BADAN PENGURUSAN BERSAMA AVENUE K DAN K RESIDENCE v 1. ) CITY PROPERTIES SDN. BHD. 2. ) KL LANDMARK SDN. BHD. 3. ) LEONG LI NAR REALTY SDN. BHD. 4. ) ANNE YAP SIM EE 5. ) LEONG LI NAR 6. ) M B PROPERTIES SDN BHD 7. ) YAP YONG SEONG REALTY SDN BHD 8. ) AMPLE PARAMOUNT SDN. BHD.

Case Significance

Confirms that under the Strata Management Act 2013 a parcel owner's right to vote is not lost automatically on a bare allegation of arrears: where the arrears are genuinely disputed, the dispute must be resolved at a full trial, and an originating summons will be converted to a writ action under Order 28 rule 8 to allow that.

This Court of Appeal decision at Putrajaya concerns voting rights in a stratified development under the Strata Management Act 2013, and whether parcel owners said to be in arrears may be barred from voting when the arrears are themselves disputed. The appellant was the joint management body of a development, and the respondents were a group of companies and individuals who owned parcels in the development. The underlying proceedings had been commenced by originating summons in the High Court, and the dispute concerned whether the respondent parcel owners, alleged to be in arrears of maintenance charges, were entitled to exercise their voting rights at meetings of the management body.

The Court of Appeal addressed the interaction between the statutory disqualification of a parcel owner in arrears and the owners' insistence that the arrears were disputed. It held that parcel owners in arrears cannot be shut out from voting where there is a genuine dispute over whether the arrears are owed, unless and until that dispute is resolved through a full trial rather than summarily on affidavit evidence in an originating summons. Because the existence and amount of the arrears were contested and turned on disputed facts, the matter was unsuitable for summary determination, and the court directed that the case proceed as a writ action, invoking the power under Order 28 rule 8 of the Rules of Court 2012 to continue an originating summons as if begun by writ.

The effect of the decision was to require the disputed arrears to be tried before any disqualification from voting could be imposed. The judgment illustrates that a parcel owner's statutory right to vote is not lost automatically on a bare allegation of arrears: where the arrears are genuinely disputed, the dispute must be determined at a full trial, and the proceedings will be converted from an originating summons into a writ action to allow that to happen.