JCW

[LAD – delay to deliver vacant possession due to TNB not completing electricity supply works] Chooi Peng and Victor (with Iris) acted as counsel for the Appellant/Defendant. The High Court allowed the Appeal against the judgment against the appellant after a full trial. Amongst others, the High Court held that the Defendant had successfully established that all the extensions of times were issued by the Engineer based on the opinion given by the Architect by reason of delay by TNB. The Court held amongst others that it was unfair for the Defendant to be liable to pay LAD when the delay in delivery was clearly not attributable to the Defendant. Instead, TNB had admitted that the said electricity provider had delayed in completing electricity supply work for the project.

[Loan Agreement – denial of signature and handwriting expert; stamping issue] Alvin was the counsel for the Plaintiff in this case. The High Court granted Summary Judgment against the Defendant in this case in respect of a moneylending transaction vide Loan Agreements. The key points raised in the High Court Grounds of Judgment include:   (i)Signature Authentication: The Defendant's denial of his signature on the loan agreements is deemed untenable due to the absence of a police report or a report by a handwriting expert suggesting forgery (refer to para 18 of the Grounds). (ii)Reliance on Loan Agreement Terms: Despite a lack of other supporting evidence regarding the disbursement of the loan sum to the Defendant, the Plaintiff is entitled to rely on the terms of the loan agreement, which state that the loan sums were disbursed and acknowledged by the Defendant (refer to para 20 of the Grounds). (iii) Basis of Cause of Action: The Plaintiff's cause of action does not depend on whether the loans are listed in the assets and liabilities of the Deceased's Last Will; rather, it is based on the loan agreements. The Plaintiff's right to commence the action is substantiated under Section 8(1) of the Civil Law Act 1956 and Section 59 of the Probate and Administration Act 1959 (refer to paras 21 and 22 of the Grounds). (iv) Late stamping: The delay in stamping on the loan agreements  is not considered a valid defence to the Plaintiff's claim (refer to para 31 of the Grounds). (v) Anticipatory Breach and Repudiation: The Defendant's failure to repay the loan in accordance with the repayment timeline agreement is construed as an anticipatory breach and repudiation of the entire obligation to pay the full loan amount. The Plaintiff is justified in accepting this repudiation and claiming immediate payment (refer to paras 32 and 33 of the Grounds)

[Guarantee – whether Director signed the same as a personal guarantee or on behalf of the Defendant company] Justin acted as counsel for the Plaintiff in this case. In this case, Summary Judgment was entered against the Defendant based on a Guarantee.  The High Court amongst others held that : (i) The Defendant's argument that it did not order the goods and cannot be made liable for Ire-Tex's debt is misconceived as a guarantee is a contract to perform the promise or discharge the liability of a third person under Section 79 of the Contracts Act (ii) The Defendant's denial that it executed the Corporate Guarantee dated 30/4/2016  on the basis that it is a personal guarantee by its signatories is not accepted as the Defendant issues a Circular Resolution dated 27/5/2016 which ratified the Corporate Guarantee and provided authority to any of the Defendant's directors to sign the Corporate Guarantee on behalf of the Defendant. (iii) The Defendant argues that the Corporate Guarantee is not executed in the Defendant's common seal. As this defence is not pleaded it must fail. Further, the Circular Resolution  do not support such a defence where the said Resolution provides that authority is given      (a) for any director of the Defendant to sign the Corporate Guarantee     (b) to affix the Defendant's common seal onto the Corporate Guarantee, "if so required" As such, the fact that the common seal was not affixed does not mean that the signatories signed the Corporate Guarantee in their personal capacities.

[Construction of Contract – comparison of clauses in the event of breach and whether remedy of specific performance is available] Justin was the counsel for the Appellant/Defendant in this case. ON appeal, the High Court allowed the Appeal and struck out the Respondent/Plaintiff’s case. The Court amongst others held as follows : (i)As the remedy of specific performance is available to the Defendant ( the Purchaser) when there is a breach of Section 5.02 (2) by the Plaintiff but was not available to the Plaintiff ( the Vendor) when the Defendant breaches Section 5.03 (1), it is only logical and commonsensical to interpret the two clauses together to mean that the option for specific performance is only available to the Defendant when the Plaintiff breaches the Second Agreement, but it is not an option or election available  to the Plaintiff (ii)Section 5.03 of the Second Agreement ought to be construed strictly. Where a particular breach is anticipated by an agreement and a specific remedy is provided in that event, the contractual remedy must be seen as being intended as a substitute for, and not as a supplement to , those at common law (iii) Based on interpretation of contract, oral evidence by witnesses is irrelevant and unnecessary

[CCC , vacant possession, LAD & force majeure] Justin & Chooi Peng were the counsel for the Appellant in this case. The Court inter-alia held that : (i) The architect’s letters did not qualify as valid certificates of extension of time which would justify the first respondent’s delay in delivering the vacant possession of the said properties to the appellant because: (a) the letters made no mention of the SPAs and specifically cl 13.1.1 of the SPAs which the first respondent relied heavily upon; (b) the letters did not state that in the opinion of the architect, the events in the said letters were events beyond the developer’s control ;and (c) the letters did not state any opinion at all and merely state that there would be delays in the completion of the construction works . (ii) The breaches caused by the main contractor’s restructuring exercise were not force majeure events and were not beyond the first respondent’s control in the said project under cl 13.1.1 of the SPAs. Contractors were under the control of their employers, and the employer such as the first respondent could not utilise their contractor’s breaches or defaults, to gain extension of time (iii)Pursuant to cl 13.2.2 of the SPAs, the appellant would be deemed to have taken the possession of the said properties within 14 days from the date of the first respondent’s letter, which would be on 13 January 2016. The parties had voluntarily entered into the SPAs and had conducted their affairs in accordance with the terms and conditions of the SPAs. The sanctity of the contract entered between parties should be preserved. There was merit in the first respondent’s contention that cl 13 of the SPAs merely required the first respondent to physically complete works and provide a certificate of practical completion by the architect as sufficient to provide vacant possession and that it would matter not, if the said properties was not connected with the essential utilities (iv)Whether the damage was quantifiable or otherwise, the court had to adopt a common-sense approach by considering the genuine interest which an innocent party may have and the proportionality of a damages clause in determining reasonable compensation. Section 75 of the Contracts Act 1950 provided that reasonable compensation must not exceed the amount so named in the contract. Consequently, the impugned clause that the innocent party sought to uphold would function as a cap on the maximum recoverable amount.

[CCC , vacant possession, LAD & force majeure] Justin & Chooi Peng were the counsel for the Appellant in this case. The Court of Appeal inter-alia held that vacant possession is not synonymous with the right of occupation where, amongst others : (i)The High Court found that it was the obligation of the appellant to ensure the availability of permanent access road, the mains for the electricity supply and the water supply to connect them to the shop office (‘essential amenities’) and the CCC was issued to the respondent before the appellant could deliver vacant possession of the shop office. (ii)The definition of the manner of vacant possession was clearly defined in cl 13.2 of the SPA, which stated that upon issuance of a certificate by the first defendant’s architect certifying that the construction of the shop office had duly competed, the purchaser having paid all monies payable under the SPA and having performed and observed all terms and conditions on the plaintiff under the SPA, the first defendant shall let the plaintiff into possession of the shop office, however, such possession shall not give the plaintiff, the right to occupy and the plaintiff shall not occupy the shop office or to make any alterations additions or otherwise to the said shop office until such time as the CCC for the office shop was issued. (iii) Vacant possession and the issuance of the CCC under the SPA were totally separate events and catered for different situations. There was no statutory prohibition against the segregation of these two events. The Court of Appeal also held that the main contractor’s restructuring exercise were not force majeure events and not beyond the Appellant’s control

(Injunction to restrain holding of AGM and/or any EGM] Justin acted as counsel for 2nd, 3rd and 7th Defendants in this case. The 1st Defendant (Management Corporation) filed respectively applications to injunct themselves from holding and/or convening the AGM and any EGM and the High Court allowed the same and also held that there are serious issues to be tried to support the same. Issues that were raised include the jurisdiction of the Court to grant such injunction and also the right/locus standi of the MC to file for the same. {Note : the aforesaid High Court decision was reversed by the Court of Appeal on Appeal vide amongst others Civil Appeal No W-02(IM)(NCVC)-73-01/2022 & W-02(IM)(NCVC)-73-01/2022, where the Court of Appeal amongst others held that the holding of the AGM and EGM are mandatory and/or required under the Strata Management Act/laws}

[LAD- Ang Ming Lee issue- Estoppel] Justin acted for the Defendant in relation to a claim for LAD against the Defendant as the developer based on the Federal Court case of Ang Ming Lee. The Court held amongst others as follows : (i) The preliminary objection that the defendant's application is premised on Order 18 rule 19(1) (a) or (b) or (d) of the Rules of Court 2012 is dismissed where each limb is disjunctive and where under paragraph (a) the Court will look at the pleadings only and for other paragraphs, the Affidavits will also be looked at. (ii) Distinguished Ang Ming Lee based on the crucial fact that the request for extension of time was made after the commencement of the project and the execution of the sale and purchase agreements; (iii) In contradistinction with Ang Ming Lee, in this case, the defendant obtained approval from the Housing Controller for the extension of time from 36 months to 48 months  for the delivery of vacant possession and completion of common facilities for The Link 2 @ Bukit Jalil housing development project (iv) Further reinforced the case Alpine Return Sdn Bhd v Matthew Ng Hock Sing and the doctrine of estoppel therein, where estoppel should apply herein based on the conduct of the plaintiff and the defendants before or after the execution of the SPAs, where parties acted based on the extended period and the period of 36 months never featured in the relationship of parties before Ang Ming Lee. Therefore, it would be extremely unjust for the defendants to claim for vacant possession within 36 months  (v) Limitation of 6 years under Section 6 of the Limitation Act 1953 has also set in where cause of action would have arisen when the plaintiffs signed the SPAs in 2014 as this is the date of the alleged breach and the suit was filed in 2021 i.e. 7 years later