By DayakDaily Team
KUCHING, Jan 9: The High Court here has ruled that the Strata Management Ordinance 2019 (SMO 2019) does not have retrospective effect, dismissing a claim by a joint management body (JMB) against a property developer for maintenance charges and sinking fund contributions allegedly incurred before the law came into force on March 1, 2022.
In a statement, the decision was delivered today, where the court allowed an application by Unique Harvests Sdn Bhd, dismissing the JMB’s writ of summons and statement of claim with costs.
The dispute arose from a claim by The Wharf JMB against developer Unique Harvests Sdn Bhd (Interhill Group) for maintenance charges and sinking fund contributions dating back to the period before the SMO 2019 came into force on March 1, 2022.
According to the JMB’s statement of claim, the developer managed The Wharf Condominium from the issuance of the Occupation Permit in May 2016 until the JMB’s formation on Feb 23, 2023.
It claimed that the developer allegedly failed to pay maintenance charges and sinking fund contributions for unsold parcels at The Wharf Condominium for the period before Feb 28, 2022.
In the developer’s statement of defence, it contended that the operation of SMO 2019 does not have retrospective effect; the statutory duties of SMO 2019 cannot apply to a regime before March 1, 2022; and the JMB was not incorporated before SMO 2019 and hence, the JMB cannot enjoy a power which it does not have to begin with, before March 1, 2022.
The developer then contended that the JMB has no obligation to pay maintenance charges and contribute to the sinking fund before the SMO 2019.
In this regard, the developer contended that the JMB’s reliance on the SMO 2019 as the basis for their claims is, in its entirety, legally untenable, as the SMO 2019 does not operate retrospectively.
The court was asked to determine two key questions of law through an Order 14A application, namely, whether the SMO 2019 could be applied retrospectively, and whether the JMB had the legal standing to bring claims for arrears that allegedly accrued before its own establishment and before the enforcement of the ordinance.
“In its decision, the court ruled that the SMO 2019 has no retrospective effect.
“Furthermore, the court found that the JMB lacked the locus standi to initiate the action for the period in question. As a result, the developer is not legally required to pay maintenance charges for unsold parcels or contribute to the sinking fund for any period preceding the law’s commencement on March 1, 2022,” said the statement.
It added that the ruling sets a vital precedent for the Sarawak property sector, specifically regarding the financial obligations of developers during the transition into the new strata management framework.
“It confirms that statutory duties created under the SMO 2019 are bound by the timeline of its enforcement, protecting stakeholders from backdated claims originating before the legislative change,” it said.
The court also dismissed an application by the JMB and ordered it to pay costs of RM5,000 to the developer, subject to allocatur fee.
The developer was represented by Lai Chee Hoe, Deyvinah Ganesalingam, Allan Lao, Lidwina Kiew Chin Chin, and Brenda Wong Yun Ru of David Allan Sagah & Teng Advocates. The JMB was represented by Soo Tong Jack of Suhaili Bong.
Developers and management bodies can obtain further details on the State’s strata regulations via the Sarawak Ministry of Public Health, Housing, and Local Government. — DayakDaily
