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PREMIER MODEL
(M) SDN BHD V. PHILEO PROMENADE SDN BHD & 1 ORS
HIGH COURT [KUALA LUMPUR]
AZMEL MAAMOR, J
SAMAN PEMULA N0: S6-24-431-TAHUN 1999
4 JANUARY 2001
DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN SIVIL)
SAMAN PEMULA N0: S6-24-431-TAHUN 1999
Dalam perkara mengenai Aturan 15, Kaedah 16 dan Aturan 5 Kaedah 4 (2) (a),
Kaedah-Kaedah Mahkamah Tinggi, 1980
DAN
Dalam perkara mengenai Seksyen 50 dan Seksyen 51 Akta Relief Spesifik 1950
DAN
Dalam perkara mengenai Seksyen 43 Enakmen Bekalan Air 1997
DAN
Dalam perkara mengenai Seksyen 37 (12) (a) Akta Bekalan Elektrik 1990
DAN
Dalam perkara mengenai bekalan air dan elektrik di Megan Phileo Promenade
Unit No: EO-2 hingga E11-2, DO-3 & D1-3 dan DO-4 & D1-4
PREMIER MODEL (M) SDN BHD (NO SYARIKAT : 283421-M)
.... PLAINTIF
DAN
1. PHILEO PROMENADE SDN BHD (NO SYARIKAT : 273938-P)
2. PLB PROPERTY MANAGEMENT SDN BHD (NO SYARIKAT : 318339-D)
..... DEFENDAN-DEFENDAN
GROUNDS OF JUDGMENT.
Sometime in the middle of 1995 the Plaintiff purchased from the 1st
Defendant 16 units of office/shoplots in a multi-storey building called
Megan Phileo Promenade. The sale and purchase agreements of each of the 16
units contain similar terms and conditions. Among them it provides the right
of the Defendant to collect various charges from the purchasers. Before the
strata titles are issued to the individual units it was the responsibility
of the Defendant as the Vendor to manage and administer the Common Property.
For such purposes the 1st Defendant appointed the 2nd Defendant as its agent
to manage, administer, upkeep, upgrade and maintain the Common Property and
at the same time to bill and collect all the various charges from the
purchasers in respect of their units.
As far back as March 1998 the Plaintiff had owed the Defendant outstanding
charges in respect of the 16 units purchased by the Plaintiff. The Defendant
had sent several notices to the Plaintiff asking for the payment of the said
outstanding charges which amounted RM106,815.97. Finally on 12th January
1999 the Defendant gave notice to the Plaintiff to the effect that if the
Plaintiff still failed to pay the outstanding charges the Defendant would
suspend the water supply to the units purchased by the Plaintiff. As there
was no response from the Plaintiff, the Defendant suspended the water supply
to the said units on 28th January 1999. Following a meeting between the
Plaintiff and the Defendant held on 9th April 1999 the Defendant restored
water supply to 12 of the Plaintiff's units. During the meeting the
Defendant requested the Plaintiff to settle the outstanding charges by 14
monthly installments. The Plaintiff requested time to consider the
Defendant's request. However on 12th April 1999 the Plaintiff filed this
action in which the Plaintiff prayed for declaration and injunction. They
are as follows :-
(a) Bahawa semua meter bekalan air dan/atau bekalan elektrik (tidak termasuk
meter kecil) yang dihubungkan ke unit-unit yang dimiliki Plaintif, seperti
yang disenaraikan di perenggan (c) di bawah, di Bangunan Megan Phileo
Promenade, Menara Phileo, 189, Jalan Tun Razak, 50400 Kuala Lumpur adalah
harta Kerajaan dan sesiapa pun tidak dibenarkan menutup atau menggangu
meter-meter tersebut bagi tujuan menyekat atau memotong bekalan air dan/atau
bekalan elektrik kepada unit-unit tersebut.
(b) Kecuali akibat daripada kemungkiran Plaintif terhadap Enakmen Bekalan
Air 1997 dan/atau Akta Bekalan Elektrik 1990 yang secara langsung memberi
kuasa kepada Pengarah Jabatan Bekalan Air Selangor Darul Ehsan dan/atau
Pengarah Tenaga Nasional Berhad yang bertanggungjawab ke atas bekalan air
dan/atau bekalan elektrik Negeri Selangor dan Wilayah Persekutuan,
termasuklah mana-mana pegawai lain yang bertindak atas sifat itu atau yang
diberi kuasa sewajarnya, mana-mana orang lain termasuk Defendan Perfama dan
Defendan Kedua tidak berhak memotong, menggangu atau menyalah gunakan
meter-meter serta bekalan-bekalan air/dan elektrik.
(c) Unit-unit yang dimiliki oleh Plaintif yang dimaksudkan di perenggan (a)
adalah seperti berikut :-
BUTIR-BUTIR
1) Unit No. E6-G, Ground Floor, Block G;
2) Unit No. E6-M, Mezzanine Floor, Block E;
3) Unit No. E6-01, 1st Floor, Block E;
4) Unit No. E6-02, 2nd Floor, Block E;
5) Unit No. E6-03, 3rd Floor, Block E;
6) Unit No. E6-03A, 4th Floor, Block E;
7) Unit No. E6-05, 5th Floor, Block E;
8) Unit No. E6-06, 6th Floor, Block E;
9) Unit No. E6-07, 7th Floor, Block E;
10) Unit No. E6-08, 8th Floor, Block E;
11) Unit No. E6-09, 9th Floor, Block E;
12) Unit No. E6-10, 10th Floor, Block E;
13) Unit No. D6-G, Ground Floor, Block D;
14) Unit No. D6-M, Mezzanine Floor, Block D;
15) Unit No. D7-G, Ground Floor, Block D; dan
16) Unit No. D7-M, Mezzanine Floor, Block D.
(d) Sekiranya deklarasi yang dinyatakan di perenggan (a) dibenarkan, maka
Plaintif dibenarkan mengarah Defendan Perfama dan/atau Defendan Kedua,
pekerja, agen atau sebarang pihak yang berkaitan dengan Defendan Perfama dan/atau
Defendan Kedua untuk menyambung semula bekalan air dan/atau bekalan letrik
kepada unit-unit yang disenaraikan di perenggan (c) di atas.
(e) Bersama dengan penyambungan semula bekalan air dan/atau bekalan elektrik
tersebut, Defendan Pertama dan/atau Defendan Kedua, pekerja, agen atau
sebarang pihak yang berkaitan dengan Defendan Pertama dan/atau Defendan
Kedua dilarang/tegah atau pun dihalang daripada menutup atau menggangu meter
dengan tujuan menyekat atau memotong bekalan air dan/atau bekalan elektrik
daripada sampai ke unit-unit yang disenaraikan di perenggan (c) diatas.
(f) Satu deklarasi bahawa bekalan air dan/ atau bekalan elektrik dibekalkan
secara terus oleh Jabatan Bekalan Air Selangor Darul Ehsan dan/atau Tenaga
Nasional Berhad dan bukannya dibekalkan secara terus oleh Defendan Pertama
dan/atau Defendan Kedua dan oleh yang demikian, Plaintif tidak terikat
dengan klausa 5.01 (b) (4) surat perjanjian jual-beli.
(g) Seterusnya satu deklarasi diberikan bahawa tindakan Defendan Pertama dan/atau
Defendan Kedua menyekat atau memotong bekalan air dan/atau bekalan elektrik
berdasarkan klausa 5.01 (b) (4) surat perjanjian jual-beli adalah tidak sah.
(h) Satu deklarasi bahawa kos servis yang dikenakan oleh Defendan Pertama
dan/atau Defendan Kedua ke atas Plaintif adalah terlalu tinggi dan melebihi
kos penyelenggaraan yang sebenar.
(i) Suatu deklarasi bahawa Defendan Pertama dan Defendan Kedua adalah
pemegang amanah kos-kos servis yang dibayar oleh Plaintif dan berikutan
dengan itu Defendan Pertama dan Defendan Kedua perlulah menyediakan
akaun-akaun terperinci mengenai penggunaan wang tersebut dan perlulah
memberikan Plaintif sesalinan lapuran kewangan setiap (6) bulan.
j) Satu deklarasi bahawa ugutan dan/atau tindakan Defendan Pertama dan/atau
Defendan Kedua, pekerja, agen atau sebarang pihak yang berkaitan Defendan
Pertama dan/atau Defendan Kedua untuk menghentikan perkhidmatan lif adalah
bertentangan dengan undang-undang kecil pihak berkuasa tempatan yang
memperuntukkan perkhidmatan lif sebagai salah satu kemudahan bagi sesuatu
bangunan yang melebihi 5 tingkat.
At this juncture it may be pertinent for me to state that this case was
originally heard by Civil Court No. 2. A few interlocutory applications had
already been heard and disposed off by the learned Judge in Civil Court No.
2. One of such applications was Enclosure 41 which was Defendant's
application to convert this action from an Originating Summons to a Writ
action. According to the Note of Proceedings the application under Enclosure
41 was dismissed with costs by the learned Judge. Subsequent to this, the
learned Judge in Civil Court No. 2 proceeded to hear the main application in
Enclosure No. 1. He directed Counsels for both parties to give their written
submissions. After the written submissions had been submitted there was
administrative directive to have this case transferred to this Court (Civil
Court No. 6). The first thing that I had to decide was whether to get the
Counsels to submit orally before me in respect of the Application in
Enclosure No. 1 or to accept the written submissions already submitted by
the Counsels and then make a decision. I decided to accept the written
submissions of the Counsels in order to save everybody's time and effort.
After having carefully considered the submissions from both Counsels as well
as the other relevant documents filed in respect of this case I arrived at
the conclusion that the Plaintiffs applications be dismissed with costs. My
reasons are as follows.
Before proceeding to give my reason for dismissing the Plaintiffs
application there is one issue which I propose to deal first. It is in
respect of the contention by the Counsel for the Defendant which he had
raised it in his written submission. The issue was whether at the hearing of
the interlocutory application under Enclosure No. 41 before the learned
Judge in Civil Court No. 2 the Plaintiff, through the submission of its
Counsel, had agreed to confine its application solely on seeking a
declaration in respect of the interpretation of S.5.01(b)(4) of the sale and
purchase agreement. To this contention the Counsel for the Plaintiff totally
disagreed. In the light of such dispute I decided to refer to the Notes of
proceedings in respect of the application under Enclosure No. 41. After
having studied the Notes of proceedings I was not quite satisfied with the
contention of the Counsel for the Defendant. Taking the Notes of proceedings
as a whole I found it quite difficult to be convinced that the Plaintiff had
abandoned all its other prayers and to only seek Prayer (a) from this Court.
With such doubts in my mind I decided to consider not only Plaintiff's
Prayer (a) but also its other prayers.
As the Plaintiff was praying for both declaration and injunction, for
reasons of convenience, the prayers are re-arranged as follows :-
(a) A Declaration that -
(i) all the water and/or electricity meters in respect of the Parcels are
property of the Government and no one is allowed to turn off or interfere
with the said meters for the purpose of restricting or cutting off the water
and/or electricity supply to the Parcels [hereinafter referred to as "Prayer
(a) "];
(ii) except for the Plaintiff's breach under the Water Supply Enactment 1997
and/or Electricity Supply Act 1990 which directly empowers the Director of
the Water Supply Department of Selangor Darul Ehsan and/or the Director of
Tenaga Nasional Bhd who are responsible for the supply of water and/or
electricity in Selangor and the Federal Territory, including any officer
acting in such capacity or who have been duly authorised, any other person
induding the 1st Defendant and 2nd Defendants are not entitled to cut off,
interfere with or misuse the said meters as well as the water and/or
electricity supply [hereinafter referred to as "Prayer (b) "].
(iii) water and/or electricity supply is directly supplied by the Water
Supply Department of Selangor Darul Ehsan and/or Tenaga Nasional Bhd. and is
not directly supplied by the 1s' Defendant and/or 2nd Defendant and
accordingly, the Plaintiff is not bound by section 5.01(b)(4) of the
Agreements [hereinafter referred to as "Prayer (f)"];
(iv) the action of the 1st Defendant and/or 2nd Defendant in restricting or
cutting off water and/or electricity supply based on section 5.01(b)(4) of
the Agreements was invalid [hereinafter referred to as "Prayer (g) "];
(v) the Charges imposed by the 1st Defendant and/or 2nd Defendant on the
Plaintiff were too high and exceeded the actual maintenance costs
[hereinafter referred to as "Prayer (h) "];
(vi) the 1st Defendant and/or 2nd Defendant are trustees for the Charges
paid by the Plaintiff and accordingly, the 1st Defendant and/or 2nd
Defendant are required to provide detailed accounts on the use of such funds
and are required to provide the Plaintiff a copy of the financial report
every 6 months [hereinafter referred to as "Prayer (i) "]; and
(vii) the threat and/or action by the 1st Defendant and/or 2nd Defendant,
their employees, agents or any party related to the 1st and/or 2nd Defendant
to stop the lift services was contrary to the by-laws of the local
authorities which provided that lift services as one of the facilities for a
building exceeding 5 storeys [hereinafter referred to as "Prayer (j)"]; and
(b) An Injunction -
(i) if Prayer (a) is allowed, the Plaintiff is permitted to direct the 1st
Defendant and/or 2nd Defendant, their employees, agents or any party related
to the 1st and/or 2nd Defendant to restore water and/or electricity supply
to the Parcels [hereinafter referred to as "Prayer (d) "]; and
(ii) together with the restoration of the said water and/or electricity
supply, the 1st Defendant and/or 2nd Defendant, their employees, agents or
any party related to the 1st and/or 2nd Defendant are restrained from
turning off or interfering with the said meters for the purpose of
restricting or cutting off the water and/or electricity supply to the
Parcels [hereinafter referred to as "Prayer (e) "].
It must be noted that the dispute between the parties were in respect of
matters before titles to the individual units were issued. Therefore it is
common ground that the Strata Titles Act, 1985, does not apply. Upon the
issuance of the strata titles to the units the functions of the 2"d
Defendant would have to be taken over by a Management Corporation
established under the said Act. Therefore the relationship between the
Plaintiff and the Defendant during this stage was governed solely by the
terms and conditions of the sale and purchase agreement. To determine such
relationship, I think, it is not proper for the Plaintiff's Counsel to
suggest that reference to the Strata Titles Act, 1985 can be referred. If
the Act is not applicable to which the Plaintiff's Counsel had conceded,
then it follows that no reference to it should be made.
The main provision of the said agreement that came into argument in this
case is Section 5.01(b)(4). It reads as follows: -
"(4) Without prejudice to its other rights and remedies herein, the Vendor
is entitled to withdraw or suspend any services, utilities, amenities or
facilities agreed to be provided herein in the event of default or delay by
the Purchaser in the payment of any dues therein."
The term "service charges" has been defined in Section 1.01 (m) as follows
:-
"(m) "Service Charges" means such amount of money as may be determined from
time to time by the Vendor prior to the issue of strata titles to the
individual units comprised in the Shopoffice Project and after the issue of
the strata titles by the Management Corporation in the manner provided by
the Strata Titles Act for the services provided by the Vendor or as the case
may be by the Management Corporation for the control, management,
administration, upkeep, upgrading and maintenance of the Common Property and
the Shopoffice Project and includes but not limited to the cost of electric
power and water supply, the cost of repair, maintenance, upkeep and
upgrading of the Common Property of the Shop office Project including all
other expenses incidental to the employment of personnel engaged in and
about the provision of services and repair, maintenance, upkeep and
upgrading of the Common Property and the Shopoffice Project.".
From the above it is clearly stated that there are two providers of
services. The first provider is the Vendor who provides services until the
time the titles to the individual units are issued. The second provider is
the Management Corporation established under the said Act, who provides
services after the strata titles are issued. And from the definition of the
"service charges" the type of services to be rendered are not exhausted. In
any case it includes the giving of electric power and water supply, repair,
maintenance, upkeep and upgrading of the Common Property. The charges
payable by the Purchaser as stated in this clause also includes all expenses
incidental to the employment of personnel engaged in and about the provision
of services and repair, maintenance, upkeep and upgrading of the Common
Property.
The Defendants had invoked S.5.01(b)(4) of the Agreement to suspend water
supply to the 16 units purchased by the Plaintiff. It was alleged by the
Plaintiff that it was unlawful for the Defendants to suspend water supply to
the said units. The Plaintiff further contended that S.5.01 (b)(4) of the
Agreement is ambiguous, in that the provider of electric power and water
supply was not the Defendant. Electric power is provided by Tenaga Nasional
Berhad and water is supplied by Selangor State Water Department. Because of
such ambiguity the contra proferentem rule of construction should be
applied.
In reply to the Plaintiff's contention, the Defendant said that the wordings
of S.5.01(b)(4) are very clear and as such it contains no ambiguity at all.
Since the express wordings of S.5.01(b)(4) are clear the provisions of S.91
and 92 of the Evidence Act apply. By the decision of the case of the Supreme
Court case of Koh Siah Poh v. Perkayuan OKS Sdn. Bhd. [1989] 3 MLJ 164 it
was ruled that where written contracts are clear the Court should not go
behind the written terms of the contract to introduce or add new term to it.
As to provider of water supply to the individual units the Defendant argued
that the Selangor State Water Department only supplies water to the Bulk
Meters. It was not their responsibility to supply water to the individual
units. The responsibility to do so is taken over by the Defendants. The
contention by the Plaintiff that S.5.01(b)(4) is ambiguous was misconceived.
After having considered the arguments by both Counsels I was in full
agreement with the views of Counsel for the Defendants. Having read the
wordings of S.5.01(b)(4) I am quite satisfied that this section is clearly
worded and contains no ambiguity at all. It is quite true that the Selangor
State Water Department only supplies water to the Bulk Meters. This is
confirmed by the Department's letter to the Defendant dated 31st May 1999
stating that the responsibility of the Selangor State Water Department is
only to supply water to the Bulk Meters. The supply of water to the
individual units is the responsibility of the Defendants. This is clearly
stated in the definition of "Service Charges" in S.1.01(m) which I have
dealt with earlier. Since it was my finding that the wordings of
S.5.01(b)(4) contains no ambiguity I therefore ruled that the contra
proferentem rule is not applicable. And also since it was my finding that
the natural and ordinary meaning of S.5.01 (b)(4) is expressly clear the
burden lies on the Plaintiff to prove the application of any of the
exceptions to Sections 91 and 92 of the Evidence Act. But the Plaintiff had
failed to produce such evidence. In the circumstances I ruled that it was
not improper for the Defendant to exercise their rights under S.5.01(b)(4)
of the Agreement to suspend the water supply to the Plaintiffs units.
Based on the reasons as I have above mentioned my decision on the Prayers
applied by the Plaintiff are as follows:-
1. Prayer (a) - Since it was confirmed that the Selangor State Water
Department only supplies water to the Bulk Meters interference of meters
would not be allowed if done to the Bulk Meters. It follows therefore that
it does not extend to the interference of meters to the individual units.
2. Prayer (b) - It is well within the rights of the Defendants to cut off or
suspend water supply to the individual units, if the occupier of units fails
to pay service charges.
3. Prayer (f)- S.5.01(b)(4) read together with S.1 .01 (m) of the Agreement
clearly entitles the Defendants to supply water to the individual units.
Without the Defendants giving such service water supply may not reach the
individual units because the Selangor State Water Department had confirmed
that its responsibility to supply water is only to the Bulk Meters. The
Plaintiff is bound by S.5.01 (b)(4).
4. Prayer (g) - The action of the Defendants in restricting or cutting off
water supply under S.5.01(b)(4) of the Agreement was not invalid.
5. Prayer (h) - This is a matter which requires further details of facts to
be properly adduced through witnesses. Since both parties do not agree to
the facts and the facts on this issue had been scantily produced especially
from the Plaintiff's side it is not possible for the Court to decide what
would be the fair charges. Merely by the Plaintiff alleging that the charges
are too high and exceeded the actual maintenance costs would be
insufficient, bearing in mind that the 2nd Defendant has to employ personnel
to effect the services.
6. Prayer (i) - There is no evidence at all to say either expressly or
impliedly that the Defendants are trustees for the charges paid by the
Plaintiff. As such there is no legal requirement for the Defendants to
provide detailed accounts on the use of such accounts. Neither is there any
legal requirement for the Defendant to provide the Plaintiff a copy of the
financial report every 6 months.
7. Prayer (i) - As there had never been lift-services by the Defendant it
would be improper for the Court to exercise its discretion to grant this
prayer (f) to the Plaintiff.
In respect of the Plaintiffs application for Injunction my decision are as
follows :-
1. Prayer (d) - Since the Defendants had restored water supply to all the
units there is therefore no need to grant the injunction. More importantly,
Injunction should only be issued if the Defendant has committed a wrong.
Since the Defendant's action to suspend water supply under S.5.01(b)(4) was
not improper the application to seek for Injunction to stop the action
should not be entertained.
2. Prayer (e) - My decision in respect of Prayer (d) above is also
applicable to this Prayer (e).
For the reasons as stated above the Plaintiff's application was dismissed
with costs.
Dated this 4th January 2001.
(DATO' AZMEL BIN HJ. MAAMOR)
High Court Judge KUALA LUMPUR.
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