Author: Robin

HIGH COURT (KUALA LUMPUR)
LIZA CHAN SOW KENG J
SUIT NO WA-22NCC-591-11 OF 2022
3 August 2023

GROUNDS OF JUDGMENTIntroduction

[1]  Enclosure (“Enc.”) 8 was filed by the Plaintiff for:

• a.An injunction restraining the 3^rd and 4^th Defendants, their servants, employees or agents or otherwise howsoever from exercising their rights as a director of Cekap Asia Sdn Bhd;
• b.An injunction restraining the 2^nd Defendant, their servants, employees or agents or otherwise howsoever from appointing any further directors and/or convening any Extraordinary General Meeting;
• c.An order for an extension of time to serve the court papers in this suit, pending the process of obtaining leave to proceed against Expo Electronics Sdn Bhd, which is in liquidation.

[2]  Enc. 8 was heard together with Enc. 27 which was the 2^nd to 4^th Defendants’ application to strike out the Writ and Statement of claim (“SOC”) pursuant to Order 18 r 19(1) (b) and (d) of the Rules of Court 2012 (“ROC 2012”) and/or under the Inherent Jurisdiction of the Court.

[3]  I had allowed Enc. 8 and dismissed Enc. 27 with costs to the Plaintiff on 29.5.23 and given broad reasons for my decisions. The 2^nd to 4^th Defendants have appealed against the decision in Enc. 8. This judgment contains the full reasons for my decision

COURT OF APPEAL (PUTRAJAYA)
LEE SWEE SENG, S NANTHA BALAN AND NORDIN HASSAN JJCA
CIVIL APPEAL NO C-02(NCvC)(W)-607-03 OF 2021
3 May 2023

JUDGMENT OF THE COURT

[1]  The circumstances under which the Court may intervene with the freedom of contract are limited. It is easier to intervene in cases of illegality where parties cannot agree to do that which the law prohibits. What then is the position where a matter is not prohibited by statute but expressly stated as a right of a party?

[2]  The question then is whether contracting out of a statute would be permitted. Should the Court nevertheless refuse to enforce such a term if to do so would unfairly prejudice the rights of the weaker party to the bargain, or that it would defeat the purpose of the law or be contrary to public policy. Interestingly in this appeal, the issue is whether a developer can enforce a term in an agreement where the purchaser has agreed not to apply for change of category of land use from “agriculture” to “building” for the land that he purchased.

[3]  The purchasers here had obtained the approval of the State Authority for such a conversion and have constructed, with the approval of the local authority, on the once agriculture land a long house straddling the 2 pieces of land, one bought by the husband and the other by the wife, from the developer and which the wife subsequently transferred to the husband.

[4]  The developer insisted that it is a breach of the contract represented in the Sale and Purchase Agreement (“S&P”) and the Deed of Covenants (“DOC”) signed between the developer and the purchaser for each parcel of the agricultural land in the development in Janda Baik in Pahang.

[5]  The purchasers argued that the National Land Code (“NLC”) conferred such a right to the registered proprietor and whilst the S&P and DOC had been entered into, very significantly this so-called restriction does not appear on the subdivided titles when they were subsequently issued. It was argued that the contractual restrictions cannot take away the rights of the purchasers as reflected in the subdivided titles without such a restriction and moreover the NLC expressly grants such a right to the registered proprietor of the land.

COURT OF APPEAL (PUTRAJAYA)
YAACOB MD SAM, RAVINTHRAN AND GUNALAN MUNIANDY JJCA
CIVIL APPEAL NOS B-02(NCVC)(W)-1785–09 OF 2018 AND B-02(NCVC)(W)-1786–09 OF 2018
21 September 2022

Contract — Agreement — Agreement between plaintiff and defendant — Whether agreement was a money lending or sale and purchase transaction — Whether sale and purchase agreements were sham documents — Whether alleged interest payment proven — Whether first defendant was moneylender — Whether there was misrepresentation against plaintiff — Moneylenders Act 1951

Misrepresentation — Representation by defendant’s consultant to plaintiff — Whether there was innocent misrepresentation — Whether plaintiffs were misrepresented into signing sale and purchase agreements — Whether there was false statement of fact — Contracts Act 1950 s 18

HIGH COURT (KUALA LUMPUR)
ATAN MUSTAFFA YUSSOF AHMAD J
GUAMAN NO WA-22NCC-313-07/2018
26 December 2023

JUDGMENT

[1]  When a RM400 million loan turned sour, what ensued was a complex web of litigation involving claims, counterclaims and impeachment actions between borrower and lender. Now, the borrower and guarantors seek respite from the bank’s recovery action by applying for a stay of execution of a judgment obtained against them. As allegations of fraud, deception and sabotage swirl, the court wades through the murky waters to determine if there exist “special circumstances” warranting such relief.

HIGH COURT (LUMPUR)
WAN MUHAMMAD AMIN WAN YAHYA J
SAMAN PEMULA NO WA-24NCC-131-03/2018
23 November 2023

JUDGMENT

(Enclosure 16)

[1]  This was essentially an application by the Proposed Interveners via Notice of Application dated 27.5.2022 (Enclosure 16) to intervene in the proceedings and to set aside this Court’s Order dated 28.6.2018 under, inter alia, Order 15 Rule 6 and/or Order 42 Rule 3 and/or Order 92 Rule 4 of the Rules of Court (“ROC”), the inherent jurisdiction of the Court (“this Application”).

[2]  On 28.6.2018, this Court through His Lordship Mohamed Zaini bin Mazlan (as he then was) had made the following Orders in respect of the Originating Summons (“the Originating Summons” or “Enclosure 1”):

“1. bahawa nama syarikat Cekap Asia Sdn. Bhd. (No. Syarikat 558394-A) dimasukkan semula ke dalam daftar syarikat Defendan menurut peruntukan Seksyen 555 Akta Syarikat 2016 (Akta 777); dan

2. Kos tindakan sebanyak RM2,000.00 dibayar oleh Plaintif kepada Defendan dalan tempoh tiga puluh (30) hari dari tarikh perintah.”

(“Order dated 28.6.2018”)

[3]  The Proposed Interveners sought to intervene and set aside the Order dated 28.6.2018.

[4]  Having heard arguments from all the parties I dismissed this Application and set out below the reasons for my decision

HIGH COURT (KUALA LUMPUR)
JOHN LEE KIEN HOW @ MOHD JOHAN LEE J
SUIT NO WA-22NCvC-506-09 OF 2017
1 September 2023

GROUNDS OF JUDGMENT

(After Trial)Introduction

[1]  Manoj Singh (“2nd Plaintiff”) came to know that a property of Ali Reza (“1st Plaintiff”) in Ampang, Kuala Lumpur was transferred to Chew Ben Ben (1st Defendant) and his wife Zhao Tong (“2nd Defendant”) witnessed by Kevin Sathiaseelan (“3rd Defendant”). The 1^st Plaintiff had also, allegedly, given a power of attorney appointing Dato’ Syed Alwi (“4th Defendant”) as his attorney. Dissatisfied with this, the 2^nd Plaintiff in his own capacity and on behalf of the 1^st Plaintiff then filed a suit (“this Action”) against all the Defendants claiming that he has the valid power of attorney of the 1^st Plaintiff. He also alleged that without his involvement, the transfer perfected was invalid.

[2]  From the time this Action was filed up until the date of this grounds of judgment, the Plaintiff, an Iranian national, has been serving time in an Iranian jail. The 1^st Plaintiff had previously spent sometimes in Malaysia and was bestowed a datukship during the time here. This judgment is delivered after the full trial conducted pertaining to this Action in which the 2^nd Plaintiff alleged that the Defendants had committed fraud and conspiracy to injure.

COURT OF APPEAL (PUTRAJAYA)
LEE SWEE SENG, NANTHA BALAN AND NORDIN HASSAN JJCA
CIVIL APPEAL NO C-02(NCvC)(W)-607–03 OF 2021
3 May 2023

Contract — Specific performance — Terms — Contract between developer and purchaser provided that purchaser could not apply for change of category of land use from ‘agriculture’ to ‘building’ — Purchaser successfully converted category of land use from ‘agriculture’ to ‘building’ — High Court allowed developer’s application for specific performance — Whether term in contract prohibiting application for change of category of land use would be void and unenforceable under s 24(b) of the Contracts Act 1950 — Whether term in contract prohibiting application for change of category of land use would be void and unenforceable under s 24(e) of the CA as being contrary to public policy — Whether there were other reasons for dismissing developer’s claim for specific performance and for mandatory injunction to demolish longhouse built on land — Contracts Act 1950 s 24(b) & (e) — Federal Constitution art 13 — Housing Development (Control and Licensing) Act 1966 s 22D — National Land Code ss 124(1)(a) & 214

HIGH COURT (KUALA LUMPUR)
LIZA CHAN SOW KENG JC
CIVIL SUIT NO WA-22NCC-623-11 OF 2019
14 August 2022

GROUNDS OF JUDGMENT (3)Introduction

[1]  Pursuant to the Plaintiffs’ application in Enclosure (“Enc.”) 203, I had assessed damages at sum of RM225,477.73. These are the reasons for my decision.Background

[2]  Owing to the non-compliance of the discovery order made on 25.8.2021, an “Unless Order’ in the terms as contained in Enc. 176 was made on 21.9.2021 against the 1^st Defendant’s representative to be complied with by 30.9.2021. The disobedience of the “Unless Order “resulted in judgment being entered on 18.10.2021 against the 1^st Defendant on terms as follows:

• (i)That the Order obtained on 21.5.2019 by the 1^st Defendant in Kuala Lumpur High Court Originating Summons No. WA- 24NCC-134-03/2019 is declared to have been obtained by fraud and/or dishonesty by the 1^st Defendant;
• (ii)That the Order obtained on 21.5. 2019 by the 1^st Defendant in Kuala Lumpur High Court Originating Summons No. WA- 24NCC-131-03/2019 is impeached and set aside in totality and High Court Originating Summons No. WA-24NCC131-03/2019 is struck off and/or set aside in totality;
• (iii)The 1^st Defendant’s action of filing the High Court Originating Summons No. WA24NCC-131-03/2019 amounts to an abuse of process and struck off and/or set aside;
• (iv)General damages to be assessed against the 1^st Defendant;
• (v)Interest to accrue at the rate of 5% per annum on such damages as may be assessed and awarded by this Honourable Court from the date of Judgment till the date of full and final settlement of the same;
• (vi)1^st Defendant to pay costs of RM75,000 to the Plaintiffs subject to allocator;
• (vii)1^st Defendant to pay costs of RM30,000 to D2 subject to allocator; and
• (viii)1^st Defendant to pay costs of RM40,000 to D3 subject to allocator.

[3]  The reasons for allowing the discovery application, the background leading to the filing of this suit, the nature of the Plaintiffs’ suit have been set out in my first grounds of judgment – see Sitrac Corporation Sdn Bhd & Anor v Dato’ Syed Hamzah bin Syed Abu Bakar (deceased) (representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 8 MLJ 43; [2021] 1 LNS 1740. The reasons for making the ‘Unless Order’, its non-adherence leading to judgment being entered against the 1^st Defendant were set out in Sitrac Corporation Sdn Bhd & Anor v Dato’ Syed Hamzah bin Syed Abu Bakar (deceased) (representative appointed, Syed Sazlee bin Syed Hamzah) & Ors [2022] 10 MLJ 900; [2022] 2 CLJ 641.

[4]  The 1^st Defendant has since appealed against the decision of this Court in making the order for discovery, the ‘Unless Order’ and Judgment entered on 18.10.2021. These 3 appeals were pending hearing before the Court of Appeal when the Plaintiffs’ filed Enc. 203 on 11.11.2021 for assessment of damages pursuant to the judgment dated 18.10.2021.

[5]  The parties agreed that assessment would proceed by way of affidavits.

[6]  As the 1^st Defendant’s solicitors have discharged themselves pending hearing of Enc. 203, the 1^st Defendant was granted an extension of time during case management on 12.1.2022 to file his affidavit in reply to the assessment of damages by end February 2022, but did not do so. Instead on 29.3.2022, the 1^st Defendant filed 2 applications respectively for extension of time to file an affidavit in reply and to stay the assessment of damages pending hearing of the above appeals. The assessment of damages was derailed pending the hearing of these 2 applications. Both applications were subsequently dismissed as this court found there were no material before the court that constituted cogent reasons warranting the exercise of discretion by the court in the 1^st Defendant’s favour, whether for extension of time or for a stay of the assessment of damages.

COURT OF APPEAL (PUTRAJAYA)
ABDUL KARIM, NANTHA BALAN AND SUPANG LIAN JJCA
CIVIL APPEAL NOS W-02-(NCVC/W)-1259–06 OF 2018, W-02(NCVC)(W)-2580–12 OF 2018 AND W-02(NCVC)(W)-2603–12 OF 2018
15 December 2020

Civil Procedure — Limitation — Action against advocate for negligence — Whether trial judge had erred in analysis of the issue of limitation — Whether claim was time barred — Whether cause of action arose from earliest time action could be brought — Limitation Act 1953 s 6(1)(a)

Legal Profession — Duty of care — Professional negligence — Whether appellant was negligent in conveyancing transaction — Whether there was proof of breach of duty of care — Whether expert evidence must be tendered to determine standard of care — Whether appellant liable personally — Whether appellant failed to exercise due diligence in supervising SPA transaction — Whether appellant failed to perform duties in accordance with standard of a reasonably competent and prudent conveyancing practitioner — Whether loss was caused by appellant’s actions or omissions — Whether appellant was responsible for intervening events

This was the appellant’s appeal (‘Appeal 1259’) against the High Court’s finding of negligence, appellant’s appeal (‘Appeal 2603’) against quantum and respondents appeal (‘Appeal 2580’) against quantum. The appellant was an advocate and solicitor and a partner in the legal firm of Messrs Azri, Lee Swee Seng & Co (‘the firm’). According to the respondents, they intended to purchase a parcel of commercial property in Kuala Lumpur and had engaged the appellant to handle the relevant sale and purchase transaction. The appellant’s position was that the respondents had engaged the firm and it was the firm which handled the conveyancing transaction and was responsible/liable for any purported shortcomings/negligence. The respondents had entered into a sales and purchase agreement (‘the SPA’) dated 25 October 2000 with Jurumurni Sdn Bhd (‘the vendor’) to purchase a parcel of land with a 1 1/2 storey factory erected thereon (‘the property’). Subsequently, an individual title was issued for the property and it was thereafter held under title PN 31499 Lot 38698 Mukim Petaling Daerah Kuala Lumpur. The developer of the property was the Datuk Bandar Kuala Lumpur (‘DBKL’). The vendor purchased the property from DBKL whilst the property

HIGH COURT (KUALA LUMPUR)
LIZA CHAN JC
CIVIL SUIT NO WA-22NCC-623–11 OF 2019
23 December 2021

Civil Procedure — Unless order — Failure to comply — Defendant failed to comply with order for discovery of documents within given time frame — Court issued unless order giving defendant further seven days to comply — Whether defendant’s failure to obey unless order was deliberate, inexcusable and contumelious — Whether reason given by defendant for non-compliance was unacceptable to court — Whether court was compelled to strike out defendant’s defence and enter judgment for plaintiffs under O 24 r 16(1) of Rules of Court 2012