[BKI-12A-8/12-2015]

(RAMAJUTA PROPERTIES SDN BHD

V. RANK VACATION SDN BHD)

1 MALAYSIA

2 IN THE HIGH COURT IN SABAH AND SARAWAK

3 AT KOTA KINABALU

4 CASE NO.: BKI-12A-8/12-2015

6 BETWEEN

8 RAMAJUTA PROPERTIES SDN BHD APPELLANT

10 AND

11

12 RANK VACATION SDN BHD RESPONDENT

13

14 JUDGMENT

15

16 This is an appeal against the decision of the learned Session Court

17 judge wherein upon the application by the Defendant below under Order

18 18 Rule 19(a) dismissing the Plaintiffs claim on the grounds that the

19 Plaintiff has no locus standi.

20

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 [BKI-12A-8/12-2015]
(RAMAJUTA PROPERTIES SDN BHD
V. RANK VACATION SDN BHD)

21 I have read the appeal papers and the submissions filed herein including

22 submissions of the court below. The salient facts are as follows:

23

24 (i) The Plaintiff and Defendant entered into two (2) agreements

25 both dated 26.7.2006 wherein the Defendant purchased 2 units

26 of properties:

27

28 (a) Unit 08A

29 (b) Unit 08B

30

31 (ii) The building on which the 2 properties are situate or located is

32 called Warisan Square. There were express terms and

33 conditions as found in para 16 for the payment of certain fees

34 namely among others advertising fund contribution service

35 charge, sinking fund contribution, insurance, quit rent and any

36 overdue interests.

37

38 (iii) Subsidiary titles are yet to be issued.

39

40 Meanwhile the Plaintiff formed a company called Warisan Square

41 Management Corporation Sdn Bhd to handle the day to day

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 [BKI-12A-8/12-2015]
(RAMAJUTA PROPERTIES SDN BHD
V. RANK VACATION SDN BHD)

42 management and operation of the running of that building known as

43 Warisan Square.

44

45 The Plaintiffs claim against the Defendant is for breach of contract of the

46 agreement signed on the 26.7.2006 for non-payment of the fees which

47 were agreed upon.

48

49 The Defendants filed their Defence and Counter claim.

50

51 I however note that the basis of the Defendants Order 18 rule 19(a)

52 application were not pleaded in his Defence. The thrust of the

53 Defendants defence is mostly an excessive service charges and failure

54 of the Plaintiff to provide proper and efficient service and utilities such as

55 water, electricity and security.

56

57 But the main plank of the Defendants Order 18 rule 19(a) application is

58 on the Plaintiffs lack of locus standi and the non-compliance of the

59 provisions of land (Subsidiary Title) Enactment 1972. These 2 issues

60 were never pleaded or raised in their Defence.

61

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 [BKI-12A-8/12-2015]
(RAMAJUTA PROPERTIES SDN BHD
V. RANK VACATION SDN BHD)

62 I have read the Appellant/Plaintiffs skeletal submission and the

63 Respondents submission.

64 I do not think that given the facts of this case that this is a plain and

65 obvious case to say that the Plaintiff have no cause of action. It is

66 plainly obvious to me that the Plaintiff is pursuing their contractual rights

67 pursuant to the 2 Sales & Purchase Agreement. Surely since they are

68 the Vendors of that 2 units they sold to the Defendants they must have

69 the necessary locus standi.

70

71 Warisan Square Management Corporation Sdn Bhd is not the

72 corporation envisaged and incorporated under the land (Subsidiary Title)

73 Enactment 1972. It is a Sdn Bhd incorporated under the Companies

74 Act. It was set up by the Plaintiff.

75

76 Unless and until the issuance of the subsidiary titles and the formation of

77 a management corporation duly incorporated under the land (Subsidiary

78 Title) Enactment 1972 and issued a certificate of Incorporation by the

79 Land Office, the vendor by virtue of the terms of the 2 Sales & Purchase

80 Agreement is at liberty to impose and enforced the terms agreed upon.

81

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 [BKI-12A-8/12-2015]
(RAMAJUTA PROPERTIES SDN BHD
V. RANK VACATION SDN BHD)

82 The fees collected meanwhile will be accounted for and shall be

83 transferred to the Incorporated Management Corporation whose

84 members and office bearers shall be selected from the property owners.

85

86 The learned sessions court judge has misdirected himself in holding that

87 the land (Subsidiary Title) Enactment 1972 is applicable when it is not as

88 subsidiary titles have yet to be issued and transferred to purchasers.

89

90 I set aside the order made by the court below including costs and order

91 the said court to hear and dispose off the matter. I award costs to the

92 Appellant/Plaintiff in the sum of RM3,000.00.

93

94

95 Dated this day the 6th May 2016

96

97 - SIGNED -
98 DATUK DOUGLAS CRISTO PRIMUS SIKAYUN
99 High Court Judge
100 High Court at Kota Kinabalu
101

102

103

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 [BKI-12A-8/12-2015]
(RAMAJUTA PROPERTIES SDN BHD
V. RANK VACATION SDN BHD)

Counsel for the Appellant: Mr Wilson Lai

Messrs Lai & U
23-2, 2nd Floor
Lorong Lintas Plaza 2, Lintas Plaza
88300 Luyang
KOTA KINABALU

Counsel for the Respondent Ms Norlaily Anuar

Messrs Jumahad Julkarnain & Ahmadshah
Suite B-04-01, Lot 1, 4th Floor
Block B1, Warisan Square
88000 KOTA KINABALU
104

105

106

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