Does a Management Corporation owe a duty of care to a parcel owner in maintaining a system of safety and security at a stratified scheme

ASMA BINTI AHMAD SHARIFF v. TIARA MANAGEMENT CORPORATION (Civil Appeal No: BA-12B-139-12/2024) (HC)

Facts

This case concerns the Appellant’s apartment which was burglarized during daylight hours whereby the Appellant’s cause of action against the MC, the Respondent herein was that the MC had breached its statutory duty pursuant to section 59(1)(a) and (i) of the SMA 2013. The MC herein denied responsibility for the burglarizing which led to the Appellant initiating a suit against the MC in the Sessions Court for the losses suffered as a result of this break in. 

Sessions Court

1. The Sessions Court had dismissed the Appellant’s suit with costs on the basis that the Section 59(1)(a) and (i) of the SMA 2013 does not confer a specific obligation on the MC to ensure the safety of the Appellant’s unit and in turn to ensure the Appellant’s unit is not broken into.
2.  Furthermore, the Tiara Management Sdn Bhd’s Rules & Regulations also does not confer such obligation on the MC to ensure the safety of each individual unit and in fact Rule 14 expressly states that the responsibility and damage of the owners’ units are the respective owners’ own responsibility.
3. The MC had also discharged its statutory duty and common law duty of care by appointing a third-party contractor to oversee the security of the condominium complex.

High Court

1. The Appellant had appealed against the decision of the Sessions Court
2. The Issues for determination for the High Court are as follows:
3. Whether the MC owed a duty of care to the owner, whether arising in tort and/or pursuant to the SMA 2013;
4. If the answer to the first issue is affirmative, whether the MC breached that duty of care;
5. In the event such a breach is established, what relief or remedy is the Appellant entitled in law.

• The Court had decided as follows:
• The MC’s duty to maintain and manage the subdivided building does not encompass an obligation to maintain and manage a system of safety and security for the benefit of the residents;
• Therefore, it is not the statutory duty of the MC under section 59(1)(a) and (i) of the SMA 2013 to establish or maintain a system of safety and security;
• Upon a perusal of the Clause 3 (Security) and Clause 14 (Disclaimer of Liability) of the Rules and Regulations, it was noted that the provision was made for security services evidenced by the Agreement between Tiara MC and Golden Eagle Security Services Sdn Bhd and therefore, the onus rested upon the Appellant to establish a breach of duty by reference to the Rules and Regulations in force;
• The Appellant had failed to discharge that burden;
• The Appellant has also failed to establish the requirements under the doctrine of res ipsa loquitor;
• The Appeal was therefore dismissed and the Appellant had was ordered to pay costs of RM 10,000.00 to the MC.

KEY TAKEAWAY

The courts are very stringent in their interpretation of the SMA 2013 and when determining whether or not a MC and/or JMB’s duty under the SMA 2013 had been breached, the courts are mindful to peruse the clauses in the schemes respective House Rules and Regulations and By-Laws before deciding on breaches as such.