KUALA LUMPUR – Paying residents and members of the Parkville housing estate in Sunway Damansara have voted unanimously during an extraordinary general meeting (EGM) yesterday (Saturday, July 23) to appeal the Shah Alam High Court’s ruling that homeowners who refuse to pay the monthly service fees should not be compelled to operate the automatic boom gates themselves.
Speaking to The Vibes, Parkville residents’ association president Chow Hau Mun said all 32 out of 388 paying members who were present at the EGM were unhappy with the Petaling Jaya City Council’s (MBPJ) stand as well as the high court’s decision.
“I explained to the members why I believe the high court’s decision is wrong and that we have a very good chance of winning.
“All members who were present understood the explanation and believed that we should proceed with the appeal,” Chow said.
Despite having already filed a notice of appeal with the Court of Appeal at the beginning of the month, Chow said legal fees quoted by lawyers, which exceed RM5,000 have to be approved by members at a general meeting.
“Under our constitution, such expenses need to be approved by members.
“Also, some members suggested that we need a mandate of members at the general meeting to properly discuss and approve such expenditure.
“We have to explain the legal fees quoted by lawyers for approval purposes.”
Previously, The Vibes reported that Chow stressed that Parkville – a gated and guarded community – was planned by the developer as a gated and guarded community from the beginning.
He said it is unjust for 75% of homeowners to fork out a sum of money to maintain the boom gates and security while the remaining 25% do not participate.
“When owners bought their property from the developer, they had to sign a deed of mutual covenant agreeing to the formation of the residents’ association, as well as to pay maintenance fees for the security and upkeep of the housing estate.
“So, it is definitely unfair.”
Shah Alam High Court judge Shahnaz Sulaiman passed the ruling at the beginning of July, saying the Parkville residents’ association is not allowed to mandate those in the guarded community who choose not to pay the monthly service fees to operate the automatic boom gates on their own.
In dismissing a judicial review application, Shahnaz said the city council has the authority to prohibit any association under its authority from imposing unreasonable conditions on homeowners.
She was quoted by Free Malaysia Today as saying that the residents’ association’s approval to operate as a guarded community, in the view of the court, is under the purview of the city council.
It is not illegal, irrational, or unreasonable, she said, for the city council to refuse to let the association enforce such a rule.
The judge had also said the guarded community’s guidelines contain provisions that allow the council to prohibit the requirement that non-paying residents and non-members operate the boom gates on their own.
Chow filed the suit against the city council after it turned down the request for non-members to operate the boom gates on their own.
His lawyer, A. Surendra Ananth, based the need to impose the condition on a 2015 Federal Court ruling.
However, the city council asserted that Chow’s argument was unsupported by the court’s ruling.
Justice Shahnaz further said that the apex court’s ruling was on whether an inconvenience could amount to an actionable nuisance – and that this matter was not the issue before the court in this case.
“This issue was pertaining to the condition imposed by the respondent (MBPJ) to the residents’ association,” she said in her judgement.
The city council, in December 2020, approved the association’s application to operate a guarded community until this December.
At the beginning of last year, the association wrote to the city council informing the latter that it would impose its rule on non-paying residents, garnering complaints from several homeowners.
The city council then wrote to the association to cancel the condition, but the attempt was futile.
On March 30 last year, Chow challenged the city council’s decision.
Meanwhile, Petaling Jaya City councillor Derek Fernandez said the high court decision is an affirmation of the city council’s non-discrimination principle against homeowners in the use of public roads.
Fernandez said the decision by the high court is consistent with the city council’s guidelines and rules for approval for a residents’ association to operate a guarded security scheme on a public road. – The Vibes, July 24, 2022
