1. ) 3 TWO SQUARE SDN BHD (No. Syarikat: 617273 – X) 2. ) PERBADANAN PENGURUSAN 3 TWO SQUARE 1. ) PERBADANAN PENGURUSAN 3 TWO SQUARE 2. ) 3 TWO SQUARE SDN BHD (No. Syarikat: 617273 – X)

1. ) 3 TWO SQUARE SDN BHD (No. Syarikat: 617273 – X) 2. ) PERBADANAN PENGURUSAN 3 TWO SQUARE 1. ) PERBADANAN PENGURUSAN 3 TWO SQUARE 2. ) 3 TWO SQUARE SDN BHD (No. Syarikat: 617273 – X)

The Court held that (1) SMA s28(2) vested the JMB’s rights in the management corporation so plaintiff had locus to sue for pre-incorporation claims; (2) the developer’s role as managing agent was unlawful under BCPA s26 so management fees collected without lawful appointment must be refunded for the period where no valid appointment existed; (3) the car park parcels were used commercially and not as accessory parcels to the Penthouse so the management corporation could lawfully charge management and sinking fund in respect of those car parks; (4) plaintiff failed to prove an enforceable tenancy for the office on common property hence rental claims (except vacant possession) were set...

Citation
B-02(IM) (NCVC)-530-03/2017, B-02(NCVC)(W)-2149-10/2017 & B-02(NCVC)(W)-2155-10/2017 (Mahkamah Rayuan)
Parties
Appellant/defendant: 3 Two Square Sdn Bhd; Respondent/plaintiff: Perbadanan Pengurusan 3 Two Square
Court
IM
Jurisdiction
Malaysia
Judgment Date
1 January 1900
Case Number
B-02(IM) (NCVC)-530-03/2017, B-02(NCVC)(W)-2149-10/2017 & B-02(NCVC)(W)-2155-10/2017 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) / Final Judgment on Appeals
Outcome
Mixed: parts of appeals allowed and dismissed as follows: Appeal B-02(IM)(NCVC)-530-03/2017 dismissed as academic; Perbadanan Pengurusan 3 Two Square's appeals (in Appeal B-02(NCVC)(W)-2155-10/2017) in respect of Suit 510 and Suit 516 allowed; 3 Two Square Sdn Bhd's appeals (in Appeal B-02(NCVC)(W)-2149-10/2017) in...
Legal Topics
Locus to Sue Pre Incorporation, Managing Agent Independence and Illegality, Recovery of Management and Sinking Fund Charges, Accessory Parcel in Strata Title, Vacant Possession and Rental, Costs and Interest
Source Language
Malay/English
Strata Management Property Law Contract Law Civil Procedure Company Law Locus to Sue Pre Incorporation Managing Agent Independence and Illegality Recovery of Management and Sinking Fund Charges +3 more

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Parties

3 Two Square Sdn Bhd

Appellant/defendant

Perbadanan Pengurusan 3 Two Square

Respondent/plaintiff

Procedural Posture

Civil Appeal (court of Appeal) / Final Judgment on Appeals

Legal Issues

  1. 1 Whether management corporation (plaintiff) has locus to sue for rights of JMB pre-incorporation under SMA s28(2)
  2. 2 Whether developer/parcel owner could act as managing agent and lawfulness of fees collected under BCPA s26
  3. 3 Whether car park parcels constituted accessory parcels to the Penthouse under STA ss4,34(2),69 and thus immune from separate charges

Ratio Decidendi

The Court held that (1) SMA s28(2) vested the JMB’s rights in the management corporation so plaintiff had locus to sue for pre-incorporation claims; (2) the developer’s role as managing agent was unlawful under BCPA s26 so management fees collected without lawful appointment must be refunded for the period where no valid appointment existed; (3) the car park parcels were used commercially and not as accessory parcels to the Penthouse so the management corporation could lawfully charge management and sinking fund in respect of those car parks; (4) plaintiff failed to prove an enforceable tenancy for the office on common property hence rental claims (except vacant possession) were set...

Court Disposition

Mixed: parts of appeals allowed and dismissed as follows: Appeal B-02(IM)(NCVC)-530-03/2017 dismissed as academic; Perbadanan Pengurusan 3 Two Square's appeals (in Appeal B-02(NCVC)(W)-2155-10/2017) in respect of Suit 510 and Suit 516 allowed; 3 Two Square Sdn Bhd's appeals (in Appeal B-02(NCVC)(W)-2149-10/2017) in...

Orders

  • Appeal No. B-02(IM)(NCVC)-530-03/2017 dismissed as academic
  • Plaintiff (management corporation) has locus to sue for JMB rights under SMA s28(2) for pre-incorporation period