1. ) Equitable Management Consultants Sdn Bhd 2. ) A-One Marketing Sdn Bhd v 1. ) PERBADANAN PENGURUSAN PUSAT PERDAGANGAN AMCORP 2. ) PENGARAH TANAH DAN GALIAN SELANGOR

Case Significance

Instructive on striking out a suit that is a collateral attack on a consent order, and on constructive notice, the thirty-day limitation under Order 42 rule 13, laches and the requirement to particularise fraud in a strata maintenance-charge dispute.

This High Court decision at Shah Alam concerns the striking out of a suit as a collateral attack on an earlier consent order in a strata-management dispute. The plaintiffs, two companies owning four of the approximately 956 parcels in a strata development, challenged a paragraph of a consent order recorded before the High Court in an earlier originating summons, which had declared that all maintenance and sinking-fund charges imposed by the management corporation before certain other orders were valid and binding on all parcel owners. The consent order had followed resolutions at an annual general meeting approving a recalculation of share units and agreeing that existing rates would remain until the recalculation was validated by the court, and it had been jointly agreed by the management corporation and the Director of Lands and Mines. The plaintiffs alleged that the consent order had been obtained fraudulently and without service and was therefore void, while the first defendant management corporation contended that it had been properly obtained, duly served, and that the suit was a collateral attack on a valid court order, applying to strike out the writ and statement of claim under Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012. The court, per Datin Asmah binti Musa JC, allowed the application and struck out the claim. It found that the consent order had been validly served, copies having been delivered to each parcel owner's letterbox and displayed on the notice board, so that the plaintiffs had constructive notice, the knowledge of their solicitor being imputed to them; that the action was time-barred and procedurally defective under the thirty-day period in Order 42 rule 13 for setting aside such an order; that the plaintiffs' delay defeated equity on the maxim that equity aids the vigilant and not the indolent; that their inconsistent conduct offended the doctrine of approbation and reprobation; and that the allegation of fraud was unsupported by the requisite particulars and cogent evidence. The cumulative effect was that the action was frivolous, vexatious and an abuse of process, and it was struck out with costs of RM2,000. The judgment is instructive on striking out a collateral attack on a consent order and on constructive notice, limitation and laches.