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14 new reported case laws by the Partners and lawyers of JCW


Merais Sdn Bhd v Lai King Lung (Practising as an advocate and solicitor under the name and style of Messrs Chris Lai, Yap & Partners Advocates and Solicitors) & Anor [2019] 2 AMR 761; [2019] 7 CLJ 1 (Court of Appeal)
[Law on retrospective sanction from the Liquidator to commence proceedings on behalf of a wound-up company]

Justin was counsel for the Respondents in this case who applied to strike out the Appeal on the basis that no proper sanction has been obtained by the Respondent/Appellant to appeal to the Court of Appeal

The Court of Appeal dismissed the application and amongst others held that :-

(i) With the presence of s 236 of the Companies Act, it is the liquidator who has the authority to bring or defend any action or proceedings in court. The term "bringing" must necessarily include continuing with any action or proceedings already brought or commenced and any such action or proceedings must also extend to the conduct and continuation of appeals.

(ii) The Official Receiver as the liquidator of the appellant has the necessary authority to consider and grant a sanction which is effective on a date other than the date it was made i.e. retrospective sanction. Bearing in mind that the Official Receiver had already granted the necessary sanction, the respondents' application thus is without merit and must be dismissed.

Southville City Sdn Bhd v Chua Teck Kee & Anor [2019] 5 AMR 386

[Judicial Review - initial sum paid to the Stakeholder to make offer to purchase and LAD]

Justin was counsel for the Applicant for Judicial Review, Southville City Sdn Bhd.

In this case, the first respondent appointed Messrs Khairin Nisa & Co as a stakeholder to represent him to make an irrevocable offer ("IO") to the applicant to purchase a unit in a housing project ("the project") to be developed by the applicant. The first respondent then placed a sum of RM3,000.00 ("the stakeholder sum") with the stakeholder with instruction to release the same to the Applicant once there is acceptance by the applicant of the first respondent's offer to purchase.

The first respondent subsequently entered into a sale and purchase agreement ("the SPA") with the applicant on 27/3/201 and vacant possession was delivered by the applicant on 29/3/2018. The first respondent thereafter filed a claim against the applicant for liquidated damages for late delivery of vacant possession.

The Court in allowing the Applicant's judicial review application inter-alia :-

(i) Based on clause 1.2 of the IO, the first respondent was aware that the applicant was under no obligation to collect any payment before the property was opened for sale and pursuant to clause 3 of the IO the stakeholder was instructed to release the monies to the applicant upon the applicant's confirmation that project was open for sale and acceptance of the first respondent's offer to purchase and towards settlement of the first 10% of the purchase price. On the facts the stakeholder sum was only released to the applicant on 27/3/2014 after the SPA was signed by both parties. Thus, the stakeholder sum cannot be constituted as "booking fee" and/or "deposit" towards the sale and purchase of the project. Even if the court were to accept that the stakeholder sum is a booking fee or a deposit, the sum was received by the applicant on 27/3/2014 and not 28/9/2013.

(ii) There was no agreement or SPA between the applicant and the first respondent on 28/9/2013. For the applicant to accept payment before the contract of sale would contradict reg 11(2) of the Housing Development (Control and Licensing) Regulations 1989 which prohibits any parties from collecting any payment as stakeholder. There is no evidence to show that Messrs. Khairin Nisa & Co had acted as the agent or panel lawyer for the applicant to collect the stakeholder sum.

(iii) Clause 25 and 27 of the SPA specifically mentions that delivery of vacant possession shall be within 48 calendar months from the date of the SPA, whereas clause 27 states that the completion of common facilities shall be completed within 48 calendar months from the date of the SPA. The SPA does not provide that the delivery of vacant possession and completion of common facilities must be completed from any other date. On the facts, the SPA is in accordance with Schedule H of the Regulation 1989 and the terms thereof are to be strictly followed and cannot be contracted out of.

(iv) No binding contract was formed on 28/9/2013 as there was no consideration, no acceptance and no intention to create legal relations between the applicant and the first respondent. The second respondent thus had erred in holding that the date of ascertaining the delivery of vacant possession should be 28/9/2013.

(v) The Tribunal had committed jurisdictional errors and/or Anosminic errors and acted on incorrect basis in fact. The award therefore ought to be quashed for being tainted with illegality and unreasonableness.

(vi) The liquidated damages payable for late delivery of the vacant possession of the property and late completion of the common facilities should have been calculated from date of the SPA and not from the date of the stakeholder sum was deposited with the stakeholder.

Beyond Hallmark Sdn Bhd v Leong Tuck Onn & Anor [2019] 2 AMR 550
[recovery of Stakeholder sums]

Justin and Alvin Lai were counsel for the Plaintiff. The Court Decision covered amongst others the following points including important points of law:

(i) The solicitors holding monies as Stakeholders hold it as a trustee for both Vendor and Purchaser and not in a contractual capacity;

(ii) The solicitors holding as Stakeholders need not be a party to the Memorandum of Agreement are bound by the terms of the stakeholdership and is not exonerated from liability;

(iii) The breach of a stakeholding term is not just a breach of undertaking but also a breach of trust;

(iv) The deposit of and holding the monies as a refundable deposit by the legal firm as a stakeholder is in the ordinary course of its business and the 1st Defendant had acted within the scope of his apparent authority

Mann Holdings Pte Ltd & Anor v Ung Yoke Hong [2019 ] 8 MLJ 186
[setting aside of Judgment under Reciprocal Enforcement of Judgment Act]

Justin Voon was the counsel for the Defendant. We believe that this is the first case in Malaysia where an attempt to register the Singapore Judgment was made whilst the Malaysian Suit was on-going which inter-alia canvass the same issues. The following issues emerge from this decision :

(i) Res Judicata applies in a REJA case - whether the decision in the JB Suit on 2 occasions that the Singapore Suit will not prevail over the JB Suit would be binding here in the REJA Case;

(ii) Whether Res Judicata is a facet of public policy and therefore, whether the said Foreign Singapore Judgment can be set aside under Section 5 (1)(a)(v) of the REJA ?that the enforcement of the judgment would be contrary to public policy in Malaysia"

The High Court set aside the registered Judgment based on Res Judicata accepted as part of public policy [overturned on appeal]

[Note: This High Court decision has been overturned by the Court of Appeal vide Civil Appeal No. J-02(IM)-1509-07/2018]

Barakah Offshope Petroleum Berhad & Anor v Mersing Construction & Engineering Sdn Bhd [2019] 3 AMR 673

[Pre-conditions to apply for a Restraining Order]

Alvin was counsel for the 1st Intervener in this suit.

Alvin raised the point that the pre-condition of Section 368(2)(a) to (d) of the Companies Act 2016 needs to be complied with even in the application for restraining order under Section 368(1) and not just subsequent extensions of the same.

The Court accepted the said argument and amongst others held :

(i) It cannot be the legislative intent that only s368(2)(a) and (d) of the Act need be complied with when applying for a restraining order. The conditions under s368(2)(a) to (d) need all be complied with. To hold otherwise would do violence to the manner in which s368(2)(a) to (d) was drafted and would call, unjustifiably, for ignoring the fact that the conditions set out in s368(2)(a) to (d) are cumulative, having regard to the semicolon after each subsection and the use of the conjunction "and" placed between s368(2)(c) and (d).

(ii) Upon its proper construction, the conditions set out in s368(2)(a) to (d) of the Act need to be complied with when an application is made for a restraining order under s368(1) of the Act. Such a result is consonant with the plain language used and the legislative intent and purpose for the conditions in s368(2)(a) to (d) of the Act. In this regard, the applicants, having conceded that the conditions in s368(2)(c) and (d) of the Act were not complied with when making and securing the ex parte order, the restraining order thus cannot stand.

Hedgeford Sdn Bhd v Lynda Quah May Lu [2019] 3 AMR 525

[Unlawful representation of third party on behalf of Claimant in the Tribunal for Homebuyer Claims and calculation of LAD is taken from the date of SPA and not the booking form]

Justin was the counsel for Hedgeford Sdn Bhd, the developer in this Judicial Review.

A novel point was raised on behalf of the Developer that the Homebuyer cannot be represented by a third party who is not an advocate and solicitor before the Tribunal

The Court inter-alia held as follows :-

(a) The parties to a claim before a tribunal are the homebuyer as defined under s16A of the HDA i.e. the claimant and the housing developer who is the respondent. It is only in cases where complex issues of law are involved and where a party "will suffer severe financial hardship", that a party may be represented by an advocate and solicitor pursuant to s16U of the HDA.

(b) The tribunal cannot on its own motion allow a homebuyer to be represented by a third party who is not an advocate and solicitor. In this regard, s16E of the HDA specifically provides that the tribunal can only adopt procedures it thinks fit and proper subject to the provisions of the HAD and any regulations made thereunder. In the circumstances, the tribunal's decision to allow the third party to represent the first applicant at the hearings before it is procedurally improper and goes against the purpose and intent of the setting up of the tribunal and the natural justice principle of nemo judex in sua causa.

Further, the Court held that it is clear from reg 22 of the Housing Development (Tribunal for Homebuyer Claims) Regulations 2002 ("the 2002 Regulations") that the legislative intent of Parliament is that in the event of a claimant not appearing at the hearing, the tribunal must either dismiss the claimant's claim or allow the respondent's claim if any. In the premises and pursuant to reg 22(1) and (2) of the 2002 Regulations, the tribunal did not have the option to keep on adjourning the hearing as it had done, until the first respondent decided to attend the same. Regulation 22(1) and (2) of the 2002 Regulations must be interpreted strictly and take precedence over the general provision in reg 27. The tribunal's purported exercise of its powers to allow the first respondent to be represented by a third party and to adjourn the hearings due to the first claimant's absence, is ultra vires the HDA.

In respect of the of the issue of Liquidated Damages (LAD), the Court held that the tribunal's finding that the date of payment of the booking fee is the date of the sale would mean that there exists a binding contract for the sale and purchase of the property between the parties at the date of payment of the booking fee. If that is the case, then in the event of a purchaser deciding to not execute a formal contract in the form of contract in Schedule H, the purchaser would then be in breach of the sale and purchase agreement since the agreement would already have come into being upon payment of the booking fee thus rendering the purchaser liable to the developer for any loss or damage suffered by the developer instead of merely forfeiting the booking fee. Such an outcome could not have been the legislative intent of the HDA. Accordingly, the tribunal had erred in law in calculating the LAD from the date of the booking fee instead of from the date of the SPA.

Mann Holdings Pte Ltd & Anor v Ung Yoke Hong [2019] 6 CLJ 475; [2019] 4 MLRA 640 (Court of Appeal)

[Setting aside of Judgment under Reciprocal Enforcement of Judgment Act]

Justin was the counsel for the Respondent in this case. The Court of Appeal held that res judicata do not apply in this case and reversed the High Court Judgment (kindly refer to item no 101 above)

(i) The Respondent submitted to jurisdiction in Singapore by filing a Defence and taking point in the Trial plus appealing to the Singapore Court of Appeal.

(ii) The concept of public policy is a narrow and restrictive doctrine. It could not be seen how the registration of a Singapore Judgment at the Johor Bahru High Court could be said that to be contrary to the public policy in Malaysia.

Hedgeford Sdn Bhd v Jennifer Fu Woan Lin & Ors [2019] 10 MLJ 729

[Judicial Review against decision of Tribunal for Homebuyer]

Justin was counsel for the Applicant for Judicial Review in this case.

The Court inter-alia held that :-

- Pursuant to s16AE of the Housing Development (Control and Licensing) Act 1966 ("the HDA"), the tribunal can only adopt procedures it thinks fit and proper subject to provisions of the HDA and any regulations made under the HDA.

- The tribunal cannot ignore the express provisions in the HDA and regulations in making and adopting any procedure. A template "Surat Wakil Kuasa Bagi Menghadiri Pendengaran" which allowed a homebuyer to authorise a third party to represent him/her was contrary and ignored the provisions of the Part VI of the HDA.

- Therefore, the tribunal's decision in allowing the third parties to represent homebuyers at hearings before it went against the purpose and intent of setting up the tribunal, which was to provide a quick, simple and inexpensive forum for homebuyers to pursue their claim against housing developers.

- This ability to appoint a third party which was not extended to the housing developer went against the natural justice principle of rule against bias.

- Therefore, the decision to allow a third party to represent the purchasers at a hearing was procedurally improper and the tribunal had breached the principles of natural justice and failed to observe the procedural rules laid down in the HDA by which the tribunal's jurisdiction was conferred.

Ideal Advantage Sdn Bhd v Perbadanan Pengurusan Palm Spring @ Damansara (and Another Appeal) [2019] 5 AMR 201, (Court of Appeal)

[Unlawful accessorizing of carparks accessory parcels in the strata title and definition of "accessory parcel", unlawful rental of Carparks and commercial business within a Residential Condominium]

Justin was counsel for the Respondent in this case.

In this case, the developer (D2) in this case sold 45 units of condominium to a closely related company (D1) with 439 accessory carparks attached to the said units, with 40 of the units having 8 to 15 accessory car parks each.

The Respondent contend that this caused a shortage of carparks at the condominium including lack of visitors' carparks and the D1/D2 proceeded to rent the extra carparks to residents/third parties.

The important points of law canvassed by this case from the report include the following :

(i) The Strata Titles Act 1985 prohibits the commercial usage of carparks, where in this case the Defendants were renting out the carparks in a residential condominium to third parties;

(ii) Each condominium unit which is about 1000 square feet at most would require one or two carparks. The usage of the 394 carparks ( excessive carparks ) constitute a breach of Section 34 (2) and 69 of the Strata Titles Act 1985 namely that the accessory carparks is used or intended to be used not in conjunction with a parcel unit and dealt with independently of the main parcel unit

(iii) "Dealt" in the said Section 34 ( 2) and 69 include "tenancy" where Section 5 of the National Land Code defines "dealing" as transactions under Division 4 and Division 4 of the NLC include Part 14 and 15 with provisions on ?tenancies"

(iv) There is a breach of the Development Order where the requirement of the DO is a requirement under the law pursuant to Sections 22 (2) , 22 (3) and 22(4) of the Town and Country Planning Act 1976, where D2 failed to provide 10% of the 2180 carparks as visitors carparks. Here, we are not talking about the number of carparks required to be built by D2, which appear to be regular on paper but the dealing of the carparks for business purpose which caused an acute shortage of carparks.

(v) There was evidence that the accessory carparks were not sold or transferred with any consideration and/or valuable consideration.

(vi) The 40 SPAs were not arms length transactions where vacant possession were given to D1 before purchase price were fully paid, D1 took 3 years to pay the purchase price when the SPA require 3 months and there are instances the 10% deposit were made after balance purchase price made. All these could only happen when D1 and D2 have close relationship and controlled by the "Lee" family.

(vii) Carpark transactions are illegal and ordinarily if the SPAs are struck down as void, the carparks after deducting the visitors' carparks should revert to D2. However, as no approved strata plan was adduced by D2 as the developer, although available, there is no evidence that these carparks are "accessory parcels" or "comprise in any parcel". Therefore, an adverse inference under Section 114 (g) Evidence Act is invoked against D2 and these carparks are ruled as common property.

(viii) Section 143 (2) and (3) of the Strata Management Act 2013 provides that the plaintiff as the management corporation can lawfully sue for the recovery of common property.

(ix) The fact that the carparks are already comprised in the strata tiles alone is not a determining factor that they do not form part of common property. If the Court were to agree with the submissions of the defendants in this regard, it will produce an absurd result i.e. any party like the developer can take advantage of the situation by ?accessorizing" property which should have been "common property".

(x) Once the carparks are no longer part of the strata title, they are no longer accessory parcels and not subjected to Sections 4, 34 and 69 of the Strata Title Act.

Southville City Sdn Bhd (formerly known as Tristar Acres Sdn Bhd) v Noranisah Binti Mohamed Hisa & Anor (and Another Application) [2019] 4 AMR 825

[Judicial Review and calculation of LAD]

Justin was counsel for the Developer in this case.

The Court dismissed the Judicial Review application and inter-alia held :-

(i) The tribunal was correct to find that M/s Khairin Nisan was the lawyer for acting for Applicant.

(ii) Notwithstanding the fact that it was expressly stipulated in the S&P agreement that vacant possession was to be given within 48 months from the date of the agreement and that the common facilities are to be completed within the same time frame, following Faber Union Sdn Bhd v Chew Nyat Shong & Anor [1995] 3 AMR 2094, the calculation of LAD begins from the date of payment of the booking fee. In this regard, upon payment of the booking fee, the contract is valid as the consideration and object of the agreement are legal.

Badan Pengurusan Bersama Kristal Heights 2 & Anor v Syarikat Sri Malawati Sdn Bhd & Anor [2019] 11 MLJ 22

[Encroachment of Land, trespass, negligence and/or breach of statutory duty]

Justin was counsel for the Plaintiff in the Counterclaim in this action which proceeded for Full Trial. The case involve encroachment of the said Plaintiff's Land by a right of way where the Pentadbir Tanah issued a letter granting a right of way not in accordance with the National Land Code. and The said Plaintiff sought for declaratory and injunctive relief and also damages for trespass and/or negligence and/or breach of statutory duty.

The Court inter-alia held that :-

(i) The fourth defendant (Pentadbir Tanah) owed a duty of care in common law to the plaintiff as the registered proprietor to ensure its rights of enjoyment to the said land was not deprived or encroached by the fourth defendant's unlawful act. Based on the above, the plaintiff was therefore entitled to judgment against the fourth defendant for breach of statutory duty and negligence.

(ii) There was no statutory duty owed by the fifth defendant to the plaintiff as the duties owed by the fifth defendant under by-law 25 of the Uniform Building By-Laws were only to qualified persons defined therein.

(iii) By virtue of the close proximity of the plaintiff's land, it was foreseeable that any planning permission that allowed for the encroachment by the applicant for that planning permission onto the plaintiff's land would cause damage to the plaintiff, and when the added requirement of justice fairness and reasonableness of the case under the Caparo test was considered, there was a clear duty or care owed by the fifth defendant to the plaintiff. Nevertheless, the court found that D5 (Land authority) had acted reasonably to ensure that there was no unlawful encroachment onto the said land. Thus, D5 had properly discharged its duty of care and there was no breach of that duty.

Chin Huat Yean@Chin Chun yean & Anor v Chin Jhin Thien & Anor [2018] 8 AMR 421 ( Court of Appeal )
[Law and Application of Secret Trust in relation to a Will]

Chooi Peng was the counsel for the Appellants. A Will was challenged with a Full Trial. The Court of Appeal expounded on the important principles of law in relation to "Secret Trust"; and held amongst others that :

(i) The requirements for the formality of the will has been satisfied and the Appellant's defence (against the Respondent challenging the Will) is simple and straightforward and they had pleaded a secret trust; (ii) The common law concept of "secret trust" is recognised in Malaysia despite the law of will placed under the statutory regime in Malaysia. The Court's endorsement of the secret trust does not breach the Wills Act or any other statutory law;

(iii) The High Court misdirected on the issue of testamentary capacity by combining the issue of secret trust with that of testamentary capacity. Testamentary capacity is related to medical evidence of related credible evidence, and has nothing to do with a story related to secret trust

(iv) The law of secret trust was developed to assist the testator's purported "sins" are what is often said "skeleton in the cupboard" for just and equitable reason to benefit his genes or acquaintance, whether lawful or otherwise to provide some form of security to his beloved ones. The law on secret trust has developed in a manner to close its eyes on public policy or breach of rule of law related to monogamous or polygamous marriage inclusive of polyandry or relationship of cohabitee, etc. The court does not strike out secret trust argument based on illegality or public policy.

Gan Cheng Khuan v Gan Kah Yang & 2 Ors [2018] 7 AMR 317 ( Court of Appeal)
[distribution during intestacy- only brothers and sisters living at time of death of deceased was entitled to his estate ]

Justin and Chooi Peng were counsel for the Appellant. The Court of Appeal held that pursuant to Section 6 (1)(i) of the Distribution Act, only the brothers and sisters of the deceased living at the time of his death was entitled to his estate.

The Court of Appeal further amongst others held that

(i) The English Administration of Estate Act 1925 and the provisions of the Indian and NSW legislations are not in pari materia with Section 6 and 7 of the Distribution Act;

(ii) The emphasis is on the phrase "living at the death of the intestate" in Section 6 (1) (i) of the Distribution Act;

(iii) If the nephews of the intestate are taking a share of their late father's entitlement in the estate of the intestate under Section 7 of the Distribution Act, they are caught by subsection 6 (1)(i)

Antara Vista Sdn Bhd v Rumaya Properties Sdn Bhd [2019] 7 AMR 229

[Project abandoned and converted from medium cost to high end Project]

Justin was counsel for the Appellant.

The Appeal was partially allowed and the Court of Appeal reversed the relief of Specific Performance given by the High Court

Although the Court of Appeal upheld the High Court's decision that the SPA is genuine and not a sham, the court could not order specific performance as the 18 properties are no longer in existence i. e in the form it was purchased. The Court referred to the Appellant's written submission which stated:

"It is impossible and absurd

- D1 has developed the

units in a DIFFERENT PROJECT which bears no resemblance to the 18 units. In fact, the P wants an unjust enrichment"