PERBADANAN PENGURUSAN 3 TWO SQUARE 1. 3 TWO SQUARE SDN BHD (NO SYARIKAT: 612273-X) 2. YONG SHANG MING (NO KP: 830418-14-5999)

PERBADANAN PENGURUSAN 3 TWO SQUARE 1. 3 TWO SQUARE SDN BHD (NO SYARIKAT: 612273-X) 2. YONG SHANG MING (NO KP: 830418-14-5999)

Areas not comprised in parcels (including accessory parcels) are common property under s.4 STA; therefore the central cooling tower, lifts and toilets at Crest Tower are common property and prima facie the Management Corporation must maintain them under s.43(1)(a). Section 46 requires special resolution only to fix the portion of contributions to the sinking fund, not to authorize expenditure from it. Council members owe fiduciary duties and duties of care to the management corporation and proprietors collectively but are not personally liable to individual proprietors absent dishonest, mala fide or reckless conduct; the evidence did not establish personal liability or deliberate breach....

Citation
W-02(NCVC)(W)-1457-07/2017 (Mahkamah Rayuan)
Parties
Appellant: Perbadanan Pengurusan 3 Two Square; Respondent: 3 Two Square Sdn Bhd; Defendant: Foo Ann Wan; Defendant: Hooi You Von; Defendant: Loh Kim Tong @ Wong Ah Wah; Defendant: Lim E @ Lim Hoon Nam; Defendant: Tan Ching Wei; Defendant: Ong Poo Lian; Defendant: Dr. Abdul Aziz Bin Hj Kechil; Defendant: Ir. Yap Yee Hock; Third Party: Yong Shang Ming
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
5 September 2019
Case Number
W-02(NCVC)(W)-1457-07/2017 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeals From High Court
Outcome
Appeal by 3 Two Square Sdn Bhd dismissed; appeal by Perbadanan Pengurusan 3 Two Square allowed in part
Legal Topics
Common Property, Sinking Fund, Fiduciary Duty of Council Members, Statutory Duty to Maintain Common Property, Causation of Loss of Rental, Costs Orders
Source Language
Malay/English
Strata Law Property Law Fiduciary Law Civil Procedure Common Property Sinking Fund Fiduciary Duty of Council Members Statutory Duty to Maintain Common Property +2 more

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Parties

Perbadanan Pengurusan 3 Two Square

Appellant

3 Two Square Sdn Bhd

Respondent

Foo Ann Wan

Defendant

Hooi You Von

Defendant

Loh Kim Tong @ Wong Ah Wah

Defendant

Lim E @ Lim Hoon Nam

Defendant

Tan Ching Wei

Defendant

Ong Poo Lian

Defendant

Dr. Abdul Aziz Bin Hj Kechil

Defendant

Ir. Yap Yee Hock

Defendant

Yong Shang Ming

Third Party

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeals From High Court

Legal Issues

  1. 1 Whether cooling tower, lifts and toilets in Crest Tower constitute common property under s.4 STA
  2. 2 Whether use of sinking fund required a special resolution under s.46 STA
  3. 3 Whether individual council members owe fiduciary duties to individual proprietors and are personally liable

Ratio Decidendi

Areas not comprised in parcels (including accessory parcels) are common property under s.4 STA; therefore the central cooling tower, lifts and toilets at Crest Tower are common property and prima facie the Management Corporation must maintain them under s.43(1)(a). Section 46 requires special resolution only to fix the portion of contributions to the sinking fund, not to authorize expenditure from it. Council members owe fiduciary duties and duties of care to the management corporation and proprietors collectively but are not personally liable to individual proprietors absent dishonest, mala fide or reckless conduct; the evidence did not establish personal liability or deliberate breach....

Court Disposition

Appeal by 3 Two Square Sdn Bhd dismissed; appeal by Perbadanan Pengurusan 3 Two Square allowed in part

Orders

  • Dismiss Appeal No W-02(NCVC)(W)-1460-07/2017 (Plaintiff’s appeal)
  • Allow Appeal No W-02(NCVC)(W)-1457-07/2017 in part as explained in judgment