WHAT ARE THE IMPORTANT ELEMENTS TO TAKE INTO ACCOUNT WHEN ISSUING FORM 28?

Foo Jia Yin v Strata Management Tribunal & Ors [2024] MLJU 947

High Court, Kuala Lumpur

Facts of the Case

The applicant, Foo Jia Yin, owned Unit A1201 at Residensi Andes Ria, directly above the 2nd respondent’s unit (A1101). The 2nd respondent complained of water leakage on the ceiling of her unit. The 3rd respondent, the joint management body (JMB), inspected only the affected unit A1101 but cancelled the scheduled inspection of Foo’s unit A1201. Despite not inspecting the upper unit, the JMB issued Form 28 under Regulation 59 of the Strata Management (Maintenance and Management) Regulations 2015, stating that Foo’s unit was the cause of leakage and directing her to carry out rectification works within seven days.

Foo disputed the notice, arguing that Form 28 was invalid since her unit was never inspected. The Strata Management Tribunal (SMT), however, accepted the JMB’s position and issued an award on 14 October 2022 holding Foo liable for the leakage, requiring her to carry out rectification works, and to pay RM500 costs to the 2nd respondent. Foo sought judicial review in the High Court to quash the award.

High Court’s Decision

The High Court (Dato Ahmad Kamal Md Shahid J, (now JCA) allowed Foo’s judicial review application and quashed the Tribunal’s award. The judge held that the Tribunal’s decision was tainted by errors of law, procedural impropriety, and breach of natural justice.

Findings of the Court

The High Court made the following findings:

  • Form 28 invalid: The JMB issued Form 28 without inspecting the applicant’s unit (A1201), contrary to Regulation 57, which mandates inspection of both the affected parcel and any other relevant parcels.
  • Breach of statutory duty: The JMB was statutorily obliged to inspect both units A1101 and A1201 to determine the cause of leakage, but failed to do so.
  • Error of law by Tribunal: The Tribunal wrongly assumed that an inspection had been carried out at A1201 when in fact only A1101 was inspected.
  • No conclusive evidence: The Tribunal relied on statutory presumptions under section 142 of the Strata Management Act 2013 (SMA 2013) and the Strata Technical Report, but there was no definitive finding that Foo’s unit was the source of leakage.
  • Process of elimination improper: The Tribunal effectively ordered rectification by Foo as part of a process of elimination to identify the source of leakage, which was legally unsustainable.
  • Right to be heard denied: Foo was not given a fair opportunity to rebut the presumption under section 142 SMA 2013 or to challenge the Strata Technical Report. This breached section 113 SMA 2013 and the rules of natural justice.
  • Irrationality and unreasonableness: It was irrational for the Tribunal to treat the existence of leakage in A1101 as conclusive evidence that Foo’s unit was responsible, especially when Foo had turned off the water supply in A1201 and leaks still persisted.
  • Award quashed: The Tribunal’s award was tainted by illegality, irrationality, and breach of natural justice.

Takeaways

This case highlights critical principles in strata management disputes.

1stly, Form 28 cannot be validly issued without proper inspection of both the affected unit and the suspected unit, as required by Regulation 57.

2nd, the statutory presumption under section 142 SMA 2013 is rebuttable, and affected owners must be given a fair opportunity to present evidence to the contrary.

3rd, the Tribunal must make a conclusive finding of responsibility before ordering rectification; it cannot rely on presumptions or a process of elimination.

Finally, the case underscores the importance of natural justice, all parties must be given equal opportunity to be heard, particularly where technical reports are relied upon.

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