JCW

Justin was the counsel for the Defendants in this High Court matter. This is a novel and/ or landmark decision after a Trial involving, amongst others, the following findings/ issues :- (i) The legality of a sale of additional accessory carparks by the developer of units of condominium which comes up to 8-15 carparks each which are more than necessarily required for each condominium where the extra carparks are intended to be used for commercial rental to occupants of the residential condominium project for profit; (ii) The interpretation of Sections 34(2) and 69 of the Strata Titles Act 1985 and whether the word "dealt" in Sections 34(2) and 69 of the said Act include the act of "renting out" or "tenanting out", which was also answered in the affirmative; (iii) The interpretation of the phrase "used" or "intended to be used in conjunction with" in the definition of an "accessory parcel" in Section 4 of the Strata Titles Act will prohibit such acts of renting out not intended to be used with the main condominium unit; (iv) That the said sale of carparks contravened the Town and Country Planning Act 1976 by reason of breach of conditions of the Development Order; (v) There was no lawful consideration given under Section 24 of the Contracts Act 1950 for the sale of the said carparks; (vi) The issue of defeasibility of titles of the accessory parks where Section 5(1) of the Strata Titles Act 1985 read together with Section 340 of the National Land Code, where the Court held that by reason of the unlawful transfer of the accessory carparks, the registration of 394 accessory carparks in the name of the Plaintiff is unlawful and offended the Strata Titles Act, the Town and Country Planning Act and Sections 24 (a), (b) & (c) of the Contracts Act; and (vii) There was insufficient visitors' carparks for the Project and that some of these accessory carparks should be "Common Property" for the benefit of the Palm Spring Condominiums. We believe that this is the first time that a case of this nature involving use of accessory carparks in a condominium for a commercial purpose and the legality of transfer of titles of a big number of carparks attached to a single unit of condominium, is decided in Malaysia. The High Court decided in favour of the Defendants where in essence the Plaintiff’s claim was dismissed and the 1st Defendant’s Counterclaim was allowed. Note: This High Court decision has been set aside by the Court of Appeal due to the issue of validity of the JMB and the case has been refiled by the Management Corporation.