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Cosmopolitan Avenue Sdn Bhd & Anor v Khong Yao Han & 57 Others (and Another Appeal) [2024] 7 AMR 721 (Court of Appeal)
[Striking out — LAD for alleged invalid delivery of vacant possession — partial CCC (Form F1) — architect’s duty under statute vs developer’s contractual duty — settlement agreements / estoppel] Alvin (with Cheryl) acted as counsel for the Developer/Appellant (Cosmopolitan Avenue Sdn Bhd) in Civil Appeal No. B-02(IM)(NCvC)-1594-08/2022. Background: This appeal arises from a dispute between Cosmopolitan Avenue Sdn. Bhd. (the Developer), AR. Loo Chang Seng (the Architect) and Khong Yao Han & 57 others, who are purchasers of office units in a mixed commercial development project. The purchasers claimed Liquidated Ascertained Damages (LAD) on the basis that the Developer’s delivery of Vacant Possession (VP) was invalid because it was premised on a partial Certificate of Completion and Compliance (CCC) (Form F1). They contended that VP should only be delivered upon a full CCC (Form F) for the entire project, and that delay therefore continued beyond the partial delivery, entitling them to further LAD. Both the Developer and the Architect applied to strike out the purchasers’ claims under Order 18 rule 19 ROC 2012, but the High Court dismissed both striking-out applications. The Developer and the Architect appealed. Issues: 1. Whether the High Court was correct in finding that the purchasers had established a prima facie case of negligence and/or unlawful interference against the Architect for issuing a partial CCC (Form F1) instead of a full CCC (Form F). 2. Whether the High Court was correct in finding there were triable issues on the interpretation of the Sale and Purchase Agreements (SPAs) and the propriety of VP delivery by the Developer based on the partial CCC (Form F1). Legal Points / Grounds of Judgment: (1) The Court of Appeal held that the Architect’s duty to certify work progress / completion is a statutory and professional duty, and not the same as the Developer’s contractual duty under the SPAs to deliver VP within the contractual period. The purchasers cannot enforce the SPA delivery timelines against the Architect because the Architect is not a party to the SPAs. The Court further emphasized that the Architect’s certification duty is not subject to any contract** (including the SPAs) but is governed by applicable laws/by-laws/guidelines and local authority approvals, including LAM guidance on Form F1 issuance. (2) Relying on the Federal Court decision in Loh Kok Beng & 49 Ors v Loh Chiak Eong & Anor, the Court clarified that an architect’s scope of duty does not include ensuring that a building is certified so as to enable delivery of VP within the developer’s contractual period under the SPA. The purchasers’ remedy for delay/LAD lies against the developer, not the architect, and attempts to “disguise” a contractual LAD claim as a tort claim against the architect were rejected. (3) The Court held the SPAs clearly distinguished between “Parcel” and “Project”, and VP delivery was contractually tied to completion of the Parcel, not the entire Project. The term “Parcel” was expressly defined, leaving no scope for the purchasers’ interpretation that the whole project must be completed before VP delivery. The Court also relied on SPA provisions (including the clause acknowledging that construction of other parts of the Project may continue even after the Parcel receives CCC) to confirm the parties contemplated phased completion and delivery. Accordingly, the Court found the High Court erred in treating the issue as triable and requiring a trial. The contractual terms were clear and unambiguous, enabling summary disposal and striking out. (4) A large majority of purchasers had entered into full and final settlement agreements accepting LAD and agreeing to waive further claims. The Court held these settlement agreements should be honoured, and it would be unjust to allow the purchasers to reopen LAD issues that were unequivocally settled. They were therefore estopped from re-litigating the LAD claim. The Court observed that even if it were wrong on SPA interpretation, the claims would still be struck out because the settlement agreements independently barred the purchasers’ attempt to revive LAD claims. [Note: The purchasers subsequently obtained leave to appeal to the Federal Court against the Court of Appeal’s decision insofar as it concerned the Developer. The Federal Court allowed the appeal against the Developer and set aside the striking out order on a separate and distinct basis, namely that there remained an issue for trial in the High Court relating to the Developer’s alleged delay in procuring strata titles. The Court of Appeal’s decision in favour of the Architect remains undisturbed, as no appeal was pursued against that part of the judgment.]
Read MoreYayasan Wilayah Persekutuan v Pinnacle Homes SP Sdn Bhd [2025] 1 AMR 1014
[Balance purchase price — set-off / counterclaim for relocation costs, stamp duty, RPGT and legal fees — entire agreement clause — evidential discipline in cross-examination — unjust enrichment] Justin and Iris acted as counsel for the Defendant in this case. Background: This case involved the Plaintiff’s claim for the balance purchase price under a sale and purchase agreement (“SPA”) and supplemental SPA for a piece of land in Kuala Lumpur. The Defendant did not dispute the Plaintiff’s entitlement in principle, but asserted a set-off and filed a counterclaim for RM1,680,939.02 comprising sums allegedly expended on the Plaintiff’s behalf i.e. relocation costs, stamp duty, RPGT and legal fees. The Plaintiff’s central defence was that the Defendant’s payment of those items was “free” / gratuitous, said to be based on an alleged oral arrangement reached during negotiations. We highlight the following points: (i) The Court rejected the Plaintiff’s contention that relocation costs, stamp duty, RPGT and legal fees were given “for free”. Even assuming discussions occurred, the Court found the final SPA did not record such an arrangement, and the presence of an entire agreement clause (s 10.11 SPA) discounted any alleged pre-contract negotiations or arrangements. (ii) The Court discussed and adopted the English authority **Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] All ER (D) 1100, emphasizing, amongst others, that an entire agreement clause is intended to prevent a party from “threshing through the undergrowth” of negotiations to find some chance remark to found a collateral warranty claim; to avoid the peril and uncertainty of such a search; and to confirm the binding agreement is contained in the written document itself (i.e. the contractual terms are found in the document, not elsewhere). (iii) Balancing the alleged oral arrangement against the SPA and supplemental SPA, the Court held it was safe and reliable to rely on those written agreements which were specific and unambiguous, and entered into voluntarily by the Plaintiff without objection. (iv) The Plaintiff’s evidence was materially inconsistent as to who allegedly agreed to the arrangement and even as to the identity of a key person present at the relevant meeting(s). The Court held it could not ignore these confusing and conflicting facts. (v) Although the Plaintiff is a charitable organisation, the Court held this does not entitle it to blanket protection from performing obligations under the contract. If such preferential treatment was intended, it should have been reflected as a specific and vital contractual term, which it was not. (vi) A letter relied on by the Plaintiff in submissions could not be deployed as the Plaintiff failed to introduce it through its own witnesses. It only surfaced during cross-examination of the Defendant’s witnesses merely to ask if they were aware of it. The Court held there was no effective cross-examination on the nature/effect of the letter, and it was improper for the Plaintiff thereafter to run a full submission on it at closing, prejudicing the Defendant. (vii) The Court held there is no necessity for the Defendant to produce its audited accounts to maintain a counterclaim. The Plaintiff’s contention on this was overly simplistic. (viii) For relocation costs, the Court accepted that payment vouchers, purchase orders, receipts and payment certificates (Part B documents) supported the claim. It was impossible and unreasonable to call every person involved in the relocation process, as this would unduly delay trial. The real question was the weight of the documents. (xi) On evidential weight, the Court followed Chong Nge Wei v Kemajuan Masteron Sdn Bhd [2022] 3 MLJ 135 (FC), where the opposing party fails to provide contrary calculations/evidence, the proponent’s quotations/evidence should be taken into account, and bare assertions that the sum is excessive are insufficient. (x) The Court allowed the counterclaim also on unjust enrichment, reasoning that if the Plaintiff was not compelled to reimburse sums that were its obligations, the Plaintiff would have obtained the property without incurring those costs. The Court discussed the statutory/contractual basis and authorities including Siow Wong Fatt v Susur Rotan Mining Ltd and Dream Property Sdn Bhd v Atlas Housing Sdn Bhd, recognizing unjust enrichment as a developing but recognized area in Malaysia and affirming the restitutionary remedy to attain justice. Decision: The Court allowed the Plaintiff’s claim for the balance purchase price subject to the Defendant’s right of set-off, and allowed the Defendant’s counterclaim.
Read MoreProfesor Madya Dr Prema a/p Sukumaran v Profesor Dr Zamri Radzi & Anor [2024] 5 AMR 145
[Judicial Review — refusal of Universiti Malaya scholarship and paid study leave — time-barred, locus standi, non-amenability of “academic judgment”, and requirement for true judicial review prerogative reliefs] Justin acted as counsel for the Respondents in this judicial review application (High Court, Kuala Lumpur). Novel / Important Issues: Amongst others, we highlight that: 1. The case involves the novel issue whether a university’s refusal to grant a scholarship (to an academic staff applicant) is amenable to judicial review. 2. The Court decided that without the main judicial review remedies (e.g. certiorari and/or mandamus) being specifically prayed for, it is not a true judicial review application. The declaratory reliefs and damages are, at most, ancillary. Background (brief): The Applicant (a Universiti Malaya academic staff member) sought to challenge Universiti Malaya’s decisions rejecting her application for a Skim Latihan Akademik IPTA Tahun 2022 (“SLAI Scholarship”) and "Cuti Belajar Bergaji Penuh Tanpa Biasiswa" (“CBBPTB”)** (paid study leave without scholarship), and sought declarations and damages. Points of Law / Grounds of Judgment: The High Court dismissed the judicial review application and, amongst others, held as follows: (a) Out of time / time-barred: The judicial review was filed out of time. Although the Applicant contended there was an appeal process, the Court found there was no appeal process in reality and any “appeal” was assumed by the Applicant on her own terms. The rejection communicated on 31/5/2022 remained the final decision, and the filing on 27/9/2022 exceeded the 3-month statutory time limit. (b) No locus standi due to resignation: The Applicant had no locus standi and disabled herself from being able to seek the scholarship / study leave remedies because she resigned from UM (not forced to resign). Having resigned, she no longer held a position with UM and was no longer in a position to receive the benefits. (c) The Court held the prayers were academic. If the Applicant’s main purpose was to obtain damages, this became an abuse of process when she no longer had a right to the SLAI Scholarship / CBBPTB after resignation. (d) UM’s decision to prioritize another candidate for the scholarship was in accordance with the Human Talent Management (HTM) Policy and was not open to judicial review. The Court followed Sivapalan Govindasamy v Universiti Malaya [2020] 12 MLJ 354 (CA), holding that academic judgment / academic matters are generally not amenable to court supervision and this principle applies not only to conferment of a PhD but also to conferment of scholarships. (e) The CBBPTB application was assessed using the relevant application form and factors including manpower sufficiency, which were not open to judicial review. (f) The Court emphasized that "eligibility certainly does not equate to entitlement”. There was no taking away of an inherent right to the scholarship or study leave in the first place. (g) Order 53 requires main judicial review remedies. A judicial review application must comply with Order 53 rule 2(1) ROC, in which the application must seek reliefs in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (i.e. certiorari, mandamus, quo warranto, etc.). The Application sought declaratory reliefs and damages only. While declarations/damages may be ancillary under Order 53 r 2(2)–(3), this does not remove the requirement for main judicial review prayers. (h) The Court found the Applicant omitted certiorari/mandamus because she was not in a position to seek mandamus to compel UM to award SLAI Scholarship/CBBPTB after resigning. Any attempt to “include” such reliefs via a residual prayer was not bona fide and appeared to be an attempt to conceal that the main JR prayers were no longer relevant to her. (i) None of the persons allegedly making representations to the Applicant had the authority or power to decide on the success of her SLAI Scholarship / CBBPTB applications. (j) Damages were not proven, and the Court viewed the claim as effectively seeking UM to fund the Applicant’s private studies and pay future salary despite her resignation amounting to an unjust enrichment.
Read MoreMah Sau Cheong v Wee Len @ Wai Shiang Liang [2024] 12 MLJ 671
[Enforcement of foreign judgment (Shanghai, PRC) at common law — contractual submission to jurisdiction — public policy defence — proof/admissibility requirements under Evidence Act 1950] Justin (with Chooi Peng and Ko Xin) acted as counsel for the Defendant in this case. In this case, the Plaintiff sought to enforce two Shanghai judgments (first instance and appellate) ordering the Defendant to repay a RMB14 million loan with interest and fees. Both parties are Malaysians residing in Kuala Lumpur. The Defendant (then the Plaintiff’s employee) received the RMB14 million via instalments and bank transfers, and the parties executed a loan agreement providing that disputes would be resolved in the Putuo District Court, Shanghai, with Chinese law as governing law. When the Defendant did not repay, the Plaintiff sued in Shanghai and succeeded at first instance and on appeal (“Shanghai judgments”). The Plaintiff then applied to enforce the Shanghai judgments in Malaysia, alleging the Defendant had assets here. The Defendant opposed the application on, amongst others, the basis that China is not a First Schedule country under the Reciprocal Enforcement of Judgments Act 1958 (REJA), that the Shanghai Courts were not “courts of competent jurisdiction” under Malaysian common law and that enforcement should be refused on public policy / natural justice / alleged fraud grounds. The High Court addressed three main questions: 1. Whether the Shanghai Courts were courts of competent jurisdiction for common law enforcement purposes notwithstanding no reciprocity under REJA and differences between legal systems. 2. Whether the Defendant’s public policy objections (including alleged procedural prejudice, alleged illegal moneylending, and interest rates) were sustainable. 3. Whether the Shanghai judgments (as exhibited) were admissible/proved in accordance with the Evidence Act 1950, such that the enforcement application could succeed. On jurisdiction, the Court held that the parties had contractually submitted to the Shanghai forum and governing law, and in the absence of vitiating factors or exceptional circumstances, Malaysian courts generally hold parties to their bargain on jurisdiction clauses. The lack of reciprocity between China and Malaysia was not fatal because common law recognition of foreign judgments does not depend on reciprocity. On public policy, the Court held that the Defendant did not meet the high threshold to refuse enforcement. Procedural differences between inquisitorial and adversarial systems did not, without more, amount to denial of natural justice. The Defendant had the opportunity to present his case and appeal in Shanghai, and the Malaysian court would not reopen merits. The moneylending allegation failed for lack of evidence that the Plaintiff was carrying on a moneylending business. The interest rates awarded were not so exorbitant as to “shock the conscience” and did not justify refusal on public policy. The Court also rejected the fraud/natural justice objections on the facts. However, the application ultimately failed on proof/admissibility. The Court held that, following the Federal Court’s guidance on proving foreign judgments, the Shanghai judgments (produced as copies) had to comply with Section 78(1)(f) of the Evidence Act 1950 (certified copy with the required certification and proof of character according to foreign law) or alternatively satisfy Section 86 of the Evidence Act 1950. The copies exhibited did not satisfy either provision. In the absence of properly proved Shanghai judgments, the enforcement application could not be allowed and was dismissed with costs.
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