FAZARUDIN SUJAIRI BIN MD RADZI BADAN PENGURUSAN BERSAMA PANGSAPURI CASAMARIA

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR, DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA SAMAN PEMULA NO: WA-24NCVC-2294-12/2020 Dalam Perkara 13 Perlembagaan Persekutuan Dalam Perkara penundaan kereta PGQ 2345 keluar dari kawasan letak kereta Blok A Pangsapuri Casmaria Dalam Perkara Kaedah 9 dan Kaedah E 3 Kaedah-Kaedah Dalaman (House Rules) Badan Pengurusan Bersama Pangsapuri Casmaria ANTARA FAZARUDIN SUJAIRI BIN MD RADZI ...PLAINTIF DAN BADAN PENGURUSAN BERSAMA PANGSAPURI CASMARIA ..._.DEFENDAN JUDGMENT Introduction 1. The Plaintiff having a business at Pangsapuri Casmaria, Batu Caves (“the condominium’) filed an Originating Summons against the Defendant the managing body of the said condominium seeking various declarations from the court as well as asking for damages. The Brief Facts 2. |The main grievance of the Plaintiff against the Defendant is that the Defendant had purportedly towed away his car, a Savy bearing registration number PGQ 2345 from the parking lot of Block A of the condominium. 3.‘ The Plaintiff alleges that the towing away by the Defendant is illegal is therefore asking for damages and is also seeking declarations that the house rules of the condominium under which the towing was done, is against Article 13 of the Federal Constitution. The Plaintiff also contends that the house rules are not applicable at the place where he had parked his car as this is not a common area. The Issues 4. Looking at the facts the Court determined that the first issue is whether this is a proper case to be initiated by an Originating Summons? 5. The other issues are whether the reliefs including the declarations and damages asked for are proper and valid under the circumstances of the case? Originating Summons 6. Order 5 of the Rules of Court 2012 (“the Rules”) specifies the manner a civil claim should be commenced and states as follows: 1. Mode of beginning civil proceedings (O. 5 r. 1) Except as provided in these Rules and subject to Order 94, rule 2, proceedings shall.be commenced either by originating summons or by writ. [O. 5 r. 1 Subs. PU(A) 232/2012:r.3] | 2. Proceedings which shall be begun by writ (O. 5 r. 2) Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ. Proceedings which shall be begun by originating summons (0. 5 r. 3) Proceedings by which an application is to be made to the Court or a Judge thereof under any written law shall be begun by originating summons. Proceedings which may be begun by writ or originating summons (0. 5 r. 4) (1) Proceedings- (a) (b) in which the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law; or in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by _ originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 81 or for any other reason considers the proceedings are more appropriate to be begun by writ. 10. 11. From the above provision it is clear that where there are dispute of - facts then the proper mode to commence proceeding is by way of a Writ and not by way of Originating Summons. From the Court’s view, in this case the whole of Plaintiff's case is hinged on hearsay evidence. In his affidavit the Plaintiff states that it was the police who informed him that the Defendant had towed his car. The name of the police who informed him is not specified neither is there an affidavit of the police who informed him been filed. Clearly therefore the Plaintiff's Originating Summons is untenable as it is based on hearsay evidence. Further the fact of the towing is being disputed to by the Defendant. The Defendant also disputes that the place from where the car was towed from, is not a common area or that the house rules of the condominium does not apply. Apart from the hearsay evidence it is apparent thai there are dispute as to facts and therefore the proper mode to commence proceedings should be by way of Writ and not Originating Summons. Reliefs 12. It is clear that the Plaintiff's application for declaration that the house rules are against Article 13 of the Federal Constitution is misconceived. Article 13 of the Federal Constitution provides as follows: 13. 14. 15. (1) No person shall be deprived of property save in accordance with law. (2) No law shall provide for the compulsory acquisition or . use of property without adequate compensation. Nothing in the Plaintiffs affidavit suggests that his car has been confiscated or seized by the Defendant. The car has just been towed away. Further the Federal Constitution states that no person shall be deprived of property save in accordance with law. The house rules cannot be considered as law. The rules are made under the Strata Management Act 2013 which is the law. If anything the proper declaration should be for a declaration that the Strata Management Act 2013 is against Article 13 of the Federal Constitution. The Plaintiffs claim for general damages and any other damages is also untenable as the Plaintiff has not shown any evidence or put forward any facts to support allegations of any loss suffered as a result of the car being towed away. Conclusion 16. It can be concluded that the Plaintiffs mode of commencement is wrong. The Court has a discretion under the Rules to convert the Originating Summons to a Writ but in this case the Court chose not to do so as the reliefs asked by the Plaintiff are untenable and misconceived. 17. Based on the above factors the Court dismissed the Plaintiff's Originating Summons with cost of RM3,000. Dated: 20.5.2021 DATO’ HAJ! AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Fazarudin Sujairi Bin Md Radzi A-430 Casmaria Apartment Jalan Samudera Utama .—__—_Taman-Samudera - ; sence 68100 Batu Caves For the Defendant: Tetuan Nazrin & Izzat No. 21 jalan 12 Taman Batu 68100 batu Caves Selangor