakan kuasanya di bawah Jadual Kedua, Akta Pengurusan Strata 2013 untuk memaksa pemohon atau memberi kuasa kepada sesiapa sahaja untuk mengadakan EGM sementara menunggu pendengaran dan pelupusan permohonan semakan kehakiman di Mahkamah Tinggi Shah Alam No. BA-25-81-12/2022, permohonan interlokutori dan/atau sebarang rayuan berkaitan dengannya; (iv) Perintah bagi ganti rugi untuk ditaksirkan; (v) Kos permohonan untuk kebenaran dan permohonan substantif untuk semakan kehakiman dibayar oleh responden kepada pemohon; dan/atau (vi) Apa-apa relif lain yang difikirkan sesuai dan manfaat oleh mahkamah yang mulia ini.” Background Facts [3] The facts of this application are as garnered from documents filed by parties. [4] The applicant is the Joint Management Body (“JMB”) of a development known as Cova Suites (“the Development Area”) established under the Strata Management Act 2013 (“SMA 2013”). [5] The respondent is the Commissioner of Buildings for Majlis Bandaraya Petaling Jaya (“COB”) appointed under subsection 4(1) of the SMA 2013 and has such powers as are conferred by the SMA 2013. 3 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [6] On 26 August 2020, the respondent received written requisitions from 141 parcel owners in the Development Area requesting the applicant to call an EGM. [7] On 2 September 2020, the respondent received an email from the chairperson of the applicant, Dr. Ang Hooi Bee, inquiring whether parcel owners with arrears could submit a written requisition for an EGM under subparagraph 11(2)(a) of SMA 2013. [8] In response, the respondent issued a letter on 15 September 2020, stating that: (a) all parcel owners, including those with arrears, have the right to requisition the JMB to call an EGM; (b) however, any parcel owners who wish to be part of the quorum must clear their arrears at least 7 days before the EGM, as per subparagraph 21(2), Second Schedule of SMA 2013; (c) the applicant must convene the EGM within 6 weeks of receiving the requisitions, as specified in subparagraph 11(4)(a), Second Schedule of SMA 2013; (d) the written requisitions were received by the respondent on 26 August 2020; and (e) the applicant is required to act accordingly and respond to the respondent within 14 days from 15 September 2020. 4 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [9] On 17 September 2020, the applicant sent a letter to the respondent indicating: (a) there were ongoing court cases involving civil fraud related to the applicant; (b) the applicant suspected that some requisitions or signatures were forged; (c) the applicant requested an exemption from convening the EGM until the court cases were resolved. [10] On 23 September 2020, the applicant sent another letter stating: (a) the respondent should not accept requisitions from parcel owners with arrears; (b) defaulters’ rights are suspended until their arrears are settled; (c) convening an EGM would not address the arrears issue; (d) the chairperson’s role is to enforce the strata regime and determine maintenance charges; (e) 68 requisitionists were defaulters, including 9 former joint management committee members; (f) less than 50% of the requisitionists were eligible to requisition an EGM, failing to meet the quorum; (g) there were suspicions of forgery in some requisition forms; 5 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal (h) there were 4 pending court cases involving civil fraud related to the applicant and its officials; and (i) the applicant sought an exemption from convening the EGM. [11] In reply to the applicant’s letters from 15 September and 23 September 2020, the respondent issued a letter on 19 October 2020 stating: (a) all parcel owners, including those with arrears, have the right to requisition an EGM; and (b) the respondent requested copies of the police reports and court documents related to the alleged cases. [12] The applicant did not provide the requested documents but explained the nature of the cases in a letter dated 5 November 2020. Despite this, the respondent advised on 7 December 2020, that the applicant should seek a court injunction to postpone the EGM until the court cases were resolved. The applicant did not pursue an injunction. [13] On 7 December 2022, the Strata Management Tribunal, in Tribunal Claim No. TPS/B-0616-2/2022 filed by Wong Li Yoong, issued an award ordering the applicant to convene its 11th AGM within 30 days, or the respondent would be authorized to do so (“the Tribunal Award”). 6 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [14] As the applicant failed to convene an EGM following the requisitions, the respondent on 21 June 2023 issued a notice stating: (a) the respondent would authorize someone to convene an EGM; (b) parcel owners in the Development Area were invited to conduct the EGM; and (c) If no parcel owner volunteered, the respondent would appoint a managing agent to conduct the EGM at the applicant’s expense (“the Notice dated 21.6.2023”). [15] Dissatisfied with this notice, the applicant, in a letter dated 22 June 2023 argued that: (a) the respondent had no authority under SMA 2013 to require an AGM within 30 days of the Tribunal Award; (b) the Tribunal Award was being challenged in a judicial review application; and (c) the respondent’s reliance on subparagraph 11(5), Second Schedule of SMA 2013 was unfounded. [16] On 23 June 2023, the applicant’s solicitors issued a letter demanding the withdrawal of the Notice dated 21 June 2023. The respondent replied on 28 June 2023 clarifying: 7 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) the respondent had previously stated that parcel owners, even those in arrears, could requisition an EGM; (b) the respondent had no authority to grant an exemption or adjourn the AGM/EGM; (c) the last AGM was held on 2 November 2019; (d) a reminder was issued on 5 November 2021 for an AGM; (e) the applicant failed to convene an EGM within the required 6 weeks after receiving requisitions; (f) the Notice was issued under Subparagraph 11(5)(b), Second Schedule of SMA 2013; and (g) the Notice remains effective, and removing it would contravene section 186 of the Penal Code. [17] On 30 June 2023, the applicant responded claiming: (a) the respondent erred in directing an EGM where: (i) the validity of signatures was questioned; (ii) parcel owners failed to clarify signatures; (iii) no EGM should be convened; (b) an application to compel the AGM/EGM was dismissed by the High Court on 31 December 2021; and 8 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) an AGM/EGM should only be convened after the resolution of Civil Suit No. BA-22NCVC-333-08/2021. [18] The respondent replied on 17 July 2023 stating: (a) the applicant misinterpreted the respondent’s 19 October 2020 letter; (b) the respondent only sought clarification of the requisitions received on 26 August 2020; and (c) the Notice remains effective regardless of the ongoing Civil Suit No. BA-22NCVC-333-08/2021. [19] The applicant filed this judicial review to challenge the validity of the respondent’s decision to authorize someone to convene an EGM as outlined in the Notice dated 21 June 2023. Grounds for Judicial Review [20] The applicant put forth the following grounds in this application for judicial review: (i) illegality – ultra vires; and (ii) irrationality/unreasonableness. 9 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal Principles relating to Judicial Review [21] The principles surrounding the application for judicial review are trite. The court hearing application for judicial review are allowed to scrutinize not only the decision-making process but also for substance, as to whether they are tainted by illegality, irrationality or Wednesbury unreasonableness, procedural impropriety and also proportionality. [22] These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his 10 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [23] Notwithstanding the foregoing approach, it has also been decided by the Federal Court case of Ranjut Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn. Bhd. [2010] 8 CLJ 629 that, only in the most appropriate of cases the Rama Chandran (supra) approach is 11 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal applicable. Cases involving issue of public policy, national interest, public safety or national security are not amenable to the approach taken in Rama Chandran (supra). Analysis and Findings [24] Based on the principles relating to judicial review, this court will consider this application for judicial review. Illegality – ultra vires [25] The applicant submitted that the respondent may exercise its power under paragraph 11(5), Second Schedule of the SMA 2013 to appoint someone to hold an EGM when the committee has not been properly constituted; or if the appellant did not hold the EGM within 6 weeks of the owners’ requisition or the respondent’s written direction. [26] In this regard, paragraph 11(5), Second Schedule of the SMA 2013 reads: “(5) if- (a) the Commissioner is satisfied that the management committee has not been properly constituted; or (b) the management committee fails to convene the extraordinary general meeting within the time period stipulated in subparagraph (4). 12 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal The Commissioner may authorize in writing any person to convene an extraordinary general meeting for such purposes as may be approved by the Commissioner.” [Emphasis added] [27] Paragraph 11(5)(b) makes reference to paragraph 11(4) which reads: “(4) The extraordinary general meeting shall be held as soon as practicable but in any case not later than six weeks after (a) the requisition has been deposited at the registered office of the management corporation; or (b) receiving a direction in writing from the Commissioner under subparagraph (2)(b).” [Emphasis added] [28] Paragraph 11(4)(b) in turn refers to paragraph 11(2)(b) which states: “(b) shall convene an extraordinary general meeting upon receiving a direction in writing from the Commissioner for the transaction of such business as the Commissioner may direct; and …..” [Emphasis added] 13 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [29] The applicant argued that the respondent’s exercise of power under paragraph 11(5), Second Schedule of the SMA 2013 was ultra vires as the respondent in its notice dated 21 June 2023 did not state that the committee of the applicant had not been properly constituted. It was further submitted that the applicant did not state any owners’ requisition in its notice dated 21 June 2023 and did not issue any prior written notice directing the applicant to hold an EGM. [30] These failures to fulfil the conditions in paragraph 11(5), Second Schedule of the SMA 2013 it was argued resulted in the exercise of the respondent’s power being invalid. [31] According to the applicant, the respondent initially relied on the owners' requisition in its decision dated 26 June 2023, after the appellant objected on 22 June 2023, claiming the respondent lacked authority under paragraph 11(5), Second Schedule of the SMA 2013 based on the Tribunal Award. In a later decision dated 23 August 2023, the respondent used the owners' requisition from 26 August 2022, to appoint Tai Yuk Ling to hold the EGM. Since the respondent changed its position, it cannot use the same grounds in the Impugned Decision. Therefore, the doctrine of estoppel should invalidate the respondent’s decision based on the owners’ requisition in the Impugned Decision. [32] As such, the applicant submitted that the respondent’s exercise of its power was ultra vires paragraph 11(5), Second Schedule of the SMA 2013 as follows: (a) in the narrow sense because the respondent did not fulfil any of the conditions as set out in sub paragraph (a) and (b). 14 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) in the broader sense because the respondent was estopped from relying on the owners’ requisition in the Impugned Decision. [33] Pertaining to this ground, the respondent is appointed under subsection 4(1) of the SMA 2013. “4. (1) The State Authority may, in respect of a local authority area or any other area, appoint an officer to be known as the Commissioner of Buildings and such number of Deputy Commissioners of Buildings and other officers as may be necessary for the purpose of administering and carrying out the provisions of this Act.” [34] Subsection 4(3) of the SMA 2013 reads: “4. (3) Subject to any general or special direction of the State Authority which is not inconsistent with the provisions of this Act, the Commissioner shall have charge of the administration of this Act and may perform such duties as are imposed and may exercise such powers as are conferred upon him by this Act or any other written law.” [Emphasis added] [35] This court is of the considered view that the COB had acted within the confines of the provisions of the SMA 2013. The COB is empowered to order the applicant to convene an EGM for the 15 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal purposes of electing new committee members and to determine the number of the committee members. [36] In coming to this decision, the applicant argued that the respondent’s exercise of power under paragraph 11(5), Second Schedule of the SMA 2013 was ultra vires as the respondent in its notice dated 21 June 2023 did not state that the committee of the applicant had not been properly constituted. It was further submitted that the applicant did not state any owners’ requisition in its notice dated 21 June 2023 and did not issue any prior written notice directing the applicant to hold an EGM. [37] Paragraph 11(5), Second Schedule of the SMA 2013 in the view of this court, allows the COB to authorize in writing any person to convene an EGM. The respondent, in the view of this court, has carried out his duties as per the provisions of paragraph 11(5), Second Schedule of the SMA 2013. There is no issue of ultra vires, in the view of this court. There is nothing illegal in the notice by the COB. Irrationality/unreasonableness [38] It was argued by the applicant that the respondent ought to have knowledge. [39] The applicant contended that the respondent was aware or should have been aware of the ongoing Tribunal Award challenge in JR 81 and the Suit 333, which involves the reliability of past audited accounts and the dismissal of an injunction application to compel an AGM/EGM. These pending legal issues make it impossible for the 16 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal applicant to hold an AGM or EGM, as accounts consideration is mandatory under paragraph 10(1), Second Schedule of the SMA 2013. Therefore, the respondent’s insistence on compelling the EGM contradicts rationality or Wednesbury reasonableness. [40] Reference was made to the Federal Court case of Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541 is instructive. In the dissenting judgment of Richard Malanjum CJSS (as His Lordship then was) had this to say: “[176] In other words, a decision may be set aside for unreasonableness The difficulty of course, is to know when a decision may be said to be unreasonable. [177] The celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 needs no introduction. Lord Greene MR clearly set out what is termed as the Wednesbury test — namely that a court may set aside a decision for unreasonableness only when the authority has come to a conclusion ‘so unreasonable that no reasonable authority could ever have come to it’. … [186] Possibly, the turning point came about when the Federal Court decided in Merdeka University Berhad v Government of Malaysia [1982] 2 MLJ 243 (‘the Merdeka University’s case’), that ‘it is insufficient if the Minister thought that he had reasonable grounds to be satisfied that the appellant had acted in a manner prejudicial to public order. The question that a court must ask itself is whether a reasonable Minister appraised of the material set out in the statement of 17 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal facts would objectively be satisfied that the actions of the appellant were prejudicial to public order’. In other words, this was the beginning of the application of the ‘objective’ test. [187] It is clear that courts from then on were prepared to ascertain whether the satisfaction of the Minister has been properly exercised in law. [188] It is appropriate at this stage to cite the antiquated case of Ex parte Sim Soo Koon [1915] 13 SSLR 57 as a reminder of what ‘discretion’ means Earnshaw J, referred to Sharpe v Wakefield [1891] AC 173, which held that ‘discretion means, when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself’. [189] This salutary principle appeared to be resurrected in the cases after Merdeka University. [190] If the oft-quoted reminder of Raja Azlan Shah FCJ in Sri Lempah can be rephrased, it is a truism that ‘every legal power has legal limits, for otherwise there is dictatorship’.” [Emphasis added] 18 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [41] The applicant argued that the respondent: (a) in the notice dated 21 June 2023 forming its Impugned Decision relied on the applicant’s failure to submit audited reports and the applicant’s failure to comply with the Tribunal Award; (b) however, after the applicant’s complaint, the respondent suddenly changed its grounds to the owner’s requisition; and (c) the respondent relied on the same ground i.e. the owner’s requisition, in its new decision vide its notice dated 23 August 2023 to appoint Tai Yuk Ling to hold the EGM. [42] It was submitted by the applicant that the respondent’s decision was confusing as to ground the respondent relied its decision i.e. whether it was the Tribunal Award or the owner’s requisition. [43] It was further submitted that, furthermore, there is no evidence of the current committee abusing the residents’ money and the committee insisting in retaining control over Cova Suites Condominium for their personal gain. [44] In reply the respondent argued that the applicant’s submission is misconceived. [45] The applicant argued that the respondent should not have acted based on the written requisitions of the parcel owners which the applicant argued, were invalid due to among others, arrears not paid up by them and other reasons set out in the applicant’s letter dated 23 February 2020. The respondent submitted this is misconceived. 19 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [46] In Yu Kuan Huat v. Pesuruhjaya Bangunan Dewan Bandaraya Kuala Lumpur [2023] CLJU 265 (“Yu Kuan Huat”), the court held that it is not the duty of COB to investigate whether each and every provision of the Second Schedule relating to the convening of the general meeting is complied with. “[26] There is nothing in subparagraph 7(8) of the Second Schedule that imposes a duty on the COB to investigate the validity of the general meeting or election of the members of the management committee… [28] ... The COB is certainly not under a duty to investigate whether each and every provision of the Second Schedule relating to the convening of the general meeting is complied with when furnished with stipulated the documents after a general meeting. In essence the COB merely acknowledged what was verified in the documents by the MC of Lot 163 through its management committee.” [47] In Yu Kuan Huat (supra), the applicant for judicial review sought an order against the COB’s decision, claiming that the second AGM violated the Second Schedule. This claim was based on a letter from the COB, which confirmed receipt of documentation from the MC of Lot 163 after the second AGM, intended to verify the elected members of the management committee. The court ruled that it was not the COB’s responsibility to ensure compliance with every provision of the Second Schedule concerning the convening of the general meeting. [48] The court in Yu Kuan Huat (supra) also determined that there was no decision by the COB to review, as the COB had not made a 20 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal decision as alleged by the applicant. Instead, the proper forum for such disputes was the Strata Management Tribunal, which was specifically established to handle these matters, rather than the High Court through judicial review [49] The question is whether the COB should probe further into the written requisition. Paragraph 11(5)(b), Second Schedule of the SMA 2013 vests the authority with the COB to exercised its powers. In that sense, this court is of the considered view there is no need or no requirement for the COB to probe further with respect to whether the written requisition made by the proprietors are valid before exercising its power to authorize in writing any person to convene an EGM pursuant to paragraph 11(5)(b), Second Schedule of the SMA 2013. [50] Prior to exercising his powers, there is no requirement in the SMA 2013 for the COB to further probation and/or investigation to be carried out. The COB can exercise its powers under paragraph 11(5)(b), Second Schedule of the SMA 2013 given that it is explicitly provided for by the Act. [51] In the case of Muhamad Nazri bin Muhamad v. JMB Menara Rajawali & Anor [2019] 10 CLJ 547, the Court of Appeal held that it is not the duty of the court to read words into a statute when it is clear such as the SMA 2013. [52] To reiterate, the facts clearly show the applicant did not file audited accounts of the AGM with the respondent. 21 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [53] In this regard, paragraph 7(8)(a), Second Schedule of the SMA 2013 reads: “Keeping of records and accounts of management corporation 7. (8) The management committee shall, within twenty-eight days of a general meeting, file with the Commissioner certified true copies of- (a) the audited accounts of the management corporation together with the auditor’s report which has been presented to the general meeting;” [54] The committee is required to submit certified true copies of the audited accounts and the auditor’s report presented at the general meeting to the COB within 28 days. [55] Additionally, subsection 22(2) of the SMA 2013 stipulates that the provisions of the Second Schedule apply to both the joint management body and the joint management committee. [56] Paragraph 7(10), Second Schedule of the SMA 2013 reads: “Keeping of records and accounts of management corporation 7. (10) The accounts of the management corporation shall be audited annually by an approved company auditor appointed by the management committee.” [57] The management corporation has a duty to ensure that the accounts of the management corporation be audited annually by an approved company auditor appointed by the management corporation. 22 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [58] It is an undisputed fact that the applicant has failed to comply with the Tribunal Award. In this regard, the Tribunal Award clearly ordered that the applicant is to convene the 11th AGM of Cova Suites within 30 days from the date of the order of the Award which is on or before 6 January 2023 which the applicant has failed to do so. [59] It is undisputed that the applicant failed to comply with the Tribunal Award, which required the convening of the 11th AGM of Cova Suites by 6 January 2023. The applicant argued that compliance was delayed due to the ongoing Judicial Review No. BA-25-81- 12/2022 (“JR 81”). However, there is no evidence presented to this court showing that the applicant’s office bearers have made any effort to comply with the Tribunal Award. [60] Non-compliance with a tribunal award is a criminal offence. This is explicitly provided for under section 123 of the SMA 2013 which provides: “Criminal penalty for failure to comply with award 123. Any person who fails to comply with an award made by the Tribunal commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both, and in the case of a continuing offence, to a further fine not exceeding five thousand ringgit for every day or part thereof during which the offence continues after conviction.” 23 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [61] This court is of the considered view that fact that the Tribunal Award is currently being subject to judicial review is not an excuse or ground to disregard the Tribunal Award. This is especially so when stay has not been granted. [62] In Ann Joo Steel Bhd v. Pengarah Tanah dan Galian Negeri Pulau Pinang & Anor and another appeal [2020] 1 MLJ 689, the Federal Court highlighted the importance of the sanctity of the court order and held that a court order irregular though it may be, it must be respected: “[64] In the judgment of Mohd Azmi Kamaruddin FCJ in Badiaddin His Lordship observed that a person affected by the order is entitled to apply to have it set aside. Gopal Sri Ram JCA in the same case echoed similar observation where in the words of His Lordship: “I take it to be well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside. It is wrong to assume that such an order may only be corrected on appeal.” [Emphasis added] 24 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal [65] The fundamental principle which is pivotal in all these decisions, is that the sanctity of a court order must at all times be observed, and a party bound by that order of a court has no business deciding for himself that a binding order of a court need not be observed because in his view it is not valid. If court orders are allowed to be ignored with impunity, it will ruin the authority of judicial order, which is the core of all judicial systems. In line with our jurisprudence, court orders must be respected and complied with. There will be no end to litigation if parties are allowed to determine for themselves that any order of the court would be observed or otherwise.” [Emphasis added] Conclusion [63] This court is satisfied there is no illegality, irrationality and/or procedural impropriety in the notice dated 21 June 2023. Hence, this judicial review is therefore dismissed. Costs of RM4,000.00 to be paid to the respondent by the applicant, subject to allocator. Date: 10 September 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 25 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For The Applicant: Bernard Scott, Jonas Lee Fook Khong Tetuan Sault Scott & Co. Advocates & Solicitors No. 7-3, Jalan PJU 5/10, Dataran Sunway Kota Damansara, 47810 Petaling Jaya, Selangor. +6 03 6140 7940 sault.scott@yahoo.com For the Respondents: Lai Chee Hoe, Ooi Xin Yi Tetuan Chee Hoe & Associates. Advocates & Solicitors Suite D-06-06 Plaza Mont Kiara, No. 2, Jalan Kiara, Mont Kiara, 50480 Kuala Lumpur. +6 03 6203 2366 info@cheehoe.com 26 BA-25-38-07/2023 S/N VVfZUBoGA0e9AwomZqj0jg **Note : Serial number will be used to verify the originality of this document via eFILING portal