BADAN PENGURUSAN BERSAMA SUMMERTON MIDAS CERIA SDN BHD (NO. SYARIKAT: 922405-K)

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG GUAMAN SIVIL NO. PA-22NCVC-148-06/2019 ANTARA BADAN PENGURUSAN BERSAMA SUMMERTON ... PLAINTIF DAN MIDAS CERIA SDN BHD ... DEFENDAN (NO. SYARIKAT: 922405-K) GROUNDS OF JUDGMENT Application [1] This is the Defendant’s application to strike out the Plaintiff's Statement of Claim pursuant to Order 18 Rule 19(1)(a) and/or (1)(b), (c) & (d) Rules of Court 2012: “19. Striking out pleadings and endorsements (O. 18 r. 19) (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that- (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, 3 [2] The principles for applying Order 18 Rule 19 Rules of Court 2012 are laid down by the Supreme Court in Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (see AG of Duchy of Lancaster v L & NW Rly Co 8).” [3] | heard and allowed the application. These are the grounds for my decision. Background [4] The Plaintiff is the Joint Management Body for the condominium and commercial units known as “Summerton Bayan Indah’. [5] The Defendant was the developer of the project known as “Summerton Bayan Indah’ in Penang. [6] [7] [8] [9] The Defendant obtained approvals from Majlis Perbandaran Pulau Pinang for the Kebenaran Merancang dated 26.07.2011, Pelan Pembangunan dated 14.12.2011 and Pindaan Pelan Pembangunan dated 26.02.2013 (“Building Plan’) and the Permit bagi Pindaan Pelan Bangunan (“Planning Permit’) The Plaintiff is, in particular, concerned with the podium section of the project that is described in the Building Plan and Planning Permit as a 4-storey and 1 basement building comprising of 54 units of offices/shops. The project was completed and the Majlis Perbandaran Pulau Pinang issued the Certificate of Completion and Compliance on 08.09.2014. The Defendant handed over the management of Summerton Bayan Indah to the Plaintiff on 30.09.2015. [10] The Plaintiff then filed this suit against the Defendant on 18.06.2019. The Plaintiff's grouse is that the Defendant had built 56 units of shops/offices instead of 54 units, as described in the heading of the approved Building Plan and Planning Permit. [11] The Plaintiff alleges that the 2 additional units, over and above the 54 units, are identified as Plot 55 and Plot 56 on Floor 3A. These 2 units incidentally have been sold to private owners and are not defendants in this proceeding. [12] They say that this is a breach of the Town and Country Planning Act 1976 and Uniform Building By-laws 1984, and the legal implication of which is as prayed for in the statement of claim, that is: (a) A declaration that Plot 55 and Plot 56 are not build in accordance to the approved building plans; and (b) A declaration that Plot 55 and Plot 56 and their respective accessory car park parcels are common property owned by the Plaintiff and under the control and management of the Plaintiff. Grounds for Application [13] | allowed the application to strike out the statement of claim on the following grounds. No Cause of Action [14] First, the Plaintiff does not have a cause of action against the Defendant. The Plaintiff's grouse pertained to whether the building was built according to the Building Plan and Planning Permit. This ts purely a matter between the administrating authorities, Majlis Perbandaran Pulau Pinang, and the Defendant. If there is any enforcement for non-compliance, it falls within the purview of Majlis Perbandaran Pulau Pinang. [15] The Plaintiff has no locus standi to usurp the role of Majlis Perbandaran Pulau Pinang in matters pertaining to the Building Plan, Planning Permit and Certificate of Completion and Compliance. [16] There is simply is no known cause of action based on the Plaintiff's pleaded case. The closest thing that comes to my mind is the cause of action of tort of breach of statutory duty. This cause of action is extremely limited and is confined to situations where the statute expressly gives the harmed party the right to sue a tort-feasor for breaching a statutory duty which breach caused the harm — that is not the case here. Substance of Plans [17] Second, the Plaintiff is misconceived to allege that there are 2 units built illegally. First, the reference to 54 units on the heading of the Building Plan and Planning Permit is just a label. Second, there was good reason for the reference to 54 units. The Defendant has explained that it is headed as 54 units because of the 56 units built, there are 2 units that were duplexes, one above the other. They were counted as 2 instead of 4 units. [18] Even then, this is of secondary importance. What is more important is that Plot 55 and Plot 56 clearly appear on Floor 3A of the Building Plan. It is not as though they were not on the Building Plan and the Defendant went ahead to build them - they were always there. There is, therefore, no basis for the Plaintiff to say that Plot 55 and Plot 56 were illegally built. [19] The High Court in Phang Shyue Ming v. Couture Homes Sdn Bhd [2016] 1 LNS 1596 held that: [18]... | am in the agreement with the Defendant that the re- numbering or re-designation of LG-29 is just for identification purposes and of no issue. For this the Defendant refers to the case of Malayan Banking Bhd v. PK Rajamani [1994] 2 CLJ 25, [1994] 1 MLJ 405, 410 where the Supreme Court held: "In our view, the correct approach would be to look at the substance, not just the label which had been attached to the letter. The law will always look beyond the terminology of the document to the actual facts of the situation and it is no longer a question of words but substance (see Woo Yew Chee v. Yong Yong Hoo; and Addiscombe Garden Estates Ltd v. Crabbe). " The Defendant also refers to the case of Bekalan Sains P&C Sdn Bhd v. Bank Bumiputra Malaysia Sdn Bhd [2010] 1 LNS 206; [2010] 1 MLJ 329, 339 where it was held that: "It must be emphasised that the court is not bound by the labels used by the parties. The law requires the court to assess the true meaning and effect of the transactions contemplated by the parties." [20] The Certificate of Completion and Compliance evincing that the building was built according to plans had been duly issued. [21] The High Court in Pua Yu Len v. Bandar Eco Setia Sdn Bhd [2018] 1 LNS 821, held that: “161] CCC issued for the property on 22.5.2013 is prima facie evidence that the property was built in a good and workmanlike manner and has conformed with the approved building plans and the property is safe for occupation. In Allan Kinsey & Anor v. Sunway Rahman Putra Sdn Bhd & Anor, Dekon Sdn Bhd (Third Party) [2015] 4 CLJ 624, it was held at page 630 that the issuance of the certificate of fitness for occupation will point to compliance and satisfaction that the property is built in a good and workmanlike manner in accordance with the fourth schedule and approved plans.” Remedy Sought Nothing to do with Defendant but against Third Parties [22] Third, there is a disjoint between the pleaded case and the remedy sought. The remedies sought are not directed at the Defendant. Instead, the remedies sought are seeking to deprive the owners of Plot 55 and Plot 56, who are not even defendants in this proceeding, of their real property. [23] In other words, the Plaintiffs claim must fail because there is no prayer for a remedy against the Defendant; and the prayer must similarly fail because there is no pleaded case against the owners of Plot 55 and Plot 56. [24] The Court of Appeal in Abdul Rahim Aki v. Krubong Industrial Park (Melaka) Sdn Bhd & Ors. [1995] 4 CLJ 551 at Held [1] read as follows: [1] In cases where a declaration is sought for, except in very exceptional circumstances, all persons interested should be made parties, whether by representation or otherwise. No such special circumstances exist in the instant case. The failure to add Thomas as a codefendant to the main action and the failure to add Tunas Murni as a respondent to the appeal were serious impediments that stood in the way of the appellant's success before this Court. Clearly, the success or failure of the appellant's case depends very much upon whether he can make out the case alleged against Thomas. The non-joinder of Thomas must therefore be fatal to the action.” Decision [25] | allowed the Defendant's application for the above reasons. Dated 1° October 2020 Ve WONG HOK CHONG Judicial Commissioner High Court of Malaya, Penang PEGUAM Peguamcara Plaintif: Tetuan Gibb & Co. Peguambela dan Peguamcara Suite 7A & 7B, 7" Floor, Wisma MTT, No. 26, Weld Quay, 10300 Pulau Pinang Peguamcara Defendan: Tetuan Wong & Loh Peguambela & Peguamcara No. 22, Jalan Servis, Off Jalan Burmah, 10050 PULAU PINANG