Appellate court upholds decision that swimming pool, clubhouse are 'common property' of Langkawi condo complex

• In the unanimous decision, Judge Datuk Wong Kian Kheong, who sat with Datuk Azimah Omar who led the bench, along with Datuk Ismail Brahim as the third judge, said the court also agreed that Perbadanan Pengurusan Chogm as the management committee had the locus standi to initiate the counterclaim, which the High Court had allowed.

PUTRAJAYA (Nov 28): A three-member Court of Appeal bench ruled on Tuesday (Nov 25) that a pool, clubhouse, and two other land plots for a Tenaga Nasional Bhd (KL:TENAGA) substation and a proposed commercial building are the “common property” of a condominium complex in Langkawi, Kedah.

Judge Datuk Wong Kian Kheong, who wrote the broad grounds in dismissing the appeal by developer Baiduri Heights Development Sdn Bhd and others against Perbadanan Pengurusan Chogm Villa, said the High Court judge who originally heard the matter had not erred in the decision to rule the land where the facilities are on as “common property”.

In the unanimous decision, Wong, who sat with Datuk Azimah Omar who led the bench, along with Datuk Ismail Brahim as the third judge, said the court also agreed that Perbadanan Pengurusan Chogm as the management committee had the locus standi to initiate the counterclaim, which the High Court had allowed.

In deciding the four disputed land areas as “common property”, Wong cited Section 4 of the Strata Titles Act that defines it as a development area, “as so much of the lot is not comprised (including any accessory parcel) of any provisional block as shown in an approved strata plan”.

“The learned High Court judge did not err in law or in fact by deciding that the swimming pool, clubhouse, commercial building, and the TNB substation are the space in the strata title constituted as 'common property' of the development area, because the approved layout plan stated among others that they are 'kemudahan-kemudahan' (facilities) in the development area.

“The approved layout plan did not provide the four facilities/land to belong in law and in equity to the developer, and the planning permission, approved building plans, and letter from 1994 did not state that the legal and beneficial ownership of those facilities belong to the developer,” he said.

In addition, the judge said, the swimming pool or clubhouse are situated where there is no separate access in the development area.

“How could a parcel in a development area, that which is privately owned, have no separate entry to the development area or exit there? The developer’s sales brochure regarding the development area clearly stated that the pool/clubhouse were common facilities which could be used by the parcel owners,” Wong reasoned.

The above facilities, he said, constituted the development area’s common property.

The bench also ruled that the counterclaim was not filed by the management committee out of time, as there was “continuance of injury or damage” with regard to the acts of the omission of the Land Office, and the Kedah Land and Mines Office, where the management committee was deprived of such common property.

He cited the Public Authorities Protection Act 1948, where “proceeding is commenced against any department in respect of any alleged neglect or default in the execution duty or authority, the suit or action or proceeding can be instituted after the act of neglect or default complained of or in the case of a continuance of injury or damages within 36 months next after the ceasing thereof”.

“The High Court correctly decided that the Land Office and the Kedah Land and Mines Office had committed the tort of misfeasance in public office. Consequently, the Kedah state government was vicariously liable to the management committee for this tort committed by both officers,” he added.

Perbadanan Pengurusan Chogm had sued the developer, the Land Office, the Kedah Land and Mines Office, the Langkawi Municipal Council, and seven others in the counterclaim.

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