Strata Management

Strata Management Case Updates 15 – Whether a Tribunal President must give reasons immediately when pronouncing decision?

Court of Appeal, Civil Appeal No. W-02(A)-943-05/2017

BONIFAC LOBO A/L ROBERT V LOBO AND JMB SILVERPARK RESORT

V STRATA MANAGEMENT TRIBUNAL, PUTRAJAYA and 9 others.

(grounds made available on 26.5.2019)

Facts:

The 1st Appellant is a parcel owner in a development area known as “Silverpark Resort, Bukit Fraser”. The 2nd Appellant is the JMB for Silverpark Resort. Pursuant to an AGM convened on 28.10.2014, the 1st Appellant were elected as a member of the JMC. By 26.5.2015, all JMC members resigned, leaving the 1st Appellant alone in the JMC.

On 27.5.2015, a notice was sent to all parcel owners to convene an EGM on 13.6.2015 for the election of new members of JMC.

At the EGM, the 3rd to 9th Respondents were appointed as the new JMC members.

Notwithstanding that, the 1st Appellant maintained that he remained the chairman of JMC despite the vacancies.

the 1st Appellant filed a claim with the Tribunal. the Tribunal dismissed the claim of the 1st Appellant on ground that the decision is made in the High Court in an OS action and the Tribunal is bound by it. The President concluded that the JMC members elected on 13.6.2015 EGM are lawfully and validly elected.

Aggrieved with the decision, the Appellants filed an application for leave for judicial review in the High Court. Leave was granted. The grounds upon which the reliefs are sought, among others, that the Tribunal had breached the rules of natural justice:

(a) in not informing about the law relied by the President in refusing to recuse himself; and

(b) The President had acted in breach of the rules of procedural propriety under Section 113 of the SMA 2013.

After hearing proper, the Judicial Review was dismissed, hence this appeal to the Court of Appeal.

In the appeal, Learned Counsel, Gopal Sri Ram relied mainly on 2 issues.

(a) the President had breached the rules of natural justice for failing to give reasons in dismissing the recusal application. The 1st Appellant relied on Hadmod Products Ltd & Ors v Hamilton & Ors [1982] 1 All ER 1042 and several other English cases; and

(b) the President is bias.

Decision:

After hearing parties, the Court of Appeal opined that the law and judicial practice do not impose upon the Tribunal the requirement to give his comprehensive detailed reasons immediately at the time of the decision was pronounced.

In this instant appeal, the Tribunal President dismissed the recusal application on 3.2.2016 and delivered reasons for the award on 20.6.2016.

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The failure of the President to give his reason immediately would not constitute an error or breach of rules of natural justice although the preferred course was for the President to deliver his reasons on the same occasion when the ruling was made.

With regards to grounds of bias, the Court of Appeal observed that the comments made by the President must be looked at in the proper context. There is no element of biasness and the Appeal is dismissed.

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Lai Chee Hoe
Partner at Chee Hoe & Associates. With 10+ years of experience under his belt, he specializes in civil and corporate litigation. He is also the current Chairperson of various Joint Management Bodies.

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