JCW

[Disciplinary Board proceedings – Appeal against finding by DB] Justin and Pang Kwong Hang were the counsel for the Appellant. The Appellant , was found guilty of misconduct by the Disciplinary Board and amongst others also ordered to pay a fine and restitute RM398,000 to the Respondent. The Appellant appealed to the High Court which dismissed the appeal followed by this appeal to the Court of Appeal The said Court of Appeal Grounds of Judgment is important for 2 aspects : (i) It is not the function of the DC or the DB under the law to revisit any matters, issues or disputes which has been ventilated and determined in Court (paragraph 38 of the Grounds). The Court inter-alia held that ".. we agree with the learned counsel for the Appellant that the whole purpose of the Complaint was to impeach the relevant court orders, which the First Respondent had attempted to do in Suit 318, but failed".(paragraph 30 of the Grounds) (ii) This COA case may be the first case law in respect of the application of Section 103C(2) of the Legal Profession Act 1976 that the DB may make an order for restitution if it is established that such monies are held by the Appellant in his professional capacity and the First Respondent is entitled to the return of the such monies thereof.  The COA held that "It is imperative to note that the sum of RM398,000.00 ordered to be restituted by the DB was part of a total RM645,566.00 judgment sum in the 25/11/2011 Order. The judgment sum was assessed and awarded by the court to the Appellant as damages for trespass committed by the First Respondent against him. The money was purported to be received by the Appellant in his personal capacity as a private litigant. As such, we are of the view that the issue of restitution to the First Respondent does not arise at all based on the facts in the present case" ( paragraphs 52 and 53 of the Grounds) 

[Housing Developers, LAD and CCC issue] Justin, Alvin and Pei Sin were counsel for the 1st and 2nd Defendants in t this case In this case the plaintiffs were buyers of residential units in a housing project that was developed by the first defendant on land owned by the second defendant and in which project the third defendant was the architect. All the plaintiffs had complained, inter alia, that vacant possession of their units had not been delivered to them in accordance with the terms of their respective sale and purchase agreements and the architect had been negligent in not issuing a full certificate of completion and compliance (‘CCC’) in Form F to enable the delivery of vacant possession to take place but had only issued a partial CCC in Form F1 and that his actions had thereby interfered with the due performance of the SPAs. Some of the plaintiffs had their claims resolved before the Housing Tribunal and therefore dropped their claims in the instant suit, while the remaining plaintiffs entered into settlement agreements with the first defendant as to payment of liquidated and ascertained damages (‘LAD’) after vacant possession was delivered to them/ The High Court in this case struck out the plaintiffs' claim based on Order 18 rule 19 of the Rules of Court 2012 and provided extensive Grounds of Judgment for the same. The Court held amongst others as follows, CCC Issue (i) Although the title of the Form was "Form F1", the Architect has certified that Menara Tower 1 was built in accordance with the requirements of Sections 25 to 28 of YYBKS 1986 ( Selangor Uniform By Laws), He has certified that the building is fit and ready for occupation (paragraph 69 of GOJ) (ii) Based on Clause 25(3) of the SPA ( which provides that any cause of action for LAD shall accrue on the date the Purchaser takes vacant possession), the right of the plaintiffs to institute their claim only arise when vacant possession has been given to them. As they themselves are attempting to  re-open the issue of late delivery, they have surely admitted that vacant possession of the units had been given. They cannot blow hot and cold at the same time ( paragraphs 73 and 74 of the GOJ). (iii) Vacant possession had also been given as the Joint Management Body was set up vide Section 17 of the Strata Management Act (paragraph 71 of the GOJ) Housing Tribunal Issue (iv) Having started proceedings before the Housing Tribunal and finalizing the claims in those proceedings, the plaintiffs cannot pursue any further claims and re-open the disputes as the law in PJD/Ang Ming Lee ought not to apply retrospectively (paragraphs 22, 23 and 24 of the GOJ) Settlement Agreement (v) The Learned Judge held that the decision in Pinpoint Consortium [2020] 5 CLJ 281 and Obata Ombak [201] 10 CLJ 596 ought to be preferred to Leong Keng Chiang [2021] MLJU 714 on this point and the Settlement Agreement is binding on the plaintiffs and therefore bars the plaintiffs from making further claims for LAD ( paragraph 58 of the GOJ).  (vi) The PJD case issue of booking fee and Ang Ming Lee case issue of an extension by the controller is overtaken by the settlement agreement (vii) The Court is aware that HDA is a social legislation but this does not mean the Court can disregard any settlement agreement and "the sword of Justice" cuts both ways (paragraphs 76 and 777of the GOJ). Ang Ming Lee distinguished (vi) As the Controller had granted the amendment to the SPA before the contract is concluded , the decision of Ang Ming Lee do not apply to the facts here ( paragraph 50 of the GOJ)

(Summary Judgment) Justin added for the Defendant in this case. The Defendant applied for summary judgment on the counterclaim which was dismissed by the Sessions Court. The High Court allowed the appeal by the defendant on the basis amongst others that -The jurat by in the plaintiff’s affidavit is defective and did not comply with Order 41 rule 1(8) of the rules of court -The plaintiffs did not plead that the advance payments made by the defendant were on a gratuitous basis

[Summary Judgment – claim for specific sum- compromise arrangement] Justin was the counsel for the Defendant. The Court dismissed the Summary Judgment application and amongst others held that the claim before this court can be distinguished from normal straighforward cases simply with the existence of the compromise set off arrangement which was discussed at the August 2018 meeting. And the Court found that the defendants have sufficiently raised the following triable issues: (a)the lack of clarity of the claimed sum; and (b)the compromise arrangement between the plaintiff and the first defendant, which was discussed at the August 2018 meeting.

[Amendment application – delay] Justin acted as counsel for the Appellant. The High Court dismissed the appeal against the refusal by the sessions court to allow an application to amend the defence on the basis that there was a delay where amongst others the Court held that delay must be looked contextually and not in isolation. [Note : ON appeal, the Court of Appeal vide Civil Appeal No. J-04(IM)(NCVC)-494-12/2020 had allowed the appeal and the amendment]

[Amendment of an Order to reduce the sum awarded] Justin was counsel for the Plaintiff. The 1st Defendant applied vide notice of application dated 14/11/2018 for leave to amongst others amend the Court Order dated 25/11/2011 to reduce the sum awarded from RM645.566 to RM75,566. The High Court allowed the 1st Defendant’s application although the Plaintiff raised that an amendment application is not proper and it is in reality an attempt to set aside the Court Order which was already raised in a previous separate Suit 318 and the matter was res judicata. The Court held amongst others that it had the inherent powers to do so. [Note : The Court of Appeal in Civil Appeal No. W-03(IM)(NVCV)-50-08/2020 has overturned the High Court decision on 17/12/2021]

[Claim for specific performance in respect of a single sale & purchase agreement where not all joint purchasers are before the Court – striking out] Justin & Christina Chin was the counsel for the Defendant. The Plaintiffs and 2 others jointly purchased a piece of land Lot 4562 and another land Lot vide 2 respective sale and purchase agreements. The Defendant raised amongst others that the Plaintiffs has no locus standi to proceed for specific performance without the other 2 co-purchasers The Defendant applied to strike out the case which was allowed by the Court and the Court amongst others held that an undivided/joint owner of the land does not have locus standi to sue without joining other joint owners and hence, the Plaintiffs who have “equal share” in both lands have no locus standi here without including the other joint purchasers.

[Contempt proceedings – breach of Anton Piller Order] Justin and Christina Chin acted as counsel for the Plaintiff in this case. This case involves the principles of law in respect of the enforcement of an Anton Piller Order (“APO”) which the Plaintiff states was not complied with by the 1st Defendant (the 1st Alleged Contemnor) and the persons in control of the premises i.e the 2nd and 3rd Alleged Contemnors   The Court inter alia held that :   (i)              The case against the 1st Defendant is very clear where she has been served with the APO and the terms of the APO has been explained to her. She was asked to surrender her laptop were she responded she did not have her laptop but she was pictured later that day carrying a laptop bag. The Court found that it was improbable that she would not have her laptop with her seeing that she was at the premises to carry out a demonstration to a potential client. In any event she was subsequently asked again by letter dated 26/10/2017 to deliver up her lap top but she has not complied with the APO to date.     (ii)            The 1st Defendant refused to comply with the APO on basis the premises is not her office, but the premises is the place where the Plaintiff has reason to believe that the Defendants’ products or some of them are, since she was there to conduct a demonstration of her products   (iii)          However, since the person in control of the premises are the 2nd and 3rd Alleged Contemnors, and there is possibility that the Plaintiff would not be able to execute the APO even if the 1st Defendant did not object to it, the Court is not satisfied beyond reasonable doubt that she had obstructed the execution of the APP. But the 1st Defendant is guilty of contempt of Court in not surrendering her laptop at all, in breach of the terms of the APO     (iv)          As for the case against the 2nd and 3rd Alleged Contemnors, the Supervising Solicitors (“SS”) did hand the APO to the 2nd Alleged Contemnor for her to hand to her lawyers. The  SS did not explain the terms of the APO to the 2nd and 2rd Alleged Contemnors but to their lawyers who advised them what they should do. Despite that , the 2nd Alleged Contemnor pointedly said the Plaintiff cannot search the premises , they are not bound by the APO, there are not parties to the action, the premises do not belong to the Defendants and the APO might be obtained due to non disclosure of material facts.   (v)            The  2nd and 3rd Alleged Contemnors’ lawyers wrote a letter dated 19/10/2017 stating they are not bound by the APO and the APO might be obtained due to non disclosure of material facts but it did end the letter by saying that should the Plaintiff insist on entry and search it will reserve its rights to claim damages. The Court is of the view that the 2nd and 3rd Defendant have not categorically refused to comply with the APO as the option was given to the Plaintiff to insist on the entry and search. There is a reasonable doubt whether the 2nd and 3rd Alleged Contemnor had obstructed the Plaintiff from enforcing the APO   (vi)          The failure to comply with Order 52 rule 2B of the Rules of Court 2012 on service of a show cause notice is not fatal nor prejudicial to the 2nd and 3rd Alleged Contemnors   (vii)         The case of Dato Seri Yusof Bin Dato Biji Sutra @ Mohamad v BTM Timber Industries Sdn Bhd [2010] 1 MLJ 644 where the Court of Appeal held the words “persons appearing to have control of the premises” are too vague but on the careful reading of that case, the Court of Appeal is saying that it has not been shown the alleged contemnors in that case were the persons appearing to be in control of  the premises. In this case, the APO uses the words “owner of the Premises” or “persons on control of the Premises” and it is not in dispute that the 3rd alleged Contemnor is the owner of the premises and the 2nd Alleged Contemnor was the person who had control of the premises.     [Note : The Plaintiff appealed to the Court of Appeal vide Civil Appeal No. W-02(IM)(NVCV0-73-01/2021 and the Court of Appeal on 7/7/2022 allowed the Appeal and reversed the decision of the High Court vis-à-vis the 2nd and 3rd Alleged Contemnors and ordered that they were in contempt of court]