Case Update

Abuse of Power by the Local Government:

1. We are pleased to inform that we have acted for a client whose property of a building was wrongly raided and the times therein seized by Kajang Town Council (MPKj) in an abuse of power case. We were successful in establishing that there was indeed an abuse of power and that MPKj committed the tort of trespass in law. The High Court at Shah Alam awarded damages to our client. Costs was also ordered against (MPKj). MPKj accepted the decision as there was no appeal lodged.

2. We are also pleased to inform that we have acted for a client who was denied Planning Permission (KM) for its new business premise by Petaling Jaya City Council (MBPJ) and whose Trade Licence for its new business premise was refused renewal by MBPJ. In a Judicial Review by the High Court at Shah Alam, MBPJ’s decisions were quashed by a Writ of Certiorari and MBPJ was ordered by Writ of Mandamus to issue the KM and to renew the Trade Licence accordingly. Costs was also awarded against MBPJ.

Recently the Court of Appeal pronounced in agreement with the HIgh Court at KL that the sale of a property which has been identified in the Development Order (DO) issued by MBPJ as a common facility would be a breach of the law rendering the document of title issued in respect of that building to be defeasible. This was despite the following:

a. The lack of complaint or action taken by MBPJ for the alleged breach of the DO by the developer; and

b. The issuance of the Certificate of Fitness for Occupation (CFO) for the development. The Management Corporation (MC), as the owner of common property under the Strata Title Act succeeded in the recovery of the ownership of that building from a third party, the registered proprietor with the strata title, who had purchased the same from the developer. We are concerned that the conferment of such right on the MC to claim for ownership of common property when there is no nexus of any contractual relationship with the third party may encroach into the province of public law to enforce public rights (Town and Country Planning Act) when the public authority had not deem fit to do so.