Decorative Picture
KOTA KINABALU: The High Court has dismissed with costs the claim by United 1 Borneo Hypermall Sdn Bhd to recover outstanding service charges from an owner who owns seven lots at the 1 Borneo Hypermall as it was determined that United 1 Borneo Hypermall Sdn Bhd had no locus standi to do so.
United 1 Borneo Hypermall Sdn Bhd, an unlicensed and unregistered company under the Board of Valuers Appraisers Estate Agents and Property Managers (established by the Valuers, Appraisers and Estate Agents Act 1981) had commenced the suit to recover the fees and service charges totalling of RM 3,591,776.38. Prior and during the legal suit , United 1Borneo Hypermall Sdn Bhd had unlawful demanded and threatened one of the anchor Tenant to pay the services to them resulted the said Tenant terminated the tenancy and move out from the said mall.
Justice Leonard David Shim in his ruling said:
“After considering the totality of the evidence and the submissions filed by the parties, this Court finds that the Plaintiff has failed to prove on a balance of probabilities that it has the locus standi to institute and maintain this action for service charges against the Defendant.”
Shim further said that the Defendant had also established that the outstanding service charges should instead be paid to the Liquidator on behalf of Sagajuta (Sabah) Sdn Bhd (in Liquidation).
Based on these reasons, the High Court dismissed the Plaintiff’s claim with costs in the sum of RM20,000.00 to be paid by the Plaintiff to the Defendant subject to payment of allocatur fee.
Shim said the main dispute was on the locus standi of the Plaintiff to claim for the service charges and whether the claim by the unlicensed property manager (Plaintiff) was tainted with illegality.
He said that although the Court has jurisdiction to authorise other persons to conduct litigation in the name of the wound-up company, the Court could not authorise the Plaintiff to bring this action as no sanction was sought from the Liquidator and this action was not brought in the name and on behalf of the wound-up company, Sagajuta (Sabah) Sdn Bhd.
Shim said it was undisputed that the management corporation of the said Mall had not been established under Section 14 Land (Subsidiary Title) Enactment 1974 of Sabah.
Prior to the establishment of the management corporation, the right to collect service charges in Sabah is a contractual right conferred under the Sales and Purchase Agreement.
Unlike the position of a developer in Peninsula Malaysia where the Strata Management Act 2013 gives the joint management body a statutory right to collect maintenance and service charges prior to the establishment of the management corporation, the Sabah enactment does not give a developer in Sabah such statutory right.
Shim said there was no evidence to show that the Plaintiff is the registered owner or the beneficiary of any estate or trust of a deceased person or a registered lessee of the said land and the building thereon, i.e. the said Mall.
Hence, the Plaintiff is not exempted from registration as a property manager.
The ruling was made on Jul 14, 2022.
