Post on 25-May-2019
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DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO.W-02(NCVC)(W)-2690-11/2012
ANTARA
1. ABDUL RAOUF BIN AB RAHMAN 2. WAFAA BT A. KADIR 3. AHMAD BIN BACHOK 4. AMEER BIN NOORDIN 5. BADRUL HISHAM BIN KAMAL ARIFFIN 6. SITI NURBAYAH BINTI KADDIM 7. RAMLI BIN KARIM (DATO DR) 8. HAJAH FATIMAH BINTI SALLEH 9. HAMZAH BIN IBRAHIM 10. HAZIZAN BIN DARUS 11. PAUZIAH BINTI ISMAIL 12. IRIZNA SDN BHD (NO. SYARIKAT: 219667-9) 13. MAZLIPAH @ MAZLIFAH BINTI MOHD 14. MODIN @ MAIDEEN BIN ALI 15. UNGKU RAHILAH BINTI UNGKU MAHMOOD 16. MOHAMAD ILLIAYAS BIN SEYED IBRAHIM 17. MOHAMED MOKHTAR BIN AHMAD 18. MOHAMED SETH BIN ABU BAKAR 19. NORAIDAH BINTI MOHD SHARIFF 20. RAGAYAH BINTI MAT ZIN 21. RAHAYAH BINTI YAHYA 22. RAJA BEE BT MD YUSOFF 23. RAZIYAH BINTI YAHYA
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24. ROZIYAH BINTI YAHYA 25. SHAZLINA BINTI SHAHRIMAN 26. SITI SARAH BINTI OTHMAN 27. SITI ZEENATH BT SHAIK IBRAHIM 28. TAJALLUDIN BIN MD. RASHID 29. ZAHRIDAH BINTI ISMAIL 30. MOHAMAD BIN SHEIK MANA 31. AZIZAH BINTI KATAN 32. HALIBULLAH BIN ABDUL MAJID 33. SARA BEE BINTI MOHD SULTAN 34. JAMILAH @ NORMAH BTE ISMAIL 35. MOHAMMAD SHARIFF BIN MD ESA 36. ROSHAYATI BINTI SHAFIE 37. NIK AHMAD KAMAL ARIFF BIN N. OMAR … PERAYU- 38. SYANIZA BINTI HISHAM PERAYU
DAN
1. PETPLUS (M) SDN BHD (No.Syarikat:221200-T)
2. PINGGIR KIARA SDN BHD (Dalam Likuidasi) (No.Syarikat:150156-M) (digulungkan melalui Petisyen Penggulungan No. D1-28-888-2002
3. INTAN PERMATA PROPERTIES SDN BHD (No. Syarikat:338979-P)
4. AHMAD RIZAL BIN UMAR 5. A.H.M.S.HOLDINGS SDN BHD
(No.Syarikat:338979-P) 6. AWANG AFDZAL ADENI 7. FARRAH MAISYARA NUR’AIN JIMMY 8. AZIZI BIN OMAR
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9. ZAINAB BINTI YATIM 10. FARAHNAZ IREENA BINTI AMER HAMZAH 11. FAZLYNN NADIRA BINTI MOHD AZRUL RAJ 12. HABIL AKRAM BIN ROSLAND 13. KAMARUL AMIR BIN MOHD KASIM 14. MOHAMMAD NAZRIN RAHIM MAHMOOD 15. HANIFAH @ AINON BINTI JAAFAR 16. RAJA NOREZAH BINTI RAJA BAHARUDDIN 17. RAPID-AGE MARKETING SDN BHD (No.Syarikat: 563402-D) 18. SHAHRIZ IMRAN BIN ABOO SAMAH 19. SHALYA MORIFF BINTI MOHD SHARIFF 20. SITI NOR AMALINA BINTI SARIFF 21. SYED MOHD SALEHUDDIN WAFA BIN
SYED MOHD MUMTAZ WAFA 22. WAN NOOR AINI BINTI HJ ABU 23. ALIA BINTI MUHAMMAD ALI 24. AFFIN BANK BERHAD … RESPONDEN- 25. AFFIN ISLAMIC BANK BERHAD RESPONDEN
(Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Wilayah Persekutuan, Malaysia
(Bahagian Sivil) Guaman No:22NCVC-193-2011
Antara
1. Abdul Raouf Bin Ab Rahman 2. Wafaa Bt A. Kadir 3. Ahmad Bin Bachok 4. Ameer Bin Noordin 5. Badrul Hisham Bin Kamal Ariffin 6. Siti Nurbayah Binti Kassim
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7. Ramli Bin Karim (Dato’Dr) 8. Hajah Fatimah Binti Sallah 9. Hamzah Bin Ibrahim 10.Hazizah Bin Darus 11.Pauziah Binti Ismail 12.Irizna Sdn Bhd (No. Syarikat:219777-9) 13.Mazlipah @ Mazlifah Binti Mohd 14.Modin @ Maideen Bin Ali 15.Ungku Rahilah Binti Ungku Mahmood 16.Mohamad Illiayas Bin Seyed Ibrahim 18.Mohamed Mokhtar Bin Ahmad 19.Noridah Binti Mohd Shariff 20.Raqayah Binti Mat Zin 21.Rahayah Binti Yahya 22.Raja Bee Bt Md Yusoff 23.Raziyah Binti Yahya 24.Roziyah Binti Yahya 25.Shazlina Binti Shahriman 26.Siti Sarah Binti Othman 27.Siti Zeenath Bt Shaik Ibrahim 28.Tajalludin Bin Md Rashid 29.Zahridah Binti Ismail 30.Mohamad Bin Sheik Mana 31.Azizah Bin Katan 32.Halibullah Bin Abdul Majid 32.Sara Bee Binti Mohd Sultan 33.Jamilah @ Normah Bte Ismail 35.Mohammad Shariff Bin Md Esa 36.Roshayati Binti Shafie 37.Nik Ahmad Kamal Ariff Bin N.Omar … Plaintif- 38.Syaniza Binti Hisham Plaintif
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Dan
1. Petplus (M) Sdn Bhd (No. Syarikat:221200-4)
2. Pinggir Kiara Sdn Bhd (Dalam Likuidasi) (No. Syarikat: 1505156-M) (digulungkan melalui Petisyen Penggulungan No. D1-28-888-2002)
3. Intan Permata Properties Sdn Bhd (No. Syarikat: 637828-T)
4. Ahmad Rizal Bin Umar 5. A.H.M.S. Holdings Sdn Bhd
(No. Syarikat: 338979-P) 6. Awang Afdzal Adeni 7. Farrah Maisyara Nur’ain Jimmy 8. Azizi Bin Omar 9. Zainab Binti Yatim
10.Farahnaz Ireena Binti Amer Hamzah 11.Fazlynn Nadira Binti Mohd Azrul Raj 12.Habil Akram Bin Rosland 13.Kamarul Amir Bin Mohd Kasim 14.Mohammad Nazrin Rahim Mahmood 15.Hanifah @ Ainon Binti Jaafar 16.Raja Norezah Binti Raja Baharuddin 17.Rapid-Age Markekting Sdn Bhd (No.Syarikat: 563402-D) 18.Shahriz Imran Bin Aboo Samah 19.Shalya Moriff Binti Mohd Shariff 20.Siti Nor Amalina Binti Sariff 21.Syed Mohd Salehuddin Wafa Bin Syed Mohd Mumtaz Wafa 22.Wan Noor Aini Binti Hj Abu 23.Alia Binti Muhammad Ali 24.Affin Bank Berhad 25.Affin Islamic Bank Berhad … Defendan-Defendan
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CORAM
CLEMENT SKINNER, JCA LINTON ALBERT, JCA
LIM YEE LAN, JCA
GROUNDS OF JUDGMENT
Brief Facts [1] The Appellants are a group of purchasers who had bought units in
a housing development known as Mas Kiara Condominium (“the
Project”) built on 4 parcels of land owned by Petplus (M) Sdn Bhd the
(“1st Respondent”). The developer of the Project was Pinggir Kiara Sdn
Bhd (“the 2nd Respondent”). The 1st and 2nd Respondents had entered
into a Joint Venture Agreement (“JVA”) dated 2.9.1993 under which the
2nd Respondent was appointed to develop the Project in accordance
with the terms thereof.
[2] The Appellants entered into Sale & Purchase Agreements with the
1st and 2nd Respondents to purchase their respective units within the
Project.
[3] The Project was abandoned by the 2nd Respondent in 2001.
Thereafter the 2nd Respondent was wound-up on 17.2.2003.
[4] Consequently the 1st Respondent terminated the JVA between it
and the 2nd Respondent on 30.4.2003.
[5] Later on steps were taken to restart and complete the Project.
Subsequently the 1st Respondent entered into a Master Agreement with
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Intan Permata Properties Sdn Bhd (“the 3rd Respondent”) whereunder
the 3rd Respondent was appointed as developer and turnkey contractor.
[6] The salient terms of the Master Agreement were:
(a) that certain units which had already been sold by the 1st and
2nd Respondents (“sold units”) could not be sold by the 3rd
Respondent;
(b) Units reserved for the 1st Respondent (the Petplus Units)
could not be sold by 3rd Respondent;
(c) the balance of the units including penthouse and commercial
units, were available for sale by 3rd Respondent.
[7] The purchasers of the units in the Project formed the Mas Kiara
Condominium Purchasers’ Committee (“the Purchasers’ Committee”).
The Ministry of Housing arranged for meetings between the Purchasers’
Committee, the 1st Respondent, the Liquidators of the 2nd Respondent
and the 3rd Respondent.
[8] At a meeting on 7.11.2007 which was attended by the 2nd
Respondent’s Liquidator, the 3rd Respondent, the Purchasers’
Committee and their Solicitor Encik Firuz, it was confirmed that the
Purchasers’ Committee was agreeable to the terms of a Tripartite
Agreement to be executed between the 1st Respondent, the 3rd
Respondent and the respective purchasers who had previously
executed sale and purchase agreements with the 1st and 2nd
Respondents.
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[9] It is not in dispute that many other purchasers did sign the
Tripartite Agreement. However the 1st to 30th Appellants did not sign the
Tripartite Agreement, whilst the 31st to 38th Appellants did sign the
Tripartite Agreement but later on the 3rd Respondent terminated their
said agreements as they were alleged to have breached the same.
[10] The 1st to 30th Appellants claimed that they did not sign the
Tripartite Agreement as the 3rd Respondent had unilaterally imposed
unreasonable conditions in the Tripartite Agreement. They complained
that they were required to produce the original of the sale and purchase
agreement entered into with the 2nd Respondent and the original
documents evidencing payment to the 2nd Respondent of the purchase
price of their units.
[11] The 31st to 38th Appellants claimed their Tripartite Agreements
were wrongfully terminated by the 3rd Respondent when they allegedly
did not pay the purchase price in accordance with the agreement. They
say the 3rd Respondent should have charged interest on the outstanding
amount instead of terminating their agreements.
[12] The Appellants filed this suit against the 1st, 2nd and 3rd
Respondents, naming them as the original defendants alleging that the
3rd Respondent had refused to recognize their rights to the units they
had purchased and that the 3rd Respondent was attempting to sell their
units to third parties.
[13] After initiating the suit, the Appellants discovered that their
respective units had been sold to the 4th to 23rd Respondents (“New
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Purchasers”). These New Purchasers were accordingly joined as
defendants to the action.
[14] The relief claimed by the Appellants are as follows:
1. As against 1st and 3rd Respondents
(a) a declaration that the Appellants had acquired a legal and
beneficial right in their respective units in the Mas Kiara
Condominium;
(b) in addition or alternatively a declaration that the 1st and 3rd
Respondents are constructive trustees for the Appellants for
their respective units;
(c) an injunction to restrain the 1st and 3rd Respondents from
disposing of their respective units;
(d) a mandatory injunction ordering the 1st and 3rd Respondents
to allow them to sign the Tripartite Agreement;
(e) a mandatory injunction ordering the 1st and 3rd Respondents
to reinstate the terminated Tripartite Agreement in respect of
the 35th to 38th Appellants;
(f) in addition or alternatively, general aggravated and
exemplary damages in addition to or in lieu of an injunction,
but at the trial, the Appellants withdrew their claim for
damages.
2. As against the 2nd Respondent
(a) a declaration that the Appellants have acquired a legal and
beneficial right in their respective units.
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3. As against the 4th to 23rd Respondents
(a) an Order declaring that these New Purchasers obtained their
interest subject to the pre-existing legal/beneficial and
equitable right/interest of the Appellants in the said units;
(b) a declaration that the 4th to 23rd Respondents are not bona
fide purchasers since they have express or implied notice of
the pre-existing legal/beneficial and equitable rights/interest
of the Appellants in the units which is superior and first in
time from the rights of the said New Purchasers.
The High Court decision [16] After 18 days of trial, in a 345 page Judgment the learned High
Court Judge dismissed the Appellants’ claim for all the reliefs claimed.
[17] It is unnecessary to repeat the findings of the High Court here.
This Appeal [18] At the commencement of the hearing we were informed by learned
Counsel for the Appellants that the 7th, 17th, 18th, 19th, 25th, 26th and 28th
Appellants have withdrawn their appeals. Therefore the expression “the
Appellants” will exclude any reference to them. The Appellants raised
several grounds in their Memorandum and Supplementary
Memorandum of Appeal. We will now consider these grounds.
Grounds 1 and 4 (and grounds 2 and 6 of the Supplementary
Memorandum of Appeal)
[19] The Appellants complained that the learned Judge had erred when
she held that the Appellants had caused the failure of the rehabilitated
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project through their own inequitable behavior and that although the 3rd
Respondent had tried to get the Appellants to accept the offer of the
rehabilitated scheme it was the Appellants who had refused to furnish
the documents requested by the 3rd Respondent. It was contended by
the Appellants that the learned Judge was wrong to say that they had
caused the rehabilitation to fail when she failed to realize that the said
Project had in fact been rehabilitated and a number of their units wrongly
sold off to third parties. The Appellants further complained that the
learned Judge had wrongly stated that the Appellants were trying to
enforce their claims under the original sale and purchase agreements
whereas the Appellants’ claim in this suit was only for a declaration that
they had acquired legal and beneficial rights to their units.
[20] We do not agree with the Appellants contention. Whether the
Appellants had behaved inequitably or unreasonably are questions of
pure fact upon which the learned trial Judge was fully entitled to arrive at
a finding. Put in another way the matters complained of by the
Appellants relate to findings of fact made by the learned trial Judge
based on the evidence adduced at the trial. We find no basis for the
Appellants’ complaint that the 3rd Respondent had unreasonably
introduced onerous conditions such as by asking for production of
original receipts before the Appellants could sign the Tripartite
Agreement. The evidence shows that by a letter dated 22.6.2007 (at
page 8233, Vol 42 Record of Appeal Part C) the 2nd Respondent’s
Liquidator wrote to the Purchasers’ Committee referring them to a
meeting at the Ministry held on 6.6.2007, and enclosing a copy of the
draft Tripartite Agreement for the Purchasers’ Committee’s comment. In
this draft Clause K requires the production of, inter alia, original
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documentary proof of payment to the satisfaction of the 3rd Respondent
that the payments mentioned therein had been paid to the 2nd
Respondent in respect of the original purchase price.
[21] It is to be noted that on the 4.2.2008 the Purchasers’ Committee
wrote to the Appellants advising them not to sign the Tripartite
Agreement or pay any monies yet until further advice from the
Committee.
[22] But the evidence clearly shows that some two months later on
25.4.2008 the Purchasers’ Committee wrote to the Appellants that they
could now proceed to execute the Tripartite Agreement. A copy of the
Tripartite Agreement that was signed by some of the Appellants is found
at page 164 of Appellants’ Core Bundle Vol 1. It shows that the
requirement to produce the original documentary proof of payment to the
satisfaction of the 3rd Respondent, remains as a term of the Tripartite
Agreement. Therefore in our view, there is no basis for the Appellants’
complaint that the 3rd Respondent had unreasonably introduced onerous
terms before they could sign the Tripartite Agreement.
[23] The written judgment of the learned Judge shows that she had
considered the case of each appellant and had given her reasons why
she found their behavior inequitable or unreasonable. The learned
Judge was entitled to make such an evaluation and conclusion and it
has not been demonstrated to us where she went wrong. What we have
just said applies with equal force to the complaints of the individual
appellants, raised in grounds 41 to 96 of the Supplementary Record of
Appeal.
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Grounds 2 & 3 (and grounds 3 and 5 of the Supplementary
Memorandum of Appeal)
[24] The Appellants complained that the learned Judge erred in finding
that whatever equitable rights that the Appellants were claiming had
been superseded by the new arrangement for rehabilitation and
therefore the Appellants cannot insist on specific performance, when the
Appellants did not even pray for specific performance as a relief.
[25] We find no merit in the Appellants’ contention. The evidence
shows that when the 3rd Respondent initiated moves to rehabilitate the
Project the Purchasers’ Committee who represented all the purchasers
including the Appellants, agreed that the Tripartite Agreement would be
executed by all the purchasers. In this regard the learned Judge made a
specific finding that it is the Appellants’ pleaded case that a new
agreement titled “the Tripartite Agreement” was concluded between the
parties. At page 1347 of Vol 6 of the Supplementary Record of Appeal
the learned Judge said in her judgment that: “Paragraphs 28-30 of the Plaintiffs Amended Statement of Claim acknowledged that the Purchasers’ Committee was at all material time representing them to deal with all parties, including D, D2 and D3 as to the purchase. In cross-examination of all the Plaintiffs herein, they have agreed that the Plaintiffs are a part of the Purchasers’ Committee and the Plaintiffs are agreeable to the stand or decision taken by the Purchasers’ Committee.”
[26] Even though it is true that the Appellants did not pray for specific
performance, it is our view that the declaratory orders and the
injunctions sought by the Appellants, if granted, had the effect of
ordering the Respondents to specifically perform the original sale and
purchase agreements that had been substituted by novation and
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therefore the original contract need not be performed, particularly so
after the Appellants abandoned their prayer for damages. In our view
once the Appellants had agreed to the substitution and once the
Purchasers’ Committee confirmed the Tripartite Agreement and wrote to
them, requesting them to proceed to execute the Tripartite Agreement, it
was then the duty of the Appellants as parties to the agreement to
execute it. The fact that some of the Appellants refused to do so does
not assist the Appellants. In Ayer Hitam Tin Dredging Malaysia Berhad
v YC Chin Enterprise Sdn Bhd [1994] 2 MLJ 754 at 765 the Supreme
Court held: “True that merely because the parties contemplate the preparation of a formal contract, that by itself will not prevent a binding contract from coming into existence before the formal contract is signed. It is not difficult to cite an anthology of cases for this proposition but we need no more than then refer to Von Hatzfeldt-Wildenburg v Alexander at pp 288, 289 … .”
[27] In our view the learned Judge’s decision is warranted in law based
on the facts she found. Section 63 of the Contracts Act 1950 provides
as follows: “If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.”
Ground 5 (and grounds 10 and 11 of the Supplementary Memorandum
of Appeal)
[28] The Appellants complained that the learned Judge erred when she
held that the Appellants have no contractual claim against the 1st and 3rd
Respondents since the contractual obligation to deliver the units is with
the 2nd Respondent.
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[29] We find no merit in this ground. The original Sale and Purchase
Agreements entered into with the Appellants must be properly read to
ascertain the true obligation of 1st and 2nd Respondents respectively.
The Agreements clearly make reference in their preamble to the fact that
the party who was selling the unit to the Appellants was the 2nd
Respondent and not the 1st Respondent. Further the purchase price
was to be paid to the 2nd Respondent and it was the 2nd Respondent
who was to deliver the completed units to the Appellants. The 3rd
Respondent was not a party to the original Sale and Purchase
Agreements.
[30] The learned Judge was therefore correct in her finding that the
contractual obligation to deliver the units was that of 2nd Respondent.
[31] In our view the requirement for the 1st Respondent to sign the
strata titles when ready, in favour of the respective purchasers was only
necessary as the 1st Respondent was the registered owner of the land
being developed by the 2nd Respondent.
Ground 6 (and grounds 12, 13 and 14 of the Supplementary
Memorandum of Appeal)
[32] The Appellants complained that the learned Judge erred in
deciding that there was no privity of contract between the former
purchasers/appellants and the 3rd Respondent, ignoring section 26(b) of
the Specific Relief Act. In this regard, learned Counsel for the
Appellants referred us to the Master Agreement dated 27.5.2004
entered into between the 1st and 3rd Respondents (see pg 67 to 83 of the
Appellants Core Bundle CB 1) and in particular to preamble ‘I’ and to
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Clause 2, Clause 2.1, Clause 2.1.1, Clause 2.1.4 and Clause 2.1.5
thereof. Learned Counsel submitted that there was a direct adoption of
the previous agreements by the 1st and 3rd Respondents. Accordingly
learned Counsel submitted that since the 2nd Respondent who was the
1st Respondent’s agent had failed to deliver the units to the Appellants,
the 3rd Respondent as the new agent of the 1st Respondent must do so
since the 1st Respondent was now in a position to fulfill its obligation
after having entered into the Master Agreement. Counsel further
contended that since the Appellants had pleaded s 26 of the Specific
Relief Act, therefore they did not need to plead specific performance.
[33] We do not agree with the above contentions. In the first place,
there was in fact no privity of contract between the Appellants and the
3rd Respondent. Secondly the 1st Respondent’s obligation under the
Sale and Purchase Agreement did not include an obligation to deliver
vacant possession. That was an obligation of the 2nd Respondent as
“Vendor”. Therefore even after the 3rd Respondent took over as the new
developer and allegedly became the “new agent” of the 1st Respondent,
there was still no obligation on the part of the 1st Respondent to deliver
vacant possession of the units – the original position of the 1st
Respondent had not changed, contrary to what the Appellants contend
now. Thirdly, the preamble and Clause 2 of the Master Agreement
cannot be read in a disjointed manner. Even though the 1st Respondent
and 3rd Respondent had made reference to the position of the
Appellants in those clauses of the Master Agreement earlier identified by
the Appellants, Clause 2.1.7 expressly states that: “All the purchasers and purchasers financiers, shall execute the Supplementary Agreement and /or novation agreement (i.e. the Tripartite Agreement) relating to their acquisition of the properties.”
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[34] Therefore, those Appellants who did not sign the Tripartite
Agreement, cannot rely on Clauses 2, 2.1, 2.1.1, 2.1.4 and 2.1.5 to seek
to enforce their alleged rights. As regards those Appellants who did sign
the Tripartite Agreement, the success of their claim depended on
whether there was a wrongful termination of their agreements, which the
learned Judge found there had been no wrongful termination of their
agreements. We agree with the reasons given by the learned Judge for
so finding.
Ground 7 and 8 (and grounds 15 and 16 of the Supplementary
Memorandum of Appeal)
[35] The Appellants complained that the learned Judge erred when she
held that the claims of the Appellants who rely on the original Sale and
Purchase Agreements for declaration of ownership of their respective
units are time barred pursuant to section 9 of the Limitation Act, whereas
the Appellants rely on equity for their claims.
[36] We do not agree with the above contention. The Appellants claim
here are clearly contractual in nature and even though they seek
declaratory relief, the right to such relief are founded on the Sale and
Purchase Agreements they had entered into. Clearly their claim to
whatever rights they wish to have declared accrued from the date of
breach of the agreements they entered into i.e. on the expiry of the 36
months to deliver vacant possession of the units, and not from the date
on which the Appellants discovered the sale of their units by the 3rd
Respondent, who was not a party to the original Sale and Purchase
Agreements.
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Ground 9 (and 20 of the Supplementary Memorandum of Appeal)
[37] The Appellants complained that the learned Judge was wrong to
say that the 3rd Respondent had not unjustly benefited even though the
Appellants were required to pay another RM39,500.00 more to continue
with the units in the rehabilitated scheme and the new selling price for
the units had increased by 3 fold.
[38] We find no merit in the Appellants’ contention. The increase in
value of the units is a matter dictated by market forces and the persons
who would feel the effect of such increase were the new purchasers
which should not be a concern of the Appellants. The Appellants were
only required to pay RM39,500.00 to continue with the purchase of their
units. We find nothing wrong in what the learned Judge said.
Ground 10 (and 21 of the Supplementary Memorandum of Appeal)
[39] The Appellants complained that the learned judge was wrong
when she did not consider the plea of estoppel raised by the Appellants
on the ground that it was not pleaded.
[40] We do not agree with this submission. As a general proposition,
while it is correct that estoppel need not be pleaded if sufficient facts
have been proved to allow the plea of estoppel to be raised, in this case
the learned Judge had made an express finding of fact that the 3rd
Respondent had not made any clear and unequivocal representation to
the Appellants so as to allow a plea of estoppel to be raised.
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[41] In view of the finding of fact made by the learned Judge, it is our
view that she was correct in not considering the plea of estoppel.
Ground 11 (and 22 of the Supplementary Memorandum of Appeal)
[42] The Appellants complained that the learned Judge erred when she
held that the cause of action against the 2nd Respondent is time barred
after 6 years, whereas the Appellants say their limitation period is 12
years.
[43] In our judgment the Appellants’ claim against the 2nd Respondent
is a contractual claim, the cause of action of which accrues from the
date of breach of the Sale and Purchase Agreement. It is our view that
the breach occurred at the expiry of the 36 months period when delivery
of vacant possession should have occurred. We therefore find the
learned Judge was correct in her decision.
[44] Even if it can be argued that the Appellants’ claims are for
recovery of land and therefore, the limitation period is 12 years under
section 9 of the Limitation Act, their cause of action would still be time
barred as found by the learned Judge. We agree with her findings.
Ground 12 (and 32 of the Supplementary Memorandum of Appeal)
[45] The Appellants complained that the learned Judge erred in
deciding that the 3rd Respondent had approval to sell the respective
units to new purchasers under the authority given to the 3rd Respondent
by the Ministry of Housing even though there was no power under the
Housing Development (Control and Licensing) Act 1966 which allows
the Ministry of Housing to grant such approval to resell.
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[46] We do not agree. In our view even if the Ministry of Housing has
no such power, we do not see on what basis the agreements entered
into between the 3rd Respondent and the new purchasers are rendered
invalid. There is no provision of law that states that if the 3rd
Respondent enters into a sale and purchase agreement with new
purchasers in respect of the units already sold to the Appellants, without
the approval of the Ministry of Housing, such agreements are invalid in
law.
[47] We agree with the learned Judge that if the 3rd Respondent had
breached any of the conditions in the permit issued to the 3rd
Respondent by the Ministry of Housing, then that would be a matter of
enforcement by the Ministry which does not affect the validity of the
contracts entered into between the new purchasers and the 3rd
Respondent.
Ground 13
[48] The Appellants complained that the learned Judge erred when she
held the Appellants were guilty of undue delay in pursuing their claim,
whereas the evidence shows that the Appellants had not delayed as
they were trying to get the Ministry of Housing to intervene.
[49] We find no merit in this ground. This is another finding of fact
made by the learned Judge which she was entitled to make on the
evidence before her. We find no reason to interfere with such finding of
the learned Judge.
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Ground 14
[50] The Appellants complained that the learned Judge was wrong to
award costs on a joint and several basis against them, when the basis of
the Appellants claim was based on their individual units.
[51] We find merit in this contention of the Appellants. Although each
of the Appellants commenced this action as co-plaintiffs and in their
concluding prayers had sought relief on a joint and several basis, it is
our view that the trial court had a discretion when awarding costs in the
suit. It was quite clear to us that each of the Appellants, as plaintiff, was
only interested in obtaining relief in respect of his or her own unit and if
successful, would have been granted relief by the Court on an individual
basis. In the circumstances the learned Judge should not have ordered
costs to be paid by the Appellants on a joint and several basis. We
accordingly allow this ground of appeal and order that the amount of
costs awarded by the learned Judge be divided equally by the number of
remaining Appellants and each Appellant is to pay only his share of such
costs.
Claim against the 4th to 23rd Respondents (Ground 34 of the Supplementary Record of Appeal) [52] As regards the Appellants’ claim against the 4th to 23rd
Respondents, i.e. the new purchasers, the learned Judge refused to
grant the Appellants the reliefs they sought against them as the learned
Judge found that the new purchasers were bona fide purchasers for
value without notice in that they have paid valuable consideration for
their respective units and had no prior knowledge actual or implied about
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22
the Appellants. At page 1574 of her judgment in the Supplementary
Record of Appeal Vol. 6 the learned Judge said: “From the evidence that have been tendered at the trial, the following has been established … … … . Although the new purchasers knew that the project was an abandoned one, however when they had gone to the site and visited the offices of the 3rd Respondents, they were assured by Jonathan Ng that there were units available for sale and for some, they were assured that the units had no buyers. It is also a fact that Jonathan Ng never told any of the new purchasers that their respective units were previously sold to the Plaintiffs. Jonathan Ng confirmed this fact during his testimony ….”
[53] The learned Judge then went on to find that the new purchasers
had relied on the assurances given by the 3rd Respondent and were not
expected to know the internal workings of the 3rd Respondent, prior to
their entering into their agreements to purchase their respective units.
Accordingly the learned Judge found that the Appellants had acquired
no superior rights to that of the new purchasers in respect of the units
the Appellants are now seeking declaratory rights in respect of, for the
reason that the new purchasers were bona fide purchasers for value
without notice of the claims of the Appellants to their units. The learned
Judge further held that even though the Appellants may have been first
in time in entering into the Sale and Purchase Agreements in respect of
the units they now claimed, the Appellants had failed to satisfy those
conditions that would entitle them to claim superior rights to that of the
new purchasers in that:
(a) they had not fully paid the purchase price of the respective units;
(b) Appellant 1 to 33 have not executed the Tripartite Agreement;
(c) the Appellants have not taken possession of their units;
(d) there had been considerable delay by the Appellants in pursuing
their claim against the new purchasers; by the time the Appellants
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23
filed their claims against the new purchasers, vacant possession
had been granted to the majority of the new purchasers;
(e) the Appellants had delayed in enforcing their alleged rights against
the 1st and 3rd Respondents although the Appellants were aware
that their units were about to be sold to new purchasers from
2008/2009.
[54] We agree with these findings of the learned Judge. They are
supported by the facts as found by the learned Judge who has applied
the law correctly to those facts.
[55] In the result we dismiss the appeal of the Appellants with costs,
save and except their appeal against their liability to pay costs on a joint
and several basis, which we have allowed. In respect of this appeal we
award costs of RM10,000.00 each to the 1st, 2nd and 3rd Respondents.
We also award costs of RM10,000.00 to the 4th to 23rd Respondents
(excluding the 6th and 7th Respondents who were not represented). The
costs awarded against the Appellants for this appeal is to be divided
equally by the number of remaining Appellants and borne by them
severally.
sgd
DATUK CLEMENT SKINNER Judge
Court of Appeal Malaysia
Dated: 14th November 2013
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24
PARTIES: For Appellants: Haji Sulaiman Abdullah
together with Krishna Dallumah, Ramesh Gopal, Rajes P, Manjula P
Messrs Rajes Hisham Rahim & Gopal Kuala Lumpur For 1st & 3rd Respondents: Lua Ai Siew together with
Lim Choon Khim, Razinah Shaheed Ali, Elyazura Md Shaarani Messrs Soo Thien Ming & Nashrah Kuala Lumpur
For 2nd Respondent: Paul Kwong together with Toh Chia Hua, Lai Wern Chin Messrs Azman, Davidson & Co Kuala Lumpur For 4th to 23rd Respondents: Ahmad Moosdeen together with Goh Keng Tat, Farah Mohd Afzal,
Yeoh Koay Thing Messrs Abraham Ooi & Partners Kuala Lumpur