The Court of Appeal has unanimously dismissed a developer’s appeal, affirming its liability to the joint management body (JMB) of a Subang condominium for loss and damage arising from defects in the common property.
A three-member bench chaired by Justice Che Ruzima Ghazali upheld a judgment entered by the High Court in the JMB’s favour, saying the ruling was sound both in law and fact.
“We decline to disturb the finding of liability,” said Che Ruzima, who sat with Justices Zaini Mazlan and Shahnaz Sulaiman.
Che Ruzima also said the High Court did not commit any error in ordering an assessment of the damages payable.
The bench also ordered the developer, Zen Estate Sdn Bhd, to pay costs of RM20,000 to Subang Parkhomes’ JMB.
The JMB represents some 475 condominium purchasers who had bought their respective units at between RM800,000 and RM1 million. Vacant possession to the units was delivered in 2013 and 2014.
Following its formation in 2016 under the Strata Management Act 2013 (SMA), the JMB sought out the developer to hand over all documents to facilitate the management and maintenance of the units and the common property.
It subsequently took out an application for discovery and, in 2020, filed a negligence suit against the developer over defects to the common property.
The complaints included leaks to the roofs of its penthouses and at the complex’s basement carparks, as well as damage to the tiles of its jacuzzi and swimming pools.
The JMB also claimed the developer had failed to ensure that all electrical installations complied with the Electricity Regulations 1994.
In its defence, Zen Estate contended that the complaint pertained to maintenance and that the 24-month defect liability period had lapsed. Accordingly, it argued that the suit was unsustainable.
In the High Court last year, Justice Wong Kian Kheong ruled in the JMB’s favour, holding that the loss and damage suffered were reasonably foreseeable.
Wong, now a Court of Appeal judge, said the developer was aware that the JMB would eventually be constituted to assume responsibility for maintaining and managing the common property. He said Parliament had via the SMA expressly conferred statutory duties and powers on the JMB to carry out these functions.
Wong held that the developer’s obligations arose by operation of law and the absence of a contractual relationship with the JMB did not affect its claim.
“This is because the tort of negligence in itself is a cause of action which is independent of any contract between the plaintiff (JMB) and the defendant (Zen Estate),” he said.
He also found that loss and damage suffered was reasonably foreseeable.
Wong said the defects were attributable to the developer and ordered that damages — including for rectification work already carried out by the JMB — be assessed and paid.
He also ordered the developer to compensate the JMB for loss of use and enjoyment of the common property in a sum to be assessed.
Lawyers CK Lim, Julian Chan, David Yii and S Hemashantini represented the JMB while Cheryl Tay and Carmen Liao acted for the developer.
