The Strata Management Tribunal (SMT) was created pursuant to the Strata Management Act 2013 (SMA) which came into force on June 1, 2015. It is a quasi-judicial body clothed with powers and authority to adjudicate on disputes or complaints concerning the performance of duties and exercise of powers conferred or imposed by the SMA.

Parties who are bound by the SMA would be proprietors, developers, management corporations (MC), joint management bodies (JMB), property managers and commissioners of buildings.

In simple terms, it is an avenue where various stakeholders or affected persons under the SMA go to when there are discrepancies concerning the affairs of stratified properties. A lot has been written on the overview of the functions and powers of the Tribunal.

Malaysia inherited a common law system from its former colonial masters. This means that decisions and the grounds of decisions handed down by the Courts of Law and other judicial bodies in the country will form a body of case laws which are binding on the courts below i.e. rulings and decisions by the Federal Court, Court of Appeal and High Court will have to be followed by the Sessions Court and Magistrates Court.

In other circumstances, the body of case law becomes persuasive authorities for Courts of Law confronted with cases of similar nature. One of the advantages of the common law system is that it promotes consistency of decisions.

An invaluable source of reference

In the context of the SMA, the awards and the grounds of awards handed down by the Tribunal can serve as an invaluable source of reference for the public. As a matter of fact, the SMA makes it mandatory for the Tribunal to provide reasons to support its awards. Section 117(2) of the SMA reads, “The Tribunal shall in all proceedings give its reason for its award in the proceedings.”

This provision is similar to Section 16AA of the Housing Development (Control & Licensing) Act, 1966 in relation to the Tribunal for Homebuyer Claims and Section 114 of the Consumer Protection Act 1999 in relation to the Tribunal for Consumer Claims. In interpreting these provisions, the courts have consistently held that this statutory requirement to give reason is mandatory.

Failure to do so will render the said award illegal and liable to be quashed by the courts. Alternatively, the aggrieved party may apply for a mandamus from the Courts to compel the Tribunal to give its reasons.

Nonetheless, Section 117 of the SMA is short of stating whether reasons shall be given in written form or it is sufficient to merely provide oral reasons for any awards made. Hitherto, the courts have taken a rather narrow approach in that the courts consider this requirement is satisfied as long as the Tribunal has given its oral reasons for its awards.

In other words, written reasons or grounds of decisions for any award is optional. The direct consequence of this is that the reasons supporting the awards of the Tribunal become shrouded in either secrecy or incoherence where the public may not be able to understand the rationale of the awards. Furthermore, the orally delivered awards could be weighed down with legal language, even though parties are not permitted to be represented by advocates and solicitors unless complex issues of law are involved.

While the ruling on sufficiency of oral reasons appears to be motivated by the need to have disputes disposed of speedily at the Tribunal, there could also be instances where it is desirable to prepare written reasons and thereafter making the same available to the public, for instance, through the official website of the housing and local government ministry (KPKT).

Lack of guidance for the public

The National House Buyers Association (HBA) believes that the lack of written reasons for awards could deprive the public, or persons aggrieved or affected by the SMA of proper guidance on matters related to the SMA, and the same mistakes are repeated in a vicious cycle of ignorance or misunderstanding.

This could also hamper the development of strata laws and the SMA as a whole since there is no known published body of awards by the Tribunal for comparison or comprehension.

HBA has previously mooted and we now reiterate our call for the publication of awards and reasons for such awards; even if not for each award, at least for those important awards that will impact the future application of laws.

Firstly, the SMA is a relatively new legislation and strata development has become more complex with the advent of mixed developments, phased developments, developments that incorporate public infrastructures such as the Mass Rapid Transit running through, under or above strata properties and there are many lacunas which require the clarification and interpretation of the courts and the Tribunal.

By preparing written reasons and thereafter publishing the same, this will enable the public to deepen their understanding and comprehension of the operation of the SMA. Over time, when the law becomes clearer and more settled, there may be fewer disputes, hence reducing the need to lodge claims with the Tribunal.

In addition, this will also expedite the decision-making process at the Tribunal because the body of decisions will serve as a useful source of reference.

Secondly, by making the written decisions available and transparent to the public, this will instill public confidence on the awards granted by the Tribunal. The written reasons will enable the public to understand the rationale of the awards.

For example, the judiciary regularly published its grounds of judgment at its official website to promote transparency and to allow the public to understand the rationale behind its decisions. Indeed, reasoned decisions can be an additional constituent of the concept of fairness.

Transparency

It was reported that the majority of claims filed with the Tribunal are practical in nature, revolving around issues such as recovery of maintenance charges, disputes on validity of meetings, squabbles between committee members, disputes involving property managers and inter-floor leakage problems.

While these types of cases are generally perceived as run-of-the-mill claims that rarely involve complex arguments on strata laws, the Tribunal ought to seriously consider publishing its written reasons with the main purpose of making transparent awards which may shed light or clarify the application of various provisions in the SMA for the benefit of the public who may be proprietors, committee members sitting in a JMB, MC or sub-MC. Also, there should be a common position adopted by each Tribunal for facts which are similar or the same so as to formulate a consistent policy.

We have been encouraging the KPKT to be transparent and accountable by publishing the Tribunal’s written reasons on KPKT’s website, perhaps under a separate section called “Past-Decisions’’ or “SMT-Resources” as a source of reference and information to the public.

It could also help preempt any potential disputes and motivate parties to settle the same or similar disputes if the outcomes from earlier published cases are already known.

HBA urges KPKT to consider the proposal to encourage the chairman of the SMT to publish their awards, decision and grounds and make available the avenues for viewing from KPKT’s website.

Datuk Chang Kim Loong is the Hon. Secretary-General of the National House Buyers Association (HBA).
HBA can be contacted at: Email: [email protected]
Website: www.hba.org.my
Tel: +6012 334 5676

This story first appeared in the EdgeProp.my e-weekly on Feb 19, 2021. You can access back issues here.

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