Tuesday May 1, 2012 By PRISCILLA DIELENBERG prisdberg@thestar.com.my
PUTRAJAYA: The Court of Appeal here has affirmed a High Court ruling
that the Commissioner of Buildings (COB) was right in deciding that only
unit owners and not their proxies can be elected as council members of
high-rise management corporations.
The effect is that property
owners can only have one representative in a management corporation
regardless of how many parcels they own.
The Court of Appeal
panel, comprising Justices Clement Allan Skinner, Linton Albert and Lim
Yee Lan, upheld the decision by Penang High Court Justice John Louis
O’Hara in what was the first judgment of its kind in the country.
Justice
O’Hara had on June 29, 2010, ruled in favour of the COB, who is the
Penang Municipal Council president, and a unit owner Yeap Dah Long who
was the addressee in the COB decision involving the 36-storey Gurney
Tower.
The tower houses The Gurney Resort Hotel & Residences
owned by the Employees Provident Fund (EPF), a fitness centre, eateries
and an office block. EPF owned 15 parcels with 259 rooms in the building
and had more than one representative in the management corporation.
Following
complaints from various parcel owners of the office block, COB had on
March 3, 2010, ruled that the management corporation’s council was not
properly constituted; only unit owners could be elected as council
members; proxies could not be elected nor made chairman; and EPF was
only entitled to appoint one representative in respect of the election
although it owned 15 parcels.
COB also ruled the creation of two sub-management corporations – one for the hotel and one for the office block – was invalid.
Yesterday’s
appeal was brought by Gurney Tower Management Corporation, Bondell
Corporation Sdn Bhd which operates the fitness centre, and two proxy
holders – M. Elangovan and Vincent Tan Boon Sun.
They had
appealed on grounds that the COB had no jurisdiction to make the
decision and had breached the rules of natural justice, and the High
Court judge had committed errors of law in his decision.
The appellants were represented by G. Arumugam, the COB by Karin Lim and M. Murgan, and Yeap by K.N. Lee