SINWARA SDN BHD V. MARIS HOUSING SDN BHD & ANOR

DALAM MAHKAMAH TINGGI MALAYA Dl KUALA LUMPUR WILAYAH PERSEKUTUAN

(BAHAGIAN SIVIL) SAMAN PEMULA NO: S6(S2)-24-3114-2001

BETWEEN

SINWARA SDN. BHD.

(No. Syarikat: 255736-X) - PLAINTIFF

AND

1. MARIS HOUSING SDN. BHD.

(No. Syarikat: 076230)

2. MDP MANAGEMENT & SERVICES - DEFENDANTS

SDN. BHD.

GROUNDS OF JUDGEMENT

THE PRELIMINARY OBJECTION

When this case came for hearing on November 1, 2002, Counsel for Defendants objected to the appearance of Counsel for the Plaintiff upon the ground that the latter is an owner of one of the Lots and is therefore an interested party and has a pecuniary interest. The Court was informed this objection had been brought

up before Managing Judge who directed Counsel to raise the objection before this Court.

2. The objection was raised under rule 3, 4, 5 & 27 of the Practice & Etiquette Rules 1978. The purpose of the rule is to ensure that Counsels appearing before the Courts can argue objectively; thereby being able to assist the Courts to arrive at a fair and just decision. If Counsels were in an objective position, Courts can have a greater confidence in the sincerity and candour of counsels' assessment of the facts. Such an objective counsel is in fact in a better position to represent his clients' interest to obtain a fair and just decision.

3. Much of the confusion arises from the thinking that it is the litigant's interest to win his case. This leads to the thinking that, that in the performance of his duty to his client, a lawyer must advance every possible argument of his client so that the latter can win. But since there are two parties who want to win and there can only be one right, fair and just decision, the fallacy of that thinking is obvious. This apparent conundrum is resolved however if it is understood that the only interest of all the parties that is recognized is the interest in a right, fair and just decision. If Counsel conducts his case on that basis, then he is of assistance to his client and the Court. It is for this reason that the legal profession is founded as a learned and honourable profession. Indeed, failure to act in an objective manner contributes substantially to confusing the issues, 2 making litigation more lengthy and expensive and resulting in a decision that is less right, fair and just than it could have been.

4. Being in the same position as the Plaintiff, Counsel has an interest in the result. While Mr. Lee Seng Wai could have represented himself, in such a case he would not be acting as an advocate and solicitor, and the fact would be obvious to the Court. In any case he is not a plaintiff in this case and therefore has no locus standi.

5. While an expeditious disposal of the matter before me would require rejection of the objection, Court is of the view that where objection is raised or such objection otherwise come to the knowledge of the Court, the above principles rise above mere convenience and speed. The fact there is no injustice shown is irrelevant as objection is not mere procedural objection but is one that goes to the heart of the system of justice.

6. The objection was therefore allowed. Counsel Mr. Lee Seng Wai was barred from representing the Plaintiff and directed to inform his client to obtain another counsel, and the parties were ordered to obtain a fresh hearing date from the Managing Judge.

3

THE APPLICATION

7. The application at Enclosure 1 came up for hearing on November 26, 2002.

8. The application by the Plaintiff is for a declaration that the Defendants cannot increase the management fee under Clause 17 of the Sale and Purchase Agreement on 14/5/1993 between the parties in respect of Lot 4.06 Kompleks Desa Kepong.

9. The First Defendant was developer of Kompleks Desa Kepong. The Plaintiff is the purchaser of Lot 4.06. Second Defendant is the management company. Under Clause 17(1) of the Sale and Purchase Agreement it is provided that the Defendant could impose a management fee. The management fee imposed was 0.35 cents per square foot for office space and 0.60 cents per square foot for trading space.

10. By notice dated 28/10/1994, the First Defendant increased the management fee applicable to the Plaintiff's premises from 0.35 cents to 0.60 cents on the grounds Plaintiff's space is commercial. The Plaintiff paid.

11. On 27/9/1996, the Second Defendant issued a notice to increase the management fee from 0.60 cents to 0.90 cents.

4

THE ISSUE BEFORE THE COURT

12. The issue placed before the Court is whether Second Defendant has the right to increase the management fee, and if so, whether the Plaintiff must pay before strata title is issued.

PLAINTIFF'S CASE

13. In brief the Plaintiff's case is that the First Defendant failed to comply with the Sale and Purchase Agreement, and the Second Defendant has no power to increase the management fee. Counsel urged that Clause 17(b) of the Sale and Purchase Agreement be given its natural and ordinary meaning.

DEFENDANT'S CASE

14. It was argued for the Defendants that nothing in the Strata Titles Act prohibits the Defendants from increasing the management fees. It was submitted that Clause 17(b) is consistent with section 45(3)(a) of the Act, and gives the First Defendant as vendor an absolute discretion to increase the management fees.

5

FINDING

15. Applying the literal and ordinary meaning, Clause 17(b) provides that the purchaser is to pay management fees per the 3rd Schedule pending issuance of strata title. This specific provision in Clause 17(b) therefore qualifies and overrides the more general Clause 17(a). Until the strata title is issued only the First Defendant has the right to increase the fee. After issue of the strata title, 2nd Defendant may issue the notice.

16. The strata title was issued on 9/6/2000. The notice by the Second Defendant was issued on 27/9/1996. The First Defendant did clearly not issue the notice that was issued. Nothing in it states it was issued on behalf of the First Defendant, and there is no evidence of the authority of the Second Defendant to do so. It must be concluded, therefore, that on the date of the notice the Second Defendant did not have the power to issue a valid notice.

17. Prayer 1 seeks a declaration that First Defendant does not have power to increase the management fee. That prayer is in the circumstances unsupportable. The Court, therefore, orders as follows:

1. Prayer 1 dismissed.

2. Prayer 2 dismissed.

3. Prayer 3 dismissed.

4. Prayer 4 dismissed.

5. Kos dibayar oleh Plaintif kepada Defendan.

Dated : 23rd April, 2003 Decision : 26th November, 2002

t.t. (DATUK ABDUL WAHAB BIN PATAIL)

Judge

High Court of Malaya Kuala Lumpur

For the Plaintiff : Mr. Robert Muniandy

Mr. R. Murugan

Messrs. Murugan & Co. Advocates & Solicitors No. 8, Tingkat 4, Jalan Hang Lekiu 50100 KUALA LUMPUR

For the Defendants: Ms. Christine Lim

Messrs. Shariff & Som

Advocates & Solicitors

D2-2 Jalan Selaman 1, Dataran Palma

68000 Ampang

SELANGOR