S.S. Tieh's Malaysian Law Updates

The answer is “No”.   The Court of Appeal in Duta Nilai Holdings Sdn Bhd v. Ismail Othman & Ors [2026] 4 MLRA 1 held that:   “[59] The Appellant’s case rests on the proposition that an unopposed expert’s opinion must be accepted. With respect, that is not an absolute rule: a trial judge may reject or limit the weight of expert evidence if the expert’s scope, methodology, assumptions or concessions undermine reliability .   [60] It is well settled that expert evidence is advisory in nature and does not bind the Court. Section 45 of the Evidence Act 1950 permits expert opinion to assist the court in matters requiring specialised knowledge, but the responsibility for assessing such evidence and arriving at findings of fact remains with the Court . The Court of Appeal in Kulasingam Samuel v. Rasammah JV Thambipillai [1996] 2 MLRA 97 observed that “expert witnesses only give opinion evidence, but the court is free to draw its own conclusions.” ...   ...

Maintenance fees and contribution to the sinking fund which have remained unpaid during a developer’s management period, shall vest in the joint management body on the date of the expiry of the said developer’s management period.   Section 16(2) of the Strata Management Act 2013 provides that:   “ (2) Any right, power or remedy granted to the developer under this Part in respect of the Charges, contribution to the sinking fund, and any other assets of the maintenance account and the sinking fund account, shall vest in the joint management body on the date of the expiry of the developer’s management period, and the joint management body shall have the same right, power or remedy as if it had at all times been a right, power or remedy of the joint management body, including those rights in respect of any legal proceedings or applications to any authority by the developer pending immediately before the expiry of the developer’s management period.”

The exercise of prosecutorial discretion of the Attorney-General is not immunised from civil actions. The Court of Appeal in Mohammad Najib bin Tun Haji Abdul Razak v Thomas Thomas @ Mohan a/l K Thomas [2026] MLJU 829 held that: “[52] For my part, I agree with the views expressed in the trio of cases that I discussed above. At the risk of repetition, I note that whilst art 145(3) of the Federal Constitution grants prosecutorial discretion to the Attorney General, it does not immunize the wrongful exercise of it from civil actions. Neither does any other written law provide such protection to the Attorney General . Furthermore, in all the cases in the law reports where the Attorney General or Deputy Public Prosecutors have been sued for malicious prosecution, save in the instant case in the court below and in the Nik Suhaimi case that was decided by the same High Court Judge, no court has said that said tort cannot be availed in a civil action because the prosecutorial discretio...

The Strata Management Tribunal is not a court within the context of Section 3 of the Courts of Judicature Act 1964 or Section 3(2) of the Subordinate Courts Act , but an inferior tribunal created by the Strata Management Act 2013.   The Court of Appeal in Yong Kein Sin & Anor v Perbadanan Pengurusan Springtide Residences and other appeals [2025] MLJU 1469 held at paragraph [31] of the judgment as follows:   “[31] We are of the view that an award of a SMT does not attract the application of the doctrine of res judicata. Our reasons are as follows: (1)     once a “court’ has finally decided a case (1 st Case), the decision in the 1 st Case may affect subsequent cases in other “courts” by way of an application of the doctrine of res judicata - please refer to the judgment of the Supreme Court delivered by Peh Swee Chin FCJ in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd   [1995] 3 MLJ 189, at 197 to 198, 198 and 199 to 200. (2...

  The Strata Management Tribunal is statutorily entitled to draw on its own knowledge and expertise. Section 114(2)(e) of the Strata Management Act 2013 provides that:   “(2) The powers conferred upon the Tribunal under subsection (1) shall include the following: to draw on its own knowledge and expertise;...”   The words “... to draw on its own knowledge and expertise ...” which also appear in Section 21(3)(b) of the Arbitration Act 2005, have been interpreted by the Court of Appeal in Kasugi Prima Sdn Bhd v Cobrain Holdings Sdn Bhd and another appeal [2025] MLJU 676 to include determination of matters of procedure, facts, substance, and merits, as follows:   “[35] ... An arbitrator’s authority under section 21(3)(b) of the AA is NOT LIMITED to only determine matters of procedures (and can be invoked to determine matters of facts, substance, and merit) .”

The Strata Management Tribunal is bound by the 4 corners of pleadings filed before it. In Foo Kok Kheong & Anor v Tribunal Strata & Anor [2024] MLRHU 1285 , the High Court held that:   “ [44] In any event, I have gone through the Statement of Defence and Counterclaim of the applicants in AIS-4, which were not processed by the Tribunal due to technical non-compliance. The Counterclaim did not even challenge the legality of the levy, collection of maintenance charges and/or sinking fund. It only arose in this application for judicial review. Even if the Statement of Defence and Counterclaim were to be processed by the Tribunal, the applicants are bound by their pleadings. The Tribunal, just like any other Tribunal, must confine itself to the four corners of the pleading ; see Ranjit Kaur v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 FC.”